Loi sur les relations de travail n° 66 de 1995 (telle que modifiée par la loi sur la prévention et la lutte contre les activités de corruption 2004), Afrique du Sud, WIPO Lex

Texte(s) princip(al)(aux)

Anglais Labor Relations Act 1995 (Act No. 66 of 1995, as amended up to Prevention and Combating of Corrupt Activities Act 2004)

Labour Relations Act 1995 (Act No. 66 of 1995)

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LABOUR RELATIONS ACT 66 OF 1995

(English text signed by the President)

[Assented To: 29 November 1995]

[Commencement Date: 11 November 1996 – unless otherwise indicated]

as amended by:

Labour Relations Amendment Act 42 of 1996

Basic Conditions of Employment Act 75 of 1997

Employment Equity Act 55 of 1998

Labour Relations Amendment Act 127 of 1998

Labour Relations Amendment Act 12 of 2002

Intelligence Services Act 65 of 2002

Electronic Communications Security (Pty) Ltd Act 68 of 2002

General Intelligence Laws Amendment Act 52 of 2003

Prevention and Combating of Corrupt Activities Act 12 of 2004

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;

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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.

ARRANGEMENT OF SECTIONS

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

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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 the domestic sector

18. Right to establish thresholds of representativeness

19. Certain organisational rights for trade union party to a 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

33A. Enforcement of collective agreements by 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

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37. Bargaining councils in sectors in public service

38. Disputes between bargaining councils in public service

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 LOCKOUTS

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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 socio-economic 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

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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 trade unions or employers’ organisations

104. Winding-up of trade unions or employers’ organisations by reason of insolvency

105. Declaration that trade union 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

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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

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141. Resolution of disputes if parties consent to arbitration under auspices of Commission

142. Powers of commissioner when attempting to resolve disputes

142A.Making settlement agreement arbitration award

143. Effect of arbitration awards

144. Variation and rescission of arbitration awards and rulings

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 dispute through conciliation

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

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Part E Labour Appeal Court

167. Establishment and status of Labour Appeal Court

168. Composition of Labour Appeal Court

169. Appointment of other 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 the 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

184. General provisions applicable to courts established by this Act

CHAPTER VIII UNFAIR DISMISSAL AND UNFAIR LABOUR PRACTICE

185. Right not to be unfairly dismissed or subjected to unfair labour practice

186. Meaning of dismissal

187. Automatically unfair dismissals

188. Other unfair dismissals

188A.Agreement for pre-dismissal arbitration

189. Dismissals based on operational requirements

189A.Dismissals based on operational requirements by employers with more than 50

employees

190. Date of dismissal

191. Disputes about unfair dismissals and unfair labour practices

192. Onus in dismissal disputes

193. Remedies for unfair dismissal and unfair labour practice

194. Limits on compensation

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195. Compensation is in addition to any other amount

196. ……….

197. Transfer of contract of employment

197A.Transfer of contract of employment in circumstances of insolvency

197B.Disclosure of information concerning insolvency

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

200A.Presumption as to who is employee

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 to and change Schedules

208. Regulations

208A. Delegations

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

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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

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

1. Flow diagram No. 1 - Freedom of association

2. Flow diagram No. 2 - Organisational rights

3. Flow diagram No. 3 - Collective agreements

4. Flow diagram No. 4 - Collective agreements (Agency Shop and Closed Shop

Agreements)

5. Flow diagram No. 5 – Councils (Admission of Parties)

6. Flow diagram No. 6 - Strikes & Lock-Outs (Not in compliance with the Act)

7. Flow diagram No. 7 - Picketing

8. Flow diagram No. 8 - Essential Services (Dispute of interest in essential service)

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9. Flow diagram No. 9 - Workplace Forum (1)

10. Flow diagram No. 10 - Unfair dismissal (1) (Automatically Unfair Reasons)

11. Flow diagram No. 11 - Unfair dismissal (2) (Strikes and reasons related to closed

shops)

12. Flow diagram No. 12 - Unfair dismissal (3) (Misconduct/Incapacity)

13. Flow diagram No. 13 - Unfair dismissal (4) (Operational requirements)

14. Flow diagram No. 14 - Unfair labour practice

SCHEDULE 5 AMENDMENT OF LAWS

1. Amendment of section 1 of Basic Conditions of Employment Act

2. Amendment of section 35 of Occupational Health and Safety Act, 1993

3. Amendment of section 2 of Pension Funds Act, 1956.

4. Amendment of section 2 of Medical Schemes Act, 1967.

5. Amendment of section 1 of Insurance Act, 1943.

6. Amendment of section 2 of Friendly Societies Act, 1956.

7. Amendment of section 3 of Friendly Societies Act, 1956.

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. ……….

3. ……….

4. ……….

PART C-PROVISIONS CONCERNING EXISTING TRADE UNIONS, EMPLOYERS’ ORGANISATIONS, INDUSTRIAL COUNCILS AND CONCILIATION BOARDS

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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

8A. Pending enquiries by industrial registrar.

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

12A Designated agents.

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

21A. Dispute resolution by councils before their accreditation.

22. Courts

22A. Minister may authorise Commission to perform industrial court’s functions.

PART F-PENSION MATTERS

23. Continuation of existing pension rights of staff members of Commission upon assuming

employment

PART G - ESSENTIAL SERVICES

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24. Essential services in the public service.

25. Essential services provided for in the Labour Relations Act.

PART H- TRANSITIONAL PROVISIONS ARISING OUT OF THE APPLICATION OF THE LABOUR RELATIONS AMENDMENT ACT, 2002

26. Definitions

27. Representation in conciliation and arbitration

28. Order for costs in arbitration

29. Arbitration in terms of section 33A

30. Unfair labour practice

31. Bargaining councils in public service

32. Expedited applications in terms of section 189A(13)

SCHEDULE 8 CODE OF GOOD PRACTICE: DISMISSAL

1. Introduction

2. Fair reasons for dismissal

3. Disciplinary measures short of dismissal.

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: Ill health or injury

11. Guidelines in cases of dismissal arising from ill health or injury

SCHEDULE 9 MODEL CONSTITUTION FOR A STATUTORY COUNCIL

SCHEDULE 10 POWERS OF DESIGNATED AGENT OF BARGAINING COUNCIL

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CHAPTER I

PURPOSE, APPLICATION AND INTERPRETATION

1. Purpose of this Act

The purpose of this Act 1 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;

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employers and employers’ organisations can -

(i) ollectively bargain to determine wages, terms and conditions of

employment and other matters of mutual interest; and

(ii) formulate industrial policy; and

(d) to promote -

(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.

__________________ 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(1).”

2. Exclusion from application of this Act

This Act does not apply to members of -

(a) the National Defence Force;

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(b) the National Intelligence Agency; [Para. (b) amended by s. 26 of Act 68/2002]

(d) the South African National Academy of Intelligence. [Para. (d) inserted by s. 40 of Act 65/2002]

(e) Comsec. [Para. (e) added as para. (d) by s. 26 of Act 68/2002 and again added by s. 25 of Act 52/2003]

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

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.

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(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; and

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

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 -

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(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;

(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

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.

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(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 join 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

(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.

(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 officials; and

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(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.

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

(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;

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(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 to the provisions of Chapter VI -

(i) to determine its own constitution and rules; and

(ii) to hold elections for its office-bearers, officials and

representatives;

(b) to plan and organise its administration and lawful activities;

employers’ organisations;

(d) to join a federation of trade unions or a federation of employers’

organisations, subject to its constitution, and to participate in its lawful

activities; and

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(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 disputes 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.

______________ 3. See flow diagram No. 1 in Schedule 4

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

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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 their 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 by 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.

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(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

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

work place, two trade union representatives;

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;

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(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

(f) if there are more than 1 000 members of the trade union employed in

the workplace, 12 trade union representatives for the first 1 000

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, terms 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;

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

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(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

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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;

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

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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 (12), 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 the 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

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(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 a 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 union’s 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

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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;

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(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

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

(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.

______________ 4. See flow diagram No. 2 in Schedule 4.

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.

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(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 may be practicable.

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

party to the collective agreement, in so far as the provisions are

applicable between them;

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.

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(2) A collective agreement binds for the whole period of the collective agreement

every person bound in terms of subsection (l) (c) -

(a) who was a member at the time it became binding; or

(b) who becomes a member after it became binding; and

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 in writing to the other parties. [Sub-s. (4) substituted by s. 1 of Act 12/2002]

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 or a settlement agreement contemplated in either section 142A or 158(1)(c),

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. [Sub-s. (1) substituted by s. 2 of Act 12/2002]

(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);

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(b) the procedure provided for in the collective agreement is not operative;

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.

(8) If there is a dispute about the interpretation or application of a settlement

agreement contemplated in either section 142A or 158(1)(c), a party may refer

the dispute to a council or the Commission and subsections (3) to (5), with the

necessary changes, apply to that dispute. [Sub-s. (8) added by s. 2 of Act 12/2002]

_______________ 5. See flow diagram No. 3 in Schedule 4. 6. See flow diagram No. 4 in Schedule 4.

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

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employees identified in the agreement who are not members of the trade union

but are eligible for membership thereof. [Sub-s. (1) substituted by s. 1 of Act 42/96]

(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;

by the representative trade union; and

(d) no agency fee deducted may be -

(i) paid to a political party as an affiliation fee;

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(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

socio-economic interests of employees. [Para. (d) amended by s. 1 of Act 42/96]

(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 fails 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.

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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;

representative trade union before employment commences; and

(d) it provides that no membership subscription or levy 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

socio-economic interests of employees. [Para. (d) amended by s. 2 of Act 42/96]

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(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

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

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(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

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(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 be terminated.

(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.

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(4) A bargaining council may be established for more than one sector. [Sub-s. (4) added by s. 3 of Act 42/96]

28. Powers and functions of bargaining council

(1) 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;

(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;

(j) to confer on workplace forums additional matters for consultation.

(k) to provide industrial support services within the sector; and [Para. (k) added by s. 3 of Act 12/2002]

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(l) to extend the services and functions of the bargaining council to workers

in the informal sector and home workers. [Para. (l) added by s. 3 of Act 12/2002]

(2) From the date on which the Labour Relations Amendment Act, 1998, comes into

operation, the provisions of the laws relating to pension, provident or medical aid

schemes or funds must be complied with in establishing any pension, provident

or medical aid scheme or fund in terms of subsection (1) (g). [Sub-s. (2) added by s. 1 of Act 127/98]

(3) The laws relating to pension, provident or medical aid schemes or funds will

apply in respect of any pension, provident or medical aid scheme or fund

established in terms of subsection (1) (g) after the coming into operation of the

Labour Relations Amendment Act, 1998. [Sub-s. (3) added by s. 1 of Act 127/98]

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

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 and send a copy of the notice to NEDLAC. 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

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(b) have 30 days from the date of the notice to serve any objection on the

registrar and a copy on the applicant. [Sub-s. (3) substituted by s. 4 of Act 12/2002]

(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;

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

(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.

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(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

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.

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(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

(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.

(16) Subsections (3) to (10) and (11)(b)(iii) and (iv) do not apply to the registration or

amalgamation of bargaining councils in the public service. [Sub-s. (16) added by s. 4 of Act 12/2002]

30. Constitution of bargaining council

(1) The constitution of every bargaining council must at least 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;

their seats and the procedure for replacing them;

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(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;

(f) 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

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(q) a procedure by which it may resolve to wind up. [Sub-s. (1) amended by s. 5 of Act 42/96]

_____________ 7. Section 56 provides for a procedure for the admission of parties to a council.

(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 (1).

(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.

(5) The procedures for the resolution of disputes referred to in subsection (1) (h), (i)

and (j) may not entrust dispute resolution functions to the Commission unless

the governing body of the Commission has agreed thereto. [Sub-s. (5) added by s. 5 of Act 42/96]

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 -

(a) the parties to the bargaining council who are also parties to the

collective agreement;

(b) each party to the collective agreement and the members of every other

party to the collective agreement in so far as the provisions thereof apply

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to the relationship between such a party and the members of such other

party; and

agreement and the employers who are members of a registered

employers’ organisation that is such a party, 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. [S. 31 substituted by s. 6 of Act 42/96]

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

request, if at a meeting of the bargaining council -

(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 -

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(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 all the employees who, upon extension of the collective

agreement, will fall within the scope of the agreement, are members of

the trade unions that are parties to the bargaining council; [Para. (b) substituted by s. 7 of Act 42/96]

bargaining council will, upon the extension of the collective agreement,

be found to employ the majority of all the employees who fall within the

scope of the collective agreement; [Para. (c) substituted by s. 7 of Act 42/96]

(d) the non-parties specified in the request fall within the bargaining

council’s registered scope;

(e) provision is made in the collective agreement for an independent body

to hear and decide, as soon as possible, any appeal brought against -

(i) the bargaining council’s refusal of a non-party’s application for

exemption from the provisions of the collective agreement;

(ii) the withdrawal of such an exemption by the bargaining council;

[Para. (e) substituted by s. 2 of Act 127/98]

(f) the collective agreement contains criteria that must be applied by the

independent body when it considers an appeal, and that those criteria

are fair and promote the primary objects of this Act; and [Para. (f) substituted by s. 2 of Act 127/98]

(g) the terms of the collective agreement do not discriminate against non-

parties.

(4) ………. [Sub-s. (4) deleted by s. 2 of Act 127/98]

(5) Despite subsection 3 (b) and (c), the Minister may extend a collective

agreement in terms of subsection (2) if -

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(a) the parties to the bargaining council are sufficiently representative within

the registered scope of the bargaining council; and [Para. (a) substituted by s. 7 of Act 42/96 and s. 5 of Act 12/2002]

(b) the Minister is satisfied that failure to extend the agreement may

undermine collective bargaining at sectoral level or in the public service

as a whole. [Para. (b) substituted by s. 7 of Act 42/96]

(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.

(9) For the purposes of extending collective agreements concluded in the Public

service Coordinating Bargaining council or any bargaining council contemplated

in section 37 (3) or (4) -

(a) any reference in this section to an employers’ organisation must be read

as a reference to the State as employer; and

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(b) subsections (3) (c), (e) and (f) and (4) of this section will not apply. [Sub-s. (9) added by s. 7 of Act 42/96]

(10) If the parties to a collective agreement that has been extended in terms of this

section terminate the agreement, they must notify the Minister in writing. [Sub-s. (10) added by s. 5 of Act 12/2002]

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 promote, monitor and enforce

compliance with any collective agreement concluded in that bargaining council. [Sub-s. (1) substituted by s. 6 of Act 12/2002]

(1A) A designated agent may -

(a) secure compliance with the council’s collective agreements by -

(i) publicising the contents of the agreements;

(ii) conducting inspections;

(iii) investigating complaints; or

(iv) any other means the council may adopt; and

(b) perform any other functions that are conferred or imposed on the agent

by the council. [Sub-s. (1A) inserted by s. 6 of Act 12/2002]

(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 a bargaining council, a designated agent of the

bargaining council has all the powers set out in Schedule 10. [Sub-s. (3) substituted by s. 6 of Act 12/2002]

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(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.

33A Enforcement of collective agreements by bargaining councils

(1) Despite an other provision in this Act, a bargaining council may monitor and

enforce compliance with its collective agreements in terms of this section or a

collective agreement concluded by the parties to the council.

(2) For the purposes of this section, a collective agreement is deemed to include -

(a) any basic condition of employment which in terms of section 49(1) of

the Basic Conditions of Employment Act constitutes a term of

employment of any employee covered by the collective agreement; and

(b) the rules of any fund or scheme established by the bargaining

council.

(3) A collective agreement in terms of this section may authorise a designated

agent appointed in terms of section 33 to issue a compliance order requiring any

person bound by that collective agreement to comply with the collective

agreement within a specified period.

(4) (a) The council may refer any unresolved dispute concerning compliance

with any provision of a collective agreement to arbitration by an

arbitrator appointed by the council.

(b) If a party to an arbitration in terms of this section, that is not a party to

the council, objects to the appointment of an arbitrator in terms of

paragraph (a), the Commission, on request by the council, must appoint

an arbitrator.

(i) the Council remains liable for the payment of the arbitrator’s

fee; and

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(ii) the arbitration is not conducted under the auspices of the

Commission.

(5) An arbitrator conducting an arbitration in terms of this section has the powers of

a commissioner in terms of section 142, read with the changes required by the

context.

(6) Section 138, read with the changes required by the context, applies to any

arbitration conducted in terms of this section.

(7) An arbitrator acting in terms of this section may determine any dispute

concerning the interpretation or application of a collective agreement.

(8) An arbitrator conducting an arbitration in terms of this section may make an

appropriate award, including -

(a) ordering any person to pay any amount owing in terms of a collective

agreement;

(b) imposing a fine for a failure to comply with a collective agreement in

accordance with subsection (13);

(d) ordering a party to pay the costs of the arbitration;

(e) confirming, varying or setting aside a compliance order issued by a

designated agent in accordance with subsection (4);

(f) any award contemplated in section 138(9).

(9) Interest on any amount that a person is obliged to pay in terms of a

collective agreement accrues from the date on which the amount was

due and payable at the rate prescribed in terms of section 1 of the

Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), unless the

arbitration award provides otherwise.

(10) An award in an arbitration conducted in terms of this section is final and binding

and may be enforced in terms of section 143.

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(11) Any reference in section 138 or 142 to the director must be read as a reference

to the secretary of the bargaining council.

(12) If an employer upon whom a fine has been imposed in terms of this section files

an application to review and set aside an award made in terms of subsection

(8), any obligation to pay a fine is suspended pending the outcome of the

application.

(13) (a) The Minister may, after consulting NEDLAC, publish in the Government

Gazette a notice that sets out the maximum fines that may be imposed

by an arbitrator acting in terms of this section.

(b) A notice in terms of paragraph (a) may specify the maximum fine that

may be imposed -

(i) for a breach of a collective agreement -

(aa) not involving a failure to pay any amount of money;

(bb) involving a failure to pay any amount of money; and

(ii) for repeated breaches of the collective agreement

contemplated in subparagraph (i). [S. 33A inserted by s. 7 of Act 12/2002]

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.

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(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.

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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

which are not assigned to the State as employer in any sector.

______________ 8. Schedule 1 deals with the procedure for the establishment of the Public Service Co-

ordinating Bargaining Council.

37. Bargaining councils in sectors in public service

(1) The Public Service Co-ordinating Bargaining Council may, in terms of its

constitution and by resolution -

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(a) designate a sector of the public service for the establishment of a

bargaining council; and

(b) vary the designation of, amalgamate or disestablish bargaining

councils so established.

(2) A bargaining council for a sector designated in terms of subsection (1)(a) must

be established in terms of the constitution of the Public Service Co-ordinating

Bargaining Council.

(3) If the parties in the sector cannot agree to a constitution for the bargaining

council for a sector designated in terms of subsection (1)(a), the Registrar must

determine its constitution.

(4) The relevant resolution made in terms of subsection (1) must accompany any

application to register or vary the registration of a bargaining council or to

(5) A bargaining council established in terms of subsection (2) 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. [S. 37 amended by s. 8 of Act 42/96 and substituted by s. 8 of Act 12/2002]

38. Disputes between bargaining councils in public service

(1) If there is a jurisdictional dispute between two or more bargaining councils in the

public service, including the Public Service Co-ordinating Bargaining Council,

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 the

Commission that a copy of the referral has been served on all other bargaining

councils that are parties to the dispute.

(3) The Commission must attempt to resolve the dispute as soon as possible

through conciliation.

(4) If the dispute remains unresolved, any party to the dispute may request that the

dispute be resolved through arbitration by the Commission.

[0861 IMPLEX]

[S. 38 amended by s. 9 of Act 42/96 and substituted by s. 9 of Act 12/2002]

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;

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(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.

_______________ 9. The provisions of section 29 deal with the procedure for the registration of a

bargaining council.

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.

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(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 or 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

(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

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(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

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’ organisations; and

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(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’ organisation 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).

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(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

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

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).

[0861 IMPLEX]

(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 section 31, 32 and 33 apply, read with the changes

required by the context. [Sub-s. (3) substituted by s. 10 of Act 42/96]

(4) (a) From the date on which the Labour Relations Amendment Act, 1998,

comes into operation, the provisions of the laws relating to pension,

provident or medical aid schemes or funds must be complied with in

establishing any pension, provident or medical aid scheme or fund in

terms of subsection (1) (c).

(b) The provisions of the laws relating to pension, provident or medical aid

schemes or funds will apply in relation to any pension, provident or

medical aid scheme or fund established in terms of subsection (1) (c)

after the coming into operation of the Labour Relations Amendment Act,

1998. [Sub-s. (4) added by s. 3 of Act 127/98]

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 Employment Conditions

Commission in terms of section 54(4) of the Basic Conditions of Employment

Act. [Sub-s. (1) substituted by s. 10 of Act 12/2002]

(2) The Minister may promulgate the statutory council’s recommendations as a

determination under the Basic Conditions of Employment Act if satisfied that the

statutory council has complied with section 54(3) of the Basic Conditions of

Employment Act, read with the changes required by the context. [Sub-s. (2) substituted by s. 10 of Act 12/2002]

(3) The determination must provide for -

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(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.

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(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.

________________

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10. Section 29 deals with the procedure for the registration of bargaining councils.

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) A bargaining council having a collective agreement that has been extended by

the Minister in terms of section 32, must inform the registrar annually, in writing,

on a date to be determined by the registrar as to the number of employees who

are-

(a) covered by the collective agreement;

(b) members of the trade unions that are parties to the agreement;

the agreement. [Sub-s. (2) substituted by s. 11 of Act 12/2002]

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(3) A bargaining council must on request by the registrar inform the registrar in

writing within the period specified in the request as to the number of employees

who are -

(a) employed within the registered scope of the council;

(b) members of the trade unions that are parties to the council;

the council. [Sub-s. (3) substituted by s. 11 of Act 12/2002]

(4) A determination of the representativeness of a bargaining council in terms of this

section is sufficient proof of the representativeness of the council for the year

following the determination. [Sub-s. (4) added by s. 11 of Act 12/2002]

(5) This section does not apply to the public service. [Sub-s. (5) added by s. 11 of Act 12/2002]

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.

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(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;

(ii) one or more employees; or

(iii) 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) (i) The parties to a council must attempt to resolve any dispute

between themselves in accordance with the constitution of the

council.

(ii) For the purposes of subparagraph (i), a party to a council

includes the members of any registered trade union or

registered employers’ organisation that is a party to the

council. [Sub-para. (ii) added by s. 11 of Act 42/96]

(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.

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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 11 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.

(6) A council may enter into an agreement with the Commission or an accredited

agency in terms of which the Commission or accredited agency is to perform, on

behalf of the council, its dispute resolution functions in terms of this section. [Sub-s. (6) added by s. 11 of Act 42/96]

(7) Subject to this Act, a council may not provide in a collective agreement for the

referral of disputes to the Commission, without prior consultation with the

director. [Sub-s. (7) added by s. 12 of Act 12/2002]

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(8) Unless otherwise agreed to in a collective agreement, sections 142A and 143 to

146 apply to any arbitration conducted under the auspices of a bargaining

council. [Sub-s. (8) added by s. 12 of Act 12/2002]

(9) A bargaining council may by collective agreement establish procedures to

resolve any dispute contemplated in this section. [Sub-s. (9) added by s. 12 of Act 12/2002]

___________ 11. The following disputes contemplated by subsection (3) must be referred to a council:

disputes about the interpretation or application of the provisions of Chapter II (see

section 9);

disputes that form the subject matter of a proposed strike or lockout (see section

64(1);

disputes in essential services (see section 74);

disputes about unfair dismissals (see section 191);

disputes about unfair labour practices (see item 2 in Schedule 7).

The following disputes contemplated by subsection (3) may not be referred to a council:

disputes about organisational rights (see sections 16, 21 and 22);

disputes about collective agreements where the agreement does not provide for a procedure

or the procedure is inoperative or any party frustrates the resolution of the dispute (see

section 24(2) to (5));

disputes about agency shops and closed shops (see section 24(6) and (7) and section

26(11));

disputes about determinations made by the Minister in respect of proposals made by a

statutory council (see section 45);

disputes about the interpretation or application of collective agreements of a council whose

registration has been cancelled (see section 61(5) to (8));

disputes about the demarcation of sectors and areas of councils (see section 62);

disputes about the interpretation or application of Part C (bargaining councils), Part D

(bargaining council in the public service), Part E (statutory councils) and Part F (general

provisions concerning councils) (see section 63);

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disputes concerning pickets (see section 69(8) to (10));

disputes about proposals that are the subject of joint decisionmaking in workplace forums

(see section 86);

disputes about the disclosure of information to workplace forums (see section 89) and

disputes about the interpretation or application of the provisions of Chapter V which deals with

workplace forums (see section 94). [Footnote 11 amended by s. 12 of Act 12/2002]

52. Accreditation of council or appointment of accredited agency

(1) With a view to performing its dispute resolution functions in terms of section 51

(3), every council must -

(a) apply to the governing body of the Commission for accreditation to

perform those functions; or

(b) appoint an accredited agency to perform those of the functions referred

to in section 51 (3) for which the council is not accredited.

(2) The council must advise the Commission in writing as soon as possible of the

appointment of an accredited agency in terms of subsection (1) (b), and the

terms of that appointment. [S. 52 substituted by s. 12 of Act 42/96]

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.

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(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 auditors’ 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 council or of any fund established by a 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);

(d) any other manner approved by the registrar. [Sub-s. (5) amended by s. 13 of Act 42/96]

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(6) A council must comply with subsections (1) to (5) in respect of all funds

established by it, except funds referred to in section 28(3). [Sub-s. (6) added by s. 13 of Act 12/2002]

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;

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;

(e) 30 days before a new address for service of documents will take effect,

notice of that change of address; and

(f) each year and on a date to be determined by the registrar, a report in

the prescribed form specifying -

(i) the number of employees who are employed by small

enterprises that fall within the registered scope of the council

and the number of employees of those enterprises who are

members of trade unions;

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(ii) the number of employees employed by small enterprises that

are covered by a collective agreement that was concluded by

the council and extended by the Minister in terms of section

32;

(iii) the number of small enterprises that are members of the

employers’ organisations that are parties to the council; and

(iv) the number of applications for exemptions received from small

enterprises and the number of applications that were granted

and the number rejected. [Para. (f) added by s. 14 of Act 12/2002]

(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;

(b) the details of the admission and resignation of parties to the council,

within 30 days of their admission or resignation.

(4) If a council fails to comply with any of the provisions of section 49(2) or (3),

section 53 or subsections (1) or (2) of this section, the registrar may-

(a) conduct an inquiry into the affairs of that council;

(b) order the production of the council’s financial records and any other

relevant documents;

provisions concerned;

(d) compile a report on the affairs of the council; or

(e) submit the report to the Labour Court in support of any application made

in terms of section 59(1)(b). [Sub-s. (4) added by s. 14 of Act 12/2002]

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(5) The registrar may use the powers referred to in subsection (4) in respect of any

fund established by a council, except a fund referred to in section 28(3). [Sub-s. (5) added by s. 14 of Act 12/2002]

55. Delegation of functions to committee of council

(1) A council may delegate any of its powers and functions to a committee on any

conditions imposed by the council in accordance with its constitution. [Sub-s. (1) substituted by s. 14 of Act 42/96]

(2) A committee contemplated by subsection (1) must consist of equal numbers of

representatives of employees and employers.

(3) ………. [Sub-s. (3) deleted by s. 14 of Act 42/96]

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

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.

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(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.

(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.

________________ 12. See flow diagram No. 5 in Schedule 4.

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 -

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(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

(8) The new name takes effect from the date that the registrar enters it in the

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,

may vary the registered scope of the council. [Sub-s. (1) substituted by s. 15 of Act 42/96]

(2) The provisions of section 29 apply, read with the changes required by the

context, to a variation in terms of this section.

(3) Despite subsection (2), if within the stipulated period no material objection is

lodged to any notice published by the registrar in terms of section 29(3), the

registrar -

(i) may vary the registered scope of the council;

(ii) may issue a certificate specifying the scope of the council as

varied; and

(iii) need not comply with the procedure prescribed by section 29. [Sub-s. (3) added by s. 15 of Act 12/2002]

59. Winding-up of council

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(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.

(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.

(6) For the purposes of this section, the assets and liabilities of any pension,

provident or medical aid scheme or fund established by a council will be

regarded and treated as part of the assets and liabilities of the council unless -

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(a) the parties to the council have agreed to continue with the operation of

the pension, provident or medical aid scheme or fund as a separate

scheme or fund despite the winding-up of the council; and

(b) the Minister has approved the continuation of the scheme or fund; and

applicable to pension, provident or medical aid schemes or funds, for the

registration of that scheme or fund in terms of those provisions. [Sub-s. (6) added by s. 4 of Act 127/98]

(7) A pension, provident or medical aid scheme or fund registered under the

provisions of those laws after its application in terms of subsection (6) (c), will

continue to be a separate scheme or fund despite the winding-up of the council

by which it was established. [Sub-s. (7) added by s. 4 of Act 127/98]

(8) The Minister by notice in the Government Gazette may declare the rules of a

pension, provident or medical aid scheme or fund mentioned in subsection (7),

to be binding on any employees and employer or employers that fell within the

registered scope of the relevant council immediately before it was wound up. [Sub-s. (8) added by s. 4 of Act 127/98]

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.

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(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 111 (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.

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(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.

(14) The registrar must cancel the registration of a bargaining council in the public

service by removing its name from the register of councils when the registrar

receives a resolution from the Public Service Co-ordinating Bargaining Council

disestablishing a bargaining council established in terms of section 37(2). [Sub-s. (14) added by s. 16 of Act 12/2002]

(15) The provisions of subsections (3) to (7) do not apply to bargaining councils in

the public service. [Sub-s. (15) added by s. 16 of Act 12/2002]

62. Disputes about demarcation between sectors and areas

(1) Any registered trade union, employer, employee, 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;

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(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. [Sub-s. (1) amended by s. 16 of Act 42/96]

(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.

(3A) In any proceedings before an arbitrator about the interpretation or application of a

collective agreement, if a question contemplated in subsection (l) (a) or (b) is

raised, the arbitrator must adjourn those proceedings and refer the question to

the Commission if the arbitrator 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

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(b) the determination of the question raised is necessary for the purposes of

the proceedings. [Sub-s. (3A) inserted by s. 16 of Act 42/96]

(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.

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(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 has arisen in the course of arbitration proceedings or

proceedings in the Labour Court; or [Para. (a) substituted by s. 17 of Act 42/96]

(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.

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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

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(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

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) in 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;

(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 -

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(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;

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;

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(b) that person is bound by an agreement that requires the issue in dispute

to be referred 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 (1) (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 (1) 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 -

(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.

__________________ 13. Essential services agreed minimum services and maintenance services are regulated

in section 71 to 75.

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14. These section deal with organisational rights.

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 that has

been referred to a council if the striking employees, employed within the

registered scope of that council, have a material interest in that demand. [Sub-s. (1) substituted by s. 19 of Act 42/96]

(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

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.

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(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 delict 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 the

payment in kind during the strike or lockout; 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 -

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(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, or conduct having regard to -

(i) whether -

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(aa) attempts were made to comply with the provisions of

this Chapter and the extent of those attempts;

(bb) the strike or lock-out or conduct was premeditated;

(cc) the strike or lock-out or conduct 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 or conduct; and

(iv) the financial position of the employer, trade union or

employees respectively. [Para. (b) substituted by s. 17 of Act 12/2002]

(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

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 (l) (a).

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(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.

________________ 15. See flow diagram No. 6 in Schedule 4.

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

(b) in opposition to any lock-out.

(2) Despite any law regulating the right of assembly, a picket authorised in terms of

subsection (1) may be held -

(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. [Sub-s. (2) amended by s. 20 of Act 42/96]

(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 -

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(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

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);

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.

______________ 16. See flow diagram No. 7 in Schedule 4.

70. Essential services committee

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(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 -

(a) appoint to that committee, on any terms that the Minister considers fit,

persons who have knowledge and experience of labour law and labour

relations; and

(b) designate one of the members of the committee as its chairperson. [Sub-s. (1) substituted by s. 5 of Act 127/98]

(Commencement date of subsection (1): 1 January 1996)

(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; (Commencement date of para. (a): 1 January 1996)

(b) to determine disputes as to whether or not the whole or a part of any

service is an essential service; and

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).

______________ 17. A maintenance service is defined in section 75.

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 -

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(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 shall be

deemed to have been designated an essential service in terms of this section. (Commencement date of s. 71: 1 January 1996)

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 -

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(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 18

(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 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.

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(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;

(b) the period referred to in subsection (5) (b), that period will run from the

expiry of the period referred to in paragraph (a) of this subsection or

from the beginning of the next session of Parliament. [Para. (b) substituted by s. 21 of Act 42/96]

_______________ 18. See flow diagram No. 8 in Schedule 4.

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 or service is

a maintenance service. [Sub-s. (2) substituted by s. 22 of Act 42/96]

[0861 IMPLEX]

(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 employer’s business or service is a

maintenance service. [Sub-s. (4) substituted by s. 22 of Act 42/96]

(5) As part of its determination in terms of subsection (4), the essential services

committee may direct that any dispute in respect of which the employees

engaged in a maintenance service would have had the right to strike, but for the

provisions of section 65 (1) (d) (ii), be referred to arbitration. [Sub-s. (5) added by s. 22 of Act 42/96]

(6) The committee may not make a direction in terms of subsection (5) if -

(a) the terms and conditions of employment of the employees engaged in

the maintenance service are determined by collective bargaining; or

(b) the number of employees prohibited from striking because they are

engaged in the maintenance service does not exceed the number of

employees who are entitled to strike. [Sub-s. (6) added by s. 22 of Act 42/96]

(7) If a direction in terms of subsection (5) requires a dispute to be resolved by

arbitration -

(a) the provisions of section 74 will apply to the arbitration; and

(b) any arbitration award will be binding on the employees engaged in the

maintenance service and their employer, unless the terms of the award

are varied by a collective agreement. [Sub-s. (7) added by s. 22 of Act 42/96]

76. Replacement labour

(1) An employer may not take into employment any person -

[0861 IMPLEX]

(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

services of a labour broker or an independent contractor.

77. Protest action to promote or defend socio-economic 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;

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);

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(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;

(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) ……….

[0861 IMPLEX]

[Sub-para. (i) deleted by s. 23 of Act 42/96]

(ii) represent the employer in dealings with the workplace forum;

(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;

consensus about the matters referred to in section 84; and

(d) is entitled to participate in joint decisionmaking 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.

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(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 provisions of this Chapter do not

apply. [Sub-s. (8) amended by s.24 of Act 42/96]

(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

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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 all

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 (11) 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 -

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(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;

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;

(f) 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

workplace; 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;

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(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 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 any

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 may 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 the designation of full-time members of the workplace forum

if there are more than 1 000 employees in a workplace;

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[Para. (s) substituted by s. 25 of Act 42/96]

(t) provide that the workplace forum may invite any expert to attend its

meetings, 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 are entitled to inspect and copy; [Para. (t) substituted by s. 25 of Act 42/96]

(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; [Para. (u) amended by s. 25 of Act 42/96]

(v) provide that the representative trade union and the employer, by

agreement, may change the constitution of the workplace forum; and [Para. (v) amended by s. 25 of Act 42/96]

(w) establish the manner in which decisions are to be made.

(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 co-ordinating 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

(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

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(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.

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 -

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(a) restructuring the workplace, including the introduction of new technology

and new work methods;

(b) changes in the organisation of work;

(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;

(f) 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

any additional matters.

(5) Subject to any applicable occupational health and safety legislation, a

representative trade union and an employer may agree -

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(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

representatives for the purposes of that legislation.

(6) For the purposes of workplace forum 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

85. Consultation

(1) Before an employer may implement a proposal in relation to any matter referred

to in section 84 (1), 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.

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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;

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

decisionmaking 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.

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(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) If an arbitration award is about a proposal referred to in subsection

(1) (d) it 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.

determination by the Labour Court of an application is 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.

________________ 19. See flow diagram No. 9 in Schedule 4.

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

apply to conduct not related to work performance of employees in the

workplace.

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(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) except that,

in applying section 86 (4), either the employer or the workplace forum may refer

a dispute between them to arbitration or to the Commission. [Sub-s. (4) substituted by s. 26 of Act 42/96]

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) or by

a workplace forum in terms of section 87 (4), the employer may give notice in

writing to the chairpersons of all the workplace forums that no other workplace

forum may refer a matter that is substantially the same as the matter referred to

arbitration. [Sub-s. (1) substituted by s. 27 of Act 42/96]

(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 -

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(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;

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.

(2A) The employer must notify the workplace forum in writing if of the view that any

information disclosed in terms of subsection (1) is confidential. [Sub-s. (2A) inserted by s. 28 of Act 42/96]

(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.

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(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 which 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 l 000 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

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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;

(aA) a workplace forum; [Para. (aA) inserted by s. 29 of Act 42/96]

(b) a registered trade union with members employed in the workplace;

(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.

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(4) If the dispute remains unresolved, any party to the dispute may request that the

dispute be resolved through arbitration.

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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);

(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

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(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

(a) state that the trade union or employers’ organisation is an association

not for gain;

(b) prescribe qualifications for, and admission to, membership;

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;

(f) provide for membership fees and the method for determining

membership 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;

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(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.

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(6) The constitution of any trade union or employers’ organisation which intends to

against any person on the grounds of race or sex.

(7) The registrar must not register a trade union or an employers’ organisation

unless the registrar is satisfied that the applicant is a genuine trade union or a

genuine employers’ organisation. [Sub-s. (7) added by s. 18 of Act 12/2002]

(8) The Minister, in consultation with NEDLAC, may by notice in the Government

Gazette publish guidelines to be applied by the registrar in determining whether

an applicant is a genuine trade union or a genuine employers’ organisation. [Sub-s. (8) added by s. 18 of Act 12/2002]

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

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

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(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

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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 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 -

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(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 auditors 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

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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;

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

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(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

(8) The new name takes effect from the date that the registrar enters it in the

appropriate register.

_________________ 20. These are the requirements relating to the name of a trade union or employers’

organisation to be registered.

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

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(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

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 union 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;

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(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 trade unions or employers’ organisations [Heading substituted by s. 19 of Act 12/2002]

(1) The Labour Court may order a trade union or 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 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. [Sub-s. (1) substituted by s. 19 of Act 12/2002]

(1A) If the registrar has cancelled the registration of a trade union or employers’

organisation in terms of section 106(2A), any person opposing its winding-up is

required to prove that the trade union or employers’ organisation is able to

continue to function. [Sub-s. (1A) inserted by s. 19 of Act 12/2002]

(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

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(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 an order in terms of subsection (1), the Labour Court may appoint a

suitable person as liquidator, on appropriate conditions. [Sub-s. (3) amended by s. 30 of Act 42/96]

(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.

union or employers’ organisation.

(5) If, after all the liabilities of the trade union or employers’ organisation have been

discharged, any assets remain which 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. [Sub-s. (5) substituted by s. 19 of Act 12/2002]

(6) (a) The Labour Court may direct that the costs of the registrar or any other

person who has brought an application in terms of subsection (1)(b) be

paid from the assets of the trade union or employers’ organisation.

(b) Any costs in terms of paragraph (a) rank concurrently with the

liquidator’s fees. [Sub-s. (6) added by s. 19 of Act 12/2002]

104 Winding-up of trade unions or employers’ organisations by reason of insolvency

Any person who seeks to sequestrate a trade union or employers’ organisation by

reason of insolvency must comply with the Insolvency Act, 1936 (Act No. 24 of l936),

and, for the purposes of this section, any reference to the court in that Act must be

interpreted as referring to the Labour Court.

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105 Declaration that trade union is no longer independent [Heading substituted by s. 20 of Act 12/2002]

(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 if the Court -

(a) in terms of section 103 or 104 has ordered a registered trade union or a

registered employers’ organisation to be wound up; or

(b) in terms of section l05 has declared that a registered trade union is not

independent. [Sub-s. (1) substituted by s. 21 of Act 12/2002]

(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.

(2A) The registrar may cancel the registration of a trade union or employers’

organisation by removing its name from the appropriate register if the registrar-

(a) is satisfied that the trade union or employers’ organisation is not, or has

ceased to function as, a genuine trade union or employers’ organisation,

as the case may be; or

(b) has issued a written notice requiring the trade union or employers’

organisation to comply with sections 98, 99 and 100 within a period of

60 days of the notice and the trade union or employers’ organisation

has, despite the notice, not complied with those sections. [Sub-s. (2A) inserted by s. 21 of Act 12/2002]

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(2B) The registrar may not act in terms of subsection (2A) unless the registrar has

published a notice in the Government Gazette at least 60 days prior to such

action -

(a) giving notice of the registrar’s intention to cancel the registration of

the trade union or employers’ organisation; and

(b) inviting the trade union or employers’ organisation or any other

interested parties to make written representations as to why the

registration should not be cancelled. [Sub-s. (2B) inserted by s. 21 of Act 12/2002]

(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;

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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.

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(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. (Commencement date of s. 108: 1 January 1996)

109 Functions of registrar

(1) The registrar must keep -

(a) a register of registered trade unions;

(b) a register of registered employers’ organisations;

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. (Commencement date of s. 109: 1 January 1996)

110 Access to information

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(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

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

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employers’ organisations referred to in section 107 (1) (a), (c), and (e).

Part D

Appeals from Registrar’s Decision

111 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).

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(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.

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(Commencement date of s. 112: 1 January 1996)

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;

contemplated in Chapter V; and

(d) compile and publish information and statistics about its activities.

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(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

representation; 22

through conciliation; 23

(cA) make rules -

(i) to regulate, subject to Schedule 3, the proceedings at its

meetings and at the meetings of any committee of the

Commission;

(ii) regulating the practice and procedure of the essential services

committee;

(iii) regulating the practice and procedure -

(aa) for any process to resolve a dispute through

conciliation;

(bb) at arbitration proceedings; and

(iv) determining the amount of any fee that the Commission may

charge under section 147, and regulating the payment of such

a fee in detail; [Para. (cA) inserted by s. 6 of Act 127/98]

(d) ………. 24

[Para. (d) deleted by s. 31 of Act 42/96]

(e) ………. 25

[Para. (e) deleted by s. 31 of Act 42/96]

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(f) 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.

(i) ………. [Para. (i) deleted by s. 31 of Act 42/96]

(2A) The Commission may make rules regulating –

(a) the practice and procedure in connection with the resolution of a dispute

through conciliation or arbitration;

(b) the process by which conciliation is initiated, and the form, content and

use of that process;

and the form, content and use of that process;

(d) the joinder of any person having an interest in the dispute in any

conciliation and arbitration proceedings;

(e) the intervention of any person as an applicant or respondent in

conciliation or arbitration proceedings;

(f) the amendment of any citation and the substitution of any party for

another in conciliation or arbitration proceedings;

(g) the hours during which offices of the Commission will be open to receive

any process;

(h) any period that is not to be counted for the purpose of calculating time or

periods for delivering any process or notice relating to any proceedings;

(i) the forms to be used by parties and the Commission;

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(j) the basis on which a commissioner may make any order as to costs in

any arbitration;

(k) the right of any person or category of persons to represent any party in

any conciliation or arbitration proceedings;

(l) the circumstances in which the Commission may charge a fee in relation

to any conciliation or arbitration proceedings or for any services the

Commission provides; and

(m) all other matters incidental to performing the functions of the

Commission. [Sub-s. (2A) inserted by s. 22 of Act 12/2002]

(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;

(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) the prevention of sexual harassment in the workplace. [Para. (i) substituted by s. 31 of Act 42/96]

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(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.

(6) (a) A rule made under subsection (2)(cA) or (2A) must be published in the

Government Gazette. The Commission will be responsible to ensure

that the publication occurs.

(b) A rule so made will not have any legal force or effect unless it has been

so published.

date is stipulated. [Sub-s. (6) added by s. 6 of Act 127/98 and substituted by s. 22 of Act 12/2002]

_________________ 21. See section 148. 22. See section 149. 23. See section 150. 24. ………. 25. ……….

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

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(ii) may not vote at meetings of the governing body.

(3) NEDLAC must nominate -

(a) one independent person for the office of chairperson;

(b) three persons proposed by those voting members of NEDLAC who

represent organised labour; and

represent organised business;

(d) three persons proposed by those voting members of NEDLAC who

represent the State. (Commencement date of s. 116: 1 January, 1996)

______________ 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.

117 Commissioners of Commission

(1) The governing body must appoint as commissioners as many competent

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;

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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

(8) Each commissioner is responsible to the director for the performance of the

commissioner’s functions. (Commencement date of s. 117: 1 January 1996)

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.

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(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

(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.

(6) The director, in consultation with the governing body, may delegate any of the

functions of that office, except the functions mentioned in sections 120 and

138 (8), to a commissioner. [Sub-s. (6) added by s. 7 of Act 127/98]

(Commencement date of s. 118: 1 January 1996)

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.

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(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. (Commencement date of s. 119: 1 January 1996)

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. (Commencement date of s. 120: 1 January 1996)

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;

(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. (Commencement date of s. 121: 1 January 1996)

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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;

(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 1 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. (Commencement date of s. 122: 13 September 1996)

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

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(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 or contract with

an accredited agency to perform, whether for reward or otherwise, any

function of the Commission on its behalf; and [Para. (a) substituted by s. 32 of Act 42/96]

(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. (Commencement date of s. 124: 1 January 1996)

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;

(d) accrediting councils or private agencies, or amending, withdrawing or

renewing their accreditation; or

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(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). (Commencement of date of s. 125: 1 January 1996)

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;

(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.

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(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.

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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

(d) section 45;31

(e) section 61 (5) to (8);32

(f) section 62;33

(g) section 63;34

(h) section 69 (8) to (10);35

(i) section 86;36

(j) section 89;37

(k) section 94.38

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(3) 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.

(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;

so in a manner independent of the State, any political party, trade union,

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;

(f) 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; and [Para. (f) amended by s. 33 of Act 42/96]

(g) the applicant promotes a service that is broadly representative of South

African society. [Para. (g) amended by s. 33 of Act 42/96]

(h) …………. [Para. (h) deleted by s. 33 of Act 42/96]

(5) If the governing body decides -

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(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) ………. [Subpara. (iv) deleted by s. 23 of Act 12/2002]

(b) not to accredit the applicant, the governing body must advise the

unsuccessful applicant in writing of its decision.

(5A) The governing body must annually publish a list of accredited councils and

accredited agencies. [Sub-s. (5A) inserted by s. 23 of Act 12/2002]

(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. (Commencement date of s. 127: 13 September 1996)

________________ 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.

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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. 34. This section deals with disputes about the interpretation or application of Parts C to F

of Chapter III, Part C deals with bargaining councils, Part D with bargaining councils

in public service, Part E with statutory councils and Part F with general provisions

concerning councils. 35. This section concerns disputes about pickets during strikes and lockouts. 36. This section deals with disputes about proposals that are the subject of joint

decisionmaking. 37. This section deals with disputes about the disclosure of information to workplace f

forums. 38. This section deals with disputes about the interpretation or application of Chapter V

which deals with workplace forums.

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 a commissioner to charge a fee. [Para. (a) substituted by s. 34 of Act 42/96 and s. 24 of Act 12/2002]

(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

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basis or without prejudice in the course of performing those functions

except on the order of a court.

(3) (a) (i) An accredited council may confer on an person appointed by it to

resolve a dispute, the powers of a commissioner in terms of

section 142, read with the changes required by the context.

(ii) For this purpose, any reference in that section to the director

must be read as a reference to the secretary of the bargaining

council.

(b) An accredited private agency may confer on any person appointed by

it to resolve a dispute, the powers of a commissioner in terms of section

142(1)(a) to (e), (2) and (7) to (9), read with the changes required by the

context. (Commencement date of s. 128: 13 September 1996)

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.

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132 Subsidy to council or private agency

(1) (a) Any council may apply to the governing body in the prescribed form for

subsidy for performing any dispute resolution functions that the council

is required to perform in terms of this Act, and for training persons to

perform those functions.

(b) Any accredited agency, or a private agency that has applied for

accreditation, may apply to the governing body in the prescribed form for

a subsidy for performing any dispute resolution functions for which it is

accredited or has applied for accreditation, and for training persons to

perform those functions. [Sub-s. (1) substituted by s. 35 of Act 42/96]

(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;

which it is accredited:

(d) the reasons for seeking the subsidy;

(e) the amount requested; and

(f) the applicant’s ability to manage its financial affairs in accordance with

established accounting practice, principles and procedures.

(4) If the governing body decides -

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(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). (Commencement date of s. 132: 13 September 1996)

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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 -

(a) this Act requires the 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 in writing to arbitration under the auspices of the

Commission. [Sub-s. (2) substituted by s. 25 of Act 12/2002]

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 -

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(a) on the one side -

(i) one or more trade unions;

(ii) one or more employees; or

(iii) 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

advisory arbitration award.

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(3A) If a single commissioner has been appointed, in terms of subsection (1), in

respect of more than one dispute involving the same parties, that commissioner

may consolidate the conciliation proceedings so that all the disputes concerned

may be dealt with in the same proceedings. [Sub-s. (3A) inserted by s. 8 of Act 127/98]

(4) ………. [Sub-s. (4) substituted by s. 8 of Act 127/98 and deleted by s. 26 of Act 12/2002]

(5) When conciliation has failed, or at the end of the 30day 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

Commission. [Sub-s. (5) amended by s. 36 of Act 42/96]

(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

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(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) within 90 days after the date on which that certificate was issued, any

party to the dispute has requested that the dispute be resolved through

arbitration. However, the Commission, on good cause shown, may

condone a party’s non-observance of that timeframe and allow a request

for arbitration filed by the party after the expiry of the 90-day period. [Para. (b) substituted by s. 9 of Act 127/98]

(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 wants to object to the arbitration also being

conducted by the commissioner who conciliated had attempted to resolve the

dispute through conciliation, may do so by filing an objection in that regard with

the Commission within seven days after the date on which the commissioner’s

certificate was issued, and must satisfy the Commission that a copy of the

objection has been served on all the other parties to the dispute. [Sub-s. (3) substituted by s. 9 of Act 127/98]

(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;

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(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 (1), 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;

dispute; and

(d) the public interest.

(4) The director must notify the parties to the dispute of the decision and -

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(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, subject to section 136 (4). [Para. (b) substituted by s. 37 of Act 42/96]

(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) ………. [Sub-s. (4) substituted by s. 10 of Act 127/98 and deleted by s. 27 of Act 12/2002]

(5) 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 -

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(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

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;

(10) The commissioner may make an order for the payment of costs according to the

requirements of law and fairness in accordance with rules made by the

Commission in terms of section 115(2A)(j) and having regard to -

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(a) any relevant Code of Good Practice issued by NEDLAC in terms of

section 203;

(b) any relevant guideline issued by the Commission. [Sub-s. (10) substituted by s. 27 of Act 12/2002]

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 (1) (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

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) ………. [Sub-s. (1) deleted by s. 28 of Act 12/2002]

(2) If, in terms of section 194 (1), 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

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(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 in

writing to arbitration under the auspices of the Commission. [Sub-s. (1) substituted by s. 29 of Act 12/2002]

(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 written consent of all the parties to that agreement, unless the

agreement itself provides otherwise.

[Sub-s. (3) substituted by s. 29 of Act 12/2002]

(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;

(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.

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(6) If the provisions of subsection (1) apply, the commissioner may make an award

that the Labour Court could have made. [Sub-s. (6) amended by s. 39 of Act 42/96]

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;

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;

(f) 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

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(iii) take a statement in respect of any matter relevant to the

resolution of the dispute from any person on the premises who

is willing to make a statement; and [Sub-para. (iii) added by s. 40 of Act 42/96]

(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

(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.

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(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 document, book or object in terms of this section.

(7) (a) 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.

(b) Any person who requests the Commission to issue a subpoena must

pay the prescribed witness fee to each person who appears before a

commissioner in response to the subpoena and who remains in

attendance until excused by the commissioner.

paragraph (b) and pay to the witness the prescribed witness fee. [Sub-s. (7) substituted by s. 30 of Act 12/2002]

(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;

a commissioner so requires;

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(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;

(f) if the person wilfully 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 wilfully interrupting the conciliation or arbitration proceedings or

misbehaving in any other manner during those proceedings;

(i) by doing anything else in relation to the Commission which, if done in

relation to a court of law, would have been contempt of court.

(9) (a) A commissioner may make a finding that a party is in contempt of the

Commission for any of the reasons set out in subsection (8).

(b) The commissioner may refer the finding, together with the record of the

proceedings, to the Labour Court for its decision in terms of subsection

(11). [Sub-s. (9) substituted by s. 30 of Act 12/2002]

(10) Before making a decision in terms of subsection (11), the Labour Court-

(a) must subpoena any person found in contempt to appear before it on

a date determined by the Court;

(b) may subpoena any other person to appear before it on a date

determined by the Court; and

the case of a person who is not a legal practitioner that the person’s

right to represent a party in the Commission and the Labour Court be

suspended.

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[Sub-s. (10) added by s. 30 of Act 12/2002]

(11) The Labour Court may confirm, vary or set aside the finding of a commissioner. [Sub-s. (11) added by s. 30 of Act 12/2002]

(12) If any person fails to appear before the Labour Court pursuant to a subpoena

issued in terms of subsection (10)(a), the Court may make any order that it

deems appropriate in the absence of that person. [Sub-s. (12) added by s. 30 of Act 12/2002]

142A .Making settlement agreement arbitration award

(1) The Commission may, by agreement between the parties or on application by a

party, make any settlement agreement in respect of any dispute that has been

referred to the Commission, an arbitration award.

(2) For the purposes of subsection (1), a settlement agreement is a written

agreement in settlement of a dispute that a party has the right to refer to

arbitration or to the Labour Court, excluding a dispute that a party is entitled to

refer to arbitration in terms of either section 74(4) or 75(7). [S. 142A inserted by s. 31 of Act 12/2002]

143 Effect of arbitration awards

(1) An arbitration award issued by a commissioner is final and binding and it may be

enforced as if it were an order of the Labour Court, unless it is an advisory

arbitration award. [Sub-s. (1) substituted by s. 32 of Act 12/2002]

(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.

(3) An arbitration award may only be enforced in terms of subsection (1) if the

director has certified that the arbitration award is an award contemplated in

subsection (1).

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[Sub-s. (3) added by s. 32 of Act 12/2002]

(4) If a party fails to comply with an arbitration award that orders the performance of

an act, other than the payment of an amount of money, any other party to the

award may enforce it by way of contempt proceedings instituted in the Labour

Court. [Sub-s. (4) added by s. 32 of Act 12/2002]

144 Variation and rescission of arbitration awards and rulings

Any commissioner who has issued an arbitration award or ruling, or any other

commissioner appointed by the director for that purpose, may on that commissioner’s

own accord or, on the application of any affected party, vary or rescind an arbitration

award or ruling -

(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

proceedings. [S. 144 substituted by s. 33 of Act 12/2002]

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 the commission of an

offence referred to in Part 1 to 4 or section 17, 20 or 21 (in so far as it

relates to the aforementioned offences) of Chapter 2 of the Prevention

and Combating of Corrupt Activities Act, 2004; or [Para. (a) substituted by s. 36 of Act 12/2004]

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(b) if the alleged defect involves an offence referred to in paragraph (a),

within six weeks of the date that the applicant discovers the corruption

such offence [Para. (b) substituted by s. 36 of Act 12/2004]

(1A) The Labour Court may on good cause shown condone the late filing of an

application in terms of subsection (1). [Sub-s. (1A) inserted by s. 34 of Act 12/2002]

(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

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(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

requested in section 24 (1);39 or

(ii) the procedure provided in the collective agreement is not

operative.

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

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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

(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, 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. [Para. (a) amended by s. 41 of Act 42/96]

(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.

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(6) 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 -

(a) refer the dispute to the appropriate person or body for resolution through

private dispute resolution procedures; or

(b) appoint a commissioner to resolve the dispute in terms of this Act. [Sub-s. (6) substituted by s. 41 of Act 42/96]

(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.

(8) The Commission may perform any of the dispute resolution functions of a

council or an accredited agency appointed by the council if the council or

accredited agency fails to perform its dispute resolution functions in

circumstances where, in law, there is an obligation to perform them. [Sub-s. (8) added by s. 41 of Act 42/96]

(9) For the purposes of subsections (2) and (3), a party to a council includes the

members of a registered trade union or registered employers’ organisation that

is a party to the council. [Sub-s. (9) added by s. 41 of Act 42/96]

_________________ 39. Section 24(1) states that every collective agreement must provide for a procedure to

resolve any dispute about the interpretation or application of the collective

agreement.

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.

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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 Board, 40 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

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;

dispute; and

(d) the public interest.

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(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.

_______________ 40. The Legal Aid Board is established in terms of section 2 of the Legal Aid Act, 1969

(Act No. 22 of 1969).

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 offer to appoint a commissioner to assist the parties to

resolve through further conciliation a dispute that has been referred to the

Commission or a council and in respect of which -

(a) a certificate has been issued in terms of section 135(5)(a) stating that

the dispute remains unresolved; or

(b) the period contemplated in section 135(2) has elapsed; [Sub-s. (2) substituted by s. 35 of Act 12/2002]

(3) The Commission may appoint a commissioner in terms of subsection (1) or (2) if

all the parties to the dispute consent to that appointment. [Sub-s. (3) added by s. 35 of Act 12/2002]

Part D

Labour Court

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151 Establishment and status of Labour Court

(1) The Labour Court is hereby established as a court of law and equity. [Sub-s. (1) amended by s. 11 of Act 127/98]

(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

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 provided for in the Constitution of the Republic of South

Africa, 1996 (Act No. 108 of 1996), (in this Part and Part E called the

Judicial Service Commission), and after consultation with the Minister of

Justice, must appoint a Judge President of the Labour Court. [Para. (a) substituted by s. 12 of Act 127/98]

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(b) The President, acting on the advice of NEDLAC and the Judicial Service

Commission, 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. [Para. (b) amended by s. 12 of Act 127/98]

(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, 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. [Sub-s. (4) amended by s. 12 of Act 127/98]

(5) The Minister of Justice, after consultation with 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 for such a period as

the Minister of Justice in each case may determine. [Sub-s. (5) substituted by s. 42 of Act 42/96]

(6) A judge of the Labour Court must -

(a) (i) be a judge of the High Court; or [Sub-para. (i) amended by s. 12 of Act 127/98]

(ii) be a person who is a legal practitioner; and [Sub-para. (ii) substituted by s. 42 of Act 42/96]

(b) have knowledge, experience and expertise in labour law. (Commencement date of s. 153: 1 January 1996)

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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 notice to the President.

(3) (a) Any judge of the Labour Court who is also a judge of the High 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 High 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. [Sub-s. (3) amended by s. 13 of Act 127/98]

(4) Neither the tenure of office nor the remuneration and terms and conditions of

appointment applicable to a judge of the High 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. [Sub-s. (4) amended by s. 13 of Act 127/98]

(5) (a) The remuneration payable to a judge of the Labour Court who is a

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person referred to in section 153 (6) (a) (ii), must be the same as that

payable to a judge of the High Court. [Para. (a) substituted by s. 43 of Act 42/96]

(b) The terms and conditions of appointment of a judge of the Labour Court

referred to in paragraph (a) must be similar to those of a judge of the

High Court. [Sub-s. (5) amended by s. 13 of Act 127/98]

(6) A person who has been appointed a judge of the Labour Court and who is not a

judge of the High 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. [Sub-s. (6) amended by s. 13 of Act 127/98]

(7) (a) A judge of the Labour Court who is also a judge of the High 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 High Court; and

(ii) upon having been removed as judge of the High 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. [Sub-s. (7) amended by s. 13 of Act 127/98]

(8) Despite the expiry of the period of a person’s appointment as a judge of the

Labour Court, that person may continue to perform the functions of a judge of

that Court, and will be regarded as such in all respects, only -

(a) for the purposes of disposing of any proceedings in which that person

has taken part as a judge of that Court and which are still pending upon

the expiry of that person’s appointment or which, having been so

disposed of before or after the expiry of that person’s appointment, have

been reopened; and

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(b) for as long as that person will be necessarily engaged in connection with

the disposal of the proceedings so pending or reopened. [Sub-s. (8) added by s. 43 of Act 42/96]

(9) The provisions of subsections (2) to (8) apply, read with the changes required by

the context, to acting judges appointed in terms of section 153 (5). [Sub-s. (9) added by s. 43 of Act 42/96]

(Commencement date of s. 154: 1 January 1996)

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. (Commencement of date of s. 155: 1 January 1996)

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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. (Commencement date of s. 156: 1 January 1996)

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 High Court in respect of

any alleged or threatened violation of any fundamental right entrenched in

Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising

from -

(a) employment and from labour relations;

(b) any dispute over the constitutionality of any executive or administrative

act or conduct, or any threatened executive or administrative act or

conduct, by the State in its capacity as an employer; and

responsible. [Sub-s. (2) substituted by s. 14 of Act 127/98]

(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

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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;

Court;

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[Para. (c) substituted by s. 36 of Act 12/2002]

(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 or registered

employers’ organisation and any one of the members or applicants for

membership thereof, about any alleged non-compliance with -

(i) the constitution of that trade union or employers’ organisation

(as the case may be); or

(ii) section 26 (5) (b); [Para. (e) substituted by s. 44 of Act 42/96]

(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) subject to section 145, review the performance or purported

performance of any function provided for in this Act on any grounds that

are permissible in law; [Para. (g) substituted by s. 36 of Act 12/2002]

(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.

(1A) For the purposes of subsection (1)(c), a settlement agreement is a written

agreement in settlement of a dispute that a party has the right to refer to

arbitration or to the Labour Court, excluding a dispute that a party is only entitled

to refer to arbitration in terms of section 22(4), 74(4) or 75(7). [Sub-s. (1A) inserted by s. 36 of Act 12/2002]

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(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;

(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.

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.

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(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

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;

(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

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are similar to matters about which the Rules Board for Courts of Law

may make rules in terms of section 6 of the Rules Board for Courts of

Law Act, 1985 (Act No. 107 of 1985). [Para. (e) amended by s. 45 of Act 42/96]

(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.

(7) (a) A member of the Board who is a judge of the High Court may be paid

an allowance determined in terms of subsection (9) in respect of the

performance of the functions of a member of the Board.

(b) Notwithstanding anything to the contrary in any other law, the payment, in terms

of paragraph (a), of an allowance to a member of the Board who is a judge of

the High Court, will be in addition to any salary or allowances, including

allowances for reimbursement of travelling and subsistence expenses, that is

paid to that person in the capacity of a judge of that Court. [Sub-s. (7) added by s. 45 of Act 42/96 and amended by s. 15 of Act 127/98]

(8) A member of the Board who is not a judge of the High Court nor subject to the

Public service Act, 1994, will be entitled to the remuneration, allowances

(including allowances for reimbursement of travelling and subsistence

expenses), benefits and privileges determined in terms of subsection (9). [Sub-s. (8) added by s. 45 of Act 42/96 and amended by s. 15 of Act 127/98]

(9) The remuneration, allowances, benefits and privileges of the members of the

Board -

(a) are determined by the Minister of Justice with the concurrence of the

Minister of Finance;

(b) may vary according to rank functions to be performed and whether office

is held in a fulltime or part-time capacity; and

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person or category of persons. [Sub-s. (9) added by s. 45 of Act 42/96]

(10) (a) Pending publication in the Government Gazette of rules made by the

Board, matters before the Court will be dealt with in accordance with

such general directions as the Judge President of the Labour Court, or

any other judge or judges of that Court designated by the Judge

President for that purpose, may consider appropriate and issue in

writing.

(b) Those directions will cease to be of force on the date of the publication

of the Board’s rules in the Government Gazette, except in relation to

proceedings already instituted before that date. With regard to those

proceedings, those directions will continue to apply unless the Judge

President of the Labour Court has withdrawn them in writing. [Sub-s. (10) added by s. 45 of Act 42/96]

(Commencement date of s. 159: 1 January 1996)

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) a legal practitioner;

(b) a director or employee of the party;

union or registered employers’ organisation;

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(d) a designated agent or official of a council; or [Para. (d) substituted by s. 37 of Act 12/2002]

(e) an official of the Department of Labour. [S. 161 substituted by s. 16 of Act 127/98]

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 High Court. [S. 163 amended by s. 17 of Act 127/98]

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.

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(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

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.

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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 jurisdiction, equal to that which the

Supreme Court of Appeal has in relation to matters under its jurisdiction. [Sub-s. (3) amended by s. 18 of Act 127/98]

(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;

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(b) the Deputy Judge President, who by virtue of that office is Deputy Judge

President of the Labour Appeal Court; and

be required for the effective functioning of the Labour Appeal Court. [Para. (c) substituted by s. 46 of Act 42/96 and amended by s. 19 of Act 127/98]

(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 other judges of Labour Appeal Court

(1) The President, acting on the advice of NEDLAC and the Judicial Service

Commission, after consultation with the Minister of Justice and the Judge

President of the Labour Appeal Court, must appoint the judges of the Labour

Appeal Court referred to in section 168 (1) (c). [Sub-s. (1) amended by s. 20 of Act 127/98]

(2) The Minister of Justice, after consultation with the Judge President of the

Labour Appeal Court, may appoint one or more judges of the High Court to

serve as acting judges of the Labour Appeal Court. [Sub-s. (2) amended by s. 20 of Act 127/98]

[S. 169 substituted by s. 47 of Act 42/96]

(Commencement date of s. 169: 1 January 1996)

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 -

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(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 High 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. [Sub-s. (3) amended by s. 21 of Act 127/98]

(4) Neither the tenure of office nor the remuneration and terms and conditions of

appointment applicable to a judge of the High 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. [Sub-s. (4) amended by s. 21 of Act 127/98]

(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 High Court; and

(b) upon having been removed as judge of the High Court must be removed

from office as a judge of the Labour Appeal Court. [Sub-s. (5) amended by s. 21 of Act 127/98]

(6) Despite the expiry of the period of a person’s appointment as a judge of the

Labour Appeal Court, that person may continue to perform the functions of a

judge of that Court, and will be regarded as such in all respects, only -

(a) for the purposes of disposing of any proceedings in which that person

has taken part as a judge of that Court and which are still pending upon

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the expiry of that person’s appointment or which, having been so

disposed of before or after the expiry of that person’s appointment, have

been reopened; and

(b) for as long as that person will be necessarily engaged in connection with

the disposal of the proceedings so pending or reopened. [Sub-s. (6) added by s. 48 of Act 42/96]

(7) The provisions of subsections (2) to (6) apply, read with the changes required by

the context, to acting judges appointed in terms of section 169 (2). [Sub-s. (7) added by s. 48 of Act 42/96]

(Commencement date of s. 170: 1 January 1996)

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. (Commencement date of s. 171: 1 January 1996.)

172 Area of jurisdiction and seat of Labour Appeal Court

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(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. (Commencement date of s. 172: 1 January 1996)

173 Jurisdiction of the 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) ………. [Sub-s. (2) deleted by s. 22 of Act 127/98]

(3) ………. [Sub-s. (3) amended by s. 22 of Act 127/98 and deleted by s. 38 of Act 12/2002]

(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

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(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. (Commencement date of s. 176: 1 January 1996)

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 High Court could have done so. [Sub-s. (2) amended by s. 23 of Act 127/98]

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

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(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 High Court. [S. 180 amended by s. 24 of Act 127/98]

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.

[0861 IMPLEX]

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 (1) (a);

(b) its decision on any question of law in terms of section 173 (1) (b); or

Part F

General Provisions applicable to Courts established by this Act

184 General provisions applicable to courts established by this Act

Sections 5, 41 18, 42 25, 43 30, 44 31, 45 39, 46 40, 47 and 42, 48 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.

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44. Manner of securing attendance of witnesses or the production of any document. 45. Manner in which witnesses 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 AND UNFAIR LABOUR PRACTICE [Heading substituted by s. 39 of Act 12/2002]

185 Right not to be unfairly dismissed or subjected to unfair labour practice

Every employee has the right not to be –

(a) unfairly dismissed; and

(b) subjected to unfair labour practice. [S. 185 substituted by s. 40 of Act 12/2002]

[0861 IMPLEX]

186 Meaning of dismissal and unfair labour practice [Heading substituted by s. 41 of Act 12/2002]

“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;

(i) took maternity leave in terms of any law, collective agreement

or her contract of employment; or

(ii) ………. [Sub-para. (ii) deleted by s. 95 of Act 75/97]

(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 em loyer made continued employment intolerable for the

employee.

(f) an employee terminated a contract of employment with or without

notice because the new employer, after a transfer in terms of section

197 or section 197A, provided the employee with conditions or

circumstances at work that are substantially less favourable to the

employee than those provided by the old employer. [Para. (f) added by s. 41 of Act 12/2002]

(2) “Unfair labour practice” means an unfair act or omission that arises between an

employer and an employee involving -

[0861 IMPLEX]

(a) unfair conduct by the employer relating to the promotion, demotion,

probation (excluding disputes about dismissals for a reason relating to

probation) or training of an employee or relating to the provision of

benefits to an employee;

(b) the unfair suspension of an employee or any other unfair disciplinary

action short of dismissal in respect of an employee;

employee in terms of any agreement; and

(d) an occupational detriment, other than dismissal, in contravention of the

Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the

employee having made a protected disclosure defined in that Act. [Sub-s. (2) added by s. 41 of Act 12/2002]

187 Automatically unfair dismissals

(1) A dismissal is automatically unfair if the employer, in dismissing the employee,

acts contrary to section 5 49 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;

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

[0861 IMPLEX]

(ii) participating in any proceedings in terms of this Act;

(e) the employee’s pregnancy, intended pregnancy, or any reason related

to her pregnancy;

(f) 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.

(g) a transfer, or a reason related to a transfer, contemplated in section

197 or 197A; or [Para. (g) added by s. 42 of Act 12/2002]

(h) a contravention of the Protected Disclosures Act, 2000, by the employer,

on account of an employee having made a protected disclosure defined

in that Act.

[Para. (h) added by s. 42 of Act 12/2002]

(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.

_____________ 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 accordance with the provisions of Chapter VIII for a reason related

[0861 IMPLEX]

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.”

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

_______________ 51. See Schedule 8, the Code of Good Practice: Dismissal.

188A .Agreement for pre-dismissal arbitration

(1) An employer may, with the consent of the employee, request a council, an

accredited agency or the Commission to conduct an arbitration into allegations

about the conduct or capacity of that employee.

(2) The request must be in the prescribed form.

(3) The council, accredited agency or the Commission must appoint an arbitrator on

receipt of -

(a) payment by the employer of the prescribed fee; and

[0861 IMPLEX]

(b) the employee’s written consent to the inquiry.

(4) (a) An employee may only consent to a pre-dismissal arbitration after the

employee has been advised of the allegation referred to in subsection

(1) and in respect of a specific arbitration.

(b) Despite subparagraph (a), an employee earning more than the

amount determined by the Minister in terms of section 6(3) of the Basic

Conditions of Employment Act, may consent to the holding of a pre-

dismissal arbitration in a contract of employment.

(5) In any arbitration in terms of this section a party to the dispute may appear in

person or be represented only by -

(a) a co-employee;

(b) a director or employee, if the party is a juristic person;

union or registered employers’ organisation; or

(d) a legal practitioner, on agreement between the parties.

(6) Section 138, read with the changes required by the context, applies to any

arbitration in terms of this section.

(7) An arbitrator appointed in terms of this section has all the powers conferred on a

commissioner by section 142(1)(a) to (e), (2) and (7) to (9), read with the

changes required by the context, and any reference in that section to the

director for the purpose of this section, must be read as a reference to -

(a) the secretary of the council, if the arbitration is held under the auspices

of the council;

(b) the director of the accredited agency, if the arbitration is held under

the auspices of an accredited agency.

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(8) The provisions of sections 143 to 146 apply to any award made by an arbitrator

in terms of this section.

(9) An arbitrator conducting an arbitration in terms of this section must, in the light

of the evidence presented and by reference to the criteria of fairness in the Act,

direct what action, if any, should be taken against the employee.

(10) (a) A private agency may only conduct an arbitration in terms of this section

if it is accredited for this purpose by the Commission.

(b) A council may only conduct an arbitration in terms of this section in

respect of which the employer or the employee is not a party to the

council, if the council has been accredited for this purpose by the

Commission. [S. 188A inserted by s. 43 of Act 12/2002]

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 –

(i) 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; and

(ii) any registered trade union whose members are likely to be

affected by the proposed dismissals;

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; or

[0861 IMPLEX]

(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 employer and the other consulting parties must in the consultation

envisaged by subsections (1) and (3) engage in a meaningful joint consensus-

seeking process and attempt to reach consensus on -

(a) appropriate measures -

(i) to avoid the dismissals;

(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

(3) The employer must issue a written notice invinting the other consulting party to

consult with it and disclose in writing 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;

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;

(f) the severance pay proposed;

[0861 IMPLEX]

(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; and

(i) the number of employees employed by the employer; and

(j) the number of employees that the employer has dismissed for reasons based on its

operational requirements in the preceding 12 months.

(4) (a) The provisions of section 16 apply, read with the changes required

by the context. to the disclosure of information in terms of

subsection (3).

(b) In any dispute in which an arbitrator or the Labour Court is

required to decide whether or not any information is relevant, the

onus is on the employer to prove that any information that it has

refused to disclose is not relevant for the purposes for which it is

sought.

(5) The employer must allow the other consulting party an opportunity during

consultation to make representations about any matter dealth with in

subsections (2), (3) and (4) as well as any other matter relating to the proposed

dismissals.

(6) (a) 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.

(b) If any representation is made in writing the employer must respond

in writing

(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.

[0861 IMPLEX]

[S. 189 substituted by s. 44 of Act 12/2002]

189A.Dismissals based on operational requirements by employers with more than 50

employees

This section applies to employers employing more than 50 employees if-

(a) the employer contemplates dismissing by reason of the employer’s

operational requirements, at least -

(i) 10 employees, if the employer employs up to 200 employees;

(ii) 20 employees, if the employer employs more than 200, but

not more than 300, employees;

(iii) 30 employees, if the employer employs more than 300, but

not more than 400, employees;

(iv) 40 employees, if the employer employs more than 400, but

not more than 500, employees; or

(v) 50 employees, if the employer employs more than 500

employees; or

(b) the number of employees that the employer contemplates

dismissing together with the number of employees that have been

dismissed by reason of the employer’s operational requirements in

the 12 months prior to the employer issuing a notice in terms of

section 189(3), is equal to or exceeds the relevant number

specified in paragraph (a).

(2) In respect of any dismissal covered by this section -

(a) an employer must give notice of termination of employment in

accordance with the provisions of this section;

(b) despite section 65(1)(c), an employee may participate in a strike

and an employer may lock out in accordance with the provisions of

this section;

[0861 IMPLEX]

facilitation or consultation.

(3) The Commission must appoint a facilitator in terms of any regulations made

under subsection (6) to assist the parties engaged in consultations if -

(a) the employer has in its notice in terms of section 189(3) requested

facilitation; or

(b) consulting parties representing the majority of employees whom

the employer contemplates dismissing have requested facilitation

and have notified the Commission within 15 days of the notice.

(4) This section does not prevent an agreement to appoint a facilitator in

circumstances not contemplated in subsection (3).

(5) If a facilitator is appointed in terms of subsection (3) or (4) the facilitation must

be conducted in terms of any regulations made by the Minister under subsection

(6) for the conduct of such facilitations.

(6) The Minister, after consulting NEDLAC and the Commission, may make

regulations relating to -

(a) the time period, and the variation of time periods, for facilitation;

(b) the powers and duties of facilitators;

appointing a facilitator and the amount of the fee; and

(d) any other matter necessary for the conduct of facilitations.

(7) If a facilitator is appointed in terms of subsection (3) or (4), and 60 days have

elapsed from the date on which notice was given in terms of section 189(3) -

(a) the employer may give notice to terminate the contracts of

employment in accordance with section 37(1) of the Basic

Conditions of Employment Act; and

[0861 IMPLEX]

(b) a registered trade union or the employees who have received

notice of termination may either -

(i) give notice of a strike in terms of section 64(1)(b) or (d);

(ii) refer a dispute concerning whether there is a fair reason

for the dismissal to the Labour Court in terms of section

191(11).

(8) If a facilitator is not appointed -

(a) a party may not refer a dispute to a council or the Commission

unless a period of 30 days has lapsed from the date on which

notice was given in terms of section 189(3); and

(b) once the periods mentioned in section 64(1)(a) have elapsed -

(i) the employer may give notice to terminate the contracts

of employment in accordance with section 37(1) of the

Basic Conditions of Employment Act; and

(ii) a registered trade union or the employees who have

received notice of termination may -

(aa) give notice of a strike in terms of section 64(1)(b) or (d);

(bb) refer a dispute concerning whether there is a fair reason

for the dismissal to the Labour Court in terms of section

191(11).

(9) Notice of the commencement of a strike may be given if the employer dismisses

or gives notice of dismissal before the expiry of the periods referred to in

subsections (7)(a) or (8)(b)(i).

(10) (a) A consulting party may not -

[0861 IMPLEX]

(i) give notice of a strike in terms of this section in respect of

a dismissal, if it has referred a dispute concerning

whether there is a fair reason for that dismissal to the

Labour Court;

(ii) refer a dispute about whether there is a fair reason for a

dismissal to the Labour Court, if it has given notice of a

strike in terms of this section in respect of that dismissal.

(b) If a trade union gives notice of a strike in terms of this section -

(i) no member of that trade union, and no employee to

whom a collective agreement concluded by that trade

union dealing with consultation or facilitation in respect of

dismissals by reason of the employers’ operational

requirements has been extended in terms of section

23(1)(d), may refer a dispute concerning whether there is

a fair reason for dismissal to the Labour Court;

(ii) any referral to the Labour Court contemplated by

subparagraph (i) that has been made, is deemed to be

withdrawn.

(11) The following provisions of Chapter IV apply to any strike or lock-out in terms of

this section:

(a) Section 64(1) and (3)(a) to (d), except that -

(i) section 64(1)(a) does not apply if a facilitator is appointed

in terms of this section;

(ii) an employer may only lock out in respect of a dispute in

which a strike notice has been issued;

(b) subsection (2)(a), section 65(1) and (3);

strike must be given at least 14 days prior to the commencement

of the strike;

[0861 IMPLEX]

(d) sections 67, 68, 69 and 76.

(12) (a) During the 14-day period referred to in subsection (11)(c), the

director must, if requested by an employer who has received

notice of any intended secondary strike, appoint a commissioner

to attempt to resolve any dispute, between the employer and the

party who gave the notice, through conciliation.

(b) A request to appoint a commissioner or the appointment of a

commissioner in terms of paragraph (a) does not affect the right of

employees to strike on the expiry of the 14-day period.

(13) If an employer does not comply with a fair procedure, a consulting party may

approach the Labour Court by way of an application for an order -

(a) compelling the employer to comply with a fair procedure;

(b) interdicting or restraining the employer from dismissing an

employee prior to complying with a fair procedure;

complied with a fair procedure;

(d) make an award of compensation, if an order in terms of

paragraphs (a) to (c) is not appropriate.

(14) Subject to this section, the Labour Court may make any appropriate order

referred to in section 158(1)(a).

(15) An award of compensation made to an employee in terms of subsection (14)

must comply with section 194.

(16) The Labour Court may not make an order in respect of any matter concerning

the disclosure of information in terms of section 189(4) that has been the subject

of an arbitration award in terms of section 16.

(17) (a) An application in terms of subsection (13) must be brought not later

than 30 days after the employer has

[0861 IMPLEX]

given notice to terminate the employee’s services or, if notice is not given, the

date on which the employees are dismissed.

(b) The Labour Court may, on good cause shown condone a failure to

comply with the time limit mentioned in paragraph (a).

(18) The Labour Court may not adjudicate a dispute about the procedural fairness of

a dismissal based on the employer’s operational requirements in any dispute

referred to it in terms of section 191(5)(b)(ii).

(19) In any dispute referred to the Labour Court in terms of section 191(5)(b)(ii) that

concerns the dismissal of the number of employees specified in subsection (1),

the Labour Court must find that the employee was dismissed for a fair reason if -

(a) the dismissal was to give effect to a requirement based on the

employer’s economic, technological, structural or similar needs;

(b) the dismissal was operationally justifiable on rational grounds;

(d) selection criteria were fair and objective.

(20) For the purposes of this section, an “employer” in the public service is the

executing authority of a national department, provincial administration, provincial

department or organisational component contemplated in section 7(2) of the

Public Service Act, 1994 (promulgated by Proclamation No. 103 of 1994). [S. 189A inserted by s. 45 of Act 12/2002]

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 (1) -

[0861 IMPLEX]

(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;

date of dismissal is the date on which the employer first refused to

reinstate or re-employ that employee.

191 Disputes about unfair dismissals and unfair labour practices 52

[Heading substituted by s. 46 of Act 12/2002]

(1) (a) If there is a dispute about the fairness of a dismissal, or a dispute

about an unfair labour practice, the dismissed employee or the

employee alleging the unfair labour practice may refer the dispute

in writing to -

(i) a council, if the parties to the dispute fall within the

registered scope of that council; or

(ii) the Commission, if no council has jurisdiction.

b) A referral in terms of paragraph (a) must be made within -

(i) 30 days of the date of a dismissal or, if it is a later date,

within 30 days of the employer making a final decision to

dismiss or uphold the dismissal;

(ii) 90 days of the date of the act or omission which allegedly

constitutes the unfair labour practice or, if it is a later

date, within 90 days of the date on which the employee

became aware of the act or occurrence. [Sub-s. (1) substituted by s. 46 of Act 12/2002]

[0861 IMPLEX]

(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 relevant time limit in

subsection (1) has expired. [Sub-s. (2) substituted by s. 46 of Act 12/2002]

(2A) Subject to subsections (1) and (2), an employee whose contract of employment

is terminated by notice, may refer the dispute to the council or the Commission

once the employee has received that notice. [Sub-s. (2A) inserted by s. 46 of Act 12/2002]

(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 -

(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 is

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 the employer provided the employee with

substantially less favourable conditions or circumstances

at work after a transfer in terms of section 197 or 197A,

unless the employee alleges that the contract of

employment was terminated for a reason contemplated

in section 187; [Subpara. (ii) substituted by s. 46 of Act 12/2002]

(iii) the employee does not know the reason for dismissal; or

[0861 IMPLEX]

(iv) the dispute concerns an unfair labour practice; or [Subpara. (iv) added by s. 46 of Act 12/2002]

(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 employees 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.

(5A) Despite an other provision in the Act, the council or Commission must

commence the arbitration immediately after certifying that the dispute remains

unresolved if the dispute concerns -

(a) the dismissal of an employee for any reason relating to probation;

(b) any unfair labour practice relating to probation;

which no party has objected to the matter being dealt with in terms

of this subsection. [Sub-s. (5A) inserted by s. 46 of Act 12/2002]

(6) Despite subsection (5)(a) or (5A), 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;

[0861 IMPLEX]

(d) whether there are conflicting arbitration awards that need to be

resolved;

(e) the public interest. [Sub-s. (6) substituted by s. 46 of Act 12/2002]

(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.

(11) (a) The referral, in terms of subsection (5) (b), of a dispute to the Labour

Court for adjudication, must be made within 90 days after the council

or (as the case may be) the commissioner has certified that the

dispute remains unresolved.

(b) However, the Labour Court may condone non-observance of that

timeframe on good cause shown. [Sub-s. (11) added by s. 25 of Act 127/98]

(12) If an employee is dismissed by reason of the employer’s operational

requirements following a consultation procedure in terms of section 189 that

applied to that employee only, the employee may elect to refer the dispute either

to arbitration or to the Labour Court. [Sub-s. (12) added by s. 46 of Act 12/2002]

(13) (a) An employee may refer a dispute concerning an alleged unfair

[0861 IMPLEX]

labour practice to the Labour Court for adjudication if the

employee has alleged that the employee has been subjected to

an occupational detriment by the employer in contravention of

section 3 of the Protected Disclosures Act, 2000, for having made

a protected disclosure defined in that Act.

(b) A referral in terms of paragraph (a) is deemed to be made in terms

of subsection (5)(b). [Sub-s. (13) added by s. 46 of Act 12/2002]

____________ 52. See flow diagrams Nos. 10, 11, 12 and 13 in Schedule 4.

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 and unfair labour practice [Heading substituted by s. 47 of Act 12/2002]

(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

(2) The Labour Court or the arbitrator must require the employer to reinstate or re-

employ the employee unless -

[0861 IMPLEX]

(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;

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

(4) An arbitrator appointed in terms of this Act may determine any unfair labour

practice dispute referred to the arbitrator, on terms that the arbitrator deems

reasonable, which may include ordering reinstatement, re-employment or

compensation. [Sub-s. (4) inserted by s. 47 of Act 12/2002]

___________ 53. The Court, for example, in the case of a dismissal that constitutes an act of

discrimination may wish to issue an interdict obliging the employer to stop the

discriminatory practice in addition to one of the other remedies it may grant.

194 Limits on compensation

(1) The compensation awarded to an employee whose dismissal is found to be

unfair either because the employer did not prove that the reason for dismissal

was a fair reason relating to the employee’s conduct or capacity or the

employer’s operational requirements or the employer did not follow a fair

procedure, or both, must be just and equitable in all the circumstances, but may

not be more than the equivalent of 12 months’ remuneration calculated at the

employee’s rate of remuneration on the date of dismissal. [Sub-s. (1) substituted by s. 48 of Act 12/2002]

(2) ………. [Sub-s. (2) deleted by s. 48 of Act 12/2002]

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(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.

(4) The compensation awarded to an employee in respect of an unfair labour

practice must be just and equitable in all the circumstances, but not more than

the equivalent of 12 months remuneration. [Sub-s. (4) added by s. 48 of Act 12/2002]

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 ………. [S. 196 repealed by s. 95 of Act 75/97]

197 Transfer of contract of employment

(1) In this section and in section 197A -

(a) ‘business’ includes the whole or a part of any business, trade,

undertaking or service; and

(b) ‘transfer’ means the transfer of a business by one employer (‘the

old employer’) to another employer (‘the new employer’) as a

going concern.

(2) If a transfer of a business takes place, unless otherwise agreed in terms of

subsection (6) -

(a) the new employer is automatically substituted in the place of the

old employer in respect of all contracts of employment in existence

immediately before the date of transfer;

(b) all the rights and obligations between the old employer and an

employee at the time of the transfer continue in force as if they

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had been rights and obligations between the new employer and

the employee;

employer, including the dismissal of an employee or the

commission of an unfair labour practice or act of unfair

discrimination, is considered to have been done by or in relation to

the new employer; and

(d) the transfer does not interrupt an employee’s continuity of

employment, and an employee’s contract of employment

continues with the new employer as if with the old employer.

(3) (a) The new employer complies with subsection (2) if that employer

employs transferred employees on terms and conditions that are

on the whole not less favourable to the employees than those on

which they were employed by the old employer.

(b) Paragraph (a) does not apply to employees if any of their

conditions of employment are determined by a collective

agreement.

(4) Subsection (2) does not prevent an employee from being transferred to a

pension, provident, retirement or similar fund other than the fund to which the

employee belonged prior to the transfer, if the criteria in section 14(1)(c) of the

Pension Funds Act, 1956 (Act No. 24 of 1956), are satisfied.53a

(5) (a) For the purposes of this subsection, the collective agreements and

arbitration awards referred to in paragraph (b) are agreements and

awards that bound the old employer in respect of the employees to

be transferred, immediately before the date of transfer.

(b) Unless otherwise agreed in terms of subsection (6), the new

employer is bound by -

(i) any arbitration award made in terms of this Act, the

common law or any other law;

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(ii) any collective agreement binding in terms of section 23;

and

(iii) any collective agreement binding in terms of section 32

unless a commissioner acting in terms of section 62

decides otherwise.

(6) (a) An agreement contemplated in subsection (2) must be in writing and

concluded between -

(i) either the old employer, the new employer, or the old and

new employers acting jointly, on the one hand; and

(ii) the appropriate person or body referred to in section

189(1), on the other.

(b) In any negotiations to conclude an agreement contemplated by

paragraph (a), the employer or employers contemplated in

subparagraph (i), must disclose to the person or body

contemplated in subparagraph (ii), all relevant information that will

allow it to engage effectively in the negotiations.

the context, to the disclosure of information in terms of paragraph

(b).

(7) The old employer must -

(a) agree with the new employer to a valuation as at the date of

transfer of -

(i) the leave pay accrued to the transferred employees of

the old employer;

(ii) the severance pay that would have been payable to the

transferred employees of the old employer in the event of

a dismissal by reason of the employer’s operational

requirements; and

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(iii) any other payments that have accrued to the transferred

employees but have not been paid to employees of the

old employer;

(b) conclude a written agreement that specifies -

(i) which employer is liable for paying any amount referred

to in paragraph (a), and in the case of the apportionment

of liability between them, the terms of that

apportionment; and

(ii) what provision has been made for any payment

contemplated in paragraph (a) if any employee becomes

entitled to receive a payment;

(b) to each employee who after the transfer becomes employed by

the new employer; and

(d) take any other measure that may be reasonable in the

circumstances to ensure that adequate provision is made for any

obligation on the new employer that may arise in terms of

paragraph (a).

(8) For a period of 12 months after the date of the transfer, the old employer is

jointly and severally liable with the new employer to any employee who

becomes entitled to receive a payment contemplated in subsection (7)(a) as a

result of the employee’s dismissal for a reason relating to the employer’s

operational requirements or the employer’s liquidation or sequestration, unless

the old employer is able to show that it has complied with the provisions of this

section.

(9) The old and new employer are jointly and severally liable in respect of any claim

concerning any term or condition of employment that arose prior to the transfer.

(10) This section does not affect the liability of any person to be prosecuted for,

convicted of, and sentenced for, any offence. [S. 197 substituted by s. 49 of Act 12/2002]

_______________

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53a Section 14(1)(c) of the Pensions Funds Act requires the registrar to be satisfied that

any scheme to amalgamate or transfer funds is reasonable and equitable, and

accords full recognition to the rights and reasonable benefit expectations of the

persons concerned in terms of the fund rules, and to additional benefits which have

become established practice.

197A.Transfer of contract of employment in circumstances of insolvency

(1) This section applies to a transfer of a business -

(a) if the old employer is insolvent; or

(b) if a scheme of arrangement or compromise is being entered into to

avoid winding-up or sequestration for reasons of insolvency.

(2) Despite the Insolvency Act, 1936 (Act No. 24 of 1936), if a transfer of a business

takes place in the circumstances contemplated in subsection (1), unless

otherwise agreed in terms of section 197(6) -

(a) the new employer is automatically substituted in the place of the

old employer in all contracts of employment in existence

immediately before the old employer’s provisional winding-up or

sequestration;

(b) 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;

each employee is considered to have been done by the old

employer;

(d) the transfer does not interrupt the employee’s continuity of

employment and the employee’s contract of employment

continues with the new employer as if with the old employer.

(3) Section 197(3), (4), (5) and (10) applies to a transfer in terms of this section and

any reference to an agreement in that section must be read as a reference to an

agreement contemplated in section 197(6).

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(4) Section 197(5) applies to a collective agreement or arbitration binding on the

employer immediately before the employer’s provisional winding-up or

sequestration.

(5) Section 197(7), (8) and (9) does not apply to a transfer in accordance with this

section. [S. 197A inserted by s. 50 of Act 12/2002]

197B.Disclosure of information concerning insolvency

(1) An employer that is facing financial difficulties that may reasonably result in the

winding-up or sequestration of the employer, must advise a consulting party

contemplated in section 189(1).

(2) (a) An employer that applies to be wound up or sequestrated, whether

in terms of the Insolvency Act, 1936, or any other law, must at the

time of making application, provide a consulting party contemplated

in section 189 (1) with a copy of the application.

(b) An employer that receives an application for its winding-up or

sequestration must supply a copy of the application to any

consulting party contemplated in section 189(1), within two days of

receipt, or if the proceedings are urgent, within 12 hours. [S. 197B inserted by s. 50 of Act 12/2002]

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CHAPTER IX

GENERAL PROVISIONS

198 Temporary Employment Services

(1) In this section, “temporary employment services” 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;

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(b) a binding arbitration award that regulates terms and conditions of

employment;

(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

(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) a temporary employment service;

(b) a person employed by a temporary employment service; and

(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

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corresponding collective agreements concluded in the bargaining

councils; and

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

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;

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(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.

200A.Presumption as to who is employee

(1) Until the contrary is proved, a person who works for, or renders services to, any

other person is presumed, regardless of the form of the contract, to be an

employee, if any one or more of the following factors are present:

(a) the manner in which the person works is subject to the control or

direction of another person;

(b) the person’s hours of work are subject to the control or direction of

another person;

forms part of that organisation;

(d) the person has worked for that other person for an average of at

least 40 hours per month over the last three months;

(e) the person is economically dependant on the other person for

whom he or she works or renders services;

(f) the person is provided with tools of trade or work equipment by the

other person; or

(g) the person only works for or renders services to one person.

(2) Subsection (1) does not apply to any person who earns in excess of the amount

determined by the Minister in terms of section 6(3) of the Basic Conditions of

Employment Act.

(3) If a proposed or existing work arrangement involves persons who earn amounts

equal to or below the amounts determined by the Minister in terms of section

6(3) of the Basic Conditions of Employment Act, any of the contracting parties

may approach the Commission for an advisory award on whether the persons

involved in the arrangement are employees.

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(4) NEDLAC must prepare and issue a Code of Good Practice that sets out

guidelines for determining whether persons, including those who earn in excess

of the amount determined in subsection (2) are employees. [S. 200A inserted by s. 51 of Act 12/2002]

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;

(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) A person convicted of an offence in terms of this section, may be

sentenced to a fine not exceeding R10 000.

(b) The Minister, in consultation with the Minister of Justice, may from

time to time by notice in the Government Gazette, amend the

maximum amount of the fine referred to in paragraph (a). [Sub-s. (3) substituted by s. 49 of Act 42/96]

202 Service of documents

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(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.

(4) A Code of Good Practice issued in terms of this section may provide that the

code must be taken into account in applying or interpreting any employment law. [Sub-s. (4) added by s. 52 of Act 12/2002]

(Commencement date of s. 203: 1 January 1996)

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 Basic Conditions of Employment 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

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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. [S. 204 amended by s. 53 of Act 12/2002]

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;

(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

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(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;

(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

(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. (Commencement date of s. 206: 1 January 1996)

207 Ministers empowered to add to and change Schedules

(1) The Minister, after consulting NEDLAC, by notice in the Government Gazette

may change, replace or add to Schedules 2 and 4 to this Act and the Schedule

envisaged in subsection (3). [Sub-s. (1) substituted by s. 50 of Act 42/96 and s. 26 of Act 127/98]

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(2) ………. [Sub-s. (2) deleted by s. 26 of Act 127/98]

(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) ………. [Sub-s. (6) substituted by s. 50 of Act 42/96 and deleted by s. 26 of Act 127/98]

(Commencement date of s. 207: 1 January 1996)

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. (Commencement date of s. 208: 1 January 1996)

208A. Delegations

(1) The Minister, in writing, may delegate to the Director General or any other officer

of the Department of Labour any power, function or duty conferred or imposed

upon the Minister in terms of this Act, except the powers, functions and duties

contemplated in section 32 (but excluding subsection (6)), and sections 44, 207

and 208.

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(2) A delegation in terms of subsection (1) does not limit or restrict the competence

of the Minister to exercise or perform any power, function or duty that has been

delegated.

(3) The Minister may make a delegation subject to any conditions or restrictions that

are deemed fit.

(4) The Minister may at any time -

(a) withdraw a delegation made in terms of subsection (1); and

(b) withdraw or amend any decision made by a person in exercising a

power or performing a function or duty delegated in terms of

subsection (1). [S. 208A inserted by s. 51 of Act 42/96]

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 1 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.

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(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, 1997 (Act No. 75 of 1997):

[Definition of “Basic Conditions of Employment Act” substituted by s. 54 of Act 12/2002]

“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

organisations;

“council” includes a bargaining council and a statutory council;

“director” means the director of the Commission appointed in terms of section 118 (1) and includes any acting director appointed in terms of section 119;

[Definition of “director” amended by s. 52 of Act 42/96]

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“dismissal” means dismissal as defined in section 186;

“dispute” includes an alleged dispute; [Definition of “dispute” amended by s. 52 of Act 42/96]

“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”;

[Definition of “employee” amended by s. 52 of Act 42/96]

“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;

“employment law” includes this Act, an other Act the administration of which has been assigned to the Minister, and any of the following Acts:

(a) the Unemployment Insurance Act, 1966 (Act No. 30 of 1966);

(b) the Skills Development Act, 1998 (Act No. 97 of 1998);

(d) the Occupational Health and Safety Act, 1993 (Act No. 85 of

1993); and

(e) the Compensation for Occupational Injuries and Diseases Act,

1993 (Act No. 130 of 1993); [Definition of “employment law” inserted by s. 54 of Act 12/2002]

“essential service” means -

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(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;

“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;

“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;

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“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 socio-economic interests

of workers, but not for a purpose referred to in the definition of strike;

“public service” means the national departments, provincial administrations, provincial departments and organisational components contemplated in section 7(2) of the Public

Service Act, 1994 (promulgated by Proclamation No. 103 of 1994), but excluding -

(a) the members of the South African National Defence Force;

(b) the National Intelligence Agency; and

“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);

[Para. (b) substituted by s. 54 of Act 12/2002]

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;

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“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 1 of the

Constitution; and

(b) when used in the territorial sense, means the national territory of

the Republic as defined in section 1 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 III;

“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);

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“working hours” means those hours during which an employee is obliged to work;

“workplace” -

(a) in relation to the public service -

(i) for the purposes of collective bargaining and dispute

resolution, the registered scope of the Public Service Co-

ordinating Bargaining Council or a bargaining council in a

sector in the public service, as the case may be; or

(ii) for any other purpose, a national department, provincial

administration, provincial department or organisational

component contemplated in section 7(2) of the Public

Service Act, 1994 (promulgated by Proclamation No. 103

of 1994), or any other part of the public service that the

Minister for Public Service and Administration, after

consultation with the Public Service Co-ordinating

Bargaining Council, demarcates as a workplace; [Para. (a) substituted by s. 54 of Act 12/2002]

(b) ………. [Para. (b) deleted by s. 54 of Act 12/2002]

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. _______________ 54. “Employee” is given a different and specific meaning in section 78 in Chapter V.

214. Short title and commencement

(1) This Act is called the Labour Relations Act, 1995.

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(2) This Act will come into operation on a date to be determined by the President by

proclamation in the Government Gazette, except in the case of any provision in

relation to which some other arrangement regarding commencement is made

elsewhere in this Act. [Sub-s. (2) substituted by s. 53 of Act 42/96]

Schedule 1

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 bargaining 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 Africa Police Service Labour Relations

Regulations, 1995;

“Public Service Bargaining Council” means the 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).

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

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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 Coordinating 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 Coordinating 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 Coordinating 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

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 Service 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 council in sectors

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(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 (1) 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 a

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

(8) If no agreement is concluded on -

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(a) the registered trade union to be admitted, the Commission must

decide which trade union 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 1 amended by s. 54 of Act 42/96]

Schedule 2

GUIDELINES FOR CONSTITUTION OF WORKPLACE FORUM

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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:

employed, 10 members;

(d) in a workplace in which more than 1 000 employees are

employed, 10 members for the first 1 000 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))

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The formula to determine the distribution of seats in the workplace forum must reflect

the 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 follows -

4 seats for members to be elected from candidates nominated from among the manual

employees

1 seat for members to be elected from candidates nominated from among the

administrative and clerical employees

1 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.

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.

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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

workplace;

(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.

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.

(f) Every employee is entitled to vote in the election of the workplace

forum during working hours at the employer’s premises.

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(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 or to be

removed 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.

forum may apply to the Commission to have a member of the

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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.

(f) 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.

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 workplace forum present at the

meeting must be the decision of the workplace forum.

(f) The meetings between members of the workplace forum and the

employees should be at least four times a year.

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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 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.

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.

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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.

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.

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))

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(1) Where an employer carries on or conducts two or more operations that are

independent of each other by reason of their size, function and organisation, the

constitution may provide for the establishment of a coordinating workplace

forum with jurisdiction over those matters contained 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 forum 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.

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(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

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;

(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

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(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

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 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;

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(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;

(d) the director dies.

(4) The governing body must appoint a director in accordance with the provisions of

section 118 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

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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

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.

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Schedule 4

Schedule 5

AMENDMENT OF LAWS

1. Amendment of section 1 of Basic Conditions of Employment Act

Section 1 of the Basic Conditions of Employment Act is hereby amended by the

substitution for subsection (3), of the following section -

“(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

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 of 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

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registrar of the Labour Court in accordance with the Labour Relations Act, 1995,

and the rules of the Labour Court.”.

3. Amendment of section 2 of Pension Funds Act, 1956

Section 2 of the Pension Funds Act, 1956 (Act No. 24 of 1956), is hereby amended

by the substitution for subsection (1) of the following subsection:

“(1) The provisions of this Act shall not apply in relation to any pension fund which

has been established or continued in terms of a collective agreement concluded

in a council in terms of the Labour Relations Act, 1995 (Act No. 66 of 1995),

before the Labour Relations Amendment Act, 1998, has come into operation,

nor in relation to a pension fund so established or continued and which, in terms

of a collective agreement concluded in that council after the coming into

operation of the Labour Relations Amendment Act, 1998, is continued or further

continued (as the case may be). However, such a pension fund shall from time

to time furnish the registrar with such statistical information as may be requested

by the Minister.”.

4. Amendment of section 2 of Medical Schemes Act, 1967

Section 2 (1) of the Medical Schemes Act, 1967 (Act No. 72 of 1967), is hereby

amended by the substitution for paragraph (g) of the following paragraph:

“(g) shall, subject to the provisions of subsection (2A), apply with

reference to -

(i) a particular medical scheme established or continued in

terms of a collective agreement concluded in a council in

terms of the Labour Relations Act, 1995 (Act No. 66 of

1995), before the Labour Relations Amendment Act,

1998, has come into operation;

(ii) a particular medical scheme which was established or

continued in the circumstances mentioned in

subparagraph (i) and which, in terms of a collective

agreement so concluded in that council after the coming

into operation of the Labour Relations Amendment Act,

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1998, is continued or further continued (as the case may

be),

only if the Minister, at the request of the Minister of Labour and by notice in the

Gazette, has declared the said provisions to be applicable with reference to such a

particular medical scheme;”.

5. Amendment of section 1 of Insurance Act, 1943

Section 1 (1) of the Insurance Act, 1943 (Act No. 27 of 1943), is hereby amended by

the substitution for paragraph (d) of the definition of “insurance business” of the

following paragraph:

“(d) any transaction under the Labour Relations Act, 1995 (Act No. 66

of 1995);”.

6. Amendment of section 2 of Friendly Societies Act, 1956

Section 2 (1) of the Friendly Societies Act, 1956 (Act No. 25 of 1956), is hereby

amended by the substitution for paragraph (g) of the following paragraph:

“(g) the relief or maintenance of members, or any group of members,

when unemployed or in distressed circumstances, otherwise than

in consequence of the existence of a strike or lockout as defined in

section 213 of the Labour Relations Act, 1995 (Act No. 66 of

1995);”.

7. Amendment of section 3 of Friendly Societies Act, 1956

Section 3 (1) of the Friendly Societies Act, 1956, is hereby amended by the

substitution for paragraph (a) of the following paragraph:

“(a) which has been established or continued in terms of a collective

agreement concluded in a council in terms of the Labour Relations

Act, 1995. However, such a friendly society shall from time to time

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furnish the registrar with such statistical information as may be

requested by the Minister;”. [Schedule 5 amended by s. 55 of Act 42/96 and s. 27 of Act 127/98]

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

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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 1 only

Act No. 50 of 1994 Agricultural Labour Amendment Act, 1994 Section 1 only

Proclamation No. 105 of

1994

Public Service Labour Relations Act, 1994 The whole

Proclamation No. 128 of

1994

Education Labour Relations Act,

Amendment Proclamation, 1994

The whole except

section 6

Proclamation No. 134 of

1994

- Sections 1 and 2

only

- South African Police Service Labour

Relations Regulations, 1995

The whole

Schedule 7

TRANSITIONAL ARRANGEMENTS

Part A Definitions for this Schedule

1. 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 bargaining council established in terms of 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 Educational Labour Relations Act, Chapter 4 of the Agricultural Labour Act and the Public Service Labour Relations Act;

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“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. ……….

3. ……….

4. ……….

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 or deemed to be registered

in terms of the labour relations laws immediately before the commencement of

this Act, will be deemed to be a registered trade union or registered employers’

organisation under this Act and continues to be a body corporate.

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(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 fails 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 sub-item (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

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(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 11 of the Education Labour Relations Act or in terms of section

11 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 or deemed to be registered in terms of the

Labour Relations Act immediately before the commencement of this Act, will be

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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 provisions 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

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(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 or vary the scope of an industrial council, the Minister or

the registrar of the Supreme Court, as the case may be, 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 provision of this Act; and

(b) condone technical non-compliance with the provisions of this Act.

8A. Pending enquiries by industrial registrar

Any pending enquiry conducted by the industrial registrar under section 12 (3) of the

Labour Relations Act, must, after the commencement of this Act, be continued and

dealt with further by the same person in terms of the Labour Relations Act as if it had

not been repealed.

9. Pending applications by industrial councils for alterations 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 application for admission of parties to industrial councils

(1) Any pending application for admission of a party to an industrial council in terms

of section 21A 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.

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(2) Any pending appeal before the industrial court against a decision of an industrial

council in terms of section 21A of the Labour Relations Act must be dealt with by

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

21A 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) (a) Any agreement promulgated in terms of section 48, any award

binding in terms of sections 49 and 50, and any order made in terms

of section 51A, of the Labour Relations Act and in force immediately

before the commencement of this Act, remains in force and

enforceable, subject to paragraphs (b) and (c) of this subitem, and to

subitem (5B), for a period of 18 months after the commencement of

this Act or until the expiry of that agreement, award or order,

whichever is the shorter period, in all respects, as if the Labour

Relations Act had not been repealed.

(b) On the request of any council deemed by item 7 (1) to be a

bargaining council, an agreement referred to in paragraph (a) that

had been concluded in that council -

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(i) if it expires before the end of the 18-month period

referred to in paragraph (a), may be extended or

declared effective in accordance with the provisions of

subsection (4) (a) of section 48 of the Labour Relations

Act, for a period ending before or on the expiry of that

18-month period, which provisions, as well as any other

provisions of the Labour Relations Act relating to

industrial council agreements extended or declared

effective in terms of that subsection, will apply in all

respects, read with the changes required by the context,

in relation to any agreement extended or declared

effective on the authority of this subparagraph as if those

various provisions had not been repealed. However, the

Minister may not on the authority of this subparagraph

declare an agreement to be effective if it expires after 31

March 1997;

(ii) may be cancelled, in whole or in part, in accordance with

the provisions of subsection (5) of section 48 of the

Labour Relations Act, which provisions, as well as any

other provisions of the Labour Relations Act relating to

industrial council agreements wholly or partly cancelled

in terms of that subsection, will apply in all respects, read

with the changes required by the context, in relation to

any agreement wholly or partly cancelled on the authority

of this subparagraph as if those various provisions had

not been repealed.

concluded by parties to a conciliation board -

(i) if it expires before the end of the 18-month period

referred to in paragraph (a), may, at the request of the

parties that were represented on that conciliation board

at the time of the conclusion of that agreement, be

extended in accordance with, and in the manner

provided for in, paragraph (b) (i) which will apply, read

with the changes required by the context, in relation to

the extension of agreements of that nature;

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(ii) may, at the request of those parties, be cancelled, in

whole or in part, in accordance with paragraph (b) (ii)

which will apply, read with the changes required by the

context, in relation to the cancellation of agreements of

that nature.

(1A) (a) An agreement referred to in subitem (1) that had been concluded in a

council deemed by item 7 (1) to be a bargaining council, may be

amended or amplified by a further agreement concluded in that

bargaining council and promulgated in accordance with the

provisions of subsections (1) and (2) of section 48 of the Labour

Relations Act, which provisions will apply in all respects, read with

the changes required by the context, for the purposes of this

paragraph as if they had not been repealed.

(b) Sub-items (1) (b), (3) and (8) (a) will apply to any further

agreement concluded and promulgated on the authority of

paragraph (a) of this subitem, in all respects as if it were an

agreement referred to in subitem (1) (a).

(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 (1)

(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.

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(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.

(5A) Any exemption from an agreement or award, or from an order, contemplated in

subitem (1), that was in force immediately before the commencement of this Act,

will remain in force for a period of 18 months after the commencement of this

Act or until the period for which the exemption had been granted, has expired,

whichever is the shorter period, as if the Labour Relations Act had not been

repealed.

(5B) Any one or more of or all the provisions of an order referred to in subitem (1) (a),

may be cancelled, suspended or amended by the Minister in accordance with

the provisions of section 51A (4) (a) of the Labour Relations Act, which

provisions will apply for the purposes of this subitem as if they had not been

repealed.

(6) Any pending application for an exemption from all or any of the provisions of any

agreement or award remaining in force in terms of subitem (1), or for an

exemption from any provision of an order remaining in force in terms of that

subitem, must -

(a) in the case of that agreement or award, be dealt with in terms of

the provisions of section 51 and, whenever applicable, any other

relevant provisions, of the Labour Relations Act, in all respects,

read with the changes required by the context, as if the provisions

in question had not been repealed;

(b) in the case of that order, be dealt with in terms of the provisions of

section 51A and, whenever applicable, any other relevant

provisions, of the Labour Relations Act as if the provisions in

question had not been repealed.

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(7) An exclusion granted in terms of section 51 (12) of the Labour Relations Act will

remain in force until it is withdrawn by the Minister.

(8) After the commencement of this Act and despite the repeal of the Labour

Relations Act -

(a) any person or class of persons bound by an agreement or award

remaining in force in terms of subitem (1), may apply in

accordance with the provisions of section 51 of the Labour

Relations Act for an exemption from all or any of the provisions of

that agreement or award (as the case may be). Any application so

made, must be dealt with in terms of the provisions of section 51

and, whenever applicable, any other relevant provisions, of the

Labour Relations Act, in all respects as if the provisions in

question had not been repealed;

(b) any person bound by an order remaining in force in terms of

subitem (1), may apply in accordance with the provisions of

section 51A of the Labour Relations Act for exemption from any

provision of that order. Any application so made, must be dealt

with in terms of the provisions of section 51A and, whenever

applicable, any other relevant provisions, of the Labour Relations

Act, in all respects as if the provisions in question had not been

repealed.

12A. Designated agents

(1) Any person appointed under section 62 of the Labour Relations Act as a

designated agent of an industrial council deemed by item 7 (1) to be a

bargaining council, who holds that office immediately before the commencement

of this Act, will be deemed to be a designated agent appointed for that

bargaining council under section 33 of this Act.

(2) The certificate of appointment that had been issued in terms of section 62 (2) of

the Labour Relations Act to that designated agent, will be deemed to have been

issued in terms of section 33 (2) of this Act.

13. Existing agreements including recognition agreements

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(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 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-item

(1) and (2) in terms of which that trade union was recognised or the purposes of

collective bargaining is entitled to the organisational rights conferred by sections

11 to 16 of Chapter III as may be regulated by that agreement 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 (1), the parties to

the agreement must attempt to agree a procedure as soon as practicable after

the commencement of this Act.

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(5) An existing non-statutory agency shop or closed shop agreement is not binding

unless the agreement complies with the provisions of this item. Sections 25 and

26 of this Act become effective 180 days after the commencement of this item.

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 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.

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(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 1 for the purposes of this item unless the context otherwise

indicates;

(b) section 4 (10);

(d) section 7;

(e) section 8, except that the reference to section 5 (1) should be a

reference to item 14 (1);

(f) section 9 (3);

(g) section 10 (4) and (5);

(h) section 12;

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(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

subsection (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 fails 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;

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(v) the conciliation board does not succeed in settling the

dispute within the period contemplated in subsection (7);

(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 in 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.

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(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);

(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

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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 register 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

African Police Service Labour Regulations as if the application had been made

in terms of this Act.

19. Collective agreements in South African Police Service

The provisions of the South African Police Service Labour Relations 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 1 -

(a) the Public Service Bargaining Council and its chamber at central

level will cease to exist; and

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(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 of 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

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 (1) (d) of the Labour Relations Act, section 19 (1) (b) of the

Public Service Labour Relations Act and section 15 (1) (b) of the Education

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Labour Relations Act will be deemed to be compliance with section 64 (1) (a) of

this Act.

21A. Dispute resolution by councils before their accreditation

(1) Despite the provisions of section 52, a council may attempt to resolve through

conciliation -

(a) any dispute that may be referred to it in terms of this Act before 1

December 1996; and

(b) if the council has applied for accreditation in terms of section 127

of this Act before 1 December 1996, also any dispute so referred

to it after 1 December 1996 but before the governing body of the

Commission has made a decision on that application in terms of

section 127 (5) of this Act.

(2) For the purposes of subitem (1), any person appointed by a

council to perform on its behalf the dispute resolution function

referred to in that subitem, will be competent to exercise any of the

powers conferred on a commissioner by section 142 of this Act,

except the powers contemplated in subsection (1) (c) and (d) of

that section. In applying that section for the purposes of this

subitem, that section must be read with the changes required by

the context, and any reference in that section to the director must

be read as a reference to the secretary of the council.

(3) A council must refer to the Commission, for arbitration, any dispute

that -

(a) was referred to the council in terms of this Act on the authority of

subitem (1); and

(b) remains unresolved after the council has attempted to resolve it

through conciliation; and

22. Courts

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(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.

(2A) In relation to any proceedings which, in terms of this Schedule, are brought or

continued before the industrial court, the rules which, immediately before the

commencement of this Act, were in force under the provisions of paragraph (c)

or (d) of section 17 (22) of the Labour Relations Act, will apply as if those

provisions had not been repealed, subject to subitem (2B).

(2B) The Minister, after consultation with the president of the industrial court, may make

rules in accordance with the provisions of paragraph (c) of section 17 (22) of the Labour

Relations Act, and, in accordance with the provisions of paragraph (d) of that

section, may repeal or alter any rule so made as well as any of the rules

contemplated in subitem (2A), as if those provisions had not been repealed and

the Minister were the Board contemplated in those provisions.

(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 Appeal Court

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established by section 167 of this Act, and that Labour Appeal Court must deal

with the appeal as if the labour relations laws had not been repealed.

(6) Despite the provisions of any other law but subject to the Constitution, no appeal

will lie against any judgment or order given or made by the Labour Appeal Court

established by this Act in determining any appeal brought in terms of subitem

(5).

22A. Minister may authorise Commission to perform industrial court’s functions

(1) The Minister, after consulting the Commission, may authorise the Commission,

by notice in the Government Gazette, to perform the industrial court’s functions

in terms of item 22 (1) -

(a) in respect of the Republic as a whole or any province specified in

the notice; and

(b) with effect from a date so specified.

(2) The authorisation of the Commission in terms of subitem (1) -

(a) does not affect the competence of the industrial court in terms of

item 22 (1) to decide and finalise all pending matters that are

partly heard by it as at the date when the authorisation takes

effect, nor does it relieve that court of its functions, duties and

responsibility with regard to those matters;

(b) does not empower the Commission to perform any of the industrial

court’s functions with regard to the matters mentioned in

paragraph (a); and

court in so far as all other pending matters are concerned.

(3) In the application of this item -

(a) the provisions of item 22 (1) will apply to the Commission in all

respects as if it were the industrial court; and

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(b) the rules governing the proceedings at the industrial court in terms

of item 22 (2A) and (2B) will apply to the proceedings at all

pending matters to be decided by the Commission by virtue of its

authorisation in terms of this item.

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 (1) (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

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

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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

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

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purposes of paragraph (e) of the definition of “gross income” in section 1 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 1 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.

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Part G Essential Services

24. Essential services in the public service

(1) An essential service contemplated in section 20 (1) of the Public Service Labour

Relations Act, will be deemed to have been designated an essential service in

terms of this Act for a period ending on a date 10 months after the

commencement of this Act or on the date of the publication of the notice of

designation mentioned in subitem (2), in the Government Gazette, whichever

date occurs first.

(2) The essential services committee must, in the case of the services

contemplated in section 20 (1) of the Public Service Labour Relations Act, as

soon as possible after the commencement of this Act make a new designation,

under section 71 of this Act, of services that are essential services. Such a

designation will be effective from the date of the publication of the notice of

designation in the Government Gazette in terms of section 71 (8) of this Act.

25. Essential services provided for in the Labour Relations Act

(1) The services in which employers referred to in paragraphs (a) and (b) of section

46 (1) of the Labour Relations Act, and employees referred to in paragraphs (e)

and ( f ) of that section, are engaged, as well as any service contemplated in

paragraph (a) or (b) of section 46 (7) of that Act in which the employers and

employees to whom a notice in terms of the latter section applied immediately

before the commencement of this Act, are engaged, will be deemed to have

been designated essential services in terms of this Act for a period ending on a

date 10 months after the commencement of this Act or on the date of the

publication of the notice of designation mentioned in subitem (2), in the

Government Gazette, whichever date occurs first.

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(2) The essential services committee must, in the case of the services

contemplated in subitem (1), as soon as possible after the commencement of

this Act make a new designation, under section 71 of this Act, of services that

are essential services. Such a designation will be effective from the date of the

publication of the notice of the designation in the Government Gazette in terms

of section 71 (8) of this Act.

PART H- TRANSITIONAL PROVISIONS ARISING OUT OF THE APPLICATION OF THE LABOUR RELATIONS AMENDMENT ACT, 2002

26. Definitions

In this part -

(a) ‘Act’ means the Labour Relations Act, 1995 (Act No. 66 of 1995);

and

(b) ‘Amendment Act’ means the Labour Relations Amendment Act,

2002.

27. Representation in conciliation and arbitration

(1) Until such time as rules made by the Commission in terms of section

115(2A)(m) of the Act come into force -

(a) sections 135(4), 138(4) and 140(1) of the Act remain in force as if

they had not been repealed, and any reference in this item to

those sections is a reference to those sections prior to amendment

by this Amendment Act;

(b) a bargaining council may be represented in arbitration

proceedings in terms of section 33A of the Act by a person

specified in section 138(4) of the Act or by a designated agent or

an official of the council;

section 191 of the Act must be determined by -

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(i) section 138(4) read with section 140(1) of the Act for

disputes about a dismissal; and

(ii) section 138(4) of the Act for disputes about an unfair

labour practice.

(2) Despite subitem 1(a), section 138(4) of the Act does not apply to an arbitration

conducted in terms of section 188A of the Act.

28. Order for costs in arbitration

Section 138(10) of the Act, before amendment by the Amendment Act, remains in

effect as if it had not been amended until such time as the rules made by the

Commission in terms of section 115(2A)(j) of the Act come into effect.

29. Arbitration in terms of section 33A

(1) Until such time as the Minister promulgates a notice in terms of section 33A(13)

of the Act, an arbitrator conducting an arbitration in terms of section 33A of the

Act may impose a fine in terms of section 33A(8)(b) of the Act subject to the

maximum fines set out in Table One and Two of this item.

(2) The maximum fine that may be imposed by an arbitrator in terms of section

33A(8)(b) of the Act

(a) for a failure to comply with a provision of a collective agreement

not involving a failure to pay any amount of money, is the fine

determined in terms of Table One; and

(b) involving a failure to pay an amount due in terms of a collective

agreement, is the greater of the amounts determined in terms of

Table One and Table Two.

TABLE ONE: MAXIMUM PERMISSIBLE FINE NOT INVOLVING AN UNDERPAYMENT

No previous failure to comply R100 per employee in respect of whom the

failure to comply occurs

A previous failure to comply in respect of the R200 per employee in respect of whom the

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same provision failure to comply occurs

A previous failure to comply with the previous

12 months or two previous failures to comply

in respect of the same provisions within three

years

R300 per employee in respect of whom the

failure to comply occurs

Three previous failures to comply respect of

the same provision within three years

R400 per employee in respect of whom the

failure to comply occurs

Four or more previous failures to comply in

respect of the same provision within three

years

R500 per employee in respect of whom the

failure to comply occurs

TABLE TWO: MAXIMUM PERMISSIBLE FINE INVOLVING AN UNDERPAYMENT

No previous failure to comply 25% of the amount due, including any

interest owing on the amount at the date of

the order

A previous failure to comply in respect of the

same provision within three years

50% of the amount due, including any

interest owing on the amount at the date of

the order

A previous failure to comply in respect of the

same provision within a year, or two previous

failures to comply in respect of the same

provision within three years

75% of the amount due, including any

interest owing on the amount at a the date of

the order

Three previous failures to comply in respect

of the same provision within three years

100% of the amount due, including any

interest owing on the amount at the date of

the order

Four or more previous failures to comply in

respect of the same provision within three

years

200% of the amount due, including any

interest owing on the amount at the date of

the order

30. Unfair labour practice

(1) Any dispute about an unfair labour practice referred to a council or Commission

in accordance with items 3(1) and (2) of this Schedule prior to the

commencement of the Amendment Act must be dealt with as if items 2, 3 and 4

of this Schedule had not been repealed.

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(2) (a) A dispute concerning any act or omission constituting an alleged

unfair labour practice that occurred prior to the commencement of the

Amendment Act that had not been referred to a council or

Commission in terms of item 3(1) and 3(2) prior to the

commencement of the Amendment Act must be dealt with in terms of

section 191 of the Act.

(b) If a dispute contemplated in paragraph (a) is not referred to

conciliation in terms of section 191(1)(a) of the Act within 90 days

of the commencement of the Amendment Act, the employee

alleging the unfair labour practice must apply for condonation in

terms of section 191(2) of the Act.

to probation.

31. Bargaining councils in public service

Any bargaining council that was established or deemed to be established in terms of

section 37(3) of the Act prior to the Amendment Act coming into force is deemed to

have been established in terms of section 37(2) of the Act.

32. Expedited applications in terms of section 189A(13)

Until such time as rules are made in terms of section 159 of the Act

(a) the Labour Court may not grant any order in terms of section

189A(13) or (14) of the Act unless the applicant has given at least

four days’ notice to the respondent of an application for an order in

terms of subsection (1). However, the Court may permit a shorter

period of notice if

(i) the applicant has given written notice to the respondent

of the applicant’s intention to apply for the granting of an

order;

(ii) the respondent has been given a reasonable opportunity

to be heard before a decision concerning that application

is taken; and

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(iii) the applicant has shown good cause why a period

shorter than four days should be permitted;

(b) an application made in terms of section 189A(13) must be enrolled

by the Labour Court on an expedited basis. [Schedule 7 amended by s. 56 of Act 42/96, Proc.R1734/96, GN R2025/96, GN R440/97, GN R654/97, s. 64 of Act

55/98, s. 28 of Act 127/98 and s. 55 of Act 12/2002]

Schedule 8

CODE OF GOOD PRACTICE: DISMISSAL

1. Introduction

(1) This code of good practice deals with some of the key aspects of dismissal 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 primary 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

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(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. Disciplinary measures short of 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

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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

wilful damage to the property of the employer, wilful 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

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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

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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 with an appropriate sanction for the

contravention of the rule or standard.

8. Incapacity: Poor work performance

Probation

(1) (a) An employer may require a newly-hired employee to serve a period

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of probation before the appointment of the employee is confirmed.

(b) The purpose of probation is to give the employer an opportunity to

evaluate the employee’s performance before confirming the

appointment.

this Code to deprive employees of the status of permanent

employment. For example, a practice of dismissing employees

who complete their probation periods and replacing them with

newly-hired employees, is not consistent with the purpose of

probation and constitutes an unfair labour practice.

(d) The period of probation should be determined in advance and be

of reasonable duration. The length of the probationary period

should be determined with reference to the nature of the job and

the time it takes to determine the employee’s suitability for

continued employment.

(e) During the probationary period, the employee’s performance

should be assessed. An employer should give an employee

reasonable evaluation, instruction, training, guidance or

counselling in order to allow the employee to render a satisfactory

service.

(f) If the employer determines that the employee’s performance is

below standard, the employer should advise the employee of any

aspects in which the employer considers the employee to be

failing to meet the required performance standards. If the

employer believes that the employee is incompetent, the employer

should advise the employee of the respects in which the employee

is not competent. The employer may either extend the

probationary period or dismiss the employee after complying with

subitems (g) or (h), as the case may be.

(g) The period of probation may only be extended for a reason that

relates to the purpose of probation. The period of extension should

not be disproportionate to the legitimate purpose that the employer

seeks to achieve.

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(h) An employer may only decide to dismiss an employee or extend

the probationary period after the employer has invited the

employee to make representations and has considered any

representations made. A trade union representative or fellow

employee may make the representations on behalf of the

employee.

(i) If the employer decides to dismiss the employee or to extend the

probationary period, the employer should advise the employee of

his or her rights to refer the matter to a council having jurisdiction,

or to the Commission.

(j) Any person making a decision about the fairness of a dismissal of

an employee for poor work performance during or on expiry of the

probationary period ought to accept reasons for dismissal that may

be less compelling than would be the case in dismissals effected

after the completion of the probationary period.

(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 -

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(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: Ill health and 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

should be allowed the opportunity to state a case in response and to be assisted

by a trade union representative or fellow employee.

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(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.

11. 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. [Schedule 8 amended by s. 57 of Act 42/96 and s. 56 of Act 12/2002]

Schedule 9

MODEL CONSTITUTION FOR A STATUTORY COUNCIL

CONTENTS OF CONSTITUTION

Item

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1. Name

2. Registered scope

3. Powers and functions

4. Parties

5. Appointment of representatives

6. Council meetings

7. Executive committee

8. Other committees

9. Chairperson and deputy chairperson

10. Officials and employees

11. Panels of conciliators and arbitrators

12. Disputes referred to council for conciliation

13. Disputes referred to council for arbitration

14. Procedure for negotiation of collective agreements

15. Finances

16. Winding-up

17. Changing constitution

18. Necessary first steps

19. Definitions

Annexure

MODEL CONSTITUTION FOR A STATUTORY COUNCIL CONSTITUTION OF ………………………….

Note: - This is a model constitution. The parties to the council are free to draft their own

constitution or to adapt this model to suit their own requirements provided the constitution

complies with the provisions of the Act.

1. Name.

The name of this statutory council is

………………………………………………………….

2. Registered scope

The registered scope of the council is specified in the council’s certificate of

registration attached to this constitution.

3. Powers and functions

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(1) The powers and functions of the council are -

(a) to perform the dispute resolution functions referred to in

section 51 of the Act;

(b) to promote and establish training and education schemes;

pay, holiday and unemployment schemes or funds or any similar

schemes or funds for the benefit of one or more of the parties to

the council or their members; and

(d) to conclude collective agreements to give effect to the matters

mentioned in paragraphs (a), (b) and (c).

(2) The council may agree to the inclusion of any of the functions of a bargaining

council referred to in section 28 (1) (a), (b), (c), (e), (h), (i) and (j) of the Act as

functions of the council.

(3) The council is only able to exercise these powers and perform these functions

within its registered scope.

4. Parties

(1) The founding parties to the council are -

(a) the following employers’ organisation(s) -

(i)………………………………………………………….; and

(ii)…………………………………………………………; and

(iii)…………………………………………………………; and

(names)

(b) the following trade union(s) -

(i)…………………………………………………………..; and

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(ii)………………………………………………………….; and

(iii)………………………………………………………………

(names)

(2) Any registered trade union or registered employers’ organisation that has

members that fall within the registered scope of the council may apply in writing

to the council for admission as a party.

(3) The application must be accompanied by -

(a) a certified copy of the applicant’s registered constitution;

(b) a certified copy of the applicant’s certificate of registration;

of the council, including, in the case of an employers’ organisation,

the number of employees that its members employ within the

council’s registered scope;

(d) a statement of the reasons why the applicant ought to be admitted

as a party to the council; and

(e) any other information on which the applicant relies in support of

the application.

(4) The council, within 90 days of receiving an application for admission, must

decide whether to grant or refuse the applicant admission, and must advise the

applicant of its decision, failing which the council is deemed to have refused the

applicant admission.

(5) 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.

5. Appointment of representatives

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(1) The council consists of -

(a) ……………..representatives of the employers’ organisations that

are parties to the council, of whom represent(s) small and medium

enterprises; and

(b) …………….representatives of the trade unions that are parties to

the council.

Note: The number of representatives representing employers in paragraph (a) must be

equal to the number of representatives representing employees in paragraph (b).

In the event that there are no employers’ organisations party to the council, representatives

will be appointed by the Minister to represent employer interests, and the provisions in the

constitution concerning the appointment of representatives will have to be adapted to deal

with this situation.

The employer representation must make provision for one or more representatives

representing small and medium enterprises.

In the event that there are no trade unions party to the council, representatives will be

appointed by the Minister to represent employee interests, and the provisions in the

constitution concerning the appointment of representatives will have to be adapted to deal

with this situation.

(2) The representatives will be allocated among the parties to the council as follows

(a) employers’ organisation(s) - number of representatives -

…………………………….. ……………………………..

…………………………… ……………………………..

(names)

(b) trade union(s) - number of representatives -

………………………. …………………………….

……………………… …………………………….

……………………………. …………………………….

(names)

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Note: The allocation may be determined according to a formula based on

representativeness, with the Secretary of the Council making a determination on an annual

basis.

(3) Subject to subclause (2) and to its own constitution, each party to the council

may appoint -

(a) its representatives to the council; and

(b) an alternate for each of its representatives.

(4) (a) A representative or an alternate will hold office for 12 months and

will be eligible for reappointment at the end of that term.

(b) A representative or an alternate whose term of office has expired

and who is not reappointed, may nevertheless continue to act as a

representative until that representative’s successor assumes

office.

(5) Despite subclause (4) -

(a) a party may withdraw any of its representatives or alternatives

after having given at least 21 days’ notice in writing to the

secretary;

(b) a representative who, without good cause, is absent from three

consecutive meetings of the council, is disqualified from continuing

in that office.

(6) If the office of any representative or alternate becomes vacant, the party that

appointed the representative or alternate may appoint another representative or

alternate for the unexpired portion of the predecessor’s term of office.

6. Council meetings

(1) The council must hold -

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(a) an annual general meeting in the month of ……………………..

each year; and

(b) an ordinary meeting at least once every ………………………

month(s).

(2) A special meeting of the council -

(a) may be called at any time by the chairperson with a view to

disposing of urgent business; and

(b) must be called by the chairperson within 14 days of -

(i) receiving a request for that purpose, stating the purpose

of the special meeting and signed by not less than

……………….. representatives; or

(ii) the adoption of a resolution by the council calling for a

special meeting.

(3) At the annual general meeting the council must -

(a) elect the additional members of the executive committee;

(b) elect the chairperson and the deputy chairperson of the council;

clause 11 (1) (a);

(d) appoint the members of the panel of arbitrators referred to in

clause 11 (1) (b);

(e) appoint the members of an exemptions board to consider and

dispose of applications for exemption from the provisions of any

collective agreement that may be concluded in the council;

(f) consider the annual financial statements of the council and the

auditor’s report on those statements; and

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(g) consider and approve, with or without any amendments, the

budget of the council for the next financial year as prepared in

terms of clause 15 (10).

(4) The secretary must prepare a written notice of every council meeting stating the

date, time and venue of the meeting and the business to be transacted, and

must send the notice to each representative by registered post at least

…………..days before the date of the meeting. However, the chairperson may

authorise shorter notice for a special meeting.

Note: There is no restriction as to the kind of service. The constitution can stipulate

any form of service e.g. service by hand, faxed transmission or electronic mail.

(5) At least half of the total number of employer representatives and half of the total

number of employee representatives form a quorum and must be present before

a meeting may begin or continue.

(6) If, at the time fixed for a meeting to begin or continue, and for 30 minutes after

that time, there is no quorum present, the meeting must be adjourned to the

same place at the same time on the corresponding day in the following week

unless that day is a public holiday, in which case the meeting must be adjourned

to the day immediately after that public holiday.

(7) A meeting that has been adjourned in terms of subclause (6) may proceed on

the date to which it was adjourned with the representatives present at the time

called for the meeting, regardless of whether or not notice has been given in

terms of subclause (4) and whether or not a quorum is present.

(8) The secretary must cause minutes to be kept of the proceedings at council

meetings.

(9) At every meeting of the council -

(a) the secretary must read the minutes of the previous meeting,

unless they were previously circulated; and

(b) after the minutes have been confirmed, with or without any

amendments, the chairperson must sign the minutes.

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(10) A motion proposed at a meeting may not be considered unless it has been

seconded. The chairperson may require a motion to be submitted in writing, in

which case the chairperson must read the motion to the meeting.

(11) Unless this constitution provides otherwise, all motions must be decided by a

majority of votes of those present and entitled to vote and voting must be by

show of hands.

Note: The constitution could stipulate that certain matters should be decided by

ballot.

(12) Each representative has one vote on any matter before the council for its

decision. However, if at the meeting the employer representatives and employee

representatives are not equal in number, the side that is in the majority must

withdraw so many of its representatives from voting at that meeting as may be

necessary to ensure that the two sides are of equal numerical strength at the

time of voting.

(13) If any question which the executive committee considers to be extremely urgent

arises between meetings of the council, and it is possible to answer that

question by a simple ‘yes’ or ‘no’, the executive committee may direct the

secretary to cause a vote of the representatives on the council to be taken by

post. A proposal subjected to a postal vote may be adopted only if it is

supported by at least two-thirds of the total number of representatives who are

entitled to vote.

(14) The executive committee may adopt general rules of procedure for its meetings

and for the meetings of the council and its other committees. However, in the

event of any conflict between those rules and the provisions of this constitution,

the provisions of this constitution will prevail.

7. Executive committee

(1) The council will have an executive committee that consists of the chairperson

and the deputy chairperson of the council, who are members by virtue of their

respective offices, and .......... additional members elected in accordance with

sub-clause (3).

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(2) Subject to the directions and control of the council, the executive committee may

exercise and perform the powers, functions and duties of the council relating to

the supervision and control of the everyday management and administration of

the council. In addition, the executive committee may -

(a) investigate and report to the council on any matter connected with

the sector in respect of which the council is registered;

(b) do anything necessary to give effect to decisions of the council;

council; and

(d) exercise and perform any power, function and duty that is

conferred or imposed on the executive committee by or in terms of

this constitution or that is delegated by the council to the executive

committee. However, the council may not delegate to the

executive committee the powers, functions and duties

contemplated in clauses 4 (4) and (5), 6 (3), 16 and 17 and sub-

clauses (3) and (6) of this clause, and the power of the council to

delegate.

Note: Admission of parties.

Various functions to be performed by the council at its annual general meeting.

Winding-up of council.

Changing council’s constitution.

Election and appointment of additional members of the executive committee.

(3) At the annual general meeting, the council must elect the additional members of

the executive committee and an alternate for each of them. The additional

members and their alternates must be representatives in the council, and half of

the additional members, as well as their alternates, must be nominated by the

employer representatives in the council, whilst the other half of the additional

members, as well as their alternates, must be nominated by the employee

representatives in the council.

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(4) (a) An additional member of the executive committee will hold office

for 12 months and will be eligible for re-election at the end of that

term.

(b) An additional member of the executive committee whose term of

office has expired and who is not re-elected, may nevertheless

continue to act as a member of the executive committee until that

member’s successor assumes office.

(5) An additional member of the executive committee -

(a) may resign from the committee at any time after having given at

least 21 days’ notice in writing to the secretary;

(b) must vacate office immediately -

(i) in the case of the resignation, when the resignation

takes effect; or

(ii) upon ceasing to be a representative in the council.

(6) (a) If the seat of an additional member of the executive committee

becomes vacant, the council must fill the vacancy from the number of

the candidates nominated for that purpose by -

(i) the employer representatives in the council, if that seat

had been held by an additional member representing the

employers; or

(ii) the employee representatives in the council, if that seat

had been held by an additional member representing

employees.

(b) A member appointed to fill a vacant seat holds that seat for the

unexpired portion of the predecessor’s term of office.

(7) The executive committee must hold an ordinary meeting at least once every

…………. .

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(8) A special meeting of the executive committee -

(a) may be called at any time by the chairperson with a view to

disposing of urgent business; and

(b) must be called by the chairperson within …………..days of

receiving a request for that purpose, stating the purpose of the

special meeting and signed by not less than

…………………………….. members of the executive committee.

(9) The secretary must prepare a written notice of every executive committee

meeting showing the date, time and venue of the meeting and the business to

be transacted, and must send the notice to each member of the committee by

registered post at least ……………………days before the date of the meeting.

However, the chairperson may authorise shorter notice for a special meeting.

Note: There are no restrictions as to the kind of service. The constitution can

stipulate any form of service e.g. service by hand, faxed transmission or electronic mail.

(10) At least half of the members of the executive committee representing employers

and half of the members of that committee representing employees form a

quorum and must be present before a meeting may begin or continue.

(11) Each member of the executive committee has one vote on any matter before the

committee for its decision. However, if at the meeting the members representing

employers and those representing employees are not equal in number, the side

that is in the majority must withdraw so many of its members from voting as may

be necessary to ensure that the two sides are of equal numerical strength at the

time of voting.

(12) In relation to any matter before the executive committee for its decision, the

decision of a majority of those members of the executive committee who are

present at the meeting and entitled to vote, will be the decision of the committee.

8. Other committees

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(1) The council may appoint other committees to perform any of its functions,

including investigating and reporting to the council on any matter, but excluding

the non-delegateable functions referred to in clause 7 (2) (d).

Note: For example, a council that has been established for two or more sectors,

could appoint a sectoral committee for each sector to conclude collective agreements on

matters specific to that sector.

(2) (a) Half of the members of any committee so appointed must be

nominated by the employer representatives, and the other half by the

employee representatives.

(b) Subject to paragraph (a), committee members must be -

(i) employers or employees within the registered scope of

the council;

(ii) office-bearers or officials of the parties to the council.

(3) A majority of the total number of the members of a committee forms a quorum

and must be present before the meeting may begin or continue.

(4) The provisions of clause 7 relating to the calling and conduct of meetings, read

with the changes required by the context, apply to meeting of any committee

contemplated in this clause.

9. Chairperson and deputy chairperson

(1) (a) At the annual general meeting, the council must elect a chairperson

and deputy chairperson.

(b) Subject to sub-clauses (3) and (6) (a), the serving chairperson of

the council at the time of the annual general meeting will be the

chairperson of the meeting and preside over the election of the

next chairperson.

(2) The chairperson of the meeting must call for nominations for the office of

chairperson. A person will have been nominated if proposed by one and

seconded by another representative in the council.

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(3) If the serving chairperson is nominated for another term, the council, by a show

of hands, must elect a representative in the council to act as chairperson of the

meeting during the election of the next chairperson.

(4) (a) If only one candidate is nominated, the candidate will be deemed to

have been elected the new chairperson unopposed, and must be

declared by the chairperson of the meeting to have been so elected.

(b) If two or more candidates are nominated, the chairperson of the

meeting must conduct a vote by ballot, and must declare the

candidate in whose favour the majority of the votes have been

cast, to have been elected the new chairperson.

(5) If an equal number of votes are cast for two or more candidates, and no other

candidate has drawn a higher number of votes than those candidates, the

chairperson of the meeting will cause to be determined by lot which one of those

candidates is to become the new chairperson.

(6) (a) Upon having been declared elected, the new chairperson must

preside over the meeting and must call for nominations for the

office of deputy chairperson.

(b) If the newly elected chairperson is an employer representative,

only employee representatives may be nominated for deputy

chairperson, and vice versa.

changes required by the context, apply to the election of the

deputy chairperson.

(7) (a) The chairperson and the deputy chairperson hold their

respective offices until the next election of the chairperson or

deputy chairperson (as the case may be) takes place, or, if the

chairperson or deputy chairperson ceases to be a representative in

the council on any date before that election, until that date. Each of

them will be eligible for re-election if still a representative when

their respective terms as chairperson and deputy chairperson

expire.

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(b) If the office of chairperson or deputy chairperson becomes vacant

before the next election of the chairperson or deputy chairperson

(as the case may be) the executive committee must elect a person

as chairperson or deputy chairperson (as the case may be) to hold

office until that next election.

accordance with sub-clauses (2), (4), (5) and (6), read with the

changes required by the context.

(8) The chairperson must preside over the meetings of the council, and must -

(a) sign the minutes of council meetings after those minutes have

been confirmed;

(b) sign cheques drawn in the council’s bank account; and

chairperson by this constitution as well as those that are generally

associated with the office of a chairperson.

(9) The deputy chairperson must preside over meetings of the council and perform

the function and duties of the chairperson whenever the chairperson is absent or

for any reason unable to act or to perform those functions and duties.

(10) If both the chairperson and deputy chairperson are absent or unable to act or to

perform the functions and duties of the chairperson, the council, by a show of

hands, must elect from the representatives a person to act as chairperson and

to perform those functions and duties.

(11) A chairperson or deputy chairperson who has not been elected from amongst

the representatives in the council is not entitled to vote on any matter before the

council or the executive committee.

(12) A chairperson or deputy chairperson may be removed from office by the council

for serious neglect of duty, serious misconduct or due to incapacity.

10. Officials and employees

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(1) The council must appoint a secretary who will be responsible for the

administrative and secretarial work arising from the functioning of the council

and for performing the functions and duties imposed on the secretary by or in

terms of the Act and this constitution. That work and those duties and functions

include -

(a) to keep and maintain the books and records of account that the

council may direct in order fully to reflect the financial transactions

and state of affairs of the council;

(b) to attend all meetings of the council and its executive committee

and record the minutes of the proceedings at those meetings;

letters received and copies of letters sent;

(d) at each meeting of the council, to read significant correspondence

that has taken place since the previous meeting;

(e) to bank all moneys received on behalf of the council within three

days of receipt;

(f) whenever required by the council, but at least once in every

quarter of the financial year, to submit to the council statements of

its financial affairs and position;

(g) to prepare, for submission at the annual general meeting of the

council, a budget for the next financial year and an annual report

summarising the key activities of the council; and

(h) to countersign cheques drawn on the council’s bank account.

(2) The secretary must -

(a) retain a copy of the confirmed and signed minutes of every

meeting of the council, the executive committee and any other

committee of the council in safe custody at the office of the council

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for a period of at least three years from the date those minutes

were confirmed;

(b) retain every financial statement referred to in sub-clause (1) (f),

and all vouchers and records relating to statements of that nature,

for at least three years from the date of the statement; and

appointed by the Minister as designated agents of the council.

(3) The council may appoint any additional officials and any number of employees

that may be necessary to assist the secretary in performing the functions and

duties of that office.

(4) The council may request the Minister to appoint any number of persons as

designated agents to help it enforce any collective agreement concluded in the

council.

(5) Where there are two or more suitable candidates for appointment to the position

of secretary or a designated agent, the council must elect the secretary or

designated agent by conducting a ballot of the representatives present at the

meeting at which the appointment is to be made, with the candidate receiving

the highest number of votes being appointed.

(6) The secretary, designated agents and other officials and employees of the

council must not be biased in favour of or prejudiced against any party in the

performance of their respective functions.

11. Panels of conciliators and arbitrators

(1) At its annual general meeting, the council must appoint -

(a) a panel of conciliators, consisting of …………….. members, for the

purpose of conciliating disputes; and

(b) a panel of arbitrators, consisting of ……………members, for the

purpose of determining disputes.

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(2) The council may remove a member of the panel of conciliators or arbitrators

from office -

(a) for serious misconduct;

(b) due to incapacity; or

and at least one half of the employee representatives in the

council have voted in favour of the removal of that member from

office.

(3) If for any reason there is a vacancy in the panel of conciliators or the panel of

arbitrators, the council may appoint a new member to the relevant panel for the

unexpired portion of the predecessor’s term of office.

(4) Unless the parties to a dispute have agreed on a member of the panel of

conciliators or the panel of arbitrators to conciliate or arbitrate their dispute, the

secretary must appoint a member of the relevant panel to conciliate or arbitrate

the dispute.

(5) (a) A person may be appointed to both the panel of conciliators and

the panel of arbitrators.

(b) A member of the panel of conciliators or the panel of arbitrators

whose term of office expires, will be eligible for reappointment to

the relevant panel at the end of that term.

12. Disputes referred to council for conciliation

(1) In this clause, a dispute means any dispute between any of the parties to the

council that may be referred to a council in terms of the Act except a dispute

contemplated in clause 14.

Note: A dispute about the interpretation or application of the provisions of Chapter II

of the Act (see section 9), about the interpretation or application of the provisions of a

collective agreement concluded in the council that could form the subject matter of proposed

strike or lockout (see section 64 (1)), in any case where the parties to the dispute are

engaged in an essential service (see section 74), about an unfair dismissal (see section 191),

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about severance pay (see section 196), or about an unfair labour practice (see item 2 in

Schedule 7) may be referred to a council in terms of the Act.

(2) For the purposes of sub-clause (1), a party to the council includes the members

of any party to the council.

(3) Any party to a dispute may refer the dispute in writing to the council.

(4) The party who refers the dispute must satisfy the secretary that a copy of the

referral has been served on all the other parties to the dispute.

(5) If satisfied that the referral has been served in compliance with sub-clause (4),

the secretary -

(a) may, if there is a collective agreement binding on the parties to the

dispute that provides for an alternative procedure for resolving

disputes, refer the dispute for resolution in terms of that procedure;

(b) must appoint a member of the panel of conciliators to attempt to

resolve the dispute through conciliation.

(6) Nothing in this clause prevents an officer or an employee of the council

investigating the dispute or attempting to conciliate the dispute before the

appointment of a conciliator in terms of sub-clause (5) (b).

13. Disputes referred to council for arbitration

(1) For the purpose of this clause, a dispute means any dispute between any of the

parties to the council that -

(a) has been referred to a conciliator in terms of clause 12, but

remains unresolved, and -

(i) the Act requires that the dispute be arbitrated and any

party to the dispute has requested that the dispute be

resolved through arbitration; or

Note: The Act requires councils to arbitrate the following types of disputes:

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(1) Unfair dismissal disputes if:

(a) the reason is related to the employee’s conduct or capacity. (This

does not apply to an employee’s participation in an unprotected

strike);

(b) the reason is that the employer made continued employment

intolerable; and

section 191 (5) (a) of the Act).

(2) Disputes about severance pay. (See section 196 of the Act).

(3) Unfair labour practice disputes, but excluding a dispute concerning unfair

discrimination. (See item 2 (1) (a) in Schedule 7 to the Act).

(4) Disputes in essential services as contemplated in section 74 (1) of the Act.

(ii) all the parties to the dispute consent to arbitration; or

(b) it is a dispute about the interpretation or application of the

provisions of this constitution.

(2) Any party to a dispute may request that the dispute be resolved through

arbitration.

(3) The secretary must appoint a member of the panel of arbitrators to arbitrate the

dispute.

(4) The arbitrator may conduct the arbitration in a manner that the arbitrator

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.

(5) The arbitration proceedings must be conducted in accordance with the

provisions of sections 138 and 142 and, if applicable, sections 139, 140 and

141, of the Act, read with the changes required by the context.

14. Procedure for negotiation of collective agreements

(1) Any party to the council may introduce proposals for the conclusion of a

collective agreement in the council.

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(2) The proposals must be submitted to the secretary in writing and must identify

the other parties to the proposed agreement.

(3) Within seven days of submission of the proposals, the secretary must serve

copies of the proposals on the other parties to the council.

(4) Within 21 days of submission of the proposals, the chairperson must call a

special meeting of the executive committee to consider the proposals and

decide on a process for negotiating the proposals, including -

(a) the introduction of counterproposals;

(b) whether the negotiations should be conducted by the council, the

executive committee or any other committee of the council;

facilitate the negotiations; and

(d) the timetable for the negotiations.

(5) If no negotiation process is agreed -

(a) the secretary must appoint a conciliator from the panel or

conciliators to facilitate negotiations and the conclusion of a

collective agreement;

(b) the council must meet at least twice within 30 days of the meeting

of the executive committee to negotiate on the proposals and any

counter-proposals, unless a collective agreement has been

concluded;

and the conclusion of a collective agreement.

(6) If no collective agreement is concluded in the course of a process or procedure

contemplated in this clause, -

(a) the parties to the council may -

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(i) agree to refer the dispute to arbitration; or

(ii) resort to a strike or a lockout that conforms with the

provisions of Chapter IV of the Act; or

(b) Any party to the dispute whose members are engaged in an

essential service may request that the dispute in respect of the

employers and employees engaged in that service be resolved

through arbitration.

(7) In the circumstances contemplated in sub-clause (6)(a)(i) or (b), the secretary

must appoint a member of the panel of arbitrators to arbitrate the dispute.

(8) The provisions of clause 13 (4) and (5) will apply to arbitration proceedings

conducted in terms of this clause.

(9) (a) During the strike or lockout the parties to the dispute must attend

every meeting convened by the conciliator to resolve the dispute.

(b) If any party to the dispute fails to attend, without good cause, a

meeting so convened, the members of that party -

(i) if they participate in a strike, will forfeit the protection they

would have enjoyed in terms of section 67 of the Act;

(ii) if they are engaged in a lockout, will forfeit the protection

they would have enjoyed in terms of section 67 of the

Act.

15. Finances

(1) The council may raise funds by charging a levy on employees and employers

within the registered scope of the council.

(2) The council must open and maintain an account in its name with a bank of its

choice that is registered in the Republic, and -

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(a) deposit all moneys it receives in that account within three days of

receipt; and

(b) pay the expenses of and make all payments on behalf of the

council by cheques drawn on that account.

(3) The council may invest any surplus funds not immediately required for current

expenditure or contingencies, 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);

(d) any other manner approved by the registrar.

(4) All payments from the council’s funds must be -

(a) approved by the council; and

(b) made by cheques drawn on the council’s bank account and signed

by the chairperson or deputy chairperson and countersigned by

the secretary. However, the council, by special resolution, may

authorise any representative in the council, official or employee of

the council to sign or countersign cheques drawn on the council’s

bank account in the event of both the chairperson and the deputy

chairperson or the secretary not being readily available for that

purpose.

(5) (a) Despite sub-clause (4), the council may maintain a petty cash

account, out ofwhich the secretary may make cash payments not

exceeding R………at any one occasion.

(b) Funds required for the petty cash account may be transferred to

that account only by drawing a cheque issued and signed in the

manner required by sub-clause (4).

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funds to petty cash may not exceed R………………… per month

in aggregate.

(d) The council may determine the form of the records to be kept for

the petty cash account.

(6) At the end of each quarter of the financial year, the secretary must prepare a

statement showing the income and expenditure of the council for that quarter,

and another reflecting its assets, liabilities and financial position as at the end of

that period.

(7) The financial year of the council begins on 1 ………….. in each year and ends

on ……………….. of the following year, except the first financial year, which

begins on the day that the council is registered and ends on ………………… .

(8) Not later than …………….after the end of the financial year, the secretary must

prepare a statement of the council’s financial activity in respect of that financial

year, showing -

(a) all moneys received for the council -

(i) in terms of any collective agreement published in terms

of the Act; and

(ii) from any other sources;

(b) expenditure incurred on behalf of the council, under the following

heads -

(i) remuneration and allowances of officials and employees;

(ii) amounts paid to representatives and alternates in

respect of their attendance at meetings, the travelling

and subsistence expenses incurred by them, and the

salary or wage deducted or not received by them due to

their absence from work by reason of their involvement

with the council;

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(iii) remuneration and allowances of members of the panel of

conciliators and arbitrators;

(iv) office accommodation;

(v) printing and stationery requirements; and

(vi) miscellaneous operating expenditure; and

financial year.

(9) (a) The annual financial statements must be signed by the secretary

and countersigned by the chairperson, and submitted to and

auditor for auditing and preparing a report to the council.

(b) Certified copies of the audited statements and the auditor’s report

must be made available for inspection at the office of the council to

members and representatives of the parties, who are entitled to

make copies of those statements and the auditor’s report.

statements and the auditor’s report to the registrar within 30 days

of receipt thereof.

(10) Every year the secretary must prepare, for submission at the annual general

meeting of the council, a budget for the council for the next financial year.

(11) At the annual general meeting the council must appoint an auditor to perform

the audit of the council for the next financial year.

16. Winding-up

(1) At a special meeting called for that purpose, the council, by resolution adopted

by a majority of the total number of representatives in the council, may decide to

be wound up.

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(2) Upon adoption of a resolution to windup, the secretary must take the necessary

steps to ensure that -

(a) application is immediately made to the Labour Court for an order

giving effect to that resolution; and

(b) the council’s books and records of account and an inventory of its

assets, including funds and investments, are delivered to the

liquidator appointed by the Labour Court, and that whatever may

be necessary is done to place the assets, funds and investments

of the council at the disposal and under the control of that

liquidator.

(3) Each party to the council remains liable for any of its unpaid liabilities to the

council as at the adoption of a resolution to windup the council.

(4) If all the liabilities of the council have been discharged, the council must transfer

any remaining assets to -

(a) a bargaining council within the same or a similar sector, that has

been agreed upon at the special meeting referred to in sub-clause

(1);

(b) the Commission, if -

(i) there is no bargaining council within the same or a

similar sector; or

(ii) the parties to the council fail to agree on a bargaining

council that is to receive the remaining assets.

17. Changing constitution

(1) The council may change this constitution at any time -

(a) by a resolution adopted by unanimous vote of all the

representatives in the council on a motion to amend tabled without

prior notice; or

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(b) by a resolution adopted by at least two-thirds of all the

representatives in the council after at least -

(i) one month’s notice of that motion to amend had been

given to the secretary; and

(ii) two weeks’ notice of that motion had been given to all the

other representatives.

(2) Any amendment to this constitution becomes effective after the resolution

effecting that amendment has been certified by the registrar in terms of section

57 (3) of the Act.

18. Necessary first steps

(1) With a view to making the council operative and functional without delay, the

provisions contained in the Annexure to this constitution will apply and must be

read as one with this constitution until the requirements and procedures

contemplated in those provisions have been complied with.

(2) Any act performed in compliance with the provisions contained in the Annexure

will be deemed to have been performed in terms of and in accordance with this

constitution.

19. Definitions

In this constitution, any expression that is defined in the Act has that meaning and

unless the context otherwise indicates -

“chairperson” means the chairperson of the council who, by virtue of that office, is also the chairperson of the executive committee;

“deputy chairperson” means the deputy chairperson of the council who, by virtue of that office, is also the deputy chairperson of the executive committee;

“executive committee” means the executive committee of the council; contemplated in clause 7;

“Minister” means the Minister of Labour;

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“secretary” means the secretary of the council; and

“the Act” means the Labour Relations Act, 1995 (Act No. 66 of 1995).

ANNEXURE

Necessary first steps to be followed by council.

1. At the first meeting of the council, which will be held

………………………………………………………………………………………………..

Note: State the date on which, or specify the period after the occurrence of a

particular event (e.g. registration of the Council), on expiry of which the meeting must be held,

as well as the time and venue of the meeting.

(a) the council, by a show of hands, must select a suitable person to

act as chairperson of that meeting, subject to paragraph (c), as

well as another to keep the minutes of the meeting;

(b) the council must elect the chairperson and the deputy chairperson

and the additional members of the executive committee in the

manner set out in clauses 9 and 7 respectively, read with the

changes required by the context;

the chair at that meeting;

(d) the council must appoint the officials contemplated in clause

6 (3) (c), (d) and (e); and

(e) the council must appoint an auditor to perform the audit of the

council in respect of its first financial year.

2. The secretary, in the manner contemplated in clause 10 (1) (g), must as soon as

possible prepare, for submission at the next ordinary meeting of the council, a budget for the

council for its first financial year.

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[NOTE: According to the above model constitution, the council’s certificate of registration is,

upon receipt, to be attached to its constitution (see clause 2). If not so attached, the

constitution of a council following the model will be incomplete.] [Schedule 9 added by GN R443/97]

Schedule 10

POWERS OF DESIGNATED AGENT OF BARGAINING COUNCIL

(Section 33)

(1) A designated agent may, without warrant or notice at an reasonable time, enter

any workplace or any other place where an employer carries on business or

keeps employment records, that is not a home, in order to monitor or enforce

compliance with a collective agreement concluded in the bargaining council.

(2) A designated agent may only enter a home or any place other than a place

referred to in subitem (1) -

(a) with the consent of the owner or occupier; or

(b) if authorised to do so by the Labour Court in terms of subitem (3);

(3) The Labour Court may issue an authorisation contemplated in subitem (2)(b)

only on written application by a designated agent who states under oath or

affirmation the reasons for the need to enter a place, in order to monitor or

enforce compliance with a collective agreement concluded in the bargaining

council.

(4) If it is practicable to do so, the employer and a trade union representative must

be notified that the designated agent is present at a workplace and of the reason

for the designated agent’s presence.

(5) In order to monitor or enforce compliance with a collective agreement a

designated agent may -

(a) require a person to disclose information, either orally or in writing,

and either alone or in the presence of witnesses, on a matter to

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which a collective agreement relates, and require that disclosure

to be under oath or affirmation;

(b) inspect and question a person about any record or document to

which a collective agreement relates;

remove these to make copies or extracts;

(d) require a person to produce or deliver to a place specified by the

designated agent any record or document referred to in paragraph

(b) for inspection;

(e) inspect, question a person about, and if necessary remove, an

article, substance or machinery present at a place referred to in

subitems (1) and (2);

(f) question a person about any work performed; and

(g) perform any other prescribed function necessary for monitoring or

enforcing compliance with a collective agreement.

(6) A designated agent may be accompanied by an interpreter and any other

person reasonably required to assist in conducting an inspection.

(7) A designated agent must -

(a) produce on request a copy of the authorisation referred to in

subitem (3);

(b) provide a receipt for any record or document removed in terms of

subitem (5)(e); and

time.

(8) Any person who is questioned by a designated agent in terms of subitem (5)

must answer all questions lawfully put to that person truthfully and to the best of

that person’s ability.

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(9) An answer by any person to a question by a designated agent in terms of this

item may not be used against that person in any criminal proceedings, except

proceedings in respect of a charge of perjury or making a false statement.

(10) Every employer and each employee must provide any facility and assistance at

a workplace that is reasonably required by a designated agent to effectively

perform the designated agent’s functions.

(11) The bargaining council may apply to the Labour Court for an appropriate order

against any person who

(a) refuses or fails to answer all questions lawfully put to that person

truthfully and to the best of that person’s ability;

(b) refuses or fails to comply with any requirement of the designated

agent in terms of this item; or

functions in terms of this item.

(12) For the purposes of this Schedule, a collective agreement is deemed to include

any basic condition of employment which constitutes a term of a contract of

employment in terms of section 49(1) of the Basic Conditions of Employment

Act. [Schedule 10 added by GN R1865/96 and substituted by s. 57 of Act 12/2002]

Loi sur les relations de travail n° 66 de 1995 (telle que modifiée par la loi sur la prévention et la lutte contre les activités de corruption 2004), Afrique du Sud

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