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-

1. any dispute referred to it in terms of section 134; and
2. 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-

1. this Act requires that dispute to be arbitrated and any party to the dispute has requested that the dispute be resolved through arbitration; or
2. all the parties to the dispute in respect of which the Labour Court has jurisdiction consent to arbitration under the auspices of the 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-

1. on the one side-

   1. one or more trade unions;
   2. one or more employees; or

   3. one or more trade unions and one or more employees; and

2. on the other side-

   1. one or more employers' organisations;
   2. one or more employers; or

   3. 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.

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-

1. mediating the dispute;
2. conducting a fact-finding exercise; and
3. 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-

1. a director or employee of that party; or
2. 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-

1. the commissioner must issue a certificate stating whether or not the dispute has been resolved;
2. 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
3. the commissioner must file the original of that certificate with the Commission.

6.

1. 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-

   1. to the appointment of a specific commissioner by the Commission to attempt to resolve the dispute through conciliation; and

   2. to that commissioner's terms of reference.

2. If the parties do not consent to either of those matters within the seven-day period, the Commission must as soon as possible-

   1. appoint a commissioner to attempt to resolve the dispute; and
   2. determine the commissioner's terms of reference.

136. Appointment of commissioner to resolve dispute through arbitration

1. If this Act requires a dispute to be resolved through arbitration, the Commission must appoint a commissioner to arbitrate that dispute, if-

1. a commissioner has issued a certificate stating that the dispute remains unresolved; and
2. 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.

1. 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.

2. The stated preference contemplated in paragraph (a) must-

   1. be in writing;
   2. list no more than five commissioners;
   3. state that the request is made with the agreement of all the parties to the dispute; and
   4. be submitted within 48 hours of the date of the certificate referred to in subsection (1)(a).

6. If the circumstances contemplated in subsection (1) exist and the parties to the dispute are engaged in an essential service, then the provisions of section 135(6) apply, read with the changes required by the context, to the appointment of a commissioner to resolve the dispute through arbitration.

137. Appointment of senior commissioner to resolve dispute through arbitration

1. In the circumstances contemplated in section 136(1), any party to the dispute may apply to the director to appoint a senior commissioner to attempt to resolve the dispute through arbitration.

2. When considering whether the dispute should be referred to a senior commissioner, the director must hear the party making the application, any other party to the dispute and the commissioner who conciliated the dispute.

3. The director may appoint a senior commissioner to resolve the dispute through arbitration, after having considered-

1. the nature of the questions of law raised by the dispute;
2. the complexity of the dispute;
3. whether there are conflicting arbitration awards that are relevant to the dispute; and
4. the public interest.

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

1. if the application has been granted, appoint a senior commissioner to arbitrate the dispute; or
2. 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.

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-

1. a legal practitioner ,
2. a director or employee of the party; or
3. 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-

1. had referred the dispute to the Commission, the commissioner may dismiss the matter; or

2. had not referred the dispute to the Commission, the commissioner may-

   1. continue with the arbitration proceedings in the absence of that party; or
   2. 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:

1. the commissioner must issue an arbitration award with brief reasons, signed by that commissioner;
2. 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
3. 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-

1. that gives effect to any collective agreement ;
2. that gives effect to the provisions and primary objects of this Act;
3. 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-

1. by proceeding with or defending the dispute in the arbitration proceedings; or
2. in its conduct during the arbitration proceedings.

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 -

1. 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;
2. 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
3. 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.

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-

1. the commissioner and all the other parties consent; or

2. the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering-

   1. the nature of the questions of law raised by the dispute;
   2. the complexity of the dispute;
   3. the public interest; and
   4. 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.

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.

1. 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-

   1. to stay those proceedings and refer the dispute to arbitration; or

   2. 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.

2. 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.

142. Powers of commissioner when attempting to resolve disputes

1. A commissioner who has been appointed to attempt to resolve a dispute may-

1. 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,
2. 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;
3. call, and if necessary subpoena, any expert to appear before the commissioner to give evidence relevant to the resolution of the dispute;
4. 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;
5. administer an oath or accept an affirmation from any person called to give evidence or be questioned;

6. at any reasonable time, but only after obtaining the necessary written authorisation-

   1. 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
   2. 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

   3. 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

7. 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-

1. specifically require the person named in it to appear before the commissioner;
2. sufficiently identify the book, document or object to be produced; and
3. state the date, time and place at which the person is to appear.

3. The written authorisation referred to in subsection (1)(f)-

1. 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-

   1. the nature of the dispute;
   2. the relevance of any book, document or object to the resolution of the dispute;
   3. the presence of any book, document or object on the premises; and

   4. the need to enter, inspect or seize the book, document or object; and

2. 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-

1. 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;
2. if, after having appeared in response to a subpoena, that person fails to remain in attendance until excused by the commissioner;
3. by refusing to take the oath or to make an affirmation as a witness when a commissioner so requires;
4. by refusing to answer any question fully and to the best of that person's knowledge and belief subject to subsection (6);
5. if the person, without good cause, fails to produce any book, document or object specified in a subpoena to a commissioner;
6. if the person willfully hinders a commissioner in performing any function conferred by or in terms of this Act;
7. if the person insults, disparages or belittles a commissioner, or prejudices or improperly influences the proceedings or improperly anticipates the commissioner's award;
8. by willfully interrupting the conciliation or arbitration proceedings or misbehaving in any other manner during those proceedings;
9. 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.

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.

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-

1. erroneously sought or erroneously made in the absence of any party affected by that award;
2. in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; or
3. granted as a result of a mistake common to the parties to the proceedings.

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-

1. within six weeks of the date that the award was served on the applicant, unless the alleged defect involves corruption; or
2. 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-

1. that the commissioner-

   1. committed misconduct in relation to the duties of the commissioner as an arbitrator;
   2. committed a gross irregularity in the conduct of the arbitration proceedings; or

   3. exceeded the commissioner's powers; or

2. 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-

1. determine the dispute in the manner it considers appropriate; or
2. make any order it considers appropriate about the procedures to be followed to determine the dispute.

146. Exclusion of Arbitration Act

The Arbitration Act, 1965 (Act No. 42 of 1965), does not apply to any arbitration under the auspices of the Commission.

147. Performance of dispute resolution functions by Commission in exceptional circumstances

1.

1. 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-

   1. refer the dispute for resolution in terms of the procedures provided for in that collective agreement; or

   2. appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act.

2. The Commission may charge the parties to a collective agreement a fee for performing the dispute resolution functions if-

   1. 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

   2. the procedure provided in the collective agreement is not operative.

3. The Commission may charge a party to a collective agreement a fee if that party has frustrated the resolution of the dispute.

2.

1. 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-

   1. refer the dispute to the council for resolution; or

   2. appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act.

2. 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.

1. 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-

   1. refer the dispute to the council for resolution; or

   2. appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act.

2. 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.

1. 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.
2. In the circumstances contemplated in paragraph (a), the Commission has exclusive jurisdiction to resolve that dispute.

5.

1. 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-

   1. refer the dispute to the accredited agency for resolution; or

   2. appoint a commissioner to resolve the dispute in terms of this Act.

2. The Commission may-

   1. charge the accredited agency a fee for performing the dispute resolution functions if the accredited agency's dispute resolution procedures are not operative; and
   2. 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-

1. refer the dispute to the appropriate person or body for resolution through private dispute resolution procedures; or
2. 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.

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.

149. Commission may provide assistance

1. If asked, the Commission may assist an employee or employer who is a party to a dispute -

1. 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 ;

2. together with the Legal Aid Board, to arrange for a legal practitioner-

   1. to attempt to avoid or settle any proceedings being instituted against an employee or employer in terms of this Act ;
   2. to attempt to settle any proceedings instituted against an employee or employer in terms of this Act;
   3. to institute on behalf of the employee or employer any proceedings in terms of this Act;

   4. 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

3. 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-

1. the nature of the questions of law raised by the dispute;
2. the complexity of the dispute;
3. whether there are conflicting arbitration awards that are relevant to the dispute; and
4. 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.

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.