LABOUR RELATIONS ACTS Opening Remarks To change the law governing labour relations and, for that purpose- * to give effect to section 27 of the Constitution; * to regulate the organizational rights of trade unions; * to promote and facilitate collective bargaining at the workplace and at sectoral level; * to regulate the right to strike and the recourse to lock-out in conformity with the Constitution; * to promote employee participation in decision-making through the establishment of workplace forums; * to provide simple procedures for the resolution of labour disputes through statutory conciliation, mediation and arbitration (for which purpose the Commission for Conciliation, Mediation and Arbitration is established), and through independent alternative dispute resolution services accredited for that purpose; * to establish the Labour Court and Labour Appeal Court as superior courts, with exclusive jurisdiction to decide matters arising from the Act; * to provide for a simplified procedure for the registration of trade unions and employers' organizations, 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. Chapter I: Purpose, Application and Interpretation 1. Purpose of this Act The purpose of this Act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are- a. to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution; 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. Notes: 1. An italicised word or phrase indicates that the word or phrase is defined in section 213 of this Act. In the hypertext version the italicised words are replaced by underlined green words which, when clicked, pop up the appropriate definition from Section 213. 2. Section 27, which is in the Chapter on Fundamental Rights in the Constitution entrenches the following rights: 1. Every person shall have the right to fair labour practices 2. Workers shall have the right to form and join trade unions, and employers shall have the right to form and join employers' organisations. 3. Workers and employers shall have the right to organise and bargain collectively. 4. Workers shall have the right to strike for the purpose of collective bargaining. 5. Employers' recourse to the lock-out for the purpose of collective bargaining shall not be impaired, subject to subsection 33(1). Top of Form Bottom of Form Chapter I: Purpose, Application and Interpretation 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. Top of Form Bottom of Form Chapter I: Purpose, Application and Interpretation 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 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. 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. Chapter II: Freedom of Association and General Protections 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. Chapter II: Freedom of Association and General Protections 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' organization, subject to its constitution. 2. Every member of an employers' organization has the right, subject to the constitution of that employers' organization- 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. Chapter II: Freedom of Association and General Protections 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' organization; ii. not to become a member of an employers'' organization; 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' organization; ii. participation in forming an employers' organisation or a federation of employers' organizations; iii. participation in the lawful activities of an employers ' organisation or a federation of employers' organizations; 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. Chapter II: Freedom of Association and General Protections 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' organizations; d. to join a federation of trade unions or a federation of employers' organizations, 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' organization or international employers' organization or the International Labour Organisation, and contribute to, or receive financial assistance from, those organizations. Chapter II: Freedom of Association and General Protections 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. See flow diagram No. 1 in Schedule 4. Chapter II: Freedom of Association and General Protections 10. Burden of proof In any proceedings- a. a party who alleges that a right or protection conferred by this Chapter has been infringed must prove the facts of the conduct; and b. the party who engaged in that conduct must then prove that the conduct did not infringe any provision of this Chapter. Chapter III: Collective Bargaining Part A: Organisational Rights 11. Trade union representativeness In this Part, unless otherwise stated, "representative trade union" means a registered trade union , or two or more registered trade unions acting jointly, that are sufficiently representative of the employees employed by an employer in a workplace . Chapter III: Collective Bargaining Part A: Organisational Rights 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. Chapter III: Collective Bargaining Part A: Organisational Rights 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 authorization 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 authorization 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). Chapter III: Collective Bargaining Part A: Organisational Rights 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 1000 members, plus one additional trade union representative for every 500 additional members up to a maximum of 20 trade union representatives. 3. The constitution of the representative trade union governs the nomination, election, term of office and removal from office of a trade union representative. 4. A trade union representative has the right to perform the following functions- a. at the request of an employee in the workplace, to assist and represent the employee in grievance and disciplinary proceedings; b. to monitor the employer's compliance with the workplace-related provisions of this Act, any law regulating terms and conditions of employment and any collective agreement binding on the employer; c. to report any alleged Contravention of the workplace-related provisions of this Act, any law regulating terms and conditions of employment and any collective agreement binding on the employer to- i. the employer; ii. the representative trade union; and iii. any responsible authority or agency; and d. to perform any other function agreed to between the representative trade union and the employer. 5. Subject to reasonable conditions, a trade union representative is entitled to take reasonable time off with pay during working hours - a. to perform the functions of a trade union representative; and b. to be trained in any subject relevant to the performance of the functions of a trade union representative. Chapter III: Collective Bargaining Part A: Organisational Rights 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. Chapter III: Collective Bargaining Part A: Organisational Rights 16. Disclosure of information 1. For the purposes of this section, "representative trade union means a registered trade union, or two or more registered trade unions acting jointly, that have as members the majority of the employees employed by an employer in a workplace . 2. Subject to subsection (5), an employer must disclose to a trade union representative all relevant information that will allow the trade union representative to perform effectively the functions referred to in section 14(4). 3. Subject to subsection (5), whenever an employer is consulting or bargaining with a representative trade union, the employer must disclose to the representative trade union all relevant information that will allow the representative trade union to engage effectively in consultation or collective bargaining. 4. The employer must notify the trade union representative or the representative trade union in writing if any information disclosed in terms of subsection (2) or (3) is confidential. 5. An employer is not required to disclose information- a. that is legally privileged; b. that the employer cannot disclose without contravening a prohibition imposed on the employer by any law or order of any court; c. that is confidential and, if disclosed, may cause substantial harm to an employee or the employer; or d. that is private personal information relating to an employee, unless that employee consents to the disclosure of that information. 6. If there is a dispute about what information is required to be disclosed in terms of this section, any party to the dispute may refer the dispute in writing to the Commission. 7. The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute. 8. The Commission must attempt to resolve the dispute through conciliation. 9. If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration. 10. In any dispute about the disclosure of information contemplated in subsection (6), the commissioner must first decide whether or not the information is relevant. 11. If the commissioner decides that the information is relevant and if it is information contemplated in subsection (5)(c) or (d), the commissioner must balance the harm that the disclosure is likely to cause to an employee or employer against the harm that the failure to disclose the information is likely to cause to the ability of a trade union representative to perform effectively the functions referred to in section 14(4) or the ability of a representative trade union to engage effectively in consultation or collective bargaining. 12. If the commissioner decides that the balance of harm favours the disclosure of the information, the commissioner may order the disclosure of the information on terms designed to limit the harm likely to be caused to the employee or employer. 13. When making an order in terms of subsection (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. Chapter III: Collective Bargaining Part A: Organisational Rights 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. Chapter III: Collective Bargaining Part A: Organisational Rights 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 organizational 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 Organizational rights referred to in that subsection. Chapter III: Collective Bargaining Part A: Organisational Rights 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 . Chapter III: Collective Bargaining Part A: Organisational Rights 20. Organisational rights in collective agreements Nothing in this Part precludes the conclusion of a collective agreement that regulates organisational rights. Chapter III: Collective Bargaining Part A: Organisational Rights 21. Exercise of rights conferred by this Part See flow diagram No. 2 in Schedule 4. 1. Any registered trade union may notify an employer in writing that it seeks to exercise one or more of the rights conferred by this Part in a workplace . 2. The notice referred to in subsection (1) must be accompanied by a certified copy of the trade union's certificate of registration and must specify- a. the workplace in respect of which the trade union seeks to exercise the rights; b. the representativeness of the trade union in that workplace, and the factor 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 organizational 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 organizational 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 organizational rights conferred by this Part, in which case the provisions of subsections (5) to (10) apply, read with the changes required by the context. Chapter III: Collective Bargaining Part A: Organisational Rights 22. Disputes about organizational 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. Chapter III: Collective Bargaining Part B: Collective Agreements 23. Legal effect of collective agreement 1. A collective agreement binds- a. the parties to the collective agreement; b. each party to the collective agreement and the members of every other party to the collective agreement, in so far as the provisions are applicable between them; c. the members of a registered trade union and the employers who are members of a registered employers' organisation that are party to the collective agreement if the collective agreement regulates: i. terms and conditions of employment; or ii. the conduct of the employers in relation to their employees or the conduct of the employees in relation to their employers; d. employees who are not members of the registered trade union or trade unions party to the agreement if: i. the employees are identified in the agreement; ii. the agreement expressly binds the employees; and iii. that trade union or those trade unions have as their members the majority of employees employed by the employer in the workplace . 2. A collective agreement binds for the whole period of the collective agreement every person bound in terms of subsection (1)(c) who was a member at the time it became binding, or who becomes a member after it became binding, whether or not that person continues to be a member of the registered trade union or registered employers' organisation for the duration of the collective agreement. 3. Where applicable, a collective agreement varies any contract of employment between an employee and employer who are both bound by the collective agreement. 4. Unless the collective agreement provides otherwise, any party to a collective agreement that is concluded for an indefinite period may terminate the agreement by giving reasonable notice to the other parties. Chapter III: Collective Bargaining Part B: Collective Agreements 24. Disputes about collective agreements 1. Every collective agreement , excluding an agency shop agreement concluded in terms of section 25 or a closed shop agreement concluded in terms of section 26, must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement. The procedure must first require the parties to attempt to resolve the dispute through conciliation and, if the dispute remains unresolved, to resolve it through arbitration. 2. If there is a dispute about the interpretation or application of a collective agreement, any party to the dispute may refer the dispute in writing to the Commission if: a. the collective agreement does not provide for a procedure as required by subsection (1); b. the procedure provided for in the collective agreement is not operative; or c. any party to the collective agreement has frustrated the resolution of the dispute in terms of the collective agreement. 3. The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute. 4. The Commission must attempt to resolve the dispute through conciliation. 5. If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration. 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. See flow diagram No. 3 in Schedule 4. See flow diagram No. 4 in Schedule 4. 7. Any person bound by an arbitration award about the interpretation or application of section 25(3)(c) and (d) or section 26(3)(d) may appeal against that award to the Labour Court. Chapter III: Collective Bargaining Part B: Collective Agreements 25. Agency shop agreements 1. A representative trade union and an employer or employers' organization 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. 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. 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 authorization. b. Despite subsection 3(c) a conscientious objector may request the employer to pay the amount deducted from that employee's wages into a fund administered by the Department of Labour. 5. The provisions of sections 98 and 100(b) and (c) apply, read with the changes required by the context, to the separate account referred to in subsection (3)(c). 6. Any person may inspect the auditor's report, in so far as it relates to an account referred to in subsection (3)(c), in the registrar's office. 7. The registrar must provide a certified copy of, or extract from, any of the documents referred to in subsection (6) to any person who has paid the prescribed fees. 8. An employer or employers' organisation that alleges that a trade union is no longer a representative trade union in terms of subsection (1) must give the trade union written notice of the allegation, and must allow the trade union 90 days from the date of the notice to establish that it is a representative trade union. 9. If, within the 90-day period, the trade union fails to establish that it is a representative trade union, the employer must give the trade union and the employees covered by the agency shop agreement 30 days' notice of termination, after which the agreement will terminate. 10. If an agency shop agreement is terminated, the provisions of subsection (3)(c) and (d) and (5) apply until the money in the separate account is spent. Chapter III: Collective Bargaining Part B: Collective Agreements 26. Closed shop agreements 1. A representative trade union and an employer or employers' organization 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. 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' organization 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. Chapter III: Collective Bargaining Part C: Bargaining Councils 27. Establishment of bargaining councils 1. One or more registered trade unions and one or more registered employers' organizations 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. Chapter III: Collective Bargaining Part C: Bargaining Councils 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 ; and j. to confer on workplace forums additional matters for consultation. 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). 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 sunsection (1)(g) after the coming into operation of the Labour Relations Amendment Act, 1998. Chapter III: Collective Bargaining Part C: Bargaining Councils 29. Registration of bargaining councils 1. The parties referred to in section 27 may apply for registration of a bargaining council by submitting to the registrar - a. the prescribed form that has been properly completed; b. a copy of its constitution; and c. any other information that may assist the registrar to determine whether or not the bargaining council meets the requirements for registration. 2. The registrar may require further information in support of the application. 3. As soon as practicable after receiving the application, the registrar must publish a notice containing the material particulars of the application in the Government Gazette. The notice must inform the general public that they - a. may object to the application on any of the grounds referred to in subsection (4); and b. have 30 days from the date of the notice to serve any objection on the registrar and a copy on the applicant. 4. Any person who objects to the application must satisfy the registrar that a copy of the objection has been served on the applicant and that the objection is on any of the following grounds- a. the applicant has not complied with the provisions of this section; b. the sector and area in respect of which the application is made is not appropriate; c. the applicant is not sufficiently representative in the sector and area in respect of which the application is made. 5. The registrar may require further information in support of the objection. 6. The applicant may respond to an objection within 14 days of the expiry of the period referred to in subsection (3)(b), and must satisfy the registrar that a copy of that response has been served on the person who objected. 7. The registrar, as soon as practicable, must send the application and any objections, responses and further information to NEDLAC to consider. 8. NEDLAC, within 90 days of receiving the documents from the registrar, must- a. consider the appropriateness of the sector and area in respect of which the application is made; b. demarcate the appropriate sector and area in respect of which the bargaining council should be registered; and c. report to the registrar in writing. 9. If NEDLAC fails to agree on a demarcation as required in subsection (8)(b), the Minister must demarcate the appropriate sector and area and advise the registrar. 10. In determining the appropriateness of the sector and area for the demarcation contemplated in subsection (8)(b), NEDLAC or the Minister must seek to give effect to the primary objects of this Act. 11. The registrar- a. must consider the application and any further information provided by the applicant, b. must determine whether- i. the applicant has complied with the provisions of this section; ii. the constitution of the bargaining council complies with section 30; iii. adequate provision is made in the constitution of the bargaining council for the representation of small and medium enterprises; iv. the parties to the bargaining council are sufficiently representative of the sector and area determined by NEDLAC or the Minister; and v. there is no other council registered for the sector and area in respect of which the application is made; and c. if satisfied that the applicant meets the requirements for registration, must register the bargaining council by entering the applicant's name in the register of councils. 12. If the registrar is not satisfied that the applicant meets the requirements for registration, the registrar- a. must send the applicant a written notice of the decision and the reasons for that decision; and b. in that notice, must inform the applicant that it has 30 days from the date of the notice to meet those requirements. 13. If, within that 30-day period, the applicant meets those requirements, the registrar must register the applicant by entering the applicant's name in the register of councils. 14. If, after the 30-day period, the registrar concludes that the applicant has failed to meet the requirements for registration, the registrar must- a. refuse to register the applicant; and b. notify the applicant and any person that objected to the application of that decision in writing. 15. After registering the applicant, the registrar must: a. issue a certificate of registration in the applicant's name that must specify the registered scope of the applicant; and b. send the registration certificate and a certified copy of the registered constitution to the applicant. Chapter III: Collective Bargaining Part C: Bargaining Councils 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' organizations that are party to the bargaining council, and the appointment of alternates to the representatives; b. the representation of small and medium enterprises, c. the circumstances and manner in which representatives must vacate their seats' and the procedure for replacing them; d. rules for the convening and conducting of meetings of representatives, including the quorum required for, and the minutes to be kept of, those meetings; e. the manner in which decisions are to be made; 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; (Section 56 provides for a procedure for the admission of parties to a council.) p. a procedure for changing its constitution; and q. a procedure by which it may resolve to wind up. 2. The requirements for the constitution of a bargaining council in subsection (1) apply to the constitution of a bargaining council in the public service except that- a. any reference to an "employers' organisation" must be read as a reference to the State as employer; and b. the requirement in subsection (1)(b) concerning the representation of small and medium enterprises does not apply. 3. The constitution of the Public Service Co-ordinating Bargaining Council must include a procedure for establishing a bargaining council in a sector of the public service designated in terms of section 37(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 procedure 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. Chapter III: Collective Bargaining Part C: Bargaining Councils 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 parties to the collective agreement; b. each party to the collective agreement and the members of every other party in 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 to their employers. Chapter III: Collective Bargaining Part C: Bargaining Councils 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' organizations, whose members employ the majority of the employees employed by the members of the employers ' organizations 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; c. the members of the employers' organisations that are parties to the bargaining council will, upon extension of the collective agreement be found to employ the majority of all the employees who fall within the scope of the collective agreement; 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 special 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; f. the collective agreement contains criteria that must be applied by the independent body when it considersan appeal, and that those criteria are fair and promote the primary objects of this Act; and g. the terms of the collective agreement do not discriminate against non-parties. 4. [Sub. (4) deleted by Section 2 of Act No. 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 in the area in respect of which the extension is sought; and 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. 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 an employer; and b. subsections (3)(c), (e) and (f) and (4) of this section will not apply. Chapter III: Collective Bargaining Part C: Bargaining Councils 33. Appointment and powers of designated agents of bargaining councils 1. The Minister may at the request of a bargaining council appoint any person as the designated agent of that bargaining council to help it enforce any collective agreement concluded in that bargaining council. 2. A bargaining council must provide each designated agent with a certificate signed by the secretary of the bargaining council stating that the agent has been appointed in terms of this Act as a designated agent of that bargaining council. 3. Within the registered scope of the bargaining council, a designated agent of the bargaining council has all the powers conferred on a commissioner by section 142, read with the changes required by the context, except the powers conferred by section 142(1)(c) and(d). Any reference in that section to the director for the purpose of this section, must be read as a reference to the secretary of the bargaining council. 4. The bargaining council may cancel the certificate provided to a designated agent in terms of subsection (2) and the agent then ceases to be a designated agent of the bargaining council and must immediately surrender the certificate to the secretary of the bargaining council. Chapter III: Collective Bargaining Part C: Bargaining Councils 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. Chapter III: Collective Bargaining Part D: Bargaining Councils in the Public Service 35. Bargaining councils in public service There will be a bargaining council for- a. the public service as a whole, to be known as the Public Service Co-ordinating Bargaining Council; and b. any sector within the public service that may be designated in terms of section 37. Chapter III: Collective Bargaining Part D: Bargaining Councils in the Public Service 36. Public Service Co-ordinating Bargaining Council 1. The Public Service Co-ordinating Bargaining Council must be established in accordance with Schedule 1. (Schedule 1 deals with the procedure for the establishment of the Public Service Co-ordinating Bargaining Council.). 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. Chapter III: Collective Bargaining Part D: Bargaining Councils in the Public Service 37. Bargaining councils in sectors in public service 1. The Public Service Co-ordinating Bargaining Council may designate a sector of the public service for the establishment of a bargaining council . 2. Despite subsection (1), the President, after consulting the Public Service Co-ordinating Bargaining Council, may designate a sector of the public service for the establishment of a bargaining council if the uniform rules, norms and standards applicable to the public service are not appropriate to regulate employment in that sector. 3. A bargaining council for a sector designated by- a. the Public Service Co-ordinating Bargaining Council must be established in terms of its constitution; b. the President must be established in terms of Schedule 1. 4. a. The President may designate a sector for the establishment of a bargaining council in respect of employees of the State or organs of the State but who are not employees engaged in the public service. b. A bargaining council must be established in respect of a sector designated by the President in terms of paragraph (a) and the provisions of item 3(4) to (10) of Schedule 1 will apply. c. A bargaining council established in terms of paragraph(b) will be deemed to be a bargaining council in the public service for the purposes of this Act. 5. A bargaining council established in terms of subsection (3) or (4) has exclusive jurisdiction in respect of matters that are specific to that sector and in respect of which the State as employer in that sector has the requisite authority to conclude collective agreements and resolve labour disputes. Chapter III: Collective Bargaining Part D: Bargaining Councils in the Public Service 38. Dispute resolution committee 1. The Minister for the Public Service and Administration, after consulting NEDLAC and the Public Service Co-ordinating Bargaining Council, must establish a dispute resolution committee under the auspices of the Commission, and appoint to that committee persons who have knowledge and experience of labour law and labour relations in the public service . 2. The functions of the dispute resolution committee are to resolve any jurisdictional dispute between the Public Service Co-ordinating Bargaining Council and any bargaining council contemplated in section 37(3), or between two or more bargaining councils of the latter type. 3. If there is a jurisdictional dispute between the Public Service Co-ordinating Bargaining Council and a bargaining council contemplated in section 37(3), or between two or more bargaining councils of the latter type, any party to the dispute may refer the dispute in writing to the dispute resolution committee. 4. The party who refers the dispute to the dispute resolution committee must satisfy that committee that a copy of the referral has been served on all other bargaining councils that are party to the dispute. 5. The dispute resolution committee must attempt to resolve the dispute as soon as possible through conciliation. 6. If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration by the dispute resolution committee. 7. The Minister for the Public Service and Administration must determine the remuneration and allowances and any other terms and conditions of appointment of committee members. The expenditure incurred for that purpose will be defrayed from public funds. Top of Form Chapter III: Collective Bargaining Part E: Statutory Councils 39. Application to establish statutory council 1. For the purposes of this Part- a. "representative trade union" means a registered trade union, or two or more registered trade unions acting jointly, whose members constitute at least 30 per cent of the employees in a sector and area ; and b. "representative employers' organisation" means a registered employers' organisation , or two or more registered employers' organisations acting jointly, whose members employ at least 30 per cent of the employees in a sector and area. 2. A representative trade union or representative employers' organization 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-(The provisions of section 29 deal with the procedure for the registration of a bargaining council.) 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; 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. Chapter III: Collective Bargaining Part E: Statutory Councils 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' organization 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. Chapter III: Collective Bargaining Part E: Statutory 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 organizations to facilitate the conclusion of agreements on- a. the registered trade unions to be parties to the statutory council ; b. the registered employers' organizations 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' organizations to be parties to the statutory council, the Minister must admit as parties to the statutory council the agreed registered employers ' organizations. 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' organization 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' organizations 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. Chapter III: Collective Bargaining Part E: Statutory Councils 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. Chapter III: Collective Bargaining Part E: Statutory Councils 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. 4. a. From the date on which the Labour Relations Amendment Act, 1998, comes in to 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 sunsection (1)(c) after the coming into operation of the Labour Relations Amendment Act, 1998. Chapter III: Collective Bargaining Part E: Statutory Councils 44. Ministerial determinations 1. A statutory council that is not sufficiently representative within its registered scope may submit a collective agreement on any of the matters mentioned in section 43(1)(a), (b) or (c) to the Minister. The Minister must treat the collective agreement as a recommendation made by the wage board in terms of the Wage Act . 2. The Minister may promulgate the statutory council's recommendations as a determination under the Wage Act if satisfied that the statutory council has complied with sections 7 and 9 of the Wage Act. For that purpose the provisions of sections 7 and 9 to 12 of the Wage Act, read with the changes required by the context, apply to the statutory council as if it was the wage board. 3. The determination must provide for- a. exemptions to be considered by an independent body appointed by the Minister; and b. criteria for exemption that are fair and promote the primary objects of this Act . 4. The Minister may in a determination impose a levy on all employers and employees in the registered scope of the statutory council to defray the operational costs of the statutory council. 5. A statutory council may submit a proposal to the Minister to amend or extend the period of any determination and the Minister may make the amendment to the determination or extend the period by notice in the Government Gazette. Chapter III: Collective Bargaining Part E: Statutory Councils 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. Chapter III: Collective Bargaining Part E: Statutory Councils 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' organizations 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. Chapter III: Collective Bargaining Part E: Statutory Councils 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. Chapter III: Collective Bargaining Part E: Statutory Councils 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). (Section 29 deals with the procedure for the registration of bargaining councils.) 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. Chapter III: Collective Bargaining Part F: General Provisions concerning Councils 49. Representativeness of council 1. When considering the representativeness of the parties to a council , or parties seeking registration of a council, the registrar , having regard to the nature of the sector and the situation of the area in respect of which registration is sought, may regard the parties to a council as representative in respect of the whole area, even if a trade union or employers organisation that is a party to the council has no members in part of that area. 2. The registrar- a. after consultation with a council, must fix a date for an annual review of the representativeness of the council; b. must conduct that review once every year by that date; and c. if satisfied that the council remains representative, must issue a certificate of representativeness that must include the following particulars- i. the number of employees employed within the registered scope of the council; ii. the number of those employees who are members of the trade unions that are party to the council; and iii. the number of employees employed within the registered scope of the council by the members of the employers' organisations that are party to the council. 3. A certificate of representativeness issued in terms of subsection (2) is sufficient proof of the representativeness of the council for the following year. Chapter III: Collective Bargaining Part F: General Provisions concerning Councils 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. Chapter III: Collective Bargaining Part F: General Provisions concerning Councils 51. Dispute resolution functions of council 1. In this section, dispute means any dispute about a matter of mutual interest between- a. on the one side- i. one or more trade unions; ii. one or more employees; or iii. one or more trade unions and one or more employees; and b. on the other side- i. one or more employers' organisations; ii. one or more employers; or iii. one or more employers' organizations 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 subparagragh (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. 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- The following disputes must be referred to a council: disputes about the interpretation or application of the provisions of Chapter II (see section 9); disputes that form the subject matter of a proposed strike or lock-out (see section 64(1)); disputes in essential services (see section 74); disputes about unfair dismissals (see section 191); disputes about severance pay (see section 196); and disputes about unfair labour practices (see item 2 in Schedule 7). The following disputes may not be referred to a council: disputes about organizational rights (see sections 16 , 21 and 22); disputes about collective agreements where the agreement does not provide for a procedure or the procedure is inoperative or any party frustrates the resolution of the dispute (see section 24(2) to (5)); disputes about agency shops and closed shops (see section 24(6) and (7) and section 26(11)); disputes about determinations made by the Minister in respect of proposals made by a statutory council (see section 45); disputes about the interpretation or application of collective agreements of a council whose registration has been cancelled (see section 61(5) to (8)); disputes about the demarcation of sectors and areas of councils (see section 62); disputes about the interpretation or application of Part C (bargaining councils), Part D (bargaining councils in the public service ), Part E (statutory councils) and Part F. (general provisions concerning councils) (see section 63); disputes concerning pickets (see section 69(8) to (10)); disputes about proposals that are the subject of joint decision-making in workplace forums (see section 86); disputes about the disclosure of information to workplace forums (see section 89); and disputes about the interpretation or application of the provisions of Chapter V which deals with workplace forums (see section 94). a. through conciliation; and b. if the dispute remains unresolved after conciliation, the council must arbitrate the dispute if- 1. 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. Chapter III: Collective Bargaining Part F: General Provisions concerning Councils 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. Chapter III: Collective Bargaining Part F: General Provisions concerning Councils 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 No. 66 of 1975); c. a registered unit trust; or d. any other manner approved by the registrar. Chapter III: Collective Bargaining Part F: General Provisions concerning Councils 54. Duty to keep records and provide information to registrar 1. In addition to the records required by section 53(4), every council must keep minutes of its meetings, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate. 2. Every council must provide to the registrar - a. within 30 days of receipt of its auditor's report, a certified copy of that report and of the financial statements; b. within 30 days of receipt of a written request by the registrar, an explanation of anything relating to the auditor's report or the financial statements; c. upon registration, an address within the Republic at which it will accept service of any document that is directed to it; d. within 30 days of any appointment or election of its national office-bearers, the names and work addresses of those office-bearers, even if their appointment or election did not result in any changes to its office-bearers; and e. 30 days before a new address for service of documents will take effect, notice of that change of address. 3. Every council must provide to the Commission- a. certified copies of every collective agreement concluded by the parties to the council, within 30 days of the signing of that collective agreement; and b. the details of the admission and resignation of parties to the Council within 30 days of their admission or resignation. Chapter III: Collective Bargaining Part F: General Provisions concerning Councils 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.. 2. A committee contemplated by subsection (1) must consist of equal numbers of representatives of employees and employers. Chapter III: Collective Bargaining Part F: General Provisions concerning Councils 56. Admission of parties to council See flow diagram No. 5 in Schedule 4. 1. Any registered trade union or registered employers' organization 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' organization, 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. Chapter III: Collective Bargaining Part F: General Provisions concerning Councils 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. Chapter III: Collective Bargaining Part F: General Provisions concerning 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. 2. The provisions of section 29 apply, read with the changes required by the context, to a variation in terms of this section. Top of Form Chapter III: Collective Bargaining Part F: General Provisions concerning Councils 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 bya 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. 7. A pension, provident or medical aid scheme or fund registered under the provisions of those laws after its application in terms of subsection (6)(c), will continue to be a separate scheme or fund despite the winding-up of the council by which it was established. 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 sunsection (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. Chapter III: Collective Bargaining Part F: General Provisions concerning Councils 60. Winding-up of council by reason of insolvency Any person who seeks to wind-up a council by reason of insolvency must comply with the Insolvency Act, 1936 (Act No. 24 of 1936), and, for the purposes of this section, any reference to the court in that Act must be interpreted as referring to the Labour Court. Chapter III: Collective Bargaining Part F: General Provisions concerning Councils 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. Chapter III: Collective Bargaining Part F: General Provisions concerning Councils 62. Disputes about demarcation between sectors and areas 1. Any registered trade union , employer, employee, registered employers' organization or council that has a direct or indirect interest in the application contemplated in this section may apply to the Commission in the prescribed form and manner for a determination as to- a. whether any employee , employer, class of employees or class of employers, is or was employed or engaged in a sector or area ; b. whether any provision in any arbitration award, collective agreement or wage determination made in terms of the Wage Act is or was binding on any employee, employer, class of employees or class of employers. 2. If two or more councils settle a dispute about a question contemplated in subsection (1)(a) or (b), the councils must inform the Minister of the provisions of their agreement and the Minister may publish a notice in the Government Gazette stating the particulars of the agreement. 3. In any proceedings in terms of this Act before the Labour Court, if a question contemplated in subsection (1)(a) or (b) is raised, the Labour Court must adjourn those proceedings and refer the question to the Commission for determination if the Court is satisfied that- a. the question raised- i. has not previously been determined by arbitration in terms of this section; and ii. is not the subject of an agreement in terms of subsection (2); and b. the determination of the question raised is necessary for the purposes of the proceedings. (3A) In any proceedings before an arbitrator about the interpretation of 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. 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. Chapter III: Collective Bargaining 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 b. the dispute is otherwise to be dealt with in terms of Parts A and C to F. 2. The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute. 3. The Commission must attempt to resolve the dispute through conciliation. 4. If the dispute remains unresolved, any party to the dispute may refer it to the Labour Court for adjudication. Chapter IV: Strikes and Lock-outs 64. Right to strike and recourse to lock-out 1. Every employee has the right to strike and every employer has recourse to lock-out if- a. the issue in dispute has been referred to a council or to the Commission as required by this Act , and- i. a certificate stating that the dispute remains unresolved has been issued; or ii. a period of 30 days, or any extension of that period agreed to between the parties to the dispute, has elapsed since the referral was received by the council or the Commission; and after that- b. in the case of a proposed strike, at least 48 hours' notice of the commencement of the strike, in writing, has been given to the employer, unless- i. the issue in dispute relates to a collective agreement to be concluded in a Council, in which case, notice must have been given to that council; or ii. the employer is a member of an employers' organisation that is a party to the dispute, in which case, notice must have been given to that employers' organization; 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)(c) before notice is given in terms of subsection (1)(b) or (c). A refusal to bargain includes- a. a refusal- i. to recognise a trade union as a collective bargaining agent; or ii. to agree to establish a bargaining council; b. a withdrawal of recognition of a collective bargaining agent; 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. Chapter IV: Strikes and Lock-outs 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. (Essential services, agreed minimum services and maintenance services are regulated in sections 71 to 75.) 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. (These sections deal with organisational rights.) 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. Chapter IV: Strikes and Lock-outs 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. 2. No person may take part in a secondary strike unless- a. the strike that is to be supported complies with the provisions of sections 64 and 65; b. the employer of the employees taking part in the secondary strike or, where appropriate, the employers' organisation of which that employer is a member, has received written notice of the proposed secondary strike at least seven days prior to its commencement; and c. the nature and extent of the secondary strike is reasonable in relation to the possible direct or indirect effect that the secondary strike may have on the business of the primary employer. 3. Subject to section 68(2) and (3), a secondary employer may apply to the Labour Court for an interdict to prohibit or limit a secondary strike that contravenes subsection (2). 4. Any person who is a party to proceedings in terms of subsection (3), or the Labour Court, may request the Commission to conduct an urgent investigation to assist the Court to determine whether the requirements of subsection (2)(c) have been met. 5. On receipt of a request made in terms of subsection (4), the Commission must appoint a suitably qualified person to conduct the investigation, and then submit, as soon as possible, a report to the Labour Court. 6. The Labour Court must take account of the Commission's report in terms of subsection (5) before making an order. Chapter IV: Strikes and Lock-outs 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 offense. 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 offense. Chapter IV: Strikes and Lock-outs 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- (See flow diagram No. 6 in Schedule 4) i. any person from participating in a strike or any conduct in contemplation or in furtherance of a strike; or ii. any person from participating in a lock-out or any conduct in contemplation or in furtherance of a lock-out; b. to order the payment of just and equitable compensation for any loss attributable to the strike or lock-out, having regard to- i. whether- (aa) attempts were made to comply with the provisions of this Chapter and the extent of those attempts; (bb) the strike or lock-out was premeditated; (cc) the strike or lock-out was in response to unjustified conduct by another party to the dispute ; and (dd) there was compliance with an order granted in terms of paragraph (a); ii. the interests of orderly collective bargaining; iii. the duration of the strike or lock-out; and iv. the financial position of the employer, trade union or employees respectively. 2. The Labour Court may not grant any order in terms of subsection (1)(a) unless 48 hours' notice of the application has been given to the respondent: However, the Court may permit a shorter period of notice if- a. the applicant has given written notice to the respondent of the applicant's intention to apply for the granting of an order; b. the respondent has been given a reasonable opportunity to be heard before a decision concerning that application is taken; and c. the applicant has shown good cause why a period shorter than 48 hours should be permitted. 3. Despite subsection (2), if written notice of the commencement of the proposed strike or lock-out was given to the applicant at least 10 days before the commencement of the proposed strike or lock-out, the applicant must give at least five days' notice to the respondent of an application for an order in terms of subsection (1)(a). 4. Subsections (2) and (3) do not apply to an employer or an employee engaged in an essential service or a maintenance service. 5. Participation in a strike that does not comply with the provisions of this Chapter, or conduct in contemplation or in furtherance of that strike, may constitute a fair reason for dismissal . In determining whether or not the dismissal is fair, the Code of Good Practice: Dismissal in Schedule 8 must be taken into account. Chapter IV: Strikes and Lock-outs 69. Picketing See flow diagram No. 7 in Schedule 4. 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. 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. Chapter IV: Strikes and Lock-outs 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. 2. The functions of the essential services committee are- a. to conduct investigations as to whether or not the whole or a part of any service is an essential service, and then to decide whether or not to designate the whole or a part of that service as an essential service ; b. to determine disputes as to whether or not the whole or a part of any service is an essential service; and c. to determine whether or not the whole or a part of any service is a maintenance service. (A maintenance service is defined in section 75.) 3. At the request of a bargaining council , the essential services committee must conduct an investigation in terms of subsection (2)(a). Chapter IV: Strikes and Lock-outs 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. (These notices are reproduced here .) 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. Chapter IV: Strikes and Lock-outs 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. Chapter IV: Strikes and Lock-outs 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. Chapter IV: Strikes and Lock-outs 74. Disputes in essential services (See flow diagram No. 8 in Schedule 4.) 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. Chapter IV: Strikes and Lock-outs 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. 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. 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. 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. 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. Chapter IV: Strikes and Lock-outs 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. Chapter IV: Strikes and Lock-outs 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 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. [deleted by Labour Relations Amendment Act, 1996, Act No 42 of 1996] ii. represent the employer in dealings with the workplace forum ; or iii. determine policy and take decisions on behalf of the employer that may be in conflict with the representation of employees in the workplace; and b. "representative trade union" means a registered trade union, or two or more registered trade unions acting jointly, that have as members the majority of the employees employed by an employer in a workplace. Chapter V: Workplace Forums 79. General functions of workplace forum A workplace forum established in terms of this Chapter- a. must seek to promote the interests of all employees in the workplace, whether or not they are trade union members; b. must seek to enhance efficiency in the workplace; c. is entitled to be consulted by the employer, with a view to reaching consensus, about the matters referred to in section 84; and d. is entitled to participate in joint decision-making about the matters referred to in section 86. Chapter V: Workplace Forums 80. Establishment of workplace forum 1. A workplace forum may be established in any workplace in which an employer employs more than 100 employees. 2. Any representative trade union may apply to the Commission in the prescribed form for the establishment of a workplace forum. 3. The applicant must satisfy the Commission that a copy of the application has been served on the employer. 4. The Commission may require further information in support of the application. 5. The Commission must- a. consider the application and any further information provided by the applicant; and b. consider whether, in the workplace in respect of which the application has been made- i. the employer employs 100 or more employees; ii. the applicant is a representative trade union; and iii. there is no functioning workplace forum established in terms of this Chapter. 6. If satisfied that the requirements of subsection (5) are met, the Commission must appoint a commissioner to assist the parties to establish a workplace forum by collective agreement or, failing that, to establish a workplace forum in terms of this Chapter. 7. The commissioner must convene a meeting with the applicant, the employer and any registered trade union that has members employed in the workplace, in order to facilitate the conclusion of a collective agreement between those parties, or at least between the applicant and the employer. 8. If a collective agreement is concluded, the provisions of this Chapter do not apply. 9. If a collective agreement is not concluded, the commissioner must meet the parties referred to in subsection (7) in order to facilitate agreement between them, or at least between the applicant and the employer, on the provisions of a constitution for a workplace forum in accordance with this Chapter, taking into account the guidelines in Schedule 2. 10. If no agreement is reached on any of the provisions of a constitution, the commissioner must establish a workplace forum and determine the provisions of the constitution in accordance with this Chapter, taking into account the guidelines in Schedule 2. 11. After the workplace forum has been established, the commissioner must set a date for the election of the first members of the workplace forum and appoint an election officer to conduct the election. 12. The provisions of this section do not apply to the public service . The establishment of workplace forums in the public service will be regulated in a Schedule promulgated by the Minister for the Public Service and Administration in terms of section 207(4). Chapter V: Workplace Forums 81. Trade union based workplace forum 1. If a representative trade union is recognised in terms of a collective agreement by an employer for the purposes of collective bargaining in respect of all employees in a workplace , that trade union may apply to the Commission in the prescribed form for the establishment of a workplace forum . 2. The applicant may choose the members of the workplace forum from among its elected representatives in the workplace. 3. If the applicant makes this choice, the provisions of this Chapter apply, except for section 80(11) and section 82(1)(b) to (m). 4. The constitution of the applicant governs the nomination, election and removal from office of elected representatives of the applicant in the workplace. 5. A workplace forum constituted in terms of this section will be dissolved if- a. the collective agreement referred to in subsection (1) is terminated; b. the applicant is no longer a representative trade union. 6. The provisions of this section do not apply to the public service . Chapter V: Workplace Forums 82. Requirements for constitution of workplace forum 1. The constitution of every workplace forum must- a. establish a formula for determining the number of seats in the workplace forum; b. establish a formula for the distribution of seats in the workplace forum so as to reflect the occupational structure of the workplace ; c. provide for the direct election of members of the workplace forum by the employees in the workplace; d. provide for the appointment of an employee as an election officer to conduct elections and define that officer's functions and powers; e. provide that an election of members of the workplace forum must be held not later than 24 months after each preceding election; f. provide that if another registered trade union becomes representative, it may demand a new election at any time within 21 months after each preceding election; g. provide for the procedure and manner in which elections and ballots must be conducted; h. provide that any employee, including any former or current member of the workplace forum, may be nominated as a candidate for election as a member of the workplace forum by- i. any registered trade union with members employed in the work-place; or ii. a petition signed by not less than 20 per cent of the employees in the workplace or 100 employees, whichever number of employees is the smaller; i. provide that in any ballot every employee is entitled- i. to vote by secret ballot; and ii. to vote during working hours at the employer's premises; j. provide that in an election for members of the workplace forum every employee is entitled, unless the constitution provides otherwise- i. to cast a number of votes equal to the number of members to be elected; and ii. to cast one or more of those votes in favour of any candidate; k. establish the terms of office of members of the workplace forum and the circumstances in which a member must vacate that office; l. establish the circumstances and manner in which members of the workplace forum may be removed from office, including the right of any representative trade union that nominated a member for election to remove that member at any time; m. establish the manner in which vacancies in the workplace forum may be filled, including the rules for holding by-elections; n. establish the circumstances and manner in which the meetings referred to in section 83 must be held; o. provide that the employer must allow the election officer reasonable time off with pay during working hours to prepare for and conduct elections; p. provide that the employer must allow each member of the workplace forum reasonable time off with pay during working hours to perform the functions of a member of the workplace forum and to receive training relevant to the performance of those functions; q. require the employer to take any steps that are reasonably necessary to assist the election officer to conduct elections; r. require the employer to provide facilities to enable the workplace forum to perform its functions; s. provide for the designation of full-time members of the workplace forum if there are more than 1000 employees in a workplace; t. provide that the workplace forum may invite any expert to attend its meetings, including meetings with the employer or the employees, and that an expert is entitled to any information to which the workplace forum is entitled and to inspect and copy any document that members of the workplace forum are entitled to inspect and copy; u. provide that office-bearers or officials of the representative trade union may attend meetings of the workplace forum including meetings with the employer or the employees; v. provide that the representative trade union and the employer, by agreement, may change the constitution of the workplace forum; and w. establish the manner in which decisions are to be made. 2. The constitution of a workplace forum may- a. establish a procedure that provides for the conciliation and arbitration of proposals in respect of which the employer and the workplace forum do not reach consensus; b. establish a co-ordinating workplace forum to perform any of the general functions of a workplace forum and one or more subsidiary workplace forums to perform any of the specific functions of a workplace forum; and c. include provisions that depart from sections 83 to 92. 3. The constitution of a workplace forum binds the employer. 4. The Minister for the Public Service and Administration may amend the requirements for a constitution in terms of this section for workplace forums in the public service by a schedule promulgated in terms of section 207(4). Chapter V: Workplace Forums 83. Meetings of workplace forum 1. There must be regular meetings of the workplace forum . 2. There must be regular meetings between the workplace forum and the employer, at which the employer must- a. present a report on its financial and employment situation, its performance since the last report and its anticipated performance in the short term and in the long term; and b. consult the workplace forum on any matter arising from the report that may affect employees in the workplace . 3. a. There must be meetings between members of the workplace forum and the employees employed in the workplace at regular and appropriate intervals. At the meetings with employees, the workplace forum must report on- i. its activities generally; ii. matters in respect of which it has been consulted by the employer; and iii. matters in respect of which it has participated in joint decision-making with the employer. b. Each calendar year, at one of the meetings with the employees, the employer must present an annual report of its financial and employment situation, its performance generally and its future prospects and plans. c. The meetings of employees must be held during working hours at a time and place agreed upon by the workplace forum and the employer without loss of pay on the part of the employees. Chapter V: Workplace Forums 84. Specific matters for consultation 1. Unless the matters for consultation are regulated by a collective agreement with the representative trade union, a workplace forum is entitled to be consulted by the employer about proposals relating to any of the following matters- a. restructuring the workplace , including the introduction of new technology and new work methods; b. changes in the organisation of work; c. partial or total plant closures; d. mergers and transfers of ownership in so far as they have an impact on the employees; e. the dismissal of employees for reasons based on operational requirements ; f. exemptions from any collective agreement or any law; g. job grading; h. criteria for merit increases or the payment of discretionary bonuses; i. education and training; j. product development plans; and k. export promotion. 2. A bargaining council may confer on a workplace forum the right to be consulted about additional matters in workplaces that fall within the registered scope of the bargaining council. 3. A representative trade union and an employer may conclude a collective agreement conferring on the workplace forum the right to be consulted about any additional matters in that workplace. 4. Any other law may confer on a workplace forum the right to be consulted about additional matters. 5. Subject to any applicable occupational health and safety legislation, a representative trade union and an employer may agree- a. that the employer must consult with the workplace forum with a view to initiating, developing, promoting, monitoring and reviewing measures to ensure health and safety at work; b. that a meeting between the workplace forum and the employer constitutes a meeting of a health and safety committee required to be established in the workplace by that legislation; and c. that one or more members of the workplace forum are health and safety representatives for the purposes of that legislation. 6. For the purposes of workplace forums in the public service- a. the collective agreement referred to in subsection(1) is a collective agreement concluded in a bargaining council ; b. a bargaining council may remove any matter from the list of matters referred to in subsection (1) in respect of workplaces that fall within its registered scope; and c. subsection (3) does not apply. Chapter V: Workplace Forums 85. Consultation 1. Before an employer may implement a proposal in relation to any matter referred to in section 84(1), the employer must consult the workplace forum and attempt to reach consensus with it. 2. The employer must allow the workplace forum an opportunity during the consultation to make representations and to advance alternative proposals. 3. The employer must consider and respond to the representations or alternative proposals made by the workplace forum and, if the employer does not agree with them, the employer must state the reasons for disagreeing. 4. If the employer and the workplace forum do not reach consensus, the employer must invoke any agreed procedure to resolve any differences before implementing the employer's proposal. Chapter V: Workplace Forums 86. Joint decision-making 1. Unless the matters for joint decision-making are regulated by a collective agreement with the representative trade union, an employer must consult and reach consensus with a workplace forum before implementing any proposal concerning- a. disciplinary codes and procedures; b. rules relating to the proper regulation of the workplace in so far as they apply to conduct not related to the work performance of employees; c. measures designed to protect and advance persons disadvantaged by unfair discrimination; and d. changes by the employer or by employer-appointed representatives on trusts or boards of employer-controlled schemes, to the rules regulating social benefit schemes. 2. A representative trade union and an employer may conclude a collective agreement: a. conferring on the workplace forum the right to joint decision-making in respect of additional matters in that workplace; b. removing any matter referred to in subsection (l)(a) to (d) from the list of matters requiring joint decision-making. 3. Any other law may confer on a workplace forum the right to participate in joint decision-making about additional matters. 4. If the employer does not reach consensus with the workplace forum, the employer may- a. refer the dispute to arbitration in terms of any agreed procedure; or b. if there is no agreed procedure, refer the dispute to the Commission. 5. The employer must satisfy the Commission that a copy of the referral has been served on the chairperson of the workplace forum. 6. The Commission must attempt to resolve the dispute through conciliation. 7. If the dispute remains unresolved, the employer may request that the dispute be resolved through arbitration. (See flow diagram No. 9 in Schedule 4.) 8. a. An arbitration award is about a proposal referred to in Subsection (1)(d) takes effect 30 days after the date of the award. b. Any representative on the trust or board may apply to the Labour Court for an order declaring that the implementation of the award constitutes a breach of a fiduciary duty on the part of that representative. c. Despite paragraph(a), the award will not take effect pending the determination by the Labour Court of an application made in terms of paragraph (b). 9. For the purposes of workplace forums in the public service , a collective agreement referred to in subsections (1) and (2) is a collective agreement concluded in a bargaining council . Chapter V: Workplace Forums 87. Review at request of newly established workplace forum 1. After the establishment of a workplace forum , the workplace forum may request a meeting with the employer to review- a. criteria for merit increases or the payment of discretionary bonuses; b. disciplinary codes and procedures; and c. rules relating to the proper regulation of the workplace in so far as they apply to conduct not related to work performance of employees in the workplace . 2. The employer must submit its criteria, disciplinary codes and procedures, and rules, referred to in subsection (1), if any, in writing to the workplace forum for its consideration. 3. A review of the criteria must be conducted in accordance with the provisions of Section 85. 4. A review of the disciplinary codes and procedures, and rules, must be conducted in accordance with the provisions of section 86(2) to (7), except that, in applying section 86(4), either the employer or the workplace forum may refer a dispute between them to arbitration or to the Commission. Chapter V: Workplace Forums 88. Matters affecting more than one workplace forum in an employer's operation 1. If the employer operates more than one workplace and separate workplace forums have been established in two or more of those workplaces, and if a matter has been referred to arbitration in terms of section 86(4)(a) or (b), or by a workplace forum in terms of section 87(4), the employer may give notice in writing to the chairpersons of all the workplace forums that no other workplace forum may refer a matter that is substantially the same as the matter referred to arbitration. 2. If the employer gives notice in terms of subsection (1)- a. each workplace forum is entitled to make representations and participate in the arbitration proceedings; and b. the arbitration award is binding on the employer and the employees in each workplace. Chapter V: Workplace Forums 89. Disclosure of information 1. An employer must disclose to the workplace forum all relevant information that will allow the workplace forum to engage effectively in consultation and joint decision-making. 2. An employer is not required to disclose information- a. that is legally privileged; b. that the employer cannot disclose without contravening a prohibition imposed on the employer by any law or order of any court; c. that is confidential and, if disclosed, may cause substantial harm to an employee or the employer; or d. that is private personal information relating to an employee, unless that employee consents to the disclosure of that information. (2A) The employer must notify the workplace forum in writing if of the view that any information disclosed in terms of subsection (1) is confidential. 3. If there is a dispute about the disclosure of information, any party to the dispute may refer the dispute in writing to the Commission. 4. The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute. 5. The Commission must attempt to resolve the dispute through conciliation. 6. If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration. 7. In any dispute about the disclosure of information contemplated in subsection (3), the commissioner must first decide whether or not the information is relevant. 8. If the commissioner decides that the information is relevant and if it is information contemplated in subsection (2)(c) or (d), the commissioner must balance the harm that the disclosure is likely to cause to an employee or employer against the harm that the failure to disclose the information is likely to cause to the ability of the workplace forum to engage effectively in consultation and joint decision-making . 9. If the commissioner decides that the balance of harm favours the disclosure of the information, the commissioner may order the disclosure of the information on terms designed to limit the harm likely to be caused to the employee or employer. 10. When making an order in terms of subsection (9), the commissioner must take into account any breach of confidentiality in respect of information disclosed in terms of this section at that workplace and may refuse to order the disclosure of the information or any other confidential information, that might otherwise be disclosed, for a period specified in the arbitration award. Chapter V: Workplace Forums 90. Inspection and copies of documents 1. Any documented information that is required to be disclosed by the employer in terms of section 89 must be made available on request to the members of the workplace forum for inspection. 2. The employer must provide copies of the documentation on request to the members of the workplace forum. Chapter V: Workplace Forums 91. Breach of confidentiality In any dispute about an alleged breach of confidentiality, the commissioner may order that the right to disclosure of information in that workplace be withdrawn for a period specified in the arbitration award. Chapter V: Workplace Forums 92. Full-time members of workplace forum 1. In a workplace in which 1000 or more employees are employed, the members of the workplace forum may designate from their number one full-time member. 2. a. The employer must pay a full-time member of the workplace forum the same remuneration that the member would have earned in the position the member held immediately before being designated as a full-time member. b. When a person ceases to be a full-time member of a workplace forum the employer must reinstate that person to the position that person held immediately before election or appoint that person to any higher position to which, but for the election, that person would have advanced. Chapter V: Workplace Forums 93. Dissolution of workplace forum 1. A representative trade union in a workplace may request a ballot to dissolve a Workplace forum. 2. If a ballot to dissolve a workplace forum has been requested, an election officer must be appointed in terms of the constitution of the workplace forum. 3. Within 30 days of the request for a ballot to dissolve the workplace forum, the election officer must prepare and conduct the ballot. 4. If more than 50 per cent of the employees who have voted in the ballot support the dissolution of the workplace forum the workplace forum must be dissolved. Chapter V: Workplace Forums 94. Disputes about workplace forums 1. Unless a collective agreement or this Chapter provides otherwise, any party to a dispute about the interpretation or application of this Chapter may refer that dispute to the Commission in writing, if that party is- a. one or more employees employed in the workplace ; (aA) a workplace forum ; b. a registered trade union with members employed in the workplace; c. the representative trade union; or d. the employer. 2. The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute. 3. The Commission must attempt to resolve the dispute through conciliation. 4. If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration. Top of Form Bottom of Form Chapter VI: Trade Unions and Employers' Organisations Part A: Registration and Regulation of Trade Unions and Employers' Organisations 95. Requirements for registration of trade unions or employers' organisations 1. Any trade union may apply to the registrar for registration if- a. it has adopted a name that meets the requirements of subsection (4); b. it has adopted a constitution that meets the requirements of subsections (5) and (6); c. it has an address in the Republic ; and d. it is independent. 2. A trade union is independent if- a. it is not under the direct or indirect control of any employer or employers' organization; and b. it is free of any interference or influence of any kind from any employer or employers' organization. 3. Any employers' organization may apply to the registrar for registration if- a. it has adopted a name that meets the requirements of subsection (4); b. it has adopted a constitution that meets the requirements of subsections (5) and (6), and c. it has an address in the Republic . 4. Any trade union or employers' organisation that intends to register may not have a name or shortened form of the name that so closely resembles the name or shortened form of the name of another trade union or employers' organization that it is likely to mislead or cause confusion. 5. The constitution of any trade union or employers' organisation that intends to register must- a. state that the trade union or employers ' organisation is an association not for gain; b. prescribe qualifications for, and admission to, membership; c. establish the circumstances in which a member will no longer be entitled to the benefits of membership; d. provide for the termination of membership; e. provide for appeals against loss of the benefits of membership or against termination of membership, prescribe a procedure for those appeals and determine the body to which those appeals may be made; f. provide for membership fees and the method for determining membership fees and other payments by members; g. prescribe rules for the convening and conducting of meetings of members and meetings of representatives of members, including the quorum required for, and the minutes to be kept of, those meetings; h. establish the manner in which decisions are to be made; i. establish the office of secretary and define its functions; j. provide for other office-bearers, officials and, in the case of a trade union, trade union representatives, and define their respective functions; k. prescribe a procedure for nominating or electing office-bearers and, in the case of a trade union, trade union representatives; l. prescribe a procedure for appointing, or nominating and electing, officials; m. establish the circumstances and manner in which office-bearers, officials and, in the case of a trade union, trade union representatives, may be removed from office; n. provide for appeals against removal from office of office-bearers, officials and, in the case of a trade union, trade union representatives, prescribe a procedure for those appeals and determine the body to which those appeals may be made; o. establish the circumstances and manner in which a ballot must be conducted. p. provide that the trade union or employers' organisation , before calling a strike or lock-out , must conduct a ballot of those of its members in respect of whom it intends to call the strike or lock-out; q. provide that members of the trade union or employers' organisation may not be disciplined or have their membership terminated for failure or refusal to participate in a strike or lock-out if- i. no ballot was held about the strike or lock-out; or ii. a ballot was held but a majority of the members who voted did not vote in favour of the strike or lock-out; r. provide for banking and investing its money; s. establish the purposes for which its money may be used; t. provide for acquiring and controlling property; u. determine a date for the end of its financial year; v. prescribe a procedure for changing its constitution; and w. prescribe a procedure by which it may resolve to wind up. 6. The constitution of any trade union or employers' organization which intends to register may not include any provision that discriminates directly or indirectly against any person on the grounds of race or sex. Chapter VI: Trade Unions and Employers' Organisations Part A: Registration and Regulation of Trade Unions and Employers' Organisations 96. Registration of trade unions or employers' organisations 1. Any trade union or employers' organisation may apply for registration by submitting to the registrar - a. a prescribed form that has been properly completed; b. a copy of its constitution; and c. any other information that may assist the registrar to determine whether or not the trade union or employers ' organization meets the requirements for registration. 2. The registrar may require further information in support of the application. 3. The registrar- a. must consider the application and any further information provided by the applicant; and b. if satisfied that the applicant meets the requirements for registration, must, register the applicant by entering the applicant's name in the register of trade unions or the register of employers' organisations. 4. If the registrar is not satisfied that the applicant meets the requirements for registration, the registrar- a. must send the applicant a written notice of the decision and the reasons for that decision; and b. in that notice, must inform the applicant that it has 30 days from the date of the notice to meet those requirements. 5. If, within that 30-day period, the applicant meets the requirements for registration, the registrar must register the applicant by entering the applicant's name in the appropriate register. 6. If, within that 30-day period, an applicant has attempted to meet the requirements for registration but the registrar concludes that the applicant has failed to do so the registrar must- a. refuse to register the applicant; and b. notify the applicant in writing of that decision. 7. After registering the applicant, the registrar must- a. issue a certificate of registration in the applicant's name; and b. send the certificate and a certified copy of the registered constitution to the applicant. Chapter VI: Trade Unions and Employers' Organisations Part A: Registration and Regulation of Trade Unions and Employers' Organisations 97. Effect of registration of trade union or employers' organisation 1. A certificate of registration is sufficient proof that a registered trade union or registered employers' organisation is a body corporate. 2. The fact that a person is a member of a registered trade union or a registered employers' organisation does not make that person liable for any of the obligations or liabilities of the trade union or employers' organization. 3. A member, office-bearer or official of a registered trade union or a registered employers' organisation or, in the case of a trade union , a trade union representative is not personally liable for any loss suffered by any person as a result of an act performed or omitted in good faith by the member, office-bearer, official or trade union representative while performing their functions for or on behalf of the trade union or employers' organization. 4. Service of any document directed to a registered trade union or employers' organization at the address most recently provided to the registrar will be for all purposes service of that document on that trade union or employers' organization. Chapter VI: Trade Unions and Employers' Organisations Part A: Registration and Regulation of Trade Unions and Employers' Organisations 98. Accounting records and audits 1. Every registered trade union and every registered employers ' organization must, to the standards of generally accepted accounting practice, principles and procedures: a. keep books and records of its income, expenditure, assets and liabilities; and b. within six months after the end of each financial year, prepare financial statements, including at least- i. a statement of income and expenditure for the previous financial year; and ii. a balance sheet showing its assets, liabilities and financial position as at the end of the previous financial year. 2. Every registered trade union and every registered employers' organisation must arrange for an annual audit of its books and records of account and its financial statements by an auditor who must- a. conduct the audit in accordance with generally accepted auditing standards; and b. report in writing to the trade union or employers' organisation and in that report- i. express an opinion as to whether or not the trade union or employers' organization has complied with those provisions of its constitution relating to financial matters; and ii. if the trade union is a party to an agency shop agreement referred to in section 25 or a closed shop agreement referred to in section 26 express an opinion as to whether or not the trade union has complied with the provisions of those sections. 3. Every registered trade union and every registered employers' organisation must- a. make the financial statements and the auditor's report available to its members for inspection; and b. submit those statements and the auditor's report to a meeting or meetings of its members or their representatives as provided for in its constitution. 4. Every registered trade union and every registered employers' organisation must preserve each of its books of account, supporting vouchers, records of subscriptions or levies paid by its members, income and expenditure statements, balance sheets, and auditors reports, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate. Chapter VI: Trade Unions and Employers' Organisations Part A: Registration and Regulation of Trade Unions and Employers' Organisations 99. Duty to keep records In addition to the records required by section 98, every registered trade union and every registered employers' organization must keep- a. a list of its members; b. the minutes of its meetings, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate; and c. the ballot papers for a period of three years from the date of every ballot. Chapter VI: Trade Unions and Employers' Organisations Part A: Registration and Regulation of Trade Unions and Employers' Organisations 100. Duty to provide information to registrar Every registered trade union and every registered employers' organisation must provide to the registrar - a. by 31 March each year, a statement, certified by the secretary that it accords with its records, showing the number of members as at 31 December of the previous year and any other related details that may be required by the registrar; b. within 30 days of receipt of its auditor's report, a certified copy of that report and of the financial statements; c. within 30 days of receipt of a written request by the registrar, an explanation of anything relating to the statement of membership, the auditor's report or the financial statements; d. within 30 days of any appointment or election of its national office- bearers, the names and work addresses of those office-bearers, even if their appointment or election did not result in any changes to its office-bearers; and e. 30 days before a new address for service of documents will take effect, notice of that change of address. Chapter VI: Trade Unions and Employers' Organisations Part A: Registration and Regulation of Trade Unions and Employers' Organisations 101. Changing constitution or name of registered trade unions or employers' organisations 1. A registered trade union or a registered employers' organization may resolve to change or replace its constitution. 2. The registered trade union or the registered employers' organization must send the registrar a copy of the resolution and a certificate signed by its secretary stating that the resolution complies with its constitution. 3. The registrar must- a. register the changed or new constitution if it meets the requirements for registration; and b. send the registered trade union or registered employers' organisation a copy of the resolution endorsed by the registrar, certifying that the change or replacement has been registered. 4. The changed or new constitution takes effect from the date of the registrar's certification. 5. A registered trade union or registered employers' organisation may resolve to change its name. 6. The registered trade union or registered employers' organization must send the registrar a copy of the resolution and the original of its current certificate of registration. 7. If the new name of the trade union or employers' organization meets the requirements of section 95(4), (These are the requirements relating to the name of a trade union or employers' organisation to be registered) the registrar must- a. enter the new name in the appropriate register and issue a certificate of registration in the new name of the trade union or employers' organisation; b. remove the old name from that register and cancel the earlier certificate of registration; and c. send the new certificate to the trade union or employers' organisation. 8. The new name takes effect from the date that the registrar enters it in the appropriate register. Chapter VI: Trade Unions and Employers' Organisations Part A: Registration and Regulation of Trade Unions and Employers' Organisations 102. Amalgamation of trade unions or employers' organisations 1. Any registered- 1. trade union may resolve to amalgamate with one or more other trade unions, whether or not those other trade unions are registered; and 2. employers' organisation may resolve to amalgamate with one or more other employers' organizations, whether or not those other employers' organizations are registered. 2. The amalgamating trade unions or amalgamating employers' organizations may apply to the registrar for registration of the amalgamated trade union or amalgamated employers' organization, even if any of the amalgamating trade unions or amalgamating employers' organisations is itself already registered, and the registrar must treat the application as an application in terms of section 96. 3. After the registrar has registered the amalgamated trade union or amalgamated employers' organization, the registrar must cancel the registration of each of the amalgamating trade unions or amalgamating employers' organizations by removing their names from the appropriate register. 4. The registration of an amalgamated trade union or an amalgamated employers' organization takes effect from the date that the registrar enters its name in the appropriate register. 5. When the registrar has registered an amalgamated trade union or amalgamated employers' organisation- a. all the assets, rights, obligations and liabilities of the amalgamating trade unions or the amalgamating employers' organisations devolve upon and vest in the amalgamated trade union or amalgamated employers' organisation; and b. the amalgamated trade union or amalgamated employers' organisation succeeds the amalgamating trade unions or the amalgamating employers' organisations in respect of- i. any right that the amalgamating trade unions or the amalgamating employers' organisations enjoyed; ii. any fund established in terms of this Act or any other law; iii. any arbitration award or court order; iv. any collective agreement or other agreement; v. membership of any council ; and vi. any written authorisation by a member for the periodic deduction of levies or subscriptions due to the amalgamating trade unions or amalgamating employers' organizations. Chapter VI: Trade Unions and Employers' Organisations Part A: Registration and Regulation of Trade Unions and Employers' Organisations 103. Winding-up of registered trade unions or registered employers' organisations 1. The Labour Court may order a registered trade union or registered employers' organisation to be wound up if- a. the trade union or employers' organization has resolved to wind-up its affairs and has applied to the Court for an order giving effect to that resolution; or b. the registrar of labour relations or any member of the trade union or employers' organisation has applied to the Court for its winding up and the Court is satisfied that the trade union or employers' organisation, for some reason that cannot be remedied is unable to continue to function. 2. If there are any persons not represented before the Labour Court whose interests may be affected by an order in terms of subsection (1), the Court must- a. consider those interests before deciding whether or not to grant the order applied for; and b. if it grants the order applied for, include provisions in the order disposing of each of those interests. 3. In granting 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 trade union or employers' organisation. 5. If, after all the liabilities of the registered trade union or registered employers' organisation have been discharged, any assets remain that cannot be disposed of in accordance with the constitution of that trade union or employers' organisation, the liquidator must realise those assets and pay the proceeds to the Commission for its own use. Chapter VI: Trade Unions and Employers' Organisations Part A: Registration and Regulation of Trade Unions and Employers' Organisations 104. Winding-up of trade unions or employers' organisations by reason of insolvency Any person who seeks to wind-up a trade union or employers ' organisation by reason of insolvency must comply with the Insolvency Act. 1936 (Act No. 24 of 1936), and, for the purposes of this section, any reference to the court in that Act must be interpreted as referring to the Labour Court. Chapter VI: Trade Unions and Employers' Organisations Part A: Registration and Regulation of Trade Unions and Employers' Organisations 105. Cancellation of registration of trade union that is no longer independent 1. Any registered trade union may apply to the Labour Court for an order declaring that another trade union is no longer independent. 2. If the Labour Court is satisfied that a trade union is not independent, the Court must make a declaratory order to that effect. Chapter VI: Trade Unions and Employers' Organisations Part A: Registration and Regulation of Trade Unions and Employers' Organisations 106. Cancellation of registration of trade unions or employers' organisations 1. The registrar of the Labour Court must notify the registrar of labour relations if the Court- a. in terms of section 103 has ordered a registered trade union or a registered employers' organisation to be wound up; or b. in terms of section 105 has declared that a registered trade union is not independent. 2. When the registrar receives a notice from the Labour Court in terms of subsection (1), the registrar must cancel the registration of the trade union or employers' organization by removing its name from the appropriate register. 3. When a trade union's or employers' organization's registration is cancelled, all the rights it enjoyed as a result of being registered will end. Chapter VI: Trade Unions and Employers' Organisations Part B: Regulation of Federations of Trade Unions and Employers' Organisations 107. Regulation of federations of trade unions or employers' organisations 1. Any federation of trade unions that has the promotion of the interests of employees as a primary object, and any federation of employers' organisations that has the promotion of the interests of employers as a primary object, must provide to the registrar - a. within three months of its formation, and after that by 31 March each year, the names and addresses of its members and the number of persons each member in the federation represents; b. within three months of its formation, and after that within 30 days of any appointment or election of its national office-bearers, the names and work addresses of those office-bearers, even if their appointment or election did not result in any changes to its office-bearers; c. within three months of its formation, a certified copy of its constitution and an address in the Republic at which it will accept service of any document that is directed to it; d. within 30 days of any change to its constitution, or of the address provided to the registrar as required in paragraph (c), notice of that change; and e. within 14 days after it has resolved to wind up, a copy of that resolution. 2. Service of any document directed to a federation of trade unions or a federation of employers' organizations at the address most recently provided to the registrar will be, for all purposes, service of that document on that federation. 3. The registrar must remove from the appropriate register the name of any federation that the registrar believes has been wound up or sequestrated. Chapter VI: Trade Unions and Employers' Organisations Part C: Registrar of Labour Relations 108. Appointment of registrar of labour relations 1. The Minister must designate an officer of the Department of Labour as the registrar of labour relations to perform the functions conferred on the registrar by or in terms of this Act . 2. a. The Minister may designate any number of officers in the Department as deputy registrars of labour relations to assist the registrar to perform the functions of registrar in terms of this Act. b. A deputy registrar may exercise any of the functions of the registrar that have been generally or specifically delegated to the deputy. 3. The deputy registrar of labour relations or if there is more than one, the most senior of them, will act as registrar whenever- a. the registrar is absent from the Republic or from duty, or for any reason is temporarily unable to perform the functions of registrar; or b. the office of registrar is vacant. Chapter VI: Trade Unions and Employers' Organisations Part C: Registrar of Labour Relations 109. Functions of registrar 1. The registrar must keep- a. a register of registered trade unions; b. a register of registered employers' organizations; c. a register of federations of trade unions containing the names of the federations whose constitutions have been submitted to the registrar; d. a register of federations of employers' organisations containing the names of the federations whose constitutions have been submitted to the registrar; and e. a register of councils. 2. Within 30 days of making an entry in, or deletion from, a register, the registrar must give notice of that entry or deletion in the Government Gazette. 3. The registrar, on good cause shown, may extend or condone late compliance with any of the time periods established in this Chapter, except the period within which a person may note an appeal against a decision of the registrar. 4. The registrar must perform all the other functions conferred on the registrar by or in terms of this Act . Chapter VI: Trade Unions and Employers' Organisations Part C: Registrar of Labour Relations 110. Access to information 1. Any person may inspect any of the following documents in the registrar's office- a. the registers of registered trade unions, registered employers' organisations, federations of trade unions, federations of employers' organisations and councils; b. the certificates of registration and the registered constitutions of registered trade unions, registered employers' organisations, and councils, and the constitutions of federations of trade unions and federations of employers' organizations; and c. the auditor's report in so far as it expresses an opinion on the matters referred to in section 98(2)(b)(ii). 2. The registrar must provide a certified copy of, or extract from, any of the documents referred to in subsection (1) to any person who has paid the prescribed fee. 3. Any person who is a member, office-bearer or official of a registered trade union or of a registered employers' organisation , or is a member of a party to a council , may inspect any document that has been provided to the registrar in compliance with this Act by that person's registered trade union, registered employers' organization or council. 4. The registrar must provide a certified copy of, or extract from, any document referred to in subsection (3) to any person who has a right in terms of that subsection to inspect that document and who has paid the prescribed fee. 5. The registrar must provide any of the following information to any person free of charge- a. the names and work addresses of persons who are national office-bearers of any registered trade union, registered employers' organization, federation or council; b. the address in the Republic at which any registered trade union, registered employers' organisation, federation or council will accept service of any document that is directed to it; and c. any of the details of a federation of trade unions or a federation of employers' organisations referred to in section 107(1)(a), (c) and (e). Chapter VI: Trade Unions and Employers' Organisations Part D: Appeals from Registrar's decision 111. Appeals from registrar's decision 1. Within 30 days of the written notice of a decision of the registrar , any person who is aggrieved by the decision may demand in writing that the registrar provide written reasons for the decision. 2. The registrar must give the applicant written reasons for the decision within 30 days of receiving a demand in terms of subsection (1). 3. Any person who is aggrieved by a decision of the registrar may appeal to the Labour Court against that decision, within 60 days of- a. the date of the registrar's decision; or b. if written reasons for the decision are demanded, the date of those reasons. 4. The Labour Court, on good cause shown, may extend the period within which a person may note an appeal against a decision of the registrar. Chapter VII: Dispute Resolution Part A: Commission for Conciliation, Mediation and Arbitration 112. Establishment of Commission for Conciliation, Mediation and Arbitration The Commission for Conciliation, Mediation and Arbitration is hereby established as a juristic person. Chapter VII: Dispute Resolution Part A: Commission for Conciliation, Mediation and Arbitration 113. Independence of Commission The Commission is independent of the State, any political party, trade union , employer, employers' organisation , federation of trade unions or federation of employers' organisations. Chapter VII: Dispute Resolution Part A: Commission for Conciliation, Mediation and Arbitration 114. Area of jurisdiction and offices of Commission 1. The Commission has jurisdiction in all the provinces of the Republic . 2. The Minister , after consulting the governing body, must determine the location for the Commission's head office. 3. The Commission must maintain an office in each province of the Republic and as many local offices as it considers necessary. Chapter VII: Dispute Resolution Part A: Commission for Conciliation, Mediation and Arbitration 115. Functions of Commission 1. The Commission must- a. attempt to resolve, through conciliation, any dispute referred to it in terms of this Act ; b. if a dispute that has been referred to it remains unresolved after conciliation, arbitrate the dispute if- i. this Act requires arbitration and any party to the dispute has requested that the dispute be resolved through arbitration; or ii. all the parties to a dispute in respect of which the Labour Court has jurisdiction consent to arbitration under the auspices of the Commission; c. assist in the establishment of workplace forums in the manner contemplated in Chapter V; and d. compile and publish information and statistics about its activities. 2. The Commission may- a. if asked, advise a party to a dispute about the procedure to follow in terms of this Act; (See section 148) b. if asked, assist a party to a dispute to obtain legal advice, assistance or representation; (See section 149) c. offer to resolve a dispute that has not been referred to the Commission through conciliation; (See section 150) cA. make rules-- i. to regulate, subject to Schedule 3, the proceedings at its meetings and at meetings of any committee of the Commission; ii. regulating the practice and procedure of the essential services committee; iii. regulating the practice and procedure-- (aa) for any process to resolve a dispute through conciliation; (bb) at arbitration proceddings; and iv. determining the amount of any fee that the Commission may charge under section 147, and regulating the payment of such a fee in detail; d. [deleted by Labour Relations Amendment Act, 1996, Act No 42 of 1996] e. [deleted by Labour Relations Amendment Act, 1996, Act No 42 of 1996] f. conduct, oversee or scrutinise any election or ballot of a registered trade union or registered employers' organisation if asked to do so by that trade union or employers' organization; g. publish guidelines in relation to any matter dealt with in this Act; h. conduct and publish research into matters relevant to its functions; and i. [deleted by Labour Relations Amendment Act, 1996, Act No 42 of 1996] ii. If asked, the Commission may provide employees, employers, registered trade unions, registered employers' organizations, federations of trade unions, federations of employers' organisations or councils with advice or training relating to the primary objects of this Act, including but not limited to- d. establishing collective bargaining structures; e. designing, establishing and electing workplace forums and creating deadlock-breaking mechanisms; f. the functioning of workplace forums; g. preventing and resolving disputes and employees' grievances; h. disciplinary procedures; i. procedures in relation to dismissals; j. the process of restructuring the workplace; k. affirmative action and equal opportunity programmes; and l. the prevention of sexual harassment in the workplace. iii. The Commission must perform any other duties imposed, and may exercise any other powers conferred, on it by or in terms of this Act and is competent to perform any other function entrusted to it by any other law. 5. The governing body's rules of procedure, the terms of appointment of its members and other administrative matters are dealt with in Schedule 3. 6. a. A rule made under subsection (2)(cA) must be published in the Government Gazette. The Commission will be responsible to ensure that the publication occurs. b. A rule so made will not have any legal force or effect unless it has been so published. Chapter VII: Dispute Resolution Part A: Commission for Conciliation, Mediation and Arbitration 116. Governing body of Commission 1. The Commission will be governed by the governing body, whose acts are acts of the Commission. (See item 4 of Schedule 3 for the governing body's rules of procedure). 2. The governing body consists of- a. a chairperson and nine other members, each nominated by NEDLAC and appointed (See items 1 to 3 of Schedule 3 for the terms of appointment of members of the governing body) by the Minister to hold office for a period of three years; and b. the director of the Commission, who- i. is a member of the governing body only by virtue of having been appointed director; and ii. may not vote at meetings of the governing body. 3. NEDLAC must nominate- a. one independent person for the office of chairperson; b. three persons proposed by those voting members of NEDLAC who represent organised labour; and c. three persons proposed by those voting members of NEDLAC who represent organised business; d. three persons proposed by those voting members of NEDLAC who represent the State. Chapter VII: Dispute Resolution Part A: Commission for Conciliation, Mediation and Arbitration 117. Commissioners of Commission 1. The governing body must appoint as commissioners as many adequately qualified persons as it considers necessary to perform the functions of commissioners by or in terms of this Act or any other law. 2. The governing body- a. may appoint each commissioner- i. on either a full-time or a part-time basis; and ii. to be either a commissioner or a senior commissioner; b. must appoint each commissioner for a fixed term determined by the governing body at the time of appointment; c. may appoint a commissioner, who is not a senior commissioner, for a probationary period; and d. when making appointments, must have due regard to the need to constitute a Commission that is independent and competent and representative in respect of race and gender. 3. Any reference in this Act to a commissioner muse be interpreted also to mean a senior commissioner, unless otherwise indicated. 4. The governing body must determine the commissioners' remuneration , allowances and any other terms and conditions of appointment not contained in this section. Chapter VII: Dispute Resolution Part A: Commission for Conciliation, Mediation and Arbitration 118. Director of Commission 1. The governing body must appoint, as director of the Commission, a person who- a. is skilled and experienced in labour relations and dispute resolution; and b. has not been convicted of any offense involving dishonesty. 2. The director must- a. perform the functions that are- i. conferred on the director by or in terms of this Act or by any other law; ii. delegated to the director by the governing body; b. manage and direct the activities of the Commission; and c. supervise the Commission's staff. 3. The governing body must determine the director's remuneration , allowances and any other terms and conditions of appointment not contained in Schedule 3. 4. A person appointed director automatically holds the office of a senior commissioner. 5. Despite subsection (4), the provisions of section 117, with the exception of section 117(6), do not apply to the director. 6. The director , in consultation with the governing body, may delegate any of the functions of that office, except the functions mentioned in sections 120 and 138(8), to a commissioner. Chapter VII: Dispute Resolution Part A: Commission for Conciliation, Mediation and Arbitration 119. Acting director of Commission 1. The chairperson of the governing body may appoint any suitable person to act as director whenever- a. the director is absent from the Republic or from duty, or for any reason is temporarily unable to perform the functions of director; or b. the office of director is vacant. 2. Only a senior commissioner may be appointed as acting director. 3. An acting director is competent to exercise and perform any of the powers and functions of the director. Chapter VII: Dispute Resolution Part A: Commission for Conciliation, Mediation and Arbitration 120. Staff of Commission 1. The director may appoint staff after consulting the governing body. 2. The governing body must determine the remuneration and allowances and any other terms and conditions of appointment of staff members. Chapter VII: Dispute Resolution Part A: Commission for Conciliation, Mediation and Arbitration 121. Establishment of committees of Commission 1. The governing body may establish committees to assist the Commission. 2. A committee may consist of any combination of the following persons- a. a member of the governing body; b. the director ; c. a commissioner; d. a staff member of the Commission; and e. any other person. 3. The governing body must determine the remuneration and allowances and any other terms and conditions of appointment of committee members referred to in subsection (2)(e). 4. The governing body may at any time vary or set aside a decision of a committee. 5. The governing body may dissolve any committee. Chapter VII: Dispute Resolution Part A: Commission for Conciliation, Mediation and Arbitration 122. Finances of Commission 1. The Commission will be financed and provided with working capital from- a. the moneys that the Minister , with the agreement of the Minister of Finance, must allocate to the Commission from public funds at the commencement of this Act ; b. the moneys that Parliament may appropriate to the Commission from time to time; c. fees payable to the Commission in terms of this Act; d. grants, donations and bequests made to it; and e. income earned on the surplus moneys deposited or invested. 2. The financial year of the Commission begins on 1 April in each year and ends on 31 March of the following year, except the first financial year which begins on the day this Act commences and ends on the first following 31 March. 3. In each financial year, at a time determined by the Minister, the Commission must submit to the Minister a statement of the Commission's estimated income and expenditure, and requested appropriation from Parliament, for the following financial year. Chapter VII: Dispute Resolution Part A: Commission for Conciliation, Mediation and Arbitration 123. Circumstances in which Commission may charge fees 1. The Commission may charge a fee only for- a. resolving disputes which are referred to it, in circumstances in which this Act allows the Commission, or a commissioner, to charge a fee; b. conducting, overseeing or scrutinising any election or ballot at the request of a registered trade union or employers' organisation ; and c. providing advice or training in terms of section 115(3). 2. The Commission may not charge a fee unless- a. the governing body has established a tariff of fees; and b. the fee that is charged is in accordance with that tariff 3. The Commission must publish the tariff in the Government Gazette. Chapter VII: Dispute Resolution Part A: Commission for Conciliation, Mediation and Arbitration 124. Contracting by Commission, and Commission working in association with any person 1. The governing body may- a. contract with any person to do work for the Commission or contract with an accredited agency to perform, whether for reward or otherwise, any function of the Commission on its behalf; and b. perform any function of the Commission in association with any person. 2. Every person with whom the Commission contracts or associates is bound by the requirement of independence that binds the Commission. Chapter VII: Dispute Resolution Part A: Commission for Conciliation, Mediation and Arbitration 125. Delegation of governing body's powers, functions and duties 1. The governing body may delegate in writing any of its functions, other than the functions listed below, to any member of the governing body, the director , a commissioner, or any committee established by the Commission The functions that the governing body may not delegate are- a. appointing the director; b. appointing commissioners, or removing a commissioner from office; c. depositing or investing surplus money; d. accrediting councils or private agencies, or amending, withdrawing or renewing their accreditation; or e. subsidising accredited councils or accredited agencies. 2. The governing body may attach conditions to a delegation and may amend or revoke a delegation at any time. 3. A function delegated to the director may be performed by any commissioner or staff member of the Commission authorised by the director, unless the terms of that delegation prevent the director from doing so. 4. The governing body may vary or set aside any decision made by a person acting in terms of any delegation made in terms of subsection (1). 5. The governing body, by delegating any function, is not divested of any of its powers, nor is it relieved of any function or duty that it may have delegated. This rule also applies if the director sub-delegates the performance of a function in terms of subsection (3). Top of Form Bottom of Form Chapter VII: Dispute Resolution Part A: Commission for Conciliation, Mediation and Arbitration 126. Limitation of liability and limitation on disclosure of information 1. In this section, "the Commission" means- a. the governing body; b. a member of the governing body; c. the director ; d. a commissioner; e. a staff member of the Commission; f. a member of any committee established by the governing body; and g. any person with whom the governing body has contracted to do work for, or in association with whom it performs a function of, the Commission. 2. The Commission is not liable for any loss suffered by any person as a result of any act performed or omitted in good faith in the course of exercising the functions of the Commission. 3. The Commission may not disclose to any person or in any court any information, knowledge or document that it acquired on a confidential basis or without prejudice in the course of performing its functions except on the order of a court. Chapter VII: Dispute Resolution Part B: Accreditation of and Subsidy to Councils and Private Agencies 127. Accreditation of councils and private agencies 1. Any council or private agency may apply to the governing body in the prescribed form for accreditation to perform any of the following functions- a. resolving disputes through conciliation; and b. arbitrating disputes that remain unresolved after conciliation, if this Act requires arbitration. 2. For the purposes of this section, the reference to disputes must be interpreted to exclude disputes as contemplated in- a. sections 16 , 21 and 22 ; (These sections deal with disputes about organisational rights) b. section 24(2) to (5) ; (These subsections deal with disputes about collective agreements where the agreement does not provide for a procedure, the procedure is inoperative or any party frustrates the resolution of the dispute.) c. section 24(6) and (7) and section 26(11) ; (These subsections deal with disputes about agency shops and closed shops.) d. section 45 ; (This section deals with disputes about determinations made by the Minister in respect of proposals made by a statutory council.) e. section 61(5) to (8) ; (These subsections deal with disputes about the interpretation or application of collective agreements of a council whose registration has been canceled.) f. section 62 ; (This section deals with disputes about the demarcation of sectors and areas of councils.) g. section 63 ; (This section deals with disputes about the interpretation or application of Parts C to F of Chapter 111. Part C deals with bargaining councils, Part D with bargaining councils in the public service, Part E with statutory councils and Part F. with general provisions concerning councils.) h. section 69(8) to (10) ; (This section concerns disputes about pickets during strikes and lock-outs.) i. section 86 ; (This section deals with disputes about proposals that are the subject of joint decision-making.) j. section 89 ; (This section deals with disputes about the disclosure of information to workplace forums.) k. section 94 ; (This section deals with disputes about the interpretation or application of Chapter V which deals with workplace forums.) 3. The governing body may require further information in support of the application and, for that purpose, may require the applicant to attend one or more meetings of the governing body. 4. The governing body may accredit an applicant to perform any function for which it seeks accreditation, after considering the application, any further information provided by the applicant and whether- a. the services provided by the applicant meet the Commission's standards; b. the applicant is able to conduct its activities effectively; c. the persons appointed by the applicant to perform those functions will do so in a manner independent of the State, any political party, trade union, employer, employers' organization, federation of trade unions or federation of employers' organizations; d. the persons appointed by the applicant to perform those functions will be competent to perform those functions and exercise any associated powers; e. the applicant has an acceptable code of conduct to govern the persons whom it appoints to perform those functions; f. the applicant uses acceptable disciplinary procedures to ensure that each person it appoints to perform those functions will subscribe, and adhere, to the code of conduct; and g. the applicant promotes a service that is broadly representative of South African society. h. [deleted by Labour Relations Amendment Act, 1996, Act No 42 of 1996]. 5. If the governing body decides- a. to accredit the applicant, the governing body must- i. enter the applicant's name in the register of accredited councils or the register of accredited agencies; ii. issue a certificate of accreditation in the applicant's name stating the period and other terms of accreditation; iii. send the certificate to the applicant; and iv. as soon as practicable after the decision, publish the certificate of accreditation in the Government Gazette; or b. not to accredit the applicant, the governing body must advise the unsuccessful applicant in writing of its decision. 6. The terms of accreditation must state the extent to which the provisions of each section in Part C of this Chapter apply to the accredited council or accredited agency. 7. a. Any person may inspect the registers and certificates of accredited councils and accredited agencies kept in the Commission's offices. b. The Commission must provide a certified copy of, or extract from, any of the documents referred to in paragraph (a) to any person who has paid the prescribed fee. Chapter VII: Dispute Resolution Part B: Accreditation of and Subsidy to Councils and Private Agencies 128. General provisions relating to accreditation 1. a. An accredited council or accredited agency may charge a fee for performing any of the functions for which it is accredited in circumstances in which section 140(2) allows a commissioner, to charge a fee. b. A fee charged in terms of paragraph (a) must be in accordance with the tariff of fees determined by the Commission. 2. a. An accredited council, accredited agency, or any person engaged by either of them to perform the functions for which it has been accredited, is not liable for any loss suffered by any person as a result of any act performed or omitted in good faith in the course of exercising those functions. b. An accredited council, accredited agency, or any person engaged by either of them to perform the functions for which it has been accredited, may not disclose to any person or in any court any information, knowledge or document that it or that person acquired on a confidential basis or without prejudice in the course of performing those functions except on the order of a court. Chapter VII: Dispute Resolution Part B: Accreditation of and Subsidy to Councils and Private Agencies 129. Amendment of accreditation 1. An accredited council or accredited agency may apply to the governing body in the prescribed form to amend its accreditation. 2. The governing body must treat the application as an application in terms of section 127. Chapter VII: Dispute Resolution Part B: Accreditation of and Subsidy to Councils and Private Agencies 130. Withdrawal of accreditation If an accredited council or accredited agency fails to comply to a material extent with the terms of its accreditation, the governing body may withdraw its accreditation after having given reasonable notice of the withdrawal to that council or accredited agency. Chapter VII: Dispute Resolution Part B: Accreditation of and Subsidy to Councils and Private Agencies 131. Application to renew accreditation 1. An accredited council or accredited agency may apply to the governing body in the prescribed form to renew its accreditation either in the current or in an amended form. 2. The governing body must treat the application for renewal as an application in terms of section 127. Chapter VII: Dispute Resolution Part B: Accreditation of and Subsidy to Councils and Private Agencies 132. Subsidy to council or private agency 1. a. Any council may apply to the governing body in the prescribed form for a subsidy for performing any dispute resolution functions that the council is required to perform in terms of this Act, and for training persons to perform those functions. b. Any accredited agency, or a private agency that has applied for accreditation, may apply to the governing body in the prescribed form for a subsidy for performing any dispute resolution functions for which it is accredited or has applied for accreditation, and for training persons to perform those functions. 2. The governing body may require further information in support of the application and, for that purpose, may require the applicant to attend one or more meetings of the governing body. 3. The governing body may grant a subsidy to the applicant after considering the application, any further information provided by the applicant and- a. the need for the performance by the applicant of the functions for which it is accredited; b. the extent to which the public uses the applicant to perform the functions for which it is accredited; c. the cost to users for the performance by the applicant of the functions for which it is accredited; d. the reasons for seeking the subsidy; e. the amount requested; and f. the applicant's ability to manage its financial affairs in accordance with established accounting Practice, principles and Procedures. 4. If the governing body decides- a. to grant a subsidy to the applicant, the governing body must- i. notify the applicant in writing of the amount, duration and the terms of the subsidy; and ii. as soon as practicable after the decision, publish the written notice in the Government Gazette; or b. not to grant a subsidy to the applicant, the governing body must advise the unsuccessful applicant in writing of its decision. 5. A subsidy granted in terms of subsection (4)(a)- a. may not be paid to a council or private agency unless it has been accredited; and b. lapses at the end of the Commission's financial year within which it was granted. 6. a. Any person may inspect a written notice referred to in subsection (4)(a) in the Commission's offices. b. The Commission must provide a certified copy of, or extract from, any written notice referred to in paragraph (a) to any person who has paid the prescribed fee. 7. If an accredited council or accredited agency fails to comply to a material extent with the terms of its subsidy, the governing body may withdraw the subsidy after having given reasonable notice of the withdrawal to that council or agency. 8. a. An accredited council or accredited agency that has been granted a subsidy may apply to the governing body in the prescribed form to renew its subsidy, either in the current or in an amended form and amount. b. The governing body must treat the application for renewal as an application in terms of subsections (1) to (4). Chapter VII: Dispute Resolution Part C: Resolution of Disputes under auspices of Commission 133. Resolution of disputes under auspices of Commission 1. The Commission must appoint a commissioner to attempt to resolve through conciliation- a. any dispute referred to it in terms of section 134; and b. any other dispute that has been referred to it in terms of this Act . 2. If a dispute remains unresolved after conciliation, the Commission must arbitrate the dispute if- a. this Act requires that dispute to be arbitrated and any party to the dispute has requested that the dispute be resolved through arbitration; or b. all the parties to the dispute in respect of which the Labour Court has jurisdiction consent to arbitration under the auspices of the Commission. Top of Form Bottom of Form Chapter VII: Dispute Resolution Part C: Resolution of Disputes under auspices of Commission 134. Disputes about matters of mutual interest 1. Any party to a dispute about a matter of mutual interest may refer the dispute in writing to the Commission, if the parties to the dispute are- a. on the one side- i. one or more trade unions; ii. one or more employees; or 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' organizations and one or more employers. 2. The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute. Chapter VII: Dispute Resolution Part C: Resolution of Disputes under auspices of Commission 135. Resolution of disputes through conciliation 1. When a dispute has been referred to the Commission, the Commission must appoint a commissioner to attempt to resolve it through conciliation. 2. The appointed commissioner must attempt to resolve the dispute through conciliation within 30 days of the date the Commission received the referral: However the parties may agree to extend the 30-day period. 3. The commissioner must determine a process to attempt to resolve the dispute, which may include- a. mediating the dispute; b. conducting a fact-finding exercise; and c. making a recommendation to the parties, which may be in the form of an advisory arbitration award. 3A. If a single commissioner has been appointed, in terms of subsection (1), in respect of more than one dispute involving the same parties, that commissioner may consolidate the conciliation proceedings so that all the disputes concerned may be dealt with in the asme proceedings. 4. In the conciliation proceedings a party to the dispute may appear in person or be represented only by-- a. a director or employee of that party; or b. any member, office-bearer or official of that party's registered trade union or registered employers' organisation . 5. When the conciliation has failed, or at the end of the 30-day period or any further period agreed between the parties- a. the commissioner must issue a certificate stating whether or not the dispute has been resolved; b. the Commission must serve a copy of that certificate on each party to the dispute or the person who represented a party in the conciliation proceedings; and c. the commissioner must file the original of that certificate with the Commission. 6. a. If a dispute about a matter of mutual interest has been referred to the Commission and the parties to the dispute are engaged in an essential service then, despite subsection (1), the parties may consent within seven days of the date the Commission received the referral- i. to the appointment of a specific commissioner by the Commission to attempt to resolve the dispute through conciliation; and ii. to that commissioner's terms of reference. b. If the parties do not consent to either of those matters within the seven-day period, the Commission must as soon as possible- i. appoint a commissioner to attempt to resolve the dispute; and ii. determine the commissioner's terms of reference. Chapter VII: Dispute Resolution Part C: Resolution of Disputes under auspices of Commission 136. Appointment of commissioner to resolve dispute through arbitration 1. If this Act requires a dispute to be resolved through arbitration, the Commission must appoint a commissioner to arbitrate that dispute, if- a. a commissioner has issued a certificate stating that the dispute remains unresolved; and b. within 90 days after the date on which that certificate was issued, any party to the dispute has requested that the dispute be resolved through arbitration. However, the Commission, on good cause shown, may condone a party's non-observance of that timeframe and allow a request for arbitration filed by the party after the expiry of the 90-day period. 2. A commissioner appointed in terms of subsection (1) may be the same commissioner who attempted to resolve the dispute through conciliation. 3. Any party to the dispute, who wants to object to the arbitration also being conducted by the commissioner who had attempted to resolve the dispute through conciliation, may do so by filing an objection in that regard with the Commission within seven days after the date on which the commissioner's certificate was issued, and must satisfy the Commission that a copy of the objection has been served on all the other parties to the dispute. 4. When the Commission receives an objection it must appoint another commissioner to resolve the dispute by arbitration. 5. a. The parties to a dispute may request the Commission, in appointing a commissioner in terms of subsection (1) or (4), to take into account their stated preference, to the extent that this is reasonably practicable in all the circumstances. b. The stated preference contemplated in paragraph (a) must- i. be in writing; ii. list no more than five commissioners; iii. state that the request is made with the agreement of all the parties to the dispute; and iv. be submitted within 48 hours of the date of the certificate referred to in subsection (1)(a). 6. If the circumstances contemplated in subsection (1) exist and the parties to the dispute are engaged in an essential service, then the provisions of section 135(6) apply, read with the changes required by the context, to the appointment of a commissioner to resolve the dispute through arbitration. Chapter VII: Dispute Resolution Part C: Resolution of Disputes under auspices of Commission 137. Appointment of senior commissioner to resolve dispute through arbitration 1. In the circumstances contemplated in section 136(1), any party to the dispute may apply to the director to appoint a senior commissioner to attempt to resolve the dispute through arbitration. 2. When considering whether the dispute should be referred to a senior commissioner, the director must hear the party making the application, any other party to the dispute and the commissioner who conciliated the dispute. 3. The director may appoint a senior commissioner to resolve the dispute through arbitration, after having considered- a. the nature of the questions of law raised by the dispute; b. the complexity of the dispute; c. whether there are conflicting arbitration awards that are relevant to the dispute; and d. the public interest. 4. The director must notify the parties to the dispute of the decision and- a. if the application has been granted, appoint a senior commissioner to arbitrate the dispute; or b. if the application has been refused, confirm the appointment of the commissioner initially appointed, subject to section 136(4). 5. The director's decision is final and binding. 6. No person may apply to any court of law to review the director's decision until the dispute has been arbitrated. Chapter VII: Dispute Resolution Part C: Resolution of Disputes under auspices of Commission 138. General provisions for arbitration proceedings 1. The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities. 2. Subject to the discretion of the commissioner as to the appropriate form of the proceedings, a party to the dispute may give evidence, call witnesses, question the witnesses of any other party, and address concluding arguments to the commissioner. 3. If all the parties consent, the commissioner may suspend the arbitration proceedings and attempt to resolve the dispute through conciliation. 4. In any arbitration proceedings, a party to the dispute may appear in person or be represented only by-- a. a legal practitioner , b. a director or employee of the party; or c. any member, office-bearer or official of that party's registered trade union or registered employers' organisation . 5. If a party to the dispute fails to appear in person or to be represented at the arbitration proceedings, and that party- a. had referred the dispute to the Commission, the commissioner may dismiss the matter; or b. had not referred the dispute to the Commission, the commissioner may- i. continue with the arbitration proceedings in the absence of that party; or ii. adjourn the arbitration proceedings to a later date. 6. The commissioner must take into account any code of good practice that has been issued by NEDLAC or guidelines published by the Commission in accordance with the provisions of this Act that is relevant to a matter being considered in the arbitration proceedings. 7. Within 14 days of the conclusion of the arbitration proceedings: a. the commissioner must issue an arbitration award with brief reasons, signed by that commissioner; b. the Commission must serve a copy of that award on each party to the dispute or the person who represented a party in the arbitration proceedings; and c. the Commission must file the original of that award with the registrar of the Labour Court. 8. On good cause shown, the director may extend the period within which the arbitration award and the reasons are to be served and filed. 9. The commissioner may make any appropriate arbitration award in terms of this Act, including, but not limited to, an award- a. that gives effect to any collective agreement ; b. that gives effect to the provisions and primary objects of this Act; c. that includes, or is in the form of, a declaratory order. 10. The commissioner may not include an order for costs in the arbitration award unless a party, or the person who represented that party in the arbitration proceedings, acted in a frivolous or vexatious manner- a. by proceeding with or defending the dispute in the arbitration proceedings; or b. in its conduct during the arbitration proceedings. Chapter VII: Dispute Resolution Part C: Resolution of Disputes under auspices of Commission 139. Special provisions for arbitrating disputes in essential services 1. If a dispute about a matter of mutual interest proceeds to arbitration and any party is engaged in an essential service - a. within 30 days of the date of the certificate referred to in section 136(1)(a), or within a further period agreed between the parties to the dispute, the commissioner must complete the arbitration and issue an arbitration award with brief reasons signed by that commissioner; b. the Commission must serve a copy of that award on each party to the dispute or the person who represented a party in the arbitration proceedings; and c. the Commission must file the original of that award with the registrar of the Labour Court. 2. The commissioner may not include an order for costs in the arbitration award unless a party, or the person who represented the party in the arbitration proceedings, acted in a frivolous or vexatious manner in its conduct during the arbitration proceedings. Chapter VII: Dispute Resolution Part C: Resolution of Disputes under auspices of Commission 140. Special provisions for arbitrations about dismissals for reasons related to conduct or capacity 1. If the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee's conduct or capacity, the parties, despite section 138(4), are not entitled to be represented by a legal practitioner in the arbitration proceedings unless- a. the commissioner and all the other parties consent; or b. the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering- i. the nature of the questions of law raised by the dispute; ii. the complexity of the dispute; iii. the public interest; and iv. the comparative ability of the opposing parties or their representatives to deal with the arbitration of the dispute. 2. If, in terms of section 194(1), the commissioner finds that the dismissal is procedurally unfair, the commissioner may charge the employer an arbitration fee. Chapter VII: Dispute Resolution Part C: Resolution of Disputes under auspices of Commission 141. Resolution of disputes if parties consent to arbitration under auspices of Commission 1. If a dispute remains unresolved after conciliation, the Commission must arbitrate the dispute if a party to the dispute would otherwise be entitled to refer the dispute to the Labour Court for adjudication and, instead, all the parties agree to arbitration under the auspices of the Commission. 2. The arbitration proceedings must be conducted in accordance with the provisions of sections 136, 137 and 138, read with the changes required by the context. 3. The arbitration agreement contemplated in subsection (1) may be terminated only with the consent of all the parties to that agreement, unless the agreement itself provides otherwise. 4. Any party to the arbitration agreement may apply to the Labour Court at any time to vary or set aside that agreement, which the Court may do on good cause. 5. a. If any party to an arbitration agreement commences proceedings in the Labour Court against any other party to that agreement about any matter that the parties agreed to refer to arbitration, any party to those proceedings may ask the Court- i. to stay those proceedings and refer the dispute to arbitration; or ii. with the consent of the parties and where it is expedient to do so, continue with the proceedings with the Court acting as arbitrator in which case the Court may only make an order corresponding to the award that an arbitrator could have made. b. If the Court is satisfied that there is sufficient reason for the dispute to be referred to arbitration in accordance with the arbitration agreement, the Court may stay those proceedings, on any conditions. 6. If the provisions of subsection (1) apply, the commissioner may make an award that the Labour Court could have made. Chapter VII: Dispute Resolution Part C: Resolution of Disputes under auspices of Commission 142. Powers of commissioner when attempting to resolve disputes 1. A commissioner who has been appointed to attempt to resolve a dispute may- a. subpoena for questioning any person who may be able to give information or whose presence at the conciliation or arbitration proceedings may help to resolve the dispute, b. subpoena any person who is believed to have possession or control of any book, document or object relevant to the resolution of the dispute, to appear before the commissioner to be questioned or to produce that book, document or object; c. call, and if necessary subpoena, any expert to appear before the commissioner to give evidence relevant to the resolution of the dispute; d. call any person present at the conciliation or arbitration proceedings or who was or could have been subpoenaed for any purpose set out in this section, to be questioned about any matter relevant to the dispute; e. administer an oath or accept an affirmation from any person called to give evidence or be questioned; f. at any reasonable time, but only after obtaining the necessary written authorisation- i. enter and inspect any premises on or in which any book, document or object, relevant to the resolution of the dispute is to be found or is suspected on reasonable grounds of being found there; and ii. examine, demand the production of, and seize any book, document or object that is on or in those premises and that is relevant to the resolution of the dispute; and iii. take a statement in respect of any matter relevant to the resolution of the dispute from any person on the premises who is willing to make a statement; and g. inspect, and retain for a reasonable period, any of the books, documents or objects that have been produced to, or seized by, the Commission. 2. A subpoena issued for any purpose in terms of subsection (1) must be signed by the director and must- a. specifically require the person named in it to appear before the commissioner; b. sufficiently identify the book, document or object to be produced; and c. state the date, time and place at which the person is to appear. 3. The written authorisation referred to in subsection (1)(f)- a. if it relates to residential premises, may be given only by a judge of the Labour Court and with due regard to section 13 of the Constitution, and then only on the application of the commissioner setting out under oath or affirmation the following information- i. the nature of the dispute; ii. the relevance of any book, document or object to the resolution of the dispute; iii. the presence of any book, document or object on the premises; and iv. the need to enter, inspect or seize the book, document or object; and b. in all other cases, may be given by the director. 4. The owner or occupier of any premises that a commissioner is authorised to enter and inspect, and every person employed by that owner or occupier, must provide any facilities that a commissioner requires to enter those premises and to carry out the inspection or seizure. 5. The commissioner must issue a receipt for any book, document or object seized in terms of subsection (4). 6. The law relating to privilege, as it applies to a witness subpoenaed to give evidence or to produce any book, document or object before a court of law, applies equally to the questioning of any person or the production or seizure of any book, document or object in terms of this section. 7. The Commission must pay the prescribed witness fee to each person who appears before a commissioner in response to a subpoena issued by the commissioner. 8. A person commits contempt of the Commission- a. if, after having been subpoenaed to appear before the commissioner, the person without good cause does not attend at the time and place stated in the subpoena; b. if, after having appeared in response to a subpoena, that person fails to remain in attendance until excused by the commissioner; c. by refusing to take the oath or to make an affirmation as a witness when a commissioner so requires; d. by refusing to answer any question fully and to the best of that person's knowledge and belief subject to subsection (6); e. if the person, without good cause, fails to produce any book, document or object specified in a subpoena to a commissioner; f. if the person willfully hinders a commissioner in performing any function conferred by or in terms of this Act; g. if the person insults, disparages or belittles a commissioner, or prejudices or improperly influences the proceedings or improperly anticipates the commissioner's award; h. by willfully interrupting the conciliation or arbitration proceedings or misbehaving in any other manner during those proceedings; i. by doing anything else in relation to the Commission which, if done in relation to a court of law, would have been contempt of court. 9. The Commission may refer any contempt to the Labour Court for an appropriate order. Chapter VII: Dispute Resolution Part C: Resolution of Disputes under auspices of Commission 143. Effect of arbitration awards 1. An arbitration award issued by a commissioner is final and binding and may be made an order of the Labour Court in terms of section 158(1)(c), unless it is an advisory arbitration award. 2. If an arbitration award orders a party to pay a sum of money, the amount earns interest from the date of the award at the same rate as the rate prescribed from time to time in respect of a judgment debt in terms of section 2 of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), unless the award provides otherwise. Chapter VII: Dispute Resolution Part C: Resolution of Disputes under auspices of Commission 144. Variation and rescission of arbitration awards Any commissioner who has issued an arbitration award, acting of the commissioner's own accord or, on the application of any affected party, may vary or rescind an arbitration award- a. erroneously sought or erroneously made in the absence of any party affected by that award; b. in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; or c. granted as a result of a mistake common to the parties to the proceedings. Chapter VII: Dispute Resolution Part C: Resolution of Disputes under auspices of Commission 145. Review of arbitration awards 1. Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award- a. within six weeks of the date that the award was served on the applicant, unless the alleged defect involves corruption; or b. if the alleged defect involves corruption, within six weeks of the date that the applicant discovers the corruption. 2. A defect referred to in subsection (1), means- a. that the commissioner- i. committed misconduct in relation to the duties of the commissioner as an arbitrator; ii. committed a gross irregularity in the conduct of the arbitration proceedings; or iii. exceeded the commissioner's powers; or b. that an award has been improperly obtained. 3. The Labour Court may stay the enforcement of the award pending its decision. 4. If the award is set aside, the Labour Court may- a. determine the dispute in the manner it considers appropriate; or b. make any order it considers appropriate about the procedures to be followed to determine the dispute. Top of Form Bottom of Form Chapter VII: Dispute Resolution Part C: Resolution of Disputes under auspices of Commission 146. Exclusion of Arbitration Act The Arbitration Act, 1965 (Act No. 42 of 1965), does not apply to any arbitration under the auspices of the Commission. Chapter VII: Dispute Resolution Part C: Resolution of Disputes under auspices of Commission 147. Performance of dispute resolution functions by Commission in exceptional circumstances 1. a. If at any stage after a dispute has been referred to the Commission, it becomes apparent that the dispute is about the interpretation or application of a collective agreement , the Commission may- i. refer the dispute for resolution in terms of the procedures provided for in that collective agreement; or ii. appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act . b. The Commission may charge the parties to a collective agreement a fee for performing the dispute resolution functions if- i. their collective agreement does not provide a procedure as required by section 24(1); (Section 24(1) states that every collective agreement must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement.) or ii. the procedure provided in the collective agreement is not operative. c. The Commission may charge a party to a collective agreement a fee if that party has frustrated the resolution of the dispute. 2. a. If at any stage after a dispute has been referred to the Commission, it becomes apparent that the parties to the dispute are parties to a council , the Commission may- i. refer the dispute to the council for resolution; or ii. appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act. b. The Commission may charge the parties to a council a fee for performing the dispute resolution functions if the council's dispute resolution procedures are not operative. 3. a. If at any stage after a dispute has been referred to the Commission, it becomes apparent that the parties to the dispute fall within the registered scope of a council and that one or more parties to the dispute are not parties to the council, the Commission may- i. refer the dispute to the council for resolution; or ii. appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act. b. The Commission may charge the parties to a council a fee for performing the dispute resolution functions if the council's dispute resolution procedures are not operative. 4. a. If a dispute has been referred to the Commission and not all the parties to the dispute fall within the registered scope of a council or fall within the registered scope of two or more councils, the Commission must resolve the dispute in terms of this Act. b. In the circumstances contemplated in paragraph (a), the Commission has exclusive jurisdiction to resolve that dispute. 5. a. If at any stage after a dispute has been referred to the Commission, it becomes apparent that the dispute ought to have been referred to an accredited agency, the Commission may- i. refer the dispute to the accredited agency for resolution; or ii. appoint a commissioner to resolve the dispute in terms of this Act. b. The Commission may- i. charge the accredited agency a fee for performing the dispute resolution functions if the accredited agency's dispute resolution procedures are not operative; and ii. review the continued accreditation of that agency. 6. If at any stage after a dispute has been referred to the Commission, it becomes apparent that the dispute ought to have been resolved through private dispute resolution in terms of a private agreement between the parties to the dispute, the Commission may- a. refer the dispute to the appropriate person or body for resolution through private dispute resolution procedures; or b. appoint a commissioner to resolve the dispute in terms of this Act. 7. Where the Commission refers the dispute in terms of this section to a person or body other than a commissioner the date of the Commission's initial receipt of the dispute will be deemed to be the date on which the Commission referred the dispute elsewhere. 8. The Commission may perform any of the dispute resolution functions of a council or an accredited agency appointed by the council if the council or accredited agency fails to perform its dispute resolution functions in circumstances where, in law, there is an obligation to perform them. 9. For the purposes of subsections (2) and (3), a party to a council includes the members of a registered trade union or registered employers' organisation that is a party to the council. Chapter VII: Dispute Resolution Part C: Resolution of Disputes under auspices of Commission 148. Commission may provide advice 1. If asked, the Commission may advise any party to a dispute in terms of this Act about the procedure to be followed for the resolution of that dispute. 2. In response to a request for advice, the Commission may provide the advice that it considers appropriate. Chapter VII: Dispute Resolution Part C: Resolution of Disputes under auspices of Commission 149. Commission may provide assistance 1. If asked, the Commission may assist an employee or employer who is a party to a dispute - a. together with the Legal Aid Board, (The Legal Aid Board is established in terms of section 2 of the Legal Aid Act, 1969 (Act No. 22 of 1969)) to arrange for advice or assistance by a legal practitioner ; b. together with the Legal Aid Board, to arrange for a legal practitioner- i. to attempt to avoid or settle any proceedings being instituted against an employee or employer in terms of this Act ; ii. to attempt to settle any proceedings instituted against an employee or employer in terms of this Act; iii. to institute on behalf of the employee or employer any proceedings in terms of this Act; iv. to defend or oppose on behalf of the employee or employer any proceedings instituted against the employee or employer in terms of this Act; or c. by providing any other form of assistance that the Commission considers appropriate. 2. The Commission may provide the assistance referred to in subsection (1) after having considered- a. the nature of the questions of law raised by the dispute; b. the complexity of the dispute; c. whether there are conflicting arbitration awards that are relevant to the dispute; and d. the public interest. 3. As soon as practicable after having received a request in terms of subsection (1), but not later than 30 days of the date the Commission received the request, the Commission must advise the applicant in writing whether or not it will assist the applicant and, if so, the form that the assistance will take. Chapter VII: Dispute Resolution Part C: Resolution of Disputes under auspices of Commission 150. Commission may offer to resolve dispute through conciliation 1. If the Commission is aware of a dispute that has not been referred to it, and if resolution of the dispute would be in the public interest, the Commission may offer to appoint a commissioner to attempt to resolve the dispute through conciliation. 2. The Commission may appoint a commissioner only if all the parties to the dispute consent to that appointment. Chapter VII: Dispute Resolution Part D: Labour Court 151. Establishment and status of Labour Court 1. The Labour Court is hereby established as a court of law and equity. 2. The Labour Court is a superior court that has authority, inherent powers and standing, in relation to matters under its jurisdiction, equal to that which a court of a provincial division of the Supreme Court has in relation to the matters under its jurisdiction. 3. The Labour Court is a court of record. Top of Form Bottom of Form Chapter VII: Dispute Resolution Part D: Labour Court 152. Composition of Labour Court 1. The Labour Court consists of- a. a Judge President; b. a Deputy Judge President; and c. as many judges as the President may consider necessary, acting on the advice of NEDLAC and in consultation with the Minister of Justice and the Judge President of the Labour Court. 2. The Labour Court is constituted before a single judge. 3. The Labour Court may sit in as many separate courts as the available judges may allow. Chapter VII: Dispute Resolution Part D: Labour Court 153. Appointment of judges of Labour Court 1. a. The President, acting on the advice of NEDLAC and the Judicial Service Commission provided for in the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), (in this part and Part E called the Judicial Service Commission), and after consultation with the Minister of Justice must appoint a Judge President of the Labour Court. b. The President, acting on the advice of NEDLAC and the Judicial Service Commission, and after consultation with the Minister of Justice and the Judge President of the Labour Court must appoint the Deputy Judge President of the Labour Court. 2. The Judge President and the Deputy Judge President of the Labour Court- a. must be judges of the Supreme Court; and b. must have knowledge, experience and expertise in labour law. 3. The Deputy Judge President must act as Judge President of the Labour Court whenever the Judge President is unable to do so for any reason. 4. The President, acting on the advice of NEDLAC and the Judicial Service Commission, and after consultation with the Minister of Justice and the Judge President of the Labour Court may appoint one or more persons who meet the requirements of subsection (6) as judges of the Labour Court. 5. The Minister of Justice, after consultation with the Judge President of the Labour Court may, appoint one or more persons who meet the requirements of subsection (6) to serve as acting judges of the Labour Court for such a period as the Minister of Justice in each case may determine. 6. A judge of the Labour Court must- a. i. be a judge of the High Court; or ii. be a person who is a legal practitioner; and b. have knowledge, experience and expertise in labour law. Chapter VII: Dispute Resolution Part D: Labour Court 154. Tenure, remuneration and terms and conditions of appointment of Labour Court judges 1. A judge of the Labour Court must be appointed for a period determined by the President at the time of appointment. 2. A judge of the Labour Court may resign by giving written notice to the President. 3. a. Any judge of the Labour Court who is also a judge of the High Court holds office until- i. the judge's period of office in the Labour Court ends; ii. the judge's resignation takes effect; iii. the judge is removed from office; iv. the judge ceases to be a judge of the High Court; or v. the judge dies. b. Any other judge of the Labour Court holds office until- i. the judge's period of office ends; ii. the judge's resignation takes effect; iii. the judge is removed from office; or iv. the judge dies. 4. Neither the tenure of office nor the remuneration and terms and conditions of appointment applicable to a judge of the High Court in terms of the Judges' Remuneration and Conditions of Employment Act, 1989 (Act No. 88 of 1989), is affected by that judge's appointment and concurrent tenure of office as a judge of the Labour Court. 5. a. The remuneration payable to a judge of the Labour Court who is a person referred to in section 153(6)(a)(ii) must be the same as that payable to a judge of the High Court. b. The terms and conditions of appointment of a judge of the Labour Court referred to in paragraph (a) must be similar to those of a judge of the High Court. 6. A person who has been appointed a judge of the Labour Court and who is not a judge of the High Court may perform the functions of a judge of the Labour Court only after having taken an oath or made a solemn affirmation in the prescribed form before the Judge President of the Labour Court. 7. a. A judge of the Labour Court who is also a judge of the High Court- i. may be removed from the office of judge of the Labour Court only if that person has first been removed from the office of a judge of the High Court; and ii. upon having been removed as judge of the High Court must be removed from office as a judge of the Labour Court. b. The President, acting on the advice of NEDLAC, and in consultation with the Minister of Justice and the Judge President of the Labour Court, may remove any other judge of the Labour Court from office for misbehaviour or incapacity. 8. Despite the expiry of the period of a person's appointment as a Judge of the Labour Court, that person may continue to perform the function of a judge of that Court, and will be regarded as such in all respects, only - a. for the purposes of disposing of any proceedings in which that person has taken part as a judge of that Court and which are still pending upon the expiry of that person's appointment or which, having been so disposed of before or after the expiry of that person's appointment, have been re-opened; and b. for as long as that person will be necessarily engaged in connection with the disposal of the proceedings so pending or re-opened. 9. The provisions of subsections (2) to (8) apply, read with the changes required by the context, to acting judges appointed in terms of section 153(5) . Chapter VII: Dispute Resolution Part D: Labour Court 155. Officers of Labour Court 1. The Minister of Justice, subject to the laws governing the public service , must appoint the following officers of the Labour Court- a. a person who has experience and expertise in labour law and administration to be the registrar of the Labour Court; and b. one or more deputy registrars and so many other officers of the Labour Court as the administration of justice requires. 2. a. The officers of the Labour Court, under the supervision and control of the registrar of that Court must perform the administrative functions of the Labour Court. b. A deputy registrar of the Labour Court may perform any of the functions of the registrar of that Court that have been delegated generally or specifically to the deputy registrar. 3. The deputy registrar of the Labour Court or, if there is more than one, the most senior will act as registrar of the Labour Court whenever- a. the registrar is absent from the Republic or from duty, or for any reason is temporarily unable to perform the functions of registrar; or b. the office of registrar is vacant. 4. The officers of the Labour Court must provide secretarial and administrative assistance to the Rules Board for Labour Courts. Chapter VII: Dispute Resolution Part D: Labour Court 156. Area of jurisdiction and seat of Labour Court 1. The Labour Court has jurisdiction in all the provinces of the Republic . 2. The Minister of Justice, acting on the advice of NEDLAC , must determine the seat of the Labour Court. 3. The functions of the Labour Court may be performed at any place in the Republic. Chapter VII: Dispute Resolution Part D: Labour Court 157. Jurisdiction of Labour Court 1. Subject to the Constitution and section 173, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court. 2. The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising from-- a. employment and from labour relations; b. any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as an employer; and c. the application of any law for the administration of which the Minister is responsible. 3. Any reference to the court in the Arbitration Act, 1965 (Act No. 42 of 1965), must be interpreted as referring to the Labour Court when an arbitration is conducted under that Act in respect of any dispute that may be referred to arbitration in terms of this Act. 4. a. The Labour Court may refuse to determine any dispute, other than an appeal or review before the Court, if the Court is not satisfied that an attempt has been made to resolve the dispute through conciliation. b. A certificate issued by a commissioner or a council stating that a dispute remains unresolved is sufficient proof that an attempt has been made to resolve that dispute through conciliation. 5. Except as provided in section 158(2), the Labour Court does not have jurisdiction to adjudicate an unresolved dispute if this Act requires the dispute to be resolved through arbitration. Chapter VII: Dispute Resolution Part D: Labour Court 158. Powers of Labour Court 1. The Labour Court may- a. make any appropriate order, including- i. the grant of urgent interim relief; ii. an interdict; iii. an order directing the performance of any particular act which order, when implemented, will remedy a wrong and give effect to the primary objects of this Act ; iv. a declaratory order; v. an award of compensation in any circumstances contemplated in this Act; vi. an award of damages in any circumstances contemplated in this Act; and vii. an order for costs; b. order compliance with any provision of this Act; c. make any arbitration award or any settlement agreement, other than a collective agreement , an order of the Court; d. request the Commission to conduct an investigation to assist the Court and to submit a report to the Court; e. determine a dispute between a registered trade union or registered employers' organisation , and any one of the members or applicants for membership thereof about any alleged non-compliance with - i. the constitution of that trade union or employers' organisation (as the case may be); or ii. section 26(5)(b) . f. subject to the provisions of this Act, condone the late filing of any document with, or the late referral of any dispute to, the Court; g. despite section 145, review the performance or purported performance of any function provided for in this Act or any act or omission of any person or body in terms of this Act on any grounds that are permissible in law; h. review any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law; i. hear and determine any appeal in terms of section 35 of the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993); and j. deal with all matters necessary or incidental to performing its functions in terms of this Act or any other law. 2. If at any stage after a dispute has been referred to the Labour Court, it becomes apparent that the dispute ought to have been referred to arbitration, the Court may- a. stay the proceedings and refer the dispute to arbitration; or b. with the consent of the parties and if it is expedient to do so, continue with the proceedings with the Court sitting as an arbitrator, in which case the Court may only make any order that a commissioner or arbitrator would have been entitled to make. 3. The reference to "arbitration" in subsection (2) must be interpreted to include arbitration- a. under the auspices of the Commission; b. under the auspices of an accredited council ; c. under the auspices of an accredited agency; d. in accordance with a private dispute resolution procedure; or e. if the dispute is about the interpretation or application of a collective agreement . 4. a. The Labour Court, on its own accord or, at the request of any party to the proceedings before it may reserve for the decision of the Labour Appeal Court any question of law that arises in those proceedings. b. A question may be reserved only if it is decisive for the proper adjudication of the dispute. c. Pending the decision of the Labour Appeal Court on any question of law reserved in terms of paragraph (a), the Labour Court may make any interim order. Chapter VII: Dispute Resolution Part D: Labour Court 159. Rules Board for Labour Courts and rules for Labour Court 1. The Rules Board for Labour Courts is hereby established. 2. The Board consists of- a. the Judge President of the Labour Court, who is the chairperson; b. the Deputy Judge President of the Labour Court, and c. the following persons, to be appointed for a period of three years by the Minister of Justice, acting on the advice of NEDLAC - i. a practising advocate with knowledge, experience and expertise in labour law; ii. a practicing attorney with knowledge, experience and expertise in labour law; iii. a person who represents the interests of employees; iv. a person who represents the interests of employers; and v. a person who represents the interests of the State. 3. The Board may make rules to regulate the conduct of proceedings in the Labour Court, including, but not limited to- a. the process by which proceedings are brought before the Court, and the form and content of that process; b. the period and process for noting appeals; c. the taxation of bills of costs; d. after consulting with the Minister of Finance, the fees payable and the costs and expenses allowable in respect of the service or execution of any process of the Labour Court, and the tariff of costs and expenses that may be allowed in respect of that service or execution; and e. all other matters incidental to performing the functions of the Court, including any matters not expressly mentioned in this subsection that are similar to matters about which the Rules Board for Courts of Law may make rules in terms of section 6 of the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985). 4. The Board may alter or repeal any rule that it makes. 5. Five members of the Board are a quorum at any meeting of the Board. 6. The Board must publish any rules that it makes, alters or repeals in the Government Gazette. 7. a. A member of the Board who is a judge of the High Court may be paid an allowance determined in terms of subsection (9) in respect of the performance of the functions of a member of the Board. b. Notwithstanding anything to the contrary in any other law, the payment, in terms of paragraph (a), of an allowance to a member of the Board who is a judge of the High Court, will be in addition to any salary or allowances, including allowances for reimbursement of travelling and subsistence expenses, that is paid to that person in the capacity of a judge of that Court. 8. A member of the Board who is not a judge of the High Court nor subject to the Public Service Act, 1994, will be entitled to the remuneration, allowances (including allowances for reimbursement of travelling ad subsistence expenses), benefits and privileges determined in terms of subsection(9). 9. The remuneration, allowances, benefits and privileges of the members of the Board - a. are determined by the Minister of Justice with the concurrence of the Minister of Finance; b. may vary according to rank, functions to be performed and whether office is held in a full-time or part-time capacity; and c. may be varied by the Minister of Justice under any law in respect of any person or category of persons. 10. a. Pending publication in the Government Gazette of rules made by the Board, matters before the Court will be dealt with in accordance with such general directions as the Judge President of the Labour Court, or any other judge or judges of that Court designated by the Judge President for that purpose, may consider appropriate and issue in writing. b. Those directions will cease to be of force on the date of the publication of the Board's rules in the Government Gazette, except in relation to proceedings already instituted before that date. With regard to those proceedings, those directions will continue to apply unless the Judge President of the Labour Court has withdrawn them in writing. Chapter VII: Dispute Resolution Part D: Labour Court 160. Proceedings of Labour Court to be carried on in open court 1. The proceedings in the Labour Court must be carried on in open court. 2. Despite subsection (1), the Labour Court may exclude the members of the general public, or specific persons, or categories of persons from the proceedings in any case where a court of a provincial division of the Supreme Court could have done so. Chapter VII: Dispute Resolution Part D: Labour Court 161. Representation before Labour Court In any proceedings before the Labour Court, a party to the proceedings may appear in person or be represented only by-- a. a legal practitioner b. a director or employee of the party; c. any member, office-bearer or official of that party's registered trade union or registered employers' organization; d. a designated agent of a council; or e. an official of the Department of Labour. Chapter VII: Dispute Resolution Part D: Labour Court 162. Costs 1. The Labour Court may make an order for the payment of costs, according to the requirements of the law and fairness. 2. When deciding whether or not to order the payment of costs, the Labour Court may take into account- a. whether the matter referred to the Court ought to have been referred to arbitration in terms of this Act and, if so, the extra costs incurred in referring the matter to the Court; and b. the conduct of the parties- i. in proceeding with or defending the matter before the Court; and ii. during the proceedings before the Court. 3. The Labour Court may order costs against a party to the dispute or against any person who represented that party in those proceedings before the Court. Chapter VII: Dispute Resolution Part D: Labour Court 163. Service and enforcement of orders of Labour Court Any decision, judgment or order of the Labour Court may be served and executed as if it were a decision, judgment or order of the High Court. Chapter VII: Dispute Resolution Part D: Labour Court 164. Seal of Labour Court 1. The Labour Court for use as occasion may require, will have an official seal of a design prescribed by the President by proclamation in the Government Gazette. 2. The registrar of the Labour Court must keep custody of the official seal of the Labour Court. Chapter VII: Dispute Resolution Part D: Labour Court 165. Variation and rescission of orders of Labour Court The Labour Court, acting of its own accord or on the application of any affected party may vary or rescind a decision, judgment or order- a. erroneously sought or erroneously granted in the absence of any party affected by that judgment or order; b. in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; or c. granted as a result of a mistake common to the parties to the proceedings. Chapter VII: Dispute Resolution Part D: Labour Court 166. Appeals against judgment or order of Labour Court 1. Any party to any proceedings before the Labour Court may apply to the Labour Court for leave to appeal to the Labour Appeal Court against any final judgment or final order of the Labour Court. 2. If the application for leave to appeal is refused, the applicant may petition the Labour Appeal Court for leave to appeal. 3. Leave to appeal may be granted subject to any conditions that the Court concerned may determine. 4. Subject to the Constitution and despite any other law, an appeal against any final judgment or final order of the Labour Court in any matter in respect of which the Labour Court has exclusive jurisdiction may be brought only to the Labour Appeal Court. Chapter VII: Dispute Resolution Part E: Labour Appeal Court 167. Establishment and status of Labour Appeal Court 1. The Labour Appeal Court is hereby established as a court of law and equity. 2. The Labour Appeal Court is the final court of appeal in respect of all judgments and orders made by the Labour Court in respect of the matters within its exclusive jurisdiction. 3. The Labour Appeal Court is a superior court that has authority, inherent powers and standing, in relation to matters under its jurisdiction, equal to that which the Supreme Court of Appeal has in relation to matters under its jurisdiction. 4. The Labour Appeal Court is a court of record. Chapter VII: Dispute Resolution Part E: Labour Appeal Court 168. Composition of Labour Appeal Court 1. The Labour Appeal Court consists of- a. the Judge President of the Labour Court, who by virtue of that office is Judge President of the Labour Appeal Court; b. the Deputy Judge President, who by virtue of that office is Deputy Judge President of the Labour Appeal Court; and c. such number of other judges who are judges of the High Court, as may be required for the effective functioning of the Labour Appeal Court. 2. The Labour Appeal Court is constituted before any three judges whom the Judge President designates from the panel of judges contemplated in subsection (1). 3. No judge of the Labour Appeal Court may sit in the hearing of an appeal against a judgment or an order given in a case that was heard before that judge. Chapter VII: Dispute Resolution Part E: Labour Appeal Court 169. Appointment of other judges of Labour Appeal Court 1. The President, acting on the advice of NEDLAC and the Judicial Service Commission, after consultation with the Minister of Justice and the Judge President of the Labour Appeal Court, must appoint the three judges of the Labour Appeal Court referred to in section 168(1)(c). 2. The Minister of Justice, after consultation with the Judge President of the Labour Appeal Court, may appoint one or more judges of the High Court to serve as acting judges of the Labour Appeal Court. Chapter VII: Dispute Resolution Part E: Labour Appeal Court 170. Tenure, remuneration and terms and conditions of appointment of Labour Appeal Court judges 1. A judge of the Labour Appeal Court must be appointed for a fixed term determined by the President at the time of appointment. 2. A judge of the Labour Appeal Court may resign by giving written notice to the President. 3. a. A judge of the Labour Appeal Court holds office until- i. the judge's term of office in the Labour Appeal Court ends; ii. the judge's resignation takes effect; iii. the judge is removed from office; iv. the judge ceases to be a judge of the High Court; or v. the judge dies. b. The Judge President and the Deputy Judge President of the Labour Appeal Court hold their offices for as long as they hold their respective offices of Judge President and Deputy Judge President of the Labour Court. 4. Neither the tenure of office nor the remuneration and terms and conditions of appointment applicable to a judge of the High Court in terms of the Judges' Remuneration and Conditions of Employment Act, 1989 (Act No. 88 of 1989), is affected by that judge's appointment and concurrent tenure of office as a judge of the Labour Appeal Court. 5. A judge of the Labour Appeal Court- a. may be removed from the office of judge of the Labour Appeal Court only if that person has first been removed from the office of a judge of the High Court; and b. upon having been removed as judge of the High Court must be removed from office as a judge of the Labour Appeal Court. 6. Despite the expiry of the period of a person's appointment as a judge of the Labour Appeal Court, that person may continue to perform the functions of a judge of that Court, and will be regarded as such in all respects, only - a. for the purposes of disposing of any proceedings in which that person has taken part as a judge of that Court and which are still pending upon the expiry of that person's appointment or which, having been so disposed of before or after the expiry of that person's appointment, have been re-opened; and b. for as long as that person will be necessarily engaged in connection with the disposal of proceedings so pending or re-opened. 7. The provisions of subsection (2) to (6) apply, read with the changes required by the context, to acting judges appointed in terms of section 169(2) . Chapter VII: Dispute Resolution Part E: Labour Appeal Court 171. Officers of Labour Appeal Court 1. The registrar of the Labour Court is also the registrar of the Labour Appeal Court. 2. Each of the deputy registrars and other officers of the Labour Court also holds the corresponding office in relation to the Labour Appeal Court. 3. a. The officers of the Labour Appeal Court, under the supervision and control of the registrar of that Court must perform the administrative functions of the Labour Appeal Court. b. A deputy registrar of the Labour Appeal Court may perform any of the functions of the registrar of that Court that have been delegated generally or specifically to the deputy registrar. 4. The deputy registrar of the Labour Appeal Court or, if there is more than one, the most senior will act as registrar of the Labour Appeal Court whenever- a. the registrar is absent from the Republic or from duty, or for any reason is temporarily unable to perform the functions of registrar; or b. the office of registrar is vacant. Chapter VII: Dispute Resolution Part E: Labour Appeal Court 172. Area of jurisdiction and seat of Labour Appeal Court 1. The Labour Appeal Court has jurisdiction in all the provinces of the Republic . 2. The seat of the Labour Court is also the seat of the Labour Appeal Court. 3. The functions of the Labour Appeal Court may be performed at any place in the Republic. Top of Form Bottom of Form Chapter VII: Dispute Resolution Part E: Labour Appeal Court 173. Jurisdiction of Labour Appeal Court 1. Subject to the Constitution and despite any other law, the Labour Appeal Court has exclusive jurisdiction- a. to hear and determine all appeals against the final judgments and the final orders of the Labour Court; and b. to decide any question of law reserved in terms of section 158(4). 2. [Subs. (2) deleted by Section 22 of Act No. 127 of 1998] 3. An appeal to the Labour Appeal Court must be noted and prosecuted as if it were an appeal to the Supreme Court of Appeal in civil proceedings, except that the appeal must be noted within 21 days after the date on which leave to appeal has been granted. 4. A decision to which any two judges of the Labour Appeal Court agree is the decision of the Court. Chapter VII: Dispute Resolution Part E: Labour Appeal Court 174. Powers of Labour Appeal Court on hearing of appeals The Labour Appeal Court has the power- a. on the hearing of an appeal to receive further evidence, either orally or by deposition before a person appointed by the Labour Appeal Court, or to remit the case to the Labour Court for further hearing, with such instructions as regards the taking of further evidence or otherwise as the Labour Appeal Court considers necessary; and b. to confirm, amend or set aside the judgment or order that is the subject of the appeal and to give any judgment or make any order that the circumstances may require. Chapter VII: Dispute Resolution Part E: Labour Appeal Court 175. Labour Appeal Court may sit as court of first instance Despite the provisions of this Part, the Judge President may direct that any matter before the Labour Court be heard by the Labour Appeal Court sitting as a court of first instance, in which case the Labour Appeal Court is entitled to make any order that the Labour Court would have been entitled to make. Chapter VII: Dispute Resolution Part E: Labour Appeal Court 176. Rules for Labour Appeal Court 1. The Rules Board for Labour Courts established by section 159 may make rules to regulate the conduct of proceedings in the Labour Appeal Court. 2. The Board has all the powers referred to in section 159 when it makes rules for the Labour Appeal Court. 3. The Board must publish in the Government Gazette any rules that it makes, alters or repeals. Chapter VII: Dispute Resolution Part E: Labour Appeal Court 177. Proceedings of Labour Appeal Court to be carried on in open court 1. The proceedings in the Labour Appeal Court must be carried on in open court. 2. Despite subsection (1), the Labour Appeal Court may exclude the members of the general public, or specific persons, or categories of persons from the proceedings in any case where a High Court could have done so. Chapter VII: Dispute Resolution Part E: Labour Appeal Court 178. Representation before Labour Appeal Court Any person who, in terms of section 161, may appear before the Labour Court has the right to appear before the Labour Appeal Court. Chapter VII: Dispute Resolution Part E: Labour Appeal Court 179. Costs 1. The Labour Appeal Court may make an order for the payment of costs, according to the requirements of the law and fairness. 2. When deciding whether or not to order the payment of costs, the Labour Appeal Court may take into account- a. whether the matter referred to the Court should have been referred to arbitration in terms of this Act and, if so, the extra costs incurred in referring the matter to the Court; and b. the conduct of the parties- i. in proceeding with or defending the matter before the Court; and ii. during the proceedings before the Court. 3. The Labour Appeal Court may order costs against a party to the dispute or against any person who represented that party in those proceedings before the Court. Chapter VII: Dispute Resolution Part E: Labour Appeal Court 180. Service and enforcement of orders Any decision, judgment or order of the Labour Appeal Court may be served and executed as if it were a decision, judgment or order of the High Court. Chapter VII: Dispute Resolution Part E: Labour Appeal Court 181. Seal of Labour Appeal Court 1. The Labour Appeal Court for use as the occasion may require will have an official seal of a design prescribed by the President by proclamation in the Government Gazette. 2. The registrar of the Labour Appeal Court must keep custody of the official seal of the Labour Appeal Court. Chapter VII: Dispute Resolution Part E: Labour Appeal Court 182. Judgments of Labour Appeal Court binding on Labour Court A judgment of the Labour Appeal Court is binding on the Labour Court. Chapter VII: Dispute Resolution Part E: Labour Appeal Court 183. Labour Appeal Court final court of appeal Subject to the Constitution and despite any other law, no appeal lies against any decision, judgment or order given by the Labour Appeal Court in respect of- a. any appeal in terms of section 173(1)(a); b. its decision on any question of law in terms of section 173(1)(b); or c. any judgment or order made in terms of section 175. Chapter VII: Dispute Resolution Part F: General Provisions applicable to Courts established by this Act 184. General provisions applicable to courts established by this Act Sections 5, (Scope and execution of process.) 18, (Certified copies of court records admissible as evidence.) 25, (No process to be issued against judge except with consent of court.) 30, (Manner of securing attendance of witnesses or the production of any document.) 31, (Manner in which witness may be dealt with on refusal to give evidence or produce document.) 39, (Property not liable to be seized in execution.) 40, (Offenses relating to execution.) and 42 (Witness fees.) of the Supreme Court Act, 1959 (Act No. 59 of 1959) apply, read with the changes required by the context, in relation to the Labour Court, or the Labour Appeal Court, or both, to the extent that they are not inconsistent with this Act . Chapter VIII: Unfair Dismissal 185. Right not to be unfairly dismissed Every employee has the right not to be unfairly dismissed. Chapter VIII: Unfair Dismissal 186. Meaning of dismissal "Dismissal" means that- a. an employer has terminated a contract of employment with or without notice; b. an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it; c. an employer refused to allow an employee to resume work after she- i. took maternity leave in terms of any law, collective agreement or her contract of employment; or ii. was absent from work for up to four weeks before the expected date, and up to eight weeks after the actual date, of the birth of her child; d. an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another; or e. an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee. Chapter VIII: Unfair Dismissal 187. Automatically unfair dismissals 1. A dismissal is automatically unfair if the employer, in dismissing the employee , acts contrary to section 5 (Section 5 confers protections relating to the right to freedom of association and on members of workplace forums.) or, if the reason for the dismissal is- a. that the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action that complies with the provisions of Chapter IV; (Chapter IV deals with industrial action and conduct in support of industrial action. Section 67(4) or (5) provide- "(4) An employer may not dismiss an employee for participating in a protected strike or for any conduct in contemplation or in furtherance of a protected strike. (5) Subsection (4) does not preclude an employer from fairly dismissing an employee in compliance with the provisions of Chapter VIII for a reason related to the employee's conduct during the strike, or for a reason based on the employer's operational requirements ." Section 77(3) provides- "A person who takes part in protest action or in any conduct in contemplation or in furtherance of protest action that complies with subsection (1), enjoys the protections conferred by section 67.") b. that the employee refused, or indicated an intention to refuse, to do any work normally done by an employee who at the time was taking part in a strike that complies with the provisions of Chapter IV or was locked out, unless that work is necessary to prevent an actual danger to life, personal safety or health; c. to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee; d. that the employee took action, or indicated an intention to take action against the employer by- i. exercising any right conferred by this Act; or ii. participating in any proceedings in terms of this Act; e. the employee's pregnancy, intended pregnancy, or any reason related to her pregnancy; f. that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility. 2. Despite subsection (1)(f)- a. a dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job; b. a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity. Top of Form Bottom of Form Chapter VIII: Unfair Dismissal 188. Other unfair dismissals 1. A dismissal that is not automatically unfair, is unfair if the employer fails to prove- a. that the reason for dismissal is a fair reason- i. related to the employee's conduct or capacity; or ii. based on the employer's operational requirements ; and b. that the dismissal was effected in accordance with a fair procedure. 2. Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act .(See Schedule 8, the Code of Good Practice: Dismissal.) Chapter VIII: Unfair Dismissal 189. Dismissals based on operational requirements (View the Code of Good Practice on Dismissal based on Operational Requirements) 1. When an employer contemplates dismissing one or more employees for reasons based on the employer's operational requirements , the employer must consult- a. any person whom the employer is required to consult in terms of a collective agreement ; b. if there is no collective agreement that requires consultation, a workplace forum , if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum; c. if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals; d. if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose. 2. The consulting parties must attempt to reach consensus on- a. appropriate measures- i. to avoid the dismissals; ii. to minimise the number of dismissals; iii. to change the timing of the dismissals; and iv. to mitigate the adverse effects of the dismissals; b. the method for selecting the employees to be dismissed; and c. the severance pay for dismissed employees. 3. The employer must disclose in writing to the other consulting party all relevant information, including, but not limited to- a. the reasons for the proposed dismissals; b. the alternatives that the employer considered before proposing the dismissals, and the reasons for rejecting each of those alternatives; c. the number of employees likely to be affected and the job categories in which they are employed; d. the proposed method for selecting which employees to dismiss; e. the time when, or the period during which, the dismissals are likely to take effect; f. the severance pay proposed; g. any assistance that the employer proposes to offer to the employees likely to be dismissed; and h. the possibility of the future re-employment of the employees who are dismissed. 4. The provisions of section 16 apply, read with the changes required by the context, to the disclosure of information in terms of subsection (3). 5. The employer must allow the other consulting party an opportunity during consultation to make representations about any matter on which they are consulting. 6. The employer must consider and respond to the representations made by the other consulting party and, if the employer does not agree with them, the employer must state the reasons for disagreeing. 7. The employer must select the employees to be dismissed according to selection criteria- a. that have been agreed to by the consulting parties; or b. if no criteria have been agreed, criteria that are fair and objective. Chapter VIII: Unfair Dismissal 190. Date of dismissal 1. The date of dismissal is the earlier of- a. the date on which the contract of employment terminated; or b. the date on which the employee left the service of the employer. 2. Despite subsection (1)- a. if an employer has offered to renew on less favourable terms, or has failed to renew, a fixed-term contract of employment, the date of dismissal is the date on which the employer offered the less favourable terms or the date the employer notified the employee of the intention not to renew the contract; b. if the employer refused to allow an employee to resume work, the date of dismissal is the date on which the employer first refused to allow the employee to resume work; c. if an employer refused to reinstate or re-employ the employee, the date of dismissal is the date on which the employer first refused to reinstate or re-employ that employee. Chapter VIII: Unfair Dismissal 191. Disputes about unfair dismissals See flow diagrams Nos. 10 , 11 , 12 and 13 in Schedule 4. 1. If there is a dispute about the fairness of a dismissal , the dismissed employee may refer the dispute in writing within 30 days of the date of dismissal to- a. a council , if the parties to the dispute fall within the registered scope of that council; or b. the Commission, if no council has jurisdiction. 2. If the employee shows good cause at any time, the council or the Commission may permit the employee to refer the dispute after the 30-day time limit has expired. 3. The employee must satisfy the council or the Commission that a copy of the referral has been served on the employer. 4. The council or the Commission must attempt to resolve the dispute through conciliation. 5. If a council or a commissioner has certified that the dispute remains unresolved, or if 30 days have expired since the council or the Commission received the referral and the dispute remains unresolved- a. the council or the Commission must arbitrate the dispute at the request of the employee if- i. the employee has alleged that the reason for dismissal is related to the employee's conduct or capacity, unless paragraph (b)(iii) applies; ii. the employee has alleged that the reason for dismissal is that the employer made continued employment intolerable; or iii. the employee does not know the reason for dismissal; or b. the employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is- i. automatically unfair; ii. based on the employer's operational requirements ; iii. the employee 's participation in a strike that does not comply with the provisions of Chapter IV; or iv. because the employee refused to join, was refused membership of or was expelled from a trade union party to a closed shop agreement. 6. Despite subsection (5)(a), the director must refer the dispute to the Labour Court, if the director decides, on application by any party to the dispute, that to be appropriate after considering- a. the reason for dismissal; b. whether there are questions of law raised by the dispute; c. the complexity of the dispute; d. whether there are conflicting arbitration awards that need to be resolved; e. the public interest. 7. When considering whether the dispute should be referred to the Labour Court, the director must give the parties to the dispute and the commissioner who attempted to conciliate the dispute, an opportunity to make representations. 8. The director must notify the parties of the decision and refer the dispute- a. to the Commission for arbitration; or b. to the Labour Court for adjudication. 9. The director's decision is final and binding. 10. No person may apply to any court of law to review the director's decision until the dispute has been arbitrated or adjudicated, as the case may be. 11. a. The referral, in terms of subsection (5)(b), of a dispute to the Labour Court for adjudication, must be made within 90 days after the council or (as the case may be) the commissioner has certified that the dispute remains unresolved. b. However, the Labour Court may condone non-observance of that timeframe on a good cause shown. Chapter VIII: Unfair Dismissal 192. Onus in dismissal disputes 1. In any proceedings concerning any dismissal , the employee must establish the existence of the dismissal. 2. If the existence of the dismissal is established, the employer must prove that the dismissal is fair. Chapter VIII: Unfair Dismissal 193. Remedies for unfair dismissal 1. If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may- a. order the employer to reinstate the employee from any date not earlier than the date of dismissal; b. order the employer to re-employ the employee , either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or c. order the employer to pay compensation to the employee. 2. The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless- a. the employee does not wish to be reinstated or re-employed; b. the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable; c. it is not reasonably practicable for the employer to reinstate or re-employ the employee; or d. the dismissal is unfair only because the employer did not follow a fair procedure. 3. If a dismissal is automatically unfair or, if a dismissal based on the employer's operational requirements is found to be unfair, the Labour Court in addition may make any other order that it considers appropriate in the circumstances. (The Court, for example, in the case of a dismissal that constitutes an act of discrimination may wish to issue an interdict obliging the employer to stop the discriminatory practice in addition to one of the other remedies it may grant.) Chapter VIII: Unfair Dismissal 194. Limits on compensation 1. If a dismissal is unfair only because the employer did not follow a fair procedure, compensation must be equal to the remuneration that the employee would have been paid between the date of dismissal and the last day of the hearing of the arbitration or adjudication, as the case may be, calculated at the employee's rate of remuneration on the date of dismissal. Compensation may however not be awarded in respect of any unreasonable period of delay that was caused by the employee in initiating or prosecuting a claim. 2. The compensation awarded to an employee whose dismissal is found to be unfair because the employer did not prove that the reason for dismissal was a fair reason related to the employee's conduct, capacity or based on the employer's operational requirements , must be just and equitable in all the circumstances, but not less than the amount specified in subsection (1), and not more than the equivalent of 12 months' remuneration calculated at the employee's rate of remuneration on the date of dismissal. 3. The compensation awarded to an employee whose dismissal is automatically unfair must be just and equitable in all the circumstances, but not more than the equivalent of 24 months' remuneration calculated at the employee's rate of remuneration on the date of dismissal. Chapter VIII: Unfair Dismissal 195. Compensation is in addition to any other amount An order or award of compensation made in terms of this Chapter is in addition to, and not a substitute for, any other amount to which the employee is entitled in terms of any law, collective agreement or contract of employment. Chapter VIII: Unfair Dismissal 196. Severance pay 1. An employer must pay an employee who is dismissed for reasons based on the employer's operational requirements severance pay equal to at least one week's remuneration for each completed year of continuous service with that employer, unless the employer has been exempted from the provisions of this subsection. 2. The Minister , after consulting NEDLAC and the Public Service Co-ordinating Bargaining Council, may vary the amount of severance pay in terms of subsection (1) by notice in the Government Gazette. 3. An employee who unreasonably refuses to accept the employer's offer of alternative employment with that employer or any other employer is not entitled to severance pay in terms of subsection (1). 4. The payment of severance pay in compliance with this section does not affect an employee's right to any other amount payable according to law. 5. An employer or a category of employers may apply to the Minister for exemption from the provisions of subsection (1) as if the application is one in terms of the Basic Conditions of Employment Act and the Minister may grant an exemption as if it were an exemption granted in terms of that Act. 6. If there is a dispute only about the entitlement to severance pay in terms of this section, the employee may refer the dispute in writing to- a. a council, if the parties to the dispute fall within the registered scope of that council; or b. the Commission, if no council has jurisdiction. 7. The employee who refers the dispute to the council or the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute. 8. The council or the Commission must attempt to resolve the dispute through conciliation. 9. If the dispute remains unresolved, the employee may refer it to arbitration. 10. If the Labour Court is adjudicating a dispute about a dismissal based on the employer's operational requirements , the Court may inquire into and determine the amount of any severance pay to which the dismissed employee may be entitled and the Court may make an order directing the employer to pay that amount. Chapter VIII: Unfair Dismissal 197. Transfer of contract of employment 1. A contract of employment may not be transferred from one employer (referred to as "the old employer") to another employer (referred to as "the new employer") without the employee's consent, unless- a. the whole or any part of a business, trade or undertaking is transferred by the old employer as a going concern; or b. the whole or a part of a business, trade or undertaking is transferred as a going concern- i. if the old employer is insolvent and being wound up or is being sequestrated; or ii. because a scheme of arrangement or compromise is being entered into to avoid winding up or sequestration for reasons of insolvency. 2. a. If a business, trade or undertaking is transferred in the circumstances referred to in subsection (1)(a), unless otherwise agreed, all the rights and obligations between the old employer and each employee at the time of the transfer continue in force as if they were rights and obligations between the new employer and each employee and, anything done before the transfer by or in relation to the old employer will be considered to have been done by or in relation to the new employer. b. If a business is transferred in the circumstances envisaged by subsection (1)(b), unless otherwise agreed, the contracts of all employees that were in existence immediately before the old employer's winding-up or sequestration transfer automatically to the new employer, but all the rights and obligations between the old employer and each employee at the time of the transfer remain rights and obligations between the old employer and each employee, and anything done before the transfer by the old employer in respect of each employee will be considered to have been done by the old employer. 3. An agreement contemplated in subsection (2) must be concluded with the appropriate person or body referred to in section 189(1). 4. A transfer referred to in subsection (1) does not interrupt the employee's continuity of employment. That employment continues with the new employer as if with the old employer. 5. The provisions of this section do not transfer or otherwise affect the liability of any person to be prosecuted for, convicted of, and sentenced for, any offense. Chapter IX: General Provisions 198. Temporary Employment Services 1. In this section, "temporary employment service" means any person who, for reward, procures for or provides to a client other persons- a. who render services to, or perform work for, the client; and b. who are remunerated by the temporary employment service. 2. For the purposes of this Act , a person whose services have been procured for or provided to a client by a temporary employment service is the employee of that temporary employment service, and the temporary employment service is that person's employer. 3. Despite subsections (1) and (2), a person who is an independent contractor is not an employee of a temporary employment service, nor is the temporary employment service the employer of that person. 4. The temporary employment service and the client are jointly and severally liable if the temporary employment service, in respect of any of its employees, contravenes- a. a collective agreement concluded in a bargaining council that regulates terms and conditions of employment; b. a binding arbitration award that regulates terms and conditions of employment; c. the Basic Conditions of Employment Act ; or d. a determination made in terms of the Wage Act . 5. Two or more bargaining councils may agree to bind the following persons, if they fall within the combined registered scope of those bargaining councils, to a collective agreement concluded in any one of them- a. temporary employment service; b. a person employed by a temporary employment service; and c. a temporary employment service client. 6. An agreement concluded in terms of subsection (5) is binding only if the collective agreement has been extended to non-parties within the registered scope of the bargaining council. 7. Two or more bargaining councils may agree to bind the following persons, who fall within their combined registered scope, to a collective agreement- a. temporary employment service; b. a person employed by a temporary employment service; and c. a temporary employment service's client. 8. An agreement concluded in terms of subsection (7) is binding only if- a. each of the contracting bargaining councils has requested the Minister to extend the agreement to non-parties falling within its registered scope; b. the Minister is satisfied that the terms of the agreement are not substantially more onerous than those prevailing in the corresponding collective agreements concluded in the bargaining councils; and c. the Minister, by notice in the Government Gazette, has extended the agreement as requested by all the bargaining councils that are parties to the agreement. Chapter IX: General Provisions 199. Contracts of employment may not disregard or waive collective agreements or arbitration awards 1. A contract of employment, whether concluded before or after the coming into operation of any applicable collective agreement or arbitration award, may not- a. permit an employee to be paid remuneration that is less than that prescribed by that collective agreement or arbitration award; b. permit an employee to be treated in a manner, or to be granted any benefit, that is less favourable than that prescribed by that collective agreement or arbitration award; or c. waive the application of any provision of that collective agreement or arbitration award. 2. A provision in any contract that purports to permit or grant any payment, treatment, benefit, waiver or exclusion prohibited by subsection (1) is invalid. Chapter IX: General Provisions 200. Representation of employees or employers 1. A registered trade union or registered employers' organization may act in any one or more of the following capacities in any dispute to which any of its members is a party- a. in its own interest; b. on behalf of any of its members; c. in the interest of any of its members. 2. A registered trade union or a registered employers' organisation is entitled to be a party to any proceedings in terms of this Act if one or more of its members is a party to those proceedings. Chapter IX: General Provisions 201. Confidentiality 1. A person commits an offence by disclosing any information relating to the financial or business affairs of any other person or any business, trade or undertaking if the information was acquired by the first-mentioned person in the performance of any function or exercise of any power in terms of this Act , in any capacity, by or on behalf of- a. a council ; b. any independent body established by a collective agreement or determination to grant exemptions from the provisions of the collective agreement or determination; c. the registrar ; d. the Commission; and e. an accredited agency. 2. Subsection (1) does not apply if the information was disclosed to enable a person to perform a function or exercise a power in terms of this Act . 3. a. A person convicted of an offence in terms of this section may be sentenced to a fine not exceeding R10,000.00. b. The Minister, in consultation with the Minister of Justice, may from time to time by notice in the Government Gazette, amend the maximum amount of the fine referred to in paragraph (a). Chapter IX: General Provisions 202. Service of documents 1. If a registered trade union or a registered employers' organisation acts on behalf of any of its members in a dispute , service on that trade union or employers' organization of any document directed to those members in connection with that dispute, will be sufficient service on those members for the purposes of this Act . 2. Service on the Office of the State Attorney of any legal process directed to the State in its capacity as an employer is service on the State for the purposes of this Act. Chapter IX: General Provisions 203. Codes of good practice 1. NEDLAC may- a. prepare and issue codes of good practice; and b. change or replace any code of good practice . 2. Any code of good practice, or any change to or replacement of a code of good practice, must be published in the Government Gazette. 3. Any person interpreting or applying this Act must take into account any relevant code of good practice. Chapter IX: General Provisions 204. Collective agreement, arbitration award or wage determination to be kept by employer Unless a collective agreement , arbitration award or determination made in terms of the Wage Act provides otherwise, every employer on whom the collective agreement, arbitration award, or determination is binding must- a. keep a copy of that collective agreement, arbitration award or determination available in the workplace at all times; b. make that copy available for inspection by any employee ; and c. give a copy of that collective agreement, arbitration award or determination- i. to an employee who has paid the prescribed fee; and ii. free of charge, on request, to an employee who is a trade union representative or a member of a workplace forum . Chapter IX: General Provisions 205. Records to be kept by employer 1. Every employer must keep the records that an employer is required to keep in compliance with any applicable- a. collective agreement ; b. arbitration award; c. determination made in terms of the Wage Act . 2. An employer who is required to keep records in terms of subsection (1) must- a. retain those records in their original form or a reproduced form for a period of three years from the date of the event or end of the period to which they relate; and b. submit those records in their original form or a reproduced form in response to a demand made at any reasonable time, to any agent of a bargaining council , commissioner or any person whose functions in terms of this Act include the resolution of disputes. 3. a. An employer must keep a record of the prescribed details of any strike , lock-out or protest action involving its employees. b. An employer must submit those records in the prescribed manner to the registrar . Chapter IX: General Provisions 206. Effect of certain defects and irregularities 1. Despite any provision in this Act or any other law, a defect does not invalidate- a. the constitution or the registration of any registered trade union , registered employers' organisation or council ; b. any collective agreement or arbitration award that would otherwise be binding in terms of this Act; c. any act of a council; or d. any act of the director or a commissioner. 2. A defect referred to in subsection (1) means- a. a defect in, or omission from, the constitution of any registered trade union, registered employers' organisation or council; b. a vacancy in the membership of any council; or c. any irregularity in the appointment or election of- i. a representative to a council; ii. an alternate to any representative to a council; iii. a chairperson or any other person presiding over any meeting of a council or a committee of a council; or iv. the director or a commissioner. Chapter IX: General Provisions 207. Ministers empowered to add and change to Schedules 1. The Minister , after consulting NEDLAC , by notice in the Government Gazette, may change, replace or add to Scedules 2 and 4 to this Act , and the Schedule envisaged in subsection (3). 2. The Minister for the Public Service and Administration, after consulting NEDLAC and the Public Service Co-ordinating Bargaining Council, by notice in the Government Gazette, may add to, change or replace Schedule 1. 3. The Minister, after consulting NEDLAC, by notice in the Government Gazette, may add to this Act a further Schedule containing a model constitution for a statutory council . 4. The Minister for the Public Service and Administration, after consulting the Public Service Co-ordinating Bargaining Council, by notice in the Government Gazette, may add to this Act a further schedule regulating the establishment and the constitutions of workplace forums in the public service . 5. The Minister may add to, change or replace any page header or footnote. 6. The Minister , in consultation with the Minister of Trade and Industry and after consulting NEDLAC , by notice in the Government Gazette, may add to this Act a further schedule listing institutions referred to in section 32(4). Chapter IX: General Provisions 208. Regulations The Minister , after consulting NEDLAC and when appropriate, the Commission, may make regulations not inconsistent with this Act relating to- a. any matter that in terms of this Act may or must be prescribed ; and b. any matter that the Minister considers necessary or expedient to prescribe or have governed by regulation in order to achieve the primary objects of this Act. Chapter IX: General Provisions 208A. Delegations 1. The Minister, in writing, may delegate to the Director-General or any other officer of the Department of Labour any power, function or duty conferred or imposed upon the Minister in terms of this Act, except the powers, functions and duties contemplated in section 32 (but excluding subsection (6)), and sections 44, 207, and 208. 2. A delegation in terms of subsection (1) does not limit or restrict the competence of the Minister to exercise or perform any power, function or duty that has been delegated. 3. The Minister may make a delegation subject to any conditions or restrictions that are deemed fit. 4. The Minister may at any time - a. withdraw a delegation made in terms of subsection (1); and b. withdraw or amend any decision made by a person in exercising a poweror performing a function or duty delegated in terms of subsection (1). Chapter IX: General Provisions 209. This Act binds the State This Act binds the State. Chapter IX: General Provisions 210. Application of Act when in conflict with other laws If any conflict, relating to the matters dealt with in this Act , arises between this Act and the provisions of any other law save the Constitution or any Act expressly amending this Act, the provisions of this Act will prevail. Chapter IX: General Provisions 211. Amendment of laws Each of the laws referred to in items 1 and 2 of Schedule 5 is hereby amended to the extent specified in those items. Chapter IX: General Provisions 212. Repeal of laws, and transitional arrangements 1. Each of the laws referred to in the first two columns of Schedule 6 is hereby repealed to the extent specified opposite that law in the third column of that Schedule. 2. The repeal of those laws does not affect any transitional arrangements made in Schedule 7. 3. The transitional arrangements in Schedule7 must be read and applied as substantive provisions of this Act. Chapter IX: General Provisions 213. Definitions In this Act , unless the context otherwise indicates- "area" includes any number of areas, whether or not contiguous; "auditor" means any person who is registered to practise in the Republic as a public accountant and auditor; "bargaining council" means a bargaining council referred to in section 27 and includes, in relation to the public service , the bargaining councils referred to in section 35; "Basic Conditions of Employment Act" means the Basic Conditions of Employment Act, 1983 (Act No. 3 of 1983); "code of good practice" means a code of practice issued by NEDLAC in terms of section 203(1) of this Act; "collective agreement" means a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions , on the one hand and, on the other hand- a. one or more employers; b. one or more registered employers' organisations; or c. one or more employers and one or more registered employers' organisations; "council" includes a bargaining council and a statutory council ; "director" means the director of the Commission appointed in terms of section 118(1) and includes any acting director appointed in terms of section 119; "dismissal" means dismissal as defined in section 186; ''dispute" includes an alleged dispute; "employee" means- a. any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration ; and b. any other person who in any manner assists in carrying on or conducting the business of an employer, and "employed" and "employment" have meanings corresponding to that of "employee"; ("Employee" is given a different and specific meaning in section 78 in Chapter V.) ''employers' organisation" means any number of employers associated together for the purpose, whether by itself or with other purposes, of regulating relations between employers and employees or trade unions; ''essential service" means- a. a service the interruption of which endangers the life, personal safety or health of the whole or any part of the population; b. the Parliamentary service; c. the South African Police Services; "issue in dispute", in relation to a strike or lock-out , means the demand, the grievance or the dispute that forms the subject matter of the strike or lock-out; "legal practitioner" means any person admitted to practise as an advocate or an attorney in the Republic ; "lock-out" means the exclusion by an employer of employees from the employer's workplace , for the purpose of compelling the employees to accept a demand in respect of any matter of mutual interest between employer and employee , whether or not the employer breaches those employees' contracts of employment in the course of or for the purpose of that exclusion; "Minister" means the Minister of Labour; "NEDLAC" means the National Economic Development and Labour Council established by section 2 of the National Economic, Development and Labour Council Act, 1994 (Act No. 35 of 1994); "office-bearer" means a person who holds office in a trade union , employers' organisation , federation of trade unions, federation of employers' organizations or council and who is not an official ; "official", in relation to a trade union , employers' organisation , federation of trade unions or federation of employers ' organizations means a person employed as the secretary, assistant secretary or organiser of a trade union, employers' organization or federation, or in any other prescribed capacity, whether or not that person is employed in a full-time capacity. And, in relation to a council means a person employed by a council as secretary or in any other prescribed capacity, whether or not that person is employed in a full-time capacity; "operational requirements" means requirements based on the economic, technological, structural or similar needs of an employer; "prescribed" means prescribed from time to time by regulation in terms of section 208; "protest action" means the partial or complete concerted refusal to work, or the retardation or obstruction of work, for the purpose of promoting or defending the socio-economic interests of workers, but not for a purpose referred to in the definition of strike; "public service" means the public service referred to in section 1(1) of the Public Service Act, 1994 (promulgated by Proclamation No. 103 of 1994), and includes any organizational component contemplated in section 7(4) of that Act and specified in the first column of Schedule 2 to that Act, but excluding- a. the members of the National Defence Force; b. the National Intelligence Agency; and c. the South African Secret Service. "registered scope" means- a. in the case of the Public Service Co-ordinating Bargaining Council, the public service as a whole, subject to section 36; b. in the case of bargaining councils established for sectors in the public service, the sector designated by the Public Service Co-ordinating Bargaining Council in terms of section 37(1) or by the President in terms of section 37(2) or (4); c. in the case of any other council , the sector and area in respect of which it is registered in terms of this Act ; 'registrar" means the registrar of labour relations appointed in terms of section 108 and includes- a. any deputy registrar appointed in terms of that section when acting on the direction or under a general or special delegation of the registrar; and b. any acting registrar appointed in terms of that section; "remuneration" means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State, and 'remunerate' has a corresponding meaning; "Republic" a. when used to refer to the State as a constitutional entity, means the Republic of South Africa as defined in section 1 of the Constitution; and b. when used in the territorial sense, means the national territory of the Republic as defined in section 1 of the Constitution; "sector" means, subject to section 37, an industry or a service; "serve" means to send by registered post, telegram, telex, telefax or to deliver by hand; "statutory council" means a council established in terms of Part E of Chapter III; "strike" means the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee , and every reference to "work'' in this definition includes overtime work, whether it is voluntary or compulsory; "this Act" includes the section numbers, the Schedules, except Schedules 4 and 8, and any regulations made in terms of section 208, but does not include the page headers, the headings or footnotes; "trade union" means an association of employees whose principal purpose is to regulate relations between employees and employers, including any employers' organisations; "trade union representative" means a member of a trade union who is elected to represent employees in a workplace ; "Wage Act" means the Wage Act, 1957 (Act No. 5 of 1957); "working hours" means those hours during which an employee is obliged to work; "workplace" a. in relation to a sector in the public service in respect of which a bargaining council has been established in terms of section 37 has the meaning that the responsible Minister determines after having consulted the bargaining council; b. in relation to the remainder of the public service, has the meaning that the Minister for the Public Service and Administration determines after having consulted the Public Service Co-ordinating Bargaining Council; c. in all other instances means the place or places where the employees of an employer work. If an employer carries on or conducts two or more operations that are independent of one another by reason of their size, function or organization, the place or places where employees work in connection with each independent operation, constitutes the workplace for that operation; and "workplace forum" means a workplace forum established in terms of Chapter V. Chapter IX: General Provisions 214. Short title and commencement 1. This Act is called the Labour Relations Act, 1995. 2. This Act will come into operation on a date to be determined by the President by proclamation in the Government Gazette, except in the case of any provision in relation to which some other arrangement regarding commencement is made elsewhere in this Act. Schedule 1: Establishment of Bargaining Councils for Public Service 1. Definitions for this Schedule In this Schedule, unless the context otherwise indicates- ''Education Labour Relations Act" means the Education Labour Relations Act, 1993 (Act No. 146 of 1993); "Education Labour Relations Council" means the council established by section 6(1) of the Education Labour Relations Act; "National Negotiating Forum" means the National Negotiating Forum established for the South African Police Service by the South African Police Service Labour Relations Regulations, 1995; "Public Service Bargaining Council" means the council referred to in section 5(1) of the Public Service Labour Relations Act; "Public Service Labour Relations Act" means the Public Service Labour Relations Act, 1994 (promulgated by Proclamation No. 105 of 1994). Schedule 1: Establishment of Bargaining Councils for Public Service 2. Establishment of Public Service Co-ordinating Bargaining Council 1. As soon as practicable after the commencement of this Act , the Commission, by notice in the Government Gazette, must invite the employee and employer representatives in the Education Labour Relations Council, the National Negotiating Forum and the central chamber of the Public Service Bargaining Council to attend a meeting, with a view to those representatives agreeing on a constitution for the Public Service Co-ordinating Bargaining Council. 2. The Commission must appoint a commissioner to chair the meeting and facilitate the conclusion of an agreement on a constitution that meets the requirements of section 30 read with the changes required by the context. 3. The parties to the Education Labour Relations Council, the National Negotiating Forum and the central chamber of the Public Service Bargaining Council will be the founding parties to the Public Service Co-ordinating Bargaining Council. 4. If an agreement is concluded and the registrar is satisfied that the constitution meets the requirements of section 30, the registrar must register the Public Service Co-ordinating Bargaining Council by entering its name in the register of councils. 5. If no agreement is concluded on a constitution. the registrar must- a. determine the constitution for the Public Service Co-ordinating Bargaining Council; b. register the Public Service Co-ordinating Bargaining Council by entering its name in the register of councils; and c. certify the constitution as the constitution of the Public Service Co-ordinating Bargaining Council. 6. After registering the Public Service Co-ordinating Bargaining Council, the registrar must- a. issue a certificate of registration that must specify the registered scope of the Public Services Co-ordinating Bargaining Council; and b. send the certificate and a certified copy of the constitution to the Public Service Co-ordinating Bargaining Council. Schedule 1: Establishment of Bargaining Councils for Public Service 3. Establishment of bargaining councils in sectors 1. The departmental and provincial chambers of the Public Service Bargaining Council are deemed to be bargaining councils established in terms of section 37(3)(a) of this Act , subject to any designation in terms of section 37(1) of this Act. 2. The Education Labour Relations Council is deemed to be a bargaining council established in terms of Section 37(3)(b) of this Act. 3. The National Negotiating Forum is deemed to be a bargaining council established for a sector designated in terms of section 37(2). 4. If the President designates a sector in terms of section 37(2), the President must inform the Commission and instruct it to convene a meeting of the representatives of the registered trade unions with members employed in the sector. 5. The Commission must publish a notice in the Government Gazette inviting registered trade unions with members employed in the sector to attend the meeting. 6. The Commission must appoint a commissioner to chair the meeting and facilitate the conclusion of an agreement on- a. the registered trade unions to be parties to the bargaining council; and b. a constitution that meets the requirements of section 30, read with the changes required by the context. 7. If agreement is concluded, the registrar must - a. admit the registered trade unions as parties to the bargaining council; and b. if satisfied that the constitution meets the requirements of section 30, register the bargaining council by entering its name in the resister of councils. 8. If no agreement is concluded on- a. the registered trade unions to be admitted, the Commission must decide which trade unions should be admitted; b. a constitution, the registrar, in accordance with the decisions made by the Commission in paragraph (a), must determine a constitution that meets the requirements of section 30), read with the changes required by the context. 9. The registrar must register the bargaining council for the sector by entering its name in the register of Councils. 10. After registering the bargaining council, the registrar must- a. issue a certificate of registration that must specify the registered scope of the bargaining Council; and b. send the certificate and a certified copy of the constitution to the bargaining council. Schedule 2: Guidelines for Constitution of Workplace Forum 1. Introduction 1. This Schedule contains guidelines for the constitution of a workplace forum . It is intended to guide representative trade unions that wish to establish a workplace forum, employers and commissioners. 2. This Act places the highest value on the establishment of workplace forums by agreement between a representative trade union and an employer. The role of the commissioner is to facilitate an agreement establishing the structure and functions of a Workplace forum . If agreement is not possible, either in whole or in part, the commissioner must refer to this Schedule, using its guidelines in a manner that best suits the particular workplace involved. 3. For convenience, the guidelines follow the sequence of the paragraphs in section 82 of this Act.. Schedule 2: Guidelines for Constitution of Workplace Forum 2. Number of seats in workplace forums (section 82(1)(a)) The formula to determine the number of seats in the workplace forum should reflect the size, nature, occupational structure and physical location of the Workplace. A guideline may be- a. in a workplace in which 100 to 200 employees are employed, five members: b. in a workplace in which 201 to 600 employees are employed, eight members; c. in a workplace in which 601 to 1 000 employees are employed, 10 members; d. in a workplace in which more than 1 000 employees are employed, 10 members for the first 1000 employees, plus an additional member for every additional 500 employees, up to a maximum of 20 members. Schedule 2: Guidelines for Constitution of Workplace Forum 3. Distribution of seats to reflect occupational structure (section 82(1)(b)) The formula to determine the distribution of seats in the workplace forum must reflect the occupational structure of the workplace . Example: There are 300 employees in a workplace. The occupational structure is as follows: 200 employees are manual employees; 50 are administrative and clerical employees; and 50 are supervisory, managerial and technical employees. The six seats may be distributed as follows- 4 seats for members to be elected from candidates nominated from among the manual employees 1 seat for members to be elected from candidates nominated from among the administrative and clerical employees 1 seat for members to be elected from candidates nominated from among the supervisory, managerial and technical employees. Schedule 2: Guidelines for Constitution of Workplace Forum 4. Elections (section 82(1)(c), (d), (g), (h), (i) and (j)) 1. The constitution must include provisions concerning the appointment of an election officer. Example: a. Every election or by-election in relation to a workplace forum must be conducted by an election officer appointed by agreement between the representative trade union and the employer. b. If the trade union and the employer cannot agree, the trade union may apply to the Commission to appoint an election officer. c. The Commission must appoint an election officer to conduct a by-election only if it is satisfied that the workplace forum cannot function adequately without a by-election. 2. The constitution must set out what the election officer should do and the procedure for an election. Example: a. Thirty days before each election of members of the workplace forum the election officer must- i. prepare a list of all employees in the workplace ; and ii. call for nominations for members of the workplace forum. b. Any employee may be nominated as a candidate for election as a member of the workplace forum by- i. any registered trade union with members employed in the work-place; ii. a petition signed by not less than 20 per cent of the employees in the workplace or 100 employees, whichever number of employees is the smaller. c. Any employee who is a member or has previously served as a member of a workplace forum is eligible for reselection. d. Fourteen days before each election of members of the workplace forum, the election officer must- i. confirm that the nominated candidates qualify for election; ii. publish a list of all qualified candidates who have been properly nominated; and iii. prepare a ballot for the election, listing the nominated candidates in alphabetical order by surname. e. Voting must be by secret ballot. f. Every employee is entitled to vote in he election of the workplace forum during working hours at the employer's premises. g. Every employee in the workplace is entitled to cast a number of votes equal to the number of members to be elected to the workplace forum. h. Every employee may cast one or more of those votes in favour of any candidate. Schedule 2: Guidelines for Constitution of Workplace Forum 5. Terms of office (section 82(1)(k), (l) and (m)) 1. The constitution must provide that the members of a workplace forum remain in office until the first meeting of the newly elected workplace forum. 2. The constitution must include provisions allowing the members to resign as well as provisions for the removal of members from office. Example: a. A member of a workplace forum may resign by giving written notice to the chairperson. b. A member of a workplace forum must vacate that office- i. when the member's resignation takes effect; ii. if the member is promoted to senior managerial status; iii. if the member is transferred from the workplace ; iv. if the member s employment is terminated; v. as a result of an award of a commissioner; or vi. if the representative trade union that nominated a member removes the member c. The representative trade union, the employer, or the workplace forum may apply to the Commission to have a member of the workplace forum removed from office on the grounds of gross dereliction of the duties of office. d. Twenty percent of the employees in the workplace may submit a signed petition to the Commission applying for the removal from office of a member of the workplace forum on the grounds of gross dereliction of the duties of office. e. An application to remove a member of a workplace forum from office must be decided by arbitration under the auspices of the Commission. f. A by-election to fill any vacancy in the workplace forum must be conducted by an election officer. Schedule 2: Guidelines for Constitution of Workplace Forum 6. Meetings of workplace forum (section 82(1)(n)) The constitution must include provisions governing meetings of the workplace forum . Example: a. The first meeting of a newly elected workplace forum must be convened by the election officer as soon as practicable after the election. b. At that meeting the members of the workplace forum must elect from among their number a chairperson and a deputy chairperson. c. The workplace forum must meet whenever necessary, but at least once a month. d. A quorum of the workplace forum must be a majority of the members of the workplace forum holding office at any time. e. A decision of the majority of the members of the workplace forum present at the meeting must be the decision of the workplace forum. f. The meetings between members of the workplace forum and the employees should be at least four times a year. Example 1: In a Workplace that is a single place, the meetings with the employees should be with all the members of the workplace forum. Example 2: In a workplace that is geographically dispersed, the meetings with the employees need not be with all the members of the workplace forum, but with one or more members of the workplace forum. Schedule 2: Guidelines for Constitution of Workplace Forum 7. Time off for members of workplace forum (section 82(1)(p)) The constitution must include provisions governing time off for members to perform their functions. Example: a. A member of a workplace forum is entitled to take reasonable time off during working hours with pay for the purpose of- i. performing the functions and duties of a member; and ii. undergoing training relevant to the performance of those functions and duties. b. The right to time off is subject to conditions that are reasonable, so as to prevent the undue disruption of work. c. The costs associated with the training must be paid by the employer, if those costs are reasonable, having regard to the size and capabilities of the employer. Schedule 2: Guidelines for Constitution of Workplace Forum 8. Facilities to be provided to workplace forum (section 82(1)(r)) The constitution must require the employer to provide adequate facilities to the workplace forum to perform its functions. Example: a. The employer must provide, at its cost- i. fees, facilities and materials that are necessary for the conduct of elections and by-elections of the workplace forum; and ii. administrative and secretarial facilities that are appropriate to enable the members of the workplace forum to perform their functions and duties. b. These facilities must include, but are not limited to, a room in which the workplace forum may meet and access to a telephone. c. The costs incurred by the employer in complying with the provisions of paragraphs (a) and (b) must be reasonable, having regard to the size and capabilities of the employer. Schedule 2: Guidelines for Constitution of Workplace Forum 9. Experts (section 82(1)(t)) The constitution may provide for the use of experts. Example: a. A workplace forum may ask experts to assist it in the performance of any of its functions. b. An expert must ensure that there is no conflict of interest between the assistance given to one workplace forum and another. c. An expert may attend any meeting of the workplace forum and, at its request, address any meetings of the workplace forum including a meeting with the employer or the employees. d. An expert is entitled to any information to which the workplace forum is entitled and may inspect and copy any document. Schedule 2: Guidelines for Constitution of Workplace Forum 10. Establishment of co-ordinating and subsidiary workplace forums (section 82(2)(b)) 1. Where an employer carries on or conducts two or more operations that are independent of each other by reason of their size, function or organization, the constitution may provide for the establishment of a co-ordinating workplace forum with jurisdiction over those matters mentioned in sections 84 and 86 that affect the employees generally and for the establishment of a subsidiary workplace forum in each of the workplaces with jurisdiction over those matters that affect only the employees in that workplace . 2. Where the employer has a workplace that is geographically dispersed and there are matters that are of local interest rather than general interest, the constitution may establish a Coordinating workplace forum with general jurisdiction and subsidiary workplace forums with local interest jurisdiction. Example: A bank with a head office may have many branches dispersed around the country. If the branches are not regarded as separate workplaces, the bank may have one workplace forum for all its employees or the constitution may allow for the establishment of a Coordinating workplace forum at head office level and in certain or all of the branches allow the establishment of subsidiary workplace forums that will deal with matters that affect only the employees in those branches. Schedule 3: Commission for Conciliation, Mediation and Arbitration 1. Remuneration and allowances of members of governing body The Minister , after consulting the Minister of Finance, must determine the remuneration and allowances and any other terms and conditions of appointment of members of the governing body. Schedule 3: Commission for Conciliation, Mediation and Arbitration 2. Resignation and removal from office of member of governing body 1. A member of the governing body may resign by giving notice to the governing body. 2. The Minister , acting on the advice of NEDLAC , may remove a member of the governing body from office for- a. serious misconduct; b. incapacity; or c. being absent from three consecutive meetings of the governing body without good cause or prior permission from the chairperson. Schedule 3: Commission for Conciliation, Mediation and Arbitration 3. Vacancies in governing body 1. A vacancy in the governing body exists whenever- a. a member's term of office ends; b. a member's resignation takes effect; c. a member is removed from office; or d. a member dies. 2. The Minister must fill a vacancy in the governing body as soon as is practicable In the meantime, the Commission's proceedings and decisions continue to be valid. 3. If a vacancy- a. is owing to the end of a member's term of office, the Minister may reappoint the member, or appoint another person nominated by NEDLAC in accordance with section 116(2) and (3); b. is owing to any other cause, the Minister must appoint another person nominated by NEDLAC in accordance with section 116(2) and (3) to replace the member and serve the unexpired portion of the replaced member's term of office. Schedule 3: Commission for Conciliation, Mediation and Arbitration 4. Proceedings of governing body 1. The governing body must determine procedures for its meetings. 2. A quorum for a meeting of the governing body is three members of the governing body. The quorum must include- a. one member who was nominated by those voting members of NEDLAC who represent organised business; b. one member who was nominated by those voting members of NEDLAC who represent organised labour; and c. one member who was nominated by those voting members of NEDLAC who represent the State. 3. Despite sub-item (2), a meeting of the governing body may be held in the absence of any member representing organised business or organised labour or the State, if those members have agreed to the meeting proceeding in the absence of that member and to the issues which may be dealt with in the absence of that member. 4. If the chairperson is absent from a meeting of the governing body, the members present must elect one of themselves to preside at that meeting, and at that meeting that member may exercise or perform any function of the chairperson. 5. A defect or error in the appointment of a member of the Commission does not affect the validity of the Commission's proceedings or decisions. Schedule 3: Commission for Conciliation, Mediation and Arbitration 5. Director of Commission 1. The director may resign by giving written notice to the governing body. 2. The governing body may remove the director from office for- a. serious misconduct; b. incapacity; c. a material violation of the Commission's code of conduct; or d. being absent from three consecutive meetings of the governing body without good cause or prior permission from the chairperson. 3. A vacancy in the office of director exists whenever- a. the director reaches the age of 65; b. the director's resignation takes effect; c. the governing body removes the director from office; or d. the director dies. 4. The governing body must appoint a director in accordance with the provisions of section 118 as soon as practicable after the office of the director becomes vacant. Schedule 3: Commission for Conciliation, Mediation and Arbitration 6. Bank account The governing body must open and maintain an account in the name of the Commission with a bank registered in the Republic , or with another registered financial institution approved by the Minister of Finance and, subject to item 7, must- a. deposit to that account any money that the Commission receives; and b. make all payments on behalf of the Commission from that account. Schedule 3: Commission for Conciliation, Mediation and Arbitration 7. Investment of surplus money The governing body may resolve to invest any money that the commission does not immediately require to meet current expenditure or contingencies- a. on call or short-term deposit with any bank that meets the requirements stated in item 6; b. if the Minister , with the concurrence of the Minister of Finance, gives written approval of the duration and other terms of the investment, in an investment account with the Corporation for Public Deposits. Schedule 3: Commission for Conciliation, Mediation and Arbitration 8. Accounting and auditing The Commission must, to the standards of generally accepted accounting practice, principles and procedures- a. keep books and records of its income, expenditure, assets and liabilities; b. as soon as practicable after the end of each financial year, prepare financial statements, including at least a statement of income and expenditure for the previous financial year and a balance sheet showing its assets, liabilities and financial position as at the end of the previous financial year; and c. each year, arrange for the Auditor-General to audit its books and records of account and its financial statements. Schedule 3: Commission for Conciliation, Mediation and Arbitration 9. Annual report 1. As soon as practicable after the end of each financial year, the Commission must provide the Minister with a report concerning the activities and the financial position of the Commission during the previous financial year. 2. The Minister must table the Commission's annual report in Parliament within 14 days of receiving it from the Commission, but if Parliament is not in session at that time, the Minister must table the report within 14 days of the beginning of the next session of Parliament. Schedule 4: Dispute Resolution Flow Diagrams 1: Freedom of Association 2: Organisational Rights 3: Collective Agreements 4: Collective Agreements (Agency Shop and Closed Shop Agreements) 5: Councils 6: Strikes and Lock-outs 7: Picketing 8: Essential Services 9: Workplace Forum (1) (Joint Decision Making) 10: Unfair Dismissal (1) (Automatically Unfair Reasons) 11: Unfair Dismissal (2) (Strikes and reasons related to closed shops) 12: Unfair Dismissal (3) (Misconduct / Incapacity) 13: Unfair Dismissal (4) (Operational requirements) 14: Unfair Labour Practice This Schedule contains flow diagrams that provide guidelines to the procedures for the resolution of some of the more important disputes that may arise under this Act. This Schedule not part of this Act. It does not have the force of law. The flow diagrams are intended only to provide assistance to those parties who may become involved in a dispute. The flow diagrams do not indicate the rights that parties may have to seek urgent interim relief, nor do they indicate the right of review or appeal that parties have to the Labour Court or the Labour Appeal Court in certain cases. This Act sets out the circumstances in which these rights are available. Awards and determinations by arbitrators are enforceable ultimately by the Labour Court. Schedule 4: Dispute Resolution 1. Freedom of Association (see annex) Schedule 4: Dispute Resolution 2. Organisational Rights (see annex) Schedule 4: Dispute Resolution 3. Collective Agreements (see annex) Schedule 4: Dispute Resolution 4. Collective Agreements (Agency Shop and Closed Shop Agreements) (See annex) Schedule 4: Dispute Resolution 5. Councils (See annex) Schedule 4: Dispute Resolution 6. Strikes and Lock-outs (Not in compliance with the Act) (see annex) Schedule 4: Dispute Resolution 7. Picketing (see annex) Schedule 4: Dispute Resolution 8. Essential Services (Dispute of interest in essential service) (see annex) Schedule 4: Dispute Resolution 9. Workplace Forum -1 (Joint Decision Making) (see annex) Schedule 4: Dispute Resolution 10. Unfair Dismissal - 1 (Automatically unfair reasons) (see annex) Schedule 4: Dispute Resolution 11. Unfair Dismissal - 2 (Strikes and reasons related to closed shops) (see annex) Schedule 4: Dispute Resolution 12. Unfair Dismissal - 3 (Misconduct / incapacity) (see annex) Schedule 4: Dispute Resolution 13. Unfair Dismissal - 4 (Operational Requirements) (see annex) Schedule 4: Dispute Resolution 14. Unfair Labour Practice (see annex) Schedule 5: Amendment of Laws 1. Amendment of section 1 of Basic Conditions of Employment Act Section 1 of the Basic Conditions of Employment Act is hereby amended by the substitution for subsection (3) of the following section- "(3) The Mines and Works Act, 1956 (Act No. 27 of 1956), the Wage Act , 1957 (Act No. 5 of 1957), the Manpower Training Act, 1981 (Act No. 56 of 1981) and the Labour Relations Act, 1995, as well as any matter regulated under any of them in respect of an employee , shall not be affected by this Act, but this Act shall apply in respect of any such employee in so far as a provision thereof provides for any matter which is not regulated by or under any of the said Acts in respect of such employee.". Schedule 5: Amendment of Laws 2. Amendment of section 35 of Occupational Health and Safety Act, 1993 Section 35 of the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993), is hereby amended- a. by the substitution for the words "industrial court", wherever they occur in subsection (3), of the words "Labour Court"; and b. by the substitution for subsection (4) of the following subsection- "(4) Any person who wishes to appeal in terms of subsection (3), shall within 60 days after the chief inspector's decision was given, lodge the appeal with the registrar of the Labour Court in accordance with the Labour Relations Act, 1995, and the rules of the Labour Court." . Schedule 5: Amendment of Laws 3. Amendment of Section 2 of Pension Funds Act, 1956 Section 2 of the Pension Funds Act, 1956 (Act No. 24 of 1956) is hereby amended by the substitution for subsection (1) of the following subsection: 1. The provisions of this Act shall not apply in relation to any pension fund which has been established or continued in terms of a collective agreement concluded in a council in terms of the Labour Relations Act, 1995 (Act No. 66 of 1995), before the Labour Relations Amendment Act, 1998, has come into operation, nor in relation to a pension fund so established or continued and which, in terms of a collective agreement concluded in that council after the coming into operation of the Labour Relations Amendment Act, 1998, is continued or further continued (as the case may be). However, such a pension fund shall from time to time furnish the registrar with such statistical information as may be requested by the Minister. Schedule 5: Amendment of Laws 4. Amendment of Section2 of Medical Schemes Act, 1967 Section 2(1) of the Medical Schemes Act, 1967 (Act no 72 of 1967), is hereby amended by the substitution for paragraph (g) of the following paragraph: g. shall, subject to the provisions of subsection (2A) apply with reference to-- i. a particular medical scheme established or continued in terms of a collective agreement concluded in a council in terms of the Labour Relations Act, 1995 (Act No 66 of 1995), before the Labour Relations Amendment Act, 1998, has come into operation; ii. a particular medical scheme which was established or continued in the circumstances mentioned in subparagraph (i) and which, in terms of a collective agreement so concluded in that council after the coming into operation of the Labour Relations Amendment Act, 1998, is continued or further continued (as the case may be), only if the Minister, at the request of the Minister of Labour and by notice in the Gazette, has declared the said provisions to be applicable with reference to such a particular medical scheme; Schedule 5: Amendment of Laws 5. Amendment of Section 1 of Insurance Act, 1943 Section 1(1) of the Insurance Act, 1943 (Act No. 27 of 1943), is hereby amended by the substitution for paragraph (d) of the definition of 'insurance business' of the following paragraph: d. any transaction under the Labour Relations Act, 1995 (Act No. 66 of 1995); Schedule 5: Amendment of Laws 6. Amendment of Section 2 of Friendly Societies Act, 1956 Section 2(1) of the Friendly Societies Act, 1956 (Act No. 25 of 1956), is hereby amended by the substitution for paragraph (g) of the following paragraph: g. the relief or maintenance of members, or any group of members, when unemployed or in distressed circumstances, otherwise than in consequence of the existence of a strike or lockout as defined in section 213 of the Labour Relations Act, 1995 (Act No. 66 of 1995); Schedule 5: Amendment of Laws 6. Amendment of Section 2 of Friendly Societies Act, 1956 Section 2(1) of the Friendly Societies Act, 1956 (Act No. 25 of 1956), is hereby amended by the substitution for paragraph (g) of the following paragraph: g. the relief or maintenance of members, or any group of members, when unemployed or in distressed circumstances, otherwise than in consequence of the existence of a strike or lockout as defined in section 213 of the Labour Relations Act, 1995 (Act No. 66 of 1995); Schedule 5: Amendment of Laws 7. Amendment of Section 3 of Friendly Societies Act, 1956 Section 3(1) of the Friendly Societies Act, 1956, is hereby amended by the substitution for paragraph (a) of the following paragraph: a. which has been established or continued in terms of a collective agreement concluded in a council in terms of the Labour Relations Act, 1995. However, such a friendly society shall from time to time furnish the registrar with such statistical information as may be requested by the Minister; Schedule 6: Laws repealed by Section 212 Number and year of law Short title Extent of repeal Act No. 28 of 1956 Labour Relations Act, 1956 The whole Act No. 41 of 1959 Industrial Conciliation Amendment Act, 1959 The whole Act No. 18 of 1961 Industrial Conciliation Amendment Act, 1961 The whole Act No. 43 of 1966 Industrial Conciliation Amendment Act, 1966 The whole Act No. 61 of 1966 Industrial Conciliation Further Amendment Act, 1966 The whole Act No. 104 of 1967 Industrial Conciliation Amendment Act, 1967 The whole Act No. 21 of 1970 Industrial Conciliation Amendment Act, 1970 The whole Act No. 94 of 1979 Industrial Conciliation Amendment Act, 1979 The whole Act No. 95 of 1980 Industrial Conciliation Amendment Act, 1980 The whole Act No.57 of 1981 Labour Relations Amendment Act, 1981 The whole Act No. 51 of 1982 Labour Relations Amendment Act, 1982 The whole Act No. 2 of 1983 Labour Relations Amendment Act. 1983 The whole Act No . 81 of 1984 Labour Relations Amendment Act, 1984 The whole Act No. 83 of 1 988 Labour Relations Amendment Act. 1988 The whole Act No. 9 of 1991 Labour Relations Amendment Act, 1991 The whole Act No. 129 of 1993 General Law Third Amendment Act, 1993 Section 9 only Act No. 146 of 1993 Education Labour Relations Act, 1993 The whole Act No. 147 of 1993 Agricultural Labour Act, 1993 Chapter 1 only Act No. 50 of 1994 Agricultural Labour Amendment Act, 1994 Section 1 only Proclamation No. 105 of 1994 Public Service Labour Relations Act, 1994 The whole Proclamation No. 128 of 1994 Education Labour Relations Act, Amendment Proclamation, 1994 The whole except section 6 Proclamation No. 134 of 1994 - Sections I and 2 only South African Police Service Labour Relations Regulations,1995 The whole Schedule 8: Code of Good Practice: Dismissal 1. Introduction 1. This code of good practice deals with some of the key aspects of dismissals for reasons related to conduct and capacity. It is intentionally general. Each case is unique, and departures from the norms established by this Code may be justified in proper circumstances. For example, the number of employees employed in an establishment may warrant a different approach. 2. This Act emphasises the primacy of collective agreements. This Code is not intended as a substitute for disciplinary codes and procedures where these are the subject of collective agreements, or the outcome of joint decision-making by an employer and a workplace forum . 3. The key principle in this Code is that employers and employees should treat one another with mutual respect. A premium is placed on both employment justice and the efficient operation of business. While employees should be protected from arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees. Schedule 8: Code of Good Practice: Dismissal 2. Fair reasons for dismissal 1. A dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment. Whether or not a dismissal is for a fair reason is determined by the facts of the case, and the appropriateness of dismissal as a penalty. Whether or not the procedure is fair is determined by referring to the guidelines set out below. 2. This Act recognises three grounds on which a termination of employment might be legitimate. These are: the conduct of the employee, the capacity of the employee , and the operational requirements of the employer's business. 3. This Act provides that a dismissal is automatically unfair if the reason for the dismissal is one that amounts to an infringement of the fundamental rights of employees and trade unions, or if the reason is one of those listed in section 187. The reasons include participation in a lawful strike, intended or actual pregnancy and acts of discrimination. 4. in cases where the dismissal is not automatically unfair, the employer must show that the reason for dismissal is a reason related to the employee's conduct or capacity, or is based on the operational requirements of the business. If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair. Schedule 8: Code of Good Practice: Dismissal 3. Disciplinary measures short of dismissal Disciplinary procedures prior to dismissal 1. All employers should adopt disciplinary rules that establish the standard of conduct required of their employees. The form and content of disciplinary rules will obviously vary according to the size and nature of the employer's business. In general, a larger business will require a more formal approach to discipline. An employer's rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood. Some rules or standards may be so well established and known that it is not necessary to communicate them. 2. The courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees' behaviour through a system of graduated disciplinary measures such as counselling and warnings. 3. Formal procedures do not have to be invoked every time a rule is broken or a standard is not met. Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. Repeated misconduct will warrant warnings, which themselves may be graded according to degrees of severity. More serious infringements or repeated misconduct may call for a final warning, or other action short of dismissal . Dismissal should be reserved for cases of serious misconduct or repeated offenses. Dismissals for misconduct 4. Generally, it is not appropriate to dismiss an employee for a first offense, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or willful damage to the property of the employer, willful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188. 5. When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee's circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself. 6. The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration. Schedule 8: Code of Good Practice: Dismissal 4. Fair procedure 1. Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal . This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision. 2. Discipline against a trade union representative or an employee who is an office-bearer or Official of a trade union should not be instituted without first informing and consulting the trade union. 3. If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement . 4. In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures. Schedule 8: Code of Good Practice: Dismissal 5. Disciplinary records Employers should keep records for each employee specifying the nature of any disciplinary transgressions, the actions taken by the employer and the reasons for the actions. Schedule 8: Code of Good Practice: Dismissal 6. Dismissals and industrial action 1. Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. However, like any other act of misconduct, it does not always deserve dismissal . The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including- a. the seriousness of the contravention of this Act ; b. attempts made to comply with this Act; and c. whether or not the strike was in response to unjustified conduct by the employer. 2. Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. The employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. If the employer cannot reasonably be expected to extend these steps to the employees in question, the employer may dispense with them. Schedule 8: Code of Good Practice: Dismissal 7. Guidelines in cases of dismissal for misconduct Any person who is determining whether a dismissal for misconduct is unfair should consider- a. whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace ; and b. if a rule or standard was contravened, whether or not- i. the rule was a valid or reasonable rule or standard; ii. the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; iii. the rule or standard has been consistently applied by the employer; and iv. dismissal was an appropriate sanction for the contravention of the rule or standard. Schedule 8: Code of Good Practice: Dismissal 8. Incapacity: Poor work performance 1. A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. The period should be determined by the nature of the job, and the time it takes to determine the employee's suitability for continued employment. When appropriate, an employer should give an employee whatever evaluation, instruction, training, guidance or counselling the employee requires to render satisfactory service. Dismissal during the probationary period should be preceded by an opportunity for the employee to state a case in response and to be assisted by a trade union representative or fellow employee. 2. After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has- a. given the employee appropriate evaluation, instruction, training, guidance or counselling; and b. after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily. 3. The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter. 4. In the process, the employee should have the right to be heard and to be assisted by a trade union representative or a fellow employee. Schedule 8: Code of Good Practice: Dismissal 9. Guidelines in cases of dismissal for poor work performance Any person determining whether a dismissal for poor work performance is unfair should consider- a. whether or not the employee failed to meet a performance standard; and b. if the employee did not meet a required performance standard whether or not- i. the employee was aware, or could reasonably be expected to have been aware, of the required performance standard; ii. the employee was given a fair opportunity to meet the required performance standard; and iii. dismissal was an appropriate sanction for not meeting the required performance standard. Schedule 8: Code of Good Practice: Dismissal 10. Incapacity: Ill health or injury 1. Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal . When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee's disability. 2. In the process of the investigation referred to in subsection (1) the employee should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee. 3. The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider. 4. Particular consideration should be given to employee who are injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. Schedule 8: Code of Good Practice: Dismissal 11. Guidelines in cases of dismissal arising from ill health or injury Any person determining whether a dismissal arising from ill health or injury is unfair should consider- a. whether or not the employee is capable of performing the work; and b. if the employee is not capable- i. the extent to which the employee is able to perform the work; ii. the extent to which the employee's work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee's duties might be adapted; and iii. the availability of any suitable alternative work. Schedule 9: Model Constitution for a Statutory Council 1. Name CONSTITUTION of __________________________________________. The name of this statutory council is ___________________________. Schedule 9: Model Constitution for a Statutory Council 2. Registered scope The registered scope of the council is specified in the council's certificate of registration attached to this constitution. Schedule 9: Model Constitution for a Statutory Council 3. Powers and functions 1. The powers and functions of the council are a. to perform the dispute resolution functions referred to in section 51 of the Act; b. to promote and establish training and education schemes; c. to establish and administer pension, provident, medical aid, sick pay, holiday and unemployment schemes or funds or any similar schemes or funds for the benefit of one or more of the parties to the council or their members; and d. to conclude collective agreements to give effect to the matters mentioned in paragraphs (a), (b) and (c). 2. The council may agree to the inclusion of any of the functions of a bargaining council referred to in section 28 (1)(a), (b), (c), (e), (h), (i) and (j) of the Act as functions of the council. 3. The council is only able to exercise these powers and perform these functions within its registered scope. Schedule 9: Model Constitution for a Statutory Council 4. Parties 1. The founding parties to the council are a. the following employers' organisation(s) i. __________________________________ ii. __________________________________ and iii. __________________________________ and (names) b. the following trade union(s)- i. __________________________________ ii. __________________________________ and iii. __________________________________ (names) 2. Any registered trade union or registered employers' organisation that has members that fall within the registered scope of the council may apply in writing to the council for admission as a party. 3. The application must be accompanied by a. a certified copy of the applicant's registered constitution; b. a certified copy of the applicant's certificate of registration; c. details of the applicant's membership within the registered scope of the council, including, in the case of an employers' organisation, the number of employees that its members employ within the council's registered scope; d. a statement of the reasons why the applicant ought to be admitted as a party to the council; and e. any other information on which the applicant relies in support of the application. 4. The council, within 90 days of receiving an application for admission, must decide whether to grant or refuse the applicant admission, and must advise the applicant of its decision, failing which the council is deemed to have refused the applicant admission. 5. If the council refuses to admit an applicant it must, within 30 days of the date of the refusal, advise the applicant in writing of its decision and the reasons for that decision. Schedule 9: Model Constitution for a Statutory Council 5. Appointment of representatives 1. The council consists of a. ___ representatives of the employers' organisations that are parties to the council, ___ of whom represent(s) small and medium enterprises; and b. ___ representatives of the trade unions that are parties to the council. 2. The representatives will be allocated among the parties to the council as follows - a. employers' organisation(s)number of representatives - _______________________________________________ _______________________________________________ _______________________________________________ (names) b. trade union(s)number of representatives- _______________________________________________ _______________________________________________ _______________________________________________ (names) 3. Subject to sub-clause (2) and to its own constitution, each party to the council may appoint a. its representatives to the council; and b. an alternate for each of its representatives. 4. a. A representative or an alternate will hold office for 12 months and will be eligible for re-appointment at the end of that term. b. A representative or an alternate whose term of office has expired and who is not re-appointed, may nevertheless continue to act as a representative until that representative's successor assumes office. 5. Despite sub-clause (4) a. a party may withdraw any of its representatives or alternates after having given at least 21 days' notice in writing to the secretary ; b. a representative who, without good cause, is absent from three consecutive meetings of the council, is disqualified from continuing in that office. 6. If the office of any representative or alternate becomes vacant, the party that appointed the representative or alternate may appoint another representative or alternate for the unexpired portion of the predecessor's term of office. Schedule 9: Model Constitution for a Statutory Council 6. Council meetings 1. The council must hold a. an annual general meeting in the month of ___ each year; and b. an ordinary meeting at least once every ___ month (s). 2. A special meeting of the council a. may be called at any time by the chairperson with a view to disposing of urgent business; and b. must be called by the chairperson within 14 days of i. receiving a request for that purpose, stating the purpose of the special meeting and signed by not less than ___ representatives; or ii. the adoption of a resolution by the council calling for a special meeting. 3. At the annual general meeting the council must a. elect the additional members of the executive committee ; b. elect the chairperson and the deputy chairperson of the council; c. appoint the members of the panel of conciliators referred to in clause 11(1)(a); d. appoint the members of the panel of arbitrators referred to in clause 11(1)(b); e. appoint the members of an exemptions board to consider and dispose of applications for exemption from the provisions of any collective agreement that may be concluded in the council; f. consider the annual financial statements of the council and the auditor's report on those statements; and g. consider and approve, with or without any amendments, the budget of the council for the next financial year as prepared in terms of clause 15(10) 4. The secretary must prepare a written notice of every council meeting stating the date, time and venue of the meeting and the business to be transacted, and must send the notice to each representative by registered post at least ___ days before the date of the meeting. However, the chairperson may authorise shorter notice for a special meeting. 5. At least half of the total number of employer representatives and half of the total number of employee representatives form a quorum and must be present before a meeting may begin or continue. 6. If, at the time fixed for a meeting to begin or continue, and for 30 minutes after that time, there is no quorum present, the meeting must be adjourned to the same place at the same time on the corresponding day in the following week unless that day is a public holiday, in which case the meeting must be adjourned to the day immediately after that public holiday. 7. A meeting that has been adjourned in terms of sub-clause (6) may proceed on the date to which it was adjourned with the representatives present at the time called for the meeting, regardless of whether or not notice has been given in terms of sub-clause (4) and whether or not a quorum is present. 8. The secretary must cause minutes to be kept of the proceedings at council meetings. 9. At every meeting of the council a. the secretary must read the minutes of the previous meeting, unless they were previously circulated; and b. after the minutes have been confirmed, with or without any amendments, the chairperson must sign the minutes. 10. A motion proposed at a meeting may not be considered unless it has been seconded. The chairperson may require a motion to be submitted in writing, in which case the chairperson must read the motion to the meeting. 11. Unless this constitution provides otherwise, all motions must be decided by a majority of votes of those present and entitled to vote and voting must be by show of hands. 12. Each representative has one vote on any matter before the council for its decision. However, if at the meeting the employer representatives and employee representatives are not equal in number, the side that is in the majority must withdraw so many of its representatives from voting at that meeting as may be necessary to ensure that the two sides are of equal numerical strength at the time of voting. 13. If any question which the executive committee considers to be extremely urgent arises between meetings of the council, and it is possible to answer that question by a simple 'yes' or `no', the executive committee may direct the secretary to cause a vote of the representatives on the council to be taken by post. A proposal subjected to a postal vote may be adopted only if it is supported by at least two-thirds of the total number of representatives who are entitled to vote. 14. The executive committee may adopt general rules of procedure for its meetings and for the meetings of the council and its other committees. However, in the event of any conflict between those rules and the provisions of this constitution, the provisions of this constitution will prevail. Schedule 9: Model Constitution for a Statutory Council 7. Executive committee 1. The council will have an executive committee that consists of the chairperson and the deputy chairperson of the council, who are members by virtue of their respective offices, and ___ additional members elected in accordance with sub-clause (3). 2. Subject to the directions and control of the council, the executive committee may exercise and perform the powers, functions and duties of the council relating to the supervision and control of the everyday management and administration of the council. In addition, the executive committee may a. investigate and report to the council on any matter connected with the sector in respect of which the council is registered; b. do anything necessary to give effect to decisions of the council; c. monitor and enforce collective agreements concluded in the council; and d. exercise and perform any power, function and duty that is conferred or imposed on the executive committee by or in terms of this constitution or that is delegated by the council to the executive committee. However, the council may not delegate to the executive committee the powers, functions and duties contemplated in clauses 4(4) and (5), 6(3) , 16 and 17 and sub-clauses (3) and (6) of this clause, and the power of the council to delegate. 3. At the annual general meeting, the council must elect the additional members of the executive committee and an alternate for each of them. The additional members and their alternates must be representatives in the council, and half of the additional members, as well as their alternates, must be nominated by the employer representatives in the council, whilst the other half of the additional members, as well as their alternates, must be nominated by the employee representatives in the council. 4. a. An additional member of the executive committee will hold office for 12 months and will be eligible for re-election at the end of that term. b. An additional member of the executive committee whose term of office has expired and who is not re-elected, may nevertheless continue to act as a member of the executive committee until that member's successor assumes office. 5. An additional member of the executive committee a. may resign from the committee at any time after having given at least 21 days' notice in writing to the secretary ; b. must vacate office immediately i. in the case of resignation, when the resignation takes effect; or ii. upon ceasing to be a representative in the council. 6. a. If the seat of an additional member of the executive committee becomes vacant, the council must fill the vacancy from the number of the candidates nominated for that purpose by i. the employer representatives in the council, if that seat had been held by an additional member representing the employers; or ii. the employee representatives in the council, if that seat had been held by an additional member representing employees. b. A member appointed to fill a vacant seat holds that seat for the unexpired portion of the predecessor's term of office. 7. The executive committee must hold an ordinary meeting at least once every ___. 8. A special meeting of the executive committee a. may be called at any time by the chairperson with a view to disposing of urgent business; and b. must be called by the chairperson within ___ days of receiving a request for that purpose, stating the purpose of the special meeting and signed by not less than ___ members of the executive committee. 9. The secretary must prepare a written notice of every executive committee meeting showing the date, time and venue of the meeting and the business to be transacted, and must send the notice to each member of the committee by registered post at least ___ days before the date of the meeting. However, the chairperson may authorise shorter notice for a special meeting. 10. At least half of the members of the executive committee representing employers and half of the members of that committee representing employees form a quorum and must be present before a meeting may begin or continue. 11. Each member of the executive committee has one vote on any matter before the committee for its decision. However, if at the meeting the members representing employers and those representing employees are not equal in number, the side that is in the majority must withdraw so many of its members from voting as may be necessary to ensure that the two sides are of equal numerical strength at the time of voting. 12. In relation to any matter before the executive committee for its decision, the decision of a majority of those members of the executive committee who are present at the meeting and entitled to vote, will be the decision of the committee. Schedule 9: Model Constitution for a Statutory Council 8. Other committees 1. The council may appoint other committees to perform any of its functions, including investigating and reporting to the council on any matter, but excluding the non-delegateable functions referred to in clause 7(2)(d). 2. a. Half of the members of any committee so appointed must be nominated by the employer representatives, and the other half by the employee representatives. b. Subject to paragraph (a), committee members must be i. employers or employees within the registered scope of the council; ii. office-bearers or officials of the parties to the council. 3. A majority of the total number of the members of a committee forms a quorum and must be present before the meeting may begin or continue. 4. The provisions of clause 7 relating to the calling and conduct of meetings, read with the changes required by the context, apply to meetings of any committee contemplated in this clause. Schedule 9: Model Constitution for a Statutory Council 9. Chairperson and deputy chairperson 1. a. At the annual general meeting, the council must elect a chairperson and deputy chairperson . b. Subject to sub-clauses (3) and (6)(a), the serving chairperson of the council at the time of the annual general meeting will be the chairperson of the meeting and preside over the election of the next chairperson. 2. The chairperson of the meeting must call for nominations for the office of chairperson. A person will have been nominated if proposed by one and seconded by another representative in the council. 3. If the serving chairperson is nominated for another term, the council, by a show of hands, must elect a representative in the council to act as chairperson of the meeting during the election of the next chairperson. 4. a. If only one candidate is nominated, the candidate will be deemed to have been elected the new chairperson unopposed, and must be declared by the chairperson of the meeting to have been so elected. b. If two or more candidates are nominated, the chairperson of the meeting must conduct a vote by ballot, and must declare the candidate in whose favour the majority of the votes have been cast, to have been elected the new chairperson. 5. If an equal number of votes are cast for two or more candidates, and no other candidate has drawn a higher number of votes than those candidates, the chairperson of the meeting will cause to be determined by lot which one of those candidates is to become the new chairperson. 6. a. Upon having been declared elected, the new chairperson must preside over the meeting and must call for nominations for the office of deputy chairperson . b. If the newly-elected chairperson is an employer representative, only employee representatives may be nominated for deputy chairperson, and vice-versa. c. The provisions of sub-clauses (2), (4) and (5), read with the changes required by the context, apply to the election of the deputy chairperson . 7. a. The chairperson and deputy chairperson hold their respective offices until the next election of the chairperson or deputy chairperson (as the case may be) takes place, or, if the chairperson or deputy chairperson ceases to be a representative in the council on any date before that election, until that date. Each of them will be eligible for re-election if still a representative when their respective terms as chairperson and deputy chairperson expire. b. If the office of chairperson or deputy chairperson becomes vacant before the next election of the chairperson or deputy chairperson (as the case may be) the executive committee must elect a person as chairperson or deputy chairperson (as the case may be) to hold office until that next election. c. An election contemplated in paragraph (b) must be held in accordance with sub-clauses (2), (4), (5) and (6), read with the changes required by the context. 8. The chairperson must preside over the meetings of the council, and must a. sign the minutes of council meetings after those minutes have been confirmed; b. sign cheques drawn on the council's bank account; and c. perform any other functions and duties entrusted to the chairperson by this constitution as well as those that are generally associated with the office of a chairperson. 9. The deputy-chairperson must preside over meetings of the council and perform the functions and duties of the chairperson whenever the chairperson is absent or for any reason unable to act or to perform those functions and duties. 10. If both the chairperson and deputy chairperson are absent or unable to act or to perform the functions and duties of the chairperson, the council, by a show of hands, must elect from the representatives a person to act as chairperson and to perform those functions and duties. 11. A chairperson or a deputy chairperson who has not been elected from amongst the representatives in the council is not entitled to vote on any matter before the council or the executive committee . 12. A chairperson or a deputy chairperson may be removed from office by the council for serious neglect of duty, serious misconduct or due to incapacity. Schedule 9: Model Constitution for a Statutory Council 10. Officials and employees 1. The council must appoint a secretary who will be responsible for the administrative and secretarial work arising from the functioning of the council and for performing the functions and duties imposed on the secretary by or in terms of the Act and this constitution. That work and those duties and functions include a. to keep and maintain the books and records of account that the council may direct in order fully to reflect the financial transactions and state of affairs of the council; b. to attend all meetings of the council and its executive committee and record the minutes of the proceedings at those meetings; c. to conduct the correspondence of the council, keeping originals of letters received and copies of letters sent; d. at each meeting of the council, to read significant correspondence that has taken place since the previous meeting; e. to bank all moneys received on behalf of the council within three days of receipt; f. whenever required by the council, but at least once in every quarter of the financial year, to submit to the council statements of its financial affairs and position; g. to prepare, for submission at the annual general meeting of the council, a budget for the next financial year and an annual report summarising the key activities of the council; and h. to countersign cheques drawn on the council's bank account. 2. The secretary must a. retain a copy of the confirmed and signed minutes of every meeting of the council, the executive committee and any other committee of the council in safe custody at the office of the council for a period of at least three years from the date those minutes were confirmed; b. retain every financial statement referred to in sub-clause (1)(f), and all vouchers and records relating to statements of that nature, for at least three years from the date of the statement; and c. sign the certificates of appointment to be issued to the persons appointed by the Minister as designated agents of the council. 3. The council may appoint any additional officials and any number of employees that may be necessary to assist the secretary in performing the functions and duties of that office. 4. The council may request the Minister to appoint any number of persons as designated agents to help it enforce any collective agreement concluded in the council. 5. Where there are two or more suitable candidates for appointment to the position of secretary or a designated agent, the council must elect the secretary or designated agent by conducting a ballot of the representatives present at the meeting at which the appointment is to be made, with the candidate receiving the highest number of votes being appointed. 6. The secretary, designated agents and other officials and employees of the council must not be biased in favour of or prejudiced against any party in the performance of their respective functions. Schedule 9: Model Constitution for a Statutory Council 11. Panels of conciliators and arbitrators 1. At its annual general meeting, the council must appoint a. a panel of conciliators, consisting of ___ members, for the purpose of conciliating disputes; and b. a panel of arbitrators, consisting of ___ members, for the purpose of determining disputes. 2. The council may remove a member of the panel of conciliators or arbitrators from office a. for serious misconduct; b. due to incapacity; or c. if at least one half of the employer representatives in the council and at least one half of the employee representatives in the council have voted in favour of the removal of that member from office. 3. If for any reason there is a vacancy in the panel of conciliators or the panel of arbitrators, the council may appoint a new member to the relevant panel for the unexpired portion of the predecessor's term of office. 4. Unless the parties to a dispute have agreed on a member of the panel of conciliators or the panel of arbitrators to conciliate or arbitrate their dispute, the secreteary must appoint a member of the relevant panel to conciliate or arbitrate the dispute. 5. a. A person may be appointed to both the panel of conciliators and the panel of arbitrators. b. A member of the panel of conciliators or the panel of arbitrators whose term of office expires, will be eligible for re-appointment to the relevant panel at the end of that term. Schedule 9: Model Constitution for a Statutory Council 12. Disputes referred to council for conciliation 1. In this clause, a dispute means any dispute between any of the parties to the council that may be referred to a council in terms of the Act except a dispute contemplated in clause 14 . 2. For the purposes of sub-clause (1), a party to the council includes the members of any party to the council. 3. Any party to a dispute may refer the dispute in writing to the council. 4. The party who refers the dispute must satisfy the secretary that a copy of the referral has been served on all the other parties to the dispute. 5. If satisfied that the referral has been served in compliance with sub-clause (4), the secretary- a. may, if there is a collective agreement binding on the parties to the dispute that provides for an alternative procedure for resolving disputes, refer the dispute for resolution in terms of that procedure; or b. must appoint a member of the panel of conciliators to attempt to resolve the dispute through conciliation. 6. Nothing in this clause prevents an officer or an employee of the council investigating the dispute or attempting to conciliate the dispute before the appointment of a conciliator in terms of sub-clause (5)(b). Schedule 9: Model Constitution for a Statutory Council 13. Disputes referred to council for arbitration 1. For the purpose of this clause, a dispute means any dispute between any of the parties to the council that a. has been referred to a conciliator in terms of clause 12, but remains unresolved, and i. the Act requires that the dispute be arbitrated and any party to the dispute has requested that the dispute be resolved through arbitration; or ii. all the parties to the dispute consent to arbitration; or b. it is a dispute about the interpretation or application of the provisions of this constitution. 2. Any party to a dispute may request that the dispute be resolved through arbitration. 3. The secretary must appoint a member of the panel of arbitrators to arbitrate the dispute. 4. The arbitrator may conduct the arbitration in a manner that the arbitrator considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities. 5. The arbitration proceedings must be conducted in accordance with the provisions of sections 138 and 142 and, if applicable, sections 139 , 140 and 141 , of the Act, read with the changes required by the context. Schedule 9: Model Constitution for a Statutory Council 14. Procedure for negotiation of collective agreements 1. Any party to the council may introduce proposals for the conclusion of a collective agreement in the council. 2. The proposals must be submitted to the secretary in writing and must identify the other parties to the proposed agreement. 3. Within seven days of submission of the proposals, the secretary must serve copies of the proposals on the other parties to the council. 4. Within 21 days of submission of the proposals, the chairperson must call a special meeting of the executive committee to consider the proposals and decide on a process for negotiating the proposals, including a. the introduction of counter-proposals; b. whether the negotiations should be conducted by the council, the executive committee or any other committee of the council; c. the appointment of a conciliator from the panel of conciliators to facilitate the negotiations; and d. the timetable for the negotiations. 5. If no negotiation process is agreed a. the secretary must appoint a conciliator from the panel or conciliators to facilitate negotiations and the conclusion of a collective agreement; b. the council must meet at least twice within 30 days of the meeting of the executive committee to negotiate on the proposals and any counter-proposals, unless a collective agreement has been concluded; c. the conciliator must facilitate the negotiations at those meetings and the conclusion of a collective agreement. 6. If no collective agreement is concluded in the course of a process or procedure contemplated in this clause, a. the parties to the council may i. agree to refer the dispute to arbitration; or ii. resort to a strike or a lock-out that conforms with the provisions of Chapter IV of the Act; or b. Any party to the dispute whose members are engaged in an essential service may request that the dispute in respect of the employers and employees engaged in that service be resolved through arbitration. 7. In the circumstances contemplated in sub-clause (6)(a)(i) or (b), the secretary must appoint a member of the panel of arbitrators to arbitrate the dispute. 8. The provisions of clause 13(4) and (5) will apply to arbitration proceedings conducted in terms of this clause. 9. a. During the strike or lock-out the parties to the dispute must attend every meeting convened by the conciliator to resolve the dispute. b. If any party to the dispute fails to attend, without good cause, a meeting so convened, the members of that party i. if they participate in a strike, will forfeit the protection they would have enjoyed in terms of section 67 of the Act; ii. if they are engaged in a lock-out, will forfeit the protection they would have enjoyed in terms of section 67 of the Act. Schedule 9: Model Constitution for a Statutory Council 15. Finances 1. The council may raise funds by charging a levy on employees and employers within the registered scope of the council. 2. The council must open and maintain an account in its name with a bank of its choice that is registered in the Republic, and a. deposit all moneys it receives in that account within three days of receipt; and b. pay the expenses of and make all payments on behalf of the council by cheques drawn on that account. 3. The council may invest any surplus funds not immediately required for current expenditure or contingencies, in a. savings accounts, permanent shares or fixed deposits in any registered bank or financial institution; b. internal registered stock as contemplated in section 21 of the Exchequer Act, 1975 (Act No. 66 of 1975); c. a registered unit trust; d. any other manner approved by the registrar. 4. All payments from the council's funds must be a. approved by the council; and b. made by cheques drawn on the council's bank account and signed by the chairperson or deputy-chairperson and counter-signed by the secretary . However, the council, by special resolution, may authorise any representative in the council, official or employee of the council to sign or counter-sign cheques drawn on the council's bank account in the event of both the chairperson and the deputy chairperson or the secretary not being readily available for that purpose. 5. a. Despite sub-clause (4), the council may maintain a petty cash account, out of which the secretary may make cash payments not exceeding R___ at any one occasion. b. Funds required for the petty cash account may be transferred to that account only by drawing a cheque issued and signed in the manner required by sub-clause (4). c. Except with the approval of the council, cheques drawn to transfer funds to petty cash may not exceed R___ per month in aggregate. d. The council may determine the form of the records to be kept for the petty cash account. 6. At the end of each quarter of the financial year, the secretary must prepare a statement showing the income and expenditure of the council for that quarter, and another reflecting its assets, liabilities and financial position as at the end of that period. 7. The financial year of the council begins on 1 ___ in each year and ends on ___ of the following year, except the first financial year, which begins on the day that the council is registered and ends on ___. 8. Not later than ___ after the end of the financial year, the secretary must prepare a statement of the council's financial activity in respect of that financial year, showing a. all moneys received for the council i. in terms of any collective agreement published in terms of the Act; and ii. from any other sources; b. expenditure incurred on behalf of the council, under the following heads i. remuneration and allowances of officials and employees; ii. amounts paid to representatives and alternates in respect of their attendance at meetings, the travelling and subsistence expenses incurred by them, and the salary or wage deducted or not received by them due to their absence from work by reason of their involvement with the council; iii. remuneration and allowances of members of the panel of conciliators and arbitrators; iv. office accommodation; v. printing and stationery requirements; and vi. miscellaneous operating expenditure; and c. the council's assets, liabilities and financial position as at the end of that financial year. 9. a. The annual financial statements must be signed by the secretary and counter-signed by the chairperson , and submitted to an auditor for auditing and preparing a report to the council. b. Certified copies of the audited statements and the auditor's report must be made available for inspection at the office of the council to members and representatives of the parties, who are entitled to make copies of those statements and the auditor's report. c. The secretary must send certified copies of the audited financial statements and the auditor's report to the registrar within 30 days of receipt thereof. 10. Every year the secretary must prepare, for submission at the annual general meeting of the council, a budget for the council for the next financial year. 11. At the annual general meeting the council must appoint an auditor to perform the audit of the council for the next financial year. Schedule 9: Model Constitution for a Statutory Council 16. Winding-up 1. At a special meeting called for that purpose, the council, by resolution adopted by a majority of the total number of representatives in the council, may decide to be wound up. 2. Upon adoption of a resolution to wind-up, the secretary must take the necessary steps to ensure that a. application is immediately made to the Labour Court for an order giving effect to that resolution; and b. the council's books and records of account and an inventory of its assets, including funds and investments, are delivered to the liquidator appointed by the Labour Court, and that whatever may be necessary Is done to place the assets, funds and investments of the council at the disposal and under the control of that liquidator. 3. Each party to the council remains liable for any of its unpaid liabilities to the council as at the adoption of a resolution to wind-up the council. 4. If all the liabilities of the council have been discharged, the council must transfer any remaining assets to a. a bargaining council within the same or a similar sector, that has been agreed upon at the special meeting referred to in sub-clause (1); b. the Commission, if i. there is no bargaining council within the same or a similar sector; or ii. the parties to the council fail to agree on a bargaining council that is to receive the remaining assets. Schedule 9: Model Constitution for a Statutory Council 17. Changing constitution 1. The council may change this constitution at any time a. by a resolution adopted by unanimous vote of all the representatives in the council on a motion to amend tabled without prior notice; or b. by a resolution adopted by at least two-thirds of all the representatives in the council after at least i. one month's notice of that motion to amend had been given to the secretary ; and ii. two weeks' notice of that motion had been given to all the other representatives. 2. Any amendment to this constitution becomes effective after the resolution effecting that amendment has been certified by the registrar in terms of section 57(3) of the Act. Schedule 9: Model Constitution for a Statutory Council 18. Necessary first steps 1. With a view to making the council operative and functional without delay, the provisions contained in the Annexure to this constitution will apply and must be read as one with this constitution until the requirements and procedures contemplated in those provisions have been complied with. 2. Any act performed in compliance with the provisions contained in the Annexure will be deemed to have been performed in terms of and in accordance with this constitution. Schedule 9: Model Constitution for a Statutory Council 19. Definitions In this constitution, any expression that is defined in the Act has that meaning and unless the context otherwise indicates - "chairperson" means the chairperson of the council who, by virtue of that office, is also the chairperson of the executive committee "deputy chairperson" means the deputy chairperson of the council who, by virtue of that office, is also the deputy chairperson of the executive committee; "executive committee" means the executive committee of the council; contemplated in clause 7; "Minister" means the Minister of Labour; "secretary" means the secretary of the council; and "the Act" means the Labour Relations Act, 1995 (Act No. 66 of 1995). Schedule 9: Model Constitution for a Statutory Council Annexure Necessary first steps to be followed by council 1. At the first meeting of the council, which will be held a. the council, by a show of hands, must select a suitable person to act as chairperson of that meeting, subject to paragraph (c), as well as another to keep the minutes of the meeting; b. the council must elect the chairperson and the deputy chairperson and the additional members of the executive committee in the manner set out in clauses 9 and 7 respectively, read with the changes required by the context; c. the newly-elected chairperson of the council must take over the chair at that meeting; d. the council must appoint the officials contemplated in clause 6(3)(c), (d) and(e) ; and e. the council must appoint an auditor to perform the audit of the council in respect of its first financial year. 2. The secretary , in the manner contemplated in clause 10(1)(g), must as soon as possible prepare, for submission at the next ordinary meeting of the council, a budget for the council for its first financial year.". [NOTE: According to the above model constitution, the council's certificate of registration is, upon receipt, to be attached to its constitution (see clause 2). If not so attached, the constitution of a council following the model will be incomplete.]". Schedule 10: Institutions referred to in Section 32(4) (Section 32(4)) 1. Ntsika Enterprise Promotion Agency. 2. Centre for Small Business Promotion. The addresses and telephone numbers of these institutions are available from the Department of Trade and Industry. A collective agreement must provide for the appointment of an independent body to grant exemptions from the agreement to non-parties. When establishing the independent body a bargaining council must have due regard to the nominations of the Institutions listed in this Schedule. Essential Services Committee Regulations Part A: General Provisions 1. Definitions The Minister of Labour has, under section 208 of the Labour Relations Act, 1995 (Act No. 66 of 1995), and after consulting NEDLAC and the Commission, made the Regulations in the Schedule. In these Regulations, any expression that is defined in the Act has that meaning and unless the context otherwise indicates-- "annexure" means a document attached to these Regulations; 'Commission" means the Commission for Conciliation, Mediation and Arbitration established in terms of section 112 of the Act and includes a staff member of the Commission appointed by it to act on its behalf in matters relating to essential services; 'committee" means the essential services committee established in terms of section 70(1) of the Act; and "the Act" means the Labour Relations Act, 1995 (Act No. 66 of 1995). Essential Services Committee Regulations Part A: General Provisions 2. Chairperson of committee The Minister must appoint a member of the committee to act as chairperson of the committee. Essential Services Committee Regulations Part A: General Provisions 3. Address for service on committee Whenever a person is required to serve any document on the committee, such service must be on the head office of the Commission. Essential Services Committee Regulations Part A: General Provisions 4. Powers of the committee 1. For the purpose of performing its functions, the committee may-- a. subpoena for questioning any person who may be able to give information or whose presence at a hearing may help the committee in performing its functions; b. subpoena any person who is believed to have possession or control of any book. document or object relevant to an investigation or a hearing to appear before the committee to be questioned or to produce that book, document or object; c. call, and if necessary subpoena, any expert to appear before the committee to give evidence relevant to an investigation or a hearing; d. call any person present at an investigation or hearing who was or could have been subpoenaed for any purpose set out in these regulations, to be questioned about any matter relevant to an investigation or a hearing; e. administer an oath or accept an affirmation from any person called to give evidence or be questioned; f. at any reasonable time, but only after obtaining the necessary written authorisation-- i. enter and inspect the premises on or in which any book, document or object relevant to an investigation or a hearing is to be found or is suspected on reasonable grounds of being found there; and ii. examine, demand the production of, and seize any book, document or object that is on or in those premises and that is relevant to an investigation or a hearing; and iii. take a statement in respect of any matter relevant to an investigation or a hearing from any person on the premises who is willing to make a statement; and g. inspect, and retain for a reasonable period, any of the books, documents or objects that have been produced to, or seized by, the committee. 2. A subpoena issued in terms of subregulation (1) must be made in the form of annexure LRA 4.6. 3. A subpoena issued for any purpose in terms of subregulation (1) must be signed by the director of the Commission and must-- a. specifically require the person named in it to appear before the committee; b. sufficiently identify the book, document or object to be produced; and c. state the date, time and place at which the person is to appear. 4. The written authorisation referred to in subregulation (1) (f) may be given by a judge of the Labour Court only if the judge is satisfied that the exercise of the powers referred to in the said subregulation, is necessary for the performance of the committee's functions. 5. The owner or occupier of any premises that the committee is authorised to enter and inspect, and every person employed by that owner or occupier, must provide any facilities that the committee requires to enter those premises and to carry out the inspection or seizure. 6. The committee must issue a receipt for any book, document or object seized in terms of subregulation (1)(f). 7. The law relating to privilege, as it applies to a witness subpoenaed to give evidence or to produce any book, document or object before a court of law, applies equally to the questioning of any person or the production or seizure of any book, document or object in terms of this regulation. 8. a. The committee must pay the prescribed witness fee to each person who appears before it in response to a subpoena issued by the committee. b. The fee payable to a witness in terms of subregulation (a) is the total of- i. R100 for each day or part of a day during which the witness is required to be present at any proceedings; and ii. reasonable substantiated travel and subsistence expenses incurred by the witness in order to be present at those proceedings. c. Despite subregulation (b), no witness fee may be paid to a person who, at the time of the relevant proceedings, is employed full-time by the State, or is a member of any legislature mentioned in the Constitution. 9. A person commits contempt of the committee - a. if, after having been subpoenaed to appear before the committee, the person, without good cause, does not attend at the time and place stated in the subpoena; b. if, after having appeared in response to a subpoena, that person fails to remain in attendance until excused by the committee; c. by refusing to take the oath or to make an affirmation as a witness when the committee so requires; d. by refusing to answer any question fully and to the best of that person's knowledge and belief subject to subregulation (7); e. if the person, without good cause, fails to produce any book, document or object specified in a subpoena to the committee; f. if the person willfully hinders the committee in performing any function conferred on it by or in terms of the Act; g. if the person insults, disparages or belittles the committee, or prejudices or improperly influences the proceedings or improperly anticipates the committee's decision or determination; h. by willfully interrupting the proceedings of the committee or misbehaving in any other manner during those proceedings; and i. by doing anything else in relation to the committee which, if done in relation to a court of law, would have been contempt of court. 10. The committee may refer any contempt to the Labour Court for an appropriate order. 11. a. The functions of the committee may be performed by a member of the committee. b. A decision of a member of the committee acting in terms of subregulation (a) is a decision of the committee pending ratification of the decision by the committee. c. If the committee refuses to ratify a decision contemplated in subregulation (b), the decision, from the date of the refusal, is invalid. 12. No proceedings of the committee shall be invalid by reason only of the fact that any member was not present during the whole or part of any proceedings. 13. If three or more members of the committee perform the functions of the committee, the decision of the majority of those members is the decision of the committee. Essential Services Committee Regulations Part A: General Provisions 5. Condonation The committee may, at the request of any party to the proceedings conducted in terms of the Regulations and on good cause shown, condone any noncompliance with the provisions of these Regulations, subject to such conditions as it may in all the circumstances think fit. Essential Services Committee Regulations Part B: Investigation as to whether a Service is an Essential Service 6. Request by bargaining council for investigation A request by a bargaining council in terms of section 70(3) of the Act must be made in the form of annexure LRA 4.7. Essential Services Committee Regulations Part B: Investigation as to whether a Service is an Essential Service 7. Investigations as to whether a service is an essential service 1. As soon as is reasonably practicable after the receipt of a request by a bargaining council in terms of section 70(3) of the Act, the committee must give notice in the Government Gazette of the investigation as to whether a service is an essential service. 2. Any interested party making written submissions to the committee in terms of section 71(2)(a) of the Act must-- a. state the nature of its interest in the investigation; b. state whether it requires an opportunity to make oral representations, if those oral representations are to contain material or raise issues not dealt with in the written representations, and provide a brief summary of those oral representations; c. state whether it relies or intends to rely on any expert evidence, and if so, provide a brief summary of that expert evidence; and d. specify its address, telephone number (if any) and telefax number (if any). 3. Any interested party that indicates to the committee in terms of section 71(2)(b) of the Act that it requires an opportunity to make oral representations must-- a. state the nature of its interest in the investigation; b. provide a brief summary of its oral representations; c. state whether it relies or intends to rely on any expert evidence, and if so, provide a brief summary of that expert evidence; and d. specify its address, telephone number (if any) and telefax number (if any). 4. The Commission, at the request of the committee, may prepare a factual report concerning any service or part of a service that the committee is investigating. 5. The committee must notify a bargaining council that has requested the investigation in terms of section 70(3) of the Act and any interested party that has made written submissions in terms of section 71(2) of the Act of the existence of a factual report relevant to the investigation and invite them to submit written representations on the report to the committee within 14 days of this notification. 6. A bargaining council that has requested the investigation and any interested party may inspect any written representations made pursuant to the provisions of subregulations (1) or (5) and any factual report relevant to the investigation at the Commission's head office. 7. The Commission must provide a certified copy of, or extract from, any written representations to any person who has paid the prescribed fee. 8. The prescribed fee referred to in section 71(4) of the Act must be calculated at the rate of R2.00 per page. 9. a. In addition to the notification contemplated in section 71(5) of the Act, at least seven days before the hearing of oral representations, the committee must publish a notice stating the place and time of the hearing. b. The notice must be published in a newspaper circulated in the area in which the service being investigated is situated. 10. These regulations apply, with the changes required by the context, to any variation or cancellation of the designation of an essential service contemplated by section 71(9) of the Act. Essential Services Committee Regulations Part C--Ratification of Collective Agreements that provide for the maintenance of Minimum Services 8. Ratification of the provisions of collective agreements that provide for the maintenance of minimum services 1. A request by parties to a collective agreement in terms of section 72 of the Act must be made in the form of annexure LRA 4.3. 2. The committee may require the parties to submit further written representations to it in regard to any matter relevant to the request. 3. The committee may require the parties to appear before it in order to deal with any matter relevant to the request. 4. As soon as is reasonably practicable after the receipt of a request, the committee must either ratify or refuse to ratify the relevant provisions of the collective agreement and notify the parties of its decision in writing. 5. The committee must, at the request of any party to the collective agreement, provide brief reasons for its refusal to ratify the provisions of a collective agreement. Essential Services Committee Regulations Part D: Determinations 9. Service Whenever a party is required to satisfy the committee that a copy of a referral, application, objection or other document has been served on another party, the party so required must provide the committee with-- a. a copy of the proof of mailing the referral, application, objection or other document by registered post to the other party; b. a copy of the telegram, telex or telefax communicating the referral, application, objection or other document to the other party; c. a copy of a receipt signed by the other party or on that party's behalf if the copy of the referral, application, objection or other document was delivered by hand; or d. a statement confirming service signed by the person who delivered a copy of the referral, application, objection or other document to the other party. Essential Services Committee Regulations Part D: Determinations 10. Referral of a dispute or application for determination 1. a. A referral of a dispute in terms of section 73(1) of the Act must be made in the form of annexure LRA 4.2 contained in the general regulations. b. An application in terms of section 75(2) of the Act must be made in the form of annexure LRA 4.3 contained in the general regulations. 2. If the referral or application is urgent, the applicant must state in writing the grounds of urgency and submit the grounds together with the referral or application. 3. The other parties to the dispute or parties interested in the application may submit written representations within 21 days of receipt of the referral or application by the committee unless the referral or application is an urgent referral or application, in which case the committee must notify the parties of the period in which they must submit written representations. 4. The committee may require the parties to submit any further information relevant to the dispute or application in writing. 5. The committee may give directions to the parties for the service of any documents. Essential Services Committee Regulations Part D: Determinations 11. Conduct of hearings in terms of sections 73 and 75 of the Act 1. As soon as reasonably practicable after the receipt of the referral or application contemplated in terms of sections 73 and 75 of the Act respectively, the committee must notify the parties in writing of the place and time of the hearing. The place and time must be determined with due regard to urgency. 2. The committee may decide that the dispute or application is capable of determination on the written representations before it or that it requires to hear oral evidence. 3. If the committee decides that the matter is capable of determination on the written submissions before it, the committee may hear argument from the parties and then make its determination. 4. If the committee decides that it requires to hear oral evidence-- a. it must decide the issues on which it requires to hear oral evidence; and b. notify the parties of its decision in good time. 5. Despite the provisions of subregulation (3) the committee, during a hearing, may direct that oral evidence by hear in which case the provisions of subregulation (4) will apply. 6. If the committee decides that the matter is urgent, the committee may make an interim order determining the dispute or the application pending a final determination. In this event, the committee must specify a date in the order, which date may not be later than the date on which the interim order expires, for a hearing to determine the dispute. 7. The committee must conduct the hearing in a manner that the committee considers appropriate in order to make a determination with the minimum of legal formalities. 8. The committee must provide the parties with a brief summary of the reasons for its decision. Essential Services Committee Regulations Part D: Determinations 12. Short title and commencement 1. These regulations are called the Essential Services Committee Regulations. 2. These regulations come into operation on 15 November 1996. Essential Services Committee Regulations Services Designated as Essential Services (12/9/97) Under section 71(8) of the Labour Relations Act, 1995 (Act No. 66 of 1995), the essential services committee hereby gives notice that-- 1. it has designated the following services as essential services: a. Municipal traffic services and policing ; b. municipal health; c. municipal security; d. the supply and distribution of water; e. the security services of the Department of Water Affairs and Forestry; f. the generation, transmission and distribution of power; g. fire fighting; h. the payment of social pensions one month after they fall due; i. the services required for the functioning of courts; j. correctional services; and k. blood transfusion services provided by the South African Blood Transfusion Service. 2. it has designated the following parts of sanitation services as essential services: a. The maintenance and operation of water-borne sewerage systems, including pumping stations and the control of discharge of industrial effluent into the system; b. the maintenance and operation of sewage purification works; c. the collection of refuse of an organic nature; d. the collection of infectious refuse from medical and veterinary hospitals or practices; e. the collection and disposal of refuse at a disposal site; f. the collection of refuse left unallocated for 14 (fourteen) days or longer, including domestic refuse and refuse on public roads and open spaces. 3. it has designated as essential services until 31 March 1998 the following services provided by the public sector: a. Emergency health services and the provision of emergency health facilities to the community or part thereof; b. nursing; and c. medical and paramedical services. 4. it has designated as essential services until 31 March 1998 the following services in support of the services referred to in paragraph 3: a. Catering; b. medical records; c. security; d. porter and reception; e. pharmaceutical and dispensary; f. medicine quality control laboratory; g. forensics; h. laundry; i. clinical engineering; j. hospital engineering; k. waste removal; l. mortuary; and m. pest control. 5. it has designated as essential services the following services provided by the private sector which are funded by the public sector: a. Emergency health services and the provision of emergency health facilities to the community or part thereof; b. nursing; and c. medical and paramedical services. 6. it has designated as essential services the following services in support of the services referred to in paragraph 5: a. Boiler; and b. water purification. 7. it has designated as essential services the following services provided by nursing homes which are registered as welfare organisations in terms of the National Welfare Act, 1978 (Act No. 100 of 1978), to patients in need of moderate (level 2) and maximum (level 3) care: a. Emergency health services and the provision of emergency health facilities; b. nursing; and c. medical and paramedical services. 8. it has designated as essential services the following services in support of the services referred to in paragraph 7: a. Physiotherapy; b. dispensary; c. catering; d. laundry; e. boiler; f. transport; and g. security. 9. it has designated as essential services the following services provided by the following civilian personnel in the Department of Defence to support the South African National Defence Force: a. The Secretariat for Defence; b. the Intelligence Division; c. the Finance Division; d. the parachute seamstresses of the South African Army; e. the parachute packing operators of the South African Army; f. the military intelligence functionaries of the South African Army; g. the storemen in the South African Navy; h. the provisioning officers and clerks in the South African Navy; i. the technical personnel in the South African Navy; j. the tugboat personnel in the South African Navy; k. the surveyors in the South African Navy; l. the South African Medical Service; m. those serving in military posts in the South African National Defence Force; n. the cryptographers in the South African National Defence Force; and o. the maintenance services in the South African National Defence Force; (21/11/97) Under section 71(8) of the Labour Relations Act, 1995 (Act No. 66 of 1995), the essential services committee hereby gives notice that the following computer services provided or supported by the Central Computer Service of the Department of State Expenditure are designated as essential services: a. The Persal system; b. the social pension system; c. the hospital systems; and d. the flood control system. Labour Relations Regulations 1. Definitions In these regulations, any expression that is defined in the Act has that meaning and unless the context otherwise indicates- "annexure" means a document attached to these regulations; "the Act" means the Labour Relations Act, 1995 (Act No. 66 of 1995); and "the Constitution" means the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993). Labour Relations Regulations 2. Service Whenever a party is required to satisfy the Commission or the Registrar that a copy of a referral, objection or other document has been served on another party, the party so required must provide the Commission or Registrar with- a. a copy of the proof of mailing the referral, objection or other document by registered post to the other party; b. a copy of the telegram, telex or telefax communicating the referral, objection or other document to the other party; c. a copy of a receipt signed by the other party or on that party's behalf if the copy of the referral, objection or other document was delivered by hand; or d. a statement confirming service signed by the person who delivered a copy of the referral, objection or other document to the other party. Labour Relations Regulations 3. Subpoenas 1. A subpoena issued in terms of the Act must be served - a. by delivering a copy of it to the person subpoenaed personally; b. by sending a copy of it by registered post to the subpoenaed person's - i. residential address; ii. place of business or employment; or iii. post office box or private bag number; or c. by leaving a copy of it at the subpoenaed person's residence or place of business or employment with a person who apparently- i. is at least sixteen years of age; and ii. is residing or employed there. 2. A subpoena issued in terms of section 142(1) of the Act must be in the form of annexure LRA 7.16. 3. A subpoena issued in terms of section 142(1) as applied by section 33(1) of the Act must be in the form of annexure LRA 3.10. Labour Relations Regulations 4. Witness fees 1. The fee payable to a witness in terms of section 142(7) of the Act is the total of- i. R100 for each day or part of a day during which the witness is required to be present at any proceedings; and ii. reasonable substantiated travel and subsistence expenses incurred by the witness in order to be present at those proceedings. 2. Despite subregulation (1), no witness fee may be paid to a person who, at the time of the relevant proceedings, is employed full-time by the state, or is a member of any legislature mentioned in the Constitution. Labour Relations Regulations 5. Access to documents Any person may inspect any document that the Act permits at the office of the Registrar, in Pretoria, at any time between 08h30 and 12h00 and between 13h30 and 15h30 on Mondays to Fridays. Labour Relations Regulations 6. Fees for documents 1. Whenever an employer provides an employee with a copy of a collective agreement, arbitration award, or Wage Act determination in terms of section 204(c)(i) of the Act, the employer may charge a fee of no more than R0.50 for each page of that copy. 2. The registrar may charge the fee shown in column 3 of Table LRA 1 for a service listed in column 2 of that Table. 3. All fees referred to in subregulation (2) must be paid in advance in revenue stamps. Table LRA 1 - Table of Document Fees 1 - Section 2 - Service 3 - Fee Any Section Inspecting a document R1 Any Section Copying a document R1 Any Section Providing a certified copy of a document R1 for each copy, plus R0,50 for each page in the document. 25(6) Providing a certified extract of an auditor's report R0,50 for each page in the extract. 71(4) Providing a certified copy or extract from a written representation R0,50 for each page in the extract. 110(2) Providing a certified copy of, or extract from, a document mentioned in s110(1) R0,50 for each page in the extract. 110(4) Providing a certified copy of, or extract from, a document mentioned in s110(3) R0,50 for each page in the extract. 127(7)(b) Providing a certified copy of, or extract from, a document mentioned in s127(7)(a) R0,50 for each page in the extract. 132(6)(b) Providing a certified copy of, or extract from, a notice mentioned in s132(6)(a) R0,50 for each page in the extract. Labour Relations Regulations 7. Form of Requests and Applications 1. Whenever a request or application is contemplated in terms of a section of the Act shown in column 1 of Table LRA 2 for a purpose listed in column 2 of that Table, the request or application must be in the form of the annexure listed opposite that section number in column 3 of that Table, and must be produced subject to any conditions listed opposite that section number in column 4 of that Table. 2. The registrar has the power to assign an official to verify from the membership lists the figures furnished in respect of representativeness in an industry or sector. Table LRA 2 - Table of Requests and Applications 1 - Section 2 - Purpose 3 - Annexure 4 - Conditions 25(4)(b) Conscientious objector requests agency fee to be paid to the Department of Labour LRA 3.1 Agency fee deducted pursuant to the request must be remitted with annexure LRA 3.2 26(8) , applying 25(4)(b) Conscientious objector requests agency fee to be paid to the Department of Labour LRA 3.1 Agency fee deducted pursuant to the request must be remitted with annexure LRA 3.2 29(1) Application for registration of a bargaining council LRA 3.3 1. Submit two copies 2. Must be submitted to the Registrar, c/o the Provincial Director of the Department of Labour 32(1) Bargaining council requests extension of collective agreement to non-parties LRA 3.5 1. Submit two copies 2. Must be accompanied by a current certificate of representativeness in the form of annexure LRA 3.21 3. Submit to the Minister, c/o the Provincial Director of the Department of Labour 32(6)(a) Request to extend the period of, or renew collective agreement extended to non parties LRA 3.6 1. Submit two copies 2. Must be accompanied by a current certificate of representativeness in the form of annexure LRA 3.21 3. Submit to the Minister, c/o the Provincial Director of the Department of Labour 32(7) Bargaining council requests cancellation of collective agreement extended to non-parties LRA 3.7 1. Submit two copies 2. Submit to the Minister, c/o the Provincial Director of the Department of Labour 33(1) Bargaining council requests appointment of designated agent LRA 3.8 1. Submit two copies 2. Submit to Minister, c/o the Provincial Director of the Department of Labour 43(3) applying 33(1) Statutory council requests appointment of designated agent LRA 3.8 1. Submit two copies 2. Submit to Minister, c/o the Provincial Director of the Department of Labour 34(2) Amalgamating bargaining council applies for registration LRA 3.11 1. Submit two copies 2. Must be accompanied by a current certificate of representativeness in the form of annexure LRA 3.21 3. Submit to Registrar, c/o the Provincial Director of the Department of Labour 38(6) Request for a jurisdictional dispute in the public service to be resolved through arbitration LRA 3.13 1. Proof of service on the other party 2. Submit to the Dispute Resolution Committee, c/o the Commission 39(2) Trade union applies for establishment of a statutory council LRA 3.14 1. Submit two copies 2. Submit to the Minister, c/o the Provincial Director of the Department of Labour 39(2) Employers' organisation applies for establishment of a statutory council LRA 3.15 1. Submit two copies 2. Submit to Registrar, c/o the Provincial Director of the Department of Labour 48(1) Statutory council applies to register as a bargaining council LRA 3.19 1. Submit two copies 2. Submit to Registrar, c/o the Provincial Director of the Department of Labour 58 Council applies for variation of scope of registration LRA 3.22 Submit to the Registrar, c/o the Provincial Director of the Department of Labour 62(1) Application about demarcation dispute LRA 3.23 1. Proof of service on other party 2. Submit to the Provincial Office of the Commission 69(4) Request to assist parties reach agreement on picketing rules LRA 4.1 1. Send a copy of request to other party 2. Submit to the Provincial Office of the Commission 75(2) Employer applies for maintenance service determination LRA 4.3 1. Proof of service on other party 2. Submit to the Essential Services Committee, c/o the Commission 80(2) Representative trade union applies for the establishment of a workplace forum LRA 5.1 1. Proof of service on other party 2. Submit to the Registrar in the Provincial Office of the Commission 81(1) Representative trade union applies for the establishment of a trade union based workplace forum LRA 5.2 1. Proof of service on other party \ 2. Submit to the Registrar in the Provincial Office of the Commission 96(1) Registration of a trade union LRA 6.1 1. Submit two copies 2. Submit to the Registrar, c/o the Provincial Director of the Department of Labour 96(1) Registration of an employers' organisation LRA 6.2 1. Submit two copies 2. Submit to the Registrar, c/o Provincial Director of the Department of Labour 99(a) List of members to be kept by a trade union LRA 6.5 99(a) List of members to be kept by an employers' organisation LRA 6.6 102(2) Application by amalgamating trade unions for registration LRA 6.9 1. Submit two copies 2. Submit to the Registrar, c/o the Provincial Director of the Department of Labour 102(2) Application by amalgamating employers' organisation for registration LRA 6.10 1. Submit two copies 2. Submit to the Registrar, c/o the Provincial Director of the Department of Labour 127(1) Council applies for accreditation LRA 7.1 1. Attach a copy of the certificate of registration, council's code of conduct and the motivation for accreditation to the form 2. Submit to the Governing Body of the Commission 127(1) Private agency applies for accreditation LRA 7.2 1. Attach a copy of the agency's code of conduct and the motivation for accreditation to the form 2. Submit to the Governing Body of the Commission 129(1) Council or private agency applies to amend its accreditation LRA 7.5 1. Attach a copy of the current certificate of accreditation 2. Submit to Governing Body of the Commission 131(1) Council applies to renew its accreditation LRA 7.6 1. Attach a copy of the current certificate of accreditation 2. Submit to Governing Body of the Commission 131(1) Private agency applies to renew its accreditation LRA 7.7 1. Attach a copy of the current certificate of accreditation 2. Submit to Governing Body of the Commission 132(1) Council applies for a subsidy LRA 7.8 1. Attach a copy of the current certificate of accreditation (if applicable). 2. Submit to Governing Body of the Commission 132(1) Private agency applies for a subsidy LRA 7.9 1. Attach a copy of the current certificate of accreditation (if applicable) 2. Submit to Governing Body of the Commission. 132(8)(a) Council or private agency applies for renewal of subsidy LRA 7.10 1. Attach current certificate of accreditation 2. Submit to Governing Body of the Commission 136 Request for arbitration LRA 7.13 1. Proof of service on other party 2. Submit to the Registrar in the Provincial Office of the Commission 137(1) Application to director to appoint a senior commissioner to arbitrate LRA 7.15 1. Proof of service on other party 2. Submit to the Director of the Commission Labour Relations Regulations 7A. Form of bargaining council constitution A bargaining council may adopt a constitution - a. in the form of Form 3.24 ; or b. in any other form that meets the requirements of section 30(1) of the Act. Labour Relations Regulations 8. Form of Certificates or Particulars 1. A certificate issued by the Commission in terms of sections 64(1)(a)(i) , 135(5)(a) or 136(1)(a) of the Act must be in the form of annexure LRA 7.12. 2. Whenever a certificate or statement of particulars is contemplated in terms of a section of the Act shown in column 1 of Table LRA 3 for a purpose listed in column 2 of that Table , the document must be in the form of the annexure listed opposite that section number in column 3 of that Table, and must be produced subject to any conditions listed opposite that section number in column 4 of that Table. Table LRA 3 - Table of Certificates and Particulars 1 - Section 2 - Purpose 3 - Annexure 4 - Conditions 29(15)(a) Certificate of registration of a bargaining council LRA 3.4 Must bear the official stamp of the Registrar 33(2) Certificate of appointment as a designated agent of a council LRA 3.9 Must bear the official stamp of the Council 42(a) Certificate of Registration of a statutory council LRA 3.16 Must bear the official stamp of the Registrar 49(2)(b) Council submits particulars of representativeness LRA 3.20 1. Submit two copies 2. Submit to Registrar, c/o the Provincial Director of the Department of Labour 49(2)(c) Certificate of representativeness of a council LRA 3.21 Must bear the official stamp of the Registrar 135(5)(a) , 64(1)(a)(i) , 136(1)(a) Certificate of outcome of dispute referred to conciliation LRA 7.12 Must bear official stamp of Commission, council or agency 96(7)(a) Certificate of registration of a trade union LRA 6.3 Must bear the official stamp of the Registrar 96(7)(a) Certificate of registration of an employers' organisation LRA 6.4 Must bear the official stamp of the Registrar 127(5)(a)(ii) Certificate of accreditation of council LRA 7.3 1. Must include terms of accreditation 2. Must bear official stamp of the Commission 127(5)(a)(ii) Certificate of accreditation of private agency LRA 7.4 1. Must include terms of accreditation 2. Must bear official stamp of the Commission Labour Relations Regulations 9. Form of Notices, Demands and Appeals Whenever a Notice, Demand or Appeal is contemplated in terms of a section of the Act shown in column 1 of Table LRA 4 for a purpose listed in column 2 of that Table, the document must be in the form of the annexure listed opposite that section number in column 3 of that Table, and must be produced subject to any conditions listed opposite that section number in column 4 of that Table. Table LRA 4 - Table of Notices, Demands and Appeals. 1 - Section 2 - Purpose 3 - Annexure 4 - Conditions 77(1)(b) Notice to NEDLAC about possible protest action LRA 4.4 Submit to the Executive Director of NEDLAC 77(1)(d) Notice to NEDLAC of intention to proceed with protest action LRA 4.5 1. Submit to the Executive Director of NEDLAC 2. Must be received at least 14 days before the start of the protest action 136(3) Notice of objection to arbitration by same commissioner LRA 7.14 1. Proof of service on other party is required 2. Submit to Registrar in the Provincial Office of the Commission 33(3) applying 142(1) Subpoena by designated agent LRA 3.10 142(1) Subpoena by Commissioner LRA 7.16 Labour Relations Regulations 10. Forms of Records, Reports, Statements, Lists and Registers Whenever a Record, Report, Statement, List or Register is contemplated in terms of a section of the Act shown in column 1 of Table LRA 5 for a purpose listed in column 2 of that Table, the document must be in the form of the annexure listed opposite that section number in column 3 of that Table, and must be produced subject to any conditions listed opposite that section number in column 4 of that Table. Table LRA 5 - Table of Records, Reports, Statements, Lists and Registers 1 - Section 2 - Purpose 3 - Annexure 4 - Conditions 25(4)(b) List of deductions from conscientious objector LRA 3.2 1. Agency fee deducted must be remitted with this form 2. Submit two copies 3. Submit to the Provincial Director of the Department of Labour 26(8) , applying 25(4)(b) List of deductions from conscientious objector LRA 3.2 1. Agency fee deducted must be remitted with this form 2. Submit two copies 3. Submit to the Provincial Director of the Department of Labour 44(1) and 44(2) Submission of collective agreement of statutory council to Minister for promulgation as a determination LRA 3.17 1. Submit two copies 2. Submit to Minister, c/o Director General of the Department of Labour 100(a) Number of trade union members LRA 6.7 1. Submit to the Registrar of Labour Relations 2. Must reach Registrar by the 31 March 100(a) Number of employers' organisation's members LRA 6.8 1. Submit to the Registrar of Labour Relations 2. Must reach Registrar by the 31 March 205(1) Employers' record of employees earnings, deductions and time worked LRA 9.1 205(3)(a) Records of strike, lock-out and protest action LRA 9.2 Must be submitted to Director General of the Department of Labour within two months of the end of the strike, lock-out or protest action Labour Relations Regulations 11. Form of Proposals, Resolutions and Referrals 1. A request to the Commission to arbitrate a dispute in terms of sections 16(9) , 21(7), 21(11) , 22(4) , 24(5) , 24(6) , 45(4) , 61(13) , 74(4) , 86(7) , 89(6) , 94(4) , 133(2)(b) , 141(4) , 191(5)(a) or 196(9) or item 3(4)(b) of Part B of Schedule 7 to the Act must be made in the form of annexure LRA 7.13. 2. A referral of a dispute to the Commission for conciliation in terms of sections 9(1) , 16(6) , 21(4), 21(11) , 22(1) , 24(2), 24(6) , 26(11) , 45(1) , 61(10) , 63(1) , 64(1)(a), 64(2) , 69(8) , 74(1) , 86(4)(b) , 89(3) , 94(1) , 134 , 191(1) or 196(6) or item 3(1)(b) of Part B of Schedule 7 to the Act by the Commission, must be made in the form of annexure LRA 7.11. 3. Whenever a Proposal, Resolution or Referral is contemplated in terms of a section of the Act shown in column 1 of Table LRA 6, for a purpose listed in column 2 of that Table, the document must be in the form of the annexure listed opposite that section number in column 3 of that Table, and must be produced subject to any conditions listed opposite that section number in column 4 of that Table. Table LRA 6: Table of Proposals, Resolutions and Referrals 1 - Section 2 - Purpose 3 - Annexure 4 - Conditions 38(3) Referring a Public Service jurisdictional dispute for conciliation LRA 3.12 1. Proof of service on other party 2. Submit to the Dispute Resolution Committee, c/o the Commission 44(5) Statutory council requests Minister to amend or extend the period of a determination LRA 3.18 1. Submit two copies 2. Submit to Minister, c/o Director General of the Department of Labour 73(1) Referral of dispute for essential services determination LRA 4.2 1. Proof of service on other party 2. Submit to the Essential Services Committee, c/o the Commission. 135 Referring a dispute to the Commission for conciliation LRA 7.11 Submit to Provincial Office of the Commission Labour Relations Regulations 12. Labour Court The oath to be taken or solemn affirmation to be made before the Judge President of the Labour Court in terms of section 154(6) of the Act by a person who has been appointed a judge of the Labour Court and who is not a judge of the Supreme Court, must be in the following form: "I.................................. .swear/solemnly affirm that, as a Judge of the Labour Court, I will be faithful to the Republic of South Africa, will uphold and protect the Constitution; and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the constitution and the law. (In the case of an oath: So help me God.) Labour Relations Regulations 13. Provincial Directors, Department of Labour Whenever the Act or a regulation requires a document to be delivered to the Provincial Director of the Department of Labour within a particular jurisdiction, any document in respect of a matter within a geographical jurisdiction listed in column 1 of Table LRA 7 must be delivered to the Provincial Director, Department of Labour at the address shown opposite that jurisdiction in column 2 of that Table. Table LRA 7 - Table of Provincial Directors 1 - Geographical Jurisdiction 2 - Address The Province of KwaZulu-Natal P O Box 940, Durban 4000 The Province of Northern Caps Private Bag X5012, Kimberley 8300 The Northern Province Private Bag X9368, Pietersburg 0700 The Province of North-West Private Bag X2040, Mmabatho 8681 The Province of Eastern Cape Private Bag X9005, East London 5200 The Province of Mpumalanga Private Bag X7263, Witbank 0135 The Province of the Free State P O Box 522, Bloemfontein 9300 The Province of Gauteng, Guateng South in the Magisterial Districts of Alberton, Boksburg, Brakpan, Germiston, Heidelberg, Johannesburg, Kempton Park, Oberholzer, Randburg, Roodepoort, Vanderbijlpark, Vereeniging and Westonaria P O Box 4560, Johannesburg 2000 The Province of Gauteng, Guateng North in the Magisterial Districts of- Benoni, Bronkhorstspruit, Cullinan, Krugersdorp, Nigel, Pretoria, Randfontein, Soshanguve 1, Soshanguve 2, Springs and Wonderboom P O Box 393, Pretoria 0001 The Province of Western Caps P O Box 872, Cape Town 8000 Labour Relations Regulations 13. Provincial Directors, Department of Labour Whenever the Act or a regulation requires a document to be delivered to the Provincial Director of the Department of Labour within a particular jurisdiction, any document in respect of a matter within a geographical jurisdiction listed in column 1 of Table LRA 7 must be delivered to the Provincial Director, Department of Labour at the address shown opposite that jurisdiction in column 2 of that Table. Table LRA 7 - Table of Provincial Directors 1 - Geographical Jurisdiction 2 - Address The Province of KwaZulu-Natal P O Box 940, Durban 4000 The Province of Northern Caps Private Bag X5012, Kimberley 8300 The Northern Province Private Bag X9368, Pietersburg 0700 The Province of North-West Private Bag X2040, Mmabatho 8681 The Province of Eastern Cape Private Bag X9005, East London 5200 The Province of Mpumalanga Private Bag X7263, Witbank 0135 The Province of the Free State P O Box 522, Bloemfontein 9300 The Province of Gauteng, Guateng South in the Magisterial Districts of Alberton, Boksburg, Brakpan, Germiston, Heidelberg, Johannesburg, Kempton Park, Oberholzer, Randburg, Roodepoort, Vanderbijlpark, Vereeniging and Westonaria P O Box 4560, Johannesburg 2000 The Province of Gauteng, Guateng North in the Magisterial Districts of- Benoni, Bronkhorstspruit, Cullinan, Krugersdorp, Nigel, Pretoria, Randfontein, Soshanguve 1, Soshanguve 2, Springs and Wonderboom P O Box 393, Pretoria 0001 The Province of Western Caps P O Box 872, Cape Town 8000 Labour Relations Regulations 14. Short title and commencement a. These regulations are called the Labour Relations Regulations. b. These regulations come into operation on 11 November 1996. Labour Relations Regulations Index of Forms annexed to Regulations (Organised according to the sequence of the Act. An index organised according to Activities and Organisations is also gazetted, but is not reproduced here.) Note that the forms themselves are not reproduced here or a as Word documents. They are available from your nearest Department of Labour office. Chapter 1 Purpose, Application and Interpretation No forms Chapter 2 Freedom of Association and General Protections No forms Chapter 3. Collective Bargaining LRA Form 3.1 Conscientious objector requests Agency fee to be paid to Department Section 25(4)(b) LRA Form 3.2 List of deductions from conscientious objectors' wages Section 25(4)(b) LRA Form 3.3 Application for registration of a bargaining council Section 29(1) LRA Form 3.4 Certificate of registration of bargaining council Section 29(15)(a) LRA Form3.5 Bargaining council requests extension of collective agreement to non-parties Section 32(1) LRA Form3.6 Request to extend period of, or renew, collective agreement extended to non-parties Section 32(6)(a) LRA Form3.7 Bargaining council requests cancellation of collective agreement extended to non-parties Section 32(7) LRA Form 3.8 Council requests appointment of designated agent Sections 33(1) and 43(3) LRA Form 3.9 Certificate of appointment as designated agent of Council Section 33(2) LRA Form 3.10 Subpoena by designated agent Section 33(3) applying Section 42(1)(a) and (b) LRA Form 3.11 Amalgamating bargaining council applies for registration Section 34(2) LRA Form 3.12 Referring Public Service jurisdictional disputes for conciliation Section 38(3) and (5) LRA Form 3.13 Referring Public Service jurisdictional disputes for arbitration Section 38(6) LRA Form 3.14 Trade union applies for establishment of a Statutory Council Section 39(2) LRA Form 3.15 Employers' organisation applies for establishment of statutory council Section 39(2) LRA Form 3.16 Certificate of registration of a statutory council Section 42(a) LRA Form 3.17 Submission of collective agreement of statutory council to Minister for promulgation as a determination Section 44(1) and 44(2) LRA Form 3.18 Statutory council requests Minister to amend or extend period of determination Section 44(5) LRA Form 3.19 Statutory council applies to register as a Bargaining council Section 48(1) LRA Form 3.20 Council submits particulars of representativeness Section 49(2)(b) LRA Form 3.21 Certificate of representativeness of council Section 49(2)(c) LRA Form 3.22 Council applies for variation of scope of registration Section 58(1) LRA Form 3.23 Application about demarcation dispute Section 62(1) Chapter 4. Strikes and Lock-Outs LRA Form4.1 Request to assist parties reach agreement on picketing rules Section 69(4) LRA Form 4.2 Referral of dispute for essential services determination Section 73(1) LRA Form 4.3 Employer applies for maintenance service determination Section 75(2) LRA Form 4.4 Notice to NEDLAC about possible protest action Section 77(1)(b) LRA Form 4.5 Notice to NEDLAC of intention to proceed with protest action Section 77(1)(d) Chapter 5. Workplace Forums LRA Form 5.1 Representative Trade union applies for the establishment of a workplace forum Section 80(2) LRA Form 5.2 Representative Trade union applies for establishment of a Trade union-based workplace forum Section 81(1) Chapter 6. Trade Unions and Employers' Organisations LRA Form 6.1 Registration of a Trade union Section 96(1) LRA Form 6.2 Registration of an Employers' organisation Section 96(1) LRA Form 6.3 Certificate of registration of a Trade union Section 96(7)(a) LRA Form6.4 Certification of registration of Employers' organisation Section 96(7)(a) LRA Form 6.5 List of members to be kept by a Trade union Section 99(a) LRA Form 6.6 List of members to be kept by Employers' organisation Section 99(a) LRA Form 6.7 Number of Trade union members Section 100(a) LRA Form 6.8 Number of Employers' organisation members Section 100(a) LRA Form 6.9 Application by amalgamating Trade unions for registration Section 102(2) LRA Form 6.10 Application by amalgamating Employers' organisation for registration Section 102(2) Chapter 7. Dispute Resolution LRA Form 7.1 Council applies for accreditation Section 127(1) LRA Form 7.2 Private Agency applies for accreditation Section 127(1) LRA Form 7.3 Certificate of accreditation of Council Section 127(5)(a)(ii) LRA Form 7.4 Certificate of accreditation of Private Agency Section 127(5)(a)(ii) LRA Form 7.5 Council or Private Agency applies to amend accreditation Section 129(1) LRA Form 7.6 Council applies to renew accreditation Section 131(1) LRA Form 7.7 Private Agency applies to renew accreditation Section 131(1) LRA Form 7.8 Council applies for subsidy Section 132(1) LRA Form 7.9 Private Agency applies for subsidy Section 132(1) LRA Form 7.10 Council or Private Agency applies for renewal of subsidy Section 132(3)(a) LRA Form 7.11 Referring a dispute to the CCMA for conciliation Section 135 LRA Form 7.12 Certification of outcome of dispute referred for conciliation Section 64(1)(a) , 135(5)(a) , 136(1)(a) LRA Form 7.13 Request for arbitration Section 136 LRA Form 7.14 Notice of objection to arbitration by same Commissioner Section 136(3) LRA Form 7.15 Application to Director to appoint Senior Commissioner to arbitrate Section 137(1) LRA Form 7.16 Subpoena by Commissioner Section 142(1)(a), (b) and (c) Chapter 8 Unfair Dismissal No forms Chapter 9. General Provisions LRA Form 9.1 Employer's record of employee's earnings, deductions and time worked Section 205(1) LRA Form 9.2 Record of strike, lock-out or protest action Section 205(3)(a) Top of Form Labour Relations Regulations 1. Definitions In these regulations, any expression that is defined in the Act has that meaning and unless the context otherwise indicates- "annexure" means a document attached to these regulations; "the Act" means the Labour Relations Act, 1995 (Act No. 66 of 1995); and "the Constitution" means the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993). Top of Form Labour Relations Regulations 2. Service Whenever a party is required to satisfy the Commission or the Registrar that a copy of a referral, objection or other document has been served on another party, the party so required must provide the Commission or Registrar with- a. a copy of the proof of mailing the referral, objection or other document by registered post to the other party; b. a copy of the telegram, telex or telefax communicating the referral, objection or other document to the other party; c. a copy of a receipt signed by the other party or on that party's behalf if the copy of the referral, objection or other document was delivered by hand; or d. a statement confirming service signed by the person who delivered a copy of the referral, objection or other document to the other party. Labour Relations Regulations 3. Subpoenas 1. A subpoena issued in terms of the Act must be served - a. by delivering a copy of it to the person subpoenaed personally; b. by sending a copy of it by registered post to the subpoenaed person's - i. residential address; ii. place of business or employment; or iii. post office box or private bag number; or c. by leaving a copy of it at the subpoenaed person's residence or place of business or employment with a person who apparently- i. is at least sixteen years of age; and ii. is residing or employed there. 2. A subpoena issued in terms of section 142(1) of the Act must be in the form of annexure LRA 7.16. 3. A subpoena issued in terms of section 142(1) as applied by section 33(1) of the Act must be in the form of annexure LRA 3.10. Labour Relations Regulations 4. Witness fees 1. The fee payable to a witness in terms of section 142(7) of the Act is the total of- i. R100 for each day or part of a day during which the witness is required to be present at any proceedings; and ii. reasonable substantiated travel and subsistence expenses incurred by the witness in order to be present at those proceedings. 2. Despite subregulation (1), no witness fee may be paid to a person who, at the time of the relevant proceedings, is employed full-time by the state, or is a member of any legislature mentioned in the Constitution. Labour Relations Regulations 5. Access to documents Any person may inspect any document that the Act permits at the office of the Registrar, in Pretoria, at any time between 08h30 and 12h00 and between 13h30 and 15h30 on Mondays to Fridays. Labour Relations Regulations 6. Fees for documents 1. Whenever an employer provides an employee with a copy of a collective agreement, arbitration award, or Wage Act determination in terms of section 204(c)(i) of the Act, the employer may charge a fee of no more than R0.50 for each page of that copy. 2. The registrar may charge the fee shown in column 3 of Table LRA 1 for a service listed in column 2 of that Table. 3. All fees referred to in subregulation (2) must be paid in advance in revenue stamps. Table LRA 1 - Table of Document Fees 1 - Section 2 - Service 3 - Fee Any Section Inspecting a document R1 Any Section Copying a document R1 Any Section Providing a certified copy of a document R1 for each copy, plus R0,50 for each page in the document. 25(6) Providing a certified extract of an auditor's report R0,50 for each page in the extract. 71(4) Providing a certified copy or extract from a written representation R0,50 for each page in the extract. 110(2) Providing a certified copy of, or extract from, a document mentioned in s110(1) R0,50 for each page in the extract. 110(4) Providing a certified copy of, or extract from, a document mentioned in s110(3) R0,50 for each page in the extract. 127(7)(b) Providing a certified copy of, or extract from, a document mentioned in s127(7)(a) R0,50 for each page in the extract. 132(6)(b) Providing a certified copy of, or extract from, a notice mentioned in s132(6)(a) R0,50 for each page in the extract. Labour Relations Regulations 7. Form of Requests and Applications 1. Whenever a request or application is contemplated in terms of a section of the Act shown in column 1 of Table LRA 2 for a purpose listed in column 2 of that Table, the request or application must be in the form of the annexure listed opposite that section number in column 3 of that Table, and must be produced subject to any conditions listed opposite that section number in column 4 of that Table. 2. The registrar has the power to assign an official to verify from the membership lists the figures furnished in respect of representativeness in an industry or sector. Table LRA 2 - Table of Requests and Applications 1 - Section 2 - Purpose 3 - Annexure 4 - Conditions 25(4)(b) Conscientious objector requests agency fee to be paid to the Department of Labour LRA 3.1 Agency fee deducted pursuant to the request must be remitted with annexure LRA 3.2 26(8) , applying 25(4)(b) Conscientious objector requests agency fee to be paid to the Department of Labour LRA 3.1 Agency fee deducted pursuant to the request must be remitted with annexure LRA 3.2 29(1) Application for registration of a bargaining council LRA 3.3 1. Submit two copies 2. Must be submitted to the Registrar, c/o the Provincial Director of the Department of Labour 32(1) Bargaining council requests extension of collective agreement to non-parties LRA 3.5 1. Submit two copies 2. Must be accompanied by a current certificate of representativeness in the form of annexure LRA 3.21 3. Submit to the Minister, c/o the Provincial Director of the Department of Labour 32(6)(a) Request to extend the period of, or renew collective agreement extended to non parties LRA 3.6 1. Submit two copies 2. Must be accompanied by a current certificate of representativeness in the form of annexure LRA 3.21 3. Submit to the Minister, c/o the Provincial Director of the Department of Labour 32(7) Bargaining council requests cancellation of collective agreement extended to non-parties LRA 3.7 1. Submit two copies 2. Submit to the Minister, c/o the Provincial Director of the Department of Labour 33(1) Bargaining council requests appointment of designated agent LRA 3.8 1. Submit two copies 2. Submit to Minister, c/o the Provincial Director of the Department of Labour 43(3) applying 33(1) Statutory council requests appointment of designated agent LRA 3.8 1. Submit two copies 2. Submit to Minister, c/o the Provincial Director of the Department of Labour 34(2) Amalgamating bargaining council applies for registration LRA 3.11 1. Submit two copies 2. Must be accompanied by a current certificate of representativeness in the form of annexure LRA 3.21 3. Submit to Registrar, c/o the Provincial Director of the Department of Labour 38(6) Request for a jurisdictional dispute in the public service to be resolved through arbitration LRA 3.13 1. Proof of service on the other party 2. Submit to the Dispute Resolution Committee, c/o the Commission 39(2) Trade union applies for establishment of a statutory council LRA 3.14 1. Submit two copies 2. Submit to the Minister, c/o the Provincial Director of the Department of Labour 39(2) Employers' organisation applies for establishment of a statutory council LRA 3.15 1. Submit two copies 2. Submit to Registrar, c/o the Provincial Director of the Department of Labour 48(1) Statutory council applies to register as a bargaining council LRA 3.19 1. Submit two copies 2. Submit to Registrar, c/o the Provincial Director of the Department of Labour 58 Council applies for variation of scope of registration LRA 3.22 Submit to the Registrar, c/o the Provincial Director of the Department of Labour 62(1) Application about demarcation dispute LRA 3.23 1. Proof of service on other party 2. Submit to the Provincial Office of the Commission 69(4) Request to assist parties reach agreement on picketing rules LRA 4.1 1. Send a copy of request to other party 2. Submit to the Provincial Office of the Commission 75(2) Employer applies for maintenance service determination LRA 4.3 1. Proof of service on other party 2. Submit to the Essential Services Committee, c/o the Commission 80(2) Representative trade union applies for the establishment of a workplace forum LRA 5.1 1. Proof of service on other party 2. Submit to the Registrar in the Provincial Office of the Commission 81(1) Representative trade union applies for the establishment of a trade union based workplace forum LRA 5.2 1. Proof of service on other party \ 2. Submit to the Registrar in the Provincial Office of the Commission 96(1) Registration of a trade union LRA 6.1 1. Submit two copies 2. Submit to the Registrar, c/o the Provincial Director of the Department of Labour 96(1) Registration of an employers' organisation LRA 6.2 1. Submit two copies 2. Submit to the Registrar, c/o Provincial Director of the Department of Labour 99(a) List of members to be kept by a trade union LRA 6.5 99(a) List of members to be kept by an employers' organisation LRA 6.6 102(2) Application by amalgamating trade unions for registration LRA 6.9 1. Submit two copies 2. Submit to the Registrar, c/o the Provincial Director of the Department of Labour 102(2) Application by amalgamating employers' organisation for registration LRA 6.10 1. Submit two copies 2. Submit to the Registrar, c/o the Provincial Director of the Department of Labour 127(1) Council applies for accreditation LRA 7.1 1. Attach a copy of the certificate of registration, council's code of conduct and the motivation for accreditation to the form 2. Submit to the Governing Body of the Commission 127(1) Private agency applies for accreditation LRA 7.2 1. Attach a copy of the agency's code of conduct and the motivation for accreditation to the form 2. Submit to the Governing Body of the Commission 129(1) Council or private agency applies to amend its accreditation LRA 7.5 1. Attach a copy of the current certificate of accreditation 2. Submit to Governing Body of the Commission 131(1) Council applies to renew its accreditation LRA 7.6 1. Attach a copy of the current certificate of accreditation 2. Submit to Governing Body of the Commission 131(1) Private agency applies to renew its accreditation LRA 7.7 1. Attach a copy of the current certificate of accreditation 2. Submit to Governing Body of the Commission 132(1) Council applies for a subsidy LRA 7.8 1. Attach a copy of the current certificate of accreditation (if applicable). 2. Submit to Governing Body of the Commission 132(1) Private agency applies for a subsidy LRA 7.9 1. Attach a copy of the current certificate of accreditation (if applicable) 2. Submit to Governing Body of the Commission. 132(8)(a) Council or private agency applies for renewal of subsidy LRA 7.10 1. Attach current certificate of accreditation 2. Submit to Governing Body of the Commission 136 Request for arbitration LRA 7.13 1. Proof of service on other party 2. Submit to the Registrar in the Provincial Office of the Commission 137(1) Application to director to appoint a senior commissioner to arbitrate LRA 7.15 1. Proof of service on other party 2. Submit to the Director of the Commission Labour Relations Regulations 8. Form of Certificates or Particulars 1. A certificate issued by the Commission in terms of sections 64(1)(a)(i) , 135(5)(a) or 136(1)(a) of the Act must be in the form of annexure LRA 7.12. 2. Whenever a certificate or statement of particulars is contemplated in terms of a section of the Act shown in column 1 of Table LRA 3 for a purpose listed in column 2 of that Table , the document must be in the form of the annexure listed opposite that section number in column 3 of that Table, and must be produced subject to any conditions listed opposite that section number in column 4 of that Table. Table LRA 3 - Table of Certificates and Particulars 1 - Section 2 - Purpose 3 - Annexure 4 - Conditions 29(15)(a) Certificate of registration of a bargaining council LRA 3.4 Must bear the official stamp of the Registrar 33(2) Certificate of appointment as a designated agent of a council LRA 3.9 Must bear the official stamp of the Council 42(a) Certificate of Registration of a statutory council LRA 3.16 Must bear the official stamp of the Registrar 49(2)(b) Council submits particulars of representativeness LRA 3.20 1. Submit two copies 2. Submit to Registrar, c/o the Provincial Director of the Department of Labour 49(2)(c) Certificate of representativeness of a council LRA 3.21 Must bear the official stamp of the Registrar 135(5)(a) , 64(1)(a)(i) , 136(1)(a) Certificate of outcome of dispute referred to conciliation LRA 7.12 Must bear official stamp of Commission, council or agency 96(7)(a) Certificate of registration of a trade union LRA 6.3 Must bear the official stamp of the Registrar 96(7)(a) Certificate of registration of an employers' organisation LRA 6.4 Must bear the official stamp of the Registrar 127(5)(a)(ii) Certificate of accreditation of council LRA 7.3 1. Must include terms of accreditation 2. Must bear official stamp of the Commission 127(5)(a)(ii) Certificate of accreditation of private agency LRA 7.4 1. Must include terms of accreditation 2. Must bear official stamp of the Commission Top of Form Labour Relations Regulations 9. Form of Notices, Demands and Appeals Whenever a Notice, Demand or Appeal is contemplated in terms of a section of the Act shown in column 1 of Table LRA 4 for a purpose listed in column 2 of that Table, the document must be in the form of the annexure listed opposite that section number in column 3 of that Table, and must be produced subject to any conditions listed opposite that section number in column 4 of that Table. Table LRA 4 - Table of Notices, Demands and Appeals. 1 - Section 2 - Purpose 3 - Annexure 4 - Conditions 77(1)(b) Notice to NEDLAC about possible protest action LRA 4.4 Submit to the Executive Director of NEDLAC 77(1)(d) Notice to NEDLAC of intention to proceed with protest action LRA 4.5 1. Submit to the Executive Director of NEDLAC 2. Must be received at least 14 days before the start of the protest action 136(3) Notice of objection to arbitration by same commissioner LRA 7.14 1. Proof of service on other party is required 2. Submit to Registrar in the Provincial Office of the Commission 33(3) applying 142(1) Subpoena by designated agent LRA 3.10 142(1) Subpoena by Commissioner LRA 7.16 Labour Relations Regulations 10. Forms of Records, Reports, Statements, Lists and Registers Whenever a Record, Report, Statement, List or Register is contemplated in terms of a section of the Act shown in column 1 of Table LRA 5 for a purpose listed in column 2 of that Table, the document must be in the form of the annexure listed opposite that section number in column 3 of that Table, and must be produced subject to any conditions listed opposite that section number in column 4 of that Table. Table LRA 5 - Table of Records, Reports, Statements, Lists and Registers 1 - Section 2 - Purpose 3 - Annexure 4 - Conditions 25(4)(b) List of deductions from conscientious objector LRA 3.2 1. Agency fee deducted must be remitted with this form 2. Submit two copies 3. Submit to the Provincial Director of the Department of Labour 26(8) , applying 25(4)(b) List of deductions from conscientious objector LRA 3.2 1. Agency fee deducted must be remitted with this form 2. Submit two copies 3. Submit to the Provincial Director of the Department of Labour 44(1) and 44(2) Submission of collective agreement of statutory council to Minister for promulgation as a determination LRA 3.17 1. Submit two copies 2. Submit to Minister, c/o Director General of the Department of Labour 100(a) Number of trade union members LRA 6.7 1. Submit to the Registrar of Labour Relations 2. Must reach Registrar by the 31 March 100(a) Number of employers' organisation's members LRA 6.8 1. Submit to the Registrar of Labour Relations 2. Must reach Registrar by the 31 March 205(1) Employers' record of employees earnings, deductions and time worked LRA 9.1 205(3)(a) Records of strike, lock-out and protest action LRA 9.2 Must be submitted to Director General of the Department of Labour within two months of the end of the strike, lock-out or protest action Labour Relations Regulations 11. Form of Proposals, Resolutions and Referrals 1. A request to the Commission to arbitrate a dispute in terms of sections 16(9) , 21(7), 21(11) , 22(4) , 24(5) , 24(6) , 45(4) , 61(13) , 74(4) , 86(7) , 89(6) , 94(4) , 133(2)(b) , 141(4) , 191(5)(a) or 196(9) or item 3(4)(b) of Part B of Schedule 7 to the Act must be made in the form of annexure LRA 7.13. 2. A referral of a dispute to the Commission for conciliation in terms of sections 9(1) , 16(6) , 21(4), 21(11) , 22(1) , 24(2), 24(6) , 26(11) , 45(1) , 61(10) , 63(1) , 64(1)(a), 64(2) , 69(8) , 74(1) , 86(4)(b) , 89(3) , 94(1) , 134 , 191(1) or 196(6) or item 3(1)(b) of Part B of Schedule 7 to the Act by the Commission, must be made in the form of annexure LRA 7.11. 3. Whenever a Proposal, Resolution or Referral is contemplated in terms of a section of the Act shown in column 1 of Table LRA 6, for a purpose listed in column 2 of that Table, the document must be in the form of the annexure listed opposite that section number in column 3 of that Table, and must be produced subject to any conditions listed opposite that section number in column 4 of that Table. Table LRA 6: Table of Proposals, Resolutions and Referrals 1 - Section 2 - Purpose 3 - Annexure 4 - Conditions 38(3) Referring a Public Service jurisdictional dispute for conciliation LRA 3.12 1. Proof of service on other party 2. Submit to the Dispute Resolution Committee, c/o the Commission 44(5) Statutory council requests Minister to amend or extend the period of a determination LRA 3.18 1. Submit two copies 2. Submit to Minister, c/o Director General of the Department of Labour 73(1) Referral of dispute for essential services determination LRA 4.2 1. Proof of service on other party 2. Submit to the Essential Services Committee, c/o the Commission. 135 Referring a dispute to the Commission for conciliation LRA 7.11 Submit to Provincial Office of the Commission Top of Form Labour Relations Regulations 12. Labour Court The oath to be taken or solemn affirmation to be made before the Judge President of the Labour Court in terms of section 154(6) of the Act by a person who has been appointed a judge of the Labour Court and who is not a judge of the Supreme Court, must be in the following form: "I.................................. .swear/solemnly affirm that, as a Judge of the Labour Court, I will be faithful to the Republic of South Africa, will uphold and protect the Constitution; and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the constitution and the law. (In the case of an oath: So help me God.) Labour Relations Regulations 13. Provincial Directors, Department of Labour Whenever the Act or a regulation requires a document to be delivered to the Provincial Director of the Department of Labour within a particular jurisdiction, any document in respect of a matter within a geographical jurisdiction listed in column 1 of Table LRA 7 must be delivered to the Provincial Director, Department of Labour at the address shown opposite that jurisdiction in column 2 of that Table. Table LRA 7 - Table of Provincial Directors 1 - Geographical Jurisdiction 2 - Address The Province of KwaZulu-Natal P O Box 940, Durban 4000 The Province of Northern Caps Private Bag X5012, Kimberley 8300 The Northern Province Private Bag X9368, Pietersburg 0700 The Province of North-West Private Bag X2040, Mmabatho 8681 The Province of Eastern Cape Private Bag X9005, East London 5200 The Province of Mpumalanga Private Bag X7263, Witbank 0135 The Province of the Free State P O Box 522, Bloemfontein 9300 The Province of Gauteng, Guateng South in the Magisterial Districts of Alberton, Boksburg, Brakpan, Germiston, Heidelberg, Johannesburg, Kempton Park, Oberholzer, Randburg, Roodepoort, Vanderbijlpark, Vereeniging and Westonaria P O Box 4560, Johannesburg 2000 The Province of Gauteng, Guateng North in the Magisterial Districts of- Benoni, Bronkhorstspruit, Cullinan, Krugersdorp, Nigel, Pretoria, Randfontein, Soshanguve 1, Soshanguve 2, Springs and Wonderboom P O Box 393, Pretoria 0001 The Province of Western Caps P O Box 872, Cape Town 8000 Labour Relations Regulations 14. Short title and commencement a. These regulations are called the Labour Relations Regulations. b. These regulations come into operation on 11 November 1996. Labour Relations Regulations Index of Forms annexed to Regulations (Organised according to the sequence of the Act. An index organised according to Activities and Organisations is also gazetted, but is not reproduced here.) Note that the forms themselves are not reproduced here or a as Word documents. They are available from your nearest Department of Labour office. Chapter 1 Purpose, Application and Interpretation No forms Chapter 2 Freedom of Association and General Protections No forms Chapter 3. Collective Bargaining LRA Form 3.1 Conscientious objector requests Agency fee to be paid to Department Section 25(4)(b) LRA Form 3.2 List of deductions from conscientious objectors' wages Section 25(4)(b) LRA Form 3.3 Application for registration of a bargaining council Section 29(1) LRA Form 3.4 Certificate of registration of bargaining council Section 29(15)(a) LRA Form3.5 Bargaining council requests extension of collective agreement to non-parties Section 32(1) LRA Form3.6 Request to extend period of, or renew, collective agreement extended to non-parties Section 32(6)(a) LRA Form3.7 Bargaining council requests cancellation of collective agreement extended to non-parties Section 32(7) LRA Form 3.8 Council requests appointment of designated agent Sections 33(1) and 43(3) LRA Form 3.9 Certificate of appointment as designated agent of Council Section 33(2) LRA Form 3.10 Subpoena by designated agent Section 33(3) applying Section 42(1)(a) and (b) LRA Form 3.11 Amalgamating bargaining council applies for registration Section 34(2) LRA Form 3.12 Referring Public Service jurisdictional disputes for conciliation Section 38(3) and (5) LRA Form 3.13 Referring Public Service jurisdictional disputes for arbitration Section 38(6) LRA Form 3.14 Trade union applies for establishment of a Statutory Council Section 39(2) LRA Form 3.15 Employers' organisation applies for establishment of statutory council Section 39(2) LRA Form 3.16 Certificate of registration of a statutory council Section 42(a) LRA Form 3.17 Submission of collective agreement of statutory council to Minister for promulgation as a determination Section 44(1) and 44(2) LRA Form 3.18 Statutory council requests Minister to amend or extend period of determination Section 44(5) LRA Form 3.19 Statutory council applies to register as a Bargaining council Section 48(1) LRA Form 3.20 Council submits particulars of representativeness Section 49(2)(b) LRA Form 3.21 Certificate of representativeness of council Section 49(2)(c) LRA Form 3.22 Council applies for variation of scope of registration Section 58(1) LRA Form 3.23 Application about demarcation dispute Section 62(1) Chapter 4. Strikes and Lock-Outs LRA Form4.1 Request to assist parties reach agreement on picketing rules Section 69(4) LRA Form 4.2 Referral of dispute for essential services determination Section 73(1) LRA Form 4.3 Employer applies for maintenance service determination Section 75(2) LRA Form 4.4 Notice to NEDLAC about possible protest action Section 77(1)(b) LRA Form 4.5 Notice to NEDLAC of intention to proceed with protest action Section 77(1)(d) Chapter 5. Workplace Forums LRA Form 5.1 Representative Trade union applies for the establishment of a workplace forum Section 80(2) LRA Form 5.2 Representative Trade union applies for establishment of a Trade union-based workplace forum Section 81(1) Chapter 6. Trade Unions and Employers' Organisations LRA Form 6.1 Registration of a Trade union Section 96(1) LRA Form 6.2 Registration of an Employers' organisation Section 96(1) LRA Form 6.3 Certificate of registration of a Trade union Section 96(7)(a) LRA Form6.4 Certification of registration of Employers' organisation Section 96(7)(a) LRA Form 6.5 List of members to be kept by a Trade union Section 99(a) LRA Form 6.6 List of members to be kept by Employers' organisation Section 99(a) LRA Form 6.7 Number of Trade union members Section 100(a) LRA Form 6.8 Number of Employers' organisation members Section 100(a) LRA Form 6.9 Application by amalgamating Trade unions for registration Section 102(2) LRA Form 6.10 Application by amalgamating Employers' organisation for registration Section 102(2) Chapter 7. Dispute Resolution LRA Form 7.1 Council applies for accreditation Section 127(1) LRA Form 7.2 Private Agency applies for accreditation Section 127(1) LRA Form 7.3 Certificate of accreditation of Council Section 127(5)(a)(ii) LRA Form 7.4 Certificate of accreditation of Private Agency Section 127(5)(a)(ii) LRA Form 7.5 Council or Private Agency applies to amend accreditation Section 129(1) LRA Form 7.6 Council applies to renew accreditation Section 131(1) LRA Form 7.7 Private Agency applies to renew accreditation Section 131(1) LRA Form 7.8 Council applies for subsidy Section 132(1) LRA Form 7.9 Private Agency applies for subsidy Section 132(1) LRA Form 7.10 Council or Private Agency applies for renewal of subsidy Section 132(3)(a) LRA Form 7.11 Referring a dispute to the CCMA for conciliation Section 135 LRA Form 7.12 Certification of outcome of dispute referred for conciliation Section 64(1)(a) , 135(5)(a) , 136(1)(a) LRA Form 7.13 Request for arbitration Section 136 LRA Form 7.14 Notice of objection to arbitration by same Commissioner Section 136(3) LRA Form 7.15 Application to Director to appoint Senior Commissioner to arbitrate Section 137(1) LRA Form 7.16 Subpoena by Commissioner Section 142(1)(a), (b) and (c) Chapter 8 Unfair Dismissal No forms Chapter 9. General Provisions LRA Form 9.1 Employer's record of employee's earnings, deductions and time worked Section 205(1) LRA Form 9.2 Record of strike, lock-out or protest action Section 205(3)(a) LRA Form 3.24: Model Constitution of a Bargaining Council Purpose of this model constitution Model constitution of Bargaining Council based on section 30(1) of the Act To assist trade unions and employers to prepare a constitution of a bargaining council that meets the requirements of section 30(1). This is a model constitution. The parties to the council are free to draft their own constitution or to adapt this model to suit their own requirements provided that the constitution complies with section 30(1) of the Act. Top of Form LRA Form 3.24: Model Constitution of a Bargaining Council 1. Name The name of this bargaining council is ________________________________________________________________________ LRA Form 3.24: Model Constitution of a Bargaining Council 2. Registered scope The registered scope of the council is specified in the council's certificate of registration attached to this constitution. LRA Form 3.24: Model Constitution of a Bargaining Council 3. Powers and functions 1. The powers and functions of the council are 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 of the Act; 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 and unemployment 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; and k. to consider and deal with any other matter that affects the interests of the parties. 2. The council is only able to exercise these powers and perform these functions within its registered scope. LRA Form 3.24: Model Constitution of a Bargaining Council 4. Parties 1. The founding parties to the council are- a. the following employers' organisations i. ________________________________________ ii. ________________________________________ iii. ________________________________________ (name) b. the following trade union(s) i. ________________________________________ ii. ________________________________________ iii. ________________________________________ [name] 2. Any registered trade union or registered employers' organisation that has members that fall within the registered scope of the council may apply in writing to the council for admission as a party. 3. The application must be accompanied by a. a certified copy of the applicant's registered constitution; b. a certified copy of the applicant's certificate of registration; c. details of the applicant's membership within the registered scope of the council, including, in the case of an employers' organisation, the number of employees that its members employ within the council's registered scope; d. a statement of the reasons why the applicant ought to be admitted as a party to the council; and e. any other information on which the applicant relies in support of its application. 4. The council, within 90 days of receiving an application for admission, must decide whether to grant or refuse the applicant admission, and must advise the applicant of its decision, failing which the council is deemed to have refused the applicant admission. 5. If the council refuses to admit an applicant it must, within 30 days of the date of the refusal, advise the applicant in writing of its decision and the reasons for that decision. LRA Form 3.24: Model Constitution of a Bargaining Council 5. Appointment of representatives 1. The council consists of a. ___ representatives of the employers' organisations that are parties to the council; and b. ___ representatives of the trade unions that are parties to the council. 2. Subject to sub-clause (3), the representatives will be allocated among the parties to the council as follows: a. employers' organisation(s)number of representatives - _______________________________________________ _______________________________________________ _______________________________________________ (names) b. trade union(s)number of representatives- _______________________________________________ _______________________________________________ _______________________________________________ (names) 3. If one or more employers' organisations party to the council represent small and medium enterprises, at least one of the employer representatives referred to in sub-clause (2) must be allocated to those organisations. 4. Subject to sub-clause (2) and to its own constitution, each party to the council may appoint a. its representatives to the council; and b. an alternate for each of its representatives. 5. a. A representative or an alternate will hold office for twelve months and will be eligible for re-appointment at the end of that term. b. A representative or an alternate whose term of office has expired and who is not re-appointed, may nevertheless continue to act as a representative until that representative's successor assumes office. 6. Despite sub-clause (5), a. a party may withdraw any of its representatives or alternates after having given at least 21 days' notice in writing to the secretary ; b. a representative who, without good cause, is absent from three consecutive meetings of the council, is disqualified from continuing in that office. 7. If the office of any representative or alternate becomes vacant, the party that appointed the representative or alternate may appoint another representative or alternate for the unexpired portion of the predecessor's term of office. LRA Form 3.24: Model Constitution of a Bargaining Council 6. Council meetings 1. The council must hold a. an annual general meeting in the month of ___;and b. an ordinary meeting at least once every ___ month(s). 2. A special meeting of the council - a. may be called at any time by the chairperson with a view to disposing of urgent business; and b. must be called by the chairperson within 14 days of i. receiving a request for that purpose, stating the purpose of the special meeting and signed by not less than ____ representatives; or ii. the adoption of a resolution by the council calling for a special meeting. 3. At the annual general meeting, the council must a. elect the additional members of the executive committee ; b. elect the chairperson and the deputy chairperson of the council; c. appoint the members of the panel of conciliators referred to in clause 11(1)(a); d. appoint the members of the panel of arbitrators referred to in clause 11(1)(b); e. appoint the members of an exemptions board to consider and dispose of applications for exemption from the provisions of any collective agreement that may be concluded in the council. f. consider the annual financial statements of the council and the auditor's report on those statements; and g. consider and approve, with or without any amendments, the budget of the council for the next financial year as prepared in terms of clause 15(10). 4. The secretary must prepare a written notice of every council meeting stating the date, time and venue of the meeting and the business to be transacted, and must send the notice to each representative by registered post at least ___ days before the date of the meeting. However, the chairperson may authorise shorter notice for a special meeting. 5. At least half of the total number of employer representatives and half of the total number of employee representatives form a quorum and must be present before a meeting may begin or continue. 6. If, at the time fixed for a meeting to begin or continue, and for 30 minutes after that time, there is no quorum present, the meeting must be adjourned to the same place at the same time on the corresponding day in the following week unless that day is a public holiday, in which case the meeting must be adjourned to the day immediately after that public holiday. 7. A meeting that was adjourned in terms of sub-clause (6) may proceed on the date to which it has been adjourned with the representatives present at the time called for the meeting, regardless of whether or not notice has been given in terms of sub-clause (4) and whether or not a quorum is present. 8. The secretary must cause minutes to be kept of the proceedings at council meetings. 9. At every meeting of the council a. the secretary must read the minutes of the previous meeting unless they were previously circulated; and b. after the minutes have been confirmed, with or without any amendments, the chairperson must sign the minutes. 10. A motion proposed at a meeting may not be considered unless it has been seconded. The chairperson may require a motion to be submitted in writing, in which case the chairperson must read the motion to the meeting. 11. Unless this constitution provides otherwise, all motions must be decided by a majority of votes of those present and entitled to vote and voting must be by show of hands. 12. Each representative has one vote on any matter before the council for its decision. However, if at the meeting the employer representatives and employee representatives are not equal in number, the side that is in the majority must withdraw so many of its representatives from voting at that meeting as may be necessary to ensure that the two sides are of equal numerical strength at the time of voting. 13. If any question which the executive committee considers to be extremely urgent arises between meetings of the council, and it is possible to answer that question by a simple "yes Or "no", the executive committee may direct the secretary to cause a vote of the representatives on the council to be taken by post. A Proposal subjected to a postal vote may be adopted only if it is supported by at least two-thirds of the total number of representatives who are entitled to vote. 14. The executive committee may adopt general rules of procedure for its meetings and for the meetings of the council and of its other committees. However, in the event of any conflict between those rules and the provisions of this constitution, the provisions of this constitution will prevail. LRA Form 3.24: Model Constitution of a Bargaining Council 7. Executive Committee 1. The council will have an executive committee that consists of the chairperson and the deputy chairperson of the council, who are members by virtue of their respective offices, and additional members elected in accordance with sub-clause (3). 2. Subject to the directions and control of the council, the executive committee may exercise and perform the powers, functions and duties of the council relating to the supervision and control of the everyday management and administration of the council. In addition, the executive committee may - a. investigate and report to the council on any matter connected with the sector in respect of which the council is registered; b. do anything necessary to give effect to decisions of the council; c. monitor and enforce collective agreements concluded in the council; and d. exercise and perform any power, function and duty that is conferred or imposed on the executive committee by or in terms of this constitution or that is delegated by the council to the executive committee. However, the council may not delegate to the executive committee the powers, functions, and duties contemplated in clauses 4(4) and (5), 6(3), 16 and 17 and sub-clauses (3) and (6) of this clause, and the power of the council to delegate. 3. At the annual general meeting, the council must elect the additional members of the executive committee and an alternate for each of them. The additional members and their alternates must be representatives in the council, and half of the additional members, as well as their alternates, must be appointed by the employer representatives in the council, whilst the other half of the additional members, as well as their alternates must be appointed by the employee representatives in the council. 4. a. An additional member of the executive committee will hold office for twelve months and will be eligible for re-election at the end of that term. b. An additional member of the executive committee whose term of office has expired and who is not re-elected, may nevertheless continue to act as a member of the executive committee until that member's successor assumes office. 5. An additional member of the executive committee- a. may resign from the committee at any time after having given at least 21 day's notice in writing to the secretary ; b. must vacate office immediately i. in the case of resignation, when the resignation takes effect; or ii. upon ceasing to be a representative of the council. 6. a. If the seat of an additional member of the executive committee becomes vacant, the council must fill the vacancy from the number of candidates nominated for that purpose by i. the employer representatives in the council, if that seat had been held by an additional member representing the employers; or ii. the employee representatives in the council, if that seat had been held by an additional member representing employees. b. A member appointed to fill a vacant seat holds that seat for the unexpired portion of the predecessor's term of office. 7. The executive committee must hold an ordinary meeting at least once every ___; 8. A special meeting of the executive committee a. may be called at any time by the chairperson with a view to disposing of urgent business; and b. must be called by the chairperson within___ days of receiving a request for that purpose, stating the purpose of the special meeting and signed by not less than ___ members of the executive committee. 9. The secretary must prepare a written notice of every executive committee meeting showing the date, time and venue of the meeting and the business to be transacted, and must send the notice to each member of the committee by registered post at least ___ days before the date of the meeting. However, the chairperson may authorise shorter notice for a special meeting. 10. At least half of the members of the executive committee representing employers' and half of the members of that committee representing employees form a quorum and must be present before a meeting may begin or continue. 11. Each member of the executive committee has one vote on any matter before the committee for its decision. However, if at the meeting the members representing employers and those representing employees are not equal in number, the side that is in the majority must withdraw so many of its members from voting as may be necessary to ensure that the two sides are of equal numerical strength at the time of voting. 12. In relation to any matter before the executive committee for its decision, the decision of a majority of those members of the executive committee who are present at the meeting and entitled to vote will be the decision of the committee. LRA Form 3.24: Model Constitution of a Bargaining Council 8. Other Committees 1. The council may establish other committees to perform any of its functions, including investigating and reporting to the council on any matter but excluding the non-delegateable functions referred to in clause 7(2)(d). 2. a. Half of the members of any committee so appointed must be nominated by the employer representatives, and the other half by the employee representatives. b. Subject to paragraph (a), committee members must be i. employers or employees within the registered scope of the council; or ii. office bearers or officials of the parties to the council. 3. A majority of the total number of the members of a committee forms a quorum and must be present before the meeting may begin or continue. 4. The provisions of clause 7 relating to the calling and conduct of meetings, read with the changes required by context, apply to meetings of any committee contemplated in this clause. Top of Form LRA Form 3.24: Model Constitution of a Bargaining Council 9. Chairperson and Deputy Chairperson 1. a. At the annual general meeting the council must elect a chairperson and a deputy chairperson . b. Subject to sub-clauses (3) and (6)(a), the serving chairperson of the council at the time of the annual general meeting will be the chairperson of the meeting and preside over the election of the next chairperson. 2. The chairperson of the meeting must call for nominations for the office of chairperson. A person will have been nominated if proposed by one and seconded by another representative in the council. 3. If the serving chairperson is nominated for another term, the council, by a show of hands, must elect a representative in the council to act as chairperson of the meeting during the election of the next chairperson. 4. a. If only one candidate is nominated, the candidate will be deemed to have been elected the new chairperson unopposed, and must be declared by the chairperson of the meeting to have been so elected. b. If two or more candidates are nominated, the chairperson of the meeting must conduct a vote by ballot, and must declare the candidate in whose favour the majority of the votes have been cast, to have been elected the new chairperson. 5. If an equal number of votes are cast for two or more candidates, and no other candidate has drawn a higher number of votes than those candidates, the chairperson of the meeting will cause to be determined by lot which one of those candidates is to become the new chairperson. 6. a. Upon having been declared elected, the new chairperson must preside over the meeting and must call for nominations for the office of deputy chairperson . b. If the newly elected chairperson is an employer representative, only employee representatives may be nominated for deputy chairperson, and vice-versa. c. The provisions of sub-clauses (2), (4) and (5), read with the changes required by context, apply to the election of the deputy chairperson. 7. a. The chairperson and the deputy chairperson hold their respective offices until the next election of the chairperson or deputy chairperson (as the case may be) takes place, or, if the chairperson or deputy chairperson ceases to be a representative in the council on any date before that election, until that date. Each of them will be eligible for re-election if still a representative when their respective terms as chairperson and deputy chairperson expires. b. If the office of the chairperson or deputy chairperson becomes vacant before the next election of the chairperson or deputy chairperson (as the case may be) the executive committee must elect a person as a chairperson or deputy chairperson (as the case may be) to hold office until the next election c. An election contemplated in paragraph (b) must be held in accordance with sub-clause.; (2), (4), (5) and (6), read with the changes required by the context. 8. The chairperson must preside over all meetings of the council, and must- a. sign the minutes of council meetings after those minutes have been confirmed; b. sign cheques drawn on the council's bank account; and c. perform any other functions and duties entrusted to the chairperson by this constitution as well as those that are generally associated with the office of chairperson. 9. The deputy chairperson must preside over meetings of the council and perform the duties and functions of the chairperson whenever the chairperson is absent or for any reason unable to act or to perform those functions and duties. 10. If both the chairperson and the deputy chairperson are absent or unable to act or to perform the functions and duties of the chairperson, the council, by show of hands must elect from the representatives a person to act as chairperson and to perform those functions and duties. 11. A chairperson or a deputy chairperson who has not been elected from amongst the representatives in the council is not entitled to vote on any matter before the council or the executive committee . 12. A chairperson or a deputy chairperson may be removed from office by the council for serious neglect of duty, serious misconduct or due to incapacity. LRA Form 3.24: Model Constitution of a Bargaining Council 10. Officials and employees 1. The council must appoint a secretary who will be responsible for the administrative and secretarial work arising from the functioning of the council and for performing the functions and duties imposed on the secretary by or in terms of the Act and this constitution. That work and those duties and functions include a. to keep and maintain the books and records of account that the council may direct in order to fully reflect the financial transactions and state of affairs of the council; b. to attend all meetings of the council and the executive committee and record the minutes of the proceedings at those meetings; c. to conduct the correspondence of the council, keeping originals of letters received and copies of letters sent; d. at each meeting of the council, to read significant correspondence that has taken place since the previous meeting; e. to bank all moneys received on behalf of the council within three days of receipt; f. whenever required by the council, but at least once in every quarter of the financial year, to submit to the council statements of its financial affairs and position; g. to prepare, for submission at the annual general meeting of the council, the budget for the next financial year and an annual report summarizing the key activities of the council; and h. to countersign cheques drawn on the council's bank account. 2. The secretary must a. retain a copy of the confirmed and signed minutes of every meeting of the council, the executive committee and any other committee of the council in safe custody in the office of the council for a period of at least three years from the date those minutes were confirmed; b. retain every financial statement referred to in sub clause (1)(f), and all vouchers and records relating to statements of that nature, for at least three years from the date of the statement; and c. sign the certificates of appointment to be issued to the persons appointed by the Minister as designated agents of the council. 3. The council may appoint any additional officials and any number of employees that may be necessary to assist the secretary in performing the functions and duties of that office. 4. The council may request the Minister to appoint any number of persons as designated agents to help it enforce any collective agreement concluded in the council. 5. Where there are two or more suitable candidates for appointment to the position of secretary or a designated agent, the council must elect the secretary or designated agent by conducting a ballot of the representatives present at the meeting at which an appointment is to be made, with the candidate receiving the highest number of votes being appointed. 6. The secretary, designated agents and other officials and employees of the council must not be biased in favour of or prejudiced against any party in the performance of their respective functions. LRA Form 3.24: Model Constitution of a Bargaining Council 11. Panels of conciliators and arbitrators 1. At its annual general meeting, the council must appoint a. a panel of conciliators, consisting of ___ members, for the purpose of conciliating disputes, b. a panel of arbitrators, consisting of ___ members for the purpose of determining disputes. 2. The council may remove a member of the panel of conciliators or arbitrators from office a. for serious misconduct; b. due to incapacity; or c. if at least one half of the employer representatives in the council and at least one half of the employee representatives in the council have voted in favour of the removal of that member from office. 3. If for any reason there is a vacancy in the panel of conciliators or the panel of arbitrators, the council may appoint a new member to the relevant panel for the unexpired portion of the predecessor's term of office. 4. Unless the parties to a dispute have agreed on a member of the panel of conciliators or the panel of arbitrators to conciliate or arbitrate their dispute, the secretary must appoint a member of the relevant panel to conciliate or arbitrate the dispute. 5. a. A person may be appointed to both the panel of conciliators and the panel of arbitrators . b. A member of the panel of conciliators or the panel of arbitrators whose term of office expires, will be eligible for re-appointment to the relevant panel at the end of the term. LRA Form 3.24: Model Constitution of a Bargaining Council 12 Disputes referred to the council for conciliation 1. In this clause dispute means a dispute between any of the parties to a council that may be referred to a council in terms of the Act except a dispute contemplated in clause 14. 2. For the purpose of sub-clause (1), a party to the council includes the members of any party to the council. 3. Any party to a dispute may refer the dispute in writing to the council. 4. The party who refers the dispute must satisfy the secretary that a copy of the referral has been served on all other parties to the dispute. 5. If satisfied that the referral has been served in compliance with sub-clause (4), the secretary a. may, if there is a collective agreement binding on the parties to the dispute that provides for an alternative procedure for resolving disputes, refer the dispute for resolution in terms of that procedure; or b. must appoint a member of the panel of conciliators to attempt to resolve the dispute through conciliation. 6. Nothing in this clause Prevents an officer or an employee of the council investigating the dispute or attempting to conciliate the dispute before the appointment of a conciliator in terms of sub-clause (5)(b). LRA Form 3.24: Model Constitution of a Bargaining Council 13. Disputes referred to the council for arbitration 1. For the purpose of this clause, a dispute means any dispute between any of the parties to the council that a. has been referred to a conciliator in terms of clause 12 but remains unresolved; and i. the Act requires that the dispute be arbitrated and any party to the dispute has requested that the dispute be resolved through arbitration; or ii. all the parties to the dispute consent to arbitration; or b. it is a dispute about the interpretation or the application of the provisions of this constitution. 2. Any party to a dispute may request that the dispute be resolved through arbitration. 3. The secretary must appoint a member of the panel of arbitrators to arbitrate the dispute. 4. The arbitrator may conduct the arbitration in a manner that the arbitrator considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities. 5. The arbitration proceedings must be conducted in accordance with the provisions of section 138 and 142 and, if applicable, sections 139, 140 and 141, of the Act, read with the changes required by the context. LRA Form 3.24: Model Constitution of a Bargaining Council 14. Procedure for the negotiation of collective agreements. 1. Any party to the council may introduce proposals for the conclusion of a collective agreement in the council. 2. The proposals must be submitted to the secretary in writing and must identify the other parties to the proposed agreement. 3. Within seven days of submission of the proposals, the secretary must serve copies of the proposals on the other parties to the council. 4. Within 21 days of submission of the proposals, the chairperson must call a special meeting of the executive committee to consider the proposals and to decide on a process for negotiating the proposals, including a. the introduction of counter-proposals; b. whether the negotiations should be conducted by the council, the executive committee or any other committee of the council; c. the appointment of a conciliator from the panel of conciliators to facilitate the negotiations; and d. the timetable for the negotiations. 5. If no negotiation process is agreed a. the secretary must appoint a conciliator from the panel of conciliators to facilitate negotiations and the conclusion of a collective agreement; b. the council must meet at least twice within 30 days of the meeting of the executive committee to negotiate on the proposals and any counter proposals, unless a collective agreement has been concluded; c. the conciliator must facilitate the negotiations at those meetings and the conclusion of collective agreements. 6. If no collective agreement is concluded in the course of this process or procedure contemplated in this clause a. the parties to the council may i. agree to refer the dispute to arbitration; or ii. resort to a strike or a lock-out that conforms with the provisions of Chapter IV of the Act; or b. any party to the dispute whose members are engaged in an essential service may request that the dispute in respect of the employers and the employees engaged in that service be resolved through arbitration. 7. In the circumstances contemplated in sub-clause (6)(a)(i) or (b), the secretary must appoint a member of the panel of arbitrators to arbitrate the dispute. 8. The provisions of clause 13(4) and (5) will apply to arbitration proceedings conducted in terms of this clause. 9. a. During the strike or lock-out the parties to the dispute must attend every meeting convened by the conciliator to resolve the dispute. b. If any party to the dispute fails to attend, without good cause, a meeting so convened, the members of that party i. if they participate in a strike, will forfeit the protection they would have enjoyed in terms of section 67 of the Act; ii. if they are engaged in a lock-out, will forfeit the protection they would have enjoyed in terms of section 67 of the Act. LRA Form 3.24: Model Constitution of a Bargaining Council 15. Finances 1. The council may raise funds by charging a levy on employees and employers within the registered scope of the council. 2. The council must open and maintain an account in its name at a bank of its choice that is registered in the Republic, and a. deposit all moneys it receives in that account within three days of receipt; and b. pay the expenses of and make all payments on behalf of the council by cheques drawn on that account. 3. The council may invest any surplus funds not immediately required for current expenses or contingencies, in a. internal registered stock as contemplated in section 21 of the Exchequer Act, 1975 (Act No. 66 of 1975); b. savings accounts, permanent shares or fixed deposits in any registered bank or financial institution; c. a registered unit trust; d. any other manner approved by the registrar. 4. All payments from the council's funds must be a. approved by the council; and b. made by cheque drawn on the council's bank account and signed by the chairperson or deputy-chairperson and counter-signed by the secretary. However, the council, by special resolution, may authorise any representative in the council, official or employee of the council to sign or counter-sign cheques drawn on the council's bank account in the event of both the chairperson and the deputy chairperson or the secretary not being readily available for that purpose. 5. a. Despite sub-clause (4), the council may maintain a petty cash account, out of which the secretary may make cash payments not exceeding R___ at any one occasion. b. Funds required for the petty cash account may be transferred to that account only by drawing a cheque issued and signed in the manner required by sub-clause (4). c. Except with the approval of the council, cheques drawn to transfer funds to petty cash may not exceed R___ per month in aggregate. d. The council may determine the form of records to be kept for the petty cash account. 6. At the end of each quarter of the financial year, the secretary must Prepare a statement showing the income and expenditure of the council for that quarter, and another reflecting the assets, liabilities and financial position as at the end of that period. 7. The financial year of the council begins on 1 ___ in each year and ends on ___ of the following year, except for the first financial year, which begins on the day that the council is registered and ends on the ___. 8. No later than ___ after the end of the financial year, the secretary must prepare a statement of the council's financial activity in respect of that financial year showing a. all moneys received for the council i. in terms of any collective agreement published in terms of the Act; and ii. from any other sources; b. expenditures incurred on behalf of the council under the following heads i. remuneration and allowances of their officials and employees; ii. amounts paid to representatives and alternates in respect of attendance at meetings, the travelling and subsistence expenses incurred by them, and the salary or wage deducted or not received by them due to their absence from work by reason of their involvement with the council; iii. remuneration and allowances of members of the panel of conciliators and arbitrators; iv. office accommodation; v. printing and stationery requirements; and vi. miscellaneous operating expenditure; c. the council's assets, liabilities and financial position as at the end of that financial year. 9. a. The annual financial statements must be signed by the secretary and counter-signed by the chairperson, and submitted to an auditor for auditing and preparing a report to the council. b. True copies of the audited statements and the auditor's reports must be made available for inspection at the office of the council to members and representatives of the parties, who are entitled to make copies of those statements and the auditor's report. c. The secretary must send certified copies of the audited financial statements and the auditor's report to the registrar within 30 days of receipt thereof. 10. Every year the secretary must prepare, for submission at the annual general meeting of the council, a budget for the council for the next financial year. 11. At the annual general meeting the council must appoint an auditor to perform the audit of the council for the next year. LRA Form 3.24: Model Constitution of a Bargaining Council 16. Winding up 1. At a special meeting called for that purpose, the council, by resolution adopted by a majority of the total number of representatives in the council, may decide to be wound up. 2. Upon adoption of a resolution to wind up, the secretary must take the necessary steps to ensure that a. application is immediately made to the Labour Court for an order giving effect to the resolution; and b. the council's books and records of account and an inventory of its assets, including funds and investments, are delivered to the liquidator appointed by the Labour Court, and that whatever may be necessary is done to place the assets, funds and investments of the council at the disposal and under the control of the liquidator. 3. Each party to the council remains liable for any unpaid liabilities to the council as at the adoption of a resolution to wind-up the council. 4. If all the liabilities of the council have been discharged, the council must transfer any remaining assets to a. a bargaining council within the same or similar sector; that has been agreed upon at the special meeting referred to in sub-clause (1); b. the Commission if- i. there is no bargaining council within the same or similar sector; or ii. the parties to the council fail to agree on a bargaining council that is to receive the remaining assets. LRA Form 3.24: Model Constitution of a Bargaining Council 17. Changing the constitution 1. The council may change this constitution at any time a. by a resolution adopted by unanimous vote of all the representatives in the council on a motion to amend tabled without prior notice; or b. by a resolution adopted by at least two thirds of all the representatives in the council after at least i. one month's notice of that motion to amend had been given to the secretary ; and ii. two weeks' notice of that motion had been given to all the other representatives. 2. Any amendment to this constitution becomes effective after the resolution effecting that amendment has been certified by the registrar in terms of section 57(3) of the Act. LRA Form 3.24: Model Constitution of a Bargaining Council 18. Necessary first steps 1. With a view to making the council operative and functional without delay, the provisions contained in the Annexure to this constitution will apply and must be read as one with this constitution until the requirements and procedures contemplated in those provisions have been complied with. 2. Any act performed in compliance with the provisions contained in the Annexure will be deemed to have been performed in terms of and in accordance with this constitution. LRA Form 3.24: Model Constitution of a Bargaining Council 19. Definitions In this constitution, any expression that is defined in the Act has that meaning and unless the context otherwise indicates - "chairperson" means the chairperson of the council who, by virtue of that office, is also the chairperson of the executive committee "deputy chairperson" means the deputy chairperson of the council who, by virtue of that office, is also the deputy chairperson of the executive committee; "executive committee" means the executive committee of the council; contemplated in clause 7 ; "Minister" means the Minister of Labour; "secretary" means the secretary of the council; and "the Act" means the Labour Relations Act, 1995 (Act No. 66 of 1995). LRA Form 3.24: Model Constitution of a Bargaining Council Annexure Necessary first steps to be followed by the council 1. At the first meeting of the council, which will be held a. the council, by show of hands, must select a suitable person to act as chairperson of that meeting, subject to paragraph (c), as well as another to keep the minutes of the meeting; b. the council must elect the chairperson and deputy chairperson and the additional members of the executive committee in the manner set out in clauses 7 and 9 respectively, read with the changes required by the context; c. the newly-elected chairperson of the council must take over the chair at the meeting; d. the council must appoint the officials contemplated in clause 6(3)(c), (d) and (e); and e. the council must appoint an auditor to perform the audit of the council in respect of its first financial year. 2. The secretary , in the manner contemplated in clause 10(1)(g), must as soon as possible prepare, for submission at the next ordinary meeting of the council, a budget for the council for its first financial year. [NOTE: According to the above model constitution, the council's certificate of registration is, upon receipt, to be attached to its constitution (see clause 2). If not so attached, the constitution of a council following the model will be incomplete.] Code of Good Practice on Key Aspects of HIV/Aids and Employment DEPARTMENT OF LABOUR No. R. 1298 1 December 2000 LABOUR RELATIONS ACT, 1995 (Act No.66 of 1995) EMPLOYMENT EQUITY ACT, 1998 (Act No.55 of 1998) Code of good practice: Key aspects of HIV/Aids and employment Notice is hereby given that the Code of Good Practice: Key aspects of HIV/Aids and employment set out in the schedule is issued by the Minister of Labour, on the advise of the Commission for Employment Equity, in terms of section 54 (1)(a) of the Employment Equity Act, 1998 (Act No. 55 of 1998), and by NEDLAC in terms of section 203 (1)(a) of the Labour Relations Act, 1995, (Act No. 66 of 1995). MMS MDLADLANA MINSTER OF LABOUR Code of Good Practice on Key Aspects of HIV/Aids and Employment 1. Introduction 1. The Human Immunodeficiency Virus (HIV) and the Acquired Immune Deficiency Syndrome (AIDS) are serious public health problems which, have socio-economic, employment and human rights implications. 2. It is recognised that the HIV/AIDS epidemic will affect every workplace, with prolonged staff illness, absenteeism, and death impacting on productivity, employee benefits, occupational health and safety, production costs and workplace morale*. 3. HIV knows no social, gender, age or racial boundaries, but it is accepted that socio-economic circumstances do influence disease patterns. HIV thrives in an environment of poverty, rapid urbanisation, violence and destabilisation. Transmission is exacerbated by disparities in resources and patterns of migration from rural to urban areas. Women, particularly are more vulnerable to infection in cultures and economic circumstances where they have little control over their lives. 4. Furthermore HIV/AIDS is still a disease surrounded by ignorance, prejudice, discrimination and stigma. In the workplace unfair discrimination against people living with HIV and AIDS has been perpetuated through practices such as pre-employment HIV testing, dismissals for being HIV positive and the denial of employee benefits. 5. One of the most effective ways of reducing and managing the impact of HIV/AIDS in the workplace is through the implementation of an HIV/AIDS policy and programme. Addressing aspects of HIV/AIDS in the workplace will enable employers, trade unions and government to actively contribute towards local, national and international efforts to prevent and control HIV/AIDS. In light of this, the Code has been developed as a guide to employers, trade unions and employees. 6. Furthermore the Code seeks to assist with the attainment of the broader goals of: ? eliminating unfair discrimination in the workplace based on HIV status; ? promoting a non-discriminatory workplace in which people living with HIV or AIDS are able to be open about their HIV status without fear of stigma or rejection; ? promoting appropriate and effective ways of managing HIV in the workplace; ? creating a balance between the rights and responsibilities of all parties; and ? giving effect to the regional obligations of the Republic as a member of the Southern African Development Community. * The Code will be accompanied by Technical Assistance Guidelines on Managing HIV/AIDS in the workplace. It is envisaged that these will be developed in the second half of 2000 and published during 2001. The guidelines will provide more detail on the implementation of potential policies and programmes to address these impacts, including strategies to accommodate the needs of small businesses and the informal sector. Code of Good Practice on Key Aspects of HIV/Aids and Employment 2. Objectives 1. The Code's primary objective is to set out guidelines for employers and trade unions to implement so as to ensure individuals with HIV infection are not unfairly discriminated against in the workplace. This includes provisions regarding: i) creating a non-discriminatory work environment; ii) dealing with HIV testing, confidentiality and disclosure; iii) providing equitable employee benefits; iv) dealing with dismissals; and v) managing grievance procedures. 2. The Code's secondary objective is to provide guidelines for employers, employees and trade unions on how to manage HIV/AIDS within the workplace. Since the HIV/AIDS epidemic impacts upon the workplace and individuals at a number of different levels, it requires a holistic response which takes all of these factors into account The Code therefore includes principles, which are dealt with in more detail under the statutes listed in item 5.1., on the following: i) creating a safe working environment for all employers and employees; ii) developing procedures to manage occupational incidents and claims for compensation; iii) introducing measures to prevent the spread of HIV; iv) developing strategies to assess and reduce the impact of the epidemic upon the workplace; and v) supporting those individuals who are infected or affected by HIV/AIDS so that they may continue to work productively for as long as possible. 3. In addition, the Code promotes the establishment of mechanisms to foster cooperation at the following levels: i) between employers, employees and trade unions in the workplace; and ii) between the workplace and other stakeholders at a sectoral, local, provincial and national level. Code of Good Practice on Key Aspects of HIV/Aids and Employment 3. Policy Principles 1. The promotion of equality and non-discrimination between individuals with HIV infection and those without, and between HIV/AIDS and other comparable health/medical conditions. 2. The creation of a supportive environment so that HIV infected employees are able to continue working under normal conditions in their current employment for as long as they are medically fit to do so. 3. The protection of human rights and dignity of people living with HIV or AIDS is essential to the prevention and control of HIV/AIDS. 4. HIV/AIDS impacts disproportionately on women and this should be taken into account in the development of workplace policies and programmes. 5. Consultation, inclusivity and encouraging full participation of all stakeholders are key principles which should underpin every HIV/AIDS policy and programme. Code of Good Practice on Key Aspects of HIV/Aids and Employment 4. Application and Scope 1. All employers and employees, and their respective organisations are encouraged to use this Code to develop, implement and refine their HIV/AIDS policies and programmes to suit the needs of their workplaces. 2. For the purposes of this code, the term "workplace" should be interpreted more broadly than the definition given in the Labour Relations Act, Act 66 of 1995, Section 213, to include the working environment of, amongst others, persons not necessarily in an employer-employee relationship, those working in the informal sector and the self-employed. 3. This Code however does not impose any legal obligation in addition to those in the Employment Equity Act and Labour Relations Act, or in any other legislation referred to in the Code. Failure to observe it does not, by itself, render an employer liable in any proceedings, except where the Code refers to obligations set out in law. 4. The Code should be read in conjunction with other codes of good practice that may be issued by the Minister of Labour. Code of Good Practice on Key Aspects of HIV/Aids and Employment 5. Legal Framework 1. The Code should be read in conjunction with the Constitution of South Africa Act, No. 108 of 1996, and all relevant Legislation which includes the following: i) Employment Equity Act, No. 55 of 1998; ii) Labour Relations Act, No. 66 of 1995; iii) Occupational Health and Safety Act, No. 85 of 1993; iv) Mine Health and Safety Act, No. 29 of 1996; v) Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993; vi) Basic Conditions of Employment Act, No. 75 of 1997; vii) Medical Schemes Act, No. 131 of 1998: and viii) Promotion of Equality and Prevention of Unfair Discrimination Act, No. 4 of 2000. 2. The contents of this code should be taken into account when developing, implementing or reviewing any workplace policies or programmes in terms of the statutes listed above. 3. The following are selected, relevant sections contained in certain of the above-mentioned legislation. These should be read in conjunction with other legislative provisions. 3.1. The Code is issued in terms of Section 54(1)(a) of the Employment Equity Act, No 55 of 1998 and is based on the principle that no person may be unfairly discriminated against on the basis of their HIV status. In order to assist employers and employees to apply this principle consistently in the workplace, the Code makes reference to other pieces of legislation. 3.2. Section 6(1) of the Employment Equity Act provides that no person may unfairly discriminate against an employee, or an applicant for employment, in any employment policy or practice, on the basis of his or her HIV status. In any legal proceedings in which it is alleged that any employer has discriminated unfairly, the employer must prove that any discrimination or differentiation was fair. 3.3. No employee, or applicant for employment, may be required by their employer to undergo an HIV test in order to ascertain their HIV status. HIV testing by or on behalf of an employer may only take place where the Labour Court has declared such testing to be justifiable in accordance with Section 7(2) of the Employment Equity Act. 3.4. In accordance with Section 187(1)(f) of the Labour Relations Act, No. 66 of 1995, an employee with HIV/AIDS may not be dismissed simply because he or she is HIV positive or has AIDS. However where there are valid reasons related to their capacity to continue working and fair procedures have been followed, their services may be terminated in accordance with Section 188(1)(a)(i). 3.5. In terms of Section 8(1) of the Occupational Health and Safety Act, No. 85 of 1993; an employer is obliged to provide, as far as is reasonably practicable, a safe workplace. This may include ensuring that the risk of occupational exposure to HIV is minimised. 3.6. Section 2(1) and Section 5(1) of the Mine Health and Safety Act, No. 29 of 1996 provides that an employer is required to create, as far as is reasonably practicable, a safe workplace. This may include ensuring that the risk of occupational exposure to HIV is minimised. 3.7. An employee who is infected with HIV as a result of an occupational exposure to infected blood or bodily fluids, may apply for benefits in terms of Section 22(1) of the Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993. 3.8. In accordance with the Basic Conditions of Employment Act, No. 75 of 1997, every employer is obliged to ensure that all employees receive certain basic standards of employment, including a minimum number of days sick leave [Section 22(2)]. 3.9. In accordance with Section 24(2)(e) of the Medical Schemes Act, No 131 of 1998, a registered medical aid scheme may not unfairly discriminate directly or indirectly against its members on the basis of their "state of health". Further in terms of s 67(1)(9) regulations may be drafted stipulating that all schemes must offer a minimum level of benefits to their members. 3.10. In accordance with both the common law and Section 14 of the Constitution of South Africa Act, No. 108 of 1996, all persons with HIV or AIDS have a right to privacy, including privacy concerning their HIV or AIDS status. Accordingly there is no general legal duty on an employee to disclose his or her HIV status to their employer or to other employees. Code of Good Practice on Key Aspects of HIV/Aids and Employment 6. Promoting a Non-Discriminatory Work Environment 1. No person with HIV or AIDS shall be unfairly discriminated against within the employment relationship or within any employment policies or practices, including with regard to: i) recruitment procedures, advertising and selection criteria; ii) appointments, and the appointment process, including job placement; iii) job classification or grading; iv) remuneration, employment benefits and terms and conditions of employment; v) employee assistance programmes; vi) job assignments; vii) the workplace and facilities; viii) occupational health and safety; ix) training and development; x) performance evaluation systems; xi) promotion, transfer and demotion; xii) disciplinary measures short of dismissal; and xiii) termination of services. 2. To promote a non-discriminatory work environment based on the principle of equality, employers and trade unions should adopt appropriate measures to ensure that employees with HIV and AIDS are not unfairly discriminated against and are protected from victimisation through positive measures such as: i) preventing unfair discrimination and stigmatisation of people living with HIV or AIDS through the development of HIV/AIDS policies and programmes for the workplace; ii) awareness, education and training on the rights of all persons with regard to HIV and AIDS; iii) mechanisms to promote acceptance and openness around HIV/AIDS in the workplace; iv) providing support for all employees infected or affected by HIV and AIDS; and v) grievance procedures and disciplinary measures to deal with HIV related complaints in the workplace. Code of Good Practice on Key Aspects of HIV/Aids and Employment 7. HIV Testing, Confidentiality and Disclosure 7.1. HIV Testing 1. No employer may require an employee, or an applicant for employment, to undertake an HIV test in order to ascertain that employee's HIV status. As provided for in the Employment Equity Act, employers may approach the Labour Court to obtain authorisation for testing. 2. Whether s 7(2) of the Employment Equity Act prevents an employer-provided health service supplying a test to an employee who requests a test, depends on whether the Labour Courts would accept that an employee can knowingly agree to waive the protection in the section. This issue has not yet been decided by the courts.* 3. In implementing the sections below, it is recommended that parties take note of the position set out in item 7.1.2. * The Employment Equity Act does not make it a criminal offence for an employer to conduct a test in violation of s 7(2). However an employee who alleges that his or her right not to be tested has been violated may refer a dispute to the CCMA for conciliation, and if this does not resolve the dispute, to the Labour Court for determination. 4. Authorised testing Employers must approach the Labour Court for authorisation in, amongst others, the following circumstances: (i) during an application for employment; (ii) as a condition of employment; (iii) during procedures related to termination of employment; (iv) as an eligibility requirement for training or staff development programmes; and (v) as an access requirement to obtain employee benefits. 5. Permissable testing a) An employer may provide testing to an employee who has requested a test in the following circumstances: i) As part of a health care service provided in the workplace; ii) In the event of an occupational accident carrying a risk of exposure to blood or other body fluids; iii) For the purposes of applying for compensation following an occupational accident involving a risk of exposure to blood or other body fluids. b) Furthermore, such testing may only take place within the following defined conditions: i) At the initiative of an employee; ii) Within a health care worker and employee-patient relationship; iii) With informed consent and pre- and post-test counselling, as defined by the Department of Health's National Policy on Testing for HIV; and iv) With strict procedures relating to confidentiality of an employee's HIV status as described in clause 7.2 of this Code. 6. All testing, including both authorised and permissible testing, should be conducted in accordance with the Department of Health's National Policy on Testing for HIV issued in terms of the National Policy for Health Act, No. 116 of 1990. 7. Informed consent means that the individual has been provided with information, understands it and based on this has agreed to undertake the HIV test. It implies that the individual understands what the test is, why it is necessary, the benefits, risks, alternatives and any possible social implications of the outcome. 8. Anonymous, unlinked surveillance or epidemiological HIV testing in the workplace may occur provided it is undertaken in accordance with ethical and legal principles regarding such research.** Where such research is done, the information obtained may not be used to unfairly discriminate against individuals or groups of persons. Testing will not be considered anonymous if there is a reasonable possibility that a person's HIV status can be deduced from the results. ** See amongst others the Department of Health's National Policy for Testing for HIV and the Biological Hazardous Agents Regulations. 7.2. Confidentiality and Disclosure 1. All persons with HIV or AIDS have the legal right to privacy. An employee is therefore not legally required to disclose his or her HIV status to their employer or to other employees. 2. Where an employee chooses to voluntarily disclose his or her HIV status to the employer or to other employees, this information may not be disclosed to others without the employee's express written consent. Where written consent is not possible, steps must be taken to confirm that the employee wishes to disclose his or her status. 3. Mechanisms should be created to encourage openness, acceptance and support for those employers and employees who voluntarily disclose their HIV status within the workplace, including: i) encouraging persons openly living with HIV or AIDS to conduct or participate in education, prevention and awareness programmes; ii) encouraging the development of support groups for employees living with HIV or AIDS; and iii) ensuring that persons who are open about their HIV or AIDS status are not unfairly discriminated against or stigmatised. Code of Good Practice on Key Aspects of HIV/Aids and Employment 8. Promoting a Safe Workplace 1. An employer is obliged to provide and maintain, as far as is reasonably practicable, a workplace that is safe and without risk to the health of its employees. 2. The risk of HIV transmission in the workplace is minimal. However occupational accidents involving bodily fluids may occur, particularly in the health care professions. Every workplace should ensure that it complies with the provisions of the Occupational Health and Safety Act, including the Regulations on Hazardous Biological Agents, and the Mine Health and Safety Act, and that its policy deals with, amongst others: i) the risk, if any, of occupational transmission within the particular workplace; ii) appropriate training, awareness, education on the use of universal infection control measures so as to identify, deal with and reduce the risk of HIV transmission in the workplace; iii) providing appropriate equipment and materials to protect employees from the risk of exposure to HIV; iv) the steps that must be taken following an occupational accident including the appropriate management of occupational exposure to HIV and other blood borne pathogens, including access to post-exposure prophylaxis; v) the procedures to be followed in applying for compensation for occupational infection; vi) the reporting of all occupational accidents; and vii) adequate monitoring of occupational exposure to HIV to ensure that the requirements of possible compensation claims are being met. Code of Good Practice on Key Aspects of HIV/Aids and Employment 9. Compensation for Occupationally Acquired HIV 1. An employee may be compensated if he or she becomes infected with HIV as a result of an occupational accident, in terms of the Compensation for Occupational Injuries and Diseases Act. 2. Employers should take reasonable steps to assist employees with the application for benefits including: i) providing information to affected employees on the procedures that will need to be followed in order to qualify for a compensation claim; and ii) assisting with the collection of information which will assist with proving that the employees were occupationally exposed to HIV infected blood. 3. Occupational exposure should be dealt with in terms of the Compensation for Occupational Injuries and Diseases Act. Employers should ensure that they comply with the provisions of this Act and any procedure or guideline issued in terms thereof. Code of Good Practice on Key Aspects of HIV/Aids and Employment 10. Employee Benefits 1. Employees with HIV or AIDS may not be unfairly discriminated against in the allocation of employee benefits. 2. Employees who become ill with AIDS should be treated like any other employee with a comparable life threatening illness with regard to access to employee benefits. 3. Information from benefit schemes on the medical status of an employee should be kept confidential and should not be used to unfairly discriminate. 4. Where an employer offers a medical scheme as part of the employee benefit package it must ensure that this scheme does not unfairly discriminate, directly or indirectly, against any person on the basis of his or her HIV status. Code of Good Practice on Key Aspects of HIV/Aids and Employment 11. Dismissal 1. Employees with HIV/AIDS may not be dismissed solely on the basis of their HIV/AIDS status. 2. Where an employee has become too ill to perform their current work, an employer is obliged to follow accepted guidelines regarding dismissal for incapacity before terminating an employee's services, as set out in the Code of Good Practice on Dismissal contained in Schedule 8 of the Labour Relations Act. 3. The employer should ensure that as far as possible, the employee's right to confidentiality regarding his or her HIV status is maintained during any incapacity proceedings. An employee cannot be compelled to undergo an HIV test or to disclose his or her HIV status as part of such proceedings unless the Labour Court authorised such a test. Code of Good Practice on Key Aspects of HIV/Aids and Employment 12. Grievance Procedures 1. Employers should ensure that the rights of employees with regard to HIV/AIDS, and the remedies available to them in the event of a breach of such rights, become integrated into existing grievance procedures. 2. Employers should create an awareness and understanding of the grievance procedures and how employees can utilise them. 3. Employers should develop special measures to ensure the confidentiality of the complainant during such proceedings, including ensuring that such proceedings are held in private. Code of Good Practice on Key Aspects of HIV/Aids and Employment 13. Management of HIV in the Workplace 1. The effective management of HIV/AIDS in the workplace requires an integrated strategy that includes, amongst others, the following elements: 1. An understanding and assessment of the impact of HIV/AIDS on the workplace; and 2. Long and short term measures to deal with and reduce this impact, including: i) An HIV/AIDS Policy for the workplace ii) HIV/AIDS Programmes, which would incorporate: a) Ongoing sustained prevention of the spread of HIV among employees and their communities; b) Management of employees with HIV so that they are able to work productively for as long as possible; and c) Strategies to deal with the direct and indirect costs of HIV/AIDS in the workplace. Code of Good Practice on Key Aspects of HIV/Aids and Employment 14. Assessing the impact of HIV/Aids on the Workplace 1. Employers and trade unions should develop appropriate strategies to understand, assess and respond to the impact of HIV/AIDS in their particular workplace and sector. This should be done in cooperation with sectoral, local, provincial and national initiatives by government, civil society and nongovernmental organisations. 2. Broadly, impact assessments should include: i) Risk profiles; and ii) Assessment of the direct and indirect costs of HIV/AIDS; 3. Risk profiles may include an assessment of the following: i) The vulnerability of individual employees or categories of employees to HIV infection; ii) The nature and operations of the organisation and how these may increase susceptibility to HIV infection (e.g. migrancy or hostel dwellings); iii) A profile of the communities from which the organisation draws its employees; iv) A profile of the communities surrounding the organisation's place of operation; and v) An assessment of the impact of HIV/AIDS upon their target markets and client base. 4. The assessments should also consider the impact that the HIV/AIDS epidemic may have on: i) Direct costs such as costs to employee benefits, medical costs and increased costs related to staff turnover such as training and recruitment costs and the costs of implementing an HIV/AIDS programme; ii) Indirect costs such as costs incurred as a result of increased absenteeism, employee morbidity, loss of productivity, a general decline in workplace morale and possible workplace disruption; 5. The cost effectiveness of any HIV/AIDS interventions should also be measured as part of an impact assessment Code of Good Practice on Key Aspects of HIV/Aids and Employment 15. Measures to deal with HIV/Aids within the Workplace 15.1. A Workplace HIV/AIDS Policy 1. Every workplace should develop an HP//AIDS policy*, in order to ensure that employees affected by HIV/AIDS are not unfairly discriminated against in employment policies and practices. This policy should cover: i) the organisation's position on HIV/AIDS; ii) an outline of the HIV/AIDS programme; iii) details on employment policies (e.g. position regarding HIV testing, employee benefits, performance management and procedures to be followed to determine medical incapacity and dismissal); iv) express standards of behaviour expected of employers and employees and appropriate measures to deal with deviations from these standards; v) grievance procedures in line with item 12 of this Code; vi) set out the means of communication within the organisation on HIV/AIDS issues; vii) details of employee assistance available to persons affected by HIV/AIDS; viii) details of implementation and coordination responsibilities; and ix) monitoring and evaluation mechanisms. * This policy could either be a specific policy on HIV/AIDS, or could be incorporated in a policy on life threatening illness. 2. All policies should be developed in consultation with key stakeholders within the workplace including trade unions, employee representatives, occupational health staff and the human resources department. 3. The policy should reflect the nature and needs of the particular workplace. 4. Policy development and implementation is a dynamic process, so the workplace policy should be: i) communicated to all concerned; ii) routinely reviewed in light of epidemiological and scientific information; and iii) monitored for its successful implementation and evaluated for its effectiveness. 15.2 Developing Workplace HIV/AIDS Programmes 1. It is recommended that every workplace works towards developing and implementing a workplace HIV/AIDS programme aimed at preventing new infections, providing care and support for employees who are infected or affected, and managing the impact of the epidemic in the organisation. 2. The nature and extent of a workplace programme should be guided by the needs and capacity of each individual workplace. However, it is recommended that every workplace programme should attempt to address the following in cooperation with the sectoral, local, provincial and national initiatives: i) hold regular HIV/AIDS awareness programmes; ii) encourage voluntary testing; iii) conduct education and training on HIV/AIDS; iv) promote condom distribution and use; v) encourage health seeking behaviour for STD's; vi) enforce the use of universal infection control measures; vii) create an environment that is conducive to openness, disclosure and acceptance amongst all staff; viii) endeavour to establish a wellness programme for employees affected by HIV/AIDS; ix) provide access to counselling and other forms of social support for people affected by HIV/AIDS; x) maximise the performance of affected employees through reasonable accommodation, such as investigations into alternative sick leave allocation; xi) develop strategies to address direct and indirect costs associated with HIV/AIDS in the workplace, as outlined under item 14.4 xii) regularly monitor, evaluate and review the programme. 3. Employers should take all reasonable steps to assist employees with referrals to appropriate health, welfare and psycho-social facilities within the community, if such services are not provided at the workplace Code of Good Practice on Key Aspects of HIV/Aids and Employment 16. Information and Education 1. The Department of Labour should ensure that copies of this code are available and accessible. 2. Employers and employer organisations should include the Code in their orientation, education and training programmes of employees. 3. Trade unions should include the Code in their education and training programmes of shop stewards and employees. Code of Good Practice on Key Aspects of HIV/Aids and Employment Glossary Affected employee an employee who is affected in any way by HIV/AIDS e.g. if they have a partner or a family member who is HIV positive. AIDS AIDS is the acronym for "acquired immune deficiency syndrome". AIDS is the clinical definition given to the onset of certain life-threatening infections in persons whose immune systems have ceased to function properly as a result of infection with HIV. Epidemiological The study of disease patterns, causes, distribution and mechanisms of control in society. HIV HIV is the acronym for "human immuno deficiency virus". HIV is a virus which attacks and may ultimately destroy the body's natural immune system. HIV testing taking a medical test to determine a person's HIV status. This may include written or verbal questions inquiring about previous HIV tests; questions related to the assessment of 'risk behaviour' (for example questions regarding sexual practices, the number of sexual partners or sexual orientation); and any other indirect methods designed to ascertain an employee's or job applicant's HIV status. HIV positive having tested positive for HIV infection. Infected employee an employee who has tested positive for HIV or who has been diagnosed as having HIV/AIDS. Informed consent a process of obtaining consent from a patient which ensures that the person fully understands the nature and implications of the test before giving his or her agreement to it. Policy a document setting out an organisation's position on a particular issue. Pre and post test counseling a process of counselling which facilitates an understanding of the nature and purpose of the HIV test. It examines what advantages and disadvantages the test holds for the person and the influence the result, positive or negative, will have on them. Reasonable Accommodation means any modification or adjustment to a job or to the workplace that is reasonably practicable and will enable a person living with HIV or AIDS to have access to or participate or advance in employment. STDs acronym for "sexually transmitted diseases". These are infections passed from one person to another during sexual intercourse, including syphilis, gonorrhea and HIV. Surveillance Testing This is anonymous, unlinked testing which is done in order to determine the incidence and prevalence of disease within a particular community or group to provide information to control, prevent and manage the disease. Code of Good Practice: Dismissal based on Operational Requirements Notice is hereby given in terms of section 203(2) of the Labour Relations Act, 1995 (Act No. 66 of 1995), that the National Economic Development and Labour Council has issued under section 203(1) of that Act a code of good practice on dismissal based on operational requirements as set out in the Schedule. Italicised words and phrases bear the same meaning as accorded to them by section 213 of the Labour Relations Act, 1995 Schedule 8: Code of Good Practice: Dismissal 1. Introduction 1. This code of good practice deals with some of the key aspects of dismissals for reasons related to conduct and capacity. It is intentionally general. Each case is unique, and departures from the norms established by this Code may be justified in proper circumstances. For example, the number of employees employed in an establishment may warrant a different approach. 2. This Act emphasises the primacy of collective agreements. This Code is not intended as a substitute for disciplinary codes and procedures where these are the subject of collective agreements, or the outcome of joint decision-making by an employer and a workplace forum . 3. The key principle in this Code is that employers and employees should treat one another with mutual respect. A premium is placed on both employment justice and the efficient operation of business. While employees should be protected from arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees. Schedule 8: Code of Good Practice: Dismissal 2. Fair reasons for dismissal 1. A dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment. Whether or not a dismissal is for a fair reason is determined by the facts of the case, and the appropriateness of dismissal as a penalty. Whether or not the procedure is fair is determined by referring to the guidelines set out below. 2. This Act recognises three grounds on which a termination of employment might be legitimate. These are: the conduct of the employee, the capacity of the employee , and the operational requirements of the employer's business. 3. This Act provides that a dismissal is automatically unfair if the reason for the dismissal is one that amounts to an infringement of the fundamental rights of employees and trade unions, or if the reason is one of those listed in section 187. The reasons include participation in a lawful strike, intended or actual pregnancy and acts of discrimination. 4. in cases where the dismissal is not automatically unfair, the employer must show that the reason for dismissal is a reason related to the employee's conduct or capacity, or is based on the operational requirements of the business. If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair. Schedule 8: Code of Good Practice: Dismissal 3. Disciplinary measures short of dismissal Disciplinary procedures prior to dismissal 1. All employers should adopt disciplinary rules that establish the standard of conduct required of their employees. The form and content of disciplinary rules will obviously vary according to the size and nature of the employer's business. In general, a larger business will require a more formal approach to discipline. An employer's rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood. Some rules or standards may be so well established and known that it is not necessary to communicate them. 2. The courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees' behaviour through a system of graduated disciplinary measures such as counselling and warnings. 3. Formal procedures do not have to be invoked every time a rule is broken or a standard is not met. Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. Repeated misconduct will warrant warnings, which themselves may be graded according to degrees of severity. More serious infringements or repeated misconduct may call for a final warning, or other action short of dismissal . Dismissal should be reserved for cases of serious misconduct or repeated offenses. Dismissals for misconduct 4. Generally, it is not appropriate to dismiss an employee for a first offense, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or willful damage to the property of the employer, willful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188. 5. When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee's circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself. 6. The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration. Schedule 8: Code of Good Practice: Dismissal 4. Fair procedure 1. Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal . This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision. 2. Discipline against a trade union representative or an employee who is an office-bearer or Official of a trade union should not be instituted without first informing and consulting the trade union. 3. If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement . 4. In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures. Schedule 8: Code of Good Practice: Dismissal 5. Disciplinary records Employers should keep records for each employee specifying the nature of any disciplinary transgressions, the actions taken by the employer and the reasons for the actions. Schedule 8: Code of Good Practice: Dismissal 6. Dismissals and industrial action 1. Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. However, like any other act of misconduct, it does not always deserve dismissal . The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including- a. the seriousness of the contravention of this Act ; b. attempts made to comply with this Act; and c. whether or not the strike was in response to unjustified conduct by the employer. 2. Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. The employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. If the employer cannot reasonably be expected to extend these steps to the employees in question, the employer may dispense with them. Schedule 8: Code of Good Practice: Dismissal 7. Guidelines in cases of dismissal for misconduct Any person who is determining whether a dismissal for misconduct is unfair should consider- a. whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace ; and b. if a rule or standard was contravened, whether or not- i. the rule was a valid or reasonable rule or standard; ii. the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; iii. the rule or standard has been consistently applied by the employer; and iv. dismissal was an appropriate sanction for the contravention of the rule or standard. Schedule 8: Code of Good Practice: Dismissal 8. Incapacity: Poor work performance 1. A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. The period should be determined by the nature of the job, and the time it takes to determine the employee's suitability for continued employment. When appropriate, an employer should give an employee whatever evaluation, instruction, training, guidance or counselling the employee requires to render satisfactory service. Dismissal during the probationary period should be preceded by an opportunity for the employee to state a case in response and to be assisted by a trade union representative or fellow employee. 2. After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has- a. given the employee appropriate evaluation, instruction, training, guidance or counselling; and b. after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily. 3. The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter. 4. In the process, the employee should have the right to be heard and to be assisted by a trade union representative or a fellow employee. Schedule 8: Code of Good Practice: Dismissal 9. Guidelines in cases of dismissal for poor work performance Any person determining whether a dismissal for poor work performance is unfair should consider- a. whether or not the employee failed to meet a performance standard; and b. if the employee did not meet a required performance standard whether or not- i. the employee was aware, or could reasonably be expected to have been aware, of the required performance standard; ii. the employee was given a fair opportunity to meet the required performance standard; and iii. dismissal was an appropriate sanction for not meeting the required performance standard. Schedule 8: Code of Good Practice: Dismissal 10. Incapacity: Ill health or injury 1. Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal . When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee's disability. 2. In the process of the investigation referred to in subsection (1) the employee should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee. 3. The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider. 4. Particular consideration should be given to employee who are injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. Schedule 8: Code of Good Practice: Dismissal 11. Guidelines in cases of dismissal arising from ill health or injury Any person determining whether a dismissal arising from ill health or injury is unfair should consider- a. whether or not the employee is capable of performing the work; and b. if the employee is not capable- i. the extent to which the employee is able to perform the work; ii. the extent to which the employee's work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee's duties might be adapted; and iii. the availability of any suitable alternative work. Notice of Code of Good Practice on Picketing Schedule National Economic Development And Labour Council Labour Relations Act, 1995 Notice is hereby given in terms of section 203 (2) of the Labour Relations Act, 1995 (Act No. 66 of 1995), that the National Economic Development and Labour Council has issued under section 203 (1) of that Act a code of good practice on picketing as set out in the Schedule. Code of Good Practice: Picketing 1. Introduction 1. This code of good practice is intended to provide practical guidance on picketing in support of any protected strike or in opposition to any lock-out It is intended to be a guide to those who may be contemplating, organising or taking part in a picket, and for those who as employers or employees or members of the general public may be affected by it. 2. Section 17 of the Constitution recognises the right to assemble, to demonstrate, to picket and to present petitions. This constitutional right can only be exercised peacefully and unarmed. Section 69 of the Labour Relations Act, 1995 (Act No. 66 of 1995) ("the Act"), seeks to give effect to this right in respect of a picket in support of a protected strike or a lock-out. 3. This code does not impose any legal obligations and the failure to observe it does not by itself render anyone liable in any proceedings. But section 69(5)(b) of the Act provides that the Commission must take account of this code of good practice when it establishes picketing rules. 4. Any person interpreting or applying the Act in respect of any picket must take this code of good practice into account. This is the effect of section 203 of the Act. This applies to the Commission, Labour Court, the Labour Appeal Court and the South African Police Services. 5. This code does not apply to all pickets and demonstrations in which employees and trade unions may engage. It applies only to pickets held in terms of section 69 of the Act. That section has four elements: a. The picket must be authorised by a registered trade union . b. Only members and supporters of the trade union may participate in the picket. c. The purpose of the picket must be to peacefully demonstrate in support of any protected strike or in opposition to any lock-out. d. The picket may only be held in a public place outside the premises of the employer or, with the permission of the employer, inside its premises. The permission of the employer is subject to overrule by the CCMA, if such permission is unreasonably denied. 6. If the picket complies with these four elements then the ordinary laws regulating the right of assembly do not apply. These laws include the common law, municipal by-laws and the Regulation of Gatherings Act, 1993 (Act No. 205 of 1993). 7. A picket with purposes other than to demonstrate in support of a protected strike or a lock-out is not protected by the Act The lawfulness of that picket or demonstration will depend on compliance with the ordinary laws. Code of Good Practice: Picketing 2. Authorisation 1. A picket contemplated in section 69 of the Act must be authorised by a registered trade union . The authorisation must be made in accordance with the trade union's constitution. That means that there must either be a resolution authorising the picket or a resolution permitting a trade union official to authorise a picket in terms of section 69 (1). The actual authorisation should be formal and in writing. A copy of the resolution and, if necessary, the formal authorisation ought to be served on the employer before the commencement of the picket. 2. The authorisation applies only to its members and its supporters. Code of Good Practice: Picketing 3. Purpose of the picket 1. The purpose of the picket is to peacefully encourage non-striking employees and members of the public to oppose a lock-out or to support strikers involved in a protected strike . The nature of that support can vary. It may be to encourage employees not to work during the strike or lock-out. It may be to dissuade replacement labour from working. It may also be to persuade members of the public or other employers and their employees not to do business with the employer. 2. The strike must be a protected strike. In normal cases, employees picket at their own place of work in support of their strike against their own employer. Cases do arise, however, where employees picket at their own place of work in support of a strike between another employer and its employees. This is what is contemplated in section 66 as a "secondary strike". In this case, in order to be protected, the picket must further satisfy the requirements of a lawful secondary strike in terms of section 66 of the Act. This is because the definition of "secondary strike" in section 66 includes "conduct in contemplation or furtherance of a strike: A picket is "conduct in contemplation or furtherance of a strike". 3. The requirements for a protected secondary strike are: a. The strike that is to be supported by the secondary strike must itself be a protected strike; b. the employer of the employees taking part in the secondary strike must have received written notice of the proposed picket at least seven days prior to its commencement; and c. the nature and extent of the secondary strike must be reasonable in relation to the possible direct or indirect affect that the secondary strike may have on the business of the primary employer. 4. If a picket is in support of an unprotected strike, the picket is not protected by section 69 of the Act. 5. Pickets may be held in opposition to a lock-out . Section 69(1) does not distinguish between protected and unprotected lock-outs. This means that a picket may be authorised and held in opposition to a protected or an unprotected lock-out. Code of Good Practice: Picketing 4. Picketing rules 1. The registered trade union and employer should seek to agree to picketing rules before the commencement of the strike or picket. 2. A collective agreement may contain picketing rules. When an agreement is negotiated the following factors should be considered: a. The nature of the authorisation and its service upon the employer; b. the notice of the commencement of the picket, including the place, time and the extent of the picket; c. the nature of the conduct in the picket; d. the number of picketers and their location; e. the modes of communication between marshals and the employer and any other relevant parties; f. access to the employer's premises for purposes other than picketing, e.g. access to toilets, the use of telephones, etc.; g. the conduct of the picketers on the employer's premises; and h. this code of good practice . 3. The factors listed in subparagraph (2) apply to the determination of picketing rules by a commissioner. Code of Good Practice: Picketing 5. Pickets on the employer's premises 1. A picket may take place on the employer's premises with the permission of the employer. The permission may not be unreasonably withheld. In order to determine whether the decision of the employer to withhold the permission is reasonable, the factors that should be taken into account include-- a. the nature of the workplace, e.g. a shop, a factory, a mine, etc.; b. the particular situation of the workplace, e.g. distance from place to which public has access, living accommodation situated on employer's premises, etc.; c. the number of employees taking part in the picket inside the employer's premises; d. the areas designated for the picket; e. time and duration of the picket; f. the proposed movement of persons participating in the picket; g. the proposals by the trade union to exercise control over the picket; h. the conduct of the picketers. Code of Good Practice: Picketing 6. Conduct in the picket 1. The registered trade union must appoint a convenor to oversee the picket. The convenor must be a member or an official of the trade union. That person should have, at all times, a copy of section 69 of the Act, a copy of these guidelines, any collective agreement or rules regulating pickets and a copy of the resolution and formal authorisation of the picket by the registered trade union. These documents are important for the purposes of persuading the persons participating in the picket to comply with the law. These documents may also be important to establish the lawfulness and the protected nature of the picket to the employer, the public and in particular to the police. 2. The convenor must notify the employer, the responsible person appointed in terms of section 2 (4) (a) of the Regulation of Gatherings Act, 1993, and the police of the intended picket. The notice should contain-- a. notification that the picket is in compliance with section 69 of the Act; b. the name, address and telephone number of the trade union and the convenor; c. details of the picket, including the details of the employer being picketed, the date of the commencement of the picket, the location of the picket, etc. 3. The employer must, on receipt of the notification, provide he convenor with the name, address and telephone number of the person appointed by the employer to represent it in any dealings arising from the picket. 4. The registered trade union should appoint picket marshals to monitor the picket, and they should have the telephone numbers of the convenor, the trade union office and any persons appointed to oversee the picket, in the absence of the convenor. The marshals should wear arm bands to identify themselves as marshals. The trade union should instruct the marshals on the law, any agreed picketing rules or, where no agreed rules exist, any picketing rules that have been stipulated by the CCMA, this code of good practice and the steps to be taken to ensure that the picket is conducted peacefully. 5. Although the picket may be held in any place to which the public has access, the picket may not interfere with the constitutional rights of other persons. 6. The picketers must conduct themselves in a peaceful and lawful manner and must be unarmed. They may-- a. carry placards; b. chant slogans; and c. sing and dance. 7. Picketers may not-- a. physically prevent members of the public, including customers, other employees and service providers, from gaining access to or leaving the employer's premises; b. commit any action which may be unlawful, including but not limited to any action which is, or may be perceived to be violent. Code of Good Practice: Picketing 7. Role of the police 1. It is not the function of the police to take any view of the merits of the dispute giving rise to a strike or a lock-out . They have a general duty to uphold the law and may take reasonable measures to keep the peace, whether on the picket line or elsewhere. 2. The police have no responsibility for enforcing the Act. An employer cannot require the police to help in identifying picketers against whom it wishes to seek an order from the Labour Court. Nor is it the job of the police to enforce the terms of an order of the Labour Court. Enforcement of an order on the application of an employer is a matter for the courts and its officers, although the police may assist officers of the court when there is a breach of the peace. 3. The police have the responsibility to enforce the criminal law. They may arrest picketers for participation in violent conduct or attending a picket armed with dangerous weapons. They may take steps to protect the public if they are of the view that the picket is not peaceful and is likely to lead to violence. Code of Good Practice: Picketing 8. General rights, obligations and immunity 1. A person who takes part in a picket protected in terms of the Act does not commit a delict or a breach of contract. This means that the employer may not sue a person or a union for damages caused by a picket. 2. The employer may not take disciplinary action against an employee for participating in a lawful picket. Where the employee's conduct during a picket constitutes misconduct the employer may take disciplinary action in accordance with the provisions of the Act. Rules for the Conduct of Proceedings in the Labour Court 1. Definitions The Rules Board has, in terms of section 159(3) of the Labour Relations Act, 1995 (Act no. 66 of 1995), made the following rules to regulate the conduct of proceedings in the Labour Court. Any expression in these rules that is defined in the Labour Relations Act, 1995 (Act No. 66 of 1995), has the same meaning as in that Act. Act Association Court Day Deliver Firm Judge President Notice Party Public holiday Registrar Rules Serve Rules for the Conduct of Proceedings in the Labour Court 2. Office hours and address of registrar 1. The office of the registrar is at Sixth and Seventh Floors Arbour Square Building corner of Juta and Melle Streets BRAAMFONTEIN 2001. 2. Branch offices of the registrar are at First Floor Twinell House 112 Long Street CAPE TOWN 8001. Fourth Floor ICL House 480 Smith Street DURBAN 4001. First Floor Auto and General Towers 190 Govan Mbeki Avenue PORT ELIZABETH 6001. 3. The office and branch offices of the registrar will be open every Monday to Friday, excluding public holidays , from 08:00 to 13:00 and from 14:00 to 15:30. 4. Despite subrule (3), either the court or the registrar may direct that any document be filed on any day and at any time. Rules for the Conduct of Proceedings in the Labour Court 3. Issue of documents and registrar's duties 1. Any party initiating any proceedings must apply for a case number before serving any documents. The application for a case number must be made to the registrar in the registrar's office or by fax. If the application is made by fax, Form 1 must be used. 2. The registrar must assign consecutive case numbers to all documents that initiate proceedings. Proceedings initiated at any of the branch offices must be assigned the consecutive case numbers of that office. 3. The registrar must ensure that every document subsequently filed in respect of the same proceedings is marked with the same case number. 4. The registrar can refuse to accept a document from any party if the document is not properly marked with the case number assigned by the registrar. 5. The registrar may request a party to correct any patent defect or error in any document that is filed. 6. If a party refuses to correct any document after a request by the registrar in terms of subrule (5), the registrar must send the document to a judge in chambers for a direction. 7. The registrar must keep the court's records and must not allow them to leave the court building without prior authorisation by the registrar. Rules for the Conduct of Proceedings in the Labour Court 4.Service of documents 1. A document that is required to be served on any person may be served in any one of the following ways, namely-- a. i. by handing a copy of the document to the person; ii. by leaving a copy of the document at the person's place of residence or business with any other person who is apparently at least 16 years old and in charge of the premises at the time; iii. by leaving a copy of the document at the person's place of employment with any person who is apparently at least 16 years old and apparently in authority; iv. by faxing a copy of the document to the person, if the person has a fax number; v. by handing a copy of the document to any representative authorised in writing to accept service on behalf of the person; vi. if the person has chosen an address or fax number for service, by leaving a copy of the document at that address or by faxing it to that fax number; vii. by sending a copy of the document by registered post to the last-known address of the party concerned, and, unless the contrary is proved, it will be presumed that service was effected on the seventh day following the day on which the document was posted. b. i. if the person is a company or other body corporate, by serving a copy of the document on a responsible employee of the company or body corporate at its registered office or its principal place of business within the Republic, or its main place of business within the magisterial district in which the dispute first arose or, if there is no employee willing to accept service, by affixing a copy of the document to the main door of the office or place of business; ii. if the person is a trade union or employers' organisation, by serving a copy of the document on a responsible employee who at the time of service is apparently in charge of the main office of the union or employers' organisation or the union's or employers' organisation's office within the magisterial district in which the dispute first arose, at that office of the union or employers' organisation or, if there is no person willing to accept service, by affixing a copy of the document to the main door of that office; iii. if the person is a partnership, firm or association , by serving a copy of the document on a person who at the time of service is apparently in charge of the premises and apparently at least 16 years of age, at the place of business of such partnership, firm or association or, if such partnership, firm or association has no place of business, by serving a copy of the document on a partner, the owner of the firm or the chairman or secretary of the managing or other controlling body of such association, as the case may be; iv. if the person is a municipality, by serving a copy of the document on the town clerk, assistant town clerk or any person acting on behalf of that person; v. if the person is a statutory body, by serving a copy on the secretary or similar officer or member of the board or committee of that body, or any person acting on behalf of that body; vi. if the person is the State or a province, by serving a copy on a responsible employee in any office of the State Attorney; or c. by any other means authorised by the court. 2. Service is proved in court in any one of the following ways-- a. by an affidavit by the person who effected service; b. if service was effected by fax, by an affidavit of the person who effected service, which must provide proof of the correct fax number and confirmation that the whole of the transmission was completed; c. if the person on whom the document has been served is already on record as a party, by a signed acknowledgement of receipt by the party on whom the document was served; or d. by return of the Sheriff. e. by producing the certificate issued by the post office for the posting of the registered letter and an affidavit that the letter posted contained the document concerned. 3. If the court is not satisfied that service has taken place in accordance with this rule, it may make any order as to service that it deems fit. Rules for the Conduct of Proceedings in the Labour Court 5. Filing of documents 1. Documents may be filed with the registrar in any one of the following ways, namely-- a. by handing the document to the registrar b. by sending a copy of the document by registered post; or 2. A document is filed with the registrar-- a. on the date on which the document is handed to the registrar; b. on the date on which the document sent by registered post was received by the registrar; or c. on completion of the whole of the transmission of the fax. 3. The original document must be lodged with the registrar. In the case of filing by faxing the document, the original document must be lodged within 5 days of it being faxed. Rules for the Conduct of Proceedings in the Labour Court 6. Referrals (This rule applies to the following referrals- 1. Referral of dispute concerning Chapter II rights [freedom of association and general protection in terms of section 9(4) ]; 2. referral of disputes concerning Parts A and C to F of Chapter lll in terms of section 63(4) ; 3. referral of unfair dismissal disputes in terms of section 191(5)(b) - i. automatically unfair dismissals; ii. dismissals for operational requirements; iii. dismissals for participation in an unprotected strike; iv. dismissals on account of closed shop provisions; 4. disputes referred by the director of the Commission to the Labour Court in terms of section 191(6)(a) ; 5. referral of closed shop disputes in terms of section 26(14) ; 6. referral of unfair labour practice dispute in terms of item 3(4) of Schedule 7 . 7. if a material dispute of fact is foreseen rule 6 may be used to initiate the determination of any matter concerning a contract of employment in terms of section 77(3) of the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997) (see footnote to rule 7). 8. if a material dispute of fact is foreseen, proceedings concerning the interpretation or application of Part C of Chapter 10 of the Basic Conditions of Employment Act, 1997, may be initiated in terms of rule 6 (see footnote to rule 7). 9. if a material dispute of fact is foreseen, proceedings concerning the interpretation or application of the Mine Health and Safety Act, 1996 (Act No. 29 of 1996), may be initiated in terms of rule 6 (see footnote to rule 7).) Statement of claim 1. A document initiating proceedings, known as a "statement of claim", may follow the form set out in Form 2 and must- a. have a heading containing the following information: i. The title of the matter; ii. the case number assigned by the registrar to the matter; iii. an address of the party delivering the document at which that party will accept notices and service of all documents in the proceedings; and iv. a notice advising the other party that if that party intends opposing the matter, a response must be delivered in terms of subrule (3) within 10 days of service of the statement of claim, failing which the matter may be set down for default judgment and an order for costs may be granted against that party; b. have a substantive part containing the following information: i. The names, description and addresses of the parties; ii. a clear and concise statement of the material facts, in chronological order, on which the party relies, which statement must be sufficiently particular to enable any opposing party to reply to the document; iii. a clear and concise statement of the legal issues that arise from the material facts, which statement must be sufficiently particular to enable any opposing party to reply to the document; and iv. the relief sought; c. be signed by the party to the proceedings; d. express all dates, sums and numbers contained in the document in figures; e. be accompanied by a schedule listing the documents that are material and relevant to the claim; and f. be delivered. 2. In the case of referral by the director of the Commission in terms of section 191(6) of the Act- a. the party who applied for the referral by the director must deliver the statement of claim within 10 days of the date on which the director notified the party of the referral of the dispute to the court, and b. the statement of claim must include a copy of the application for the referral. Response 3. a. Any party on whom a statement of claim is served may deliver a response to that statement. b. The response must, with the changes required by the context, contain the same information required by subrule (1) c. A response must be delivered within 10 days of the date on which the statement of claim is delivered. Pre-trial conference by parties 4. a. When a response is delivered, the parties to the proceedings must hold a pre-trial conference in terms of paragraph (b) within 10 days of the date of delivery of the response. b. In a pre-trial conference, the parties must attempt to reach consensus on the following: i. Any means by which the dispute may be settled; ii. facts that are common cause; iii. facts that are in dispute; iv. the issues that the court is required to decide; v. the precise relief claimed and if compensation is claimed the amount of the compensation and how it is calculated; vi. discovery and the exchange of documents, and the preparation of a paginated bundle of documentation in chronological order; vii. the manner in which documentary evidence is to be dealt with, including any agreement on the status of documents and whether documents, or parts of documents, will serve as evidence of what they purport to be; viii. whether evidence on affidavit will be admitted with or without the right of any party to cross-examine the deponent; ix. which party must begin; x. the necessity for any on-the-spot inspection; xi. securing the presence at court of any witness; xii. the resolution of any preliminary points that are intended to be taken; xiii. the exchange of witness statements; xiv. expert evidence; xv. any other means by which the proceedings may be shortened; xvi. an estimate of the time required for the hearing; and xvii. whether an interpreter is required and if so for which languages. c. If the matter has not been settled, the parties must draw up and sign a minute dealing with the matters set out in paragraph (b). d. The party initiating the proceedings must ensure that a copy of the minute is delivered within 5 days of the conclusion of the pre-trial conference. Judge's directions 5. When the minute of a pre-trial conference is delivered or the time limit for its delivery lapses, whichever occurs first, the registrar must send the file to a judge of the court for directions in terms of this subrule. The judge who receives the file from the registrar may- a. direct the registrar to enroll the matter for hearing if the judge is satisfied that the matter is ripe for hearing; or b. direct that an informal conference be held before a judge in chambers to deal with any pre-trial matters; or c. direct the parties to convene a further formal pre-trial conference at a date, time and place fixed by the registrar, at which a judge must preside, to deal with any pre-trial matters. Judge's powers on pre-trial matters 6. A judge may, at a pre-trial conference held in terms of subrule (5) (b) or (5) (c), make any appropriate order for the further conduct of proceedings, including an order as to costs. Non-compliance with subrules (4), (5) and (6) 7. If any party fails to attend any pre-trial conference convened in terms of subrule (4) (a), (5) (b) or (5) (c), or fails to comply with any direction made by a judge in terms of subrules (5) and (6), the matter may be enrolled for hearing on the direction of a judge and the defaulting party will not be permitted to appear at the hearing unless the court on good cause shown orders otherwise. Enrollment for hearing 8. a. When a judge decides that any directions given in terms of this rule have been satisfied, the judge must direct the registrar to enroll the matter for a hearing. b. When the registrar receives a direction in terms of paragraph (a), the registrar must enroll the matter and notify the parties of the time, date and place that has been allocated for the hearing. Discovery of documents 9. a. A document or tape recording not disclosed may not, except with the leave of the court granted on whatever terms the court deems fit, be used for any purpose at the hearing by the person who was obliged to disclose it, except that the document or tape recording may be used by a person other than the person who was obliged to disclose it. b. If the parties cannot reach an agreement regarding the discovery of documents and tape recordings, either party may apply to the court for an appropriate order, including an order as to costs. c. For the purpose of this rule, a tape recording includes a soundtrack, film, magnetic tape, record or any other materials on which visual images, sound or other information can be recorded. Expert witnesses 10. a. Any party intending to call an expert witness must deliver a notice to that effect, together with a summary of the evidence and opinion of the expert witness, at least 15 days before the date of the hearing. b. If a party fails to comply with paragraph (a) the court may decline to admit the evidence, or admit it only on good cause shown, and may make an order as to costs. Rules for the Conduct of Proceedings in the Labour Court 7. Applications (The rules in this section apply to the following: 1. Application for admission of party to a council in terms of section 56(5) ; 2. application for the winding up of councils in terms of section 59(1) , 3. application for the winding up of councils on grounds of insolvency in terms of section 60 ; 4. application for an interdict regarding secondary strikes in terms of section 66(3) ; 5. application for an interdict regarding strikes and lock-outs which do not comply with the Act in terms of section 68(1)(a) ; 6. application for payment of compensation in terms of section 68 (1) (b); 7. application for an interdict regarding protest action in terms of section 77(2)(a) ; 8. application for declaratory order regarding protest action in terms of section 77 (2) (b); 9. application for winding up of registered trade union or registered employers' organisation in terms of section 103(1) ; 10. application for winding up on grounds of insolvency in terms of section 104 ; 11. application for declaratory order that trade union no longer independent in terms of section 105 ; 12. reviews of any grounds that are permissible in law in terms of section 158(1)(g) or 158(1)(h) ; 13. reviews of arbitration awards of the Commission in terms of section 145 ; 14. referral of a dispute about picketing in terms of section 69(11) ; and 15. applications to the Labour Court in terms of any other Act; 16. referral of a contempt of the Commission in terms of section 142(9); 17. application for authorisation to enter premises in terms of section 142(1)(f) of the Act; 18. application to make a settlement agreement or arbitration award an order of court in terms of section 158(1)(c) of the Act; 19. application for authorisation to enter premises in terms of section 65(3) of the Basic Conditions of Employment Act 1997; 20. application by the Director-General: Labour to have a compliance order made an order of court in terms of section 73(1) of the Basic Conditions of Employment Act 1997; 21. if a material dispute of fact is not reasonably foreseen, an application for the determination of any matter concerning a contract of employment in terms of section 77(3) of the Basic Conditions of Employment Act 1997, may be initiated in terms of rule 7(see footnote to rule 6); 22. if a material dispute of fact is not reasonably foreseen, an application in terms of section 80(4) of the Basic Conditions of Employment Act 1997, concerning the interpretation or application of Part C of Chapter 10 of that Act may be initiated in terms of rule 7 (see footnote to rule 6); 23. if a material dispute of fact is not reasonably foreseen an application concerning the interpretation of the Mine Health and Safety Act, 1996, may be initiated in terms of rule 7 (see footnote to rule 6).) 1. An application must be brought on notice to all persons who have an interest in the application. 2. The notice of application must substantially comply with Form 4 and must be signed by the party bringing the application. The application must be delivered and must contain the following information-- a. the title of the matter; b. the case number assigned to the matter by the registrar; c. the relief sought; d. an address of the party delivering the document at which that party will accept notices and service of all documents in the proceedings; e. a notice advising the other party that if it intends opposing the matter, that party must deliver an answering affidavit within 10 days after the application has been served, failing which the matter may be heard in the party's absence and an order of costs may be made; and f. a schedule listing the documents that are material and relevant to the application. 3. The application must be supported by affidavit. The affidavit must clearly and concisely set out- a. the names, description and addresses of the parties; b. a statement of the material facts, in chronological order, on which the application is based, which statement must be sufficiently particular to enable any person opposing the application to reply to the document; c. a statement of the legal issues that arise from the material facts, which statement must be sufficiently particular to enable any party to reply to the document; and d. the relief sought. 4. a. A notice of opposition and an answering affidavit may be delivered by any party opposing the application. b. A notice of opposition and an answering affidavit must be delivered within 10 days from the day on which the application is served on the party opposing the application. c. A notice of opposition and an answering affidavit must respectively contain, with the changes required by the context, the same information required by subrules (2) and (3). 5. a. The party initiating the proceedings may deliver a replying affidavit within 5 days from the day on which any notice of opposition and answering affidavit are delivered. b. The replying affidavit must address only those issues raised in the answering affidavit and may not introduce new issues of fact or of law. 6. a. The registrar must allocate a date for the hearing of the application once a replying affidavit is delivered, or once the time limit for delivering a replying affidavit has lapsed, whichever occurs first. b. The registrar must notify the parties of the date, time and place for the hearing of the application. (6A) An application to make a settlement agreement or arbitration award an order of court which is unopposed must be enrolled by the registrar on notice to both parties. The court may make any competent order in the absence of the parties. 7. The court must deal with an application in any manner it deems fit, which may include-- a. an order to hold a pre-trial conference; b. referring a dispute for the hearing of oral evidence; and c. an order as to costs. Rules for the Conduct of Proceedings in the Labour Court 7A. Reviews (This rule applies to the following reviews: 1. In terms of section 145 or 158(1)(g) of the Act; 2. In terms of any other applicable law.) 3. A party desiring to review a decision or proceedings of a body or person performing a reviewable function justiciable by the court must deliver a notice of motion to the person or body and to all other affected parties. 2. The notice of motion must - a. call upon the person or body to show cause why the decision or proceedings should not be reviewed and corrected or set aside; b. call upon the person or body to dispatch, within 10 days after receipt of the notice of motion, to the registrar, the record of the proceedings sought to be corrected or set aside, together with such reasons as are required by law or desirable to provide, and to notify the applicant that this has been done; and c. be supported by an affidavit setting out the factual and legal grounds upon which the applicant relies to have the decision or proceedings corrected or set aside. 3. The person or body upon whom a notice of motion in terms of subrule (2) is served must timeously comply with the direction in the notice of motion. 4. If the person or body fails to comply with the direction or fails to apply for an extension of time to do so, any interested party may apply, on notice, for an order compelling compliance with the direction. 5. The registrar must make available to the applicant the record which is received on such terms as the registrar thinks appropriate to ensure its safety. The applicant must make copies of such portions of the record as may be necessary for the purposes of the review and certify each copy as true and correct. 6. The applicant must furnish the registrar and each of the other parties with a copy of the record or portion of the record, as the case may be, and a copy of the reasons filed by the person or body. 7. The costs of transcription of the record, copying and delivery of the record and reasons, if any, must be paid by the applicant and then become costs in the cause. 8. The applicant must within 10 days after the registrar has made the record available either - a. by delivery of a notice and accompanying affidavit, amend, add to or vary the terms of the notice of motion and supplement the supporting affidavit; or b. deliver a notice that the applicant stands by its notice of motion. 9. Any person wishing to oppose the granting of the order prayed in the notice of motion must, within 10 days after receipt of the notice of amendment or notice that the applicant stands by its notice of motion, deliver an affidavit in answer to the allegations made by the applicant. 10. The applicant may file a replying affidavit within 5 days after receipt of an answering affidavit. Rules for the Conduct of Proceedings in the Labour Court 8. Urgent relief 1. A party that applies for urgent relief must file an application that complies with the requirements of rules 7(1), 7(2), 7(3) and, if applicable, 7(7). 2. The affidavit in support of the application must also contain-- a. the reasons for urgency and why urgent relief is necessary; b. the reasons why the requirements of the rules were not complied with, if that is the case; and c. if a party brings an application in a shorter period than that provided for in terms of section 68(2) of the Act, the party must provide reasons why a shorter period of notice should be permitted. 3. The party bringing the application must sign the application. 4. The registrar must fix a date, time and place for the hearing of the application. 5. As soon as the registrar has allocated a date, time and place for the hearing, the party bringing the application must serve a copy of the application, together with the information obtained from the registrar, on the respondent. 6. The party bringing the application must satisfy the court when the application is heard that a copy of the application has been served on the respondent or that sufficient and adequate notice of the content of the application was brought to that party's attention by other means. 7. Any party who intends opposing the application or making any representations concerning the application must notify the registrar and the party bringing the application, as soon as possible after the application has come to that party's notice. 8. Any party who has notified the registrar in terms of subrule (7) may appear before the court and be heard at the hearing, except that at any stage of the proceedings, on good cause shown, the court may allow any person who is cited as a party but who failed to notify the registrar as required by subrule (7), to appear to be heard on whatever terms the court may decide. 9. The court must deal with an urgent application in any manner it deems fit, and may make an order as to costs. 10. Unless otherwise ordered a respondent may anticipate the return date of an interim interdict on not less than 48 hours' notice to the applicant and the registrar. Rules for the Conduct of Proceedings in the Labour Court 9. Appeals to the Labour Court (The rules in this section apply to the following provisions in the Act- 1. Appeals against the cancellation by the registrar of the registration of a council in terms of section 61(5); 2. appeals against an arbitration award on the interpretation or application or section 25(3)(c) or 26(3)(d) in terms of section 24(7); 3. appeals from a decision of the registrar of labour relations in terms of section 111(3); 4. appeals against a decision of an industrial council in terms of item 10(3) of Schedule 7; 5. appeals in terms of section 158(1)(i); and 6. appeals to the Labour Court in terms of any other Act.) 1. Appeals must be noted by filing a notice of appeal with the registrar. 2. Unless an Act otherwise provides, the notice of appeal must be filed within 10 days of the date on which the person filing the notice of appeal is notified of the decision that is the subject of the appeal. 3. A copy of the notice of appeal must be served on all interested parties. 4. The notice of appeal must set out- a. the particulars of the decision that is the subject of the appeal; b. the findings of fact that are appealed against; and c. the conclusions of law that are appealed against. 5. The notice of appeal must, in addition, contain a notice calling upon the responsible person or body whose decision is under appeal, to provide a written record of the proceedings, and the reasons for the decision, within 15 days of the delivery of the notice of appeal. (5A) a. The person or body upon whom a notice of appeal in terms of subrule (3) is served must timeously comply with the direction in the notice of appeal. b. If the person or body fails to comply with the direction or fails to apply for an extension of time to do so, any interested party may apply, on notice, for an order compelling compliance with the direction. c. The registrar must make available to the appellant the record which is received on such terms as the registrar thinks appropriate to ensure its safety. The appellant must make copies of such portions of the record as may be necessary for the purposes of the review and certify each copy as true and correct. d. The appellant must furnish the registrar and each of the other parties with a copy of the record or portion of the record, as the case may be, and a copy of the reasons filed by the person or body. e. The costs of transcription of the record, copying and delivery of the record and reasons, if any, must be paid by the applicant and then become costs in the cause. 6. The appellant must deliver concise written representations in respect of the appeal within 10 days of receipt of the written record and reasons. 7. The respondent in an appeal may deliver concise written representations in respect of the appeal within 10 days of delivery of appellant's written representations in terms of subrule (6). 8. When the registrar receives representations delivered in terms of subrule (7) or the time limit for delivering these representations lapses, whichever occurs first, the registrar must allocate a date for the hearing of the appeal. Rules for the Conduct of Proceedings in the Labour Court 10. Reviews in chambers (The rules in this section apply to the following reviews-- 1. Review in chambers of registrar's determination of liquidator's fees in terms of section 59(4)(b)) 2. Reviews must be noted by filing a notice to review. 2. The notice to review must be filed within 10 days of the decision that is the subject of the review. 3. A copy of the notice to review must be served on all interested parties. 4. The notice to review must set out- a. the particulars of the decision that is the subject of the review; b. the factual grounds of review; and c. the legal grounds of review. 5. On receipt of a notice to review the registrar must as soon as possible-- a. draw up a stated case of the facts; b. give reasons for the decision; and c. provide all interested parties with copies of the stated case and reasons. 6. On receipt of a copy of the registrar's stated case and reasons, the applicant must within seven days deliver concise written representations in respect of the review. 7. Any party on whom a notice to review has been served may, within 5 days of delivery of the applicant's representations in terms of subrule (6), deliver concise written representations in respect of the review. 8. When the registrar receives representations delivered in terms of subrule (7) or the time limit for delivery of representations lapses, whichever occurs first, the review must be placed before a judge in chambers for decision. Rules for the Conduct of Proceedings in the Labour Court 11. Interlocutory applications and procedures not specifically provided for in other rules 1. The following applications must be brought on notice , supported by affidavit: a. Interlocutory applications; b. other applications incidental to, or pending, proceedings referred to in these rules that are not specifically provided for in the rules; and c. any other applications for directions that may be sought from the court. 2. The requirement in subrule (1) that affidavits must be filed does not apply to applications that deal only with procedural aspects. 3. If a situation for which these rules do not provide arises in proceedings or contemplated proceedings, the court may adopt any procedure that it deems appropriate in the circumstances. 4. In the exercise of its powers and in the performance of its functions, or in any incidental matter, the court may act in a manner that it considers expedient in the circumstances to achieve the objects of the Act. Rules for the Conduct of Proceedings in the Labour Court 12. Extension of time limits and condonation 1. The court may extent or abridge any period prescribed by these rules on application, and on good cause shown, unless the court is precluded from doing so by an Act. 2. If a party fails to comply with any notice or direction given in terms of these rules, any interested party may apply on notice for an order that the notice or direction be complied with within a period that may be specified, and that failing compliance with the order, the party in default will not be entitled to any relief in the proceedings. 3. The court may, on good cause shown, condone non-compliance with any period prescribed by these rules. Rules for the Conduct of Proceedings in the Labour Court 13. Withdrawals and postponements 1. a. A party who has initiated proceedings and wants to withdraw the matter must deliver a notice of withdrawal as soon as possible. b. If costs are not tendered any other party may apply on notice for costs. 2. If the parties reach a settlement, the party who initiated the proceedings must notify the registrar of the settlement as soon as possible. 3. If the parties agree to postpone the hearing, the party initiating the proceedings must notify the registrar as soon as possible. Rules for the Conduct of Proceedings in the Labour Court 14. Set down of postponed matters 1. If a matter is postponed to a date to be determined in the future, any party to the matter may apply to the registrar for it to be re-enrolled, but no preference may be given to that matter on the roll, unless the court orders otherwise. 2. The registrar must allocate a time, date and place for hearing and send a notice of set down to each party. 3. If a matter is postponed in court to a specific date, the registrar need not send a notice of set down to the parties. Rules for the Conduct of Proceedings in the Labour Court 15. Matters struck off the roll 1. If a matter is struck off the roll because a party who initiated the proceedings was not present, the matter may not be re-enrolled without that party having provided the court with a satisfactory explanation, under oath or affirmation, for the failure to attend court. 2. The affidavit or affirmation must be delivered and the registrar must place it before a judge in chambers, to decide whether the matter may be re-enrolled. 3. The judge before whom the affidavit or affirmation is placed may order that an application for re-enrollment be made. In that event, the application must comply with rule 11 . Rules for the Conduct of Proceedings in the Labour Court 16. Default judgments 1. If no response has been delivered within the prescribed time period or any extended period granted by the court within which to deliver a response, the registrar must, on notice to the parties, enroll a matter for judgment by default. 2. Subrule (1) does not apply if the party initiating the proceedings instructs the registrar not to enroll the matter for judgment by default. 3. If a matter has been enrolled for default judgment, the person initiating the proceedings may request the registrar to have the matter removed from the roll if the matter has been settled or an extension of time has been granted. 4. If the registrar receives a request in terms of subrule (3), the registrar must remove the matter from the roll. Rules for the Conduct of Proceedings in the Labour Court 16A. 1. The court may, in addition to any other powers it may have- a. of it's own motion or on application of any party affected, rescind or vary any order or judgment- i. erroneously sought or erroneously granted in the absence of any party affected by it; ii. in which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; iii. granted as the result of a mistake common to the parties; or b. on application of any party affected, rescind any order or judgment granted in the absence of- that party. 2. Any party desiring any relief under- a. subrule 1(a) must apply for it on notice to all parties whose interests may be affected by the relief sought. b. subrule 1(b) may within 15 days after acquiring knowledge of an order or judgment granted in the absence of that party apply on notice to all interested parties to set aside the order or judgment and the court may, upon good cause shown, set aside the order or judgment on such terms as it deems fit. Rules for the Conduct of Proceedings in the Labour Court 17. Consent to orders 1. A party who opposes any proceedings may at any time consent to the whole or any part of the relief sought in the proceedings. 2. The consent referred to in subrule (1) must be in writing, signed and dated by the party consenting to the relief, and witnessed. 3. When the party who initiated the proceedings receives the consent, that party may apply to the registrar in writing for an order to be made by a judge in chambers in accordance with the consent. Rules for the Conduct of Proceedings in the Labour Court 18. Heads of argument 1. The court may at any time call on the parties to deliver concise heads of argument on the main points that they intend to argue. 2. The heads of argument must - a. include a chronology of the material facts; b. in its first reference to a factual allegation contain a page and paragraph or line reference to the record or bundle of documents; c. include a list of the authorities referred to in the heads of argument; d. in its first reference to a text book specify the author, title, edition and page number (in that order for example: Smith, Labour Law, 2nd ed., 44); and e. in its first reference to a reported case must contain the full name of the case, the year, volume, commencement page, division of the court, and page and margin reference to which specific reference is made (for example: National Union of Hotel Workers a.o. v Smith (Pty) Ltd 1990 1 SA 127 (A) 130(D); Jones v Clark (Pty) Ltd a.o. (1990) 15 ILJ 1010 (LAC) 1031D). Rules for the Conduct of Proceedings in the Labour Court 19. Submissions by an amicus curiae 1. Any person interested in any proceedings before the court may, on application to the Judge President or any judge authorised by the Judge President, be admitted to the proceedings as an amicus curiae on the terms and conditions and with the rights and privileges determined by the Judge President or any judge authorised to deal with the matter. 2. The terms and conditions and rights and privileges referred to in subrule (1) may be amended in accordance with directions given by the Judge President or the judge authorised to deal with the matter. 3. An application in terms of subrule (1) must be made not later than 15 days before the date of hearing. 4. An application to be admitted as an amicus curiae must-- a. briefly describe the interest of the amicus curiae in the proceedings; b. briefly identify the position to be adopted by the amicus curiae in the proceedings; and c. clearly, succinctly and without unnecessary elaboration set out the submissions to be advanced by the amicus curiae, their relevance to the proceedings and that person's reasons for believing that the submissions will be useful to the court and different from those of the other parties. 5. An amicus curiae has the right to lodge written argument, provided that the written argument- a. is clear, succinct and without unnecessary elaboration; b. does not repeat any matter described in the argument of the other parties; and c. raises new contentions that may be useful to the court. 6. In the event of new matters or arguments being raised by the amicus curiae, any other party will have the right to file written argument within seven days from the date on which the argument of the amicus curiae was served on those parties. 7. An order of court dealing with costs may make provision for the payment of the intervention of the amicus curiae. Rules for the Conduct of Proceedings in the Labour Court 20. Partnership, firms and unincorporated associations 1. A partnership, firm or unincorporated association may be a party to any proceedings in its own name and proceedings may be initiated against it by any other party . 2. A party in proceedings against a partnership, firm or unincorporated association need not allege the names of the partners, owner, members or office-bearers. 3. a. Any party to proceedings, initiated by or: against a partnership, firm or unincorporated association, may notify the other party to provide it within 10 days of the of service of the notice with the names and addresses of the partners, owner, members or office-bearers of the partnership, firm or unincorporated association and a copy of its constitution at the date on which the cause of the proceedings arose. b. A partnership, firm or unincorporated association that has been served with a notice in terms of paragraph (a) must comply with it within the specified period. c. Once the necessary information has been furnished, the partners, owner, members become parties. to the proceedings. d. In the event of a dispute about the identity of a partner, owner, member or office-bearer the court may, on application, decide the issue. 4. If proceedings are instituted against a partnership, firm or unincorporated association and it appears that since the cause of the proceedings it has been dissolved, the proceedings continue against the persons alleged to be or stated by the partnership, firm or association to be partners or members. 5. Execution in respect of a judgment against a partnership, firm or unincorporated association must first be levied against its assets and, after excussion. against the private assets of any person held to be or estopped from denying being a partner or member as if judgment had been entered against that person. Rules for the Conduct of Proceedings in the Labour Court 21. Representation of parties 1. A representative who acts on behalf of any party in any proceedings, must notify the registrar and all other parties, advising them of the following particulars: a. The representative's name; b. the postal address and place of employment or business; and c. if a fax number and telephone number are available, those numbers. 2. Any party who terminates a representative's authority to act and then acts in person or appoints another representative, must give notice to the registrar and all other parties concerned of that termination, and of the appointment of any other representative, and include the representative's particulars, as referred to in subrule (1). 3. On receipt of a notice in terms of subrule (1) or (2), the address of the representative or the party, as the case may be, will become the address for notices to and for service on that party of all documents in the proceedings, but any notice duly sent or any service duly effected elsewhere before receipt of that notice will, notwithstanding that change, for all purposes be valid, unless the court orders otherwise. 4. a. A representative in any proceedings who ceases to act for a party must deliver a notice to that effect to that party and all other parties concerned. b. A notice delivered in terms of paragraph (a) must state the names and addresses of the parties that are notified. c. After receipt of a notice referred to in paragraph (a), the address of the party formerly represented becomes the address for notices to and for service on that party of all documents in the proceedings, unless a new address is furnished for that purpose. Rules for the Conduct of Proceedings in the Labour Court 22. Joinder of parties, intervention as applicant or respondent, amendment of citation and substitution of parties 1. The court may join any number of persons, whether jointly, jointly and severally, separately, or in the alternative, as parties in proceedings, if the right to relief depends on the determination of substantially the same question of law or facts. 2. a. The court may, of its own motion or on application and on notice to every other party , make an order joining any person as a party in the proceedings if the party to be joined has a substantial interest in the subject matter of the proceedings. b. When making an order in terms of paragraph (a), the court may give such directions as to the further procedure in the proceedings as it deems fit, and may make an order as to costs. 3. Any person entitled to join as a party in any proceedings may, on notice to all parties, at any stage of the proceedings, apply for leave to intervene as a party and the court may make an order, including any order as to costs, or give such directions as to the further procedure in the proceedings as it deems fit. 4. If a party to any proceedings has been incorrectly or defectively cited, the court may, on application and on notice to the party concerned, correct the error or defect and may make an order as to costs. 5. If in any proceedings it becomes necessary to substitute a person for an existing party, any party to such proceedings may, on application and on notice to every other party, apply to the court for an order substituting that party for an existing party and the court may make such order, including an order as to costs, or give such directions as to the further procedure in the proceedings as it deems fit. 6. An application to join any person as a party to the proceedings or to be substituted for an existing party must be accompanied by copies of all documents previously delivered, unless the person concerned or that person's representative is already in possession of those documents. 7. No joinder or substitution in terms of this rule will affect any prior steps taken in the proceedings. Rules for the Conduct of Proceedings in the Labour Court 22A. Offer of Settlement 1. If a sum of money or the performance of some act is claimed in any proceedings, any party against whom the claim is made may at any time make an offer, in writing, to settle the claim or to perform the act. 2. Notice of any offer in terms of this rule must be signed by the party who makes it and delivered to all other parties to the proceedings. The notice must state-- a. whether it is unconditional or without prejudice as an offer of settlement; b. whether it is accompanied by an offer to pay all or only part of the costs of the party to whom the offer is made; c. whether the offer is made by way of settlement of both claim and costs or of the claim only; or d. whether the other party disclaims liability for the payment of costs or part of the costs, in which case the reasons must be given. 3. An applicant may accept any offer made in terms of subrule (2) by delivering a notice of acceptance to the offer. The notice must be delivered within 10 days after the receipt of the offer, or thereafter with written consent of the other party or in terms of an order of court. 4. In the event of a failure to pay or to perform within seven days after delivery of the notice of acceptance of the offer, the party entitled to payment or performance may, on 5 days' written notice to the party who has failed to pay or perform, apply for judgment in accordance with the offer, and for the costs of the application. 5. If an offer accepted in terms of this rule is not stated to be in satisfaction of an applicant's claim and costs, the party to whom the offer is made may apply to the court, on 5 days' written notice to the other party, for an order for costs. 6. An offer made in terms of this rule is not a secret offer or tender and may be disclosed to the court at any time. 7. Any offer may be taken into account by the court in making an order for costs. Rules for the Conduct of Proceedings in the Labour Court 22B. Pagination 1. In all opposed proceedings, including applications for urgent relief, the documents that are filed with the registrar must be paginated by the party initiating the proceedings. 2. The party initiating the proceedings must compile and deliver an index before the matter is heard. 3. The parties must ensure that their copies of the documents filed with the registrar are paginated in accordance with the index. Rules for the Conduct of Proceedings in the Labour Court 23. Consolidation of proceedings 1. The court may make an order consolidating any separate proceedings pending before it if it deems the order to be expedient and just. 2. The court may make an order referred to in subrule (1) of its own motion or on application by any interested party . Rules for the Conduct of Proceedings in the Labour Court 24. Costs 1. The fees of one advocate and one attorney may be allowed between party and party, unless the court on application authorises the fees of additional advocates and attorneys. 2. The fees of any additional advocate authorised in terms of subrule(1) must not exceed one half of those of the first advocate, unless the court directs otherwise. 3. The costs between party and party allowed in terms of a judgment or order of the court, or any agreement between the parties, must be calculated and taxed by the taxing master at the tariff determined by the order or agreement, but if no tariff has been determined, the tariff applicable in the High Court will apply. 4. Qualifying fees for expert witnesses may not be recovered as costs between party and party unless otherwise directed by the court during the proceedings. Rules for the Conduct of Proceedings in the Labour Court 25. Taxation 1. The registrar may perform the functions and duties of a taxing master or appoint any person as taxing master who is in the registrar's opinion fit to perform the functions and duties as are assigned to or imposed on a taxing master by these rules , on such terms and for such period as may be determined. 2. The taxing master is empowered to tax any bill of costs for services actually rendered in connection with proceedings in the court. 3. At the taxation of any bill of costs, the taxing master may call for any book, document, paper or account that in the taxing master's opinion is necessary to determine properly any matter arising from the taxation. 4. The taxing master must not proceed to the taxation of any bill of costs unless the taxing master has been satisfied by the party requesting the taxation (if that party is not the party liable to pay the bill) that the party liable to pay the bill has received due notice as to the time and place of the taxation and of that party's entitlement to be present at the taxation. 5. Despite subrule (4), notice need not be given to a party-- a. who failed to appear at the hearing either in person or through a representative; or b. who consented in writing to the taxation taking place in that party's absence. 6. Any decision by a taxing master is subject to the review of the court on application. Rules for the Conduct of Proceedings in the Labour Court 26. Service and enforcement of court orders In terms of section 163 of the Act, service and execution of the court's decisions, judgments or orders must take place in accordance with the procedure for service and execution of decisions, judgments or orders of the High Court of South Africa. Rules for the Conduct of Proceedings in the Labour Court 27. Oath of office of interpreter 1. Before any interpreter may interpret in court, the interpreter must take an oath or make an affirmation in the following form before a judge of the court: "I, ..................................... (full names) do hereby swear/truly affirm that whenever I may be called on to perform the functions of an interpreter in any proceedings in the court, I will truly and correctly and to the best of my ability interpret from the language I am called on to interpret into one or other of the official languages and vice versa.". 2. The oath or affirmation must be taken or made in the manner prescribed for the taking of an oath or the making of an affirmation and must be signed by the interpreter. Rules for the Conduct of Proceedings in the Labour Court 28. Labour Court as court of record 1. A record must be kept of- a. any judgment or ruling given by the court; b. any evidence given in court; c. any objection made to any evidence received or tendered; d. any on-the-spot inspection and any matter recorded as a result of that inspection; and e. the proceedings of the court generally. 2. The record referred to in subrule (1), including electronic recordings of proceedings, must be kept in a form that the court deems expedient. 3. a. A transcript of electronic recordings or a portion of the transcript or recording may be made on request of the court or any of the parties on payment of the fee prescribed from time to time. b. Any transcript of electronic recordings must be certified as correct by the person making such notes or transcript and must be filed with the registrar . c. Any transcript of electronic recordings certified as correct, is deemed to be correct unless the contrary is proved. 4. Any person may make copies of any document filed in a particular matter, on payment of the fee prescribed from time to time, and in the presence of the registrar, unless a judge otherwise directs. Rules for the Conduct of Proceedings in the Labour Court 29. Witness fees 1. A witness in any proceedings in the court is entitled to be paid in accordance with the tariff of allowances prescribed by the Minister of Justice and published by notice in the Gazette in terms of section 42 of the Supreme Court Act, 1959 (Act No. 59 of 1959). 2. Despite subrule (1), the court may order that no allowances or only a portion of the prescribed allowances be paid to any witness. Rules for the Conduct of Proceedings in the Labour Court 30. Application for leave to appeal to the Labour Appeal Court (Appeal in terms of section 166(1) of the Act. See rule 5 of the Rules of the Labour Appeal Court for the procedure to be followed after leave to appeal has been granted.) 1. An application for leave to appeal to the Labour Appeal Court may be made, by way of a statement of the grounds for leave, at the time of the judgment or order. 2. If leave to appeal has not been made at the time of judgment or order, an application for leave must be made and the grounds for appeal furnished within 15 days of the date of the judgment or order against which leave to appeal is sought, except that the court may, on good cause shown, extend that period. 3. If the reasons or the full reasons for the court's order are given on a date later than the date of the judgment or order, the application for leave to appeal must be made within 10 days after the date on which the reasons are given, except that the court may, on good cause shown, extend that period. (3A) Unless the judge from whom leave to appeal is sought otherwise directs, the parties' respective submissions in respect of the application for leave to appeal must be- a. in writing; and b. delivered on or before a date fixed by the judge. 4. [Subrule (4) deleted by section 9(b) of Government Notice No. R.961 dated 11 July 1997] 5. [Subrule (5) deleted by section 9(b) of Government Notice No. R.961 dated 11 July 1997] 6. [Subrule (6) deleted by section 9(b) of Government Notice No. R.961 dated 11 July 1997] 7. [Subrule (7) deleted by section 9(b) of Government Notice No. R.961 dated 11 July 1997] Rules for the Conduct of Proceedings in the Labour Court 31. Sworn translators Any person admitted and enrolled as a sworn translator of any division of the High Court of South Africa is deemed to be a sworn translator for the court. Rules for the Conduct of Proceedings in the Labour Court 32. Subpoenas 1. Any party who requires a witness to attend any proceedings to give evidence may have a subpoena issued by the registrar for that purpose. 2. A subpoena must comply with Form 3. 3. If a witness is required to produce in evidence any document or thing in the witness's possession, the subpoena must specify the document or thing to be produced. 4. After the subpoena has been issued, it must be served by the Sheriff in any manner authorised by rule 4 . 5. A witness who has been required to produce any document or thing at the proceedings must hand it over to the registrar as soon as possible after service of the subpoena, unless the witness claims that the document or thing is privileged. 6. After the witness has handed over any document or thing to the registrar it may be inspected by any party to the proceedings. 7. Once the inspection in terms of subrule (6) is complete, the registrar must return the document or thing to the witness. Rules for the Conduct of Proceedings in the Labour Court 33. Commencement of rules These rules will come into operation on the day that the whole of the Act comes into operation. Rules for the Conduct of Proceedings in the Labour Court Schedule 1 Tariff of fees 1. The registrar may charge a fee of R1,00 per page for copying any document. 2. The registrar may charge a fee of R2,00 for certifying any document as a true copy. Rules for the Conduct of Proceedings in the Labour Appeal Court 1. Definitions The Rules Board has, in terms of section 176 of the Labour Relations Act, 1995 (Act No. 66 of 1995), made the following rules to regulate the conduct of proceedings in the Labour Appeal Court. Any expression in these rules that is defined in the Labour Relations Act 1995 (Act No. 66 of 1995), has the same meaning as in that Act. Act Court Day Deliver Judge President Party Petition Public Holiday Registrar Serve Rules for the Conduct of Proceedings in the Labour Appeal Court 2. Sittings of the court 1. There will be four terms each year: 1 February to 31 March, inclusive; 1 May to 30 June, inclusive; 1 August to 30 September, inclusive; and 1 November to 15 December, inclusive. 2. If the day fixed for the commencement of a term is a Saturday, Sunday or public holiday , the term will commence on the next succeeding day and, if the day fixed for the end of a term is a Saturday, Sunday or public holiday , the term will end on the preceding day. 3. Despite subrules (1) and (2), the Judge President may direct that an appeal be heard on any day that does not fall within a term. Rules for the Conduct of Proceedings in the Labour Appeal Court 3. Registrar's office hours 1. The office of the registrar will be the office of the registrar of the Labour Court. 2. The office of the registrar will be open every Monday to Friday, excluding public holidays , from 08:00 to 13:00 and from 14:00 to 15:30. 3. Despite subrule (2), the Judge President may direct that any document be filed at any time. Rules for the Conduct of Proceedings in the Labour Appeal Court 4. Petitions for leave to appeal (Section 166 of the Act regulates appeals against judgments or orders of the Labour Court. Applications to the Labour Court for leave to appeal are dealt with in rule 30 of the Rules of the Labour Court. If an application for leave to appeal is refused, a party can petition the Labour Appeal Court. This rule regulates those petitions.(7) After an appeal has been noted, the appellant must serve a copy of the record of the proceedings in the Labour Court on each respondent and file four copies of the record with the registrar.) 1. A petition for leave to appeal must be addressed to the Judge President , and must include a notice of motion and supporting affidavits. 2. Every petition must be accompanied by- a. a copy of the judgment of the Labour Court against which leave to appeal is sought; and b. a copy of the judgment refusing leave to appeal. 3. A petition must set out succinctly the grounds on which leave to appeal is sought. 4. A petition must not include the record of the proceedings in the Labour Court, unless the judges considering the petition direct otherwise. 5. A petition must be delivered within 10 days of the date on which leave to appeal is refused. The original petition plus two copies must be filed with the registrar and must be accompanied by proof of service on all other parties. 6. The respondent may deliver an answering affidavit within 10 days of delivery of a copy of the petition. The original plus two copies of the answering affidavit must be filed with the registrar. 7. A petition must be considered by three judges of the court designated by the Judge President . 8. The decision of the majority of the judges to grant or refuse the petition is final. 9. If the court grants leave to appeal it must, at the same time, make an order fixing the date by which the record must be delivered. 10. [Subrule (10) deleted by section 2(d) of Government Notice No. R.1101 dated 4 September 1998] Rules for the Conduct of Proceedings in the Labour Appeal Court 5. Procedure on appeal 1. Every appellant who has a right of appeal must deliver a notice of appeal within 15 days, or any longer period that may be allowed by the court, on good cause shown, after leave to appeal has been granted. 2. The order granting leave to appeal must be delivered with the notice of appeal. 3. The notice of appeal must state whether the whole or only part of the judgment or order of the Labour Court is appealed against. If only part of a judgment or order is appealed against, the notice must state which part is the subject of the appeal. 4. Any respondent who wishes to cross-appeal must deliver a notice of cross-appeal. 5. A notice of cross-appeal must be delivered within 10 days, or such longer period as may on good cause be allowed, after receiving notice of appeal from the appellant. 6. The notice of cross-appeal must state the particulars in respect of which the variation of the judgment or order of the Labour Court is sought. 7. After an appeal has been noted, the appellant must serve a copy of the record of the proceedings in the Labour Court on each respondent and file four copies of the record with the registrar. 8. The record must be delivered within 60 days of the date of the order granting leave to appeal, unless the appeal is noted after a successful petition for leave to appeal, in which case the record must be delivered within the period fixed by the court under rule 4(9). 9. One of the copies of the record filed with the registrar must be certified as correct by the registrar of the Labour Court. 10. Every copy of the record must-- a. be clearly typed or printed in double spacing on A4 standard paper; b. be paginated; c. be numbered on every tenth line; d. be securely bound in suitable covers disclosing the names of the parties and the names of the representatives of the parties; e. be divided into separate, conveniently-sized volumes of approximately 100 pages each: Provided that a volume may consist of a lesser number of pages if it is convenient that such volume consist in a self-contained separate portion of the record; f. include the judgment given by the Labour Court; g. contain a correct and complete index of the evidence and of all the documents and exhibits in the case, the date and nature of the exhibits being briefly stated in the index; and h. contain only those documents that were referred to in any proceedings in the Labour Court. 11. A document must not be included in the record more than once. 12. The record must not contain any of the following documents, unless they affect the merits of the appeal: a. Copies of subpoenas; b. notices of trial; c. consents to postponements; d. schedules of documents; e. notices to produce or to permit inspection; f. other documents of a formal nature; g. opening addresses; h. the record of oral argument; and i. heads of argument. 13. A list of the documents referred to in subrule (12) must be included in the record with the heading 'List of documents excluded from the record'. 14. The documents that were referred to in any proceedings in the Labour Court must be arranged in chronological order. 15. Any references in the record of evidence of any witness to any document or exhibit contained in the appeal record must reflect, in brackets in the margin opposite the reference, the page number in the appeal record of such document or exhibit. 16. If the decision of a matter on appeal is likely to turn only on a question of law, the parties may agree to submit the question of law to the court in the form of a special case. In that event, only those parts of the record necessary for the decision of the question of law must be lodged with the registrar. 17. If the appellant fails to lodge the record within the prescribed period, the appellant will be deemed to have withdrawn the appeal, unless the appellant has within that period applied to the respondent or the respondent's representative for consent to an extension of time and consent has been given. If consent is refused the appellant may, after delivery to the respondent of the notice of motion supported by affidavit, apply to the Judge President in chambers for an extension of time. The application must be accompanied by proof of service on all other parties. Any party wishing to oppose the grant of extension of time may deliver an answering affidavit within 10 days of service on such party of a copy of the application. 18. If an appellant delivers a notice of withdrawal of an appeal, or is deemed, in terms of subrule (17), to have withdrawn an appeal, any respondent who has noted a cross-appeal may, within 10 days of the date on which a notice of withdrawal is delivered by the appellant or the date on which the appellant is deemed to have withdrawn the appeal, deliver a notice of an intention to prosecute the cross-appeal. 19. If the respondent delivers a notice of intention to prosecute a cross-appeal, the respondent is for the purposes of subrule (8) deemed to be the appellant, and the period prescribed in subrule (8) must be calculated as from the date on which the appellant withdrew the appeal or on which the appeal was deemed to have been withdrawn . 20. The costs of preparing copies of the record or special case form part of the costs of appeal. 21. The registrar may refuse to accept copies of records or special cases that do not, in the registrar's opinion, comply with the provisions of this rule. 22. A party may on notice to all other parties apply orally or in writing to the Judge President for an appeal to be heard urgently. If the application is successful, the Judge President must give directions as to the future conduct of the appeal. Rules for the Conduct of Proceedings in the Labour Appeal Court 6. Powers of attorney 1. A power of attorney authorising a representative to prosecute the appeal or the cross-appeal must be delivered within 10 days of the delivery of any notice of appeal or cross-appeal. 2. If there is no cross-appeal, a power of attorney to oppose an appeal must be filed with the registrar by the respondent's representative when copies of the respondent's main heads of argument are filed under rule 9 . 3. The State Attorney or any attorney acting on behalf of the Republic of South Africa or the government of any province need not file a power of attorney. Rules for the Conduct of Proceedings in the Labour Appeal Court 7. Submissions by an amicus curiae 1. Any person interested in any proceedings before the court may, on application to the Judge President or any judge authorised by the Judge President, be admitted to the proceedings as an amicus curiae on the terms and conditions and with the rights and privileges determined by the Judge President or any judge authorised by the Judge President to deal with the matter. 2. The terms and conditions and rights and privileges referred to in subrule (1) may be amended in accordance with directions given by the Judge President or the judge authorised by the Judge President to deal with the matter. 3. An application in terms of subrule (1) must be made not later than 15 days before the date of hearing. 4. An application to be admitted as an amicus curiae must-- a. briefly describe the interest of the amicus curiae in the proceedings; b. briefly identify the position to be adopted by the amicus curiae in the proceedings; and c. clearly, succinctly and without unnecessary elaboration set out the submissions to be advanced by the amicus curiae, their relevance to the proceedings and that person's reasons for believing that the submissions will be useful to the court and different from those of the other parties. 5. An amicus curiae has the right to deliver written argument by the date fixed by the Judge President, provided that the written argument-- a. is clear, succinct and without unnecessary elaboration; b. does not repeat any matter described in the argument of the other parties; and c. raises new contentions that may be useful to the court. 6. In the event of new matters or arguments being raised by the amicus curiae, any other party will have the right to file written argument within 5 days from the date on which the argument of the amicus curiae was served on those parties. 7. An order of court dealing with costs may make provision for the payment of the intervention of the amicus curiae. Rules for the Conduct of Proceedings in the Labour Appeal Court 8. Date of hearing 1. Once the record on appeal has been delivered, and subject to the directions of the Judge President , the registrar must notify the parties of the date, time and place of the hearing. 2. The notice required by subrule (1) must be given by fax or registered letter. 3. A registered letter or fax that has been forwarded to a party's last-known address or the address of that party's last-known representative will be deemed to be sufficient notice of the date, time and place of the hearing for the purposes of this rule. Rules for the Conduct of Proceedings in the Labour Appeal Court 9. Heads of argument 1. The appellant must deliver a copy of the heads of argument not later than 15 days before the hearing or not later than any earlier date determined by the Judge President . The original plus three copies of the heads of argument must be filed with the registrar . 2. The respondent must deliver a copy of the heads of argument not later than 10 days before the hearing or not later than any earlier date that may be determined by the Judge President. The original plus three copies must be filed with the registrar. 3. The heads of argument of the appellant and the respondent must a. include a chronology of the material facts; b. in its first reference to a factual allegation contain a page and paragraph or line reference to the record or bundle of documents; c. include a list of the authorities referred to in the heads of argument; d. in its first reference to a textbook specify the author, title, edition and page number (in that order, for example: Smith, Labour Law, 2nd ed., 44); and e. in its first reference to a reported case must contain the full name of the case, the year, volume, commencement page, division of the court, and page and margin reference to which specific reference is made (for example: National Union of Hotel Workers a.o. v Smith (Pty) Ltd 1990 1 SA 127 (A) 130D; Jones v Clark (Pty) Ltd a.o. (1990) 15 ILJ 1010 (LAC) 1031D). Rules for the Conduct of Proceedings in the Labour Appeal Court 10. Labour Appeal Court sitting as a court of first instance in terms of section 175 of the Act (section 175) 1. A party may request the Judge President for a direction that a matter before the Labour Court be heard by the Labour Appeal Court sitting as a court of first instance. 2. Notice of a request in terms of subrule (1) must be given to all other parties. 3. The request must be made in writing, but need not be supported by an affidavit. 4. If the request is opposed, the Judge President must hear the parties in chambers before giving a direction . 5. If the request is successful, the Judge President must give directions as to the future conduct of the matter. Rules for the Conduct of Proceedings in the Labour Appeal Court 11. Failure to appear at an appeal hearing If the appellant fails to appear in person or through a representative at a hearing, the Court may dismiss the appeal for non-prosecution, or make any other appropriate order. Rules for the Conduct of Proceedings in the Labour Appeal Court 12. General 1. The Court may, for sufficient cause shown, excuse the parties from compliance with any of these rules. 2. The Judge President, or any other judge authorised by the Judge Preseident, may give any directions that are considered just and expedient in matters of practice and procedure. Rules for the Conduct of Proceedings in the Labour Appeal Court 12A. Defence Special Tribunal Act These Rules, as amended from time to time, are, with the changes required by the context, applicable to appeals from the Defence Special Tribunal, established by section 3 of the Defence Special Tribunal Act, No. 81 of 1998. Rules for the Conduct of Proceedings in the Labour Appeal Court 13. Costs and fees 1. Rules 9, 10 and 11 (as amended from time to time) of the Rules of the Supreme Court of Appeal of South Africa regarding taxation and attorneys' fees apply, with the changes required by the context. 2. In the event of oral and written argument, a fee for written argument may in appropriate circumstances be allowed as a separate item. 3. When the Labour Appeal Court sits as a court of first instance, the provisions of rule 24 of the Labour Court Rules apply. Rules for the Conduct of Proceedings in the Labour Appeal Court 14. Commencement of rules These rules will come into operation on the day that the whole of the Act comes into operation. Commission for Conciliation, Mediation and Arbitration Tariff of Fees (SEE ANNEXURE) Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes through Conciliation and at Arbitration Proceedings The governing body of the Commission for Conciliation, Mediation and Arbitration hereby in terms of section 115(6) of the Labour Relations Act, 1995 (Act No. 66 of 1995), publishes the undermentioned rules made in terms of section 115(2)(cA)(iii) and (iv). Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 1. Definitions Any expression in these rules (an italicised word or phrase indicates that the word or phrase is defined in these definitions and/or Section 213 of the Act ) that is defined in the Labour Relations Act, 1995 (No. 66 of 1995), has the same meaning as in that Act, and- "Act" means the Labour Relations Act, 1995 (Act No. 66 of 1995), and includes any regulation made in terms of that Act ; "association" means any unincorporated body of persons; "Commission" means the Commission for Conciliation, Mediation and Arbitration established by section 112 of the Act ; "commissioner" means a commissioner appointed in terms of section 117 of the Act ; "day" means any day excluding a Saturday, Sunday, public holiday and the days in the period from 16 December to 7 January, both days inclusive; when any particular number of days is prescribed for the doing of any act, the number of days must be calculated by excluding the first day and including the last day, unless the last day falls on a Saturday, Sunday, public holiday or on a day during the period 16 December to 7 January, in which event the number of days must be calculated to exclude the first day and also such last day; "deliver" means serve on other parties and file with the Commission ; "director" means the director of the Commission appointed in terms of section 118 of the Act ; "Judge President" means the Judge President of the Labour Court ; "Labour Court" means the Labour Court established by section 151 of the Act and includes any judge of the Labour Court; "party" means any party to proceedings before the Commission; "public holiday" means a public holiday referred to in section 1 of the Public Holidays Act, 1994 (Act No. 36 of 1994); "registrar" means the registrar of the Commission appointed in terms of section 120 of the Act , or any other person authorised to act in the place of the registrar; "Regulations" means the General Regulations published under Government Notice No. R. 1737 of 1 November 1996; "Rules" means these rules and includes any footnote to a rule; "senior commissioner" means a senior commissioner appointed in terms of section 117 of the Act and includes any person delegated by a senior commissioner to perform any of the functions of a senior commissioner; "serve" means to serve in accordance with rule 3 and "service" has a corresponding meaning; "taxing officer" means any employee of the Commission appointed by the director in terms of rule 15. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 2. Addresses of the Commission and Office Hours 2.1 The address of the head office of the Commission is as follows: CCMA HEAD OFFICE Physical address: The National Registrar CCMA House 20 Anderson Street Johannesburg. Postal address: Private Bag X094 Marshalltown 2107. Telephone: (011) 377-6500. Fax: (011) 834-7351. 2.2 The addresses of the provincial offices of the CCMA are as follows: CCMA EASTERN CAPE Physical address: The Registrar 107 Govan Mbeki Avenue Port Elizabeth. Postal address: Private Bag X22500 Port Elizabeth 6000. Tel: (041) 586-4466. Fax: (041) 586-4585/6. CCMA FREE STATE Physical address: The Registrar Cnr Elizabeth & West Burger Streets Bloemfontein. Postal address: Private Bag X20705 Bloemfontein 9300. Tel: (051) 505-4400. Fax: (051) 448-4468/9. CCMA GAUTENG Physical address: The Registrar CCMA House 20 Anderson Street Johannesburg. Postal address: Private Bag X096 Marshalltown 2107. Tel: (011) 377-6600. Fax: (011) 377-6658; or 377-6680; or 377-6804; or 377-6618; or 377-6678; or 834-7331. CCMA KWAZULU-NATAL Physical address: The Registrar Garlicks Chambers 61 Field Street Durban. Postal address: Private Bag X54363 Durban 4000. Tel: (031) 306-5454. Fax: (031) 306-5401/4. CCMA MPUMALANGA Physical address: The Registrar Foschini Centre Eadie Street Witbank. Postal address: Private Bag X7290 Witbank 1035. Tel: (013) 656-2800. Fax: (013) 656-2885/6. CCMA NORTH WEST Physical address: The Registrar 47-51 Siddle Street Klerksdorp. Postal address: Private Bag X5004 Klerksdorp 2571. Tel: (018) 462-3137. Fax: (018) 462-4126. CCMA NORTHERN CAPE Physical address: The Registrar 1A Bean Street Kimberley. Postal address: Private Bag X6100 Kimberley 8300. Tel: (053) 831-6780. Fax: (053) 831-5947/8. CCMA NORTHERN PROVINCE Physical address: The Registrar 104 Hans van Rensburg Street Pietersburg. Postal address: Private Bag X9512 Pietersburg 0700. Tel: (015) 297-5010. Fax: (015) 297-5017. CCMA WESTERN CAPE Physical address: The Registrar 78 Darling Street Cape Town. Postal address: Private Bag X9167 Cape Town 8000. Tel: (021) 469-0111. Fax: (021) 45-7197. 2.3 The head office and the provincial offices of the Commission will be open every Monday to Friday, excluding public holidays , between the hours of 08:30 and 16:30 or as determined by the Commission. 2.4 Documents must be filed with the Commission during the hours referred to in rule 2.3. The Commission may direct that service should be effected on any day at any time. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 3. Service of Documents 3.1 A party must serve a document in terms of the provisions of the Act , and may also serve in any one of the following ways: a) i) By personally handing a copy of the document to the person concerned; ii) by leaving a copy of the document at the person's place of residence or business with any other person who is apparently at least 16 years old and in charge of the premises at the time; iii) by leaving a copy of the document at the person's place of employment with any other person who is apparently at least 16 years old and apparently in authority; iv) by faxing a copy of the document to the person, if the person has a fax number; v) subject to rule 3.1(b)(i), by handing a copy of the document to any representative authorised in writing to accept service on behalf of the person; vi) if the person has chosen an address or fax number for service, by leaving a copy of the document at that address or by faxing it to that fax number; vii) by sending a copy of the document by registered post to the last-known address of the party concerned, and, unless the contrary is proved, it will be presumed that service was affected on the seventh day following the day on which the document was posted; b) i) if the person is a company or other body corporate, by- aa) Handing a copy of the document to a responsible employee of the person at its registered office or its principal place of business within the Republic, or its main place of business within the magisterial district in which the dispute first arose; or bb) if there is no employee willing to accept service, affixing a copy of the document to the main door of the office or place of business; ii) if service is to be effected on an employer, by handing a copy of the document to a responsible employee of the employer apparently in charge of the workplace where the employee(s) involved in the dispute ordinarily work(s) or worked; iii) if the person is a trade union or employers' organisation, by handing a copy of the document to a responsible employee or official at the main office of the union or employers' organisation or the union's or or employers' organisation's office within the magisterial district in which the dispute first arose, or, if there is no person willing to accept service, by affixing a copy of the document to the main door of that office; iv) if the person is a partnership, firm or association , by handing a copy of the document to a responsible employee or official at the place of business of such partnership, firm or association or, if such partnership, firm or association has no place of business, by serving a copy of the document on a partner, the owner of the firm or the chairperson or secretary of the managing or other controlling body of such association, as the case may be; v) if the person is a municipality, by handing a copy of the document on the town clerk, assistant town clerk or any person acting on behalf of that person; vi) if the person is a statutory body, by handing a copy to the secretary or similar officer or member of the board or committee of that body, or any person acting on behalf of that body; vii) if the person is the State or a province, a national government department of a provincial department, or a minister or a premier or a member of the executive committee of a province, by handing a copy to a responsible employee at the head office of such party or to a responsible employee at any office of the State Attorney; or c) by any other means authorised by the Commission . 3.2 Service is proved to the Commission in terms of regulation 2 of the Regulations , by providing the Commission with- a) a copy of the proof of mailing the referral, objection or other document by registered post to the other party; b) a copy of the fax communicating the referral, objection or other document to the other party; c) a copy of a receipt signed by the other party or on that party's behalf if the copy of the referral, objection or other document was delivered by hand; d) a statement confirming service signed by the person who delivered a copy of the referral, objection or other document to the other party. 3.3 Proof of service in terms of rule 3.2 shall serve as a prima facie proof that the contents of the document concerned have come to the knowledge of the party on which it was served ; provided that the CCMA or the Commissioner has a discretion to make any order as to service that he, she or it deems fit. 3.4 lf service is effected in any other manner than prescribed in this rule the Commissioner dealing with the matter shall have a discretion whether or not to accept such service as sufficient. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 4. Filing of Documents 4.1 Documents may be filed with the Commission in any one of the following ways: a) By handing the document to the office of the provincial registrar ; b) by sending a copy of the document by registered post to the Commission; or c) by faxing the document to the Commission at the fax numbers listed for each province in rule 2. 4.2 A document is filed with the Commission on- a) the date on which the document is handed to the office of the provincial registrar; b) the date on which the document sent by registered post is received by the Commission; or c) completion of the whole of the transmission of a fax. 4.3 In the case of filing by faxing the document, the original document must be lodged within five days of the Commission requesting it. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 5. Referral for Conciliation 5.1 A referral to a dispute for conciliation must comply with regulation 11(2) of the Regulations on LRA Form 7.11 ("the referral document") and must be signed by the referring party. 5.2 The referring party must attach to the referral document written proof, as set out in rule 3.2, that the referral document was served on the other party/parties to the dispute. 5.3 If it is necessary to apply for condonation because the referral is being served out of time, the referring party/parties must at the time of the referral comply with the provisions of rule 19 and set out the grounds on which condonation is sought by attaching to the referral document details of the following: a) The degree of lateness; b) the reasons for the lateness; c) the referring party's prospects of succeeding with the referral and obtaining the relief sought against the other party; and d) the balance of convenience, including any prejudice to the other party. 5.4 The Commission must refuse to accept a referral document until such time as rule 5.1 to 5.3 have been complied with. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 6. Jurisdiction to Conciliate 6.1 The commissioner appointed to conciliate the dispute may only conciliate the dispute and thereafter issue a certificate in terms of section 135 (5) of the Act if the Commission has jurisdiction to conciliate the dispute. 6.2 If at any stage during the conciliation proceedings it becomes apparent that there is a jurisdictional issue which has not been determined, the commissioner must require the referring party to prove that the Commission has the necessary jurisdiction to resolve the dispute through conciliation. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 7. Conciliation 7.1 The Commission must give the parties at least 10 days' notice of a conciliation hearing unless otherwise agreed. 7.2 A conciliation may only be attended by the parties to a dispute, their representatives referred to in section 135 (4) of the Act, and such other persons who, in the discretion of the Commissioner, are allowed to attend. 7.3 Conciliation proceedings are private and confidential and are conducted on a without prejudice basis so that no party may make reference to statements made at conciliation proceedings during any subsequent proceedings unless the parties have so agreed in writing. 7.4 Neither the commissioner dealing with the conciliation process nor anybody else attending the conciliation hearing may be called as a witness during any subsequent proceedings to give evidence about what transpired during the conciliation process. 7.5 The parties may during the conciliation process agree on the nature of the dispute, whereupon the conciliating commissioner may attempt to resolve that dispute and, should this not be possible, may issue a certificate of non-resolution in respect of that dispute even though the description of it may be different from the description of the dispute contained in the referral document. 7.6 In the event of disagreement regarding the nature of a dispute, the conciliating commissioner must issue a certificate of non-resolution in respect of the dispute as identified by the commissioner in the conciliation process. 7.7 If a referring party fails to attend a conciliation hearing at the scheduled time, the referral will be regarded as having been abandoned by the referring party. If the referring party later decides to pursue the matter, the referring party will have to refer the dispute again under the same case number and if necessary, apply for condonation explaining- a) the degree of lateness; b) the reasons for the lateness; c) the referring party's prospects of succeeding with the referral and obtaining the relief sought against the other party; d) the balance of convenience, including any prejudice to the other party; and e) why the referring party did not attend the initial conciliation hearing. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 8. Referral for Arbitration 8.1 A referral of a dispute to arbitration must be in accordance with regulation 11(1) of the Regulations in the form of LRA Form 7.13 ("the referral document") and must be signed by the referring party . 8.2 The referring party, must attach to the referral document written proof, as set out in rule 3.2, that the referral document was served on the other party/parties to the dispute. 8.3 If it is necessary to apply for condonation because the referral for arbitration is being served out of time, the referring party must comply with the provisions of rule 19 and set out the grounds on which condonation is sought by attaching to the referral document details of the following: a) the degree of lateness; b) the reasons for the lateness; c) the referring party's prospects of succeeding with the referral and obtaining the relief sought against the other party; and d) the balance of convenience, including any prejudice to the other party. 8.4 The Commission must refuse to accept a referral document until such time as rule 8.1 to 8.3 have been complied with. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 9. Jurisdiction to Arbitrate 9.1 The commissioner appointed to arbitrate the dispute may only arbitrate the dispute if the Commission has jurisdiction to arbitrate the dispute. 9.2 If at any stage during the arbitration proceedings it becomes apparent that there is a jurisdictional issue which has not been determined, the commissioner must require the referring party to prove that the Commission has the necessary jurisdiction to resolve the dispute. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 11. Conciliation or Arbitration Venue 11.1 A dispute will be conciliated/arbitrated in the province in which the cause of action arose unless a senior commissioner in the head office of the Commission decides otherwise. 11.2 The provincial office of the Commission decides the venue where the conciliation/aribtration proceedings are to be held. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 12. Joinder of Parties/Amendment of Citations/Substitution of Parties and Consolidation of Proceedings 12.1 The Commission may combine cases or join parties in proceedings, if the right to relief depends on the determination of substantially the same question of law or fact. 12.2 a) The Commission may, of its own accord or on application and after notifying every other party , make an order joining any person as a party in the proceedings if the party to be joined has a substantial interest in the subject matter of the proceedings. b) When making an order in terms of paragraph (a), the Commission may give such directions as to the further procedure in the proceedings as it deems fit. 12.3 At any stage of the proceedings any person entitled to join as a party to any proceedings may, on notice to all parties, apply for leave to join as a party. The Commission may make an order to give such directions as to the further procedure in the proceedings as it deems fit. 12.4 If a party to any proceedings has been incorrectly or defectively cited, the Commission may, on application and on notice to the party/parties concerned, correct the error or defect. 12.5 If in any proceedings it becomes necessary to substitute a person for an existing party, any party to such proceedings may, on application and on notice to every other party, apply to the Commission for an order substituting that person for an existing party and the Commission may make such order or give such directions as to the further procedure in the proceedings as it deems fit. 12.6 If a commissioner has been appointed to arbitrate a dispute in terms of section 136 (1) of the Act, in respect of more than one dispute involving the same parties, that commissioner may consolidate the arbitration proceedings so that all the disputes concerned may be dealt with in the same proceedings. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 13. Witness Fees 13.1 A witness subpoenaed in any proceedings in the Commission is entitled to be paid in accordance with the tariff of allowances prescribed and published by notice in the Government Gazette in terms of section 142 (7) of the Act 13.2 Despite rule 13.1, the Commission may order that no allowances or only a portion of the prescribed allowances be paid to any witness. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 14. Costs 14.1 An award or order of the Commission , or an agreement of the parties, may allow the fees of one advocate and one attorney between any parties to proceedings before the Commission, unless the Commission on application authorises the fees of additional advocates and attorneys. 14.2 The fees of any additional advocate authorised in terms of rule 14.1 must not exceed one half of those of the first advocate, unless the Commission directs otherwise. 14.3 The costs between any parties to proceedings before the Commission must be calculated and taxed by the taxing officer at the tariff determined by the award, ruling or agreement. If the award, ruling or agreement does not specify a tariff, the tariff applicable in the High Court will apply. 14.4 Qualifying fees for expert witnesses may not be recovered as costs between any parties to proceedings before the Commission unless otherwise directed by the Commission during the proceedings. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 15. Taxation 15.1 The director may appoint any person a taxing officer if the person is in the opinion of the director able to perform the functions of a taxing officer in terms of these Rules . The director will determine the terms and period of appointment of the taxing officer. 15.2 The taxing officer must tax any bill of costs for services actually rendered in connection with proceedings in the Commission . 15.3 At the taxation of any bill of costs, the taxing officer may call for any book, document, paper or account that in the taxing officer's opinion is necessary to properly determine any matter arising from the taxation. 15.4 Any person requesting a taxation must satisfy the taxing officer that the party liable to pay the bill has received notice of- a) the time and place of the taxation; and b) that party's entitlement to be present at the taxation. 15.5 Despite rule 15.4 notice need not be given to a party- a) who failed to appear at the hearing either in person or through a representative; or b) who consented in writing to the taxation taking place in that party's absence. 15.6 Any decision by a taxing officer is subject to the review of the Labour Court on application. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 16. Motion Roll Preliminary matters such as applications for condonation, jurisdictional disputes and other interlocutory matters may be heard on a motion roll. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 17. Postponements 17.1 Postponement will be granted without the need for the parties to appear if both of the following conditions are met: a) All the parties to the dispute agree in writing to the postponement; and b) the request for the postponement is received by the Commission more than 10 days prior to the scheduled date of the arbitration. 17.2 a) A formal application in writing for postponement must be made if- i) The parties cannot agree whether or not an arbitration should be postponed; or ii) the request for a postponement is made within 10 days of the scheduled date of arbitration. b) The application must be served before the scheduled date for the arbitration. The Commission must decide whether to grant the request for a postponement on the written document presented or whether to convene a formal hearing. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 18. Subpoenas 18.1 Any party who requires the Commission to subpoena a person in terms of section 142 (1) of the Act must file a completed subpoena form together with a written explanation of why the evidence of the witness to be subpoenaed is necessary. 18.2 The application must be filed with the Commission within five days of receipt of the notice of the arbitration hearing or as directed by the commissioner hearing the arbitration. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 19. Applications/Motion Proceedings in respect of preliminary matters such as applications for Condonation, Jurisdictional Disputes, Variation and Rescission Applications and other Interlocutory Applications 19.1 An application must be brought on notice to all persons who have an interest in the application. 19.2 The party bringing the application must sign the notice of application. The application must be delivered and must contain the following: a) The title of the matter; b) the case number assigned to the matter by the Commission ; c) the relief sought; d) an address of the party delivering the document at which the party will accept notices and service of all documents and proceedings; e) a notice advising the other party that if it intends opposing the matter, the party must deliver an answering affidavit within five days after the application has been served, failing which the matter may be heard in the party's absence; and f) a schedule listing the documents that are material and relevant to the application. 19.3 The application must be supported by an affidavit. The affidavit must clearly and concisely set out- a) the names, description and addresses of the parties; b) a statement of the material facts, in chronological order, on which the application is based, which statement must be in sufficient detail to enable any person opposing the application to reply to the document; c) a statement of the legal issues that arise from the material facts, which statement must be in sufficient detail to enable any party to reply to the document; and d) the relief sought. 19.4 a) Any party opposing the application may deliver a notice of opposition and an answering affidavit. b) A notice of opposition and an answering affidavit must be delivered within five days from the day on which the application is served on the party opposing the application. c) A notice of opposition and an answering affidavit must respectively contain, with the changes required by the context, the same information required by rule 19.2 and 19.3. 19.5 a) The party initiating the proceedings may lodge a replying affidavit within five days from the day on which any notice of opposition and answering affidavit are delivered. b) The replying affidavit must address only those issues raised in the answering affidavit and may not introduce new issues of fact or law. 19.6 Subject to the discretion of a commissioner , a written statement may be substituted for the affidavits referred to in rule 19.2 to 19.5. 19.7 a) The Commission must allocate a date for the hearing of the application once a replying affidavit is delivered , or once the time limit for delivering a replying affidavit has lapsed, whichever occurs first. b) The Commission must notify the parties of the date, time and place of the hearing of the application. 19.8 Notwithstanding rule 19.7, the Commission may determine an application in any manner it deems fit. 19.9 Any ruling made by a commissioner in terms of these Rules which has the effect of a final order will be regarded as an arbitration award. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 20. Arbitration The Commission must give the parties 15 days' notice of an arbitration hearing, unless otherwise agreed. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 21. Representation at Arbitration 21.1 Section 138 (4) read with section 140 of the Act explicitly states who may appear or be represented in arbitration proceedings. A commissioner has no discretion to permit any person other than those listed in that section to appear or act as a representative even if the other parties have no objection. 21.2 If a party to the dispute objects to the representation of another party to the dispute or the commissioner suspects that the representative of one of the parties to the dispute does not fall within the ambit of section 138, the commissioner must determine this issue. 21.3 A dispute concerning the status of a representative in terms of section 138 is a factual dispute. The commissioner may call upon the representative whose status is being contested to demonstrate why he or she should be admitted as a representative in terms of section 138. The commissioner may request the production of documentation such as constitutions, payslips, the contract of employment, the prescribed form listing the directors of a company, recognition agreements, proof of trade union membership etc. Representatives must be prepared to tender evidence in support of their status. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 22. Production of Documents The parties may in respect of the production of documents relevant to the issues in dispute either come to an agreement over the production of the documents or approach the commissioner appointed to hear the case for an appropriate order. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 23. Failure to Attend Arbitration Hearing 23.1 If a party fails to appear in person or to be properly represented at a scheduled arbitration hearing, the commissioner may act in terms of section 138 (5) of the Act . 23.2 The commissioner must be satisfied that the parties have been properly notified of the date, time and venue of the arbitration proceedings, before making any decision in terms of section 138 (5). 23.3 The Commission must notify the parties if a matter is dismissed. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 24. Variation or Rescission of Arbitration Awards or Rulings 24.1 An application for the variation or rescission of an arbitration award or ruling must comply with the provisions of rule 19. 24.2 The application must be made within 10 days of the date on which the applicant became aware of- a) the arbitration award or ruling; or b) a mistake common to the parties to the proceedings. 24.3 The commissioner who issued the arbitration award or ruling must hear the application for variation/rescission in terms of section 144 of the Act, provided that the Commission may, on good cause shown, appoint any commissioner to hear the application. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 25. Application to refer a Dismissal Dispute to the Labour Court 25.1 An application contemplated in section 191(6) of the Act must be served and filed with the Commission within the time prescribed for delivering a request for arbitration or within five days of the referral for arbitration, whichever is the later. 25.2 The application must state the grounds on which a party relies in requesting that the dispute be referred to the Labour Court . 25.3 If any party to the dispute objects to the matter being referred to the Labour Court, that party must state the grounds for the objection within five days of receipt of the application. 25.4 Within ten days from the date on which the objection was filed or should have been filed, the Commission must notify the parties of its decision in terms of section 191 (8). Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 26. The Commission as a Court of Record in Arbitration Proceedings 26.1 The Commission must keep a record of- i) any evidence given in an arbitration hearing; and ii) any arbitration award or ruling made by a commissioner . 26.2 The record may be kept as handwritten notes or an electronic recording. 26.3 After the person who made the handwritten notes or electronic recording has certified it as correct, it must be filed with the provincial registrar . 26.4 A party to the arbitration proceedings may request a copy of the transcript of the handwritten notes, the recording or a portion of the recording, upon payment of the cost, of transcribing the notes, recording and/or portion of the recording. 26.5 After the person who made the transcript of the handwritten notes, recording and/or portion of the recording has certified that it is correct, the transcript of the handwritten notes and/or the electronic recoding must be returned to the provincial registrar. 26.6 The transcript of the handwritten notes and/or electronic recording so certified as correct will serve as prima facie proof of its correctness unless the Labour Court decides otherwise. Commission for Conciliation, Mediation and Arbitration Rules regulating the Practice and Procedure for Resolving Disputes 27. Repeal of Commission's Guidelines These rules repeal all previous guidelines of the Commission published in the Government Gazette. Labour Market and Human Resource Development for Job Creation Social Plan I, Membathisi Mphumzi Sheperd Mdladlana, Minister of Labour, hereby publish for general information the undermentioned Social Plan which flowed from the Presidential Job Summit. M.M.S. Mdladlana Minister of Labour Labour Market and Human Resource Development for Job Creation Social Plan Foreword by the Minister of Labour South Africa is currently reeling from the news that several employers are planning to retrench large numbers of workers. The combined effect of all of these retrenchments, if they take place, is an alarming increase in unemployment and poverty. Whatever the underlying economic reasons, the effect on affected individuals and regions is severe, particularly in a context where unemployment is already way too high. The Social Plan is an agreement concluded at the Presidential Job Summit last year. It seeks to put in place three sets of measures: the first set of interventions seek to prevent retrenchments taking place at all; the second seek to ensure that where they are unavoidable then they are managed humanely; and thirdly where large scale retrenchments have taken place then measures to assist the affected individuals and communities to find alternative forms of employment or sustainable livelihoods are in place. Implementation of the agreement has already commenced: the National Productivity Institute is in the process of establishing the Social Plan Technical Support Facility. This facility is intended to support firms that establish Future Forums. We intend to more actively promote the establishment of Future Forums so that employers and workers can together anticipate crises and plan more constructive alternatives to retrenchment. If retrenchments are unavoidable, my Department has already commenced with the delivery of retrenchment services and firms facing large scale retrenchments (over 500) are invited to contact the provincial Department of Labour offices for assistance in this regard. Over and above this, we have begun to work together with other agencies - particularly local authorities in areas affected by large-scale retrenchment - to assist individuals and communities to develop alternative forms of employment. The success of the Social Plan depends on all of the social partners working together. Unless we do, we shall fail to assist affected individuals and regions and our society will suffer the consequences. The time to implement the spirit as well as the letter of this agreement is NOW. M.M.S. Mdladlana Minister of Labour Labour Market and Human Resource Development for Job Creation Social Plan 1. Introduction 1. A proposal on a Social Plan Act was tabled by labour on 12 October 1995 in the Trade and Industry chamber of the National Economic Development and Labour Council (NEDLAC). It was agreed by the Management Committee of NEDLAC on 13 October 1995 to establish a task team comprising of delegates from the Trade and Industry and Labour Market chambers. 2. The task team has been meeting for over two years and has reached agreement on the framework to guide affected parties on the ways of dealing with large retrenchments in all sectors and includes a broad proposal on the implementation of the framework agreement. Labour Market and Human Resource Development for Job Creation Social Plan 2. Objectives Noting that: 1. Growth and job creation are urgent priorities, the social plan approach aims to avoid job losses and employment decline wherever possible. There would nevertheless be instances where large job losses are unavoidable. In such cases the social plan approach will seek to actively manage retrenchments and to ameliorate their effects on individuals and local economies. It is agreed that: 2. The social partners accept that the burden of employment decline should not be borne by the affected individuals and regions alone. Rather a social plan approach should be adopted which helps to reintegrate retrenched people into the economy, and which helps to revitalise affected local economies. 3. The NEDLAC parties support the promotion of policies designed to ameliorate the consequences of employment decline and to manage the process of down-scaling. Labour Market and Human Resource Development for Job Creation Social Plan 3. Principles 1. The NEDLAC parties have committed themselves to the following principles which define the social plan approach: 2. A social plan approach is applicable where there is a threat of large scale retrenchments which impact on sectoral, regional or national interests. 3. The social plan approach aims to ameliorate the social and economic impact for individuals, regions and the economy. 4. A social plan approach promotes negotiation about threats to employment security and measures which can be taken to avoid employment decline. 5. A social plan approach is essential in cases where there is a reasonable possibility that alternatives could be developed to save jobs. 2. The nature of the social plan approach 3. A social plan comprises a basket of instruments characterised by focused programmes directed at achieving short, medium and long term goals. 4. A social plan approach requires the participation of labour, government and business and will involve interventions at various levels. 5. The social plan approach is subject to the Labour Relations Act, 1995, and the Code of Good Practice on Dismissals for Operational Requirements. 6. While the social plan approach will assist parties with appropriate measures and in obtaining government assistance, it does not prevent them from pursuing alternative strategies to achieve the same goals. Labour Market and Human Resource Development for Job Creation Social Plan 4. The Establishment of Future Forms 1. A social plan approach is most effective when it arises from timeous analysis of problems in a particular sector or company, because this makes it possible to explore appropriate solutions and to implement these in a properly planned way. 2. If attempts at developing a social plan wait until a retrenchment proposal is tabled, then there are often serious time limitations on the process, and the options available are therefore far more limited. 3. NEDLAC parties should therefore promote ongoing discussions between workers' representatives and employers about the future of their industries, and enterprises, and set up 'early warning systems' that can identify problems timeously. 4. The establishment of future forums, whether separately or part of existing bargaining forums, is therefore proposed. These forums will involve employees and their representatives and management, to look ahead at problems, challenges and possible solutions. Labour Market and Human Resource Development for Job Creation Social Plan 5. Social Plan Technical Support Facility (SPTSF) 1. The Terms of Reference for the SPTSF 2. It is agreed that the Productivity Advisory Council will be renamed as the Social Plan and Productivity Advisory Council (SPPAC). 3. The Department of Labour will establish a Social Plan Technical Support Facility (SPTSF), under the auspices of the SPPAC. 4. In consultation with the SPPAC and after approval by the Minister, the SPTSF shall publish the rules of operation and the criteria for assistance which will be based on the principles of the Social Plan framework. 5. Future forums may agree to approach the proposed SPTSF for technical assistance in the careful analysis of problems and solutions facing the sector or enterprise. 6. Subject to the agreed criteria and availability of resources, the SPTSF may provide or commission the expertise necessary to provide technical or advisory services to the parties as required. Resources available at the National Productivity Institute (NPI) will also be accessed where appropriate, and the NPI will be used to give infrastructure assistance to the SPTSF. The terms of reference would need to be agreed with the parties. 7. The implementation of proposals arising from the SPTSF process would need to be agreed to by the employer and worker parties affected. 8. The SPTSF process will operate within the requirements of the law dealing with fair retrenchment procedures. 2. Functions of the SPTSF 3. Services available to all companies and unions: a. The SPTSF will provide a 'one stop shop' through which companies and unions can access information about government assistance programmes. b. The SPTSF will develop a register of technical experts that may assist the parties where jointly requested in an analysis of problems and an identification of possible solutions. 4. Services available to "troubled" sectors or industries: a. The Social Plan will prioritise sectors or industries that are in decline, and resources will be targeted at providing meaningful assistance to troubled sectors or industries. b. To be defined as a "troubled" sector or industry both representative unions and employers should jointly apply to the Productivity and Social Plan Advisory Council, which will be tasked with prioritising sectors or industries for social plan services. c. The SPTSF will meet with sectors or industries prioritised as above, to agree on a programme to identify and/or address the problems. The SPTSF will provide or access the following standard services: i. An in-depth sectoral or industry study to analyse the underlying reasons for the threat and to recommend proposed solutions. All employers and unions in the sector can request a copy of the study. ii. The SPTSF will facilitate access to government assistance programmes for the implementation of agreed solutions where jointly requested by the parties. d. In addition, the SPTSF will provide or secure the following additional services on a shared cost basis: i. Desk studies for individual companies within the sector, where jointly requested to analyse the problem and identify possible solutions. ii. Where the desk study indicates that the prognosis for saving jobs is good, the SPTSF will develop more in-depth proposals in this regard when jointly requested. 5. Services available to companies outside the "troubled sectors" a. It is recognised that companies outside of the prioritised sectors may face large scale job loss. A limited facility is therefore made available to address such situations. b. In such situations the company represented by management and the representative union/employees would apply to the Social Plan and Productivity Advisory Council or its delegated authority for assistance when faced with large-scale retrenchments. c. The SPTSF would provide or secure the following services, on a shared cost basis, to successful applicants: i. Desk studies to analyse the problem and identify possible solutions where requested by unions and employers, jointly. ii. Where the desk study indicates that the prognosis for saving jobs is good, the SPTSF will develop more in-depth proposals in this regard where jointly requested; iii. The SPTSF will facilitate access to government assistance programmes for the implementation of agreed solutions where jointly requested. 6. Notwithstanding clauses 5.2.2 and 5.2.3, the parties are free to seek alternative remedies. Labour Market and Human Resource Development for Job Creation Social Plan 6. Ministerial Notification and Department of Labour Services 1. In the event that a retrenchment in excess of 500 people or 10% of the labour force of a company (whichever is the greater) is proposed, within a one year period, the Minister of Labour must be notified by the employer. 2. Where the Labour Relations Act procedures and codes have been followed, and large scale retrenchments are anticipated, assistance may be requested from the Department of Labour. Labour Market and Human Resource Development for Job Creation Social Plan 7. Services Offered by the Department of Labour 1. When a large scale retrenchment is unavoidable, the retrenching enterprise may approach the Department of Labour's provincial offices for assistance. The provision of various services will aim to assist in easing the process of retrenchment. This assistance will include offering information and delivering services to retrenched workers and employers to promote re-absorption of retrenched workers into the labour market. To maximise the potential benefit of the services the parties are encouraged to jointly approach the Department of Labour. 2. The services which will be provided by the Department of Labour are divided into two separate categories, namely: 3. Standard generic services offered, as set out in 7.4, across the board to employers, groups and individuals without charge. 4. Additional services offered, as set out in 7.5, by agreement only and which will probably require payment. 3. Delivery of Services: 4. When requested by an enterprise facing retrenchments of 500 workers or 10% of the workforce, whichever is greater, the Department of Labour will: a. Set up a Retrenchment Response Team (RRT) competent in employment services, human resource development and the unemployment insurance fund (UIF). Where necessary services linked to Labour Relations and Occupational Health and Safety will also be included. The RRT will liaise with the enterprise at the request of the workers and employers. The Department of Labour, with both workers' representatives and employers, will form a committee to determine: i. The type of standard and additional services to be provided to the retrenchees. ii. The financial resources needed to cover additional services where agreed upon and the extent of resource allocation from each partner. iii. The time and people needed to offer these services. iv. The technical resources needed to deliver an effective service. v. Mechanisms on how to inform retrenchees on the purpose of the Job Advice Centre (see below). b. A Job Advice Centre (JAC) will be opened on or close to the premises of the enterprise. It is the responsibility of the employers of the enterprise and/or worker representative to find a suitable venue for the JAC as well as for any group meetings which may be agreed, if the enterprise's own premises are not available. Depending on the number of retrenchees and any negotiated agreement between workers, employers and the Department of Labour, the JAC will offer the selected choice of services preferably 5-10 working days before retrenchees leave the service of the enterprise. Standard as well as additional services will be offered during this time period provided it is practical. 5. Where there is a large scale retrenchment which affects fewer than 500 workers, either party may approach the Department of Labour's provincial office or Labour Centre for standard services outlined in 7.4 below. These services will be provided at the Department of Labour's offices. Additional services may be provided on agreement between the parties and on condition that resources are available. 4. Standard services to be offered 5. A set of information packs in preferred official languages will be made available to workers who are facing retrenchment and to managers planning retrenchments. The information packs will consist of comprehensive information and support measures available to retrenchees on such issues as UIF benefits, financial management, training and job seeking skills. 6. The Department of Labour will be responsible for the registration of workseekers. 7. Where available, information would be disseminated on the labour market, local economic development possibilities (in collaboration with Department of Constitutional Development) and on skills required in the area or in the workers' home area to assist workers in identifying other employment opportunities. 5. Additional services to be offered as agreed in point 7.3.2 above 6. In addition, the Department of Labour will be able to offer further services on the basis of specific agreements between the Department, employers and the workers' representatives at the enterprise. 7. Funding of additional services will have to be agreed to between the parties. These services may require contracting professional consultants. In which case a reasonable notice period may be necessary. The additional services may include: a. Group and individual counselling to assist workers in dealing with the emotional impact and adjust to the new conditions. b. Skills assessment and certification of prior learning to facilitate new employment through awarding of formal qualifications where appropriate. c. Assessment of potential and development of a career plan in order to help workers to identify their options and assist them in the choices they have to make between further skills training, small, micro and medium enterprise (SMME) training and/or finding new employment. d. Training and retraining of workers, in line with the Skills Development Strategy, to facilitate the channelling of retrenched workers into new employment. e. Placement service. Labour Market and Human Resource Development for Job Creation Social Plan 8. Support to Small, Micro and Medium Size Enterprises (SMMEs) There may be people affected by down-scaling operations who are keen to start their own enterprise. In this context, the following options may be considered jointly by workers' representatives and enterprises: 1. Facilitation of links with a Local Business Service Centre or other appropriate support institutions. 2. Delivery of business support services to workers while they are still at work and can explore the options. 3. Assistance and mentoring in feasibility studies and the development of business plans. 4. Inclusion of business and technical training for self-employment in the range of the Department of Labour's services. 5. Provision of time-off so that workers can undergo such training before they leave their workplace. 6. Identification by the company of opportunities to supply it with goods or services. (1) 7. Development of a joint workers' representative and enterprise programme to assist employees to open bank accounts. (2) 8. Engagement with the banks and other lending institutions to explore and facilitate arrangements for workers who want to use all or part of their retrenchment packages as collateral security for business loans. 9. Approaching of Ntsika, the Department of Trade and Industry's (DTI's) SMME support agency, to look at specific provisions for training and support from Local Business Service Centres to retrenchees. (1) Where these are not already provided internally. (2) Retrenchees are often unable to open bank accounts without proof of employment. Labour Market and Human Resource Development for Job Creation Social Plan 9. Regenerating Local Economics 1. General Approach 2. Once a large scale retrenchment which impacts on a region or local area becomes unavoidable, the process of social planning needs to start to look outside the enterprise to developments and opportunities in the local or provincial economy. 3. The parties support the call for the formulation and implementation of plans for the rehabilitation of areas that are being negatively affected by large scale retrenchments. 4. Government is committed to providing support to communities that take the initiative to drive economic development in their areas. Government support for such initiatives will need to be co-ordinated and be consistent with other economic and employment strategies in the area. 5. The Department of Provincial Affairs and Constitutional Development will provide a co-ordinating mechanism for communities seeking assistance in the context of large scale retrenchments. 2. Developing employment alternatives (stage one) 3. As soon as a company or sector realises that there will be large scale retrenchments which will negatively affect a local economy the following process should be followed: a. The affected parties, employers and/or workers, should inform the local or provincial government about forthcoming retrenchments. b. The relevant local or provincial authority may initiate a process that begins with a study to identify alternative opportunities in the area. The study should inform the development of a plan to ameliorate the impact of the retrenchment. The plan should build on existing information and strategies for local economic development. 4. Government is committed to providing support to this planning process by means of a centrally co-ordinated fund. 3. Implementing plans for alternative employment (stage two) 4. Once a local or provincial government has developed a plan, it will be advised by the co-ordinating government department, as to possible sources of assistance for the implementation of this plan. The sources will include existing and new support measures available from various government departments. 5. Such measures will include the following: a. The supply-side measures of the DTI and activities of the Industrial Development Corporation, Khula and the Small Businesses Development Corporation (SBDC). b. The Department of Constitutional Development's measures to support local government in local economic development. c. Project support measures from the Department of Public Works. d. Project support measures from the Department of Water Affairs. Labour Market and Human Resource Development for Job Creation Social Plan 10. Social Plan Funds 1. The social partners note the establishment of enterprise level social plan funds and agree that these should be encouraged to assist, inter alia, the funding of programmes to save jobs and social development programmes. 2. The social partners accept that government funds will not be centralised in one social plan fund at this stage but will be channelled through the relevant implementing agencies including the Departments of Labour, Trade and Industry and Constitutional Development. Labour Market and Human Resource Development for Job Creation Social Plan 11. Investigation of Additional Forms of Financial Assistance Government undertakes, within the first six months of the implementation of the national framework agreement on the social plan, to investigate the feasibility of providing additional forms of financial assistance for the development and implementation of social plans, the delivery of the Department of Labour services and for regional economic development initiatives as outlined above provided that such support: 1. Is justified within the context of a broader employment strategy. 2. Takes due account of the cost of job loss in respect of taxes to be lost and insurance to be paid. 3. Does not subsidise activities which the parties should normally undertake anyway. 4. Resources are available. (SEE ANNEXURE) Top of Form