Marius Scheepers & Company Attorneys

mariusscheepers@irodo.com

Electronic Communications & Transactions Act Compliance:

Marius Scheepers & Company,
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Pretoria,
South Africa,
0043

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Pretoria

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Marius Scheepers and Company Attorneys and their associates accept no liability for any damages or losses suffered as a result of actions taken based on information contained herein. They are committed to regularly update all information that is subject to change from time to time. Any person may contact them for further information and to arrange for a consultation to deal with a specific issue or send an e-mail to mariusscheepers@irodo.com The information contained herein does not serve as alternative to legal advice that may be provided during a furrow assessment of the case at a proper consultation.


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Labour Relations Act 66 of 1995 after amendment by the Labour Relations Amendment Act 12 of 2002

CHAPTER I

PURPOSE, APPLICATION AND INTERPRETATION (ss 1-3)

…

CHAPTER II

FREEDOM OF ASSOCIATION AND GENERAL PROTECTIONS (ss 4-10)

…

CHAPTER III

COLLECTIVE BARGAINING (ss 11-63)

Legal effect of collective agreement

Section 23 (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.

Disputes about collective agreements

Section 24 (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.

Section 24 (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.

Powers and functions of bargaining council

Section 28 (1) (k)

to provide industrial support services within the sector; and

Section 28 (1) (l)

to extend the services and functions of the bargaining council to workers in the informal sector and home workers.

Registration of bargaining councils

Section 29 (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

(b)       have 30 days from the date of the notice to serve any objection on the registrar and a copy on the applicant.

Section 29 (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.

Extension of collective agreement concluded in bargaining council

Section 32 (5) (a)

the parties to the bargaining council are sufficiently representative within the registered scope of the bargaining council; and

Section 32 (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.

Appointment and powers of designated agents of bargaining councils

Section 33 (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.

Section 33 (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.

Section 33 (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.

Enforcement of collective agreements by bargaining councils

Section 33A -

(1) Despite any 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 raining 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.

            (c) If an arbitrator is appointed in terms of subparagraph (b)-

(i)         the Council remains liable for the payment of the arbitrator's fee; and

(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);

                        (c)        charging a party an arbitration fee;

                        (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 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.

(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).

Bargaining councils in sectors in public service

Section 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-

(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 register an amalgamated bargaining council.

(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.

Section 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.

Ministerial determinations

Section 44 (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.

Section 44 (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.

Representativeness of council

Section 49 (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;

(c)        employed by members of the employers' organisations that are party to the agreement.

Section 49 (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;

(d)   employed by members of the employers' organisations that are party to the council.

Section 49 (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.

Section 49 (5)

            This section does not apply to the public service.

Dispute resolution functions of council

Section 51 (3) - footnote

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 statutory council or lock-out (see section 64 (1)); disputes in essential services (see section 74); disputes about unfair dismissals (see section 191); disputes about severance pay (see section 196); and 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 councils in the public service), Part E (statutory councils) and Part F (general provisions concerning councils) (see section 63); disputes concerning pickets (see section 69 (8) to (10)); disputes about proposals that are the subject of joint decision-making 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).

Section 51 (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.

Section 51 (8)

Unless otherwise agreed to in a collective agreement, sections 142A (settlement agreements) and 143 (final arbitration awards, rescission, condonation, review) to 146 (writ of execution) apply to any arbitration conducted under the auspices of a bargaining council.

Section 51 (9)

A bargaining council may by collective agreement establish procedures to resolve any dispute contemplated in this section.

Accounting records and audits

Section 53 (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).

Duty to keep records and provide information to registrar

Section 54 (2) (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;

(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.

Section 54 (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;

(c)        deliver a notice to the council requiring the council to comply with the 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).

Section 54 (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).

Variation of registered scope of council

Section 58 (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.

Cancellation of registration of council

Section 61 (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).

Section 61 (15)

The provisions of subsections (3) to (7) do not apply to bargaining councils in the public service.

CHAPTER IV

STRIKES AND LOCK-OUTS (ss 64-77)

Strike or lock-out not in compliance with this Act

Section 68 (1) (b) Strikes and Lock-outs that do not comply with Chapter,

                        - the Labour Court has exclusive jurisdiction:

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-

(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.

CHAPTER V

WORKPLACE FORUMS (ss 78-94)

…

CHAPTER VI

TRADE UNIONS AND EMPLOYERS' ORGANISATIONS (ss 95-111)

Requirements for registration of trade unions or employers' organisations

Section 95 (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.

Section 95 (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.

Winding-up of registered trade unions or registered employers' organizations

Section 103 - heading

Winding-up of (registered) trade unions or (registered)employers' organisations.

Section 103 (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.

Section 103 (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.

Section 103 (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.

Section 103 (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.

Cancellation of registration of trade union that is no longer independent

Section 105 - heading

Declaration that trade union is no longer independent

Cancellation of registration of trade unions or employers' organisations

Section 106 (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 105 has declared that a registered trade union is not independent.

Section 106 (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.

Section 106 (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.

CHAPTER VII

DISPUTE RESOLUTION (ss 112-184)

Functions of Commission

Section 115 (2A)

            The Commission may make rules (see Government Gazette no. 23611 of 25-07-2002) 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;

(c)        the process by which arbitration or arbitration proceedings are initiated, 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;

(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.

Section 115 (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.

(c ) A rule so made takes effect from the date of publication unless a later date is stipulated.

Accreditation of councils and private agencies

Section 127 (5) (a) (iv) - deleted

Section 127 (5A)

The governing body must annually publish a list of accredited councils and accredited agencies.

General provisions relating to accreditation

Section 128 (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.

Section 128 (3)

(a) (i) An accredited council may confer on any person appointed by it to resolve a dispute, the powers of a commissioner in terms of section 142(powers of commission), 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) supiena a witness) and (7) (pay witness fee) to (9) (refer contempt matter to court), read with the changes required by the context.

Resolution of disputes under auspices of Commission

Section 133 (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.

Resolution of disputes through conciliation

Section 135 (4) and 138 (4) – deleted

(Not deleted yet- ito section 115(2A)(m) no such rules were promulgated by CCMA yet. See page __ hereunder for the existing position)

(legal representation at conciliation and arbitration)

(See para 26 and 27 hereunder)

General provisions for arbitration proceedings

(Ito rule 39(1) – may also take account to taxation master. But old section 138(10) had not yet been repieled. Seepage __ hereunder)

Special provisions for arbitrations about dismissals for reasons related to conduct or capacity

Section 140 (1) – deleted

(Not deleted yet- ito section 115(2A)(m) no such rules were promulgated by CCMA yet. See page __ hereunder for the existing position)

(legal representation regarding misconduct and capacity dismissals)

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

Section 141 (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.

Section 141 (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.

Powers of commissioner when attempting to resolve disputes

Section 142 (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.

(c) The Commission may on good cause shown waive the requirement in paragraph (b) and pay to the witness the prescribed witness fee.]

Section 142 (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).

Section 142 (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

(c)        may make any order that it deems appropriate, including an order in 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.

Section 142 (11)

The Labour Court may confirm, vary or set aside the finding of a commissioner.

Section 142 (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.

Making settlement agreement arbitration award

Section 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) (maintenance service)or 75 (7) (essential service).

Effect of arbitration awards

Section 143 (1)

An arbitration award issued by a commissioner is final and binding and it may be (made an order of the Labour Court in terms of section 158 (1)) [enforced as if it were an order of the Labour Court,] unless it is an advisory arbitration award.

Section 143 (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).

Section 143 (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.

Variation and rescission of arbitration awards

Section 144 - Variation and rescision 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

(b)               granted as a result of a mistake common to the parties to the proceedings.

Review of arbitration awards

Section 145 (1A)

The Labour Court may on good cause shown condone the late filing of an application in terms of subsection (1) (review).

Commission may offer to resolve dispute through conciliation

Section 150 (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;

Section 150 (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.

Powers of Labour Court

Section 158 (1) (c)

make any arbitration award or any settlement agreement (, other than a collective agreement, ) an order of the Court;

(also see section 158(1A) hereunder)

Section 158 (1) (g)

(despite) [subject to] section 145, review the performance or purported performance of any function provided for in this Act (or any act or omission of any person or body in terms of this Act) on any grounds that are permissible in law;

Section 158 (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) (essential services, maintenance services, organisational rights).

Representation before Labour Court

Section 161 (d)

                                    a designated agent [or official] of a council; or

Jurisdiction of Labour Appeal Court

Section 173 (3) - deleted

Chapter VIII - heading

UNFAIR DISMISSAL AND UNFAIR LABOUR PRACTICE

Right not to be unfairly dismissed

Section 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.]

Section 186 – heading

Meaning of dismissal[and unfair labour practice]

Section 186 (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.]

Unfair Labour Practice

Section 186 (2)

'Unfair labour practice' means any unfair act or omission that arises between an employer and an employee involving-

(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;

(c)        a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and

[(d)      an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.]

186           Automatically unfair dismissals

Section 187 (1) (g)

[a transfer, or a reason related to a transfer, contemplated in section 197 or 197A; or ]

Section 187 (1) (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.]

Other unfair dismissals

Section 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

                        (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;

(c)        any member, office bearer or official of that party's registered trade union or registered employers' organisation; or

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

(6) Section 138(General provisions for arbitration proceedings), 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), ) (supiena a witness) and (7) (pay witness fee) to (9) (refer contempt matter to court, 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.

(8) The provisions of sections 143 to 146 (Effect of arbitration awards, Variation and rescission of arbitration awards, Review of arbitration awards, Exclusion of Arbitration Act) 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.

Dismissals based on operational requirements

Section 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;]

(c)        if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals; [or]

(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

                        (c)        the severance pay for dismissed employees.

(3) The employer must (disclose in righting to)[issue a written notice inviting] 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;

(c)        the number of employees likely to be affected and the job categories in which they are employed;

(d)       the proposed method for selecting which employees to dismiss;

(e)       the time when, or the period during which, the dismissals are likely to take effect;

                        (f)         the severance pay proposed;

(g)       any assistance that the employer proposes to offer to the employees likely to be dismissed;

(h)        the possibility of the future re-employment of the employees who are dismissed;

(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 (on which they are consulting) [dealt 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.

Dismissals based on operational requirements by employers with more than 50 employees

Section 189A - Dismissals based on operational requirements by employers with more than 50 employees

[(1) 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;

(c)        the consulting parties may agree to vary the time periods for 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;

(c)        the circumstances in which the Commission may charge a fee for 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

(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); or

(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); or

(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-

(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);

(c)        section 66 except that written notice of any proposed secondary strike must be given at least 14 days prior to the commencement of the strike;

                        (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;

(c)        directing the employer to reinstate an employee until it has 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 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;

                        (c)        there was a proper consideration of alternatives; and

                        (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 103 of 1994).]

Disputes about unfair dismissals

Section 191 - heading

Disputes about unfair dismissals [and unfair labour practices]

Section 191 (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 (within 30 days of the date of the dismissal) 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.]

Section 191 (2)

If the employee shows good cause at any time, the council or the Commission may permit the employee to refer the dispute after the (30 days) [relevant]  time limit in subsection (1) has expired.

Section 191 (2A)

[Subject to subsections (1) and (2) (30 days, 90 days or condonation granted) , 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.]

Section 191 (5) (a) (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];(automatically unfair dismissal)

Section 191 (5) (a) (iv)

                                                the dispute concerns an unfair labour practice; or

Section 191 (5A)

Despite any 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;

(b)               any other dispute contemplated in subsection (5) (a) in respect of which no party has objected to the matter being dealt with in terms of this subsection.

Section 191 (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;

                        (c)        the complexity of the dispute;

(d)       whether there are conflicting arbitration awards that need to be resolved;

(e)               the public interest.

Section 191 (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.

Section 191 (13)

(No provision was made for conciliation, only 90-day period for referral to the Labour Court necessary)

(a) An employee may refer a dispute concerning an alleged unfair 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).

Remedies for unfair dismissal

Section 193 - heading

Remedies for unfair dismissal [and unfair labour practice]

Section 193 (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.]

Limits on compensation

Section 194 (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.

Section 194 (2) – deleted

Section 194 (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.

Section 197 - Transfer of contract of employment

(see sect 187(1)(g) regarding automatically unfair dismissal)

            (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 had been rights and obligations between the new employer and the employee;

(c)        anything done before the transfer by or in relation to the old 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 24 of 1956), are satisfied.*

(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;

(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.

(c) Section 16 (4) to (14) applies, read with the changes required by 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

(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;

(c)        disclose the terms of the agreement contemplated in paragraph (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.

Section 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 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;

(c)        anything done before the transfer by the old employer in respect of 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).

(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.

Section 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.

(b)

CHAPTER IX

GENERAL PROVISIONS (ss 198-214)

Section 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;

(c)        in the case of a person who works for an organisation, the 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 dependent 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. (R __ ).

(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.

(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.

Codes of good practice

Section 203 (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.

Collective agreement, arbitration award or wage determination to be kept by employer

Section 204 - words preceding para. (a)

Unless a collective agreement, arbitration award or determination made in terms of the (Wage act) [Basic Conditions of Employment Act] provides otherwise, every employer on whom the collective agreement, arbitration award, or determination, is binding must-

Section 213 - definitions

'Basic Conditions of Employment Act' means the Basic Conditions Employment Act, 1997 (Act 75 of 1997).

'employment law' includes this Act, any 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 30 of 1966);

                        (b)       the Skills Development Act, 1998 (Act 97 of 1998);

                        (c)        the Employment Equity Act, 1998 (Act 55 of 1998);

(d)       the Occupational Health and Safety Act, 1993 (Act 85 of 1993); and

(e)       the Compensation for Occupational Injuries and Diseases Act, 1993 (Act 130 of 1993);

'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 103 of 1994), but excluding-

(a)       the members of the South African National Defence Force;

                        (b)       the National Intelligence Agency; and

                        (c)        the South African Secret Service.

            'registered scope' - para. (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);

            'workplace' - para. (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 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;

            'workplace', para. (b) – deleted

Schedule 7

TRANSITIONAL ARRANGEMENTS

Residual unfair labour practices

Disputes about unfair labour practices

Powers of Labour Court and Commission

Schedule 7, items 2, 3 and 4 - deleted

Schedule 7, Part H - Transitional Provisions arising out of the Application of the Labour Relations Amendment Act, 2002

Definitions

            In this part-

(a)       'Act' means the Labour Relations Act, 1995 (Act 66 of 1995); and

(b)       'Amendment Act' means the Labour Relations Amendment Act, 2002.

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(no legal representation at conciliation), 138 (4) (limited legal representation at arbitration) and 140 (1) (qualified legal representation at misconduct and capacity dismissals) 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;

(c)        the right of any party to be represented in proceedings in terms of section 191 of the Act must be determined by-

(i)                 section 138 (4) read with section 140 (1) of the Act for disputes about a dismissal; and

(legal representation at all dismissal arbitrations now qualified until CCMA issues its rules)

(ii)               section 138 (4) of the Act for disputes about an unfair labour practice.

(legal representation at unfair labour practice arbitrations allowed)

1.                                                                  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.

(no legal representation allowed at pre-dismissal arbitrations)

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.

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 same provision    

R200 per employee in respect of whom the failure to comply occurs    

A previous failure to comply within 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 in 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 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           

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.

(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.

(c) Subitem (a) does not apply to an unfair labour practice in relation to probation.

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.

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

(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 8, item 8 (1) - heading

PROBATION

Schedule 8 - item 8 (1)

(a) An employer may require a newly-hired employee to serve a period 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.

(c) Probation should not be used for purposes not contemplated by 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.