Labour Relations Act
Part 3 of 3 · provisions 401–565
This section states the purpose of the Act.
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- Act 66 of 1995
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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 165 of 565
Part
PART A-COMMISSION FOR CONCILIATION, MEDIATION AND
- 125 Verify source ↗
Delegation of governing body's powers, functions and duties
AI-assisted research summary: The governing body may delegate functions in writing, except for certain listed functions, and it can attach, change, or revoke conditions on a delegation.
125. Delegation of governing body's powers, functions and duties (1) The governing body may delegate in writing any of its functions, other than the functions listed below, to any member of the governing body, the director, a commissioner, or any committee established by the Commission. The functions that the governing body may not delegate are- (a) appointing the director; (b) appointing commissioners, or removing a commissioner from office; (c) depositing or investing surplus money; (d) accrediting councils or private agencies, or amending, withdrawing or renewing their accreditation; or (e) subsidising accredited councils or accredited agencies. (2) The governing body may attach conditions to a delegation and may amend or revoke a delegation at any time. (3) A function delegated to the director may be performed by any commissioner or staff member of the Commission authorised by the director, unless the terms of that delegation prevent the director from doing so. (4) (5) The governing body may vary or set aside any decision made by a person acting in terms of any delegation made in terms of subsection (1). The governing body, by delegating any function, is not divested of any of its powers, nor is it relieved of any function or duty that it may have delegated. This rule also applies if the director sub-delegates the performance of a function in terms of subsection (3). - 126 Verify source ↗
Limitation of liability and limitation on disclosure of information
AI-assisted research summary: The Commission is protected from liability for good-faith acts or omissions, and it must not disclose certain confidential information except under a court order.
126. Limitation of liability and limitation on disclosure of information (1) In this section, "the Commission" means- (a) the governing body; (b) a member of the governing body; (c) the director; (d) a commissioner; (e) a staff member of the Commission; (f) a member of any committee established by the governing body; and (g) any person with whom the governing body has contracted to do work for, or in association with whom it performs a function of, the Commission. (2) (3) The Commission is not liable for any loss suffered by any person as a result of any act performed or omitted in good faith in the course of exercising the functions of the Commission. The Commission may not disclose to any person or in any court any information, knowledge or document that it acquired on a confidential basis or without prejudice in the course of performing its functions except on the order of a court. PART B-ACCREDITATION OF AND SUBSIDY TO COUNCILS AND PRIVATE AGENCIES
Part
PART B-ACCREDITATION OF AND SUBSIDY TO COUNCILS AND
- 127 Verify source ↗
Accreditation of councils and private agencies
AI-assisted research summary: Councils or private agencies may apply for accreditation, and the governing body may accredit them if criteria are met.
127. Accreditation of councils and private agencies (1) Any council or private agency may apply to the governing body in the prescribed form for accreditation to perform any of the following functions- (a) resolving disputes through conciliation; and (b) arbitrating disputes that remain unresolved after conciliation, if this Act requires arbitration. (2) For the purposes of this section, the reference to disputes must be interpreted to exclude disputes as contemplated in- (a) sections 16, 21 and 22;28 (b) section 24(2) to (5);29 (c) section 24(6) and (7) and section 26(11);30 (d) section 45;31 (e) section 61(5) to (8) ;32 (f) section 62;33; (g) section 63, 34 (h) section 69 (8) to (10); 35 (i) (j) section 86; 36 section 89; 37 (k) section 94. 38 (3) The governing body may require further information in support and, for that purpose, may require the applicant to attend one or more meetings of the governing body. 28. These sections deal with disputes about organisational rights. 29. These subsections deal with disputes about collective agreements where the agreement does not provide for a procedure, the procedure is inoperative or any party frustrates the resolution of the dispute. 30. These subsections deal with disputes about agency shops and closed shops. 31. 32. This section deals with disputes about determinations made by the Minister in respect of proposals made by a statutory council. These subsections deal with disputes about the interpretation or application of collective agreements of a council whose registration has been cancelled. 33. This section deals with disputes about the demarcation of sectors and areas of councils. 34. This section deals with disputes about the interpretation or application of Parts C to IF of Chapter Ill. Part C deals with bargaining councils, Part D with bargaining councils in the public service, Part E with statutory councils and Part IF with general provisions concerning councils. 35. This section concerns disputes about pickets during strikes and lock outs. 36. This section deals with disputes about proposals that are the subject of joint decision-making. 37. This section deals with disputes about the disclosure of information to workplace forums. 38. This section deals with disputes about the interpretation or application of Chapter V which deals with workplace forums. (4) The governing body may accredit an applicant to perform any function for which it seeks accreditation, after considering the application, any further information provided by the applicant and whether- (a) the services provided by the applicant meet the Commission's standards; (b) the applicant is able to conduct its activities effectively; (c) (d) (e) the persons appointed by the applicant to perform those functions will do so in a manner independent of the State, any political party, trade union, the persons appointed by the applicant to perform those functions will be competent to perform those functions and exercise any associated powers; the applicant has an acceptable code of conduct to govern the persons whom it appoints to perform those functions; the applicant uses acceptable disciplinary procedures to ensure that each person it appoints to perform those functions will subscribe, and adhere, to the code of conduct; (f) the applicant uses acceptable disciplinary procedures to ensure that each person it appoints to perform those functions will subscribe, and adhere, to the code of conduct; and (g) the applicant promotes a service that is broadly representative of South African society. (5) If the governing body decides- (a) to accredit the applicant, the governing body must- (i) (ii) enter the applicant's name in the register of accredited councils or the register of accredited agencies; issue a certificate of accreditation in the applicant's name stating the period and other terms of accreditation; (iii) send the certificate to the applicant; and (c) not to accredit the applicant, the governing body must advise the unsuccessful applicant in writing of its decision. (5A) The governing body must annually publish a list of accredited councils and accredited agencies. (6) The terms of accreditation must state the extent to which the provisions of each section in Part C of this Chapter apply to the accredited council or accredited agency. (7)(a) Any person may inspect the registers and certificates of accredited councils and accredited agencies kept in the Commission's offices. (b) The Commission must provide a certified copy of, or extract from, any of the documents referred to in paragraph (a) to any person who has paid the prescribed fee. - 128 Verify source ↗
General provisions relating to accreditation
AI-assisted research summary: Accredited councils and agencies may charge fees only where the Act allows a commissioner to charge a fee, and the fee must match the Commission’s tariff. They also have a confidentiality restriction, with disclosure allowed only on a court order.
128. General provisions relating to accreditation (1)(a) An accredited council or accredited agency may charge a fee for performing any of the functions for which it is accredited in circumstances in which this Act allows a commissioner to charge a fee. (b) A fee charged in terms of paragraph (a) must be in accordance with the tariff of fees determined by the Commission. (2)(a) An accredited council, accredited agency, or any person engaged by either of them to perform the functions for which it has been accredited, is not liable for any loss suffered by any person as a result of any act performed or omitted in good faith in the course of exercising those functions. (b) An accredited council, accredited agency, or any person engaged by either of them to perform the functions for which it has been accredited, may not disclose to any person or in any court any information, knowledge or document that it or that person acquired on a confidential basis or without prejudice in the course of performing those functions except on the order of a court. (3)(a)(i) An accredited council may confer on any person appointed by it to resolve a dispute, the powers of a commissioner in terms of section 142, read with the changes required by the context. (ii) For this purpose, any reference in that section to the director must be read as a reference to the secretary of the bargaining council. (b) An accredited private agency may confer on any person appointed by it to resolve a dispute, the posers of a commissioner in terms of section 42(1)(a) to (e), (2) and (7) to (9), read with the changes required by the context. - 129 Verify source ↗
Amendment of accreditation
AI-assisted research summary: An accredited council or accredited agency may apply to the governing body, in the prescribed form, to amend its accreditation.
129. Amendment of accreditation (1) An accredited council or accredited agency may apply to the governing body in the prescribed form to amend its accreditation. (2) The governing body must treat the application as an application in terms of section 127. - 130 Verify source ↗
Withdrawal of accreditation. If an accredited council or accredited agency
AI-assisted research summary: The governing body may withdraw accreditation from an accredited council or accredited agency if it materially fails to comply with the terms of its accreditation, after giving reasonable notice.
130. Withdrawal of accreditation. If an accredited council or accredited agency fails to comply to a material extent with the terms of its accreditation, the governing body may withdraw its accreditation after having given reasonable notice of the withdrawal to that council or accredited agency. - 131 Verify source ↗
Application to renew accreditation
AI-assisted research summary: An accredited council or accredited agency may apply to the governing body to renew accreditation, using the prescribed form. The governing body must treat the renewal application as an application under section 127.
131. Application to renew accreditation (1) An accredited council or accredited agency may apply to the governing body in the prescribed form to renew its accreditation either in the current or in an amended form. (2) The governing body must treat the application for renewal as an application in terms of section 127. - 132 Verify source ↗
Subsidy to council or private agency
AI-assisted research summary: The governing body may grant subsidies for dispute-resolution work and training, and must notify and publish notice if it grants one.
132. Subsidy to council or private agency (1)(a) Any council may apply to the governing body in the prescribed form for a subsidy for performing any dispute resolution functions that the council is required to perform in terms of this Act, and for training persons to perform those functions. (b) Any accredited agency, or a private agency that has applied for accreditation, may apply to the governing body in the prescribed form for a subsidy for performing any dispute resolution functions for which it is accredited or has applied for accreditation; and for training persons to perform those functions. (2) The governing body may require further information in support of the application and, for that purpose, may require the applicant to attend one or more meetings of the governing body. (3) The governing body may grant a subsidy to the applicant after considering the application, any further information provided by the applicant and- (a) (b) (c) the need for the performance by the applicant of the functions for which it is accredited; the extent to which the public uses the applicant to perform the functions for which it is accredited; the cost to users for the performance by the applicant of the functions for which it is accredited; (d) the reasons for seeking the subsidy; (e) the amount requested; and the applicant's ability to manage its financial affairs in accordance with established accounting practice, principles and procedures. (4) If the governing body decides- (a) to grant a subsidy to the applicant, the governing body must- (i) (ii) notify the applicant in writing of the amount, duration and the terms of the subsidy; and as soon as practicable after the decision, publish the written notice in the Government Gazette; or (b) not to grant a subsidy to the applicant, the governing body must advise the unsuccessful applicant in writing of its decision. (5) A subsidy granted in terms of subsection (4)(a)- (a) may not be paid to a council or private agency unless it has been accredited; and (b) lapses at the end of the Commission's financial year within which it was granted. (6)(a) Any person may inspect a written notice referred to in subsection (4)(a) in the Commission's offices. (b) The Commission must provide a certified copy of, or extract from, any written notice referred to in paragraph (a) to any person who has paid the prescribed fee. (7) If an accredited council or accredited agency fails to comply to a material extent with the terms of its subsidy, the governing body may withdraw the subsidy after having given reasonable notice of the withdrawal to that council or agency. (8)(a) An accredited council or accredited agency that has been granted a subsidy may apply to the governing body in the prescribed form to renew its subsidy, either in the current or in an amended form and amount. (b) The governing body must treat the application for renewal as an application in terms of subsections (1) to (4). PART C-RESOLUTION OF DISPUTES UNDER AUSPICES OF COMMISSION
Part
PART C-RESOLUTION OF DISPUTES UNDER AUSPICES OF
- 133 Verify source ↗
Resolution of disputes under auspices of Commission
AI-assisted research summary: The Commission must appoint a commissioner to try to settle referred disputes by conciliation, and must arbitrate unresolved disputes when the stated conditions are met.
133. Resolution of disputes under auspices of Commission (1) The Commission must appoint a commissioner to attempt to resolve through conciliation- (a) any dispute referred to it in terms of section 134; and (b) any other dispute that has been referred to it in terms of this Act. (2) If a dispute remains unresolved after conciliation, the Commission must arbitrate the dispute if - (a) (b) this Act requires the dispute to be arbitrated and any party to the dispute has requested that the dispute be resolved through arbitration; or all the parties to the dispute in respect of which the Labour Court has jurisdiction consent in writing to arbitration under the auspices of the Commission. - 134 Verify source ↗
Disputes about matters of mutual interest
AI-assisted research summary: A party to a dispute about a matter of mutual interest may refer it in writing to the Commission, if the dispute is between the listed types of unions/employees and employers/employers’ organisations. The referring party must also satisfy the Commission that the referral was served on all other parties.
134. Disputes about matters of mutual interest (1) Any party to a dispute about a matter of mutual interest may refer the dispute in writing to the Commission, if the parties to the dispute are- (a) on the one side- (i) one or more trade unions; (ii) one or more employees; or 2 one or more trade unions and one or more employees; and (b) on the other side - (i) one or more employers' organisations; (ii) one or more employers; or (iii) one or more employers' organisations and one or more employers. (2) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute. - 135 Verify source ↗
Resolution of disputes through conciliation
AI-assisted research summary: After a dispute is referred, the Commission must appoint a commissioner to conciliate it, and the commissioner must try to resolve it within 30 days unless the parties extend that period.
135. Resolution of disputes through conciliation (1) When a dispute has been referred to the Commission, the Commission must appoint a commissioner to attempt to resolve it through conciliation. (2) The appointed commissioner must attempt to resolve the dispute through conciliation within 30 days of the date the Commission received the referral: However the parties may agree to extend the 30-day period. (3) The commissioner must determine a process to attempt to resolve the dispute, which may include (a) mediating the dispute; (b) conducting a fact-finding exercise; and (c ) making a recommendation to the parties, which may be in the form of an advisory arbitration award. (3A) If a single commissioner has been appointed in terms of subsection (1), in respect or more than one dispute involving the same parties, that commissioner may consolidate the conciliation proceeding so that all the disputes concerned may be dealt with in the same proceedings. (5) When conciliation has failed, or at the end of the 30-day period or any further period agreed between the parties- (a) (b) the commissioner must issue a certificate stating whether or not the dispute has been resolved; the Commission must serve a copy of that certificate on each party to the dispute or the person who represented a party in the conciliation proceedings; and (c) the commissioner must file the original of that certificate with the Commission. (6)(a) If a dispute about a matter of mutual interest has been referred to the Commission and the parties to the dispute are engaged in an essential service then, despite subsection (1), the parties may consent within seven days of the date the Commission received the referral- (i) to the appointment of a specific commissioner by the Commission to attempt to resolve the dispute through conciliation; and (ii) to that commissioner's terms of reference. (b) If the parties do not consent to either of those matters within the seven- day period, the Commission must as soon as possible- (i) appoint a commissioner to attempt to resolve the dispute; and (ii) determine the commissioner's terms of reference. - 136 Verify source ↗
Appointment of commissioner to resolve dispute through arbitration
AI-assisted research summary: If arbitration is required, the Commission must appoint a commissioner, and parties can object to the same commissioner handling the arbitration within a short deadline.
136. Appointment of commissioner to resolve dispute through arbitration (1) If this Act requires a dispute to be resolved through arbitration, the Commission must appoint a commissioner to arbitrate that dispute, if- (a) a commissioner has issued a certificate stating that the dispute remains unresolved; and (b) within 90 days after the date on which that certificate was issued, any party to the dispute has requested that the dispute be resolved through arbitration. However, the Commission on good cause shown, may condone a party’s non-observance of that timeframe and allow a request for arbitration filed by the party after the expiry of the 90-day period. (2) A commissioner appointed in terms of subsection (1) may be the same commissioner who attempted to resolve the dispute through conciliation. (3) Any party to the dispute, who wants to object to the arbitration also being conducted by the commissioner who had attempted to resolve the dispute through conciliation, may do so by filing an objection in that regard with the Commission within seven days after the date on which the commissioner’s certificate was issued, and must satisfy the Commission that a copy of the objection has been served on all the other parties to the dispute. (4) When the Commission receives an objection it must appoint another commissioner to resolve the dispute by arbitration. (5)(a) The parties to a dispute may request the Commission, in appointing a commissioner in terms of subsection (1) or (4), to take into account their stated preference, to the extent that this is reasonably practicable in all the circumstances. (b) The stated preference contemplated in paragraph (a) must- (i) be in writing; (ii) list no more than five commissioners; (iii) state that the request is made with the agreement of all the parties to the dispute; and (iv) be submitted within 48 hours of the date of the certificate referred to in subsection (1)(a). (6) If the circumstances contemplated in subsection (1) exist and the parties to the dispute are engaged in an essential service, then the provisions of section 135 (6) apply, read with the changes required by the context, to the appointment of a commissioner to resolve the dispute through arbitration. - 137 Verify source ↗
Appointment of senior commissioner to resolve dispute through arbitration
AI-assisted research summary: A party may ask the director to appoint a senior commissioner for arbitration in certain cases, and the director must hear the parties, notify them of the decision, and follow the grant/refusal outcome. The director’s decision is final, and court review is barred until arbitration is complete.
137. Appointment of senior commissioner to resolve dispute through arbitration (1) In the circumstances contemplated in section 136(l), any party to the dispute may apply to the director to appoint a senior commissioner to attempt to resolve the dispute through arbitration. (2) When considering whether the dispute should be referred to a senior commissioner, the director must hear the party making the application, any other party to the dispute and the commissioner who conciliated the dispute. (3) The director may appoint a senior commissioner to resolve the dispute through arbitration, after having considered- (a) the nature of the questions of law raised by the dispute; (b) the complexity of the dispute; (c) whether there are conflicting arbitration awards that are relevant to the dispute; and (d) the public interest. (4) The director must notify the parties to the dispute of the decision and- (a) (b) if the application has been granted, appoint a senior commissioner to arbitrate the dispute; or if the application has been refused, confirm the appointment of the commissioner initially appointed, subject to section 136(4). (5) The director's decision is final and binding. (6) No person may apply to any court of law to review the director's decision until the dispute has been arbitrated. - 138 Verify source ↗
General provisions for arbitration proceedings
AI-assisted research summary: This section lets the commissioner run arbitration flexibly, but requires the dispute’s merits to be handled fairly, quickly, and with minimal formality.
138. General provisions for arbitration proceedings (1) The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities. (2) Subject to the discretion of the commissioner as to the appropriate form of the proceedings, a party to the dispute may give evidence, call witnesses, question (3) (4) the witnesses of any other party, and address concluding arguments to the commissioner. If all the parties consent, the commissioner may suspend the arbitration proceedings and attempt to resolve the dispute through conciliation. In any arbitration proceedings, a party to the dispute may appear in person or be represented only by - (a) (b) (c) a legal practitioner; a director or employee of the party; or any member, office bearer or official of that party’s registered trade union or registered employers’ organisation. (5) If a party to the dispute fails to appear in person or to be represented at the arbitration proceedings, and that party - (a) had referred the dispute to the Commission, the commissioner may dismiss the matter; or (b) had not referred the dispute to the Commission, the commissioner may - (i) continue with the arbitration proceedings in the absence of that party; or (ii) adjourn the arbitration proceedings o a later date. (6) The commissioner must take into account any code of good practice that has been issued by NEDLAC or guidelines published by the Commission in accordance with the provisions of this Act that is relevant to a matter being considered in the arbitration proceedings. (7) Within 14 days of the conclusion of the arbitration proceedings- (a) (b) the commissioner must issue an arbitration award with brief reasons, signed by that commissioner; the Commission must serve a copy of that award on each party to the dispute or the person who represented a party in the arbitration proceedings; and (c) the Commission must file the original of that award with the registrar of the Labour Court. (8) On good cause shown, the director may extend the period within which the arbitration award and the reasons are to be served and filed. (9) The commissioner may make any appropriate arbitration award in terms of this Act, including, but not limited to, an award- (a) that gives effect to any collective agreement; (b) that gives effect to the provisions and primary objects of this Act; (c) that includes, or is in the form of, a declaratory order. (10) The commissioner may make an order for the payment of costs according to the requirements of law and fairness in accordance with rules made by the Commission in terms of section 115(2A)(j) and having regard to - (a) any relevant Code of Good Practice issued by NEDLAC in terms of section 203; or (b) any relevant guideline issued by the Commission. - 139 Verify source ↗
Special provisions for arbitrating disputes in essential services
AI-assisted research summary: In essential-service arbitration, the commissioner must finish the arbitration and issue a signed award with brief reasons within 30 days (or a longer agreed period). The Commission must serve and file the award, and costs cannot be included unless conduct was frivolous or vexatious.
139. Special provisions for arbitrating disputes in essential services (1) If a dispute about a matter of mutual interest proceeds to arbitration and any party is engaged in an essential service- (a) within 30 days of the date of the certificate referred to in section 136(l)(a), or within a further period agreed between the parties to the dispute, the commissioner must complete the arbitration and issue an arbitration award with brief reasons signed by that commissioner; (b) the Commission must serve a copy of that award on each party to the dispute or the person who represented a party in the arbitration proceedings; and (c) the Commission must file the original of that award with the registrar of the Labour Court. (2) The commissioner may not include an order for costs in the arbitration award unless a party, or the person who represented the party in the arbitration proceedings, acted in a frivolous or vexatious manner in its conduct during the arbitration proceedings. - 140 Verify source ↗
Special provisions for arbitrations about dismissals for reasons related to
AI-assisted research summary: If the commissioner finds a dismissal procedurally unfair under section 194(l), the commissioner may charge the employer an arbitration fee.
140. Special provisions for arbitrations about dismissals for reasons related to conduct or capacity (2) If, in terms of section 194(l), the commissioner finds that the dismissal is procedurally unfair, the commissioner may charge the employer an arbitration fee. - 141 Verify source ↗
Resolution of disputes if parties consent to arbitration under auspices of
AI-assisted research summary: If a dispute is unresolved after conciliation, the Commission must arbitrate it when the parties agree in writing and the dispute could otherwise go to the Labour Court.
141. Resolution of disputes if parties consent to arbitration under auspices of Commission (1) If a dispute remains unresolved after conciliation, the Commission must arbitrate the dispute if a party to the dispute would otherwise be entitled to refer the dispute to the Labour Court for adjudication and, instead, all the parties agree in writing to arbitration under the auspices of the Commission. (2) (3) The arbitration proceedings must be conducted in accordance with the provisions of sections 136, 137 and 138, read with the changes required by the context. The arbitration agreement contemplated in subsection (1) may be terminated only with the written consent of all the parties to that agreement, unless the agreement itself provides otherwise. (4) Any party to the arbitration agreement may apply to the Labour Court at any time to vary or set aside that agreement, which the Court may do on good cause. (5)(a) If any party to an arbitration agreement commences proceedings in the Labour Court against any other party to that agreement about any matter that the parties agreed to refer to arbitration, any party to those proceedings may ask the Court- (i) to stay those proceedings and refer the dispute to arbitration; or (ii) with the consent of the parties and where it is expedient to do so, continue with the proceedings with the Court acting as arbitrator, in which case the Court may only make an order corresponding to the award that an arbitrator could have made. (b) If the Court is satisfied that there is sufficient reason for the dispute to be referred to arbitration in accordance with the arbitration agreement, the Court may stay those proceedings, on any conditions. (6) If the provisions of subsection (1) apply, the commissioner may make an award that the Labour Court could have made. - 142 Verify source ↗
Powers of commissioner when attempting to resolve disputes
AI-assisted research summary: A commissioner resolving a dispute may subpoena people, call witnesses, inspect premises with written authorisation, and seize or retain relevant items; several parties must also comply with fees, facilities, receipts, and contempt-related duties.
142. Powers of commissioner when attempting to resolve disputes (1) A commissioner who has been appointed to attempt to resolve a dispute may- (a) (b) (c) (d) subpoena for questioning any person who may be able to give information or whose presence at the conciliation or arbitration proceedings may help to resolve the dispute; subpoena any person who is believed to have possession or control of any book, document or object relevant to the resolution of the dispute, to appear before the commissioner to be questioned or to produce that book, document or object; call, and if necessary subpoena, any expert to appear before the commissioner to give evidence relevant to the resolution of the dispute; call any person present at the conciliation or arbitration proceedings or who was or could have been subpoenaed for any purpose set out in this section, to be questioned about any matter relevant to the dispute; (e) (f) administer an oath or accept an affirmation from any person called to give evidence or be questioned; at any reasonable time, but only after obtaining the necessary written authorisation- (i) (ii) (iii) enter and inspect any premises on or in which any book, document or object, relevant to the resolution of the dispute is to be found or is suspected on reasonable grounds of being found there; and examine, demand the production of, and seize any book, document or object that is on or in those premises and that is relevant to the resolution of the dispute; and take a statement in respect of any matter relevant to the resolution of the dispute from any person on the premises who is willing to make a statement; and (g) inspect, and retain for a reasonable period, any of the books, documents or objects that have been produced to, or seized by, the Commission. (2) A subpoena issued for any purpose in terms of subsection (1) must be signed by the director and must- (a) specifically require the person named in it to appear before the commissioner; (b) sufficiently identify the book, document or object to be produced; and (c) state the date, time and place at which the person is to appear. (3) The written authorisation referred to in subsection (1)(f)- (a) if it relates to residential premises, may be given only by a judge of the Labour Court and with due regard to section 13 of the Constitution, and then only on the application of the commissioner setting out under oath or affirmation the following information- (i) the nature of the dispute; (ii) the relevance of any book, document or object to the resolution of the dispute; (iii) the presence of any book, document or object on the premises; (iv) the need to enter, inspect or seize the book, document or object; and (b) in all other cases, may be given by the director. (4) (5) (6) The owner or occupier of any premises that a commissioner is authorised to enter and inspect, and every person employed by that owner or occupier, must provide any facilities that a commissioner requires to enter those premises and to carry out the inspection or seizure. The commissioner must issue a receipt for any book, document or object seized in terms of subsection (4). The law relating to privilege, as it applies to a witness subpoenaed to give evidence or to produce any book, document or object before a court of law, applies equally to the questioning of any person or the production or seizure of any book, document or object in terms of this section. (7)(a) The Commission must pay the prescribed witness fee to each person who appears before a commissioner in response to a subpoena issued by the commissioner. (b ) Any person who requests the Commission to issue a subpoena must pay the prescribed witness fee too each person who appears before a commissioner in response to the subpoena and who remains in attendance until excused by the commissioner. (c ) The Commission may on good cause shown waive the requirement in paragraph (b) and pay to the witness the prescribed witness fee. (8) A person commits contempt of the Commission- (a) (b) (c) (d) (e) (g) if, after having been subpoenaed to appear before the commissioner, the person without good cause does not attend at the time and place stated in the subpoena; if, after having appeared in response to a subpoena, that person fails to remain in attendance until excused by the commissioner; by refusing to take the oath or to make an affirmation as a witness when a commissioner so requires; by refusing to answer any question fully and to the best of that person's knowledge and belief subject to subsection (6); if the person, without good cause, fails to produce any book, document or object specified in a subpoena to a commissioner; if the person willfully hinders a commissioner in performing any function conferred by or in terms of this Act; if the person insults, disparages or belittles a commissioner, or prejudices or improperly influences the proceedings or improperly anticipates the commissioner's award; (h) (i) by wilfully interrupting the conciliation or arbitration proceedings or misbehaving in any other manner during those proceedings; by doing anything ease in relation to the Commission which, if done in relation to a court of law, would have been contempt of court. (9)(a ) The commissioner may make a finding that a party is in contempt of the Commission for any of the reasons set out in subsection (8). (b) The commissioner may refer the finding, together with the record of proceedings, to the Labour Court for its decision in terms of subsection (11). (10) Before making a decision in terms of subsection (11), the Labour Court - (a) must subpoena any person found in contempt to appear before it on a date determined by the Court; (b) may subpoena any other person to appear before it on a date (c) determined by the Court; and may make any order that it deems appropriate, including an order in the case of a person who is not a legal practitioner that the person’s right to represent a party in the Commission and the Labour Court be suspended. (11) The Labour Court may confirm, vary or set aside the finding of a commissioner. (12) If any person fails to appear before the Labour Court pursuant to a subpoena issued in terms of subsection (10(a), the Court may make any order that it deems appropriate in the absence of that person. - 142A Verify source ↗
Making settlement agreement arbitration award
AI-assisted research summary: The Commission may turn a settlement agreement into an arbitration award, if the parties agree or a party applies.
142A. Making settlement agreement arbitration award (1) (2) The Commission may, by agreement between the parties or on application by a party, make any settlement agreement in respect of any dispute that has been referred to the Commission, an arbitration award. For the purposes of subsection (1), a settlement agreement is a written agreement in settlement of a dispute that a party has the right to refer to arbitration or to the Labour Court, excluding a dispute that a party is entitled to refer to arbitration in terms of either section 74(4) or 75(7). - 143 Verify source ↗
Effect of arbitration awards
AI-assisted research summary: Arbitration awards issued by a commissioner are generally final and binding, and can be enforced like Labour Court orders, except advisory awards.
143. Effect of arbitration awards (1) An arbitration award issued by a commissioner is final and binding and it may be enforced as if it were an order of the Labour Court, unless it is an advisory arbitration award. (2) If an arbitration award orders a party to pay a sum of money, the amount earns interest from the date of the award at the same rate as the rate prescribed from time to time in respect of a judgment debt in terms of section 2 of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), unless the award provides otherwise. An arbitration award may only be enforced in terms of subsection (1) if the director has certified that the arbitration award is an award contemplated in subsection (1). If a party fails to comply with an arbitration award that order the performance of an act, other than the payment of an amount of money, any other party to the award may enforce it by way of contempt proceedings instituted in the Labour Court. (3) (4) - 144 Verify source ↗
Variation and rescission of arbitration awards and rulings. Any
AI-assisted research summary: A commissioner may vary or rescind an arbitration award or ruling in certain cases.
144. Variation and rescission of arbitration awards and rulings. Any commissioner who has issued an arbitration award or ruling or any other commissioner appointed by the director for that purpose, may on that commissioner's own accord or, on the application of any affected party, vary or rescind an arbitration award or ruling - (a) (b) (c) erroneously sought or erroneously made in the absence of any party affected by that award; in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; or granted as a result of a mistake common to the parties to the proceedings. - 145 Verify source ↗
Review of arbitration awards
AI-assisted research summary: A party who says there was a defect in Commission arbitration may ask the Labour Court to set aside the award, usually within six weeks; if corruption is alleged, the six weeks runs from when the corruption is discovered.
145. Review of arbitration awards (1) Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award- (a) within six weeks of the date that the award was served on the applicant, unless the alleged defect involves corruption; or (b) if the alleged defect involves corruption, within six weeks of the date that the applicant discovers the corruption. (1A) The Labour Court may on good cause shown condone the late filing of an application in terms of subsection (1) (2) A defect referred to in subsection (1), means- (a) that the commissioner- (i) committed misconduct in relation to the duties of the commissioner as an arbitrator; (ii) committed a gross irregularity in the conduct of the arbitration proceedings; or (iii) exceeded the commissioner's powers; or (b) that an award has been improperly obtained. (3) The Labour Court may stay the enforcement of the award pending its decision. (4) If the award is set aside, the Labour Court may- (a) determine the dispute in the manner it considers appropriate; or (b) make any order it considers appropriate about the procedures to be followed to determine the dispute. - 146 Verify source ↗
Exclusion of Arbitration Act. The Arbitration Act, 1965 (Act No. 42 of 1965),
AI-assisted research summary: The Arbitration Act, 1965 does not apply to arbitrations under the Commission.
146. Exclusion of Arbitration Act. The Arbitration Act, 1965 (Act No. 42 of 1965), does not apply to any arbitration under the auspices of the Commission. - 147 Verify source ↗
Performance of dispute resolution functions by Commission in exceptional
AI-assisted research summary: The Commission may redirect certain disputes to a collective agreement, a council, an accredited agency, or private dispute resolution, and may appoint a commissioner; in one case it must resolve the dispute itself.
147. Performance of dispute resolution functions by Commission in exceptional circumstances (1)(a) If at any stage after a dispute has been referred to the Commission, it becomes apparent that the dispute is about the interpretation or application of a collective agreement, the Commission may- (i) (ii) refer the dispute for resolution in terms of the procedures provided for in that collective agreement; or appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act. (b) The Commission may charge the parties to a collective agreement a fee for performing the dispute resolution functions if- (i) (ii) their collective agreement does not provide a procedure as required by section 24(1); 39 or the procedure provided in the collective agreement is not operative. (c) The Commission may charge a party to a collective agreement a fee if that party has frustrated the resolution of the dispute. (2)(a) If at any stage after a dispute has been referred to the Commission, it becomes apparent that the parties to the dispute are parties to a council, the Commission may- (i) refer the dispute to the council for resolution; or 39 Section 24(l) states that every collective agreement must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement. (ii) appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act. (b) The Commission may charge the parties to a council a fee for performing the dispute resolution functions if the council's dispute resolution procedures are not operative. (3)(a) If at any stage after a dispute has been referred to the Commission, it becomes apparent that the parties to the dispute fall within the registered scope of a council and that one or more parties to the dispute are not parties to the council, the Commission may- (i) refer the dispute to the council for resolution; or (ii) appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act. (b) The Commission may charge the parties to a council a fee for performing the dispute resolution functions if the council's dispute resolution procedures are not operative. (4)(a) If a dispute has been referred to the Commission and not all the parties to the dispute fall within the registered scope of a council or fall within the registered scope of two or more councils, the Commission must resolve the dispute in terms of this Act. (b) In the circumstances contemplated in paragraph (a), the Commission has exclusive Jurisdiction to resolve that dispute. (5)(a) If at any stage after a dispute has been referred to the Commission, it becomes apparent that the dispute ought to have been referred to an accredited agency, the Commission may- (i) refer the dispute to the accredited agency for resolution; or (ii) appoint a commissioner to resolve the dispute in terms of this Act. (b) The Commission may- (i) charge the accredited agency a fee for performing the dispute resolution functions if the accredited agency's dispute resolution procedures are not operative; and (ii) review the continued accreditation of that agency. (6) If at any stage after a dispute has been referred to the Commission, it becomes apparent that the dispute ought to have been resolved through private dispute resolution in terms of a private agreement between the parties to the dispute, the Commission may- (a) refer the dispute to the appropriate person or body for resolution through private dispute resolution procedures; or (b) appoint a commissioner to resolve the dispute in terms of this Act. (7) Where the Commission refers the dispute in terms of this section to a person or body other than a commissioner the date of the Commission's initial receipt of the dispute will be deemed to be the date on which the Commission referred the dispute elsewhere. (8) (9) The Commission may perform any of the dispute resolution functions of a council or an accredited agency appointed by the council if the council or accredited agency fails to perform its dispute resolution functions in circumstances where, in law, there is an obligation to perform them. For the purposes of subsections (2) and (3), a party to a council includes the members of a registered trade union or registered employers’ organisation that is a party to the council. - 148 Verify source ↗
Commission may provide advice
AI-assisted research summary: If asked, the Commission may give advice to a party to a dispute under this Act about the procedure for resolving the dispute.
148. Commission may provide advice (1) (2) If asked, the Commission may advise any party to a dispute in terms of this Act about the procedure to be followed for the resolution of that dispute. In response to a request for advice, the Commission may provide the advice that it considers appropriate. - 149 Verify source ↗
Commission may provide assistance
AI-assisted research summary: If asked, the Commission may help an employee or employer involved in a dispute.
149. Commission may provide assistance (1) If asked, the Commission may assist an employee or employer who is a party to a dispute - (a) together with the Legal Aid Board40 to arrange for advice or assistance by a legal practitioner; (b) together with the Legal Aid Board, to arrange for a legal practitioner- (i) (ii) to attempt to avoid or settle any proceedings being instituted against an employee or employer in terms of this Act; to attempt to settle any proceedings instituted against an employee or employer in terms of this Act; (iii) to institute on behalf of the employee or employer any proceedings in terms of this Act; - 40 Verify source ↗
The Legal Aid Board is established in terms of section 2 of the Legal Aid Act, 1969 (Act No. 22 of 1969).
AI-assisted research summary: The Commission may provide assistance after considering specified factors, and it must tell the applicant in writing whether it will assist within 30 days of receiving the request.
40. The Legal Aid Board is established in terms of section 2 of the Legal Aid Act, 1969 (Act No. 22 of 1969). (iv) to defend or oppose on behalf of the employee or employer any proceedings instituted against the employee or employer in terms of this Act; or (c) by providing any other form of assistance that the Commission considers appropriate. (2) The Commission may provide the assistance referred to in subsection (1) after having considered- (a) the nature of the questions of law raised by the dispute; (b) the complexity of the dispute; (c) whether there are conflicting arbitration awards that are relevant to the dispute; and (d) the public interest. (3) As soon as practicable after having received a request in terms of subsection (1), but not later than 30 days of the date the Commission received the request, the Commission must advise the applicant in writing whether or not it will assist the applicant and, if so, the form that the assistance will take. - 150 Verify source ↗
Commission may offer to resolve dispute through conciliation
AI-assisted research summary: The Commission may offer conciliation in a dispute and may appoint a commissioner if the stated conditions are met.
150. Commission may offer to resolve dispute through conciliation (1) (2) If the Commission is aware of a dispute that has not been referred to it, and if resolution of the dispute would be in the public interest, the Commission may offer to appoint a commissioner to attempt to resolve the dispute through conciliation. The Commission may offer to appoint a commissioner to assist the parties to resolve through further conciliation a dispute that has been referred to the Commission or a council and in respect of which - (a) a certificate has been issued in terms of section 135(5)(a) stating that the dispute remains unresolved; or (b) the period contemplated in section 135(2) has elapsed; (3) The Commission may appoint a commissioner in terms of subsection (1) or (2) if all the parties to the dispute consent to that appointment. PART D - LABOUR COURT
Part
PART D - LABOUR COURT
- 151 Verify source ↗
Establishment and status of Labour Court
AI-assisted research summary: The Labour Court is established as a court of law and equity, with superior-court authority and standing for matters within its jurisdiction, and it is a court of record.
151. Establishment and status of Labour Court (1) The Labour Court is hereby established as a court of law and equity. (2) The Labour Court is a superior court that has authority, inherent powers and standing, in relation to matters under its jurisdiction, equal to that which a court of a provincial division of the High Court has in relation to the matters under its jurisdiction. (3) The Labour Court is a court of record. - 152 Verify source ↗
Composition of Labour Court
AI-assisted research summary: The Labour Court is made up of a Judge President, a Deputy Judge President, and additional judges as the President considers necessary, after advice from NEDLAC and consultation with the Minister of Justice and the Labour Court’s Judge President.
152. Composition of Labour Court (1) The Labour Court consists of- (a) a Judge President; (b) a Deputy Judge President; and (c) as many judges as the President may consider necessary, acting on the advice of NEDLAC and in consultation with the Minister of Justice and the Judge President of the Labour Court. (2) The Labour Court is constituted before a single judge. (3) The Labour Court may sit in as many separate courts as the available judges may allow. - 153 Verify source ↗
Appointment of judges of Labour Court
AI-assisted research summary: This section sets out who appoints the Labour Court’s Judge President, Deputy Judge President, and other judges, and what qualifications and consultation steps apply.
153. Appointment of judges of Labour Court (1)(a) The President, acting on the advice of NEDLAC and the Judicial Service Commission provided for in the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) (in this Part and Part E called the Judicial Service Commission) and after consultation with the Minister of Justice, must appoint a Judge President of the Labour Court. (b) The President, acting on the advice of NEDLAC and the Judicial Service Commission and after consultation with the Minister of Justice and the Judge President of the Labour Court, must appoint the Deputy Judge President of the Labour Court. (2) The Judge President and the Deputy Judge President of the Labour Court- (a) must be judges of the High Court; and (b) must have knowledge, experience and expertise in labour law. (3) (4) The Deputy Judge President must act as Judge President of the Labour Court whenever the Judge President is unable to do so for any reason. The President, acting on the advice of NEDLAC and the Judicial Service Commission and after consultation with the Minister of Justice and the Judge President of the Labour Court, may appoint one or more persons who meet the requirements of subsection (6) as judges of the Labour Court. (5) The Minister of Justice, after consultation with the Judge President of the Labour Court may appoint one or more persons who meet the requirements of subsection (6) to serve as acting judges of the Labour Court for such a period as the Minister of Justice in each case may determine. (6) A judge of the Labour Court must- (a) (i) be a judge of the High Court; or (ii) be a person who is a legal practitioner; and (b) have knowledge, experience and expertise in labour law. - 154 Verify source ↗
Provision
AI-assisted research summary: This section sets rules for Labour Court judges’ appointment, resignation, removal, remuneration, and continued service after appointment expiry.
154. Tenure, remuneration and terms and conditions of appointment of Labour Court judges (1) A judge of the Labour Court must be appointed for a period determined by the President at the time of appointment. (2) A judge of the Labour Court may resign by giving written in the office to the President. (3)(a) Any judge of the Labour Court who is also a judge of the High Court holds office until- (i) the judge's period of office in the Labour Court ends; (ii) the judge's resignation takes effect; (iii) the judge is removed from office; (iv) the judge ceases to be a judge of the High Court; or (v) the judge dies. (b) Any other judge of the Labour Court holds office until- (i) the judge's period of office ends; (ii) the judge's resignation takes effect; (iii) the judge is removed from office; or (iv) the judge dies. (4) Neither the tenure of office nor the remuneration and terms and conditions of appointment applicable to a judge of the High Court in terms of the Judges' Remuneration and Conditions of Employment Act, 1989 (Act No. 88 of 1989), is affected by that judge's appointment and concurrent tenure of office as a judge of the Labour Court. (5)(a) The remuneration payable to a judge of the Labour Court who is a person referred to in section 153(6)(a)(ii) must be the same as that payable to a judge of the High Court. (b) The terms and conditions of appointment of a judge of the Labour Court refer-red to in paragraph (a) must be similar to those of a judge of the High Court. (6) A person who has been appointed a judge of the Labour Court and who is not a judge of the High Court may perform the functions of a judge of the Labour Court only after having taken an oath or made a solemn affirmation in the prescribed form before the Judge President of the Labour Court. (7)(a) A judge of the Labour Court who is also a judge of the High Court- (i) may be removed from the office of judge of the Labour Court only if that person has first been removed from the office of a judge of the High Court; and (ii) upon having been removed as judge of the High Court must be removed from office as a judge of the Labour Court. (b) The President, acting on the advice of NEDLAC, and in consultation with the Minister of Justice and the Judge President of the Labour Court, may remove any other judge of the Labour Court from office for misbehaviour or incapacity. (8) Despite the expiry of the period of a person’s appointment as a judge of the Labour Court, that person may continue to perform the functions of a judge of that Court, and will be regarded as such in all respects, only – (a) for the purposes of disposing of any proceedings in which that person has taken part as a judge of that Court and which are still pending upon the expiry of that person’s appointment or which, having been so disposed of before or after the expiry of that person’s appointment, have been re- opened; and (b) for as long as that person will be necessarily engaged in connection with the disposal of the proceedings so pending or re-opened. (9) The provisions of subsections (2) to (8) apply, read with the changes required by the context, to acting judges appointed in terms of section 153(5). - 155 Verify source ↗
Officers of Labour Court
AI-assisted research summary: The Minister of Justice must appoint Labour Court officers, and those officers must carry out administrative and support functions.
155. Officers of Labour Court (1) The Minister of Justice, subject to the laws governing the public service, must appoint the following officers of the Labour Court- (a) a person who has experience and expertise in labour law and administration to be the registrar of the Labour Court; and (b) one or more deputy registrars and so many other officers of the Labour Court as the administration of justice requires. (2)(a) The officers of the Labour Court, under the supervision and control of the registrar of that Court must perform the administrative functions of the Labour Court. (b) A deputy registrar of the Labour Court may perform any of the functions of the registrar of that Court that have been delegated generally or specifically to the deputy registrar. (3) The deputy registrar of the Labour Court or, if there is more than one, the most senior will act as registrar of the Labour Court whenever- (a) the registrar is absent from the Republic or from duty, or for any reason is temporarily unable to perform the functions of registrar; or (b) the office of registrar is vacant. (4) The officers of the Labour Court must provide secretarial and administrative assistance to the Rules Board for Labour Courts. - 156 Verify source ↗
Area of jurisdiction and seat of Labour Court
AI-assisted research summary: The Labour Court has jurisdiction in all provinces, the Minister of Justice must determine its seat after advice from NEDLAC, and its functions may be performed anywhere in the Republic.
156. Area of jurisdiction and seat of Labour Court (1) The Labour Court has jurisdiction 'in all the provinces of the Republic. (2) (3) The Minister of Justice, acting on the advice of NEDLAC, must determine the seat of the Labour Court. The functions of the Labour Court may be performed at any place in the Republic. - 157 Verify source ↗
Jurisdiction of Labour Court
AI-assisted research summary: The Labour Court has exclusive and concurrent jurisdiction in specified labour-related matters, may refuse to hear some disputes without conciliation, and cannot hear unresolved disputes that must go to arbitration (subject to section 158(2)).
157. Jurisdiction of Labour Court (1) Subject to the Constitution and section 173, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court. (2) The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising from - (a) employment and from labour relations; (b) any dispute over the constitutionally of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as an employer; and (c) the application of any law for the administration of which the Minister is responsible. (3) Any reference to the court in the Arbitration Act, 1965 (Act No. 42 of 1965), must be interpreted as referring to the Labour Court when an arbitration is conducted under that Act in respect of any dispute that may be referred to arbitration in terms of this Act. (4)(a) The Labour Court may refuse to determine any dispute, other than an appeal or review before the Court, if the Court is not satisfied that an attempt has been made to resolve the dispute through conciliation. (b) A certificate issued by a commissioner or a council stating that a dispute remains unresolved is sufficient proof that an attempt has been made to resolve that dispute through conciliation. (5) Except as provided in section 158(2), the Labour Court does not have jurisdiction to adjudicate an unresolved dispute if this Act requires the dispute to be resolved through arbitration.
Part
Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising
- 158 Verify source ↗
Powers of Labour Court
AI-assisted research summary: The Labour Court may make orders and take procedural steps to resolve labour disputes, review decisions, refer matters to arbitration, and reserve legal questions for the Labour Appeal Court.
158. Powers of Labour Court (1) The Labour Court may- (a) make any appropriate order, including (i) the grant of urgent interim relief; (ii) an interdict; (iii) an order directing the performance of any particular act which order, when implemented, will remedy a wrong and give effect to the primary objects of this Act; (iv) a declaratory order; (v) an award of compensation in any circumstances contemplated in this Act; (vi) an award of damages in any circumstances contemplated in this Act; and (vii) an order for costs; (b) order compliance with any provision of this Act; (c) make any arbitration award or any settlement agreement an order of the Court; (d) request the Commission to conduct an investigation to assist the Court and to submit a report to the Court; (e) determine a dispute between a registered trade union or registered employers' organisation, and any one of the members or applicants for membership thereof, about any alleged non-compliance with - (i) (ii) the constitution of that trade union or employers' organisation (as the case may be); or section 26(5)(b); (f) subject to the provisions of this Act, condone the late filing of any document with, or the late referral of any dispute to, the Court; (g) subject to section 145, review the performance or purported performance of any function provided for in this Act on any grounds that are permissible in law; (h) review any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law; (i) hear and determine any appeal in terms of section 35 of the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993); and (j) deal with all matters necessary or incidental to performing its functions in terms of this Act or any other law. (1A) For the purposes of subsection (1)(c), a settlement agreement is a written agreement in settlement of a dispute that a party has the right to refer to arbitration or to the Labour Court, excluding a dispute that a party is only entitled to refer to arbitration in terms of section 22(4), 74(4) or 75(7). (2) If at any stage after a dispute has been referred to the Labour Court, it becomes apparent that the dispute ought to have been referred to arbitration, the Court may- (a) stay the proceedings and refer the dispute to arbitration; or (b) with the consent of the parties and if it is expedient to do so, continue with the proceedings with the Court sitting as an arbitrator, in which case the Court may only make any order that a commissioner or arbitrator would have been entitled to make. (3) The reference to "arbitration" in subsection (2) must be interpreted to include arbitration- (a) under the auspices of the Commission; (b) under the auspices of an accredited council; (c) under the auspices of an accredited agency; (d) in accordance with a private dispute resolution procedure; or (e) if the dispute is about the interpretation or application of a collective agreement. (4)(a) The Labour Court, on its own accord or, at the request of any party to the proceedings before it may reserve for the decision of the Labour Appeal Court any question of law that arises in those proceedings. (b) A question may be reserved only if it is decisive for the proper adjudication of the dispute. (c) the decision of the Labour Appeal Court on any question of law reserved in terms of paragraph (a), the Labour Court may make any interim order. - 159 Verify source ↗
Rules Board for Labour Courts and rules for Labour Court
AI-assisted research summary: This section establishes the Rules Board for Labour Courts, lets it make and change Labour Court rules, and requires publication of those rules in the Government Gazette.
159. Rules Board for Labour Courts and rules for Labour Court (1) The Rules Board for Labour Courts is hereby established. (2) The Board consists of- (a) the Judge President of the Labour Court, who is the chairperson; (b) the Deputy Judge President of the Labour Court; and (c) the following persons, to be appointed for a period of three years by the Minister of Justice, acting on the advice of NEDLAC- (i) (ii) a practising advocate with knowledge, experience and expertise in labour law; a practising attorney with knowledge, experience and expertise in labour law; (iii) a person who represents the interests of employees; (iv) a person who represents the interests of employers; and (v) a person who represents the interests of the State. (3) The Board may make rules to regulate the conduct of proceedings in the Labour Court, including, but not limited to- (a) the process by which proceedings are brought before the Court, and the form and content of that process; (b) the period and process for noting appeals; (c) the taxation of bills of costs; (d) (e) after consulting with the Minister of Finance, the fees payable and the costs and expenses allowable in respect of the service or execution of any process of the Labour Court, and the tariff of costs and expenses that may be allowed in respect of that service or execution; and all other matters incidental to performing the functions of the Court, including any matters not expressly mentioned in this subsection that are similar to matters about which the Rules Board for Courts of Law may make rules in terms of section 6 of the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985). (4) The Board may alter or repeal any rule that it makes. (5) Five members of the Board are a quorum at any meeting of the Board. (6) The Board must publish any rules that it makes, alters or repeals in the Government Gazette. (7)(a) A member of the Board who is a judge of the High Court may be paid an allowance determined in terms of subsection (9) in respect of the performance of the functions of a member of the Board. (b ) Notwithstanding anything to the contrary in any other law, the payment, in terms of paragraph (a), of an allowance to a member of the Board who is a judge of the High Court will be in addition to any salary or allowances, including allowances for reimbursement of travelling and subsistence expenses, that is paid to that person in the capacity of a judge of that Court. (8) A member of the Board who is not a judge of the High Court nor subject to the Public Service Act, 1994, will be entitled to the remuneration, allowances (including allowances for reimbursement of travelling and subsistence expenses), benefits and privileges determined in terms of subsection (9). (9) The remuneration, allowances, benefits and privileges of the members of the Board – (a) are determined by the Minister of Justice with the concurrence of the Minister of Finance; (b) may vary according to the rank, functions to be performed and whether office is held in a full-time or part-time capacity; and (c) may be varied by the Minister of Justice under any law in respect of any person or category of persons. (10)(a) Pending publication in the Government Gazette of rules made by the Board, matters before the Court will be dealt with in accordance with such general directions as the Judge President of the Labour Court, or any other judge or judges of that Court designated by the Judge President for that purpose, may consider appropriate and issue in writing; (b) Those directions will cease to be of force on the date of the publication of the Board’s rules in the Government Gazette, except in relation to proceedings already instituted before that date. With regard to those proceedings, those directions will continue to apply unless the Judge President of the Labour Court has withdrawn them in writing. - 160 Verify source ↗
Proceedings of Labour Court to be carried on in open court
AI-assisted research summary: Labour Court proceedings must be open to the public, but the court may exclude the public or specified persons in cases where a provincial High Court division could do so.
160. Proceedings of Labour Court to be carried on in open court (1) The proceedings in the Labour Court must be carried on in open court. (2) Despite subsection (1), the Labour Court may exclude the members of the general public, or specific persons, or categories of persons from the proceedings in any case where a court of a provincial division of the High Court could have done so. - 161 Verify source ↗
Representation before Labour Court
AI-assisted research summary: A party in Labour Court proceedings may appear in person or be represented only by specific listed people.
161. Representation before Labour Court In any proceedings before the Labour Court, a party to the proceedings may appear in person or be represented only by - (a) (b) (c) (d) (e) a legal practitioner; a director or employee of the party; any member, office-bearer or official of that party's registered trade union or registered employers' organisation; a designated agent or official of a council; or an official of the Department of Labour. - 162 Verify source ↗
Costs
AI-assisted research summary: The Labour Court may order a party, or that party’s representative, to pay costs, guided by law and fairness.
162. Costs (1) The Labour Court may make an order for the payment of costs, according to the requirements of the law and fairness. (2) When deciding whether or not to order the payment of costs, the Labour Court may take into account- (a) whether the matter referred to the Court ought to have been referred to arbitration in terms of this Act and, if so, the extra costs incurred in referring the matter to the Court; and (b) the conduct of the parties- (i) in proceeding with or defending the matter before the Court; and (ii) during the proceedings before the Court. (3) The Labour Court may order costs against a party to the dispute or against any person who represented that party in those proceedings before the Court. - 163 Verify source ↗
Service and enforcement of orders of Labour Court. Any decision, judgment
AI-assisted research summary: Labour Court decisions, judgments, and orders may be served and enforced as if they were High Court decisions, judgments, or orders.
163. Service and enforcement of orders of Labour Court. Any decision, judgment or order of the Labour Court may be served and executed as if it were a decision, judgment or order of the High Court. - 164 Verify source ↗
Seal of Labour Court
AI-assisted research summary: The Labour Court has an official seal, and the registrar must keep custody of it.
164. Seal of Labour Court (1) The Labour Court for use as occasion may require will have an official seal of a design prescribed by the President by proclamation in the Government Gazette. (2) The registrar of the Labour Court must keep custody of the official seal of the Labour Court. - 165 Verify source ↗
Variation and rescission of orders of Labour Court. The Labour Court,
AI-assisted research summary: The Labour Court may vary or rescind its own decision, judgment, or order, or do so on application by an affected party, in limited cases of error, ambiguity, omission, or common mistake.
165. Variation and rescission of orders of Labour Court. The Labour Court, acting of its own accord or on the application of any affected party may vary or rescind a decision, judgment or order - (a) (b) (c) erroneously sought or erroneously granted in the absence of any party affected by that judgment or order; in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; or granted as a result of a mistake common to the parties to the proceedings. - 166 Verify source ↗
Appeals against judgment or order of Labour Court
AI-assisted research summary: A party to a Labour Court case may ask that court for leave to appeal to the Labour Appeal Court against a final judgment or order.
166. Appeals against judgment or order of Labour Court (1) Any party to any proceedings before the Labour Court may apply to the Labour Court for leave to appeal to the Labour Appeal Court against any final judgment or final order of the Labour Court. (2) (3) (4) If the application for leave to appeal is refused, the applicant may petition the Labour Appeal Court for leave to appeal. Leave to appeal may be granted subject to any conditions that the Court concerned may determine. Subject to the Constitution and despite any other law, an appeal against any final judgment or final order of the Labour Court in any matter in respect of which the Labour Court has exclusive jurisdiction may be brought only to the Labour Appeal Court. Part E - Labour Appeal Court
Part
Part E - Labour Appeal Court
- 167 Verify source ↗
Establishment and status of Labour Appeal Court
AI-assisted research summary: This section establishes the Labour Appeal Court and states its status and authority.
167. Establishment and status of Labour Appeal Court (1) The Labour Appeal Court is hereby established as a court of law and equity. (2) (3) The Labour Appeal Court is the final court of appeal in respect of all judgments and orders made by the Labour Court in respect of the matters within its exclusive jurisdiction. The Labour Appeal Court is a superior court that has authority, inherent powers and standing, in relation to matters under its equal to that which the Supreme Court of Appeal has in relation to matters under its jurisdiction. (4) The Labour Appeal Court is a court of record. - 168 Verify source ↗
Composition of Labour Appeal Court
AI-assisted research summary: The Labour Appeal Court is made up of the Labour Court Judge President, the Deputy Judge President, and other High Court judges as needed; the Judge President designates three judges to sit, and a judge may not hear an appeal from a case they previously heard.
168. Composition of Labour Appeal Court (1) The Labour Appeal Court consists of- (a) (b) (c) the Judge President of the Labour Court, who by virtue of that office is Judge President of the Labour Appeal Court; the Deputy Judge President, who by virtue of that office is Deputy Judge President of the Labour Appeal Court; and such number of other judges who are judges of the High Court, as may be required for the effective functioning of the Labour Appeal Court. (2) The Labour Appeal Court is constituted before any three judges whom the Judge President designates from the panel of judges contemplated in subsection (1). (3) No judge of the Labour Appeal Court may sit in the hearing of an appeal against a judgment or an order given in a case that was heard before that judge. - 169 Verify source ↗
Appointment of judges of Labour Appeal Court
AI-assisted research summary: The President must appoint the three Labour Appeal Court judges named in the referenced section, and the Minister of Justice may appoint acting High Court judges for that court.
169. Appointment of judges of Labour Appeal Court (1) (2) The President, acting on the advice of NEDLAC-AC and the Judicial Service Commission after consultation with the Minister of Justice and the Judge President of the Labour Appeal Court, must appoint the three judges of the Labour Appeal Court referred to in section 168(l)(c). The Minister of Justice, after consultation with the Judge President of the Labour Appeal Court, may appoint one or more judges of the High Court to serve as acting judges of the Labour Appeal Court. - 170 Verify source ↗
Provision
AI-assisted research summary: This section sets how Labour Appeal Court judges are appointed, how long they serve, when they may resign, and when they may continue acting after their appointment ends.
170. Tenure, remuneration and terms and conditions of appointment of Labour Appeal Court judges (1) A judge of the Labour Appeal Court must be appointed for a fixed term determined by the President at the time of appointment. (2) A judge of the Labour Appeal Court may resign by giving written notice to the President. (3)(a) A judge of the Labour Appeal Court holds office until- (i) the judge's term of office in the Labour Appeal Court ends; (ii) the judge's resignation takes effect; (iii) the judge is removed from office; (iv) the judge ceases to be a judge of the High Court; or (v) the judge dies. (b) The Judge President and the Deputy Judge President of the Labour Appeal Court hold their offices for as long as they hold their respective offices of Judge President and Deputy Judge President of the Labour Court. (4) Neither the tenure of office nor the remuneration and terms and conditions of appointment applicable to a judge of the High Court in terms of the Judges' Remuneration and Conditions of Employment Act, 1989 (Act No. 88 of 1989), is affected by that judge's appointment and concurrent tenure of office as a judge of the Labour Appeal Court. (5) A judge of the Labour Appeal Court- (a) may be removed from the office of judge of the Labour Appeal Court only if that person has first been removed from the office of a judge of the High Court; and (a) upon having been removed as judge of the High Court must be removed from office as a judge of the Labour Appeal Court. (6) Despite the expiry period of a person’s appointment as a judge of the Labour Appeal Court, that person may continue to perform the functions of a judge of that Court, and will be regarded as such in all respects, only – (a) for the purposes of disposing of any proceedings in which that person has taken part as a judge of that Court and which are still pending upon the expiry of that person’s appointment or which, having been so disposed of before or after the expiry of that person’s appointment, have been re-opened; and (b) for as long as that person will be necessarily engaged in connection with the disposal of the proceedings so pending or re-opened (7) The provisions of subsections (2) to (6) apply, read with the changes required by the context, to acting judges appointed in terms of section 169(2). - 171 Verify source ↗
Officers of Labour Appeal Court
AI-assisted research summary: This section assigns Labour Appeal Court registrar duties to the Labour Court registrar and related officers, and lets a deputy registrar step in when the registrar cannot act.
171. Officers of Labour Appeal Court (1) (2) (3)(a) The registrar of the Labour Court is also the registrar of the Labour Appeal Court. Each of the deputy registrars and other officers of the Labour Court also holds the corresponding office in relation to the Labour Appeal Court. The officers of the Labour Appeal Court, under the supervision and control of the registrar of that Court must perform the administrative functions of the Labour Appeal Court. (b) A deputy registrar of the Labour Appeal Court may perform any of the functions of the registrar of that Court that have been delegated generally or specifically to the deputy registrar. (4) The deputy registrar of the Labour Appeal Court or, if there is more than one, the most senior will act as registrar of the Labour Appeal Court whenever- (a) the registrar is absent from the Republic or from duty, or for any reason is temporarily unable to perform the functions of registrar; or (b) the office of registrar is vacant. - 172 Verify source ↗
Area of jurisdiction and seat of Labour Appeal Court
AI-assisted research summary: The Labour Appeal Court has jurisdiction in all provinces of the Republic, and its functions may be performed anywhere in the Republic.
172. Area of jurisdiction and seat of Labour Appeal Court (1) The Labour Appeal Court has jurisdiction in all the provinces of the Republic. (2) The seat of the Labour Court is also the seat of the Labour Appeal Court. (3) The functions of the Labour Appeal Court may be performed at any place in the Republic. - 173 Verify source ↗
Jurisdiction of Labour Appeal Court
AI-assisted research summary: The Labour Appeal Court has exclusive power to hear appeals from final Labour Court judgments and orders, and to decide questions of law reserved under section 158(4).
173. Jurisdiction of Labour Appeal Court (1) Subject to the Constitution and despite any other law, the Labour Appeal Court has exclusive jurisdiction- (a) to hear and determine all appeals against the final judgments and the final orders of the Labour Court; and (b) to decide any question of law reserved in terms of section 158 (4). (4) A decision to which any two judges of the Labour Appeal Court agree is the decision of the Court. - 174 Verify source ↗
Powers of Labour Appeal Court on hearing of appeals. The Labour Appeal
AI-assisted research summary: The Labour Appeal Court may receive further evidence, send the case back to the Labour Court, or confirm, change, or set aside the decision on appeal.
174. Powers of Labour Appeal Court on hearing of appeals. The Labour Appeal Court has the power- (a) on the hearing of an appeal to receive further evidence, either orally or by deposition before a person appointed by the Labour Appeal Court, or to remit the case to the Labour Court for further hearing, with such instructions as regards the taking of further evidence or otherwise as the Labour Appeal Court considers necessary; and (b) to confirm, amend or set aside the judgment or order that is the subject of the appeal and to give any judgment or make any order that the circumstances may require. - 175 Verify source ↗
Labour Appeal Court may sit as court of first instance
AI-assisted research summary: The Judge President may direct a Labour Court matter to be heard by the Labour Appeal Court as a court of first instance, and that court may make any order the Labour Court could have made.
175. Labour Appeal Court may sit as court of first instance Despite the provisions of this Part, the Judge President may direct that any matter before the Labour Court be heard by the Labour Appeal Court sitting as a court of first instance, in which case the Labour Appeal Court is entitled to make any order that the Labour Court would have been entitled to make. - 176 Verify source ↗
Rules for Labour Appeal Court
AI-assisted research summary: The Rules Board for Labour Courts may make rules for the Labour Appeal Court and must publish any rules it makes, changes, or repeals in the Government Gazette.
176. Rules for Labour Appeal Court (1) (2) (3) The Rules Board for Labour Courts established by section 159 may make rules to regulate the conduct of proceedings in the Labour Appeal Court. The Board has all the powers referred to in section 159 when it makes rules for the Labour Appeal Court. The Board must publish in the Government Gazette any rules that it makes, alters or repeals. - 177 Verify source ↗
Proceedings of Labour Appeal Court to be carried on in open court
AI-assisted research summary: Labour Appeal Court proceedings must be held in open court, but the court may exclude the public or specific persons in cases where a High Court could have done so.
177. Proceedings of Labour Appeal Court to be carried on in open court (1) The proceedings in the Labour Appeal Court must be carried on in open court. (2) Despite subsection (1), the Labour Appeal Court may exclude the members of the general public, or specific persons, or categories of persons from the proceedings in any case where a High Court could have done so. - 178 Verify source ↗
Representation before Labour Appeal Court
AI-assisted research summary: A person who may appear before the Labour Court under section 161 has the right to appear before the Labour Appeal Court.
178. Representation before Labour Appeal Court Any person who, in terms of section 161, may appear before the Labour Court has the right to appear before the Labour Appeal Court. - 179 Verify source ↗
Costs
AI-assisted research summary: The Labour Appeal Court may order costs, applying the requirements of law and fairness.
179. Costs (1) The Labour Appeal Court may make an order for the payment of costs, according to the requirements of the law and fairness. (2) When deciding whether or not to order the payment of costs, the Labour Appeal Court may take into account- (a) whether the matter referred to the Court should have been referred to arbitration in terms of this Act and, if so, the extra costs incurred in referring the matter to the Court; and (b) the conduct of the parties- (i) in proceeding with or defending the matter before the Court; and (ii) during the proceedings before the Court. (3) The Labour Appeal Court may order costs against a party to the dispute or against any person who represented that party in those proceedings before the Court. - 180 Verify source ↗
Service and enforcement of orders. Any decision, judgment or order of the
AI-assisted research summary: A decision, judgment, or order of the Labour Appeal Court may be served and enforced as if it were a High Court decision, judgment, or order.
180. Service and enforcement of orders. Any decision, judgment or order of the Labour Appeal Court may be served and executed as if it were a decision, judgment or order of the High Court. - 181 Verify source ↗
Seal of Labour Appeal Court
AI-assisted research summary: The Labour Appeal Court has an official seal, and the registrar must keep it in custody.
181. Seal of Labour Appeal Court (1) The Labour Appeal Court for use as the occasion may require will have an official seal of a design prescribed by the President by proclamation in the Government Gazette. (2) The registrar of the Labour Appeal Court must keep custody of the official seal of the Labour Appeal Court. - 182 Verify source ↗
Judgments of Labour Appeal Court binding on Labour Court
AI-assisted research summary: Judgments of the Labour Appeal Court bind the Labour Court.
182. Judgments of Labour Appeal Court binding on Labour Court A judgment of the Labour Appeal Court is binding on the Labour Court. - 183 Verify source ↗
Labour Appeal Court final court of appeal
AI-assisted research summary: No appeal lies against certain decisions, judgments, or orders of the Labour Appeal Court.
183. Labour Appeal Court final court of appeal Subject to the Constitution and despite any other law, no appeal lies against any decision, judgment or order given by the Labour Appeal Court in respect of- (a) any appeal in terms of section 173(l)(a); (b) its decision on any question of law in terms of section 173(l)(b); or (c) any judgment or order made in terms of section 175. PART F - GENERAL PROVISIONS APPLICABLE TO COURTS ESTABLISHED BY THIS ACT
Part
PART F - GENERAL PROVISIONS APPLICABLE TO COURTS
- 184 Verify source ↗
General provisions applicable to courts established by this Act
AI-assisted research summary: Certain sections of the Supreme Court Act, 1959 apply to the Labour Court and Labour Appeal Court, as adapted by context and only where consistent with this Act.
184. General provisions applicable to courts established by this Act Sections 5,4118,42 25,4330,4431,4539,464047 and 4248 of the Supreme Court Act, 1959 (Act No. 59 of 1959) apply, read with the changes required by the context, in relation to the Labour Court, or the Labour Appeal Court, or both, to the extent that they are not inconsistent with this Act. - 41 Verify source ↗
Scope and execution of process.
AI-assisted research summary: This section is titled “Scope and execution of process.”
41. Scope and execution of process. - 42 Verify source ↗
Certified copies of court records admissible as evidence.
AI-assisted research summary: Certified copies of court records are admissible as evidence.
42. Certified copies of court records admissible as evidence. - 43 Verify source ↗
No process to be issued against judge except with consent of court.
AI-assisted research summary: A process may not be issued against a judge unless the court consents.
43. No process to be issued against judge except with consent of court. - 44 Verify source ↗
Manner of securing attendance of witnesses or the production of any document.
AI-assisted research summary: This section concerns the manner of securing attendance of witnesses or the production of documents.
44. Manner of securing attendance of witnesses or the production of any document. - 45 Verify source ↗
Manner in which witness may be dealt with on refusal to give evidence or produce document.
AI-assisted research summary: Section heading only: witness may be dealt with on refusal to give evidence or produce a document.
45. Manner in which witness may be dealt with on refusal to give evidence or produce document. - 46 Verify source ↗
Property not liable to be seized in execution.
AI-assisted research summary: Property is not liable to be seized in execution.
46. Property not liable to be seized in execution. - 47 Verify source ↗
Offences relating to execution.
AI-assisted research summary: This section is about offences relating to execution.
47. Offences relating to execution. - 48 Verify source ↗
Witness fees.
AI-assisted research summary: Section title only: “Witness fees.”
48. Witness fees. CHAPTER VIII UNFAIR DISMISSAL AND UNFAIR LABOUR PRACTICE
Part
CHAPTER VIII
- 185 Verify source ↗
Right not to be unfairly dismissed or subjected to unfair labour practice
AI-assisted research summary: Every employee has the right not to be unfairly dismissed or subjected to unfair labour practice.
185. Right not to be unfairly dismissed or subjected to unfair labour practice Every employee has the right not to be (a) (b) unfairly dismissed; and subjected to unfair labour practice. - 186 Verify source ↗
Meaning of dismissal and unfair labour practice
AI-assisted research summary: This section defines “dismissal” and “unfair labour practice” for employment matters.
186. Meaning of dismissal and unfair labour practice (1) "Dismissal" means that- (a) an employer has terminated a contract of employment with or without notice; (b) an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it; (c) an employer refused to allow an employee to resume work after she- (i) took maternity leave in terms of any law, collective agreement or her contract of employment; or (ii) was absent from work for up to four weeks before the expected date, and up to eight weeks after the actual date, of the birth of her child; (d) (e ) (f) an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another; or an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee. an employee terminated a contract of employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer. (2) “Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving - (a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; (b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act. - 187 Verify source ↗
Automatically unfair dismissals
AI-assisted research summary: An employer must not dismiss an employee for the listed protected reasons, and some dismissals remain fair only in the stated exceptions.
187. Automatically unfair dismissals (1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 549 or, if the reason for the dismissal is- (a) (b) (c) (d) that the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action that complies with the provisions of Chapter IV;50 that the employee refused, or indicated an intention to refuse, to do any work normally done by an employee who at the time was taking part in a strike that complies with the provisions of Chapter IV or was locked out, unless that work is necessary to prevent an actual danger to life, personal safety or health; to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee; that the employee took action, or indicated an intention to take action, against the employer by- (i) exercising any right conferred by this Act; or (ii) participating in any proceedings in terms of this Act; 49. 50. Section 5 confers protections relating to the right to freedom of association and on members of workplace forums. Chapter IV deals with industrial action and conduct in support of industrial action. Section 67(4) and (5) provide- (4) An employer may not dismiss an employee for participating in a protected strike or for any conduct in contemplation or in furtherance of a protected strike. (5) Subsection (4) does not preclude an employer from fairly dismissing an employee in compliance with the provisions of Chapter VIII for a reason related to the employee's conduct during the strike, or for a reason based on the employer's operational requirements." Section 77(3) provides- "A person who takes part in protest action or in any conduct in contemplation or in furtherance of protest action that complies with subsection (1), enjoys the protections conferred by section 67." (e) the employee's pregnancy, intended pregnancy, or any reason related to her pregnancy; (f) that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility; (g) a transfer, or a reason related to a transfer, contemplated in section 197 or 197A; or (h) a contravention of the Protected Disclosures Act, 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act. (2) Despite subsection (1)(f)- (a) (b) a dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job; a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.
Part
Chapter IV deals with industrial action and conduct in support of industrial action. Section 67(4) and (5)
- 188 Verify source ↗
Other unfair dismissals
AI-assisted research summary: An employer must prove that a non-automatically unfair dismissal had a fair reason and a fair procedure.
188. Other unfair dismissals (1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove- (a) that the reason for dismissal is a fair reason- (i) related to the employee's conduct or capacity; or (ii) based on the employer's operational requirements; and (b) that the dismissal was effected in accordance with a fair procedure. (2) Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act.51 - 188A Verify source ↗
Agreement for pre-dismissal arbitration
AI-assisted research summary: This section lets an employer seek pre-dismissal arbitration with the employee’s consent, requires the request to use the prescribed form, and sets conditions for appointing and accrediting arbitrators.
188A. Agreement for pre-dismissal arbitration (1) An employer may, with the consent of the employee, request a council, an accredited agency or the Commission to conduct an arbitration into allegations about the conduct or capacity of that employee. (2) The request must be in the prescribed form. (3) The council, accredited agency or the Commission must appoint an arbitrator on receipt of - 51. See Schedule 8, the Code of Good Practice: Dismissal. (a) (b) payment by the employer of the prescribed fee; and the employee’s written consent to the inquiry. (4)(a) An employee may only consent to a pre-dismissal arbitration after the employee has been advised of the allegation referred to in subsection (1) and in respect of a specific arbitration. (b ) Despite subparagraph (a), an employee earning more than the amount determined by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act, may consent to the holding of a pre- dismissal arbitration in a contract of employment. (5) In any arbitration in terms of this section a party to the dispute may appear in person or be represented only by - (a) (b) (c) (d) a co-employee a director or employee, if the party is a juristic person any member, officer bearer or official of that party’s registered trade union or registered employers’ organisation; or a legal practitioner, o agreement between the parties. Section 138, read with the changes required by the context, applies to any arbitration in terms of this section. An arbitrator appointed in terms of this section has all the powers conferred on a commissioner by section 142(1)(a) to (e), (2) and (7) to (9), read with the changes required by the context, and any reference in that section to the director for the purpose of this section, must be read as a reference to - (a) (b) the secretary of the council, it the arbitration is held under the auspices of the council; the director of the accredited agency, if the arbitration is held under the auspices of an accredited agency. The provision of sections 143 to 146 apply to any award made by an arbitrator in terms of this section. An arbitrator conducting an arbitration in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, direct what action, if any, should be taken against the employee. (6) (7) (8) (9) (10)(a) A private agency may only conduct an arbitration in terms of this section if it is accredited for this purpose by the Commission. (b) A council may only conduct an arbitration in terms of this section in respect of which the employer or the employee is not a party to the council, if the council has been accredited for this purpose by the Commission. - 189 Verify source ↗
Dismissals based on operational requirements
AI-assisted research summary: An employer planning operational-requirements dismissals must consult the required parties, share relevant information, allow representations, respond to them, and use agreed or fair and objective selection criteria.
189. Dismissals based on operational requirements (1) When an employer contemplates dismissing one or more employees for reasons based on the employer's operational requirements, the employer must consult- (a) any person whom the employer is required to consult in terms of a collective agreement; (b ) if there is no collective agreement that requires consultation – (i) a workplace forum, if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum; and (ii) any registered trade union whose members are likely to be affected by the proposed dismissals; (c) (d) if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals; or if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose. (2) The employer and the other consulting parties must, in the consultation envisaged by subsections (1) and (3), engage in a meaningful joint consensus-seeking process and attempt to reach consensus on - (a) appropriate measures- (i) to avoid the dismissals; (ii) to minimise the number of dismissals; (iii) to change the timing of the dismissals; and (iv) to mitigate the adverse effects of the dismissals; (b) the method for selecting the employees to be dismissed; and (c) the severance pay for dismissed employees. (3) The employer must issue a written notice inviting the other consulting party to consult with it and disclose in writing all relevant information, including, but not limited to- (a) the reasons for the proposed dismissals; (b) (c) the alternatives that the employer considered before proposing the dismissals, and the reasons for rejecting each of those alternatives; the number of employees likely to be affected and the job categories in which they are employed; (d) the proposed method for selecting which employees to dismiss; (e) (g) (h) the time when, or the period during which, the dismissals are likely to take effect; the severance pay proposed; any assistance that the employer proposes to offer to the employees likely to be dismissed; the possibility of the future re-employment of the employees who are dismissed; (i) the number of employees employed by the employer; and (j) the number of employees that the employer has dismissed for reasons based on its operation requirements in the preceding 12 months. (4)(a) The provisions of section 16 apply, read with the changes required by the context, to the disclosure of information in terms of subsection (3). (b) In any dispute in which in which an arbitrator or the Labour Court is required to decide whether or not any information is relevant, the onus is on the employer to prove that any information that it has refused to disclose is not relevant for the purposes for which it is sought. (5) The employer must allow the other consulting party an opportunity during consultation to make representations about any matter dealt with in subsections (2), (3) and (4), as well as any other matter relating to the proposed dismissals.. (6)(a) The employer must consider and respond to the representations made by the other consulting party and, if the employer does not agree with them, the employer must state the reasons for disagreeing. (b) If any representation is made in writing, the employer must respond in writing. (7) The employer must select the employees to be dismissed according to selection criteria- (a) that have been agreed to by the consulting parties; or (b) if no criteria have been agreed, criteria that are fair and objective. - 189A Verify source ↗
Dismissals based on operational requirements by employers with more
AI-assisted research summary: This section sets special rules for large employers planning operational-requirements dismissals, including consultation, facilitation, strike timing, and court remedies.
189A. Dismissals based on operational requirements by employers with more than 50 employees. (1) This section applies to employers employing more than 50 employees if - (a) the employer contemplates dismissing by reason of the employer’s operational requirements, at least – (i) 10 employees, if the employer employs up to 200 employees; (ii) 20 employees, if the employer employs more than 200, but not more than 300 employees; (iii) (iv) (v) 30 employees, if the employer employs more than 300, but not more than 400, employees. 40 employees, if the employer employs more than 400, but not more than 500, employees; or 50 employees if the employer employs more than 500 employees; or (b) the number of employees that the employer contemplates dismissing, together with the number of employees that have been dismissed by reason of the employer’s operational requirements in the 12 months prior to the employer issuing a notice in terms of section 189(3), is equal to or exceeds the relevant number specified I paragraph (a). (2) In respect of any dismissal covered by this section - (a) (b) (c) an employer must give notice of termination of employment in accordance with the provisions of this section; despite section 65(1)(c), an employee may participate in a strike and an employer may lock out in accordance with the provisions of this section; the consulting parties may agree to vary the time periods for facilitation or consultation. (3) The Commission must appoint a facilitator in terms of any regulations made under subsection (6) to assist the parties engaged in consultations if - (a) (b) the employer has in its notice in terms of section 189(3) requested facilitation; or consulting parties representing the majority of employees whom the employer contemplates dismissing have requested facilitation and have notified the Commission within 15 days of the notice. (4) This section does not prevent an agreement to appoint a facilitator in circumstances not contemplated in subsection (3). (5) If a facilitator is appointed in terms of subsection (3) or (4) the facilitation must be conducted in terms of any regulations made by the Minister under subsection (6) for the conduct of such facilitations. (6) The Minister, after consulting NEDLAC and the Commission, may make regulations relating to - (a) (b) (c) (d) the time period and the variation of time periods, for facilitation; the powers and duties of facilitators; the circumstances in which the Commission may charge a fee for appointing a facilitator and the amount of the fee; and any other matter necessary for the conduct of facilitations. (7) If a facilitator is appointed in terms of subsection (3) or (4), and 60 days have elapsed from the date on which notice was given in terms of section 189(3) - (a) (b) the employer may give notice to terminate the contracts of employment in accordance with section 37(1) of the Basic Conditions of Employment Act; and a registered trade union or the employees who have received notice of termination may either – (i) give notice of a strike in terms of section 64(1)(b) or (d); or (ii) refer a dispute concerning whether there is a fair reason for the dismissal to the Labour Court in terms of section 191(11). (8) If a facilitator is not appointed - (a) a party may not refer a dispute to a council or the Commission unless a period of 30 days has lapsed from the date on which notice was given in terms of section 189(3); and (b) once the periods mentioned in section 64(1)(a) have elapsed – (i) the employer may give notice to terminate the contracts of employment in accordance with section 37(1) of the Basic Conditions of Employment Act; and (ii) a registered trade union or the employees who have received notice of termination may - (aa) (bb) give notice of a strike in terms of section 64(1)(b) or (d); or refer a dispute concerning whether there is a fair reason for the dismissal to the Labour Court in terms of section 191(11). (9) Notice of the commencement of a strike may be given if the employer dismisses or gives notice of dismissal before the expiry of the periods referred to in subsections (7)(a) or (8)(b)(i). (10)(a) A consulting party may not – (i) (ii) give notice of a strike in terms of this section in respect of a dismissal, if it has referred a dispute concerning whether there is a fair reason for that dismissal to the Labour Court; refer a dispute about whether there is a fair reason for a dismissal to the Labour Court, if it has given notice of a strike in terms of this section in respect of that dismissal. (b) If a trade union gives notice of a strike in terms of this section - (i) no member of that trade union and no employee, to whom a collective agreement concluded by that trade union dealing with consultation or facilitation in respect of dismissals by reason of the employers’ operational requirements has been extended in terms of section 23(1)(d), may refer a dispute concerning whether there is a fair reason for dismissal to the Labour Court; (ii) any referral to the Labour Court contemplated by subparagraph (i) that has been made is deemed to be withdrawn. (11) The following provisions of Chapter IV apply to any strike or lock-out in terms of this section: (a) Section 64(1) and (3)(a) to (d), except that - (i) (ii) section 64(1)(a) does not apply if a facilitator is appointed in terms of this section; an employer may only lock out in respect of a dispute in which a strike notice has been issued; (b) subsection (2)(a), section 65(1) and (3); (c) section 66, except that written notice of any proposed secondary strike must be given at least 14 days prior to the commencement of the strike; (d) sections 67, 68, 69 and 76. (12)(a) During the 14-day period referred to in subsection (11)(c), the director must, if requested by an employer who has received notice of any intended secondary strike, appoint a commissioner to attempt to resolve any dispute between the employer and the party who gave the notice, through conciliation. (b) A request to appoint a commissioner or the appointment of a commissioner in terms of paragraph (a) does not affect the right of employees to strike on the expiry of the 14-day period. (13) If an employer does not comply with a fair procedure, a consulting party may approach the Labour Court by way of an application for an order - (a) (b) (c) compelling the employer to comply with a fair procedure; interdicting or restraining the employer from dismissing an employee prior to complying with a fair procedure; directing the employer to reinstate an employee until it has complied with a fair procedure; (d) make an award of compensation, if an order in terms of paragraphs (a) to (c) is not appropriate. (14) Subject to this section, the Labour Court may make any appropriate order referred to I section 158(1)(a). (15) An award of compensation made to an employee in terms of subsection (14) must comply with section 194. (16) The Labour Court may not make an order in respect of any matter concerning the disclosure of information in terms of section 189(4) that has been the subject of an arbitration award in terms of section 16. (17)(a) (18) (19) An application in terms of subsection (13) must be brought not later than 30 days after the employer has given notice to terminate the employee’s services or, if notice is not given, the date on which the employees are dismissed. (b) The Labour Court may, on good cause shown, condone a failure to comply with the time limit mentioned in paragraph (a). The Labour Court may not adjudicate a dispute about the procedural fairness of a dismissal based on the employer’s operational requirements in any dispute referred to it in terms of section 191(5)(b)(ii). In any dispute referred to the \labour Court in terms of section 191(5)(b)(ii) that concerns the dismissal of the number of employees specified in subsection (1), the Labour Court must find that the employee was dismissed for a fair reason if - (a) the dismissal was to give effect to a requirement based on the employer’s economic, technological, structural or similar needs; (b) the dismissal was operationally justifiable on rational grounds; (c) there was a proper consideration of alternatives; and (d) selection criteria were fair and objective. (20) For the purposes of this section, an ‘employer’ in the public service is the executing authority of a national department, provincial administration, provincial department or organisational component contemplated in section 7(2) of the Public Service Act, 1994 (promulgated by Proclamation No. 103 of 1994). - 190 Verify source ↗
Date of dismissal
AI-assisted research summary: This section defines the “date of dismissal” as the earlier of the employment end date or the day the employee left the employer’s service, with special rules for non-renewal, refusal to resume work, and refusal to reinstate or re-employ.
190. Date of dismissal (1) The date of dismissal is the earlier of- (a) the date on which the contract of employment terminated; or (b) the date on which the employee left the service of the employer. (2) Despite subsection (i)- (a) (b) (c) if an employer has offered to renew on less favourable terms, or has failed to renew, a fixed-term contract of employment, the date of dismissal is the date on which the employer offered the less favourable terms or the date the employer notified the employee of the intention not to renew the contract; if the employer refused to allow an employee to resume work, the date of dismissal is the date on which the employer first refused to allow the employee to resume work; if an employer refused to reinstate or re-employ the employee, the date of dismissal is the date on which the employer first refused to reinstate or re-employ that employee. - 191 Verify source ↗
Disputes about unfair dismissals and unfair labour practices52
AI-assisted research summary: This section sets deadlines and steps for referring dismissal and unfair labour practice disputes to a council, the Commission, or the Labour Court.
191. Disputes about unfair dismissals and unfair labour practices52 (1)(a) If there is a dispute about the fairness of a dismissal or a dispute about an unfair labour practice, the dismissed employee or the employee alleging the unfair labour practice may refer the dispute in writing within to- (i) a council, if the parties to the dispute fall within the registered scope of that council; or (ii) the Commission, if no council has jurisdiction. (b) A referral in terms of paragraph (a) must be made within - (i) (ii) 30 days of the date of a dismissal or, if it is a later date, within 30 days of the employer making a final decision to dismiss or uphold the dismissal; 90 days of the date of the act or omission which allegedly constitutes the unfair labour practice or, if it is a later date, within 90 days of the date on which the employee became aware of the act or occurrence. 52. See flow diagrams Nos. 10, 11, 12 and 13 in Schedule 4. (2) If the employee shows good cause at any time, the council or the Commission may permit the employee to refer the dispute after the relevant time limit in subsection (1) has expired. (2A) Subject to subsections (1) and (2), an employee whose contract of employment is terminated by notice, may refer the dispute to the council or the Commission once the employee has received that notice. (3) (4) (5) The employee must satisfy the council or the Commission that a copy of the referral has been served on the employer. The council or the Commission must attempt to resolve the dispute through conciliation. If a council or a commissioner has certified that the dispute remains unresolved, or if 30 days have expired since the council or the Commission received the referral and the dispute remains unresolved- (a) the council or the Commission must arbitrate the dispute at the request of the employee if- (i) (ii) the employee has alleged that the reason for dismissal related to the employee's conduct or capacity, unless paragraph (b)(iii) applies; the employee has alleged that the reason for dismissal is that the employer made continued employment intolerable or the employer provided the employee with substantially less favourable conditions or circumstances at work after a transfer in terms of section 197 or 197A, unless the employee alleges that the contract of employment was terminated for a reason contemplated in section 187; (iii) the employee does not know the reason for dismissal; or (iv) the dispute concerns an unfair labour practice; or (b) the employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is- (i) automatically unfair; (ii) based on the employer's operational requirements; (iii) the employee's participation in a strike that does not comply with the provisions of Chapter IV; or (iv) because the employee refused to join, was refused membership of or was expelled from a trade union party to a closed shop agreement. (5A) Despite any other provision in the Act, the council or Commission must commence the arbitration immediately after certifying that the dispute remains unresolved if the dispute concerns – (a) (b) (c) the dismissal of an employee for any reason relating to probation; any unfair labour practice relating to probation; any other dispute contemplated in subsection (5)(a) in respect of which no party has objected to the matter being dealt with in terms of this subsection. (6) Despite subsection (5)(a) or (5A), the director must refer the dispute to the Labour Court, if the director decides, on application by any party to the dispute, that to be appropriate after considering- (a) the reason for dismissal; (b) whether there are questions of law raised by the dispute; (c) the complexity of the dispute; (d) whether there are conflicting arbitration awards that need to be resolved; (e) the public interest. (7) When considering whether the dispute should be referred to the Labour Court, the director must give the parties to the dispute and the commissioner who attempted to conciliate the dispute, an opportunity to make representations. (8) The director must notify the parties of the decision and refer the dispute- (a) to the Commission for arbitration; or (b) to the Labour Court for adjudication. (9) The director's decision is final and binding. (10) No person may apply to any court of law to review the director's decision until the dispute has been arbitrated or adjudicated, as the case may be. (11)(a) The referral, in terms of subsection (5)(b), of a dispute to the Labour Court for adjudication must be made within 90 days after the council or (as the case may be) the commissioner has certified that the dispute remains unresolved. (b) However, the Labour Court may condone non-observance of that timeframe on good cause shown. (12) If an employee is dismissed by reason of the employer’s operational requirements following a consultation procedure in terms of section 189 that applied to that employee only, the employee may elect to refer the dispute either to arbitration or to the Labour Court. (13)(a) An employee may refer a dispute concerning an alleged unfair labour practice to the Labour Court for adjudication if the employee has alleged that the employee has been subjected to an occupational detriment by the employer in contravention of section 3 of the Protected Disclosures Act, 2000, for having made a protected disclosure defined in that Act. (b) A referral in terms of paragraph (a) is deemed to be made in terms of subsection (5)(b). - 192 Verify source ↗
Onus in dismissal disputes
AI-assisted research summary: In dismissal proceedings, the employee must prove that a dismissal happened, and if that is shown, the employer must prove the dismissal was fair.
192. Onus in dismissal disputes (1) (2) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. If the existence of the dismissal is established, the employer must prove that the dismissal is fair. - 193 Verify source ↗
Remedies for unfair dismissal and unfair labour practice
AI-assisted research summary: If a dismissal is found to be unfair, the Labour Court or an arbitrator may order reinstatement, re-employment, or compensation, and usually must order reinstatement or re-employment unless specific exceptions apply.
193. Remedies for unfair dismissal and unfair labour practice (1) If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may- (a) (b) order the employer to reinstate the employee from any date not earlier than the date of dismissal; order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or (c) order the employer to pay compensation to the employee. (2) The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless- (a) the employee does not wish to be reinstated or re-employed; (b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable; (c) (d) it is not reasonably practicable for the employer to reinstate or re- employ the employee; or the dismissal is unfair only because the employer did not follow a fair procedure. If a dismissal is automatically unfair or, if a dismissal based on the employer's operational requirements is found to be unfair, the Labour Court in addition may make any other order that it considers appropriate in the circumstances.53 An arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation. (3) (4) - 194 Verify source ↗
Limits on compensation
AI-assisted research summary: Compensation for unfair dismissal or unfair labour practice must be just and equitable, and is capped at 12 months’ remuneration in ordinary unfair dismissal or unfair labour practice cases and 24 months’ remuneration for automatically unfair dismissal.
194. Limits on compensation (1) (3) (4) The compensation awarded to an employee whose dismissal is found to be unfair either because the employer did not prove that the reason for dismissal was a fair reason relating to the employee’s conduct or capacity or the employer’s operational requirements or the employer did not follow a fair procedure, or both, must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal. The compensation awarded to an employee whose dismissal is automatically unfair must be just and equitable in all the circumstances, but not more than the equivalent of 24 months' remuneration calculated at the employee's rate of remuneration on the date of dismissal. The compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances, but not more than the equivalent of 12 months’ remuneration. - 195 Verify source ↗
Compensation is in addition to any other amount
AI-assisted research summary: Compensation orders under this Chapter are added on top of any other amount the employee is already entitled to, and do not replace it.
195. Compensation is in addition to any other amount An order or award of compensation made in terms of this Chapter is in addition to, and not a substitute for, any other amount to which the employee is entitled in terms of any law, collective agreement or contract of employment. - 196 Verify source ↗
Severance pay
AI-assisted research summary: Employers must pay severance pay to employees dismissed for operational requirements, unless an exemption applies or the employee unreasonably رفضs suitable alternative employment.
196. Severance pay (1) An employer must pay an employee who dismissed for reasons based on the employer's operational requirements severance pay equal to at least one week's remuneration for each completed year of continuous service with that employer, unless the employer has been exempted from the provisions of this subsection. 53. The Court, for example, in the case of a dismissal that constitutes an act of discrimination, may wish to issue an interdict obliging the employer to stop the discriminatory practice in addition to one of the other remedies it may grant. (2) The Minister, after consulting NEDLAC and the Public Service Co-ordinating Bargaining Council, may vary the amount of severance pay in terms of subsection (1) by notice in the Government Gazette. (3) An employee who unreasonably refuses to accept the employer's offer of alternative employment with that employer or any other employer is not entitled to severance pay in terms of subsection (1). (4) The payment of severance pay in compliance with this section does not affect an employee's right to any other amount payable according to law. (5) An employer or a category of employers may apply to the Minister for exemption from the provisions of subsection (1) as if the application is one in terms of the Basic Conditions of Employment Act and the Minister may grant an exemption as if it were an exemption granted in terms of that Act. (6) If there is a dispute only about the entitlement to severance pay in terms of this section, the employee may refer the dispute in writing to- (a) a council, if the parties to the dispute fall within the registered scope of that council; or (b) the Commission, if no council has (7) The employee who refers the dispute to the council or the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute. (8) The council or the Commission must attempt to resolve the dispute through conciliation. (9) If the dispute remains unresolved, the employee may refer it to arbitration. (10) If the Labour Court is adjudicating a dispute about a dismissal based on the employer's operational requirements, the Court may inquire into and determine the amount of any severance pay to which the dismissed employee may be entitled and the Court may make an order directing the employer to pay that amount. - 197 Verify source ↗
Transfer of contract of employment
AI-assisted research summary: When a business is transferred, the new employer steps into the old employer’s place for existing employment contracts and employment continuity continues.
197. Transfer of contract of employment (1) In this section and in section 197A - (a) (b) ‘business’ includes the whole or a part of any business, trade, undertaking or service; and ‘transfer’ means the transfer of a business by one employer (‘the old employer’) to another employer (‘the new employer’) as a going concern. (2) If a transfer of a business takes place, unless otherwise agreed in terms of subsection (6) - (a) (b) (c) (d) the new employer is automatically substituted in the place of the old employer in respect of all contracts of employment in existence immediately before the date of transfer; all the rights and obligations between the old employer and an employee at the time of the transfer continue in force as if they had been rights and obligations between the new employer and the employee; anything done before the transfer by or in relation to the old employer, including the dismissal of an employee or the commission of an unfair labour practice or act of unfair discrimination, is considered to have been done by or in relation to the new employer; and the transfer does not interrupt an employee’s continuity of employment, and an employee’s contract of employment continues with the new employer as if with the old employer. (3)(a) The new employer complies with subsection (2) if that employer employs transferred employees on terms and conditions that are on the whole not less favourable to the employees than those on which they were employed by the old employer. (b) Paragraph (a) does not apply to employees if any of their conditions of employment are determined by a collective agreement. (4) Subsection (2) does not prevent an employee from being transferred to a pension, provident, retirement or similar fund other than the fund to which the employee belonged prior to the transfer, if the criteria in section 14(1)(c) of the Pension Funds Act, 1956 (Act No. 24 of 1956), are satisfied53a. (5)(a) For the purposes of this subsection, the collective agreements and arbitration awards referred to in paragraph (b) are agreements and awards that bound the old employer in respect of the employees to be transferred, immediately before the date of transfer. (b) Unless otherwise agreed in terms of subsection (6), the new employer is bound by - (i) (ii) (iii) any arbitration award made in terms of this Act, the common law or any other law; any collective agreement binding in terms of section 23; and any collective agreement binding in terms of section 32, unless a commissioner acting in terms of section 62 decides otherwise. (6)(a) An agreement contemplated in subsection (2) must be in writing and concluded between - 53a. Section 14(1)(c) of the Pensions Funds Act requires the registrar to be satisfied that any scheme to amalgamate or transfer funds is reasonable and equitable, and accords full recognition to the rights and reasonable benefit expectations of the persons concerned in terms of the fund rules, and to additional benefits which have become established practice. (i) (ii) either the old employer, the new employer, or the old and new employers acting jointly, on the one hand; and the appropriate person or body referred to in section 189(1), on the other. (b) In any negotiations to conclude an agreement contemplated by paragraph (a), the employer or employers contemplated in subparagraph (i), all relevant information that will allow it to engage effectively in the negotiations. (c) Section 16(4) to (14) applies, read with the changes required by the context, to the disclosure of information in terms of paragraph (b). (7) The old employer must - (a) agree with the new employer to a valuation as at the date of transfer of - (i) (ii) the leave pay accrued to the transferred employees of the old employer; the severance pay that would have been payable to the transferred employees of the old employer in the event of a dismissal by reason of the employer’s operational requirements; and (iii) any other payments that have accrued to the transferred employees but have not been paid to employees of the old employer. (b) conclude a written agreement that specifies - (i) (ii) which employer is liable for paying any amount referred to in paragraph (a), and in the case of the apportionment of liability between them, the terms of the apportionment; and what provision has been made for any payment contemplated in paragraph (a) if any employee becomes entitled to receive a payment; (c) (d) disclose the terms of the agreement contemplated in paragraph (b) to each employee who after the transfer becomes employed by the new employer; and take any other measure that may be reasonable in the circumstances to ensure that adequate provision is made for any obligation on the new employer that may arise in terms of paragraph (a). (8) For a period of 12 months after the date of the transfer, the old employer is jointly and severally liable with the new employer to any employee who becomes entitled to receive a payment contemplated in subsection (7)(a) as a result of the employee’s dismissal for a reason relating to the employer’s operational requirements or the employer’s liquidation or sequestration, unless the old employer is able to show that it has complied with the provisions of this section (9) The old and new employer are jointly and severally liable in respect of any claim concerning any term or condition of employment that arose prior to the transfer. (10) This section does not affect the liability of any person to be prosecuted for, convicted of and sentenced for, any offence. - 197A Verify source ↗
Transfer of contract of employment in circumstances of insolvency
AI-assisted research summary: If a business is transferred in insolvency-related circumstances, the new employer steps into existing employment contracts and employment continuity is preserved, unless section 197(6) says otherwise.
197A Transfer of contract of employment in circumstances of insolvency (1) This section applies to the transfer of a business - (a) (b) if the old employer is insolvent; or if a scheme of arrangement or compromise is being entered into to avoid winding up sequestration for reasons of insolvency. (2) Despite the Insolvency Act, 1936 (Act No. 24 of 1936), if a transfer of a business takes place in the circumstances contemplated in subsection (1), unless otherwise agreed in terms of section 197(6) - (a) (b) (c) (d) the new employer is automatically substituted in the place of the old employer in all contracts of employment in existence immediately before the old employer’s provisional winding up or sequestration; all the rights and obligations between the old employer and each employee at the time of the transfer remain rights and obligations between the old employer and each employee; anything done before the transfer by the old employer in respect of each employee is considered to have been done by the old employer; the transfer does not interrupt the employee’s continuity of employment and the employee’s contract of employment continues with the new employer as if with the old employer. (3) (4) Section 197(3), (4), (5) and (10) applies to a transfer in terms of this section any reference to an agreement in that section must be read as a reference to an agreement contemplated in section 197(6). Section 197(5) applies to a collective agreement or arbitration binding on the employer immediately before the employer’s provisional winding up or sequestration. (5) Section 197(7), (8) and (9) does not apply to a transfer in accordance with this section. - 197B Verify source ↗
Disclosure of information concerning insolvency
AI-assisted research summary: Employers facing or dealing with winding-up or sequestration must notify the consulting party and provide copies of any related application, with short deadlines in some cases.
197B Disclosure of information concerning insolvency (1) An employer that is facing financial difficulties that may reasonably result in the winding up or sequestration of the employer must advise a consulting party contemplated in section 189(1). (2)(a) An employer that applies to be wound up or sequestrated, whether in terms of the Insolvency Act, 1936 or any other law, must at the time of making application, provide a consulting party contemplated in section 189(1) with a copy of the application. (b) An employer that receives an application for its winding up or sequestration must supply a copy of the application to any consulting party contemplated in section 189(1), within two days of receipt, or if the proceedings are urgent, within 12 hours. CHAPTER IX GENERAL PROVISIONS
Part
CHAPTER IX
- 198 Verify source ↗
Temporary Employment Services
AI-assisted research summary: This section defines a temporary employment service, treats workers supplied to a client as employees of that service, and excludes independent contractors from that relationship.
198. Temporary Employment Services (1) In this section, "temporary employment service" means any person who, for reward, procures for or provides to a client other persons- (a) who render services to, or perform work for, the client; and (b) who are remunerated by the temporary employment service. (2) For the purposes of this Act, a person whose services have been procured for or provided to a client by a temporary employment service is the employee of that temporary employment service, and the temporary employment service is that person's employer. (3) Despite subsections (1) and (2), a person who is an independent contractor is not an employee of a temporary employment service, nor is the temporary employment service the employer of that person. (4) The temporary employment service and the client are jointly and severally liable if the temporary employment service, in respect of any of its employees, contravenes- (a) (b) a collective agreement concluded in a bargaining council that regulates terms and conditions of employment; a binding arbitration award that regulates terms and conditions of employment; (c) the Basic Conditions o Employment Act; or (d) a determination made in terms of the Wage Act. (5) Two or more bargaining councils may agree to bind the following persons, if they fall within the combined registered scope of those bargaining councils, to a collective agreement concluded in any one of them- (a) temporary employment service; (b) a person employed by a temporary employment service; and (c) a temporary employment service client. (6) An agreement concluded in terms of subsection (5) is binding only if the collective agreement has been extended to non-parties within the registered scope of the bargaining council. (7) Two or more bargaining councils may agree to bind the following persons, who fall within their combined registered scope, to a collective agreement- (a) temporary employment service; (b) a person employed by a temporary employment service; and (c) a temporary employment service's client. (8) An agreement concluded in terms of subsection (7) is binding only if- (a) (b) (c) each of the contracting bargaining councils has requested the Minister to extend the agreement to non-parties falling within its registered scope; the Minister is satisfied that the terms of the agreement are not substantially more onerous than those prevailing in the corresponding collective agreements concluded in the bargaining councils; and the Minister, by notice in the Government Gazette, has extended the agreement as requested by all the bargaining councils that are parties to the agreement. - 199 Verify source ↗
Contracts of employment may not disregard or waive collective agreements
AI-assisted research summary: Employment contracts cannot override collective agreements or arbitration awards.
199. Contracts of employment may not disregard or waive collective agreements or arbitration awards (1) A contract of employment, whether concluded before or after the coming into operation of any applicable collective agreement or arbitration award, may not- (a) (b) permit an employee to be paid remuneration that is less than that prescribed by that collective agreement or arbitration award; permit an employee to be treated in a manner, or to be granted any benefit, that is less favourable than that prescribed by that collective agreement or arbitration award; or (c) waive the application of any provision of that collective agreement or arbitration award. (2) A provision in any contract that purports to permit or grant any payment, treatment, benefit, waiver or exclusion prohibited by subsection (1) is invalid. - 200 Verify source ↗
Representation of employees or employers
AI-assisted research summary: Registered trade unions and registered employers' organisations may act for themselves or their members in disputes, and may be a party to proceedings if a member is a party.
200. Representation of employees or employers (1) A registered trade union or registered employers' organisation may act in any one or more of the following capacities in any dispute to which any of its members is a party- (a) in its own interest; (b) on behalf of any of its members; (c) in the interest of any of its members. (2) A registered trade union or a registered employers' organisation is entitled to be a party to any proceedings in terms of this Act if one or more of its members is a party to those proceedings. - 200A Verify source ↗
Presumption as to who is employee
AI-assisted research summary: A worker is presumed to be an employee if certain factors are present, unless the person earns above the Minister’s amount; contracting parties may ask the Commission for an advisory award, and NEDLAC must issue a Code of Good Practice.
200A. Presumption as to who is employee (1) Until the contrary is proved, a person, who works for or renders services to any other person, is presumed, regardless of the form of the contract, to be an employee, if any one or more of the following factors are present: (a) (b) (c) (d) (e) (f) (g) the manner in which the person works is subject to the control or direction of another person; the person’s hours of work are subject to the control or direction of another person in the case of a person who works for an organisation, the person forms part of that organisation; the person has worked for that other person for an average of at least 40 hours per month over the last three months; the person is economically dependent on the other person for whom he or she works or renders services; the person is provided with tools of trade or work equipment by the other person; or the person only works for or renders services to one person. Subsection (1) does not apply to any person who earns in excess of the amount determined by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act. If a proposed or existing work arrangement involves persons who earn amounts equal to or below the amounts determined by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act, any of the contracting parties may approach the Commission for an advisory award on whether the persons involved in the arrangement are employees. NEDLAC must prepare and issue a Code of Good Practice that sets out guidelines for determining whether persons, including those who earn in excess of the amount determined in subsection (2) are employees. (2) (3) (4)
Part
part of that organisation;
- 201 Verify source ↗
Confidentiality
AI-assisted research summary: A person must not disclose protected financial or business information acquired while performing functions or powers under this Act, unless the disclosure is needed to help someone carry out a function or power under the Act.
201. Confidentiality (1) A person commits an offence by disclosing any information relating to the financial or business affairs of any other person or any business, trade or undertaking if the information was acquired by the first-mentioned person in the performance of any function or exercise of any power in terms of this Act, in any capacity, by or on behalf of- (a) a council; (b) any independent body established by a collective agreement or determination to grant exemptions from the provisions of the collective agreement or determination; (c) the registrar; (d) the Commission; and (e) an accredited agency. (2) Subsection (1) does not apply if the information was disclosed to enable a person to perform a function or exercise a power in terms of this Act. (3) (a) A person convicted of an offence in terms of this section may be sentenced to a fine not exceeding R10 000. (b) The Minister, in consultation with the Minister of Justice, may from time to time by notice in the Government Gazette, amend the maximum amount of the fine referred to in paragraph (a). - 202 Verify source ↗
Service of documents
AI-assisted research summary: Service on a registered trade union or employers' organisation can count as service on the members it represents in a dispute, and service on the Office of the State Attorney can count as service on the State in employer matters.
202. Service of documents (1) If a registered trade union or a registered employers' organisation acts on behalf of any of its members in a dispute, service on that trade union or employers' organisation of any document directed to those members in connection with that dispute, will be sufficient service on those members for the purposes of this Act. (2) Service on the Office of the State Attorney of any legal process directed to the State in its capacity as an employer is service on the State for the purposes of this Act. - 203 Verify source ↗
Codes of good practice
AI-assisted research summary: NEDLAC may issue, change, or replace codes of good practice, and any such code or change must be published in the Government Gazette. People interpreting or applying the Act must take relevant codes into account.
203. Codes of good practice (1) NEDLAC may- (a) prepare and issue codes of good practice; and (b) change or replace any code of good practice. (2) Any code of good practice, or any change to or replacement of a code of good practice, must be published in the Government Gazette. (3) Any person interpreting or applying this Act must take into account any relevant code of good practice. (4) A Code of Good Practice issued in terms of this section may provide that the code must be taken into account in applying or interpreting any employment law. - 204 Verify source ↗
Collective agreement, arbitration award or wage determination to be kept
AI-assisted research summary: Employers bound by a collective agreement, arbitration award, or wage determination must keep a copy at the workplace and provide it for inspection or copies in specified cases.
204. Collective agreement, arbitration award or wage determination to be kept by employer. Unless a collective agreement, arbitration award or determination made in terms of the Basic Conditions of Employment Act provides otherwise, every employer on whom the collective agreement, arbitration award, or determination is binding must- (a) keep a copy of that collective agreement, arbitration award or determination available in the workplace at all times; (b) make that copy available for inspection by any employee; and (c) give a copy of that collective agreement, arbitration award or determination- (i) to an employee who has paid the prescribed fee; and (ii) free of charge, on request, to an employee who is a trade union representative or a member of a workplace forum. - 205 Verify source ↗
Records to be kept by employer
AI-assisted research summary: Employers must keep required records, retain them for three years, and produce them on demand; they must also record prescribed strike, lock-out, or protest-action details and submit them to the registrar.
205. Records to be kept by employer (1) Every employer must keep the records that an employer is required to keep in compliance with any applicable- (a) collective agreement; (b) arbitration award; (c) determination made in terms of the Wage Act. (2) An employer who is required to keep records in terms of subsection (1) must- (a) (b) retain those records in their original form or a reproduced form for a period of three years from the date of the event or end of the period to which they relate; and submit those records in their original form or a reproduced form in response to a demand made at any reasonable time, to any agent of a bargaining council, commissioner or any person whose functions in terms of this Act include the resolution of disputes. (3) (a) An employer must keep a record of the prescribed details of any strike, lock-out or protest action involving its employees. (b) An employer must submit those records in the prescribed manner to the registrar. - 206 Verify source ↗
Effect of certain defects and irregularities
AI-assisted research summary: A defect does not invalidate certain union, employers' organisation, council, director, or commissioner acts, registrations, constitutions, agreements, or awards.
206. Effect of certain defects and irregularities (1) Despite any provision in this Act or any other law, a defect does not invalidate- (a) (b) the constitution or the registration of any registered trade union, registered employers' organisation or council; any collective agreement or arbitration award that would otherwise be binding in terms of this Act; (c) any act of a council; or (d) any act of the director or a commissioner. (2) A defect referred to in subsection (1) means- (a) a defect in, or omission from, the constitution of any registered trade union, registered employers' organisation or council; (b) a vacancy in the membership of any council; or (c) any irregularity in the appointment or election of- (i) a representative to a council; (ii) an alternate to any representative to a council; (iii) a chairperson or any other person presiding over any meeting of a council or a committee of a council; or (iv) the director or a commissioner. - 207 Verify source ↗
Ministers empowered to add and change to Schedules
AI-assisted research summary: The Minister may change, replace, or add certain schedules and page notes, subject to consulting the stated bodies and giving notice in the Government Gazette.
207. Ministers empowered to add and change to Schedules (1) (3) (4) The Minister, after consulting NEDLAC, by notice in the Government Gazette, may change, replace or add to Schedules 2 and 4 to this Act and the Schedule envisaged in subsection (3). The Minister, after consulting NEDLAC, by notice in the Government Gazette, may add to this Act a further Schedule containing a model constitution for a statutory council. The Minister for the Public Service and Administration, after consulting the Public Service Co-ordinating Bargaining Council, by notice in the Government Gazette, may add to this Act a further schedule regulating the establishment and the constitutions of workplace forums in the public service. (5) The Minister may add to, change or replace any page header or footnote.
Part
Schedule envisaged in subsection (3).
- 208 Verify source ↗
Regulations
AI-assisted research summary: The Minister may make regulations, after consulting NEDLAC and, when appropriate, the Commission.
208. Regulations The Minister, after consulting NEDLAC and when appropriate, the Commission, may make regulations not inconsistent with this Act relating to- (a) any matter that in terms of this Act may or must be prescribed; and (b) any matter that the Minister considers necessary or expedient to prescribe or have governed by regulation in order to achieve the primary objects of this Act. - 208A Verify source ↗
Delegations
AI-assisted research summary: The Minister may delegate certain powers, functions, or duties in writing to the Director-General or another Department of Labour officer, with some statutory exceptions.
208A. Delegations (1) (2) The Minister, in writing, may delegate to the Director-General or any other officer of the Department of Labour any power, function or duty conferred or imposed upon the Minister in terms of this Act, except the powers, functions and duties contemplated in section 32 (but excluding subsection (6)), and sections 44, 207 and 208. A delegation in terms of subsection (1) does not limit or restrict the competence of the Minister to exercise or perform any power, function or duty that has been delegated. (3) The Minister may make a delegation subject to any conditions or restrictions that are deemed fit. (4) The Minister may at any time – (a) withdraw a delegation made in terms of subsection (1); and (b) withdraw or amend any decision made by a person in exercising a power or performing a function or duty delegated in terms of subsection (1). - 209 Verify source ↗
This Act binds the State
AI-assisted research summary: This Act applies to the State.
209. This Act binds the State This Act binds the State. - 210 Verify source ↗
Application of Act when in conflict with other laws
AI-assisted research summary: If this Act conflicts with another law on matters covered by the Act, this Act prevails, except where the other law is the Constitution or an Act that expressly amends this Act.
210. Application of Act when in conflict with other laws If any conflict, relating to the matters dealt with in this Act, arises between this Act and the provisions of any other law save the Constitution or any act expressly amending this Act, the provisions of this Act will prevail. - 211 Verify source ↗
Amendment of laws
AI-assisted research summary: This section says the laws listed in items I and 2 of Schedule 5 are amended as specified in those items.
211. Amendment of laws Each of the laws referred to in items I and 2 of Schedule 5 is hereby amended to the extent specified in those items. - 212 Verify source ↗
Repeal of laws, and transitional arrangements
AI-assisted research summary: This section repeals the Schedule 6 laws to the extent listed there, and keeps Schedule 7 transitional arrangements in force as substantive provisions.
212. Repeal of laws, and transitional arrangements (1) (2) (3) Each of the laws referred to in the first two columns of Schedule 6 is hereby repealed to the extent specified opposite that law in the third column of that Schedule. The repeal of those laws does not affect any transitional arrangements made in Schedule 7. The transitional arrangements in Schedule 7 must be read and applied as substantive provisions of this Act.
Part
Schedule 7.
- 213 Verify source ↗
Definitions. In this Act, unless the context otherwise indicates -
AI-assisted research summary: This section defines key terms used in the Act, including employee, employer’s organisation, Minister, NEDLAC, strike, and workplace.
213. Definitions. In this Act, unless the context otherwise indicates - "area" includes any number of areas, whether or not contiguous; "auditor" means any person who is registered to practise in the Republic as a public accountant and auditor; "bargaining council" means a bargaining council referred to in section 27 and includes, in relation to the public service, the bargaining councils referred to in section 35; "Basic Conditions of Employment Act" means the Basic Conditions of Employment Act, 1997 (Act No.75 of 1997); "code of good practice" means a code of practice issued by NEDLAC in terms of section 203(1) of this Act; "collective agreement" means a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand- (a) one or more employers; (b) one or more registered employers' organisations; or (c) one or more employers and one or more registered employers' organisations; " council" includes a bargaining council and a statutory council; "director" means the director of the Commission appointed in terms of section II 8(1) and includes any acting director appointed in terms of section 119; "dismissal" means dismissal as defined in section 186; "dispute" includes an alleged dispute; "employee "54 means – (a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and 54. "Employee" is given a different and specific meaning in section 78 in Chapter V. (b) any other person who in any manner assists in carrying on or conducting the business of an employer, and "employed" and "employment" have meanings corresponding to that of " employee"; "employers' organisation" means any number of employers associated together for the purpose, whether by itself or with other purposes, of regulating relations between employers and employees or trade unions; “employment law” includes this Act, any other act the administration of which has been assigned to the Minister, and nay of the following acts: (a) (b) (c) (d) (e) the Unemployment Insurance Act, 1966 (Act No. 30 of 1966); the Skills Development Act, 1998 (Act No. 97 of 1998); the Employment Equity Act, 1998 (Act No. 55 of 1998); the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993); and the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993); "essential service" means – (a) a service the interruption of which endangers the life, personal safety or health of the whole or any part of the population; (b) the Parliamentary service; (c) the South African Police Services; "issue in dispute", in relation to a strike or lock-out, means the demand, the grievance, or the dispute that forms the subject matter of the strike or lock-out; "legal practitioner" means any person admitted to practise as an advocate or an attorney in the Republic; "lock out" means the exclusion by an employer of employees from the employer's workplace, for the purpose of compelling the employees to accept a demand in respect of any matter of mutual interest between employer and employee, whether or not the employer breaches those employees' contracts of employment in the course of or for the purpose of that exclusion; "Minister" means the Minister of Labour; "NEDLAC" means the National Economic Development and Labour Council established by section 2 of the National Economic, Development and Labour Council Act, 1994 (Act No. 35 of 1994); "office-bearer" means a person who holds office in a trade union, employers' organisation, federation of trade unions, federation of employers' organisations or council and who is not an official; "official", in relation to a trade union, employers' organisation, federation of trade unions or federation of employers' organisations means a person employed as the secretary, assistant secretary or organiser of a trade union, employers' organisation or federation, or in any other prescribed capacity, whether or not that person is employed in a full-time capacity. And, in relation to a council means a person employed by a council as secretary or in any other prescribed capacity, whether or not that person is employed in a full-time capacity; "operational requirements" means requirements based on the economic, technological, structural or similar needs of an employer; "prescribed" means prescribed from time to time by regulation in terms of section 208; "protest action" means the partial or complete concerted refusal to work, or the retardation or obstruction of work, for the purpose of promoting or defending the socio-economic interests of workers, but not for a purpose referred to in the definition of strike; "public service" means the national departments, provincial administrations, provincial departments and organisational components contemplated in section 7(2) of the Public Service Act, 1994 (promulgated by Proclamation No. 103 of 1994), but excluding- (a) the members of the South African National Defence Force; (b) the National Intelligence Agency; and (c) the South African Secret Service. "registered scope" means- (a) (b) in the case of the Public Service Co-ordinating Bargaining Council, the public service as a whole, subject to section 36; in the case of bargaining councils established for sectors in the public service, the sector designated by the Public Service Co-ordinating Bargaining Council in terms of section 37(1); (c) in the case of any other council, the sector and area in respect of which it is registered in terms of this Act; "registrar" means the registrar of labour relations appointed in terms of section 108 and includes- (a) any deputy registrar appointed in terms of that section when acting on the direction or under a general or special delegation of the registrar; and (b) any acting registrar appointed in terms of that section; "remuneration" means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State, and "remunerate" has a corresponding meaning; "Republic"- (a) when used to refer to the State as a constitutional entity, means the Republic of South Africa as defined in section I of the Constitution; and (b) when used in the territorial sense, means the national territory of the Republic as defined in section I of the Constitution; "sector" means, subject to section 37, an industry or a service; "serve " means to send by registered post, telegram, telex, telefax or to deliver by hand; "statutory council" means a council established in terms of Part E of Chapter 111; "strike" means the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to "work" in this definition includes overtime work, whether it is voluntary or compulsory; "this Act" includes the section numbers, the Schedules, except Schedules 4 and 8, and any regulations made in terms of section 208, but does not include the page headers, the headings or footnotes; "trade union" means an association of employees whose principal purpose is to regulate relations between employees and employers, including any employers' organisations; "trade union representative" means a member of a trade union who is elected to represent employees in a workplace-, "Wage Act" means the Wage Act, 1957 (Act No. 5 of 1957); "working hours" means those hours during which an employee is obliged to work; "workplace"- (a) in relation to the public service – (i) for the purposes of collective bargaining and dispute resolution, the registered scope of the Public Service Co-ordinating Bargaining Council or a bargaining council in a sector in the public service, as the case may be; or (ii) for any other purpose, a national department, provincial administration, provincial department or organisational component contemplated in section 7(2) of the Public Service Act, 1994 (promulgated by Proclamation No. 103 of 1994), or any other part of the public service that the Minister for Public Service and Administration, after consultation with the Public Service Co-ordinating Bargaining Council, demarcates as a workplace.; (c) in all other instances means the place or places where the employees of an employer work. If an employer carries on or conducts two or more operations that are independent of one another by reason of their size, function or organisation, the place or places where employees work in connection with each independent operation, constitutes the workplace for that operation; and "workplace forum" means a workplace forum established in terms of Chapter V. - 214 Verify source ↗
Short title and commencement
AI-assisted research summary: This section gives the Act its short title and says it starts on a date set by the President in the Government Gazette, unless another part of the Act sets a different commencement rule.
214. Short title and commencement (1) This Act is called the Labour Relations Act, 1995. (2) This Act will come into operation on a date to be determined by the President by proclamation in the Government Gazette, except in the case of any provision in relation to which some other arrangement regarding commencement is made elsewhere in this Act. SCHEDULE I ESTABLISHMENT OF BARGAINING COUNCILS FOR PUBLIC SERVICE 1. Definitions for this Schedules In this Schedule, unless the context otherwise indicates "Education Labour Relations Act" means the Education Labour Relations Act, 1993 (Act No. 146 of 1993); "Education Labour Relations Council" means the council established by section 6(1) of the Education Labour Relations Act; "National Negotiating Forum" means the National Negotiating Forum established for the South African Police Service by the South African Police Service Labour Relations Regulations, 1995; "Public Service Bargaining Council" means the council referred to in section 5(l) of the Public Service Labour Relations Act; "Public Service Labour Relations Act" means the Public Service Labour Relations Act, 1994 (promulgated by Proclamation No. 105 of 1994).
Part
SCHEDULE I
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Establishment of Public Service Co-ordinating Bargaining Council
AI-assisted research summary: The Commission must call the relevant representatives to a meeting, and the registrar must register the council or, if no agreement is reached, determine and certify its constitution.
2. Establishment of Public Service Co-ordinating Bargaining Council (1) As soon as practicable after the commencement of this Act, the Commission, by notice in the Government Gazette, must invite the employee and employer representatives in the Education Labour Relations Council, the National Negotiating Forum and the central chamber of the Public Service Bargaining Council to attend a meeting, with a view to those representatives agreeing on a constitution for the Public Service Co-ordinating Bargaining Council. (2) (3) (4) The Commission must appoint a commissioner to chair the meeting and facilitate the conclusion of an agreement on a constitution that meets the requirements of section 30, read with the changes required by the context. The parties to the Education Labour Relations Council, the National Negotiating Forum and the central chamber of the Public Service Bargaining Council will be the founding parties to the Public Service Co-ordinating Bargaining Council. If an agreement is concluded and the registrar is satisfied that the constitution meets the requirements of section 30, the registrar must register the Public Service Co-ordinating Bargaining Council by entering its name in the register of councils. (5) If no agreement is concluded on a constitution, the registrar must- (a) (b) (c) determine the constitution for the Public Service Co-ordinating Bargaining Council; register the Public Service Co-ordinating Bargaining Council by entering its name in the register of councils; and certify the constitution as the constitution of the Public Service Co- ordinating Bargaining Council. (6) After registering the Public Service Co-ordinating Bargaining Council, the registrar must- (a) (b) issue a certificate of registration that must specify the registered scope of the Public Service Co-ordinating Bargaining Council; and send the certificate and a certified copy of the constitution to the Public Service Co-ordinating Bargaining Council. - 3 Verify source ↗
Establishment of bargaining councils in sectors
AI-assisted research summary: This section sets out how bargaining councils for a sector are recognized and registered, and what the President, Commission, and registrar must do when a sector is designated.
3. Establishment of bargaining councils in sectors (1) The departmental and provincial chambers of the Public Service Bargaining Council are deemed to be bargaining councils established in terms of section 37(3)(a) of this Act, subject to any designation in terms of section 37(l) of this Act. (2) (3) (4) (5) The Education Labour Relations Council is deemed to be a bargaining council established in terms of section 37(3)(b) of this Act. The National Negotiating Forum is deemed to be a bargaining council established for a sector designated in terms of section 37(2). If the President designates a sector in terms of section 37(2), the President must inform the Commission and instruct it to convene a meeting of the representatives of the registered trade unions with members employed in the sector. The Commission must publish a notice in the Government Gazette inviting registered trade unions with members employed in the sector to attend the meeting. (6) The Commission must appoint a commissioner to chair the meeting and facilitate the conclusion of an agreement on- (a) the registered trade unions to be parties to the bargaining council; and (b) a constitution that meets the requirements of section 30, read with the changes required by the context. (7) If agreement is concluded, the registrar must- (a) (b) admit the registered trade unions as parties to the bargaining council; and if satisfied that the constitution meets the requirements of section 30, register the bargaining council by entering its name in the register of councils. (8) If no agreement is concluded on- (a) (b) the registered trade unions to be admitted, the Commission must decide which trade unions should be admitted; a constitution, the registrar, in accordance with the decisions made by the Commission in paragraph (a), must determine a constitution that meets the requirements of section 30, read with the changes required by the context. (9) The registrar must register the bargaining council for the sector by entering its name in the register of councils. (10) After registering the bargaining council, the registrar must- (a) issue a certificate of registration that must specify the registered scope of the bargaining council; and (b) send the certificate and a certified copy of the constitution to the bargaining council. SCHEDULE 2 GUIDELINES FOR CONSTITUTION OF WORKPLACE FORUM
Part
SCHEDULE 2
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Introduction
AI-assisted research summary: This section says the Schedule provides guidelines for setting up a workplace forum.
1. Introduction (1) (2) This Schedule contains guidelines for the constitution of a workplace, forum. It Is intended to guide representative trade unions that wish to establish a workplace forum, employers and commissioners. This Act places the highest value on the establishment of workplace forums by agreement between a representative trade union and an employer. The role of the commissioner is to facilitate an agreement establishing the structure and functions of a workplace forum. If agreement is not possible, either in whole or in part, the commissioner must refer to this Schedule, using its guidelines in a manner that best suits the particular workplace involved. (3) For convenience, the guidelines follow the sequence of the paragraphs in section 82 of this Act. - 2 Verify source ↗
Number of seats in workplace forums (section 82(1)(a))
AI-assisted research summary: The number of seats in a workplace forum should be set using a guideline that reflects workplace size and characteristics, with set seat numbers for employee ranges.
2. Number of seats in workplace forums (section 82(1)(a)) The formula to determine the number of seats in the workplace forum should reflect the size, nature, occupational structure and physical location of the workplace. A guideline may be- (a) (b) (c) (d) in a workplace in which 100 to 200 employees are employed, five members; in a workplace in which 201 to 600 employees are employed, eight members; in a workplace in which 601 to 1 000 employees are employed, IO members; in a workplace in which more than 1 000 employees are employed, 10 members for the first 1 000 employees, plus an additional member for every additional 500 employees, up to a maximum of 20 members. - 3 Verify source ↗
Distribution of seats to reflect occupational structure (section 82(1)(b))
AI-assisted research summary: The seat-allocation formula for the workplace forum must reflect the workplace’s occupational structure.
3. Distribution of seats to reflect occupational structure (section 82(1)(b)) The formula to determine the distribution of seats in the workplace forum must reflect the I occupational structure of the workplace. Example: There are 300 employees in a workplace. The occupational structure is as follows: 200 employees are manual employees; 50 are administrative and clerical employees; and 50 are supervisory, managerial and technical employees. The six seats may be distributed as follows4 seats for members to be elected from candidates nominated from among the manual employees I seat for members to be elected from candidates nominated from among the administrative and clerical employees I seat for members to be elected from candidates nominated from among the supervisory, managerial and technical employees. - 4 Verify source ↗
Elections (section 82(1)(c), (d), (g), (h), (i) and (j))
AI-assisted research summary: Workplace forum elections must use an appointed election officer, secret ballot voting, and set timelines for nominations and candidate checks.
4. Elections (section 82(1)(c), (d), (g), (h), (i) and (j)) (1) The constitution must include provisions concerning the appointment of an election officer. Example: (a) (b) (c) Every election or by-election in relation to a workplace forum must be conducted by an election officer appointed by agreement between the representative trade union and the employer. If the trade union and the employer cannot agree, the trade union may apply to the Commission to appoint an election officer. The Commission must appoint an election officer to conduct a by- election only if it is satisfied that the workplace forum cannot function adequately without a by-election. (2) The constitution must set out what the election officer should do and the procedure for an election. Example: (a) Thirty days before each election of members of the workplace forum, the election officer must- (i) prepare a list of all employees in the workplace; and (ii) call for nominations for members of the workplace, forum. (b) Any employee may be nominated as a candidate for election as a member of the workplace forum by- (i) any registered trade union with members employed in the work- place; (ii) a petition signed by not less than 20 per cent of the employees in the workplace or 100 employees, whichever number of employees is the smaller. (c) Any employee who is a member or has previously served as a member of a workplace forum is eligible for re-election. (d) Fourteen days before each election of members of the workplace forum, the election officer must- (i) confirm that the nominated candidates qualify for election; (ii) publish a list of all qualified candidates who have been properly nominated; and (iii) prepare a ballot for the election, listing the nominated candidates in alphabetical order by surname. (e) Voting must be by secret ballot. Every employee is entitled to vote in the election of the workplace forum during working hours at the employer's premises. (g) (h) Every employee in the workplace is entitled to cast a number of votes equal to the number of members to be elected to the workplace forum. Every employee may cast one or more of those votes in favour of any candidate. - 5 Verify source ↗
Terms of office (section 82(1)(k), (l) and (m))
AI-assisted research summary: Rules on how workplace forum members stay in office, resign, are removed, and how vacancies are filled.
5. Terms of office (section 82(1)(k), (l) and (m)) (1) (2) The constitution must provide that the members of a workplace forum remain in office until the first meeting of the newly elected workplace forum. The constitution must include provisions allowing the members to resign as well as provisions for the removal of members from office. Example: (a) A member of a workplace forum may resign by giving written notice to the chairperson. (b) A member of a workplace forum must vacate that office- (i) when the member's resignation takes effect; (ii) if the member is promoted to senior managerial status; (iii) if the member is transferred from the workplace; (iv) if the member's employment is terminated; (v) as a result of an award of a commissioner; or (c) (d) (vi) if the representative trade union that nominated a member removes the member. The representative trade union, the employer, or the workplace forum may apply to the Commission to have a member of the workplace forum removed from office on the grounds of gross dereliction of the duties of office. Twenty percent of the employees in the workplace may submit a signed petition to the Commission applying for the removal from office of a member of the workplace forum on the grounds of gross dereliction of the duties of office. (e) An application to remove a member of a workplace forum from office must be decided by arbitration under the auspices of the Commission. A by-election to fill any vacancy in the workplace forum must be conducted by an election officer. - 6 Verify source ↗
Meetings of workplace forum (section 82(1)(n))
AI-assisted research summary: The constitution must set rules for workplace forum meetings, including how the first meeting is convened, leadership elections, monthly meetings, quorum, and decision-making.
6. Meetings of workplace forum (section 82(1)(n)) The constitution must include provisions governing meetings of the workplace forum. Example: (a) The first meeting of a newly elected workplace forum must be convened by the election officer as soon as practicable after the election. (b) At that meeting the members of the workplace forum must elect from among their number a chairperson and a deputy chairperson. (c) The workplace forum must meet whenever necessary, but at least once a month. (d) A quorum of the workplace forum must be a majority of the members of the workplace forum holding office at any time. (e) A decision of the majority of the members of the workplace forum present at the meeting must be the decision of the workplace forum. The meetings between members of the workplace forum and the employees should be at least four times a year. Example 1: In a workplace that is a single place, the meetings with the employees should be with all the members of the workplace forum. Example 2: In a workplace that is geographically dispersed, the meetings with the employees need not be with all the members of the workplace forum, but with one or more members of the workplace forum. - 7 Verify source ↗
Time off for members of workplace forum (section 82(1)(p))
AI-assisted research summary: Members of a workplace forum are entitled to reasonable paid time off for forum duties and relevant training, and the employer must pay reasonable training costs.
7. Time off for members of workplace forum (section 82(1)(p)) The constitution must include provisions governing time off for members to perform their functions. Example: (a) A member of a workplace forum is entitled to take reasonable time off during working hours with pay for the purpose of (i) performing the functions and duties of a member; and (ii) undergoing training relevant to the performance of those functions and duties. (b) (c) The right to time off is subject to conditions that are reasonable, so as to prevent the undue disruption of work. The costs associated with the training must be paid by the employer, if those costs are reasonable, having regard to the size and capabilities of the employer. - 8 Verify source ↗
Facilities to be provided to workplace forum (section 82(1)(r))
AI-assisted research summary: Employers must provide adequate facilities to a workplace forum so it can do its work.
8. Facilities to be provided to workplace forum (section 82(1)(r)) The constitution must require the employer to provide adequate facilities to the workplace forum to perform its functions. Example: (a) The employer must provide, at its cost- (i) (ii) fees, facilities and materials that are necessary for the conduct of elections and by-elections of the workplace forum; and administrative and secretarial facilities that are appropriate to enable the members of the workplace forum to perform their functions and duties. (b) These facilities must include, but are not limited to, a room in which the workplace forum may meet and access to a telephone. (c) The costs incurred by the employer in complying with the provisions of paragraphs (a) and (b) must be reasonable, having regard to the size and capabilities of the employer. - 9 Verify source ↗
Experts (section 82(1)(t))
AI-assisted research summary: Workplace forums may ask experts to help them, and experts must avoid conflicts of interest between forums.
9. Experts (section 82(1)(t)) The constitution may provide for the use of experts. Example: (a) A workplace forum may ask experts to assist it in the performance of any of its functions. (b) An expert must ensure that there is no conflict of interest between the assistance given to one workplace forum and another. (c) An expert may attend any meeting of the workplace forum and, at its request, address any meetings of the workplace forum including a meeting with the employer or the employees. (d) An expert is entitled to any information to which the workplace forum is entitled and may inspect and copy any document. - 10 Verify source ↗
Establishment of coordinating and subsidiary workplace forums (section
AI-assisted research summary: This provision lets a constitution set up coordinating and subsidiary workplace forums in certain workplaces, and it requires the Minister to तय? determine governing-body remuneration and appointment terms; it also allows resignation and removal of governing-body members in specified cases.
10. Establishment of coordinating and subsidiary workplace forums (section 82(2)(b)) (1) Where an employer carries on or conducts two or more operations that are independent of each other by reason of their size, function or organisation, the constitution may provide for the establishment of a coordinating workplace forum with jurisdiction over those matters mentioned in sections 84 and 86 that affect the employees generally and for the establishment of a subsidiary workplace forum in each of the workplaces with jurisdiction over those matters that affect only the employees in that workplace. (2) Where the employer has a workplace that is geographically dispersed and there are matters that are of local interest rather than general interest, the constitution may establish a coordinating workplace forum with general jurisdiction and subsidiary workplace forums with local interest jurisdiction. Example: A bank with a head office may have many branches dispersed around the country. If the branches are not regarded as separate workplaces, the bank may have one workplace forum for all its employees or the constitution may allow for the establishment of a coordinating workplace forum at head office level and in certain or all of the branches allow the establishment of subsidiary workplace forums that will deal with matters that affect only the employees in those branches. SCHEDULE 3 COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION 1. Remuneration and allowances of members of governing body. The Minister, after consulting the Minister of Finance, must determine the remuneration and allowances and any other terms and conditions of appointment of members of the governing body. 2. Resignation and removal from office of member of governing body (1) A member of the governing body may resign by giving notice to the governing body. (2) The Minister, acting on the advice of NEDLAC, may remove a member of the governing body from office for (a) serious misconduct; (b) incapacity; or (c) being absent from three consecutive meetings of the governing body without good cause or prior permission from the chairperson.
Part
SCHEDULE 3
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Vacancies in governing body
AI-assisted research summary: If a governing body seat becomes vacant, the Minister must fill it as soon as practicable.
3. Vacancies in governing body (1) A vacancy in the governing body exists whenever (a) a member's term of office ends; (b) a member's resignation takes effect; (c) a member is removed from office; or (d) a member dies. (2) The Minister must fill a vacancy in the governing body as soon as is practicable. In the meantime, the Commission's proceedings and decisions continue to be valid. (3) If a vacancy- (a) is owing to the end of a member's term of office, the Minister may reappoint the member, or appoint another person nominated by NEDLAC in accordance with section 116(2) and (3); (b) is owing to any other cause, the Minister must appoint another person nominated by NEDLAC in accordance with section 116(2) and (3) to replace the member and serve the unexpired portion of the replaced member's term of office. - 4 Verify source ↗
Proceedings of governing body
AI-assisted research summary: The governing body must set its meeting procedures, have a quorum of three members, and follow special rules if the chairperson is absent or certain represented members are missing.
4. Proceedings of governing body (1) The governing body must determine procedures for its meetings. (2) A quorum for a meeting of the governing body is three members of the governing body. The quorum must include- (a) (b) (c) one member who was nominated by those voting members of NEDLAC who represent organised business; one member who was nominated by those voting members of NEDLAC who represent organised labour; and one member who was nominated by those voting members of NEDLAC who represent the State. (3) Despite subitem (2), a meeting of the governing body may be held in the absence of any member representing organised business or organised labour or the State, if those members have agreed to the meeting proceeding in the absence of that member and to the issues which may be dealt with in the absence of that member. (4) If the chairperson is absent from a meeting of the governing body, the members present must elect one of themselves to preside at that meeting, and at that meeting that member may exercise or perform any function of the chairperson. (5) A defect or error in the appointment of a member of the Commission does not affect the validity of the Commission's proceedings or decisions. - 5 Verify source ↗
Director of Commission
AI-assisted research summary: The director may resign by written notice, the governing body may remove the director for listed reasons, and the governing body must appoint a new director as soon as practicable after a vacancy arises.
5. Director of Commission (1) The director may resign by giving written notice to the governing body. (2) The governing body may remove the director from office for- (a) serious misconduct; (b) incapacity; (c) a material violation of the Commission's code of conduct; or (d) being absent from three consecutive meetings of the governing body without good cause or prior permission from the chairperson. (3) A vacancy in the office of director exists whenever- (a) the director reaches the age of 65; (b) the director's resignation takes effect; (c) the governing body removes the director from office; or (d) the director dies. (4) The governing body must appoint a director in accordance with the provisions of section II 8 as soon as practicable after the office of the director becomes vacant. - 6 Verify source ↗
Bank account. The governing body must open and maintain an account in the
AI-assisted research summary: The governing body must open and use a Commission bank account, and must deposit Commission money into it and make Commission payments from it.
6. Bank account. The governing body must open and maintain an account in the name of the Commission with a bank registered in the Republic, or with another registered financial institution approved by the Minister of Finance and, subject to item 7, must (a) deposit to that account any money that the Commission receives; and (b) make all payments on behalf of the Commission from that account. - 7 Verify source ↗
Investment of surplus money. The governing body may resolve to invest any
AI-assisted research summary: The governing body may choose to invest Commission money that is not immediately needed for current spending or contingencies.
7. Investment of surplus money. The governing body may resolve to invest any money that the Commission does not immediately require to meet current expenditure or contingencies (a) (b) on call or short-term deposit with any bank that meets the requirements stated in item 6; if the Minister, with the concurrence of the Minister of Finance, gives written approval of the duration and other terms of the investment, in an investment account with the Corporation for Public Deposits. - 8 Verify source ↗
Accounting and auditing. The Commission must, to the standards of generally
AI-assisted research summary: The Commission must keep accounting records, prepare annual financial statements, and arrange each year for the Auditor-General to audit them.
8. Accounting and auditing. The Commission must, to the standards of generally accepted accounting practice, principles and procedures (a) (b) keep books and records of its income, expenditure, assets and liabilities; as soon as practicable after the end of each financial year, prepare financial statements, including at least a statement of income and expenditure for the previous financial year and a balance sheet showing its assets, liabilities and financial position as at the end of the previous financial year-, and (c) each year, arrange for the Auditor-General to audit its books and records of account and its financial statements. - 9 Verify source ↗
Annual report
AI-assisted research summary: The Commission must give the Minister an annual report after each financial year, and the Minister must table it in Parliament within 14 days, or within 14 days after the next session starts if Parliament is not sitting.
9. Annual report (1) As soon as practicable after the end of each financial year, the Commission must provide the Minister with a report concerning the activities and the financial position of the Commission during the previous financial year. (2) The Minister must table the Commission's annual report in Parliament within 14 days of receiving it from the Commission, but if Parliament is not in session at that time, the Minister must table the report within 14 days of the beginning of the next session of Parliament. SCHEDULE 4 DISPUTE RESOLUTION: FLOW DIAGRAMS This Schedule contains flow diagrams that provide guidelines to the procedures for the resolution of some of the more important disputes that may arise under this Act. This Schedule is not part of this Act. It does not have the force of law. The flow diagrams are intended only to provide assistance to those parties who may become involved in a dispute. The flow diagrams do not indicate the rights that parties may have to seek urgent interim relief, nor do they indicate the right of review or appeal that parties have to the Labour Court or the Labour Appeal Court in certain cases. This Act sets out the circumstances in which these rights are available. Awards and determinations by arbitrators are enforceable ultimately by the Labour Court. FLOW DIAGRAMS I TO 14 [Currently unavailable] SCHEDULE 5 AMENDMENT OF LAWS
Part
SCHEDULE 5
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Amendment of section 1 of Basic Conditions of Employment Act
AI-assisted research summary: This section amends section 1 of the Basic Conditions of Employment Act to say that it does not affect matters already regulated by certain listed labour laws, but it applies where this Act covers a matter those laws do not regulate.
1. Amendment of section 1 of Basic Conditions of Employment Act Section 1 of the Basic Conditions of Employment Act is hereby amended by the substitution for subsection (3) of the following subsection - "(3) The Mines and Works Act, 1956 (Act No. 27 of 1956), the Wage Act, 1957 (Act No. 5 of 1957), the Manpower Training Act, 1981 (Act No. 56 of 1981) and the Labour Relations Act, 1995, as well as any matter regulated under any of them in respect of an employee, shall not be affected by this Act, but this Act shall apply in respect of any such employee in so far as a provision thereof provides for any matter which is not regulated by or under any of the said Acts in respect of such employee.". - 2 Verify source ↗
Amendment of section 35 of Occupational Health and Safety Act, 1993
AI-assisted research summary: This section amends section 35 so that appeals under subsection (3) must be lodged with the registrar of the Labour Court within 60 days after the chief inspector’s decision.
2. Amendment of section 35 of Occupational Health and Safety Act, 1993 Section 35 of the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993), is hereby amended- (a) by the substitution for the words "Industrial court", wherever they occur in subsection (3), of the words "Labour Court"; and (b) by the substitution for subsection (4) of the following subsection- "(4) Any person who wishes to appeal in terms of subsection (3), shall within 60 days after the chief inspector's decision was given, lodge the appeal with the registrar of the Labour Court in accordance with the Labour Relations Act, 1995, and the rules of the Labour Court. ". - 3 Verify source ↗
Amendment of section 2 of Pension Funds Act, 1956
AI-assisted research summary: This section exempts certain pension funds from the Pension Funds Act, but requires those funds to provide statistical information to the Registrar when requested by the Minister.
3. Amendment of section 2 of Pension Funds Act, 1956 Section 2 of the Pension Funds Act, 1956 (Act No. 24 of 1956), is hereby amended by the substitution for subsection (1) of the following subsection: (1) The provisions of this Act shall not apply in relation to any pension fund which has been established or continued in terms of a collective agreement concluded in a council in terms of the Labour Relations Act 1995 (Act No. 66 of 1995), before the Labour Relations Amendment Act, 1998, has come into operation, nor in relation to a pension fund so established or continued and which, in terms of a collective agreement concluded in that council after the coming into operation of the labour Relations Amendment Act, 1998, is continued or further continued (as the case may be). However, such a pension fund shall from time to time furnish the Registrar with such statistical information as may be requested by the Minister. - 4 Verify source ↗
Amendment of section 2 of Medical Schemes Act, 1967
AI-assisted research summary: The Minister may declare certain medical-scheme provisions applicable to a particular medical scheme, but only at the Minister of Labour’s request and by notice in the Gazette.
4. Amendment of section 2 of Medical Schemes Act, 1967 Section 2(1) of the Medical Schemes Act, 1967 (Act No. 72 of 1967), is hereby amended by the substitution for paragraph (g) of the following paragraph: (f) shall, subject to the provisions of subsection (2A) apply with reference to - (i) (ii) a particular medical scheme established or continued in terms of a collective agreement concluded in a council in terms of the Labour Relations Act, 1995 (Act No. 66 of 1995), before the Labour Relations Amendment Act, 1998, has come into operation; a particular medical scheme which was established or continued in the circumstances mentioned in subparagraph (i) and which, in terms of a collective agreement so concluded in that council after the coming into operation of the Labour Relations Amendment Act, 1998, is continued or further continued (as the case may be), only if the Minister, at the request of the Minister of Labour and by notice in the Gazette, has declared the said provisions to be applicable with reference to such a particular medical scheme; - 5 Verify source ↗
Amendment of section 1 of Insurance Act, 1943
AI-assisted research summary: This section changes two definitions in other Acts: one for insurance business and one for friendly societies.
5. Amendment of section 1 of Insurance Act, 1943 Section 1(1) of the Insurance Act, 1943 (Act No. 27 of 1943), is hereby amended by the substitution for paragraph (d) of the definition of ‘insurance business’ of the following paragraph: ‘(d) any transaction under the Labour Relations Act, 1995 (Act No. 66 of 1995);’ 6. Amendment of section 2 of Friendly Societies Act, 1956 Section 2(1) of the Friendly Societies Act, 1956 (Act No. 25 of 1956), is hereby amended by the substitution for paragraph (g) of the following paragraph: ‘(g) the relief or maintenance of members, or any group of members, when unemployed or in distressed circumstances, otherwise than in consequence of the existence of a strike or lockout as defined in section 213 of the Labour Relations Act, 1995 (Act No. 66 of 1995);’ - 7 Verify source ↗
Amendment of section 3 of Friendly Societies Act, 1956
AI-assisted research summary: A friendly society must provide the registrar with statistical information when requested by the Minister, and only societies established or continued under a relevant collective agreement are covered by the amended wording.
7. Amendment of section 3 of Friendly Societies Act, 1956 Section 3(1) of the Friendly Societies Act, 1956, is hereby amended by the substitution for paragraph (a) of the following paragraph: ‘(a) which has been established or continued in terms of a collective agreement concluded in a council in terms of the Labour Relations Act, 1995. However, such a friendly society shall from time to time furnish the registrar with such statistical information as may be requested by the Minister;’ Schedule 6 Laws Repealed By Section 212 Number and year of law Short title Extent of repeal Act No.28 of 1956 Labour Relations Act, 1956 The whole Act No.41 of 1959 Industrial Conciliation Amendment Act, 1959 The whole Act No.18 of 1961 Industrial Conciliation Amendment Act, 1961 The whole Act No.43 of 1966 Industrial Conciliation Amendment Act, 1966 The whole Act No.61 of 1966 Industrial Conciliation Further Amendment Act, 1966 The whole Act No.104 of 1967 Industrial Conciliation Amendment Act, 1967 The whole Act No.21 of 1970 Industrial Conciliation Amendment Act, 1970 The whole Act No.94 of 1979 Industrial Conciliation Amendment Act, 1979 The whole Act No.95 of 1980 Industrial Conciliation Amendment Act, 1980 The whole Act No.57 of 1981 Labour Relations Amendment Act, 1981 The whole Act No.51 of 1982 Labour Relations Amendment Act, 1982 The whole Act No. 2 of 1983 Labour Relations Amendment Act, 1983 The whole Act No.81 of 1984 Labour Relations Amendment Act, 1984 The whole Act No.83 of 1988 Labour Relations Amendment Act, 1988 The whole Act No. 9 of 1991 Labour Relations Amendment Act, 1991 The whole Act No.129 of 1993 General Law Third Amendment Act, 1993 Section 9 only Act No.146 of 1993 Education Labour Relations Act, 1993 The whole Act No.147 of 1993 Agricultural Labour Act, 1993 Chapter I only Act No.50 of 1994 Agricultural Labour Amendment Act, 1994 Section I only Proclamation No.105 Public Service Labour Relations Act, 1994 The whole of 1994 Proclamation No.128 Education Labour Relations Act, Amendment The whole except of 1994 Proclamation, 1994 section 6 Proclamation No.134 Sections 1 and 2 only of 1994 South African Police Service Labour Relations Regulations, The whole 1995 SCHEDULE 7 TRANSITIONAL ARRANGEMENTS PART A – DEFINITIONS FOR THIS SCHEDULE Definitions for this Schedule In this Schedule, unless the context otherwise indicates - "Agricultural Labour Act" means the Agricultural Labour Act, 1993 (Act No. 147 of 1993); "Education Labour Relations Act" means the Education Labour Relations Act, 1993 (Act No. 146 of 1993); "Education Labour Relations Council" means the council established by section 6(1) of the Education Labour Relations Act; "Labour Relations Act" means the Labour Relations Act, 1956 (Act No. 28 of 1956); "labour relations laws" means the Labour Relations Act, the Education Labour Relations Act, Chapter I of the Agricultural Labour Act and the Public Service Labour Relations Act; "National Negotiating Forum" means the National Negotiating Forum established for the South African Police Service by the South African Police Service Labour Relations Regulations, 1995; "pending" means pending immediately before this Act comes into operation; "public service" does not include the education sector; "Public Service Bargaining Council" means the bargaining council referred to in section 5(1) of the Public Service Labour Relations Act; "Public Service Labour Relations Act" means the Public Service Labour Relations Act, 1994 (promulgated by Proclamation No. 105 of 1994); "registrar" means the registrar of labour relations designated in terms of section 108; and "trade union" includes an employee organisation. PART B – UNFAIR LABOUR PRACTICES PART C-PROVISIONS CONCERNING EXISTING TRADE UNIONS, EMPLOYERS' ORGANISATIONS, INDUSTRIAL COUNCILS AND CONCILIATION BOARDS 5. Existing registered trade unions and employers' organisations (1) A trade union or employers' organisation registered or deemed to be registered in terms of the labour relations laws immediately before the commencement of this Act will be deemed to be a registered trade union or registered employers' organisation under this Act and continues to be a body corporate. (2) As soon as practicable after the commencement of this Act, the registrar must enter- (a) the name of the trade union in the register of trade unions; (b) the name of the employers' organisation in the register of employers' organisations. (3) A trade union or employers' organisation whose name has been entered in the appropriate register must be issued with a new certificate of registration. (4) (5) (6) If any provision of the constitution of the trade union or employers' organisation does not comply with the requirements of section 95, the registrar may direct that trade union or employers' organisation, in writing, to rectify its constitution and submit it to the registrar within a period specified in the direction, which period may not be shorter than three months. If a trade union or employers' organisation falls to comply with a direction issued to it in terms of subitem (4), the registrar must notify the trade union or employers' organisation that cancellation of its registration is being considered because of the failure, and give the trade union or employers' organisation an opportunity to show cause why its registration should not be cancelled within 30 days of the notice. If, when the 30-day period expires, the relevant trade union or employers' organisation has not shown cause why its registration should not be cancelled, the registrar must cancel the registration of that trade union or employers' organisation by removing its name from the appropriate register or take other lesser steps that are appropriate and not inconsistent with this Act. (7) The registrar must notify the relevant trade union or employers' organisation whether the registration of the trade union or employers' organisation has been cancelled. (8) Cancellation in terms of subitem (6) takes effect- (a) (b) if the trade union or the employers' organisation has failed, within the time contemplated in section 111 (3), to appeal to the Labour Court against the cancellation, when that period expires; or if the trade union or the employers' organisation has lodged an appeal, when the decision of the registrar has been confirmed by the Labour Court.
Part
PART C-PROVISIONS CONCERNING EXISTING TRADE UNIONS,
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Pending applications by trade unions or employers' organisations for
AI-assisted research summary: Pending applications for union or employers' organisation registration changes must be handled by the registrar as if made under this Act.
6. Pending applications by trade unions or employers' organisations for registration, variation of scope, alteration of constitution or name (1) Any pending application in terms of the labour relations laws for the registration, variation of scope of registration or alteration of the constitution or name of a trade union or an employers' organisation must be dealt with by the registrar as if the application had been made in terms of this Act. (2) (3) The registrar appointed in terms of the Public Service Labour Relations Act and the secretary of the Education Labour Relations Council appointed in terms of the Education Labour Relations Act must forward any pending application referred to in subitem (1) to the registrar. In any pending appeal in terms of section 16 of the Labour Relations Act or in terms of section 11 of the Education Labour Relations Act or in terms of section 11 of the Public Service Labour Relations Act, the Minister or the registrar of the industrial court or the registrar of the High Court, as the case may be, must refer the matter back to the registrar who must deal with the application as if it were an application made in terms of this Act. (4) When dealing with any application referred to in subitem (1) or (2), the registrar- (a) may condone any technical non-compliance with the provisions of this Act; and (b) may require the applicant to amend its application within 60 days in order to comply with the provisions of this Act. - 7 Verify source ↗
Industrial councils
AI-assisted research summary: This section treats certain existing industrial councils as bargaining councils, requires the registrar to register them, and gives the registrar powers to require constitution changes and cancel registration if the council does not comply.
7. Industrial councils (1) An industrial council registered or deemed to be registered in terms of the Labour Relations Act immediately before the commencement of this Act will be deemed to be a bargaining council under this Act and continues to be a body corporate. (2) As soon as practicable after the commencement of this Act, the registrar must enter the name of the bargaining council in the register of councils. (3) A bargaining council whose name has been entered in the register of councils must be issued with a certificate of registration. (4) (5) (6) If any provision of the constitution of a bargaining council does not comply with the requirements of section 30, the registrar may direct the bargaining council, in writing, to rectify its constitution and submit it to the registrar within a period specified in the direction, which period may not be shorter than three months. If a bargaining council fails to comply with a direction issued to it in terms of subitem (4), the registrar must notify the bargaining council that cancellation of its registration is being considered because of the failure, and give the bargaining council an opportunity to show cause why its registration should not be cancelled within 30 days of the notice. If, when the 30-day period expires, the bargaining council has not shown cause why its registration should not be cancelled, the registrar must cancel the registration of that bargaining council by removing its name from the register of councils or take other lesser steps that are appropriate and not inconsistent with this Act. (7) The registrar must notify the bargaining council whether the registration of the bargaining council has been cancelled. (8) Cancellation in terms of subitem (6) takes effect- (a) if the bargaining council has failed, within the time contemplated in section 111(3), to appeal to the Labour Court against the cancellation, when that period expires; or (b) if the bargaining council has lodged an appeal, when the decision of the registrar has been confirmed by the Labour Court. - 8 Verify source ↗
Pending applications by industrial councils for registration and variation of
AI-assisted research summary: Pending industrial council registration or scope-variation applications must be handled under this Act, and the registrar has power to require amendments within 60 days or excuse technical non-compliance.
8. Pending applications by industrial councils for registration and variation of scope (1) Any pending application for the registration or the variation of the scope of registration of an industrial council in terms of the Labour Relations Act must be dealt with as if it were an application made in terms of this Act. (2) In any pending appeal in terms of section 16 of the Labour Relations Act against the refusal to register or vary the scope an industrial council, the Minister or the registrar of the Supreme [High] Court, as the case may be, must refer the matter to the registrar of labour relations who must consider the application anew as if it were an application for registration made in terms of this Act. (3) When dealing with the application referred to in subitem (1) or (2), the registrar may- (a) require the applicant to amend its application within 60 days in order to comply with the provisions of this Act; and (b) condone technical non-compliance with the provisions of this Act. - 8A Verify source ↗
Pending enquiries by industrial registrar
AI-assisted research summary: Pending inquiries by the industrial registrar must continue after this Act starts and be dealt with further under the Labour Relations Act as if it had not been repealed.
8A. Pending enquiries by industrial registrar Any pending inquiry conducted by the industrial registrar under section 12(3) of the Labour Relations Act must, after the commencement of this Act, be continued and dealt with further by the same person in terms of the Labour Relations Act as if it had not been repealed. - 9 Verify source ↗
Pending applications by industrial councils for alteration of constitution or
AI-assisted research summary: Item 6 applies, with context-based changes, to pending applications to alter an industrial council’s constitution or name under the Labour Relations Act.
9. Pending applications by industrial councils for alteration of constitution or name The provisions in item 6 apply, read with the changes required by the context, to any pending application for the alteration of the constitution or the name of an industrial council in terms of the Labour Relations Act. - 10 Verify source ↗
Pending applications for admission of parties to industrial councils
AI-assisted research summary: Pending applications and some appeals about admission to industrial councils must be handled under this Act.
10. Pending applications for admission of parties to industrial councils (1) Any pending application for admission of a party to an industrial council in terms of section 21 A of the Labour Relations Act must be dealt with by the industrial council as if it were an application made in terms of this Act. (2) Any pending appeal before the industrial court against a decision of an industrial council in terms of section 21 A of the Labour Relations Act must be with by council in the industrial court as if the application had been made for admission as a party to a bargaining council in terms of this Act. (3) An appeal against a decision of an industrial council as contemplated in section 21 A of the Labour Relations Act may, despite the repeal of that Act, be instituted after the commencement of this Act, and must be heard by the Labour Court and dealt with as if the application for admission had been made in terms of this Act. - 11 Verify source ↗
Pending applications to wind up and cancel registration of trade unions,
AI-assisted research summary: The registrar must handle pending applications to wind up or cancel the registration of certain labour organisations as if the repeal of the labour relations laws had not happened.
11. Pending applications to wind up and cancel registration of trade unions, employers' organisations and industrial councils Any pending application to wind up or to cancel the registration of a trade union, employers' organisation or industrial council registered in terms of any labour relations law must be dealt with by the registrar as if the labour relations laws had not been repealed. - 12 Verify source ↗
Existing agreements and awards of industrial councils and conciliation
AI-assisted research summary: Older labour-related agreements, awards, orders, and some exemptions keep operating for limited periods, and certain applications must still be handled under the repealed Labour Relations Act rules.
12. Existing agreements and awards of industrial councils and conciliation boards (1)(a) Any agreement promulgated in terms of section 48, any award binding in terms of sections 49 and 50, and any order made in terms of section 51A, of the Labour Relations Act and in force immediately before the commencement of this Act, remains in force and enforceable, subject to paragraphs (b) and (c) of this subitem, and to subitem (5B), for a period of 18 months after the commencement of this Act or until the expiry of that agreement, award or order, whichever is the shorter period, in all respects, as if the Labour Relations Act had not been repealed. (b) On the request of any Council deemed by item 7(1) to be a bargaining council, an agreement referred to in paragraph (a) that had been concluded in that council - (i) if it expires before the end of the 18-month period referred to in paragraph (a) may be extended or declared effective in accordance with the provisions of subsection (4)(a) of section 48 of the Labour Relations Act, for a period ending before or on the expiry of that 18-month period, which provisions, as well as any other provisions of the Labour Relations Act relating to the industrial council agreements extended or declared effective in terms of that subsection, will apply in all respects, read with the changes required by the context, in relation to any agreement extended or declared effective on the authority of this subparagraph as if those various provisions had not been repealed. However, the Minister may not on the authority of this subparagraph declare an agreement to be effective if it expires after 31 March 1997; (ii) may be cancelled, in whole or in part, in accordance with the provisions of subsection (5) of section 48 of the Labour Relations Act, which provisions, as well as any other provisions of the Labour Relations Act relating to industrial council agreements wholly or partly cancelled in terms of that subsection, will apply in all respects, read with the changes required by the context, in relation to any agreement wholly or partly cancelled on the authority of this subparagraph as if those various provisions had not been repealed. (c) An agreement referred to in paragraph (a) that had been concluded by parties to a conciliation board – (i) if it expires before the end of the 18-month period referred to in paragraph (a), may, at the request of the parties that were represented on that conciliation board at the time of the conclusion of that agreement, be extended in accordance with, and in the manner provided for in, paragraph (b)(i) which will apply, read with the changes required by the context, in relation to the extension of agreements of that nature; (ii) may, at the request of those parties, be cancelled, in whole or in part, in accordance with paragraph (b)(ii), which will apply, read with the changes required by the context, in relation to the cancellation of agreements of that nature. (1A)(a) An agreement referred to in subitem (1) that had been concluded in a council deemed by item 7(1) to be a bargaining council, may be amended or amplified by a further agreement concluded in that bargaining council and promulgated in accordance with the provisions of subsections (1) and (2) of section 48 of the Labour Relations Act, which provisions will apply, in all respects, read with the changes required by the context, for the purposes of this paragraph as if they had not been repealed. (b) Subitems (1)(b), (3) and (8)(a) will apply to any further agreement concluded and promulgated on the authority of paragraph (a) of this subitem, in all respects, as if it were an agreement referred to in subitem (1)(a). (2) An agreement promulgated in terms of section 12 of the Education Labour Relations Act and in force immediately before the commencement of this Act remains in force for a period of 18 months after the commencement of this Act or until the expiry of that agreement, whichever is the shorter period, as if the provisions of that Act had not been repealed. (3) Despite the provisions of subitem (1), an agreement referred to in section 24(l)(x) of the Labour Relations Act that is in force immediately before the commencement of this Act will be deemed to be a closed shop agreement concluded in compliance with section 26 of this Act except that- (a) the requirements in section 26(3)(d) and section 98(2)(b)(ii) become applicable at the commencement of the next financial year of the trade union party to the agreement; and (b) the commencement date of the closed shop agreement shall be deemed to be the commencement date of this Act. (4) Any pending request for the promulgation of an agreement in terms of section 48 of the Labour Relations Act must be dealt with as if the Labour Relations Act had not been repealed. (5) Any request made before the expiry of six months after the commencement of this Act for the promulgation of an agreement entered into before the commencement of this Act must be dealt with as if the Labour Relations Act had not been repealed. (5A) Any exemption from an agreement or award, or from an order, contemplated in subitem (1), that was in force immediately before the commencement of this Act, will remain in force for a period of 18 months after the commencement of this Act or until the period for which the exemption has been granted, has expired, whichever is the shorter period, as if the Labour Relations Act had not been repealed. (5B) Any one or more of or all the provisions of an order referred to in subitem (1)(a) may be cancelled, suspended or amended by the Minister in accordance with the provisions of section 51A(4)(a) if the Labour Relations Act, which provisions will apply for the purposes of this subitem as if they had not been repealed. (6) Any pending application for an exemption from all or any of the provisions of any agreement or award remaining in force in terms of subitem (1), or for an exemption from any provision of an order remaining in force in terms of that subitem, must - (a) (b) in the case if that agreement or award, be dealt with in terms of the provisions of section 51 and, whenever applicable, any other relevant provisions, of the Labour Relations Act, in all respects, read with the changes required by the context, as if the provisions in question had not been repealed; in the case of that order, be dealt with in terms of the provisions of section 51A and whenever applicable, any other relevant provisions of the Labour Relations Act, as if the provisions in question had not been repealed. (7) An exclusion granted in terms of section 51(12) of the Labour Relations Act will remain in force until it is withdrawn by the Minister. (8) After the commencement of this Act and despite the repeal of the Labour Relations Act – (a) (b) any person or class of persons bound by an agreement or award remaining in force in terms of subitem (1) may apply, in accordance with the provisions of section 51 of the Labour Relations Act, for an exemption from all or any of the provisions of that agreement or award (as the case may be). Any application so made must be dealt with in terms of the provisions of section 51 and, whenever applicable, any other relevant provisions of the Labour Relations Act, in all respects, as if the provisions in question had not been repealed; any person, bound by an order remaining in force in terms of subitem (1), may apply, in accordance with the provisions of section 51A of the Labour Relations Act, for an exemption from any provision of that order. Any application so made must be dealt with in terms of the provisions of section 51A and, whenever applicable, any other relevant provisions of the Labour Relations Act, in all respects, as if the provisions in question had not been repealed. - 12A Verify source ↗
Designated agents
AI-assisted research summary: Certain pre-commencement designated agents are treated as appointed under section 33, and their appointment certificates are treated as issued under section 33(2).
12A. Designated agents (1) Any person appointed under section 62 of the Labour Relations Act as a designated agent of an industrial council deemed by item 7(1) to be a bargaining council, who holds that office immediately before the commencement of this Act, will be deemed to be a designated agent appointed for the bargaining council under section 33 of this Act. (2) The certificate of appointment that had been issued in terms of section 62(2) of the Labour Relations Act to that designated agent, will be deemed to have been issued in terms of section 33(2) of this Act. - 13 Verify source ↗
Existing agreements including recognition agreements
AI-assisted research summary: This section defines what counts as an agreement, gives certain recognised trade unions organisational rights, requires parties to try to agree a dispute procedure if none was provided, and says some existing agreements are not binding unless they comply.
13. Existing agreements including recognition agreements (1) For the purposes of this section, an agreement- (a) includes a recognition agreement; (b) excludes an agreement promulgated in terms of section 48 of the Labour Relations Act; (c) means an agreement about terms and conditions of employment or any other matter of mutual interest entered into between one or more registered trade unions, on the one hand, and on the other hand- (i) one or more employers; (ii) one or more registered employers' organisations; or (iii) one or more employers and one or more registered employers' organisations. (2) Any agreement that was in force immediately before the commencement of this Act is deemed to be a collective agreement concluded in terms of this Act. (3) Any registered trade union that is party to an agreement referred to in subitems (1) and (2) in terms of which that trade union was recognised for the purposes of collective bargaining is entitled to the organisational rights conferred by sections I I to 16 of Chapter III and in respect of employees that it represents in terms of the agreement, for so long as the trade union remains recognised in terms of the agreement as the collective bargaining agent of those employees. (4) If the parties to an agreement referred to in subsection (1) or (2) have not provided for a procedure to resolve any dispute about the interpretation or application of the agreement as contemplated in section 24(l), the parties to the agreement must attempt to agree a procedure as soon as practicable after the commencement of this Act. (5) An existing non-statutory agency shop or closed shop agreement is not binding unless the agreement complies with the provisions of this item. Sections 25 and 26 of this Act become effective 180 days after the commencement of this item. PART D-MATTERS CONCERNING PUBLIC SERVICE
Part
PART D-MATTERS CONCERNING PUBLIC SERVICE
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Public Service Bargaining Council
AI-assisted research summary: The chambers must send signed constitutions to the registrar within 30 days after commencement, and the registrar can require corrections if a constitution does not meet section 30.
14. Public Service Bargaining Council (1) (2) The Public Service Bargaining Council will continue to exist, subject to item 20. The departmental and provincial chambers of the Public Service Bargaining Council will continue to exist, subject to item 20. (3) Within 30 days after the commencement of this Act, the chambers of the Public Service Bargaining Council must furnish the registrar with copies of their constitutions signed by their authorised representatives. (4) The constitutions of the chambers of the Public Service Bargaining Council, are deemed to be in compliance with section 30. However, where any provision of the constitution of a chamber does not comply with the requirements of section 30, the registrar may direct the chamber to rectify its constitution and re-submit the rectified constitution within the period specified in the direction, which period may not be shorter than three months. (5) If a chamber fails to comply with a direction issued to it in terms of subitem (5), the registrar must- (a) determine the amendments to the constitution in order to meet the requirements of section 30; and (b) send a certified copy of the constitution to the chamber. (6) A chamber of the Public Service Bargaining Council must deal with any pending application for admission of a party to it in terms of section 10 of the Public Service Labour Relations Act as if the application had been made in terms of this Act. (7) Any pending appeal before the industrial court or an arbitrator against a decision of the Public Service Bargaining Council in terms of section 10 of the Public Service Labour Relations Act must, despite the repeal of any of the labour relations laws, be dealt with by the industrial court or arbitrator as if the application had been made in terms of this Act. (8) Despite the repeal of the Public Service Labour Relations Act, an appeal in terms of section 10 of that Act against a decision of a chamber of the Public Service Bargaining Council may be instituted after the commencement of this Act and must be heard by the Labour Court and dealt with as if the application had been made in terms of this Act. - 15 Verify source ↗
Collective agreements in the public service
AI-assisted research summary: This section makes specified provisions of the Public Service Labour Relations Act operate as a collective agreement binding on the State, the relevant bargaining council parties, and all public service employees.
15. Collective agreements in the public service The following provisions, read with the changes required by the context, of the Public Service Labour Relations Act, despite the repeal of that Act, will have the effect and status of a collective agreement binding on the State, the parties to the chambers of the Public Service Bargaining Council and all employees in the public service- (a) section I for the purposes of this item unless the context otherwise indicates; (b) section 4(10); (c) section 5(2), (3), (4)(a) and (5); (d) section 7; (e) section 8, except that the reference to section 5(l) should be a reference to item 14(l); (f) section 9(3); (g) section 10(4) and (5); (h) section 12; (i) section 13, except that the reference to agreements should be a reference to collective agreements including the collective agreement contemplated in this item; (j) sections 14, 15 and 16(2); (k) section 17, except that the following subsection must be substituted for subsection (4)(b)- "If the application of a trade union for recognition is refused, the trade union, within 90 days of the notice of the refusal, may refer the dispute to arbitration."; and (l) section 18, except that- (i) the following subsection must be substituted for sub- section (10)(a)- "An employee who or the employee organisation which in terms of subsection (1) has declared a dispute, requested that a conciliation board be established and submitted the completed prescribed form, may refer the dispute to arbitration or to the Labour Court in terms of the provisions of this Act and, in respect of a dispute not contemplated by this Act, to any other court if- (i) (ii) a meeting of a conciliation board is not convened as contemplated in subsection (3); the head of department concerned falls to request the appointment of a chairperson in terms of subsection (5); (iii) where applicable, the Commission fails to appoint a chairperson of the conciliation board in terms of subsection (5); (iv) the parties involved in the conciliation board have failed to agree to extend the period of office of the conciliation board in terms of subsection (7) until a settlement is reached; (v) the conciliation board does not succeed in settling the dispute within the period contemplated in subsection (7); or (vi) the parties to the dispute agree that they will not be able to settle the dispute and submit written proof thereof to the Commission or relevant court."; and (ii) any reference to the Department of Labour should be a reference to Commission. - 16 Verify source ↗
Education Labour Relations Council
AI-assisted research summary: The Education Labour Relations Council must file its constitution and other documents with the registrar within 30 days after commencement, and the registrar can require corrections if the constitution does not comply with section 30.
16. Education Labour Relations Council (1) (2) The Education Labour Relations Council will continue to exist, subject to item 20. The registered scope of the Education Labour Relations Council is the State and those employees in respect of which the Educators' Employment Act, 1994 (Proclamation No. 138 of 1994), applies. (3) Within 30 days after the commencement of this Act, the Education Labour Relations Council must furnish the registrar with a copy of its constitution signed by its authorised representatives, and with the other information or documentation. (4) The constitution agreed on between the parties to the Education Labour Relations Council is deemed to be in compliance with this Act: However, where any provision of the constitution does not comply with the requirements of section 30, the registrar may direct the Council to rectify its constitution and re-submit the rectified constitution within the period specified in the direction, which period may not be shorter than three months. (5) If the Education Labour Relations Council fails to comply with a direction issued to It in terms of subitem (5), the registrar must- (a) determine the amendments to the constitution in order to meet the requirements of section 30; and (b) send a certified copy of the constitution to the Council. (6) The Education Labour Relations Council must deal with any pending application for admission to it in terms of the Education Labour Relations Act as if the application had been made in terms of this Act. (7) Any pending appeal before the industrial court or an arbitrator against a decision of the Education Labour Relations Council must, despite the repeal of any of the labour relations laws, be dealt with by the industrial court or arbitrator as if the application had been made in terms of this Act. (8) Despite the repeal of the Education Labour Relations Act, any appeal against a decision of the Education Labour Relations Council may be instituted after the commencement of this Act and must be heard by the Labour Court and dealt with as if the application had been made in terms of this Act. - 17 Verify source ↗
Education sector collective agreements
AI-assisted research summary: Certain listed provisions are to be treated as a collective agreement that binds the State, the Education Labour Relations Council parties, and employees within registered scope.
17. Education sector collective agreements The following provisions, read with the changes required by the context, of the Education Labour Relations Act, despite the repeal of that Act, will have the effect and status of a collective agreement binding on the State, the parties to the Education Labour Relations Council and all employees within registered scope- (a) section 6(2) and (3); (b) section 8(3), (4) and (5)(a); (c) section 10(3) and (4); (d) section 12(1) to (4), except that the disputes referred to in subsections (2) and (4) may be referred to arbitration only; and (e) section 13 and section 14(2). - 18 Verify source ↗
Negotiating Forums in South African Police Service
AI-assisted research summary: The National Negotiating Forum must give the registrar its signed constitution and related information within 14 days, and the registrar may require a corrected constitution to be re-submitted within 14 days if it does not meet section 30 requirements.
18. Negotiating Forums in South African Police Service (1) The National Negotiating Forum will continue to exist subject to item 20. (2) The registered scope of the National Negotiating Forum is the State and those employees in respect of whom the South African Police Service Rationalisation Proclamation, 1995 and the Act contemplated in section 214 of the Constitution applies. (3) Within fourteen days of the commencement of this Act, or signing of its constitution by its authorised representatives, whichever is the later, the National Negotiating Forum must furnish the registrar with a copy of its constitution signed by its authorised representatives, and with the other information or documentation. (4) (5) The constitution agreed to by the National Negotiating Forum is deemed to be in compliance with this Act. However where any provision of the constitution does not comply with the requirements of section 30, the registrar may direct the National Negotiating Forum to rectify its constitution and re-submit the rectified constitution within fourteen days. The National Commissioner of the South African Police Service must deal with any pending application for registration and recognition in terms of the South made' African Police Service Labour Regulations as if the application had been in terms of this Act - 19 Verify source ↗
Collective agreement in South African Police Service
AI-assisted research summary: The South African Police Service Labour Relations Regulations are to operate as a collective agreement binding on the State, the parties to the National Negotiating Forum, and employees within the registered scope.
19. Collective agreement in South African Police Service The provisions of the South African Police Service Labour Relations Regulations, read with the changes required by the context, despite the repeal of those regulations, will have the effect and status of a collective agreement binding on the State, the parties to the National Negotiating Forum and all the employees within its registered scope. - 20 Verify source ↗
Consequences for public service bargaining institutions when Public Service
AI-assisted research summary: When the Public Service Co-ordinating Bargaining Council is established, the old Public Service Bargaining Council and its central chamber cease to exist, but certain former chambers continue as juristic persons.
20. Consequences for public service bargaining institutions when Public Service Co-ordinating Bargaining Council is established When the Public Service Co-ordinating Bargaining Council is established in terms of item 2 of Schedule I- (a) (b) (c) (d) the Public Service Bargaining Council and its chamber at central level will cease to exist; and the following chambers of the former Public Service Bargaining Council will continue to exist as juristic persons, despite paragraph (a), namely- (i) (ii) the chamber for each department, which will be deemed to be a bargaining council that has been established under section 37(3)(a) of this Act for that department; the chamber for each provincial administration, which will be deemed to be a bargaining council that has been established under section 37(3)(a) for that provincial administration; and the Education Labour Relations Council will be deemed to be a bargaining council that has been established in terms of section 37(3)(b) of this Act for the education sector; the National Negotiating Forum will be deemed to be a bargaining council that has been established in terms of section 37(3)(b) of this Act for the South African Police Service. PART E-DISPUTES AND COURTS
Part
PART E-DISPUTES AND COURTS
- 21 Verify source ↗
Disputes arising before commencement of this Act
AI-assisted research summary: Disputes that arose before this Act started must be handled as if the earlier labour laws were still in force.
21. Disputes arising before commencement of this Act (1) Any dispute contemplated in the labour relations laws that arose before the commencement of this Act must be dealt with as if those laws had not been repealed. (2) Despite subsection (1), a strike or lock-out that commences after this Act comes into operation will be dealt with in terms of this Act. This rule applies even if the dispute giving rise to the strike or lock-out arose before this Act comes into operation. (3) For the purposes of a strike or lock-out referred to in subitem (2), compliance with section 65(l)(d) of the Labour Relations Act, section 19(l)(b) of the Public Service Labour Relations Act and section 15(l)(b) of the Education Labour Relations Act will be deemed to be compliance with section 64(l)(a) of this Act. - 21A Verify source ↗
Dispute resolution by councils before their accreditation
AI-assisted research summary: Councils may conciliate certain disputes before accreditation, must send unresolved qualifying disputes to arbitration, and specific court/appeal proceedings continue under transitional rules.
21A. Dispute resolution by councils before their accreditation (1) Despite the provisions of section 52, a council may attempt to resolve through conciliation - (a) (b) any dispute that may be referred to it in terms of this Act before 1 December 1996; and if the council has applied for accreditation in terms of section 127 of this Act before 1 December 1996, also any dispute so referred to it after 1 December 1996 but before the governing body of the Commission has made a decision on that application in terms of section 127(5) of this Act. (2) For the purposes of subitem (1), any person appointed by a council to perform on its behalf the dispute resolution function referred to in that subitem will be competent to exercise any of the powers conferred on a commissioner by section 142 of this Act, except the powers contemplated in subsection (1)(c) and (d) of that section. In applying that section for the purposes of this subitem, that section must be read with the changes required by the context, and any reference in that section to the director must be read as a reference to the secretary of the council. (3) A council must refer to the Commission, for arbitration, any dispute that - (a) was referred to the council in terms of this Act on the authority of subitem (1); and (b) remains unresolved after the council has attempted to resolve it through conciliation; and (c) is by this Act required to be resolved through arbitration. 22. Courts (1) In any pending dispute in respect of which the industrial court or the agricultural labour court had jurisdiction and in respect of which proceedings had not been instituted before the commencement of this Act, proceedings must be instituted in the industrial court or agricultural labour court (as the case may be) and dealt with as if the labour relations laws had not been repealed. The industrial court or the agricultural labour court may perform or exercise any of the functions and powers that it had in terms of the labour relations laws when it determines the dispute. (2) Any dispute in respect of which proceedings were pending in the industrial court or the agricultural labour court must be proceeded with as if the labour relations laws had not been repealed. (2A) In relation to any proceedings which, in terms of this Schedule, are brought or continued before the industrial court, the rules which, immediately before the commencement of this Act, were in force under the provisions of paragraphs (c ) or (d) of section 17(22) of the Labour Relations Act will apply as if those provisions had not been repealed, subject to subitem (2B). (2B) The Minister, after consultation with the president of the industrial court, may make rules in accordance with the provisions of paragraph (c ) of section 17(22) of the Labour Relations Act and, in accordance with the provisions of paragraph (d) of that section, may repeal or alter any rule so made, as well as any of the rules contemplated in subitem (2A), as if those provisions had not been repealed and the Minister where the Board contemplated in those provisions. (3) (4) (5) (6) Any pending appeal before the Labour Appeal Court established by section 17A of the Labour Relations Act must be dealt with by the Labour Appeal Court as if the labour relations laws had not been repealed. Any pending appeal from a decision of that Labour Appeal Court or any appeal to the Appellate Division from a decision of the Labour Appeal Court in terms of section 17C and section 64 of the Labour Relations Act must be dealt with as if the labour relations laws had not been repealed. Any appeal from a decision of the industrial court or the agricultural labour court in terms of subitem (1) or (2), must be made to the Labour Appeal Court established by section 167 of this Act, and that Labour Appeal Court must deal with the appeal as if the labour relations laws had not been repealed. Despite the provisions of any other law, but subject to the Constitution, no appeal will lie against any judgement or order given or made by the Labour Appeal Court established by this Act in determining any appeal brought in terms of subitem (5). - 22A Verify source ↗
Minister may authorise Commission to perform industrial court’s
AI-assisted research summary: The Minister may, after consulting the Commission, authorise the Commission by Gazette notice to perform the industrial court’s functions for South Africa or a specified province, from a stated date.
22A. Minister may authorise Commission to perform industrial court’s functions (1) The Minister, after consulting the Commission, may authorise the Commission, by notice in the Government Gazette, to perform the industrial court’s functions in terms of item 22(1) - (a) (b) in respect of the Republic as a whole or any province specified in the notice; and with effect from a date so specifies. (2) The authorisation of the Commission in terms of subitem (1) - (a) does not affect the competence of the industrial court in terms of item 22(1) to decide and finalise all pending matters that are partly heard by it as at the date when the authorisation takes effect, nor does it relieve that court of its functions, duties and responsibility with regard to those matters; (b) (c) does not empower the Commission to perform any of the industrial court’s functions with regard to the matters mentioned in paragraph (a); and has the effect of substituting the Commission for the industrial court in so far as all other pending matters are concerned. (3) In the application of this item - (a) (b) the provisions of item 22(1) will apply to the Commission in all respects as if it were the industrial court; and the rules governing the proceedings at the industrial court in terms of item 22(2A) and (2B) will apply to the proceeding at all pending matters to be decided by the Commission by virtue of its authorisation in terms of this item. PART F-PENSION MATTERS
Part
PART F-PENSION MATTERS
- 23 Verify source ↗
Continuation of existing pension rights of staff members of Commission upon
AI-assisted research summary: Certain Commission staff may keep or switch pension membership when they start employment, and the former fund or the State must make specified transfers or payments.
23. Continuation of existing pension rights of staff members of Commission upon assuming employment (1) Any staff member of the Commission who, immediately before assuming employment with the Commission, is a member of the Government Service Pension Fund, the Temporary Employees Pension Fund or any other pension fund or scheme administered by the Department of Finance (hereinafter referred to as an officer or employee), may upon assuming that employment- (a) (b) choose to remain a member of that pension fund, and from the date of exercising the choice, the officer or employee, despite the provisions of any other law, will be deemed to be a dormant member of the relevant pension fund within the contemplation of section 15(l)(a) of the General Pensions Act, 1979 (Act No. 29 of 1979); request to become a member of the Associated Institutions Pension Fund established under the Associated Institutions Pension Fund Act, 1963 (Act No. 41 of 1963), as if the Commission had been declared an associated institution under section 4 of that Act; or (c) request to become a member of any other pension fund registered under the Pension Funds Act, 1956 (Act No. 24 of 1956). (2) In the case where an officer or employee becomes a member of a fund after making a request in terms of subitem (1)(b) or (c)- (a) the pension fund of which the officer or employee was a member ("the former fund") must transfer to the pension fund of which the officer or employee becomes a member of ("the new fund") an amount equal to the funding level of the former fund multiplied by its actuarial liability in respect of that officer or employee at the date the officer or employee assumes office with the Commission, increased by the amount of interest calculated on that amount at the prime rate of interest from the date when employment with the Commission commenced up to the date of transfer of the amount; (b) membership of the officer or employee of the former fund will lapse from the date when employment with the Commission commenced, and from that date the officer or employee will cease to have any further claim against the former fund except as provided in paragraph (a); and (c) the former fund must transfer any claim it may have against the officer or employee, to the new fund. In the case where an officer or employee becomes a member of a new fund after a request in terms of subitem (1)(c) the State must pay the new fund an amount equal to the difference between the actuarial liability of the former fund in respect of the officer or employee as on the date of the commencement of employment with the Commission, and the amount transferred in terms of subitem (2)(c) to the new fund, increased by the amount of interest thereon calculated at the prime rate from the date of commencement of employment up to the date of the transfer of the amount. Subitems (2) and (3) will apply, read with the changes required by the context, in respect of any officer or employee who, by reason of having made a choice in terms of subitem (1)(a), has become a dormant member and thereafter requests that the pension benefits that had accrued, be transferred in terms of section 15A(1) of the General Pensions Act, 1979, to another pension fund referred to in that Act or a pension fund registered in terms of the Pension Funds Act, 1956. If, after an officer or employee has become a member of any other pension fund, by reason of having made a choice in terms of subitem (1)(c), a lump sum benefit has become payable by that pension fund by reason of the death, or the withdrawal or resignation from the pension fund, or retirement, of the officer or employee, or the winding-up of the pension fund, then, for the purposes of paragraph (e) of the definition of "gross income" in section I of the Income Tax Act, 1962 (Act No. 58 of 1962), the pension fund will be deemed, in relation to such officer or employee, to be a fund referred to in paragraph (a) of the definition of "pension fund" in section I of that Act. (3) (4) (5) (6) For the purposes of this item- "actuarial liability" of a pension fund in respect of a particular member or a group of members of the fund, means the actuarial liability that is determined by an actuary who the Minister has nominated for that purpose; "funding level", in relation to a pension fund, means the market value of the assets of the fund stated as a percentage of the total actuarial liability of the fund, after those assets and liabilities have been reduced by the amount of the liabilities of the fund in respect of all its pensioners, as determined at the time of the most recent actuarial valuation of the fund or any review thereof carried out under direction of the responsible Minister; and "prime rate of interest" means the average prime rate of interest of the three largest banks in the Republic. PART G: ESSENTIAL SERVICES
Part
PART G: ESSENTIAL SERVICES
- 24 Verify source ↗
Essential ser vices in the public service
AI-assisted research summary: The essential services committee must make a new designation of the relevant essential services as soon as possible after the Act starts.
24. Essential ser vices in the public service (1) (2) An essential service contemplated in section 20(1) of the Public Service Labour Relations Act will be deemed to have been designated an essential service in terms of this Act for a period ending on a date 10 months after the commencement of this Act or on the date of the publication of the notice of designation mentioned in subitem (2), in the Government Gazette, whichever date occurs first The essential services committee must, in the case of the services contemplated in section 20(1) of the Public Service Labour Relations Act, as soon as possible after the commencement of this Act, make a new designation, under section 71 of this Act, of services that are essential services. Such a designation will be effective from the date of the publication of the notice of designation in the Government Gazette in terms of section 71(8) of this Act. - 25 Verify source ↗
Essential services provided for in Labour Relations Act
AI-assisted research summary: Certain services are temporarily treated as essential services, and the essential services committee must make a new designation as soon as possible after commencement.
25. Essential services provided for in Labour Relations Act (1) The services, in which employers referred to in paragraphs (a) and (b) of section 46(1) of the Labour Relations Act, and employees referred to in paragraphs (e) and (f) of that section, are engaged, as well as any service contemplated in paragraphs (a) or (b) of section 46 (7) of that Act in which the employers and employees to whom a notice in terms of the latter section applied immediately before the commencement of this Act, are engaged, will be deemed to have been designated essential services in terms of this Act for a period ending on a date 10 months after the commencement of this Act or on the date of the publication of the notice of designation mentioned in subitem (2), in the Government Gazette, whichever date occurs first (2) The essential services committee must, in the case of the services contemplated in subitem (1), as soon as possible after the commencement of this Act, make a new designation, under section 71 of this Act, of services that are essential services. Such a designation will be effective from the date of the publication of the notice of the designation in the Government Gazette in terms of section 71 (8) of this Act. PART H -TRANSITIONAL PROVISIONS ARISING OUT OF THE APPLICATION OF THE LABOUR RELATIONS AMENDMENT ACT, 2002 26. Definitions In this part - (a) (b) ‘Act’ means the Labour Relations Act, 1995 (Act No. 66 of 1995); and ‘Amendment Act’ means the Labour Relations Amendment Act, 2002. 27. Representation in conciliation and arbitration (1) Until such time as rules made by the Commission in terms of section 115(2A)(m) of the Act come into force - (a) (b) (c) sections 135(4), 138(4) and 140(1) of the Act remain in force as if they had not been repealed, and any reference in this item to those sections is a reference to those sections prior to amendment by this Amendment Act; a bargaining council may be represented in arbitration proceedings in terms of section 33A of the Act by a person specified in section 138(4) of the Act or by a designated agent or an official of the council; the right of any party to be represented in proceedings in terms of section 191 of the Act must be determined by - (i) (ii) section 138(4) read with section 140(1) of the Act for disputes about a dismissal; and section 138(4) of the Act for disputes about an unfair labour practice. (2) Despite subitem 1(a), section 138(4) of the Act does not apply to an arbitration conducted in terms of section 188A of the Act.
Part
PART H -TRANSITIONAL PROVISIONS ARISING OUT OF THE
- 28 Verify source ↗
Order for costs in arbitration
AI-assisted research summary: The text sets transitional rules for labour arbitration, unfair labour practices, and expedited Labour Court applications.
28. Order for costs in arbitration Section 138(10) of the Act, before amendment by the Amendment Act, remains in effect as if it had not been amended until such time as the rules made by the Commission in terms of section 115(2A)(j) of the Act came into effect. 29. Arbitration in terms of section 33A (1) Until such time as the Minister promulgates a notice in terms of section 33A(13) of the Act, an arbitrator conducting an arbitration in terms of section 33A of the Act may impose a fine in terms of section 33A(8)(b) of the Act subject to the maximum fines set out in Table One and Two of this item. (2) The maximum fine that may be imposed by an arbitrator in terms of section 33A(8)(b) of the Act - (a) (b) for a failure to comply with a provision of a collective agreement not involving a failure to pay any amount of money, it the fine determined in terms of Table One; and involving a failure to pay an amount due in terms of a collective agreement, is the greater of the amounts determined in terms of Table One and Table Two. TABLE ONE: MAXIMUM PERMISSABLE FINE NOT INVOLVING AN UNDERPAYMENT No previous failure to comply A previous failure to comply in respect of the same provision A previous failure to comply within the previous 12 months or two previous failures to comply in respect of the same provisions within three years Three previous failures to comply in respect of the same provision within three years Four or more previous failures to comply in respect of the same provision within three years R100 per employee in respect of whom the failure to comply occurs R200 per employee in respect of whom the failure to comply occurs R300 per employee in respect of whom the failure to comply occurs R400 per employee in respect of whom the failure to comply occurs R500 per employee in respect of whom the failure to comply occurs TABLE TWO: MAXIMUM PERMISSIBLE FINE INVOLVING AN UNDERPAYMENT No previous failure to comply A previous failure to comply in respect of the same provision A previous failure to comply within the previous 12 months or two previous failures to comply in respect of the same provisions within three years Three previous failures to comply in respect of the same provision within three years Four or more previous failures to comply in respect of the same provision within three years 25% of the amount due, including any interest owing on the amount at the date of the order 50% of the amount due, including any interest owing on the amount at the date of the order 75% of the amount due, including any interest owing on the amount at the date of the order 100% of the amount due, including any interest owing on the amount at the date of the order 200% of the amount due, including any interest owing on the amount at the date of the order 30. Unfair labour practice (1) Any dispute about an unfair labour practice referred to a council or Commission in accordance with items 3(1) and (2) of this Schedule prior to the commencement of the Amendment Act must be dealt with as if items 2,3 and 4 of this Schedule had not been repealed. (2)(a) A dispute concerning any act or omission constituting an alleged unfair labour practice that occurred prior to the commencement of the Amendment Act that had not been referred to a council or Commission in terms of item 3(1) and 3(2) prior to the commencement of the Amendment Act must be dealt with in terms of section 191 of the Act. (b) If a dispute contemplated in paragraph (a) is not referred to conciliation in terms of section 191(a) of the Act within 90 days of the commencement of the Amendment Act, the employee alleging the unfair labour practice must apply for condonation in terms of section 191(2) of the Act. (c) Subitem (a) does not apply to an unfair labour practice in relation to probation. 31. Bargaining councils in public service Any bargaining council that was established or deemed to be established in terms of section 37(3) of the Act prior to the Amendment Act coming into force is deemed to have been established in terms of section 37(2) of the Act. 32. Expedited applications in terms of section 189A(13) Until such time as rules are made in terms of section 159 of the Act – (a) the Labour Court may not grant any order in terms of section 189A(13) or (14) of the Act unless the applicant has given at least four days’ notice to the respondent of an application for an order in terms of subsection (1). However, the Court may permit a sorter period of notice if - (i) (ii) 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 (iii) the applicant has shown good cause why a period shorter than four days should be permitted; (b) an application made in terms of section 189A(13) must be enrolled by the Labour Court on an expedited basis. SCHEDULE 8 CODE OF GOOD PRACTICE: DISMISSAL Introduction (1) (2) (3) This code of good practice deals with some of the key aspects of dismissals for reasons related to conduct and capacity. It is intentionally general. Each case is unique, and departures from the norms established by this Code may be justified in proper circumstances. For example, the number of employees employed in an establishment may warrant a different approach. This Act emphasises the primacy of collective agreements. This Code is not intended as a substitute for disciplinary codes and procedures where these are the subject of collective agreements, or the outcome of joint decision-making by an employer and a workplace forum. The key principle in this Code is that employers and employees should treat one another with mutual respect. A premium is placed on both employment justice and the efficient operation of business. While employees should be protected from arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees.
Part
SCHEDULE 8
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Fair reasons for dismissal
AI-assisted research summary: A dismissal is unfair unless it has a fair reason and follows a fair procedure; in some cases the employer must justify the dismissal by reference to conduct, capacity, or business operational requirements.
2. Fair reasons for dismissal (1) A dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment. Whether or not a dismissal is for a fair reason is determined by the facts of the case, and the appropriateness of dismissal as a penalty. Whether or not the procedure is fair is determined by referring to the guidelines set out below. (2) (3) (4) This Act recognises three grounds on which a termination of employment might be legitimate. These are: the conduct of the employee, the capacity of the employee, and the operational requirements of the employer's business. This Act provides that a dismissal is automatically unfair if the reason for the dismissal is one that amounts to an infringement of the fundamental rights of employees and trade unions, or if the reason is one of those listed in section 187. The reasons include participation in a lawful strike, intended or actual pregnancy and acts of discrimination. In cases where the dismissal is not automatically unfair, the employer must show that the reason for dismissal is a reason related to the employee's conduct or capacity, or is based on the operational requirements of the business. If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair. - 3 Verify source ↗
Disciplinary measures short of dismissal
AI-assisted research summary: Employers should have clear disciplinary rules, use graduated discipline for minor misconduct, and reserve dismissal for serious or repeated misconduct.
3. Disciplinary measures short of dismissal Disciplinary procedures prior to dismissal (1) All employers should adopt disciplinary rules that establish the standard of conduct required of their employees. The form and content of disciplinary rules will obviously vary according to the size and nature of the employer's business. In general, a larger business will require a more formal approach to discipline. An employer's rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood. Some rules or standards may be so well established and known that it is not necessary to communicate them. (2) The courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees' behaviour through a system of graduated disciplinary measures such as counselling and warnings. (3) Formal procedures do not have to be invoked every time a rule is broken or a standard is not met. Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. Repeated misconduct will warrant warnings, which themselves may be graded according to degrees of severity. More serious infringements or repeated misconduct may call for a final warning, or other action short of dismissal. Dismissal should be reserved for cases of serious misconduct or repeated offences. Dismissals for misconduct (4) Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188. (5) When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee's circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself. (6) The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration. - 4 Verify source ↗
Fair procedure
AI-assisted research summary: Employers should investigate dismissal issues, tell the employee the allegations, let the employee respond, and share the decision. Trade union consultation is required before disciplining certain union-linked employees, and pre-dismissal steps may be skipped only in exceptional circumstances.
4. Fair procedure (1) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision. (2) Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union. (3) (4) If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement. In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre- dismissal procedures. - 5 Verify source ↗
Disciplinary records
AI-assisted research summary: Employers should keep disciplinary records for each employee, including the nature of any transgressions, the actions taken, and the reasons for those actions.
5. Disciplinary records Employers should keep records for each employee specifying the nature of any disciplinary transgressions, the actions taken by the employer and the reasons for the actions. - 6 Verify source ↗
Dismissals and industrial action
AI-assisted research summary: A strike that does not comply with Chapter IV is misconduct, and dismissal must be judged for fairness based on the facts. Before dismissal, the employer should contact a trade union official, issue a clear ultimatum, and give employees time to respond; these steps may be skipped if they cannot reasonably be expected.
6. Dismissals and industrial action (1) Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. However, like any other act of misconduct, it does not always deserve dismissal. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including- (a) the seriousness of the contravention of this Act; (b) attempts made to comply with this Act; and (c) whether or not the strike was in response to unjustified conduct by the employer. (2) Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. The employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. If the employer cannot reasonably be expected to extend these steps to the employees in question, the employer may dispense with them. - 7 Verify source ↗
Guidelines in cases of dismissal for misconduct
AI-assisted research summary: A person deciding whether a dismissal for misconduct is unfair should consider the workplace rule or standard, whether it was valid, whether the employee knew or should have known it, whether it was consistently applied, and whether dismissal was an appropriate sanction.
7. Guidelines in cases of dismissal for misconduct Any person who is determining whether a dismissal for misconduct is unfair should consider- (a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and (b) if a rule or standard was contravened, whether or not- (i) the rule was a valid or reasonable rule or standard; (ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; (iii) the rule or standard has been consistently applied by the employer; and (iv) dismissal was an appropriate sanction for the contravention of the rule or standard. - 8 Verify source ↗
Incapacity: Poor work performance
AI-assisted research summary: This section lets an employer use probation for a newly hired employee, but requires fair performance management and limits dismissal or extension decisions.
8. Incapacity: Poor work performance (1) Probation (a) (b) (c) (d) An employer may require a newly-hired employee to serve a period of probation before the appointment of the employee is confirmed. The purpose of the probation is to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment. Probation should not be used for purposes not contemplated by this Code to deprive employees of the status of permanent employment. For example, a practice of dismissing employees who complete their probation periods and replacing them with newly-hired employees, is not consistent with the purpose of probation and constitutes an unfair labour practice. The period of probation should be determined in advance and be of reasonable duration. The length of the probationary period should be determined with reference to the nature of the job and the time it takes to determine the employee’s suitability for continued employment. (e) (f) (g) (h) (i) (j) During the probationary period, the employee’s performance should be assessed. An employer should give an employee reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render a satisfactory service. If the employer determines that the employee’s performance is below standard, the employer should advise the employee of any aspects in which the employer considers the employee to be failing to meet the required performance standards. If the employer believes that the employee is incompetent, the employer should advise the employee of the respects in which the employee is not competent. The employer may either extend the probationary period or dismiss the employee after complying with subitems (g) or (h), as the case may be. The period of probation may only be extended for a reason that relates to the purpose of probation. The period of extension should not be disproportionate to the legitimate purpose that the employer seeks to achieve. An employer may only decide to dismiss an employee or extend the probationary period after the employer has invited the employee to make representations and has considered any representations made. A trade union representative or fellow employee may make the representations on behalf of the employee. If the employer decides to dismiss the employee or to extend the probationary period, the employer should advise the employee of his or her rights to refer the matter to a council having jurisdiction, or to the Commission. Any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reason for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period. (2) After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has- (a) (b) given the employee appropriate evaluation, instruction, training, guidance or counselling; and after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily. (3) The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter. (4) In the process, the employee should have the right to be heard and to be assisted by a trade union representative or a fellow employee. - 9 Verify source ↗
Guidelines in cases of dismissal for poor work performance
AI-assisted research summary: When deciding if a dismissal for poor work performance is unfair, consider whether the employee missed the performance standard and, if so, awareness, opportunity to improve, and whether dismissal was an appropriate sanction.
9. Guidelines in cases of dismissal for poor work performance Any person determining whether a dismissal for poor work performance is unfair should consider – (a) whether or not the employee failed to meet a performance standard; and (b) if the employee did not meet a required performance standard whether or not- (i) (ii) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard; the employee was given a fair opportunity to meet the required performance standard; and (iii) dismissal was an appropriate sanction for not meeting the required performance standard. - 10 Verify source ↗
Incapacity: Ill health or injury
AI-assisted research summary: When an employee has ill health or an injury, the employer should investigate the situation and consider alternatives to dismissal, including possible alternative work or adjusted duties.
10. Incapacity: Ill health or injury (1) (2) (3) (4) Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee's disability. In the process of the investigation referred to in subsection (1) the employee I should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee. The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider. Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. - 11 Verify source ↗
Guidelines in cases of dismissal arising from ill health or injury
AI-assisted research summary: The provision gives guidelines for deciding unfair dismissal due to ill health or injury, and sets powers and duties for designated agents of a bargaining council when monitoring or enforcing collective agreements.
11. Guidelines in cases of dismissal arising from ill health or injury Any person determining whether a dismissal arising from ill health or injury is unfair should consider- (a) whether or not the employee is capable of performing the work; and (b) if the employee is not capable- (i) the extent to which the employee is able to perform the work; (ii) the extent to which the employee's work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee's duties might be adapted; and (iii) the availability of any suitable alternative work. SCHEDULE 10 POWERS OF DESIGNATED AGENT OF BARGAINING COUNCIL (Section 33) (1) A designated agent may, without warrant or notice at any reasonable time, enter any workplace or any other place where an employer carries on business or keeps employment records, that is not a home, in order to monitor or enforce compliance with a collective agreement concluded in the bargaining council. (2) A designated agent may only enter a home or any place other than a place referred to in subitem (1) - (a) (b) with the consent of the owner or occupier; or if authorised to do so by the Labour Court in terms of subitem (3); The Labour Court may issue an authorisation contemplated in subitem (2)(b) only on written application by a designated agent who states under oath or affirmation the reasons for the need to enter a place, in order to monitor or enforce compliance with a collective agreement concluded in the bargaining council. If it is practicable to do so, the employer and a trade union representative must be notified that the designated agent is present at a workplace and of the reason for the designated agent’s presence. (3) (4) (5) In order to monitor or enforce compliance with a collective agreement, a designated agent may - (a) require a person to disclose information, either orally or in writing, and either alone or in the presence of witnesses, on a matter to which a collective agreement relates, and require that disclosure to be under oath or affirmation; (b) inspect and question a person about any record or document to which a collective agreement relates; (c) copy any record or document referred to in paragraph (b) or remove these to make copies or extracts; (d) require a person to produce or deliver to a place specified by the designated agent any record or document referred to in paragraph (b) for inspection; (e) inspect, question a person about, and if necessary remove, an article, substance or machinery present at a place referred to in subitems (1) and (2); (f) question a person about any work performed; and (g) perform any other prescribed function necessary for monitoring or enforcing compliance with a collective agreement. (6) A designated agent may be accompanied by an interpreter and any other person reasonably required to assist in conducting an inspection. (7) A designated agent must - (a) (b) (c) produce on request a copy of the authorisation referred to in subitem (3); provide a receipt for any record or document removed in terms of subitem (5)(e); and return any removed record, document or item within a reasonable time. (8) (9) Any person who is questioned by a designated agent in terms of subitem (5) must answer all questions lawfully put to that person truthfully and to the best of that person’s ability. An answer by any person to a question by a designated agent in terms of this item may not be used against that person in any criminal proceedings, except proceedings in respect of a charge of perjury or making a false statement. (10) Every employer and each employee must provide any facility and assistance at a workplace that is reasonably required by a designated agent to effectively perform the designated agent’s functions. (11) The bargaining council may apply to the Labour Court for an appropriate order against any person who - (a) refuses or fails to answer all questions lawfully put to that person truthfully and to the best of that person’s ability; (b) refuses or fails to comply with any requirement of the designated agent in terms of this item; or (c) hinders the designated agent in the performance of the agent’s functions in terms of this item. (12) For the purposes of this Schedule, a collective agreement is deemed to include any basic condition of employment which constitutes a term of a contract of employment in terms of section 49(1) of the Basic Conditions of Employment Act.
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