It is hereby notified that the President has assented to the following Act
which is hereby published for general information:-
No. 66 of 1995: Labour Relations Act, 1995.
To change the law governing labour relations and, for that purpose-
to give effect to section 27 of the Constitution;
to regulate the organisational rights of trade unions;
to promote and facilitate collective bargaining at the workplace and at
sectoral level;
to regulate the right to strike and the recourse to lockout 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' organisations, and to provide for their regulation to ensure
democratic practices and proper financial control;
to give effect to the public international law obligations of the Republic
relating to labour relations;
to amend and repeal certain laws relating to labour relations; and
to provide for incidental matters.
(English text signed by the President. Assented to 29 November 1995.)
BE IT ENACTED by the Parliament of the Republic of South Africa as
follows:-
Contents of Act
1. Purpose of this Act
2. Exclusion from application of this Act
3. Interpretation of this Act
4. Employees' right to freedom of association
5. Protection of employees and persons seeking employment
6. Employers' right to freedom of association
7. Protection of employers' rights
8. Rights of trade unions and employers' organisations
9. Procedure for disputes
10. Burden of proof
Part A-Organisational Rights
11. Trade union representativeness
12. Trade union access to workplace
13. Deduction of trade union subscriptions or levies
14. Trade union representatives
15. Leave for trade union activities
16. Disclosure of information
17. Restricted rights in domestic sector
18. Right to establish thresholds of representativeness
19. Certain organisational rights for trade union party to council
20. Organisational rights in collective agreements
21. Exercise of rights conferred by this Part
22. Disputes about organisational rights
Part B-Collective Agreements
23. Legal effect of collective agreement
24. Disputes about collective agreements
25. Agency shop agreements
26. Closed shop agreements
Part C-Bargaining Council
27. Establishment of bargaining councils
28. Powers and functions of bargaining council
29. Registration of bargaining councils
30. Constitution of bargaining council
31. Binding nature of collective agreement concluded in bargaining council
32. Extension of collective agreement concluded in bargaining council
33. Appointment and powers of designated agents of bargaining councils
34. Amalgamation of bargaining councils
Part D-Bargaining Councils In The Public Service
35. Bargaining councils in public service
36. Public Service Coordinating Bargaining Council
37. Bargaining councils in sectors in public service
38. Dispute resolution committee
Part E-Statutory Councils
39. Application to establish statutory council
40. Establishment and registration of statutory council
41. Establishment and registration of statutory council in absence of
agreement
42. Certificate of registration of statutory council
43. Powers and functions of statutory councils
44. Ministerial determinations
45. Disputes about determinations
46. Withdrawal of party from statutory council
47. Appointment of new representative of statutory council
48. Change of status of statutory council
Part F-General Provisions Concerning Councils
49. Representativeness of council
50. Effect of registration of council
51. Dispute resolution functions of council
52. Accreditation of council or appointment of accredited agency
53. Accounting records and audits
54. Duty to keep records and provide information to registrar
55. Delegation of functions to committee of council
56. Admission of parties to council
57. Changing constitution or name of council
58. Variation of registered scope of council
59. Winding-up of council
60. Winding-up of council by reason of insolvency
61. Cancellation of registration of council
62. Disputes about demarcation between sectors and areas
63. Disputes about Parts A and C to F
64. Right to strike and recourse to lockout
65. Limitations on right to strike or recourse to lockout
66. Secondary strikes
67. Strike or lockout in compliance with this Act
68. Strike or lockout not in compliance with this Act
69. Picketing
70. Essential services committee
71. Designating a service as an essential service
72. Minimum services
73. Disputes about whether a service is an essential service
74. Disputes in essential services
75. Maintenance services
76. Replacement labour
77. Protest action to promote or defend socioeconomic interests of workers
78. Definitions in this Chapter
79. General functions of workplace forum
80. Establishment of workplace forum
81. Trade union based workplace forum
82. Requirements for constitution of workplace forum
83. Meetings of workplace forum
84. Specific matters for consultation
85. Consultation
86. Joint decision-making
87. Review at request of newly established workplace forum
88. Matters affecting more than one workplace forum in an employer's operation
89. Disclosure of information
90. Inspection and copies of documents
91. Breach of confidentiality
92. Full-time members of workplace forum
93. Dissolution of workplace forum
94. Disputes about workplace forums
Part A-Registration And Regulation Of Trade Unions And Employers'
Organisations
95. Requirements for registration of trade unions or employers' organisations
96. Registration of trade unions or employers' organisations
97. Effect of registration of trade union or employers' organisation
98. Accounting records and audits
99. Duty to keep records
100. Duty to provide information to registrar
101. Changing constitution or name of registered trade unions or employers'
organisations
102. Amalgamation of trade unions or employers' organisations
103. Winding-up of registered trade unions or registered employers'
organisations
104. Winding-up of trade unions or employers' organisations by reason of
insolvency
105. Cancellation of registration of trade union that is no longer independent
106. Cancellation of registration of trade unions or employers' organisations
Part B-Regulation Of Federations Of Trade Unions And Employers' Organisations
107. Regulation of federations of trade unions or employers' organisations
Part C-Registrar Of Labour Relations
108. Appointment of registrar of labour relations
109. Functions of registrar
110. Access to information
Part D-Appeals From Registrar's Decision
111. Appeals from registrar's decision
Part A-Commission For Conciliation, Mediation And Arbitration
112. Establishment of Commission for Conciliation, Mediation and Arbitration
113. Independence of Commission
114. Area of jurisdiction and offices of Commission
115. Functions of Commission
116. Governing body of Commission
117. Commissioners of Commission
118. Director of Commission
119. Acting director of Commission
120. Staff of Commission
121. Establishment of committees of Commission
122. Finances of Commission
123. Circumstances in which Commission may charge fees
124. Contracting by Commission, and Commission working in association with any
person
125. Delegation of governing body's powers, functions and duties
126. Limitation of liability and limitation on disclosure of information
Part B-Accreditation Of And Subsidy To Councils And Private Agencies
127. Accreditation of councils and private agencies
128. General provisions relating to accreditation
129. Amendment of accreditation
130. Withdrawal of accreditation
131. Application to renew accreditation
132. Subsidy to council or private agency
Part C-Resolution Of Disputes Under Auspices Of Commission
133. Resolution of disputes under auspices of Commission
134. Disputes about matters of mutual interest
135. Resolution of disputes through conciliation
136. Appointment of commissioner to resolve dispute through arbitration
137. Appointment of senior commissioner to resolve dispute through arbitration
138. General provisions for arbitration proceedings
139. Special provisions for arbitrating disputes in essential services
140. Special provisions for arbitrations about dismissals for reasons related
to conduct or capacity
141. Resolution of disputes if parties consent to arbitration under auspices
of Commission
142. Powers of commissioner when attempting to resolve disputes
143. Effect of arbitration awards
144. Variation and rescission of arbitration awards
145. Review of arbitration awards
146. Exclusion of Arbitration Act
147. Performance of dispute resolution functions by Commission in exceptional
circumstances
148. Commission may provide advice
149. Commission may provide assistance
150. Commission may offer to resolve
Part D-Labour Court
151. Establishment and status of Labour Court
152. Composition of Labour Court
153. Appointment of judges of Labour Court
154. Tenure, remuneration and terms and conditions of appointment of Labour
Court judges
155. Officers of Labour Court
156. Area of jurisdiction and seat of Labour Court
157. Jurisdiction of Labour Court
158. Powers of Labour Court
159. Rules Board for Labour Courts and rules for Labour Court
160. Proceedings of Labour Court to be carried on in open court
161. Representation before Labour Court
162. Costs
163. Service and enforcement of orders of Labour Court
164. Seal of Labour Court
165. Variation and rescission of orders of Labour Court
166. Appeals against judgement or order of Labour Court
Part E-Labour Appeal Court
167. Establishment and status of Labour Appeal Court
168. Composition of Labour Appeal Court
169. Appointment of judges of Labour Appeal Court
170. Tenure, remuneration and terms and conditions of appointment of Labour
Appeal Court judges
171. Officers of Labour Appeal Court
172. Area of jurisdiction and seat of Labour Appeal Court
173. Jurisdiction of Labour Appeal Court
174. Powers of Labour Appeal Court on hearing of appeals
175. Labour Appeal Court may sit as court of first instance
176. Rules for Labour Appeal Court
177. Proceedings of Labour Appeal Court to be carried on in open court
178. Representation before Labour Appeal Court
179. Costs
180. Service and enforcement of orders
181. Seal of Labour Appeal Court
182. Judgements of Labour Appeal Court binding on Labour Court
183. Labour Appeal Court final court of appeal
Part F-General Provisions Applicable To Courts Established By This Act
184. General provisions applicable to courts established by this Act
185. Right not to be unfairly dismissed
186. Meaning of dismissal
187. Automatically unfair dismissals
188. Other unfair dismissals
189. Dismissals based on operational requirements
190. Date of dismissal
191. Disputes about unfair dismissals
192. Onus in dismissal disputes
193. Remedies for unfair dismissal
194. Limits on compensation
195. Compensation is in addition to any other amount
196. Severance pay
197. Transfer of contract of employment
198. Temporary Employment Services
199. Contracts of employment may not disregard or waive collective agreements
or arbitration awards
200. Representation of employees or employers
201. Confidentiality
202. Service of documents
203. Codes of good practice
204. Collective agreement, arbitration award or wage determination to be kept
by employer
205. Records to be kept by employer
206. Effect of certain defects and irregularities
207. Ministers empowered to add and change to Schedules
208. Regulations
209. This Act binds the State
210. Application of Act when in conflict with other laws
211. Amendment of laws
212. Repeal of laws, and transitional arrangements
213. Definitions
214. Short title and commencement
1. Definitions for this Schedule
2. Establishment of Public Service Coordinating Bargaining Council
3. Establishment of bargaining council in sectors
1. Introduction
2. Number of seats in workplace forums (section 82(1)(a))
3. Distribution of seats to reflect occupational structure (section 82(l) (b))
4. Elections (section 82(l)(c), (d), (g), (h), (i) and (j))
5. Terms of office (section 82(l)(k), (1) and (m))
6. Meetings of workplace forum (section 82(l)(n))
7. Time off for members of workplace forum (section 82(1)(p))
8. Facilities to be provided to workplace forum (section 82(l)(r))
9. Experts (section 82(l)(t))
10. Establishment of coordinating and subsidiary workplace forums (section
82(2)(b))
1 . Remuneration and allowances of members of governing body
2. Resignation and removal from office of member of governing body
3. Vacancies in governing body
4. Proceedings of governing body
5. Director of Commission
6. Bank account
7. Investment of surplus money
8. Accounting and auditing
9. Annual report
1. Amendment of section 1 of Basic Conditions of Employment Act
2. Amendment of section 35 of Occupational Health and Safety Act, 1993
Part A-Definitions For This Schedule
1. Definitions for this Schedule
Part B-Unfair Labour Practices
2. Residual unfair labour practices
3. Disputes about unfair labour practices
4. Powers of Labour Court and Commission
Part C-Provisions Concerning Existing Trade Unions, Employers' Organisations,
Industrial Councils And Conciliation Boards
5. Existing registered trade unions and employers' organisations
6. Pending applications by trade unions or employers' organisations for
registration, variation of scope, alteration of constitution or name
7. Industrial councils
8. Pending applications by industrial councils for registration and variation
of scope
9. Pending applications by industrial councils for alteration of constitution
or name
10. Pending applications for admission of parties to industrial councils
11. Pending applications to wind up and cancel registration of trade unions,
employers' organisations and industrial councils
12. Existing agreements and awards of industrial councils and conciliation
boards
13. Existing agreements including recognition agreements
Part D- Matters Concerning Public Service
14. Public Service Bargaining Council
15. Collective agreements in the public service
16. Education Labour Relations Council
17. Education sector collective agreements
18. Negotiating Forum in South African Police Service
19. Collective agreement in South African Police Service
20. Consequences for public service bargaining institutions when Public
Service Coordinating Bargaining Council is established
Part E-Disputes And Courts
21. Disputes arising before commencement of this Act
22. Courts
Part F-Pension Matters
23. Continuation of existing pension rights of staff members of Commission
upon assuming employment
1. Introduction
2. Fair reasons for dismissal
3. Misconduct
4. Fair procedure
5. Disciplinary records
6. Dismissals and industrial action
7. Guidelines in cases of dismissal for misconduct
8. Incapacity: Poor work performance
9. Guidelines in cases of dismissal for poor work performance
10. Incapacity: III health or injury
11. Guidelines in cases of dismissal arising from ill health or injury
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 ;2
(b) to give effect to obligations incurred by the Republic as a member state
of the International Labour Organisation;
¸ 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-
1 An italicised word or phrase indicates that the word or phrase is defined
in section 213 of this Act.
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 lockout for the purpose of collective
bargaining shall not be impaired, subject to subsection 33(l)."
(i) orderly collective bargaining;
(ii) collective bargaining at sectoral level;
(iii) employee participation in decision-making in the workplace; and
(iv) the effective resolution of labour disputes.
2. Exclusion from application of this Act
This Act does not apply to members of-
(a) the National Defence Force;
(b) the National Intelligence Agency; and
¸ the South African Secret Service.
3. Interpretation of this Act
Any person applying this Act must interpret its provisions-
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
¸ 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;
¸ to stand for election and be eligible for appointment as an office bearer
or official and, if elected or appointed, to hold office; and
(d) to stand for election and be eligible for appointment as a trade union
representative and, if elected or appointed, to carry out the functions of a
trade union representative in terms of this Act or any collective agreement.
(3) Every member of a trade union that is a member of a federation of trade
unions has the right, subject to the constitution of that federation-
(a) to participate in its lawful activities;
(b) to participate in the election of any of its office-bearers or officials;
and
¸ to stand for election and be eligible for appointment as an office-bearer
or official and, if elected or appointed, to hold office.
5. Protection of employees and persons seeking employment
(1) No person may discriminate against an employee for exercising any right
conferred by this Act.
(2) Without limiting the general protection conferred by subsection (1), no
person may do, or threaten to do, any of the following-
(a) require an employee or a person seeking employment-
(i) not to be a member of a trade union or workplace forum;
(ii) not to become a member of a trade union or workplace, forum; or
(iii) to give up membership of a trade union or workplace forum;
(b) prevent an employee or a person seeking employment from exercising any
right conferred by this Act or from participating in any proceedings in terms of
this Act; or
¸ prejudice an employee or a person seeking employment because of past,
present or anticipated-
(i) membership of a trade union or workplace forum;
(ii) participation in forming a trade union or federation of trade unions or
establishing a workplace forum;
(iii) participation in the lawful activities of a trade union, federation of
trade unions or workplace forum;
(iv) failure or refusal to do something that an employer may not lawfully
permit or require an employee to do;
(v) disclosure of information that the employee is lawfully entitled or
required to give to another person;
(vi) exercise of any right conferred by this Act; or
(vii) participation in any proceedings in terms of this Act.
(3) No person may advantage, or promise to advantage, an employee or a person
seeking employment in exchange for that person not exercising any right
conferred by this Act or not participating in any proceedings in terms of this
Act.
However, nothing in this section precludes the parties to a dispute from
concluding an agreement to settle that dispute.
(4) A provision in any contract, whether entered into before or after the
commencement of this Act, that directly or indirectly contradicts or limits any
provision of section 4, or this section, is invalid, unless the contractual
provision is permitted by this Act.
6. Employers' right to freedom of association
(1) Every employer has the right-
(a) to participate in forming an employers' organisation or a federation of
employers' organisations; and
(b) to an employers' organisation, subject to its constitution.
(2) Every member of an employers' organisation has the right, subject to the
constitution of that employers' organisation-
(a) to participate in its lawful activities;
(b) to participate in the election of any of its office-bearers or officials;
and
¸ 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 o and (c)
(i) a natural person, to stand for election and be eligible for appointment
as an office-bearer or official and, if elected or appointed, to hold office; or
(ii) a juristic person, to have a representative stand for election, and be
eligible for appointment, as an office-bearer or official and, if elected or
appointed, to hold office.
7. Protection of employers' rights
(1) No person may discriminate against an employer for exercising any right
conferred by this Act.
(2) Without limiting the general protection conferred by subsection (1), no
person may do, or threaten to do, any of the following-
(a) require an employer-
(i)) not to be a member of an employers' organisation;
(ii) not to become a member of an employers' organisation; or
(iii) to give up membership of an employers' organisation;
(b) prevent an employer from exercising any right conferred by this Act or
from participating in any proceedings in terms of this Act; or
(c) prejudice an employer because of past, present or anticipated-
(i) membership of an employers' organisation;
(ii) participation in forming an employers' organisation or a federation of
employers' organisations;
(iii) participation in the lawful activities of an employers' organisation or
a federation of employers' organisations;
(iv) disclosure of information that the employer is lawfully entitled or
required to give to another person;
(v) exercise of any right conferred by this Act; or
(vi) participation in any proceedings in terms of this Act.
(3) No person may advantage, or promise to advantage, an employer in exchange
for that employer not exercising any right conferred by this Act or not
participating in any proceedings in terms of this Act. However, nothing in this
section precludes the parties to a dispute from concluding an agreement to
settle that dispute.
(4) A provision in any contract, whether entered into before or after the
commencement of this Act, that directly or indirectly contradicts or limits any
provision of section 6, or this section, is invalid, unless the contractual
provision is permitted by this Act.
8. Rights of trade unions and employers' organisations
Every trade union and every employers' organisation has the right-
(a) subject t
employers' organisations, subject to its constitution, and to participate in its
lawful activities; and
(e) to affiliate with, and participate in the affairs of, any international
workers' organisation or international employers' organisation or the
International Labour Organisation, and contribute to, or receive financial
assistance from, those organisations.
9. Procedure for dispute S 3
(1) If there is a dispute about the interpretation or application of any
provision of this Chapter, any party to the dispute may refer the dispute in
writing to-
(a) a council, if the parties to the dispute fall within the registered scope
of that council; or
(b) the Commission, if no council has jurisdiction.
(2) The party who refers the dispute must satisfy the council or the
Commission that a copy of the referral has been served on all the other parties
to the dispute.
(3) The council or the Commission must attempt to resolve the dispute through
conciliation.
(4) If the dispute remains unresolved, any party to the dispute may refer it
to the Labour Court for adjudication.
10. Burden of proof
In any proceedings-
(a) a party who alleges that a right or protection conferred by this Chapter
has been infringed must prove the facts of the conduct; and
(b) the party who engaged in that conduct must then prove that the conduct
did not infringe any provision of this Chapter.
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.
12. Trade union access to workplace
(1) Any office-bearer or official of a representative trade union is entitled
to enter the employer's premises in order to recruit members or communicate with
members, or otherwise serve members' interests.
(2) A representative trade union is entitled to hold meetings with employees
outside their working hours at the employer's premises.
(3) The members of a representative trade union are entitled to vote at the
employer's premises in any election or ballot contemplated in that trade union's
constitution.
(4) The rights conferred by this section are subject to any conditions as to
time and place that are reasonable and necessary to safeguard life or property
or to prevent the undue disruption of work.
13. Deduction of trade union subscriptions or levies
(1) Any employee who is a member of a representative trade union may
authorise the employer in writing to deduct subscriptions or levies payable to
that trade union from the employee's wages.
(2) An employer who receives an authorisation in terms of subsection (1) must
begin making the authorised deduction as soon as possible and must remit the
amount deducted to the representative trade union by not later than the 15th day
of the month first following the date each deduction was made.
(3) An employee may revoke an authorisation given in terms of subsection (1)
by giving the employer and the representative trade union one month's written
notice or, if the employee works in the public service, three months' written
notice.
(4) An employer who receives a notice in terms of subsection (3) must
continue to make the authorised deduction until the notice period has expired
and then must stop making the deduction.
(5) With each monthly remittance, the employer must give the representative
trade union-
(a) a list of the names of every member from whose wages the employer has
made the deductions that are included in the remittance;
(b) details of the amounts deducted and remitted and the period to which the
deductions relate; and
(c) a copy of every notice of revocation in terms of subsection (3).
14. Trade union representatives
(1) In this section, "representative trade union" means a
registered trade union, or two or more registered trade unions acting jointly,
that have as members the majority of the employees employed by an employer in a
workplace.
(2) In any workplace in which at least 10 members of a representative trade
union are employed, those members are entitled to elect from among themselves-
(a) if there are 10 members of the trade union employed in the workplace, one
trade union representative;
(b) if there are more than 10 members of the trade union employed in the
workplace, two trade union representatives;
(c) if there are more than 50 members of the trade union employed in the
workplace, two trade union representatives for the first 50 members, plus a
further one trade union representative for every additional 50 members up to a
maximum of seven trade union representatives;
(d) if there are more than 300 members of the trade union employed in the
workplace, seven trade union representatives for the first 300 members, plus one
additional trade union representative for every 100 additional members up to a
maximum of 10 trade union representatives;
(e) if there are more than 600 members of the trade union employed in the
workplace, 10 trade union representatives for the first 600 members, plus one
additional trade union representative for every 200 additional members up to a
maximum of 12 trade union representatives; and if there are more than 1000
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.
15. Leave for trade union activities
(1) An employee who is an office-bearer of a representative trade union, or
of a federation of trade unions to which the representative trade union is
affiliated, is entitled to take reasonable leave during working hours for the
purpose of performing the functions of that office.
(2) The representative trade union and the employer may agree to the number
of days of leave, the number of days of paid leave and the conditions attached
to any leave.
(3) An arbitration award in terms of section 21(7) regulating any of the
matters referred to in subsection (2) remains in force for 12 months from the
date of the award.
16. Disclosure of information
(1) For the purposes of this section, "representative trade union"
means a registered trade union, or two or more registered trade unions acting
jointly, that have as members the majority of the employees employed by an
employer in a workplace.
(2) Subject to subsection (5), an employer must disclose to a trade union
representative all relevant information that will allow the trade union
representative to perform effectively the functions referred to in section
14(4).
(3) Subject to subsection (5), whenever an employer is consulting or
bargaining with a representative trade union, the employer must disclose to the
representative trade union all relevant information that will allow the
representative trade union to engage effectively in consultation or collective
bargaining.
(4) The employer must notify the trade union representative or the
representative trade union in writing if any information disclosed in terms of
subsection (2) or (3) is confidential.
(5) An employer is not required to disclose information-
(a) that is legally privileged;
(b) that the employer cannot disclose without contravening a prohibition
imposed on the employer by any law or order of any court;
(c) that is confidential and, if disclosed, may cause substantial harm to an
employee or the employer; or
(d) that is private personal information relating to an employee, unless that
employee consents to the disclosure of that information.
(6) If there is a dispute about what information is required to be disclosed
in terms of this section, any party to the dispute may refer the dispute in
writing to the Commission.
(7) The party who refers the dispute to the Commission must satisfy it that a
copy of the referral has been served on all the other parties to the dispute.
(8) The Commission must attempt to resolve the dispute through conciliation.
(9) If the dispute remains unresolved, any party to the dispute may request
that the dispute be resolved through arbitration.
(10) In any dispute about the disclosure of information contemplated in
subsection (6), the commissioner must first decide whether or not the
information is relevant.
(11) If the commissioner decides that the information is relevant and if it
is information contemplated in subsection (5)(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 (I 2), the commissioner must
take into account any breach of confidentiality in respect of information
disclosed in terms of this section at that workplace and may refuse to order the
disclosure of the information or any other confidential information which might
otherwise be disclosed for a period specified in the arbitration award.
(14) In any dispute about an alleged breach of confidentiality, the
commissioner may order that the right to disclosure of information in that
workplace be withdrawn for a period specified in the arbitration award.
17. Restricted rights in domestic sector
(1) For the purposes of this section, "domestic sector" means the
employment of employees engaged in domestic work in their employers' homes or on
the property on which the home is situated.
(2) The rights conferred on representative trade unions by this Part in so
far as they apply to the domestic sector are subject to the following
limitations-
(a) the right of access to the premises of the employer conferred by section
12 on an office-bearer or official of a representative trade union does not
include the right to enter the home of the employer, unless the employer agrees;
and
(b) the right to the disclosure of information conferred by section 16 does
not apply in the domestic sector.
18. Right to establish thresholds of representativeness
(1) An employer and a registered trade union whose members are a majority of
the employees employed by that employer in a workplace, or the parties to a
bargaining council, may conclude a collective agreement establishing a threshold
of representativeness required in respect of one or more of the organisational
rights referred to in sections 12, 13 and 15.
(2) A collective agreement concluded in terms of subsection (1) is not
binding unless the thresholds of representativeness in the collective agreement
are applied equally to any registered trade union seeking any of the
organisational rights referred to in that subsection.
19. Certain organisational rights for trade union party to council
Registered trade unions that are parties to a council automatically have the
rights contemplated in sections 12 and 13 in respect of all workplaces within
the registered scope of the council regardless of their representativeness in
any particular workplace.
20. Organisational rights in collective agreements
Nothing in this Part precludes the conclusion of a collective agreement that
regulates organisational rights.
21. Exercise of rights conferred by this Part 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 unions certificate of registration and must specify-
(a) the workplace in respect of which the trade union seeks to exercise the
rights;
(b) the representativeness of the trade union in that workplace, and the
facts relied upon to demonstrate that it is a representative trade union; and
(c) the rights that the trade union seeks to exercise and the manner in which
it seeks to exercise those rights.
(3) Within 30 days of receiving the notice, the employer must meet the
registered trade union and endeavour to conclude a collective agreement as to
the manner in which the trade union will exercise the rights in respect of that
workplace.
(4) If a collective agreement is not concluded, either the registered trade
union or the employer may refer the dispute in writing to the Commission.
(5) The party who refers the dispute to the Commission must satisfy it that a
copy of the referral has been served on the other party to the dispute.
(6) The Commission must appoint a commissioner to attempt to resolve the
dispute through conciliation.
(7) If the dispute remains unresolved, either party to the dispute may
request that the dispute be resolved through arbitration.
(8) If the unresolved dispute is about whether or not the registered trade
union is a representative trade union, the commissioner-
(a) must seek
(i) to minimise the proliferation of trade union representation in a single
workplace and, where possible, to encourage a system of a representative trade
union in a workplace; and
(ii) to minimise the financial and administrative burden of requiring an
employer to grant organisational rights to more than one registered trade union;
(b) must consider-
(i) the nature of the workplace;
(ii) the nature of the one or more organisational rights that the registered
trade union seeks to exercise;
(iii) the nature of the sector in which the workplace is situated; and
(iv) the organisational history at the workplace or any other workplace of
the employer; and
(c) may withdraw any of the organisational rights conferred by this Part and
which are exercised by any other registered trade union in respect of that
workplace, if that other trade union has ceased to be a representative trade
union.
(9) In order to determine the membership or support of the registered trade
union, the commissioner may-
(a) make any necessary inquiries;
(b) where appropriate, conduct a ballot of the relevant employees; and
(c) take into account any other relevant information.
(10) The employer must cooperate with the commissioner when the commissioner
acts in terms of subsection (9), and must make available to the commissioner any
information and facilities that are reasonably necessary for the purposes of
that subsection.
(11) An employer who alleges that a trade union is no longer a representative
trade union may apply to the Commission to withdraw any of the organisational
rights conferred by this Part, in which case the provisions of subsections (5)
to (10) apply, read with the changes required by the context.
22. Disputes about organisational rights
(1) Any party to a dispute about the interpretation or application of any
provision of this Part, other than a dispute contemplated in section 21, may
refer the dispute in writing to the Commission.
(2) The party who refers a dispute to the Commission must satisfy it that a
copy of the referral has been served on all the other parties to the dispute.
(3) The Commission must attempt to resolve the dispute through conciliation.
(4) If the dispute remains unresolved, any party to the dispute may request
that the dispute be resolved through arbitration as soon as possible.
Part B-Collective Agreements
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 I
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.
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.5
(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.6
(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.
25. Agency shop agreements
(1) A representative trade union and an employer or employers' organisation
may conclude a collective agreement, to be known as an agency shop agreement,
requiring the employer to deduct an agreed agency fee from the wages of its
employees who are identified in the agreement and who are not 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 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 part of the amount 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
socioeconomic 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
authorisation.
(b) Despite subsection 3(c) a conscientious objector may request the employer
to pay the amount deducted from that employee's wages into a fund administered
by the Department of Labour.
(5) The provisions of sections 98 and 100(b) and (c) apply, read with the
changes required by the context, to the separate account referred to in
subsection (3)(c).
(6) Any person may inspect the auditor's report, in so far as it relates to
an account referred to in subsection (3)(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 falls to establish that it
is a representative trade union, the employer must give the trade union and the
employees covered by the agency shop agreement 30 days' notice of termination,
after which the agreement will terminate.
(10) If an agency shop agreement is terminated, the provisions of subsection
(3)(c) and (d) and (5) apply until the money in the separate account is spent.
26. Closed shop agreements
(1) A representative trade union and an employer or employers' organisation
may conclude a collective agreement, to be known as a closed shop agreement,
requiring all employees covered by the agreement to be members of the trade
union.
(2) For the purposes of this section, "representative trade union"
means a registered trade union, or two or more registered trade unions acting
Jointly, whose members are a majority of the employees employed-
(a) by an employer in a workplace; or
(b) by the members of an employers' organisation in a sector and area in
respect of which the closed shop agreement applies.
(3) A closed shop agreement is binding only if-
(a) a ballot has been held of the employees to be covered by the agreement;
(b) two thirds of the employees who voted have voted in favour of the
agreement;
(c) there is no provision in the agreement requiring membership of the
representative trade union before employment commences; and
(d) it provides that no part of the amount 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
socioeconomic 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' organisation in respect of a sector and area to become
binding in every workplace in which-
(a) a ballot has been held of the employees to be covered by the agreement;
and
(b) two thirds of the employees who voted have voted in favour of the
agreement.
(5) No trade union that is party to a closed shop agreement may refuse an
employee membership or expel an employee from the trade union unless-
(a) the refusal or expulsion is in accordance with the trade union's
constitution; and
(b) the reason for the refusal or expulsion is fair, including, but not
limited to, conduct that undermines the trade union's collective exercise of its
rights.
(6) It is not unfair to dismiss an employee-
(a) for refusing to join a trade union party to a closed shop agreement;
(b) who is refused membership of a trade union party to a closed shop
agreement if the refusal is in accordance with the provisions of subsection (5);
or
(c) who is expelled from a trade union party to a closed shop agreement if
the expulsion is in accordance with the provisions of subsection (5).
(7) Despite subsection (6)-
(a) the employees at the time a closed shop agreement takes effect may not be
dismissed for refusing to Join a trade union party to the agreement; and
(b) employees may not be dismissed for refusing to join a trade union party
to the agreement on grounds of conscientious objection.
(8) The employees referred to in subsection (7) may be required by the closed
shop agreement to pay an agreed agency fee, in which case the provisions of
section 25(3)(b), (c) and (d) and (4) to (7) apply. (9) If the Labour Court
decides that a dismissal is unfair because the refusal of membership of or the
expulsion from a trade union party to a closed shop agreement was unfair, the
provisions of Chapter VIII apply, except that any order of compensation in terms
of that Chapter must be made against the trade union.
(10) A registered trade union that represents a significant interest in, or a
substantial number of, the employees covered by a closed shop agreement may
notify the parties to the agreement of its intention to apply to become a party
to the agreement and, within 30 days of the notice, the employer must convene a
meeting of the parties and the registered trade union in order to consider the
application.
(11) If the parties to a closed shop agreement do not admit the registered
trade union as a party, the trade union may refer the dispute in writing to the
Commission.
(12) The registered trade union must satisfy the Commission that a copy of
the referral has been served on all the parties to the closed shop agreement.
(13) The Commission must attempt to resolve the dispute through conciliation.
(14) If the dispute remains unresolved, any party to the dispute may refer it
to the Labour Court for adjudication.
(15) The representative trade union must conduct a ballot of the employees
covered by the closed shop agreement to determine whether the agreement should
be terminated if-
(a) one third of the employees covered by the agreement sign a petition
calling for the termination of the agreement; and
(b) three years have elapsed since the date on which the agreement commenced
or the last ballot was conducted in terms of this section.
(16) If a majority of the employees who voted, have voted to terminate the
closed shop agreement, the agreement will terminate.
(17) Unless a collective agreement provides otherwise, the ballot referred to
in subsections (3)(a) and (15) must be conducted in accordance with the
guidelines published by the Commission.
Part C-Bargaining Councils
27. Establishment of bargaining councils
(1) One or more registered trade unions and one or more registered employers'
organisations may establish a bargaining council for a sector and area by-
(a) adopting a constitution that meets the requirements of section 30; and
(b) obtaining registration of the bargaining council in terms of section 29.
(2) The State may be a party to any bargaining council established in terms
of this section if it is an employer in the sector and area in respect of which
the bargaining council is established.
(3) If the State is a party to a bargaining council in terms of subsection
(2), any reference to a registered employers' organisation includes a reference
to the State as a party.
28. Powers and functions of bargaining council
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.
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.
30. Constitution of bargaining council
(1) The constitution of every bargaining council must provide for-
(a) the appointment of representatives of the parties to the bargaining
council, of whom half must be appointed by the trade unions that are party to
the bargaining council and the other half by the employers' organisations that
are party to the bargaining council, and the appointment of alternates to the
representatives;
(b) the representation of small and medium enterprises;
(c) the circumstances and manner in which representatives must vacate their
seats' 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; 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;7
(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(l).
(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.
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 only the parties to the bargaining council who are parties to the
collective agreement.
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 if at a meeting of the bargaining council request, I
(a) one or more registered trade unions whose members constitute the majority
of the members of the trade unions that are party to the bargaining council vote
in favour of the extension; and
(b) one or more registered employers' organisations, whose members employ the
majority of the employees employed by the members of the employers'
organisations that are party to the bargaining council, vote in favour of the
extension.
(2) Within 60 days of receiving the request, the Minister must extend the
collective agreement, as requested, by publishing a notice in the Government
Gazette declaring that, from a specified date and for a specified period, the
collective agreement will be binding on the non-parties specified in the notice.
(3) A collective agreement may not be extended in terms of subsection (2)
unless the Minister is satisfied that-
(a) the decision by the bargaining council to request the extension of the
collective agreement complies with the provisions of subsection (1);
(b) the majority of employees employed within the registered scope of the
bargaining council are members of the trade unions that are party to the
bargaining council;
(c) the members of the employers' organisations that are party to the
bargaining council employ the majority of the employees employed within the
registered scope of the bargaining council;
(d) the non-parties specified in the request fall within the bargaining
council's registered scope;
(e) the collective agreement establishes or appoints an independent body to
grant exemptions to non-parties and to determine the terms of those exemptions
from the provisions of the collective agreement as soon as possible;
(f) the collective agreement contains criteria that must be applied by the
independent body when it considers applications for exemptions, 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) For the purpose of subsection (3)(e), a bargaining council in its
appointment of the members of the independent body must have due regard to the
nominations made by the institutions listed in the schedule promulgated in terms
of section 207(6).
(5) Despite subsection (3)(b) and (c), the Minister may extend a collective
agreement in terms of subsection (2) if(a) the parties to the bargaining council
are sufficiently representative within the registered scope of the bargaining
council; and
(b) the Minister is satisfied that the failure to extend the agreement may
undermine collective bargaining at sectoral level.
(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.
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(l)(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.
34. Amalgamation of bargaining councils
(1) Any bargaining council may resolve to amalgamate with one or more other
bargaining councils.
(2) The amalgamating bargaining councils may apply to the registrar for
registration of the amalgamated bargaining council and the registrar must treat
the application as an application in terms of section 29.
(3) If the registrar has registered the amalgamated bargaining council, the
registrar must cancel the registration of each of the amalgamating bargaining
councils by removing their names from the register of councils.
(4) The registration of an amalgamated bargaining council takes effect from
the date that the registrar enters its name in the register of councils.
(5) When the registrar has registered an amalgamated bargaining council-
(a) all the assets, rights, liabilities and obligations of the amalgamating
bargaining councils devolve upon and vest in the amalgamated bargaining council;
and
(b) all the collective agreements of the amalgamating bargaining councils,
regardless of whether or not they were extended in terms of section 32, remain
in force for the duration of those collective agreements, unless amended or
terminated by the amalgamated bargaining council.
Part D-Bargaining Councils In The Public Service
35. Bargaining councils in public service
There will be a bargaining council for-
(a) the public service as a whole, to be known as the Public Service
Co-ordinating Bargaining Council; and
(b) any sector within the public service that may be designated in terms of
section 37.
36. Public Service Co-ordinating Bargaining Council
(1) The Public Service Co-ordinating Bargaining Council must be established
in accordance with Schedule 1.8
(2) The Public Service Co-ordinating Bargaining Council may perform all the
functions of a bargaining council in respect of those matters that-
(a) are regulated by uniform rules, norms and standards that apply across the
public service; or
(b) apply to terms and conditions of service that apply to two or more
sectors; or
(c) are assigned to the State as employer in respect of the public service
that are not assigned to the State as employer in any sector.
37. Bargaining councils in sectors in public service
(1) The Public Service Co-ordinating Bargaining Council may 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.
8. Schedule 1 deals with the procedure for the establishment of the Public
Service Co-ordinating Bargaining Council.
(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(3) to (9) of Schedule I 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.
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 established in terms of section 37(3).
(3) If there is a jurisdictional dispute between the Public Service
Co-ordinating Bargaining Council and a bargaining council established in terms
of section 37(3), 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 it that a copy of the referral has been served on the Public Service
Co-ordinating Bargaining Council.
(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.
(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.
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' organisation
may apply to the registrar in the prescribed form for the establishment of a
statutory council in a sector and area in respect of which no council is
registered.
(3) The registrar must apply the provisions of section 29(2) to (10)9 to the
application-
(a) read with the changes required by the context; and
(b) subject to the deletion of the word "sufficiently" in section
29(4)(c).
(4) The registrar must-
(a) consider the application and any further information provided by the
applicant; and
(b) determine whether-
(i) the applicant has complied with section 29 and of this section;
9. The provisions of section 29 deal with the procedure for the registration
of a bargaining council.
(ii) the applicant is representative of the sector and area determined by
NEDLAC or the Minister; and
(iii) there is no other council registered for the sector and area in respect
of which the application is made.
(5) If the registrar is not satisfied that the applicant meets the
requirements for establishment, the registrar must-
(a) send the applicant a written notice of the decision and the reasons for
that decision; and
(b) in that notice, inform the applicant that it has 30 days from the date of
the notice to meet those requirements.
(6) If, after the 30-day period, the registrar concludes that the applicant
has failed to meet the requirements for establishment, the registrar must-
(a) refuse to register the applicant; and
(b) notify the applicant and any person that objected to the application in
writing of that decision.
40. Establishment and registration of statutory council
(1) If the registrar is satisfied that the applicant meets the requirements
for the establishment of a statutory council, the registrar, by notice in the
Government Gazette, must establish the statutory council for a sector and area.
(2) The notice must invite-
(a) registered trade unions and registered employers' organisations in that
sector and area to attend a meeting; and
(b) any interested parties in that sector and area to nominate
representatives for the statutory council.
(3) The Commission must appoint a commissioner to chair the meeting and
facilitate the conclusion of an agreement on-
(a) the registered trade unions and registered employers' organisations to be
parties to the statutory council; and
(b) a constitution that meets the requirements of section 30, read with the
changes required by the context.
(4) If an agreement is concluded, the Minister may advise the registrar to
register the statutory council in accordance with the agreement if the Minister
is satisfied that-
(a) every registered trade union and registered employers' organisation that
ought to have been included has been included in the agreement; and
(b) the constitution meets the requirements of section 30, read with the
changes required by the context.
(5) In considering the requirements in subsection (4)(a), the Minister must
take into account-
(a) the primary objects of this Act;
(b) the diversity of registered trade unions and registered employers'
organisations in the sector and area; and
(c) the principle of proportional representation.
(6) If the Minister is not satisfied in terms of subsection (4), the Minister
must advise the Commission of the decision and the reasons for that decision and
direct the Commission to reconvene the meeting in terms of subsection (3) in
order to facilitate the conclusion of a new agreement.
(7) If advised by the Minister in terms of subsection (4), the registrar must
register the statutory council by entering its name in the register of councils.
41. Establishment and registration of statutory council in absence of
agreement
(1) If no agreement is concluded in terms of section 40(3), the commissioner
must convene separate meetings of the registered trade unions and employers'
organisations to facilitate the conclusion of agreements on-
(a) the registered trade unions to be parties to the statutory council;
(b) the registered employers' organisations to be parties to the statutory
council; and
(c) the allocation to each party of the number of representatives of the
statutory council.
(2) If an agreement is concluded on-
(a) the registered trade unions to be parties to the statutory council, the
Minister must admit as parties to the statutory council the agreed registered
trade unions;
(b) the registered employers' organisations to be parties to the statutory
council, the Minister must admit as parties to the statutory council the agreed
registered employers' organisations.
(3) If no agreement is concluded on-
(a) the registered trade unions to be parties to the statutory council, the
Minister must admit as parties to the statutory council-
(i) the applicant, if it is a registered trade union; and
(ii) any other registered trade union in the sector and area that ought to be
admitted, taking into account the factors referred to in section 40(5);
(b) the registered employers' organisations to be parties to the statutory
council, the Minister must admit as parties to the statutory council-
(i) the applicant, if it is a registered employers' organisation; and
(ii) any other registered employers' organisation in the sector and area that
ought to be admitted, taking into account the factors referred to in section
40(5).
(4) (a) The Minister must determine an even number of representatives of the
statutory council, taking into account the factors referred to in section 40(5).
(b) One half of the representatives must be allocated to the registered trade
unions that are parties to the statutory council and the other half of the
representatives must be allocated to the registered employers' organisations
that are parties to the statutory council.
(5) If no agreement is concluded in respect of the allocation of the number
of representatives of the statutory council-
(a) between the registered trade unions that are parties to the council, the
Minister must determine this allocation on the basis of proportional
representation;
(b) between the registered employers' organisations that are parties to the
council, the Minister must determine this allocation on the basis of
proportional representation and taking into account the interests of small and
medium enterprises.
(6) If the applicant is a trade union and there is no registered employers'
organisation that is a party to the statutory council, the Minister, after
consulting the Commission, must appoint suitable persons as representatives and
alternates, taking into account the nominations received from employers and
employers' organisations in terms of section 40(2).
(7) If the applicant is an employers' organisation and there is no registered
trade union that is a party to the statutory council, the Minister, after
consulting the Commission, must appoint suitable persons as representatives and
alternates, taking into account the nominations received from employees and
trade unions in terms of section 40(2).
(8) The Minister must notify the registrar of agreements concluded and
decisions made in terms of this section, and the registrar must-
(a) adapt the model constitution referred to in section 207(3) to the extent
necessary to give effect to the agreements and decisions made in terms of this
section;
(b) register the statutory council by entering its name in the register of
councils; and
(c) certify the constitution as the constitution of the statutory council.
42. Certificate of registration of statutory council
After registering a statutory council, the registrar must
(a) issue a certificate of registration that must specify the registered
scope of the statutory council; and
(b) send the certificate and a certified copy of the registered constitution
to all the parties to the statutory council and any representatives appointed to
the statutory council.
43. Powers and functions of statutory councils
(1) The powers and functions of a statutory council are-
(a) to perform the dispute resolution functions referred to in section 51;
(b) to promote and establish training and education schemes; and
(c) to establish and administer pension, provident, medical aid, sick pay,
holiday, unemployment schemes or funds or any similar schemes or funds for the
benefit of one or more of the parties to the statutory council or their members;
and
(d) to conclude collective agreements to give effect to the matters mentioned
in paragraphs (a), (b), and (c).
(2) A statutory council, in terms of its constitution, may agree to the
inclusion of any of the other functions of a bargaining council referred to in
section 28.
(3) If a statutory council concludes a collective agreement in terms of
subsection (1)(d), the provisions of sections 31 and 32 apply, read with the
changes required by the context.
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.
45. Disputes about determinations
(1) If there is a dispute about the interpretation or application of a
determination promulgated in terms of section 44(2), any party to the dispute
may refer the dispute in writing to the Commission.
(2) The party who refers the dispute to the Commission must satisfy it that a
copy of the referral has been served on all the other parties to the dispute.
(3) The Commission must attempt to resolve the dispute through conciliation.
(4) If the dispute remains unresolved, any party to the dispute may request
that the dispute be resolved through arbitration.
46. Withdrawal of party from statutory council
(1) If a registered trade union or registered employers' organisation that is
a party to a statutory council withdraws from that statutory council, the
Minister may request the Commission to convene a meeting of the remaining
registered trade unions or registered employers' organisations in the sector and
area, in order to facilitate the conclusion of an agreement on the registered
trade unions or the registered employers' organisations to be parties and the
allocation of representatives to the statutory council.
(2) If no agreement is concluded, the provisions of section 41 apply, read
with the changes required by the context.
47. Appointment of new representative of statutory council
(1) If a representative appointed in terms of section 41(6) or (7) for any
reason no longer holds office, the Minister must publish a notice in the
Government Gazette inviting interested parties within the registered scope of
the statutory council to nominate a new representative.
(2) The provisions of section 41(6) or (7) apply, read with the changes
required by the context, in respect of the appointment of a new representative.
48. Change of status of statutory council
(1) A statutory council may resolve to apply to register as a bargaining
council.
(2) The registrar must deal with the application as if it were an application
in terms of section 29,10 except for section 29(4)(b), (7) to (10) and (15).
(3) If the registrar has registered the statutory council as a bargaining
council, the registrar must alter the register of councils and its certificate
to reflect its change of status.
(4) Any determination in force at the time of the registration of the
bargaining council or any agreement extended by the Minister in terms of section
43(3)-
(a) continues to have force for the period of its operation unless superseded
by a collective agreement; and
(b) may be extended for a further period.
(5) The bargaining council must perform any function or duty of the statutory
council in terms of a determination during the period in which the determination
is still in effect.
(6) If any dispute in terms of a determination is unresolved at the time the
determination ceases to have effect, the dispute must be dealt with as if the
determination was still in effect.
Part F-General Provisions Concerning Councils
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.
50. Effect of registration of council
(1) A certificate of registration is sufficient proof that a registered
council is a body corporate.
(2) A council has all the powers, functions and duties that are conferred or
imposed on it by or in terms of this Act, and it has jurisdiction to exercise
and perform those powers, functions and duties within its registered scope.
(3) A party to a council is not liable for any of the obligations or
liabilities of the council by virtue of it being a party to the council.
(4) A party to, or office-bearer or official of, a council is not personally
liable for any loss suffered by any person as a result of an act performed or
omitted in good faith by a party to, or office-bearer or official of, a council
while performing their functions for the council.
(5) Service of any document directed to a council at the address most
recently provided to the registrar will be for all purposes service of that
document on that council.
51. Dispute resolution functions of council
(1) In this section, dispute means any dispute about a matter of mutual
interest between-
(a) on the one side(i) one or more trade unions; one or more employees; or
one or more trade unions and one or more employees; and
(b) on the other side-
(i) one or more employers' organisations;
(ii) one or more employers; or
(iii) one or more employers' organisations and one or more employers.
(2) (a) The parties to a council must attempt to resolve any dispute between
themselves in accordance with the constitution of 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 (a) through conciliation; and
(b) if the dispute remains unresolved after conciliation, the council must
arbitrate the dispute if-
(i) this Act requires arbitration and any party to the dispute has requested
that it be resolved through arbitration; or
(ii) all the parties to the dispute consent to arbitration under the auspices
of the council.
(4) If one or more of the parties to a dispute that has been referred to the
council do not fall within the registered scope of that council, it must refer
the dispute to the Commission.
(5) The date on which the referral in terms of subsection (4) was received by
a council is, for all purposes, the date on which the council referred the
dispute to the Commission.
52. Accreditation of council or appointment of accredited agency Every
council must-
(a) apply to the Commission for accreditation to perform any of the functions
referred to in section 51; or
(b) appoint an accredited agency to perform any of the functions referred to
in section 51.
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 bargaining council or of any fund established by a
bargaining 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.
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.
55. Delegation of functions to committee of council
(1) A council may delegate any of its functions to a committee on any
conditions, but any decision of a committee may be amended or set aside by the
council.
(2) A committee contemplated by subsection (1) must consist of equal numbers
of representatives of employees and employers.
(3) The council, 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.
56. Admission of parties to council 12
(1) Any registered trade union or registered employers' organisation may
apply in writing to a council for admission as a party to that council.
(2) The application must be accompanied by a certified copy of the
applicant's registered constitution and certificate of registration and must
include-
(a) details of the applicant's membership within the registered scope of the
council and, if the applicant is a registered employers' organisation, the
number of employees that its members employ within that registered scope;
(b) the reasons why the applicant ought to be admitted as a party to the
council; and
(c) any other information on which the applicant relies in support of the
application.
(3) A council, within 90 days of receiving an application for admission, must
decide whether to grant or refuse an applicant admission, and must advise the
applicant of its decision, failing which the council is deemed to have refused
the applicant admission.
(4) If the council refuses to admit an applicant it must within 30 days of
the date of the refusal, advise the applicant in writing of its decision and the
reasons for that decision.
12. See flow diagram No. 5 in Schedule 4.
(5) The applicant may apply to the Labour Court for an order admitting it as
a party to the council.
(6) The Labour Court may admit the applicant as a party to the council, adapt
the constitution of the council and make any other appropriate order.
57. Changing constitution or name of council
(1) Any council may resolve to change or replace its constitution.
(2) The council must send the registrar a copy of the resolution and a
certificate signed by its secretary stating that the resolution complies with
its constitution.
(3) The registrar must-
(a) register the changed or new constitution of a council if it meets the
requirements of section 30 or if it is a statutory council established in terms
of section 41 if it meets the requirements of the model constitution referred to
in section 207(3); and
(b) send the council a copy of the resolution endorsed by the registrar,
certifying that the change or replacement has been registered.
(4) The changed or new constitution takes effect from the date of the
registrar's certification.
(5) Any council may resolve to change its name.
(6) The council must send the registrar a copy of the resolution and the
original of its current certificate of registration.
(7) The registrar must-
(a) enter the new name in the register of councils, and issue a certificate
of registration in the new name of the council;
(b) remove the old name from that register and cancel the earlier certificate
of registration; and
(c) send the new certificate to the council.
(8) The new name takes effect from the date that the registrar enters it in
the register of councils.
58. Variation of registered scope of council
(1) If the registrar is satisfied that the sector and area within which a
council is representative does not coincide with the registered scope of the
council, the registrar, acting independently or in response to an application
from the council or NEDLAC, 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.
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.
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.
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 III (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.
62. Disputes about demarcation between sectors and areas
(1) Any registered trade union, employer, registered employers' organisation
or council that has a direct or indirect interest in the application
contemplated in this section may apply to the Commission in the prescribed form
and manner for a determination as to-
(a) whether any employee, employer, class of employees or class of employers,
is or was employed or engaged in a sector or area;
(b) whether any provision in any arbitration award, collective agreement or
wage determination made in terms of the Wage Act is or was binding on any
employee, employer, class of employees or class of employers.
(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.
(4) When the Commission receives an application in terms of subsection (1) or
a referral in terms of subsection (3), it must appoint a commissioner to hear
the application or determine the question, and the provisions of section 138
apply, read with the changes required by the context.
(5) In any proceedings in terms of this Act before a commissioner, if a
question contemplated in subsection (1)(a) or (b) is raised, the commissioner
must adjourn the proceedings and consult the director, if the commissioner is
satisfied that-
(a) the question raised-
(i) has not previously been determined by arbitration in terms of this
section; and
(ii) is not the subject of an agreement in terms of subsection (2); and
(b) the determination of the question raised is necessary for the purposes of
the proceedings.
(6) The director must either order the commissioner concerned to determine
the question or appoint another commissioner to do so, and the provisions of
section 138 apply, read with the changes required by the context.
(7) If the Commission believes that the question is of substantial
importance, the Commission must publish a notice in the Government Gazette
stating the particulars of the application or referral and stating the period
within which written representations may be made and the address to which they
must be directed.
(8) If a notice contemplated in subsection (7) has been published, the
commissioner may not commence the arbitration until the period stated in the
notice has expired.
(9) Before making an award, the commissioner must consider any written
representations that are made, and must consult NEDLAC.
(10) The commissioner must send the award, together with brief reasons, to
the Labour Court and to the Commission.
(11) If the Commission believes that the nature of the award is substantially
important, it may publish notice of the award in the Government Gazette.
(12) The registrar must amend the certificate of registration of a council in
so far as is necessary in light of the award.
63. Disputes about Parts A and C to F
(1) Any party to a dispute about the interpretation or application of Parts A
and C to F of this Chapter, may refer the dispute in writing to the Commission
unless-
(a) the dispute did not arise 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'
organisation; or
(c) in the case of a proposed lock-out, at least 48 hours' notice of the
commencement of the lock-out, in writing, has been given to any trade union that
is a party to the dispute, or, if there is no such trade union, to the
employees, unless the issue in dispute relates to a collective agreement to be
concluded in a council, in which case, notice must have been given to that
council; or
(d) 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; and
(c) a resignation of a party from a bargaining council;
(d) a dispute about-
(i) appropriate bargaining units;
(ii) appropriate bargaining levels; or
(iii) bargaining subjects.
(3) The requirements of subsection (1) do not apply to a strike or a lock-out
if-
(a) the parties to the dispute are members of a council, and the dispute has
been dealt with by that council in accordance with its constitution;
(b) the strike or lock-out conforms with the procedures in a collective
agreement;
(c) the employees strike in response to a lock-out by their employer that
does not comply with the provisions of this Chapter;
(d) the employer locks out its employees in response to their taking part in
a strike that does not conform with the provisions of this Chapter; or
(e) the employer fails to comply with the requirements of subsections (4) and
(5).
(4) Any employee who or any trade union that refers a dispute about a
unilateral change to terms and conditions of employment to a council or the
Commission in terms of subsection (1)(a) may, in the referral, and for the
period referred to in subsection (1)(a)-
(a) require the employer not to implement unilaterally the change to terms
and conditions of employment; or
(b) if the employer has already implemented the change unilaterally, require
the employer to restore the terms and conditions of employment that applied
before the change.
(5) The employer must comply with a requirement in terms of subsection (4)
within 48 hours of service of the referral on the employer.
65. Limitations on right to strike or recourse to lock-out
(1) No person may take part in a strike or a lock-out or in any conduct in
contemplation or furtherance of a strike or a lock-out if-
(a) that person is bound by a collective agreement that prohibits a strike or
lock-out in respect of the issue in dispute;
(b) that person is bound by an agreement that requires the issue in dispute
to be referred to arbitration;
(c) the issue in dispute is one that a party has the right to refer to
arbitration or to the Labour Court in terms of this Act;
(d) that person is engaged in-
(i) an essential service; or
(ii) a maintenance service. 13
(2) (a) Despite section 65(l)(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. 14
(b) If the registered trade union has given notice of the proposed strike in
terms of section 64(l) 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-
13. Essential services, agreed minimum services and maintenance services are
regulated in sections 71 to 75.
14. These sections deal with organisational rights.
(a) if that person is bound by-
(i) any arbitration award or collective agreement that regulates the issue in
dispute; or
(ii) any determination made in terms of section 44 by the Minister that
regulates the issue in dispute; or
(b) any determination made in terms of the Wage Act and that regulates the
issue in dispute, during the first year of that determination.
66. Secondary strikes
(1) In this section "secondary strike" means a strike, or conduct
in contemplation or furtherance of a strike, that is in support of a strike by
other employees against their employer but does not include a strike in pursuit
of a demand and 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.
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 defect or a breach of contract by taking part
in-
(a) a protected strike or a protected lock-out; or
(b) any conduct in contemplation or in furtherance of a protected strike or a
protected lock-out.
(3) Despite subsection (2), an employer is not obliged to remunerate an
employee for services that the employee does not render during a protected
strike or a protected lock-out, however-
(a) if the employee's remuneration includes payment in kind in respect of
accommodation, the provision of food and other basic amenities of life, the
employer, at the request of the employee, must not discontinue payment in kind
during the strike or lock-out; and
(b) after the end of the strike or lock-out, the employer may recover the
monetary value of the payment in kind made at the request of the employee during
the strike or lock-out from the employee by way of civil proceedings instituted
in the Labour Court.
(4) An employer may not dismiss an employee for participating in a protected
strike or for any conduct in contemplation or in furtherance of a protected
strike.
(5) Subsection (4) does not preclude an employer from fairly dismissing an
employee in accordance with the provisions of Chapter VIII for a reason related
to the employee's conduct during the strike, or for a reason based on the
employer's operational requirements.
(6) Civil legal proceedings may not be instituted against any person for-
(a) participating in a protected strike or a protected lock-out; or
(b) any conduct in contemplation or in furtherance of a protected strike or a
protected lock-out.
(7) The failure by a registered trade union or a registered employers'
organisation to comply with a provision in its constitution requiring it to
conduct a ballot of those of its members in respect of whom it intends to call a
strike or lock-out may not give rise to, or constitute a ground for, any
litigation that will affect the legality of, and the protection conferred by
this section on, the strike or lock-out.
(8) The provisions of subsections (2) and (6) do not apply to any act in
contemplation or in furtherance of a strike or a lock-out, if that act is an
offence.
(9) Any act in contemplation or in furtherance of a protected strike or a
protected lock-out that is a contravention of the Basic Conditions of Employment
Act or the Wage Act does not constitute an offence.
68. Strike or lock-out not in compliance with this Act
(1) In the case of any strike or lock-out, or any conduct in contemplation or
in furtherance of a strike or lock-out, that does not comply with the provisions
of this Chapter, the Labour Court has exclusive jurisdiction-
(a) to grant an interdict or order to restrain-15
(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.
69. Picketing 16
(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
16. See flow diagram No. 7 in Schedule 4.
(b) in opposition to any lockout.
(2) Despite any law regulating the right of assembly, a picket authorised
terms of I subsection (1), may be-
(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 I with the provisions of this section.
(8) Any party to a dispute about any of the following issues may refer the
dispute in writing to the Commission-
(a) an allegation that the effective use of the right to picket is being
undermined;
(b) an alleged material contravention of subsection (1) or (2);
(c) an alleged material breach of an agreement concluded in terms of
subsection (4); or
(d) an alleged material breach of a rule established in terms of subsection
(5).
(9) The party who refers the dispute to the Commission must satisfy it that a
copy of the referral has been served on all the other parties to the dispute.
(10) The Commission must attempt to resolve the dispute through conciliation.
(11) If the dispute remains unresolved, any party to the dispute may refer it
to the Labour Court for adjudication.
70. Essential services committee
(1) The Minister, after consulting NEDLAC, and in consultation with the
Minister for the Public Service and Administration, must establish an essential
services committee under the auspices of the Commission and appoint to that
committee, on any terms, persons who have knowledge and experience of labour law
and labour relations.
(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. 17
(3) At the request of a bargaining council, the essential services committee
must conduct an investigation in terms of subsection (2)(a).
71. Designating a service as an essential service
(1) The essential services committee must give notice in the Government
Gazette of any investigation that it is to conduct as to whether the whole or a
part of a service is an essential service.
(2) The notice must indicate the service or the part of a service that is to
be the subject of the investigation and must invite interested parties, within a
period stated in the notice-
(a) to submit written representations; and
(b) to indicate whether or not they require an opportunity to make oral
representations.
(3) Any interested party may inspect any written representations made
pursuant to the notice, at the Commission's offices.
(4) The Commission must provide a certified copy of, or extract from, any
written representations to any person who has paid the prescribed fee.
(5) The essential services committee must advise parties who wish to make
oral representations of the place and time at which they may be made.
(6) Oral representations must be made in public.
(7) After having considered any written and oral representations, the
essential services committee must decide whether or not to designate the whole
or a part of the service that was the subject of the investigation as an
essential service.
(8) If the essential services committee designates the whole or a part of a
service as an essential service, the committee must publish a notice to that
effect in the Government Gazette.
(9) The essential services committee may vary or cancel the designation of
the whole or a part of a service as an essential service, by following the
provisions set out in subsections (1) to (8), read with the changes required by
the context.
(10) The Parliamentary service and the South African Police Service are
deemed to have been designated an essential service in terms of this section.
72. Minimum services The essential services committee may ratify any
collective agreement that provides for the maintenance of minimum services in a
service designated as an essential service, in which case-
(a) the agreed minimum services are to be regarded as an essential service in
respect of the employer and its employees; and
(b) the provisions of section 74 do not apply.
73. Disputes about whether a service is an essential service
(1) Any party to a dispute about either of the following issues may refer the
dispute in writing to the essential services committee-
(a) whether or not a service is an essential service; or
(b) whether or not an employee or employer is engaged in a service designated
as an essential service.
(2) The party who refers the dispute to the essential services committee must
satisfy it that a copy of the referral has been served on all the other parties
to the dispute.
(3) The essential services committee must determine the dispute as soon as
possible.
74. Disputes in essential services' 8
(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
(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; and
(b) the period referred to in subsection (5)(b), that period will run from
the expiry of the period referred to in subsection (a) or from the beginning of
the next session of Parliament.
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 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 service is a maintenance service.
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 I services of a temporary employment service or an
independent contractor.
77. Protest action to promote or defend socioeconomic 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.
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) employ and dismiss employees on behalf of the employer;
(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.
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.
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 remaining 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
a] I 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(l 1) 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.
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; 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 f 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 an 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 ma 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 full-time members of the workplace forum where there are more
than 1000 employees in a workplace;
(t) provide that the forum may invite any expert to attend meetings of the
workplace forum, 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 is 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; and
(v) provide that the representative trade union and the employer, by
agreement, may change the constitution of the workplace forum.
(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 coordinating 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).
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.
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;
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.
85. Consultation
(1) Before an employer may implement a proposal in relation to any matter
referred to in section 84(l), 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-
(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 (1)(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. 19
(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.
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).
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), the
employer may give notice in writing to the chairpersons of all the workplace
forums that no other workplace forum ma 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.
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.
(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) (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.
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-
(a) one or more employees employed in the workplace;
(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.
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' organisation; and
(b) it is free of any interference or influence of any kind from any employer
or employers' organisation.
(3) Any employers' organisation 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' organisation
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; provide for membership fees and the
method for determining member-ship 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' organisation which
intends to register may not include any provision that discriminates directly or
indirectly against any person on the grounds of race or sex.
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' organisation 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.
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' organisation.
(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' organisation.
(4) Service of any document directed to a registered trade union or
employers' organisation at the address most recently provided to the registrar
will be for all purposes service of that document on that trade union or
employers' organisation.
98. Accounting records and audits
(1) Every registered trade union and every registered employers' organisation
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'
organisation 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 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.
99. Duty to keep records In addition to the records required by section 98,
every registered trade union and every registered employers' organisation 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.
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.
101. Changing constitution or name of registered trade unions or employers'
organisations
(1) A registered trade union or a registered employers' organisation may
resolve to change or replace its constitution.
(2) The registered trade union or the registered employers' organisation 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' organisation 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' organisation meets the
requirements of section 95(4),20 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.
102. Amalgamation of trade unions or employers' organisations
(1) Any registered-
(a) trade union may resolve to amalgamate with one or more other trade
unions, whether or not those other trade unions are registered; and
(b) employers' organisation may resolve to amalgamate with one or more other
employers' organisations, whether or not those other employers' organisations
are registered.
(2) The amalgamating trade unions or amalgamating employers' organisations
may apply to the registrar for registration of the amalgamated trade union or
20. These are the requirements relating to the name of a trade union or
employers' organisation to be registered. amalgamated employers' organisation,
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' organisation, the registrar must cancel the registration
of each of the amalgamating trade unions or amalgamating employers'
organisations by removing their names from the appropriate register.
(4) The registration of an amalgamated trade union or an amalgamated
employers' organisation 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' 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' organisation has resolved to wind-up its
affairs and has applied to the Court for an order giving effect to that
resolution; or
(b) the registrar 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 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.
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.
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.
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' organisation by removing its name from the appropriate register.
(3) When a trade union's or employers' organisation' s registration is
cancelled, all the rights it enjoyed as a result of being registered will end.
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' organisations 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.
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.
109. Functions of registrar
(1) The registrar must keep-
(a) a register of registered trade unions;
(b) a register of registered employers' organisations;
(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.
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'
organisations; 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' organisation 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'
organisation, 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(l)(a), (c), and (e).
Part D-Appeals From Registrar's Decision
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.
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.
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.
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.
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; 21
(b) if asked, assist a party to a dispute to obtain legal advice, assistance
or 22 representation;
(c) offer to resolve a dispute that has not been referred to the Commission
through conciliation; 23
(d) accredit councils or private agencies; 24 (e) subsidise accredited
councils or accredited agencies; 25 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' organisation;
(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) sexual harassment in the workplace.
(3) If asked, the Commission may provide employees, employers, registered
trade unions, registered employers' organisations, 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(a)
establishing collective bargaining structures;
(b) designing, establishing and electing workplace forums and creating
deadlock-breaking mechanisms;
(c) the functioning of workplace forums;
(d) preventing and resolving disputes and employees' grievances;
(e) disciplinary procedures;
(f) procedures in relation to dismissals;
(g) the process of restructuring the workplace;
(h) affirmative action and equal opportunity programmes; and
(i) sexual harassment in the workplace.
(4) 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.
116. Governing body of Commission
(1) The Commission will be governed by the governing body, whose acts are
acts of the Commission.26
(2) The governing body consists of(a) a chairperson and nine other members,
each nominated by NEDLAC and appointed 27 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;
26. See item 4 of Schedule 3 for the governing body's rules of procedure.
27. See items 1 to 3 of Schedule 3 for the terms of appointment of members of
the governing body.
(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.
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 must 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.
(5) A commissioner may resign by giving written notice to the governing body.
(6) The governing body must prepare a code of conduct for the commissioners
and ensure that they comply with the code of conduct in performing their
functions.
(7) The governing body may remove a commissioner from office for-
(a) serious misconduct;
(b) incapacity; or
(c) a material violation of the Commission's code of conduct.
(8) Each commissioner is responsible to the director for the performance of
the commissioner's functions.
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 offence 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.
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.
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.
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.
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 I 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.
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.
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; 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.
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).
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.
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;28
(b) section 24(2) to (5);29
(c) section 24(6) and (7) and section 26(11);30
(d) section 45;31
(e) section 61(5) to (8) ;32
(f) section 62;33
28. These sections deal with disputes about organisational rights.
29. 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.
30. These subsections deal with disputes about agency shops and closed shops.
31. This section deals with disputes about determinations made by the
Minister in respect of proposals made by a statutory council.
32. These subsections deal with disputes about the interpretation or
application of collective agreements of a council whose registration has been
cancelled.
33. This section deals with disputes about the demarcation of sectors and
areas of councils.
(g) section 63 ;34
(h) section 69(8) to (10);35
(i) section 86; 36
(j) section 89;37
(k) section 94.38
(3) The governing body may require further information in support 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,
34. This section deals with disputes about the interpretation or application
of Parts C to IF of Chapter Ill. Part C deals with bargaining councils, Part D
with bargaining councils in the public service, Part E with statutory councils
and Part IF with general provisions concerning councils.
35. This section concerns disputes about pickets during strikes and
lock-outs.
36. This section deals with disputes about proposals that are the subject of
joint decision-making.
37. This section deals with disputes about the disclosure of information to
workplace forums.
38. This section deals with disputes about the interpretation or application
of Chapter V which deals with workplace forums. employer, employers'
organisation, federation of trade unions or federation of employers'
organisations;
(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; 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;
(g) the applicant promotes a service that is broadly representative of South
African society; and
(h) if the applicant charges a fee to the users of its services, the fee is
reasonable.
(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.
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 this Act allows the Commission, or 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.
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.
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.
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.
132. Subsidy to council or private agency
(1) Any accredited council or accredited agency, or council or private agency
that has applied for accreditation, may apply to the governing body the
prescribed form for a subsidy-
(a) for performing any function for which the council or private agency is
accredited or for which it has applied for accreditation; and
(b) 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 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).
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- I
(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.
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 2 one or more trade unions and one or more
employees; and
(b) on the other side(i) one or more employers' organisations;
(ii) one or more employers; or
(iii) one or more employers' organisations and one or more employers.
(2) 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(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.
(4) In the conciliation proceedings a party to the dispute may appear in
person or be represented only by a co-employee or by a member, an office-bearer
or official of that party's trade union or employers' organisation and, if the
party is a juristic person, by a director or an employee.
(5) 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.
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) any party to the dispute has requested that the dispute be resolved
through arbitration.
(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 objects to the arbitration being conducted
by the same commissioner who conciliated the dispute, may file an objection with
the Commission 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.
137. Appointment of senior commissioner to resolve dispute through
arbitration
(1) In the circumstances contemplated in section 136(l), 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.
(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 a legal practitioner, a co-employee or by a
member, office-bearer or official of that party's trade union or employers'
organisation and, if the party is a person, by a director or an employee.
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;
(b) 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-
(a) within 30 days of the date of the certificate referred to in section
136(l)(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.
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(l), 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) (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)(a) 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-
(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; 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
(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; 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 ease 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-
(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.
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.
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) (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); 39 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
39. Section 24(l) states that every collective agreement must provide for a
procedure to resolve any dispute about the interpretation or application of the
collective agreement.
(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 in terms of a collective agreement between the parties to the
dispute, 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) (a) 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-
(i) refer the dispute to the appropriate person or body for resolution
through private dispute resolution procedures; or
(ii) 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.
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 (a) together with the Legal Aid Bard 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
40. The Legal Aid Board is established in terms of section 2 of the Legal Aid
Act, 1969 (Act No. 22 of 1969).
(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.
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.
Part D - Labour Court
151. Establishment and status of Labour Court
(1) The Labour Court is hereby established as a court of law.
(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.
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.
153. Appointment of judges of Labour Court
(1) (a) The President, acting on the advice of NEDLAC and the Judicial
Service Commission as defined in section 105 of the Constitution, 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 as defined in section 105 of the Constitution, 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 as defined in section 105 of the Constitution, 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 President, acting on the advice of NEDLAC and the Judicial Service
Commission as defined in section 105 of the Constitution, 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) to serve
as acting judges of the Labour Court.
(6) A judge of the Labour Court must-
(a) (i) be a judge of the Supreme Court; or
(ii) be a person who has been a legal practitioner for a cumulative period of
at least 10 years before that person's appointment; and
(b) have knowledge, experience and expertise in labour law.
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 in the office to
the President.
(3) (a) Any judge of the Labour Court who is also a judge of the Supreme
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 Supreme 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 Supreme 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 appointed in
terms of section 153(6) must be the same as that payable to a judge of the
Supreme Court.
(b) The terms and conditions of appointment of a judge of the Labour Court
refer-red to in paragraph (a) must be similar to those of a judge of the Supreme
Court.
(6) A person who has been appointed a judge of the Labour Court and who is
not a judge of the Supreme 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 Supreme 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 Supreme Court;
and
(ii) upon having been removed as judge of the Supreme 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.
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.
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.
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 Supreme Court-
(a) In respect of any alleged violation or threatened violation, by the State
in its capacity as employer of any fundamental right entrenched in Chapter 3 of
the Constitution; and
(b) in respect of any dispute over the constitutionally of any executive or
administrative act or conduct, or any threatened executive or administrative act
or conduct, by the State in its capacity as employer.
(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.
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, a registered
employers' organisation, and one of its members about any alleged non-compliance
with the constitution of that trade union or employers' organisation;
(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.
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 practising 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 8 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.
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.
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 legal practitioner, a co-employee or by a member, an office-bearer or official
of that party's trade union or employers' organisation and, if the party is a
juristic person, by a director or an employee.
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.
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 Supreme 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.
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.
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.
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 equal to that which the
Appellate Division of the Supreme Court has in relation to matters under its
jurisdiction.
(4) The Labour Appeal Court is a court of record.
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) three other judges of the Supreme 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.
169. Appointment of judges of Labour Appeal Court
The President, acting on the advice of NEDLAC-AC and the Judicial Service
Commission as defined in section 105 of the Constitution, 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(l)(c).
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 Supreme 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 Supreme 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 Supreme
Court; and
(b) upon having been removed as judge of the Supreme Court must be removed
from office as a judge of the 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.
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.
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) If, in any proceedings before the Labour Appeal Court, circumstances
arise such as those contemplated in-
(a) section 102(l) or (2) of the Constitution, the Labour Appeal Court must
act in the manner provided for in that section; or
(b) section 102(8) of the Constitution, the Labour Appeal Court may act in
the manner provided for in that section.
(3) An appeal to the Labour Appeal Court must be noted and prosecuted as if
it were an appeal to the Appellate Division of the Supreme Court 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.
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.
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.
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.
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 court of a provincial division of the Supreme
Court could have done so.
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.
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.
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 Supreme 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.
182. Judgments of Labour Appeal Court binding on Labour Court
A judgment of the Labour Appeal Court is binding on the Labour 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(l)(a);
(b) its decision on any question of law in terms of section 173(l)(b); or
(c) any judgment or order made in terms of section 175.
Part F - General Provisions Applicable To Courts Established By This Act
184. General provisions applicable to courts established by this Act
Sections 5,4118,4225,4330,4431,4539,464047 and 4248 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.
41. Scope and execution of process.
42. Certified copies of court records admissible as evidence.
43. No process to be issued against judge except with consent of court.
44. Manner of securing attendance of witnesses or the production of any
document.
45. Manner in which witness may be dealt with on refusal to give evidence or
produce document.
46. Property not liable to be seized in execution.
47. Offences relating to execution.
48. Witness fees.
185. Right not to be unfairly dismissed
Every employee has the right not to be unfairly dismissed.
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.
187. Automatically unfair dismissals
(1) A dismissal is automatically unfair if the employer, in dismissing the
employee, acts contrary to section 549 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;50
(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
49. Section 5 confers protections relating to the right to freedom of
association and on members of workplace forums.
50. Chapter IV deals with industrial action and conduct in support of
industrial action. Section 67(4) and (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."
(ii) participating in any proceedings in terms of this Act;
(e) the employee's pregnancy, intended pregnancy, or any reason related to
her pregnancy; 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.
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.51
189. Dismissals based on operational requirements
(1) When an employer contemplates dismissing one or more employees for
reasons based on the employer's operational requirements, the employer must
consult-
(a) any person whom the employer is required to consult in terms of a
collective agreement;
(b) if there is no collective agreement that requires consultation, 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;
51. See Schedule 8, the Code of Good Practice: Dismissal.
(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; 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.
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 (i)-
(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.
191. Disputes about unfair dismissals52
(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
(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-
52. See flow diagrams Nos. 10, 11, 12 and 13 in Schedule 4.
(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 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.
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.
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.53
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.
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.
196. Severance pay
(1) An employer must pay an employee who 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
(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.
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(l).
(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 offence.
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 o 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.
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.
200. Representation of employees or employers
(1) A registered trade union or registered employers' organisation 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.
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 person convicted of an offence in terms of this section may be
sentenced to a fine to be determined by the court, or imprisonment.
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' organisation 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.
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.
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.
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.
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.
207. Ministers empowered to add and change to Schedules
(1) The Minister, after consulting NEDLAC, by notice in the Government
Gazette, may add to, change or replace any Schedule to this Act, including a
Schedule which at any time may have been added to this Act but excluding
Schedules I and 7.
(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).
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.
209. This Act binds the State
This Act binds the State.
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.
211. Amendment of laws
Each of the laws referred to in items I and 2 of Schedule 5 is hereby amended
to the extent specified in those items.
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 Schedule 7 must be read and applied as
substantive provisions of this Act.
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;
(d)"director" means the director of the Commission appointed in
terms of section II 8(1) and includes any acting director appointed in terms of
section 119; "dismissal" means dismissal as defined in section 186;
(e)"dispute" includes an alleged dispute;
(f) " employee "54 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";
" 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;
54. "Employee" is given a different and specific meaning in section
78 in Chapter V. "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'
organisations 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' organisations means a
person employed as the secretary, assistant secretary or organiser of a trade
union, employers' organisation 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 socioeconomic 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
l(l) of the Public Service Act, 1994 (promulgated by Proclamation No. 103 of
1994), and includes any organisational 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 I of the Constitution; and
(b) when used in the territorial sense, means the national territory of the
Republic as defined in section I 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 111;
" 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
organisation, 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.
214. Short title and commencement
(1) This Act is called the Labour Relations Act, 1995.
(2) This Act comes into operation on a date fixed by the President by
proclamation in the Government Gazette.
Schedule I
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(l) 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).
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.
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(l) 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 register 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.
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 1000 employees are employed, IO members;
(d) in a workplace in which more than 1000 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.
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 I 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 follows4 seats for members to be elected from
candidates nominated from among the manual employees
I seat for members to be elected from candidates nominated from among the
administrative and clerical employees
I seat for members to be elected from candidates nominated from among the
supervisory, managerial and technical employees.
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 re-election.
(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.
Every employee is entitled to vote in the 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.
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.
A by-election to fill any vacancy in the workplace forum must be conducted by
an election officer.
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.
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.
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.
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.
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.
10. Establishment of coordinating 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 organisation, the
constitution may provide for the establishment of a coordinating 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 &Amp; 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.
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.
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.
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.
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 II 8 as soon as practicable after the office of the
director becomes vacant.
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.
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.
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.
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
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 is 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.
FLOW DIAGRAM I [Currently unavailable]
Chapter 11 (Section 9)
Footnotes:
1 . This procedure is relevant to the interpretation or application of
Chapter II. For example, if an employer threatens to dismiss an employee unless
the employee resigns from a trade union, that employee can enforce the rights
conferred by this chapter in terms of this
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.
1 . This procedure is relevant to the interpretation or application of
Chapter II. For example, if an employer threatens to dismiss an employee unless
the employee resigns from a trade union, that employee can enforce the rights
conferred by this chapter in terms of this
"(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.".
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 Conn. ".
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 1988 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 I only
Act No.50 of 1994 Agricultural Labour Amendment Act, 1994 Section I
only
Proclamation No.105 Public Service Labour Relations Act, 1994 The
whole of 1994
Proclamation No.128 Education Labour Relations Act, Amendment The
whole except of 1994
Proclamation, 1994 section 6
Proclamation No.134 Sections 1 and 2 only of 1994
South African Police Service Labour Relations Regulations, The
whole 1995
Schedule 7
Transitional Arrangements
Part A-Definitions For This Schedule
Definitions for this Schedule In this Schedule, unless the context otherwise
indicates"Agricultural Labour Act" means the Agricultural Labour Act,
1993 (Act No. 147 of 1993);
"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;
"Labour Relations Act" means the Labour Relations Act, 1956 (Act
No. 28 of 1956);
"labour relations laws" means the Labour Relations Act, the
Education Labour Relations Act, Chapter I of the Agricultural Labour Act and the
Public Service 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;
"pending" means pending immediately before this Act comes into
operation;
" public service" does not include the education sector;
"Public Service Bargaining Council" means the bargaining 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);
"registrar" means the registrar of labour relations designated in
terms of section 108; and
"trade union" includes an employee organisation.
Part B-Unfair Labour Practices
2. Residual unfair labour practices
(1) For the purposes of this item, an unfair labour practice means any unfair
act or omission that arises between an employer and an employee, involving-
(a) the unfair discrimination, either directly or indirectly, against an
employee 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;
(b) the unfair conduct of the employer relating to the promotion, demotion or
training of an employee or relating to the provision of benefits to an employee;
(c) the unfair suspension of an employee or any other disciplinary action
short of dismissal in respect of an employee;
(d) the failure or refusal of an employer to reinstate or re-employ a former
employee in terms of any agreement.
(2) For the purposes of sub-item (1)(a)-
(a) "employee" includes an applicant for employment;
(b) an employer is not prevented from adopting or implementing employment
policies and practices that are designed to achieve the adequate protection and
advancement of persons or groups or categories of persons disadvantaged by
unfair discrimination, in order to enable their full and equal enjoyment of all
rights and freedoms; and
(c) any discrimination based on an inherent requirement of the particular
does not constitute unfair discrimination.
3. Disputes about unfair labour practices55
(1) Any party may refer a dispute about an alleged unfair labour practice 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-
(a) any party to the dispute, if the dispute is about an act or omission
referred to in item 2(1)(a), may refer the dispute to the Labour Court for
adjudication;
(b) any party to the dispute, if the dispute is about an act or omission
referred
55. See flow diagram No. 14 in Schedule 4. to in item 2(1)(b), (c) or (d),
may request that the dispute be resolved through arbitration.
4. Powers of Labour Court and Commission
(1) The Labour Court has the power to determine any dispute that has been
referred to it in terms of item 3 on terms it deems reasonable, including, but
not limited to, the ordering of reinstatement or compensation.
(2) The arbitrator has the power to determine any dispute that has been
referred to it in terms of item 3 on reasonable terms.
Part C-Provisions Concerning Existing Trade Unions, Employers'
Organisations, Industrial Councils And Conciliation Boards
5. Existing registered trade unions and employers' organisations
(1) A trade union or employers' organisation registered in terms of the
labour relations laws immediately before the commencement of this Act is deemed
to be a registered trade union or registered employers' organisation under this
Act and continues to be a body corporate.
(2) As soon as practicable after the commencement of this Act, the registrar
must enter-
(a) the name of the trade union in the register of trade unions;
(b) the name of the employers' organisation in the register of employers'
organisations.
(3) A trade union or employers' organisation whose name has been entered in
the appropriate register must be issued with a new certificate of registration.
(4) If any provision of the constitution of the trade union or employers'
organisation does not comply with the requirements of section 95, the registrar
may direct that trade union or employers' organisation, in writing, to rectify
its constitution and submit it to the registrar within a period specified in the
direction, which period may not be shorter than three months.
(5) If a trade union or employers' organisation falls to comply with a
direction issued to it in terms of sub-item (4), the registrar must notify the
trade union or employers' organisation that cancellation of its registration is
being considered because of the failure, and give the trade union or employers'
organisation an opportunity to show cause why its registration should not be
cancelled within 30 days of the notice.
(6) If, when the 30-day period expires, the relevant trade union or
employers' organisation has not shown cause why its registration should not be
cancelled, the registrar must cancel the registration of that trade union or
employers' organisation by removing its name from the appropriate register or
take other lesser steps that are appropriate and not inconsistent with this Act.
(7) The registrar must notify the relevant trade union or employers'
organisation whether the registration of the trade union or employers'
organisation has been cancelled.
(8) Cancellation in terms of subitem (6) takes effect-
(a) if the trade union or the employers' organisation has failed, within the
time contemplated in section 111 (3), to appeal to the Labour Court against the
cancellation, when that period expires; or
(b) if the trade union or the employers' organisation has lodged an appeal,
when the decision of the registrar has been confirmed by the Labour Court.
6. Pending applications by trade unions or employers' organisations for
registration, variation of scope, alteration of constitution or name
(1) Any pending application in terms of the labour relations laws for the
registration, variation of scope of registration or alteration of the
constitution or name of a trade union or an employers' organisation must be
dealt with by the registrar as if the application had been made in terms of this
Act.
(2) The registrar appointed in terms of the Public Service Labour Relations
Act and the secretary of the Education Labour Relations Council appointed in
terms of the Education Labour Relations Act must forward any pending application
referred to in sub-item (1) to the registrar.
(3) In any pending appeal in terms of section 16 of the Labour Relations Act
or in terms of section I I of the Education Labour Relations Act or in terms of
section I I of the Public Service Labour Relations Act, the Minister or the
registrar of the industrial court or the registrar of the Supreme Court, as the
case may be, must refer the matter back to the registrar who must deal with the
application as if it were an application made in terms of this Act.
(4) When dealing with any application referred to in sub-item (1) or (2), the
registrar-
(a) may condone any technical non-compliance with the provisions of this Act;
and
(b) may require the applicant to amend its application within 60 days in
order to comply with the provisions of this Act.
7. Industrial councils
(1) An industrial council registered in terms of the Labour Relations Act
immediately before the commencement of this Act is deemed to be a bargaining
council under this Act and continues to be a body corporate.
(2) As soon as practicable after the commencement of this Act, the registrar
must enter the name of the bargaining council in the register of councils.
(3) A bargaining council whose name has been entered in the register of
councils must be issued with a certificate of registration.
(4) If any provision of the constitution of a bargaining council does not
comply with the requirements of section 30, the registrar may direct the
bargaining council, in writing, to rectify its constitution and submit it to the
registrar within a period specified in the direction, which period may not be
shorter than three months.
(5) If a bargaining council fails to comply with a direction issued to it in
terms of sub-item (4), the registrar must notify the bargaining council that
cancellation of its registration is being considered because of the failure, and
give the bargaining council an opportunity to show cause why its registration
should not be cancelled within 30 days of the notice.
(6) If, when the 30-day period expires, the bargaining council has not shown
cause why its registration should not be cancelled, the registrar must cancel
the registration of that bargaining council by removing its name from the
register of councils or take other lesser steps that are appropriate and not
inconsistent with this Act.
(7) The registrar must notify the bargaining council whether the registration
of the bargaining council has been cancelled.
(8) Cancellation in terms of sub-item (6) takes effect-
(a) if the bargaining council has failed, within the time contemplated in
section 111(3), to appeal to the Labour Court against the cancellation, when
that period expires; or
(b) if the bargaining council has lodged an appeal, when the decision of the
registrar has been confirmed by the Labour Court.
8. Pending applications by industrial councils for registration and variation
of scope
(1) Any pending application for the registration or the variation of the
scope of registration of an industrial council in terms of the Labour Relations
Act must be dealt with as if it were an application made in terms of this Act.
(2) In any pending appeal in terms of section 16 of the Labour Relations Act
against the refusal to register an industrial council, the Minister or the
registrar of the Supreme Court must refer the matter to the registrar of labour
relations who must consider the application anew as if it were an application
for registration made in terms of this Act.
(3) When dealing with the application referred to in sub-item (1) or (2), the
registrar may-
(a) require the applicant to amend its application within 60 days in order to
comply with the provisions of this Act; and
(b) condone technical non-compliance with the provisions of this Act.
9. Pending applications by industrial councils for alteration of constitution
or name
The provisions in item 6 apply, read with the changes required by the
context, to any pending application for the alteration of the constitution or
the name of an industrial council in terms of the Labour Relations Act.
10. Pending applications for admission of parties to industrial councils (1)
Any pending application for admission of a party to an industrial council in
terms of section 21 A of the Labour Relations Act must be dealt with by the
industrial council as if it were an application made in terms of this act (2)
Any pending appeal before the industrial court against a decision of an
industrial I] in terms of section 21 A of the Labour Relations Act must be with
by council in the industrial court as if the application had been made for
admission as a party to a bargaining council in terms of this Act.
(3) An appeal against a decision of an industrial council as contemplated in
section 21 A of the Labour Relations Act may, despite the repeal of that Act, be
instituted after the commencement of this Act, and must be heard by the Labour
Court and dealt with as if the application for admission had been made in terms
of this Act.
11. Pending applications to wind up and cancel registration of trade unions,
employers' organisations and industrial councils
Any pending application to wind up or to cancel the registration of a trade
union, employers' organisation or industrial council registered in terms of any
labour relations law must be dealt with by the registrar as if the labour
relations laws had not been repealed.
12. Existing agreements and awards of industrial councils and conciliation
boards
(1) Any agreement promulgated in terms of section 48, and any award made in
terms of section 50, of the Labour Relations Act and in force immediately before
the commencement of this Act remains in force for a period of 18 months after
the commencement of this Act or until the expiry of that agreement, whichever is
the shorter period, as if that Act had not been repealed.
(2) An agreement promulgated in terms of section 12 of the Education Labour
Relations Act and in force immediately before the commencement of this Act
remains in force for a period of 18 months after the commencement of this Act or
until the expiry of that agreement, whichever is the shorter period, as if the
provisions of that Act had not been repealed.
(3) Despite the provisions of sub-item (1), an agreement referred to in
section 24(l)(x) of the Labour Relations Act that is in force immediately before
the commencement of this Act will be deemed to be a closed shop agreement
concluded in compliance with section 26 of this Act except that-
(a) the requirements in section 26(3)(d) and section 98(2)(b)(ii) become
applicable at the commencement of the next financial year of the trade union
party to the agreement; and
(b) the commencement date of the closed shop agreement shall be deemed to be
the commencement date of this Act.
(4) Any pending request for the promulgation of an agreement in terms of
section 48 of the Labour Relations Act must be dealt with as if the Labour
Relations Act had not been repealed.
(5) Any request made before the expiry of six months after the commencement
of this Act for the promulgation of an agreement entered into before the
commencement of this Act must be dealt with as if the Labour Relations Act had
not been repealed.
(6) Any pending application for an exemption from an agreement promulgated in
terms of section 48 of the Labour Relations Act must be dealt with as if the
Labour Relations Act had not been repealed.
13. Existing agreements including recognition agreements
(1) For the purposes of this section, an agreement-
(a) includes a recognition agreement;
(b) excludes an agreement promulgated in terms of section 48 of the Labour
Relations Act or section 12 of the Education Labour Relations Act;
(c) means an agreement about terms and conditions of employment or any other
matter of mutual interest entered into between one or more registered trade
unions, on the one hand, and on the other hand-
(i) one or more employers;
(ii) one or more registered employers' organisations; or
(iii) one or more employers and one or more registered employers'
organisations.
(2) Any agreement that was in force immediately before the commencement of
this Act is deemed to be a collective agreement concluded in terms of this Act.
(3) Any registered trade union that is party to an agreement referred to in
sub-items (1) and (2) in terms of which that trade union was recognised for the
purposes of collective bargaining is entitled to the organisational rights
conferred by sections I I to 16 of Chapter III and in respect of employees that
it represents in terms of the agreement, for so long as the trade union remains
recognised in terms of the agreement as the collective bargaining agent of those
employees.
(4) If the parties to an agreement referred to in subsection (1) or (2) have
not provided for a procedure to resolve any dispute about the interpretation or
application of the agreement as contemplated in section 24(l), the parties to
the agreement must attempt to agree a procedure as soon as practicable after the
commencement of this Act.
(5) An existing non-statutory agency shop or closed shop agreement is not
binding unless the agreement complies with the provisions of sections 25 or 26
of this Act respectively. This provision becomes effective 180 days after the
commencement of this Act.
Part D-Matters Concerning Public Service
14. Public Service Bargaining Council
(1) The Public Service Bargaining Council will continue to exist, subject to
item 20.
(2) The departmental and provincial chambers of the Public Service Bargaining
Council will continue to exist, subject to item 20.
(3) Within 30 days after the commencement of this Act, the chambers of the
Public Service Bargaining Council must furnish the registrar with copies of
their constitutions signed by their authorised representatives.
(4) The constitutions of the chambers of the Public Service Bargaining
Council, are deemed to be in compliance with section 30. However, where any
provision of the constitution of a chamber does not comply with the requirements
of section 30, the registrar may direct the chamber to rectify its constitution
and re-submit the rectified constitution within the period specified in the
direction, which period may not be shorter than three months.
(5) If a chamber fails to comply with a direction issued to it in terms of
sub-item (5), the registrar must-
(a) determine the amendments to the constitution in order to meet the
requirements of section 30; and
(b) send a certified copy of the constitution to the chamber.
(6) A chamber of the Public Service Bargaining Council must deal with any
pending application for admission of a party to it in terms of section 10 of the
Public Service Labour Relations Act as if the application had been made in terms
of this Act.
(7) Any pending appeal before the industrial court or an arbitrator against a
decision of the Public Service Bargaining Council in terms of section 10 of the
Public Service Labour Relations Act must, despite the repeal of any of the
labour relations laws, be dealt with by the industrial court or arbitrator as if
the application had been made in terms of this Act.
(8) Despite the repeal of the Public Service Labour Relations Act, an appeal
in terms of section 10 of that Act against a decision of a chamber of the Public
Service Bargaining Council may be instituted after the commencement of this Act
and must be heard by the Labour Court and dealt with as if the application had
been made in terms of this Act.
15. Collective agreements in the public service
The following provisions, read with the changes required by the context, of
the Public Service Labour Relations Act, despite the repeal of that Act, will
have the effect and status of a collective agreement binding on the State, the
parties to the chambers of the Public Service Bargaining Council and all
employees in the public service-
(a) section I for the purposes of this item unless the context otherwise
indicates;
(b) section 4(10);
(c) section 5(2), (3), (4)(a) and (5);
(d) section 7;
(e) section 8, except that the reference to section 5(l) should be a
reference to item 14(l);
(f) section 9(3);
(g) section 10(4) and (5);
(h) section 12;
(i) section 13, except that the reference to agreements should be a reference
to collective agreements including the collective agreement contemplated in this
item;
(j) sections 14, 15 and 16(2);
(k) section 17, except that the following subsection must be substituted for
subsection (4)(b)- "If the application of a trade union for recognition is
refused, the trade union, within 90 days of the notice of the refusal, may refer
the dispute to arbitration."; and
(l) section 18, except that-
(i) the following subsection must be substituted for sub- section (10)(a)-
"An employee who or the employee organisation which in terms of subsection
(1) has declared a dispute, requested that a conciliation board be established
and submitted the completed prescribed form, may refer the dispute to
arbitration or to the Labour Court in terms of the provisions of this Act and,
in respect of a dispute not contemplated by this Act, to any other court if-
(i) a meeting of a conciliation board is not convened as contemplated in
subsection (3);
(ii) the head of department concerned falls to request the appointment of a
chairperson in terms of subsection (5);
(iii) where applicable, the Commission fails to appoint a chairperson of the
conciliation board in terms of subsection (5);
(iv) the parties involved in the conciliation board have failed to agree to
extend the period of office of the conciliation board in terms of subsection (7)
until a settlement is reached;
(v) the conciliation board does not succeed in settling the dispute within
the period contemplated in subsection (7); or
(vi) the parties to the dispute agree that they will not be able to settle
the dispute and submit written proof thereof to the Commission or relevant
court."; and
(ii) any reference to the Department of Labour should be a reference to the
Commission.
16. Education Labour Relations Council
(1) The Education Labour Relations Council will continue to exist, subject to
item 20.
(2) The registered scope of the Education Labour Relations Council is the
State and those employees in respect of which the Educators' Employment Act,
1994 (Proclamation No. 138 of 1994), applies.
(3) Within 30 days after the commencement of this Act, the Education Labour
Relations Council must furnish the registrar with a copy of its constitution
signed by its authorised representatives, and with the other information or
documentation.
(4) The constitution agreed on between the parties to the Education Labour
Relations Council is deemed to be in compliance with this Act: However, where
any provision of the constitution does not comply with the requirements of
section 30, the registrar may direct the Council to rectify its constitution and
re-submit the rectified constitution within the period specified in the
direction, which period may not be shorter than three months.
(5) If the Education Labour Relations Council fails to comply with a
direction issued to It in terms of sub-item (5), the registrar must-
(a) determine the amendments to the constitution in order to meet the
requirements of section 30; and
(b) send a certified copy of the constitution to the Council.
(6) The Education Labour Relations Council must deal with any pending
application for admission to it in terms of the Education Labour Relations Act
as if the application had been made in terms of this Act.
(7) Any pending appeal before the industrial court or an arbitrator against a
decision of the Education Labour Relations Council must, despite the repeal of
any of the labour relations laws, be dealt with by the industrial court or
arbitrator as if the application had been made in terms of this Act.
(8) Despite the repeal of the Education Labour Relations Act, any appeal
against a decision of the Education Labour Relations Council may be instituted
after the commencement of this Act and must be heard by the Labour Court and
dealt with as if the application had been made in terms of this Act.
17. Education sector collective agreements
The following provisions, read with the changes required by the context, of
the Education Labour Relations Act, despite the repeal of that Act, will have
the effect and status of a collective agreement binding on the State, the
parties to the Education Labour Relations Council and all employees within
registered scope-
(a) section 6(2) and (3);
(b) section 8(3), (4) and (5)(a);
(c) section 10(3) and (4);
(d) section 12(1) to (4), except that the disputes referred to in subsections
(2) and (4) may be referred to arbitration only; and
(e) section 13 and section 14(2).
18. Negotiating Forums in South African Police Service
(1) The National Negotiating Forum will continue to exist subject to item 20.
(2) The registered scope of the National Negotiating Forum is the State and
those employees in respect of whom the South African Police Service
Rationalisation Proclamation, 1995 and the Act contemplated in section 214 of
the Constitution applies.
(3) Within fourteen days of the commencement of this Act, or signing of its
constitution by its authorised representatives, whichever is the later, the
National Negotiating Forum must furnish the registrar with a copy of its
constitution signed by its authorised representatives, and with the other
information or documentation.
(4) The constitution agreed to by the National Negotiating Forum is deemed to
be in compliance with this Act. However where any provision of the constitution
does not comply with the requirements of section 30, the registrar may direct
the National Negotiating Forum to rectify its constitution and re-submit the
rectified constitution within fourteen days.
(5) The National Commissioner of the South African Police Service must deal
with any pending application for registration and recognition in terms of the
South made' African Police Service Labour Regulations as if the application had
been in terms of this Act
19. Collective agreement in South African Police Service
The provisions of the South African Police Services Employment Regulations,
read with the changes required by the context, despite the repeal of those
regulations, will have the effect and status of a collective agreement binding
on the State, the parties to the National Negotiating Forum and all the
employees within its registered scope.
20. Consequences for public service bargaining institutions when Public
Service Co-ordinating Bargaining Council is established
When the Public Service Co-ordinating Bargaining Council is established in
terms of item 2 of Schedule I-
(a) the Public Service Bargaining Council and its chamber at central level
will cease to exist; and
(b) the following chambers of the former Public Service Bargaining Council
will continue to exist as juristic persons, despite paragraph (a), namely-
(i) the chamber for each department, which will be deemed to be a bargaining
council that has been established under section 37(3)(a) of this Act for that
department;
(ii) the chamber for each provincial administration, which will be deemed to
be a bargaining council that has been established under section 37(3)(a) for
that provincial administration; and
(c) the Education Labour Relations Council will be deemed to be a bargaining
council that has been established in terms of section 37(3)(b) of this Act for
the education sector;
(d) the National Negotiating Forum will be deemed to be a bargaining council
that has been established in terms of section 37(3)(b) of this Act for the South
African Police Service.
Part E-Disputes And Courts
21. Disputes arising before commencement of this Act (1) Any dispute
contemplated in the labour relations laws that arose before the commencement of
this Act must be dealt with as if those laws had not been repealed.
(2) Despite subsection (1), a strike or lock-out that commences after this
Act comes into operation will be dealt with in terms of this Act. This rule
applies even if the dispute giving rise to the strike or lock-out arose before
this Act comes into operation.
(3) For the purposes of a strike or lock-out referred to in sub-item (2),
compliance with section 65(l)(d) of the Labour Relations Act, section 19(l)(b)
of the Public Service Labour Relations Act and section 15(l)(b) of the Education
Labour Relations Act will be deemed to be compliance with section 64(l)(a) of
this Act.
22. Courts (1) In any pending dispute in respect of which the industrial
court or the agricultural labour court had jurisdiction and in respect of which
proceedings had not been instituted before the commencement of this Act,
proceedings must be instituted in the industrial court or agricultural labour
court (as the case may be) and dealt with as if the labour relations laws had
not been repealed. The industrial court or the agricultural labour court may
perform or exercise any of the functions and powers that it had in terms of the
labour relations laws when it determines the dispute.
(2) Any dispute in respect of which proceedings were pending in the
industrial court or the agricultural labour court must be proceeded with as if
the labour relations laws had not been repealed.
(3) Any pending appeal before the Labour Appeal Court established by section
17A of the Labour Relations Act must be dealt with by the Labour Appeal Court as
if the labour relations laws had not been repealed.
(4) Any pending appeal from a decision of that Labour Appeal Court or any
appeal to the Appellate Division from a decision of the Labour Appeal Court in
terms of section 17C and section 64 of the Labour Relations Act must be dealt
with as if the labour relations laws had not been repealed.
(5) Any appeal from a decision of the industrial court or the agricultural
labour court in terms of sub-item (1) or (2), must be made to the Labour Court
established by section 151 of this Act, and that Labour Court must deal with the
appeal as if the labour relations laws had not been repealed.
Part F-Pension Matters
23. Continuation of existing pension rights of staff members of Commission
upon assuming employment (1) Any staff member of the Commission who, immediately
before assuming employment with the Commission, is a member of the Government
Service Pension Fund, the Temporary Employees Pension Fund or any other pension
fund or scheme administered by the Department of Finance (hereinafter referred
to as an officer or employee), may upon assuming that employment-
(a) choose to remain a member of that pension fund, and from the date of
exercising the choice, the officer or employee, despite the provisions of any
other law, will be deemed to be a dormant member of the relevant pension fund
within the contemplation of section 15(l)(a) of the General Pensions Act, 1979
(Act No. 29 of 1979);
(b) request to become a member of the Associated Institutions Pension Fund
established under the Associated Institutions Pension Fund Act, 1963 (Act No. 41
of 1963), as if the Commission had been declared an associated institution under
section 4 of that Act; or
(c) request to become a member of any other pension fund registered under the
Pension Funds Act, 1956 (Act No. 24 of 1956).
(2) In the case where an officer or employee becomes a member of a fund after
making a request in terms of sub-item (1)(b) or (c)-
(a) the pension fund of which the officer or employee was a member ("the
former fund") must transfer to the pension fund of which the officer or
employee becomes a member of ("the new fund") an amount equal to the
funding level of the former fund multiplied by its actuarial liability in
respect of that officer or employee at the date the officer or employee assumes
office with the Commission, increased by the amount of interest calculated on
that amount at the prime rate of interest from the date when employment with the
Commission commenced up to the date of transfer of the amount;
(b) membership of the officer or employee of the former fund will lapse from
the date when employment with the Commission commenced, and from that date the
officer or employee will cease to have any further claim against the former fund
except as provided in paragraph (a); and
(c) the former fund must transfer any claim it may have against the officer
or employee, to the new fund.
(3) In the case where an officer or employee becomes a member of a new fund
after a request in terms of sub-item (1)(c) the State must pay the new fund an
amount equal to the difference between the actuarial liability of the former
fund in respect of the officer or employee as on the date of the commencement of
employment with the Commission, and the amount transferred in terms of sub-item
(2)(c) to the new fund, increased by the amount of interest thereon calculated
at the prime rate from the date of commencement of employment up to the date of
the transfer of the amount.
(4) Sub-items (2) and (3) will apply, read with the changes required by the
context, in respect of any officer or employee who, by reason of having made a
choice in terms of sub-item (1)(a), has become a dormant member and thereafter
requests that the pension benefits that had accrued, be transferred in terms of
section 15A(1) of the General Pensions Act, 1979, to another pension fund
referred to in that Act or a pension fund registered in terms of the Pension
Funds Act, 1956.
(5) If, after an officer or employee has become a member of any other pension
fund, by reason of having made a choice in terms of sub-item (1)(c), a lump sum
benefit has become payable by that pension fund by reason of the death, or the
withdrawal or resignation from the pension fund, or retirement, of the officer
or employee, or the winding-up of the pension fund, then, for the purposes of
paragraph (e) of the definition of "gross income" in section I of the
Income Tax Act, 1962 (Act No. 58 of 1962), the pension fund will be deemed, in
relation to such officer or employee, to be a fund referred to in paragraph (a)
of the definition of "pension fund" in section I of that Act.
(6) For the purposes of this item-
" actuarial liability" of a pension fund in respect of a particular
member or a group of members of the fund, means the actuarial liability that is
determined by an actuary who the Minister has nominated for that purpose;
"funding level", in relation to a pension fund, means the market
value of the assets of the fund stated as a percentage of the total actuarial
liability of the fund, after those assets and liabilities have been reduced by
the amount of the liabilities of the fund in respect of all its pensioners, as
determined at the time of the most recent actuarial valuation of the fund or any
review thereof carried out under direction of the responsible Minister; and
" prime rate of interest" means the average prime rate of interest
of the three largest banks in the Republic.
Schedule 8
Code Of Good Practice: Dismissal
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.
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.
3. Misconduct
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
offences.
Dismissals for misconduct
(4) Generally, it is not appropriate to dismiss an employee for a first
offence, 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.
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.
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.
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.
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.
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.
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.
10. Incapacity: III 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 I 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 employees 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.
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.
