Labour Relations Act
Part 2 of 3 · provisions 201–400
This section states the purpose of the Act.
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- Jurisdiction
- South Africa
- Instrument
- Act or statute
- Citation
- Act 66 of 1995
- Version
- Undated source snapshot
- Language
- en
- Updated
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Labour Court referral account administration accounting accreditation accredited agencies acting leadership adjudication administrative authorisation administrative compliance administrative decisions administrative delegation administrative dispute process administrative powers administrative procedure administrative variation agency appointment amalgamation annual audit anti-retaliation appeals appeals processing appellate procedure application procedure application process +421 more
Statute overview
About this statute
This section states the purpose of the Act. This section is about exclusion from the application of the Act. Section 3 is titled “Interpretation of this Act” and refers to Chapter II, “Freedom Of Association And General Protections.” Section heading: Employees’ right to freedom of association. This section is about protection of employees and people seeking employment.
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Provisions of Labour Relations Act
Showing 200 of 565
Part
Chapter IX General Provisions
- 206 Verify source ↗
Effect of certain defects and irregularities
AI-assisted research summary: Section heading: Effect of certain defects and irregularities.
206. Effect of certain defects and irregularities - 207 Verify source ↗
Ministers empowered to add and change to Schedules
AI-assisted research summary: Ministers have power to add to and change the Schedules.
207. Ministers empowered to add and change to Schedules - 209 Verify source ↗
This Act binds the State
AI-assisted research summary: This Act applies to the State.
209. This Act binds the State - 210 Verify source ↗
Application of Act when in conflict with other laws
AI-assisted research summary: This section is titled “Application of Act when in conflict with other laws.”
210. Application of Act when in conflict with other laws - 211 Verify source ↗
Amendment of laws
AI-assisted research summary: This section is titled “Amendment of laws.”
211. Amendment of laws - 212 Verify source ↗
Repeal of laws, and transitional arrangements
AI-assisted research summary: Section 212 concerns repeal of laws and transitional arrangements.
212. Repeal of laws, and transitional arrangements - 214 Verify source ↗
Short title and commencement
AI-assisted research summary: This section is titled “Short title and commencement” and refers to Schedule 1 on the establishment of bargaining councils for public service.
214. Short title and commencement Schedule 1 Establishment Of Bargaining Councils For Public Service
Part
Schedule 1 Establishment Of Bargaining Councils For Public Service
- 1 Verify source ↗
Definitions for this Schedule
AI-assisted research summary: This section is the definitions section for the Schedule.
1. Definitions for this Schedule - 2 Verify source ↗
Establishment of Public Service Coordinating Bargaining Council
AI-assisted research summary: This section is titled “Establishment of Public Service Coordinating Bargaining Council.”
2. Establishment of Public Service Coordinating Bargaining Council - 3 Verify source ↗
Establishment of bargaining council in sectors
AI-assisted research summary: This provision is a section heading about establishing a bargaining council in sectors and refers to Schedule 2 guidelines for the constitution of a workplace forum.
3. Establishment of bargaining council in sectors Schedule 2 Guidelines For Constitution Of Workplace Forum
Part
Schedule 2 Guidelines For Constitution Of Workplace Forum
- 2 Verify source ↗
Number of seats in workplace forums (section 82(1)(a))
AI-assisted research summary: This section is titled “Number of seats in workplace forums (section 82(1)(a)).”
2. Number of seats in workplace forums (section 82(1)(a)) - 3 Verify source ↗
Distribution of seats to reflect occupational structure (section 82(l)
AI-assisted research summary: This section is about distributing seats to reflect occupational structure.
3. Distribution of seats to reflect occupational structure (section 82(l) (b)) - 4 Verify source ↗
Elections (section 82(l)(c), (d), (g), (h), (i) and (j))
AI-assisted research summary: This section is titled “Elections” and refers to section 82(l)(c), (d), (g), (h), (i) and (j).
4. Elections (section 82(l)(c), (d), (g), (h), (i) and (j)) - 5 Verify source ↗
Terms of office (section 82(l)(k), (1) and (m))
AI-assisted research summary: This section is titled “Terms of office.”
5. Terms of office (section 82(l)(k), (1) and (m)) - 6 Verify source ↗
Meetings of workplace forum (section 82(l)(n))
AI-assisted research summary: This section is titled “Meetings of workplace forum (section 82(l)(n)).”
6. Meetings of workplace forum (section 82(l)(n)) - 7 Verify source ↗
Time off for members of workplace forum (section 82(1)(p))
AI-assisted research summary: This section concerns time off for members of a workplace forum.
7. Time off for members of workplace forum (section 82(1)(p)) - 8 Verify source ↗
Facilities to be provided to workplace forum (section 82(l)(r))
AI-assisted research summary: This section is about facilities to be provided to a workplace forum.
8. Facilities to be provided to workplace forum (section 82(l)(r)) - 9 Verify source ↗
Experts (section 82(l)(t))
AI-assisted research summary: This section is titled “Experts (section 82(l)(t)).”
9. Experts (section 82(l)(t)) - 10 Verify source ↗
Establishment of coordinating and subsidiary workplace forums
AI-assisted research summary: Section heading for the establishment of coordinating and subsidiary workplace forums.
10. Establishment of coordinating and subsidiary workplace forums (section 82(2)(b)) Schedule 3 Commission For Conciliation, Mediation & Arbitration 230
Part
Schedule 3 Commission For Conciliation, Mediation & Arbitration 230
- 1 Verify source ↗
Remuneration and allowances of members of governing body
AI-assisted research summary: This provision concerns the remuneration and allowances of members of the governing body.
1 . Remuneration and allowances of members of governing body - 2 Verify source ↗
Resignation and removal from office of member of governing body
AI-assisted research summary: Section 2 concerns resignation and removal from office of a member of a governing body.
2. Resignation and removal from office of member of governing body - 3 Verify source ↗
Vacancies in governing body
AI-assisted research summary: This section is about vacancies in the governing body.
3. Vacancies in governing body - 4 Verify source ↗
Proceedings of governing body
AI-assisted research summary: Section heading: Proceedings of governing body.
4. Proceedings of governing body - 5 Verify source ↗
Director of Commission
AI-assisted research summary: This provision is titled “Director of Commission.”
5. Director of Commission - 7 Verify source ↗
Investment of surplus money
AI-assisted research summary: This section concerns the investment of surplus money.
7. Investment of surplus money - 8 Verify source ↗
Accounting and auditing
AI-assisted research summary: Section 8 is titled “Accounting and auditing.”
8. Accounting and auditing - 9 Verify source ↗
Annual report
AI-assisted research summary: This section is titled “Annual report” and references Schedule 4 on dispute resolution flow diagrams and Schedule 5 on amendment of laws.
9. Annual report Schedule 4 Dispute Resolution: Flow Diagrams Schedule 5 Amendment Of Laws 250
Part
Schedule 5 Amendment Of Laws 250
- 1 Verify source ↗
Amendment of section 1 of Basic Conditions of Employment Act
AI-assisted research summary: This heading says section 1 of the Basic Conditions of Employment Act is being amended.
1. Amendment of section 1 of Basic Conditions of Employment Act - 2 Verify source ↗
Amendment of section 35 of Occupational Health and Safety Act,
AI-assisted research summary: This section amends section 35 of the Occupational Health and Safety Act, 1993.
2. Amendment of section 35 of Occupational Health and Safety Act, 1993 - 3 Verify source ↗
Amendment of section 2 of Pension Funds Act, 1956
AI-assisted research summary: This provision is a heading stating that section 2 of the Pension Funds Act, 1956 is amended.
3. Amendment of section 2 of Pension Funds Act, 1956 - 4 Verify source ↗
Amendment of section 2 of Medical Schemes Act, 1967
AI-assisted research summary: This section is about amending section 2 of the Medical Schemes Act, 1967.
4. Amendment of section 2 of Medical Schemes Act, 1967 - 5 Verify source ↗
Amendment of section 1 of Insurance Act, 1943
AI-assisted research summary: This section amends section 1 of the Insurance Act, 1943.
5. Amendment of section 1 of Insurance Act, 1943 - 6 Verify source ↗
Amendment of section 2 of Friendly Societies Act, 1956
AI-assisted research summary: This section is an amendment heading for section 2 of the Friendly Societies Act, 1956.
6. Amendment of section 2 of Friendly Societies Act, 1956 - 7 Verify source ↗
Amendment of section 3 of Friendly Societies Act, 1956
AI-assisted research summary: This section amends section 3 of the Friendly Societies Act, 1956.
7. Amendment of section 3 of Friendly Societies Act, 1956 Schedule 6 Laws Repealed By Section 212 Schedule 7 Transitional Arrangements Part A-Definitions For This Schedule
Part
Part A-Definitions For This Schedule
- 1 Verify source ↗
Definitions for this Schedule
AI-assisted research summary: This section sets out definitions for Schedule Part B on unfair labour practices.
1. Definitions for this Schedule Part B-Unfair Labour Practices
Part
Part B-Unfair Labour Practices
- 2 Verify source ↗
Residual unfair labour practices
AI-assisted research summary: This section is titled “Residual unfair labour practices.”
2. Residual unfair labour practices - 3 Verify source ↗
Disputes about unfair labour practices
AI-assisted research summary: This section concerns disputes about unfair labour practices.
3. Disputes about unfair labour practices - 4 Verify source ↗
Powers of Labour Court and Commission
AI-assisted research summary: This section is titled “Powers of Labour Court and Commission” and sits in Part C about existing trade unions, employers’ organisations, industrial councils, and conciliation boards.
4. Powers of Labour Court and Commission Part C-Provisions Concerning Existing Trade Unions, Employers' Organisations, Industrial Councils And Conciliation Boards
Part
Part C-Provisions Concerning Existing Trade Unions, Employers'
- 5 Verify source ↗
Existing registered trade unions and employers' organisations
AI-assisted research summary: Section 5 is titled “Existing registered trade unions and employers' organisations.”
5. Existing registered trade unions and employers' organisations - 6 Verify source ↗
Pending applications by trade unions or employers' organisations for
AI-assisted research summary: Section heading about pending applications by trade unions or employers' organisations for registration, variation of scope, alteration of constitution or name.
6. Pending applications by trade unions or employers' organisations for registration, variation of scope, alteration of constitution or name - 7 Verify source ↗
Industrial councils
AI-assisted research summary: Section heading: Industrial councils.
7. Industrial councils - 8 Verify source ↗
Pending applications by industrial councils for registration and
AI-assisted research summary: Section 8 concerns pending applications by industrial councils for registration and variation of scope.
8. Pending applications by industrial councils for registration and variation of scope - 8A Verify source ↗
Pending enquiries by industrial registrar
AI-assisted research summary: Section 8A concerns pending enquiries by the industrial registrar.
8A. Pending enquiries by industrial registrar - 9 Verify source ↗
Pending applications by industrial councils for alteration of
AI-assisted research summary: Section heading only: pending applications by industrial councils for alteration of constitution or name.
9. Pending applications by industrial councils for alteration of constitution or name - 10 Verify source ↗
Pending applications for admission of parties to industrial councils
AI-assisted research summary: Section 10 concerns pending applications for admission of parties to industrial councils.
10. Pending applications for admission of parties to industrial councils - 11 Verify source ↗
Pending applications to wind up and cancel registration of trade
AI-assisted research summary: This section is about pending applications to wind up and cancel registration of trade unions, employers' organisations, and industrial councils.
11. Pending applications to wind up and cancel registration of trade unions, employers' organisations and industrial councils - 12 Verify source ↗
Existing agreements and awards of industrial councils and
AI-assisted research summary: Section title only: Existing agreements and awards of industrial councils and conciliation boards.
12. Existing agreements and awards of industrial councils and conciliation boards - 12A Verify source ↗
Designated agents
AI-assisted research summary: Section 12A is titled “Designated agents.”
12A. Designated agents - 13 Verify source ↗
Existing agreements including recognition agreements
AI-assisted research summary: Section 13 concerns existing agreements, including recognition agreements, in Part D on matters concerning public service.
13. Existing agreements including recognition agreements Part D- Matters Concerning Public Service
Part
Part D- Matters Concerning Public Service
- 14 Verify source ↗
Public Service Bargaining Council
AI-assisted research summary: Section title: Public Service Bargaining Council.
14. Public Service Bargaining Council - 15 Verify source ↗
Collective agreements in the public service
AI-assisted research summary: Section 15 is titled “Collective agreements in the public service.”
15. Collective agreements in the public service - 16 Verify source ↗
Education Labour Relations Council
AI-assisted research summary: Section 16 is titled “Education Labour Relations Council.”
16. Education Labour Relations Council - 17 Verify source ↗
Education sector collective agreements
AI-assisted research summary: Education sector collective agreements.
17. Education sector collective agreements - 18 Verify source ↗
Negotiating Forum in South African Police Service
AI-assisted research summary: This section is titled “Negotiating Forum in South African Police Service.”
18. Negotiating Forum in South African Police Service - 19 Verify source ↗
Collective agreements in South African Police Service
AI-assisted research summary: Section 19 is titled “Collective agreements in South African Police Service.”
19. Collective agreements in South African Police Service - 20 Verify source ↗
Consequences for public service bargaining institutions when
AI-assisted research summary: This provision is a section heading about consequences for public service bargaining institutions when the Public Service Coordinating Bargaining Council is established.
20. Consequences for public service bargaining institutions when Public Service Coordinating Bargaining Council is established Part E-Disputes And Courts
Part
Part E-Disputes And Courts
- 21 Verify source ↗
Disputes arising before commencement of this Act
AI-assisted research summary: Section 21 concerns disputes arising before the Act commenced.
21. Disputes arising before commencement of this Act - 21A Verify source ↗
Dispute resolution by councils before their accreditation
AI-assisted research summary: This section concerns dispute resolution by councils before they are accredited.
21A. Dispute resolution by councils before their accreditation - 22 Verify source ↗
Courts
AI-assisted research summary: This provision is a section heading for Courts under Part F, Pension Matters.
22. Courts Part F-Pension Matters
Part
Part F-Pension Matters
- 23 Verify source ↗
Continuation of existing pension rights of staff members of
AI-assisted research summary: This section is about continuing existing pension rights for Commission staff members when they take up employment.
23. Continuation of existing pension rights of staff members of Commission upon assuming employment Part G – Essential Services
Part
Part G – Essential Services
- 24 Verify source ↗
Essential services in the public service
AI-assisted research summary: Section title: Essential services in the public service.
24. Essential services in the public service - 25 Verify source ↗
Essential services provided for in the Labour Relations Act
AI-assisted research summary: This section is titled “Essential services provided for in the Labour Relations Act Schedule 8 Code of Good Practice: Dismissal.”
25. Essential services provided for in the Labour Relations Act Schedule 8 Code Of Good Practice: Dismissal
Part
Schedule 8 Code Of Good Practice: Dismissal
- 2 Verify source ↗
Fair reasons for dismissal
AI-assisted research summary: This section concerns fair reasons for dismissal.
2. Fair reasons for dismissal - 3 Verify source ↗
Disciplinary measures short of dismissal
AI-assisted research summary: This section is about disciplinary measures short of dismissal.
3. Disciplinary measures short of dismissal - 5 Verify source ↗
Disciplinary records
AI-assisted research summary: This section is titled “Disciplinary records.”
5. Disciplinary records - 6 Verify source ↗
Dismissals and industrial action
AI-assisted research summary: Section heading: Dismissals and industrial action.
6. Dismissals and industrial action - 7 Verify source ↗
Guidelines in cases of dismissal for misconduct
AI-assisted research summary: Guidelines for dismissals involving misconduct.
7. Guidelines in cases of dismissal for misconduct - 8 Verify source ↗
Incapacity: Poor work performance
AI-assisted research summary: This section is about incapacity involving poor work performance.
8. Incapacity: Poor work performance - 9 Verify source ↗
Guidelines in cases of dismissal for poor work performance
AI-assisted research summary: This section gives guidelines for cases of dismissal for poor work performance.
9. Guidelines in cases of dismissal for poor work performance - 10 Verify source ↗
Incapacity: III health or injury
AI-assisted research summary: Section title: Incapacity — health or injury.
10. Incapacity: III health or injury - 11 Verify source ↗
Guidelines in cases of dismissal arising from ill health or injury
AI-assisted research summary: Guidelines for dismissal cases arising from ill health or injury.
11. Guidelines in cases of dismissal arising from ill health or injury CHAPTER I PURPOSE, APPLICATION AND INTERPRETATION
Part
CHAPTER I
- 1 Verify source ↗
Purpose of this Act
AI-assisted research summary: This section states the Act’s purpose: to support economic development, social justice, labour peace, workplace democratisation, and collective bargaining-related labour relations.
1. Purpose of this Act The purpose of this Act1 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) (b) (c) to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution ;2 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- (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. 1 2. An italicised word or phrase indicates that the word or phrase is defined in section 213 of this Act. 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)." - 2 Verify source ↗
Exclusion from application of this Act
AI-assisted research summary: This Act does not apply to members of the National Defence Force, the National Intelligence Agency, or the South African Secret Service.
2. Exclusion from application of this Act This Act does not apply to members of- (a) the National Defence Force; (b) the National Intelligence Agency; and (c) the South African Secret Service. - 3 Verify source ↗
Interpretation of this Act
AI-assisted research summary: Any person applying this Act must interpret its provisions to support the Act’s main objects and stay consistent with the Constitution and South Africa’s public international law obligations.
3. Interpretation of this Act Any person applying this Act must interpret its provisions- (a) to give effect to its primary objects; (b) in compliance with the Constitution; and (c ) in compliance with the public international law obligations of the Republic. CHAPTER II FREEDOM OF ASSOCIATION AND GENERAL PROTECTIONS
Part
CHAPTER II
- 4 Verify source ↗
Employees' right to freedom of association
AI-assisted research summary: Employees and certain trade union members have rights to join, form, and participate in trade union and federation activities, subject to the relevant constitution.
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) (c ) (d) 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 to stand for election and be eligible for appointment as a trade union representative and, if elected or appointed, to carry out the functions of a trade union representative in terms of this Act or any collective agreement. (3) Every member of a trade union that is a member of a federation of trade unions has the right, subject to the constitution of that federation- (a) to participate in its lawful activities; (b) to participate in the election of any of its office-bearers or officials; and (c ) to stand for election and be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office. - 5 Verify source ↗
Protection of employees and persons seeking employment
AI-assisted research summary: No person may discriminate against, pressure, disadvantage, or reward employees or job seekers to stop them exercising rights under the Act or taking part in proceedings.
5. Protection of employees and persons seeking employment (1) No person may discriminate against an employee for exercising any right conferred by this Act. (2) Without limiting the general protection conferred by subsection (1), no person may do, or threaten to do, any of the following- (a) require an employee or a person seeking employment- (i) not to be a member of a trade union or workplace forum; (ii) not to become a member of a trade union or workplace, forum; or (iii) to give up membership of a trade union or workplace forum; (b) prevent an employee or a person seeking employment from exercising any right conferred by this Act or from participating in any proceedings in terms of this Act; or (c) prejudice an employee or a person seeking employment because of past, present or anticipated- (i) membership of a trade union or workplace forum; (ii) participation in forming a trade union or federation of trade unions or establishing a workplace forum; (iii) participation in the lawful activities of a trade union, federation of trade unions or workplace forum; (iv) failure or refusal to do something that an employer may not lawfully permit or require an employee to do; (v) disclosure of information that the employee is lawfully entitled or required to give to another person; (vi) exercise of any right conferred by this Act; or (vii) participation in any proceedings in terms of this Act. (3) No person may advantage, or promise to advantage, an employee or a person seeking employment in exchange for that person not exercising any right conferred by this Act or not participating in any proceedings in terms of this Act. However, nothing in this section precludes the parties to a dispute from concluding an agreement to settle that dispute. (4) A provision in any contract, whether entered into before or after the commencement of this Act, that directly or indirectly contradicts or limits any provision of section 4, or this section, is invalid, unless the contractual provision is permitted by this Act. - 6 Verify source ↗
Employers' right to freedom of association
AI-assisted research summary: Employers and members of employers' organisations have rights to form, join, and participate in employers' organisations and federations, subject to the relevant constitution.
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 (c ) if- (i) (ii) 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; 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) (ii) 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 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 Verify source ↗
Protection of employers' rights
AI-assisted research summary: No person may discriminate against or pressure an employer for exercising rights under the Act, joining or taking part in employers' organisations, or taking part in proceedings under the Act.
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 Verify source ↗
Rights of trade unions and employers' organisations
AI-assisted research summary: Trade unions and employers’ organisations have rights to govern themselves, hold elections, run their administration and lawful activities, form or join federations, and affiliate with international labour or employers’ organisations.
8. Rights of trade unions and employers' organisations Every trade union and every employers' organisation has the right- (a) subject to the provisions of Chapter VI – (b) (c) (d) (e) (i) (ii) to determine its own constitution and rules; and to hold elections for its office bearers, officials and representatives; to plan and organise its administration and lawful activities; to participate in forming a federation of trade unions or a federation of employers’ organisations; to join a federation of trade unions or a federation of employers’ organisations, subject to its constitution, and to participate in its lawful activities; and 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 Verify source ↗
Procedure for disputes 3
AI-assisted research summary: A party may refer certain disputes in writing to a council or the Commission, must show that the referral was served on all other parties, and unresolved disputes may go to the Labour Court.
9. Procedure for disputes 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) (3) (4) 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. The council or the Commission must attempt to resolve the dispute through conciliation. If the dispute remains unresolved, any party to the dispute may refer it to the Labour Court for adjudication. 3. See flow diagram No. 1 in Schedule 4. - 10 Verify source ↗
Burden of proof
AI-assisted research summary: In proceedings, the party claiming a right or protection was infringed must prove the facts, and the party whose conduct is challenged must then prove the conduct did not infringe the Chapter.
10. Burden of proof In any proceedings- (a) (b) a party who alleges that a right or protection conferred by this Chapter has been infringed must prove the facts of the conduct; and the party who engaged in that conduct must then prove that the conduct did not infringe any provision of this Chapter. CHAPTER III COLLECTIVE BARGAINING PART A-ORGANISATIONAL RIGHTS
Part
PART A-ORGANISATIONAL RIGHTS
- 11 Verify source ↗
Trade union representativeness
AI-assisted research summary: This section defines “representative trade union” for this Part.
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 Verify source ↗
Trade union access to workplace
AI-assisted research summary: Representative trade unions and their office-bearers/officials may enter the employer’s premises, hold meetings with employees outside working hours, and let members vote there, subject to reasonable time-and-place conditions for safety and work continuity.
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) (4) 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. 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 Verify source ↗
Deduction of trade union subscriptions or levies
AI-assisted research summary: Employees who are members of a representative trade union may authorise wage deductions for subscriptions or levies; employers must start deductions, pay the union on time, and provide monthly remittance details.
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) (b) a list of the names of every member from whose wages the employer has made the deductions that are included in the remittance; 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 Verify source ↗
Trade union representatives
AI-assisted research summary: Trade union representatives may be elected in workplaces meeting the member thresholds, and they have rights to carry out listed representative functions and take reasonable paid time off.
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) (b) (c) (d) (e) if there are 10 members of the trade union employed in the workplace, one trade union representative; if there are more than 10 members of the trade union employed in the workplace, two trade union representatives; 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; 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; 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) (b) (c) at the request of an employee in the workplace, to assist and represent the employee in grievance and disciplinary proceedings; 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; 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 Verify source ↗
Leave for trade union activities
AI-assisted research summary: An eligible union office-bearer employee is entitled to reasonable leave during working hours to perform office functions.
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 Verify source ↗
Disclosure of information
AI-assisted research summary: Employers must give trade union representatives relevant information for consultation or collective bargaining, subject to confidentiality and privilege limits.
16. Disclosure of information (1) (2) (3) 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. 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). 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) (c) (d) that the employer cannot disclose without contravening a prohibition imposed on the employer by any law or order of any court; that is confidential and, if disclosed, may cause substantial harm to an employee or the employer; or 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 Verify source ↗
Restricted rights in domestic sector
AI-assisted research summary: This section defines the domestic sector and limits certain trade union rights in that sector.
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 Verify source ↗
Right to establish thresholds of representativeness
AI-assisted research summary: An employer and certain trade unions or bargaining council parties may agree on a representativeness threshold for specified organisational rights.
18. Right to establish thresholds of representativeness (1) An employer and a registered trade union whose members are a majority of the employees employed by that employer in a workplace, or the parties to a bargaining council, may conclude a collective agreement establishing a threshold of representativeness required in respect of one or more of the 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 Verify source ↗
Certain organisational rights for trade union party to council
AI-assisted research summary: Registered trade unions that are parties to a council automatically have the rights in sections 12 and 13 for all workplaces within the council’s registered scope.
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 Verify source ↗
Organisational rights in collective agreements
AI-assisted research summary: This section says a collective agreement may regulate organisational rights.
20. Organisational rights in collective agreements Nothing in this Part precludes the conclusion of a collective agreement that regulates organisational rights. - 21 Verify source ↗
Exercise of rights conferred by this Part 4
AI-assisted research summary: Registered trade unions may notify an employer that they want to exercise rights in a workplace, and the employer must then meet with them within 30 days to try to reach a collective agreement.
21. Exercise of rights conferred by this Part 4 (1) (2) 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. 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) (b) the workplace in respect of which the trade union seeks to exercise the rights; 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) (5) (6) If a collective agreement is not concluded, either the registered trade union or the employer may refer the dispute in writing to the Commission. 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. The Commission must appoint a commissioner to attempt to resolve the dispute through conciliation. 4. See flow diagram No. 2 in Schedule 4. (7) (8) If the dispute remains unresolved, either party to the dispute may request that the dispute be resolved through arbitration. If the unresolved dispute is about whether or not the registered trade union is a representative trade union, the commissioner- (a) must seek (i) (ii) 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 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 Verify source ↗
Disputes about organisational rights
AI-assisted research summary: Parties to certain disputes may refer the dispute in writing to the Commission, the referring party must prove service on the other parties, and the Commission must try to resolve it by conciliation.
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
Part
PART B-COLLECTIVE AGREEMENTS
- 23 Verify source ↗
Legal effect of collective agreement
AI-assisted research summary: A collective agreement can bind several categories of parties, and an indefinite-term agreement may be ended by any party on reasonable written notice unless the agreement says otherwise.
23. Legal effect of collective agreement (1) A collective agreement binds- (a) the parties to the collective agreement; (b) (c) 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; 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 in writing to the other parties. - 24 Verify source ↗
Disputes about collective agreements
AI-assisted research summary: Collective agreements must include a process for resolving interpretation or application disputes, starting with conciliation and then arbitration if needed.
24. Disputes about collective agreements (1) Every collective agreement, excluding an agency shop agreement concluded in terms of section 25 or a closed shop agreement concluded in terms of section 26 or a settlement agreement contemplated in either section 142A or 158(1)(c), 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) (b) (c) the collective agreement does not provide for a procedure as required by subsection (1); the procedure provided for in the collective agreement is not operative; or 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) (6) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.5 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 5. See flow diagram No. 3 in Schedule 4. 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. (8) If there is a dispute about the interpretation or application of the settlement agreement contemplated in either section 142(A) or 158(1)(c), a party may refer the dispute to a council or the Commission and subsections (3) to (5), with the necessary changes, apply to that dispute. - 25 Verify source ↗
Agency shop agreements
AI-assisted research summary: This section lets a representative trade union and an employer (or employers’ organisation) make an agency shop agreement, allows agreed fee deductions from certain non-member employees’ wages, and sets conditions for how the fee is handled and when the agreement can end.
25. Agency shop agreements (1) A representative trade union and an employer or employers' organisation may conclude a collective agreement, to be known as an agency shop agreement, requiring the employer to deduct an agreed agency fee from the wages of employees identified in the agreement who are not members of the trade union but are eligible for membership thereof. (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) (ii) (iii) the amount of the subscription payable by the members of the representative trade union; if the subscription of the representative trade union is calculated as a percentage of an employee's salary, that percentage; or 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 6. See flow diagram No. 4 in Schedule 4. (d) no agency fee deducted may be- (i) paid to a political party as an affiliation fee; (ii) contributed in cash or kind to a political party or a person standing for election to any political office; or (iii) used for any expenditure that does not advance or protect the socio-economic interests of employees. (4)(a) Despite the provisions of any law or contract, an employer may deduct the agreed agency fee from the wages of an employee without the employee's 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 Verify source ↗
Closed shop agreements
AI-assisted research summary: This section allows closed shop agreements, but only if the voting and content conditions are met and certain employee protections are included.
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) (b) (c) a ballot has been held of the employees to be covered by the agreement; two thirds of the employees who voted have voted in favour of the agreement; there is no provision in the agreement requiring membership of the representative trade union before employment commences; and (d) it provides that no membership subscription or levy deducted may be- (i) paid to a political party as an affiliation fee; (ii) contributed in cash or kind to a political party or a person standing for election to any political office; or (iii) used for any expenditure that does not advance or protect the socio-economic interests of employees. (4) Despite subsection (3)(b), a closed shop agreement contemplated in subsection (2)(b) may be concluded between a registered trade union and a registered employers' organisation in respect of a sector and area to become binding in every workplace in which- (a) (b) a ballot has been held of the employees to be covered by the agreement; and 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) (b) the refusal or expulsion is in accordance with the trade union's constitution; and 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) (b) one third of the employees covered by the agreement sign a petition calling for the termination of the agreement; and 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
Part
PART C-BARGAINING COUNCILS
- 27 Verify source ↗
Establishment of bargaining councils
AI-assisted research summary: Registered trade unions and registered employers’ organisations may establish a bargaining council for a sector and area if they adopt a compliant constitution and register the council.
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. 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. 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. (2) (3) (4) A bargaining council may be established for more than one sector. - 28 Verify source ↗
Powers and functions of bargaining council
AI-assisted research summary: A bargaining council may, within its registered scope, make and enforce collective agreements, resolve labour disputes, create funds and schemes, make proposals, set certain strike/lock-out matters, consult workplace forums, provide industrial support, and extend services to informal-sector and home workers.
28. Powers and functions of bargaining council (1) The powers and functions of a bargaining council in relation to its registered scope include the following- (a) to conclude collective agreements; (b) to enforce those collective agreements; (c) to prevent and resolve labour disputes; (d) to perform the dispute resolution functions referred to in section 51; (e) to establish and administer a fund to be used for resolving disputes; (f) to promote and establish training and education schemes; (g) (h) (i) 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; to develop proposals for submission to NEDLAC or any other appropriate forum on policy and legislation that may affect the sector and area; 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; (k) to provide industrial support services within the sector; and (l) to extend the services and functions of the bargaining council to workers in the informal sector and home workers. (2) (3) From the date on which the Labour Relations Amendment Act, 1998, comes into operation, the provisions of the laws relating to pension, provident or medical aid schemes or funds must be complied with in establishing any pension, provident or medical aid scheme or fund in terms of subsection (1)(g) The laws relating to pension, provident or medical aid schemes or funds will apply in respect of any pension, provident or medical aid scheme or fund established in terms of subsection (1)(g) after the coming into operation of the Labour Relations Amendment Act, 1998. - 29 Verify source ↗
Registration of bargaining councils
AI-assisted research summary: This section sets out how parties may apply to register a bargaining council, how objections are handled, and how the registrar, NEDLAC, and the Minister must decide the application.
29. Registration of bargaining councils (1) The parties referred to in section 27 may apply for registration of a bargaining council by submitting to the registrar- (a) the prescribed form that has been properly completed; (b) a copy of its constitution; and (c) any other information that may assist the registrar to determine whether or not the bargaining council meets the requirements for registration. (2) The registrar may require further information in support of the application. (3) As soon as practicable after receiving the application, the registrar must publish a notice containing the material particulars of the application in the Government Gazette and send a copy of the notice to NEDLAC. The notice must inform the general public that they- (a) may object to the application on any of the grounds referred to in subsection (4); and (b) have 30 days from the date of the notice to serve any objection on the registrar and a copy on the applicant. (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) (c) the sector and area in respect of which the application is made is not appropriate; 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) (b) consider the appropriateness of the sector and area in respect of which the application is made; demarcate the appropriate sector and area in respect of which the bargaining council should be registered; and (c) report to the registrar in writing. (9) If NEDLAC fails to agree on a demarcation as required in subsection (8)(b), the Minister must demarcate the appropriate sector and area and advise the registrar. (10) In determining the appropriateness of the sector and area for the demarcation contemplated in subsection (8)(b), NEDLAC or the Minister must seek to give effect to the primary objects of this Act. (11) The registrar- (a) must consider the application and any further information provided by the applicant; (b) must determine whether- (i) the applicant has complied with the provisions of this section; (ii) the constitution of the bargaining council complies with section 30; (iii) adequate provision is made in the constitution of the bargaining council for the representation of small and medium enterprises; (iv) the parties to the bargaining council are sufficiently representative of the sector and area determined by NEDLAC or the Minister; and (v) there is no other council registered for the sector and area in respect of which the application is made; and (c) if satisfied that the applicant meets the requirements for registration, must register the bargaining council by entering the applicant's name in the register of councils. (12) If the registrar is not satisfied that the applicant meets the requirements for registration, the registrar- (a) must send the applicant a written notice of the decision and the reasons for that decision; and (b) in that notice, must inform the applicant that it has 30 days from the date of the notice to meet those requirements. (13) If, within that 30-day period, the applicant meets those requirements, the registrar must register the applicant by entering the applicant's name in the register of councils. (14) If, after the 30-day period, the registrar concludes that the applicant has failed to meet the requirements for registration, the registrar must- (a) refuse to register the applicant; and (b) notify the applicant and any person that objected to the application of that decision in writing. (15) After registering the applicant, the registrar must- (a) issue a certificate of registration in the applicant's name that must specify the registered scope of the applicant; and (b) send the registration certificate and a certified copy of the registered constitution to the applicant. (16) Subsections (3) to (10) and 11(b)(iii) and (iv) do not apply to the registration or amalgamation of bargaining councils in the public service. - 30 Verify source ↗
Constitution of bargaining council
AI-assisted research summary: Bargaining council constitutions must include specified governance and dispute-resolution provisions, with special rules for public service councils.
30. Constitution of bargaining council (1) The constitution of every bargaining council must at least provide for- a) the appointment of representatives of the parties to the bargaining council, of whom half must be appointed by the trade unions that are party to the bargaining council and the other half by the employers' 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) (d) (e) the circumstances and manner in which representatives must vacate their seats' and the procedure for replacing them; rules for the convening and conducting of meetings of representatives, including the quorum required for, and the minutes to be kept of, those meetings; 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) (i) (j) 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; the procedure to be followed if a dispute arises between the parties to the bargaining council; 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) (b) any reference to an "employers' organisation" must be read as a reference to the State as employer; and the requirement in subsection (1)(b) concerning the representation of small and medium enterprises does not apply. (3) (4) (5) 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). 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. The procedures for the resolution of disputes referred to in subsection (1)(h), (i) and (j) may not entrust dispute resolution functions to the Commission unless the governing body of the Commission has agreed thereto. - 31 Verify source ↗
Binding nature of collective agreement concluded in bargaining council
AI-assisted research summary: A collective agreement made in a bargaining council binds specified parties and, in some cases, their members.
31. Binding nature of collective agreement concluded in bargaining council Subject to the provisions of section 32 and the constitution of the bargaining council, a collective agreement concluded in a bargaining council binds – (a) the parties to the bargaining council who are also parties to the collective agreement; (b) each party to the collective agreement and the members of every other party to the collective agreement in so far as the provisions thereof apply to the relationship between such a party and the members of such other party; and (c) the members of a registered trade union that is a party to the collective agreement and the employers who are members of a registered employers’ organisation that is such a party, if the collective agreement regulates- 7. Section 56 provides for a procedure for the admission of parties to a council. (i) (ii) terms and conditions of employment; or the conduct of the employers in relation to their employees or the conduct of the employees in relation to their employers. - 32 Verify source ↗
Extension of collective agreement concluded in bargaining council
AI-assisted research summary: A bargaining council may ask the Minister to extend a collective agreement to non-parties in its registered scope, and the Minister must publish the extension notice within 60 days if the stated conditions are met.
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) (b) 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 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) (b) (c) (d) (e) the decision by the bargaining council to request the extension of the collective agreement complies with the provisions of subsection (1); the majority of all the employees who, upon extension of the collective agreement, will fall within the scope of the agreement, are members of the trade unions that are parties to the bargaining council; the members of the employers' organisations that are parties to the bargaining council will, upon the extension of the collective agreement, be found to employ the majority of all the employees who fall within the scope of the collective agreement; the non-parties specified in the request fall within the bargaining council's registered scope; provision is made in the collective agreement for an independent body to hear and decide , as soon as possible, any appeal brought against - (i) (ii) the bargaining council’s refusal of a non-party’s application for exemption from the provisions of the collective agreement; the withdrawal of such an exemption by the bargaining council; (f) the collective agreement contains criteria that must be applied by the independent body when it considers an appeal, and that those criteria are fair and promote the primary objects of this Act; and the terms of the collective agreement do not discriminate against non- (g) parties. (5) Despite subsection (3)(b) and (c), the Minister may extend a collective agreement in terms of subsection (2) if (a) (b) the parties to the bargaining council are sufficiently representative within the registered scope of the bargaining council; and the Minister is satisfied that failure to extend the agreement may undermine collective bargaining at sectoral level or in the public service as a whole. (6) (a) After a notice has been published in terms of subsection (2), the Minister, at the request of the bargaining council, may publish a further notice in the Government Gazette(i) extending the period specified in the earlier notice by a further period determined by the Minister; or (ii) if the period specified in the earlier notice has expired, declaring a new date from which, and a further period during which, the provisions of the earlier notice will be effective. (b) The provisions of subsections (3) and (5), read with the changes required by the context, apply in respect of the publication of any notice in terms of this subsection. (7) The Minister, at the request of the bargaining council, must publish a notice in the Government Gazette cancelling all or part of any notice published in terms of subsection (2) or (6) from a date specified in the notice. (8) Whenever any collective agreement in respect of which a notice has been published in terms of subsection (2) or (6) is amended, amplified or replaced by a new collective agreement, the provisions of this section apply to that new collective agreement. (9) For the purposes of extending collective agreements concluded in the Public Service Co-ordinating Bargaining Council or any bargaining council contemplated in section 37(3) or (4)- (a) any reference in this section to an employers’ organisation must be read as a reference to the State as employer; and (b) subsections (3)(c), (e) and (f) and (4) of this section will not apply. (10) If the parties to a collective agreement that has been extended in terms of this section terminate the agreement, they must notify the Minister in writing. - 33 Verify source ↗
Appointment and powers of designated agents of bargaining councils
AI-assisted research summary: The Minister may appoint a designated agent for a bargaining council, and the council must issue a certificate. The agent may help enforce collective agreements, has powers within the council’s registered scope, and must return the certificate if it is cancelled.
33. Appointment and powers of designated agents of bargaining councils (1) The Minister may, at the request of a bargaining council, appoint any person as the designated agent of that bargaining council to promote, monitor and enforce compliance with any collective agreement concluded in that bargaining council. (1A) A designated agent may – (a) secure compliance with the council’s collective agreements by – (i) (ii) (iii) (iv) publicising the contents of the agreements; conducting inspections; investigating complaints; or any other means the council may adopt; and (b) perform any other functions that are conferred or imposed on the agent by the 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 set out in Schedule 10.. (4) The bargaining council may cancel the certificate provided to a designated agent in terms of subsection (2) and the agent then ceases to be a designated agent of the bargaining council and must immediately surrender the certificate to the secretary of the bargaining council. - 33A Verify source ↗
Enforcement of collective agreements by bargaining councils
AI-assisted research summary: Bargaining councils may enforce collective agreements, and arbitrators/authorities may be used to resolve disputes, issue awards, and set fines.
33A. Enforcement of collective agreements by bargaining councils (1) Despite any other provision in this Act, a bargaining council may monitor and enforce compliance with its collective agreements in terms of this section or a collective agreement concluded by the parties to the council. (2) For purposes of this section, a collective agreement is deemed to include – (a) any basic condition of employment which in terms of section 49(1) of the Basic Conditions of Employment Act constitutes a term of employment of any employee covered by the collective agreement; and (b) the rules of any fund or scheme established by the bargaining council. (3) A collective agreement in terms of this section may authorise a designated agent appointed in terms of section 33 to issue a compliance order requiring any person bound by that collective agreement to comply with the collective agreement within a specified period. (4) (a) The council may refer any unresolved dispute concerning compliance with any provision of a collective agreement to arbitration by an arbitrator appointed by the council. (b) (c) If a party to an arbitration in terms of this section, that is not a party to the council, objects to the appointment of an arbitrator in terms of paragraph (a), the Commission, on request by the council, must appoint an arbitrator. If an arbitrator is appointed in terms of subparagraph (b) – (i) the Council remains liable for the payment of the arbitrator’s fee; and the arbitration is not conducted under the auspices of the Commission. (ii) (5) (6) (7) (8) An arbitrator conducting an arbitration in terms of this section has the powers of a commissioner in terms of section 142, read with the changes required by the context. Section 138, read with the changes required by the context, applies to any arbitration conducted in terms of this section. An arbitrator acting in terms of this section may determine any dispute concerning the interpretation or application of a collective agreement. An arbitrator conducting an arbitration in terms of this section may make an appropriate award, including - (a) ordering any person to pay any amount owing in terms of a collective agreement; (b) imposing a fine for a failure to comply with a collective agreement in accordance with subsection (13); (c) charging a party an arbitration fee; (d) ordering a party to pay the costs of the arbitration; (e) confirming, varying or setting aside a compliance order issued by a designated agent in accordance with subsection (4) (f) any award contemplated in section 138(9). (9) Interest on any amount that a person is obliged to pay in terms of a collective agreement accrues from the date on which the amount was due and payable at the rate prescribed in terms of section 1 of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), unless the arbitration award provides otherwise. (10) An award in an arbitration conducted in terms of this section is final and binding and may be enforced in terms of section 143. (11) Any reference in section 138 or 142 to the director must be read as a reference to the secretary of the bargaining council. (12) If an employer, upon whom a fine has been imposed in terms of this section, files an application to review and set aside an award made in terms of subsection (8), any obligation to pay a fine is suspended pending the outcome of the application. (13) (a) The Minister may, after consulting NEDLAC, publish in the Government Gazette a notice that sets out the maximum fines that may be imposed by an arbitrator acing in terms of this section. (c) A notice in terms of paragraph (a) may specify the maximum fine that may be imposed – (i) for a breach of a collective agreement – (aa) (bb) not involving a failure to pay any amount of money; involving a failure to pay any amount of money; and for repeated breaches of the collective agreement contemplated in subparagraph (i). (ii) - 34 Verify source ↗
Amalgamation of bargaining councils
AI-assisted research summary: Bargaining councils may amalgamate, and the registrar must process and update registrations accordingly.
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) (b) all the assets, rights, liabilities and obligations of the amalgamating bargaining councils devolve upon and vest in the amalgamated bargaining council; and 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
Part
PART D-BARGAINING COUNCILS IN THE PUBLIC SERVICE
- 35 Verify source ↗
Bargaining councils in public service
AI-assisted research summary: The provision says there must be a bargaining council for the public service as a whole, and for any public-service sector designated under section 37.
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 Verify source ↗
Public Service Co-ordinating Bargaining Council
AI-assisted research summary: The Public Service Co-ordinating Bargaining Council must be established, and it may perform bargaining-council functions for certain public-service matters.
36. Public Service Co-ordinating Bargaining Council (1) (2) The Public Service Co-ordinating Bargaining Council must be established in accordance with Schedule 1.8 The Public Service Co-ordinating Bargaining Council may perform all the functions of a bargaining council in respect of those matters that- (a) (b) (c) are regulated by uniform rules, norms and standards that apply across the public service; or apply to terms and conditions of service that apply to two or more sectors; or 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 Verify source ↗
Bargaining councils in sectors in public service
AI-assisted research summary: This provision is about bargaining councils in public service sectors.
37. Bargaining councils in sectors in public service - 8 Verify source ↗
Schedule 1 deals with the procedure for the establishment of the Public Service Co-ordinating Bargaining Council.
AI-assisted research summary: This section sets out how a bargaining council for a designated public service sector is established and adjusted, and when the Registrar must तयermine its constitution.
8. Schedule 1 deals with the procedure for the establishment of the Public Service Co-ordinating Bargaining Council. (1) The Public Service Co-ordinating Bargaining Council may, in terms of its constitution and by resolution - (a) (b) designate a sector of the public service for the establishment of a bargaining council; and vary the designation of, amalgamate or disestablish bargaining councils so established. (2) A bargaining council for a sector designated in terms of subsection (1)(a) must be established in terms of the constitution of the Public Service Co-ordinating Bargaining Council. (3) If the parties in the sector cannot agree to a constitution for the bargaining council for a sector designated in terms of subsection (1)(a), the Registrar must determine its constitution (4) The relevant resolution made in terms of subsection (1) must accompany any application to register or vary the registration of a bargaining council or to register an amalgamated bargaining council. (5) A bargaining council established in terms of subsection (2) has exclusive jurisdiction in respect of matters that are specific to that sector and in respect of which the State as employer in that sector has the requisite authority to conclude collective agreements and resolve labour disputes. - 38 Verify source ↗
Disputes between bargaining councils in public service
AI-assisted research summary: If there is a jurisdictional dispute between bargaining councils in the public service, a party may refer it in writing to the Commission, and the Commission must try to resolve it through conciliation.
38. Disputes between bargaining councils in public service (1) (2) (3) (4) If there is a jurisdictional dispute between two or more bargaining councils in the public service, including the Public Service Co-ordinating Bargaining Council, any party to the dispute may refer the dispute in writing to the Commission. The party who refers the dispute to the Commission must satisfy the Commission that a copy of the referral has been served on all other bargaining councils that are parties to the dispute. The Commission must attempt to resolve the dispute as soon as possible through conciliation. If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration by the Commission. PART E-STATUTORY COUNCILS
Part
PART E-STATUTORY COUNCILS
- 39 Verify source ↗
Application to establish statutory council
AI-assisted research summary: Representative trade unions or employers’ organisations may apply for a statutory council if no council is registered for the sector and area.
39. Application to establish statutory council (1) For the purposes of this Part- (a) (b) "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 "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; (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) (b) send the applicant a written notice of the decision and the reasons for that decision; and 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 - 9 Verify source ↗
The provisions of section 29 deal with the procedure for the registration of a bargaining council.
AI-assisted research summary: This provision says section 29 covers the procedure for registering a bargaining council, including notifying the applicant and any objector in writing of the decision.
9. The provisions of section 29 deal with the procedure for the registration of a bargaining council. (b) notify the applicant and any person that objected to the application in writing of that decision. - 40 Verify source ↗
Establishment and registration of statutory council
AI-assisted research summary: This section sets out how a statutory council is established, consulted on, and registered.
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) (b) registered trade unions and registered employers' organisations in that sector and area to attend a meeting; and 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) (b) the registered trade unions and registered employers' organisations to be parties to the statutory council; and 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 Verify source ↗
Establishment and registration of statutory council in absence of agreement
AI-assisted research summary: If no agreement is reached, the commissioner must call separate meetings, and the Minister and registrar must take steps to admit parties, allocate representatives, notify the registrar, register the council, and certify its constitution.
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) (c) the registered employers' organisations to be parties to the statutory council; and 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) (b) between the registered trade unions that are parties to the council, the Minister must determine this allocation on the basis of proportional representation; 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. 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). 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). (6) (7) (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 Verify source ↗
Certificate of registration of statutory council
AI-assisted research summary: After a statutory council is registered, the registrar must issue a registration certificate that states the council’s registered scope and send the certificate plus a certified copy of the registered constitution to the parties and appointed representatives.
42. Certificate of registration of statutory council After registering a statutory council, the registrar must - (a) (b) issue a certificate of registration that must specify the registered scope of the statutory council; and 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 Verify source ↗
Powers and functions of statutory councils
AI-assisted research summary: Statutory councils may perform dispute resolution, promote training and education, run benefit schemes, and conclude collective agreements for those purposes.
43. Powers and functions of statutory councils (1) The powers and functions of a statutory council are- (a) to perform the dispute resolution functions referred to in section 51; (b) to promote and establish training and education schemes; and (c) to establish and administer pension, provident, medical aid, sick pay, holiday, unemployment schemes or funds or any similar schemes or funds for the benefit of one or more of the parties to the statutory council or their members; and (d) to conclude collective agreements to give effect to the matters mentioned in paragraphs (a), (b), and (c). (2) A statutory council, in terms of its constitution, may agree to the inclusion of any of the other functions of a bargaining council referred to in section 28. (3) If a statutory council concludes a collective agreement in terms of subsection (1)(d), the provisions of sections 31, 32 and 33 apply, read with the changes required by the context. (4)(a) From the date on which the Labour Relations Amendment Act, 1998, comes into operation, the provisions of the laws relating to pension, provident or medical aid schemes or funds must be complied with in establishing any pension, provident or medical aid scheme or fund in terms of subsection (1)(c). (b) The provisions of the laws relating to pension, provident or medical aid schemes or funds will apply in relation to any pension, provident or medical aid scheme or fund established in terms of subsection (1)(c) after the coming into operation of the Labour Relations Amendment Act, 1998. - 44 Verify source ↗
Ministerial determinations
AI-assisted research summary: The Minister may turn a statutory council’s recommendations into a determination, must treat one collective agreement as an Employment Conditions Commission recommendation, and determinations must deal with exemptions and fair exemption criteria. The Minister may also impose a levy and later amend or extend a determination.
44. Ministerial determinations (1) A statutory council that is not sufficiently representative within its registered scope may submit a collective agreement on any of the matters mentioned in section 43(1)(a), (b) or (c) to the Minister. The Minister must treat the collective agreement as a recommendation made by the Employment Conditions Commission in terms of section 54(4) of the Basic Conditions of Employment Act. (2) The Minister may promulgate the statutory council's recommendations as a determination under the Basic Conditions of Employment Act if satisfied that the statutory council has complied with section 54(3) of the Basic Conditions of Employment Act, read with the changes required by the context. (3) The determination must provide for - (a) (b) exemptions to be considered by an independent body appointed by the Minister; and 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 Verify source ↗
Disputes about determinations
AI-assisted research summary: Parties to a dispute over a section 44(2) determination may refer it in writing to the Commission, and the Commission must try to resolve it by conciliation.
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 Verify source ↗
Withdrawal of party from statutory council
AI-assisted research summary: If a party leaves a statutory council, the Minister may ask the Commission to call a meeting of the remaining organisations to help reach an agreement.
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 Verify source ↗
Appointment of new representative of statutory council
AI-assisted research summary: If a representative leaves office, the Minister must publish a Government Gazette notice asking interested parties in the statutory council’s registered scope to nominate a new representative.
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 Verify source ↗
Change of status of statutory council
AI-assisted research summary: A statutory council may apply to become a bargaining council, and the registrar must process and record the change if registration happens.
48. Change of status of statutory council (1) A statutory council may resolve to apply to register as a bargaining council. (2) (3) 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). 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) (6) 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. 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
Part
PART F-GENERAL PROVISIONS CONCERNING COUNCILS
- 49 Verify source ↗
Representativeness of council
AI-assisted research summary: The registrar may treat council parties as representative for the whole area, and bargaining councils must give the registrar annual and requested membership/employee information in writing.
49. Representativeness of council (1) When considering the representativeness of the parties to a council, or parties seeking registration of a council, the registrar, having regard to the nature of the sector and the situation of the area in respect of which registration is sought, may regard the parties to a council as representative in respect of the whole area, even if a trade union or employers' organisation that is a party to the council has no members in part of that area. (2) A bargaining council, having a collective agreement that has been extended by the Minister in terms of section 32, must inform the registrar 10. Section 29 deals with the procedure for the registration of bargaining councils. annually, in writing, on a date to be determined by the registrar, as to the number of employees who are – (a) covered by the collective agreement; (b) members of the trade unions that are parties to the agreement; (c) employed by members of the employers’ organisations that are party to the agreement. (3) A bargaining council must, on request by the registrar, inform the registrar in writing within the period specified in the request as to the number of employees who are - employed within the registered scope of the council; (a) (b) members of the trade unions that are parties to the council; (c) employed by members of the employers’ organisations that are party to the council. (4) A determination of the representativeness of a bargaining council in terms of this section is sufficient proof of the representativeness of the council for the year following the determination. (5) This section does not apply to the public service. - 50 Verify source ↗
Effect of registration of council
AI-assisted research summary: A registered council has the powers, functions, and duties given by the Act, and its parties and officials are protected from certain personal liability.
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 Verify source ↗
Dispute resolution functions of council
AI-assisted research summary: Councils must try to resolve disputes first, and may use conciliation and arbitration in specified cases.
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) (i) The parties to a council must attempt to resolve any dispute between themselves in accordance with the constitution of the council. (ii) For the purposes of subparagraph (i), a party to a council includes the members of any registered trade union or registered employers’ organisation that is a party to the council. (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 Act11 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- 11. The following disputes contemplated by subsection (3) must be referred to a council: disputes about the interpretation or application of the provisions of Chapter II (see section 9); disputes that form the subject matter of a proposed strike or lock out (see section 64(1)); disputes in essential services (see section 74); disputes about unfair dismissals (see section 191); disputes about severance pay (see section 196); and disputes about unfair labour practices (see item 2 in Schedule 7). The following disputes contemplated by subsection (3) may not be referred to a council: disputes about organisational rights (see sections 16, 21 and 22); disputes about collective agreements where the agreement does not provide for a procedure or the procedure is inoperative or any party frustrates the resolution of the dispute (see section 24(2) to (5); disputes about agency shops and closed shops (see section 24(6) and (7) and section 26(11); disputes about determinations made by the Minister in respect of proposals made by a statutory council (see section 45); disputes about the interpretation or application of collective agreements of a council whose registration has been cancelled (see section 61 (5) to (8)); disputes about the demarcation of sectors and areas of councils (see section 62); disputes about the interpretation or application of Part C (bargaining councils), Part D (bargaining councils in the public service), Part E (statutory councils) and Part F (general provisions concerning councils) (see section 63); disputes concerning pickets (see section 69 (8) to (10)); disputes about proposals that are the subject of joint decision-making in workplace forums (see section 86); disputes about the disclosure of information to workplace forums (see section 89); and disputes about the interpretation or application of the provisions of Chapter V which deals with workplace forums (see section 94). (i) (ii) this Act requires arbitration and any party to the dispute has requested that it be resolved through arbitration; or all the parties to the dispute consent to arbitration under the auspices of the council. (4) (5) 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. The date on which the referral in terms of subsection (4) was received by a council is, for all purposes, the date on which the council referred the dispute to the Commission. (6) A council may enter into an agreement with the Commission or an accredited agency in terms of which the Commission or accredited agency is to perform, on behalf of the council, its dispute resolution functions in terms of this section. (7) (8) Subject to this Act, a council may not provide in a collective agreement for the referral of disputes to the Commission, without prior consultation with the director. Unless otherwise agreed to in a collective agreement, sections 142A and 143 to 146 apply to any arbitration conducted under the auspices of a bargaining council. (9) A bargaining council may, by collective agreement, establish procedures to resolve any dispute contemplated in this section. - 52 Verify source ↗
Accreditation of council or appointment of accredited agency. Every council
AI-assisted research summary: Every council must apply to the Commission for accreditation or appoint an accredited agency to do the section 51 functions.
52. Accreditation of council or appointment of accredited agency. Every council must- (a) (b) apply to the Commission for accreditation to perform any of the functions referred to in section 51; or appoint an accredited agency to perform any of the functions referred to in section 51. - 52 Verify source ↗
Accreditation of council or appointment of accredited agency
AI-assisted research summary: Every council must apply for accreditation to perform its dispute resolution functions or appoint an accredited agency for any unaccredited functions, and must tell the Commission in writing as soon as possible after appointing an agency.
52. Accreditation of council or appointment of accredited agency (1) With a view to performing its dispute resolution functions in terms of section 51(3), every council must – (a) apply to the governing body of the Commission for accreditation to perform those functions; or (b) appoint an accredited agency to perform those of the functions referred to in section 51(3) for which the council is not accredited. (2) The council must advise the Commission in writing as soon as possible of the appointment of an accredited agency in terms of subsection (1)(b), and the terms of that appointment. - 53 Verify source ↗
Accounting records and audits
AI-assisted research summary: Councils must keep proper accounting records, prepare annual financial statements, get them audited, disclose them for inspection and council meetings, and keep them for three years; surplus money may be invested only in specified ways.
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) (ii) a statement of income and expenditure for the previous financial year; and 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) (b) conduct the audit in accordance with generally accepted auditing standards; and report in writing to the council and in that report express an opinion as to whether or not the council has complied with those provisions of its constitution relating to financial matters. (3) Every council must- (a) make the financial statements and the auditor's report available to the parties to the council or their representatives for inspection; and (b) submit those statements and the auditor's report to a meeting of the council as provided for in its constitution. (4) Every council must preserve each of its books of account, supporting vouchers, income and expenditure statements, balance sheets, and auditor's reports, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate. (5) The money of a council or of any fund established by a council that is surplus to its requirements or the expenses of the fund may be invested only in- (a) (b) savings accounts, permanent shares or fixed deposits in any registered bank or financial institution; 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. (6) A council must comply with subsections (1) to (5) in respect of all funds established by it, except funds referred to in section 28(3). - 54 Verify source ↗
Duty to keep records and provide information to registrar
AI-assisted research summary: Every council must keep meeting minutes and give the registrar specified records and reports within set deadlines; the registrar can take compliance action if the council fails to comply.
54. Duty to keep records and provide information to registrar (1) In addition to the records required by section 53(4), every council must keep minutes of its meetings, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate. (2) Every council must provide to the registrar- (a) within 30 days of receipt of its auditor's report, a certified copy of that report and of the financial statements; (b) within 30 days of receipt of a written request by the registrar, an explanation of anything relating to the auditor's report or the financial statements; (c) upon registration, an address within the Republic at which it will accept service of any document that is directed to it; (d) within 30 days of any appointment or election of its national office bearers, the names and work addresses of those office-bearers, even if their appointment or election did not result in any changes to its office- bearers; (e) (f) 30 days before a new address for service of documents will take effect, notice of that change of address; and each year and on a date to be determined by the registrar, a report in the prescribed form specifying - (i) the number of employees who are employed by small enterprises that fall within the registered scope of the council and the number of employees of those enterprises who are members of trade unions; (ii) the number of employees employed by small enterprises that are covered by a collective agreement that was concluded by the council and extended by the \minister in terms of section 2; (iii) (iv) the number of small enterprises that are members of the employers’ organisations that are parties to the council; and the number of applications for exemptions received from small enterprises and the number of applications that were granted and the number rejected. (3) Every council must provide to the Commission- (a) certified copies of every collective agreement concluded by the parties to the council, within 30 days of the signing of that collective agreement; and (b) the details of the admission and resignation of parties to the council, within 30 days of their admission or resignation. (4) If a council fails to comply with any of the provisions of section 49(2) or (3), section 53 or subsections (1) or (2) of this section, the registrar may - (a) (b) (c) (d) (e) conduct an inquiry into the affairs of that council; order the production of the council’s financial records and any other relevant documents; deliver a notice to the council requiring the council to comply with the provisions concerned; compile a report o the affairs of the council; or submit the report to the Labour Court in support of any application made in terms of section 59(1)(b). (5) The registrar may use the powers referred to in subsection (4) in respect of any fund established by a council, except a fund referred to in section 28(3). - 55 Verify source ↗
Delegation of functions to committee of council
AI-assisted research summary: A council may delegate its powers and functions to a committee, subject to conditions set by the council under its constitution. A committee under this section must have equal numbers of employee and employer representatives.
55. Delegation of functions to committee of council (1) A council may delegate any of its powers and functions to a committee on any conditions, imposed by the council in accordance with its constitution. (2) A committee contemplated by subsection (1) must consist of equal numbers of representatives of employees and employers. - 56 Verify source ↗
Admission of parties to council 12
AI-assisted research summary: Registered trade unions or employers' organisations may apply in writing to be admitted to a council, and the council must decide within 90 days and notify the applicant.
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) (b) (c) 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; the reasons why the applicant ought to be admitted as a party to the council; and any other information on which the applicant relies in support of the application. 12. See flow diagram No. 5 in Schedule 4. (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. The applicant may apply to the Labour Court for an order admitting it as a (5) 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 Verify source ↗
Changing constitution or name of council
AI-assisted research summary: A council may change its constitution or name, but it must file specified documents with the registrar and the registrar must register and notify the council.
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) (b) enter the new name in the register of councils, and issue a certificate of registration in the new name of the council; 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 Verify source ↗
Variation of registered scope of council
AI-assisted research summary: The registrar may vary a council’s registered scope if the representative sector and area do not match the registered scope.
58. Variation of registered scope of council (1) (2) (3) If the registrar is satisfied that the sector and area within which a council is representative does not coincide with the registered scope of the council, the registrar, acting independently or in response to an application from the council, may vary the registered scope of the council. The provisions of section 29 apply, read with the changes required by the context, to a variation in terms of this section. Despite subsection (2), if within the stipulated period no material objection is lodged to any notice published by the registrar in terms of section 29(3), the registrar - (i) may vary the registered scope of the council; (ii) may issue a certificate specifying the scope of the council as varied; and (iii) need not comply with the procedure prescribed by section 29. - 59 Verify source ↗
Winding-up of council
AI-assisted research summary: The Labour Court may order a council to be wound up, appoint a liquidator, and review the registrar’s fee determination. It must also protect affected unrepresented persons’ interests, and the liquidator must pay leftover assets to the Commission in the stated case.
59. Winding-up of council (1) The Labour Court may order a council to be wound up if- (a) (b) the council has resolved to wind up its affairs and has applied to the Court for an order giving effect to that resolution; or 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) (b) consider those interests before deciding whether or not to grant the order; and 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) (6) 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. For the purposes of this section, the assets and liabilities of any pension, provident or medical aid scheme or fund established by a council will be regarded and treated as part of the assets and liabilities of the council unless – (a) (b) (c) the parties to the council have agreed to continue with the operation of the pension, provident or medical aid scheme or fund as a separate scheme or fund despite the winding up of the council; and the Minister has approved the continuation of the scheme or fund; and application has been made in accordance with the provisions of the laws applicable to pension, provident or medical aid schemes or funds, for the registration of that scheme or fund in terms of those provisions. (7) A pension, provident or medical aid scheme or fund, registered under the provisions of those laws after its application in terms of subsection 6(c), will continue to be a separate scheme or fund despite the winding up of the council by which it was established. (8) The Minister, by notice in the Government Gazette, may declare the rules of a pension, provident or medical aid scheme or fund mentioned in subsection (7) to be binding on any employees and employer or employers that fell within the registered scope of the relevant council immediately before it was wound up. - 60 Verify source ↗
Winding-up of council by reason of insolvency
AI-assisted research summary: A person seeking to wind up a council because of insolvency must follow the Insolvency Act, and references to the court in that Act are read as references to the Labour Court.
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 Verify source ↗
Cancellation of registration of council
AI-assisted research summary: The registrar must cancel a council’s registration in specified situations and must follow notice, show-cause, and appeal steps in some cases.
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) (b) 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 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) (b) if no appeal to the Labour Court is noted within the time contemplated in section III (3), on the expiry of that period; or if the council or any party has appealed and the Labour Court has confirmed the decision of the registrar, on the date of the Labour Court's decision. (7) If either event contemplated in subsection (6) occurs, the registrar must cancel the council' s registration by removing the name of the council from the register of councils. (8) Any collective agreement concluded by parties to a council whose registration has been cancelled, whether or not the collective agreement has been extended to non-parties by the Minister in terms of section 32, lapses 60 days after the council's registration has been cancelled. (9) Despite subsection (8), the provisions of a collective agreement that regulates terms and conditions of employment remain in force for one year after the date that the council' s registration was cancelled, or until the expiry of the agreement, if earlier. (10) Any party to a dispute about the interpretation or application of a collective agreement that regulates terms and conditions of employment referred to in subsection (8) may refer the dispute in writing to the Commission. (11) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute. (12) The Commission must attempt to resolve the dispute through conciliation. (13) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration. (14) The registrar must cancel the registration of a bargaining council in the public service by removing its name from the register of councils when the registrar receives a resolution from the Public Service Co-ordinating Bargaining Council disestablishing a bargaining council established in terms of section 37(2). (15) The provisions of subsections (3) to (7) do not apply to bargaining councils in the public service. - 62 Verify source ↗
Disputes about demarcation between sectors and areas
AI-assisted research summary: This section lets interested labour parties ask the Commission to decide sector or area demarcation questions, and it requires courts, arbitrators, commissioners, and the registrar to pause, refer, consult, notify, or amend documents in certain cases.
62. Disputes about demarcation between sectors and areas (1) Any registered trade union, employer, employee, registered employers' organisation or council that has a direct or indirect interest in the application contemplated in this section may apply to the Commission in the prescribed form and manner for a determination as to- (a) whether any employee, employer, class of employees or class of employers, is or was employed or engaged in a sector or area; (b) whether any provision in any arbitration award, collective agreement or wage determination made in terms of the Wage Act is or was binding on any employee, employer, class of employees or class of employers. 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. 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- (2) (3) (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 (iii) the determination of the question raised is necessary for the purposes of the proceedings. (3A) In any proceedings before an arbitrator about the interpretation or application of a collective agreement, if a question contemplated in subsection (1)(a) or (b) is raised, the arbitrator must adjourn those proceedings and refer the question to the Commission if the arbitrator is satisfied that- (a) the question raised- (i) (ii) has not previously been determined by arbitration in terms of this section; and is not the subject of an agreement in terms of subsection (2); and (b) the determination of the question raised is necessary of 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) (ii) has not previously been determined by arbitration in terms of this section; and is not the subject of an agreement in terms of subsection (2); and (6) (7) (b) the determination of the question raised is necessary for the purposes of the proceedings. 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. 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 Verify source ↗
Disputes about Parts A and C to F
AI-assisted research summary: A party to certain disputes may refer the dispute in writing to the Commission, the Commission must try to settle it by conciliation, and unresolved disputes may then go to the Labour Court.
63. Disputes about Parts A and C to F (1) Any party to a dispute about the interpretation or application of Parts A and C to F of this Chapter, may refer the dispute in writing to the Commission unless- (a) the dispute has arisen in the course of arbitration proceedings or proceedings in the Labour Court; or (b) the dispute is otherwise to be dealt with in terms of Parts A and C to F. (2) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute. (3) The Commission must attempt to resolve the dispute through conciliation. (4) If the dispute remains unresolved, any party to the dispute may refer it to the Labour Court for adjudication. Chapter IV STRIKES AND LOCK OUTS
Part
Chapter IV
- 64 Verify source ↗
Right to strike and recourse to lock out
AI-assisted research summary: Employees have the right to strike, and employers may lock out, but only after the dispute is referred and the notice and other listed conditions are met.
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) (ii) a certificate stating that the dispute remains unresolved has been issued; or 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) (ii) 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 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; (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) (c) (d) (e) the strike or lock-out conforms with the procedures in a collective agreement; the employees strike in response to a lock-out by their employer that does not comply with the provisions of this Chapter; 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 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) (b) require the employer not to implement unilaterally the change to terms and conditions of employment; or 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 Verify source ↗
Limitations on right to strike or recourse to lock-out
AI-assisted research summary: A person must not join or help a strike or lock-out if the listed conditions apply.
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) (b) (c) that person is bound by a collective agreement that prohibits a strike or lock-out in respect of the issue in dispute; that person is bound by an agreement that requires the issue in dispute to be referred to arbitration; 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 - 13 Verify source ↗
Essential services, agreed minimum services and maintenance services are regulated in sections 71 to 75.
AI-assisted research summary: Some strike-related conduct is restricted, and a registered trade union may be barred from arbitration for 12 months after giving strike notice.
13. Essential services, agreed minimum services and maintenance services are regulated in sections 71 to 75. 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- (a) if that person is bound by- (i) (ii) any arbitration award or collective agreement that regulates the issue in dispute; or 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 Verify source ↗
Secondary strikes
AI-assisted research summary: This section limits secondary strikes, requires advance written notice, and lets the Labour Court and Commission act in related disputes.
66. Secondary strikes (1) In this section "secondary strike" means a strike, or conduct in contemplation or furtherance of a strike, that is in support of a strike by other employees against their employer but does not include a strike in pursuit of a demand that has been referred to a council if the striking employees, employed within the registered scope of that council, have a material interest in that demand. (2) No person may take part in a secondary strike unless- (a) (b) (c) the strike that is to be supported complies with the provisions of sections 64 and 65; 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 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). 14. These sections deal with organisational rights. (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 Verify source ↗
Strike or lock-out in compliance with this Act
AI-assisted research summary: This section defines protected strikes and lock-outs, protects participants from certain consequences, and limits an employer’s ability to stop in-kind pay or dismiss employees for protected strike activity.
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) (b) 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 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 Verify source ↗
Strike or lock-out not in compliance with this Act
AI-assisted research summary: The Labour Court can restrain unlawful strike or lock-out activity and award compensation, but notice rules must be met before it grants certain orders.
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) (ii) any person from participating in a strike or any conduct in contemplation or in furtherance of a strike; or any person from participating in a lock-out or any conduct in contemplation or in furtherance of a lock-out; (b) to order the payment of just and equitable compensation for any loss attributable to the strike or lock-out, or conduct, having regard to- (i) whether - (aa) attempts were made to comply with the provisions of this Chapter and the extent of those attempts; (bb) the strike or lock-out or conduct was premeditated; (cc) the strike or lock out, or conduct was in response to unjustified conduct by another party to the dispute; and (dd) there was compliance with an order granted in terms of paragraph (a); 15. See flow diagram No. 6 in Schedule 4. (ii) the interests of orderly collective bargaining; (iii) the duration of the strike or lock out or conduct; and (iv) the financial position of the employer, trade union or employees respectively. (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) (b) (c) the applicant has given written notice to the respondent of the applicant's intention to apply for the granting of an order; the respondent has been given a reasonable opportunity to be heard before a decision concerning that application is taken; and 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) (5) Subsections (2) and (3) do not apply to an employer or an employee engaged in an essential service or a maintenance service. 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 Verify source ↗
Picketing 16
AI-assisted research summary: Registered trade unions may authorise peaceful pickets for protected strikes or against lockouts, and the Commission may have to set picketing rules and help resolve disputes.
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 (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 held- (a) in any place to which the public has access but outside the premises of an employer; or 16. See flow diagram No. 7 in Schedule 4. (b) with the permission of the employer, inside the employer's premises. (3) (4) The permission referred to in subsection (2)(b) may not be unreasonably withheld. 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) (7) 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. 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) (d) an alleged material breach of an agreement concluded in terms of subsection (4); or 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 Verify source ↗
Essential services committee
AI-assisted research summary: The Minister must create an essential services committee, appoint qualified members, and name a chairperson. The committee must investigate and decide essential-service status, and it must investigate when a bargaining council asks.
70. Essential services committee (1) The Minister, after consulting NEDLAC, and in consultation with the Minister for the Public Service and Administration, must establish an essential services committee under the auspices of the Commission and - (a) (b) appoint to that committee, on any terms that the Minister considers fit, persons who have knowledge and experience of labour law and labour relations; and designate one of the members of the committee as its chairperson. (2) The functions of the essential services committee are- (a) (b) (c) 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; to determine disputes as to whether or not the whole or a part of any service is an essential service; and 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 Verify source ↗
Designating a service as an essential service
AI-assisted research summary: This section requires the essential services committee to publicly notify and run an investigation before deciding whether a service should be designated an essential service.
71. Designating a service as an essential service (1) (2) 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. 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) (5) The Commission must provide a certified copy of, or extract from, any written representations to any person who has paid the prescribed fee. The essential services committee must advise parties who wish to make oral representations of the place and time at which they may be made. 17. A maintenance service is defined I section 75. (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) (9) 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. 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.
Part
part of the service that was the subject of the investigation as an essential
- 72 Verify source ↗
Minimum services. The essential services committee may ratify any collective
AI-assisted research summary: The essential services committee may ratify a collective agreement for minimum services in an essential service, and then those minimum services count as an essential service for the employer and employees, while section 74 does not apply.
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 Verify source ↗
Disputes about whether a service is an essential service
AI-assisted research summary: A party to a dispute may refer it in writing to the essential services committee, and the referring party must prove the referral was served on all other parties.
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 Verify source ↗
Disputes in essential services18
AI-assisted research summary: Certain essential-service dispute parties may refer a dispute to a council or, if there is no council, to the Commission.
74. Disputes in essential services18 (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 18. See flow diagram No. 8 in Schedule 4. (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) (3) (4) 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. The council or the Commission must attempt to resolve the dispute through conciliation. 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) (b) 14 days after the date of the award, unless a Minister has tabled the award in Parliament within that period; or 14 days after the date of tabling the award, unless Parliament has passed a resolution that the award is not binding. (6) (7) 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. If Parliament is not in session on the expiry of (a) the period referred to in subsection (5)(a), that period or the balance of that period will run from the beginning of the next session of Parliament; (b) the period referred to in subsection (5)(b), that period will run from the expiry of the period referred to in paragraph (a) of this subsection or from the beginning of the next session of Parliament. - 75 Verify source ↗
Maintenance services
AI-assisted research summary: This section defines when a service counts as a maintenance service and lets an employer ask the essential services committee for a determination if there is no collective agreement.
75. Maintenance services (1) A service is a maintenance service if the interruption of that service has the effect of material physical destruction to any working area, plant or machinery. (2) If there is no collective agreement relating to the provision of a maintenance service, an employer may apply in writing to the essential services committee for a determination that the whole or a part of the employer's business or service is a maintenance service. (3) The employer must satisfy the essential services committee that a copy of the application has been served on all interested parties. (4) The essential services committee must determine, as soon as possible, whether or not the whole or a part of the employer’s business or service is a maintenance service. (5) As part of its determination in terms of subsection (4), the essential services committee may direct that any dispute in respect of which the employees engaged in a maintenance service would have had the right to strike, but for the provisions of section 65(1)(d)(ii), be referred to arbitration. (6) The committee may not make a direction in terms of subsection (5) if – (a) the terms and conditions of employment of the employees engaged in the maintenance service are determined by collective bargaining; or (b) if the number of employees prohibited from striking because they are engaged in the maintenance service does not exceed the number of employees who are entitled to strike. (7) If a direction in terms of subsection (5) requires a dispute to be resolved by arbitration – (a) the provisions of section 74 will apply to the arbitration; and (b) any arbitration award will be binding on the employees engaged in the maintenance service and their employer, unless the terms of the award are varied by a collective agreement. - 76 Verify source ↗
Replacement labour
AI-assisted research summary: An employer may not hire someone to keep production going during a protected strike in a maintenance service, or to do the work of a locked-out employee, except where the lock-out responds to a strike.
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 Verify source ↗
Protest action to promote or defend socio-economic interests of workers
AI-assisted research summary: Eligible employees may take part in protest action if the listed notice and consultation steps are met.
77. Protest action to promote or defend socio-economic interests of workers (1) Every employee who is not engaged in an essential service or a maintenance service has the right to take part in protest action if- (a) the protest action has been called by a registered trade union or federation of trade unions; (b) the registered trade union or federation of trade unions has served a notice on NEDLAC stating- (i) the reasons for the protest action; and (ii) the nature of the protest action; (c) (d) 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 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) (b) 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); in respect of protest action that complies with subsection (1), to grant a declaratory order contemplated by subsection (4), after having considered- (i) the nature and duration of the protest action; (ii) the steps taken by the registered trade union or federation of trade unions to minimise the harm caused by the protest action; and (iii) the conduct of the participants in the protest action. (3) A person who takes part in protest action or in any conduct in contemplation or in furtherance of protest action that complies with subsection (1), enjoys the protections conferred by section 67. (4) Despite the provisions of subsection (3), an employee forfeits the protection against dismissal conferred by that subsection, if the employee- (a) takes part in protest action or any conduct in contemplation or in furtherance of protest action in breach of an order of the Labour Court; or (b) otherwise acts in contempt of an order of the Labour Court made in terms of this section. CHAPTER V WORKPLACE FORUMS
Part
CHAPTER V
- 78 Verify source ↗
Definitions in this Chapter
AI-assisted research summary: This section defines “employee” and “representative trade union” for this Chapter.
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- (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 Verify source ↗
General functions of workplace forum
AI-assisted research summary: A workplace forum must promote employees’ interests and workplace efficiency, and it may be consulted and take part in joint decision-making on matters in sections 84 and 86.
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) (d) is entitled to be consulted by the employer, with a view to reaching consensus, about the matters referred to in section 84; and is entitled to participate in joint decision-making about the matters referred to in section 86. - 80 Verify source ↗
Establishment of workplace forum
AI-assisted research summary: A representative trade union may apply to the Commission to establish a workplace forum in a workplace with more than 100 employees, except in the public service.
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) (b) consider the application and any further information provided by the applicant; and 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) (7) (8) (9) 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. 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. If a collective agreement is concluded, the provisions of this Chapter do not apply. 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).
Part
Schedule promulgated by the Minister for the Public Service and
- 81 Verify source ↗
Trade union based workplace forum
AI-assisted research summary: A recognised representative trade union may apply to the Commission to establish a workplace forum, and the applicant may choose forum members from its elected workplace representatives.
81. Trade union based workplace forum (1) (2) (3) (4) 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. The applicant may choose the members of the workplace forum from among its elected representatives in the workplace. 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). 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 Verify source ↗
Requirements for constitution of workplace forum
AI-assisted research summary: The workplace forum’s constitution must set out how seats are allocated, how elections work, and several employee voting and nomination rules. It also requires employer support for elections and forum functions.
82. Requirements for constitution of workplace forum (1) The constitution of every workplace forum must- (a) (b) (c) (d) (e) establish a formula for determining the number of seats in the workplace forum; establish a formula for the distribution of seats in the workplace forum so as to reflect the occupational structure of the workplace; provide for the direct election of members of the workplace forum by the employees in the workplace; provide for the appointment of an employee as an election officer to conduct elections and define that officer's functions and powers; 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) (ii) any registered trade union with members employed in the work- place; or 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 (k) (l) (ii) to cast one or more of those votes in favour of any candidate; establish the terms of office of members of the workplace forum f and the circumstances in which a member must vacate that office; 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) (o) (p) establish the circumstances and manner in which the meetings referred to in section 83 must be held; provide that the employer must allow the election officer reasonable time off with pay during working hours to prepare for and conduct elections; 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) (s) (t) require the employer to provide facilities to enable the workplace forum to perform its functions; provide for the designation of full-time members of the workplace forum if there are more than 1 000 employees in a workplace; provide that the workplace forum may invite any expert to attend its meetings, including meetings with the employer or the employees, and that an expert is entitled to any information to which the workplace forum is entitled and to inspect and copy any document that members of the workplace forum are entitled to inspect and copy; (u) provide that office-bearers or officials of the representative trade union may attend meetings of the workplace forum, including meetings with the employer or the employees; (v) provide that the representative trade union and the employer, by agreement, may change the constitution of the workplace forum; and (w) establish the manner in which decisions are to be made. (2) The constitution of a workplace forum may- (a) (b) 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; 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 Verify source ↗
Meetings of workplace forum
AI-assisted research summary: The workplace forum, employer, and employees must have regular meetings, and the employer must present reports at those meetings.
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. 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. 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. (b) (c) - 84 Verify source ↗
Specific matters for consultation
AI-assisted research summary: A workplace forum has a right to be consulted by the employer on listed workplace matters, unless a collective agreement already regulates those matters.
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) (b) 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; 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) (b) the collective agreement referred to in subsection (1) is a collective agreement concluded in a bargaining council; 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 Verify source ↗
Consultation
AI-assisted research summary: An employer must consult the workplace forum, hear its proposals, respond to them, and use any agreed dispute procedure before implementing certain proposals.
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) (4) 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. 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 Verify source ↗
Joint decision-making
AI-assisted research summary: An employer must consult and reach consensus with a workplace forum before certain workplace proposals are implemented, unless covered by a collective agreement with the representative trade union.
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) (b) conferring on the workplace forum the right to joint decision-making in respect of additional matters in that workplace; 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 Verify source ↗
Review at request of newly established workplace forum
AI-assisted research summary: After a workplace forum is established, it may ask the employer to meet and review certain workplace rules, and the employer must provide the relevant criteria and rules in writing.
87. Review at request of newly established workplace forum (1) After the establishment of a workplace forum, the workplace forum may request a meeting with the employer to review- (a) criteria for merit increases or the payment of discretionary bonuses; (b) disciplinary codes and procedures; and (c) rules relating to the proper regulation of the workplace in so far as they apply to conduct not related to work performance of employees in the workplace. (2) The employer must submit its criteria, disciplinary codes and procedures, and rules, referred to in subsection (1), if any, in writing to the workplace forum for its consideration. (3) A review of the criteria must be conducted in accordance with the provisions of section 85. (4) A review of the disciplinary codes and procedures, and rules, must be conducted in accordance with the provisions of section 86(2) to (7) except that, in applying section 86(4), either the employer or the workplace forum may refer a dispute between them to arbitration or to the Commission.. - 88 Verify source ↗
Matters affecting more than one workplace forum in an employer's operation
AI-assisted research summary: An employer with more than one workplace may notify workplace forum chairpersons to stop other forums from referring substantially the same matter to arbitration, and affected forums may participate in that arbitration.
88. Matters affecting more than one workplace forum in an employer's operation (1) If the employer operates more than one workplace and separate workplace forums have been established in two or more of those workplaces, and if a matter has been referred to arbitration in terms of section 86(4)(a) or (b) or by a workplace forum in terms of section 87(4), the employer may give notice in writing to the chairpersons of all the workplace forums that no other 19. See flow diagram No. 9 in Schedule 4. 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) (b) each workplace forum is entitled to make representations and participate in the arbitration proceedings; and the arbitration award is binding on the employer and the employees in each workplace. - 89 Verify source ↗
Disclosure of information
AI-assisted research summary: An employer must give the workplace forum relevant information for consultation and joint decision-making, except for certain protected information.
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) (c) (d) that the employer cannot disclose without contravening a prohibition imposed on the employer by any law or order of any court; that is confidential and, if disclosed, may cause substantial harm to an employee or the employer; or that is private personal information relating to an employee, unless that employee consents to the disclosure of that information. (2A) The employer must notify the workplace forum in writing if of the view that any information disclosed in terms of subsection (1) is confidential. (3) (4) If there is a dispute about the disclosure of information, any party to the dispute may refer the dispute in writing to the Commission. 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) (7) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration. 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 Verify source ↗
Inspection and copies of documents
AI-assisted research summary: An employer must let workplace forum members inspect certain required documents and must provide copies on request.
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 Verify source ↗
Breach of confidentiality
AI-assisted research summary: If there is a dispute about an alleged breach of confidentiality, the commissioner may order that the workplace right to disclosure of information be withdrawn for the period set in the arbitration award.
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 Verify source ↗
Full-time members of workplace forum
AI-assisted research summary: In workplaces with 1,000 or more employees, workplace forum members may choose one full-time member. The employer must keep paying that person the same remuneration and, when the person stops being a full-time member, must restore them to their former or a higher eligible position.
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 Verify source ↗
Dissolution of workplace forum
AI-assisted research summary: A representative trade union may request a ballot to dissolve a workplace forum, and an election officer must run the ballot within 30 days of that request.
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 Verify source ↗
Disputes about workplace forums
AI-assisted research summary: Parties to a dispute about this Chapter may refer it in writing to the Commission, and the Commission must try to settle it by conciliation.
94. Disputes about workplace forums (1) Unless a collective agreement or this Chapter provides otherwise, any party to a dispute about the interpretation or application of this Chapter may refer that dispute to the Commission in writing, if that party is- (a) one or more employees employed in the workplace; (aA) a workplace forum; (b) a registered trade union with members employed in the workplace; (c) the representative trade union; or (d) the employer. (2) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute. (3) The Commission must attempt to resolve the dispute through conciliation. (4) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration. CHAPTER VI TRADE UNIONS AND EMPLOYERS' ORGANISATIONS PART A-REGISTRATION AND REGULATION OF TRADE UNIONS AND EMPLOYERS' ORGANISATIONS
Part
PART A-REGISTRATION AND REGULATION OF TRADE UNIONS AND
- 95 Verify source ↗
Requirements for registration of trade unions or employers' organisations
AI-assisted research summary: Trade unions and employers' organisations may register only if they meet name, constitution, address, and independence requirements, and the registrar must be satisfied they are genuine.
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) (b) it is not under the direct or indirect control of any employer or employers' organisation; and 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) (k) (l) (m) (n) (o) (p) (q) provide for other office-bearers, officials and, in the case of a trade union, trade union representatives, and define their respective functions; prescribe a procedure for nominating or electing office-bearers and, in the case of a trade union, trade union representatives; prescribe a procedure for appointing, or nominating and electing, officials; 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; 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; establish the circumstances and manner in which a ballot must be conducted; 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; 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) (7) (8) 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. The registrar must not register a trade union or an employers’ organisation unless the registrar is satisfied that the applicant is a genuine trade union or a genuine employers’ organisation. The Minister, in consultation with NEDLAC, may by notice in the Government Gazette publish guidelines to be applied by the registrar in determining whether an applicant is a genuine trade union or a genuine employers’ organisation. - 96 Verify source ↗
Registration of trade unions or employers' organisations
AI-assisted research summary: Trade unions or employers' organisations may apply for registration, and the registrar must decide, register qualifying applicants, and notify applicants in writing if registration is refused.
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) (b) must send the applicant a written notice of the decision and the reasons for that decision; and in that notice, must inform the applicant that it has 30 days from the date of the notice to meet those requirements. (5) (6) 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. 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 Verify source ↗
Effect of registration of trade union or employers' organisation
AI-assisted research summary: Registered trade unions and registered employers' organisations get corporate status proof from a registration certificate, members are not liable for the organisation's obligations, certain office-holders are protected from personal liability for good-faith acts, and service at the latest address given to the registrar counts as service on the organisation.
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 Verify source ↗
Accounting records and audits
AI-assisted research summary: Registered trade unions and registered employers' organisations must keep accounting records, prepare financial statements, have them audited, make them available to members, submit them to member meetings, and keep the records for three years.
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) (ii) 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. (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) (b) conduct the audit in accordance with generally accepted auditing standards; and report in writing to the trade union or employers' organisation and in that report- (i) (ii) 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 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 Verify source ↗
Duty to keep records. In addition to the records required by section 98, every
AI-assisted research summary: Registered trade unions and registered employers' organisations must keep member lists, meeting minutes, and ballot papers.
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 Verify source ↗
Duty to provide information to registrar. Every registered trade union and
AI-assisted research summary: Registered trade unions and registered employers' organisations must give the registrar annual and event-based information and documents.
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 Verify source ↗
Changing constitution or name of registered trade unions or employers'
AI-assisted research summary: Registered trade unions and employers' organisations may change their constitution or name, but must file specified documents with the registrar; the registrar must register compliant changes and issue/send the related certificates.
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) (b) register the changed or new constitution if it meets the requirements for registration; and 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 Verify source ↗
Amalgamation of trade unions or employers' organisations
AI-assisted research summary: Registered trade unions and employers' organisations may amalgamate, apply to the registrar for registration of the amalgamated body, and the registrar must process and then cancel the old registrations.
102. Amalgamation of trade unions or employers' organisations (1) Any registered- (a) (b) trade union may resolve to amalgamate with one or more other trade unions, whether or not those other trade unions are registered; and 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 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. These are the requirements relating to the name of a trade union or employers' organisation 20. to be registered. (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) (b) 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 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 Verify source ↗
Winding-up of trade unions or employers' organisations
AI-assisted research summary: The Labour Court may wind up a trade union or employers' organisation, and related steps must be taken for affected interests, liquidator fees, and remaining assets.
103. Winding-up of trade unions or employers' organisations (1) The Labour Court may order a trade union or 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 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. (1A) If the registrar has cancelled the registration of a trade union or employers’ organisation in terms of section 106(2A), any person opposing its winding up is required to prove that the trade union or employers’ organisation is able 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) (b) consider those interests before deciding whether or not to grant the order applied for; and if it grants the order applied for, include provisions in the order disposing of each of those interests. (3) In granting an order in terms of subsection (1), the Labour Court may appoint a suitable person as liquidator, on appropriate conditions. (4)(a) The registrar of the Labour Court must determine the liquidator's fees. (b) (c) The Labour Court, in chambers, may review the determination of the registrar of the Labour Court. 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 trade union or employers' organisation have been discharged, any assets remain which 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. (6)(a) The Labour Court may direct that the costs of the registrar or any other person who has brought an application in terms of subsection (1)(b) be paid from the assets of the trade union or employers’ organisation. (b) Any costs in terms of paragraph (a) rank concurrently with the liquidator’s fees - 104 Verify source ↗
Winding-up of trade unions or employers' organisations by reason of
AI-assisted research summary: A person seeking to wind up a trade union or employers' organisation because of insolvency must comply with the Insolvency Act, 1936.
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 Verify source ↗
Declaration that trade union is no longer independent
AI-assisted research summary: A registered trade union may apply to the Labour Court for an order that another trade union is no longer independent, and the Court must make that order if satisfied the union is not independent.
105. Declaration that trade union 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 Verify source ↗
Cancellation of registration of trade unions or employers' organisations
AI-assisted research summary: The registrar must cancel a trade union or employers’ organisation’s registration after notice from the Labour Court, and may cancel it in other cases only if the statutory conditions and a 60-day Gazette notice requirement are met.
106. Cancellation of registration of trade unions or employers' organisations (1) The registrar of the Labour Court must notify the registrar if the Court (a) (b) in terms of section 103 or 104 has ordered a registered trade union or a registered employers' organisation to be wound up; or 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. (2A) The registrar may cancel the registration of a trade union or employers’ organisation by removing its name from the appropriate register if the registrar – (a) is satisfied that the trade union or employers’ organisation is not, or has ceased to function as, a genuine trade union or employers’ organisation, as the case may be; or (b) has issued a written notice requiring the trade union or employers’ organisation to comply with sections 98, 99 and 100 within a period of 60 days of the notice and the trade union or employers’ organisation has, despite the notice, not complied with those sections. (2B) The registrar may not act in terms of subsection (2A) unless the registrar has published a notice in the Government Gazette at least 60 days prior to such action – (a) (b) giving notice of the registrar’s intention to cancel the registration of the trade union or employers’ organisation; and inviting the trade union or employers’ organisation or any other interested parties to make written representations as to why the registration should not be cancelled. (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
Part
PART B-REGULATION OF FEDERATIONS OF TRADE UNIONS AND
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Regulation of federations of trade unions or employers' organisations
AI-assisted research summary: Certain federations must give the registrar member, office-bearer, constitution, address, and winding-up information on set deadlines.
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
Part
PART C-REGISTRAR OF LABOUR RELATIONS
- 108 Verify source ↗
Appointment of registrar of labour relations
AI-assisted research summary: The Minister must appoint a Department of Labour officer as registrar of labour relations, may appoint deputy registrars, and deputies may act for the registrar when delegated or when the registrar is unavailable.
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 Verify source ↗
Functions of registrar
AI-assisted research summary: The registrar must keep several registers, notify the Government Gazette within 30 days of any entry or deletion, and perform other functions given by the Act. The registrar may also extend or condone late compliance for Chapter time periods on good cause shown, except for appeal periods.
109. Functions of registrar (1) The registrar must keep- (a) a register of registered trade unions; (b) a register of registered employers' organisations; (c) (d) a register of federations of trade unions containing the names of the federations whose constitutions have been submitted to the registrar; 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 Verify source ↗
Access to information
AI-assisted research summary: The registrar must let people inspect certain documents and must provide certified copies or extracts, sometimes for a prescribed fee and sometimes free of charge.
110. Access to information (1) Any person may inspect any of the following documents in the registrar's office- (a) (b) the registers of registered trade unions, registered employers organisations, federations of trade unions, federations of employers' organisations and councils; 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. (4) 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
Part
PART D -APPEALS FROM REGISTRAR'S DECISION
- 111 Verify source ↗
Appeals from registrar's decision
AI-assisted research summary: An aggrieved person may ask the registrar in writing for reasons within 30 days, and may appeal to the Labour Court within 60 days; the registrar must give reasons within 30 days of the demand.
111. Appeals from registrar's decision (1) Within 30 days of the written notice of a decision of the registrar, any person who is aggrieved by the decision may demand in writing that the registrar provide written reasons for the decision. (2) The registrar must give the applicant written reasons for the decision within 30 days of receiving a demand in terms of subsection (1). (3) Any person who is aggrieved by a decision of the registrar may appeal to the Labour Court against that decision, within 60 days of- (a) the date of the registrar's decision; or (b) if written reasons for the decision are demanded, the date of those reasons. (4) The Labour Court, on good cause shown, may extend the period within which a person may note an appeal against a decision of the registrar. CHAPTER VII DISPUTE RESOLUTION PART A-COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION
Part
PART A-COMMISSION FOR CONCILIATION, MEDIATION AND
- 112 Verify source ↗
Establishment of Commission for Conciliation, Mediation and Arbitration
AI-assisted research summary: The Commission for Conciliation, Mediation and Arbitration is established as a juristic person.
112. Establishment of Commission for Conciliation, Mediation and Arbitration The Commission for Conciliation, Mediation and Arbitration is hereby established as a juristic person. - 113 Verify source ↗
Independence of Commission
AI-assisted research summary: The Commission is stated to be independent from the State and from political and labour organisations.
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 Verify source ↗
Area of jurisdiction and offices of Commission
AI-assisted research summary: The Commission has jurisdiction in all provinces, and must keep an office in each province plus any local offices it considers necessary. The Minister must set the location of the Commission’s head office after consulting the governing body.
114. Area of jurisdiction and offices of Commission (1) The Commission has jurisdiction in all the provinces of the Republic. (2) (3) The Minister, after consulting the governing body, must determine the location for the Commission's head office. The Commission must maintain an office in each province of the Republic and as many local offices as it considers necessary. - 115 Verify source ↗
Functions of Commission
AI-assisted research summary: The Commission must conciliate referred disputes, arbitrate some unresolved disputes, support workplace forums, and publish information and statistics. It may also advise, assist, make rules, publish guidelines, and do research.
115. Functions of Commission (1) The Commission must- (a) (b) attempt to resolve, through conciliation, any dispute referred to it in terms of this Act; if a dispute that has been referred to it remains unresolved after conciliation, arbitrate the dispute if- (i) (ii) this Act requires arbitration and any party to the dispute has requested that the dispute be resolved through arbitration; or 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) (b) (c) if asked, advise a party to a dispute about the procedure to follow in terms of this Act; 21 if asked, assist a party to a dispute to obtain legal advice, assistance or representation; 22 offer to resolve a dispute that has not been referred to the Commission through conciliation; 23 (cA) make rules – (i) (ii) (iii) to regulate, subject to Schedule 3, the proceedings at its meetings and at the meetings of any committee of the Commission; regulating the practice and procedure of the essential services committee; regulating the practice and procedure – (aa) for any process to resolve a dispute through conciliation; at arbitration proceedings; and (bb) (iv) determining the amount of any fee that the Commission may charge under section 147, and regulating the payment of such a fee in detail; (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 (2A) The Commission may make rules regulating – (a) (b) (c) (d) (e) (f) (g) (h) the practice and procedure in connection with the resolution of a dispute through conciliation or arbitration; the process by which conciliation is initiated, and the form, content and use of that process; the process by which arbitration or arbitration proceedings are initiated, and the form, content and use of that process; the joinder of any person having an interest in the dispute in any conciliation and arbitration proceedings; the intervention of any person as an applicant or respondent in conciliation or arbitration proceedings; the amendment of any citation and the substitution of any party for another in conciliation or arbitration proceedings; the hours during which offices of the Commission will be open to receive any process; any period that is not to be counted for the purpose of calculating time or periods for delivering any process or notice relating to any proceedings; 21. 22. 23. See section 148. See section 149. See section 150. (i) (j) (k) (l) (m) the forms to be used by parties and the Commission; the basis on which a commissioner may make any order as to costs in any arbitration. the right of any person or category of persons to represent any party in any conciliation or arbitration proceedings; the circumstances in which the Commission may charge a fee in relation to any conciliation or arbitration proceedings or for any services the Commission provides; and all other matters incidental to performing the functions of the Commission. (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) (b) (c) (d) (e) (f) (g) (h) (i) establishing collective bargaining structures; designing, establishing and electing workplace forums and creating deadlock-breaking mechanisms; the functioning of workplace forums; preventing and resolving disputes and employees' grievances; disciplinary procedures; procedures in relation to dismissals; the process of restructuring the workplace; affirmative action and equal opportunity programmes; and the prevention of 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. (6)(a) A rule made under subsection (2)(cA) or (2A) must be published in the Government Gazette. The Commission will be responsible to ensure that the publication occurs. (b) A rule so made will not have any legal force or effect unless it has been so published. (c) A rule so made takes effect from the date of publication unless a later date is stipulated. - 116 Verify source ↗
Governing body of Commission
AI-assisted research summary: The Commission is governed by a governing body. NEDLAC must nominate the chairperson and other specified members, the Minister appoints them, and the director may not vote at governing body meetings.
116. Governing body of Commission (1) (2) The Commission will be governed by the governing body, whose acts are acts of the Commission.26 The governing body consists of(a) a chairperson and nine other members, each nominated by NEDLAC and appointed27 by the Minister to hold office for a period of three years; and (b) the director of the Commission, who- (i) is a member of the governing body only by virtue of having been appointed director; and (ii) may not vote at meetings of the governing body. (3) NEDLAC must nominate(a) one independent person for the office of chairperson; (b) (c) (d) three persons proposed by those voting members of NEDLAC who represent organised labour; and three persons proposed by those voting members of NEDLAC who represent organised business; three persons proposed by those voting members of NEDLAC who represent the State. - 117 Verify source ↗
Commissioners of Commission
AI-assisted research summary: The governing body appoints commissioners, sets their terms and pay, prepares a code of conduct, and may remove a commissioner for serious misconduct, incapacity, or a material code breach.
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; 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. (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 Verify source ↗
Director of Commission
AI-assisted research summary: The governing body must appoint a qualified director, the director must run and supervise the Commission, and the governing body sets the director’s pay and appointment terms (except those in Schedule 3).
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. (6) The director, in consultation with the governing body, may delegate any of the functions of that office, except the functions mentioned in sections 120 and 138(8), to a commissioner. - 119 Verify source ↗
Acting director of Commission
AI-assisted research summary: The governing body’s chairperson may appoint an acting director when the director is unavailable or the office is vacant, but only a senior commissioner may be appointed.
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 Verify source ↗
Staff of Commission
AI-assisted research summary: The director may appoint staff after consulting the governing body, and the governing body must set staff remuneration, allowances, and other appointment terms.
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 Verify source ↗
Establishment of committees of Commission
AI-assisted research summary: The governing body may establish, vary, and dissolve committees, and must decide committee members’ pay and appointment terms for members appointed under subsection (2)(e).
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 Verify source ↗
Finances of Commission
AI-assisted research summary: The Commission is funded from public money, fees, grants, donations, bequests, and investment income. The Minister must allocate public funds at commencement, and the Commission must send an annual financial statement to the Minister at a time the Minister तय/determines.
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) (3) 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. 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 Verify source ↗
Circumstances in which Commission may charge fees
AI-assisted research summary: The Commission may charge fees only for specified services and only if a tariff of fees has been established and the fee matches that tariff. It must publish the tariff in the Government Gazette.
123. Circumstances in which Commission may charge fees (1) The Commission may charge a fee only for- (a) (b) resolving disputes which are referred to it, In circumstances in which this Act allows the Commission, or a commissioner, to charge a fee; 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 Verify source ↗
Contracting by Commission, and Commission working in association with
AI-assisted research summary: The governing body may contract with people or accredited agencies to do Commission work, may work with others to perform Commission functions, and anyone so contracted or associated must meet the Commission’s independence requirement.
124. Contracting by Commission, and Commission working in association with any person (1) The governing body may- (a) contract with any person to do work for the Commission or contract with an accredited agency to perform, whether for reward or otherwise, any function of the Commission on its behalf; and (b) perform any function of the Commission in association with any person. (2) Every person with whom the Commission contracts or associates is bound by the requirement of independence that binds the Commission.
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