Marius Scheepers & Company Attorneys
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Electronic Communications &
Transactions Act Compliance:
Marius Scheepers &
Company,
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Faerie Glen,
Pretoria,
South Africa,
0043
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Sunnyside,
Pretoria
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Marius
Scheepers and Company Attorneys and their associates accept no liability
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information contained herein. They are committed to regularly update all
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contact them for further information and to arrange for a consultation to
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www.ccma.org.za
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LABOUR RELATIONS ACT 66 OF 1995
[ASSENTED TO 29
NOVEMBER 1995]
[DATE OF
COMMENCEMENT: 11 NOVEMBER 1996]
(English text
signed by the President)
as amended by
Labour Relations
Amendment Act 42 of 1996
Basic Conditions of
Employment Act 75 of 1997
Labour Relations
Amendment Act 127 of 1998
Labour Relations
Amendment Act 12 of 2002
Regulations under this Act
CODE OF GOOD
PRACTICE ON DISMISSAL BASED ON OPERATIONAL REQUIREMENTS
CODE OF GOOD PRACTICE ON PICKETING
CODE OF GOOD
PRACTICE ON THE HANDLING OF SEXUAL HARASSMENT CASES
COMMISSION FOR
CONCILIATION, MEDIATION AND ARBITRATION TARIFF OF FEES
ESSENTIAL SERVICES
COMMITTEE REGULATIONS
FACILITATIONS
REGULATIONS
GUIDELINES ISSUED
IN TERMS OF SECTION 95 (8)
LABOUR RELATIONS
REGULATIONS
RULES FOR THE
CONDUCT OF PROCEEDINGS BEFORE THE CCMA
RULES FOR THE
CONDUCT OF PROCEEDINGS IN THE INDUSTRIAL COURT
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 servives [sic] accredited for
that purpose;
to establish
the Labour Court and Labour Appeal Court as superior courts, with
exclusive jurisdiction to decide matters arising from the Act;
to provide
for a simplified procedure for the registration of trade unions and
employers’ organisations, and to provide for their regulation to ensure
democratic practices and proper financial control;
to give
effect to the public international law obligations of the Republic
relating to labour relations;
to amend and
repeal certain laws relating to labour relations; and
to provide
for incidental matters.
ARRANGEMENT OF SECTIONS
[Contents of Act
amended by s. 29 of Act 127 of 1998.]
Section
CHAPTER I
PURPOSE, APPLICATION AND INTERPRETATION
1 Purpose
of this Act
2 Exclusion
from application of this Act
3 Interpretation
of this Act
CHAPTER II
FREEDOM OF ASSOCIATION AND GENERAL PROTECTIONS
4 Employees’
right to freedom of association
5 Protection
of employees and persons seeking employment
6 Employers’
right to freedom of association
7 Protection
of employers’ rights
8 Rights of trade unions and employers’
organisations
9 Procedure
for disputes
10 Burden
of proof
CHAPTER III
COLLECTIVE
BARGAINING
PART A
ORGANISATIONAL
RIGHTS
11 Trade union representativeness
12 Trade union access to workplace
13 Deduction
of trade union subscriptions or levies
14 Trade union representatives
15 Leave for trade union activities
16 Disclosure
of information
17 Restricted
rights in domestic sector
18 Right to establish thresholds of representativeness
19 Certain
organisational rights for trade union party to council
20 Organisational
rights in collective agreements
21 Exercise
of rights conferred by this Part
22 Disputes
about organisational rights
PART B - COLLECTIVE AGREEMENTS
23 Legal effect of collective agreement
24 Disputes
about collective agreements
25 Agency
shop agreements
26 Closed
shop agreements
PART C - BARGAINING COUNCILS
27 Establishment
of bargaining councils
28 Powers
and functions of bargaining council
29 Registration
of bargaining councils
30 Constitution
of bargaining council
31 Binding
nature of collective agreement concluded in bargaining council
32 Extension
of collective agreement concluded in bargaining council
33 Appointment
and powers of designated agents of bargaining councils
33A Enforcement of
collective agreements by bargaining councils
[S.
33A inserted by s. 7 of Act 12 of 2002.]
34 Amalgamation
of bargaining councils
PART D - BARGAINING COUNCILS IN THE PUBLIC SERVICE
35 Bargaining
councils in public service
36 Public Service Co-ordinating Bargaining Council
37 Bargaining
councils in sectors in public service
38 Disputes
between bargaining councils in public service
[S. 38 substituted
by s. 9 of Act 12 of 2002.]
PART E - STATUTORY COUNCILS
39 Application
to establish statutory council
40 Establishment
and registration of statutory council
41 Establishment
and registration of statutory council in absence of agreement
42 Certificate
of registration of statutory council
43 Powers
and functions of statutory councils
44 Ministerial
determinations
45 Disputes
about determinations
46 Withdrawal
of party from statutory council
47 Appointment
of new representative of statutory council
48 Change
of status of statutory council
PART F - GENERAL PROVISIONS CONCERNING COUNCILS
49 Representativeness
of council
50 Effect of registration of council
51 Dispute
resolution functions of council
52 Accreditation
of council or appointment of accredited agency
53 Accounting
records and audits
54 Duty to keep records and provide information to registrar
55 Delegation
of functions to committee of council
56 Admission
of parties to council
57 Changing
constitution or name of council
58 Variation
of registered scope of council
59 Winding-up
of council
60 Winding-up
of council by reason of insolvency
61 Cancellation
of registration of council
62 Disputes
about demarcation between sectors and areas
63 Disputes
about Parts A and C to F
CHAPTER IV
STRIKES AND LOCK-OUTS
64 Right to strike and recourse to lock-out
65 Limitations
on right to strike or recourse to lock-out
66 Secondary
strikes
67 Strike or lock-out in compliance with this Act
68 Strike or lock-out not in compliance with this Act
69 Picketing
70 Essential
services committee
71 Designating
a service as an essential service
72 Minimum
services
73 Disputes
about whether a service is an essential service
74 Disputes
in essential services
75 Maintenance
services
76 Replacement
labour
77 Protest
action to promote or defend 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 -
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
[Heading
substituted by s. 19 (a) of Act 12 of 2002.]
104 Winding-up of
trade unions or employers organisations by reason of insolvency
105 Declaration that
trade union is no longer independent
[Heading
substituted by s. 20 of Act 12 of 2002.]
106 Cancellation of
registration of trade unions or employers’ organisations
PART B - REGULATION
OF FEDERATIONS OF TRADE UNIONS AND EMPLOYERS’ ORGANISATIONS
107 Regulation of
federations of trade unions or employers’ organisations
PART C - REGISTRAR OF LABOUR RELATIONS
108 Appointment
of registrar of labour relations
109 Functions
of registrar
110 Access
to information
PART D - APPEALS FROM REGISTRAR’S DECISION
111 Appeals
from registrar’s decision
CHAPTER VII
DISPUTE RESOLUTION
PART A - COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
112
Establishment of Commission for Conciliation, Mediation and
Arbitration
113 Independence
of Commission
114 Area
of jurisdiction and offices of Commission
115 Functions
of Commission
116 Governing
body of Commission
117 Commissioners
of Commission
118 Director
of Commission
119 Acting
director of Commission
120 Staff
of Commission
121 Establishment
of committees of Commission
122 Finances
of Commission
123 Circumstances
in which Commission may charge fees
124
Contracting by Commission, and Commission working in association
with any person
125 Delegation
of governing body’s powers, functions and duties
126 Limitation
of liability and limitation on disclosure of information
PART B -
ACCREDITATION OF AND SUBSIDY TO COUNCILS AND PRIVATE AGENCIES
127 Accreditation
of councils and private agencies
128 General
provisions relating to accreditation
129 Amendment
of accreditation
130 Withdrawal
of accreditation
131 Application
to renew accreditation
132 Subsidy
to council or private agency
PART C - RESOLUTION OF DISPUTES UNDER AUSPICES OF COMMISSION
133 Resolution
of disputes under auspices of Commission
134 Disputes
about matters of mutual interest
135 Resolution
of disputes through conciliation
136 Appointment
of commissioner to resolve dispute through arbitration
137
Appointment of senior commissioner to resolve dispute through
arbitration
138 General
provisions for arbitration proceedings
139 Special
provisions for arbitrating disputes in essential services
140
Special provisions for arbitrations about dismissals for reasons
relating to conduct or capacity
141
Resolution of disputes if parties consent to arbitration under
auspices of Commission
142 Powers
of commissioner when attempting to resolve disputes 142A
Making settlement agreement arbitration award
[S. 142A inserted
by s. 31 of Act 12 of 2002.]
143 Effect
of arbitration awards
144 Variation
and rescission of arbitration awards and rulings
[S. 144 substituted
by s. 33 of Act 12 of 2002.]
145 Review
of arbitration awards
146 Exclusion
of Arbitration Act
147
Performance of dispute resolution functions by Commission in
exceptional circumstances
148 Commission
may provide advice
149 Commission
may provide assistance
150 Commission
may offer to resolve
PART D - LABOUR COURT
151 Establishment
and status of Labour Court
152 Composition
of Labour Court
153 Appointment
of judges of Labour Court
154
Tenure, remuneration and terms and conditions of appointment of
Labour Court judges
155 Officers
of Labour Court
156 Area
of jurisdiction and seat of Labour Court
157 Jurisdiction
of Labour Court
158 Powers
of Labour Court
159 Rules
Board for Labour Courts and rules for Labour Court
160 Proceedings
of Labour Court to be carried on in open court
161 Representation
before Labour Court
162 Costs
163 Service
and enforcement of orders of Labour Court
164 Seal
of Labour Court
165 Variation
and rescission of orders of Labour Court
166 Appeals
against judgment or order of Labour Court
PART E - LABOUR APPEAL COURT
167 Establishment
and status of Labour Appeal Court
168 Composition
of Labour Appeal Court
169 Appointment
of 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 Labour Appeal Court
174 Powers
of Labour Appeal Court on hearing of appeals
175 Labour
Appeal Court may sit as court of first instance
176 Rules
for Labour Appeal Court
177 Proceedings
of Labour Appeal Court to be carried on in open court
178 Representation
before Labour Appeal Court
179 Costs
180 Service
and enforcement of orders
181 Seal
of Labour Appeal Court
182 Judgments
of Labour Appeal Court binding on Labour Court
183 Labour
Appeal Court final court of appeal
PART F - GENERAL
PROVISIONS APPLICABLE TO COURTS ESTABLISHED BY THIS ACT
184 General
provisions applicable to courts established by this Act
CHAPTER VIII
UNFAIR DISMISSAL
AND UNFAIR LABOUR PRACTICE
[Heading
substituted by s. 39 of Act 12 of 2002.]
185
Right not to be unfairly dismissed or subjected to unfair labour
practice
[S. 185 substituted
by s. 40 of Act 12 of 2002.]
186 Meaning
of dismissal and unfair labour practice
[Heading
substituted by s. 41 (a) of Act 12 of 2002.]
187 Automatically
unfair dismissals
188 Other
unfair dismissals
188A
Agreement for pre-dismissal arbitration
[S. 188A inserted
by s. 43 of Act 12 of 2002.]
189 Dismissals
based on operational requirements
189A
Dismissals based on operational requirements by employers with more
than 50 employees
[S. 189A inserted
by s. 45 of Act 12 of 2002.]
190 Date
of dismissal
191 Disputes
about unfair dismissals and unfair labour practices
[Heading
substituted by s. 46 (a) of Act 12 of 2002.]
192 Onus
in dismissal disputes
193 Remedies
for unfair dismissal and unfair labour practice
[Heading
substituted by s. 47 (a) of Act 12 of 2002.]
194 Limits
on compensation
195 Compensation
is in addition to any other amount
196 Severance
pay
197 Transfer
of contract of employment
197A
Transfer of contract of employment in circumstances of insolvency
[S. 197A inserted
by s. 50 of Act 12 of 2002.]
197B
Disclosure of information concerning insolvency
[S. 197B inserted
by s. 50 of Act 12 of 2002.]
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
[S. 200A inserted
by s. 51 of Act 12 of 2002.]
201 Confidentiality
202 Service
of documents
203 Codes
of good practice
204
Collective agreement, arbitration award or wage determination to be
kept by employer
205 Records
to be kept by employer
206 Effect
of certain defects and irregularities
207 Ministers
empowered to add and change to Schedules
208 Regulations
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 councils in sectors
Schedule 2
GUIDELINES FOR
CONSTITUTION OF WORKPLACE FORUM
1 Introduction
2 Number
of seats in workplace forums (section 82 (1) (a))
3 Distribution
of seats to reflect occupational structure (section 82 (1) (b))
4 Elections
(section 82 (1) (2), (d), (g), (h), (i) and (j))
5 Terms of office (section 82 (1) (k), (l) and (m))
6 Meetings
of workplace forum (section 82 (1) (n))
7 Time off for members of workplace forum (section 82
(1) (p))
8 Facilities
to be provided to workplace forum (section 82 (1) ®)
9 Experts
(section 82 (1) (t))
10 Establishment
of co-ordinating 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
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 to 4
inclusive ......
[Items 2 to 4
inclusive deleted by s. 55 (a) of Act 12 of 2002.]
PART C - PROVISIONS
CONCERNING EXISTING TRADE UNIONS, EMPLOYERS’ ORGANISATIONS, INDUSTRIAL
COUNCILS AND CONCILIATION BOARDS
5 Existing
registered trade unions and employers’ organisations
6 Pending
applications by trade unions or employers’ organisations for
registration, variation of scope, alteration of constitution or name
7 Industrial
councils
8 Pending
applications by industrial councils for registration and variatio 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
Forums in South African Police Service
19 Collective
agreements 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
PART F - PENSION MATTERS
23 Continuation
of existing pension rights of staff members of Commission upon assuming
employment
PART G - ESSENTIAL SERVICES
24 Essential
services in the public service
25 Essentail
services provided for in Labour Relations Act
PART H -
TRANSITIONAL PROVISIONS ARISING OUT OF THE APPLICATION OF THE LABOUR
RELATIONS AMENDMENT ACT, 2002
[Part H added by s.
55 (b) of Act 12 of 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 Probation
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
OF A STATUTORY COUNCIL
Schedule 10
POWERS OF
DESIGNATED AGENT OF BARGAINING COUNCIL
(Section 33)
[Schedule 10
substituted by s. 57 of Act 12 of 2002.]
CHAPTER I
PURPOSE,
APPLICATION AND INTERPRETATION (ss 1-3)
1 Purpose of this Act
The purpose of
this Act is to advance economic development, social justice, labour peace
and the democratisation of the workplace by fulfilling the primary objects
of this Act, which are-
(a) to give effect to and regulate the fundamental rights conferred by
section 27 of the Constitution;
(b) to give effect to obligations incurred by the Republic as a member
state of the International Labour Organisation;
(c) to provide a framework within which employees and their trade
unions, employers and employers’ organisations can-
(i) collectively bargain to determine
wages, terms and conditions of employment and other matters of mutual
interest; and
(ii) formulate industrial policy; and
(d) to promote-
(i) orderly collective bargaining;
(ii) collective bargaining at sectoral
level;
(iii) employee participation in
decision-making in the workplace; and
(iv)
the effective resolution of labour disputes.
2
Exclusion from application of this Act
This Act does
not apply to members of-
(a) the National Defence Force;
(b) the National Intelligence Agency; and
(c) the South African Secret Service.
3 Interpretation of this Act
Any person
applying this Act must interpret its provisions-
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international law obligations of
the Republic.
CHAPTER II
FREEDOM OF
ASSOCIATION AND GENERAL PROTECTIONS (ss 4-10)
4 Employees’ right to freedom of
association
(1) Every employee has the right-
(a) to participate in forming a trade union or federation of trade
unions; and
(b) to join a trade union, subject to its constitution.
(2) Every member of a trade union has the right, subject to the
constitution of that trade union-
(a) to participate in its lawful activities;
(b) to participate in the election of any of its office-bearers,
officials or trade union representatives;
(c) to stand for election and be eligible for appointment as an
office bearer or official and, if elected or appointed, to hold office;
and
(d) to stand for election and be eligible for appointment as a trade
union representative and, if elected or appointed, to carry out the
functions of a trade union representative in terms of this Act or any
collective agreement.
(3) Every member of a trade union that is a member of a federation of
trade unions has the right, subject to the constitution of that
federation-
(a) to participate in its lawful activities;
(b) to participate in the election of any of its office-bearers or
officials; and
(c) to stand for election and be eligible for appointment as an
office-bearer or official and, if elected or appointed, to hold office.
5 Protection of employees and persons seeking
employment
(1) No person may discriminate against an employee for exercising any
right conferred by this Act.
(2) Without
limiting the general protection conferred by subsection (1), no person may
do, or threaten to do, any of the following-
(a) require an employee or a person seeking
employment-
(i) not to be a member of a trade union or workplace forum;
(ii) not to become a member of a trade union or workplace forum; or
(iii) to give up membership of a trade union or workplace forum;
(b) prevent an employee or a person seeking
employment from exercising any right conferred by this Act or from
participating in any proceedings in terms of this Act; or
(c) prejudice an employee or a person
seeking employment because of past, present or anticipated-
(i) membership of a trade union or workplace forum;
(ii) participation in forming a trade union or federation of trade
unions or establishing a workplace forum;
(iii) participation in the lawful activities of a trade union, federation
of trade unions or workplace forum;
(iv) failure or refusal to do something that an employer may not lawfully
permit or require an employee to do;
(v) disclosure of information that the employee is lawfully
entitled or required to give to another person;
(vi) exercise of any right conferred by this Act; or
(vii) participation in
any proceedings in terms of this Act.
(3) No person may advantage, or promise to advantage, an employee or a
person seeking employment in exchange for that person not exercising any
right conferred by this Act or not participating in any proceedings in
terms of this Act. However, nothing in this section precludes the parties
to a dispute from concluding an agreement to settle that dispute.
(4) A provision in any contract, whether entered into before or after the
commencement of this Act, that directly or indirectly contradicts or
limits any provision of section 4, or this section, is invalid, unless the
contractual provision is permitted by this Act.
6 Employers’ right to freedom of
association
(1) Every employer has the right-
(a) to participate in forming an employers’ organisation or a
federation of employers’ organisations; and
(b) to 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
(c) if-
(i) a natural person, to stand for election and be eligible
for appointment as an office-bearer or official and, if elected or
appointed, to hold office;
(ii) a juristic person, to have a representative stand for election,
and be eligible for appointment, as an office-bearer or official and, if
elected or appointed, to hold office.
(3) Every member of an employers’ organisation that is a member of a
federation of employers’ organisations has the right, subject to the
constitution of that federation-
(a) to participate in its lawful activities;
(b) to participate in the election of any of its office-bearers or
officials; and
(c) if-
(i) a natural person, to stand for election and be eligible
for appointment as an office-bearer or official and, if elected or
appointed, to hold office; or
(ii) a juristic person, to have a representative stand for election,
and be eligible for appointment, as an office-bearer or official and, if
elected or appointed, to hold office.
7 Protection of employers’ rights
(1) No person may discriminate against an employer for exercising any
right conferred by this Act.
(2) Without
limiting the general protection conferred by subsection (1), no person may
do, or threaten to do, any of the following-
(a) require an employer-
(i) not to be a member of an employers’ organisation;
(ii) not to become a member of an employers’ organisation; or
(iii) to give up membership of an employers’ organisation;
(b) prevent an employer from exercising any
right conferred by this Act or from participating in any proceedings in
terms of this Act; or
(c) prejudice an employer because of past,
present or anticipated-
(i) membership of an employers’ organisation;
(ii) participation in forming an employers’ organisation or a
federation of employers’ organisations;
(iii) participation in the lawful activities of an employers’
organisation or a federation of employers’ organisations;
(iv) disclosure of information that the employer is lawfully entitled or
required to give to another person;
(v) exercise of any right conferred by this Act; or
(vi) participation in any proceedings in terms of this Act.
(3) No person may advantage, or promise to advantage, an employer in
exchange for that employer not exercising any right conferred by this Act
or not participating in any proceedings in terms of this Act. However,
nothing in this section precludes the parties to a dispute from concluding
an agreement to settle that dispute.
(4) A provision in any contract, whether entered into before or after the
commencement of this Act, that directly or indirectly contradicts or
limits any provision of section 6, or this section, is invalid, unless the
contractual provision is permitted by this Act.
8 Rights of trade unions and employers’
organisations
Every trade
union and every employers’ organisation has the right-
(a) subject
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;
(c) to participate in forming a federation of trade unions or a
federation of 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
(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
(1) If there is a dispute about the interpretation or application of any
provision of this Chapter, any party to the dispute may refer the dispute
in writing to-
(a) a council, if the parties to the dispute fall within the registered
scope of that council; or
(b) the Commission, if no council has jurisdiction.
(2) The party who refers the dispute must satisfy the council or the
Commission that a copy of the referral has been served on all the other
parties to the dispute.
(3) The council or the Commission must attempt to resolve the dispute
through conciliation.
(4) If the dispute remains unresolved, any party to the dispute may refer
it to the Labour Court for adjudication.
10 Burden of proof
In any
proceedings-
(a) a party who alleges that a right or protection conferred by this
Chapter has been infringed must prove the facts of the conduct; and
(b) the party who engaged in that conduct must then prove that the
conduct did not infringe any provision of this Chapter.
CHAPTER III
COLLECTIVE
BARGAINING (ss 11-63)
Part A
Organisational rights (ss
11-22)
11 Trade union representativeness
In this Part,
unless otherwise stated, ‘representative trade union’ means a
registered trade union, or two or more registered trade unions acting
jointly, that are sufficiently representative of the employees employed by
an employer in a workplace.
12 Trade union access to workplace
(1) Any office-bearer or official of a
representative trade union is entitled to enter the employer’s premises
in order to recruit members or communicate with members, or otherwise
serve members interests.
(2) A representative trade union is entitled to hold meetings with
employees outside their working hours at the employer’s premises.
(3) The members of a representative trade
union are entitled to vote at the employer’s premises in any election or
ballot contemplated in that trade union’s constitution.
(4) The rights conferred by this section
are subject to any conditions as to time and place that are reasonable and
necessary to safeguard life or property or to prevent the undue disruption
of work.
13 Deduction
of trade union subscriptions or levies
(1) Any employee who is a member of a
representative trade union may authorise the employer in writing to deduct
subscriptions or levies payable to that trade union from the employee’s
wages.
(2) An employer who receives an authorisation in terms of subsection (1)
must begin making the authorised deduction as soon as possible and must
remit the amount deducted to the representative trade union by not later
than the 15th day of the month first following the date each
deduction was made.
(3) An employee may revoke an authorisation given in terms of subsection
(1) by giving the employer and the representative trade union one
month’s written notice or, if the employee works in the public service,
three months’ written notice.
(4) An employer who receives a notice in terms of subsection (3) must
continue to make the authorised deduction until the notice period has
expired and then must stop making the deduction.
(5) With each monthly remittance, the
employer must give the representative trade union-
(a) a list of the names of every member from whose wages the employer has
made the deductions that are included in the remittance;
(b) details of the amounts deducted and remitted and the period to which
the deductions relate; and
(c) a copy of every notice of revocation in terms of subsection
(3).
14 Trade union representatives
(1) In this section, ‘representative trade union’ means a registered
trade union, or two or more registered trade unions acting jointly, that
have as members the majority of the employees employed by an employer in a
workplace.
(2) In any workplace in which at least 10 members of a representative
trade union are employed, those members are entitled to elect from among
themselves-
(a) if there are 10 members of the trade union employed in the workplace,
one trade union representative;
(b) if there are more than 10 members of the trade union employed in the
workplace, two trade union representatives;
(c) if there are more than 50 members of the trade union employed
in the workplace, two trade union representatives for the first 50
members, plus a further one trade union representative for every
additional 50 members up to a maximum of seven trade union
representatives;
(d) if there are more than 300 members of the trade union employed in the
workplace, seven trade union representatives for the first 300 members,
plus one additional trade union representative for every 100 additional
members up to a maximum of 10 trade union representatives;
(e) if there are more than 600 members of the trade union employed in the
workplace, 10 trade union representatives for the first 600 members, plus
one additional trade union representative for every 200 additional members
up to a maximum of 12 trade union representatives; and
(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, term of office and removal
from office of a trade union representative.
(4) A trade union representative has the right to perform the following
functions-
(a) at the request of an employee in the workplace, to assist and
represent the employee in grievance and disciplinary proceedings;
(b) to monitor the employer’s compliance with the workplace-related
provisions of this Act, any law regulating terms and conditions of
employment and any collective agreement binding on the employer;
(c) to report any alleged contravention of the workplace-related
provisions of this Act, any law regulating terms and conditions of
employment and any collective agreement binding on the employer to-
(i) the employer;
(ii) the representative trade union; and
(iii) any responsible authority or agency;
and
(d) to perform any other function agreed to between the representative
trade union and the employer.
(5) Subject to reasonable conditions, a
trade union representative is entitled to take reasonable time off with
pay during working hours-
(a) to perform the functions of a trade union representative; and
(b) to be trained in any subject relevant to the performance of the
functions of a trade union representative.
15 Leave for trade union activities
(1) An employee who is an office-bearer of a representative trade union,
or of a federation of trade unions to which the representative trade union
is affiliated, is entitled to take reasonable leave during working hours
for the purpose of performing the functions of that office.
(2) The representative trade union and the
employer may agree to the number of days of leave, the number of days of
paid leave and the conditions attached to any leave.
(3) An arbitration award in terms of section 21 (7) regulating any of the
matters referred to in subsection (2) remains in force for 12 months from
the date of the award.
16 Disclosure
of information
(1) For the purposes of this section, ‘representative trade union’
means a registered trade union, or two or more registered trade unions
acting jointly, that have as members the majority of the employees
employed by an employer in a workplace.
(2) Subject to subsection (5), an employer
must disclose to a trade union representative all relevant information
that will allow the trade union representative to perform effectively the
functions referred to in section 14 (4).
(3) Subject to subsection (5), whenever an
employer is consulting or bargaining with a representative trade union,
the employer must disclose to the representative trade union all relevant
information that will allow the representative trade union to engage
effectively in consultation or collective bargaining.
(4) The employer must notify the trade
union representative or the representative trade union in writing if any
information disclosed in terms of subsection (2) or (3) is confidential.
(5) An employer is not required to disclose information-
(a) that is legally privileged;
(b) that the employer cannot disclose without contravening a prohibition
imposed on the employer by any law or order of any court;
(c) that is confidential and, if disclosed, may cause substantial
harm to an employee or the employer; or
(d) that is private personal information relating to an employee, unless
that employee consents to the disclosure of that information.
(6) If there is a dispute about what information is required to be
disclosed in terms of this section, any party to the dispute may refer the
dispute in writing to the Commission.
(7) The party who refers the dispute to the
Commission must satisfy it that a copy of the referral has been served on
all the other parties to the dispute.
(8) The Commission must attempt to resolve
the dispute through conciliation.
(9) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration.
(10) In any dispute about the disclosure of
information contemplated in subsection (6), the commissioner must first
decide whether or not the information is relevant.
(11) If the commissioner decides that the
information is relevant and if it is information contemplated in
subsection (5) (2) or (d), the commissioner must balance the harm that the
disclosure is likely to cause to an employee or employer against the harm
that the failure to disclose the information is likely to cause to the
ability of a trade union representative to perform effectively the
functions referred to in section 14 (4) or the ability of a representative
trade union to engage effectively in consultation or collective
bargaining.
(12) If the commissioner decides that the
balance of harm favours the disclosure of the information, the
commissioner may order the disclosure of the information on terms designed
to limit the harm likely to be caused to the employee or employer.
(13) When making an order in terms of
subsection (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 domestic sector
(1) For the purposes of this section, ‘domestic sector’ means the
employment of employees engaged in domestic work in their employers’
homes or on the property on which the home is situated.
(2) The rights conferred on representative
trade unions by this Part in so far as they apply to the domestic sector
are subject to the following limitations-
(a) the right of access to the premises of the employer conferred by
section 12 on an office-bearer or official of a representative trade union
does not include the right to enter the home of the employer, unless the
employer agrees; and
(b) the right to the disclosure of information conferred by section 16
does not apply in the domestic sector.
18 Right to establish thresholds of representativeness
(1) An employer and a registered trade union whose members are a majority
of the employees employed by that employer in a workplace, or the parties
to a bargaining council, may conclude a collective agreement establishing
a threshold of representativeness required in respect of one or more of
the organisational rights referred to in sections 12, 13 and 15.
(2) A collective agreement concluded in terms of subsection (1) is not
binding unless the thresholds of representativeness in the collective
agreement are applied equally to any registered trade union seeking any of
the organisational rights referred to in that subsection.
19 Certain
organisational rights for trade union party to council
Registered
trade unions that are parties to a council automatically have the rights
contemplated in sections 12 and 13 in respect of all workplaces within the
registered scope of the council regardless of their representativeness in
any particular workplace.
20 Organisational
rights in collective agreements
Nothing in
this Part precludes the conclusion of a collective agreement that
regulates organisational rights.
21 Exercise
of rights conferred by this Part
(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
(c) the rights that the trade union seeks to exercise and the
manner in which it seeks to exercise those rights.
(3) Within 30 days of receiving the notice,
the employer must meet the registered trade union and endeavour to
conclude a collective agreement as to the manner in which the trade union
will exercise the rights in respect of that workplace.
(4) If a collective agreement is not concluded, either the registered
trade union or the employer may refer the dispute in writing to the
Commission.
(5) The party who refers the dispute to the
Commission must satisfy it that a copy of the referral has been served on
the other party to the dispute.
(6) The Commission must appoint a
commissioner to attempt to resolve the dispute through conciliation.
(7) If the dispute remains unresolved, either party to the dispute may
request that the dispute be resolved through arbitration.
(8) If the unresolved dispute is about whether or not the registered
trade union is a representative trade union, the commissioner-
(a) must seek-
(i) to minimise the proliferation of trade
union representation in a single workplace and, where possible, to
encourage a system of a representative trade union in a workplace; and
(ii) to minimise the financial and
administrative burden of requiring an employer to grant organisational
rights to more than one registered trade union;
(b) must consider-
(i) the nature of the workplace;
(ii) the nature of the one or more
organisational rights that the registered trade union seeks to exercise;
(iii) the nature of the sector in which the
workplace is situated; and
(iv) the organisational history at the
workplace or any other workplace of the employer; and
(c) may withdraw any of the organisational rights conferred by this
Part and which are exercised by any other registered trade union in
respect of that workplace, if that other trade union has ceased to be a
representative trade union.
(9) In order to determine the membership or support of the registered
trade union, the commissioner may-
(a) make any necessary inquiries;
(b) where appropriate, conduct a ballot of the relevant employees; and
(c) take into account any other relevant information.
(10) The employer must co-operate with the
commissioner when the commissioner acts in terms of subsection (9), and
must make available to the commissioner any information and facilities
that are reasonably necessary for the purposes of that subsection.
(11) An employer who alleges that a trade
union is no longer a representative trade union may apply to the
Commission to withdraw any of the organisational rights conferred by this
Part, in which case the provisions of subsections (5) to (10) apply, read
with the changes required by the context.
22 Disputes
about organisational rights
(1) Any party to a dispute about the
interpretation or application of any provision of this Part, other than a
dispute contemplated in section 21, may refer the dispute in writing to
the Commission.
(2) The party who refers a dispute to the
Commission must satisfy it that a copy of the referral has been served on
all the other parties to the dispute.
(3) The Commission must attempt to resolve
the dispute through conciliation.
(4) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration as soon as
possible.
Part B
Collective agreements (ss
23-26)
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;
(c) the members of a registered trade union and the employers who
are members of a registered employers’ organisation that are party to
the collective agreement if the collective agreement regulates-
(i) terms and conditions of employment; or
(ii) the conduct of the employers in
relation to their employees or the conduct of the employees in relation to
their employers;
(d) employees who are not members of the registered trade union or trade
unions party to the agreement if-
(i) the employees are identified in the
agreement;
(ii) the agreement expressly binds the
employees; and
(iii) that trade union or those trade unions
have as their members the majority of employees employed by the employer
in the workplace.
(2) A collective agreement binds for the whole period of the collective
agreement every person bound in terms of subsection (1) (2) who was a
member at the time it became binding, or who becomes a member after it
became binding, whether or not that person continues to be a member of the
registered trade union or registered employers’ organisation for the
duration of the collective agreement.
(3) Where applicable, a collective
agreement varies any contract of employment between an employee and
employer who are both bound by the collective agreement.
(4) Unless the collective agreement
provides otherwise, any party to a collective agreement that is concluded
for an indefinite period may terminate the agreement by giving reasonable
notice in writing to the other parties.
[Sub-s. (4)
substituted by s. 1 of Act 12 of 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) (2), 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 (a) of Act 12 of 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);
(b) the procedure provided for in the collective agreement is not
operative; or
(c) any party to the collective agreement has frustrated the
resolution of the dispute in terms of the collective agreement.
(3) The party who refers the dispute to the Commission must satisfy it
that a copy of the referral has been served on all the other parties to
the dispute.
(4) The Commission must attempt to resolve the dispute through
conciliation.
(5) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration.*
(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.#
(7) Any person bound by an arbitration award about the interpretation or
application of section 25 (3) (2) 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) (2), 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 (b) of Act 12 of 2002.]
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 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 (a) of Act 42 of 1996.]
(2) For the purposes of this section, ‘representative trade union’
means a registered trade union, or two or more registered trade unions
acting jointly, whose members are a majority of the employees employed-
(a) by an employer in a workplace; or
(b) by the members of an employers’ organisation in a sector and area
in respect of which the agency shop agreement applies.
(3) An agency shop agreement is binding only if it provides that-
(a) employees who are not members of the
representative trade union are not compelled to become members of that
trade union;
(b) the agreed agency fee must be equivalent to, or less than-
(i) the amount of the subscription payable by the members of
the representative trade union;
(ii) if the subscription of the representative trade union is
calculated as a percentage of an employee’s salary, that percentage; or
(iii) if there are two or more registered trade unions party to the
agreement, the highest amount of the subscription that would apply to an
employee;
(c) the amount deducted must be paid into a separate account
administered by the representative trade union; and
(d) no agency fee 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. 1 (b) of Act 42 of 1996.]
(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) (2), 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.
26 Closed shop agreements
(1) A representative trade union and an employer or employers’
organisation may conclude a collective agreement, to be known as a closed
shop agreement, requiring all employees covered by the agreement to be
members of the trade union.
(2) For the purposes of this section, ‘representative trade union’
means a registered trade union, or two or more registered trade unions
acting jointly, whose members are a majority of the employees employed-
(a) by an employer in a workplace; or
(b) by the members of an employers’ organisation in a sector and area
in respect of which the closed shop agreement applies.
(3) A closed shop agreement is binding only if-
(a) a ballot has been held of the employees to be covered by the
agreement;
(b) two thirds of the employees who voted have voted in favour of the
agreement;
(c) there is no provision in the agreement
requiring membership of the representative trade union before employment
commences; and
(d) it provides that no 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 of 1996.]
(4) Despite
subsection (3) (b), a closed shop agreement contemplated in subsection (2)
(b) may be concluded between a registered trade union and a registered
employers’ organisation in respect of a sector and area to become
binding in every workplace in which-
(a) a ballot has been held of the employees to be covered by the
agreement; and
(b) two thirds of the employees who voted have voted in favour of the
agreement.
(5) No trade union that is party to a closed shop agreement may refuse an
employee membership or expel an employee from the trade union unless-
(a) the refusal or expulsion is in accordance with the trade union’s
constitution; and
(b) the reason for the refusal or expulsion is fair, including, but not
limited to, conduct that undermines the trade union’s collective
exercise of its rights.
(6) It is not unfair to dismiss an employee-
(a) for refusing to join a trade union party to a closed shop agreement;
(b) who is refused membership of a trade
union party to a closed shop agreement if the refusal is in accordance
with the provisions of subsection (5); or
(c) who is expelled from a trade union
party to a closed shop agreement if the expulsion is in accordance with
the provisions of subsection (5).
(7) Despite
subsection (6)-
(a) the employees at the time a closed shop agreement takes effect may
not be dismissed for refusing to join a trade union party to the
agreement; and
(b) employees may not be dismissed for
refusing to join a trade union party to the agreement on grounds of
conscientious objection.
(8) The employees referred to in subsection (7) may be required by the
closed shop agreement to pay an agreed agency fee, in which case the
provisions of section 25 (3) (b), (c) and (d) and (4) to (7) apply.
(9) If the Labour Court decides that a dismissal is unfair because the
refusal of membership of or the expulsion from a trade union party to a
closed shop agreement was unfair, the provisions of Chapter VIII apply,
except that any order of compensation in terms of that Chapter must be
made against the trade union.
(10) A registered
trade union that represents a significant interest in, or a substantial
number of, the employees covered by a closed shop agreement may notify the
parties to the agreement of its intention to apply to become a party to
the agreement and, within 30 days of the notice, the employer must convene
a meeting of the parties and the registered trade union in order to
consider the application.
(11) If the parties to
a closed shop agreement do not admit the registered trade union as a
party, the trade union may refer the dispute in writing to the Commission.
(12) The registered
trade union must satisfy the Commission that a copy of the referral has
been served on all the parties to the closed shop agreement.
(13) The Commission
must attempt to resolve the dispute through conciliation.
(14) If the dispute
remains unresolved, any party to the dispute may refer it to the Labour
Court for adjudication.
(15) The
representative trade union must conduct a ballot of the employees covered
by the closed shop agreement to determine whether the agreement should be
terminated if-
(a) one third of the employees covered by
the agreement sign a petition calling for the termination of the
agreement; and
(b) three years have elapsed since the date
on which the agreement commenced or the last ballot was conducted in terms
of this section.
(16)If a majority of
the employees who voted, have voted to terminate the closed shop
agreement, the agreement will terminate.
(17) Unless a
collective agreement provides otherwise, the ballot referred to in
subsections (3) (a) and (15) must be conducted in accordance with the
guidelines published by the Commission.
Part C
Bargaining councils (ss
27-34)
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.
(4) A bargaining council may be established for more than one sector.
[Sub-s. (4) added
by s. 3 of Act 42 of 1996.]
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;
(c) to prevent and resolve labour disputes;
(d) to perform the dispute resolution functions referred to in section
51;
(e) to establish and administer a fund to be used for resolving disputes;
(f) to promote and establish training and education schemes;
(g) to establish and administer pension, provident, medical aid, sick
pay, holiday, unemployment and training schemes or funds or any similar
schemes or funds for the benefit of one or more of the parties to the
bargaining council or their members;
(h) to develop proposals for submission to NEDLAC or any other
appropriate forum on policy and legislation that may affect the sector and
area;
(i) to determine by collective agreement the matters which
may not be an issue in dispute for the purposes of a strike or a lock-out
at the workplace;
(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 (b) of Act 12 of 2002.]
(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 (b) of Act 12 of 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 of 1998.]
(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 of 1998.]
29 Registration of bargaining councils
(1) The parties referred to in section 27 may apply for registration of a
bargaining council by submitting to the registrar-
(a) the prescribed form that has been properly completed;
(b) a copy of its constitution; and
(c) any other information that may assist the registrar to
determine whether or not the bargaining council meets the requirements for
registration.
(2) The registrar may require further information in support of the
application.
(3) As soon as practicable after receiving the application, the registrar
must publish a notice containing the material particulars of the
application in the Government Gazette 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.
[Sub-s. (3)
substituted by s. 4 (a) of Act 12 of 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;
(c) the applicant is not sufficiently representative in the sector
and area in respect of which the application is made.
(5) The registrar may require further information in support of the
objection.
(6) The applicant may respond to an objection within 14 days of the
expiry of the period referred to in subsection (3) (b), and must satisfy
the registrar that a copy of that response has been served on the person
who objected.
(7) The registrar, as soon as practicable, must send the application and
any objections, responses and further information to NEDLAC to consider.
(8) NEDLAC,
within 90 days of receiving the documents from the registrar, must-
(a) consider the appropriateness of the
sector and area in respect of which the application is made;
(b) demarcate the appropriate sector and
area in respect of which the bargaining council should be registered; and
(c) report to the registrar in writing.
(9) If NEDLAC fails to agree on a demarcation as required in subsection
(8) (b), the Minister must demarcate the appropriate sector and area and
advise the registrar.
(10) In determining
the appropriateness of the sector and area for the demarcation
contemplated in subsection (8) (b), NEDLAC or the Minister must seek to
give effect to the primary objects of this Act.
(11) The registrar-
(a) must consider the application and any
further information provided by the applicant;
(b) must determine whether-
(i) the applicant has complied with the provisions of this
section;
(ii) the constitution of the bargaining council complies with
section 30;
(iii) adequate provision is made in the constitution of the bargaining
council for the representation of small and medium enterprises;
(iv) the parties to the bargaining council are sufficiently representative
of the sector and area determined by NEDLAC or the Minister; and
(v) there is no other council registered for the sector and area in
respect of which the application is made; and
(c) if satisfied that the applicant meets the requirements for
registration, must register the bargaining council by entering the
applicant’s name in the register of councils.
(12) If the registrar
is not satisfied that the applicant meets the requirements for
registration, the registrar-
(a) must send the applicant a written
notice of the decision and the reasons for that decision; and
(b) in that notice, must inform the applicant that it has 30 days from
the date of the notice to meet those requirements.
(13) If, within that
30-day period, the applicant meets those requirements, the registrar must
register the applicant by entering the applicant’s name in the register
of councils.
(14) If, after the
30-day period, the registrar concludes that the applicant has failed to
meet the requirements for registration, the registrar must-
(a) refuse to register the applicant; and
(b) notify the applicant and any person
that objected to the application of that decision in writing.
(15) After registering
the applicant, the registrar must-
(a) issue a certificate of registration in
the applicant’s name that must specify the registered scope of the
applicant; and
(b) send the registration certificate and a
certified copy of the registered constitution to the applicant.
(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 (b) of Act 12 of 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;
(c) the circumstances and manner in which representatives must
vacate their seats’ [sic] and the procedure for replacing them;
(d) rules for the convening and conducting
of meetings of representatives, including the quorum required for, and the
minutes to be kept of, those meetings;
(e) the manner in which decisions are to be made;
(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;*
(p) a procedure for changing its constitution; and
(q) a procedure by which it may resolve to wind up.
[Sub-s. (1) amended
by s. 5 (a) of Act 42 of 1996.]
(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 (b) of Act 42 of 1996.]
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 to the relationship between such a party and the members of such
other party; and
(c) the members of a registered trade union that is a party to the
collective 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 of 1996.]
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-
(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 (a) of Act 42 of 1996.]
(c) the members of the employers’ organisations that are parties
to the 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 (a) of Act 42 of 1996.]
(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 (a) of Act 127 of 1998.]
(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 (a) of Act 127 of 1998.]
(g) the terms of the collective agreement do not discriminate against
non-parties.
(4) ......
[Sub-s. (4) deleted
by s. 2 (b) of Act 127 of 1998.]
(5) Despite
subsection (3) (b) and (c), the Minister may extend a collective agreement
in terms of subsection (2) if-
(a) the parties to the bargaining council are sufficiently representative
within the registered scope of the bargaining council; and
[Para. (a)
substituted by s. 7 (b) of Act 42 of 1996 and by s. 5 (a) of Act 12 of
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 (b) of Act 42 of 1996.]
(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 Co-ordinating 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
(b) subsections (3) (c), (e) and (f) and
(4) of this section will not apply.
[Sub-s. (9) added
by s. 7 (2) of Act 42 of 1996.]
(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 (b) of Act 12 of 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 (a) of Act 12 of 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 (b) of Act 12 of 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 (2) of Act 12 of 2002.]
(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
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 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.
(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).
[S. 33A inserted by
s. 7 of Act 12 of 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.
(4) The registration of an amalgamated bargaining council takes effect
from the date that the registrar enters its name in the register of
councils.
(5) When the registrar has registered an amalgamated bargaining council-
(a) all the assets, rights, liabilities and obligations of the
amalgamating bargaining councils devolve upon and vest in the amalgamated
bargaining council; and
(b) all the collective agreements of the amalgamating bargaining
councils, regardless of whether or not they were extended in terms of
section 32, remain in force for the duration of those collective
agreements, unless amended or terminated by the amalgamated bargaining
council.
Part D
Bargaining councils
in the Public Service (35-38)
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.*
(2) The Public Service Co-ordinating Bargaining Council may perform all
the functions of a bargaining council in respect of those matters that-
(a) are regulated by uniform rules, norms and standards that apply across
the public service; or
(b) apply to terms and conditions of
service that apply to two or more sectors; or
(c) are assigned to the State as employer in respect of the public
service that are not assigned to the State as employer in any sector.
37 Bargaining councils in sectors in
public service
(1) The Public Service Co-ordinating Bargaining Council may, 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.
[S. 37 substituted
by s. 8 of Act 12 of 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.
[S. 38 substituted
by s. 9 of Act 12 of 2002.]
Part E
Statutory councils (ss
39-48)
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)* 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 [sic];
(ii) the applicant is representative of the
sector and area determined by NEDLAC or the Minister; and
(iii) there is no other council registered
for the sector and area in respect of which the application is made.
(5) If the registrar is not satisfied that the applicant meets the
requirements for establishment, the registrar must-
(a) send the applicant a written notice of the decision and the reasons
for that decision; and
(b) in that notice, inform the applicant that it has 30 days from the
date of the notice to meet those requirements.
(6) If, after the 30-day period, the registrar concludes that the
applicant has failed to meet the requirements for establishment, the
registrar must-
(a) refuse to register the applicant; and
(b) notify the applicant and any person that objected to the application
in writing of that decision.
40 Establishment
and registration of statutory council
(1) If the registrar is satisfied that the applicant meets the
requirements for the establishment of a statutory council, the registrar,
by notice in the Government Gazette, must establish the statutory council
for a sector and area.
(2) The notice must invite-
(a) registered trade unions and registered employers’ organisations in
that sector and area to attend a meeting; and
(b) any interested parties in that sector and area to nominate
representatives for the statutory council.
(3) The Commission must appoint a
commissioner to chair the meeting and facilitate the conclusion of an
agreement on-
(a) the registered trade unions and registered employers’ organisations
to be parties to the statutory council; and
(b) a constitution that meets the requirements of section 30, read with
the changes required by the context.
(4) If an agreement is concluded, the Minister may advise the registrar
to register the statutory council in accordance with the agreement if the
Minister is satisfied that-
(a) every registered trade union and registered employers’ organisation
that ought to have been included has been included in the agreement; and
(b) the constitution meets the requirements of section 30, read with the
changes required by the context.
(5) In considering the requirements in subsection (4) (a), the Minister
must take into account-
(a) the primary objects of this Act;
(b) the diversity of registered trade unions and registered employers’
organisations in the sector and area; and
(c) the principle of proportional representation.
(6) If the Minister is not satisfied in terms of subsection (4), the
Minister must advise the Commission of the decision and the reasons for
that decision and direct the Commission to reconvene the meeting in terms
of subsection (3) in order to facilitate the conclusion of a new
agreement.
(7) If advised by the Minister in terms of subsection (4), the registrar
must register the statutory council by entering its name in the register
of councils.
41 Establishment
and registration of statutory council in absence of agreement
(1) If no agreement is concluded in terms of section 40 (3), the
commissioner must convene separate meetings of the registered trade unions
and employers’ organisations to facilitate the conclusion of agreements
on-
(a) the registered trade unions to be parties to the statutory council;
(b) the registered employers’ organisations to be parties to the
statutory council; and
(c) the allocation to each party of the number of representatives
of the statutory council.
(2) If an agreement is concluded on-
(a) the registered trade unions to be parties to the statutory council,
the Minister must admit as parties to the statutory council the agreed
registered trade unions;
(b) the registered employers’ organisations to be parties to the
statutory council, the Minister must admit as parties to the statutory
council the agreed registered employers’ organisations.
(3) If no agreement is concluded on-
(a) the registered trade unions to be parties to the statutory council,
the Minister must admit as parties to the statutory council-
(i) the applicant, if it is a registered
trade union; and
(ii) any other registered trade union in the
sector and area that ought to be admitted, taking into account the factors
referred to in section 40 (5);
(b) the registered employers’ organisations to be parties to the
statutory council, the Minister must admit as parties to the statutory
council-
(i) the applicant, if it is a registered
employers’ organisation; and
(ii) any other registered employers’
organisation in the sector and area that ought to be admitted, taking into
account the factors referred to in section 40 (5).
(4) (a) The Minister must determine an even number of representatives of
the statutory council, taking into account the factors referred to in
section 40 (5).
(b) One half
of the representatives must be allocated to the registered trade unions
that are parties to the statutory council and the other half of the
representatives must be allocated to the registered employers’
organisations that are parties to the statutory council.
(5) If no agreement is concluded in respect of the allocation of the
number of representatives of the statutory council-
(a) between the registered trade unions that are parties to the council,
the Minister must determine this allocation on the basis of proportional
representation;
(b) between the registered employers’ organisations that are parties to
the council, the Minister must determine this allocation on the basis of
proportional representation and taking into account the interests of small
and medium enterprises.
(6) If the applicant is a trade union and there is no registered
employers’ organisation that is a party to the statutory council, the
Minister, after consulting the Commission, must appoint suitable persons
as representatives and alternates, taking into account the nominations
received from employers and employers’ organisations in terms of section
40 (2).
(7) If the applicant is an employers’ organisation and there is no
registered trade union that is a party to the statutory council, the
Minister, after consulting the Commission, must appoint suitable persons
as representatives and alternates, taking into account the nominations
received from employees and trade unions in terms of section 40 (2).
(8) The Minister must notify the registrar
of agreements concluded and decisions made in terms of this section, and
the registrar must-
(a) adapt the model constitution referred to in section 207 (3) to the
extent necessary to give effect to the agreements and decisions made in
terms of this section;
(b) register the statutory council by entering its name in the register
of councils; and
(c) certify the constitution as the constitution of the statutory
council.
42 Certificate
of registration of statutory council
After
registering a statutory council, the registrar must-
(a) issue a certificate of registration
that must specify the registered scope of the statutory council; and
(b) send the certificate and a certified
copy of the registered constitution to all the parties to the statutory
council and any representatives appointed to the statutory council.
43 Powers
and functions of statutory councils
(1) The powers and functions of a statutory
council are-
(a) to perform the dispute resolution functions referred to in section
51;
(b) to promote and establish training and education schemes; and
(c) to establish and administer pension, provident, medical aid,
sick pay, holiday, unemployment schemes or funds or any similar schemes or
funds for the benefit of one or more of the parties to the statutory
council or their members; and
(d) to conclude collective agreements to give effect to the matters
mentioned in paragraphs (a), (b), and (c).
(2) A statutory council, in terms of its constitution, may agree to the
inclusion of any of the other functions of a bargaining council referred
to in section 28.
(3) If a statutory council concludes a collective agreement in terms of
subsection (1) (d), the provisions of sections 31, 32 and 33 apply, read
with the changes required by the context.
[Sub-s. (3)
substituted by s. 10 of Act 42 of 1996.]
(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 of 1998.]
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 (a) of Act 12 of 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 (b) of Act 12 of 2002.]
(3) The determination must provide for-
(a) exemptions to be considered by an
independent body appointed by the Minister; and
(b) criteria for exemption that are fair
and promote the primary objects of this Act.
(4) The Minister may in a determination impose a levy on all employers
and employees in the registered scope of the statutory council to defray
the operational costs of the statutory council.
(5) A statutory council may submit a proposal to the Minister to amend or
extend the period of any determination and the Minister may make the
amendment to the determination or extend the period by notice in the
Government Gazette.
45 Disputes about determinations
(1) If there is a dispute about the interpretation or application of a
determination promulgated in terms of section 44 (2), any party to the
dispute may refer the dispute in writing to the Commission.
(2) The party who refers the dispute to the Commission must satisfy it
that a copy of the referral has been served on all the other parties to
the dispute.
(3) The Commission must attempt to resolve the dispute through
conciliation.
(4) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration.
46 Withdrawal of party from statutory
council
(1) If a registered trade union or registered employers’ organisation
that is a party to a statutory council withdraws from that statutory
council, the Minister may request the Commission to convene a meeting of
the remaining registered trade unions or registered employers’
organisations in the sector and area, in order to facilitate the
conclusion of an agreement on the registered trade unions or the
registered employers’ organisations to be parties and the allocation of
representatives to the statutory council.
(2) If no agreement is concluded, the provisions of section 41 apply,
read with the changes required by the context.
47 Appointment of new representative of
statutory council
(1) If a representative appointed in terms of section 41 (6) or (7) for
any reason no longer holds office, the Minister must publish a notice in
the Government Gazette inviting interested parties within the registered
scope of the statutory council to nominate a new representative.
(2) The provisions of section 41 (6) or (7) apply, read with the changes
required by the context, in respect of the appointment of a new
representative.
48 Change of status of statutory council
(1) A statutory council may resolve to apply to register as a bargaining
council.
(2) The registrar must deal with the application as if it were an
application in terms of section 29*, except for section 29 (4) (b), (7) to
(10) and (15).
(3) If the registrar has registered the statutory council as a bargaining
council, the registrar must alter the register of councils and its
certificate to reflect its change of status.
(4) Any determination in force at the time of the registration of the
bargaining council or any agreement extended by the Minister in terms of
section 43 (3)-
(a) continues to have force for the period
of its operation unless superseded by a collective agreement; and
(b) may be extended for a further period.
(5) The bargaining council must perform any function or duty of the
statutory council in terms of a determination during the period in which
the determination is still in effect.
(6) If any dispute in terms of a determination is unresolved at the time
the determination ceases to have effect, the dispute must be dealt with as
if the determination was still in effect.
Part F
General provisions
concerning councils (ss 49-63)
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;
(c) employed by members of the employers’
organisations that are party to the agreement.
[Sub-s. (2)
substituted by s. 11 (a) of Act 12 of 2002.]
(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;
(c) employed by members of the employers’
organisations that are party to the council.
[Sub-s. (3)
substituted by s. 11 (b) of Act 12 of 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 (2) of Act 12 of 2002.]
(5) This section does not apply to the public service.
[Sub-s. (5) added
by s. 11 (2) of Act 12 of 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.
(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 beween-
(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 (a) of Act 42 of 1996.]
(b) Any party
to a dispute who is not a party to a council but who falls within the
registered scope of the council may refer the dispute to the council in
writing.
(c) The party who refers the dispute to the council must satisfy it
that a copy of the referral has been served on all the other parties to
the dispute.
(3) If a dispute is referred to a council in terms of this Act* and any
party to that dispute is not a party to that council, the council must
attempt to resolve the dispute-
(a) through conciliation; and
(b) if the dispute remains unresolved after conciliation, the council
must arbitrate the dispute if-
(i) this Act requires arbitration and any party to the
dispute has requested that it be resolved through arbitration; or
(ii) all the parties to the dispute consent to arbitration under the
auspices of the council.
(4) If one or more of the parties to a dispute that has been referred to
the council do not fall within the registered scope of that council, it
must refer the dispute to the Commission.
(5) The date on which the referral in terms of subsection (4) was
received by a council is, for all purposes, the date on which the council
referred the dispute to the Commission.
(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 (b) of Act 42 of 1996.]
(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 of 2002.]
(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 of 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 of 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 of 1996.]
53 Accounting records and audits
(1) Every council must, to the standards of generally accepted accounting
practice, principles and procedures-
(a) keep books and records of its income,
expenditure, assets and liabilities; and
(b) within six months after the end of each
financial year, prepare financial statements, including at least-
(i) a statement of income and expenditure for the previous
financial year; and
(ii) a balance sheet showing its assets, liabilities and financial
position as at the end of the previous financial year.
(2) Each council must arrange for an annual audit of its books and
records of account and its financial statements by an auditor who must-
(a) conduct the audit in accordance with
generally accepted auditing standards; and
(b) report in writing to the council and in
that report express an opinion as to whether or not the council has
complied with those provisions of its constitution relating to financial
matters.
(3) Every council must-
(a) make the financial statements and the
auditor’s report available to the parties to the council or their
representatives for inspection; and
(b) submit those statements and the
auditor’s report to a meeting of the council as provided for in its
constitution.
(4) Every council must preserve each of its books of account, supporting
vouchers, income and expenditure statements, balance sheets, and
auditor’s reports, in an original or reproduced form, for a period of
three years from the end of the financial year to which they relate.
(5) The money of a 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 66 of 1975);
(c) a registered unit trust; or
(d) any other manner approved by the registrar.
[Sub-s. (5) amended
by s. 13 of Act 42 of 1996.]
(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 of 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;
(c) upon registration, an address within
the Republic at which it will accept service of any document that is
directed to it;
(d) within 30 days of any appointment or
election of its national office-bearers, the names and work addresses of
those office-bearers, even if their appointment or election did not result
in any changes to its office-bearers;
(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;
(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 (b) of Act 12 of 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; and
(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;
(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).
[Sub-s. (4) added
by s. 14 (2) of Act 12 of 2002.]
(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 (2) of Act 12 of 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 (a) of Act 42 of 1996.]
(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 (b) of Act 42 of 1996.]
56 Admission of parties to council*
(1) Any registered trade union or registered employers’ organisation
may apply in writing to a council for admission as a party to that
council.
(2) The application must be accompanied by a certified copy of the
applicant’s registered constitution and certificate of registration and
must include-
(a) details of the applicant’s membership
within the registered scope of the council and, if the applicant is a
registered employers’ organisation, the number of employees that its
members employ within that registered scope;
(b) the reasons why the applicant ought to be admitted as a party to the
council; and
(c) any other information on which the applicant relies in support
of the application.
(3) A council, within 90 days of receiving an application for admission,
must decide whether to grant or refuse an applicant admission, and must
advise the applicant of its decision, failing which the council is deemed
to have refused the applicant admission.
(4) If the council refuses to admit an applicant it must within 30 days
of the date of the refusal, advise the applicant in writing of its
decision and the reasons for that decision.
(5) The applicant may apply to the Labour Court for an order admitting it
as a party to the council.
(6) The Labour Court may admit the applicant as a party to the council,
adapt the constitution of the council and make any other appropriate
order.
57 Changing constitution or name of council
(1) Any council may resolve to change or replace its constitution.
(2) The council must send the registrar a copy of the resolution and a
certificate signed by its secretary stating that the resolution complies
with its constitution.
(3) The registrar must-
(a) register the changed or new
constitution of a council if it meets the requirements of section 30 or if
it is a statutory council established in terms of section 41 if it meets
the requirements of the model constitution referred to in section 207 (3);
and
(b) send the council a copy of the
resolution endorsed by the registrar, certifying that the change or
replacement has been registered.
(4) The changed or new constitution takes effect from the date of the
registrar’s certification.
(5) Any council may resolve to change its name.
(6) The council must send the registrar a copy of the resolution and the
original of its current certificate of registration.
(7) The registrar must-
(a) enter the new name in the register of
councils, and issue a certificate of registration in the new name of the
council;
(b) remove the old name from that register
and cancel the earlier certificate of registration; and
(c) send the new certificate to the
council.
(8) The new name takes effect from the date that the registrar enters it
in the register of councils.
58 Variation of registered scope of council
(1) If the registrar is satisfied that the sector and area within which a
council is representative does not coincide with the registered scope of
the council, the registrar, acting independently or in response to an
application from the council, may vary the registered scope of the
council.
[Sub-s. (1)
substituted by s. 15 of Act 42 of 1996.]
(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 of 2002.]
59 Winding-up of council
(1) The Labour Court may order a council to be wound up if-
(a) the council has resolved to wind up its affairs and has applied to
the Court for an order giving effect to that resolution; or
(b) the registrar of labour relations or any party to the council has
applied to the Court and the Court is satisfied that the council is unable
to continue to function for any reason that cannot be remedied.
(2) If there are any persons not represented before the Labour Court
whose interests may be affected by an order in terms of subsection (1),
the Court must-
(a) consider those interests before
deciding whether or not to grant the order; and
(b) if it grants the order, include provisions in the order disposing of
each of those interests.
(3) If it makes an order in terms of subsection (1), the Labour Court may
appoint a suitable person as liquidator, on appropriate conditions.
(4) (a) The registrar of the Labour Court must determine the
liquidator’s fees.
(b) The Labour
Court, in chambers, may review the determination of the registrar of the
Labour Court.
(c) The liquidator’s fees are a first
charge against the assets of the council.
(5) If, after all the liabilities of the council have been discharged,
any assets remain that cannot be disposed of in accordance with the
constitution of that council, the liquidator must realise those assets and
pay the proceeds to the Commission for its own use.
(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-
(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
(c) application has been made in accordance
with the provisions of the laws 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 of 1998.]
(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) (2), 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 of 1998.]
(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 of 1998.]
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 24 of 1936), and, for the purposes of this
section, any reference to the court in that Act must be interpreted as
referring to the Labour Court.
61 Cancellation of registration of council
(1) The registrar of the Labour Court must notify the registrar of labour
relations if the Court has ordered a council to be wound up.
(2) When the registrar receives a notice from the Labour Court in terms
of subsection (1), the registrar must cancel the registration of the
council by removing its name from the register of councils.
(3) The registrar may notify a council and every party to the council
that the registrar is considering cancelling the council’s registration,
if the registrar believes that-
(a) the council has ceased to perform its functions in terms of this Act
for a period longer than 90 days before the date of the notice; or
(b) the council has ceased to be representative in terms of the
provisions of the relevant Part, for a period longer than 90 days prior to
the date of the notice.
(4) In a notice in terms of subsection (3), the registrar must state the
reasons for the notice and inform the council and every party to the
council that they have 60 days to show cause why the council’s
registration should not be cancelled.
(5) After the expiry of the 60-day period, the registrar, unless cause
has been shown why the council’s registration should not be cancelled,
must notify the council and every party to the council that the
registration will be cancelled unless an appeal to the Labour Court is
noted and the Court reverses the decision.
(6) The cancellation takes effect-
(a) if no appeal to the Labour Court is noted within the time
contemplated in section 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.
(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 of 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 of 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;
(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 (a) of Act 42 of 1996.]
(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 (1)
(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
(b) the determination of the
question raised is necessary for the purposes of the proceedings.
[Sub-s. (3A)
inserted by s. 16 (b) of Act 42 of 1996.]
(4) When the Commission receives an application in terms of subsection
(1) or a referral in terms of subsection (3), it must appoint a
commissioner to hear the application or determine the question, and the
provisions of section 138 apply, read with the changes required by the
context.
(5) In any proceedings in terms of this Act before a commissioner, if a
question contemplated in subsection (1) (a) or (b) is raised, the
commissioner must adjourn the proceedings and consult the director, if the
commissioner is satisfied that-
(a) the question raised-
(i) has not previously been determined by arbitration in
terms of this section; and
(ii) is not the subject of an agreement in terms of subsection (2);
and
(b) the determination of the question raised is necessary for the
purposes of the proceedings.
(6) The director must either order the commissioner concerned to
determine the question or appoint another commissioner to do so, and the
provisions of section 138 apply, read with the changes required by the
context.
(7) If the Commission believes that the question is of substantial
importance, the Commission must publish a notice in the Government Gazette
stating the particulars of the application or referral and stating the
period within which written representations may be made and the address to
which they must be directed.
(8) If a notice contemplated in subsection (7) has been published, the
commissioner may not commence the arbitration until the period stated in
the notice has expired.
(9) Before making an award, the commissioner must consider any written
representations that are made, and must consult NEDLAC.
(10) The commissioner
must send the award, together with brief reasons, to the Labour Court and
to the Commission.
(11) If the Commission
believes that the nature of the award is substantially important, it may
publish notice of the award in the Government Gazette.
(12) The registrar
must amend the certificate of registration of a council in so far as is
necessary in light of the award.
63 Disputes about Parts A and C to F
(1) Any party to a dispute about the interpretation or application of
Parts A and C to F of this Chapter, may refer the dispute in writing to
the Commission unless-
(a)
the dispute has arisen in the course of arbitration proceedings or
proceedings in the Labour Court; or
[Para. (a)
substituted by s. 17 of Act 42 of 1996.]
(b) the
dispute is otherwise to be dealt with in terms of Parts A and C to F.
(2) The party who refers the dispute to the Commission must satisfy it
that a copy of the referral has been served on all the other parties to
the dispute.
(3) The Commission must attempt to resolve the dispute through
conciliation.
(4) If the dispute remains unresolved, any party to the dispute may refer
it to the Labour Court for adjudication.
CHAPTER IV
STRIKES AND
LOCK-OUTS (ss 64-77)
64 Right to strike and recourse to lock-out
(1) Every employee has the right to strike and every employer has
recourse to lock-out if-
(a) the issue in dispute has been referred to a council or to the
Commission as required by this Act, and-
(i) a certificate stating that the dispute remains unresolved
has been issued; or
(ii) a period of 30 days, or any extension of that period agreed to
between the parties to the dispute, has elapsed since the referral was
received by the council or the Commission; and after that-
(b) in the case of a proposed strike, at least 48 hours’ notice of the
commencement of the strike, in writing, has been given to the employer,
unless-
(i) the issue in dispute relates to a collective agreement to
be concluded in a council, in which case, notice must have been given to
that council; or
(ii) the employer is a member of an employers’ organisation that
is a party to the dispute, in which case, notice must have been given to
that employers’ organisation; or
(c) in the case of a proposed lock-out, at least 48 hours’ notice
of the commencement of the lock-out, in writing, has been given to any
trade union that is a party to the dispute, or, if there is no such trade
union, to the employees, unless the issue in dispute relates to a
collective agreement to be concluded in a council, in which case, notice
must have been given to that council; or
(d) 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) (2) 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;
(c) a resignation of a party from a bargaining council;
(d) a dispute about-
(i) appropriate bargaining units;
(ii) appropriate bargaining levels; or
(iii) bargaining subjects.
(3) The requirements of subsection (1) do not apply to a strike or a
lock-out if-
(a) the parties to the dispute are members of a council, and the dispute
has been dealt with by that council in accordance with its constitution;
(b) the strike or lock-out conforms with the procedures in a collective
agreement;
(c) the employees strike in response to a lock-out by their
employer that does not comply with the provisions of this Chapter;
(d) the employer locks out its employees in response to their taking part
in a strike that does not conform with the provisions of this Chapter; or
(e) the employer fails to comply with the requirements of subsections (4)
and (5).
(4) Any employee who or any trade union that refers a dispute about a
unilateral change to terms and conditions of employment to a council or
the Commission in terms of subsection (1) (a) may, in the referral, and
for the period referred to in subsection (1) (a)-
(a) require the employer not to implement
unilaterally the change to terms and conditions of employment; or
(b) if the employer has already implemented the change unilaterally,
require the employer to restore the terms and conditions of employment
that applied before the change.
(5) The employer must comply with a requirement in terms of subsection
(4) within 48 hours of service of the referral on the employer.
65 Limitations on right to strike or
recourse to lock-out
(1) No person may take part in a strike or a lock-out or in any conduct
in contemplation or furtherance of a strike or a lock-out if-
(a) that person is bound by a collective
agreement that prohibits a strike or lock-out in respect of the issue in
dispute;
(b) that person is bound by an agreement
that requires the issue in dispute to be referred to arbitration;
(c) the issue in dispute is one that a party has the right to refer
to arbitration or to the Labour Court in terms of this Act;
(d) that person is engaged in-
(i) an essential service; or
(ii) a maintenance service.
(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.
(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.
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 of 1996.]
(2) No person may take part in a secondary strike unless-
(a) the strike that is to be supported complies with the provisions of
sections 64 and 65;
(b) the employer of the employees taking part in the secondary strike or,
where appropriate, the employers’ organisation of which that employer is
a member, has received written notice of the proposed secondary strike at
least seven days prior to its commencement; and
(c) the nature and extent of the secondary strike is reasonable in
relation to the possible direct or indirect effect that the secondary
strike may have on the business of the primary employer.
(3) Subject
to section 68 (2) and (3), a secondary employer may apply to the Labour
Court for an interdict to prohibit or limit a secondary strike that
contravenes subsection (2).
(4) Any person who is a party to proceedings in terms of subsection (3),
or the Labour Court, may request the Commission to conduct an urgent
investigation to assist the Court to determine whether the requirements of
subsection (2) (2) have been met.
(5) On receipt of a request made in terms of subsection (4), the
Commission must appoint a suitably qualified person to conduct the
investigation, and then submit, as soon as possible, a report to the
Labour Court.
(6) The Labour Court must take account of the Commission’s report in
terms of subsection (5) before making an order.
67 Strike or lock-out in compliance with this Act
(1) In this Chapter, ‘protected strike’ means a strike that complies
with the provisions of this Chapter and ‘protected lock-out’ means a
lock-out that complies with the provisions of this Chapter.
(2) A person does not commit a 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 payment
in kind during the strike or lock-out; and
(b) after the end of the strike or lock
out, the employer may recover the monetary value of the payment in kind
made at the request of the employee during the strike or lock-out from the
employee by way of civil proceedings instituted in the Labour Court.
(4) An employer may not dismiss an employee for participating in a
protected strike or for any conduct in contemplation or in furtherance of
a protected strike.
(5) Subsection
(4) does not preclude an employer from fairly dismissing an employee in
accordance with the provisions of Chapter VIII for a reason related to the
employee’s conduct during the strike, or for a reason based on the
employer’s operational requirements.
(6) Civil legal proceedings may not be instituted against any person for-
(a) participating in a protected strike or
a protected lock-out; or
(b) any conduct in contemplation or in furtherance of a protected strike
or a protected lock-out.
(7) The failure by a registered trade union or a registered employers’
organisation to comply with a provision in its constitution requiring it
to conduct a ballot of those of its members in respect of whom it intends
to call a strike or lock-out may not give rise to, or constitute a ground
for, any litigation that will affect the legality of, and the protection
conferred by this section on, the strike or lock-out.
(8) The provisions of subsections (2) and (6) do not apply to any act in
contemplation or in furtherance of a strike or a lock-out, if that act is
an offence.
(9) Any act in contemplation or in furtherance of a protected strike or a
protected lock-out that is a contravention of the Basic Conditions of
Employment Act or the Wage Act does not constitute an offence.
68 Strike or lock-out not in compliance with this Act
(1) In the case of any strike or lock-out, or any conduct in
contemplation or in furtherance of a strike or lock-out, that does not
comply with the provisions of this Chapter, the Labour Court has exclusive
jurisdiction-
(a) to grant an interdict or order to restrain-*
(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-
(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 of 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
(c) the applicant has shown good cause why a period shorter than 48
hours should be permitted.
(3) Despite
subsection (2), if written notice of the commencement of the proposed
strike or lock-out was given to the applicant at least 10 days before the
commencement of the proposed strike or lock-out, the applicant must give
at least five days’ notice to the respondent of an application for an
order in terms of subsection (1) (a).
(4) Subsections
(2) and (3) do not apply to an employer or an employee engaged in an
essential service or a maintenance service.
(5) Participation
in a strike that does not comply with the provisions of this Chapter, or
conduct in contemplation or in furtherance of that strike, may constitute
a fair reason for dismissal. In determining whether or not the dismissal
is fair, the Code of Good Practice: Dismissal in Schedule 8 must be taken
into account.
69 Picketing
(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 of 1996.]
(3) The permission referred to in subsection (2) (b) may not be
unreasonably withheld.
(4) If requested to do so by the registered trade union or the employer,
the Commission must attempt to secure an agreement between the parties to
the dispute on rules that should apply to any picket in relation to that
strike or lock-out.
(5) If there is no agreement, the Commission must establish picketing
rules, and in doing so must take account of-
(a) the particular circumstances of the workplace or other premises where
it is intended that the right to picket is to be exercised; and
(b) any relevant code of good practice.
(6) The rules established by the Commission may provide for picketing by
employees on their employer’s premises if the Commission is satisfied
that the employer’s permission has been unreasonably withheld.
(7) The provisions of section 67, read with the changes required by the
context, apply to the call for, organisation of, or participation in a
picket that complies with the provisions of this section.
(8) Any party to a dispute about any of the following issues may refer
the dispute in writing to the Commission-
(a) an allegation that the effective use of the right to picket is being
undermined;
(b) an alleged material contravention of subsection (1) or (2);
(c) an alleged material breach of an agreement concluded in terms
of subsection (4); or
(d) an alleged material breach of a rule established in terms of
subsection (5).
(9) The party who refers the dispute to the Commission must satisfy it
that a copy of the referral has been served on all the other parties to
the dispute.
(10) The Commission
must attempt to resolve the dispute through conciliation.
(11) If the dispute
remains unresolved, any party to the dispute may refer it to the Labour
Court for adjudication.
70 Essential services committee
(1) The Minister, after consulting NEDLAC, and in consultation with the
Minister for the Public Service and Administration, must establish an
essential services committee under the auspices of the Commission and-
(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 of 1998.]
(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;
[Date of
commencement 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
(c) to determine whether or not the whole or a part of any service
is a maintenance service.
(3) At the request of a bargaining council, the essential services
committee must conduct an investigation in terms of subsection (2) (a).
71 Designating a service as an essential
service
(1) The essential services committee must give notice in the Government
Gazette of any investigation that it is to conduct as to whether the whole
or a part of a service is an essential service.
(2) The notice must indicate the service or the part of a service that is
to be the subject of the investigation and must invite interested parties,
within a period stated in the notice-
(a) to submit written representations; and
(b) to indicate whether or not they require an opportunity to make oral
representations.
(3) Any interested party may inspect any written representations made
pursuant to the notice, at the Commission’s offices.
(4) The Commission must provide a certified copy of, or extract from, any
written representations to any person who has paid the prescribed fee.
(5) The essential services committee must advise parties who wish to make
oral representations of the place and time at which they may be made.
(6) Oral representations must be made in public.
(7) After having considered any written and oral representations, the
essential services committee must decide whether or not to designate the
whole or a part of the service that was the subject of the investigation
as an essential service.
(8) If the essential services committee designates the whole or a part of
a service as an essential service, the committee must publish a notice to
that effect in the Government Gazette.
(9) The essential services committee may vary or cancel the designation
of the whole or a part of a service as an essential service, by following
the provisions set out in subsections (1) to (8), read with the changes
required by the context.
(10) The Parliamentary
service and the South African Police Service are deemed to have been
designated an essential service in terms of this section.
[Date of
commencement 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-
(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
(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.
(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 (b) of Act 42 of 1996.]
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 (a) of Act 42 of 1996.]
(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 (b) of Act 42 of 1996.]
(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 (2) of Act 42 of 1996.]
(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 (2) of Act 42 of 1996.]
(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 (2) of Act 42 of 1996.]
76 Replacement labour
(1) An employer may not take into employment any person-
(a) to continue or maintain production during a protected strike if the
whole or a part of the employer’s service has been designated a
maintenance service; or
(b) for the purpose of performing the work of any employee who is locked
out, unless the lock-out is in response to a strike.
(2) For the purpose of this section, ‘take into employment’ includes
engaging the services of a temporary employment service 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;
(c) the matter giving rise to the intended protest action has been
considered by NEDLAC or any other appropriate forum in which the parties
concerned are able to participate in order to resolve the matter; and
(d) at least 14 days before the commencement of the protest action, the
registered trade union or federation of trade unions has served a notice
on NEDLAC of its intention to proceed with the protest action.
(2) The Labour Court has exclusive jurisdiction-
(a) to grant any order to restrain any person from taking part in protest
action or in any conduct in contemplation or in furtherance of protest
action that does not comply with subsection (1);
(b) in respect of protest action that complies with subsection (1), to
grant a declaratory order contemplated by subsection (4), after having
considered-
(i) the nature and duration of the protest action;
(ii) the steps taken by the registered trade union or federation of
trade unions to minimise the harm caused by the protest action; and
(iii) the conduct of the participants in the protest action.
(3) A person who takes part in protest action or in any conduct in
contemplation or in furtherance of protest action that complies with
subsection (1), enjoys the protections conferred by section 67.
(4) Despite
the provisions of subsection (3), an employee forfeits the protection
against dismissal conferred by that subsection, if the employee-
(a) takes part in protest action or any
conduct in contemplation or in furtherance of protest action in breach of
an order of the Labour Court; or
(b) otherwise acts in contempt of an order
of the Labour Court made in terms of this section.
CHAPTER V
WORKPLACE FORUMS (ss
78-94)
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) ......
[Sub-para. (i)
deleted by s. 23 of Act 42 of 1996.]
(ii) represent
the employer in dealings with the workplace forum; or
(iii)