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Labour Relations Act 1995

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[Last checked: 22 November 2024.*]

*The last time this Act was reviewed for updates.

LABOUR RELATIONS ACT 66 OF 1995

[Updated to 27 November 2018.**]

**Date of last changes incorporated into this Act.

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English text signed by the President

Assented to 29 November 1995

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Commencement: ss 70(1), 70(2)(a), 71, 108,109, 112, 116 to 121, 124, 125, 153 to 156, 159, 169 to 172, 176, 203, 206 to 208, Sch 3 and Sch 7 item 23: 1 January 1996; ss 122, 127, 128 and 132: 13 September 1996; remaining ss: 11 November 1996

Act 66 of 1995 (GoN 1877, G. 16861),

Proc. R112, G. 16880,

Proc. R53, G. 17423,

Proc. R66, G. 17516,

Amended

Act 42 of 1996 (G. 17427, with effect from 11 November 1996 [Proc. R66, G. 17516]),

(GoN R1734, G. 17516, with effect from 1 November 1996),

(GoN R1865, G. 17576, with effect from 15 November 1996),

(GoN R2025, G. 17656, with effect from 6 December 1996),

(GoN R440, G. 17867, with effect from 27 March 1997),

(GoN R443, G. 17867, with effect from 27 March 1997),

(GoN R654, G. 17973, with effect from 9 May 1997),

Act 75 of 1997 (G. 18491, with effect from 1 December 1998 [Proc. 112, G. 19453]),

Act 55 of 1998 (G. 19370, with effect from 9 August 1999 [Proc. R83, G. 20339]),

Act 127 of 1998 (G. 19542, with effect from 1 February 1999 [Proc. R3, G. 19678]),

Act 12 of 2002 (G. 23540, with effect from 1 August 2002 [Proc. R61, G. 23611]),

Act 65 of 2002 (G. 24390, with effect from 20 February 2003 [Proc. 10, G. 24475]),

Act 68 of 2002 (G. 24356, with effect from 28 February 2003 [Proc. 17, G. 25003]),

Act 52 of 2003 (G. 25961, with effect from 30 January 2003, commencement of s 25(2): 28 February 2003),

Act 12 of 2004 (G. 26311, with effect from 27 April 2004),

Act 30 of 2007 (G. 30675, with effect from 1 April 2008),

Act 11 of 2013 (G. 36695, with effect from 29 July 2013 [Proc. 32, G. 36714]),

Act 10 of 2013 (G. 36743, with effect from 23 August 2013 [Proc. R36, G. 36774]),

Act 6 of 2014 (G. 37921, with effect from 1 January 2015 excluding that portion of s 37(c) inserting subsection 198(4F) [Proc. 87, G. 38317]),

Act 39 of 2014 (G. 38315, with effect from 1 March 2015 [Proc. R7, G. 38512]),

Act 8 of 2018 (G. 42061, with effect from 1 January 2019 [GoN R1377, G. 42103]).

ACT

To change the law governing labour relations and, for that purpose—

to give effect to section 23 of the Constitution;

[Long title am by s 43 of Act 6 of 2014.]

to regulate the organisational rights of trade unions;

to promote and facilitate collective bargaining at the workplace and at sectoral level;

to regulate the right to strike and the recourse to lock-out in conformity with the Constitution;

to promote employee participation in decision-making through the establishment of workplace forums;

to provide simple procedures for the resolution of labour disputes through statutory conciliation, mediation and arbitration (for which purpose the Commission for Conciliation, Mediation and Arbitration is established), and through independent alternative dispute resolution services accredited for that purpose;

to establish the Labour Court and Labour Appeal Court as superior courts, with exclusive jurisdiction to decide matters arising from the Act;

to provide for a simplified procedure for the registration of trade unions and employers’ organisations, and to provide for their regulation to ensure democratic practices and proper financial control;

to give effect to the public international law obligations of the Republic relating to labour relations;

to amend and repeal certain laws relating to labour relations; and

to provide for incidental matters.

BE IT ENACTED by the Parliament of the Republic of South Africa as follows:—

ARRANGEMENT OF SECTIONS

CHAPTER I

PURPOSE, APPLICATION AND INTERPRETATION

1. Purpose of this Act

2. Exclusion from application of this Act

3. Interpretation of this Act

CHAPTER II

FREEDOM OF ASSOCIATION AND GENERAL PROTECTIONS

4. Employees’ right to freedom of association

5. Protection of employees and persons seeking employment

6. Employers’ right to freedom of association

7. Protection of employers’ rights

8. Rights of trade unions and employers’ organisations

9. Procedure for disputes

10. Burden of proof

CHAPTER III

COLLECTIVE BARGAINING

PART A – ORGANISATIONAL RIGHTS

11. Trade union representativeness

12. Trade union access to workplace

13. Deduction of trade union subscriptions of levies

14. Trade union representatives

15. Leave for trade union activities

16. Disclosure of information

17. Restricted rights in domestic sector

18. Right to establish thresholds of representativeness

19. Certain organisational rights for trade union party to council

20. Organisational rights in collective agreements

21. Exercise of rights conferred by this Part

22. Disputes about organisational rights

PART B – COLLECTIVE AGREEMENTS

23. Legal effect of collective agreement

24. Disputes about collective agreements

25. Agency shop agreements

26. Closed shop agreements

PART C – BARGAINING COUNCILS

27. Establishment of bargaining councils

28. Powers and functions of bargaining council

29. Registration of bargaining councils

30. Constitution of bargaining council

31. Binding nature of collective agreement concluded in bargaining council

32. Extension of collective agreement concluded in bargaining council

32A. Renewal and extension of funding agreements

33. Appointment and powers of designated agents of bargaining councils

33A. Enforcement of collective agreements by bargaining councils

34. Amalgamation of bargaining councils

PART D – BARGAINING COUNCILS IN THE PUBLIC SERVICE

35. Bargaining councils in public service

36. Public Service Co-ordinating Bargaining Council

37. Bargaining councils in sectors in public service

38. Disputes between bargaining councils in public service

PART E – STATUTORY COUNCILS

39. Application to establish statutory council

40. Establishment and registration of statutory council

41. Establishment and registration of statutory council in absence of agreement

42. Certificate of registration of statutory council

43. Powers and functions of statutory councils

44. Ministerial determinations

45. Disputes about determinations

46. Withdrawal of party from statutory council

47. Appointment of new representative of statutory council

48. Change of status of statutory council

PART F – GENERAL PROVISIONS CONCERNING COUNCILS

49. Representativeness of council

50. Effect of registration of council

51. Dispute resolution functions of council

52. Accreditation of council of appointment of accredited agency

53. Accounting records and audits

54. Duty to keep records and provide information to registrar

55. Delegation of functions to committee of council

56. Admission of parties to council

57. Changing constitution of name of council

58. Variation of registered scope of council

59. Winding-up of council

60. Winding-up of council by reason of insolvency

61. Cancellation of registration of council

62. Disputes about demarcation between sectors and areas

63. Disputes about Part 5 A and C to F

CHAPTER IV

STRIKES AND LOCK-OUTS

64. Right to strike and recourse to lock-out

65. Limitations on fight to strike or recourse to lock-out

66. Secondary strikes

67. Strike or lock-out in compliance with this Act

68. Strike or lock-out not in compliance with this Act

69. Picketing

70. Essential services committee

70A. Composition of essential services committee

70B. Powers and functions of essential services committee

70C. Appointment of panels

70D. Powers and functions of panel

70E. Jurisdiction and administration of essential services committee

70F. Regulations for essential services committee

71. Designating a service as an essential service

72. Minimum services

73. Disputes about minimum services and about whether a service is an essential service

74. Disputes in essential services

75. Maintenance services

76. Replacement labour

77. Protest action to promote or defend socio-economic interest of workers

CHAPTER V

WORKPLACE FORUMS

78. Definitions in this Chapter

79. General functions of workplace forum

80. Establishment of workplace forum

81. Trade union based workplace forum

82. Requirements for constitution of workplace forum

83. Meetings of workplace forum

84. Specific matters for consultation

85. Consultation

86. Joint decision-making

87. Review at request of newly established workplace forum

88. Matters affecting more than one workplace forum in an employer’s operation

89. Disclosure of information

90. Inspection and copies of documents

91. Breach of confidentiality

92. Full-time members of workplace forum

93. Dissolution of workplace forum

94. Disputes about workplace forums

CHAPTER VI

TRADE UNIONS AND EMPLOYERS’ ORGANISATIONS

PART A – REGISTRATION AND REGULATION OF TRADE UNIONS AND EMPLOYERS’ ORGANISATIONS

95. Requirements for registration of trade unions or employers’ organisations

96. Registration of trade unions or employers’ organisations

97. Effect of registration of trade union or employers’ organisation

98. Accounting records and audits

99. Duty to keep records

100. Duty to provide information to registrar

101. Changing constitution or name of registered trade unions or employers’ organisations

102. Amalgamation of trade unions or employers’ organisations

103. Winding-up of trade unions or employers’ organisations

103A. Appointment of administrator

104. Winding-up of trade unions or employers’ organisations by reason or insolvency

105. Declaration that trade union is no longer independent

106. Cancellation or registration of trade unions or employers’ organisations

PART B – REGULATION OF FEDERATIONS OF TRADE UNIONS AND EMPLOYERS’ ORGANISATIONS

107. Appointment of registrar of labour relations

PART C – REGISTRAR OF LABOUR RELATIONS

108. Appointment of registrar of labour relations

109. Functions of registrar

110. Access to information

PART D – APPEALS FROM REGISTRAR’S DECICION

111. Appeals from registrar’s decision

CHAPTER VII

DISPUTE RESOLUTION

PART A – COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION

112. Establishment of Commission for Conciliation, Mediation and Arbitration

113. Independence of Commission

114. Area of jurisdiction and offices of Commission

115. Functions of Commission

116. Governing body of Commission

117. Commissioners of Commission

118. Director of Commission

119. Acting director of Commission

120. Staff of Commission

121. Establishment of committees of Commission

122. Finances of Commission

123. Circumstances in which Commission may charge fees

124. Contracting by Commission, and Commission working in association with any person

125. Delegation of governing body’s powers, functions and duties

126. Limitation of liability and limitation on disclosure of information

PART B – ACCREDITATION OF AND SUBSIDY TO COUNCILS AND PRIVATE AGENCIES

127. Accreditation of councils and private agencies

128. General provisions relating to accreditation

129. Amendment of accreditation

130. Withdrawal of accreditation

131. Application to renew accreditation

132. Subsidy to council or private agency

PART C – RESOLUTION OF DISPUTES UNDER AUSPICES OF COMMISSION

133. Resolution of disputes under auspices of Commission

134. Disputes about matters of mutual interest

135. Resolution of disputes through conciliation

136. Appointment of commissioner to resolve dispute through arbitration

137. Appointment of senior commissioner to resolve dispute through arbitration

138. General provisions for arbitration proceedings

139. Special provisions for arbitrating disputes is essential services

140. Special provisions for arbitrations about dismissals for reasons related to conduct or capacity

141. Resolution of disputes if parties consent to arbitration under auspices of Commission

142. Powers of commissioner when attempting to resolve disputes

142A. Making settlement agreement arbitration award

143. Effect of arbitration awards

144. Variation and rescission of arbitration awards and rulings

145. Review of arbitration awards

146. Exclusion of Arbitration Act

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

148. Commission may provide advice

149. Commission may provide assistance

150. Commission may appoint commissioner to conciliate in public interest

150A. Advisory arbitration panel in public interest

150B. Composition of advisory arbitration panel

150C. Advisory arbitration award

PART D – LABOUR COURT

151. Establishment and status of Labour Court

152. Composition of Labour Court

153. Appointment of judges of Labour Court

154. Tenure, remuneration and terms and conditions of appointment of Labour Court judges

155. Officers of Labour Court

156. Area of jurisdiction and seat of Labour Court

157. Jurisdiction of Labour Court

158. Powers of Labour Court

159. Rules Board for Labour Courts and rules for Labour Court

160. Proceedings of Labour Court to be carried on in open court

161. Representation before Labour Court

162. Costs

163. Service and enforcement of orders of Labour Court

164. Seal of Labour Court

165. Variation and rescission of orders of Labour Court

166. Appeals against judgment of order of Labour Court

PART E – LABOUR APPEAL COURT

167. Establishment and status of Labour Appeal Court

168. Composition of Labour Appeal Court

169. Appointment of other judges of Labour Appeal Court

170. Tenure, remuneration and terms and conditions of appointment of Labour Appeal Court judges

171. Officers of Labour Appeal Court

172. Area of jurisdiction and seat of Labour Appeal Court

173. Jurisdiction of Labour Appeal Court

174. Powers of Labour Appeal Court on hearing of appeals

175. Labour Appeal Court may sit as court of first instance

176. Rules for Labour Appeal Court

177. Proceedings of Labour Appeal Court to be carried on in open court

178. Representation before Labour Appeal Court

179. Costs

180. Service and enforcement of orders

181. Seal of Labour Appeal Court

182. Judgments of Labour Appeal Court binding on Labour Court

183. Labour Appeal Court final court of appeal

PART F – GENERAL PROVISIONS APPLICABLE TO COURTS ESTABLISHED BY THIS ACT

184. General provisions applicable to courts established by this Act

CHAPTER VIII

UNFAIR DISMISSAL AND UNFAIR LABOUR PRACTICE

185. Right not to be unfairly dismissed or subjected to unfair labour practice

186. Meaning of dismissal and unfair labour practice

187. Automatically unfair dismissals

188. Other unfair dismissals

188A. Inquiry by arbitrator

189. Dismissals based on operational requirements

189A. Dismissals based on operational requirements by employers with more than 50 employees

190. Date of dismissal

191. Disputes about unfair dismissals and unfair labour practices

192. Onus in dismissal disputes

193. Remedies for unfair dismissal and unfair labour practice

194. Limits on compensation

195. Compensation is in addition to any other amount

196. …

197. Transfer of contract of employment

197A. Transfer of contract of employment in circumstances of insolvency

197B. Disclosure of information concerning insolvency

CHAPTER IX

REGULATION OF NON-STANDARD EMPLOYMENT AND GENERAL PROVISIONS

198. Temporary employment services

198A. Application of section 198 to employees earning below earnings threshold

198B. Fixed term contracts with employees earning below earnings threshold

198C. Part-time employment of employees earning below earnings threshold

198D. General provisions applicable to sections 198A to 198C

199. Contracts of employment may not disregard or waive collective agreements or arbitration awards

200. Representation of employees or employers

200A. Presumption as to who is employee

200B. Liability for employer’s obligations

201. Confidentiality

202. Service of documents

203. Codes of good practice

204. Collective agreement, arbitration award or wage determination to be kept by employer

205. Records to be kept by employer

206. Effect of certain defects and irregularities

207. Ministers empowered to add and change to Schedules

208. Regulations

208A. Delegations

209. This Act binds the State

210. Application of Act when in conflict with other laws

211. Amendment of laws

212. Repeal of laws, and transitional arrangements

213. Definitions

214. Short title and commencement

SCHEDULE 1

ESTABLISHMENT OF BARGAINING COUNCILS FOR PUBLIC SERVICE

1. Definitions for this Schedule

2. Establishment of Public Service Co-ordinating Bargaining Council

3. Establishment of bargaining council in sectors

SCHEDULE 2

GUIDELINES FOR CONSTITUTION OF WORKPLACE FORUM

1. Introduction

2. Number of seats in workplace forum (section 82(1)(a))

3. Distribution of seats to reflect occupational structure (section 82(1)(b))

4. Elections (section 82(1)(c), (d), (g), (h), (i) and (j))

5. Terms of office (section 82(1)(k), (l) and (m))

6. Meetings of workplace forum (section 82(1)(n))

7. Time off for members of workplace forum (section 82(1)(p))

8. Facilities to be provided to workplace forum (section 82(1)(r))

9. Experts (section 82(1)(t))

10. Establishment of co-ordinating and subsidiary workplace forums (section 82(2)(b))

SCHEDULE 3

COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION

1. Remuneration and allowances of members of governing body

2. Resignation and removal from office of member of governing body

3. Vacancies in governing body

4. Proceedings of governing body

5. Director of Commission

6. Bank account

7. Investment of surplus money

8. Accounting and auditing

9. Annual report

SCHEDULE 4

DISPUTE RESOLUTION: FLOW DIAGRAMS

SCHEDULE 5

AMENDMENT OF LAWS

1. Amendment of section 1 of Basic Conditions of Employment Act

2. Amendment of section 35 of Occupational Health and Safety Act, 1993

3. Amendment of section 2 of Pension Funds Act, 1956

4. Amendment of section 2 of Medical Schemes Act, 1967

5. Amendment of section 1 of Insurance Act, 1943

6. Amendment of section 2 of Friendly Societies Act, 1956

7. Amendment of section 3 of Friendly Societies Act, 1956

SCHEDULE 6

LAWS REPEALED BY SECTION 212

SCHEDULE 7

TRANSITIONAL ARRANGEMENTS

PART A – DEFINITIONS FOR THIS SCHEDULE

1. Definitions for this Schedule

PART B – UNFAIR LABOUR PRACTICES

2. …

3. …

4. …

PART C – PROVISIONS CONCERNING EXISTING TRADE UNIONS, EMPLOYERS’ ORGANISATIONS, INDUSTRIAL COUNCILS AND CONCILIATION BOARDS

5. Existing registered trade unions and employers’ organisations

6. Pending applications by trade unions or employers’ organisations for registration, variation of scope, alteration of constitution or name

7. Industrial councils

8. Pending applications by industrial councils for registration and variation of scope

8A. Pending enquiries by industrial registrar

9. Pending applications by industrial councils for alteration of constitution or name

10. Pending applications for admission of parties to industrial councils

11. Pending applications to wind up and cancel registration of trade unions, employers’ organisations and industrial councils

12. Existing agreements and awards of industrial councils and conciliation boards

12A. Designated agents

13. Existing agreements including recognition agreements

PART D – MATTERS CONCERNING PUBLIC SERVICE

14. Public Service Bargaining Council

15. Collective agreements in the public service

16. Education Labour Relations Council

17. Education sector collective agreements

18. Negotiating Forum in South African Police Service

19. Collective agreements in South African Police Service

20. Consequences for public service bargaining institutions when Public Service Co-ordinating Bargaining Council is established

PART E – DISPUTES AND COURTS

21. Disputes arising before commencement of this Act

21A. Dispute resolution by councils before their accreditation

22. Courts

22A. Minister may authorise Commission to perform industrial court’s functions

PART F – PENSION MATTERS

23. Continuation of existing pension rights of staff members of Commission upon assuming employment

PART G – ESSENTIAL SERVICES

24. Essential services in the public service

25. Essential services provided for in Labour Relations Act

PART H – TRANSITIONAL PROVISIONS ARISING OUT OF THE APPLICATION OF THE LABOUR RELATIONS AMENDMENT ACT, 2002

26. Definitions

27. Representation in conciliation and arbitration

28. Order for costs in arbitration

29. Arbitration in terms of section 33A

30. Unfair labour practice

31. Bargaining councils in public service

32. Expedited applications in terms of section 189A(13)

SCHEDULE 8

CODE OF GOOD PRACTICE: DISMISSAL

1. Introduction

2. Fair reasons for dismissal

3. Disciplinary measures short of dismissal

4. Fair procedure

5. Disciplinary records

6. Dismissals and industrial action

7. Guidelines in cases of dismissal for misconduct

8. Incapacity: Poor work performance

9. Guidelines in cases of dismissal for poor work performance

10. Incapacity: III health or injury

11. Guidelines in cases of dismissal arising from ill health or injury

SCHEDULE 9

MODEL CONSTITUTION FOR A STATUTORY COUNCIL

1. Name

2. Registered scope

3. Powers and functions

4. Parties

5. Appointment of representatives

6. Council meetings

7. Executive committee

8. Other committees

9. Chairperson and deputy chairperson

10. Officials and employees

11. Panels of conciliators and arbitrators

12. Disputes referred to council for conciliation

13. Disputes referred to council for arbitration

14. Procedure for negotiation of collective agreements

15. Finances

16. Winding-up

17. Changing constitution

18. Necessary first steps

19. Definitions

Annexure

SCHEDULE 10

POWERS OF DESIGNATED AGENT OF BARGAINING COUNCIL

[Arrangement of sections am by s 29 of Act 127 of 1998.]

CHAPTER I

PURPOSE, APPLICATION AND INTERPRETATION

1. Purposes of this Act

The purpose of this Act*is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are—

* An italicised word or phrase indicates that the word or phrase is defined in section 213 of this Act.

(a) to give effect to and regulate the fundamental rights conferred by section 23 of the Constitution of the Republic of South Africa, 1996*;

[S 1(a) subs by s 1 of Act 6 of 2014.]

* Section 27, which is in the Chapter on Fundamental Rights in the Constitution entrenches the following rights—

“(1) Every person shall have the right to fair labour practices.

(2) Workers shall have the right to form and join trade unions, and employers shall have the right to form and join employers’ organisations.

(3) Workers and employers shall have the right to organise and bargain collectively.

(4) Workers shall have the right to strike for the purpose of collective bargaining.

(5) Employers’ recourse to the lock-out for the purpose of collective bargaining shall not be impaired subject to subsection 33(1).”

[Editor Note: The amendment of section 1(a) by section 1 of Act 6 of 2014 did not indicate the removal of this footnote.]

(b) to give effect to obligations incurred by the Republic as a member state of the International Labour Organisation;

(i) collectively bargain to determine wages, terms and conditions of employment and other matters of mutual interest; and

(ii) formulate industrial policy; and

(d) to promote—

(i) orderly collective bargaining;

(ii) collective bargaining at sectoral level;

(iii) employee participation in decision-making in the workplace; and

(iv) the effective resolution of labour disputes.

2. Exclusion from application of this Act

This Act does not apply to members of—

(a) the National Defence Force;

(b) the State Security Agency.

[S 2 am by s 26 of Act 68 of 2002, s 25(2) of Act 52 of 2003; subs by s 53 of Act 11 of 2013.]

3. Interpretation of this Act

Any person applying this Act must interpret its provisions—

(a) to give effect to its primary objects;

(b) in compliance with the Constitution; and

CHAPTER II

FREEDOM OF ASSOCIATION AND GENERAL PROTECTIONS

4. Employees’ right to freedom of association

(1) Every employee has the right—

(a) to participate in forming a trade union or federation of trade unions; and

(b) to join a trade union has the right, subject to its constitution.

(2) Every member of a trade union, subject to the constitution of the trade union—

(a) to participate in its lawful activities;

(b) to participate in the election of any of its office-bearers, officials or trade union representatives;

(c) to stand for election and be eligible for appointment as an office bearer or official and, if elected or appointed, to hold office; and

(d) to stand for election and be eligible for appointment as a trade union representative and, if elected or appointed, to carry out the functions of a trade union representative in terms of this Act or any collective agreement.

(3) Every member of a trade union that is a member of a federation of trade unions has the right, subject to the constitution of that federation—

(a) to participate in its lawful activities;

(b) to participate in the election of any of its office-bearers or officials; and

(c) to stand for election and be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office.

5. Protection of employees and persons seeking employment

(1) No person may discriminate against an employee for exercising any right conferred by this Act.

(2) Without limiting the general protection conferred (1), no person may do, or threaten to do, any of the following—

(a) require an employee or a person seeking employment—

(i) not to be a member of a trade union or workplace forum;

(ii) not to become member of a trade union or workplace forum; or

(iii) to give up membership of a trade union or workplace forum;

(b) prevent an employee or a person seeking employment from exercising any right conferred by this Act or from participating in any proceedings in terms of this Act; or

(i) membership of a trade union or workplace forum;

(ii) participation in forming a trade union or federation of trade unions or establishing a workplace forum;

(iii) participation in the lawful activities of a trade union, federation of trade unions or workplace forum;

(iv) failure or refusal to do something that an employer may not lawfully permit or require an employee to do;

(v) disclosure of information that the employee is lawfully entitled required to give to another person;

(vi) exercise of any right conferred by this Act; or

(vii) participation in any proceedings in terms of this Act.

(3) No person may advantage, or promise to advantage, an employee or a person seeking employment in exchange for that person not exercising any right conferred by this Act or not participating in any proceedings in terms of this Act. However, nothing in this section precludes the parties to a dispute from concluding an agreement to settle that dispute.

(4) A provision in any contract, whether entered into before or after the commencement of this Act, that directly or indirectly contradicts or limits any provision of section 4, or this section, is invalid, unless the contractual provision is permitted by this Act.

6. Employers’ right to freedom of association

(1) Every employer has the right—

(a) to participate in forming an employers’ organisations; and

(b) to join an employers’ organisation, subject to its constitution.

(2) Every member of an employers’ organisation has the right, subject to the constitution of that employers’ organisation—

(a) to participate in its lawful activities;

(b) to participate in the election of any of its office-bearers or officials; and

(i) a natural person, to stand for election and be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office;

(ii) a juristic person, to have a representative stand for election, and be eligible for appointment, as an office-bearer or official and, if elected or appointed, to hold office.

(3) Every member of an employers’ organisation that is a member of a federation of employers’ organisations has the right, subject to the constitution of that federation—

(a) to participate in its lawful activities;

(b) to participate in the election of any of its office-bearers or officials; and

(i) a natural person, to stand for election and be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office; or

(ii) a juristic person, to have a representative stand for election, and be eligible for appointment, as an office-bearer or official and, if elected or appointed, to hold office.

7. Protection of employers’ rights

(1) No person may discriminate against an employer for exercising any right conferred by this Act.

(2) Without limiting the general protection conferred by subsection (1), no person may do, or threaten to do, any of the following—

(a) require an employer—

(i) not to be a member of an employers’ organisation

(ii) not to become a member of an employers’ organisation; or

(iii) to give up membership of an employers’ organisation;

(b) prevent an employer from exercising any right conferred by this Act or from participating in any proceedings in terms of this Act; or

(i) membership of an employers’ organisation;

(ii) participation in forming an employers’ organisation or a federation of employers’ organisations;

(iii) participation in the lawful activities of an employers’ organisation or a federation of employers’ organisations;

(iv) disclosure of information that the employer is lawfully entitled or required to give to another person;

(v) exercise of any right conferred by this Act; or

(vi) participation in any proceedings in terms of this Act.

(3) No person may advantage, or promise to advantage, an employer in exchange for that employer not exercising any right conferred by this Act or not participating in any proceedings in terms of this Act. However, nothing in this section precludes the parties to a dispute from concluding an agreement to settle that dispute.

(4) A provision in any contract, whether entered into before or after the commencement of this Act, that directly or indirectly contradicts or limits any provision of section 6, or this section, is invalid, unless the contractual provision is permitted by this Act.

8. Rights of trade unions and employers’ organisations

Every trade union and every employers’ organisation has the right—

(a) subject to the provisions of Chapter VI—

(i) to determine its own constitution and rules; and

(ii) to hold elections for its office-bearers, officials and representatives;

(b) to plan and organise its administration and lawful activities;

(d) to join a federation of trade unions or a federation of employers’ organisations, subject to its constitution, and to participate in its lawful activities; and

(e) to affiliate with, and participate in the affairs of, any international workers’ organisation of international employers’ organisation or the International Labour Organisation, and contribute to, or receive financial assistance from, those organisations.

9. Procedure for disputes*

* See flow diagram 1 in Schedule 4.

(1) If there is a dispute about the interpretation or application of any provision of this Chapter, any party to the dispute may refer the dispute in writing to—

(a) a council, if the parties to the dispute fall within the registered scope of that council; or

(b) the Commission, if no council has jurisdiction.

(2) The party who refers the dispute must satisfy the council or the Commission that a copy of the referral has been served on all the other parties to the dispute.

(3) The council or the Commission must attempt to resolve the dispute through conciliation.

(4) If the dispute remains unresolved, any party to the dispute may refer it to the Labour Court for adjudication.

10. Burden of proof

In any proceedings—

(a) a party who alleges that a right or protection conferred by this Chapter has been infringed must prove the facts of the conduct; and

(b) the party who engaged in that conduct must then prove that the conduct did not infringe any provision of this Chapter.

CHAPTER III

COLLECTIVE BARGAINING

PART A – ORGANISATIONAL RIGHTS

11. Trade union representativeness

In this Part, unless otherwise stated, “representative trade union” means a registered trade union, or two or more registered trade unions acting jointly, that are sufficiently representative of the employees employed by an employer in a workplace.

12. Trade union access to workplace

(1) Any office-bearer or official of a representative trade union is entitled to enter the employer’s premises in order to recruit members or communicate with members, or otherwise serve members’ interest.

(2) A representative trade union is entitled to hold meetings with employees outside their working hours at the employer’s premises.

(3) The members of a representative trade union are entitled to vote at the employer’s premises in any election or ballot contemplated in that trade union’s constitution.

(4) The rights conferred by this section are subject to any conditions as to time and place that are reasonable and necessary to safeguard life or property or to prevent undue disruption of work.

13. Deduction of trade union subscriptions or levies

(1) Any employee who is a member of a representative trade union may authorise the employer in writing to deduct subscriptions or levies payable to that trade union from the employee’s wages.

(2) An employer who receives an authorisation in terms of subsection (1) must begin making the authorised deduction as soon as possible and must remit the amount deducted to the representative trade union by not later than the 15^th day of the month first following the date each deduction was made.

(3) An employee may revoke an authorisation given in terms of subsection (1) by giving the employer and the representative trade union one month’s written notice or, if the employee works in the public service, three months’ written notice.

(4) An employer who receives a notice in terms of subsection (3) must continue to make the authorised deduction until the notice period has expired and then must stop making the deduction.

(5) With each monthly remittance, the employer must give the representative trade union—

(a) a list of the names of every member from whose wages the employer has made the deductions that are included in the remittance;

(b) details of the amounts deducted and remitted and the period to which the deductions related; and

14. Trade union representatives

(1) In this section, “representative trade union” means a registered trade union, or two or more registered trade unions acting jointly, that have as members the majority of the employees employed by an employer in a workplace.

(2) In any workplace in which at least 10 members of a representative trade union are employed, those members are entitled to elect from among themselves—

(a) if there are 10 members of the trade union employed in the workplace, one trade union representative;

(b) if there are more than 10 members of the trade union employed in the workplace, two trade union representatives;

(c) if there are more than 50 members of the trade union employed in the workplace, two trade union representatives for the first 50 members, plus a further one trade union representative for every additional 50 members up to a maximum of seven trade union representatives;

(d) if there are more than 300 members of the trade union employed in the workplace, seven trade union representatives for the first 300 members, plus one additional trade union representative for every 100 additional members up to a maximum of 10 trade union representatives;

(e) if there are more than 600 members of the trade union employed in the workplace, 10 trade union representatives for the first 600 members, plus one additional trade union representative for every 200 additional members up to a maximum of 12 trade union representatives; and

(f) if there are more than 1 000 members of the trade union employed in the workplace, 12 trade union representatives for the first 1 000 members, plus one additional trade union representative for every 500 additional members up to a maximum of 20 trade union representatives.

(3) The constitution of the representative trade union governs the nomination, election, term of office and removal from office of a trade union representative.

(4) A trade union representative has the right to perform the following functions—

(a) at the request of an employee in the workplace, to assist and represent the employee in grievance and disciplinary proceedings;

(b) to monitor the employer’s compliance with the workplace-related provisions of this Act, any law regulating terms and conditions of employment and any collective agreement binding on the employer;

(c) to report any alleged contravention of the workplace-related provisions of this Act, any law regulating terms and conditions of employment and any collective agreement binding on the employer to—

(i) the employer;

(ii) the representative trade union; and

(iii) any responsible authority or agency; and

(d) to perform any other function agreed to between the representative trade union and the employer.

(5) Subject to reasonable conditions, a trade union representative is entitled to take reasonable time off with pay during working hours—

(a) to perform the functions of a trade union representative; and

(b) to be trained in any subject relevant to the performance of the functions of a trade union representative.

15. Leave for trade union activities

(1) An employee who is an office-bearer of a representative trade union, or of a federation of trade unions to which the representative trade union is affiliated, is entitled to take reasonable leave during working hours for the purpose of performing the functions of that office.

(2) The representative trade union and the employer may agree to the number of days of leave, the number of days of paid leave and the conditions attached to any leave.

(3) An arbitration award in terms of section 21(7) regulating any of the matters referred to in subsection (2) remains in force for 12 months from the date of the award.

16. Disclosure of information

(1) For the purpose of this section, “representative trade union” means a registered trade union, or two or more registered acting jointly, that had as members the majority of the employees employed by an employer in a workplace.

(2) Subject to subsection (5), an employer must disclose to a trade union representative all relevant information that will allow the trade union representative to perform effectively the functions referred to in section 14(4).

(3) Subject to subsection (5), whenever an employer is consulting or bargaining with a representative trade union, the employer must disclose to the representative trade union all relevant information that will allow the representative trade union to engage effectively in consultation or collective bargaining.

(4) The employer must notify the trade union representative or the representative trade union in writing if any information disclosed in terms of subsection (2) or (3) is confidential.

(5) As employer is not required to disclose information—

(a) that is legally privileged;

(b) that the employer cannot disclose without contravening a prohibition imposed on the employer by any law or order of any court;

(d) that is private personal information relating to an employee, unless that employee consents to the disclosure of that information.

(6) If there is a dispute about what information is required to be disclosed in terms of this section, any party to the dispute may refer the dispute in writing to the Commission.

(7) The party who refers the dispute to the Commission must satisfy in that a copy of the referral has been served on all the other parties to the dispute.

(8) The Commission must attempt to resolve the dispute through conciliation.

(9) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.

(10) In any dispute about the disclosure of information contemplated in subsection (6), the commissioner must first decide whether or not the information is relevant.

(11) If the commissioner decides that the information is relevant and if it is information contemplated in subsection (5)(c) or (d), the commissioner must balance the harm that the disclosure is likely to cause to an employee or employer against the harm that the failure to disclose the information is likely to cause to the ability of a trade union representative to perform effectively the functions referred to in section 14(4) or the ability of a representative trade union to engage effectively in consultation or collective bargaining.

(12) If the commissioner decides that the balance of harm favours the disclosure of the information, the commissioner may order the disclosure of the information on terms designed to limit the harm likely to be caused to the employee or employer.

(13) When making an order in terms of subsection (12), the commissioner must take into account any breach of confidentiality in respect of information disclosed in terms of this section at that workplace and may refuse to order the disclosure of the information or any other confidential information which might otherwise be disclosed for a period specified in the arbitration award.

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

17. Restricted rights in domestic sector

(1) For the purposes of this section, “domestic sector” means the employment of employees engaged in domestic work in their employers’ homes or on the property on which the home is situated.

(2) The rights conferred on representative trade unions by this Part in so far as they apply to the domestic sector are subject to the following limitations—

(a) the right of access to the premises of the employer conferred by section 12 of an office-bearer or official of representative trade union does not include the right to enter the home of the employer, unless the employer agrees; and

(b) the right to the disclosure of information conferred by section 16 does not apply in the domestic sector.

18. Right to establish thresholds or representativeness

(1) An employer and a registered trade union whose members are a majority of the employees employed by that employer in a workplace, or the parties to a bargaining council, may conclude a collective agreement establishing a threshold of representativeness required in respect of one or more of the organisational rights referred to in sections 12, 13 and 15.

(2) A collective agreement concluded in terms of subsection (1) is not binding unless the thresholds of representativeness in the collective agreement are applied equally to any registered trade union seeking any of the organisational rights referred to in that subsection.

19. Certain organisational rights for trade union party to council

Registered trade unions that are parties to a council automatically have the rights contemplated in sections 12 and 13 in respect of all workplaces within the registered scope of the council regardless of their representativeness in any particular workplace.

20. Organisational rights in collective agreements

Nothing in this Part precludes the conclusion of a collective agreement that regulates organisational rights.

21. Exercise of rights conferred by this Part*

* See flow diagram 2 in Schedule 4.

(1) Any registered trade union may notify an employer in writing that it seeks to exercise one or more of the rights conferred by this Part in a workplace.

(2) The notice referred to in subsection (1) must be accompanied by a certified copy of the trade union’s certificate of registration and must specify—

(a) the workplace in respect of which the trade union seeks to exercise the rights;

(b) the representativeness of the trade union in that workplace, and the facts relied upon to demonstrate that it is a representative trade union; and

(3) Within 30 days of receiving the notice, the employer must meet the registered trade union and endeavour to conclude a collective agreement as to the manner in which the trade union will exercise the rights in respect of that workplace.

(4) If a collective agreement is not concluded, either the registered trade union or the employer may refer the dispute in writing to the Commission.

(5) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on the other party to the dispute.

(6) The Commission must appoint a commissioner to attempt to resolve the dispute through conciliation.

(7) If the dispute remains unresolved, either party to the dispute may request that the dispute may request that the dispute be resolved through arbitration.

(8) If the unresolved dispute is about whether or not the registered trade union is a representative trade union, the commissioner—

(a) must seek—

(i) to minimise the proliferation of trade union representation in a single workplace and, where possible, to encourage a system of a representative trade union in a workplace; and

(ii) to minimise the financial and administrative burden of requiring an employer to grant organisational rights to more than one registered trade union;

(b) must consider—

(i) the nature of the workplace;

(ii) the nature of the one or more organisational rights that the registered trade union seeks to exercise;

(iii) the nature of the sector in which the workplace is situated;

[S 21(8)(b)(iii) am by s 2(a) of Act 6 of 2014.]

(iv) the organisational history at the workplace or any other workplace of the employer; and

(v) the composition of the work-force in the workplace taking into account the extent to which there are employees assigned to work by temporary employment services, employees employed on fixed term contracts, part-time employees or employees in other categories of non-standard employment; and

[S 21(8)(b)(v) ins by s 2(a) of Act 6 of 2014.]

(c) may withdraw any of the organisational rights conferred by this Part and which are exercised by any other registered trade union in respect of that workplace, if that other trade union has ceased to be a representative trade union.

(8A) Subject to the provisions of subsection (8), a commissioner may in an arbitration conducted in terms of subsection (7) grant a registered trade union that does not have as members the majority of employees employed by an employer in a workplace—

(a) the rights referred to in section 14, despite any provision to the contrary in that section, if—

(i) the trade union is entitled to all of the rights referred to in sections 12, 13 and 15 in that workplace; and

(ii) no other trade union has been granted the rights referred to in section 14 in that workplace;

(b) the rights referred to in section 16, despite any provision to the contrary in that section, if—

(i) the trade union is entitled to all of the rights referred to in sections 12, 13, 14 and 15 in that workplace; and

(ii) no other trade union has been granted the rights referred to in section 16 in that workplace.

[S 21(8A) ins by s 2(b) of Act 6 of 2014.]

(8B) A right granted in terms of subsection (8A) lapses if the trade union concerned is no longer the most representative trade union in the workplace.

[S 21(8B) ins by s 2(b) of Act 6 of 2014.]

(8C) Subject to the provisions of subsection (8), a commissioner may in an arbitration conducted in terms of subsection (7) grant the rights referred to in sections 12, 13 or 15 to a registered trade union, or two or more registered trade unions acting jointly, that does not meet thresholds of representativeness established by a collective agreement in terms of section 18, if—

(a) all parties to the collective agreement have been given an opportunity to participate in the arbitration proceedings; and

(b) the trade union, or trade unions acting jointly, represent a significant interest, or a substantial number of employees, in the workplace.

[S 21(8C) ins by s 2(b) of Act 6 of 2014.]

(8D) Subsection (8C) applies to any dispute which is referred to the Commission after the commencement of the Labour Relations Amendment Act, 2014, irrespective of whether the collective agreement contemplated in subsection (8C) was concluded prior to such commencement date.

[S 21(8D) ins by s 2(b) of Act 6 of 2014.]

(9) In order to determine the membership or support of the registered trade union, the commissioner may—

(a) make any necessary inquiries;

(b) where appropriate conduct a ballot of the relevant employees; and

(10) The employer must co-operate with the commissioner when the commissioner acts in terms of subsection (9), and must make available to the commissioner any information and facilities that are reasonably necessary for the purposes of that subsection.

(11) An employer who alleges that a trade union is no longer a representative trade union may apply to the Commission to withdraw any of the organisational rights conferred by this Part, in which case the provisions of subsections (5) to (10) apply, read with the changes required by the context.

(12) If a trade union seeks to exercise the rights conferred by Part A in respect of employees of a temporary employment service, it may seek to exercise those rights in a workplace of either the temporary employment service or one or more clients of the temporary employment service, and if it exercises rights in a workplace of a client of the temporary employment service, any reference in Chapter III to the employer’s premises must be read as including the client’s premises.

[S 21(12) ins by s 2(c) of Act 6 of 2014.]

22. Disputes about organisational rights

(1) Any party to a dispute about the interpretation or application of any provision of this Part, other than dispute contemplated in section 21, may refer the dispute in writing to the Commission.

(2) The party who refers a dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.

(3) The Commission must attempt to resolve the dispute through conciliation.

(4) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration as soon as possible.

(5) An arbitration award in terms of Part A may be made binding on the employer and in addition to—

(a) the extent that it applies to the employees of a temporary employment service, a client of the temporary employment service for whom an employee covered by the award is assigned to work; and

(b) any person other than the employer who controls access to the workplace to which the award applies, if that person has been given an opportunity to participate in the arbitration proceedings.

[S 22(5) ins by s 3 of Act 6 of 2014.]

PART B – COLLECTIVE AGREEMENTS

23. Legal effect of collective agreement

(1) A collective agreement binds—

(a) the parties to the collective agreement;

(b) each party to the collective agreement and the members of every other party to the collective agreement, in so far as the provisions are applicable between them;

(c) the members of a registered trade union and the employers who are members of a registered employers’ organisation that are party to the collective agreement if the collective agreement regulates—

(i) terms and conditions of employment; or

(ii) the conduct of the employers in relation to their employees or the conduct of the employees in relation to their employers;

(d) employees who are not members of the registered trade union or trade unions party to the agreement if—

(i) the employees are identified in the agreement;

(ii) the agreement expressly bind the employees; and

(iii) that trade union or those trade unions have as their members the majority of employees employed by the employer in the workplace.

(2) A collective agreement binds for the whole period of the collective agreement every person bound in terms of subsection (1)(c) who was a member at the time it became binding, or who becomes a member after it became binding, whether or not that person continues to be a member of the registered trade union or registered employers’ organisation for the duration of the collective agreement.

(3) Where applicable, a collective agreement varies any contract or employment between an employee and employer who are both bound by the collective agreement.

(4) Unless the collective agreement provides otherwise, any party to a collective agreement that is concluded for an indefinite period may terminate the agreement by giving reasonable notice in writing to the other parties.

[S 23(4) subs by s 1 of Act 12 of 2002.]

24. Disputes about collective agreements

(1) Every collective agreement excluding an agency shop agreement concluded in terms of section 25 or a closed shop agreement concluded in terms of section 26 or a settlement agreement contemplated in either section 142A or 158(1)(c), must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement. The procedure must first require the parties to attempt to resolve the dispute through conciliation and, if the dispute remains unresolved, to resolve it through arbitration.

[S 24(1) subs by s 2 of Act 12 of 2002.]

(2) If there is a dispute about the interpretation or application of a collective agreement, any party to the dispute may refer the dispute in writing to the Commission if—

(a) the collective agreement does not provide for a procedure as required by subsection (1);

(b) the procedure provided for in the collective agreement is not operative; or

(c) any party to the collective agreement has frustrated the resolution of the dispute in terms of the collective agreement.

(3) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.

(4) The Commission must attempt to resolve the dispute through conciliation.

(5) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.*

* See flow diagram 3 in Schedule 4.

(6) If there is a dispute about the interpretation or application of an agency shop agreement concluded in terms of section 25 or a closed shop agreement concluded in terms of section 26, any party to the dispute may refer the dispute in writing to the Commission, and subsections (3) to (5) will apply to that dispute.*

* See flow diagram 4 in Schedule 4.

(7) Any person bound by an arbitration award about the interpretation or application of section 25(3)(c) and (d) or section 26(3)(d) may appeal against that award to the Labour Court.

(8) If there is a dispute about the interpretation or application of a settlement agreement contemplated in either section 142A or 158(1)(c), a party may refer the dispute to a council or the Commission and subsections (3) to (5), with the necessary changes, apply to that dispute.

[S 24(8) ins by s 2 of Act 12 of 2002.]

25. Agency shop agreements

(1) A representative trade union and an employer or employers’ organisation may conclude a collective agreement, to be known as an agency shop agreement, requiring the employer to deduct an agreed agency fee from the wages of employees identified in the agreement who are not members of the trade union but are eligible for membership thereof.

[S 25(1) subs by s 1(a) of Act 42 of 1996.]

(2) For the purposes of this section, “representative trade union” means a registered trade union, or two or more registered trade unions acting jointly, whose members are a majority of the employees employed—

(a) by an employer in a workplace; or

(b) by the members of an employers’ organisation in a sector and area in respect of which the agency shop agreement applies.

(3) An agency shop agreement is binding only if it provides that—

(a) employees who are not members of the representative trade union are not compelled to become members of that trade union;

(b) the agreed agency fee must be equivalent to, or less than—

(i) the amount of the subscription payable by the members of the representative trade union;

(ii) if the subscription of the representative trade union is calculated as a percentage of an employee’s salary, that percentage; or

(iii) if there are two or more registered trade unions party to the agreement, the highest amount of the subscription that would apply to an employee;

(d) no agency fee deducted may be—

[Words preceding s 25(3)(d)(i) subs by s 1(b) of Act 42 of 1996.]

(i) paid to a political party as an affiliation fee;

(ii) contributed in cash or kind to a political party or a person standing for election to any political office; or

(iii) used for any expenditure that does not advance or protect the socio-economic interest of employees.

(4)

(a) Despite the provisions of any law or contract, an employer may deduct the agreed agency free from the wages of an employee without the employee’s authorisation.

(b) Despite subsection (3)(c) a conscientious objector may request the employer to pay the amount deducted from that employee’s wages into a fund administered by the Department of Labour.

(5) The provisions of sections 98 and 100(b) and (c) apply, read with the changes required by the context, to the separate account referred to in subsection (3)(c).

(6) Any person may inspect the auditor’s report, in so far as it relates to an account referred to in subsection (3)(c), in the registrar’s office.

(7) The registrar must provide a certified copy of, or extract from, any of the documents referred to in subsection (6) to any person who has paid the prescribed fees.

(8) An employer or employers’ organisation that alleges that a trade union is no longer a representative trade union in terms of subsection (1) must give the trade union written notice to establish that it is a representative trade union.

(9) If, within the 90 day period, the trade union fails to establish that it is a representative trade union, the employer must give the trade union and the employees covered by the agency shop agreement 30 days’ notice of termination, after which the agreement will terminate.

(10) If an agency shop agreement is terminated, the provisions of subsection (3)(c) and (d) and (5) apply until the money in the separate account is spent.

26. Closed shop agreements

(1) A representative trade union and an employer or employers’ organisation may conclude a collective agreement, to be known as a closed shop agreement, requiring all employees covered by the agreement to be members of the trade union.

(2) For the purposes of this section, “representative trade union” means a registered trade union, or two or more registered trade unions acting jointly, whose members are a majority of the employees employed—

(a) by an employer in a workplace; or

(b) by the members of an employers’ organisation in a sector and area in respect of which the closed shop agreement applies.

(3) A closed shop agreement is binding only if—

(a) a ballot has been held of the employees to be covered by the agreement;

(b) two-thirds of the employees who voted have voted in favour of the agreement;

(c) there is no provision in the agreement requiring membership of the representative trade union before employment commences; and

(d) it provides that no membership subscription or levy deducted may be—

[Words preceding s 26(3)(d)(i) subs by s 2 of Act 42 of 1996.]

(i) paid to a political party as an affiliation fee;

(ii) contributed in cash or kind to a political party or a person standing for election to any political office; or

(iii) used for any expenditure that does not advance or protect the socio-economic interests of employees.

(4) Despite subsection (3)(b), a closed shop agreement contemplated in subsection (2)(b) may be concluded between a registered trade union and a registered employers’ organisation in respect of a sector and area to become binding in every workplace in which—

(a) a ballot has been held of the employees to be covered by the agreement; and

(b) two-thirds of the employees who voted have voted in favour of the agreement.

(5) No trade union that is party to a closed shop agreement may refuse an employee membership or expel an employee from the trade union unless—

(a) the refusal or expulsion is in accordance with the trade union’s constitution; and

(b) the reason for the refusal or expulsion is fair, including, but not limited to, conduct that undermines the trade union’s collective exercise of its rights.

(6) It is not unfair to dismiss an employee—

(a) for refusing to join a trade union party to a closed shop agreement;

(b) who is refused membership of a trade union party to a closed shop agreement if the refusal is in accordance with the provisions of subsection (5); or

(c) who is expelled from a trade union party to a closed shop agreement if the expulsion is in accordance with the provisions of subsection (5).

(7) Despite subsection (6)—

(a) the employees at the time a closed shop agreement takes effect may not be dismissed for refusing to join a trade union party to the agreement; and

(b) employees may not be dismissed for refusing to join a trade union party to the agreement on grounds of conscientious objection.

(8) The employees referred to in subsection (7) may be required by the closed shop agreement to pay an agreed agency fee, in which case the provisions of section 253(b), (c) and (d) and (4) to (7) apply.

(9) If the Labour Court decides that a dismissal is unfair because the refusal of membership of or the expulsion from a trade union party to be closed shop agreement was unfair, the provisions of Chapter VIII apply, except that any order of comprehension in terms of that Chapter must be made against the trade union.

(10) A registered trade union that represents a significant interest in, or a substantial number of, the employees covered by a closed shop agreement may notify the parties to the agreement of its intention to apply to become a party to the agreement and, within 30 days of the notice, the employer must convene a meeting of the parties and the registered trade union in order to consider the application.

(11) If the parties to a closed shop agreement do not admit the registered trade union as a party, the trade union may refer the dispute in writing to the Commission.

(12) The registered trade union must satisfy the Commission that a copy of the referral has been served on all the parties to the closed shop agreement.

(13) The Commission must attempt to resolve the dispute through conciliation.

(14) If the dispute remains unresolved, any party to the dispute may refer it to the Labour Court for adjudication.

(15) The representative trade union must conduct a ballot of the employees covered by the closed shop agreement to determine whether the agreement should be terminated if—

(a) one-third of the employees covered by the agreement sign a petition calling for the termination of the agreement; and

(b) three years have elapsed since the date on which the agreement commenced or the last ballot was conducted in terms of this section.

(16) If a majority of the employees who voted, have voted to terminate the closed shop agreement, the agreement will terminate.

(17) Unless a collective agreement provides otherwise, the ballot referred to in subsections (3)(a) and (15) must be conducted in accordance with the guidelines published by the Commission.

PART C – BARGAINING COUNCILS

27. Establishment of bargaining councils

(1) One or more registered trade unions and one or more registered employers’ organisations may establish a bargaining council for a sector and area by—

(a) adopting a constitution that meets the requirements of section 30; and

(b) obtaining registration of the bargaining council in terms of section 29.

(2) The State may be a party to any bargaining council established in terms of this section if it is an employer in the sector and area in respect of which the bargaining council is established.

(3) If the State is a party to a bargaining council in terms of subsection (2), any reference to a registered employers’ organisation includes a reference to the State as a party.

(4) A bargaining council may be established for more than one sector.

[S 27(4) ins by s 3 of Act 42 of 1996.]

28. Powers and functions of bargaining council

(1) The powers and functions of a bargaining council in relation to its registered scope include the following—

(a) to conclude collective agreements;

(b) to enforce those collective agreements;

(d) to perform the dispute resolution functions referred to in section 51;

(e) to establish and administer a fund to be used for resolving disputes;

(f) to promote and establish training and education schemes;

(g) to establish and administer pension, provident, medical aid, sick pay, holiday, unemployment and training schemes or funds or any similar schemes or funds for the benefit of one or more of the parties to the bargaining council or their members;

(h) to develop proposals for submission to NEDLAC or any other appropriate forum on policy and legislation that may affect the sector and area;

(i) to determine by collective agreement the matters which may not be an issue in dispute for the purposes of a strike or lock-out at the workplace;

[S 28(1)(i) am by s 3(a) of Act 12 of 2002.]

(j) to confer on workplace forums additional matters for consultation;

(k) to provide industrial support services within the sector; and

[S 28(1)(k) ins by s 3(b) of Act 12 of 2002.]

(l) to extend the services and functions of the bargaining council to workers in the informal sector and home workers.

[S 28(1)(l) ins by s 3(b) of Act 12 of 2002; s 28 renumbered as 28(1) by s 1 of Act 127 of 1998.]

(2) From the date on which the Labour Relations Amendment Act, 1998, comes into operation, the provisions of the laws relating to pension, provident or medical aid schemes or funds must be complied with in establishing any pension, provident or medical aid scheme or fund in terms of subsection (1)(g).

[S 28(2) ins by s 1 of Act 127 of 1998.]

(3) The laws relating to pension, provident or medical aid schemes or funds will apply in respect of any pension, provident or medical aid scheme or fund established in terms of subsection (1)(g) after the coming into operation of the Labour Relations Amendment Act, 1998.

[S 28(3) ins by s 1 of Act 127 of 1998.]

29. Registration of bargaining councils

(1) The parties referred to in section 27 may apply for registration of a bargaining council by submitting to the registrar—

(a) the prescribed form that has been properly completed;

(b) a copy of its constitution; and

(c) any other information that may assist the registrar to determine whether or not the bargaining council meets the requirements for registration.

(2) The registrar may require further information in support of the application.

(3) As soon as practicable after receiving the application the registrar must publish a notice containing the material particulars of the application in the Government Gazette and send a copy of the notice to NEDLAC. The notice must inform the general public that they—

(a) may object to the application on any of the grounds referred to in subsection (4); and

(b) have 30 days from the date of the notice to serve any objection on the registrar and a copy on the applicant.

[S 29(3) subs by s 4(a) of Act 12 of 2002.]

(4) Any person who objects to the applicant must satisfy the registrar that a copy of the objection has been served on the applicant and that the objection is on any of the following grounds—

(a) the applicant has not complied with the provisions of this section;

(b) the sector and area in respect of which the applicant is made is not appropriate;

(5) The registrar may require further information in support of the objection.

(6) The applicant may respond to an objection within 14 days of the expiry of the period referred to in subsection (3)(b), and must satisfy the registrar that a copy of that response has been served on the person who objected.

(7) The registrar, as soon as practicable, must send the application and any objections, responses and further information to NEDLAC to consider.

(8) NEDLAC, within 90 days of receiving the documents from the registrar, must—

(a) consider the appropriateness of the sector and area in respect of which the application is made;

(b) demarcate the appropriate sector and area in respect of which the bargaining council should be registered; and

(9) If NEDLAC fails to agree on a demarcation as required in subsection (8)(b), the Minister must demarcate the appropriate sector and area and advise the registrar.

(10) In determining the appropriateness of the sector and area for the demarcation contemplated in subsection (8)(b), NEDLAC or the Minister must seek to give effect to the primary objects of this Act.

(11) The registrar—

(a) must consider the application and any further information provided by the applicant;

(b) must determine whether—

(i) the applicant has complied with the provisions of this section;

(ii) the constitution of the bargaining council complies with section 30;

(iii) adequate provision is made in the constitution of the bargaining council for the representation of small and medium enterprises;

(iv) the parties to the bargaining council are sufficiently representative of the sector and area determined by NEDLAC or the Minister; and

(v) there is no other council registered for the sector and area in respect of which the application is made; and

(c) if satisfied that the applicant meets the requirements for registration, must register the bargaining council by entering the applicant’s name in the register of councils.

(12) If the registrar is not satisfied that the applicant meets the requirements for registration, the registrar—

(a) must send the applicant a written notice of the decision and the reasons for that decision; and

(b) in that notice, must inform the applicant that it has 30 days from the date of the notice to meet those requirements.

(13) If, within that 30 day period, the applicant meets those requirements, the registrar must register the applicant by entering the applicant’s name in the register of councils.

(14) If, after the 30 day period, the registrar concludes that the applicant has failed to meet the requirements for registration, the registrar must—

(a) refuse to register the applicant; and

(b) notify the applicant and any person that objected to the application of that decision in writing.

(15) After registering the applicant, the registrar must—

(a) issue a certificate of registration in the applicant’s name that must specify the registered scope of the applicant; and

(b) send the registration certificate and a certified copy of the registered constitution to the applicant.

(16) Subsections (3) to (10) and (11)(b)(iii) and (iv) do not apply to the registration or amalgamation of bargaining councils in the public service.

[S 29(16) ins by s 4(b) of Act 12 of 2002.]

30. Constitution of bargaining council

(1) The constitution of every bargaining council must at least provide for—

[Words preceding s 30(1)(a) subs by s 5(a) of Act 42 of 1996.]

(a) the appointment of representatives of the parties to the bargaining council, of whom half must be appointed by the trade unions that are party to the bargaining council and the other half by the employers’ organisations that are party to the bargaining council, and the appointment of alternates to the representatives;

(b) the representation of small and medium enterprises;

(d) rules for the convening and conducting of meetings of representatives, including the quorum required for, and the minutes to be kept of, those meetings;

(e) the manner in which decisions are to be made;

(f) the appointment or election of office-bearers and officials, their functions, and the circumstances and manner in which they may be removed from office;

(g) the establishment and functioning of committees;

(h) the determination through arbitration of any dispute arising between the parties to the bargaining council about the interpretation or application of the bargaining council’s constitution;

(i) the procedure to be followed if a dispute arises between the parties to the bargaining council;

(j) the procedure to be followed if a dispute arises between a registered trade union that is a party to the bargaining council, or its members, or both, on the one hand, and employers who belong to a registered employers’ organisation that is a party to the bargaining council, on the other hand;

(k) the procedure for exemption from collective agreements;

(l) the banking and investment of its funds;

(m) the purposes for which its funds may be used;

(n) the delegation of its powers and functions;

(o) the admission of additional registered trade unions and registered employers’ organisations as parties to the bargaining council, subject to the provisions of section 56;*

* Section 56 provides for a procedure for the admission of parties to a council.

(p) a procedure for changing its constitution; and

(q) a procedure by which it may resolve to wind up.

(2) The requirements for the constitution of a bargaining council in subsection (1) apply to the constitution of a bargaining council in the public service except that—

(a) any reference to an “employers’ organisation” must be read as a reference to the State as employer; and

(b) the requirement in subsection (1)(b) concerning the representation of small and medium enterprises does not apply.

(3) The constitution of the Public Service Co-ordinating Bargaining Council must include a procedure for establishing a bargaining council in a sector of the public service designated in terms of section 37(1).

(4) The constitution of a bargaining council in the public service may include provisions for the establishment and functioning of chambers of a bargaining council on national and regional levels.

(5) The procedures for the resolution of disputes referred to in subsection (1)(h), (i) and (j) may not entrust dispute resolution functions to the Commission unless the governing body of the Commission has agreed thereto.

[S 30(5) ins by s 5(b) of Act 42 of 1996.]

31. Binding nature of collective agreement concluded in bargaining council

Subject to the provisions of section 32 and the constitution of the bargaining council, a collective agreement concluded in a bargaining council binds—

(a) the parties to the bargaining council who are also parties to the collective agreement;

(b) each party to the collective agreement and the members of every other party to the collective agreement in so far as the provisions thereof apply to the relationship between such a party and the members of such other party; and

(c) the members of a registered trade union that is a party to the collective agreement and the employers who are members of a registered employers’ organisation that is such a party, if the collective agreement regulates—

(i) terms and conditions of employment; or

(ii) the conduct of the employers in relation to their employees or the conduct of the employees in relation to their employers.

[S 31 subs by s 6 of Act 42 of 1996.]

32. Extension of collective agreement concluded in bargaining council

(1) A bargaining council may ask the Minister in writing to extend a collective agreement concluded in the bargaining council to any non-parties to the collective agreement that are within its registered scope and are identified in the request, if at a meeting of the bargaining council—

(a) one or more registered trade unions whose members constitute the majority of the members of the trade unions that are party to the bargaining council vote in favour of the extension; and

(b) one or more registered employers’ organisations, whose members employ the majority of the employees employed by the members of the employers’ organisations that are party to the bargaining council, vote in favour of the extension.

(2) Subject to subsection (2A), the Minister must extend the collective agreement, as requested, by publishing a notice in the Government Gazette, within 60 days of receiving the request declaring that, from a specified date and for a specified period, the collective agreement will be binding on the non-parties specified in the notice.

[S 32(2) subs by s 1(1)(a) of Act 8 of 2018.]

(2A) If the registrar determines that the parties to the bargaining council are sufficiently representative within the registered scope of the bargaining council for the purposes of subsection (5)(a), the Minister must publish the notice contemplated in subsection (2) within 90 days of the request.

[S 32(2A) subs by s 1(1)(b) of Act 8 of 2018.]

(3) A collective agreement may not be extended in terms of subsection (2) unless the Minister is satisfied that—

(a) the decision by the bargaining council to request the extension of the collective agreement complies with the provisions of subsection (1);

(b)

(i) the registrar, in terms of section 49(4A)(a), has determined that the majority of all the employees who, upon extension of the collective agreement, will fall within the scope of the agreement, are members of the trade unions that are parties to the bargaining council; or

[S 32(3)(b) subs by s 7(a) of Act 42 of 1996; renumbered as (b)(i) and amended by s 1(1)(c) of Act 8 of 2018.]

(ii) the registrar, in terms of section 49(4A)(a), has determined that the members of the employers’ organisations that are parties to the bargaining council will, upon extension of the collective agreement, be found to employ the majority of all the employees who fall within the scope of the collective agreement;

[S 32(3)(c) subs by s 7(a) of Act 42 of 1996; renumbered as (b)(ii) and amended by s 1(1)(c) of Act 8 of 2018]

(d) the non-parties specified in the request fall within the bargaining council’s registered scope;

(dA) the bargaining council has in place an effective procedure to deal with applications by non-parties for exemptions from the provisions of the collective agreement and is able to decide an application for an exemption within 30 days;

[S 32(3)(dA) ins by s 4(a) of Act 6 of 2014.]

(e) provision is made in the collective agreement for an independent body to hear and decide, as soon as possible and not later than 30 days after the appeal is lodged, any appeal brought against—

[Words preceding s 32(3)(e)(i) subs by s 4(b) of Act 6 of 2014.]

(i) the bargaining council’s refusal of a non-party’s application for exemption from the provisions of the collective agreement;

(ii) the withdrawal of such an exemption by the bargaining council;

[S 32(3)(e) subs by s 2(a) of Act 127 of 1998.]

(f) the collective agreement contains criteria that must be applied by the independent body when it considers an appeal, and that those criteria are fair and promote the primary objects of this Act; and

[S 32(3)(f) subs by s 2(a) of Act 127 of 1998.]

(g) the terms of the collective agreement do not discriminate against non-parties.

(3A) No representative, office-bearer or official of a trade union or employers’ organisation party to the bargaining council may be a member of, or participate in the deliberations of, the appeal body established in terms of subsection (3)(e).

[S 32(3A) ins by s 4(c) of Act 6 of 2014.]

(3B) The Minister may make regulations on the procedures and criteria that a bargaining council must take into consideration when developing the criteria for the purposes of section 32(3)(dA), (e) and (f).

[S 32(3B) ins by s 1(1)(d) of Act 8 of 2018.]

(4) …

[S 32(4) rep by s 2(b) of Act 127 of 1998.]

(5) Despite subsection (3)(b) and (c), the Minister may extend a collective agreement in terms of subsection (2) if—

(a) the registrar has, in terms of section 49(4A)(b), determined that the parties to the bargaining council are sufficiently representative within the registered scope of the bargaining council;

[S 32(5)(a) subs by s 7(b) of Act 42 of 1996, s 5(a) of Act 12 of 2002; am by s 4(d) of Act 6 of 2014; s 1(1)(e) of Act 8 of 2018.]

(b) the Minister is satisfied that failure to extend the agreement may undermine collective bargaining at sectoral level or in the public service as a whole;

[S 32(5)(b) subs by s 7(b) of Act 42 of 1996.]

(c) the Minister has published a notice in the Government Gazette stating that an application for an extension in terms of this subsection has been received, stating where a copy may be inspected or obtained, and inviting comment within a period of not less than 21 days from the date of the publication of the notice; and

[S 32(5)(c) ins by s 4(d) of Act 6 of 2014.]

(d) the Minister has considered all comments received during the period referred to in paragraph (c).

[S 32(5)(d) ins by s 4(d) of Act 6 of 2014.]

(5A) When determining whether the parties to the bargaining council are sufficiently representative for the purposes of subsection (5)(a), the registrar may take into account the composition of the workforce in the sector, including the extent to which there are employees assigned to work by temporary employment services, employees employed on fixed term contracts, part-time employees or employees in other categories of non-standard employment.

[S 32(5A) ins by s 4(e) of Act 6 of 2014; subs by s1(1)(f) of Act 8 of 2018.]

(6)

(a) After a notice has been published in terms of subsection (2) or (2A), the Minister, at the request of the bargaining council, may publish a further notice in the Government Gazette—

[S 32(6)(a) am by s 1(1)(g) of Act 8 of 2018.]

(i) extending the period specified in the earlier notice by a further period determined by the Minister; or

(ii) if the period specified in the earlier notice has expired, declaring a new date from which, and a further period during which, the provisions of the earlier notice will be effective.

(b) …

[S 32(6)(b) rep by s 1(1)(h) of Act 8 of 2018.]

(7) The Minister, at the request of the bargaining council, must publish a notice in the Government Gazette cancelling all or part of any notice published in terms of subsection (2) or (6) from a date specified in the notice.

(8) Whenever any collective agreement in respect of which a notice has been published in terms of subsection (2) or (6) is amended, amplified or replaced by a new collective agreement, the provisions of this section apply to that new collective agreement.

(9) For the purposes of extending collective agreements concluded in the Public Service Co-ordinating Bargaining Council or any bargaining council contemplated in section 37(3) or (4)—

(a) any reference in this section to an employers’ organisation must be read as a reference to the State as employer; and

(b) subsections (3)(c), (e) and (f) and (4) of this section will not apply.

[S 32(9) ins by s 7(c) of Act 42 of 1996.]

(10) If the parties to a collective agreement that has been extended in terms of this section terminate the agreement, they must notify the Minister in writing.

[S 32(10) ins by s 5(b) of Act 12 of 2002.]

(11) A bargaining council that has a collective agreement extended in terms of this section must ensure that the independent appeal body is able to determine appeals within the period specified in subsection (3)(f).

[S 32(11) ins by section 4(f) of Act 6 of 2014.]

32A. Renewal and extension of funding agreements

(1) For the purposes of this section—

(a) a ‘funding agreement’ means a collective agreement concluded in a bargaining council, including a provision in such an agreement to fund—

(i) the operational and administrative activities of the bargaining council itself;

(ii) a dispute resolution fund referred to in section 28(1)(e);

(iii) a training and education scheme contemplated in section 28(1)(f); or

(iv) a pension, provident, medical aid, sick pay, holiday, unemployment and training schemes or funds or any similar schemes or funds for the benefit of one or more of the parties to the bargaining council or their members, as contemplated in section 28(1)(g);

(b) the ‘renewal of a funding agreement’ means an agreement that is—

(i) binding on the parties to the agreement; and

(ii) deemed to be an extension of the agreement to non-parties in terms of section 32(2).

(2) Subject to subsection (3), and where the Minister is satisfied that the failure to renew the funding agreement may undermine collective bargaining at sectoral level, the Minister may renew a funding agreement for up to 12 months at the request of any of the parties to a bargaining council if—

(a) the funding agreement has expired; or

(b) the parties have failed to conclude a collective agreement to renew or replace the funding agreement before 90 days of its expiry.

(3) The Minister must, before making a decision under subsection (2)—

(a) publish a notice in the Government Gazette calling for public comment on the request within a period stipulated in the notice; and

(b) consider the comments received.

(4) Any review of the Minister’s decision under subsection (2) must be determined by the Labour Court and any such decision remains in force until—

(a) set aside by the Labour Court; or

(b) if the decision is taken on appeal, set aside by the Labour Appeal Court or the Constitutional Court, as the case may be.

[S 32A ins by s 2 of Act 8 of 2018.]

33. Appointment and powers of designated agents of bargaining councils

(1) The Minister may at the request of a bargaining council appoint any person as the designated agent of that bargaining council to promote, monitor and enforce compliance with any collective agreement concluded in that bargaining council.

[S 33(1) subs by s 6(a) of Act 12 of 2002.]

(1A) A designated agent may—

(a) secure compliance with the council’s collective agreements by—

(i) publicising the contents of the agreements;

(ii) conducting inspections;

(iii) investigating complaints; or

(iv) any other means the council may adopt; and

(b) perform any other functions that are conferred or imposed on the agent by the council.

[S 33(1A) ins by s 6(b) of Act 12 of 2002.]

(2) A bargaining council must provide each designated agent with a certificate signed by the secretary of the bargaining council stating that the agent has been appointed in terms of this Act as a designated agent of that bargaining council.

(3) Within the registered scope of the bargaining council, a designated agent of the bargaining council has all the powers set out in Schedule 10.

[S 33(3) subs by s 6(c) of Act 12 of 2002.]

(4) The bargaining council may cancel the certificate provided to a designated agent in terms of subsection (2) and the agent then ceases to be a designated agent of the bargaining council and must immediately surrender the certificate to the secretary of the bargaining council.

33A. Enforcement of collective agreements by bargaining councils

(1) Despite any other provision in this Act, a bargaining council may monitor and enforce compliance with its collective agreements in terms of this section or a collective agreement concluded by the parties to the council.

(2) For the purposes of this section, a collective agreement is deemed to include—

(a) any basic condition of employment which in terms of section 49(1) of the Basic Conditions of Employment Act constitutes a term of employment of any employee covered by the collective agreement; and

(b) the rules of any fund or scheme established by the bargaining council.

(3) A collective agreement in terms of this section may authorise a designated agent appointed in terms of section 33 to issue a compliance order requiring any person bound by that collective agreement to comply with the collective agreement within a specified period.

(4)

(a) The council may refer any unresolved dispute concerning compliance with any provision of a collective agreement to arbitration by an arbitrator appointed by the council.

(b) If a party to an arbitration in terms of this section, that is not a party to the council, objects to the appointment of an arbitrator in terms of paragraph (a), the Commission, on request by the council, must appoint an arbitrator.

(i) the Council remains liable for the payment of the arbitrator’s fee; and

(ii) the arbitration is not conducted under the auspices of the Commission.

(5) An arbitrator conducting an arbitration in terms of this section has the powers of a commissioner in terms of section 142, read with the changes required by the context.

(6) Section 138, read with the changes required by the context, applies to any arbitration conducted in terms of this section.

(7) An arbitrator acting in terms of this section may determine any dispute concerning the interpretation or application of a collective agreement.

(8) An arbitrator conducting an arbitration in terms of this section may make an appropriate award, including—

(a) ordering any person to pay any amount owing in terms of a collective agreement;

(b) imposing a fine for a failure to comply with a collective agreement in accordance with subsection (13);

(d) ordering a party to pay the costs of the arbitration;

(e) confirming, varying or setting aside a compliance order issued by a designated agent in accordance with subsection (4);

(f) any award contemplated in section 138(9).

(9) Interest on any amount that a person is obliged to pay in terms of a collective agreement accrues from the date on which the amount was due and payable at the rate prescribed in terms of section 1 of the Prescribed Rate of Interest Act, 1975 (Act 55 of 1975), unless the arbitration award provides otherwise.

(10) An award in an arbitration conducted in terms of this section is final and binding and may be enforced in terms of section 143.

(11) Any reference in section 138 or 142 to the director must be read as a reference to the secretary of the bargaining council.

(12) If an employer upon whom a fine has been imposed in terms of this section files an application to review and set aside an award made in terms of subsection (8), any obligation to pay a fine is suspended pending the outcome of the application.

(13)

(a) The Minister may, after consulting NEDLAC, publish in the Government Gazette a notice that sets out the maximum fines that may be imposed by an arbitrator acting in terms of this section.

(b) A notice in terms of paragraph (a) may specify the maximum fine that may be imposed—

(i) for a breach of a collective agreement—

(aa) not involving a failure to pay any amount of money;

(bb) involving a failure to pay any amount of money; and

(ii) for repeated breaches of the collective agreement contemplated in subparagraph (i).

[S 33A ins by s 7 of Act 12 of 2002.]

34. Amalgamation of bargaining councils

(1) A bargaining council may resolve to amalgamate with one or more other bargaining councils.

(2) The amalgamating bargaining councils may apply to the registrar for registration of the amalgamated bargaining council and the registrar must treat the application as an application in terms of section 29.

(3) If the registrar has registered the amalgamated bargaining council, the registrar must cancel the registration of each of the amalgamating bargaining councils by removing their names from the register of councils.

(4) The registration of an amalgamated bargaining council takes effect from the date that the registrar enters its name in the register of councils.

(5) When the registrar has registered an amalgamated bargaining council—

(a) all the assets, rights, liabilities and obligations of the amalgamating bargaining councils devolve upon and vest in the amalgamated bargaining council; and

(b) all the collective agreements of the amalgamating bargaining councils, regardless of whether or not they were extended in terms of section 32, remain in force for the duration of those collective agreements, unless amended or terminated by the amalgamated bargaining council.

PART D – BARGAINING COUNCILS IN THE PUBLIC SERVICE

35. Bargaining councils in public service

There will be a bargaining council for—

(a) the public service as a whole, to be known as the Public Service Co-ordinating Bargaining Council; and

(b) any sector within the public service that may be designated in terms of section 37.

36. Public Service Co-ordinating Bargaining Council

(1) The Public Service Co-ordinating Bargaining Council must be established in accordance with Schedule 1.*

* Schedule 1 deals with the procedure for the establishment of the Public Service Co-ordinating Bargaining Council.

(2) The Public Service Co-ordinating Bargaining Council may perform all the functions of a bargaining council in respect of those matters that—

(a) are regulated by uniform rules, norms and standards that apply across the public service; or

(b) apply to terms and conditions of service that apply to two or more sectors; or

(c) are assigned to the State as employer in respect of the public service that are not assigned to the State as employer in any sector.

37. Bargaining councils in sectors in public service

(1) The Public Service Co-ordinating Bargaining Council may, in terms of its constitution and by resolution—

(a) designate a sector of the public service for the establishment of a bargaining council; and

(b) vary the designation of, amalgamate or disestablish bargaining councils so established.

(2) A bargaining council for a sector designated in terms of subsection (1)(a) must be established in terms of the constitution of the Public Service Co-ordinating Bargaining Council.

(3) If the parties in the sector cannot agree to a constitution for the bargaining council for a sector designated in terms of subsection (1)(a), the Registrar must determine its constitution.

(4) The relevant resolution made in terms of subsection (1) must accompany any application to register or vary the registration of a bargaining council or to register an amalgamated bargaining council.

(5) A bargaining council established in terms of subsection (2) has exclusive jurisdiction in respect of matters that are specific to that sector and in respect of which the State as employer in that sector, has the requisite authority to conclude collective agreements and resolve labour disputes.

[S 37 am by s 8 of Act 42 of 1996; subs by s 8 of Act 12 of 2002.]

38. Disputes between bargaining councils in public service

(1) If there is a jurisdictional dispute between two or more bargaining councils in the public service, including the Public Service Co-ordinating Bargaining Council, any party to the dispute may refer the dispute in writing to the Commission.

(2) The party who refers the dispute to the Commission must satisfy the Commission that a copy of the referral has been served on all other bargaining councils that are parties to the dispute.

(3) The Commission must attempt to resolve the dispute as soon as possible through conciliation.

(4) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration by the Commission.

[S 38 am by s 9 of Act 42 of 1996; subs by s 9 of Act 12 of 2002.]

PART E – STATUTORY COUNCILS

39. Application to establish statutory council

(1) For the purposes of this Part—

(a) “representative trade union” means a registered trade union, or two or more registered trade unions acting jointly, whose members constitute at least 30 per cent of the employees in a sector and area; and

(b) “representative employers’ organisation” means a registered employers’ organisation, or two or more registered employers’ organisations acting jointly, whose members employ at least 30 per cent of the employees in a sector and area.

(2) A representative trade union or representative employers’ organisation may apply to the registrar in the prescribed form for the establishment of a statutory council in a sector and area in respect of which no council is registered.

(3) The registrar must apply the provisions of section 29(2) to (10)* to the application—

* The provisions of section 29 deal with the procedure for the registration of a bargaining council.

(a) read with the changes required by the context; and

(b) subject to the deletion of the word “sufficiently” in section 29(4)(c).

(4) The registrar must—

(a) consider the application and any further information provided by the applicant; and

(b) determine whether—

(i) the applicant has complied with section 29 and of this section;

(ii) the applicant is representative of the sector and area determined by NEDLAC of the Minister; and

(iii) there is no other council registered for the sector and area in respect of which the application is made.

(5) If the registrar is not satisfied that the applicant meets the requirements for establishment, the registrar must—

(a) send the applicant a written notice of the decision and the reasons for that decision; and

(b) in that notice, inform the applicant that it has 30 days from the date of the notice to meet those requirements.

(6) If, after the 30 day period, the registrar concluded that the applicant has failed to meet the requirements for establishment, the registrar must—

(a) refuse to register the applicant; and

(b) notify the applicant and any person that objected to the application in writing of that decision.

40. Establishment and registration of statutory council

(1) If the registrar is satisfied that the applicant meets the requirements for the establishment of a statutory council, the registrar, by notice in the Government Gazette, must establish the statutory council for a sector and area.

(2) The notice must invite—

(a) registered trade unions and registered employers’ organisations in that sector and area to attend a meeting; and

(b) any interested parties in that sector and area to nominate representatives for the statutory council.

(3) The Commission must appoint a commissioner to chair the meeting and facilitate the conclusion of an agreement on—

(a) the registered trade unions and registered employers’ organisations to be parties to the statutory council; and

(b) a constitution that meets the requirements of section 30, read with the changes required by the context.

(4) If an agreement is concluded, the Minister may advise the registrar to register the statutory council in accordance with the agreement if the Minister is satisfied that—

(a) every registered trade union and registered employers’ organisation that ought to have been included has been include in the agreement; and

(b) the constitution meets the requirements of section 30, read with the changes required by the context.

(5) In considering the requirements in subsection (4)(a), the Minister must take into account—

(a) the primary objects of this Act;

(b) the diversity of registered trade unions and registered employers’ organisations in the sector and area; and

(6) If the Minister is not satisfied in terms of subsection (4), the Minister must advise the Commission of the decision and the reasons for that decision and direct the Commission to reconvene the meeting in terms of subsection (3) in order to facilitate the conclusion of a new agreement.

(7) If advised by the Minister in terms of subsection (4), the registrar must register the statutory council by entering its name in the register of councils.

41. Establishment and registration of statutory council in absence of agreement

(1) If no agreement is concluded in terms of section 40(3), the commissioner must convene separate meetings of the registered trade unions and employers’ organisations to facilitate the conclusion of agreements on—

(a) the registered trade unions to be parties to the statutory council;

(b) the registered employers’ organisations to be parties to the statutory council; and

(2) If an agreement is concluded on—

(a) the registered trade unions to be parties to the statutory council, the Minister must admit as parties to the statutory council the agreed registered trade unions;

(b) the registered employers’ organisations to be parties to the statutory council, the Minister must admit as parties to the statutory council the agreed registered employers’ organisations.

(3) If no agreement is concluded on—

(a) the registered trade unions to be parties to the statutory council, the Minister must admit as parties to the statutory council—

(i) the applicant, if it is a registered trade union; and

(ii) any other registered trade union in the sector and area that ought to be admitted, taking into account the factors referred to in section 40(5);

(b) the registered employers’ organisations to be parties to the statutory council, the Minister must admit as parties to the statutory council—

(i) the applicant, if it is a registered employers’ organisation; and

(ii) any other registered employers’ organisation in the sector and area that ought to be admitted, taking into account the factors referred to in section 40(5).

(4)

(a) The Minister must determine an even number of representatives of the statutory council, taking into account the factors referred to in section 40(5).

(b) One half of the representatives must be allocated to the registered trade unions that are parties to the statutory council and the other half of the representatives must be allocated to the registered employers’ organisations that are parties to the statutory council.

(5) If no agreement is concluded in respect of the allocation of the number of representatives of the statutory council—

(a) between the registered trade unions are parties to the council, the Minister must determine this allocation on the basis of proportional representation;

(b) between the registered employers’ organisations that are parties to the council, the Minister must determine this allocation on the basis of proportional representation and taking into account the interests of small and medium enterprises.

(6) If the applicant is a trade union and there is no registered employers’ organisation that is a party to the statutory council, the Minister, after consulting the Commission, must appoint suitable persons as representatives and alternates taking into account the nominations received from employers and employers’ organisations in terms of section 40(2).

(7) If the applicant is an employers’ organisation and there is no registered trade union that is a party to the statutory council, the Minister, after consulting the Commission, must appoint suitable persons as representatives and alternates, taking into account the nominations received from employees and trade unions in terms of section 40(2).

(8) The Minister must notify the registrar of agreements concluded and decisions made in terms of this section and the registrar must—

(a) adapt the model constitution referred to in section 207(3) to the extent necessary to give effect to the agreements and decisions made in terms of this section;

(b) register the statutory council by entering its name in the register of councils; and

42. Certificate of registration of statutory council

After registering a statutory council, the registrar must—

(a) issue as certificate of registration that must specify the registered scope of the statutory council; and

(b) send the certificate and a certified copy of the registered constitution to all the parties to the statutory council and any representatives appointed to the statutory council.

43. Powers and functions of statutory councils

(1) The powers and functions of a statutory council are—

(a) to perform the dispute resolution functions referred to in section 51;

(b) to promote and establish training and education schemes; and

(c) to establish and administer pension, provident, medical aid, sick pay, holiday, unemployment schemes or funds or any similar schemes or funds for the benefit of one or more of the parties to the statutory council or their members; and

(d) to conclude collective agreements to give effect to the matters mentioned in paragraphs (a), (b), and (c).

(2) A statutory council, in terms of its constitution, may agree to the inclusion of any of the other functions of a bargaining council referred to in section 28.

(3) If a statutory council concludes a collective agreement in terms of subsection (1)(d), the provisions of sections 31, 32 and 33 apply, read with the changes required by the context.

[S 43(3) subs by s 10 of Act 42 of 1996.]

(4)

(a) From the date on which the Labour Relations Amendment Act, 1998, comes into operation, the provisions of the laws relating to pension, provident or medical aid schemes or funds must be complied with in establishing any pension, provident or medical aid scheme or fund in terms of subsection (1)(c).

(b) The provisions of the laws relating to pension, provident or medical aid schemes or funds will apply in relation to any pension, provident or medical aid scheme or fund established in terms of subsection (1)(c) after the coming into operation of the Labour Relations Amendment Act, 1998.

[S 43(4) ins by s 3 of Act 127 of 1998.]

44. Ministerial determinations

(1) A statutory council that is not sufficiently representative within its registered scope may submit a collective agreement on any of the matters mentioned in section 43(1)(a), (b) or (c) to the Minister. The Minister must treat the collective agreement as a recommendation made by the Employment Conditions Commission in terms of section 54(4) of the Basic Conditions of Employment Act.

[S 44(1) subs by s 10(a) of Act 12 of 2002.]

(2) The Minister may promulgate the statutory council’s recommendations as a determination under the Basic Conditions of Employment Act if satisfied that the statutory council has complied with section 54(3) of the Basic Conditions of Employment Act, read with the changes required by the context.

[S 44(2) subs by s 10(b) of Act 12 of 2002.]

(3) The determination must provide for—

(a) exemptions to be considered by an independent body appointed by the Minister; and

(b) criteria for exemption that are fair and promote the primary objects of this Act.

(4) The Minister may in a determination impose a levy on all employers and employees in the registered scope of the statutory council to defray the operational costs of the statutory council.

(5) A statutory council may submit a proposal to the Minister to amend or extend the period of any determination and the Minister may make the amendment to the determination or extend the period by notice in the Government Gazette.

45. Disputes about determinations

(1) If there is a dispute about the interpretation of application of a determination promulgated in terms of section 44(2), any party to the dispute may refer the dispute in writing to the Commission.

(2) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.

(3) The Commission must attempt to resolve the dispute through conciliation.

(4) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.

46. Withdrawal of party from statutory council

(1) If a registered trade union or registered employers’ organisation that is a party to a statutory council withdraws from that statutory council, the Minister may request the Commission to convene a meeting of the remaining registered trade unions or registered employers’ organisations in the sector and area, in order to facilitate the conclusion of an agreement on the registered trade unions or the registered employers’ organisations to be parties and the allocation of representatives to the statutory council.

(2) If no agreement is concluded, the provisions of section 41 apply, read with the changes required by the context.

47. Appointment of new representative of statutory council

(1) If a representative appointed in terms of section 41(6) or (7) for any reason no longer holds office, the Minister must publish a notice in the Government Gazette inviting interested parties within the registered scope of the statutory council to nominate a new representative.

(2) The provisions of section 41(6) or (7) apply, read with the changes required by the context, in respect of the appointment of a new representative.

48. Change of status of statutory council

(1) A statutory council may resolve to apply to register as a bargaining council.

(2) The registrar must deal with the application as if it were an application in terms of section 29*, except for section 29(4)(b), (7) to (10) and (15).

* Section 29 deals with the procedure for the registration of bargaining councils.

(3) If the registrar has registered the statutory council as a bargaining council, the registrar must alter the register of councils and its certificate to reflect its change of status.

(4) Any determination in force at the time of the registration of the bargaining council or any agreement extended by the Minister in terms of section 43(3)—

(a) continues to have force for the period of its operation unless superseded by a collective agreement; and

(b) may be extended for a further period.

(5) The bargaining council must perform any function or duty of the statutory council in terms of a determination during the period in which the determination is still in effect.

(6) If any dispute in terms of a determination is unresolved at the time the determination ceases to have effect, the dispute must be dealt with as if the determination was still in effect.

PART F – GENERAL PROVISIONS CONCERNING COUNCILS

49. Representativeness of council

(1) When considering the representativeness of the parties to a council, or parties seeking registration of a council, the registrar, having regard to the nature of the sector and the situation of the area in respect of which registration is sought, may regard the parties to a council as representative in respect of the whole area, even if a trade union or employers’ organisation that is a party to the council has no members in part of that area.

(2) A bargaining council, having a collective agreement that has been extended by the Minister in terms of section 32, must inform the registrar annually, in writing, on a date to be determined by the registrar as to the information specified in subsection (3) and the number of employees who are—

[Words preceding s 49(2)(a) subs by s 5(a) of Act 6 of 2014.]

(a) covered by the collective agreement;

(b) members of the trade unions that are parties to the agreement;

[S 49(2) subs by s 11(a) of Act 12 of 2002.]

(3) A bargaining council other than one contemplated in subsection (2) must on request by the registrar, inform the registrar in writing within the period specified in the request as to the number of employees who are—

[Words preceding s 49(3)(a) subs by s 5(b) of Act 6 of 2014.]

(a) employed within the registered scope of the council;

(b) members of the trade unions that are parties to the council;

[S 49(3) subs by s 11(b) of Act 12 of 2002.]

(4) A determination of the representativeness of a bargaining council in terms of this section is sufficient proof of the representativeness of the council for the two years following the determination for any purpose in terms of this Act, including a decision by the Minister in terms of sections 32(3)(b) and 32(5).

[S 49(4) ins by s 11(c) of Act 12 of 2002; subs by s 5(c) of Act 6 of 2014, s 3(a) of Act 8 of 2018.]

(4A) A determination made by the registrar in terms of—

(a) section 32(3)(b) is sufficient proof that the members of the employer organisations that are party to the bargaining council, upon extension of the collective agreement, employ the majority of the employees who fall within the scope of that agreement; and

(b) section 32(5)(a) is sufficient proof that the parties to the collective agreement are sufficiently representative within the registered scope of the bargaining council.

(5) This section does not apply to the public service.

[S 49(5) ins by s 11(c) of Act 12 of 2002.]

50. Effect of registration of council

(1) A certificate or registration is sufficient proof that a registered council is a body corporate.

(2) A council has all the powers, functions and duties that are conferred or imposed on it by or in terms of this Act, and it has jurisdiction to exercise and perform those powers, functions and duties within its registered scope.

(3) A party to, or office-bearer or official of, a council is not personally liable for any loss suffered by any person as a result of an act performed or omitted in good faith by a party to, or office-bearer or official of, a council while performing their functions for the council.

(4) Service of any document directed to a council at the address most recently provided to the registrar will be for all purposes service of that document on that council.

(5) Service of any document directed to a council at the address most recently provided to the registrar will be for all purposes service of that document on that council.

51. Dispute resolution functions of council

(1) In this section, dispute means any dispute about a matter of mutual interest between—

(a) on the one side—

(i) one or more trade unions;

(ii) one or more employees; or

(iii) one or more trade unions and one or more employees; and

(b) on the other side—

(i) one or more employers’ organisations;

(ii) one or more employers; or

(iii) one or more employers’ organisations and one or more employers.

(2)

(a)

(i) The parties to a council must attempt to resolve any dispute between themselves in accordance with the constitution of the council.

[S 51(2)(a) renumbered as 51(2)(a)(i) by s 11(a) of Act 42 of 1996.]

(ii) For the purposes of subparagraph (i), a party to a council includes the members of any registered trade union or registered employers’ organisation that is a party to the council.

[S 51(2)(a)(ii) ins by s 11(a) of Act 42 of 1996.]

(b) Any party to a dispute who is not a party to a council but who falls within the registered scope of the council may refer the dispute to the council in writing.

(c) The party who refers the dispute to the council must satisfy it that a copy of the referral has been served on all the other parties to the dispute.

(3) If a dispute is referred to a council in terms of this Act*and any party to that dispute is not a party to that council, the council must attempt to resolve the dispute—

* The following disputes contemplated by subsection (3) must be referred to a council: disputes about the interpretation or application of the provisions of Chapter II (see section 9)’ disputes that form the subject matter of a proposed strike or lock-out (see section 64(1)); disputes in essential services see section 74); disputes about unfair dismissals see section 19; disputes about severance pay (see section 196); and disputes about unfair labour practices see item 2 in Schedule 7).

The following disputes contemplated by subsection (3) may not be referred to a council: disputes about organisational rights (see sections 16, 21 and 22); disputes about collective agreements where the agreement does not provide for a procedure or the procedure is inoperative or any party frustrates the resolution of the dispute (see section 24(2) tot (5); disputes about agency shops and closed shops (see section 24(6) and (7) and section 26(11); disputes about determinations made by the Minister in respect of proposals made by a statutory council (see section 45); disputes about the interpretation or application of collective agreements of a council whose registration has been cancelled see section 61(5) to (8); disputes about the demarcation of sectors and areas of councils (see section 62); disputes about the interpretation or application of Part C (bargaining councils), Part D (bargaining councils in the public service, Part E (statutory councils and Part F (general provisions concerning councils (see section 63); disputes concerning pickets (see section 69(8) to (10); disputes about proposals that are the subject of joint decision-making in workplace forums (see section 86); disputes about the disclosure of information to workplace forums see section 89; and disputes about the interpretation or application of the provisions of Chapter V which deals with workplace forums see section 94).

[Footnote 11 am by Footnotes at the end of Act 12 of 2002.]

(a) through conciliation; and

(b) if the dispute remains unresolved after conciliation, the council must arbitrate the dispute if—

(i) this Act requires arbitration and any party to the dispute has requested that it be resolved through arbitration; or

(ii) all the parties to the dispute consent to arbitration under the auspices of the council.

(4) If one or more of the parties to a dispute that has been referred to the council do not fall within the registered scope of that council, it must refer the dispute to the Commission.

(5) The date on which the referral in terms of subsection (4) was received by a council is, for all purposes, the date on which the council referred the dispute to the Commission.

(6) A council may enter into an agreement with the Commission or an accredited agency in terms of which the Commission or accredited agency is to perform, on behalf of the council, its dispute resolution functions in terms of this section.

[S 51(6) ins by s 11(b) of Act 42 of 1996.]

(7) Subject to this Act, a council may not provide in a collective agreement for the referral of disputes to the Commission, without prior consultation with the director.

[S 51(7) ins by s 12 of Act 12 of 2002.]

(8) Unless otherwise agreed to in a collective agreement, sections 142A and 143 to 146 apply to any arbitration conducted under the auspices of a bargaining council.

[S 51(8) ins by s 12 of Act 12 of 2002.]

(9) A bargaining council may, by collective agreement—

(a) establish procedures to resolve any dispute contemplated in this section;

(b) provide for payment of a dispute resolution levy; and

(c) provide for the payment of a fee in relation to any conciliation or arbitration proceedings in respect of matters for which the Commission may charge a fee in terms of section 115(2A)(l), which may not exceed the fee provided for in that section.

[S 51(9) ins by s 12 of Act 12 of 2002; subs by s 6 of Act 6 of 2014.]

52. Accreditation of council or appointment of accredited agency

(1) With a view to performing its dispute resolution functions in terms of section 51(3), every council must—

(a) apply to the governing body of the Commission for accreditation to perform those functions; or

(b) appoint an accredited agency to perform those of the functions referred to in section 51(3) for which the council is not accredited.

(2) The council must advise the Commission in writing as soon as possible of the appointment of an accredited agency in terms of subsection (1)(b), and the terms of that appointment.

[S 52 subs by s 12 of Act 42 of 1996.]

53. Accounting records and audits

(1) Every council must, to the standards of generally accepted accounting practice, principles and procedures—

(a) keep books and records of its income, expenditure, assets and liabilities; and

(b) within six months after the end of each financial year, prepare financial statements, including at least—

(i) a statement of income and expenditure for the previous financial year; and

(ii) a balance sheet showing its assets, liabilities and financial position as at the end of the previous financial year.

(2) Each council must arrange for an annual audit of its books and records of account and its financial statements by an auditor who must—

(a) conduct the audit in accordance with generally accepted auditing standards; and

(b) report in writing to the council and in that report express an opinion as to whether or not the council has complied with those provisions of its constitution relating to financial matters.

(3) Every council must—

(a) make the financial statements and the auditor’s report available to the parties to the council as provided for in its constitution;

(b) submit those statements and the auditor’s report to a meeting of the council as provided for in its constitution.

(4) Every council must preserve each of its books of account, supporting vouchers, income and expenditure statements, balance sheets, and auditor’s reports, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate.

(5) The money of a council or of any fund established by a council that is surplus to its requirements or the expenses of the fund may be invested only in—

[Words preceding s 53(5)(a) subs by s 13 of Act 42 of 1996.]

(a) savings accounts, permanent shares or fixed deposits in any registered bank or financial institution;

(b) internal registered stock as contemplated in section 21 of the Exchequer Act, 1975 (Act 66 of 1975);

(d) any other manner approved by the registrar.

(6) A council must comply with subsections (1) to (5) in respect of all funds established by it, except funds referred to in section 28(3).

[S 53(6) ins by s 13 of Act 12 of 2002.]

54. Duty to keep records and provide information to registrar

(1) In addition to the records required by section 53(4), every council must keep minutes of its meetings, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate.

(2) Every council must provide to the registrar—

(a) within 30 days of receipt of its auditor’s report, a certified copy of that report and of the financial statements;

(b) within 30 days of receipt of a written request by the registrar, an explanation of anything relating to the auditor’s report or the financial statements;

(c) upon registration, an address within the Republic at which it will accept service of any document that is directed to it;

(d) within 30 days of any appointment or election of its national office-bearers, the names and work addresses of those office-bearers, even if their appointment or election did not result in any changes to its office-bearers;

[S 54(2)(d) am by s 14(a) of Act 12 of 2002.]

(e) 30 days before a new address for service of documents will take effect, notice of that change of address; and

[S 54(2)(e) am by s 14(a) of Act 12 of 2002.]

(f) each year and on a date to be determined by the registrar, a report in the prescribed form specifying—

(i) the number of employees who are employed by small enterprises that fall within the registered scope of the council and the number of employees of those enterprises who are members of trade unions;

(ii) the number of employees employed by small enterprises that are covered by a collective agreement that was concluded by the council and extended by the Minister in terms of section 32;

(iii) the number of small enterprises that are members of the employers’ organisations that are parties to the council; and

(iv) the number of applications for exemptions received from small enterprises and the number of applications that were granted and the number rejected.

[S 54(2)(f) ins by s 14(b) of Act 12 of 2002.]

(3) Every council must provide to the Commission—

(a) certified copies of every collective agreement concluded by the parties to the council, within 30 days of the signing of that collective agreement; and

(b) the details of the admission and resignation of parties to the council, within 30 days of their admission or resignation.

(4) If a council fails to comply with any of the provisions of section 49(2) or (3), section 53 or subsections (1) or (2) of this section, the registrar may—

(a) conduct an inquiry into the affairs of that council;

(b) order the production of the council’s financial records and any other relevant documents;

(d) compile a report on the affairs of the council; or

(e) submit the report to the Labour Court in support of any application made in terms of section 59(1)(b).

[S 54(4) ins by s 14(c) of Act 12 of 2002.]

(5) The registrar may use the powers referred to in subsection (4) in respect of any fund established by a council, except a fund referred to in section 28(3).

[S 54(5) ins by s 14(c) of Act 12 of 2002.]

55. Delegation of functions to committee of council

(1) A council may delegate any of its powers and functions to a committee on any conditions imposed by the council in accordance with its constitution.

[S 55(1) subs by s 14(a) of Act 42 of 1996.]

(2) A committee contemplated by subsection (1) must consist of equal numbers of representatives of employees and employers.

(3) …

[S 55(3) rep by s 14(b) of Act 42 of 1996.]

56. Admission of parties to council*

* See flow diagram 5 in Schedule 4.

(1) Any registered trade union or registered employers’ organisation may apply in writing to a council for admission as a party to that council.

(2) The application must be accompanies by a certified copy of the applicant’s registered constitution and certificate or registration and must include—

(a) details of the applicant’s membership within the registered scope of the council and, if the applicant is a registered employers’ organisation, the number of employees that its members employ within that registered scope;

(b) the reasons why the applicant ought to be admitted as a party to the council; and

(3) A council, within 90 days of receiving an application for admission, must decide whether to grant or refuse an applicant admission, and must advise the applicant of its decision, failing which the council is deemed to have refused the applicant admission.

(4) If the council refuses to admit an applicant it must within 30 days of the date of the refusal, advise the applicant in writing of its decision and the reasons for that decision.

(5) The applicant may apply to the Labour Court for an order admitting it as a party to the council.

(6) The Labour Court may admit the applicant as a party to the council, adapt the constitution of the council and make any other appropriate order.

57. Changing constitution or name of council

(1) Any council may resolve to change or replace its constitution.

(2) The council must send the registrar a copy of the resolution and a certificate signed by its secretary stating that the resolution complies with its constitution.

(3) The registrar must—

(a) register the changed or new constitution of a council if it meets the requirements of section 30 or if it is a statutory council established in terms of section 41 if it meets the requirements of the model constitution referred to in section 207(3); and

(b) send the council a copy of the resolution endorsed by the registrar, certifying that the change or replacement has been registered.

(4) The chanted or new constitution takes effect from the date of the registrar’s certification.

(5) Any council may resolve to change its name.

(6) The council must send the registrar a copy of the resolution and the original of its current certificate of registration.

(7) The registrar must—

(a) enter the new name in the register of councils, and issue a certificate of registration in the new name of the council;

(b) remove the old name from that register and cancel the earlier certificate of registration; and

(8) The new name takes effect from the date that the registrar enters it in the register of councils.

58. Variation of registered scope of council

(1) If the registrar is satisfied that the sector and area within which a council is representative does not coincide with the registered scope of the council, the registrar, acting independently or in response to an application from the council, may vary the registered scope of the council.

[S 58(1) subs by s 15 of Act 42 of 1996.]

(2) The provisions of section 29 apply, read with the changes required by the context, to a variation in terms of this section.

(3) Despite subsection (2), if within the stipulated period no material objection is lodged to any notice published by the registrar in terms of section 29(3), the registrar—

(i) may vary the registered scope of the council;

(ii) may issue a certificate specifying the scope of the council as varied; and

(iii) need not comply with the procedure prescribed by section 29.

[S 58(3) ins by s 15 of Act 12 of 2002.]

59. Winding-up of council

(1) The Labour Court may order a council to be wound up if—

(a) the council has resolved to wind up its affairs and has applied to the Court for an order giving effect to that resolution; or

(b) the registrar of labour relations or any party to the council has applied to the Court and the Court is satisfied that the council is unable to continue to function for any reason that cannot be remedied.

(2) If there are any persons not represented before the Labour Court whose interests may be affected by an order in terms of subsection (1), the Court must—

(a) consider those interests before deciding whether or not to grant the order; and

(b) if it grants the order, include provisions in the order disposing of each of those interests.

(3) If it makes an order in terms of subsection (1), the Labour Court may appoint a suitable person as liquidator, on appropriate conditions.

(4)

(a) The registrar of the Labour Court must determine the liquidator’s fees.

(b) The Labour Court, in chambers, may review the determination of the registrar of the Labour Court.

(5) If, after all the liabilities of the council have been discharged, any assets remain that cannot be disposed of in accordance with the constitution of that council, the liquidator must realise those assets and pay the proceeds to the Commission for its own use.

(6) For the purposes of this section, the assets and liabilities of any pension, provident or medical aid scheme or fund established by a council will be regarded and treated as part of the assets and liabilities of the council unless—

(a) the parties to the council have agreed to continue with the operation of the pension, provident or medical aid scheme or fund as a separate scheme or fund despite the winding-up of the council; and

(b) the Minister has approved the continuation of the scheme or fund; and

(c) application has been made in accordance with the provisions of the laws applicable to pension, provident or medical aid schemes or funds, for the registration of that scheme or fund in terms of those provisions.

[S 59(6) ins by s 4 of Act 127 of 1998.]

(7) A pension, provident or medical aid scheme or fund registered under the provisions of those laws after its application in terms of subsection (6)(c), will continue to be a separate scheme or fund despite the winding-up of the council by which it was established.

[S 59(7) ins by s 4 of Act 127 of 1998.]

(8) The Minister by notice in the Government Gazette may declare the rules of a pension, provident or medical aid scheme or fund mentioned in subsection (7), to be binding on any employees and employer or employers that fell within the registered scope of the relevant council immediately before it was wound up.

[S 59(8) ins by s 4 of Act 127 of 1998.]

60. Winding-up of council by reason of insolvency

Any person who seeks to wind up a council by reason of insolvency must comply with the Insolvency Act, 1936 (Act 24 of 1936), and, for the purposes of this section, any reference to the court in that Act must be interpreted as referring to the Labour Court.

61. Cancellation of registration of council

(1) The registrar of the Labour Court must notify the registrar of Labour relations if the Court has ordered a council to be wound up.

(2) When the registrar receives a notice from the Labour Court in terms of subsection (1), the registrar must cancel the registration of the council by removing its name from the register of councils.

(3) The registrar may notify a council and every party to the council that the registrar is considering cancelling the council’s registration, if the registrar believes that—

(a) the council has ceased to perform its functions in terms of this Act for a period longer than 90 days before the date of the notice; or

(b) the council has ceased to be representative in terms of the provisions of the relevant Part, for a period longer than 90 days prior to the date of the notice.

(4) In a notice in terms of subsection (3), the registrar must state the reasons for the notice and inform the council and every party to the council that they have 60 days to show cause why the council’s registration should not be cancelled.

(5) After the expiry of the 60 day period, the registrar, unless cause has been shown why the council’s registration should not be cancelled, must notify the council and every party to the council that the registration will be cancelled unless and appeal to the Labour Court is noted and the Court reverses the decision.

(6) The cancellation takes effect—

(a) if no appeal to the Labour Court is noted within the time contemplated in section 111(3), on the expiry of that period; or

(b) if the council or any party has appealed and the Labour Court has confirmed the decision of the registrar, on the date of the Labour Court’s decision.

(7) If either event contemplated in subsection (6) occurs, the registrar must cancel the council’s registration by removing the name of the council from the register of councils.

(8) Any collective agreement concluded by parties to a council whose registration has been cancelled, whether or not the collective agreement has been extended to non-parties by the Minister in terms of section 32, lapses 60 days after the council’s registration has been cancelled.

(9) Despite subsection (8), the provisions of a collective agreement that regulates terms and conditions of employment remain in force for one year after the date that the council’s registration was cancelled, or until the expiry of the agreement, if earlier.

(10) Any party to a dispute about the interpretation or application of a collective agreement that regulates terms and conditions of employment referred to in subsection (8) may refer the dispute in writing to the Commission.

(11) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.

(12) The Commission must attempt to resolve the dispute through conciliation.

(13) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.

(14) The registrar must cancel the registration of a bargaining council in the public service by removing its name from the register of councils when the registrar receives a resolution from the Public Service Co-ordinating Bargaining Council disestablishing a bargaining council established in terms of section 37(2).

[S 61(14) ins by s 16 of Act 12 of 2002.]

(15) The provisions of subsections (3) to (7) do not apply to bargaining councils in the public service.

[S 61(15) ins by s 16 of Act 12 of 2002.]

62. Disputes about demarcation between sectors and areas

(1) Any registered trade union, employer, employee, registered employers’ organisation or council that has a direct or indirect interest in the application contemplated in this section may apply to the Commission in the prescribed form and manner for a determination as to—

[Words preceding s 62(1)(a) subs by s 16(a) of Act 42 of 1996.]

(a) whether any employee, employer, class of employees or class of employers, is or was employed in a sector or area;

(b) whether any provision in any arbitration award, collective agreement or wage determination made in terms of the Wage Act is or was binding on any employee, employer, class or employees or class of employers.

(2) If two or more councils settle a dispute about a question contemplated in subsection (1)(a) or (b), the councils must inform the Minister of the provisions of their agreement and the Minister may publish a notice in the Government Gazette stating the particulars of the agreement.

(3) In any proceedings in terms of this Act before the Labour Court, if a question contemplated in subsection (1)(a) or (b) is raised, the Labour Court must adjourn those proceedings and refer the question to the Commission for determination if the Court is satisfied that—

(a) the question raised—

(i) has not previously been determined by arbitration in terms of this section; and

(ii) is not the subject of an agreement in terms of subsection (2); and

(iii) the determination of the question raised is necessary for the purposes of the proceedings.

(3A) In any proceedings before an arbitrator about the interpretation or application of a collective agreement, if a question contemplated in subsection (1)(a) or (b) is raised, the arbitrator must adjourn those proceedings and refer the question to the Commission if the arbitrator is satisfied that—

(a) the question raised—

(i) has not previously been determined by arbitration in terms of this section; and

(ii) is not the subject of an agreement in terms of subsection (2); and

(b) the determination of the question raised is necessary for the purposes of the proceedings.

[S 62(3A) ins by s 16(b) of Act 42 of 1996.]

(4) When the Commission receives an application in terms of subsection (1) or a referral in terms of subsection (3), it must appoint a commissioner to hear the application or determine the question, and the provisions of section 138 apply, read with the changes required by the context.

(5) In any proceedings in terms of this Act before a commissioner, if a question contemplated in subsection (1)(a) or (b) is raised, the commissioner must adjourn the proceedings and consult the director, if the commissioner is satisfied that—

(a) the question raised—

(i) has not previously been determined by arbitration in terms of this section; and

(ii) is not the subject of an agreement in terms of subsection (2); and

(b) the determination of the question raised is necessary for the purposes of the proceedings.

(6) The director must either order the commissioner concerned to determine the question of appoint another commissioner to do so, and the provisions of section 138 apply, read with the changes required by the context.

(7) If the Commission believes that the question is of substantial importance, the Commission must publish a notice in the Government Gazette stating the particulars of the application or referral and stating the period within which written representations may be made and the address to which they must be directed.

(8) If a notice contemplated in subsection (7) has been published, the commissioner may not commence the arbitration until the period stated in the notice has expired.

(9) Before making an award, the commissioner must consider any written representations that are made, and must consult NEDLAC.

(10) The commissioner must send the award, together with brief reasons, to the Labour Court and to the Commission.

(11) If the Commission believes that the nature of the award is substantially important, it may publish notice of the award in the Government Gazette.

(12) The registrar must amend the certificate of registration of a council in so far as is necessary in light of the award.

63. Disputes about Parts A and C to F

(1) Any party to a dispute about the interpretation or application of Parts A and C to F of this Chapter, may refer the dispute in writing to the Commission unless—

(a) the dispute has arisen in the course of arbitration proceedings or proceedings in the Labour Court; or

[S 63(1)(a) subs by s 17 of Act 42 of 1996.]

(b) the dispute is otherwise to be dealt with in terms of Parts A and C to F.

(2) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.

(3) The Commission must attempt to resolve the dispute through conciliation.

(4) If the dispute remains unresolved, any party to the dispute may refer it to the Labour Court for adjudication.

CHAPTER IV

STRIKES AND LOCK-OUTS

64. Right to strike and recourse to lock-out

(1) Every employee has the right to strike and every employer has recourse to lock-out if—

(a) the issue in dispute has been referred to a council or to the Commission as required by this Act, and—

(i) a certificate stating that the dispute remains unresolved has been issued; or

(ii) a period of 30 days, or any extension of that period agreed to between the parties to the dispute, has elapsed since the referral was received by the council or the Commission; and after that

(b) in the case of a proposed strike, at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer, unless—

(i) the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; or

(ii) the employer is a member of an employers’ organisation that is a party to the dispute, in which case, notice must have been given to that employers’ organisation; or

(c) in the case of a proposed lock-out, at least 48 hours’ notice of the commencement of the lock-out, in writing, has been given to any trade union that is a party to the dispute, or, if there is no such trade union, to the employees, unless the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; or

(d) in the case of a proposed strike or lock-out where the State is the employer, at least seven days’ notice of the commencement of the strike or lock-out has been given to the parties contemplated in paragraphs (b) and (c).

(2) If the issue in dispute concerns a refusal to bargain, an advisory award must have been made in terms of section 135(3)(c) before notice is given in terms of subsection (1)(b) or (c). A refusal to bargain includes—

(a) a refusal—

(i) to recognise a trade union as a collective bargaining agent; or

(ii) to agree to establish a bargaining council;

(b) a withdrawal of recognition of a collective bargaining agent;

[S 64(2)(b) am by s 18 of Act 42 of 1996.]

(d) a dispute about—

(i) appropriate bargaining units;

(ii) appropriate bargaining levels; or

(iii) bargaining subjects.

(3) The requirements of subsection (1) do not apply to a strike or a lock-out if—

(a) the parties to the dispute are members of a council and the dispute has been dealt with by that council in accordance with its constitution;

(b) the strike or lock-out conforms with the procedures in a collective agreement;

(c) the employees strike in response to a lock-out by their employer that does not comply with the provisions of this Chapter;

(d) the employer locks out its employees in response to their taking part in a strike that does not conform with the provisions of this Chapter; or

(e) the employer fails to comply with the requirements of subsections (4) and (5).

(4) Any employee who or any trade union that refers a dispute about a unilateral change to terms and conditions or employment to a council or the Commission in terms of subsection (1)(a) may, in the referral, and for the period referred to in subsection (1)(a)—

(a) require the employer not to implement unilaterally the change to terms and conditions of employment; or

(b) if the employer has already implemented the change unilaterally, require the employer to restore the terms and conditions of employment that applied before the change.

(5) The employer must comply with a requirement in terms of subsection (4) within 48 hours of service of the referral on the employer.

65. Limitations on right to strike or recourse to lock-out

(1) No person may take part in a strike or a lock-out or in any conduct in contemplation or furtherance of a strike or a lock-out if—

(a) that person is bound by a collective agreement that prohibits a strike or lock-out in respect of the issue in dispute;

(b) that person is bound by an agreement that requires the issue in dispute to be referred to arbitration;

(c) the issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court in terms of this Act or any other employment law;

[S 65(1)(c) subs by s 7(a) of Act 6 of 2014.]

(d) that person is engaged in—

(i) an essential service; or

(ii) a maintenance service.*

* Essential services agreed minimum services and maintenance services are regulated in sections 71 to 75.

(2)

(a) Despite section 65(1)(c), a person may take part in a strike or a lock-out or in any conduct in contemplation or in furtherance of a strike or lock-out if the issue in dispute is about any matter dealt with in sections 12 to 15.*

* These sections deal with organisational rights.

(b) If the registered trade union has given notice of the proposed strike in terms of section 64(1) in respect of an issue in dispute referred to in paragraph (a), it may not exercise the right to refer the dispute to arbitration in terms of section 21 for a period of 12 months from the date of the notice.

(3) Subject to a collective agreement, no person may take part in a strike or a lock-out or in any conduct in contemplation or furtherance of a strike or lock-out—

(a) if that person is bound by—

(i) any arbitration award or collective agreement that regulates the issue in dispute; or

(ii) any determination made in terms of section 44 by the Minister that regulates the issue in dispute; or

(b) any determination made in terms of Chapter Eight of the Basic Conditions of Employment Act and that regulates the issue in dispute, during the first year of that determination.

[S 65(3)(b) subs by s 7(b) of Act 6 of 2014.]

66. Secondary strikes

(1) In this section “secondary strike” means a strike, or conduct in contemplation or furtherance of a strike, that is in support of a strike by other employees against their employer but does not include a strike in pursuit of a demand that has been referred to a council if the striking employees, employed within the registered scope of that council, have a material interest in that demand.

[S 66(1) subs by s 19 of Act 42 of 1996.]

(2) No person may take part in a secondary strike unless—

(a) the strike that is to be supported complies with the provisions of sections 64 and 65;

(b) the employer of the employees taking part in the secondary strike or, where appropriate the employers’ organisation of which that employer is a member has received written notice of the proposed secondary strike at least seven days prior to its commencement; and

(c) the nature and extent of the secondary strike is reasonable in relation to the possible direct or indirect effect that the secondary strike may have on the business of the primary employer.

(3) Subject to section 68(2) and (3), a secondary employer may apply to the Labour Court for an interdict to prohibit or limit a secondary strike that contravenes subsection (2).

(4) Any person who is a party to proceedings in terms of subsection (3), or the Labour Court, may request the Commission to conduct an urgent investigation to assist the Court to determine whether the requirements of subsection (2)(c) have been met.

(5) On receipt of a request made in terms of subsection (4), the Commission must appoint a suitably qualified person to conduct the investigation, and then submit, as soon as possible, a report to the Labour Court.

(6) The Labour Court must take account of the Commission’s report in terms of subsection (5) before making an order.

67. Strike or lock-out in compliance with this Act

(1) In this Chapter, “protected strike” means a strike that complies with the provisions of this Chapter and “protected lock-out” means a lock-out that complies with the provisions of this Chapter.

(2) A person does not commit a delict or a breach of contract by taking part in—

(a) a protected strike or a protected lock-out; or

(b) any conduct in contemplation or in furtherance of protected strike or a protected lock-out.

(3) Despite subsection (2), an employer is not obliged to remunerate an employee for services that the employee does not render during a protected strike or a protected lock-out, however—

(a) if the employee’s remuneration includes payment in kind in respect of accommodation, the provision of food and other basic amenities of life, the employer, at the request of the employee, must not discontinue payment in kind during the strike or lock-out; and

(b) after the end of the strike or lock-out, the employer may recover the monetary value of the payment in kind made at the request of the employee during the strike or lock-out from the employee by way of civil proceedings instituted in the Labour Court.

(4) An employer may not dismiss an employee for participating in protected strike or for any conduct in contemplation or in furtherance of a protected strike.

(5) Subsection (4) does not preclude an employer from fairly dismissing an employee in accordance with the provisions of Chapter VIII for a reason related to the employee’s conduct during the strike, or for a reason based on the employer’s operational requirements.

(6) Civil legal proceedings may not be instituted against any person for—

(a) participating in a protected strike or a protected lock-out; or

(b) any conduct in contemplation or in furtherance of a protected strike or protected lock-out.

(7) The failure by a registered trade union or a registered employers’ organisation to comply with a provision in its constitution requiring it to conduct a ballot or those of its members in respect of whom it intends to call a strike or lock-out may not give rise to, or constitute a ground for, any litigation that will affect the legality of, and the protection conferred by this section on, the strike or lock-out.

(8) The provisions of subsections (2) and (6) do not apply to any act in contemplation or in furtherance of a strike or lock-out, if that act is an offence.

(9) …

[S 67(9) rep by s 8 of Act 6 of 2014.]

68. Strike or lock-out not in compliance with this Act

(1) In the case of any strike or lock-out, or any conduct in contemplation or in furtherance of a strike or lock-out, that does not comply with the provisions of this Chapter, the Labour Court has exclusive jurisdiction—

(a) to grant an interdict or order to restrain—*

* See flow diagram 6 in Schedule 4.

(i) any person from participating in a strike or any conduct in contemplation or in furtherance of a strike; or

(ii) any person from participating in a lock-out or any conduct in contemplation or in furtherance of a lock-out;

(b) to order the payment of just and equitable compensation for any loss attributable to the strike or lock-out, or conduct, having regard to—

(i) whether—

(aa) attempts were made to comply with the provisions of this Chapter and the extent of those attempts;

(bb) the strike or lock-out or conduct was premeditated;

(cc) the strike or lock-out or conduct was in response to unjustified conduct by another party to the dispute; and

(dd) there was compliance with an order granted in terms of paragraph (a);

(ii) the interests of orderly collective bargaining;

(iii) the duration of the strike or lock-out or conduct; and

(iv) the financial position of the employer, trade union or employees respectively.

[S 68(1)(b) subs by s 17 of Act 12 of 2002.]

(2) The Labour Court may not grant any order in terms of subsection (1)(a) unless 48 hours’ notice of the application has been given to the respondent: However, the Court may permit a shorter period of notice if—

(a) the applicant has given written notice to the respondent of the applicant’s intention to apply for the granting of an order;

(b) the respondent has been given a reasonable opportunity to be head before a decision concerning that application is taken; and

(3) Despite subsection (2), if written notice of the commencement of the proposed strike or lock-out was given to the applicant at least 10 days before the commencement of the proposed strike or lock-out, the applicant must give at least five days’ notice to the respondent of an application for an order in terms of subsection (1)(a).

(4) Subsections (2) and (3) do not ply to an employer or an employee engaged in an essential service or a maintenance service.

(5) Participation in a strike that does not comply with the provisions of this Chapter, or conduct in contemplation or in furtherance of that strike, may constitute a fair reason for dismissal. In determining whether or not the dismissal is fair, the Code of Good Practice Dismissal in Schedule 8 must be taken into account.

69. Picketing*

* See flow diagram 7 in Schedule 4.

(1) A registered trade union may authorise a picket by its members and supporters for the purposes of peacefully demonstrating—

(a) in support of any protected strike; or

(b) in opposition to any lock-out.

(2) Despite any law regulating the right of assembly, a picket authorised in terms of subsection (1), may be held—

[Words preceding s 69(2)(a) subs by s 20 of Act 42 of 1996.]

(a) in any place to which the public has access but outside the premises of an employer; or

(b) with the permission of the employer, inside the employer’s premises.

(3) The permission referred to in subsection (2)(b) may not be unreasonably withheld.

(4) Unless there is a collective agreement binding on the trade union that regulates picketing, the commissioner conciliating the dispute must attempt to secure an agreement between the parties to the dispute on rules that should apply to any picket in relation to that strike or lock-out before the expiry of the period contemplated in section 64(1)(a)(ii).

[S 69(4) subs by s 4(1)(a) of Act 8 of 2018.]

(5) If there is no collective agreement or no agreement is reached in terms of subsection (4), the commissioner conciliating the dispute must determine picketing rules, in accordance with any default picketing rules prescribed by the Commission under section 208 or published in any code of good practice, and in doing so must take account of—

(a) the particular circumstances of the workplace or other premises where it is intended that the right to picket is to be exercised;

(b) any relevant code of good practice; and

[S 69(5) subs by s 4(1)(a) of Act 8 of 2018.]

(6) The rules determined by the commissioner conciliating the dispute may provide for picketing by employees—

(a) in a place contemplated in subsection (2)(a) which is owned or controlled by a person other than the employer, if that person has had an opportunity to make representations to the commissioner conciliating the dispute before the rules are determined; or

(b) on their employer’s premises if the commissioner conciliating the dispute is satisfied that the employer’s permission has been unreasonably withheld.

[S 69(6) subs by s 9(a) of Act 6 of 2014, s 4(1)(a) of Act 8 of 2018.]

(6A) The commissioner conciliating the dispute must determine the picketing rules contemplated in subsection (5) at the same time as issuing any certificate contemplated in section 64(1)(a).

[S 69(6A) ins by s 4(1)(b) of Act 8 of 2018.]

(6B) The Commission may determine picketing rules under subsections (5) and (6) on a direct application from a registered trade union and on an urgent basis if—

(a) it has referred a dispute about a unilateral change to terms and conditions of employment in accordance with section 64(4) and the employer has not complied with section 64(5); or

(b) the employer has given notice of an intention to commence or has commenced an unprotected lockout.

[S 69(6B) ins by s 4(1)(b) of Act 8 of 2018.]

(6C) No picket in support of a protected strike or in opposition to a lockout may take place unless picketing rules—

(a) are agreed to in—

(i) a collective agreement binding on the trade union;

(ii) an agreement contemplated in subsection (4); or

(b) have been determined in terms of subsection (5).

[S 69(6C) ins by s 4(1)(b) of Act 8 of 2018.]

(7) The provisions of section 67, read with the changes required by the context, apply to the call for, organisation of, or participation in a picket that complies with the provisions of this section.

(8) Any party to a dispute about any of the following issues, including a person contemplated in subsection (6)(a), may refer the dispute in writing to the Commission—

[Words preceding s 69(8)(a) subs by s 9(b) of Act 6 of 2014.]

(a) an allegation that the effective use of the right to picket is being undermined;

(b) an alleged material contravention of subsection (1) or (2);

[S 69(8)(c) subs by s 4(1)(c) of Act 8 of 2018.]

(d) an alleged material breach of a picketing determined in terms of subsection (5).

[S 69(8)(d) subs by s 4(1)(c) of Act 8 of 2018.]

(9) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.

(10) The Commission must attempt to resolve the dispute through conciliation.

(11) If the dispute remains unresolved, any party to the dispute may refer it to the labour Court for adjudication.

(12) If a party has referred a dispute in terms of subsection (8) or (11), the Labour Court may in addition to any relief contemplated in section 68(1), grant relief, including urgent interim relief, which is just and equitable in the circumstances and which may include an order—

(a) directing any party, including a person contemplated in subsection (6)(a), to comply with a picketing agreement or rule;

(b) varying the terms of a picketing agreement or rule; or

(c) suspending a picket at one or more of the locations designated in the collective agreement, agreed rules contemplated in subsection (4) or rules determined by the Commission.

[S 69(12) ins by s 9(c) of Act 6 of 2014; subs by s 4(1)(d) of Act 8 of 2018.]

(13) The Labour Court may not grant an order in terms of subsection (12) unless—

(a) 48 hours’ notice of an application seeking relief referred to in subsection (12)(a) or (b) has been given to the respondent; or

(b) 72 hours’ notice of an application seeking relief referred to in subsection (12)(c) or (d) has been given to the respondent.

[S 69(13) ins by s 9(c) of Act 6 of 2014.]

(14) The Labour Court may permit a shorter period of notice than required by subsection (13) if the—

(a) applicant has given written notice to the respondent of its intention to apply for the order;

(b) respondent has been given a reasonable opportunity to be heard before a decision concerning the application is taken; and

[S 69(14) ins by s 9(c) of Act 6 of 2014.]

(15) For the purposes of this section, ‘commissioner conciliating the dispute’ includes a person appointed by a bargaining council to conciliate the dispute.

[S 69(15) ins by s 4(1)(e) of Act 8 of 2018.]

70. Essential services committee

The Minister, after consulting NEDLAC, must establish an essential services committee under the auspices of the Commission in accordance with the provisions of this Act.

[S 70 am by s 5 of Act 127 of 1998; subs by s 10 of Act 6 of 2014.]

70A. Composition of essential services committee

(1) The Minister must appoint to the essential services committee on terms that the Minister considers fit—

(a) a chairperson, who is independent from the constituencies contemplated in subsection (3) and who may be a senior commissioner;

(b) a deputy chairperson, who must be a senior commissioner; and

(2) A member of the essential services committee—

(a) must be a citizen of South Africa, who is ordinarily resident in South Africa, or a permanent resident of South Africa;

(b) must have suitable qualifications or experience in labour law, labour relations, commerce, public affairs, the administration of justice, industry or a sector of the economy;

(d) must not be subject to an order of a competent court holding that person to be mentally unfit or disordered.

(3) Organised business, labour and government at NEDLAC must each nominate to the Minister the names of two persons to be appointed to the essential services committee.

(4) The Minister must appoint the persons nominated by organised business, labour and government at NEDLAC if these persons meet the requirements set out in subsection (2).

(5) The Minister may fill any vacancy that arises in accordance with the provisions of this section.

(6) A member of the essential services committee may not represent any person before a panel of the essential services committee, but may be appointed by the trade union and employer parties to serve as an assessor in terms of section 70C.

[S 70A ins by s 11 of Act 6 of 2014.]

70B. Powers and functions of essential services committee

(1) The powers and functions of the essential services committee are to—

(a) monitor the implementation and observance of essential services determinations, minimum services agreements, maintenance services agreements and determinations;

(b) promote effective dispute resolution in essential services;

(d) decide, on its own initiative or at the reasonable request of any interested party, whether to institute investigations as to whether or not the whole or a part of any service is an essential service;

(e) manage its caseload; and

(f) appoint the panels contemplated in section 70C to perform one or more of the functions set out in section 70D.

(2) At the request of a bargaining council, the essential services committee must establish a panel to perform any function in terms of section 70D(1).

(3) The essential services committee may request the Commission or any other appropriate person to conduct an investigation to assist the essential services committee in an investigation and to submit a report to it.

[S 70B ins by s 11 of Act 6 of 2014.]

70C. Appointment of panels

(1) The essential services committee must, taking into account the nature and complexity of the issue, assign each matter before it to a panel consisting of either three or five persons, including the assessors referred to in subsections (3) and (4).

(2) A panel must be presided over by the chairperson or deputy chairperson of the essential services committee or by a senior commissioner referred to in subsection (3).

(3) The Commission must compile a list of suitably trained senior commissioners who may preside at panel hearings.

(4) If the essential services committee constitutes a three-member panel, it must either—

(a) appoint two of its members to serve as assessors; or

(b) invite the employer and trade union parties participating in the hearing to each nominate an assessor.

(5) If the essential services committee constitutes a five-member panel, it must—

(a) appoint two of its members to serve as its assessors; and

(b) invite the employer and trade union parties participating in the hearing to each nominate an assessor.

(6) If the essential services committee appoints assessors from its members to serve on a panel, it must appoint one who was nominated to the essential services committee by—

(a) organised labour; and

(b) organised business or government, depending on the sector concerned.

(7) A member of the essential services committee may be nominated to serve as an assessor in terms of subsections (4)(b) and (5)(b).

(8) The essential services committee may appoint an assessor if the trade union or employer parties participating in the hearing fail to nominate an assessor in terms of subsections (4)(b) and (5)(b) within the prescribed period.

(9) When appointing or nominating an assessor in terms of subsections (4) to (8), the essential services committee, and any party to a matter before it, must take into account the person’s skills, experience, expertise and knowledge of the sector concerned.

[S 70C ins by s 11 of Act 6 of 2014.]

70D. Powers and functions of panel

(1) The powers and functions of a panel appointed by the essential services committee are to—

(a) conduct investigations as to whether or not the whole or a part of any service is an essential service;

(b) determine whether or not to designate the whole or a part of that service as an essential service;

(c) determine disputes as to whether or not the whole or a part of any service falls within the scope of a designated essential service;

(d) determine whether or not the whole or a part of any service is a maintenance service;

(e) ratify a collective agreement that provides for the maintenance of minimum services in a service designated as an essential service; and

(f) determine, in accordance with the provisions of this Act, the minimum services required to be maintained in the service that is designated as an essential service.

(2) The presiding member of the panel must determine any question of procedure or law, including whether an issue is a question of procedure or law.

(3) The chairperson of the essential services committee or any person contemplated in section 70C(2) presiding at a hearing may, sitting alone, make an order—

(a) extending or reducing any period prescribed by the rules of the essential services committee; and

(b) condoning the late performance of an act contemplated by the rules of the essential services committee.

(4) Subject to subsections (2) and (3), the decision or finding of the majority of the panel is the decision of the essential services committee.

(5) The decision of a panel must be in writing and signed by the person referred to in section 70C(2), and include the reasons for that decision.

(6) A panel appointed by the essential services committee may make any appropriate order relating to its functions.

[S 70D ins by s 11 of Act 6 of 2014.]

70E. Jurisdiction and administration of essential services committee