OFFICE OF THE PRESIDENT
No. 1877.
13 December 1995
NO. 66 OF 1995: LABOUR RELATIONS ACT, 1995.
It is hereby notified that the President has assented to the following Act which
is hereby published for general information:-
No. 66 of 1995: Labour Relations Act, 1995.
ACT
To change the law governing labour relations and, for that purpose-
to give effect to section 27 of the Constitution;
to regulate the organisational rights of trade unions;
to promote and facilitate collective bargaining at the workplace and at
sectoral level;
to regulate the right to strike and the recourse to lock-out in
conformity with the Constitution;
to promote employee participation in decision-making through the
establishment of workplace forums;
to provide simple procedures for the resolution of labour disputes
through statutory conciliation, mediation and arbitration (for which
purpose the Commission for Conciliation, Mediation and Arbitration is
established), and through independent alternative dispute resolution
services accredited for that purpose;
to establish the Labour Court and Labour Appeal Court as superior
courts, with exclusive jurisdiction to decide matters arising from the
Act;
to provide for a simplified procedure for the registration of trade
unions and employers' organisations, and to provide for their regulation
to ensure democratic practices and proper financial control;
to give effect to the public international law obligations of the
Republic relating to labour relations;
to amend and repeal certain laws relating to labour relations; and
to provide for incidental matters.
(English text signed by the President.
Assented to 29 November 1995.)
BE IT ENACTED by the Parliament of the Republic of South Africa as
follows:-
CONTENTS OF ACT
CHAPTER I
PURPOSE, APPLICATION AND INTERPRETATION
1. Purpose of this Act
2. Exclusion from application of this Act
3. Interpretation of this Act
CHAPTER II
FREEDOM OF ASSOCIATION AND GENERAL PROTECTIONS
4. Employees' right to freedom of association
5. Protection of employees and persons seeking employment
6. Employers' right to freedom of association
7. Protection of employers' rights
8. Rights of trade unions and employers' organisations
9. Procedure for disputes
10. Burden of proof
CHAPTER III
COLLECTIVE BARGAINING
PART A-ORGANISATIONAL RIGHTS
11. Trade union representativeness
12. Trade union access to workplace
13. Deduction of trade union subscriptions or levies
14. Trade union representatives
15. Leave for trade union activities
16. Disclosure of information
17. Restricted rights in domestic sector
18. Right to establish thresholds of representativeness
19. Certain organisational rights for trade union party to council
20. Organisational rights in collective agreements
21. Exercise of rights conferred by this Part
22. Disputes about organisational rights
PART B-COLLECTIVE AGREEMENTS
23. Legal effect of collective agreement
24. Disputes about collective agreements
25. Agency shop agreements
26. Closed shop agreements
PART C-BARGAINING COUNCILS
27. Establishment of bargaining councils
28. Powers and functions of bargaining council
29. Registration of bargaining councils
30. Constitution of bargaining council
31. Binding nature of collective agreement concluded in bargaining
council
32. Extension of collective agreement concluded in bargaining council
33. Appointment and powers of designated agents of bargaining councils
34. Amalgamation of bargaining councils
PART D-BARGAINING COUNCILS IN THE PUBLIC SERVICE
35. Bargaining councils in public service
36. Public Service Co-ordinating Bargaining Council
37. Bargaining councils in sectors in public service
38. Dispute resolution committee
PART E-STATUTORY COUNCILS
39. Application to establish statutory council
40. Establishment and registration of statutory council
41. Establishment and registration of statutory council in absence of
agreement
42. Certificate of registration of statutory council
43. Powers and functions of statutory councils
44. Ministerial determinations
45. Disputes about determinations
46. Withdrawal of party from statutory council
47. Appointment of new representative of statutory council
48. Change of status of statutory council
PART F-GENERAL PROVISIONS CONCERNING COUNCILS
49. Representativeness of council
50. Effect of registration of council
51. Dispute resolution functions of council
52. Accreditation of council or appointment of accredited agency
53. Accounting records and audits
54. Duty to keep records and provide information to registrar
55. Delegation of functions to committee of council
56. Admission of parties to council
57. Changing constitution or name of council
58. Variation of registered scope of council
59. Winding-up of council
60. Winding-up of council by reason of insolvency
61. Cancellation of registration of council
62. Disputes about demarcation between sectors and areas
63. Disputes about Parts A and C to F
CHAPTER IV
STRIKES AND LOCK-OUTS
64. Right to strike and recourse to lock-out
65. Limitations on right to strike or recourse to lock-out
66. Secondary strikes
67. Strike or lock-out in compliance with this Act
68. Strike or lock-out not in compliance with this Act
69. Picketing
70. Essential services committee
71. Designating a service as an essential service
72. Minimum services
73. Disputes about whether a service is an essential service
74. Disputes in essential services
75. Maintenance services
76. Replacement labour
77. Protest action to promote or defend socioeconomic interests of
workers
CHAPTER V
WORKPLACE FORUMS
78. Definitions in this Chapter
79. General functions of workplace forum
80. Establishment of workplace forum
81. Trade union based workplace forum
82. Requirements for constitution of workplace forum
83. Meetings of workplace forum
84. Specific matters for consultation
85. Consultation
86. Joint decision-making
87. Review at request of newly established workplace forum
88. Matters affecting more than one workplace forum in an employer's
operation
89. Disclosure of information
90. Inspection and copies of documents
91. Breach of confidentiality
92. Full-time members of workplace forum
93. Dissolution of workplace forum
94. Disputes about workplace forums
CHAPTER VI
TRADE UNIONS AND EMPLOYERS' ORGANISATIONS
PART A-REGISTRATION AND REGULATION OF TRADE UNIONS AND EMPLOYERS' ORGANISATIONS
95. Requirements for registration of trade unions or employers'
organisations
96. Registration of trade unions or employers' organisations
97. Effect of registration of trade union or employers' organisation
98. Accounting records and audits
99. Duty to keep records
100. Duty to provide information to registrar
101. Changing constitution or name of registered trade unions or
employers' organisations
102. Amalgamation of trade unions or employers' organisations
103. Winding-up of registered trade unions or registered employers'
organisations
104. Winding-up of trade unions or employers' organisations by reason of
insolvency
105. Cancellation of registration of trade union that is no longer
independent
106. Cancellation of registration of trade unions or employers'
organisations
PART B-REGULATION OF FEDERATIONS OF TRADE UNIONS AND EMPLOYERS' ORGANISATIONS
107. Regulation of federations of trade unions or employers'
organisations
PART C-REGISTRAR OF LABOUR RELATIONS
108. Appointment of registrar of labour relations
109. Functions of registrar
110. Access to information
PART D-APPEALS FROM REGISTRAR'S DECISION
111. Appeals from registrar's decision
CHAPTER VII
DISPUTE RESOLUTION
PART A-COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION
112. Establishment of Commission for Conciliation, Mediation and
Arbitration
113. Independence of Commission
114. Area of jurisdiction and offices of Commission
115. Functions of Commission
116. Governing body of Commission
117. Commissioners of Commission
118. Director of Commission
119. Acting director of Commission
120. Staff of Commission
121. Establishment of committees of Commission
122. Finances of Commission
123. Circumstances in which Commission may charge fees
124. Contracting by Commission, and Commission working in association
with any person
125. Delegation of governing body's powers, functions and duties
126. Limitation of liability and limitation on disclosure of information
PART B-ACCREDITATION OF AND SUBSIDY TO COUNCILS AND PRIVATE AGENCIES
127. Accreditation of councils and private agencies
128. General provisions relating to accreditation
129. Amendment of accreditation
130. Withdrawal of accreditation
131. Application to renew accreditation
132. Subsidy to council or private agency
PART C-RESOLUTION OF DISPUTES UNDER AUSPICES OF COMMISSION
133. Resolution of disputes under auspices of Commission
134. Disputes about matters of mutual interest
135. Resolution of disputes through conciliation
136. Appointment of commissioner to resolve dispute through arbitration
137. Appointment of senior commissioner to resolve dispute through
arbitration
138. General provisions for arbitration proceedings
139. Special provisions for arbitrating disputes in essential services
140. Special provisions for arbitrations about dismissals for reasons
related to conduct or capacity
141. Resolution of disputes if parties consent to arbitration under
auspices of Commission
142. Powers of commissioner when attempting to resolve disputes
143. Effect of arbitration awards
144. Variation and rescission of arbitration awards
145. Review of arbitration awards
146. Exclusion of Arbitration Act
147. Performance of dispute resolution functions by Commission in
exceptional circumstances
148. Commission may provide advice
149. Commission may provide assistance
150. Commission may offer to resolve
PART D-LABOUR COURT
151. Establishment and status of Labour Court
152. Composition of Labour Court
153. Appointment of judges of Labour Court
154. Tenure, remuneration and terms and conditions of appointment of
Labour Court judges
155. Officers of Labour Court
156. Area of jurisdiction and seat of Labour Court
157. Jurisdiction of Labour Court
158. Powers of Labour Court
159. Rules Board for Labour Courts and rules for Labour Court
160. Proceedings of Labour Court to be carried on in open court
161. Representation before Labour Court
162. Costs
163. Service and enforcement of orders of Labour Court
164. Seal of Labour Court
165. Variation and rescission of orders of Labour Court
166. Appeals against judgment or order of Labour Court
PART E-LABOUR APPEAL COURT
167. Establishment and status of Labour Appeal Court
168. Composition of Labour Appeal Court
169. Appointment of judges of Labour Appeal Court
170. Tenure, remuneration and terms and conditions of appointment of
Labour Appeal Court judges
171. Officers of Labour Appeal Court
172. Area of jurisdiction and seat of Labour Appeal Court
173. Jurisdiction of Labour Appeal Court
174. Powers of Labour Appeal Court on hearing of appeals
175. Labour Appeal Court may sit as court of first instance
176. Rules for Labour Appeal Court
177. Proceedings of Labour Appeal Court to be carried on in open court
178. Representation before Labour Appeal Court
179. Costs
180. Service and enforcement of orders
181. Seal of Labour Appeal Court
182. Judgments of Labour Appeal Court binding on Labour Court
183. Labour Appeal Court final court of appeal
PART F-GENERAL PROVISIONS APPLICABLE TO COURTS ESTABLISHED BY THIS ACT
184. General provisions applicable to courts established by this Act
CHAPTER VIII
UNFAIR DISMISSAL
185. Right not to be unfairly dismissed
186. Meaning of dismissal
187. Automatically unfair dismissals
188. Other unfair dismissals
189. Dismissals based on operational requirements
190. Date of dismissal
191. Disputes about unfair dismissals
192. Onus in dismissal disputes
193. Remedies for unfair dismissal
194. Limits on compensation
195. Compensation is in addition to any other amount
196. Severance pay
197. Transfer of contract of employment
CHAPTER IX
GENERAL PROVISIONS
198. Temporary Employment Services
199. Contracts of employment may not disregard or waive collective
agreements or arbitration awards
200. Representation of employees or employers
201. Confidentiality
202. Service of documents
203. Codes of good practice
204. Collective agreement, arbitration award or wage determination to be
kept by employer
205. Records to be kept by employer
206. Effect of certain defects and irregularities
207. Ministers empowered to add and change to Schedules
208. Regulations
209. This Act binds the State
210. Application of Act when in conflict with other laws
211. Amendment of laws
212. Repeal of laws, and transitional arrangements
213. Definitions
214. Short title and commencement
SCHEDULE 1
ESTABLISHMENT OF BARGAINING COUNCILS FOR PUBLIC SERVICE
1. Definitions for this Schedule
2. Establishment of Public Service Co-ordinating Bargaining Council
3. Establishment of bargaining council in sectors
SCHEDULE 2
GUIDELINES FOR CONSTITUTION OF WORKPLACE FORUM
1. Introduction
2. Number of seats in workplace forums (section 82(1)(a))
3. Distribution of seats to reflect occupational structure (section 82(l)
(b))
4. Elections (section 82(l)(c), (d), (g), (h), (i) and (j))
5. Terms of office (section 82(l)(k), (1) and (m))
6. Meetings of workplace forum (section 82(l)(n))
7. Time off for members of workplace forum (section 82(1)(p))
8. Facilities to be provided to workplace forum (section 82(l)(r))
9. Experts (section 82(l)(t))
10. Establishment of coordinating and subsidiary workplace forums
(section 82(2)(b))
SCHEDULE 3
COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION 230
1 . Remuneration and allowances of members of governing body
2. Resignation and removal from office of member of governing body
3. Vacancies in governing body
4. Proceedings of governing body
5. Director of Commission
6. Bank account
7. Investment of surplus money
8. Accounting and auditing
9. Annual report
SCHEDULE 4
DISPUTE RESOLUTION: FLOW DIAGRAMS
SCHEDULE 5
AMENDMENT OF LAWS 250
1. Amendment of section 1 of Basic Conditions of Employment Act
2. Amendment of section 35 of Occupational Health and Safety Act, 1993
SCHEDULE 6
LAWS REPEALED BY SECTION 212
SCHEDULE 7
TRANSITIONAL ARRANGEMENTS
PART A-DEFINITIONS FOR THIS SCHEDULE
1. Definitions for this Schedule
PART B-UNFAIR LABOUR PRACTICES
2. Residual unfair labour practices
3. Disputes about unfair labour practices
4. Powers of Labour Court and Commission
PART C-PROVISIONS CONCERNING EXISTING TRADE UNIONS, EMPLOYERS' ORGANISATIONS,
INDUSTRIAL COUNCILS AND CONCILIATION BOARDS
5. Existing registered trade unions and employers' organisations
6. Pending applications by trade unions or employers' organisations for
registration, variation of scope, alteration of constitution or name
7. Industrial councils
8. Pending applications by industrial councils for registration and
variation of scope
9. Pending applications by industrial councils for alteration of
constitution or name
10. Pending applications for admission of parties to industrial councils
11. Pending applications to wind up and cancel registration of trade
unions, employers' organisations and industrial councils
12. Existing agreements and awards of industrial councils and
conciliation boards
13. Existing agreements including recognition agreements
PART D- MATTERS CONCERNING PUBLIC SERVICE
14. Public Service Bargaining Council
15. Collective agreements in the public service
16. Education Labour Relations Council
17. Education sector collective agreements
18. Negotiating Forum in South African Police Service
19. Collective agreement in South African Police Service
20. Consequences for public service bargaining institutions when Public
Service Co-ordinating Bargaining Council is established
PART E-DISPUTES AND COURTS
21. Disputes arising before commencement of this Act
22. Courts
PART F-PENSION MATTERS
23. Continuation of existing pension rights of staff members of
Commission upon assuming employment
SCHEDULE 8
CODE OF GOOD PRACTICE: DISMISSAL
1. Introduction
2. Fair reasons for dismissal
3. Misconduct
4. Fair procedure
5. Disciplinary records
6. Dismissals and industrial action
7. Guidelines in cases of dismissal for misconduct
8. Incapacity: Poor work performance
9. Guidelines in cases of dismissal for poor work performance
10. Incapacity: III health or injury
11. Guidelines in cases of dismissal arising from ill health or injury
CHAPTER I
PURPOSE, APPLICATION AND INTERPRETATION
1. Purpose of this Act
The purpose of this Act' is to advance economic development, social
justice, labour peace and the democratisation of the workplace by
fulfilling the primary objects of this Act, which are-
(a) to give effect to and regulate the fundamental rights conferred
by section 27 of the Constitution ;2
(b) to give effect to obligations incurred by the Republic as a
member state of the International Labour Organisation;
¹ to provide a framework within which employees and their trade
unions, employers and employers' organisations can-
(i) collectively bargain to determine wages, terms and
conditions of employment and other matters of mutual
interest; and
(ii) formulate industrial policy; and
(d) to promote-
1 An italicised word or phrase indicates that the word or phrase is
defined in section 213 of this Act.
2. Section 27, which is in the Chapter on Fundamental Rights in the
Constitution entrenches the following rights:
"(1) Every person shall have the right to fair labour practices.
(2) Workers shall have the right to form and join trade unions, and
employers shall have the right to form and join employers'
organisations.
(3) Workers and employers shall have the right to organise and bargain
collectively.
(4) Workers shall have the right to strike for the purpose of
collective bargaining.
(5) Employers' recourse to the lock-out for the purpose of collective
bargaining shall not be impaired, subject to subsection 33(l)."
(i) orderly collective bargaining;
(ii) collective bargaining at sectoral level;
(iii) employee participation in decision-making in the
workplace; and
(iv) the effective resolution of labour disputes.
2. Exclusion from application of this Act
This Act does not apply to members of-
(a) the National Defence Force;
(b) the National Intelligence Agency; and
¹ the South African Secret Service.
3. Interpretation of this Act
Any person applying this Act must interpret its provisions-
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
¹ in compliance with the public international law obligations of the
Republic.
CHAPTER II
FREEDOM OF ASSOCIATION AND GENERAL PROTECTIONS
4. Employees' right to freedom of association
(1) Every employee has the right-
(a) to participate in forming a trade union or federation of
trade unions; and
(b) to join a trade union, subject to its constitution.
(2) Every member of a trade union has the right, subject to the
constitution of that trade union-
(a) to participate in its lawful activities;
(b) to participate in the election of any of its
office-bearers, officials or trade union
representatives;
¹ to stand for election and be eligible for appointment as
an office bearer or official and, if elected or
appointed, to hold office; and
(d) to stand for election and be eligible for appointment as
a trade union representative and, if elected or
appointed, to carry out the functions of a trade
union representative in terms of this Act or any
collective agreement.
(3) Every member of a trade union that is a member of a federation
of trade unions has the right, subject to the constitution
of that federation-
(a) to participate in its lawful activities;
(b) to participate in the election of any of its
office-bearers or officials; and
¹ to stand for election and be eligible for appointment as
an office-bearer or official and, if elected or
appointed, to hold office.
5. Protection of employees and persons seeking employment
(1) No person may discriminate against an employee for
exercising any right conferred by this Act.
(2) Without limiting the general protection conferred by
subsection (1), no person may do, or threaten to do,
any of the following-
(a) require an employee or a person seeking employment-
(i) not to be a member of a trade union or workplace forum;
(ii) not to become a member of a trade union or workplace,
forum; or
(iii) to give up membership of a trade union or
workplace forum;
(b) prevent an employee or a person seeking employment from
exercising any right conferred by this Act or from participating in
any proceedings in terms of this Act; or
¹ prejudice an employee or a person seeking employment because of
past, present or anticipated-
(i) membership of a trade union or workplace forum;
(ii) participation in forming a trade union or federation
of trade unions or establishing a workplace forum;
(iii) participation in the lawful activities of a trade
union, federation of trade unions or workplace forum;
(iv) failure or refusal to do something that an employer
may not lawfully permit or require an employee to do;
(v) disclosure of information that the employee is lawfully
entitled or required to give to another person;
(vi) exercise of any right conferred by this Act; or
(vii) participation in any proceedings in terms of this
Act.
(3) No person may advantage, or promise to advantage, an employee or
a person seeking employment in exchange for that person not
exercising any right conferred by this Act or not
participating in any proceedings in terms of this Act.
However, nothing in this section precludes the parties to a
dispute from concluding an agreement to settle that dispute.
(4) A provision in any contract, whether entered into before or
after the commencement of this Act, that directly or
indirectly contradicts or limits any provision of section 4,
or this section, is invalid, unless the contractual
provision is permitted by this Act.
6. Employers' right to freedom of association
(1) Every employer has the right-
(a) to participate in forming an employers' organisation or a
federation of employers' organisations; and
(b) to an employers' organisation, subject to its constitution.
(2) Every member of an employers' organisation has the right,
subject to the constitution of that employers' organisation-
(a) to participate in its lawful activities;
(b) to participate in the election of any of its office-bearers or
officials; and
¹ if-
(i) a natural person, to stand for election and be eligible
for appointment as an office-bearer or official and, if
elected or appointed, to hold office;
(ii) a juristic person, to have a representative stand for
election, and be eligible for appointment, as an
office-bearer or official and, if elected or appointed, to
hold office.
(3) Every member of an employers' organisation that is a member of a
federation of employers' organisations has the right, subject to the
constitution of that federation-
(a) to participate in its lawful activities;
(b) to participate in the election of any of its office-bearers or o
and (c)
(i) a natural person, to stand for election and be eligible
for appointment as an office-bearer or official and, if
elected or appointed, to hold office; or
(ii) a juristic person, to have a representative stand for
election, and be eligible for appointment, as an
office-bearer or official and, if elected or appointed, to
hold office.
7. Protection of employers' rights
(1) No person may discriminate against an employer for exercising any
right conferred by this Act.
(2) Without limiting the general protection conferred by subsection (1),
no person may do, or threaten to do, any of the following-
(a) require an employer-
(i)) not to be a member of an employers' organisation;
(ii) not to become a member of an employers' organisation;
or
(iii) to give up membership of an employers' organisation;
(b) prevent an employer from exercising any right conferred by this
Act or from participating in any proceedings in terms of this Act; or
(c) prejudice an employer because of past, present or anticipated-
(i) membership of an employers' organisation;
(ii) participation in forming an employers' organisation or
a federation of employers' organisations;
(iii) participation in the lawful activities of an
employers' organisation or a federation of employers'
organisations;
(iv) disclosure of information that the employer is
lawfully entitled or required to give to another person;
(v) exercise of any right conferred by this Act; or
(vi) participation in any proceedings in terms of this Act.
(3) No person may advantage, or promise to advantage, an employer in
exchange for that employer not exercising any right conferred by this Act
or not participating in any proceedings in terms of this Act. However,
nothing in this section precludes the parties to a dispute from
concluding an agreement to settle that dispute.
(4) A provision in any contract, whether entered into before or after the
commencement of this Act, that directly or indirectly contradicts or
limits any provision of section 6, or this section, is invalid, unless
the contractual provision is permitted by this Act.
8. Rights of trade unions and employers' organisations
Every trade union and every employers' organisation has the right-
(a) subject t
employers' organisations, subject to its constitution, and to
participate in its lawful activities; and
(e) to affiliate with, and participate in the affairs of, any
international workers' organisation or international employers'
organisation or the International Labour Organisation, and contribute
to, or receive financial assistance from, those organisations.
9. Procedure for dispute S 3
(1) If there is a dispute about the interpretation or application of any
provision of this Chapter, any party to the dispute may refer the dispute
in writing to-
(a) a council, if the parties to the dispute fall within the
registered scope of that council; or
(b) the Commission, if no council has jurisdiction.
(2) The party who refers the dispute must satisfy the council or the
Commission that a copy of the referral has been served on all the other
parties to the dispute.
(3) The council or the Commission must attempt to resolve the dispute
through conciliation.
(4) If the dispute remains unresolved, any party to the dispute may refer
it to the Labour Court for adjudication.
10. Burden of proof
In any proceedings-
(a) a party who alleges that a right or protection conferred by this
Chapter has been infringed must prove the facts of the conduct; and
(b) the party who engaged in that conduct must then prove that the
conduct did not infringe any provision of this Chapter.
CHAPTER III
COLLECTIVE BARGAINING
PART A-ORGANISATIONAL RIGHTS
11. Trade union representativeness
In this Part, unless otherwise stated, "representative trade
union" means a registered trade union, or two or more registered
trade unions acting jointly, that are sufficiently representative
of the employees employed by an employer in a workplace.
12. Trade union access to workplace
(1) Any office-bearer or official of a representative trade union is
entitled to enter the employer's premises in order to recruit members or
communicate with members, or otherwise serve members' interests.
(2) A representative trade union is entitled to hold meetings with
employees outside their working hours at the employer's premises.
(3) The members of a representative trade union are entitled to vote at
the employer's premises in any election or ballot contemplated in that
trade union's constitution.
(4) The rights conferred by this section are subject to any conditions as
to time and place that are reasonable and necessary to safeguard life or
property or to prevent the undue disruption of work.
13. Deduction of trade union subscriptions or levies
(1) Any employee who is a member of a representative trade union may
authorise the employer in writing to deduct subscriptions or levies
payable to that trade union from the employee's wages.
(2) An employer who receives an authorisation in terms of subsection (1)
must begin making the authorised deduction as soon as possible and must
remit the amount deducted to the representative trade union by not later
than the 15th day of the month first following the date each deduction
was made.
(3) An employee may revoke an authorisation given in terms of subsection
(1) by giving the employer and the representative trade union one month's
written notice or, if the employee works in the public service, three
months' written notice.
(4) An employer who receives a notice in terms of subsection (3) must
continue to make the authorised deduction until the notice period has
expired and then must stop making the deduction.
(5) With each monthly remittance, the employer must give the
representative trade union-
(a) a list of the names of every member from whose wages the employer
has made the deductions that are included in the remittance;
(b) details of the amounts deducted and remitted and the period to
which the deductions relate; and
(c) a copy of every notice of revocation in terms of subsection (3).
14. Trade union representatives
(1) In this section, "representative trade union" means a registered
trade union, or two or more registered trade unions acting jointly, that
have as members the majority of the employees employed by an employer in
a workplace.
(2) In any workplace in which at least 10 members of a representative
trade union are employed, those members are entitled to elect from among
themselves-
(a) if there are 10 members of the trade union employed in the
workplace, one trade union representative;
(b) if there are more than 10 members of the trade union employed in
the workplace, two trade union representatives;
(c) if there are more than 50 members of the trade union employed in
the workplace, two trade union representatives for the first 50
members, plus a further one trade union representative for every
additional 50 members up to a maximum of seven trade union
representatives;
(d) if there are more than 300 members of the trade union employed in
the workplace, seven trade union representatives for the first 300
members, plus one additional trade union representative for every 100
additional members up to a maximum of 10 trade union representatives;
(e) if there are more than 600 members of the trade union employed in
the workplace, 10 trade union representatives for the first 600
members, plus one additional trade union representative for every 200
additional members up to a maximum of 12 trade union representatives;
and if there are more than 1000 members of the trade union employed
in the workplace, 12 trade union representatives for the first 1000
members, plus one additional trade union representative for every 500
additional members up to a maximum of 20 trade union representatives.
(3) The constitution of the representative trade union governs the
nomination, election, term of office and removal from office of a trade
union representative.
(4) A trade union representative has the right to perform the following
functions-
(a) at the request of an employee in the workplace, to assist and
represent the employee in grievance and disciplinary proceedings;
(b) to monitor the employer's compliance with the workplace-related
provisions of this Act, any law regulating terms and conditions of
employment and any collective agreement binding on the employer;
(c) to report any alleged contravention of the workplace-related
provisions of this Act, any law regulating terms and conditions of
employment and any collective agreement binding on the employer to-
(i) the employer;
(ii) the representative trade union; and
(iii) any responsible authority or agency; and
(d) to perform any other function agreed to between the
representative trade union and the employer.
(5) Subject to reasonable conditions, a trade union representative is
entitled to take reasonable time off with pay during working hours-
(a) to perform the functions of a trade union representative; and
(b) to be trained in any subject relevant to the performance of the
functions of a trade union representative.
15. Leave for trade union activities
(1) An employee who is an office-bearer of a representative trade union,
or of a federation of trade unions to which the representative trade
union is affiliated, is entitled to take reasonable leave during working
hours for the purpose of performing the functions of that office.
(2) The representative trade union and the employer may agree to the
number of days of leave, the number of days of paid leave and the
conditions attached to any leave.
(3) An arbitration award in terms of section 21(7) regulating any of the
matters referred to in subsection (2) remains in force for 12 months from
the date of the award.
16. Disclosure of information
(1) For the purposes of this section, "representative trade union" means
a registered trade union, or two or more registered trade unions acting
jointly, that have as members the majority of the employees employed by
an employer in a workplace.
(2) Subject to subsection (5), an employer must disclose to a trade union
representative all relevant information that will allow the trade union
representative to perform effectively the functions referred to in
section 14(4).
(3) Subject to subsection (5), whenever an employer is consulting or
bargaining with a representative trade union, the employer must disclose
to the representative trade union all relevant information that will
allow the representative trade union to engage effectively in
consultation or collective bargaining.
(4) The employer must notify the trade union representative or the
representative trade union in writing if any information disclosed in
terms of subsection (2) or (3) is confidential.
(5) An employer is not required to disclose information-
(a) that is legally privileged;
(b) that the employer cannot disclose without contravening a
prohibition imposed on the employer by any law or order of any court;
(c) that is confidential and, if disclosed, may cause substantial
harm to an employee or the employer; or
(d) that is private personal information relating to an employee,
unless that employee consents to the disclosure of that information.
(6) If there is a dispute about what information is required to be
disclosed in terms of this section, any party to the dispute may refer
the dispute in writing to the Commission.
(7) The party who refers the dispute to the Commission must satisfy it
that a copy of the referral has been served on all the other parties to
the dispute.
(8) The Commission must attempt to resolve the dispute through
conciliation.
(9) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration.
(10) In any dispute about the disclosure of information contemplated in
subsection (6), the commissioner must first decide whether or not the
information is relevant.
(11) If the commissioner decides that the information is relevant and if
it is information contemplated in subsection (5)(c) or (d), the
commissioner must balance the harm that the disclosure is likely to cause
to an employee or employer against the harm that the failure to disclose
the information is likely to cause to the ability of a trade union
representative to perform effectively the functions referred to in
section 14(4) or the ability of a representative trade union to engage
effectively in consultation or collective bargaining.
(12) If the commissioner decides that the balance of harm favours the
disclosure of the information, the commissioner may order the disclosure
of the information on terms designed to limit the harm likely to be
caused to the employee or employer.
(13) When making an order in terms of subsection (I 2), the commissioner
must take into account any breach of confidentiality in respect of
information disclosed in terms of this section at that workplace and may
refuse to order the disclosure of the information or any other
confidential information which might otherwise be disclosed for a period
specified in the arbitration award.
(14) In any dispute about an alleged breach of confidentiality, the
commissioner may order that the right to disclosure of information in
that workplace be withdrawn for a period specified in the arbitration
award.
17. Restricted rights in domestic sector
(1) For the purposes of this section, "domestic sector" means the
employment of employees engaged in domestic work in their employers'
homes or on the property on which the home is situated.
(2) The rights conferred on representative trade unions by this Part in
so far as they apply to the domestic sector are subject to the following
limitations-
(a) the right of access to the premises of the employer conferred by
section 12 on an office-bearer or official of a representative trade
union does not include the right to enter the home of the employer,
unless the employer agrees; and
(b) the right to the disclosure of information conferred by section
16 does not apply in the domestic sector.
18. Right to establish thresholds of representativeness
(1) An employer and a registered trade union whose members are a majority
of the employees employed by that employer in a workplace, or the parties
to a bargaining council, may conclude a collective agreement establishing
a threshold of representativeness required in respect of one or more of
the organisational rights referred to in sections 12, 13 and 15.
(2) A collective agreement concluded in terms of subsection (1) is not
binding unless the thresholds of representativeness in the collective
agreement are applied equally to any registered trade union seeking any
of the organisational rights referred to in that subsection.
19. Certain organisational rights for trade union party to council
Registered trade unions that are parties to a council automatically
have the rights contemplated in sections 12 and 13 in respect of all
workplaces within the registered scope of the council regardless of
their representativeness in any particular workplace.
20. Organisational rights in collective agreements
Nothing in this Part precludes the conclusion of a collective
agreement that regulates organisational rights.
21. Exercise of rights conferred by this Part 4
(1) Any registered trade union may notify an employer in writing that it
seeks to exercise one or more of the rights conferred by this Part in a
workplace.
(2) The notice referred to in subsection (1) must be accompanied by a
certified copy of the trade unions certificate of registration and must
specify-
(a) the workplace in respect of which the trade union seeks to
exercise the rights;
(b) the representativeness of the trade union in that workplace, and
the facts relied upon to demonstrate that it is a representative
trade union; and
(c) the rights that the trade union seeks to exercise and the manner
in which it seeks to exercise those rights.
(3) Within 30 days of receiving the notice, the employer must meet the
registered trade union and endeavour to conclude a collective agreement
as to the manner in which the trade union will exercise the rights in
respect of that workplace.
(4) If a collective agreement is not concluded, either the registered
trade union or the employer may refer the dispute in writing to the
Commission.
(5) The party who refers the dispute to the Commission must satisfy it
that a copy of the referral has been served on the other party to the
dispute.
(6) The Commission must appoint a commissioner to attempt to resolve the
dispute through conciliation.
(7) If the dispute remains unresolved, either party to the dispute may
request that the dispute be resolved through arbitration.
(8) If the unresolved dispute is about whether or not the registered
trade union is a representative trade union, the commissioner-
(a) must seek
(i) to minimise the proliferation of trade union
representation in a single workplace and, where possible,
to encourage a system of a representative trade union in a
workplace; and
(ii) to minimise the financial and administrative burden of
requiring an employer to grant organisational rights to
more than one registered trade union;
(b) must consider-
(i) the nature of the workplace;
(ii) the nature of the one or more organisational rights
that the registered trade union seeks to exercise;
(iii) the nature of the sector in which the workplace is
situated; and
(iv) the organisational history at the workplace or any
other workplace of the employer; and
(c) may withdraw any of the organisational rights conferred by this
Part and which are exercised by any other registered trade union in
respect of that workplace, if that other trade union has ceased to be
a representative trade union.
(9) In order to determine the membership or support of the registered
trade union, the commissioner may-
(a) make any necessary inquiries;
(b) where appropriate, conduct a ballot of the relevant employees;
and
(c) take into account any other relevant information.
(10) The employer must co-operate with the commissioner when the
commissioner acts in terms of subsection (9), and must make available to
the commissioner any information and facilities that are reasonably
necessary for the purposes of that subsection.
(11) An employer who alleges that a trade union is no longer a
representative trade union may apply to the Commission to withdraw any of
the organisational rights conferred by this Part, in which case the
provisions of subsections (5) to (10) apply, read with the changes
required by the context.
22. Disputes about organisational rights
(1) Any party to a dispute about the interpretation or application of any
provision of this Part, other than a dispute contemplated in section 21,
may refer the dispute in writing to the Commission.
(2) The party who refers a dispute to the Commission must satisfy it that
a copy of the referral has been served on all the other parties to the
dispute.
(3) The Commission must attempt to resolve the dispute through
conciliation.
(4) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration as soon as
possible.
PART B-COLLECTIVE AGREEMENTS
23. Legal effect of collective agreement
(1) A collective agreement binds-
(a) the parties to the collective agreement;
(b) each party to the collective agreement and the members of every
other I party to the collective agreement, in so far as the
provisions are applicable between them;
(c) the members of a registered trade union and the employers who are
members of a registered employers' organisation that are party to the
collective agreement if the collective agreement regulates-
(i) terms and conditions of employment; or
(ii) the conduct of the employers in relation to their
employees or the conduct of the employees in relation to
their employers;
(d) employees who are not members of the registered trade union or
trade unions party to the agreement if-
(i) the employees are identified in the agreement;
(ii) the agreement expressly binds the employees; and
(iii) that trade union or those trade unions have as their
members the majority of employees employed by the employer
in the workplace.
(2) A collective agreement binds for the whole period of the collective
agreement every person bound in terms of subsection (1)(c) who was a
member at the time it became binding, or who becomes a member after it
became binding, whether or not that person continues to be a member of
the registered trade union or registered employers' organisation for the
duration of the collective agreement.
(3) Where applicable, a collective agreement varies any contract of
employment between an employee and employer who are both bound by the
collective agreement.
(4) Unless the collective agreement provides otherwise, any party to a
collective agreement that is concluded for an indefinite period may
terminate the agreement by giving reasonable notice to the other parties.
24. Disputes about collective agreements
(1) Every collective agreement, excluding an agency shop agreement
concluded in terms of section 25 or a closed shop agreement concluded in
terms of section 26, must provide for a procedure to resolve any dispute
about the interpretation or application of the collective agreement. The
procedure must first require the parties to attempt to resolve the
dispute through conciliation and, if the dispute remains unresolved, to
resolve it through arbitration.
(2) If there is a dispute about the interpretation or application of a
collective agreement, any party to the dispute may refer the dispute in
writing to the Commission if-
(a) the collective agreement does not provide for a procedure as
required by subsection (1);
(b) the procedure provided for in the collective agreement is not
operative; or
(c) any party to the collective agreement has frustrated the
resolution of the dispute in terms of the collective agreement.
(3) The party who refers the dispute to the Commission must satisfy it
that a copy of the referral has been served on all the other parties to
the dispute.
(4) The Commission must attempt to resolve the dispute through
conciliation.
(5) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration.5
(6) If there is a dispute about the interpretation or application of an
agency shop agreement concluded in terms of section 25 or a closed shop
agreement concluded in terms of section 26, any party to the dispute may
refer the dispute in writing to the Commission, and subsections (3) to
(5) will apply to that dispute.6
(7) Any person bound by an arbitration award about the interpretation or
application of section 25(3)(c) and (d) or section 26(3)(d) may appeal
against that award to the Labour Court.
25. Agency shop agreements
(1) A representative trade union and an employer or employers'
organisation may conclude a collective agreement, to be known as an
agency shop agreement, requiring the employer to deduct an agreed agency
fee from the wages of its employees who are identified in the agreement
and who are not members of the trade union.
(2) For the purposes of this section, "representative trade union" means
a registered trade union, or two or more registered trade unions acting
jointly, whose members are a majority of the employees employed-
(a) by an employer in a workplace; or
(b) by the members of an employers' organisation in a sector and area
in respect of which the agency shop agreement applies.
(3) An agency shop agreement is binding only if it provides that-
(a) employees who are not members of the representative trade union
are not compelled to become members of that trade union;
(b) the agreed agency fee must be equivalent to, or less than-
(i) the amount of the subscription payable by the members
of the representative trade union;
(ii) if the subscription of the representative trade union
is calculated as a percentage of an employee's salary, that
percentage; or
(iii) if there are two or more registered trade unions
party to the agreement, the highest amount of the
subscription that would apply to an employee;
(c) the amount deducted must be paid into a separate account
administered by the representative trade union; and
(d) no part of the amount deducted may be-
(i) paid to a political party as an affiliation fee;
(ii) contributed in cash or kind to a political party or a
person standing for election to any political office; or
(iii) used for any expenditure that does not advance or
protect the socioeconomic interests of employees.
(4) (a) Despite the provisions of any law or contract, an employer may
deduct the agreed agency fee from the wages of an employee without the
employee's authorisation.
(b) Despite subsection 3(c) a conscientious objector may request the
employer to pay the amount deducted from that employee's wages into a
fund administered by the Department of Labour.
(5) The provisions of sections 98 and 100(b) and (c) apply, read with the
changes required by the context, to the separate account referred to in
subsection (3)(c).
(6) Any person may inspect the auditor's report, in so far as it relates
to an account referred to in subsection (3)(c), in the registrar's
office.
(7) The registrar must provide a certified copy of, or extract from, any
of the documents referred to in subsection (6) to any person who has paid
the prescribed fees.
(8) An employer or employers' organisation that alleges that a trade
union is no longer a representative trade union in terms of subsection
(1) must give the trade union written notice of the allegation, and must
allow the trade union 90 days from the date of the notice to establish
that it is a representative trade union.
(9) If, within the 90-day period, the trade union falls to establish that
it is a representative trade union, the employer must give the trade
union and the employees covered by the agency shop agreement 30 days'
notice of termination, after which the agreement will terminate.
(10) If an agency shop agreement is terminated, the provisions of
subsection (3)(c) and (d) and (5) apply until the money in the separate
account is spent.
26. Closed shop agreements
(1) A representative trade union and an employer or employers'
organisation may conclude a collective agreement, to be known as a closed
shop agreement, requiring all employees covered by the agreement to be
members of the trade union.
(2) For the purposes of this section, "representative trade union" means
a registered trade union, or two or more registered trade unions acting
Jointly, whose members are a majority of the employees employed-
(a) by an employer in a workplace; or
(b) by the members of an employers' organisation in a sector and area
in respect of which the closed shop agreement applies.
(3) A closed shop agreement is binding only if-
(a) a ballot has been held of the employees to be covered by the
agreement;
(b) two thirds of the employees who voted have voted in favour of the
agreement;
(c) there is no provision in the agreement requiring membership of
the representative trade union before employment commences; and
(d) it provides that no part of the amount deducted may be-
(i) paid to a political party as an affiliation fee;
(ii) contributed in cash or kind to a political party or a
person standing for election to any political office; or
(iii) used for any expenditure that does not advance or
protect the socioeconomic interests of employees.
(4) Despite subsection (3)(b), a closed shop agreement contemplated in
subsection (2)(b) may be concluded between a registered trade union and a
registered employers' organisation in respect of a sector and area to
become binding in every workplace in which-
(a) a ballot has been held of the employees to be covered by the
agreement; and
(b) two thirds of the employees who voted have voted in favour of the
agreement.
(5) No trade union that is party to a closed shop agreement may refuse an
employee membership or expel an employee from the trade union unless-
(a) the refusal or expulsion is in accordance with the trade union's
constitution; and
(b) the reason for the refusal or expulsion is fair, including, but
not limited to, conduct that undermines the trade union's collective
exercise of its rights.
(6) It is not unfair to dismiss an employee-
(a) for refusing to join a trade union party to a closed shop
agreement;
(b) who is refused membership of a trade union party to a closed shop
agreement if the refusal is in accordance with the provisions of
subsection (5); or
(c) who is expelled from a trade union party to a closed shop
agreement if the expulsion is in accordance with the provisions of
subsection (5).
(7) Despite subsection (6)-
(a) the employees at the time a closed shop agreement takes effect
may not be dismissed for refusing to Join a trade union party to the
agreement; and
(b) employees may not be dismissed for refusing to join a trade union
party to the agreement on grounds of conscientious objection.
(8) The employees referred to in subsection (7) may be required by the
closed shop agreement to pay an agreed agency fee, in which case the
provisions of section 25(3)(b), (c) and (d) and (4) to (7) apply.
(9) If the Labour Court decides that a dismissal is unfair because the
refusal of membership of or the expulsion from a trade union party to a
closed shop agreement was unfair, the provisions of Chapter VIII apply,
except that any order of compensation in terms of that Chapter must be
made against the trade union.
(10) A registered trade union that represents a significant interest in,
or a substantial number of, the employees covered by a closed shop
agreement may notify the parties to the agreement of its intention to
apply to become a party to the agreement and, within 30 days of the
notice, the employer must convene a meeting of the parties and the
registered trade union in order to consider the application.
(11) If the parties to a closed shop agreement do not admit the
registered trade union as a party, the trade union may refer the dispute
in writing to the Commission.
(12) The registered trade union must satisfy the Commission that a copy
of the referral has been served on all the parties to the closed shop
agreement.
(13) The Commission must attempt to resolve the dispute through
conciliation.
(14) If the dispute remains unresolved, any party to the dispute may
refer it to the Labour Court for adjudication.
(15) The representative trade union must conduct a ballot of the
employees covered by the closed shop agreement to determine whether the
agreement should be terminated if-
(a) one third of the employees covered by the agreement sign a
petition calling for the termination of the agreement; and
(b) three years have elapsed since the date on which the agreement
commenced or the last ballot was conducted in terms of this section.
(16) If a majority of the employees who voted, have voted to terminate
the closed shop agreement, the agreement will terminate.
(17) Unless a collective agreement provides otherwise, the ballot
referred to in subsections (3)(a) and (15) must be conducted in
accordance with the guidelines published by the Commission.
PART C-BARGAINING COUNCILS
27. Establishment of bargaining councils
(1) One or more registered trade unions and one or more registered
employers' organisations may establish a bargaining council for a sector
and area by-
(a) adopting a constitution that meets the requirements of section
30; and
(b) obtaining registration of the bargaining council in terms of
section 29.
(2) The State may be a party to any bargaining council established in
terms of this section if it is an employer in the sector and area in
respect of which the bargaining council is established.
(3) If the State is a party to a bargaining council in terms of
subsection (2), any reference to a registered employers' organisation
includes a reference to the State as a party.
28. Powers and functions of bargaining council The powers and functions of
a bargaining council in relation to its registered scope include the following-
(a) to conclude collective agreements;
(b) to enforce those collective agreements;
(c) to prevent and resolve labour disputes;
(d) to perform the dispute resolution functions referred to in
section 51;
(e) to establish and administer a fund to be used for resolving
disputes;
(f) to promote and establish training and education schemes;
(g) to establish and administer pension, provident, medical aid, sick
pay, holiday, unemployment and training schemes or funds or any
similar schemes or funds for the benefit of one or more of the
parties to the bargaining council or their members;
(h) to develop proposals for submission to NEDLAC or any other
appropriate forum on policy and legislation that may affect the
sector and area;
(i) to determine by collective agreement the matters which may not be
an issue in dispute for the purposes of a strike or a lock-out at the
workplace; and
(j) to confer on workplace forums additional matters for
consultation.
29. Registration of bargaining councils
(1) The parties referred to in section 27 may apply for registration of a
bargaining council by submitting to the registrar-
(a) the prescribed form that has been properly completed;
(b) a copy of its constitution; and
(c) any other information that may assist the registrar to determine
whether or not the bargaining council meets the requirements for
registration.
(2) The registrar may require further information in support of the
application.
(3) As soon as practicable after receiving the application, the registrar
must publish a notice containing the material particulars of the
application in the Government Gazette. The notice must inform the
general public that they-
(a) may object to the application on any of the grounds referred to
in subsection (4); and
(b) have 30 days from the date of the notice to serve any objection
on the registrar and a copy on the applicant.
(4) Any person who objects to the application must satisfy the registrar
that a copy of the objection has been served on the applicant and that
the objection is on any of the following grounds-
(a) the applicant has not complied with the provisions of this
section;
(b) the sector and area in respect of which the application is made
is not appropriate;
(c) the applicant is not sufficiently representative in the sector
and area in respect of which the application is made.
(5) The registrar may require further information in support of the
objection.
(6) The applicant may respond to an objection within 14 days of the
expiry of the period referred to in subsection (3)(b), and must satisfy
the registrar that a copy of that response has been served on the person
who objected.
(7) The registrar, as soon as practicable, must send the application and
any objections, responses and further information to NEDLAC to consider.
(8) NEDLAC, within 90 days of receiving the documents from the registrar,
must-
(a) consider the appropriateness of the sector and area in respect of
which the application is made;
(b) demarcate the appropriate sector and area in respect of which the
bargaining council should be registered; and
(c) report to the registrar in writing.
(9) If NEDLAC fails to agree on a demarcation as required in subsection
(8)(b), the Minister must demarcate the appropriate sector and area and
advise the registrar.
(10) In determining the appropriateness of the sector and area for the
demarcation contemplated in subsection (8)(b), NEDLAC or the Minister
must seek to give effect to the primary objects of this Act.
(11) The registrar-
(a) must consider the application and any further information
provided by the applicant;
(b) must determine whether-
(i) the applicant has complied with the provisions of this
section;
(ii) the constitution of the bargaining council complies
with section 30;
(iii) adequate provision is made in the constitution of the
bargaining council for the representation of small and
medium enterprises;
(iv) the parties to the bargaining council are sufficiently
representative of the sector and area determined by NEDLAC
or the Minister; and
(v) there is no other council registered for the sector and
area in respect of which the application is made; and
(c) if satisfied that the applicant meets the requirements for
registration, must register the bargaining council by entering the
applicant's name in the register of councils.
(12) If the registrar is not satisfied that the applicant meets the
requirements for registration, the registrar-
(a) must send the applicant a written notice of the decision and the
reasons for that decision; and
(b) in that notice, must inform the applicant that it has 30 days
from the date of the notice to meet those requirements.
(13) If, within that 30-day period, the applicant meets those
requirements, the registrar must register the applicant by entering the
applicant's name in the register of councils.
(14) If, after the 30-day period, the registrar concludes that the
applicant has failed to meet the requirements for registration, the
registrar must-
(a) refuse to register the applicant; and
(b) notify the applicant and any person that objected to the
application of that decision in writing.
(15) After registering the applicant, the registrar must-
(a) issue a certificate of registration in the applicant's name that
must specify the registered scope of the applicant; and
(b) send the registration certificate and a certified copy of the
registered constitution to the applicant.
30. Constitution of bargaining council
(1) The constitution of every bargaining council must provide for-
(a) the appointment of representatives of the parties to the
bargaining council, of whom half must be appointed by the trade
unions that are party to the bargaining council and the other half by
the employers' organisations that are party to the bargaining
council, and the appointment of alternates to the representatives;
(b) the representation of small and medium enterprises;
(c) the circumstances and manner in which representatives must vacate
their seats' and the procedure for replacing them;
(d) rules for the convening and conducting of meetings of
representatives, including the quorum required for, and the minutes
to be kept of, those meetings;
(e) the manner in which decisions are to be made; the appointment or
election of office-bearers and officials, their functions, and the
circumstances and manner in which they may be removed from office;
(g) the establishment and functioning of committees;
(h) the determination through arbitration of any dispute arising
between the parties to the bargaining council about the
interpretation or application of the bargaining council's
constitution;
(i) the procedure to be followed if a dispute arises between the
parties to the bargaining council;
(j) the procedure to be followed if a dispute arises between a
registered trade union that is a party to the bargaining council, or
its members, or both, on the one hand, and employers who belong to a
registered employers' organisation that is a party to the bargaining
council, on the other hand;
(k) the procedure for exemption from collective agreements;
(l) the banking and investment of its funds;
(m) the purposes for which its funds may be used;
(n) the delegation of its powers and functions;
(o) the admission of additional registered trade unions and
registered employers' organisations as parties to the bargaining
council, subject to the provisions of section 56;7
(p) a procedure for changing its constitution; and
(q) a procedure by which it may resolve to wind up.
(2) The requirements for the constitution of a bargaining council in
subsection (1) apply to the constitution of a bargaining council in the
public service except that-
(a) any reference to an "employers' organisation" must be read as a
reference to the State as employer; and
(b) the requirement in subsection (1)(b) concerning the
representation of small and medium enterprises does not apply.
(3) The constitution of the Public Service Co-ordinating Bargaining
Council must include a procedure for establishing a bargaining council in
a sector of the public service designated in terms of section 37(l).
(4) The constitution of a bargaining council in the public service may
include provisions for the establishment and functioning of chambers of a
bargaining council on national and regional levels.
31. Binding nature of collective agreement concluded in bargaining council
Subject to the provisions of section 32 and the constitution of the
bargaining council, a collective agreement concluded in a
bargaining council binds only the parties to the bargaining council
who are parties to the collective agreement.
32. Extension of collective agreement concluded in bargaining council
(1) A bargaining council may ask the Minister in writing to extend a
collective agreement concluded in the bargaining council to any
non-parties to the collective agreement that are within its registered
scope and are identified in the if at a meeting of the bargaining
council request, I
(a) one or more registered trade unions whose members constitute the
majority of the members of the trade unions that are party to the
bargaining council vote in favour of the extension; and
(b) one or more registered employers' organisations, whose members
employ the majority of the employees employed by the members of the
employers' organisations that are party to the bargaining council,
vote in favour of the extension.
(2) Within 60 days of receiving the request, the Minister must extend the
collective agreement, as requested, by publishing a notice in the
Government Gazette declaring that, from a specified date and for a
specified period, the collective agreement will be binding on the
non-parties specified in the notice.
(3) A collective agreement may not be extended in terms of subsection (2)
unless the Minister is satisfied that-
(a) the decision by the bargaining council to request the extension
of the collective agreement complies with the provisions of
subsection (1);
(b) the majority of employees employed within the registered scope of
the bargaining council are members of the trade unions that are party
to the bargaining council;
(c) the members of the employers' organisations that are party to the
bargaining council employ the majority of the employees employed
within the registered scope of the bargaining council;
(d) the non-parties specified in the request fall within the
bargaining council's registered scope;
(e) the collective agreement establishes or appoints an independent
body to grant exemptions to non-parties and to determine the terms of
those exemptions from the provisions of the collective agreement as
soon as possible;
(f) the collective agreement contains criteria that must be applied
by the independent body when it considers applications for
exemptions, and that those criteria are fair and promote the primary
objects of this Act; and
(g) the terms of the collective agreement do not discriminate against
non-parties.
(4) For the purpose of subsection (3)(e), a bargaining council in its
appointment of the members of the independent body must have due regard
to the nominations made by the institutions listed in the schedule
promulgated in terms of section 207(6).
(5) Despite subsection (3)(b) and (c), the Minister may extend a
collective agreement in terms of subsection (2) if(a) the parties to the
bargaining council are sufficiently representative within the registered
scope of the bargaining council; and
(b) the Minister is satisfied that the failure to extend the
agreement may undermine collective bargaining at sectoral level.
(6) (a) After a notice has been published in terms of subsection (2), the
Minister, at the request of the bargaining council, may publish a further
notice in the Government Gazette(i) extending the period specified in the
earlier notice by a further period determined by the Minister; or
(ii) if the period specified in the earlier notice has
expired, declaring a new date from which, and a further
period during which, the provisions of the earlier notice
will be effective.
(b) The provisions of subsections (3) and (5), read with the changes
required by the context, apply in respect of the publication of any
notice in terms of this subsection.
(7) The Minister, at the request of the bargaining council, must publish
a notice in the Government Gazette cancelling all or part of any notice
published in terms of subsection (2) or (6) from a date specified in the
notice.
(8) Whenever any collective agreement in respect of which a notice has
been published in terms of subsection (2) or (6) is amended, amplified or
replaced by a new collective agreement, the provisions of this section
apply to that new collective agreement.
33. Appointment and powers of designated agents of bargaining councils
(1) The Minister may at the request of a bargaining council appoint any
person as the designated agent of that bargaining council to help it
enforce any collective agreement concluded in that bargaining council.
(2) A bargaining council must provide each designated agent with a
certificate signed by the secretary of the bargaining council stating
that the agent has been appointed in terms of this Act as a designated
agent of that bargaining council.
(3) Within the registered scope of the bargaining council, a designated
agent of the bargaining council has all the powers conferred on a
commissioner by section 142, read with the changes required by the
context, except the powers conferred by section 142(l)(c) and (d). Any
reference in that section to the director for the purpose of this
section, must be read as a reference to the secretary of the bargaining
council.
(4) The bargaining council may cancel the certificate provided to a
designated agent in terms of subsection (2) and the agent then ceases to
be a designated agent of the bargaining council and must immediately
surrender the certificate to the secretary of the bargaining council.
34. Amalgamation of bargaining councils
(1) Any bargaining council may resolve to amalgamate with one or more
other bargaining councils.
(2) The amalgamating bargaining councils may apply to the registrar for
registration of the amalgamated bargaining council and the registrar must
treat the application as an application in terms of section 29.
(3) If the registrar has registered the amalgamated bargaining council,
the registrar must cancel the registration of each of the amalgamating
bargaining councils by removing their names from the register of
councils.
(4) The registration of an amalgamated bargaining council takes effect
from the date that the registrar enters its name in the register of
councils.
(5) When the registrar has registered an amalgamated bargaining council-
(a) all the assets, rights, liabilities and obligations of the
amalgamating bargaining councils devolve upon and vest in the
amalgamated bargaining council; and
(b) all the collective agreements of the amalgamating bargaining
councils, regardless of whether or not they were extended in terms of
section 32, remain in force for the duration of those collective
agreements, unless amended or terminated by the amalgamated
bargaining council.
PART D-BARGAINING COUNCILS IN THE PUBLIC SERVICE
35. Bargaining councils in public service
There will be a bargaining council for-
(a) the public service as a whole, to be known as the Public Service
Co-ordinating Bargaining Council; and
(b) any sector within the public service that may be designated in
terms of section 37.
36. Public Service Co-ordinating Bargaining Council
(1) The Public Service Co-ordinating Bargaining Council must be
established in accordance with Schedule 1.8
(2) The Public Service Co-ordinating Bargaining Council may perform all
the functions of a bargaining council in respect of those matters that-
(a) are regulated by uniform rules, norms and standards that apply
across the public service; or
(b) apply to terms and conditions of service that apply to two or
more sectors; or
(c) are assigned to the State as employer in respect of the public
service that are not assigned to the State as employer in any sector.
37. Bargaining councils in sectors in public service
(1) The Public Service Co-ordinating Bargaining Council may designate a
sector of the public service for the establishment of a bargaining
council.
(2) Despite subsection (1), the President, after consulting the Public
Service Co-ordinating Bargaining Council, may designate a sector of the
public service for the establishment of a bargaining council if the
uniform rules, norms and standards applicable to the public service are
not appropriate to regulate employment in that sector.
8. Schedule 1 deals with the procedure for the establishment of the Public
Service Co-ordinating Bargaining Council.
(3) A bargaining council for a sector designated by-
(a) the Public Service Co-ordinating Bargaining Council must be
established in terms of its constitution;
(b) the President must be established in terms of Schedule 1.
(4) (a) The President may designate a sector for the establishment of a
bargaining council in respect of employees of the State or organs of the
State but who are not employees engaged in the public service.
(b) A bargaining council must be established in respect of a sector
designated by the President in terms of paragraph (a) and the
provisions of item 3(3) to (9) of Schedule I apply.
(c) A bargaining council established in terms of paragraph (b) will
be deemed to be a bargaining council in the public service for the
purposes of this Act.
(5) A bargaining council established in terms of subsection (3) or (4)
has exclusive jurisdiction in respect of matters that are specific to
that sector and in respect of which the State as employer in that sector
has the requisite authority to conclude collective agreements and resolve
labour disputes.
38. Dispute resolution committee
(1) The Minister for the Public Service and Administration, after
consulting NEDLAC and the Public Service Co-ordinating Bargaining
Council, must establish a dispute resolution committee under the auspices
of the Commission, and appoint to that committee persons who have
knowledge and experience of labour law and labour relations in the public
service.
(2) The functions of the dispute resolution committee are to resolve any
jurisdictional dispute between the Public Service Co-ordinating
Bargaining Council and any bargaining council established in terms of
section 37(3).
(3) If there is a jurisdictional dispute between the Public Service
Co-ordinating Bargaining Council and a bargaining council established in
terms of section 37(3), any party to the dispute may refer the dispute in
writing to the dispute resolution committee.
(4) The party who refers the dispute to the dispute resolution committee
must satisfy it that a copy of the referral has been served on the Public
Service Co-ordinating Bargaining Council.
(5) The dispute resolution committee must attempt to resolve the dispute
as soon as possible through conciliation.
(6) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration.
(7) The Minister for the Public Service and Administration must determine
the remuneration and allowances and any other terms and conditions of
appointment of committee members. The expenditure incurred for that
purpose will be defrayed from public funds.
PART E-STATUTORY COUNCILS
39. Application to establish statutory council
(1) For the purposes of this Part-
(a) "representative trade union" means a registered trade union, or
two or more registered trade unions acting jointly, whose members
constitute at least 30 per cent of the employees in a sector and
area; and
(b) "representative employers' organisation" means a registered
employers' organisation, or two or more registered employers'
organisations acting jointly, whose members employ at least 30 per
cent of the employees in a sector and area.
(2) A representative trade union or representative employers'
organisation may apply to the registrar in the prescribed form for the
establishment of a statutory council in a sector and area in respect of
which no council is registered.
(3) The registrar must apply the provisions of section 29(2) to (10)9 to
the application-
(a) read with the changes required by the context; and
(b) subject to the deletion of the word "sufficiently" in section
29(4)(c).
(4) The registrar must-
(a) consider the application and any further information provided by
the applicant; and
(b) determine whether-
(i) the applicant has complied with section 29 and of this
section;
9. The provisions of section 29 deal with the procedure for the
registration of a bargaining council.
(ii) the applicant is representative of the sector and area
determined by NEDLAC or the Minister; and
(iii) there is no other council registered for the sector
and area in respect of which the application is made.
(5) If the registrar is not satisfied that the applicant meets the
requirements for establishment, the registrar must-
(a) send the applicant a written notice of the decision and the
reasons for that decision; and
(b) in that notice, inform the applicant that it has 30 days from the
date of the notice to meet those requirements.
(6) If, after the 30-day period, the registrar concludes that the
applicant has failed to meet the requirements for establishment, the
registrar must-
(a) refuse to register the applicant; and
(b) notify the applicant and any person that objected to the
application in writing of that decision.
40. Establishment and registration of statutory council
(1) If the registrar is satisfied that the applicant meets the
requirements for the establishment of a statutory council, the registrar,
by notice in the Government Gazette, must establish the statutory council
for a sector and area.
(2) The notice must invite-
(a) registered trade unions and registered employers' organisations
in that sector and area to attend a meeting; and
(b) any interested parties in that sector and area to nominate
representatives for the statutory council.
(3) The Commission must appoint a commissioner to chair the meeting and
facilitate the conclusion of an agreement on-
(a) the registered trade unions and registered employers'
organisations to be parties to the statutory council; and
(b) a constitution that meets the requirements of section 30, read
with the changes required by the context.
(4) If an agreement is concluded, the Minister may advise the registrar
to register the statutory council in accordance with the agreement if the
Minister is satisfied that-
(a) every registered trade union and registered employers'
organisation that ought to have been included has been included in
the agreement; and
(b) the constitution meets the requirements of section 30, read with
the changes required by the context.
(5) In considering the requirements in subsection (4)(a), the Minister
must take into account-
(a) the primary objects of this Act;
(b) the diversity of registered trade unions and registered
employers' organisations in the sector and area; and
(c) the principle of proportional representation.
(6) If the Minister is not satisfied in terms of subsection (4), the
Minister must advise the Commission of the decision and the reasons for
that decision and direct the Commission to reconvene the meeting in terms
of subsection (3) in order to facilitate the conclusion of a new
agreement.
(7) If advised by the Minister in terms of subsection (4), the registrar
must register the statutory council by entering its name in the register
of councils.
41. Establishment and registration of statutory council in absence of
agreement
(1) If no agreement is concluded in terms of section 40(3), the
commissioner must convene separate meetings of the registered trade
unions and employers' organisations to facilitate the conclusion of
agreements on-
(a) the registered trade unions to be parties to the statutory
council;
(b) the registered employers' organisations to be parties to the
statutory council; and
(c) the allocation to each party of the number of representatives of
the statutory council.
(2) If an agreement is concluded on-
(a) the registered trade unions to be parties to the statutory
council, the Minister must admit as parties to the statutory council
the agreed registered trade unions;
(b) the registered employers' organisations to be parties to the
statutory council, the Minister must admit as parties to the
statutory council the agreed registered employers' organisations.
(3) If no agreement is concluded on-
(a) the registered trade unions to be parties to the statutory
council, the Minister must admit as parties to the statutory council-
(i) the applicant, if it is a registered trade union; and
(ii) any other registered trade union in the sector and
area that ought to be admitted, taking into account the
factors referred to in section 40(5);
(b) the registered employers' organisations to be parties to the
statutory council, the Minister must admit as parties to the
statutory council-
(i) the applicant, if it is a registered employers'
organisation; and
(ii) any other registered employers' organisation in the
sector and area that ought to be admitted, taking into
account the factors referred to in section 40(5).
(4) (a) The Minister must determine an even number of representatives of
the statutory council, taking into account the factors referred to in
section 40(5).
(b) One half of the representatives must be allocated to the
registered trade unions that are parties to the statutory council and
the other half of the representatives must be allocated to the
registered employers' organisations that are parties to the statutory
council.
(5) If no agreement is concluded in respect of the allocation of the
number of representatives of the statutory council-
(a) between the registered trade unions that are parties to the
council, the Minister must determine this allocation on the basis of
proportional representation;
(b) between the registered employers' organisations that are parties
to the council, the Minister must determine this allocation on the
basis of proportional representation and taking into account the
interests of small and medium enterprises.
(6) If the applicant is a trade union and there is no registered
employers' organisation that is a party to the statutory council, the
Minister, after consulting the Commission, must appoint suitable persons
as representatives and alternates, taking into account the nominations
received from employers and employers' organisations in terms of section
40(2).
(7) If the applicant is an employers' organisation and there is no
registered trade union that is a party to the statutory council, the
Minister, after consulting the Commission, must appoint suitable persons
as representatives and alternates, taking into account the nominations
received from employees and trade unions in terms of section 40(2).
(8) The Minister must notify the registrar of agreements concluded and
decisions made in terms of this section, and the registrar must-
(a) adapt the model constitution referred to in section 207(3) to the
extent necessary to give effect to the agreements and decisions made
in terms of this section;
(b) register the statutory council by entering its name in the
register of councils; and
(c) certify the constitution as the constitution of the statutory
council.
42. Certificate of registration of statutory council
After registering a statutory council, the registrar must
(a) issue a certificate of registration that must specify the
registered scope of the statutory council; and
(b) send the certificate and a certified copy of the registered
constitution to all the parties to the statutory council and any
representatives appointed to the statutory council.
43. Powers and functions of statutory councils
(1) The powers and functions of a statutory council are-
(a) to perform the dispute resolution functions referred to in
section 51;
(b) to promote and establish training and education schemes; and
(c) to establish and administer pension, provident, medical aid, sick
pay, holiday, unemployment schemes or funds or any similar schemes or
funds for the benefit of one or more of the parties to the statutory
council or their members; and
(d) to conclude collective agreements to give effect to the matters
mentioned in paragraphs (a), (b), and (c).
(2) A statutory council, in terms of its constitution, may agree to the
inclusion of any of the other functions of a bargaining council referred
to in section 28.
(3) If a statutory council concludes a collective agreement in terms of
subsection (1)(d), the provisions of sections 31 and 32 apply, read with
the changes required by the context.
44. Ministerial determinations
(1) A statutory council that is not sufficiently representative within
its registered scope may submit a collective agreement on any of the
matters mentioned in section 43(1)(a), (b) or (c) to the Minister. The
Minister must treat the collective agreement as a recommendation made by
the wage board in terms of the Wage Act.
(2) The Minister may promulgate the statutory council's recommendations
as a determination under the Wage Act if satisfied that the statutory
council has complied with sections 7 and 9 of the Wage Act. For that
purpose the provisions of sections 7 and 9 to 12 of the Wage Act, read
with the changes required by the context, apply to the statutory council
as if it was the wage board.
(3) The determination must provide for
(a) exemptions to be considered by an independent body appointed by
the Minister; and
(b) criteria for exemption that are fair and promote the primary
objects of this Act.
(4) The Minister may in a determination impose a levy on all employers
and employees in the registered scope of the statutory council to defray
the operational costs of the statutory council.
(5) A statutory council may submit a proposal to the Minister to amend or
extend the period of any determination and the Minister may make the
amendment to the determination or extend the period by notice in the
Government Gazette.
45. Disputes about determinations
(1) If there is a dispute about the interpretation or application of a
determination promulgated in terms of section 44(2), any party to the
dispute may refer the dispute in writing to the Commission.
(2) The party who refers the dispute to the Commission must satisfy it
that a copy of the referral has been served on all the other parties to
the dispute.
(3) The Commission must attempt to resolve the dispute through
conciliation.
(4) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration.
46. Withdrawal of party from statutory council
(1) If a registered trade union or registered employers' organisation
that is a party to a statutory council withdraws from that statutory
council, the Minister may request the Commission to convene a meeting of
the remaining registered trade unions or registered employers'
organisations in the sector and area, in order to facilitate the
conclusion of an agreement on the registered trade unions or the
registered employers' organisations to be parties and the allocation of
representatives to the statutory council.
(2) If no agreement is concluded, the provisions of section 41 apply,
read with the changes required by the context.
47. Appointment of new representative of statutory council
(1) If a representative appointed in terms of section 41(6) or (7) for
any reason no longer holds office, the Minister must publish a notice in
the Government Gazette inviting interested parties within the registered
scope of the statutory council to nominate a new representative.
(2) The provisions of section 41(6) or (7) apply, read with the changes
required by the context, in respect of the appointment of a new
representative.
48. Change of status of statutory council
(1) A statutory council may resolve to apply to register as a bargaining
council.
(2) The registrar must deal with the application as if it were an
application in terms of section 29,10 except for section 29(4)(b), (7) to
(10) and (15).
(3) If the registrar has registered the statutory council as a bargaining
council, the registrar must alter the register of councils and its
certificate to reflect its change of status.
(4) Any determination in force at the time of the registration of the
bargaining council or any agreement extended by the Minister in terms of
section 43(3)-
(a) continues to have force for the period of its operation unless
superseded by a collective agreement; and
(b) may be extended for a further period.
(5) The bargaining council must perform any function or duty of the
statutory council in terms of a determination during the period in which
the determination is still in effect.
(6) If any dispute in terms of a determination is unresolved at the time
the determination ceases to have effect, the dispute must be dealt with
as if the determination was still in effect.
PART F-GENERAL PROVISIONS CONCERNING COUNCILS
49. Representativeness of council
(1) When considering the representativeness of the parties to a council,
or parties seeking registration of a council, the registrar, having
regard to the nature of the sector and the situation of the area in
respect of which registration is sought, may regard the parties to a
council as representative in respect of the whole area, even if a trade
union or employers' organisation that is a party to the council has no
members in part of that area.
(2) The registrar-
(a) after consultation with a council, must fix a date for an annual
review of the representativeness of the council;
(b) must conduct that review once every year by that date; and
(c) if satisfied that the council remains representative, must issue
a certificate of representativeness that must include the following
particulars-
(i) the number of employees employed within the registered
scope of the council;
(ii) the number of those employees who are members of the
trade unions that are party to the council; and
(iii) the number of employees employed within the
registered scope of the council by the members of the
employers' organisations that are party to the council.
(3) A certificate of representativeness issued in terms of subsection (2)
is sufficient proof of the representativeness of the council for the
following year.
50. Effect of registration of council
(1) A certificate of registration is sufficient proof that a registered
council is a body corporate.
(2) A council has all the powers, functions and duties that are conferred
or imposed on it by or in terms of this Act, and it has jurisdiction to
exercise and perform those powers, functions and duties within its
registered scope.
(3) A party to a council is not liable for any of the obligations or
liabilities of the council by virtue of it being a party to the council.
(4) A party to, or office-bearer or official of, a council is not
personally liable for any loss suffered by any person as a result of an
act performed or omitted in good faith by a party to, or office-bearer or
official of, a council while performing their functions for the council.
(5) Service of any document directed to a council at the address most
recently provided to the registrar will be for all purposes service of
that document on that council.
51. Dispute resolution functions of council
(1) In this section, dispute means any dispute about a matter of mutual
interest between-
(a) on the one side(i) one or more trade unions; one or more
employees; or one or more trade unions and one or more employees; and
(b) on the other side-
(i) one or more employers' organisations;
(ii) one or more employers; or
(iii) one or more employers' organisations and one or more
employers.
(2) (a) The parties to a council must attempt to resolve any dispute
between themselves in accordance with the constitution of the council.
(b) Any party to a dispute who is not a party to a council but who
falls within the registered scope of the council may refer the
dispute to the council in writing.
(c) The party who refers the dispute to the council must satisfy it
that a copy of the referral has been served on all the other parties
to the dispute.
(3) If a dispute is referred to a council in terms of this Act" and any
party to that dispute is not a party to that council, the council must
attempt to resolve the dispute (a) through conciliation; and
(b) if the dispute remains unresolved after conciliation, the council
must arbitrate the dispute if-
(i) this Act requires arbitration and any party to the
dispute has requested that it be resolved through
arbitration; or
(ii) all the parties to the dispute consent to arbitration
under the auspices of the council.
(4) If one or more of the parties to a dispute that has been referred to
the council do not fall within the registered scope of that council, it
must refer the dispute to the Commission.
(5) The date on which the referral in terms of subsection (4) was
received by a council is, for all purposes, the date on which the council
referred the dispute to the Commission.
52. Accreditation of council or appointment of accredited agency Every
council must-
(a) apply to the Commission for accreditation to perform any of the
functions referred to in section 51; or
(b) appoint an accredited agency to perform any of the functions
referred to in section 51.
53. Accounting records and audits
(1) Every council must, to the standards of generally accepted accounting
practice, principles and procedures (a) keep books and records of its
income, expenditure, assets and liabilities; and
(b) within six months after the end of each financial year, prepare
financial statements, including at least-
(i) a statement of income and expenditure for the previous
financial year; and
(ii) a balance sheet showing its assets, liabilities and
financial position as at the end of the previous financial
year.
(2) Each council must arrange for an annual audit of its books and
records of account and its financial statements by an auditor who must-
(a) conduct the audit in accordance with generally accepted auditing
standards; and
(b) report in writing to the council and in that report express an
opinion as to whether or not the council has complied with those
provisions of its constitution relating to financial matters.
(3) Every council must-
(a) make the financial statements and the auditor's report available
to the parties to the council or their representatives for
inspection; and
(b) submit those statements and the auditor's report to a meeting of
the council as provided for in its constitution.
(4) Every council must preserve each of its books of account, supporting
vouchers, income and expenditure statements, balance sheets, and
auditor's reports, in an original or reproduced form, for a period of
three years from the end of the financial year to which they relate.
(5) The money of a bargaining council or of any fund established by a
bargaining council that is surplus to its requirements or the expenses of
the fund may be invested only in-
(a) savings accounts, permanent shares or fixed deposits in any
registered bank or financial institution;
(b) internal registered stock as contemplated in section 21 of the
Exchequer Act, 1975 (Act No. 66 of 1975);
(c) a registered unit trust; or
(d) any other manner approved by the registrar.
54. Duty to keep records and provide information to registrar
(1) In addition to the records required by section 53(4), every council
must keep minutes of its meetings, in an original or reproduced form, for
a period of three years from the end of the financial year to which they
relate.
(2) Every council must provide to the registrar-
(a) within 30 days of receipt of its auditor's report, a certified
copy of that report and of the financial statements;
(b) within 30 days of receipt of a written request by the registrar,
an explanation of anything relating to the auditor's report or the
financial statements;
(c) upon registration, an address within the Republic at which it
will accept service of any document that is directed to it;
(d) within 30 days of any appointment or election of its national
office bearers, the names and work addresses of those office-bearers,
even if their appointment or election did not result in any changes
to its office-bearers; and
(e) 30 days before a new address for service of documents will take
effect, notice of that change of address.
(3) Every council must provide to the Commission-
(a) certified copies of every collective agreement concluded by the
parties to the council, within 30 days of the signing of that
collective agreement; and
(b) the details of the admission and resignation of parties to the
council, within 30 days of their admission or resignation.
55. Delegation of functions to committee of council
(1) A council may delegate any of its functions to a committee on any
conditions, but any decision of a committee may be amended or set aside
by the council.
(2) A committee contemplated by subsection (1) must consist of equal
numbers of representatives of employees and employers.
(3) The council, by delegating any function, is not divested of any of
its powers nor is it relieved of any function or duty that it may have
delegated.
56. Admission of parties to council 12
(1) Any registered trade union or registered employers' organisation may
apply in writing to a council for admission as a party to that council.
(2) The application must be accompanied by a certified copy of the
applicant's registered constitution and certificate of registration and
must include-
(a) details of the applicant's membership within the registered scope
of the council and, if the applicant is a registered employers'
organisation, the number of employees that its members employ within
that registered scope;
(b) the reasons why the applicant ought to be admitted as a party to
the council; and
(c) any other information on which the applicant relies in support of
the application.
(3) A council, within 90 days of receiving an application for admission,
must decide whether to grant or refuse an applicant admission, and must
advise the applicant of its decision, failing which the council is deemed
to have refused the applicant admission.
(4) If the council refuses to admit an applicant it must within 30 days
of the date of the refusal, advise the applicant in writing of its
decision and the reasons for that decision.
12. See flow diagram No. 5 in Schedule 4.
(5) The applicant may apply to the Labour Court for an order admitting it
as a party to the council.
(6) The Labour Court may admit the applicant as a party to the council,
adapt the constitution of the council and make any other appropriate
order.
57. Changing constitution or name of council
(1) Any council may resolve to change or replace its constitution.
(2) The council must send the registrar a copy of the resolution and a
certificate signed by its secretary stating that the resolution complies
with its constitution.
(3) The registrar must-
(a) register the changed or new constitution of a council if it meets
the requirements of section 30 or if it is a statutory council
established in terms of section 41 if it meets the requirements of
the model constitution referred to in section 207(3); and
(b) send the council a copy of the resolution endorsed by the
registrar, certifying that the change or replacement has been
registered.
(4) The changed or new constitution takes effect from the date of the
registrar's certification.
(5) Any council may resolve to change its name.
(6) The council must send the registrar a copy of the resolution and the
original of its current certificate of registration.
(7) The registrar must-
(a) enter the new name in the register of councils, and issue a
certificate of registration in the new name of the council;
(b) remove the old name from that register and cancel the earlier
certificate of registration; and
(c) send the new certificate to the council.
(8) The new name takes effect from the date that the registrar enters it
in the register of councils.
58. Variation of registered scope of council
(1) If the registrar is satisfied that the sector and area within which a
council is representative does not coincide with the registered scope of
the council, the registrar, acting independently or in response to an
application from the council or NEDLAC, may vary the registered scope of
the council.
(2) The provisions of section 29 apply, read with the changes required by
the context, to a variation in terms of this section.
59. Winding-up of council
(1) The Labour Court may order a council to be wound up if-
(a) the council has resolved to wind up its affairs and has applied
to the Court for an order giving effect to that resolution; or
(b) the registrar of labour relations or any party to the council has
applied to the Court and the Court is satisfied that the council is
unable to continue to function for any reason that cannot be
remedied.
(2) If there are any persons not represented before the Labour Court
whose interests may be affected by an order in terms of subsection (1),
the Court must-
(a) consider those interests before deciding whether or not to grant
the order; and
(b) if it grants the order, include provisions in the order disposing
of each of those interests.
(3) If it makes an order in terms of subsection (1), the Labour Court
may appoint a suitable person as liquidator, on appropriate
conditions.
(4) (a) The registrar of the Labour Court must determine the liquidator's
fees.
(b) The Labour Court, in chambers, may review the determination of
the registrar of the Labour Court.
(c) The liquidator's fees are a first charge against the assets of
the council.
(5) If, after all the liabilities of the council have been discharged,
any assets remain that cannot be disposed of in accordance with the
constitution of that council, the liquidator must realise those assets
and pay the proceeds to the Commission for its own use.
60. Winding-up of council by reason of insolvency
Any person who seeks to wind-up a council by reason of insolvency
must comply with the Insolvency Act, 1936 (Act No. 24 of 1936),
and, for the purposes of this section, any reference to the court
in that Act must be interpreted as referring to the Labour Court.
61. Cancellation of registration of council
(1) The registrar of the Labour Court must notify the registrar of labour
relations if the Court has ordered a council to be wound up.
(2) When the registrar receives a notice from the Labour Court in terms
of subsection (1), the registrar must cancel the registration of the
council by removing its name from the register of councils.
(3) The registrar may notify a council and every party to the council
that the registrar is considering cancelling the council's registration,
if the registrar believes that-
(a) the council has ceased to perform its functions in terms of this
Act for a period longer than 90 days before the date of the notice;
or
(b) the council has ceased to be representative in terms of the
provisions of the relevant Part, for a period longer than 90 days
prior to the date of the notice.
(4) In a notice in terms of subsection (3), the registrar must state the
reasons for the notice and inform the council and every party to the
council that they have 60 days to show cause why the council's
registration should not be cancelled.
(5) After the expiry of the 60-day period, the registrar, unless cause
has been shown why the council's registration should not be cancelled,
must notify the council and every party to the council that the
registration will be cancelled unless an appeal to the Labour Court is
noted and the Court reverses the decision.
(6) The cancellation takes effect-
(a) if no appeal to the Labour Court is noted within the time
contemplated in section III (3), on the expiry of that period; or
(b) if the council or any party has appealed and the Labour Court has
confirmed the decision of the registrar, on the date of the Labour
Court's decision.
(7) If either event contemplated in subsection (6) occurs, the registrar
must cancel the council' s registration by removing the name of the
council from the register of councils.
(8) Any collective agreement concluded by parties to a council whose
registration has been cancelled, whether or not the collective agreement
has been extended to non-parties by the Minister in terms of section 32,
lapses 60 days after the council's registration has been cancelled.
(9) Despite subsection (8), the provisions of a collective agreement that
regulates terms and conditions of employment remain in force for one year
after the date that the council' s registration was cancelled, or until
the expiry of the agreement, if earlier.
(10) Any party to a dispute about the interpretation or application of a
collective agreement that regulates terms and conditions of employment
referred to in subsection (8) may refer the dispute in writing to the
Commission.
(11) The party who refers the dispute to the Commission must satisfy it
that a copy of the referral has been served on all the other parties to
the dispute.
(12) The Commission must attempt to resolve the dispute through
conciliation.
(13) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration.
62. Disputes about demarcation between sectors and areas
(1) Any registered trade union, employer, registered employers'
organisation or council that has a direct or indirect interest in the
application contemplated in this section may apply to the Commission in
the prescribed form and manner for a determination as to-
(a) whether any employee, employer, class of employees or class of
employers, is or was employed or engaged in a sector or area;
(b) whether any provision in any arbitration award, collective
agreement or wage determination made in terms of the Wage Act is or
was binding on any employee, employer, class of employees or class of
employers.
(2) If two or more councils settle a dispute about a question
contemplated in subsection (1)(a) or (b), the councils must inform the
Minister of the provisions of their agreement and the Minister may
publish a notice in the Government Gazette stating the particulars of the
agreement.
(3) In any proceedings in terms of this Act before the Labour Court, if a
question contemplated in subsection (1)(a) or (b) is raised, the Labour
Court must adjourn those proceedings and refer the question to the
Commission for determination if the Court is satisfied that-
(a) the question raised-
(i) has not previously been determined by arbitration in
terms of this section; and
(ii) is not the subject of an agreement in terms of
subsection (2); and
(b) the determination of the question raised is necessary for the
purposes of the proceedings.
(4) When the Commission receives an application in terms of subsection
(1) or a referral in terms of subsection (3), it must appoint a
commissioner to hear the application or determine the question, and the
provisions of section 138 apply, read with the changes required by the
context.
(5) In any proceedings in terms of this Act before a commissioner, if a
question contemplated in subsection (1)(a) or (b) is raised, the
commissioner must adjourn the proceedings and consult the director, if
the commissioner is satisfied that-
(a) the question raised-
(i) has not previously been determined by arbitration in
terms of this section; and
(ii) is not the subject of an agreement in terms of
subsection (2); and
(b) the determination of the question raised is necessary for the
purposes of the proceedings.
(6) The director must either order the commissioner concerned to
determine the question or appoint another commissioner to do so, and the
provisions of section 138 apply, read with the changes required by the
context.
(7) If the Commission believes that the question is of substantial
importance, the Commission must publish a notice in the Government
Gazette stating the particulars of the application or referral and
stating the period within which written representations may be made and
the address to which they must be directed.
(8) If a notice contemplated in subsection (7) has been published, the
commissioner may not commence the arbitration until the period stated in
the notice has expired.
(9) Before making an award, the commissioner must consider any written
representations that are made, and must consult NEDLAC.
(10) The commissioner must send the award, together with brief reasons,
to the Labour Court and to the Commission.
(11) If the Commission believes that the nature of the award is
substantially important, it may publish notice of the award in the
Government Gazette.
(12) The registrar must amend the certificate of registration of a
council in so far as is necessary in light of the award.
63. Disputes about Parts A and C to F
(1) Any party to a dispute about the interpretation or application of
Parts A and C to F of this Chapter, may refer the dispute in writing to
the Commission unless-
(a) the dispute did not arise in the course of arbitration
proceedings or proceedings in the Labour Court; or
(b) the dispute is otherwise to be dealt with in terms of Parts A and
C to F.
(2) The party who refers the dispute to the Commission must satisfy it
that a copy of the referral has been served on all the other parties to
the dispute.
(3) The Commission must attempt to resolve the dispute through
conciliation.
(4) If the dispute remains unresolved, any party to the dispute may refer
it to the Labour Court for adjudication.
CHAPTER IV
STRIKES AND LOCK-OUTS
64. Right to strike and recourse to lock-out
(1) Every employee has the right to strike and every employer has
recourse to lock-out if-
(a) the issue in dispute has been referred to a council or to the
Commission as required by this Act, and-
(i) a certificate stating that the dispute remains
unresolved has been issued; or
(ii) a period of 30 days, or any extension of that period
agreed to between the parties to the dispute, has elapsed
since the referral was received by the council or the
Commission; and after that-
(b) in the case of a proposed strike, at least 48 hours' notice of
the commencement of the strike, in writing, has been given to the
employer, unless-
(i) the issue in dispute relates to a collective agreement
to be concluded in a council, in which case, notice must
have been given to that council; or
(ii) the employer is a member of an employers' organisation
that is a party to the dispute, in which case, notice must
have been given to that employers' organisation; or
(c) in the case of a proposed lock-out, at least 48 hours' notice of
the commencement of the lock-out, in writing, has been given to any
trade union that is a party to the dispute, or, if there is no such
trade union, to the employees, unless the issue in dispute relates to
a collective agreement to be concluded in a council, in which case,
notice must have been given to that council; or
(d) the case of a proposed strike or lock-out where the State is the
employer, at least seven days' notice of the commencement of the
strike or lock-out has been given to the parties contemplated in
paragraphs (b) and (c).
(2) If the issue in dispute concerns a refusal to bargain, an
advisory award must have been made in terms of section
135(3)(c) before notice is given in terms of subsection
(1)(b) or (c). A refusal to bargain includes-
(a) a refusal-
(i) to recognise a trade union as a collective bargaining
agent; or
(ii) to agree to establish a bargaining council;
(b) a withdrawal of recognition of a collective bargaining agent; and
(c) a resignation of a party from a bargaining council;
(d) a dispute about-
(i) appropriate bargaining units;
(ii) appropriate bargaining levels; or
(iii) bargaining subjects.
(3) The requirements of subsection (1) do not apply to a strike or a
lock-out if-
(a) the parties to the dispute are members of a council, and the
dispute has been dealt with by that council in accordance with its
constitution;
(b) the strike or lock-out conforms with the procedures in a
collective agreement;
(c) the employees strike in response to a lock-out by their employer
that does not comply with the provisions of this Chapter;
(d) the employer locks out its employees in response to their taking
part in a strike that does not conform with the provisions of this
Chapter; or
(e) the employer fails to comply with the requirements of subsections
(4) and (5).
(4) Any employee who or any trade union that refers a dispute about a
unilateral change to terms and conditions of employment to a council or
the Commission in terms of subsection (1)(a) may, in the referral, and
for the period referred to in subsection (1)(a)-
(a) require the employer not to implement unilaterally the change to
terms and conditions of employment; or
(b) if the employer has already implemented the change unilaterally,
require the employer to restore the terms and conditions of
employment that applied before the change.
(5) The employer must comply with a requirement in terms of subsection
(4) within 48 hours of service of the referral on the employer.
65. Limitations on right to strike or recourse to lock-out
(1) No person may take part in a strike or a lock-out or in any conduct
in contemplation or furtherance of a strike or a lock-out if-
(a) that person is bound by a collective agreement that prohibits a
strike or lock-out in respect of the issue in dispute;
(b) that person is bound by an agreement that requires the issue in
dispute to be referred to arbitration;
(c) the issue in dispute is one that a party has the right to refer
to arbitration or to the Labour Court in terms of this Act;
(d) that person is engaged in-
(i) an essential service; or
(ii) a maintenance service. 13
(2) (a) Despite section 65(l)(c), a person may take part in a strike or a
lock-out or in any conduct in contemplation or in furtherance of a strike
or lock-out if the issue in dispute is about any matter dealt with in
sections 12 to 15. 14
(b) If the registered trade union has given notice of the proposed
strike in terms of section 64(l) in respect of an issue in dispute
referred to in paragraph (a), it may not exercise the right to refer
the dispute to arbitration in terms of section 21 for a period of 12
months from the date of the notice.
(3) Subject to a collective agreement, no person may take part in a
strike or a lock-out or in any conduct in contemplation or furtherance of
a strike or lock-out-
13. Essential services, agreed minimum services and maintenance services are
regulated in sections 71 to 75.
14. These sections deal with organisational rights.
(a) if that person is bound by-
(i) any arbitration award or collective agreement that
regulates the issue in dispute; or
(ii) any determination made in terms of section 44 by the
Minister that regulates the issue in dispute; or
(b) any determination made in terms of the Wage Act and that
regulates the issue in dispute, during the first year of that
determination.
66. Secondary strikes
(1) In this section "secondary strike" means a strike, or conduct in
contemplation or furtherance of a strike, that is in support of a strike
by other employees against their employer but does not include a strike
in pursuit of a demand and referred to a council if the striking
employees, employed within the registered scope of that council, have a
material interest in that demand.
(2) No person may take part in a secondary strike unless-
(a) the strike that is to be supported complies with the provisions
of sections 64 and 65;
(b) the employer of the employees taking part in the secondary strike
or, where appropriate, the employers' organisation of which that
employer is a member, has received written notice of the proposed
secondary strike at least seven days prior to its commencement; and
(c) the nature and extent of the secondary strike is reasonable in
relation to the possible direct or indirect effect that the secondary
strike may have on the business of the primary employer.
(3) Subject to section 68(2) and (3), a secondary employer may apply to
the Labour Court for an interdict to prohibit or limit a secondary strike
that contravenes subsection (2).
(4) Any person who is a party to proceedings in terms of subsection (3),
or the Labour Court, may request the Commission to conduct an urgent
investigation to assist the Court to determine whether the requirements
of subsection (2)(c) have been met.
(5) On receipt of a request made in terms of subsection (4), the
Commission must appoint a suitably qualified person to conduct the
investigation, and then submit, as soon as possible, a report to the
Labour Court.
(6) The Labour Court must take account of the Commission's report in
terms of subsection (5) before making an order.
67. Strike or lock-out in compliance with this Act
(1) In this Chapter, "protected strike" means a strike that complies with
the provisions of this Chapter and "protected lock-out" means a lock-out
that complies with the provisions of this Chapter.
(2) A person does not commit a defect or a breach of contract by taking
part in-
(a) a protected strike or a protected lock-out; or
(b) any conduct in contemplation or in furtherance of a protected
strike or a protected lock-out.
(3) Despite subsection (2), an employer is not obliged to remunerate an
employee for services that the employee does not render during a
protected strike or a protected lock-out, however-
(a) if the employee's remuneration includes payment in kind in
respect of accommodation, the provision of food and other basic
amenities of life, the employer, at the request of the employee, must
not discontinue payment in kind during the strike or lock-out; and
(b) after the end of the strike or lock-out, the employer may recover
the monetary value of the payment in kind made at the request of the
employee during the strike or lock-out from the employee by way of
civil proceedings instituted in the Labour Court.
(4) An employer may not dismiss an employee for participating in a
protected strike or for any conduct in contemplation or in furtherance of
a protected strike.
(5) Subsection (4) does not preclude an employer from fairly dismissing
an employee in accordance with the provisions of Chapter VIII for a
reason related to the employee's conduct during the strike, or for a
reason based on the employer's operational requirements.
(6) Civil legal proceedings may not be instituted against any person for-
(a) participating in a protected strike or a protected lock-out; or
(b) any conduct in contemplation or in furtherance of a protected
strike or a protected lock-out.
(7) The failure by a registered trade union or a registered employers'
organisation to comply with a provision in its constitution requiring it
to conduct a ballot of those of its members in respect of whom it intends
to call a strike or lock-out may not give rise to, or constitute a ground
for, any litigation that will affect the legality of, and the protection
conferred by this section on, the strike or lock-out.
(8) The provisions of subsections (2) and (6) do not apply to any act in
contemplation or in furtherance of a strike or a lock-out, if that act is
an offence.
(9) Any act in contemplation or in furtherance of a protected strike or a
protected lock-out that is a contravention of the Basic Conditions of
Employment Act or the Wage Act does not constitute an offence.
68. Strike or lock-out not in compliance with this Act
(1) In the case of any strike or lock-out, or any conduct in
contemplation or in furtherance of a strike or lock-out, that does not
comply with the provisions of this Chapter, the Labour Court has
exclusive jurisdiction-
(a) to grant an interdict or order to restrain-15
(i) any person from participating in a strike or any
conduct in contemplation or in furtherance of a strike; or
(ii) any person from participating in a lock-out or any
conduct in contemplation or in furtherance of a lock-out;
(b) to order the payment of just and equitable compensation for any
loss attributable to the strike or lock-out, having regard to-
(i) whether -
(aa) attempts were made to comply with the provisions of this
Chapter and the extent of those attempts;
(bb) the strike or lock-out was premeditated;
(cc) the strike or lock-out was in response to unjustified
conduct by another party to the dispute; and
(dd) there was compliance with an order granted in terms of
paragraph (a);
(ii) the interests of orderly collective bargaining;
(iii) the duration of the strike or lock-out; and
(iv) the financial position of the employer, trade union or
employees respectively.
(2) The Labour Court may not grant any order in terms of subsection
(1)(a) unless 48 hours' notice of the application has been given to the
respondent: However, the Court may permit a shorter period of notice if-
(a) the applicant has given written notice to the respondent of the
applicant's intention to apply for the granting of an order;
(b) the respondent has been given a reasonable opportunity to be
heard before a decision concerning that application is taken; and
(c) the applicant has shown good cause why a period shorter than 48
hours should be permitted.
(3) Despite subsection (2), if written notice of the commencement of the
proposed strike or lock-out was given to the applicant at least 10 days
before the commencement of the proposed strike or lock-out, the applicant
must give at least five days' notice to the respondent of an application
for an order in terms of subsection (1)(a).
(4) Subsections (2) and (3) do not apply to an employer or an employee
engaged in an essential service or a maintenance service.
(5) Participation in a strike that does not comply with the provisions of
this Chapter, or conduct in contemplation or in furtherance of that
strike, may constitute a fair reason for dismissal. In determining
whether or not the dismissal is fair, the Code of Good Practice:
Dismissal in Schedule 8 must be taken into account.
69. Picketing 16
(1) A registered trade union may authorise a picket by its members and
supporters for the purposes of peacefully demonstrating-
(a) in support of any protected strike; or
16. See flow diagram No. 7 in Schedule 4.
(b) in opposition to any lockout.
(2) Despite any law regulating the right of assembly, a picket authorised
terms of I subsection (1), may be-
(a) in any place to which the public has access but outside the
premises of an employer; or
(b) with the permission of the employer, inside the employer's
premises.
(3) The permission referred to in subsection (2)(b) may not be
unreasonably withheld.
(4) If requested to do so by the registered trade union or the employer,
the Commission must attempt to secure an agreement between the parties to
the dispute on rules that should apply to any picket in relation to that
strike or lock-out.
(5) If there is no agreement, the Commission must establish picketing
rules, and in doing so must take account of-
(a) the particular circumstances of the workplace or other premises
where it is intended that the right to picket is to be exercised; and
(b) any relevant code of good practice.
(6) The rules established by the Commission may provide for picketing by
employees on their employer's premises if the Commission is satisfied
that the employer's permission has been unreasonably withheld.
(7) The provisions of section 67, read with the changes required by the
context, apply to the call for, organisation of, or participation in a
picket that complies I with the provisions of this section.
(8) Any party to a dispute about any of the following issues may refer
the dispute in writing to the Commission-
(a) an allegation that the effective use of the right to picket is
being undermined;
(b) an alleged material contravention of subsection (1) or (2);
(c) an alleged material breach of an agreement concluded in terms of
subsection (4); or
(d) an alleged material breach of a rule established in terms of
subsection (5).
(9) The party who refers the dispute to the Commission must satisfy it
that a copy of the referral has been served on all the other parties to
the dispute.
(10) The Commission must attempt to resolve the dispute through
conciliation.
(11) If the dispute remains unresolved, any party to the dispute may
refer it to the Labour Court for adjudication.
70. Essential services committee
(1) The Minister, after consulting NEDLAC, and in consultation with the
Minister for the Public Service and Administration, must establish an
essential services committee under the auspices of the Commission and
appoint to that committee, on any terms, persons who have knowledge and
experience of labour law and labour relations.
(2) The functions of the essential services committee are-
(a) to conduct investigations as to whether or not the whole or a
part of any service is an essential service, and then to decide
whether or not to designate the whole or a part of that service as an
essential service;
(b) to determine disputes as to whether or not the whole or a part of
any service is an essential service; and
(c) to determine whether or not the whole or a part of any service is
a maintenance service. 17
(3) At the request of a bargaining council, the essential services
committee must conduct an investigation in terms of subsection (2)(a).
71. Designating a service as an essential service
(1) The essential services committee must give notice in the Government
Gazette of any investigation that it is to conduct as to whether the
whole or a part of a service is an essential service.
(2) The notice must indicate the service or the part of a service that is
to be the subject of the investigation and must invite interested
parties, within a period stated in the notice-
(a) to submit written representations; and
(b) to indicate whether or not they require an opportunity to make
oral representations.
(3) Any interested party may inspect any written representations made
pursuant to the notice, at the Commission's offices.
(4) The Commission must provide a certified copy of, or extract from, any
written representations to any person who has paid the prescribed fee.
(5) The essential services committee must advise parties who wish to make
oral representations of the place and time at which they may be made.
(6) Oral representations must be made in public.
(7) After having considered any written and oral representations, the
essential services committee must decide whether or not to designate the
whole or a part of the service that was the subject of the investigation
as an essential service.
(8) If the essential services committee designates the whole or a part of
a service as an essential service, the committee must publish a notice to
that effect in the Government Gazette.
(9) The essential services committee may vary or cancel the designation
of the whole or a part of a service as an essential service, by following
the provisions set out in subsections (1) to (8), read with the changes
required by the context.
(10) The Parliamentary service and the South African Police Service are
deemed to have been designated an essential service in terms of this
section.
72. Minimum services The essential services committee may ratify any
collective agreement that provides for the maintenance of minimum
services in a service designated as an essential service, in which
case-
(a) the agreed minimum services are to be regarded as an essential
service in respect of the employer and its employees; and
(b) the provisions of section 74 do not apply.
73. Disputes about whether a service is an essential service
(1) Any party to a dispute about either of the following issues may refer
the dispute in writing to the essential services committee-
(a) whether or not a service is an essential service; or
(b) whether or not an employee or employer is engaged in a service
designated as an essential service.
(2) The party who refers the dispute to the essential services committee
must satisfy it that a copy of the referral has been served on all the
other parties to the dispute.
(3) The essential services committee must determine the dispute as soon
as possible.
74. Disputes in essential services' 8
(1) Any party to a dispute that is precluded from participating in a
strike or a lock-out because that party is engaged in an essential
service may refer the dispute in writing to
(a) a council, if the parties to the dispute fall within the
registered scope of that council; or
(b) the Commission, if no council has
(2) The party who refers the dispute must satisfy the council or the
Commission that a copy of the referral has been served on all the other
parties to the dispute.
(3) The council or the Commission must attempt to resolve the dispute
through conciliation.
(4) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration by the council
or the Commission.
(5) Any arbitration award in terms of subsection (4) made in respect of
the State and that has financial implications for the State becomes
binding-
(a) 14 days after the date of the award, unless a Minister has tabled
the award in Parliament within that period; or
(b) 14 days after the date of tabling the award, unless Parliament
has passed a resolution that the award is not binding.
(6) If Parliament passes a resolution that the award is not binding, the
dispute must be referred back to the Commission for further conciliation
between the parties to the dispute and if that fails, any party to the
dispute may request the Commission to arbitrate.
(7) If Parliament is not in session on the expiry of (a) the period
referred to in subsection (5)(a), that period or the balance of that
period will run from the beginning of the next session of Parliament; and
(b) the period referred to in subsection (5)(b), that period will run
from the expiry of the period referred to in subsection (a) or from
the beginning of the next session of Parliament.
75. Maintenance services
(1) A service is a maintenance service if the interruption of that
service has the effect of material physical destruction to
any working area, plant or machinery.
(2) If there is no collective agreement relating to the provision
of a maintenance service, an employer may apply in writing
to the essential services committee for a determination
that the whole or a part of the employer's business is a
maintenance service.
(3) The employer must satisfy the essential services committee that
a copy of the application has been served on all interested
parties.
(4) The essential services committee must determine, as soon as
possible, whether or not the whole or a part of the service
is a maintenance service.
76. Replacement labour
(1) An employer may not take into employment any person-
(a) to continue or maintain production during a protected strike if
the whole or a part of the employer's service has been designated a
maintenance service; or
(b) for the purpose of performing the work of any employee who is
locked out, unless the lock-out is in response to a strike.
(2) For the purpose of this section, "take into employment" includes
engaging the I services of a temporary employment service or an
independent contractor.
77. Protest action to promote or defend socioeconomic interests of
workers
(1) Every employee who is not engaged in an essential service or a
maintenance service has the right to take part in protest action if-
(a) the protest action has been called by a registered trade union or
federation of trade unions;
(b) the registered trade union or federation of trade unions has
served a notice on NEDLAC stating-
(i) the reasons for the protest action; and
(ii) the nature of the protest action;
(c) the matter giving rise to the intended protest action has been
considered by NEDLAC or any other appropriate forum in which the
parties concerned are able to participate in order to resolve the
matter; and
(d) at least 14 days before the commencement of the protest action,
the registered trade union or federation of trade unions has served a
notice on NEDLAC of its intention to proceed with the protest action.
(2) The Labour Court has exclusive jurisdiction-
(a) to grant any order to restrain any person from taking part in
protest action or in any conduct in contemplation or in furtherance
of protest action that does not comply with subsection (1);
(b) in respect of protest action that complies with subsection (1),
to grant a declaratory order contemplated by subsection (4), after
having considered-
(i) the nature and duration of the protest action;
(ii) the steps taken by the registered trade union or
federation of trade unions to minimise the harm caused by
the protest action; and
(iii) the conduct of the participants in the protest
action.
(3) A person who takes part in protest action or in any conduct in
contemplation or in furtherance of protest action that complies with
subsection (1), enjoys the protections conferred by section 67.
(4) Despite the provisions of subsection (3), an employee forfeits the
protection against dismissal conferred by that subsection, if the
employee-
(a) takes part in protest action or any conduct in contemplation or
in furtherance of protest action in breach of an order of the Labour
Court; or
(b) otherwise acts in contempt of an order of the Labour
Court made in terms of this section.
CHAPTER V
WORKPLACE FORUMS
78. Definitions in this Chapter
In this Chapter-
(a) "employee" means any person who is employed in a workplace,
except a senior managerial employee whose contract of employment or
status confers the authority to do any of the following in the
workplace-
(i) employ and dismiss employees on behalf of the employer;
(ii) represent the employer in dealings with the workplace
forum; or
(iii) determine policy and take decisions on behalf of the
employer that may be in conflict with the representation of
employees in the workplace; and
(b) "representative trade union" means a registered trade union, or
two or more registered trade unions acting jointly, that have as
members the majority of the employees employed by an employer in a
workplace.
79. General functions of workplace forum
A workplace, forum established in terms of this Chapter-
(a) must seek to promote the interests of all employees in the
workplace, whether or not they are trade union members;
(b) must seek to enhance efficiency in the workplace;
(c) is entitled to be consulted by the employer, with a view to
reaching consensus, about the matters referred to in section 84; and
(d) is entitled to participate in joint decision-making about the
matters referred to in section 86.
80. Establishment of workplace forum
(1) A workplace forum may be established in any workplace in which an
employer employs more than 100 employees.
(2) Any representative trade union may apply to the Commission in the
prescribed form for the establishment of a workplace, forum.
(3) The applicant must satisfy the Commission that a copy of the
application has been served on the employer.
(4) The Commission may require further information in support of the
application.
(5) The Commission must-
(a) consider the application and any further information provided by
the applicant; and
(b) consider whether, in the workplace in respect of which the
application has been made-
(i) the employer employs 100 or more employees;
(ii) the applicant is a representative trade union; and
(iii) there is no functioning workplace forum established
in terms of this Chapter.
(6) If satisfied that the requirements of subsection (5) are met, the
Commission must appoint a commissioner to assist the parties to establish
a workplace forum by collective agreement or, failing that, to establish
a workplace forum in terms of this Chapter.
(7) The commissioner must convene a meeting with the applicant, the
employer and any registered trade union that has members employed in the
workplace, in order to facilitate the conclusion of a collective
agreement between those parties, or at least between the applicant and
the employer.
(8) If a collective agreement is concluded, the remaining provisions of
this Chapter do not apply.
(9) If a collective agreement is not concluded, the commissioner must
meet the parties referred to in subsection (7) in order to facilitate
agreement between them, or at least between the applicant and the
employer, on the provisions of a constitution for a workplace forum in
accordance with this Chapter, taking into account the guidelines in
Schedule 2.
(10) If no agreement is reached on any of the provisions of a
constitution, the commissioner must establish a workplace forum and
determine the provisions of the constitution in accordance with this
Chapter, taking into account the guidelines in Schedule 2.
(11) After the workplace forum has been established, the commissioner
must set a date for the election of the first members of the workplace
forum and appoint an election officer to conduct the election.
(12) The provisions of this section do not apply to the public service.
The establishment of workplace forums in the public service will be
regulated in a Schedule promulgated by the Minister for the Public
Service and Administration in terms of section 207(4).
81. Trade union based workplace forum
(1) If a representative trade union is recognised in terms of a
collective agreement by an employer for the purposes of collective
bargaining in respect of a] I employees in a workplace, that trade union
may apply to the Commission in the prescribed form for the establishment
of a workplace forum.
(2) The applicant may choose the members of the workplace forum from
among its elected representatives in the workplace.
(3) If the applicant makes this choice, the provisions of this Chapter
apply, except for section 80(l 1) and section 82(1)(b) to (m).
(4) The constitution of the applicant governs the nomination, election
and removal from office of elected representatives of the applicant in
the workplace.
(5) A workplace forum constituted in terms of this section will be
dissolved if-
(a) the collective agreement referred to in subsection (1) is
terminated;
(b) the applicant is no longer a representative trade union.
(6) The provisions of this section do not apply to the public service.
82. Requirements for constitution of workplace forum
(1) The constitution of every workplace forum must-
(a) establish a formula for determining the number of seats in the
workplace forum;
(b) establish a formula for the distribution of seats in the
workplace forum so as to reflect the occupational structure of the
workplace;
(c) provide for the direct election of members of the workplace forum
by the employees in the workplace;
(d) provide for the appointment of an employee as an election officer
to conduct elections and define that officer's functions and powers;
(e) provide that an election of members of the workplace forum must
be held not later than 24 months after each preceding election;
provide that if another registered trade union becomes
representative, it may demand a new election at any time within 21
months after each preceding election;
(g) provide for the procedure and manner in which elections and
ballots must be conducted;
(h) provide that any employee, including any former or current member
of the workplace forum, may be nominated as a candidate for election
as a member of the workplace forum by-
(i) any registered trade union with members employed in the
work- place; or
(ii) a petition signed by not less than 20 per cent of the
employees in the workplace or 100 employees, whichever
number of employees is the smaller;
(i) provide that in any ballot every employee is entitled-
(i) to vote by secret ballot; and
(ii) to vote during working hours at the employer's
premises;
(j) provide that in an election for members of the workplace forum
every employee is entitled, unless the constitution provides
otherwise-
(i) to cast a number of votes equal to the number of
members to be elected; and
(ii) to cast one or more of those votes in favour of any
candidate;
(k) establish the terms of office of members of the workplace forum f
and the circumstances in which a member must vacate that office;
(l) establish the circumstances and manner in which members of the
workplace forum may be removed from office, including the right of an
representative trade union that nominated a member for election to
remove that member at any time;
(m) establish the manner in which vacancies in the workplace forum ma
be filled, including the rules for holding by-elections;
(n) establish the circumstances and manner in which the meetings
referred to in section 83 must be held;
(o) provide that the employer must allow the election officer
reasonable time off with pay during working hours to prepare for and
conduct elections;
(p) provide that the employer must allow each member of the workplace
forum reasonable time off with pay during working hours to perform
the functions of a member of the workplace, forum and to receive
training relevant to the performance of those functions;
(q) require the employer to take any steps that are reasonably
necessary to assist the election officer to conduct elections;
(r) require the employer to provide facilities to enable the
workplace forum to perform its functions;
(s) provide for full-time members of the workplace forum where there
are more than 1000 employees in a workplace;
(t) provide that the forum may invite any expert to attend meetings
of the workplace forum, including meetings with the employer or the
employees, and that an expert is entitled to any information to which
the workplace forum is entitled and to inspect and copy any document
that members of the workplace forum is entitled to inspect and copy;
(u) provide that office-bearers or officials of the representative
trade union may attend meetings of the workplace forum, including
meetings with the employer or the employees; and
(v) provide that the representative trade union and the employer, by
agreement, may change the constitution of the workplace forum.
(2) The constitution of a workplace forum may-
(a) establish a procedure that provides for the conciliation and
arbitration of proposals in respect of which the employer and the
workplace forum do not reach consensus;
(b) establish a coordinating workplace forum to perform any of the
general functions of a workplace forum and one or more subsidiary
workplace forums to perform any of the specific functions of a
workplace forum; and
(c) include provisions that depart from sections 83 to 92.
(3) The constitution of a workplace forum binds the employer.
(4) The Minister for the Public Service and Administration may amend the
requirements for a constitution in terms of this section for
workplace forums in the public service by a Schedule promulgated in terms
of section 207(4).
83. Meetings of workplace forum
(1) There must be regular meetings of the workplace forum.
(2) There must be regular meetings between the workplace forum and the
employer, at which the employer must-
(a) present a report on its financial and employment situation, its
performance since the last report and its anticipated performance in
the short term and in the long term; and
(b) consult the workplace forum on any matter arising from the report
that may affect employees in the workplace.
(3) (a) There must be meetings between members of the workplace forum and
the employees employed in the workplace at regular and appropriate
intervals. At the meetings with employees, the workplace forum must
report on-
(i) its activities generally;
(ii) matters in respect of which it has been consulted by
the employer; and
(iii) matters in respect of which it has participated in
joint decision-making with the employer.
(b) Each calendar year, at one of the meetings with the employees,
the employer must present an annual report of its financial and
employment situation, its performance generally and its future
prospects and plans.
(c) The meetings of employees must be held during working hours at a
time and place agreed upon by the workplace forum and the employer
without loss of pay on the part of the employees.
84. Specific matters for consultation
(1) Unless the matters for consultation are regulated by a collective
agreement with the representative trade union, a workplace forum is
entitled to be consulted by the employer about proposals relating to any
of the following matters-
(a) restructuring the workplace, including the introduction of new
technology and new work methods;
(b) changes in the organisation of work;
(c) partial or total plant closures;
(d) mergers and transfers of ownership in so far as they have an
impact on the employees;
(e) the dismissal of employees for reasons based on operational
requirements; exemptions from any collective agreement or any law;
(g) job grading;
(h) criteria for merit increases or the payment of discretionary
bonuses;
(i) education and training;
(j) product development plans; and
(k) export promotion.
(2) A bargaining council may confer on a workplace forum the right to be
consulted about additional matters in workplaces that fall within the
registered scope of the bargaining council.
(3) A representative trade union and an employer may conclude a
collective agreement conferring on the workplace forum the right to be
consulted about any additional matters in that workplace.
(4) Any other law may confer on a workplace forum the right to be
consulted about additional matters.
(5) Subject to any applicable occupational health and safety legislation,
a representative trade union and an employer may agree-
(a) that the employer must consult with the workplace forum with a
view to initiating, developing, promoting, monitoring and reviewing
measures to ensure health and safety at work;
(b) that a meeting between the workplace forum and the employer
constitutes a meeting of a health and safety committee required to be
established in the workplace by that legislation; and
(c) that one or more members of the workplace forum are health and
safety representatives for the purposes of that legislation.
(6) For the purposes of workplace forums in the public service-
(a) the collective agreement referred to in subsection (1) is a
collective agreement concluded in a bargaining council;
(b) a bargaining council may remove any matter from the list of
matters referred to in subsection (1) in respect of workplaces that
fall within its registered scope; and
(c) subsection (3) does not apply.
85. Consultation
(1) Before an employer may implement a proposal in relation to any matter
referred to in section 84(l), the employer must consult the workplace
forum and attempt to reach consensus with it.
(2) The employer must allow the workplace forum an opportunity during the
consultation to make representations and to advance alternative
proposals.
(3) The employer must consider and respond to the representations or
alternative proposals made by the workplace forum and, if the employer
does not agree with them, the employer must state the reasons for
disagreeing.
(4) If the employer and the workplace forum do not reach consensus, the
employer must invoke any agreed procedure to resolve any differences
before implementing the employer's proposal.
86. Joint decision-making
(1) Unless the matters for joint decision-making are regulated by a
collective agreement with the representative trade union, an employer
must consult and reach consensus with a workplace forum before
implementing any proposal concerning-
(a) disciplinary codes and procedures;
(b) rules relating to the proper regulation of the workplace in so
far as they apply to conduct not related to the work performance of
employees;
(c) measures designed to protect and advance persons disadvantaged by
unfair discrimination; and
(d) changes by the employer or by employer-appointed representatives
on trusts or boards of employer-controlled schemes, to the rules
regulating social benefit schemes.
(2) A representative trade union and an employer may conclude a
collective agreement-
(a) conferring on the workplace forum the right to joint
decision-making in respect of additional matters in that workplace;
(b) removing any matter referred to in subsection (1)(a) to (d) from
the list of matters requiring joint decision-making.
(3) Any other law may confer on a workplace forum the right to
participate in joint decision-making about additional matters.
(4) If the employer does not reach consensus with the workplace forum,
the employer may-
(a) refer the dispute to arbitration in terms of any agreed
procedure; or
(b) if there is no agreed procedure, refer the dispute to the
Commission.
(5) The employer must satisfy the Commission that a copy of the referral
has been served on the chairperson of the workplace forum.
(6) The Commission must attempt to resolve the dispute through
conciliation.
(7) If the dispute remains unresolved, the employer may request that the
dispute be resolved through arbitration. 19
(8) (a) An arbitration award is about a proposal referred to in
subsection (1)(d) takes effect 30 days after the date of the award.
(b) Any representative on the trust or board may apply to the Labour
Court for an order declaring that the implementation of the award
constitutes a breach of a fiduciary duty on the part of that
representative.
(c) Despite paragraph (a), the award will not take effect pending the
determination by the Labour Court of an application made in terms of
paragraph (b).
(9) For the purposes of workplace forums in the public service, a
collective agreement referred to in subsections (1) and (2) is a
collective agreement concluded in a bargaining council.
87. Review at request of newly established workplace forum
(1) After the establishment of a workplace forum, the workplace forum may
request a meeting with the employer to review-
(a) criteria for merit increases or the payment of discretionary
bonuses;
(b) disciplinary codes and procedures; and
(c) rules relating to the proper regulation of the workplace in so
far as they apply to conduct not related to work performance of
employees in the workplace.
(2) The employer must submit its criteria, disciplinary codes and
procedures, and rules, referred to in subsection (1), if any, in writing
to the workplace forum for its consideration.
(3) A review of the criteria must be conducted in accordance with the
provisions of section 85.
(4) A review of the disciplinary codes and procedures, and rules, must be
conducted in accordance with the provisions of section 86(2) to (7).
88. Matters affecting more than one workplace forum in an employer's operation
(1) If the employer operates more than one workplace and separate
workplace forums have been established in two or more of those
workplaces, and if a matter has been referred to arbitration in terms of
section 86(4)(a) or (b), the employer may give notice in writing to the
chairpersons of all the workplace forums that no other workplace forum ma
refer a matter that is substantially the same as the matter referred to
arbitration.
(2) If the employer gives notice in terms of subsection (1)-
(a) each workplace forum is entitled to make representations and
participate in the arbitration proceedings; and
(b) the arbitration award is binding on the employer and the
employees in each workplace.
89. Disclosure of information
(1) An employer must disclose to the workplace forum all relevant
information that will allow the workplace forum to engage effectively in
consultation and joint decision-making.
(2) An employer is not required to disclose information-
(a) that is legally privileged;
(b) that the employer cannot disclose without contravening a
prohibition imposed on the employer by any law or order of any court;
(c) that is confidential and, if disclosed, may cause substantial
harm to an employee or the employer; or
(d) that is private personal information relating to an employee,
unless that employee consents to the disclosure of that information.
(3) If there is a dispute about the disclosure of information, any party
to the dispute may refer the dispute in writing to the Commission.
(4) The party who refers the dispute to the Commission must satisfy it
that a copy of the referral has been served on all the other parties to
the dispute.
(5) The Commission must attempt to resolve the dispute through
conciliation.
(6) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration.
(7) In any dispute about the disclosure of information contemplated in
subsection (3), the commissioner must first decide whether or not the
information is relevant.
(8) If the commissioner decides that the information is relevant and if
it is information contemplated in subsection (2)(c) or (d), the
commissioner must balance the harm that the disclosure is likely to cause
to an employee or employer against the harm that the failure to disclose
the information is likely to cause to the ability of the workplace forum
to engage effectively in consultation and joint decision-making.
(9) If the commissioner decides that the balance of harm favours the
disclosure of the information, the commissioner may order the disclosure
of the information on terms designed to limit the harm likely to be
caused to the employee or employer.
(10) When making an order in terms of subsection (9), the commissioner
must take into account any breach of confidentiality in respect of
information disclosed in terms of this section at that workplace and may
refuse to order the disclosure of the information or any other
confidential information, that might otherwise be disclosed, for a period
specified in the arbitration award.
90. Inspection and copies of documents
(1) Any documented information that is required to be disclosed by the
employer in terms of section 89 must be made available on request to the
members of the workplace forum for inspection.
(2) The employer must provide copies of the documentation on request to
the members of the workplace forum.
91. Breach of confidentiality
In any dispute about an alleged breach of confidentiality, the
commissioner may order that the right to disclosure of information in
that workplace be withdrawn for a period specified in the arbitration
award.
92. Full-time members of workplace forum
(1) In a workplace in which 1000 or more employees are employed, the
members of the workplace forum may designate from their number one
full-time member.
(2) (a) The employer must pay a full-time member of the workplace forum
the same remuneration that the member would have earned in the position
the member held immediately before being designated as a full-time
member.
(b) When a person ceases to be a full-time member of a
workplace forum, the employer must reinstate that person to the
position that person held immediately before election or appoint that
person to any higher position to which, but for the election, that
person would have advanced.
93. Dissolution of workplace forum
(1) A representative trade union in a workplace may request a ballot to
dissolve a workplace forum.
(2) If a ballot to dissolve a workplace forum has been requested, an
election officer must be appointed in terms of the constitution of the
workplace forum.
(3) Within 30 days of the request for a ballot to dissolve the workplace
forum, the election officer must prepare and conduct the ballot.
(4) If more than 50 per cent of the employees who have voted in the
ballot support the dissolution of the workplace forum, the workplace
forum must be dissolved.
94. Disputes about workplace forums
(1) Unless a collective agreement or this Chapter provides otherwise, any
party to a dispute about the interpretation or application of this
Chapter may refer that dispute to the Commission in writing, if that
party is-
(a) one or more employees employed in the workplace;
(b) a registered trade union with members employed in the workplace;
(c) the representative trade union; or
(d) the employer.
(2) The party who refers the dispute to the Commission must satisfy it
that a copy of the referral has been served on all the other parties to
the dispute.
(3) The Commission must attempt to resolve the dispute through
conciliation.
(4) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration.
CHAPTER VI
TRADE UNIONS AND EMPLOYERS' ORGANISATIONS
PART A-REGISTRATION AND REGULATION OF TRADE UNIONS AND
EMPLOYERS' ORGANISATIONS
95. Requirements for registration of trade unions or employers' organisations
(1) Any trade union may apply to the registrar for registration if-
(a) it has adopted a name that meets the requirements of subsection
(4);
(b) it has adopted a constitution that meets the requirements of
subsections (5) and (6);
(c) it has an address in the Republic; and
(d) it is independent.
(2) A trade union is independent if-
(a) it is not under the direct or indirect control of any employer or
employers' organisation; and
(b) it is free of any interference or influence of any kind from any
employer or employers' organisation.
(3) Any employers' organisation may apply to the registrar for
registration if-
(a) it has adopted a name that meets the requirements of subsection
(4);
(b) it has adopted a constitution that meets the requirements of
subsections (5) and (6), and
(c) it has an address in the Republic.
(4) Any trade union or employers' organisation that intends to register
may not have a name or shortened form of the name that so closely
resembles the name or shortened form of the name of another trade union
or employers' organisation that it is likely to mislead or cause
confusion.
(5) The constitution of any trade union or employers' organisation that
intends to register must-
(a) state that the trade union or employers' organisation is an
association not for gain;
(b) prescribe qualifications for, and admission to, membership;
(c) establish the circumstances in which a member will no longer be
entitled to the benefits of membership;
(d) provide for the termination of membership;
(e) provide for appeals against loss of the benefits of membership or
against termination of membership, prescribe a procedure for those
appeals and determine the body to which those appeals may be made;
provide for membership fees and the method for determining member-
ship fees and other payments by members;
(g) prescribe rules for the convening and conducting of meetings of
members and meetings of representatives of members, including the
quorum required for, and the minutes to be kept of, those meetings;
(h) establish the manner in which decisions are to be made;
(i) establish the office of secretary and define its functions;
(j) provide for other office-bearers, officials and, in the case of a
trade union, trade union representatives, and define their respective
functions;
(k) prescribe a procedure for nominating or electing office-bearers
and, in the case of a trade union, trade union representatives;
(l) prescribe a procedure for appointing, or nominating and electing,
officials;
(m) establish the circumstances and manner in which office-bearers,
officials and, in the case of a trade union, trade union
representatives, may be removed from office;
(n) provide for appeals against removal from office of
office-bearers, officials and, in the case of a trade union, trade
union representatives, prescribe a procedure for those appeals and
determine the body to which those appeals may be made;
(o) establish the circumstances and manner in which a ballot must be
conducted;
(p) provide that the trade union or employers' organisation, before
calling a strike or lock-out, must conduct a ballot of those of its
members in respect of whom it intends to call the strike or lock-out;
(q) provide that members of the trade union or employers'
organisation may not be disciplined or have their membership
terminated for failure or refusal to participate in a strike or
lock-out if-
(i) no ballot was held about the strike or lock-out;
or
(ii) a ballot was held but a majority of the members who voted did not
vote in favour of the strike or lock-out;
(r) provide for banking and investing its money;
(s) establish the purposes for which its money may be used;
(t) provide for acquiring and controlling property;
(u) determine a date for the end of its financial year;
(v) prescribe a procedure for changing its constitution; and
(w) prescribe a procedure by which it may resolve to wind up.
(6) The constitution of any trade union or employers' organisation which
intends to register may not include any provision that discriminates
directly or indirectly against any person on the grounds of race or sex.
96. Registration of trade unions or employers' organisations
(1) Any trade union or employers' organisation may apply for registration
by submitting to the registrar-
(a) a prescribed form that has been properly completed;
(b) a copy of its constitution; and
(c) any other information that may assist the registrar to determine
whether or not the trade union or employers' organisation meets the
requirements for registration.
(2) The registrar may require further information in support of the
application.
(3) The registrar-
(a) must consider the application and any further information
provided by the applicant; and
(b) if satisfied that the applicant meets the requirements for
registration, must register the applicant by entering the applicant's
name in the register of trade unions or the register of employers'
organisations.
(4) If the registrar is not satisfied that the applicant meets the
requirements for registration, the registrar-
(a) must send the applicant a written notice of the decision and the
reasons for that decision; and
(b) in that notice, must inform the applicant that it has 30 days
from the date of the notice to meet those requirements.
(5) If, within that 30-day period, the applicant meets the requirements
for registration, the registrar must register the applicant by entering
the applicant's name in the appropriate register.
(6) If, within that 30-day period, an applicant has attempted to meet the
requirements for registration but the registrar concludes that the
applicant has failed to do so, the registrar must-
(a) refuse to register the applicant; and
(b) notify the applicant in writing of that decision.
(7) After registering the applicant, the registrar must-
(a) issue a certificate of registration in the applicant's name; and
(b) send the certificate and a certified copy of the registered
constitution to the applicant.
97. Effect of registration of trade union or employers' organisation
(1) A certificate of registration is sufficient proof that a registered
trade union or registered employers' organisation is a body corporate.
(2) The fact that a person is a member of a registered trade union or a
registered employers' organisation does not make that person liable for
any of the obligations or liabilities of the trade union or employers'
organisation.
(3) A member, office-bearer or official of a registered trade union or a
registered employers' organisation or, in the case of a trade union, a
trade union representative is not personally liable for any loss suffered
by any person as a result of an act performed or omitted in good faith by
the member, office-bearer, official or trade union representative while
performing their functions for or on behalf of the trade union or
employers' organisation.
(4) Service of any document directed to a registered trade union or
employers' organisation at the address most recently provided to the
registrar will be for all purposes service of that document on that trade
union or employers' organisation.
98. Accounting records and audits
(1) Every registered trade union and every registered employers'
organisation must, to the standards of generally accepted accounting
practice, principles and procedures-
(a) keep books and records of its income, expenditure, assets and
liabilities; and
(b) within six months after the end of each financial year, prepare
financial statements, including at least-
(i) a statement of income and expenditure for the previous
financial year; and
(ii) a balance sheet showing its assets, liabilities and
financial position as at the end of the previous financial
year.
(2) Every registered trade union and every registered employers'
organisation must arrange for an annual audit of its books and records of
account and its financial statements by an auditor who must-
(a) conduct the audit in accordance with generally accepted auditing
standards; and
(b) report in writing to the trade union or employers' organisation
and in that report-
(i) express an opinion as to whether or not the trade union
or employers' organisation has complied with those
provisions of its constitution relating to financial
matters; and
(ii) if the trade union is a party to an agency shop
agreement referred to in section 25 or a closed shop
agreement referred to in section 26 express an opinion as
to whether or not the trade union has complied with the
provisions of those sections.
(3) Every registered trade union and every registered employers'
organisation must-
(a) make the financial statements and the auditor's report available
to its members for inspection; and
(b) submit those statements and the auditor's report to a meeting or
meetings of its members or their representatives as provided for in
its constitution.
(4) Every registered trade union and every registered employers'
organisation must preserve each of its books of account, supporting
vouchers, records of subscriptions or levies paid by its members, income
and expenditure statements, balance sheets, and auditor's reports, in an
original or reproduced form, for a period of three years from the end of
the financial year to which they relate.
99. Duty to keep records In addition to the records required by section 98,
every registered trade union and every registered employers' organisation must
keep-
(a) a list of its members;
(b) the minutes of its meetings, in an original or reproduced form,
for a period of three years from the end of the financial, year to
which they relate; and
(c) the ballot papers for a period of three years from the date of
every ballot.
100. Duty to provide information to registrar Every registered trade union
and every registered employers' organisation must provide to the
registrar-
(a) by 31 March each year, a statement, certified by the secretary
that it accords with its records, showing the number of members as at
31 December of the previous year and any other related details that
may be required by the registrar;
(b) within 30 days of receipt of its auditor's report, a certified
copy of that report and of the financial statements;
(c) within 30 days of receipt of a written request by the registrar,
an explanation of anything relating to the statement of membership,
the auditor's report or the financial statements;
(d) within 30 days of any appointment or election of its national
office-bearers, the names and work addresses of those office-bearers,
even if their appointment or election did not result in any changes
to its office-bearers; and
(e) 30 days before a new address for service of documents will take
effect, notice of that change of address.
101. Changing constitution or name of registered trade unions or employers'
organisations
(1) A registered trade union or a registered employers' organisation may
resolve to change or replace its constitution.
(2) The registered trade union or the registered employers' organisation
must send the registrar a copy of the resolution and a certificate signed
by its secretary stating that the resolution complies with its
constitution.
(3) The registrar must-
(a) register the changed or new constitution if it meets the
requirements for registration; and
(b) send the registered trade union or registered employers'
organisation a copy of the resolution endorsed by the registrar,
certifying that the change or replacement has been registered.
(4) The changed or new constitution takes effect from the date of the
registrar's certification.
(5) A registered trade union or registered employers' organisation may
resolve to change its name.
(6) The registered trade union or registered employers' organisation must
send the registrar a copy of the resolution and the original of its
current certificate of registration.
(7) If the new name of the trade union or employers' organisation meets
the requirements of section 95(4),20 the registrar must-
(a) enter the new name in the appropriate register and issue a
certificate of registration in the new name of the trade union or
employers' organisation;
(b) remove the old name from that register and cancel the earlier
certificate of registration; and
(c) send the new certificate to the trade union or employers'
organisation.
(8) The new name takes effect from the date that the registrar enters it
in the appropriate register.
102. Amalgamation of trade unions or employers' organisations
(1) Any registered-
(a) trade union may resolve to amalgamate with one or more other
trade unions, whether or not those other trade unions are registered;
and
(b) employers' organisation may resolve to amalgamate with one or
more other employers' organisations, whether or not those other
employers' organisations are registered.
(2) The amalgamating trade unions or amalgamating employers' organisations
may apply to the registrar for registration of the amalgamated trade
union or
20. These are the requirements relating to the name of a trade union or
employers' organisation to be registered. amalgamated employers' organisation,
even if any of the amalgamating trade unions or amalgamating
employers' organisations is itself already registered, and the registrar must
treat the application as an application in terms of section 96.
(3) After the registrar has registered the amalgamated trade union or
amalgamated employers' organisation, the registrar must cancel the
registration of each of the amalgamating trade unions or amalgamating
employers' organisations by removing their names from the appropriate
register.
(4) The registration of an amalgamated trade union or an amalgamated
employers' organisation takes effect from the date that the registrar
enters its name in the appropriate register.
(5) When the registrar has registered an amalgamated trade union or
amalgamated employers' organisation-
(a) all the assets, rights, obligations and liabilities of the
amalgamating trade unions or the amalgamating employers'
organisations devolve upon and vest in the amalgamated trade union or
amalgamated employers' organisation; and
(b) the amalgamated trade union or amalgamated employers'
organisation succeeds the amalgamating trade unions or the
amalgamating employers' organisations in respect of-
(i) any right that the amalgamating trade unions or the
amalgamating employers' organisations enjoyed;
(ii) any fund established in terms of this Act or any
other law;
(iii) any arbitration award or court order;
(iv) any collective agreement or other agreement;
(v) membership of any council; and
(vi) any written authorisation by a member for the periodic
deduction of levies or subscriptions due to the
amalgamating trade unions or amalgamating employers'
organisations.
103. Winding-up of registered trade unions or registered employers'
organisations
(1) The Labour Court may order a registered trade union or registered
employers' organisation to be wound up if-
(a) the trade union or employers' organisation has resolved to
wind-up its affairs and has applied to the Court for an order giving
effect to that resolution; or
(b) the registrar of labour relations or any member of the trade
union or employers' organisation has applied to the Court for its
winding up and the Court is satisfied that the trade union or
employers' organisation, for some reason that cannot be remedied is
unable to continue to function.
(2) If there are any persons not represented before the Labour Court
whose interests may be affected by an order in terms of subsection (1),
the Court must-
(a) consider those interests before deciding whether or not to grant
the order applied for; and
(b) if it grants the order applied for, include provisions in the
order disposing of each of those interests.
(3) In granting order in terms of subsection (1), the Labour Court may
appoint a suitable person as liquidator, on appropriate conditions.
(4) (a) The registrar of the Labour Court must determine the liquidator's
fees.
(b) The Labour Court, in chambers, may review the determination of
the registrar of the Labour Court.
(c) The liquidator's fees are a first charge against the assets of
the trade union or employers' organisation.
(5) If, after all the liabilities of the registered trade union or
registered employers' organisation have been discharged, any assets
remain that cannot be disposed of in accordance with the constitution of
that trade union or employers' organisation, the liquidator must realise
those assets and pay the proceeds to the Commission for its own use.
104. Winding-up of trade unions or employers' organisations by reason of
insolvency
Any person who seeks to wind-up a trade union or employers'
organisation by reason of insolvency must comply with the
Insolvency Act, 1936 (Act No. 24 of 1936), and, for the purposes
of this section, any reference to the court in that Act must be
interpreted as referring to the Labour Court.
105. Cancellation of registration of trade union that is no longer independent
(1) Any registered trade union may apply to the Labour Court for an order
declaring that another trade union is no longer independent.
(2) If the Labour Court is satisfied that a trade union is not
independent, the Court must make a declaratory order to that effect.
106. Cancellation of registration of trade unions or employers' organisations
(1) The registrar of the Labour Court must notify the registrar of labour
relations if the Court
(a) in terms of section 103 has ordered a registered trade union or a
registered employers' organisation to be wound up; or
(b) in terms of section 105 has declared that a registered trade
union is not independent.
(2) When the registrar receives a notice from the Labour Court in terms
of subsection (1), the registrar must cancel the registration of the
trade union or employers' organisation by removing its name from the
appropriate register.
(3) When a trade union's or employers' organisation' s registration is
cancelled, all the rights it enjoyed as a result of being registered will
end.
PART B-REGULATION OF FEDERATIONS OF TRADE UNIONS AND
EMPLOYERS' ORGANISATIONS
107. Regulation of federations of trade unions or employers'
organisations
(1) Any federation of trade unions that has the promotion of the
interests of employees as a primary object, and any federation of
employers' organisations that has the promotion of the interests of
employers as a primary object, must provide to the registrar-
(a) within three months of its formation, and after that by 31 March
each year, the names and addresses of its members and the number of
persons each member in the federation represents;
(b) within three months of its formation, and after that within 30
days of any appointment or election of its national office-bearers,
the names and work addresses of those office-bearers, even if their
appointment or election did not result in any changes to its
office-bearers;
(c) within three months of its formation, a certified copy of its
constitution and an address in the Republic at which it will accept
service of any document that is directed to it;
(d) within 30 days of any change to its constitution, or of the
address provided to the registrar as required in paragraph (c),
notice of that change; and
(e) within 14 days after it has resolved to wind up, a copy of that
resolution.
(2) Service of any document directed to a federation of trade unions or a
federation of employers' organisations at the address most recently
provided to the registrar will be, for all purposes, service of that
document on that federation.
(3) The registrar must remove from the appropriate register the name of
any federation that the registrar believes has been wound up or
sequestrated.
PART C-REGISTRAR OF LABOUR RELATIONS
108. Appointment of registrar of labour relations
(1) The Minister must designate an officer of the Department of Labour as
the registrar of labour relations to perform the functions conferred on
the registrar by or in terms of this Act.
(2) (a) The Minister may designate any number of officers in the
Department as deputy registrars of labour relations to assist the
registrar to perform the functions of registrar in terms of this Act.
(b) A deputy registrar may exercise any of the functions of the
registrar that have been generally or specifically delegated to the
deputy.
(3) The deputy registrar of labour relations or if there is more than
one, the most senior of them, will act as registrar whenever-
(a) the registrar is absent from the Republic or from duty, or for
any reason is temporarily unable to perform the functions of
registrar; or
(b) the office of registrar is vacant.
109. Functions of registrar
(1) The registrar must keep-
(a) a register of registered trade unions;
(b) a register of registered employers' organisations;
(c) a register of federations of trade unions containing the names of
the federations whose constitutions have been submitted to the
registrar;
(d) a register of federations of employers' organisations containing
the names of the federations whose constitutions have been submitted
to the registrar; and
(e) a register of councils.
(2) Within 30 days of making an entry in, or deletion from, a register,
the registrar must give notice of that entry or deletion in the
Government Gazette.
(3) The registrar, on good cause shown, may extend or condone late
compliance with any of the time periods established in this Chapter,
except the period within which a person may note an appeal against a
decision of the registrar.
(4) The registrar must perform all the other functions conferred on the
registrar by or in terms of this Act.
110. Access to information
(1) Any person may inspect any of the following documents in the
registrar's office-
(a) the registers of registered trade unions, registered employers
organisations, federations of trade unions, federations of employers'
organisations and councils;
(b) the certificates of registration and the registered constitutions
of registered trade unions, registered employers' organisations, and
councils, and the constitutions of federations of trade unions and
federations of employers' organisations; and
(c) the auditor's report in so far as it expresses an opinion on the
matters referred to in section 98(2)(b)(ii).
(2) The registrar must provide a certified copy of, or extract from, any
of the documents referred to in subsection (1) to any person who has paid
the prescribed fee.
(3) Any person who is a member, office-bearer or official of a registered
trade union or of a registered employers' organisation, or is a member of
a party to a council, may inspect any document that has been provided to
the registrar in compliance with this Act by that person's registered
trade union, registered employers' organisation or council.
(4) The registrar must provide a certified copy of, or extract from, any
document referred to in subsection (3) to any person who has a right in
terms of that subsection to inspect that document and who has paid the
prescribed fee.
(5) The registrar must provide any of the following information to any
person free of charge(a) the names and work addresses of persons who are
national office-bearers of any registered trade union, registered
employers' organisation, federation or council;
(b) the address in the Republic at which any registered trade union,
registered employers' organisation, federation or council will accept
service of any document that is directed to it; and
(c) any of the details of a federation of trade unions or a
federation of employers' organisations referred to in section
107(l)(a), (c), and (e).
PART D-APPEALS FROM REGISTRAR'S DECISION
Appeals from registrar's decision
(1) Within 30 days of the written notice of a decision of the registrar,
any person who is aggrieved by the decision may demand in writing that
the registrar provide written reasons for the decision.
(2) The registrar must give the applicant written reasons for the
decision within 30 days of receiving a demand in terms of subsection (1).
(3) Any person who is aggrieved by a decision of the registrar may appeal
to the Labour Court against that decision, within 60 days of-
(a) the date of the registrar's decision; or
(b) if written reasons for the decision are demanded, the date of
those reasons.
(4) The Labour Court, on good cause shown, may extend the period within
which a person may note an appeal against a decision of the registrar.
CHAPTER VII
DISPUTE RESOLUTION
PART A-COMMISSION FOR CONCILIATION, MEDIATION AND
ARBITRATION
112. Establishment of Commission for Conciliation, Mediation and
Arbitration
The Commission for Conciliation, Mediation and Arbitration is hereby
established as a juristic person.
113. Independence of Commission
The Commission is independent of the State, any political party, trade
union, employer,
employers' organisation, federation of trade unions or federation of
employers' organisations.
114. Area of jurisdiction and offices of Commission
(1) The Commission has jurisdiction in all the provinces of the Republic.
(2) The Minister, after consulting the governing body, must determine the
location for the Commission's head office.
(3) The Commission must maintain an office in each province of the
Republic and as many local offices as it considers necessary.
115. Functions of Commission
(1) The Commission must-
(a) attempt to resolve, through conciliation, any dispute referred to
it in terms of this Act;
(b) if a dispute that has been referred to it remains unresolved
after conciliation, arbitrate the dispute if-
(i) this Act requires arbitration and any party to the
dispute has requested that the dispute be resolved through
arbitration; or
(ii) all the parties to a dispute in respect of which the
Labour Court has jurisdiction consent to arbitration under
the auspices of the Commission;
(c) assist in the establishment of workplace forums in the manner
contemplated in Chapter V; and
(d) compile and publish information and statistics about its
activities.
(2) The Commission may-
(a) if asked, advise a party to a dispute about the procedure to
follow in terms of this Act; 21
(b) if asked, assist a party to a dispute to obtain legal advice,
assistance or 22 representation;
(c) offer to resolve a dispute that has not been referred to the
Commission through conciliation; 23
(d) accredit councils or private agencies; 24 (e) subsidise accredited
councils or accredited agencies; 25 conduct, oversee or scrutinise any
election or ballot of a registered trade union or registered
employers' organisation if asked to do so by that trade union or
employers' organisation;
(g) publish guidelines in relation to any matter dealt with in this
Act;
(h) conduct and publish research into matters relevant to its
functions; and
(i) sexual harassment in the workplace.
(3) If asked, the Commission may provide employees, employers, registered
trade unions, registered employers' organisations, federations of trade
unions, federations of employers' organisations or councils with advice
or training relating to the primary objects of this Act, including but
not limited to(a) establishing collective bargaining structures;
(b) designing, establishing and electing workplace forums and
creating deadlock-breaking mechanisms;
(c) the functioning of workplace forums;
(d) preventing and resolving disputes and employees' grievances;
(e) disciplinary procedures;
(f) procedures in relation to dismissals;
(g) the process of restructuring the workplace;
(h) affirmative action and equal opportunity programmes; and
(i) sexual harassment in the workplace.
(4) The Commission must perform any other duties imposed, and may
exercise any other powers conferred, on it by or in terms of this Act and
is competent to perform any other function entrusted to it by any other
law.
(5) The governing body's rules of procedure, the terms of appointment of
its members and other administrative matters are dealt with in Schedule
3.
116. Governing body of Commission
(1) The Commission will be governed by the governing body, whose acts are
acts of the Commission.26
(2) The governing body consists of(a) a chairperson and nine other
members, each nominated by NEDLAC and appointed 27 by the Minister to hold
office for a period of three years; and
(b) the director of the Commission, who-
(i) is a member of the governing body only by virtue of
having been appointed director; and
(ii) may not vote at meetings of the governing body.
(3) NEDLAC must nominate(a) one independent person for the office of
chairperson;
26. See item 4 of Schedule 3 for the governing body's rules of
procedure.
27. See items 1 to 3 of Schedule 3 for the terms of appointment of
members of the governing body.
(b) three persons proposed by those voting members of NEDLAC who
represent organised labour; and
(c) three persons proposed by those voting members of NEDLAC who
represent organised business;
(d) three persons proposed by those voting members of NEDLAC who
represent the State.
117. Commissioners of Commission
(1) The governing body must appoint as Commissioners as many adequately
qualified persons as it considers necessary to perform the functions of
commissioners by or in terms of this Act or any other law.
(2) The governing body-
(a) may appoint each commissioner-
(i) on either a full-time or a part-time basis; and
(ii) to be either a commissioner or a senior commissioner;
(b) must appoint each commissioner for a fixed term determined by the
governing body at the time of appointment;
(c) may appoint a commissioner, who is not a senior commissioner, for
a probationary period; and
(d) when making appointments, must have due regard to the need to
constitute a Commission that is independent and competent and
representative in respect of race and gender.
(3) Any reference in this Act to a commissioner must be interpreted also
to mean a senior commissioner, unless otherwise indicated.
(4) The governing body must determine the commissioners' remuneration,
allowances and any other terms and conditions of appointment not
contained in this section.
(5) A commissioner may resign by giving written notice to the governing
body.
(6) The governing body must prepare a code of conduct for the
commissioners and ensure that they comply with the code of conduct in
performing their functions.
(7) The governing body may remove a commissioner from office for-
(a) serious misconduct;
(b) incapacity; or
(c) a material violation of the Commission's code of conduct.
(8) Each commissioner is responsible to the director for the performance
of the commissioner's functions.
118. Director of Commission
(1) The governing body must appoint, as director of the Commission, a
person who (a) is skilled and experienced in labour relations and dispute
resolution; and
(b) has not been convicted of any offence involving dishonesty.
(2) The director must(a) perform the functions that are
(i) conferred on the director by or in terms of this Act or
by any other law;
(ii) delegated to the director by the governing body;
(b) manage and direct the activities of the Commission; and
(c) supervise the Commission's staff.
(3) The governing body must determine the director's remuneration,
allowances and any other terms and conditions of appointment not
contained in Schedule 3.
(4) A person appointed director automatically holds the office of a
senior commissioner.
(5) Despite subsection (4), the provisions of section 117, with the
exception of section 117(6), do not apply to the director.
119. Acting director of Commission (1) The chairperson of the governing
body may appoint any suitable person to act as director whenever
(a) the director is absent from the Republic or from duty, or for any
reason is temporarily unable to perform the functions of director; or
(b) the office of director is vacant.
(2) Only a senior commissioner may be appointed as acting director.
(3) An acting director is competent to exercise and perform any of
the powers and functions of the director.
120. Staff of Commission
(1) The director may appoint staff after consulting the governing body.
(2) The governing body must determine the remuneration and allowances and
any other terms and conditions of appointment of staff members.
121. Establishment of committees of Commission
(1) The governing body may establish committees to assist the Commission.
(2) A committee may consist of any combination of the following persons-
(a) a member of the governing body;
(b) the director;
(c) a commissioner;
(d) a staff member of the Commission; and
(e) any other person.
(3) The governing body must determine the remuneration and allowances and
any other terms and conditions of appointment of committee members
referred to in subsection (2)(e).
(4) The governing body may at any time vary or set aside a decision of a
committee.
(5) The governing body may dissolve any committee.
122. Finances of Commission
(1) The Commission will be financed and provided with working capital
from-
(a) the moneys that the Minister, with the agreement of the Minister
of Finance, must allocate to the Commission from public funds at the
commencement of this Act;
(b) the moneys that Parliament may appropriate to the Commission from
time to time;
(c) fees payable to the Commission in terms of this Act;
(d) grants, donations and bequests made to it; and
(e) income earned on the surplus moneys deposited or invested.
(2) The financial year of the Commission begins on I April in each year
and ends on 31 March of the following year, except the first financial
year which begins on the day this Act commences and ends on the first
following 31 March.
(3) In each financial year, at a time determined by the Minister, the
Commission must submit to the Minister a statement of the Commission's
estimated income and expenditure, and requested appropriation from
Parliament, for the following financial year.
123. Circumstances in which Commission may charge fees
(1) The Commission may charge a fee only for-
(a) resolving disputes which are referred to it, In circumstances in
which this Act allows the Commission, or a commissioner, to charge a
fee;
(b) conducting, overseeing or scrutinising any election or ballot at
the request of a registered trade union or employers' organisation;
and
(c) providing advice or training in terms of section 115(3).
(2) The Commission may not charge a fee unless-
(a) the governing body has established a tariff of fees; and
(b) the fee that is charged is in accordance with that tariff.
(3) The Commission must publish the tariff in the Government Gazette.
124. Contracting by Commission, and Commission working in association with
any person
(1) The governing body may-
(a) contract with any person to do work for the Commission; and
(b) perform any function of the Commission in association with any
person.
(2) Every person with whom the Commission contracts or associates is
bound by the requirement of independence that binds the Commission.
125. Delegation of governing body's powers, functions and duties
(1) The governing body may delegate in writing any of its functions,
other than the functions listed below, to any member of the governing
body, the director, a commissioner, or any committee established by the
Commission. The functions that the governing body may not delegate are-
(a) appointing the director;
(b) appointing commissioners, or removing a commissioner from office;
(c) depositing or investing surplus money;
(d) accrediting councils or private agencies, or amending,
withdrawing or renewing their accreditation; or
(e) subsidising accredited councils or accredited agencies.
(2) The governing body may attach conditions to a delegation and may
amend or revoke a delegation at any time.
(3) A function delegated to the director may be performed by any
commissioner or staff member of the Commission authorised by the
director, unless the terms of that delegation prevent the director from
doing so.
(4) The governing body may vary or set aside any decision made by a
person acting in terms of any delegation made in terms of subsection (1).
(5) The governing body, by delegating any function, is not divested of
any of its powers, nor is it relieved of any function or duty that it may
have delegated. This rule also applies if the director sub-delegates the
performance of a function in terms of subsection (3).
126. Limitation of liability and limitation on disclosure of information
(1) In this section, "the Commission" means-
(a) the governing body;
(b) a member of the governing body;
(c) the director;
(d) a commissioner;
(e) a staff member of the Commission;
(f) a member of any committee established by the governing body; and
(g) any person with whom the governing body has contracted to do work
for, or in association with whom it performs a function of, the
Commission.
(2) The Commission is not liable for any loss suffered by any person as a
result of any act performed or omitted in good faith in the course of
exercising the functions of the Commission.
(3) The Commission may not disclose to any person or in any court any
information, knowledge or document that it acquired on a confidential
basis or without prejudice in the course of performing its functions
except on the order of a court.
PART B-ACCREDITATION OF AND SUBSIDY TO COUNCILS AND PRIVATE
AGENCIES
127. Accreditation of councils and private agencies
(1) Any council or private agency may apply to the governing body in the
prescribed form for accreditation to perform any of the following
functions-
(a) resolving disputes through conciliation; and
(b) arbitrating disputes that remain unresolved after conciliation,
if this Act requires arbitration.
(2) For the purposes of this section, the reference to disputes must be
interpreted to exclude disputes as contemplated in-
(a) sections 16, 21 and 22;28
(b) section 24(2) to (5);29
(c) section 24(6) and (7) and section 26(11);30
(d) section 45;31
(e) section 61(5) to (8) ;32
(f) section 62;33
28. These sections deal with disputes about organisational rights.
29. These subsections deal with disputes about collective agreements where
the agreement does not provide for a procedure, the procedure is inoperative or
any party frustrates the resolution of the dispute.
30. These subsections deal with disputes about agency shops and closed
shops.
31. This section deals with disputes about determinations made by the
Minister in respect of proposals made by a statutory council.
32. These subsections deal with disputes about the interpretation or
application of collective agreements of a council whose registration has been
cancelled.
33. This section deals with disputes about the demarcation of sectors and
areas of councils.
(g) section 63 ;34
(h) section 69(8) to (10);35
(i) section 86; 36
(j) section 89;37
(k) section 94.38
(3) The governing body may require further information in support
and, for that purpose, may require the applicant to attend one or
more meetings of the governing body.
(4) The governing body may accredit an applicant to perform any function
for which it seeks accreditation, after considering the application, any further
information provided by the applicant and whether-
(a) the services provided by the applicant meet the Commission's
standards;
(b) the applicant is able to conduct its activities effectively;
(c) the persons appointed by the applicant to perform those functions
will do so in a manner independent of the State, any political party,
trade union,
34. This section deals with disputes about the interpretation or application
of Parts C to IF of Chapter Ill. Part C deals with bargaining
councils, Part D with bargaining councils in the public service,
Part E with statutory councils and Part IF with general provisions
concerning councils.
35. This section concerns disputes about pickets during strikes and lock-outs.
36. This section deals with disputes about proposals that are the subject of
joint decision-making.
37. This section deals with disputes about the disclosure of information to
workplace forums.
38. This section deals with disputes about the interpretation or
application of Chapter V which deals with workplace forums. employer,
employers' organisation, federation of trade unions or federation of
employers' organisations;
(d) the persons appointed by the applicant to perform those functions
will be competent to perform those functions and exercise any
associated powers;
(e) the applicant has an acceptable code of conduct to govern the
persons whom it appoints to perform those functions; the applicant
uses acceptable disciplinary procedures to ensure that each person it
appoints to perform those functions will subscribe, and adhere, to
the code of conduct;
(g) the applicant promotes a service that is broadly representative
of South African society; and
(h) if the applicant charges a fee to the users of its services, the
fee is reasonable.
(5) If the governing body decides-
(a) to accredit the applicant, the governing body must-
(i) enter the applicant's name in the register of
accredited councils or the register of accredited agencies;
(ii) issue a certificate of accreditation in the
applicant's name stating the period and other terms of
accreditation;
(iii) send the certificate to the applicant; and
(iv) as soon as practicable after the decision, publish the
certificate of accreditation in the Government Gazette; or
(b) not to accredit the applicant, the governing body must advise the
unsuccessful applicant in writing of its decision.
(6) The terms of accreditation must state the extent to which the
provisions of each section in Part C of this Chapter apply to the
accredited council or accredited agency.
(7) (a) Any person may inspect the registers and certificates of
accredited councils and accredited agencies kept in the Commission's
offices.
(b) The Commission must provide a certified copy of, or extract from,
any of the documents referred to in paragraph (a) to any person who
has paid the prescribed fee.
128. General provisions relating to accreditation
(1) (a) An accredited council or accredited agency may charge a fee for
performing any of the functions for which it is accredited in
circumstances in which this Act allows the Commission, or a commissioner,
to charge a fee.
(b) A fee charged in terms of paragraph (a) must be in accordance
with the tariff of fees determined by the Commission.
(2) (a) An accredited council, accredited agency, or any person engaged
by either of them to perform the functions for which it has been
accredited, is not liable for any loss suffered by any person as a result
of any act performed or omitted in good faith in the course of exercising
those functions.
(b) An accredited council, accredited agency, or any person engaged
by either of them to perform the functions for which it has been
accredited, may not disclose to any person or in any court any
information, knowledge or document that it or that person acquired on
a confidential basis or without prejudice in the course of performing
those functions except on the order of a court.
129. Amendment of accreditation
(1) An accredited council or accredited agency may apply to the governing
body in the prescribed form to amend its accreditation.
(2) The governing body must treat the application as an application in
terms of section 127.
130. Withdrawal of accreditation If an accredited council or accredited
agency fails to comply to a material extent with the terms of its
accreditation, the governing body may withdraw its accreditation after
having given reasonable notice of the withdrawal to that council or
accredited agency.
131. Application to renew accreditation
(1) An accredited council or accredited agency may apply to the governing
body in the prescribed form to renew its accreditation either in the
current or in an amended form.
(2) The governing body must treat the application for renewal as an
application in terms of section 127.
132. Subsidy to council or private agency
(1) Any accredited council or accredited agency, or council or private
agency that has applied for accreditation, may apply to the governing
body the prescribed form for a subsidy-
(a) for performing any function for which the council or private
agency is accredited or for which it has applied for accreditation;
and
(b) for training persons to perform those functions.
(2) The governing body may require further information in support of the
application and, for that purpose, may require the applicant to attend
one or more meetings of the governing body.
(3) The governing body may grant a subsidy to the applicant after
considering the application, any further information provided by the
applicant and-
(a) the need for the performance by the applicant of the functions
for which it is accredited;
(b) the extent to which the public uses the applicant to perform the
functions for which it is accredited;
(c) the cost to users for the performance by the applicant of the
functions for which it is accredited;
(d) the reasons for seeking the subsidy;
(e) the amount requested; and the applicant's ability to manage its
financial affairs in accordance with established accounting practice,
principles and procedures.
(4) If the governing body decides-
(a) to grant a subsidy to the applicant, the governing body must-
(i) notify the applicant in writing of the amount, duration
and the terms of the subsidy; and
(ii) as soon as practicable after the decision, publish the
written notice in the Government Gazette; or
(b) not to grant a subsidy to the applicant, the governing body must
advise the unsuccessful applicant in writing of its decision.
(5) A subsidy granted in terms of subsection (4)(a)-
(a) may not be paid to a council or private agency unless it has been
accredited; and
(b) lapses at the end of the Commission's financial year within which
it was granted.
(6) (a) Any person may inspect a written notice referred to in subsection
(4)(a) in the Commission's offices.
(b) The Commission must provide a certified copy of, or extract from,
any written notice referred to in paragraph (a) to any person who has
paid the prescribed fee.
(7) If an accredited council or accredited agency fails to comply to a
material extent with the terms of its subsidy, the governing body may
withdraw the subsidy after having given reasonable notice of the
withdrawal to that council or agency.
(8) (a) An accredited council or accredited agency that has been granted
a subsidy may apply to the governing body in the prescribed form to renew
its subsidy, either in the current or in an amended form and amount.
(b) The governing body must treat the application for renewal as an
application in terms of subsections (1) to (4).
PART C-RESOLUTION OF DISPUTES UNDER AUSPICES OF COMMISSION
133. Resolution of disputes under auspices of Commission
(1) The Commission must appoint a commissioner to attempt to resolve
through conciliation-
(a) any dispute referred to it in terms of section 134; and
(b) any other dispute that has been referred to it in terms of this
Act.
(2) If a dispute remains unresolved after conciliation, the Commission
must arbitrate the dispute if- I
(a) this Act requires that dispute to be arbitrated and any party to
the dispute has requested that the dispute be resolved through
arbitration; or
(b) all the parties to the dispute in respect of which the Labour
Court has jurisdiction consent to arbitration under the auspices of
the Commission.
134. Disputes about matters of mutual interest
(1) Any party to a dispute about a matter of mutual interest may refer
the dispute in writing to the Commission, if the parties to the dispute
are-
(a) on the one side-
(i) one or more trade unions;
(ii) one or more employees; or 2 one or more trade unions
and one or more employees; and
(b) on the other side(i) one or more employers' organisations;
(ii) one or more employers; or
(iii) one or more employers' organisations and one or more
employers.
(2) The party who refers the dispute to the Commission must satisfy it
that a copy of the referral has been served on all the other parties to
the dispute.
135. Resolution of disputes through conciliation (1) When a dispute has
been referred to the Commission, the Commission must appoint a
commissioner to attempt to resolve it through conciliation.
(2) The appointed commissioner must attempt to resolve the dispute
through conciliation within 30 days of the date the Commission received
the referral:
However the parties may agree to extend the 30-day period.
(3) The commissioner must determine a process to attempt to resolve the
dispute, which may include(a) mediating the dispute;
(b) conducting a fact-finding exercise; and
(c) making a recommendation to the parties, which may be in the form
of an advisory arbitration award.
(4) In the conciliation proceedings a party to the dispute may appear in
person or be represented only by a co-employee or by a member, an
office-bearer or official of that party's trade union or employers'
organisation and, if the party is a juristic person, by a director or an
employee.
(5) At the end of the 30-day period or any further period agreed between
the parties-
(a) the commissioner must issue a certificate stating whether or not
the dispute has been resolved;
(b) the Commission must serve a copy of that certificate on each
party to the dispute or the person who represented a party in the
conciliation proceedings; and
(c) the commissioner must file the original of that certificate with
the Commission.
(6) (a) If a dispute about a matter of mutual interest has been referred
to the Commission and the parties to the dispute are engaged in an
essential service then, despite subsection (1), the parties may consent
within seven days of the date the Commission received the referral-
(i) to the appointment of a specific commissioner by the
Commission to attempt to resolve the dispute through
conciliation; and
(ii) to that commissioner's terms of reference.
(b) If the parties do not consent to either of those matters within
the seven-day period, the Commission must as soon as possible-
(i) appoint a commissioner to attempt to resolve the
dispute; and
(ii) determine the commissioner's terms of reference.
136. Appointment of commissioner to resolve dispute through arbitration
(1) If this Act requires a dispute to be resolved through arbitration,
the Commission must appoint a commissioner to arbitrate that dispute, if-
(a) a commissioner has issued a certificate stating that the dispute
remains unresolved; and
(b) any party to the dispute has requested that the dispute be
resolved through arbitration.
(2) A commissioner appointed in terms of subsection (1) may be the same
commissioner who attempted to resolve the dispute through conciliation.
(3) Any party to the dispute, who objects to the arbitration being
conducted by the same commissioner who conciliated the dispute, may file
an objection with the Commission and must satisfy the Commission that a
copy of the objection has been served on all the other parties to the
dispute.
(4) When the Commission receives an objection it must appoint another
commissioner to resolve the dispute by arbitration.
(5) (a) The parties to a dispute may request the Commission, in
appointing a commissioner in terms of subsection (1) or (4), to take into
account their stated preference, to the extent that this is reasonably
practicable in all the circumstances.
(b) The stated preference contemplated in paragraph (a) must-
(i) be in writing;
(ii) list no more than five commissioners;
(iii) state that the request is made with the agreement of
all the parties to the dispute; and
(iv) be submitted within 48 hours of the date of the
certificate referred to in subsection (1)(a).
(6) If the circumstances contemplated in subsection (1) exist and
the parties to the dispute are engaged in an essential service, then the
provisions of section 135 (6) apply, read with the changes required by
the context, to the appointment of a commissioner to resolve the dispute
through arbitration.
137. Appointment of senior commissioner to resolve dispute through
arbitration
(1) In the circumstances contemplated in section 136(l), any party to the
dispute may apply to the director to appoint a senior commissioner to
attempt to resolve the dispute through arbitration.
(2) When considering whether the dispute should be referred to a senior
commissioner, the director must hear the party making the application,
any other party to the dispute and the commissioner who conciliated the
dispute.
(3) The director may appoint a senior commissioner to resolve the dispute
through arbitration, after having considered-
(a) the nature of the questions of law raised by the dispute;
(b) the complexity of the dispute;
(c) whether there are conflicting arbitration awards that are
relevant to the dispute; and
(d) the public interest.
(4) The director must notify the parties to the dispute of the decision
and-
(a) if the application has been granted, appoint a senior
commissioner to arbitrate the dispute; or
(b) if the application has been refused, confirm the appointment of
the commissioner initially appointed.
(5) The director's decision is final and binding.
(6) No person may apply to any court of law to review the director's
decision until the dispute has been arbitrated.
138. General provisions for arbitration proceedings
(1) The commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine the dispute
fairly and quickly, but must deal with the substantial merits of the
dispute with the minimum of legal formalities.
(2) Subject to the discretion of the commissioner as to the appropriate
form of the proceedings, a party to the dispute may give evidence, call
witnesses, question the witnesses of any other party, and address
concluding arguments to the commissioner.
(3) If all the parties consent, the commissioner may suspend the
arbitration proceedings and attempt to resolve the dispute through
conciliation.
(4) In any arbitration proceedings, a party to the dispute may appear in
person or be represented only by a legal practitioner, a co-employee or
by a member, office-bearer or official of that party's trade union or
employers' organisation and, if the party is a person, by a director or
an employee.
If a party to the dispute fails to appear in person or to be represented
at the arbitration proceedings, and that party-
(a) had referred the dispute to the Commission, the commissioner may
dismiss the matter; or
(b) had not referred the dispute to the Commission, the commissioner
may-
(i) continue with the arbitration proceedings in the
absence of that party; or
(ii) adjourn the arbitration proceedings to a later date.
(6) The commissioner must take into account any code of good practice
that has been issued by NEDLAC or guidelines published by the Commission
in accordance with the provisions of this Act that is relevant to a
matter being considered in the arbitration proceedings.
(7) Within 14 days of the conclusion of the arbitration proceedings-
(a) the commissioner must issue an arbitration award with brief
reasons, signed by that commissioner;
(b) the Commission must serve a copy of that award on each party to
the dispute or the person who represented a party in the arbitration
proceedings; and
(c) the Commission must file the original of that award with the
registrar of the Labour Court.
(8) On good cause shown, the director may extend the period within which
the arbitration award and the reasons are to be served and filed.
(9) The commissioner may make any appropriate arbitration award in terms
of this Act, including, but not limited to, an award-
(a) that gives effect to any collective agreement;
(b) that gives effect to the provisions and primary objects of this
Act;
(c) that includes, or is in the form of, a declaratory order.
(10) The commissioner may not include an order for costs in the
arbitration award unless a party, or the person who represented that
party in the arbitration proceedings, acted in a frivolous or vexatious
manner-
(a) by proceeding with or defending the dispute in the
arbitration proceedings;
(b) in its conduct during the arbitration proceedings.
139. Special provisions for arbitrating disputes in essential services
(1) If a dispute about a matter of mutual interest proceeds to
arbitration and any party is engaged in an essential service-
(a) within 30 days of the date of the certificate referred to in
section 136(l)(a), or within a further period agreed between the
parties to the dispute, the commissioner must complete the
arbitration and issue an arbitration award with brief reasons signed
by that commissioner;
(b) the Commission must serve a copy of that award on each party to
the dispute or the person who represented a party in the arbitration
proceedings; and
(c) the Commission must file the original of that award with the
registrar of the Labour Court.
(2) The commissioner may not include an order for costs in the
arbitration award unless a party, or the person who represented the party
in the arbitration proceedings, acted in a frivolous or vexatious manner
in its conduct during the arbitration proceedings.
140. Special provisions for arbitrations about dismissals for reasons
related to conduct or capacity
(1) If the dispute being arbitrated is about the fairness of a dismissal
and a party has alleged that the reason for the dismissal relates to the
employee's conduct or capacity, the parties, despite section 138 (4), are
not entitled to be represented by a legal practitioner in the arbitration
proceedings unless-
(a) the commissioner and all the other parties consent; or
(b) the commissioner concludes that it is unreasonable to expect a
party to deal with the dispute without legal representation, after
considering-
(i) the nature of the questions of law raised by the
dispute;
(ii) the complexity of the dispute;
(iii) the public interest; and
(iv) the comparative ability of the opposing parties or
their representatives to deal with the arbitration of the
dispute.
(2) If, in terms of section 194(l), the commissioner finds that the
dismissal is procedurally unfair, the commissioner may charge the
employer an arbitration fee.
141. Resolution of disputes if parties consent to arbitration under auspices of
Commission
(1) If a dispute remains unresolved after conciliation, the Commission
must arbitrate the dispute if a party to the dispute would otherwise be
entitled to refer the dispute to the Labour Court for adjudication and,
instead, all the parties agree to arbitration under the auspices of the
Commission.
(2) The arbitration proceedings must be conducted in accordance with the
provisions of sections 136, 137 and 138, read with the changes required
by the context.
(3) The arbitration agreement contemplated in subsection (1) may be
terminated only with the consent of all the parties to that agreement,
unless the agreement itself provides otherwise.
(4) Any party to the arbitration agreement may apply to the Labour Court
at any time to vary or set aside that agreement, which the Court may do
on good cause.
(5) (a) If any party to an arbitration agreement commences proceedings in
the Labour Court against any other party to that agreement about any
matter that the parties agreed to refer to arbitration, any party to
those proceedings may ask the Court-
(i) to stay those proceedings and refer the dispute to
arbitration; or
(ii) with the consent of the parties and where it is
expedient to do so, continue with the proceedings with the
Court acting as arbitrator, in which case the Court may
only make an order corresponding to the award that an
arbitrator could have made.
(b) If the Court is satisfied that there is sufficient reason for the
dispute to be referred to arbitration in accordance with the
arbitration agreement, the Court may stay those proceedings, on any
conditions.
(6) If the provisions of subsection (1)(a) apply, the commissioner may
make an award that the Labour Court could have made.
142. Powers of commissioner when attempting to resolve disputes
(1) A commissioner who has been appointed to attempt to resolve a dispute
may-
(a) subpoena for questioning any person who may be able to give
information or whose presence at the conciliation or arbitration
proceedings may help to resolve the dispute;
(b) subpoena any person who is believed to have possession or control
of any book, document or object relevant to the resolution of the
dispute, to appear before the commissioner to be questioned or to
produce that book, document or object;
(c) call, and if necessary subpoena, any expert to appear before the
commissioner to give evidence relevant to the resolution of the
dispute;
(d) call any person present at the conciliation or arbitration
proceedings or who was or could have been subpoenaed for any purpose
set out in this section, to be questioned about any matter relevant
to the dispute;
(e) administer an oath or accept an affirmation from any person
called to give evidence or be questioned; at any reasonable time, but
only after obtaining the necessary written authorisation-
(i) enter and inspect any premises on or in which any book,
document or object, relevant to the resolution of the
dispute is to be found or is suspected on reasonable
grounds of being found there; and
(ii) examine, demand the production of, and seize any book,
document or object that is on or in those premises and that
is relevant to the resolution of the dispute; and
(g) inspect, and retain for a reasonable period, any of the books,
documents or objects that have been produced to, or seized by, the
Commission.
(2) A subpoena issued for any purpose in terms of subsection (1) must be
signed by the director and must-
(a) specifically require the person named in it to appear before the
commissioner;
(b) sufficiently identify the book, document or object to be
produced; and
(c) state the date, time and place at which the person is to appear.
(3) The written authorisation referred to in subsection (1)(f)-
(a) if it relates to residential premises, may be given only by a
judge of the Labour Court and with due regard to section 13 of the
Constitution, and then only on the application of the commissioner
setting out under oath or affirmation the following information-
(i) the nature of the dispute;
(ii) the relevance of any book, document or object to the
resolution of the dispute;
(iii) the presence of any book, document or object on the
premises; and
(iv) the need to enter, inspect or seize the book, document
or object; and
(b) in all other cases, may be given by the director.
(4) The owner or occupier of any premises that a commissioner is
authorised to enter and inspect, and every person employed by that owner
or occupier, must provide any facilities that a commissioner requires to
enter those premises and to carry out the inspection or seizure.
(5) The commissioner must issue a receipt for any book, document or
object seized in terms of subsection (4).
(6) The law relating to privilege, as it applies to a witness subpoenaed
to give evidence or to produce any book, document or object before a
court of law, applies equally to the questioning of any person or the
production or seizure of any book, document or object in terms of this
section.
(7) The Commission must pay the prescribed witness fee to each person who
appears before a commissioner in response to a subpoena issued by the
commissioner.
(8) A person commits contempt of the Commission-
(a) if, after having been subpoenaed to appear before the
commissioner, the person without good cause does not attend at the
time and place stated in the subpoena;
(b) if, after having appeared in response to a subpoena, that person
fails to remain in attendance until excused by the commissioner;
(c) by refusing to take the oath or to make an affirmation as a
witness when a commissioner so requires;
(d) by refusing to answer any question fully and to the best of that
person's knowledge and belief subject to subsection (6);
(e) if the person, without good cause, fails to produce any book,
document or object specified in a subpoena to a commissioner; if the
person willfully hinders a commissioner in performing any function
conferred by or in terms of this Act;
(g) if the person insults, disparages or belittles a commissioner, or
prejudices or improperly influences the proceedings or improperly
anticipates the commissioner's award;
(h) by willfully interrupting the conciliation or arbitration
proceedings or misbehaving in any other manner during those
proceedings;
(i) by doing anything ease in relation to the Commission which, if
done in relation to a court of law, would have been contempt of
court.
(9) The Commission may refer any contempt to the Labour Court for an
appropriate order.
143. Effect of arbitration awards
(1) An arbitration award issued by a commissioner is final and binding
and may be made an order of the Labour Court in terms of section
158(1)(c), unless it is an advisory arbitration award.
(2) If an arbitration award orders a party to pay a sum of money, the
amount earns interest from the date of the award at the same rate as the
rate prescribed from time to time in respect of a judgment debt in terms
of section 2 of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of
1975), unless the award provides otherwise.
144. Variation and rescission of arbitration awards Any commissioner who
has issued an arbitration award, acting of the commissioner's own
accord or, on the application of any affected party, may vary or
rescind an arbitration award-
(a) erroneously sought or erroneously made in the absence of any
party affected by that award;
(b) in which there is an ambiguity, or an obvious error or omission,
but only to the extent of that ambiguity, error or omission; or
(c) granted as a result of a mistake common to the parties to the
proceedings.
145. Review of arbitration awards
(1) Any party to a dispute who alleges a defect in any arbitration
proceedings under the auspices of the Commission may apply to the Labour
Court for an order setting aside the arbitration award-
(a) within six weeks of the date that the award was served on the
applicant, unless the alleged defect involves corruption; or
(b) if the alleged defect involves corruption, within six weeks of
the date that the applicant discovers the corruption.
(2) A defect referred to in subsection (1), means-
(a) that the commissioner-
(i) committed misconduct in relation to the duties of the
commissioner as an arbitrator;
(ii) committed a gross irregularity in the conduct of the
arbitration proceedings; or
(iii) exceeded the commissioner's powers; or
(b) that an award has been improperly obtained.
(3) The Labour Court may stay the enforcement of the award pending its
decision.
(4) If the award is set aside, the Labour Court may-
(a) determine the dispute in the manner it considers appropriate; or
(b) make any order it considers appropriate about the procedures to
be followed to determine the dispute.
146. Exclusion of Arbitration Act The Arbitration Act, 1965 (Act No. 42
of 1965), does not apply to any arbitration under the auspices of the
Commission.
147. Performance of dispute resolution functions by Commission in
exceptional circumstances
(1) (a) If at any stage after a dispute has been referred to the
Commission, it becomes apparent that the dispute is about the
interpretation or application of a collective agreement, the Commission
may-
(i) refer the dispute for resolution in terms of the
procedures provided for in that collective agreement; or
(ii) appoint a commissioner or, if one has been appointed,
confirm the appointment of the commissioner, to resolve the
dispute in terms of this Act.
(b) The Commission may charge the parties to a collective agreement a
fee for performing the dispute resolution functions if-
(i) their collective agreement does not provide a procedure
as required by section 24(1); 39 or
(ii) the procedure provided in the collective agreement is
not operative.
(c) The Commission may charge a party to a collective agreement a fee
if that party has frustrated the resolution of the dispute.
(2) (a) If at any stage after a dispute has been referred to the
Commission, it becomes apparent that the parties to the dispute are
parties to a council, the Commission may-
(i) refer the dispute to the council for resolution; or
(ii) appoint a commissioner or, if one has been appointed,
confirm the appointment of the commissioner, to resolve the
dispute in terms of this Act.
(b) The Commission may charge the parties to a council a fee for
performing the dispute resolution functions if the council's dispute
resolution procedures are not operative.
(3) (a) If at any stage after a dispute has been referred to the
Commission, it becomes apparent that the parties to the dispute fall
within the registered scope of a council and that one or more parties to
the dispute are not parties to the council, the Commission may-
(i) refer the dispute to the council for resolution; or
39. Section 24(l) states that every collective agreement must provide
for a procedure to resolve any dispute about the interpretation or
application of the collective agreement.
(ii) appoint a commissioner or, if one has been appointed,
confirm the appointment of the commissioner, to resolve the
dispute in terms of this Act.
(b) The Commission may charge the parties to a council a fee for
performing the dispute resolution functions if the council's dispute
resolution procedures are not operative.
(4) (a) If a dispute has been referred to the Commission and not all the
parties to the dispute fall within the registered scope of a council or
fall within the registered scope of two or more councils, the Commission
must resolve the dispute in terms of this Act.
(b) In the circumstances contemplated in paragraph (a), the
Commission has exclusive Jurisdiction to resolve that dispute.
(5) (a) If at any stage after a dispute has been referred to the
Commission, it becomes apparent that the dispute ought to have been
referred to an accredited agency in terms of a collective agreement
between the parties to the dispute, the Commission may-
(i) refer the dispute to the accredited agency for
resolution; or
(ii) appoint a commissioner to resolve the dispute in terms
of this Act.
(b) The Commission may-
(i) charge the accredited agency a fee for performing the
dispute resolution functions if the accredited agency's
dispute resolution procedures are not operative; and
(ii) review the continued accreditation of that agency.
(6) (a) If at any stage after a dispute has been referred to the
Commission, it becomes apparent that the dispute ought to have been
resolved through private dispute resolution in terms of a private
agreement between the parties to the dispute, the Commission may-
(i) refer the dispute to the appropriate person or body for
resolution through private dispute resolution procedures;
or
(ii) appoint a commissioner to resolve the dispute in terms
of this Act.
(7) Where the Commission refers the dispute in terms of this section to a
person or body other than a commissioner the date of the Commission's
initial receipt of the dispute will be deemed to be the date on which the
Commission referred the dispute elsewhere.
148. Commission may provide advice
(1) If asked, the Commission may advise any party to a dispute in terms
of this Act about the procedure to be followed for the resolution of that
dispute.
(2) In response to a request for advice, the Commission may provide the
advice that it considers appropriate.
149. Commission may provide assistance
(1) If asked, the Commission may assist an employee or employer who is a
party to a dispute (a) together with the Legal Aid Bard to arrange
for advice or assistance by a legal practitioner;
(b) together with the Legal Aid Board, to arrange for a legal
practitioner-
(i) to attempt to avoid or settle any proceedings being
instituted against an employee or employer in terms of this
Act;
(ii) to attempt to settle any proceedings instituted
against an employee or employer in terms of this Act;
(iii) to institute on behalf of the employee or employer
any proceedings in terms of this Act;
(iv) to defend or oppose on behalf of the employee or
employer any proceedings instituted against the employee or
employer in terms of this Act; or
(c) by providing any other form of assistance that the Commission
considers appropriate.
(2) The Commission may provide the assistance referred to in subsection
(1) after having considered-
(a) the nature of the questions of law raised by the dispute;
(b) the complexity of the dispute;
(c) whether there are conflicting arbitration awards that are
relevant to the dispute; and
40. The Legal Aid Board is established in terms of section 2 of the
Legal Aid Act, 1969 (Act No. 22 of 1969).
(d) the public interest.
(3) As soon as practicable after having received a request in terms of
subsection (1), but not later than 30 days of the date the Commission
received the request, the Commission must advise the applicant in writing
whether or not it will assist the applicant and, if so, the form that the
assistance will take.
150. Commission may offer to resolve dispute through conciliation
(1) If the Commission is aware of a dispute that has not been referred to
it, and if resolution of the dispute would be in the public interest, the
Commission may offer to appoint a commissioner to attempt to resolve the
dispute through conciliation.
(2) The Commission may appoint a commissioner only if all the parties to
the dispute consent to that appointment.
PART D - LABOUR COURT
151. Establishment and status of Labour Court
(1) The Labour Court is hereby established as a court of law.
(2) The Labour Court is a superior court that has authority, inherent
powers and standing, in relation to matters under its jurisdiction, equal
to that which a court of a provincial division of the Supreme Court has
in relation to the matters under its jurisdiction.
(3) The Labour Court is a court of record.
152. Composition of Labour Court
(1) The Labour Court consists of-
(a) a Judge President;
(b) a Deputy Judge President; and
(c) as many judges as the President may consider necessary, acting on
the advice of NEDLAC and in consultation with the Minister of Justice
and the Judge President of the Labour Court.
(2) The Labour Court is constituted before a single judge.
(3) The Labour Court may sit in as many separate courts as the available
judges may allow.
153. Appointment of judges of Labour Court
(1) (a) The President, acting on the advice of NEDLAC and the Judicial
Service Commission as defined in section 105 of the Constitution, and
after consultation with the Minister of Justice must appoint a Judge
President of the Labour Court.
(b) The President, acting on the advice of NEDLAC and the Judicial
Service Commission as defined in section 105 of the Constitution, and
after consultation with the Minister of Justice and the Judge
President of the Labour Court must appoint the Deputy Judge President
of the Labour Court.
(2) The Judge President and the Deputy Judge President of the Labour
Court-
(a) must be judges of the Supreme Court; and
(b) must have knowledge, experience and expertise in labour law.
(3) The Deputy Judge President must act as Judge President of the Labour
Court whenever the Judge President is unable to do so for any reason.
(4) The President, acting on the advice of NEDLAC and the Judicial
Service Commission as defined in section 105 of the Constitution, and
after consultation with the Minister of Justice and the Judge President
of the Labour Court may appoint one or more persons who meet the
requirements of subsection (6) as judges of the Labour Court.
(5) The President, acting on the advice of NEDLAC and the Judicial
Service Commission as defined in section 105 of the Constitution, and
after consultation with the Minister of Justice and the Judge President
of the Labour Court may appoint one or more persons who meet the
requirements of subsection (6) to serve as acting judges of the Labour
Court.
(6) A judge of the Labour Court must-
(a) (i) be a judge of the Supreme Court; or
(ii) be a person who has been a legal practitioner for a cumulative
period of at least 10 years before that person's appointment; and
(b) have knowledge, experience and expertise in labour law.
154. Tenure, remuneration and terms and conditions of appointment of Labour
Court judges
(1) A judge of the Labour Court must be appointed for a period determined
by the President at the time of appointment.
(2) A judge of the Labour Court may resign by giving written in
the office to the President.
(3) (a) Any judge of the Labour Court who is also a judge of the Supreme
Court holds office until-
(i) the judge's period of office in the Labour Court ends;
(ii) the judge's resignation takes effect;
(iii) the judge is removed from office;
(iv) the judge ceases to be a judge of the Supreme Court;
or
(v) the judge dies.
(b) Any other judge of the Labour Court holds office until-
(i) the judge's period of office ends;
(ii) the judge's resignation takes effect;
(iii) the judge is removed from office; or
(iv) the judge dies.
(4) Neither the tenure of office nor the remuneration and terms and
conditions of appointment applicable to a judge of the Supreme Court in
terms of the Judges' Remuneration and Conditions of Employment Act, 1989
(Act No. 88 of 1989), is affected by that judge's appointment and
concurrent tenure of office as a judge of the Labour Court.
(5) (a) The remuneration payable to a judge of the Labour Court appointed
in terms of section 153(6) must be the same as that payable to a judge of
the Supreme Court.
(b) The terms and conditions of appointment of a judge of the Labour
Court refer-red to in paragraph (a) must be similar to those of a
judge of the Supreme Court.
(6) A person who has been appointed a judge of the Labour Court and who
is not a judge of the Supreme Court may perform the functions of a judge
of the Labour Court only after having taken an oath or made a solemn
affirmation in the prescribed form before the Judge President of the
Labour Court.
(7) (a) A judge of the Labour Court who is also a judge of the Supreme
Court-
(i) may be removed from the office of judge of the Labour
Court only if that person has first been removed from the
office of a judge of the Supreme Court; and
(ii) upon having been removed as judge of the Supreme Court
must be removed from office as a judge of the Labour Court.
(b) The President, acting on the advice of NEDLAC, and in
consultation with the Minister of Justice and the Judge President of
the Labour Court, may remove any other judge of the Labour Court from
office for misbehaviour or incapacity.
155. Officers of Labour Court
(1) The Minister of Justice, subject to the laws governing the public
service, must appoint the following officers of the Labour Court-
(a) a person who has experience and expertise in labour law and
administration to be the registrar of the Labour Court; and
(b) one or more deputy registrars and so many other officers of the
Labour Court as the administration of justice requires.
(2) (a) The officers of the Labour Court, under the supervision and
control of the registrar of that Court must perform the administrative
functions of the Labour Court.
(b) A deputy registrar of the Labour Court may perform any of the
functions of the registrar of that Court that have been delegated
generally or specifically to the deputy registrar.
(3) The deputy registrar of the Labour Court or, if there is more than
one, the most senior will act as registrar of the Labour Court whenever-
(a) the registrar is absent from the Republic or from duty, or for
any reason is temporarily unable to perform the functions of
registrar; or
(b) the office of registrar is vacant.
(4) The officers of the Labour Court must provide secretarial and
administrative assistance to the Rules Board for Labour Courts.
156. Area of jurisdiction and seat of Labour Court
(1) The Labour Court has jurisdiction 'in all the provinces of the
Republic.
(2) The Minister of Justice, acting on the advice of NEDLAC, must
determine the seat of the Labour Court.
(3) The functions of the Labour Court may be performed at any place in
the Republic.
157. Jurisdiction of Labour Court
(1) Subject to the Constitution and section 173, and except where this
Act provides otherwise, the Labour Court has exclusive jurisdiction in
respect of all matters that elsewhere in terms of this Act or in terms of
any other law are to be determined by the Labour Court.
(2) The Labour Court has concurrent jurisdiction with the Supreme Court-
(a) In respect of any alleged violation or threatened violation, by
the State in its capacity as employer of any fundamental right
entrenched in Chapter 3 of the Constitution; and
(b) in respect of any dispute over the constitutionally of any
executive or administrative act or conduct, or any threatened
executive or administrative act or conduct, by the State in its
capacity as employer.
(3) Any reference to the court in the Arbitration Act, 1965 (Act No. 42
of 1965), must be interpreted as referring to the Labour Court when an
arbitration is conducted under that Act in respect of any dispute that
may be referred to arbitration in terms of this Act.
(4) (a) The Labour Court may refuse to determine any dispute, other than
an appeal or review before the Court, if the Court is not satisfied that
an attempt has been made to resolve the dispute through conciliation.
(b) A certificate issued by a commissioner or a council stating that
a dispute remains unresolved is sufficient proof that an attempt has
been made to resolve that dispute through conciliation.
(5) Except as provided in section 158(2), the Labour Court does not have
jurisdiction to adjudicate an unresolved dispute if this Act requires the
dispute to be resolved through arbitration.
158. Powers of Labour Court
(1) The Labour Court may-
(a) make any appropriate order, including
(i) the grant of urgent interim relief;
(ii) an interdict;
(iii) an order directing the performance of any particular
act which order, when implemented, will remedy a wrong and
give effect to the primary objects of this Act;
(iv) a declaratory order;
(v) an award of compensation in any circumstances
contemplated in this Act;
(vi) an award of damages in any circumstances contemplated
in this Act; and
(vii) an order for costs;
(b) order compliance with any provision of this Act;
(c) make any arbitration award or any settlement agreement, other
than a collective agreement, an order of the Court;
(d) request the Commission to conduct an investigation to assist the
Court and to submit a report to the Court;
(e) determine a dispute between a registered trade union, a
registered employers' organisation, and one of its members about any
alleged non-compliance with the constitution of that trade union or
employers' organisation;
(f) subject to the provisions of this Act, condone the late filing of
any document with, or the late referral of any dispute to, the Court;
(g) despite section 145, review the performance or purported
performance of any function provided for in this Act or any act or
omission of any person or body in terms of this Act on any grounds
that are permissible in law;
(h) review any decision taken or any act performed by the State in
its capacity as employer, on such grounds as are permissible in law;
(i) hear and determine any appeal in terms of section 35 of the
Occupational Health and Safety Act, 1993 (Act No. 85 of 1993); and
(j) deal with all matters necessary or incidental to performing its
functions in terms of this Act or any other law.
(2) If at any stage after a dispute has been referred to the Labour
Court, it becomes apparent that the dispute ought to have been referred
to arbitration, the Court may-
(a) stay the proceedings and refer the dispute to arbitration; or
(b) with the consent of the parties and if it is expedient to do so,
continue with the proceedings with the Court sitting as an
arbitrator, in which case the Court may only make any order that a
commissioner or arbitrator would have been entitled to make.
(3) The reference to "arbitration" in subsection (2) must be interpreted
to include arbitration-
(a) under the auspices of the Commission;
(b) under the auspices of an accredited council;
(c) under the auspices of an accredited agency;
(d) in accordance with a private dispute resolution procedure; or
(e) if the dispute is about the interpretation or application of a
collective agreement.
(4) (a) The Labour Court, on its own accord or, at the request of any
party to the proceedings before it may reserve for the decision of the
Labour Appeal Court any question of law that arises in those proceedings.
(b) A question may be reserved only if it is decisive for the proper
adjudication of the dispute.
(c) Pending the decision of the Labour Appeal Court on any question
of law reserved in terms of paragraph (a), the Labour Court may make
any interim order.
159. Rules Board for Labour Courts and rules for Labour Court
(1) The Rules Board for Labour Courts is hereby established.
(2) The Board consists of-
(a) the Judge President of the Labour Court, who is the chairperson;
(b) the Deputy Judge President of the Labour Court; and
(c) the following persons, to be appointed for a period of three
years by the Minister of Justice, acting on the advice of NEDLAC-
(i) a practising advocate with knowledge, experience and
expertise in labour law;
(ii) a practising attorney with knowledge, experience and
expertise in labour law;
(iii) a person who represents the interests of employees;
(iv) a person who represents the interests of employers;
and
(v) a person who represents the interests of the State.
(3) The Board may make rules to regulate the conduct of proceedings in
the Labour Court, including, but not limited to-
(a) the process by which proceedings are brought before the Court,
and the form and content of that process;
(b) the period and process for noting appeals;
(c) the taxation of bills of costs;
(d) after consulting with the Minister of Finance, the fees payable
and the costs and expenses allowable in respect of the service or
execution of any process of the Labour Court, and the tariff of costs
and expenses that may be allowed in respect of that service or
execution; and
(e) all other matters incidental to performing the functions of the
Court, including any matters not expressly mentioned in this
subsection that are similar to matters about which the Rules Board
for Courts of Law may make rules in terms of section 8 of the Rules
Board for Courts of Law Act, 1985 (Act No. 107 of 1985).
(4) The Board may alter or repeal any rule that it makes.
(5) Five members of the Board are a quorum at any meeting of the Board.
(6) The Board must publish any rules that it makes, alters or repeals in
the Government Gazette.
160. Proceedings of Labour Court to be carried on in open court
(1) The proceedings in the Labour Court must be carried on in open court.
(2) Despite subsection (1), the Labour Court may exclude the members of
the general public, or specific persons, or categories of persons from
the proceedings in any case where a court of a provincial division of the
Supreme Court could have done so.
161. Representation before Labour Court In any proceedings before the
Labour Court, a party to the proceedings may appear in person or be
represented only by a legal practitioner, a co-employee or by a member,
an office-bearer or official of that party's trade union or employers'
organisation and, if the party is a juristic person, by a director or an
employee.
162. Costs
(1) The Labour Court may make an order for the payment of costs,
according to the requirements of the law and fairness.
(2) When deciding whether or not to order the payment of costs, the
Labour Court may take into account-
(a) whether the matter referred to the Court ought to have been
referred to arbitration in terms of this Act and, if so, the extra
costs incurred in referring the matter to the Court; and
(b) the conduct of the parties-
(i) in proceeding with or defending the matter before the
Court; and
(ii) during the proceedings before the Court.
(3) The Labour Court may order costs against a party to the dispute or
against any person who represented that party in those proceedings before
the Court.
163. Service and enforcement of orders of Labour Court Any decision, judgment
or order of the Labour Court may be served and executed as if it were a
decision, judgment or order of the Supreme Court.
164. Seal of Labour Court
(1) The Labour Court for use as occasion may require will have an
official seal of a design prescribed by the President by proclamation in
the Government Gazette.
(2) The registrar of the Labour Court must keep custody of the official
seal of the Labour Court.
165. Variation and rescission of orders of Labour Court The Labour Court,
acting of its own accord or on the application of any affected party
may vary or rescind a decision, judgment or order(a) erroneously
sought or erroneously granted in the absence of any party affected
by that judgment or order;
(b) in which there is an ambiguity, or an obvious error or omission,
but only to the extent of that ambiguity, error or omission; or
(c) granted as a result of a mistake common to the parties to the
proceedings.
166. Appeals against judgment or order of Labour Court
(1) Any party to any proceedings before the Labour Court may apply to the
Labour Court for leave to appeal to the Labour Appeal Court against any
final judgment or final order of the Labour Court.
(2) If the application for leave to appeal is refused, the applicant may
petition the Labour Appeal Court for leave to appeal.
(3) Leave to appeal may be granted subject to any conditions that the
Court concerned may determine.
(4) Subject to the Constitution and despite any other law, an appeal
against any final judgment or final order of the Labour Court in any
matter in respect of which the Labour Court has exclusive jurisdiction
may be brought only to the Labour Appeal Court.
PART E - LABOUR APPEAL COURT
167. Establishment and status of Labour Appeal Court
(1) The Labour Appeal Court is hereby established as a court of law and
equity.
(2) The Labour Appeal Court is the final court of appeal in respect of
all judgments and orders made by the Labour Court in respect of the
matters within its exclusive jurisdiction.
(3) The Labour Appeal Court is a superior court that has authority,
inherent powers and standing, in relation to matters under its equal to
that which the Appellate Division of the Supreme Court has in relation to
matters under its jurisdiction.
(4) The Labour Appeal Court is a court of record.
168. Composition of Labour Appeal Court
(1) The Labour Appeal Court consists of-
(a) the Judge President of the Labour Court, who by virtue of that
office is Judge President of the Labour Appeal Court;
(b) the Deputy Judge President, who by virtue of that office is
Deputy Judge President of the Labour Appeal Court; and
(c) three other judges of the Supreme Court.
(2) The Labour Appeal Court is constituted before any three judges whom
the Judge President designates from the panel of judges contemplated in
subsection (1).
(3) No judge of the Labour Appeal Court may sit in the hearing of an
appeal against a judgment or an order given in a case that was heard
before that judge.
169. Appointment of judges of Labour Appeal Court
The President, acting on the advice of NEDLAC-AC and the Judicial
Service Commission as defined in section 105 of the Constitution,
after consultation with the Minister of Justice and the Judge
President of the Labour Appeal Court, must appoint the three judges
of the Labour Appeal Court referred to in section 168(l)(c).
170. Tenure, remuneration and terms and conditions of appointment of Labour
Appeal Court judges
(1) A judge of the Labour Appeal Court must be appointed for a fixed term
determined by the President at the time of appointment.
(2) A judge of the Labour Appeal Court may resign by giving written
notice to the President.
(3) (a) A judge of the Labour Appeal Court holds office until-
(i) the judge's term of office in the Labour Appeal Court
ends;
(ii) the judge's resignation takes effect;
(iii) the judge is removed from office;
(iv) the judge ceases to be a judge of the Supreme Court;
or
(v) the judge dies.
(b) The Judge President and the Deputy Judge President of the Labour
Appeal Court hold their offices for as long as they hold their
respective offices of Judge President and Deputy Judge President of
the Labour Court.
(4) Neither the tenure of office nor the remuneration and terms and
conditions of appointment applicable to a judge of the Supreme Court in
terms of the Judges' Remuneration and Conditions of Employment Act, 1989
(Act No. 88 of 1989), is affected by that judge's appointment and
concurrent tenure of office as a judge of the Labour Appeal Court.
(5) A judge of the Labour Appeal Court-
(a) may be removed from the office of judge of the Labour Appeal
Court only if that person has first been removed from the office of a
judge of the Supreme Court; and
(b) upon having been removed as judge of the Supreme Court must be
removed from office as a judge of the Labour Appeal Court.
171. Officers of Labour Appeal Court
(1) The registrar of the Labour Court is also the registrar of the Labour
Appeal Court.
(2) Each of the deputy registrars and other officers of the Labour Court
also holds the corresponding office in relation to the Labour Appeal
Court.
(3) (a) The officers of the Labour Appeal Court, under the supervision
and control of the registrar of that Court must perform the
administrative functions of the Labour Appeal Court.
(b) A deputy registrar of the Labour Appeal Court may perform any of
the functions of the registrar of that Court that have been delegated
generally or specifically to the deputy registrar.
(4) The deputy registrar of the Labour Appeal Court or, if there is more
than one, the most senior will act as registrar of the Labour Appeal
Court whenever-
(a) the registrar is absent from the Republic or from duty, or for
any reason is temporarily unable to perform the functions of
registrar; or
(b) the office of registrar is vacant.
172. Area of jurisdiction and seat of Labour Appeal Court
(1) The Labour Appeal Court has jurisdiction in all the provinces of the
Republic.
(2) The seat of the Labour Court is also the seat of the Labour Appeal
Court.
(3) The functions of the Labour Appeal Court may be performed at any
place in the Republic.
173. Jurisdiction of Labour Appeal Court
(1) Subject to the Constitution and despite any other law, the Labour
Appeal Court has exclusive jurisdiction-
(a) to hear and determine all appeals against the final judgments and
the final orders of the Labour Court; and (b) to decide any question
of law reserved in terms of section 158 (4).
(2) If, in any proceedings before the Labour Appeal Court, circumstances
arise such as those contemplated in-
(a) section 102(l) or (2) of the Constitution, the Labour Appeal
Court must act in the manner provided for in that section; or
(b) section 102(8) of the Constitution, the Labour Appeal Court may
act in the manner provided for in that section.
(3) An appeal to the Labour Appeal Court must be noted and prosecuted as
if it were an appeal to the Appellate Division of the Supreme Court in
civil proceedings, except that the appeal must be noted within 21 days
after the date on which leave to appeal has been granted.
(4) A decision to which any two judges of the Labour Appeal Court agree
is the decision of the Court.
174. Powers of Labour Appeal Court on hearing of appeals The Labour
Appeal Court has the power-
(a) on the hearing of an appeal to receive further evidence, either
orally or by deposition before a person appointed by the Labour
Appeal Court, or to remit the case to the Labour Court for further
hearing, with such instructions as regards the taking of further
evidence or otherwise as the Labour Appeal Court considers necessary;
and
(b) to confirm, amend or set aside the judgment or order that is the
subject of the appeal and to give any judgment or make any order that
the circumstances may require.
175. Labour Appeal Court may sit as court of first instance
Despite the provisions of this Part, the Judge President may
direct that any matter before the Labour Court be heard by the
Labour Appeal Court sitting as a court of first instance, in which
case the Labour Appeal Court is entitled to make any order that
the Labour Court would have been entitled to make.
176. Rules for Labour Appeal Court
(1) The Rules Board for Labour Courts established by section 159 may make
rules to regulate the conduct of proceedings in the Labour Appeal Court.
(2) The Board has all the powers referred to in section 159 when it makes
rules for the Labour Appeal Court.
(3) The Board must publish in the Government Gazette any rules that it
makes, alters or repeals.
177. Proceedings of Labour Appeal Court to be carried on in open court
(1) The proceedings in the Labour Appeal Court must be carried on in open
court.
(2) Despite subsection (1), the Labour Appeal Court may exclude the
members of the general public, or specific persons, or categories of
persons from the proceedings in any case where a court of a provincial
division of the Supreme Court could have done so.
178. Representation before Labour Appeal Court
Any person who, in terms of section 161, may appear before the
Labour Court has the right to appear before the Labour Appeal
Court.
179. Costs
(1) The Labour Appeal Court may make an order for the payment of costs,
according to the requirements of the law and fairness.
(2) When deciding whether or not to order the payment of costs, the
Labour Appeal Court may take into account-
(a) whether the matter referred to the Court should have been
referred to arbitration in terms of this Act and, if so, the extra
costs incurred in referring the matter to the Court; and
(b) the conduct of the parties-
(i) in proceeding with or defending the matter before the
Court; and
(ii) during the proceedings before the Court.
(3) The Labour Appeal Court may order costs against a party to the
dispute or against any person who represented that party in those
proceedings before the Court.
180. Service and enforcement of orders Any decision, judgment or order
of the Labour Appeal Court may be served and executed as if it
were a decision, judgment or order of the Supreme Court.
181. Seal of Labour Appeal Court
(1) The Labour Appeal Court for use as the occasion may require will have
an official seal of a design prescribed by the President by proclamation
in the Government Gazette.
(2) The registrar of the Labour Appeal Court must keep custody of the
official seal of the Labour Appeal Court.
182. Judgments of Labour Appeal Court binding on Labour Court
A judgment of the Labour Appeal Court is binding on the Labour Court.
183. Labour Appeal Court final court of appeal
Subject to the Constitution and despite any other law, no appeal
lies against any decision, judgment or order given by the Labour
Appeal Court in respect of-
(a) any appeal in terms of section 173(l)(a);
(b) its decision on any question of law in terms of section
173(l)(b); or
(c) any judgment or order made in terms of section 175.
PART F - GENERAL PROVISIONS APPLICABLE TO COURTS
ESTABLISHED BY THIS ACT
184. General provisions applicable to courts established by this Act
Sections 5,4118,4225,4330,4431,4539,464047 and 4248 of the
Supreme Court Act, 1959 (Act No. 59 of 1959) apply, read with
the changes required by the context, in relation to
the Labour Court, or the Labour Appeal Court, or both, to the
extent that they are not
inconsistent with this Act.
41. Scope and execution of process.
42. Certified copies of court records admissible as evidence.
43. No process to be issued against judge except with consent of court.
44. Manner of securing attendance of witnesses or the production of any
document.
45. Manner in which witness may be dealt with on refusal to give
evidence or produce document.
46. Property not liable to be seized in execution.
47. Offences relating to execution.
48. Witness fees.
CHAPTER VIII UNFAIR DISMISSAL
185. Right not to be unfairly dismissed
Every employee has the right not to be unfairly dismissed.
186. Meaning of dismissal
"Dismissal" means that-
(a) an employer has terminated a contract of employment with or
without notice;
(b) an employee reasonably expected the employer to renew a fixed
term contract of employment on the same or similar terms but the
employer offered to renew it on less favourable terms, or did not
renew it;
(c) an employer refused to allow an employee to resume work after
she-
(i) took maternity leave in terms of any law, collective
agreement or her contract of employment; or
(ii) was absent from work for up to four weeks before the
expected date, and up to eight weeks after the actual date,
of the birth of her child;
(d) an employer who dismissed a number of employees for the same or
similar reasons has offered to re-employ one or more of them but has
refused to re-employ another; or
(e) an employee terminated a contract of employment with or without
notice because the employer made continued employment intolerable for
the employee.
187. Automatically unfair dismissals
(1) A dismissal is automatically unfair if the employer, in dismissing
the employee, acts contrary to section 549 or, if the reason for the
dismissal is-
(a) that the employee participated in or supported, or indicated an
intention to participate in or support, a strike or protest action
that complies with the provisions of Chapter IV;50
(b) that the employee refused, or indicated an intention to refuse,
to do any work normally done by an employee who at the time was
taking part in a strike that complies with the provisions of Chapter
IV or was locked out, unless that work is necessary to prevent an
actual danger to life, personal safety or health;
(c) to compel the employee to accept a demand in respect of any
matter of mutual interest between the employer and employee;
(d) that the employee took action, or indicated an intention to take
action, against the employer by-
(i) exercising any right conferred by this Act; or
49. Section 5 confers protections relating to the right to freedom of
association and on members of workplace forums.
50. Chapter IV deals with industrial action and conduct in support of
industrial action. Section 67(4) and (5) provide-
"(4) An employer may not dismiss an employee for participating in a
protected strike or for any conduct in contemplation or in furtherance of
a protected strike.
(5) Subsection (4) does not preclude an employer from fairly dismissing
an employee in compliance with the provisions of Chapter VIII for a
reason related to the employee's conduct during the strike, or for a
reason based on the employer's operational requirements."
Section 77(3) provides-
"A person who takes part in protest action or in any conduct in
contemplation or in furtherance of protest action that complies with
subsection (1), enjoys the protections conferred by section 67."
(ii) participating in any proceedings in terms of this Act;
(e) the employee's pregnancy, intended pregnancy, or any reason
related to her pregnancy; that the employer unfairly discriminated
against an employee, directly or indirectly, on any arbitrary ground,
including, but not limited to race, gender, sex, ethnic or social
origin, colour, sexual orientation, age, disability, religion,
conscience, belief, political opinion, culture, language, marital
status or family responsibility.
(2) Despite subsection (1)(f)-
(a) a dismissal may be fair if the reason for dismissal is based on
an inherent requirement of the particular job;
(b) a dismissal based on age is fair if the employee has reached the
normal or agreed retirement age for persons employed in that
capacity.
188. Other unfair dismissals
(1) A dismissal that is not automatically unfair, is unfair if the
employer fails to prove-
(a) that the reason for dismissal is a fair reason-
(i) related to the employee's conduct or capacity; or
(ii) based on the employer's operational requirements; and
(b) that the dismissal was effected in accordance with a fair
procedure.
(2) Any person considering whether or not the reason for dismissal is a
fair reason or whether or not the dismissal was effected in accordance
with a fair procedure must take into account any relevant code of good
practice issued in terms of this Act.51
189. Dismissals based on operational requirements
(1) When an employer contemplates dismissing one or more employees for
reasons based on the employer's operational requirements, the employer
must consult-
(a) any person whom the employer is required to consult in terms of a
collective agreement;
(b) if there is no collective agreement that requires consultation, a
workplace forum, if the employees likely to be affected by the
proposed dismissals are employed in a workplace in respect of which
there is a workplace forum;
(c) if there is no workplace forum in the workplace in which the
employees likely to be affected by the proposed dismissals are
employed, any registered trade union whose members are likely to be
affected by the proposed dismissals;
(d) if there is no such trade union, the employees likely to be
affected by the proposed dismissals or their representatives
nominated for that purpose.
(2) The consulting parties must attempt to reach consensus on
(a) appropriate measures-
(i) to avoid the dismissals;
51. See Schedule 8, the Code of Good Practice: Dismissal.
(ii) to minimise the number of dismissals;
(iii) to change the timing of the dismissals; and
(iv) to mitigate the adverse effects of the dismissals;
(b) the method for selecting the employees to be dismissed; and
(c) the severance pay for dismissed employees.
(3) The employer must disclose in writing to the other consulting party
all relevant information, including, but not limited to-
(a) the reasons for the proposed dismissals;
(b) the alternatives that the employer considered before proposing
the dismissals, and the reasons for rejecting each of those
alternatives;
(c) the number of employees likely to be affected and the job
categories in which they are employed;
(d) the proposed method for selecting which employees to dismiss;
(e) the time when, or the period during which, the dismissals are
likely to take effect; the severance pay proposed;
(g) any assistance that the employer proposes to offer to the
employees likely to be dismissed; and
(h) the possibility of the future re-employment of the employees who
are dismissed.
(4) The provisions of section 16 apply, read with the changes required by
the context, to the disclosure of information in terms of subsection (3).
(5) The employer must allow the other consulting party an opportunity
during consultation to make representations about any matter on which
they are consulting.
(6) The employer must consider and respond to the representations made by
the other consulting party and, if the employer does not agree with them,
the employer must state the reasons for disagreeing.
(7) The employer must select the employees to be dismissed according to
selection criteria-
(a) that have been agreed to by the consulting parties; or
(b) if no criteria have been agreed, criteria that are fair and
objective.
190. Date of dismissal
(1) The date of dismissal is the earlier of-
(a) the date on which the contract of employment terminated; or
(b) the date on which the employee left the service of the employer.
(2) Despite subsection (i)-
(a) if an employer has offered to renew on less favourable terms, or
has failed to renew, a fixed-term contract of employment, the date of
dismissal is the date on which the employer offered the less
favourable terms or the date the employer notified the employee of
the intention not to renew the contract;
(b) if the employer refused to allow an employee to resume work, the
date of dismissal is the date on which the employer first refused to
allow the employee to resume work;
(c) if an employer refused to reinstate or re-employ the employee,
the date of dismissal is the date on which the employer first refused
to reinstate or re-employ that employee.
191. Disputes about unfair dismissals52
(1) If there is a dispute about the fairness of a dismissal, the
dismissed employee may refer the dispute in writing within 30 days of the
date of dismissal to-
(a) a council, if the parties to the dispute fall within the
registered scope of that council; or
(b) the Commission, if no council has
(2) If the employee shows good cause at any time, the council or the
Commission may permit the employee to refer the dispute after the 30-day
time limit has expired.
(3) The employee must satisfy the council or the Commission that a copy
of the referral has been served on the employer.
(4) The council or the Commission must attempt to resolve the dispute
through conciliation.
(5) If a council or a commissioner has certified that the dispute remains
unresolved, or if 30 days have expired since the council or the
Commission received the referral and the dispute remains unresolved-
52. See flow diagrams Nos. 10, 11, 12 and 13 in Schedule 4.
(a) the council or the Commission must arbitrate the dispute at the
request of the employee if-
(i) the employee has alleged that the reason for dismissal
related to the employee's conduct or capacity, unless
paragraph (b)(iii) applies;
(ii) the employee has alleged that the reason for dismissal
is that the employer made continued employment intolerable;
or
(iii) the employee does not know the reason for dismissal;
or
(b) the employee may refer the dispute to the Labour Court for
adjudication if the employee has alleged that the reason for
dismissal is-
(i) automatically unfair;
(ii) based on the employer's operational requirements;
(iii) the employee's participation in a strike that does
not comply with the provisions of Chapter IV; or
(iv) because the employee refused to join, was refused
membership of or was expelled from a trade union party to a
closed shop agreement.
(6) Despite subsection (5)(a), the director must refer the dispute to the
Labour Court, if the director decides, on application by any party to the
dispute, that to be appropriate after considering-
(a) the reason for dismissal;
(b) whether there are questions of law raised by the dispute;
(c) the complexity of the dispute;
(d) whether there are conflicting arbitration awards that need to be
resolved;
(e) the public interest.
(7) When considering whether the dispute should be referred to the Labour
Court, the director must give the parties to the dispute and the
commissioner who attempted to conciliate the dispute, an opportunity to
make representations.
(8) The director must notify the parties of the decision and refer the
dispute-
(a) to the Commission for arbitration; or
(b) to the Labour Court for adjudication.
(9) The director's decision is final and binding.
(10) No person may apply to any court of law to review the director's
decision until the dispute has been arbitrated or adjudicated, as the
case may be.
192. Onus in dismissal disputes
(1) In any proceedings concerning any dismissal, the employee must
establish the existence of the dismissal.
(2) If the existence of the dismissal is established, the employer must
prove that the dismissal is fair.
193. Remedies for unfair dismissal
(1) If the Labour Court or an arbitrator appointed in terms of this Act
finds that a dismissal is unfair, the Court or the arbitrator may-
(a) order the employer to reinstate the employee from any date not
earlier than the date of dismissal;
(b) order the employer to re-employ the employee, either in the work
in which the employee was employed before the dismissal or in other
reasonably suitable work on any terms and from any date not earlier
than the date of dismissal; or
(c) order the employer to pay compensation to the employee.
(2) The Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee unless-
(a) the employee does not wish to be reinstated or re-employed;
(b) the circumstances surrounding the dismissal are such that a
continued employment relationship would be intolerable;
(c) it is not reasonably practicable for the employer to reinstate or
re-employ the employee; or
(d) the dismissal is unfair only because the employer did not follow
a fair procedure.
(3) If a dismissal is automatically unfair or, if a dismissal based on
the employer's operational requirements is found to be unfair, the Labour
Court in addition may make any other order that it considers appropriate
in the circumstances.53
194. Limits on compensation
(1) If a dismissal is unfair only because the employer did not follow a
fair procedure, compensation must be equal to the remuneration that the
employee would have been paid between the date of dismissal and the last
day of the hearing of the arbitration or adjudication, as the case may
be, calculated at the employee's rate of remuneration on the date of
dismissal. Compensation may however not be awarded in respect of any
unreasonable period of delay that was caused by the employee in
initiating or prosecuting a claim.
(2) The compensation awarded to an employee whose dismissal is found to
be unfair because the employer did not prove that the reason for
dismissal was a fair reason related to the employee's conduct, capacity
or based on the employer's operational requirements, must be just and
equitable in all the circumstances, but not less than the amount
specified in subsection (1), and not more than the equivalent of 12
months' remuneration calculated at the employee's rate of remuneration on
the date of dismissal.
(3) The compensation awarded to an employee whose dismissal is
automatically unfair must be just and equitable in all the circumstances,
but not more than the equivalent of 24 months' remuneration calculated at
the employee's rate of remuneration on the date of dismissal.
195. Compensation is in addition to any other amount
An order or award of compensation made in terms of this Chapter is in
addition to, and not a substitute for, any other amount to which the
employee is entitled in terms of any law, collective agreement or
contract of employment.
196. Severance pay
(1) An employer must pay an employee who dismissed for reasons based on
the employer's operational requirements severance pay equal to at least
one week's remuneration for each completed year of continuous service
with that employer, unless the employer has been exempted from the
provisions of this subsection.
(2) The Minister, after consulting NEDLAC and the Public Service
Co-ordinating Bargaining Council, may vary the amount of severance pay in
terms of subsection (1) by notice in the Government Gazette.
(3) An employee who unreasonably refuses to accept the employer's offer
of alternative employment with that employer or any other employer is not
entitled to severance pay in terms of subsection (1).
(4) The payment of severance pay in compliance with this section does not
affect an employee's right to any other amount payable according to law.
(5) An employer or a category of employers may apply to the Minister for
exemption from the provisions of subsection (1) as if the application is
one in terms of the Basic Conditions of Employment Act and the Minister
may grant an exemption as if it were an exemption granted in terms of
that Act.
(6) If there is a dispute only about the entitlement to severance pay in
terms of this section, the employee may refer the dispute in writing to-
(a) a council, if the parties to the dispute fall within the
registered scope of that council; or
(b) the Commission, if no council has
(7) The employee who refers the dispute to the council or the Commission
must satisfy it that a copy of the referral has been served on all the
other parties to the dispute.
(8) The council or the Commission must attempt to resolve the dispute
through conciliation.
(9) If the dispute remains unresolved, the employee may refer it to
arbitration.
(10) If the Labour Court is adjudicating a dispute about a dismissal
based on the employer's operational requirements, the Court may inquire
into and determine the amount of any severance pay to which the dismissed
employee may be entitled and the Court may make an order directing the
employer to pay that amount.
197. Transfer of contract of employment
(1) A contract of employment may not be transferred from one employer
(referred to as "the old employer") to another employer (referred to as
"the new employer") without the employee's consent, unless-
(a) the whole or any part of a business, trade or undertaking is
transferred by the old employer as a going concern; or
(b) the whole or a part of a business, trade or undertaking is
transferred as a going concern-
(i) if the old employer is insolvent and being wound up or
is being sequestrated; or
(ii) because a scheme of arrangement or compromise is being
entered into to avoid winding-up or sequestration for
reasons of insolvency.
(2) (a) If a business, trade or undertaking is transferred in the
circumstances referred to in subsection (1)(a), unless otherwise agreed,
all the rights and obligations between the old employer and each employee
at the time of the transfer continue in force as if they were rights and
obligations between the new employer and each employee and, anything done
before the transfer by or in relation to the old employer will be
considered to have been done by or in relation to the new employer.
(b) If a business is transferred in the circumstances envisaged by
subsection (1)(b), unless otherwise agreed, the contracts of all
employees that were in existence immediately before the old
employer's winding-up or sequestration transfer automatically to the
new employer, but all the rights and obligations between the old
employer and each employee at the time of the transfer remain rights
and obligations between the old employer and each employee, and
anything done before the transfer by the old employer in respect of
each employee will be considered to have been done by the old
employer.
(3) An agreement contemplated in subsection (2) must be concluded with
the appropriate person or body referred to in section 189(l).
(4) A transfer referred to in subsection (1) does not interrupt the
employee's continuity of employment. That employment continues with the
new employer as if with the old employer.
(5) The provisions of this section do not transfer or otherwise affect
the liability of any person to be prosecuted for, convicted of, and
sentenced for, any offence.
CHAPTER IX GENERAL PROVISIONS
198. Temporary Employment Services
(1) In this section, "temporary employment service" means any person who,
for reward, procures for or provides to a client other persons-
(a) who render services to, or perform work for, the client; and
(b) who are remunerated by the temporary employment service.
(2) For the purposes of this Act, a person whose services have been
procured for or provided to a client by a temporary employment service is
the employee of that temporary employment service, and the temporary
employment service is that person's employer.
(3) Despite subsections (1) and (2), a person who is an independent
contractor is not an employee of a temporary employment service, nor is
the temporary employment service the employer of that person.
(4) The temporary employment service and the client are jointly and
severally liable if the temporary employment service, in respect of any
of its employees, contravenes-
(a) a collective agreement concluded in a bargaining council that
regulates terms and conditions of employment;
(b) a binding arbitration award that regulates terms and conditions
of employment;
(c) the Basic Conditions o Employment Act; or
(d) a determination made in terms of the Wage Act.
(5) Two or more bargaining councils may agree to bind the following
persons, if they fall within the combined registered scope of those
bargaining councils, to a collective agreement concluded in any one of
them-
(a) temporary employment service;
(b) a person employed by a temporary employment service; and
(c) a temporary employment service client.
(6) An agreement concluded in terms of subsection (5) is binding only if
the collective agreement has been extended to non-parties within the
registered scope of the bargaining council.
(7) Two or more bargaining councils may agree to bind the following
persons, who fall within their combined registered scope, to a collective
agreement-
(a) temporary employment service;
(b) a person employed by a temporary employment service; and
(c) a temporary employment service's client.
(8) An agreement concluded in terms of subsection (7) is binding only if-
(a) each of the contracting bargaining councils has requested the
Minister to extend the agreement to non-parties falling within its
registered scope;
(b) the Minister is satisfied that the terms of the agreement are not
substantially more onerous than those prevailing in the corresponding
collective agreements concluded in the bargaining councils; and
(c) the Minister, by notice in the Government Gazette, has extended
the agreement as requested by all the bargaining councils that are
parties to the agreement.
199. Contracts of employment may not disregard or waive collective agreements
or arbitration awards
(1) A contract of employment, whether concluded before or after the
coming into operation of any applicable collective agreement or
arbitration award, may not-
(a) permit an employee to be paid remuneration that is less than that
prescribed by that collective agreement or arbitration award;
(b) permit an employee to be treated in a manner, or to be granted
any benefit, that is less favourable than that prescribed by that
collective agreement or arbitration award; or
(c) waive the application of any provision of that collective
agreement or arbitration award.
(2) A provision in any contract that purports to permit or grant any
payment, treatment, benefit, waiver or exclusion prohibited by subsection
(1) is invalid.
200. Representation of employees or employers
(1) A registered trade union or registered employers' organisation may
act in any one or more of the following capacities in any dispute to
which any of its members is a party-
(a) in its own interest;
(b) on behalf of any of its members;
(c) in the interest of any of its members.
(2) A registered trade union or a registered employers' organisation is
entitled to be a party to any proceedings in terms of this Act if one or
more of its members is a party to those proceedings.
201. Confidentiality
(1) A person commits an offence by disclosing any information relating to
the financial or business affairs of any other person or any business,
trade or undertaking if the information was acquired by the
first-mentioned person in the performance of any function or exercise of
any power in terms of this Act, in any capacity, by or on behalf of-
(a) a council;
(b) any independent body established by a collective agreement or
determination to grant exemptions from the provisions of the
collective agreement or determination;
(c) the registrar;
(d) the Commission; and
(e) an accredited agency.
(2) Subsection (1) does not apply if the information was disclosed to
enable a person to perform a function or exercise a power in terms of
this Act.
(3) A person convicted of an offence in terms of this section may be
sentenced to a fine to be determined by the court, or imprisonment.
202. Service of documents
(1) If a registered trade union or a registered employers' organisation
acts on behalf of any of its members in a dispute, service on that trade
union or employers' organisation of any document directed to those
members in connection with that dispute, will be sufficient service on
those members for the purposes of this Act.
(2) Service on the Office of the State Attorney of any legal process
directed to the State in its capacity as an employer is service on the
State for the purposes of this Act.
203. Codes of good practice
(1) NEDLAC may-
(a) prepare and issue codes of good practice; and
(b) change or replace any code of good practice.
(2) Any code of good practice, or any change to or replacement of a code
of good practice, must be published in the Government Gazette.
(3) Any person interpreting or applying this Act must take into account
any relevant code of good practice.
204. Collective agreement, arbitration award or wage determination to be
kept by employer Unless a collective agreement, arbitration award
or determination made in terms of the Wage Act provides
otherwise, every employer on whom the collective agreement,
arbitration award, or determination is binding must-
(a) keep a copy of that collective agreement, arbitration award or
determination available in the workplace at all times;
(b) make that copy available for inspection by any employee; and
(c) give a copy of that collective agreement, arbitration award or
determination-
(i) to an employee who has paid the prescribed fee; and
(ii) free of charge, on request, to an employee
who is a trade union representative or a member of a
workplace forum.
205. Records to be kept by employer
(1) Every employer must keep the records that an employer is required to
keep in compliance with any applicable-
(a) collective agreement;
(b) arbitration award;
(c) determination made in terms of the Wage Act.
(2) An employer who is required to keep records in terms of subsection
(1) must-
(a) retain those records in their original form or a reproduced form
for a period of three years from the date of the event or end of the
period to which they relate; and
(b) submit those records in their original form or a reproduced form
in response to a demand made at any reasonable time, to any agent of
a bargaining council, commissioner or any person whose functions in
terms of this Act include the resolution of disputes.
(3) (a) An employer must keep a record of the prescribed details of any
strike, lock-out or protest action involving its employees.
(b) An employer must submit those records in the prescribed manner to
the registrar.
206. Effect of certain defects and irregularities
(1) Despite any provision in this Act or any other law, a defect does not
invalidate-
(a) the constitution or the registration of any registered trade
union, registered employers' organisation or council;
(b) any collective agreement or arbitration award that would
otherwise be binding in terms of this Act;
(c) any act of a council; or
(d) any act of the director or a commissioner.
(2) A defect referred to in subsection (1) means-
(a) a defect in, or omission from, the constitution of any registered
trade union, registered employers' organisation or council;
(b) a vacancy in the membership of any council; or
(c) any irregularity in the appointment or election of-
(i) a representative to a council;
(ii) an alternate to any representative to a council;
(iii) a chairperson or any other person presiding over any
meeting of a council or a committee of a council; or
(iv) the director or a commissioner.
207. Ministers empowered to add and change to Schedules
(1) The Minister, after consulting NEDLAC, by notice in the Government
Gazette, may add to, change or replace any Schedule to this Act,
including a Schedule which at any time may have been added to this Act
but excluding Schedules I and 7.
(2) The Minister for the Public Service and Administration, after
consulting NEDLAC and the Public Service Co-ordinating Bargaining
Council, by notice in the Government Gazette, may add to, change or
replace Schedule 1.
(3) The Minister, after consulting NEDLAC, by notice in the Government
Gazette, may add to this Act a further Schedule containing a model
constitution for a statutory council.
(4) The Minister for the Public Service and Administration, after
consulting the Public Service Co-ordinating Bargaining Council, by notice
in the Government Gazette, may add to this Act a further schedule
regulating the establishment and the constitutions of workplace forums in
the public service.
(5) The Minister may add to, change or replace any page header or
footnote.
(6) The Minister, in consultation with the Minister of Trade and Industry
and after consulting NEDLAC, by notice in the Government Gazette, may add
to this Act a further schedule listing institutions referred to in
section 32(4).
208. Regulations
The Minister, after consulting NEDLAC and when appropriate, the
Commission, may make regulations not inconsistent with this Act relating
to-
(a) any matter that in terms of this Act may or must be prescribed;
and
(b) any matter that the Minister considers necessary or expedient to
prescribe or have governed by regulation in order to achieve the
primary objects of this Act.
209. This Act binds the State
This Act binds the State.
210. Application of Act when in conflict with other laws
If any conflict, relating to the matters dealt with in this Act,
arises between this Act and the provisions of any other law save
the Constitution or any Act expressly amending this Act, the
provisions of this Act will prevail.
211. Amendment of laws
Each of the laws referred to in items I and 2 of Schedule 5 is
hereby amended to the extent specified in those items.
212. Repeal of laws, and transitional arrangements
(1) Each of the laws referred to in the first two columns of Schedule 6
is hereby repealed to the extent specified opposite that law in the third
column of that Schedule.
(2) The repeal of those laws does not affect any transitional
arrangements made in Schedule 7.
(3) The transitional arrangements in Schedule 7 must be read and applied
as substantive provisions of this Act.
213. Definitions In this Act, unless the context otherwise indicates"
area" includes any number of areas, whether or not contiguous;
" auditor" means any person who is registered to practise in the Republic
as a public accountant and auditor;
"bargaining council" means a bargaining council referred to in section 27
and includes, in relation to the public service, the bargaining councils
referred to in section 35;
"Basic Conditions of Employment Act" means the Basic Conditions of
Employment Act, 1983 (Act No. 3 of 1983);
" code of good practice" means a code of practice issued by NEDLAC in
terms of section 203(1) of this Act;
"collective agreement" means a written agreement concerning terms and
conditions of employment or any other matter of mutual interest concluded
by one or more registered trade unions, on the one hand and, on the other
hand-
(a) one or more employers;
(b) one or more registered employers' organisations; or
(c) one or more employers and one or more registered employers'
organisations; " council" includes a bargaining council and a
statutory council;
(d)"director" means the director of the Commission appointed in terms
of section II 8(1) and includes any acting director appointed in
terms of section 119; "dismissal" means dismissal as defined in
section 186;
(e)"dispute" includes an alleged dispute;
(f) " employee "54 means(a) any person, excluding an independent
contractor, who works for another person or for the State and who
receives, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying on or
conducting the business of an employer, and "employed" and
"employment" have meanings corresponding to that of " employee";
" employers' organisation" means any number of employers associated
together for the purpose, whether by itself or with other purposes, of
regulating relations between employers and employees or trade unions;
" essential service" means(a) a service the interruption of which
endangers the life, personal safety or health of the whole or any part of
the population;
(b) the Parliamentary service;
(c) the South African Police Services;
"issue in dispute", in relation to a strike or lock-out, means the
demand, the grievance, or the dispute that forms the subject matter
of the strike or lock-out;
54. "Employee" is given a different and specific meaning in section 78
in Chapter V. "legal practitioner" means any person admitted to practise
as an advocate or an attorney in the Republic;
"lock-out" means the exclusion by an employer of employees from the
employer's workplace, for the purpose of compelling the employees to
accept a demand in respect of any matter of mutual interest between
employer and employee, whether or not the employer breaches those
employees' contracts of employment in the course of or for the purpose of
that exclusion;
"Minister" means the Minister of Labour;
"NEDLAC" means the National Economic Development and Labour Council
established by section 2 of the National Economic, Development and Labour
Council Act, 1994 (Act No. 35 of 1994);
" office-bearer" means a person who holds office in a trade union,
employers' organisation, federation of trade unions, federation of
employers' organisations or council and who is not an official;
" official", in relation to a trade union, employers' organisation,
federation of trade unions or federation of employers' organisations
means a person employed as the secretary, assistant secretary or
organiser of a trade union, employers' organisation or federation, or in
any other prescribed capacity, whether or not that person is employed in
a full-time capacity. And, in relation to a council means a person
employed by a council as secretary or in any other prescribed capacity,
whether or not that person is employed in a full-time capacity;
" operational requirements" means requirements based on the economic,
technological, structural or similar needs of an employer;
" prescribed" means prescribed from time to time by regulation in terms
of section 208;
"protest action" means the partial or complete concerted refusal to
work, or the retardation or obstruction of work, for the purpose of
promoting or defending the socioeconomic interests of workers, but not
for a purpose referred to in the definition of strike;
"public service" means the public service referred to in section l(l) of
the Public Service Act, 1994 (promulgated by Proclamation No. 103 of
1994), and includes any organisational component contemplated in section
7(4) of that Act and specified in the first column of Schedule 2 to that
Act, but excluding-
(a) the members of the National Defence Force;
(b) the National Intelligence Agency; and
(c) the South African Secret Service.
" registered scope" means-
(a) in the case of the Public Service Co-ordinating Bargaining
Council, the public service as a whole, subject to section 36;
(b) in the case of bargaining councils established for sectors in the
public service, the sector designated by the Public Service
Co-ordinating Bargaining Council in terms of section 37(1) or by the
President in terms of section 37(2) or (4);
(c) in the case of any other council, the sector and area in respect
of which it is registered in terms of this Act;
"registrar" means the registrar of labour relations appointed in
terms of section 108 and includes-
(a) any deputy registrar appointed in terms of that section when
acting on the direction or under a general or special delegation of
the registrar; and
(b) any acting registrar appointed in terms of that section;
" remuneration" means any payment in money or in kind, or
both in money and in kind, made or owing to any person in
return for that person working for any other person,
including the State, and "remunerate" has a corresponding
meaning;
"Republic"-
(a) when used to refer to the State as a constitutional entity, means
the Republic of South Africa as defined in section I of the
Constitution; and
(b) when used in the territorial sense, means the national territory
of the Republic as defined in section I of the Constitution;
" sector" means, subject to section 37, an industry or a service;
" serve " means to send by registered post, telegram, telex,
telefax or to deliver by hand;
" statutory council" means a council established in terms of Part
E of Chapter 111;
" strike" means the partial or complete concerted refusal to
work, or the retardation or obstruction of work, by persons who
are or have been employed by the same employer or by different
employers, for the purpose of remedying a grievance or resolving
a dispute in respect of any matter of mutual interest between
employer and employee, and every reference to "work" in this
definition includes overtime work, whether it is voluntary or
compulsory;
"this Act" includes the section numbers, the Schedules, except
Schedules 4 and 8, and any regulations made in terms of section
208, but does not include the page headers, the headings or
footnotes;
"trade union" means an association of employees whose principal
purpose is to regulate relations between employees and employers,
including any employers' organisations;
"trade union representative" means a member of a trade union who is
elected to represent employees in a workplace-,
"Wage Act" means the Wage Act, 1957 (Act No. 5 of 1957);
" working hours" means those hours during which an employee is
obliged to work;
" workplace"-
(a) in relation to a sector in the public service in respect of which
a bargaining council has been established in terms of section 37 has
the meaning that the responsible Minister determines after having
consulted the bargaining council;
(b) in relation to the remainder of the public service, has the
meaning that the Minister for the Public Service and Administration
determines after having consulted the Public Service Co-ordinating
Bargaining Council;
(c) in all other instances means the place or places where the
employees of an employer work. If an employer carries on or conducts
two or more operations that are independent of one another by reason
of their size, function or organisation, the place or places where
employees work in connection with each independent operation,
constitutes the workplace for that operation; and
" workplace forum" means a workplace forum established in terms of
Chapter V.
214. Short title and commencement
(1) This Act is called the Labour Relations Act, 1995.
(2) This Act comes into operation on a date fixed by the President by
proclamation in the Government Gazette.
SCHEDULE I
ESTABLISHMENT OF BARGAINING COUNCILS FOR PUBLIC SERVICE
1. Definitions for this Schedule In this Schedule, unless the context
otherwise indicates"Education Labour Relations Act" means the Education
Labour Relations Act, 1993 (Act No. 146 of 1993);
"Education Labour Relations Council" means the council established by
section 6(1) of the Education Labour Relations Act;
"National Negotiating Forum" means the National Negotiating Forum
established for the South African Police Service by the South African
Police Service Labour Relations Regulations, 1995;
"Public Service Bargaining Council" means the council referred to in
section 5(l) of the Public Service Labour Relations Act;
"Public Service Labour Relations Act" means the Public Service Labour
Relations Act, 1994 (promulgated by Proclamation No. 105 of 1994).
2. Establishment of Public Service Co-ordinating Bargaining Council (1)
As soon as practicable after the commencement of this Act, the
Commission, by notice in the Government Gazette, must invite the employee
and employer representatives in the Education Labour Relations Council,
the National Negotiating Forum and the central chamber of the Public
Service Bargaining Council to attend a meeting, with a view to those
representatives agreeing on a constitution for the Public Service
Co-ordinating Bargaining Council.
(2) The Commission must appoint a commissioner to chair the meeting and
facilitate the conclusion of an agreement on a constitution that meets
the requirements of section 30, read with the changes required by the
context.
(3) The parties to the Education Labour Relations Council, the National
Negotiating Forum and the central chamber of the Public Service
Bargaining Council will be the founding parties to the Public Service
Co-ordinating Bargaining Council.
(4) If an agreement is concluded and the registrar is satisfied that the
constitution meets the requirements of section 30, the registrar must
register the Public Service Co-ordinating Bargaining Council by entering
its name in the register of councils.
(5) If no agreement is concluded on a constitution, the registrar must-
(a) determine the constitution for the Public Service Co-ordinating
Bargaining Council;
(b) register the Public Service Co-ordinating Bargaining Council by
entering its name in the register of councils; and
(c) certify the constitution as the constitution of the Public
Service Co-ordinating Bargaining Council.
(6) After registering the Public Service Co-ordinating Bargaining
Council, the registrar must-
(a) issue a certificate of registration that must specify the
registered scope of the Public Services Co-ordinating Bargaining
Council; and
(b) send the certificate and a certified copy of the constitution to
the Public Service Co-ordinating Bargaining Council.
3. Establishment of bargaining councils in sectors
(1) The departmental and provincial chambers of the Public Service
Bargaining Council are deemed to be bargaining councils established in
terms of section 37(3)(a) of this Act, subject to any designation in
terms of section 37(l) of this Act.
(2) The Education Labour Relations Council is deemed to be a bargaining
council established in terms of section 37(3)(b) of this Act.
(3) The National Negotiating Forum is deemed to be a bargaining council
established for a sector designated in terms of section 37(2).
(4) If the President designates a sector in terms of section 37(2), the
President must inform the Commission and instruct it to convene a meeting
of the representatives of the registered trade unions with members
employed in the sector.
(5) The Commission must publish a notice in the Government Gazette
inviting registered trade unions with members employed in the sector to
attend the meeting.
(6) The Commission must appoint a commissioner to chair the meeting and
facilitate the conclusion of an agreement on-
(a) the registered trade unions to be parties to the bargaining
council; and
(b) a constitution that meets the requirements of section 30, read
with the changes required by the context.
(7) If agreement is concluded, the registrar must-
(a) admit the registered trade unions as parties to the bargaining
council; and
(b) if satisfied that the constitution meets the requirements of
section 30, register the bargaining council by entering its name in
the register of councils.
(8) If no agreement is concluded on-
(a) the registered trade unions to be admitted, the Commission must
decide which trade unions should be admitted;
(b) a constitution, the registrar, in accordance with the decisions
made by the Commission in paragraph (a), must determine a
constitution that meets the requirements of section 30, read with the
changes required by the context.
(9) The registrar must register the bargaining council for the sector by
entering its name in the register of councils.
(10) After registering the bargaining council, the registrar must-
(a) issue a certificate of registration that must specify the
registered scope of the bargaining council; and
(b) send the certificate and a certified copy of the constitution to
the bargaining council.
SCHEDULE 2
GUIDELINES FOR CONSTITUTION OF WORKPLACE FORUM
1. Introduction
(1) This Schedule contains guidelines for the constitution of a
workplace, forum. It Is intended to guide representative trade unions
that wish to establish a workplace forum, employers and commissioners.
(2) This Act places the highest value on the establishment of workplace
forums by agreement between a representative trade union and an employer.
The role of the commissioner is to facilitate an agreement establishing
the structure and functions of a workplace forum. If agreement is not
possible, either in whole or in part, the commissioner must refer to this
Schedule, using its guidelines in a manner that best suits the particular
workplace involved.
(3) For convenience, the guidelines follow the sequence of the paragraphs
in section 82 of this Act.
2. Number of seats in workplace forums (section 82(1)(a))
The formula to determine the number of seats in the workplace forum
should reflect the size, nature, occupational structure and physical
location of the workplace. A guideline may be-
(a) in a workplace in which 100 to 200 employees are employed, five
members;
(b) in a workplace in which 201 to 600 employees are employed, eight
members;
(c) in a workplace in which 601 to 1000 employees are employed, IO
members;
(d) in a workplace in which more than 1000 employees are employed, 10
members for the first 1000 employees, plus an additional member for
every additional 500 employees, up to a maximum of 20 members.
3. Distribution of seats to reflect occupational structure (section
82(1)(b))
The formula to determine the distribution of seats in the
workplace forum must reflect the I occupational structure of the
workplace.
Example:
There are 300 employees in a workplace. The occupational structure
is as follows: 200 employees are manual employees; 50 are
administrative and clerical employees; and 50 are supervisory,
managerial and technical employees. The six seats may be
distributed as follows4 seats for members to be elected from
candidates nominated from among the manual employees
I seat for members to be elected from candidates nominated
from among the administrative and clerical employees
I seat for members to be elected from candidates nominated
from among the supervisory, managerial and technical
employees.
4. Elections (section 82(1)(c), (d), (g), (h), (i) and (j)) (1) The
constitution must include provisions concerning the appointment of
an election officer.
Example:
(a) Every election or by-election in relation to a workplace forum
must be conducted by an election officer appointed by agreement
between the representative trade union and the employer.
(b) If the trade union and the employer cannot agree, the trade union
may apply to the Commission to appoint an election officer.
(c) The Commission must appoint an election officer to conduct a
by-election only if it is satisfied that the workplace forum cannot
function adequately without a by-election.
(2) The constitution must set out what the election officer should do and
the procedure for an election.
Example:
(a) Thirty days before each election of members of the workplace
forum, the election officer must-
(i) prepare a list of all employees in the workplace; and
(ii) call for nominations for members of the workplace,
forum.
(b) Any employee may be nominated as a candidate for election as a
member of the workplace forum by-
(i) any registered trade union with members employed in the
work- place;
(ii) a petition signed by not less than 20 per cent of the
employees in the workplace or 100 employees, whichever
number of employees is the smaller.
(c) Any employee who is a member or has previously served as a member
of a workplace forum is eligible for re-election.
(d) Fourteen days before each election of members of the workplace
forum, the election officer must-
(i) confirm that the nominated candidates qualify for
election;
(ii) publish a list of all qualified candidates who have
been properly nominated; and
(iii) prepare a ballot for the election, listing the
nominated candidates in alphabetical order by surname.
(e) Voting must be by secret ballot.
Every employee is entitled to vote in the election of the
workplace forum during working hours at the employer's
premises.
(g) Every employee in the workplace is entitled to cast a number of
votes equal to the number of members to be elected to the workplace
forum.
(h) Every employee may cast one or more of those votes in favour of
any candidate.
5. Terms of office (section 82(1)(k), (l) and (m))
(1) The constitution must provide that the members of a workplace forum
remain in office until the first meeting of the newly elected
workplace forum.
(2) The constitution must include provisions allowing the members to
resign as well as provisions for the removal of members from office.
Example:
(a) A member of a workplace forum may resign by giving written notice
to the chairperson.
(b) A member of a workplace forum must vacate that office-
(i) when the member's resignation takes effect;
(ii) if the member is promoted to senior managerial status;
(iii) if the member is transferred from the workplace;
(iv) if the member's employment is terminated;
(v) as a result of an award of a commissioner; or
(vi) if the representative trade union that nominated a
member removes the member.
(c) The representative trade union, the employer, or the workplace
forum may apply to the Commission to have a member of the workplace
forum removed from office on the grounds of gross dereliction of the
duties of office.
(d) Twenty percent of the employees in the workplace may submit a
signed petition to the Commission applying for the removal from
office of a member of the workplace forum on the grounds of gross
dereliction of the duties of office.
(e) An application to remove a member of a workplace forum from
office must be decided by arbitration under the auspices of the
Commission.
A by-election to fill any vacancy in the workplace forum must be
conducted by an election officer.
6. Meetings of workplace forum (section 82(1)(n))
The constitution must include provisions governing meetings of the
workplace forum.
Example:
(a) The first meeting of a newly elected workplace forum must be
convened by the election officer as soon as practicable after the
election.
(b) At that meeting the members of the workplace forum must elect
from among their number a chairperson and a deputy chairperson.
(c) The workplace forum must meet whenever necessary, but at least
once a month.
(d) A quorum of the workplace forum must be a majority of the members
of the workplace forum holding office at any time.
(e) A decision of the majority of the members of the workplace forum
present at the meeting must be the decision of the workplace forum.
The meetings between members of the workplace forum and the
employees should be at least four times a year.
Example 1:
In a workplace that is a single place, the meetings with the employees
should be with all the members of the workplace forum.
Example 2:
In a workplace that is geographically dispersed, the meetings with the
employees need not be with all the members of the workplace forum, but
with one or more members of the workplace forum.
7. Time off for members of workplace forum (section 82(1)(p))
The constitution must include provisions governing time off for
members to perform their functions.
Example:
(a) A member of a workplace forum is entitled to take
reasonable time off during working hours with pay for
the purpose of
(i) performing the functions and duties of a member; and
(ii) undergoing training relevant to the performance of
those functions and duties.
(b) The right to time off is subject to conditions that are
reasonable, so as to prevent the undue disruption of work.
(c) The costs associated with the training must be paid by the
employer, if those costs are reasonable, having regard to the size
and capabilities of the employer.
8. Facilities to be provided to workplace forum (section 82(1)(r))
The constitution must require the employer to provide adequate
facilities to the workplace forum to perform its functions.
Example:
(a) The employer must provide, at its cost-
(i) fees, facilities and materials that are necessary for
the conduct of elections and by-elections of the
workplace forum; and
(ii) administrative and secretarial facilities that are
appropriate to enable the members of the workplace forum to
perform their functions and duties.
(b) These facilities must include, but are not limited to, a room in
which the workplace forum may meet and access to a telephone.
(c) The costs incurred by the employer in complying with the
provisions of paragraphs (a) and (b) must be reasonable, having
regard to the size and capabilities of the employer.
9. Experts (section 82(1)(t))
The constitution may provide for the use of experts.
Example:
(a) A workplace forum may ask experts to assist it in the performance
of any of its functions.
(b) An expert must ensure that there is no conflict of interest
between the assistance given to one workplace forum and another.
(c) An expert may attend any meeting of the workplace forum and, at
its request, address any meetings of the workplace forum including a
meeting with the employer or the employees.
(d) An expert is entitled to any information to which the
workplace forum is entitled and may inspect and copy any document.
10. Establishment of coordinating and subsidiary workplace forums
(section 82(2)(b))
(1) Where an employer carries on or conducts two or more operations that
are independent of each other by reason of their size, function or
organisation, the constitution may provide for the establishment of a
coordinating workplace forum with jurisdiction over those matters
mentioned in sections 84 and 86 that affect the employees generally and
for the establishment of a subsidiary workplace forum in each of the
workplaces with jurisdiction over those matters that affect only the
employees in that workplace.
(2) Where the employer has a workplace that is geographically dispersed
and there are matters that are of local interest rather than general
interest, the constitution may establish a coordinating workplace forum
with general jurisdiction and subsidiary workplace forums with local
interest jurisdiction.
Example:
A bank with a head office may have many branches dispersed around
the country.
If the branches are not regarded as separate workplaces, the bank
may have one workplace forum for all its employees or the
constitution may allow for the establishment of a coordinating
workplace forum at head office level and in certain or all of the
branches allow the establishment of subsidiary workplace forums
that will deal with matters that affect only the employees in
those branches.
SCHEDULE 3
COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION
1. Remuneration and allowances of members of governing body The Minister,
after consulting the Minister of Finance, must determine the
remuneration and allowances and any other terms and conditions of
appointment of members of the governing body.
2. Resignation and removal from office of member of governing body
(1) A member of the governing body may resign by giving notice to the
governing body.
(2) The Minister, acting on the advice of NEDLAC, may remove a member of
the governing body from office for(a) serious misconduct;
(b) incapacity; or
(c) being absent from three consecutive meetings of the governing
body without good cause or prior permission from the chairperson.
3. Vacancies in governing body
(1) A vacancy in the governing body exists whenever
(a) a member's term of office ends;
(b) a member's resignation takes effect;
(c) a member is removed from office; or
(d) a member dies.
(2) The Minister must fill a vacancy in the governing body as soon as is
practicable.
In the meantime, the Commission's proceedings and decisions
continue to be valid.
(3) If a vacancy-
(a) is owing to the end of a member's term of office, the
Minister may reappoint the member, or appoint another
person nominated by NEDLAC in accordance with section
116(2) and (3);
(b) is owing to any other cause, the Minister must appoint
another person nominated by NEDLAC in accordance with
section 116(2) and (3) to replace the member and serve
the unexpired portion of the replaced member's term of
office.
4. Proceedings of governing body
(1) The governing body must determine procedures for its meetings.
(2) A quorum for a meeting of the governing body is three members of the
governing body. The quorum must include-
(a) one member who was nominated by those voting members of NEDLAC
who represent organised business;
(b) one member who was nominated by those voting members of NEDLAC
who represent organised labour; and
(c) one member who was nominated by those voting members of NEDLAC
who represent the State.
(3) Despite sub-item (2), a meeting of the governing body may be held in
the absence of any member representing organised business or organised
labour or the State, if those members have agreed to the meeting
proceeding in the absence of that member and to the issues which may be
dealt with in the absence of that member.
(4) If the chairperson is absent from a meeting of the governing body,
the members present must elect one of themselves to preside at that
meeting, and at that meeting that member may exercise or perform any
function of the chairperson.
(5) A defect or error in the appointment of a member of the Commission
does not affect the validity of the Commission's proceedings or
decisions.
5. Director of Commission
(1) The director may resign by giving written notice to the governing
body.
(2) The governing body may remove the director from office for-
(a) serious misconduct;
(b) incapacity;
(c) a material violation of the Commission's code of conduct; or
(d) being absent from three consecutive meetings of the governing
body without good cause or prior permission from the chairperson.
(3) A vacancy in the office of director exists whenever-
(a) the director reaches the age of 65;
(b) the director's resignation takes effect;
(c) the governing body removes the director from office; or
(d) the director dies.
(4) The governing body must appoint a director in accordance with the
provisions of section II 8 as soon as practicable after the office of the
director becomes vacant.
6. Bank account The governing body must open and maintain an account in the
name of the Commission with a bank registered in the Republic, or
with another registered financial institution approved by the
Minister of Finance and, subject to item 7, must
(a) deposit to that account any money that the Commission receives;
and
(b) make all payments on behalf of the Commission from that account.
7. Investment of surplus money The governing body may resolve to invest any
money that the Commission does not immediately require to meet
current expenditure or contingencies
(a) on call or short-term deposit with any bank that meets the
requirements stated in item 6;
(b) if the Minister, with the concurrence of the Minister of Finance,
gives written approval of the duration and other terms of the
investment, in an investment account with the Corporation for Public
Deposits.
8. Accounting and auditing The Commission must, to the standards of
generally accepted accounting practice, principles and procedures
(a) keep books and records of its income, expenditure, assets and
liabilities;
(b) as soon as practicable after the end of each financial year,
prepare financial statements, including at least a statement of
income and expenditure for the previous financial year and a balance
sheet showing its assets, liabilities and financial position as at
the end of the previous financial year-, and
(c) each year, arrange for the Auditor-General to audit its books and
records of account and its financial statements.
9. Annual report
(1) As soon as practicable after the end of each financial year, the
Commission must provide the Minister with a report concerning the
activities and the financial position of the Commission during the
previous financial year.
(2) The Minister must table the Commission's annual report in Parliament
within 14 days of receiving it from the Commission, but if Parliament is
not in session at that time, the Minister must table the report within 14
days of the beginning of the next session of Parliament.
SCHEDULE 4
DISPUTE RESOLUTION: FLOW DIAGRAMS
This Schedule contains flow diagrams that provide guidelines to the
procedures for the resolution of some of the more important disputes that
may arise under this Act. This Schedule is not part of this Act. It
does not have the force of law. The flow diagrams are intended only to
provide assistance to those parties who may become involved in a dispute.
The flow diagrams do not indicate the rights that parties may have to
seek urgent interim relief, nor do they indicate the right of review or
appeal that parties have to the Labour Court or the Labour Appeal Court
in certain cases. This Act sets out the circumstances in which these
rights are available.
Awards and determinations by arbitrators are enforceable ultimately by
the Labour Court.
FLOW DIAGRAM I
CHAPTER 11 (Section 9)
FOOTNOTES:
1 . This procedure is relevant to the interpretation or application of
Chapter II. For example, if an employer threatens to dismiss an
employee unless the employee resigns from a trade union, that employee
can enforce the rights conferred by this chapter in terms of this
The flow diagrams do not indicate the rights that parties may have to
seek urgent interim relief, nor do they indicate the right of review or
appeal that parties have to the Labour Court or the Labour Appeal Court
in certain cases. This Act sets out the circumstances in which these
rights are available.
Awards and determinations by arbitrators are enforceable ultimately by
the Labour Court.
FLOW DIAGRAM I
CHAPTER 11 (Section 9)
FOOTNOTES:
1 . This procedure is relevant to the interpretation or application of
Chapter II. For example, if an employer threatens to dismiss an
employee unless the employee resigns from a trade union, that employee
can enforce the rights conferred by this chapter in terms of this
"(3) The Mines and Works Act, 1956 (Act No. 27 of 1956), the Wage Act,
1957 (Act No. 5 of 1957), the Manpower Training Act, 1981 (Act No. 56
of 1981) and the Labour Relations Act, 1995, as well as any matter
regulated under any of them in respect of an employee, shall not be
affected by this Act, but this Act shall apply in respect of any such
employee in so far as a provision thereof provides for any matter which
is not regulated by or under any of the said Acts in respect of such
employee.".
2. Amendment of section 35 of Occupational Health and Safety Act, 1993
Section 35 of the Occupational Health and Safety Act, 1993 (Act
No. 85 of 1993), is hereby amended-
(a) by the substitution for the words "Industrial court", wherever
they occur in subsection (3), of the words "Labour Court"; and
(b) by the substitution for subsection (4) of the following
subsection-
"(4) Any person who wishes to appeal in terms of subsection (3), shall
within 60 days after the chief inspector's decision was given, lodge the
appeal with the registrar of the Labour Court in accordance with the
Labour Relations Act, 1995, and the rules of the Labour Conn. ".
SCHEDULE 6
LAWS REPEALED BY SECTION 212
Number and year of law Short title Extent of repeal
Act No.28 of 1956 Labour Relations Act, 1956 The whole
Act No.41 of 1959 Industrial Conciliation Amendment
Act, 1959 The whole
Act No.18 of 1961 Industrial Conciliation Amendment
Act, 1961 The whole
Act No.43 of 1966 Industrial Conciliation Amendment
Act, 1966 The whole
Act No.61 of 1966 Industrial Conciliation Further
Amendment Act, 1966 The whole
Act No.104 of 1967 Industrial Conciliation Amendment
Act, 1967 The whole
Act No.21 of 1970 Industrial Conciliation Amendment
Act, 1970 The whole
Act No.94 of 1979 Industrial Conciliation Amendment
Act, 1979 The whole
Act No.95 of 1980 Industrial Conciliation Amendment
Act, 1980 The whole
Act No.57 of 1981 Labour Relations Amendment Act, 1981 The whole
Act No.51 of 1982 Labour Relations Amendment Act, 1982 The whole
Act No. 2 of 1983 Labour Relations Amendment Act, 1983 The whole
Act No.81 of 1984 Labour Relations Amendment Act, 1984 The whole
Act No.83 of 1988 Labour Relations Amendment Act, 1988 The whole
Act No. 9 of 1991 Labour Relations Amendment Act, 1991 The whole
Act No.129 of 1993 General Law Third Amendment Act, 1993 Section 9 only
Act No.146 of 1993 Education Labour Relations Act, 1993 The whole
Act No.147 of 1993 Agricultural Labour Act, 1993 Chapter I only
Act No.50 of 1994 Agricultural Labour Amendment
Act, 1994 Section I only
Proclamation No.105 Public Service Labour Relations
Act, 1994 The whole of 1994
Proclamation No.128 Education Labour Relations Act,
Amendment The whole except
of 1994
Proclamation, 1994
section 6
Proclamation No.134 Sections 1 and 2
only of 1994
South African Police Service
Labour Relations Regulations, The whole 1995
SCHEDULE 7
TRANSITIONAL ARRANGEMENTS
PART A-DEFINITIONS FOR THIS SCHEDULE
Definitions for this Schedule In this Schedule, unless the context
otherwise indicates"Agricultural Labour Act" means the Agricultural
Labour Act, 1993 (Act No. 147 of 1993);
"Education Labour Relations Act" means the Education Labour Relations
Act, 1993 (Act No. 146 of 1993);
"Education Labour Relations Council" means the council established by
section 6(1) of the Education Labour Relations Act;
"Labour Relations Act" means the Labour Relations Act, 1956 (Act No. 28
of 1956);
"labour relations laws" means the Labour Relations Act, the Education
Labour Relations Act, Chapter I of the Agricultural Labour Act and the
Public Service Labour Relations Act;
"National Negotiating Forum" means the National Negotiating Forum
established for the South African Police Service by the South African
Police Service Labour Relations Regulations, 1995;
"pending" means pending immediately before this Act comes into operation;
" public service" does not include the education sector;
"Public Service Bargaining Council" means the bargaining council referred
to in section 5(1) of the Public Service Labour Relations Act;
"Public Service Labour Relations Act" means the Public Service Labour
Relations Act, 1994 (promulgated by Proclamation No. 105 of 1994);
"registrar" means the registrar of labour relations designated in terms
of section 108; and
"trade union" includes an employee organisation.
PART B-UNFAIR LABOUR PRACTICES
2. Residual unfair labour practices
(1) For the purposes of this item, an unfair labour practice means any
unfair act or omission that arises between an employer and an employee,
involving-
(a) the unfair discrimination, either directly or indirectly, against
an employee on any arbitrary ground, including, but not limited to
race, gender, sex, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, political
opinion, culture, language, marital status or family responsibility;
(b) the unfair conduct of the employer relating to the promotion,
demotion or training of an employee or relating to the provision of
benefits to an employee;
(c) the unfair suspension of an employee or any other disciplinary
action short of dismissal in respect of an employee;
(d) the failure or refusal of an employer to reinstate or re-employ a
former employee in terms of any agreement.
(2) For the purposes of sub-item (1)(a)-
(a) "employee" includes an applicant for employment;
(b) an employer is not prevented from adopting or implementing
employment policies and practices that are designed to achieve the
adequate protection and advancement of persons or groups or
categories of persons disadvantaged by unfair discrimination, in
order to enable their full and equal enjoyment of all rights and
freedoms; and
(c) any discrimination based on an inherent requirement of the
particular does not constitute unfair discrimination.
3. Disputes about unfair labour practices55
(1) Any party may refer a dispute about an alleged unfair labour practice
in writing to-
(a) a council, if the parties to the dispute fall within the
registered scope of that council; or
(b) the Commission, if no council has jurisdiction.
(2) The party who refers the dispute must satisfy the council or the
Commission that a copy of the referral has been served on all the other
parties to the dispute.
(3) The council or the Commission must attempt to resolve the dispute
through conciliation.
(4) If the dispute remains unresolved-
(a) any party to the dispute, if the dispute is about an act or
omission referred to in item 2(1)(a), may refer the dispute to the
Labour Court for adjudication;
(b) any party to the dispute, if the dispute is about an act or
omission referred
55. See flow diagram No. 14 in Schedule 4. to in item 2(1)(b), (c) or
(d), may request that the dispute be resolved through arbitration.
4. Powers of Labour Court and Commission
(1) The Labour Court has the power to determine any dispute that has been
referred to it in terms of item 3 on terms it deems reasonable,
including, but not limited to, the ordering of reinstatement or
compensation.
(2) The arbitrator has the power to determine any dispute that has been
referred to it in terms of item 3 on reasonable terms.
PART C-PROVISIONS CONCERNING EXISTING TRADE UNIONS,
EMPLOYERS' ORGANISATIONS, INDUSTRIAL COUNCILS AND
CONCILIATION BOARDS
5. Existing registered trade unions and employers' organisations
(1) A trade union or employers' organisation registered in terms of the
labour relations laws immediately before the commencement of this Act is
deemed to be a registered trade union or registered employers'
organisation under this Act and continues to be a body corporate.
(2) As soon as practicable after the commencement of this Act, the
registrar must enter-
(a) the name of the trade union in the register of trade unions;
(b) the name of the employers' organisation in the register of
employers' organisations.
(3) A trade union or employers' organisation whose name has been entered
in the appropriate register must be issued with a new certificate of
registration.
(4) If any provision of the constitution of the trade union or employers'
organisation does not comply with the requirements of section 95, the
registrar may direct that trade union or employers' organisation, in
writing, to rectify its constitution and submit it to the registrar
within a period specified in the direction, which period may not be
shorter than three months.
(5) If a trade union or employers' organisation falls to comply with a
direction issued to it in terms of sub-item (4), the registrar must
notify the trade union or employers' organisation that cancellation of
its registration is being considered because of the failure, and give the
trade union or employers' organisation an opportunity to show cause why
its registration should not be cancelled within 30 days of the notice.
(6) If, when the 30-day period expires, the relevant trade union or
employers' organisation has not shown cause why its registration should
not be cancelled, the registrar must cancel the registration of that
trade union or employers' organisation by removing its name from the
appropriate register or take other lesser steps that are appropriate and
not inconsistent with this Act.
(7) The registrar must notify the relevant trade union or employers'
organisation whether the registration of the trade union or employers'
organisation has been cancelled.
(8) Cancellation in terms of subitem (6) takes effect-
(a) if the trade union or the employers' organisation has failed,
within the time contemplated in section 111 (3), to appeal to the
Labour Court against the cancellation, when that period expires; or
(b) if the trade union or the employers' organisation has lodged an
appeal, when the decision of the registrar has been confirmed by the
Labour Court.
6. Pending applications by trade unions or employers' organisations for
registration, variation of scope, alteration of constitution or name
(1) Any pending application in terms of the labour relations laws for the
registration, variation of scope of registration or alteration of the
constitution or name of a trade union or an employers' organisation must
be dealt with by the registrar as if the application had been made in
terms of this Act.
(2) The registrar appointed in terms of the Public Service Labour
Relations Act and the secretary of the Education Labour Relations Council
appointed in terms of the Education Labour Relations Act must forward any
pending application referred to in sub-item (1) to the registrar.
(3) In any pending appeal in terms of section 16 of the Labour Relations
Act or in terms of section I I of the Education Labour Relations Act or
in terms of section I I of the Public Service Labour Relations Act, the
Minister or the registrar of the industrial court or the registrar of the
Supreme Court, as the case may be, must refer the matter back to the
registrar who must deal with the application as if it were an application
made in terms of this Act.
(4) When dealing with any application referred to in sub-item (1) or (2),
the registrar-
(a) may condone any technical non-compliance with the provisions of
this Act; and
(b) may require the applicant to amend its application within 60 days
in order to comply with the provisions of this Act.
7. Industrial councils
(1) An industrial council registered in terms of the Labour Relations Act
immediately before the commencement of this Act is deemed to be a
bargaining council under this Act and continues to be a body corporate.
(2) As soon as practicable after the commencement of this Act, the
registrar must enter the name of the bargaining council in the register
of councils.
(3) A bargaining council whose name has been entered in the register of
councils must be issued with a certificate of registration.
(4) If any provision of the constitution of a bargaining council does not
comply with the requirements of section 30, the registrar may direct the
bargaining council, in writing, to rectify its constitution and submit it
to the registrar within a period specified in the direction, which period
may not be shorter than three months.
(5) If a bargaining council fails to comply with a direction issued to it
in terms of sub-item (4), the registrar must notify the bargaining
council that cancellation of its registration is being considered because
of the failure, and give the bargaining council an opportunity to show
cause why its registration should not be cancelled within 30 days of the
notice.
(6) If, when the 30-day period expires, the bargaining council has not
shown cause why its registration should not be cancelled, the registrar
must cancel the registration of that bargaining council by removing its
name from the register of councils or take other lesser steps that are
appropriate and not inconsistent with this Act.
(7) The registrar must notify the bargaining council whether the
registration of the bargaining council has been cancelled.
(8) Cancellation in terms of sub-item (6) takes effect-
(a) if the bargaining council has failed, within the time
contemplated in section 111(3), to appeal to the Labour Court against
the cancellation, when that period expires; or
(b) if the bargaining council has lodged an appeal, when the decision
of the registrar has been confirmed by the Labour Court.
8. Pending applications by industrial councils for registration and variation
of scope
(1) Any pending application for the registration or the variation of the
scope of registration of an industrial council in terms of the Labour
Relations Act must be dealt with as if it were an application made in
terms of this Act.
(2) In any pending appeal in terms of section 16 of the Labour Relations
Act against the refusal to register an industrial council, the Minister
or the registrar of the Supreme Court must refer the matter to the
registrar of labour relations who must consider the application anew as
if it were an application for registration made in terms of this Act.
(3) When dealing with the application referred to in sub-item (1) or (2),
the registrar may-
(a) require the applicant to amend its application within 60 days in
order to comply with the provisions of this Act; and
(b) condone technical non-compliance with the provisions of this Act.
9. Pending applications by industrial councils for alteration of
constitution or name
The provisions in item 6 apply, read with the changes required by the
context, to any pending application for the alteration of the
constitution or the name of an industrial council in terms of the Labour
Relations Act.
10. Pending applications for admission of parties to industrial councils
(1) Any pending application for admission of a party to an industrial
council in terms of section 21 A of the Labour Relations Act must be
dealt with by the industrial council as if it were an application made in
terms of this act (2) Any pending appeal before the industrial court
against a decision of an industrial I] in terms of section 21 A of the
Labour Relations Act must be with by council in the industrial
court as if the application had been made for admission as a party to a
bargaining council in terms of this Act.
(3) An appeal against a decision of an industrial council as contemplated
in section 21 A of the Labour Relations Act may, despite the repeal of
that Act, be instituted after the commencement of this Act, and must be
heard by the Labour Court and dealt with as if the application for
admission had been made in terms of this Act.
11. Pending applications to wind up and cancel registration of trade
unions, employers' organisations and industrial councils
Any pending application to wind up or to cancel the registration of a
trade union, employers' organisation or industrial council registered in
terms of any labour relations law must be dealt with by the registrar as
if the labour relations laws had not been repealed.
12. Existing agreements and awards of industrial councils and
conciliation boards
(1) Any agreement promulgated in terms of section 48, and any award made
in terms of section 50, of the Labour Relations Act and in force
immediately before the commencement of this Act remains in force for a
period of 18 months after the commencement of this Act or until the
expiry of that agreement, whichever is the shorter period, as if that Act
had not been repealed.
(2) An agreement promulgated in terms of section 12 of the Education
Labour Relations Act and in force immediately before the commencement of
this Act remains in force for a period of 18 months after the
commencement of this Act or until the expiry of that agreement, whichever
is the shorter period, as if the provisions of that Act had not been
repealed.
(3) Despite the provisions of sub-item (1), an agreement referred to in
section 24(l)(x) of the Labour Relations Act that is in force immediately
before the commencement of this Act will be deemed to be a closed shop
agreement concluded in compliance with section 26 of this Act except
that-
(a) the requirements in section 26(3)(d) and section 98(2)(b)(ii)
become applicable at the commencement of the next financial year of
the trade union party to the agreement; and
(b) the commencement date of the closed shop agreement shall be
deemed to be the commencement date of this Act.
(4) Any pending request for the promulgation of an agreement in terms of
section 48 of the Labour Relations Act must be dealt with as if the
Labour Relations Act had not been repealed.
(5) Any request made before the expiry of six months after the
commencement of this Act for the promulgation of an agreement entered
into before the commencement of this Act must be dealt with as if the
Labour Relations Act had not been repealed.
(6) Any pending application for an exemption from an agreement
promulgated in terms of section 48 of the Labour Relations Act must be
dealt with as if the Labour Relations Act had not been repealed.
13. Existing agreements including recognition agreements
(1) For the purposes of this section, an agreement-
(a) includes a recognition agreement;
(b) excludes an agreement promulgated in terms of section 48 of the
Labour Relations Act or section 12 of the Education Labour Relations
Act;
(c) means an agreement about terms and conditions of employment or
any other matter of mutual interest entered into between one or more
registered trade unions, on the one hand, and on the other hand-
(i) one or more employers;
(ii) one or more registered employers' organisations; or
(iii) one or more employers and one or more registered
employers' organisations.
(2) Any agreement that was in force immediately before the commencement
of this Act is deemed to be a collective agreement concluded in terms of
this Act.
(3) Any registered trade union that is party to an agreement referred to
in sub-items (1) and (2) in terms of which that trade union was
recognised for the purposes of collective bargaining is entitled to the
organisational rights conferred by sections I I to 16 of Chapter III and
in respect of employees that it represents in terms of the agreement, for
so long as the trade union remains recognised in terms of the agreement
as the collective bargaining agent of those employees.
(4) If the parties to an agreement referred to in subsection (1) or (2)
have not provided for a procedure to resolve any dispute about the
interpretation or application of the agreement as contemplated in section
24(l), the parties to the agreement must attempt to agree a procedure as
soon as practicable after the commencement of this Act.
(5) An existing non-statutory agency shop or closed shop agreement is
not binding unless the agreement complies with the provisions of sections
25 or 26 of this Act respectively. This provision becomes effective 180
days after the commencement of this Act.
PART D-MATTERS CONCERNING PUBLIC SERVICE
14. Public Service Bargaining Council
(1) The Public Service Bargaining Council will continue to exist, subject
to item 20.
(2) The departmental and provincial chambers of the Public Service
Bargaining Council will continue to exist, subject to item 20.
(3) Within 30 days after the commencement of this Act, the chambers of
the Public Service Bargaining Council must furnish the registrar with
copies of their constitutions signed by their authorised representatives.
(4) The constitutions of the chambers of the Public Service Bargaining
Council, are deemed to be in compliance with section 30. However, where
any provision of the constitution of a chamber does not comply with the
requirements of section 30, the registrar may direct the chamber to
rectify its constitution and re-submit the rectified constitution within
the period specified in the direction, which period may not be shorter
than three months.
(5) If a chamber fails to comply with a direction issued to it in terms
of sub-item (5), the registrar must-
(a) determine the amendments to the constitution in order to meet the
requirements of section 30; and
(b) send a certified copy of the constitution to the chamber.
(6) A chamber of the Public Service Bargaining Council must deal with any
pending application for admission of a party to it in terms of section 10
of the Public Service Labour Relations Act as if the application had been
made in terms of this Act.
(7) Any pending appeal before the industrial court or an arbitrator
against a decision of the Public Service Bargaining Council in terms of
section 10 of the Public Service Labour Relations Act must, despite the
repeal of any of the labour relations laws, be dealt with by the
industrial court or arbitrator as if the application had been made in
terms of this Act.
(8) Despite the repeal of the Public Service Labour Relations Act, an
appeal in terms of section 10 of that Act against a decision of a chamber
of the Public Service Bargaining Council may be instituted after the
commencement of this Act and must be heard by the Labour Court and dealt
with as if the application had been made in terms of this Act.
15. Collective agreements in the public service
The following provisions, read with the changes required by the context,
of the Public Service Labour Relations Act, despite the repeal of that
Act, will have the effect and status of a collective agreement binding on
the State, the parties to the chambers of the Public Service Bargaining
Council and all employees in the public service-
(a) section I for the purposes of this item unless the context
otherwise indicates;
(b) section 4(10);
(c) section 5(2), (3), (4)(a) and (5);
(d) section 7;
(e) section 8, except that the reference to section 5(l) should be a
reference to item 14(l);
(f) section 9(3);
(g) section 10(4) and (5);
(h) section 12;
(i) section 13, except that the reference to agreements should be a
reference to collective agreements including the collective agreement
contemplated in this item;
(j) sections 14, 15 and 16(2);
(k) section 17, except that the following subsection must be
substituted for subsection (4)(b)- "If the application of a trade
union for recognition is refused, the trade union, within 90 days of
the notice of the refusal, may refer the dispute to arbitration.";
and
(l) section 18, except that-
(i) the following subsection must be substituted for sub- section
(10)(a)- "An employee who or the employee organisation which in terms
of subsection (1) has declared a dispute, requested that a
conciliation board be established and submitted the completed
prescribed form, may refer the dispute to arbitration or to the
Labour Court in terms of the provisions of this Act and, in respect
of a dispute not contemplated by this Act, to any other court if-
(i) a meeting of a conciliation board is not convened as
contemplated in subsection (3);
(ii) the head of department concerned falls to request the
appointment of a chairperson in terms of subsection (5);
(iii) where applicable, the Commission fails to appoint a
chairperson of the conciliation board in terms of
subsection (5);
(iv) the parties involved in the conciliation board have
failed to agree to extend the period of office of the
conciliation board in terms of subsection (7) until a
settlement is reached;
(v) the conciliation board does not succeed in settling the
dispute within the period contemplated in subsection (7);
or
(vi) the parties to the dispute agree that they will not be
able to settle the dispute and submit written proof thereof
to the Commission or relevant court."; and
(ii) any reference to the Department of Labour should be a
reference to the Commission.
16. Education Labour Relations Council
(1) The Education Labour Relations Council will continue to exist,
subject to item 20.
(2) The registered scope of the Education Labour Relations Council is the
State and those employees in respect of which the Educators' Employment
Act, 1994 (Proclamation No. 138 of 1994), applies.
(3) Within 30 days after the commencement of this Act, the Education
Labour Relations Council must furnish the registrar with a copy of its
constitution signed by its authorised representatives, and with the other
information or documentation.
(4) The constitution agreed on between the parties to the Education
Labour Relations Council is deemed to be in compliance with this Act:
However, where any provision of the constitution does not comply with the
requirements of section 30, the registrar may direct the Council to
rectify its constitution and re-submit the rectified constitution within
the period specified in the direction, which period may not be shorter
than three months.
(5) If the Education Labour Relations Council fails to comply with a
direction issued to It in terms of sub-item (5), the registrar must-
(a) determine the amendments to the constitution in order to meet the
requirements of section 30; and
(b) send a certified copy of the constitution to the Council.
(6) The Education Labour Relations Council must deal with any pending
application for admission to it in terms of the Education Labour
Relations Act as if the application had been made in terms of this Act.
(7) Any pending appeal before the industrial court or an arbitrator
against a decision of the Education Labour Relations Council must,
despite the repeal of any of the labour relations laws, be dealt with by
the industrial court or arbitrator as if the application had been made in
terms of this Act.
(8) Despite the repeal of the Education Labour Relations Act, any appeal
against a decision of the Education Labour Relations Council may be
instituted after the commencement of this Act and must be heard by the
Labour Court and dealt with as if the application had been made in terms
of this Act.
17. Education sector collective agreements
The following provisions, read with the changes required by the
context, of the Education Labour Relations Act, despite the repeal of
that Act, will have the effect and status of a collective agreement
binding on the State, the parties to the Education Labour Relations
Council and all employees within registered scope-
(a) section 6(2) and (3);
(b) section 8(3), (4) and (5)(a);
(c) section 10(3) and (4);
(d) section 12(1) to (4), except that the disputes referred to in
subsections (2) and (4) may be referred to arbitration only; and
(e) section 13 and section 14(2).
18. Negotiating Forums in South African Police Service
(1) The National Negotiating Forum will continue to exist subject to item
20.
(2) The registered scope of the National Negotiating Forum is the State
and those employees in respect of whom the South African Police Service
Rationalisation Proclamation, 1995 and the Act contemplated in section
214 of the Constitution applies.
(3) Within fourteen days of the commencement of this Act, or signing of
its constitution by its authorised representatives, whichever is the
later, the National Negotiating Forum must furnish the registrar with a
copy of its constitution signed by its authorised representatives, and
with the other information or documentation.
(4) The constitution agreed to by the National Negotiating Forum is
deemed to be in compliance with this Act. However where any provision of
the constitution does not comply with the requirements of section 30, the
registrar may direct the National Negotiating Forum to rectify its
constitution and re-submit the rectified constitution within fourteen
days.
(5) The National Commissioner of the South African Police Service must
deal with any pending application for registration and recognition in
terms of the South made' African Police Service Labour Regulations as if
the application had been in terms of this Act
19. Collective agreement in South African Police Service
The provisions of the South African Police Services Employment
Regulations, read with the changes required by the context, despite the
repeal of those regulations, will have the effect and status of a
collective agreement binding on the State, the parties to the National
Negotiating Forum and all the employees within its registered scope.
20. Consequences for public service bargaining institutions when Public
Service Co-ordinating Bargaining Council is established
When the Public Service Co-ordinating Bargaining Council is established
in terms of item 2 of Schedule I-
(a) the Public Service Bargaining Council and its chamber at central
level will cease to exist; and
(b) the following chambers of the former Public Service Bargaining
Council will continue to exist as juristic persons, despite paragraph
(a), namely-
(i) the chamber for each department, which will be deemed to be a
bargaining council that has been established under section 37(3)(a)
of this Act for that department;
(ii) the chamber for each provincial administration, which will be
deemed to be a bargaining council that has been established under
section 37(3)(a) for that provincial administration; and
(c) the Education Labour Relations Council will be deemed to be a
bargaining council that has been established in terms of section
37(3)(b) of this Act for the education sector;
(d) the National Negotiating Forum will be deemed to be a bargaining
council that has been established in terms of section 37(3)(b) of
this Act for the South African Police Service.
PART E-DISPUTES AND COURTS
21. Disputes arising before commencement of this Act (1) Any dispute
contemplated in the labour relations laws that arose before the
commencement of this Act must be dealt with as if those laws had not been
repealed.
(2) Despite subsection (1), a strike or lock-out that commences after
this Act comes into operation will be dealt with in terms of this Act.
This rule applies even if the dispute giving rise to the strike or
lock-out arose before this Act comes into operation.
(3) For the purposes of a strike or lock-out referred to in sub-item (2),
compliance with section 65(l)(d) of the Labour Relations Act, section
19(l)(b) of the Public Service Labour Relations Act and section 15(l)(b)
of the Education Labour Relations Act will be deemed to be compliance
with section 64(l)(a) of this Act.
22. Courts (1) In any pending dispute in respect of which the industrial
court or the agricultural labour court had jurisdiction and in respect of
which proceedings had not been instituted before the commencement of this
Act, proceedings must be instituted in the industrial court or
agricultural labour court (as the case may be) and dealt with as if the
labour relations laws had not been repealed. The industrial court or the
agricultural labour court may perform or exercise any of the functions
and powers that it had in terms of the labour relations laws when it
determines the dispute.
(2) Any dispute in respect of which proceedings were pending in the
industrial court or the agricultural labour court must be proceeded with
as if the labour relations laws had not been repealed.
(3) Any pending appeal before the Labour Appeal Court established by
section 17A of the Labour Relations Act must be dealt with by the Labour
Appeal Court as if the labour relations laws had not been repealed.
(4) Any pending appeal from a decision of that Labour Appeal Court or any
appeal to the Appellate Division from a decision of the Labour Appeal
Court in terms of section 17C and section 64 of the Labour Relations Act
must be dealt with as if the labour relations laws had not been
repealed.
(5) Any appeal from a decision of the industrial court or the
agricultural labour court in terms of sub-item (1) or (2), must be made
to the Labour Court established by section 151 of this Act, and that
Labour Court must deal with the appeal as if the labour relations laws
had not been repealed.
PART F-PENSION MATTERS
23. Continuation of existing pension rights of staff members of
Commission upon assuming employment (1) Any staff member of the
Commission who, immediately before assuming employment with the
Commission, is a member of the Government Service Pension Fund, the
Temporary Employees Pension Fund or any other pension fund or scheme
administered by the Department of Finance (hereinafter referred to as an
officer or employee), may upon assuming that employment-
(a) choose to remain a member of that pension fund, and from the date
of exercising the choice, the officer or employee, despite the
provisions of any other law, will be deemed to be a dormant member of
the relevant pension fund within the contemplation of section
15(l)(a) of the General Pensions Act, 1979 (Act No. 29 of 1979);
(b) request to become a member of the Associated Institutions Pension
Fund established under the Associated Institutions Pension Fund Act,
1963 (Act No. 41 of 1963), as if the Commission had been declared an
associated institution under section 4 of that Act; or
(c) request to become a member of any other pension fund registered
under the Pension Funds Act, 1956 (Act No. 24 of 1956).
(2) In the case where an officer or employee becomes a member of a fund
after making a request in terms of sub-item (1)(b) or (c)-
(a) the pension fund of which the officer or employee was a member
("the former fund") must transfer to the pension fund of which the
officer or employee becomes a member of ("the new fund") an amount
equal to the funding level of the former fund multiplied by its
actuarial liability in respect of that officer or employee at the
date the officer or employee assumes office with the Commission,
increased by the amount of interest calculated on that amount at the
prime rate of interest from the date when employment with the
Commission commenced up to the date of transfer of the amount;
(b) membership of the officer or employee of the former fund will
lapse from the date when employment with the Commission commenced,
and from that date the officer or employee will cease to have any
further claim against the former fund except as provided in paragraph
(a); and
(c) the former fund must transfer any claim it may have against the
officer or employee, to the new fund.
(3) In the case where an officer or employee becomes a member of a new
fund after a request in terms of sub-item (1)(c) the State must pay the
new fund an amount equal to the difference between the actuarial
liability of the former fund in respect of the officer or employee as on
the date of the commencement of employment with the Commission, and the
amount transferred in terms of sub-item (2)(c) to the new fund, increased
by the amount of interest thereon calculated at the prime rate from the
date of commencement of employment up to the date of the transfer of the
amount.
(4) Sub-items (2) and (3) will apply, read with the changes required by
the context, in respect of any officer or employee who, by reason of
having made a choice in terms of sub-item (1)(a), has become a dormant
member and thereafter requests that the pension benefits that had
accrued, be transferred in terms of section 15A(1) of the General
Pensions Act, 1979, to another pension fund referred to in that Act or a
pension fund registered in terms of the Pension Funds Act, 1956.
(5) If, after an officer or employee has become a member of any other
pension fund, by reason of having made a choice in terms of sub-item
(1)(c), a lump sum benefit has become payable by that pension fund by
reason of the death, or the withdrawal or resignation from the pension
fund, or retirement, of the officer or employee, or the winding-up of the
pension fund, then, for the purposes of paragraph (e) of the definition
of "gross income" in section I of the Income Tax Act, 1962 (Act No. 58
of 1962), the pension fund will be deemed, in relation to such officer or
employee, to be a fund referred to in paragraph (a) of the definition of
"pension fund" in section I of that Act.
(6) For the purposes of this item-
" actuarial liability" of a pension fund in respect of a particular
member or a group of members of the fund, means the actuarial liability
that is determined by an actuary who the Minister has nominated for that
purpose;
"funding level", in relation to a pension fund, means the market value of
the assets of the fund stated as a percentage of the total actuarial
liability of the fund, after those assets and liabilities have been
reduced by the amount of the liabilities of the fund in respect of all
its pensioners, as determined at the time of the most recent actuarial
valuation of the fund or any review thereof carried out under direction
of the responsible Minister; and
" prime rate of interest" means the average prime rate of interest of the
three largest banks in the Republic.
SCHEDULE 8
CODE OF GOOD PRACTICE: DISMISSAL
Introduction
(1) This code of good practice deals with some of the key aspects of
dismissals for reasons related to conduct and capacity. It is
intentionally general. Each case is unique, and departures from the
norms established by this Code may be justified in proper circumstances.
For example, the number of employees employed in an establishment may
warrant a different approach.
(2) This Act emphasises the primacy of collective agreements. This Code
is not intended as a substitute for disciplinary codes and procedures
where these are the subject of collective agreements, or the outcome of
joint decision-making by an employer and a workplace forum.
(3) The key principle in this Code is that employers and employees should
treat one another with mutual respect. A premium is placed on both
employment justice and the efficient operation of business. While
employees should be protected from arbitrary action, employers are
entitled to satisfactory conduct and work performance from their
employees.
2. Fair reasons for dismissal
(1) A dismissal is unfair if it is not effected for a fair reason and in
accordance with a fair procedure, even if it complies with any notice
period in a contract of employment or in legislation governing
employment. Whether or not a dismissal is for a fair reason is
determined by the facts of the case, and the appropriateness of dismissal
as a penalty. Whether or not the procedure is fair is determined by
referring to the guidelines set out below.
(2) This Act recognises three grounds on which a termination of
employment might be legitimate. These are: the conduct of the employee,
the capacity of the employee, and the operational requirements of the
employer's business.
(3) This Act provides that a dismissal is automatically unfair if the
reason for the dismissal is one that amounts to an infringement of the
fundamental rights of employees and trade unions, or if the reason is one
of those listed in section 187.
The reasons include participation in a lawful strike, intended or actual
pregnancy and acts of discrimination.
(4) In cases where the dismissal is not automatically unfair, the
employer must show that the reason for dismissal is a reason related to
the employee's conduct or capacity, or is based on the operational
requirements of the business. If the employer fails to do that, or fails
to prove that the dismissal was effected in accordance with a fair
procedure, the dismissal is unfair.
3. Misconduct
Disciplinary procedures prior to dismissal
(1) All employers should adopt disciplinary rules that establish the
standard of conduct required of their employees. The form and content of
disciplinary rules will obviously vary according to the size and nature
of the employer's business.
In general, a larger business will require a more formal approach to
discipline. An employer's rules must create certainty and consistency in
the application of discipline. This requires that the standards of
conduct are clear and made available to employees in a manner that is
easily understood. Some rules or standards may be so well established
and known that it is not necessary to communicate them.
(2) The courts have endorsed the concept of corrective or progressive
discipline.
This approach regards the purpose of discipline as a means for employees
to know and understand what standards are required of them. Efforts
should be made to correct employees' behaviour through a system of
graduated disciplinary measures such as counselling and warnings.
(3) Formal procedures do not have to be invoked every time a rule is
broken or a standard is not met. Informal advice and correction is the
best and most effective way for an employer to deal with minor violations
of work discipline. Repeated misconduct will warrant warnings, which
themselves may be graded according to degrees of severity. More serious
infringements or repeated misconduct may call for a final warning, or
other action short of dismissal. Dismissal should be reserved for cases
of serious misconduct or repeated offences.
Dismissals for misconduct
(4) Generally, it is not appropriate to dismiss an employee for a first
offence, except if the misconduct is serious and of such gravity that it
makes a continued employment relationship intolerable. Examples of
serious misconduct, subject to the rule that each case should be judged
on its merits, are gross dishonesty or willful damage to the property of
the employer, willful endangering of the safety of others, physical
assault on the employer, a fellow employee, client or customer and gross
insubordination. Whatever the merits of the case for dismissal might be,
a dismissal will not be fair if it does not meet the requirements of
section 188.
(5) When deciding whether or not to impose the penalty of dismissal, the
employer should in addition to the gravity of the misconduct consider
factors such as the employee's circumstances (including length of
service, previous disciplinary record and personal circumstances), the
nature of the job and the circumstances of the infringement itself.
(6) The employer should apply the penalty of dismissal consistently with
the way in which it has been applied to the same and other employees in
the past, and consistently as between two or more employees who
participate in the misconduct under consideration.
4. Fair procedure
(1) Normally, the employer should conduct an investigation to determine
whether there are grounds for dismissal. This does not need to be a
formal enquiry. The employer should notify the employee of the
allegations using a form and language that the employee can reasonably
understand. The employee should be allowed the opportunity to state a
case in response to the allegations. The employee should be entitled to
a reasonable time to prepare the response and to the assistance of a
trade union representative or fellow employee. After the enquiry, the
employer should communicate the decision taken, and preferably furnish
the employee with written notification of that decision.
(2) Discipline against a trade union representative or an employee who is
an office-bearer or official of a trade union should not be instituted
without first informing and consulting the trade union.
(3) If the employee is dismissed, the employee should be given the reason
for dismissal and reminded of any rights to refer the matter to a council
with jurisdiction or to the Commission or to any dispute resolution
procedures established in terms of a collective agreement.
(4) In exceptional circumstances, if the employer cannot reasonably be
expected to comply with these guidelines, the employer may dispense with
pre-dismissal procedures.
5. Disciplinary records
Employers should keep records for each employee specifying the nature of
any disciplinary transgressions, the actions taken by the employer and
the reasons for the actions.
6. Dismissals and industrial action
(1) Participation in a strike that does not comply with the provisions of
Chapter IV is misconduct. However, like any other act of misconduct, it
does not always deserve dismissal. The substantive fairness of dismissal
in these circumstances must be determined in the light of the facts of
the case, including-
(a) the seriousness of the contravention of this Act;
(b) attempts made to comply with this Act; and
(c) whether or not the strike was in response to unjustified conduct
by the employer.
(2) Prior to dismissal the employer should, at the earliest opportunity,
contact a trade union official to discuss the course of action it intends
to adopt. The employer should issue an ultimatum in clear and
unambiguous terms that should state what is required of the employees and
what sanction will be imposed if they do not comply with the ultimatum.
The employees should be allowed sufficient time to reflect on the
ultimatum and respond to it, either by complying with it or rejecting it.
If the employer cannot reasonably be expected to extend these steps to
the employees in question, the employer may dispense with them.
7. Guidelines in cases of dismissal for misconduct
Any person who is determining whether a dismissal for
misconduct is unfair should consider-
(a) whether or not the employee contravened a rule or standard
regulating conduct in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be
expected to have been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by
the employer; and
(iv) dismissal was an appropriate sanction for the
contravention of the rule or standard.
8. Incapacity: Poor work performance
(1) A newly hired employee may be placed on probation for a period that
is reasonable given the circumstances of the job. The period should be
determined by the nature of the job, and the time it takes to determine
the employee's suitability for continued employment. When appropriate,
an employer should give an employee whatever evaluation, instruction,
training, guidance or counselling the employee requires to render
satisfactory service. Dismissal during the probationary period should be
preceded by an opportunity for the employee to state a case in response
and to be assisted by a trade union representative or fellow employee.
(2) After probation, an employee should not be dismissed for
unsatisfactory performance unless the employer has-
(a) given the employee appropriate evaluation, instruction, training,
guidance or counselling; and
(b) after a reasonable period of time for improvement, the employee
continues to perform unsatisfactorily.
(3) The procedure leading to dismissal should include an investigation to
establish the reasons for the unsatisfactory performance and the employer
should consider other ways, short of dismissal, to remedy the matter.
(4) In the process, the employee should have the right to be heard and to
be assisted by a trade union representative or a fellow employee.
9. Guidelines in cases of dismissal for poor work performance
Any person determining whether a dismissal for poor work performance
is unfair should consider(a) whether or not the employee failed to
meet a performance standard; and
(b) if the employee did not meet a required performance standard
whether or not-
(i) the employee was aware, or could reasonably be expected
to have been aware, of the required performance standard;
(ii) the employee was given a fair opportunity to meet the
required performance standard; and
(iii) dismissal was an appropriate sanction for not meeting
the required performance standard.
10. Incapacity: III health or injury
(1) Incapacity on the grounds of ill health or injury may be temporary or
permanent. If an employee is temporarily unable to work in these
circumstances, the employer should investigate the extent of the
incapacity or the injury. If the employee is likely to be absent for a
time that is unreasonably long in the circumstances, the employer should
investigate all the possible alternatives short of dismissal. When
alternatives are considered, relevant factors might include the nature of
the job, the period of absence, the seriousness of the illness or injury
and the possibility of securing a temporary replacement for the ill or
injured employee. In cases of permanent incapacity, the employer should
ascertain the possibility of securing alternative employment, or adapting
the duties or work circumstances of the employee to accommodate the
employee's disability.
(2) In the process of the investigation referred to in subsection (1) the
employee I should be allowed the opportunity to state a case in response
and to be assisted by a trade union representative or fellow employee.
(3) The degree of incapacity is relevant to the fairness of any
dismissal. The cause of the incapacity may also be relevant. In the
case of certain kinds of incapacity, for example alcoholism or drug
abuse, counselling and rehabilitation may be appropriate steps for an
employer to consider.
(4) Particular consideration should be given to employees who are injured
at work or who are incapacitated by work-related illness. The courts
have indicated that the duty on the employer to accommodate the
incapacity of the employee is more onerous in these circumstances.
Guidelines in cases of dismissal arising from ill health or injury
Any person determining whether a dismissal arising from ill health or
injury is unfair should consider-
(a) whether or not the employee is capable of performing the work;
and
(b) if the employee is not capable-
(i) the extent to which the employee is able to perform the
work;
(ii) the extent to which the employee's work circumstances
might be adapted to accommodate disability, or, where this
is not possible, the extent to which the employee's duties
might be adapted; and
(iii) the availability of any suitable alternative work.