Chapter V: Workplace Forums

78. Definitions in this Chapter

In this Chapter-

1. "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-

   1. [deleted by Labour Relations Amendment Act, 1996, Act No 42 of 1996]
   2. represent the employer in dealings with the workplace forum ; or

   3. determine policy and take decisions on behalf of the employer that may be in conflict with the representation of employees in the workplace; and

2. "representative trade union" means a registered trade union, or two or more registered trade unions acting jointly, that have as members the majority of the employees employed by an employer in a workplace.

79. General functions of workplace forum

A workplace forum established in terms of this Chapter-

1. must seek to promote the interests of all employees in the workplace, whether or not they are trade union members;
2. must seek to enhance efficiency in the workplace;
3. is entitled to be consulted by the employer, with a view to reaching consensus, about the matters referred to in section 84; and
4. is entitled to participate in joint decision-making about the matters referred to in section 86.

80. Establishment of workplace forum

1. A workplace forum may be established in any workplace in which an employer employs more than 100 employees.

2. Any representative trade union may apply to the Commission in the prescribed form for the establishment of a workplace forum.

3. The applicant must satisfy the Commission that a copy of the application has been served on the employer.

4. The Commission may require further information in support of the application.

5. The Commission must-

1. consider the application and any further information provided by the applicant; and

2. consider whether, in the workplace in respect of which the application has been made-

   1. the employer employs 100 or more employees;
   2. the applicant is a representative trade union; and
   3. 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).

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-

1. the collective agreement referred to in subsection (1) is terminated;
2. the applicant is no longer a representative trade union.

82. Requirements for constitution of workplace forum

1. The constitution of every workplace forum must-

1. establish a formula for determining the number of seats in the workplace forum;
2. establish a formula for the distribution of seats in the workplace forum so as to reflect the occupational structure of the workplace;
3. provide for the direct election of members of the workplace forum by the employees in the workplace;
4. provide for the appointment of an employee as an election officer to conduct elections and define that officer's functions and powers;
5. provide that an election of members of the workplace forum must be held not later than 24 months after each preceding election;
6. 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;
7. provide for the procedure and manner in which elections and ballots must be conducted;

8. 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-

   1. any registered trade union with members employed in the work-place; or

   2. 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;

9. provide that in any ballot every employee is entitled-

   1. to vote by secret ballot; and

   2. to vote during working hours at the employer's premises;

10. provide that in an election for members of the workplace forum every employee is entitled, unless the constitution provides otherwise-

    1. to cast a number of votes equal to the number of members to be elected; and

    2. to cast one or more of those votes in favour of any candidate;

11. establish the terms of office of members of the workplace forum and the circumstances in which a member must vacate that office;
12. 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;
13. establish the manner in which vacancies in the workplace forum may be filled, including the rules for holding by-elections;
14. establish the circumstances and manner in which the meetings referred to in section 83 must be held;
15. provide that the employer must allow the election officer reasonable time off with pay during working hours to prepare for and conduct elections;
16. 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;
17. require the employer to take any steps that are reasonably necessary to assist the election officer to conduct elections;
18. require the employer to provide facilities to enable the workplace forum to perform its functions;
19. provide for the designation of full-time members of the workplace forum if there are more than 1000 employees in a workplace;
20. 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;
21. 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;
22. provide that the representative trade union and the employer, by agreement, may change the constitution of the workplace forum; and
23. establish the manner in which decisions are to be made.

2. The constitution of a workplace forum may-

1. 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;
2. establish a co-ordinating workplace forum to perform any of the general functions of a workplace forum and one or more subsidiary workplace forums to perform any of the specific functions of a workplace forum; and
3. include provisions that depart from sections 83 to 92.

3. The constitution of a workplace forum binds the employer.

4. The Minister for the Public Service and Administration may amend the requirements for a constitution in terms of this section for workplace forums in the public service by a schedule promulgated in terms of section 207(4).

83. Meetings of workplace forum

1. There must be regular meetings of the workplace forum.

2. There must be regular meetings between the workplace forum and the employer, at which the employer must-

1. 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
2. consult the workplace forum on any matter arising from the report that may affect employees in the workplace.

3.

1. 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-

   1. its activities generally;
   2. matters in respect of which it has been consulted by the employer; and

   3. matters in respect of which it has participated in joint decision-making with the employer.

2. 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.
3. The meetings of employees must be held during working hours at a time and place agreed upon by the workplace forum and the employer without loss of pay on the part of the employees.

84. Specific matters for consultation

1. Unless the matters for consultation are regulated by a collective agreement with the representative trade union, a workplace forum is entitled to be consulted by the employer about proposals relating to any of the following matters-

1. restructuring the workplace , including the introduction of new technology and new work methods;
2. changes in the organisation of work;
3. partial or total plant closures;
4. mergers and transfers of ownership in so far as they have an impact on the employees;
5. the dismissal of employees for reasons based on operational requirements;
6. exemptions from any collective agreement or any law;
7. job grading;
8. criteria for merit increases or the payment of discretionary bonuses;
9. education and training;
10. product development plans; and
11. 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-

1. 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;
2. 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
3. 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-

1. the collective agreement referred to in subsection(1) is a collective agreement concluded in a bargaining council;
2. 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
3. subsection (3) does not apply.

85. Consultation

1. Before an employer may implement a proposal in relation to any matter referred to in section 84(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.

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-

1. disciplinary codes and procedures;
2. 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;
3. measures designed to protect and advance persons disadvantaged by unfair discrimination; and
4. 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:

1. conferring on the workplace forum the right to joint decision-making in respect of additional matters in that workplace;
2. 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-

1. refer the dispute to arbitration in terms of any agreed procedure; or
2. 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.

1. An arbitration award is about a proposal referred to in Subsection (1)(d) takes effect 30 days after the date of the award.
2. 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.
3. Despite paragraph(a), the award will not take effect pending the determination by the Labour Court of an application made in terms of paragraph (b).

9. For the purposes of workplace forums in the public service , a collective agreement referred to in subsections (1) and (2) is a collective agreement concluded in a bargaining council.

87. Review at request of newly established workplace forum

1. After the establishment of a workplace forum, the workplace forum may request a meeting with the employer to review-

1. criteria for merit increases or the payment of discretionary bonuses;
2. disciplinary codes and procedures; and
3. 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.

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)-

1. each workplace forum is entitled to make representations and participate in the arbitration proceedings; and
2. the arbitration award is binding on the employer and the employees in each workplace.

89. Disclosure of information

1. An employer must disclose to the workplace forum all relevant information that will allow the workplace forum to engage effectively in consultation and joint decision-making.

2. An employer is not required to disclose information-

1. that is legally privileged;
2. that the employer cannot disclose without contravening a prohibition imposed on the employer by any law or order of any court;
3. that is confidential and, if disclosed, may cause substantial harm to an employee or the employer; or
4. 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.

90. Inspection and copies of documents

1. Any documented information that is required to be disclosed by the employer in terms of section 89 must be made available on request to the members of the workplace forum for inspection.

2. The employer must provide copies of the documentation on request to the members of the workplace forum.

91. Breach of confidentiality

In any dispute about an alleged breach of confidentiality, the commissioner may order that the right to disclosure of information in that workplace be withdrawn for a period specified in the arbitration award.

92. Full-time members of workplace forum

1. In a workplace in which 1000 or more employees are employed, the members of the workplace forum may designate from their number one full-time member.

2.

1. 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.

2. When a person ceases to be a full-time member of a workplace forum the employer must reinstate that person to the position that person held immediately before election or appoint that person to any higher position to which, but for the election, that person would have advanced.

93. Dissolution of workplace forum

1. A representative trade union in a workplace may request a ballot to dissolve a Workplace forum.

2. If a ballot to dissolve a workplace forum has been requested, an election officer must be appointed in terms of the constitution of the workplace forum.

3. Within 30 days of the request for a ballot to dissolve the workplace forum, the election officer must prepare and conduct the ballot.

4. If more than 50 per cent of the employees who have voted in the ballot support the dissolution of the workplace forum the workplace forum must be dissolved.

94. Disputes about workplace forums

1. Unless a collective agreement or this Chapter provides otherwise, any party to a dispute about the interpretation or application of this Chapter may refer that dispute to the Commission in writing, if that party is-

1. one or more employees employed in the workplace;

   (aA) a workplace forum;

2. a registered trade union with members employed in the workplace;
3. the representative trade union; or
4. 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.