South Africa: Numbered Acts

You are here: SAFLII >> Databases >> South Africa: Numbered Acts >> Labour Relations Act, 1995 [No. 66 of 1995] - G 16861

| Noteup

Labour Relations Act, 1995 [No. 66 of 1995] - G 16861


No. 1877.
^{13 December 1995}

NO. 66 OF 1995: LABOUR RELATIONS ACT, 1995.

It is hereby notified that the President has assented to the following Act which is hereby published for general information:-
No. 66 of 1995: Labour Relations Act, 1995.
ACT
To change the law governing labour relations and, for that purpose- to give effect to section 27 of the Constitution; ^{to regulate the organisational rights of trade unions;}
to promote and facilitate collective bargaining at the workplace and at sectoral level;
to regulate the right to strike and the recourse to 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. (English text signed by the President. Assented to 29 November 1995.)
: BE IT ENACTED by the Parliament of the Republic of South Africa as follows:-
CONTENTS OF ACT 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 or levies
14. Trade union representatives
15. Leave for trade union activities
16. Disclosure of information
17. Restricted rights in domestic sector
18. Right to establish thresholds of representativeness
19. Certain organisational rights for trade union party to council
20. Organisational rights in collective agreements
21. Exercise of rights conferred by this Part
22. Disputes about organisational rights

PART B-COLLECTIVE AGREEMENTS
23. Legal effect of collective agreement
24. Disputes about collective agreements
25. Agency shop agreements
26. Closed shop agreements

PART C-BARGAINING 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
33. Appointment and powers of designated agents of bargaining councils
34. Amalgamation of bargaining councils

PART D-BARGAINING COUNCILS IN THE PUBLIC SERVICE

35. Bargaining councils in public service
36. Public Service Co-ordinating Bargaining Council
37. Bargaining councils in sectors in public service
38. Dispute resolution committee

PART E-STATUTORY COUNCILS
39. Application to establish statutory council
40. Establishment and registration of statutory council
41. Establishment and registration of statutory council in absence of agreement
42. Certificate of registration of statutory council
43. Powers and functions of statutory councils
44. Ministerial determinations
45. Disputes about determinations
46. Withdrawal of party from statutory council
47. Appointment of new representative of statutory council
48. Change of status of statutory council

PART F-GENERAL PROVISIONS CONCERNING COUNCILS
49. Representativeness of council
50. Effect of registration of council
51. Dispute resolution functions of council
52. Accreditation of council or appointment of accredited agency
53. Accounting records and audits
54. Duty to keep records and provide information to registrar 55. Delegation of functions to committee of council
56. Admission of parties to council
57. Changing constitution or name of council
58. Variation of registered scope of council
59. Winding-up of council
60. Winding-up of council by reason of insolvency
61. Cancellation of registration of council
62. Disputes about demarcation between sectors and areas
63. Disputes about Parts A and C to F CHAPTER IV
STRIKES AND LOCK-OUTS
64. Right to strike and recourse to lock-out
65. Limitations on right 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
71. Designating a service as an essential service
72. Minimum services
73. Disputes about whether a service is an essential service
74. Disputes in essential services
75. Maintenance services
76. Replacement labour
77. Protest action to promote or defend socioeconomic interests of workers

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 registered trade unions or registered employers' organisations
104. Winding-up of trade unions or employers' organisations by reason of insolvency
105. Cancellation of registration of trade union that is no longer independent
106. Cancellation of registration of trade unions or employers' organisations

PART B-REGULATION OF FEDERATIONS OF TRADE UNIONS AND EMPLOYERS' ORGANISATIONS 107. Regulation of federations of trade unions or employers' organisations

PART C-REGISTRAR OF LABOUR RELATIONS
108. Appointment of registrar of labour relations
109. Functions of registrar
110. Access to information

PART D-APPEALS FROM REGISTRAR'S DECISION
111. Appeals from registrar's decision

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 in essential services
140. Special provisions for arbitrations about dismissals for reasons related to conduct or capacity
141. Resolution of disputes if parties consent to arbitration under auspices of Commission
142. Powers of commissioner when attempting to resolve disputes
143. Effect of arbitration awards
144. Variation and rescission of arbitration awards
145. Review of arbitration awards
146. Exclusion of Arbitration Act
147. Performance of dispute resolution functions by Commission in exceptional circumstances
148. Commission may provide advice
149. Commission may provide assistance
150. Commission may offer to resolve

PART D-LABOUR COURT
151. Establishment and status of Labour Court
152. Composition of Labour Court
153. Appointment of judges of Labour Court
154. Tenure, remuneration and terms and conditions of appointment of ^{Labour Court judges}
155. Officers of Labour Court
156. Area of jurisdiction and seat of Labour Court
157. Jurisdiction of Labour Court
158. Powers of Labour Court 159. Rules Board for Labour Courts and rules for Labour Court
160. Proceedings of Labour Court to be carried on in open court
161. Representation before Labour Court
162. Costs
163. Service and enforcement of orders of Labour Court
164. Seal of Labour Court
165. Variation and rescission of orders of Labour Court
166. Appeals against judgment or order of Labour Court

PART E-LABOUR APPEAL COURT

167. Establishment and status of Labour Appeal Court
168. Composition of Labour Appeal Court
169. Appointment of judges of Labour Appeal Court
170. Tenure, remuneration and terms and conditions of appointment of Labour Appeal Court judges
171. Officers of Labour Appeal Court
172. Area of jurisdiction and seat of Labour Appeal Court
173. Jurisdiction of Labour Appeal Court
174. Powers of Labour Appeal Court on hearing of appeals
175. Labour Appeal Court may sit as court of first instance
176. Rules for Labour Appeal Court
177. Proceedings of Labour Appeal Court to be carried on in open court
178. Representation before Labour Appeal Court
179. Costs
180. Service and enforcement of orders
181. Seal of Labour Appeal Court
182. 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 185. Right not to be unfairly dismissed

186. Meaning of dismissal 187. Automatically unfair dismissals

188. Other unfair dismissals

189. Dismissals based on operational requirements

190. Date of dismissal

191. Disputes about unfair dismissals

192. Onus in dismissal disputes

193. Remedies for unfair dismissal

194. Limits on compensation

195. Compensation is in addition to any other amount

196. Severance pay

197. Transfer of contract of employment

CHAPTER IX GENERAL PROVISIONS 198. Temporary Employment Services

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

200. Representation of employees or employers

201. Confidentiality

202. Service of documents

203. Codes of good practice

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

205. Records to be kept by employer

206. Effect of certain defects and irregularities

207. Ministers empowered to add and change to Schedules

208. Regulations

209. This Act binds the State

210. Application of Act when in conflict with other laws

211. Amendment of laws

212. Repeal of laws, and transitional arrangements

213. Definitions

214. Short title and commencement

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 forums (section 82(1)(a))

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

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

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

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

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

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

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

10. Establishment of coordinating and subsidiary workplace forums ^{(section 82(2)(b))}

SCHEDULE 3

COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION 230

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

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

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. Residual unfair labour practices

3. Disputes about unfair labour practices

4. Powers of Labour Court and Commission

PART C-PROVISIONS CONCERNING EXISTING TRADE UNIONS, EMPLOYERS' ORGANISATIONS, INDUSTRIAL COUNCILS AND CONCILIATION BOARDS

5. Existing registered trade unions and employers' organisations

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

7. Industrial councils

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

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

10. Pending applications for admission of parties to industrial councils

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

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

13. Existing agreements including recognition agreements

PART D- MATTERS CONCERNING PUBLIC SERVICE

14. Public Service Bargaining Council

15. Collective agreements in the public service

16. Education Labour Relations Council

17. Education sector collective agreements

18. Negotiating Forum in South African Police Service

19. Collective agreement in South African Police Service 20. Consequences for public service bargaining institutions when Public Service Co-ordinating Bargaining Council is established

PART E-DISPUTES AND COURTS

21. Disputes arising before commencement of this Act

22. Courts

PART F-PENSION MATTERS

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

SCHEDULE 8

CODE OF GOOD PRACTICE: DISMISSAL

1. Introduction

2. Fair reasons for dismissal

3. Misconduct

4. Fair procedure

5. Disciplinary records

6. Dismissals and industrial action

7. Guidelines in cases of dismissal for misconduct

8. Incapacity: Poor work performance

9. Guidelines in cases of dismissal for poor work performance

10. Incapacity: III health or injury

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

CHAPTER I PURPOSE, APPLICATION AND INTERPRETATION 1. Purpose of this Act

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

(a) to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution ;2

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

¸ to provide a framework within which employees and their trade unions, employers and employers' organisations can-

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

(d) to promote-

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

2. Section 27, which is in the Chapter on Fundamental Rights in the

^{Constitution entrenches
the following rights:}

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

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

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

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

(5) Employers' recourse to the lock-out for the purpose of collective bargaining shall not be impaired, subject to subsection 33(l)."

(i) orderly collective bargaining;

(ii) collective bargaining at sectoral level;

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

(iv) the effective resolution of labour disputes.

2. Exclusion from application of this Act

This Act does not apply to members of- (a) the National Defence Force; (b) the National Intelligence Agency; and

¸ the South African Secret Service.

3. Interpretation of this Act

Any person applying this Act must interpret its provisions- (a) to give effect to its primary objects; (b) in compliance with the Constitution; and

¸ in compliance with the public international law obligations of the Republic.

CHAPTER II

FREEDOM OF ASSOCIATION AND GENERAL PROTECTIONS

4. Employees' right to freedom of association

(1) Every employee has the right-

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

(b) to join a trade union, subject to its constitution. (2) Every member of a trade union has the right, subject to the

constitution of that trade union-

(a) to participate in its lawful activities;

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

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

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

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

(a) to participate in its lawful activities;

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

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

5. Protection of employees and persons seeking employment

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

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

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

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

forum; or

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

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

¸ prejudice an employee or a person seeking employment because of past, present or anticipated-

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

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

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

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

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

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

(3) No person may advantage, or promise to advantage, an employee or a person seeking employment in exchange for that person not exercising any right conferred by this Act or not participating in any proceedings in terms of this Act.

However, nothing in this section precludes the parties to a dispute from concluding an agreement to settle that dispute.

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

6. Employers' right to freedom of association

(1) Every employer has the right-

(a) to participate in forming an employers' organisation or a federation of employers' organisations; and

(b) to an employers' organisation, subject to its constitution. (2) Every member of an employers' organisation has the right,

^{subject to the
constitution of that employers' organisation-}

(a) to participate in its lawful activities;

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

¸ if-

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

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

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

(a) to participate in its lawful activities; (b) to participate in the election of any of its office-bearers or o and (c)

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

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

7. Protection of employers' rights

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

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

(a) require an employer-

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

(ii) not to become a member of an employers' organisation; or (iii) to give up membership of an employers' organisation; (b) prevent an employer from exercising any right conferred by this ^{Act or from participating in any proceedings in terms of this Act; or}

(c) prejudice an employer because of past, present or anticipated- (i) membership of an employers' organisation; (ii) participation in forming an employers' organisation or a federation of employers' organisations;

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

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

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

(vi) participation in any proceedings in terms of this Act. (3) No person may advantage, or promise to advantage, an employer in

^{exchange for that
employer not exercising any right conferred by this Act}

or not participating in any proceedings in terms of this Act. However, nothing in this section precludes the parties to a dispute from concluding an agreement to settle that dispute.

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

the contractual provision is permitted by this Act.

8. Rights of trade unions and employers' organisations Every trade union and every employers' organisation has the right- (a) subject t

employers' organisations, subject to its constitution, and to participate in its lawful activities; and

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

9. Procedure for dispute S 3

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

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

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

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

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

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

10. Burden of proof

In any proceedings-

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

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

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' interests.

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

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

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

13. Deduction of trade union subscriptions or levies

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

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

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

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

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

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

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

(c) a copy of every notice of revocation in terms of subsection (3).

14. Trade union representatives

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

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

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

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

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

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

(e) if there are more than 600 members of the trade union employed in the workplace, 10 trade union representatives for the first 600 members, plus one additional trade union representative for every 200 additional members up to a maximum of 12 trade union representatives; and if there are more than 1000 members of the trade union employed in the workplace, 12 trade union representatives for the first 1000 members, plus one additional trade union representative for every 500 additional members up to a maximum of 20 trade union representatives.

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

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

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

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

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

(i) the employer;

(ii) the representative trade union; and

(iii) any responsible authority or agency; and

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

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

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

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

15. Leave for trade union activities

(1) An employee who is an office-bearer of a representative trade union, or of a federation of trade unions to which the representative trade

union is affiliated, is entitled to take reasonable leave during working hours for the purpose of performing the functions of that office.

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

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

16. Disclosure of information

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

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

section 14(4).

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

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

(5) An employer is not required to disclose information- (a) that is legally privileged; (b) that the employer cannot disclose without contravening a prohibition imposed on the employer by any law or order of any court;

(c) that is confidential and, if disclosed, may cause substantial harm to an employee or the employer; or

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

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

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

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

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

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

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

section 14(4) or the ability of a representative trade union to engage effectively in consultation or collective bargaining.

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

(13) When making an order in terms of subsection (I 2), the commissioner must take into account any breach of confidentiality in respect of information disclosed in terms of this section at that workplace and may refuse to order the disclosure of the information or any other confidential information which might otherwise be disclosed for a period specified in the arbitration award.

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

17. Restricted rights in domestic sector

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

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

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

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

18. Right to establish thresholds of representativeness

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

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

19. Certain organisational rights for trade union party to council

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

20. Organisational rights in collective agreements

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

21. Exercise of rights conferred by this Part 4

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

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

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

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

(c) the rights that the trade union seeks to exercise and the manner in which it seeks to exercise those rights.

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

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

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

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

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

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

(a) must seek

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

(ii) to minimise the financial and administrative burden of requiring an employer to grant organisational rights to more than one registered trade union; (b) must consider- ^{(i) the nature of the workplace;}

(ii) the nature of the one or more organisational rights that the registered trade union seeks to exercise; (iii) the nature of the sector in which the workplace is situated; and

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

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

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

(a) make any necessary inquiries;

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

(c) take into account any other relevant information.

(10) The employer must 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.

22. Disputes about organisational rights

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

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

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

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

PART B-COLLECTIVE AGREEMENTS

23. Legal effect of collective agreement

(1) A collective agreement binds-

(a) the parties to the collective agreement;

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

(c) the members of a registered trade union and the employers who are members of a registered employers' organisation that are party to the collective agreement if the collective agreement regulates- (i) terms and conditions of employment; or ^{(ii) the conduct of the employers in relation to their} employees or the conduct of the employees in relation to their employers;

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

(i) the employees are identified in the agreement; (ii) the agreement expressly binds the employees; and (iii) that trade union or those trade unions have as their members the majority of employees employed by the employer in the workplace.

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

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

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

24. Disputes about collective agreements

(1) Every collective agreement, excluding an agency shop agreement concluded in terms of section 25 or a closed shop agreement concluded in terms of section 26, must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement. The procedure must first require the parties to attempt to resolve the

dispute through conciliation and, if the dispute remains unresolved, to resolve it through arbitration.

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

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

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

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

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

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

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

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

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

25. Agency shop agreements

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

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

(a) by an employer in a workplace; or

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

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

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

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

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

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

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

(c) the amount deducted must be paid into a separate account administered by the representative trade union; and

(d) no part of the amount deducted may be-

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

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

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

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

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

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

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

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

(8) An employer or employers' organisation that alleges that a trade union is no longer a representative trade union in terms of subsection (1) must give the trade union written notice of the allegation, and must allow the trade union 90 days from the date of the notice to establish that it is a representative trade union.

(9) If, within the 90-day period, the trade union falls to establish that it is a representative trade union, the employer must give the trade

union and the employees covered by the agency shop agreement 30 days' notice of termination, after which the agreement will terminate.

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

26. Closed shop agreements

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

(2) For the purposes of this section, "representative trade union" means a registered trade union, or two or more registered trade unions acting Jointly, whose members are a majority of the employees employed-

(a) by an employer in a workplace; or

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

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

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

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

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

(d) it provides that no part of the amount deducted may be-

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

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

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

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

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

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

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

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

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

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

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

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

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

(7) Despite subsection (6)-

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

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

(8) The employees referred to in subsection (7) may be required by the closed shop agreement to pay an agreed agency fee, in which case the provisions of section 25(3)(b), (c) and (d) and (4) to (7) apply.

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

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

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

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

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

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

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

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

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

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

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

PART C-BARGAINING COUNCILS

27. Establishment of bargaining councils

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

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

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

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

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

28. Powers and functions of bargaining council The powers and functions of a bargaining council in relation to its registered scope include the following-

(a) to conclude collective agreements;

(b) to enforce those collective agreements; (c) to prevent and resolve labour disputes; (d) to perform the dispute resolution functions referred to in section 51; (e) to establish and administer a fund to be used for resolving disputes;

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

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

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

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

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

29. Registration of bargaining councils

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

(a) the prescribed form that has been properly completed; (b) a copy of its constitution; and (c) any other information that may assist the registrar to determine whether or not the bargaining council meets the requirements for registration.

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

(3) As soon as practicable after receiving the application, the registrar must publish a notice containing the material particulars of the application in the Government Gazette. The notice must inform the

general public that they-

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

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

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

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

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

(c) the applicant is not sufficiently representative in the sector and area in respect of which the application is made.

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

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

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

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

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

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

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

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

(11) The registrar-

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

(b) must determine whether-

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

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

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

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

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

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

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

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

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

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

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

(a) refuse to register the applicant; and

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

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

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

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

30. Constitution of bargaining council (1) The constitution of every bargaining council must provide for- (a) the appointment of representatives of the parties to the ^{bargaining council, of whom half must be appointed by the trade} ^{unions that are party to the bargaining council and the other half by} the employers' organisations that are party to the bargaining council, and the appointment of alternates to the representatives;

(b) the representation of small and medium enterprises;

(c) the circumstances and manner in which representatives must vacate their seats' and the procedure for replacing them;

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

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

(g) the establishment and functioning of committees;

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

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

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

(k) the procedure for exemption from collective agreements; (l) the banking and investment of its funds; (m) the purposes for which its funds may be used; (n) the delegation of its powers and functions; (o) the admission of additional registered trade unions and registered employers' organisations as parties to the bargaining council, subject to the provisions of section 56;7

(p) a procedure for changing its constitution; and

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

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

(a) any reference to an "employers' organisation" must be read as a reference to the State as employer; and

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

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

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

31. Binding nature of collective agreement concluded in bargaining council

Subject to the provisions of section 32 and the constitution of the bargaining council, a collective agreement concluded in a bargaining council binds only the parties to the bargaining council who are parties to the collective agreement.

32. Extension of collective agreement concluded in bargaining council

(1) A bargaining council may ask the Minister in writing to extend a collective agreement concluded in the bargaining council to any

non-parties to the collective agreement that are within its registered scope and are identified in the if at a meeting of the bargaining council request, I

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

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

(2) Within 60 days of receiving the request, the Minister must extend the collective agreement, as requested, by publishing a notice in the Government Gazette declaring that, from a specified date and for a specified period, the collective agreement will be binding on the

^{non-parties specified in
the notice.}

(3) A collective agreement may not be extended in terms of subsection (2)

unless the Minister is satisfied that-

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

(b) the majority of employees employed within the registered scope of the bargaining council are members of the trade unions that are party to the bargaining council;

(c) the members of the employers' organisations that are party to the bargaining council employ the majority of the employees employed within the registered scope of the bargaining council;

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

(e) the collective agreement establishes or appoints an independent body to grant exemptions to non-parties and to determine the terms of those exemptions from the provisions of the collective agreement as soon as possible;

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

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

(4) For the purpose of subsection (3)(e), a bargaining council in its appointment of the members of the independent body must have due regard to the nominations made by the institutions listed in the schedule promulgated in terms of section 207(6).

(5) Despite subsection (3)(b) and (c), the Minister may extend a collective agreement in terms of subsection (2) if(a) the parties to the bargaining council are sufficiently representative within the registered scope of the bargaining council; and

(b) the Minister is satisfied that the failure to extend the agreement may undermine collective bargaining at sectoral level.

(6) (a) After a notice has been published in terms of subsection (2), the Minister, at the request of the bargaining council, may publish a further notice in the Government Gazette(i) extending the period specified in the earlier notice by a further period determined by the Minister; or

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

(b) The provisions of subsections (3) and (5), read with the changes required by the context, apply in respect of the publication of any notice in terms of this subsection.

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

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

33. Appointment and powers of designated agents of bargaining councils

(1) The Minister may at the request of a bargaining council appoint any person as the designated agent of that bargaining council to help it enforce any collective agreement concluded in that bargaining council.

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

(3) Within the registered scope of the bargaining council, a designated agent of the bargaining council has all the powers conferred on a commissioner by section 142, read with the changes required by the context, except the powers conferred by section 142(l)(c) and (d). Any reference in that section to the director for the purpose of this section, must be read as a reference to the secretary of the bargaining council.

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

34. Amalgamation of bargaining councils

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

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

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

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

(5) When the registrar has registered an amalgamated bargaining council- (a) all the assets, rights, liabilities and obligations of the

^{amalgamating bargaining
councils devolve upon and vest in the}

amalgamated bargaining council; and

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

PART D-BARGAINING COUNCILS IN THE PUBLIC SERVICE

35. Bargaining councils in public service

There will be a bargaining council for-

(a) the public service as a whole, to be known as the Public Service Co-ordinating Bargaining Council; and (b) any sector within the public service that may be designated in terms of section 37.

36. Public Service Co-ordinating Bargaining Council

(1) The Public Service Co-ordinating Bargaining Council must be established in accordance with Schedule 1.8

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

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

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

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

37. Bargaining councils in sectors in public service

(1) The Public Service Co-ordinating Bargaining Council may designate a sector of the public service for the establishment of a bargaining council.

(2) Despite subsection (1), the President, after consulting the Public Service Co-ordinating Bargaining Council, may designate a sector of the public service for the establishment of a bargaining council if the uniform rules, norms and standards applicable to the public service are not appropriate to regulate employment in that sector.

8. Schedule 1 deals with the procedure for the establishment of the Public

^{Service Co-ordinating Bargaining Council.}

(3) A bargaining council for a sector designated by-

(a) the Public Service Co-ordinating Bargaining Council must be established in terms of its constitution;

(b) the President must be established in terms of Schedule 1.

(4) (a) The President may designate a sector for the establishment of a bargaining council in respect of employees of the State or organs of the State but who are not employees engaged in the public service.

(b) A bargaining council must be established in respect of a sector designated by the President in terms of paragraph (a) and the provisions of item 3(3) to (9) of Schedule I apply.

(c) A bargaining council established in terms of paragraph (b) will be deemed to be a bargaining council in the public service for the purposes of this Act.

(5) A bargaining council established in terms of subsection (3) or (4) has exclusive jurisdiction in respect of matters that are specific to that sector and in respect of which the State as employer in that sector has the requisite authority to conclude collective agreements and resolve labour disputes.

38. Dispute resolution committee

(1) The Minister for the Public Service and Administration, after consulting NEDLAC and the Public Service Co-ordinating Bargaining

Council, must establish a dispute resolution committee under the auspices of the Commission, and appoint to that committee persons who have knowledge and experience of labour law and labour relations in the public service.

(2) The functions of the dispute resolution committee are to resolve any jurisdictional dispute between the Public Service Co-ordinating Bargaining Council and any bargaining council established in terms of section 37(3).

(3) If there is a jurisdictional dispute between the Public Service

Co-ordinating Bargaining Council and a bargaining council established in terms of section 37(3), any party to the dispute may refer the dispute in writing to the dispute resolution committee.

(4) The party who refers the dispute to the dispute resolution committee must satisfy it that a copy of the referral has been served on the Public Service Co-ordinating Bargaining Council.

(5) The dispute resolution committee must attempt to resolve the dispute as soon as possible through conciliation.

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

(7) The Minister for the Public Service and Administration must determine the remuneration and allowances and any other terms and conditions of appointment of committee members. The expenditure incurred for that purpose will be defrayed from public funds.

PART E-STATUTORY COUNCILS

39. Application to establish statutory council

(1) For the purposes of this Part-

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

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

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

(3) The registrar must apply the provisions of section 29(2) to (10)9 to the application-

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

(b) subject to the deletion of the word "sufficiently" in section

29(4)(c).

(4) The registrar must-

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

(b) determine whether-

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

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

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

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

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

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

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

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

(a) refuse to register the applicant; and

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

40. Establishment and registration of statutory council

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

(2) The notice must invite-

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

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

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

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

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

(4) If an agreement is concluded, the Minister may advise the registrar

to register the statutory council in accordance with the agreement if the

Minister is satisfied that-

(a) every registered trade union and registered employers' organisation that ought to have been included has been included in the agreement; and (b) the constitution meets the requirements of section 30, read with the changes required by the context.

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

(a) the primary objects of this Act;

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

(c) the principle of proportional representation.

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

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

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

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

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

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

(c) the allocation to each party of the number of representatives of the statutory council.

(2) If an agreement is concluded on-

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

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

(3) If no agreement is concluded on-

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

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

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

(b) the registered employers' organisations to be parties to the statutory council, the Minister must admit as parties to the statutory council- (i) the applicant, if it is a registered employers' organisation; and

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

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

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

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

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

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

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

40(2).

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

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

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

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

(c) certify the constitution as the constitution of the statutory council.

42. Certificate of registration of statutory council

After registering a statutory council, the registrar must

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

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

43. Powers and functions of statutory councils

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

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

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

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

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

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

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

44. Ministerial determinations

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

(2) The Minister may promulgate the statutory council's recommendations as a determination under the Wage Act if satisfied that the statutory council has complied with sections 7 and 9 of the Wage Act. For that purpose the provisions of sections 7 and 9 to 12 of the Wage Act, read with the changes required by the context, apply to the statutory council as if it was the wage board.

(3) The determination must provide for

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

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

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

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

45. Disputes about determinations

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

dispute may refer the dispute in writing to the Commission.

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

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

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

46. Withdrawal of party from statutory council

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

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

47. Appointment of new representative of statutory council

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

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

48. Change of status of statutory council

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

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

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

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

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

(b) may be extended for a further period.

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

(6) If any dispute in terms of a determination is unresolved at the time

the determination ceases to have effect, the dispute must be dealt with as if the determination was still in effect.

PART F-GENERAL PROVISIONS CONCERNING COUNCILS

49. Representativeness of council

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

(2) The registrar-

(a) after consultation with a council, must fix a date for an annual review of the representativeness of the council;

(b) must conduct that review once every year by that date; and

(c) if satisfied that the council remains representative, must issue a certificate of representativeness that must include the following particulars-

(i) the number of employees employed within the registered scope of the council;

(ii) the number of those employees who are members of the trade unions that are party to the council; and

(iii) the number of employees employed within the registered scope of the council by the members of the employers' organisations that are party to the council.

(3) A certificate of representativeness issued in terms of subsection (2) is sufficient proof of the representativeness of the council for the following year.

50. Effect of registration of council

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

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

(3) A party to a council is not liable for any of the obligations or liabilities of the council by virtue of it being a party to the council.

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

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

51. Dispute resolution functions of council

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

(a) on the one side(i) one or more trade unions; one or more employees; or one or more trade unions and one or more employees; and

(b) on the other side-

(i) one or more employers' organisations; (ii) one or more employers; or (iii) one or more employers' organisations and one or more employers.

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

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

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

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

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

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

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

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

(5) The date on which the referral in terms of subsection (4) was

received by a council is, for all purposes, the date on which the council referred the dispute to the Commission.

52. Accreditation of council or appointment of accredited agency Every council must-

(a) apply to the Commission for accreditation to perform any of the functions referred to in section 51; or

(b) appoint an accredited agency to perform any of the functions referred to in section 51.

53. Accounting records and audits

(1) Every council must, to the standards of generally accepted accounting practice, principles and procedures (a) keep books and records of its income, expenditure, assets and liabilities; and

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

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

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

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

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

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

(3) Every council must-

(a) make the financial statements and the auditor's report available to the parties to the council or their representatives for inspection; and

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

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

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

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

(b) internal registered stock as contemplated in section 21 of the Exchequer Act, 1975 (Act No. 66 of 1975); (c) a registered unit trust; or (d) any other manner approved by the registrar.

54. Duty to keep records and provide information to registrar

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

(2) Every council must provide to the registrar-

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

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

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

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

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

(3) Every council must provide to the Commission-

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

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

55. Delegation of functions to committee of council

(1) A council may delegate any of its functions to a committee on any conditions, but any decision of a committee may be amended or set aside by the council.

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

(3) The council, by delegating any function, is not divested of any of its powers nor is it relieved of any function or duty that it may have delegated.

56. Admission of parties to council 12

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

(2) The application must be accompanied by a certified copy of the applicant's registered constitution and certificate of registration and must include-

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

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

(c) any other information on which the applicant relies in support of the application.

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

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

12. See flow diagram No. 5 in Schedule 4.

(5) The applicant may apply to the Labour Court for an order admitting it

as a party to the council.

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

57. Changing constitution or name of council

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

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

(3) The registrar must-

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

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

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

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

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

(7) The registrar must-

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

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

(c) send the new certificate to the council.

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

58. Variation of registered scope of council

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

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

59. Winding-up of council

(1) The Labour Court may order a council to be wound up if-

(a) the council has resolved to wind up its affairs and has applied to the Court for an order giving effect to that resolution; or (b) the registrar of labour relations or any party to the council has applied to the Court and the Court is satisfied that the council is unable to continue to function for any reason that cannot be ^remedied.

(2) If there are any persons not represented before the Labour Court whose interests may be affected by an order in terms of subsection (1), the Court must-

(a) consider those interests before deciding whether or not to grant the order; and

(b) if it grants the order, include provisions in the order disposing of each of those interests.

(3) If it makes an order in terms of subsection (1), the Labour Court may appoint a suitable person as liquidator, on appropriate conditions.

(4) (a) The registrar of the Labour Court must determine the liquidator's fees.

(b) The Labour Court, in chambers, may review the determination of the registrar of the Labour Court.

(c) The liquidator's fees are a first charge against the assets of the council.

(5) If, after all the liabilities of the council have been discharged, any assets remain that cannot be disposed of in accordance with the constitution of that council, the liquidator must realise those assets and pay the proceeds to the Commission for its own use.

60. Winding-up of council by reason of insolvency

Any person who seeks to wind-up a council by reason of insolvency must comply with the Insolvency Act, 1936 (Act No. 24 of 1936), and, for the purposes of this section, any reference to the court in that Act must be interpreted as referring to the Labour Court.

61. Cancellation of registration of council

(1) The registrar of the Labour Court must notify the registrar of labour relations if the Court has ordered a council to be wound up.

(2) When the registrar receives a notice from the Labour Court in terms of subsection (1), the registrar must cancel the registration of the council by removing its name from the register of councils.

(3) The registrar may notify a council and every party to the council that the registrar is considering cancelling the council's registration, if the registrar believes that-

(a) the council has ceased to perform its functions in terms of this Act for a period longer than 90 days before the date of the notice; or

(b) the council has ceased to be representative in terms of the provisions of the relevant Part, for a period longer than 90 days prior to the date of the notice.

(4) In a notice in terms of subsection (3), the registrar must state the reasons for the notice and inform the council and every party to the council that they have 60 days to show cause why the council's

registration should not be cancelled.

(5) After the expiry of the 60-day period, the registrar, unless cause has been shown why the council's registration should not be cancelled, must notify the council and every party to the council that the registration will be cancelled unless an appeal to the Labour Court is noted and the Court reverses the decision.

(6) The cancellation takes effect-

(a) if no appeal to the Labour Court is noted within the time contemplated in section III (3), on the expiry of that period; or

(b) if the council or any party has appealed and the Labour Court has confirmed the decision of the registrar, on the date of the Labour Court's decision.

(7) If either event contemplated in subsection (6) occurs, the registrar must cancel the council' s registration by removing the name of the council from the register of councils.

(8) Any collective agreement concluded by parties to a council whose registration has been cancelled, whether or not the collective agreement has been extended to non-parties by the Minister in terms of section 32, lapses 60 days after the council's registration has been cancelled.

(9) Despite subsection (8), the provisions of a collective agreement that regulates terms and conditions of employment remain in force for one year after the date that the council' s registration was cancelled, or until the expiry of the agreement, if earlier.

(10) Any party to a dispute about the interpretation or application of a collective agreement that regulates terms and conditions of employment referred to in subsection (8) may refer the dispute in writing to the Commission.

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

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

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

62. Disputes about demarcation between sectors and areas

(1) Any registered trade union, employer, registered employers' organisation or council that has a direct or indirect interest in the application contemplated in this section may apply to the Commission in the prescribed form and manner for a determination as to-

(a) whether any employee, employer, class of employees or class of employers, is or was employed or engaged in a sector or area;

(b) whether any provision in any arbitration award, collective agreement or wage determination made in terms of the Wage Act is or was binding on any employee, employer, class of employees or class of employers.

(2) If two or more councils settle a dispute about a question contemplated in subsection (1)(a) or (b), the councils must inform the Minister of the provisions of their agreement and the Minister may

publish a notice in the Government Gazette stating the particulars of the agreement.

(3) In any proceedings in terms of this Act before the Labour Court, if a question contemplated in subsection (1)(a) or (b) is raised, the Labour Court must adjourn those proceedings and refer the question to the Commission for determination if the Court is satisfied that-

(a) the question raised-

(i) has not previously been determined by arbitration in terms of this section; and

(ii) is not the subject of an agreement in terms of subsection (2); and

(b) the determination of the question raised is necessary for the purposes of the proceedings.

(4) When the Commission receives an application in terms of subsection (1) or a referral in terms of subsection (3), it must appoint a commissioner to hear the application or determine the question, and the provisions of section 138 apply, read with the changes required by the context.

(5) In any proceedings in terms of this Act before a commissioner, if a question contemplated in subsection (1)(a) or (b) is raised, the commissioner must adjourn the proceedings and consult the director, if the commissioner is satisfied that-

(a) the question raised-

(i) has not previously been determined by arbitration in terms of this section; and

(ii) is not the subject of an agreement in terms of subsection (2); and

(b) the determination of the question raised is necessary for the purposes of the proceedings.

(6) The director must either order the commissioner concerned to determine the question or appoint another commissioner to do so, and the provisions of section 138 apply, read with the changes required by the context.

(7) If the Commission believes that the question is of substantial importance, the Commission must publish a notice in the Government Gazette stating the particulars of the application or referral and stating the period within which written representations may be made and the address to which they must be directed.

(8) If a notice contemplated in subsection (7) has been published, the commissioner may not commence the arbitration until the period stated in the notice has expired.

(9) Before making an award, the commissioner must consider any written representations that are made, and must consult NEDLAC.

(10) The commissioner must send the award, together with brief reasons, to the Labour Court and to the Commission.

(11) If the Commission believes that the nature of the award is substantially important, it may publish notice of the award in the

Government Gazette.

(12) The registrar must amend the certificate of registration of a council in so far as is necessary in light of the award.

63. Disputes about Parts A and C to F

(1) Any party to a dispute about the interpretation or application of Parts A and C to F of this Chapter, may refer the dispute in writing to the Commission unless-

(a) the dispute did not arise in the course of arbitration proceedings or proceedings in the Labour Court; or

(b) the dispute is otherwise to be dealt with in terms of Parts A and C to F.

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

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

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

CHAPTER IV STRIKES AND LOCK-OUTS

64. Right to strike and recourse to lock-out

(1) Every employee has the right to strike and every employer has recourse to lock-out if-

(a) the issue in dispute has been referred to a council or to the Commission as required by this Act, and-

(i) a certificate stating that the dispute remains unresolved has been issued; or

(ii) a period of 30 days, or any extension of that period agreed to between the parties to the dispute, has elapsed since the referral was received by the council or the Commission; and after that-

(b) in the case of a proposed strike, at least 48 hours' notice of the commencement of the strike, in writing, has been given to the employer, unless-

(i) the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; or

(ii) the employer is a member of an employers' organisation that is a party to the dispute, in which case, notice must have been given to that employers' organisation; or

(c) in the case of a proposed lock-out, at least 48 hours' notice of the commencement of the lock-out, in writing, has been given to any trade union that is a party to the dispute, or, if there is no such trade union, to the employees, unless the issue in dispute relates to a collective agreement to be concluded in a council, in which case,

notice must have been given to that council; or

(d) the case of a proposed strike or lock-out where the State is the employer, at least seven days' notice of the commencement of the strike or lock-out has been given to the parties contemplated in paragraphs (b) and (c).

(2) If the issue in dispute concerns a refusal to bargain, an advisory award must have been made in terms of section 135(3)(c) before notice is given in terms of subsection

(1)(b) or (c). A refusal to bargain includes- (a) a refusal-

^{(i) to recognise a
trade union as a collective bargaining}

agent; or

(ii) to agree to establish a bargaining council;

(b) a withdrawal of recognition of a collective bargaining agent; and

(i) appropriate bargaining units;

(ii) appropriate bargaining levels; or

(iii) bargaining subjects.

(3) The requirements of subsection (1) do not apply to a strike or a lock-out if-

(a) the parties to the dispute are members of a council, and the dispute has been dealt with by that council in accordance with its constitution;

(b) the strike or lock-out conforms with the procedures in a collective agreement;

(c) the employees strike in response to a lock-out by their employer that does not comply with the provisions of this Chapter;

(d) the employer locks out its employees in response to their taking part in a strike that does not conform with the provisions of this Chapter; or

(e) the employer fails to comply with the requirements of subsections

(4) and (5).

(4) Any employee who or any trade union that refers a dispute about a unilateral change to terms and conditions of employment to a council or the Commission in terms of subsection (1)(a) may, in the referral, and for the period referred to in subsection (1)(a)-

(a) require the employer not to implement unilaterally the change to terms and conditions of employment; or

(b) if the employer has already implemented the change unilaterally, require the employer to restore the terms and conditions of employment that applied before the change.

(5) The employer must comply with a requirement in terms of subsection

(4) within 48 hours of service of the referral on the employer.

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

(1) No person may take part in a strike or a lock-out or in any conduct in contemplation or furtherance of a strike or a lock-out if-

(a) that person is bound by a collective agreement that prohibits a strike or lock-out in respect of the issue in dispute;

(b) that person is bound by an agreement that requires the issue in dispute to be referred to arbitration;

(c) the issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court in terms of this Act;

(d) that person is engaged in-

(i) an essential service; or

(ii) a maintenance service. 13

(2) (a) Despite section 65(l)(c), a person may take part in a strike or a lock-out or in any conduct in contemplation or in furtherance of a strike or lock-out if the issue in dispute is about any matter dealt with in sections 12 to 15. 14

(b) If the registered trade union has given notice of the proposed strike in terms of section 64(l) in respect of an issue in dispute referred to in paragraph (a), it may not exercise the right to refer the dispute to arbitration in terms of section 21 for a period of 12 months from the date of the notice.

(3) Subject to a collective agreement, no person may take part in a strike or a lock-out or in any conduct in contemplation or furtherance of a strike or lock-out-

13. Essential services, agreed minimum services and maintenance services are regulated in sections 71 to 75.

14. These sections deal with organisational rights. (a) if that person is bound by- ^{(i) any arbitration award or collective agreement that} regulates the issue in dispute; or

(ii) any determination made in terms of section 44 by the ^{Minister that regulates the issue in dispute; or}

(b) any determination made in terms of the Wage Act and that regulates the issue in dispute, during the first year of that determination.

66. Secondary strikes

(1) In this section "secondary strike" means a strike, or conduct in contemplation or furtherance of a strike, that is in support of a strike by other employees against their employer but does not include a strike in pursuit of a demand and referred to a council if the striking employees, employed within the registered scope of that council, have a material interest in that demand.

(2) No person may take part in a secondary strike unless- (a) the strike that is to be supported complies with the provisions of sections 64 and 65;

(b) the employer of the employees taking part in the secondary strike or, where appropriate, the employers' organisation of which that employer is a member, has received written notice of the proposed secondary strike at least seven days prior to its commencement; and

(c) the nature and extent of the secondary strike is reasonable in relation to the possible direct or indirect effect that the secondary strike may have on the business of the primary employer.

(3) Subject to section 68(2) and (3), a secondary employer may apply to the Labour Court for an interdict to prohibit or limit a secondary strike that contravenes subsection (2).

(4) Any person who is a party to proceedings in terms of subsection (3), or the Labour Court, may request the Commission to conduct an urgent investigation to assist the Court to determine whether the requirements of subsection (2)(c) have been met.

(5) On receipt of a request made in terms of subsection (4), the Commission must appoint a suitably qualified person to conduct the investigation, and then submit, as soon as possible, a report to the Labour Court.

(6) The Labour Court must take account of the Commission's report in terms of subsection (5) before making an order.

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

(1) In this Chapter, "protected strike" means a strike that complies with the provisions of this Chapter and "protected lock-out" means a lock-out that complies with the provisions of this Chapter.

(2) A person does not commit a defect or a breach of contract by taking part in-

(a) a protected strike or a protected lock-out; or

(b) any conduct in contemplation or in furtherance of a protected strike or a protected lock-out.

(3) Despite subsection (2), an employer is not obliged to remunerate an employee for services that the employee does not render during a protected strike or a protected lock-out, however-

(a) if the employee's remuneration includes payment in kind in respect of accommodation, the provision of food and other basic amenities of life, the employer, at the request of the employee, must not discontinue payment in kind during the strike or lock-out; and

(b) after the end of the strike or lock-out, the employer may recover the monetary value of the payment in kind made at the request of the employee during the strike or lock-out from the employee by way of civil proceedings instituted in the Labour Court.

(4) An employer may not dismiss an employee for participating in a protected strike or for any conduct in contemplation or in furtherance of a protected strike.

(5) Subsection (4) does not preclude an employer from fairly dismissing an employee in accordance with the provisions of Chapter VIII for a

reason related to the employee's conduct during the strike, or for a reason based on the employer's operational requirements.

(6) Civil legal proceedings may not be instituted against any person for- (a) participating in a protected strike or a protected lock-out; or (b) any conduct in contemplation or in furtherance of a protected

^{strike or a protected
lock-out.}

(7) The failure by a registered trade union or a registered employers' organisation to comply with a provision in its constitution requiring it to conduct a ballot of those of its members in respect of whom it intends to call a strike or lock-out may not give rise to, or constitute a ground for, any litigation that will affect the legality of, and the protection conferred by this section on, the strike or lock-out.

(8) The provisions of subsections (2) and (6) do not apply to any act in contemplation or in furtherance of a strike or a lock-out, if that act is an offence.

(9) Any act in contemplation or in furtherance of a protected strike or a protected lock-out that is a contravention of the Basic Conditions of Employment Act or the Wage Act does not constitute an offence.

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

(1) In the case of any strike or lock-out, or any conduct in contemplation or in furtherance of a strike or lock-out, that does not comply with the provisions of this Chapter, the Labour Court has exclusive jurisdiction-

(a) to grant an interdict or order to restrain-15

(i) any person from participating in a strike or any conduct in contemplation or in furtherance of a strike; or

(ii) any person from participating in a lock-out or any conduct in contemplation or in furtherance of a lock-out;

(b) to order the payment of just and equitable compensation for any loss attributable to the strike or lock-out, having regard to-

(i) whether -

(aa) attempts were made to comply with the provisions of this Chapter and the extent of those attempts;

(bb) the strike or lock-out was premeditated;

(cc) the strike or lock-out was in response to unjustified conduct by another party to the dispute; and

(dd) there was compliance with an order granted in terms of paragraph (a);

(ii) the interests of orderly collective bargaining; (iii) the duration of the strike or lock-out; and ^{(iv) the financial position of the employer, trade union or} employees respectively.

(2) The Labour Court may not grant any order in terms of subsection

(1)(a) unless 48 hours' notice of the application has been given to the respondent: However, the Court may permit a shorter period of notice if-

(a) the applicant has given written notice to the respondent of the applicant's intention to apply for the granting of an order;

(b) the respondent has been given a reasonable opportunity to be heard before a decision concerning that application is taken; and

(c) the applicant has shown good cause why a period shorter than 48 hours should be permitted.

(3) Despite subsection (2), if written notice of the commencement of the proposed strike or lock-out was given to the applicant at least 10 days before the commencement of the proposed strike or lock-out, the applicant must give at least five days' notice to the respondent of an application for an order in terms of subsection (1)(a).

(4) Subsections (2) and (3) do not apply to an employer or an employee engaged in an essential service or a maintenance service.

(5) Participation in a strike that does not comply with the provisions of this Chapter, or conduct in contemplation or in furtherance of that strike, may constitute a fair reason for dismissal. In determining whether or not the dismissal is fair, the Code of Good Practice:

Dismissal in Schedule 8 must be taken into account.

69. Picketing 16

(1) A registered trade union may authorise a picket by its members and supporters for the purposes of peacefully demonstrating-

(a) in support of any protected strike; or

16. See flow diagram No. 7 in Schedule 4. (b) in opposition to any lockout.

^{(2) Despite any law
regulating the right of assembly, a picket authorised}

terms of I subsection (1), may be-

(a) in any place to which the public has access but outside the premises of an employer; or

(b) with the permission of the employer, inside the employer's premises.

(3) The permission referred to in subsection (2)(b) may not be unreasonably withheld.

(4) If requested to do so by the registered trade union or the employer, the Commission must attempt to secure an agreement between the parties to the dispute on rules that should apply to any picket in relation to that strike or lock-out.

(5) If there is no agreement, the Commission must establish picketing rules, and in doing so must take account of-

(a) the particular circumstances of the workplace or other premises where it is intended that the right to picket is to be exercised; and

(b) any relevant code of good practice.

(6) The rules established by the Commission may provide for picketing by

employees on their employer's premises if the Commission is satisfied that the employer's permission has been unreasonably withheld.

(7) The provisions of section 67, read with the changes required by the context, apply to the call for, organisation of, or participation in a picket that complies I with the provisions of this section.

(8) Any party to a dispute about any of the following issues may refer the dispute in writing to the Commission-

(a) an allegation that the effective use of the right to picket is being undermined;

(b) an alleged material contravention of subsection (1) or (2);

(c) an alleged material breach of an agreement concluded in terms of subsection (4); or

(d) an alleged material breach of a rule established in terms of subsection (5).

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

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

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

70. Essential services committee

(1) The Minister, after consulting NEDLAC, and in consultation with the Minister for the Public Service and Administration, must establish an essential services committee under the auspices of the Commission and appoint to that committee, on any terms, persons who have knowledge and experience of labour law and labour relations.

(2) The functions of the essential services committee are-

(a) to conduct investigations as to whether or not the whole or a part of any service is an essential service, and then to decide whether or not to designate the whole or a part of that service as an essential service;

(b) to determine disputes as to whether or not the whole or a part of any service is an essential service; and

(c) to determine whether or not the whole or a part of any service is a maintenance service. 17

(3) At the request of a bargaining council, the essential services committee must conduct an investigation in terms of subsection (2)(a).

71. Designating a service as an essential service

(1) The essential services committee must give notice in the Government Gazette of any investigation that it is to conduct as to whether the whole or a part of a service is an essential service.

(2) The notice must indicate the service or the part of a service that is to be the subject of the investigation and must invite interested

parties, within a period stated in the notice-

(a) to submit written representations; and

(b) to indicate whether or not they require an opportunity to make oral representations.

(3) Any interested party may inspect any written representations made pursuant to the notice, at the Commission's offices.

(4) The Commission must provide a certified copy of, or extract from, any written representations to any person who has paid the prescribed fee.

(5) The essential services committee must advise parties who wish to make oral representations of the place and time at which they may be made.

(6) Oral representations must be made in public.

(7) After having considered any written and oral representations, the essential services committee must decide whether or not to designate the whole or a part of the service that was the subject of the investigation as an essential service.

(8) If the essential services committee designates the whole or a part of a service as an essential service, the committee must publish a notice to that effect in the Government Gazette.

(9) The essential services committee may vary or cancel the designation

of the whole or a part of a service as an essential service, by following the provisions set out in subsections (1) to (8), read with the changes required by the context.

(10) The Parliamentary service and the South African Police Service are deemed to have been designated an essential service in terms of this section.

72. Minimum services The essential services committee may ratify any collective agreement that provides for the maintenance of minimum services in a service designated as an essential service, in which case-

(a) the agreed minimum services are to be regarded as an essential service in respect of the employer and its employees; and

(b) the provisions of section 74 do not apply.

73. Disputes about whether a service is an essential service

: (1) Any party to a dispute about either of the following issues may refer the dispute in writing to the essential services committee-
(a) whether or not a service is an essential service; or
(b) whether or not an employee or employer is engaged in a service designated as an essential service.
: (2) The party who refers the dispute to the essential services committee must satisfy it that a copy of the referral has been served on all the other parties to the dispute.
: (3) The essential services committee must determine the dispute as soon as possible.

74. Disputes in essential services' 8: (1) Any party to a dispute that is precluded from participating in a strike or a lock-out because that party is engaged in an essential service may refer the dispute in writing to
(a) a council, if the parties to the dispute fall within the registered scope of that council; or
(b) the Commission, if no council has
: (2) The party who refers the dispute must satisfy the council or the Commission that a copy of the referral has been served on all the other parties to the dispute.
: (3) The council or the Commission must attempt to resolve the dispute through conciliation.
: (4) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration by the council or the Commission.
: (5) Any arbitration award in terms of subsection (4) made in respect of the State and that has financial implications for the State becomes binding-
(a) 14 days after the date of the award, unless a Minister has tabled the award in Parliament within that period; or
(b) 14 days after the date of tabling the award, unless Parliament has passed a resolution that the award is not binding.
: (6) If Parliament passes a resolution that the award is not binding, the dispute must be referred back to the Commission for further conciliation between the parties to the dispute and if that fails, any party to the dispute may request the Commission to arbitrate.
: (7) If Parliament is not in session on the expiry of (a) the period referred to in subsection (5)(a), that period or the balance of that period will run from the beginning of the next session of Parliament; and
(b) the period referred to in subsection (5)(b), that period will run from the expiry of the period referred to in subsection (a) or from the beginning of the next session of Parliament.

75. Maintenance services
(1) A service is a maintenance service if the interruption of that service has the effect of material physical destruction to any working area, plant or machinery.
(2) If there is no collective agreement relating to the provision of a maintenance service, an employer may apply in writing to the essential services committee for a determination that the whole or a part of the employer's business is a maintenance service.
(3) The employer must satisfy the essential services committee that a copy of the application has been served on all interested parties.
(4) The essential services committee must determine, as soon as possible, whether or not the whole or a part of the service is a maintenance service.

76. Replacement labour: (1) An employer may not take into employment any person-
(a) to continue or maintain production during a protected strike if the whole or a part of the employer's service has been designated a maintenance service; or
(b) for the purpose of performing the work of any employee who is locked out, unless the lock-out is in response to a strike.
: (2) For the purpose of this section, "take into employment" includes engaging the I services of a temporary employment service or an independent contractor.
: 77. Protest action to promote or defend socioeconomic interests of workers
: (1) Every employee who is not engaged in an essential service or a maintenance service has the right to take part in protest action if-
(a) the protest action has been called by a registered trade union or federation of trade unions;
(b) the registered trade union or federation of trade unions has served a notice on NEDLAC stating-
(i) the reasons for the protest action; and
(ii) the nature of the protest action;
(c) the matter giving rise to the intended protest action has been considered by NEDLAC or any other appropriate forum in which the parties concerned are able to participate in order to resolve the matter; and
(d) at least 14 days before the commencement of the protest action, the registered trade union or federation of trade unions has served a notice on NEDLAC of its intention to proceed with the protest action.
: (2) The Labour Court has exclusive jurisdiction-
(a) to grant any order to restrain any person from taking part in protest action or in any conduct in contemplation or in furtherance of protest action that does not comply with subsection (1);
(b) in respect of protest action that complies with subsection (1), to grant a declaratory order contemplated by subsection (4), after having considered- (i) the nature and duration of the protest action; (ii) the steps taken by the registered trade union or ^{federation of trade unions to minimise the harm caused by} the protest action; and
(iii) the conduct of the participants in the protest action.
: (3) A person who takes part in protest action or in any conduct in contemplation or in furtherance of protest action that complies with subsection (1), enjoys the protections conferred by section 67.
: (4) Despite the provisions of subsection (3), an employee forfeits the protection against dismissal conferred by that subsection, if the; employee-
(a) takes part in protest action or any conduct in contemplation or in furtherance of protest action in breach of an order of the Labour Court; or
(b) otherwise acts in contempt of an order of the Labour Court made in terms of this section.
CHAPTER V WORKPLACE FORUMS
^{78. Definitions in this Chapter}
: In this Chapter-
(a) "employee" means any person who is employed in a workplace, except a senior managerial employee whose contract of employment or status confers the authority to do any of the following in the workplace- (i) employ and dismiss employees on behalf of the employer; (ii) represent the employer in dealings with the workplace forum; or
(iii) determine policy and take decisions on behalf of the employer that may be in conflict with the representation of employees in the workplace; and
(b) "representative trade union" means a registered trade union, or two or more registered trade unions acting jointly, that have as members the majority of the employees employed by an employer in a workplace.
: 79. General functions of workplace forum
A workplace, forum established in terms of this Chapter-
(a) must seek to promote the interests of all employees in the workplace, whether or not they are trade union members;
(b) must seek to enhance efficiency in the workplace;
(c) is entitled to be consulted by the employer, with a view to reaching consensus, about the matters referred to in section 84; and
(d) is entitled to participate in joint decision-making about the matters referred to in section 86.
: 80. Establishment of workplace forum
: (1) A workplace forum may be established in any workplace in which an employer employs more than 100 employees.
: (2) Any representative trade union may apply to the Commission in the prescribed form for the establishment of a workplace, forum.
: (3) The applicant must satisfy the Commission that a copy of the application has been served on the employer.
: (4) The Commission may require further information in support of the application.; (5) The Commission must-
(a) consider the application and any further information provided by the applicant; and
(b) consider whether, in the workplace in respect of which the application has been made-
(i) the employer employs 100 or more employees;
(ii) the applicant is a representative trade union; and
(iii) there is no functioning workplace forum established in terms of this Chapter.
: (6) If satisfied that the requirements of subsection (5) are met, the Commission must appoint a commissioner to assist the parties to establish a workplace forum by collective agreement or, failing that, to establish; a workplace forum in terms of this Chapter.
: (7) The commissioner must convene a meeting with the applicant, the employer and any registered trade union that has members employed in the workplace, in order to facilitate the conclusion of a collective agreement between those parties, or at least between the applicant and the employer.
: (8) If a collective agreement is concluded, the remaining provisions of this Chapter do not apply.
: (9) If a collective agreement is not concluded, the commissioner must meet the parties referred to in subsection (7) in order to facilitate agreement between them, or at least between the applicant and the employer, on the provisions of a constitution for a workplace forum in accordance with this Chapter, taking into account the guidelines in Schedule 2.
: (10) If no agreement is reached on any of the provisions of a constitution, the commissioner must establish a workplace forum and determine the provisions of the constitution in accordance with this Chapter, taking into account the guidelines in Schedule 2.
: (11) After the workplace forum has been established, the commissioner must set a date for the election of the first members of the workplace forum and appoint an election officer to conduct the election.
: (12) The provisions of this section do not apply to the public service. The establishment of workplace forums in the public service will be regulated in a Schedule promulgated by the Minister for the Public Service and Administration in terms of section 207(4).

81. Trade union based workplace forum

: (1) If a representative trade union is recognised in terms of a collective agreement by an employer for the purposes of collective bargaining in respect of a] I employees in a workplace, that trade union may apply to the Commission in the prescribed form for the establishment of a workplace forum.
: (2) The applicant may choose the members of the workplace forum from among its elected representatives in the workplace.
: (3) If the applicant makes this choice, the provisions of this Chapter apply, except for section 80(l 1) and section 82(1)(b) to (m).; (4) The constitution of the applicant governs the nomination, election and removal from office of elected representatives of the applicant in the workplace.
: (5) A workplace forum constituted in terms of this section will be dissolved if-
(a) the collective agreement referred to in subsection (1) is terminated;
(b) the applicant is no longer a representative trade union.
: (6) The provisions of this section do not apply to the public service.

82. Requirements for constitution of workplace forum
: (1) The constitution of every workplace forum must-
(a) establish a formula for determining the number of seats in the workplace forum;
(b) establish a formula for the distribution of seats in the workplace forum so as to reflect the occupational structure of the workplace;
(c) provide for the direct election of members of the workplace forum by the employees in the workplace;
(d) provide for the appointment of an employee as an election officer to conduct elections and define that officer's functions and powers;
(e) provide that an election of members of the workplace forum must be held not later than 24 months after each preceding election; provide that if another registered trade union becomes representative, it may demand a new election at any time within 21 months after each preceding election;
(g) provide for the procedure and manner in which elections and ballots must be conducted;
(h) provide that any employee, including any former or current member of the workplace forum, may be nominated as a candidate for election as a member of the workplace forum by-
(i) any registered trade union with members employed in the work- place; or
(ii) a petition signed by not less than 20 per cent of the employees in the workplace or 100 employees, whichever number of employees is the smaller;
(i) provide that in any ballot every employee is entitled- (i) to vote by secret ballot; and (ii) to vote during working hours at the employer's premises;
(j) provide that in an election for members of the workplace forum every employee is entitled, unless the constitution provides otherwise-
(i) to cast a number of votes equal to the number of members to be elected; and
(ii) to cast one or more of those votes in favour of any candidate;
: (k) establish the terms of office of members of the workplace forum f and the circumstances in which a member must vacate that office;
: (l) establish the circumstances and manner in which members of the workplace forum may be removed from office, including the right of an representative trade union that nominated a member for election to remove that member at any time;
: (m) establish the manner in which vacancies in the workplace forum ma be filled, including the rules for holding by-elections;
: (n) establish the circumstances and manner in which the meetings referred to in section 83 must be held;
: (o) provide that the employer must allow the election officer reasonable time off with pay during working hours to prepare for and conduct elections;
: (p) provide that the employer must allow each member of the workplace forum reasonable time off with pay during working hours to perform; the functions of a member of the workplace, forum and to receive training relevant to the performance of those functions;
: (q) require the employer to take any steps that are reasonably necessary to assist the election officer to conduct elections;
: (r) require the employer to provide facilities to enable the workplace forum to perform its functions;
: (s) provide for full-time members of the workplace forum where there are more than 1000 employees in a workplace;
: (t) provide that the forum may invite any expert to attend meetings of the workplace forum, including meetings with the employer or the employees, and that an expert is entitled to any information to which the workplace forum is entitled and to inspect and copy any document that members of the workplace forum is entitled to inspect and copy;
: (u) provide that office-bearers or officials of the representative trade union may attend meetings of the workplace forum, including meetings with the employer or the employees; and
: (v) provide that the representative trade union and the employer, by agreement, may change the constitution of the workplace forum.
: (2) The constitution of a workplace forum may-
: (a) establish a procedure that provides for the conciliation and arbitration of proposals in respect of which the employer and the workplace forum do not reach consensus;
: (b) establish a coordinating workplace forum to perform any of the general functions of a workplace forum and one or more subsidiary workplace forums to perform any of the specific functions of a workplace forum; and
: (c) include provisions that depart from sections 83 to 92. (3) The constitution of a workplace forum binds the employer.; (4) The Minister for the Public Service and Administration may amend the requirements for a constitution in terms of this section for; ^{workplace forums in the
public service by a Schedule promulgated in terms}; of section 207(4).

83. Meetings of workplace forum
: (1) There must be regular meetings of the workplace forum.
: (2) There must be regular meetings between the workplace forum and the employer, at which the employer must-
(a) present a report on its financial and employment situation, its performance since the last report and its anticipated performance in the short term and in the long term; and
(b) consult the workplace forum on any matter arising from the report that may affect employees in the workplace.
: (3) (a) There must be meetings between members of the workplace forum and the employees employed in the workplace at regular and appropriate intervals. At the meetings with employees, the workplace forum must report on-
(i) its activities generally;
(ii) matters in respect of which it has been consulted by the employer; and
(iii) matters in respect of which it has participated in joint decision-making with the employer.
(b) Each calendar year, at one of the meetings with the employees, the employer must present an annual report of its financial and employment situation, its performance generally and its future prospects and plans.
(c) The meetings of employees must be held during working hours at a time and place agreed upon by the workplace forum and the employer without loss of pay on the part of the employees.

84. Specific matters for consultation
: (1) Unless the matters for consultation are regulated by a collective agreement with the representative trade union, a workplace forum is entitled to be consulted by the employer about proposals relating to any of the following matters-
(a) restructuring the workplace, including the introduction of new technology and new work methods;
(b) changes in the organisation of work; (c) partial or total plant closures; (d) mergers and transfers of ownership in so far as they have an impact on the employees;
(e) the dismissal of employees for reasons based on operational requirements; exemptions from any collective agreement or any law;
(g) job grading; (h) criteria for merit increases or the payment of discretionary bonuses;
(i) education and training;
(j) product development plans; and
(k) export promotion.
: (2) A bargaining council may confer on a workplace forum the right to be consulted about additional matters in workplaces that fall within the registered scope of the bargaining council.
: (3) A representative trade union and an employer may conclude a collective agreement conferring on the workplace forum the right to be consulted about any additional matters in that workplace.
: (4) Any other law may confer on a workplace forum the right to be consulted about additional matters.
: (5) Subject to any applicable occupational health and safety legislation, a representative trade union and an employer may agree-
(a) that the employer must consult with the workplace forum with a view to initiating, developing, promoting, monitoring and reviewing measures to ensure health and safety at work;
(b) that a meeting between the workplace forum and the employer constitutes a meeting of a health and safety committee required to be established in the workplace by that legislation; and
(c) that one or more members of the workplace forum are health and safety representatives for the purposes of that legislation.
: (6) For the purposes of workplace forums in the public service-
(a) the collective agreement referred to in subsection (1) is a collective agreement concluded in a bargaining council;
(b) a bargaining council may remove any matter from the list of matters referred to in subsection (1) in respect of workplaces that fall within its registered scope; and
(c) subsection (3) does not apply.

85. Consultation
: (1) Before an employer may implement a proposal in relation to any matter referred to in section 84(l), the employer must consult the workplace forum and attempt to reach consensus with it.
: (2) The employer must allow the workplace forum an opportunity during the consultation to make representations and to advance alternative; proposals.
: (3) The employer must consider and respond to the representations or alternative proposals made by the workplace forum and, if the employer does not agree with them, the employer must state the reasons for disagreeing.
: (4) If the employer and the workplace forum do not reach consensus, the employer must invoke any agreed procedure to resolve any differences before implementing the employer's proposal.
86. Joint decision-making
: (1) Unless the matters for joint decision-making are regulated by a collective agreement with the representative trade union, an employer must consult and reach consensus with a workplace forum before implementing any proposal concerning-
(a) disciplinary codes and procedures;
(b) rules relating to the proper regulation of the workplace in so far as they apply to conduct not related to the work performance of employees;
(c) measures designed to protect and advance persons disadvantaged by unfair discrimination; and
(d) changes by the employer or by employer-appointed representatives on trusts or boards of employer-controlled schemes, to the rules regulating social benefit schemes.
: (2) A representative trade union and an employer may conclude a collective agreement-
(a) conferring on the workplace forum the right to joint decision-making in respect of additional matters in that workplace;
(b) removing any matter referred to in subsection (1)(a) to (d) from the list of matters requiring joint decision-making.
: (3) Any other law may confer on a workplace forum the right to participate in joint decision-making about additional matters.
: (4) If the employer does not reach consensus with the workplace forum, the employer may-
(a) refer the dispute to arbitration in terms of any agreed procedure; or
(b) if there is no agreed procedure, refer the dispute to the Commission.
: (5) The employer must satisfy the Commission that a copy of the referral has been served on the chairperson of the workplace forum.
: (6) The Commission must attempt to resolve the dispute through conciliation.
: (7) If the dispute remains unresolved, the employer may request that the dispute be resolved through arbitration. 19
: (8) (a) An arbitration award is about a proposal referred to in subsection (1)(d) takes effect 30 days after the date of the award.
(b) Any representative on the trust or board may apply to the Labour Court for an order declaring that the implementation of the award constitutes a breach of a fiduciary duty on the part of that representative.
(c) Despite paragraph (a), the award will not take effect pending the determination by the Labour Court of an application made in terms of paragraph (b).
: (9) For the purposes of workplace forums in the public service, a collective agreement referred to in subsections (1) and (2) is a; collective agreement concluded in a bargaining council.

87. Review at request of newly established workplace forum

: (1) After the establishment of a workplace forum, the workplace forum may request a meeting with the employer to review-
(a) criteria for merit increases or the payment of discretionary bonuses;
(b) disciplinary codes and procedures; and
(c) rules relating to the proper regulation of the workplace in so far as they apply to conduct not related to work performance of employees in the workplace.
: (2) The employer must submit its criteria, disciplinary codes and procedures, and rules, referred to in subsection (1), if any, in writing to the workplace forum for its consideration.
: (3) A review of the criteria must be conducted in accordance with the provisions of section 85.
: (4) A review of the disciplinary codes and procedures, and rules, must be conducted in accordance with the provisions of section 86(2) to (7).

88. Matters affecting more than one workplace forum in an employer's operation
: (1) If the employer operates more than one workplace and separate workplace forums have been established in two or more of those workplaces, and if a matter has been referred to arbitration in terms of section 86(4)(a) or (b), the employer may give notice in writing to the; chairpersons of all the workplace forums that no other workplace forum ma refer a matter that is substantially the same as the matter referred to arbitration.
: (2) If the employer gives notice in terms of subsection (1)-
(a) each workplace forum is entitled to make representations and participate in the arbitration proceedings; and
(b) the arbitration award is binding on the employer and the employees in each workplace.

89. Disclosure of information
: (1) An employer must disclose to the workplace forum all relevant information that will allow the workplace forum to engage effectively in consultation and joint decision-making.
(2) An employer is not required to disclose information- (a) that is legally privileged; ^{(b) that the employer cannot disclose without contravening a} prohibition imposed on the employer by any law or order of any court;
(c) that is confidential and, if disclosed, may cause substantial harm to an employee or the employer; or
(d) that is private personal information relating to an employee, unless that employee consents to the disclosure of that information.
: (3) If there is a dispute about the disclosure of information, any party; to the dispute may refer the dispute in writing to the Commission.
: (4) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.
: (5) The Commission must attempt to resolve the dispute through conciliation.
: (6) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.
: (7) In any dispute about the disclosure of information contemplated in subsection (3), the commissioner must first decide whether or not the information is relevant.
: (8) If the commissioner decides that the information is relevant and if it is information contemplated in subsection (2)(c) or (d), the commissioner must balance the harm that the disclosure is likely to cause to an employee or employer against the harm that the failure to disclose the information is likely to cause to the ability of the workplace forum to engage effectively in consultation and joint decision-making.
: (9) If the commissioner decides that the balance of harm favours the disclosure of the information, the commissioner may order the disclosure of the information on terms designed to limit the harm likely to be caused to the employee or employer.
: (10) When making an order in terms of subsection (9), the commissioner must take into account any breach of confidentiality in respect of information disclosed in terms of this section at that workplace and may refuse to order the disclosure of the information or any other confidential information, that might otherwise be disclosed, for a period specified in the arbitration award.

90. Inspection and copies of documents
: (1) Any documented information that is required to be disclosed by the employer in terms of section 89 must be made available on request to the members of the workplace forum for inspection.
: (2) The employer must provide copies of the documentation on request to the members of the workplace forum.

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

92. Full-time members of workplace forum
: (1) In a workplace in which 1000 or more employees are employed, the members of the workplace forum may designate from their number one full-time member.
: (2) (a) The employer must pay a full-time member of the workplace forum the same remuneration that the member would have earned in the position the member held immediately before being designated as a full-time member.
(b) When a person ceases to be a full-time member of a workplace forum, the employer must reinstate that person to the position that person held immediately before election or appoint that person to any higher position to which, but for the election, that person would have advanced.

93. Dissolution of workplace forum

: (1) A representative trade union in a workplace may request a ballot to dissolve a workplace forum.
: (2) If a ballot to dissolve a workplace forum has been requested, an election officer must be appointed in terms of the constitution of the workplace forum.
: (3) Within 30 days of the request for a ballot to dissolve the workplace forum, the election officer must prepare and conduct the ballot.
: (4) If more than 50 per cent of the employees who have voted in the ballot support the dissolution of the workplace forum, the workplace forum must be dissolved.

94. Disputes about workplace forums

: (1) Unless a collective agreement or this Chapter provides otherwise, any party to a dispute about the interpretation or application of this; Chapter may refer that dispute to the Commission in writing, if that party is-
(a) one or more employees employed in the workplace;
(b) a registered trade union with members employed in the workplace; (c) the representative trade union; or ^{(d) the employer.}
: (2) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.
: (3) The Commission must attempt to resolve the dispute through conciliation.
: (4) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.
CHAPTER VI
TRADE UNIONS AND EMPLOYERS' ORGANISATIONS
PART A-REGISTRATION AND REGULATION OF TRADE UNIONS AND EMPLOYERS' ORGANISATIONS

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

(1) Any trade union may apply to the registrar for registration if-

(a) it has adopted a name that meets the requirements of subsection (4);

(b) it has adopted a constitution that meets the requirements of subsections (5) and (6);

(c) it has an address in the Republic; and

(d) it is independent.

(2) A trade union is independent if-

(a) it is not under the direct or indirect control of any employer or employers' organisation; and

(b) it is free of any interference or influence of any kind from any employer or employers' organisation.

(3) Any employers' organisation may apply to the registrar for registration if-

(a) it has adopted a name that meets the requirements of subsection

(4);

(b) it has adopted a constitution that meets the requirements of subsections (5) and (6), and

(4) Any trade union or employers' organisation that intends to register may not have a name or shortened form of the name that so closely resembles the name or shortened form of the name of another trade union or employers' organisation that it is likely to mislead or cause confusion.

(5) The constitution of any trade union or employers' organisation that intends to register must-

(a) state that the trade union or employers' organisation is an association not for gain;

(b) prescribe qualifications for, and admission to, membership;

(d) provide for the termination of membership;

(e) provide for appeals against loss of the benefits of membership or against termination of membership, prescribe a procedure for those appeals and determine the body to which those appeals may be made; provide for membership fees and the method for determining member- ship fees and other payments by members;

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

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

(i) establish the office of secretary and define its functions;

(j) provide for other office-bearers, officials and, in the case of a trade union, trade union representatives, and define their respective functions;

(k) prescribe a procedure for nominating or electing office-bearers and, in the case of a trade union, trade union representatives;

(l) prescribe a procedure for appointing, or nominating and electing, officials;

(m) establish the circumstances and manner in which office-bearers, officials and, in the case of a trade union, trade union representatives, may be removed from office;

(n) provide for appeals against removal from office of office-bearers, officials and, in the case of a trade union, trade union representatives, prescribe a procedure for those appeals and determine the body to which those appeals may be made;

(o) establish the circumstances and manner in which a ballot must be conducted;

(p) provide that the trade union or employers' organisation, before calling a strike or lock-out, must conduct a ballot of those of its members in respect of whom it intends to call the strike or lock-out;

(q) provide that members of the trade union or employers' organisation may not be disciplined or have their membership terminated for failure or refusal to participate in a strike or lock-out if-

(i) no ballot was held about the strike or lock-out; ^or

(ii) a ballot was held but a majority of the members who voted did not vote in favour of the strike or lock-out;

(r) provide for banking and investing its money;

(s) establish the purposes for which its money may be used; (t) provide for acquiring and controlling property; ^{(u) determine a date for the end of its financial year;}

(v) prescribe a procedure for changing its constitution; and

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

(6) The constitution of any trade union or employers' organisation which intends to register may not include any provision that discriminates directly or indirectly against any person on the grounds of race or sex.

96. Registration of trade unions or employers' organisations

(1) Any trade union or employers' organisation may apply for registration by submitting to the registrar-

(a) a prescribed form that has been properly completed; (b) a copy of its constitution; and (c) any other information that may assist the registrar to determine whether or not the trade union or employers' organisation meets the requirements for registration.

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

(3) The registrar-

(a) must consider the application and any further information provided by the applicant; and (b) if satisfied that the applicant meets the requirements for registration, must register the applicant by entering the applicant's name in the register of trade unions or the register of employers' organisations.

(4) If the registrar is not satisfied that the applicant meets the requirements for registration, the registrar-

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

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

(5) If, within that 30-day period, the applicant meets the requirements for registration, the registrar must register the applicant by entering the applicant's name in the appropriate register.

(6) If, within that 30-day period, an applicant has attempted to meet the requirements for registration but the registrar concludes that the applicant has failed to do so, the registrar must-

(a) refuse to register the applicant; and

(b) notify the applicant in writing of that decision. (7) After registering the applicant, the registrar must-

^{(a) issue a certificate
of registration in the applicant's name; and}

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

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

(1) A certificate of registration is sufficient proof that a registered trade union or registered employers' organisation is a body corporate.

(2) The fact that a person is a member of a registered trade union or a registered employers' organisation does not make that person liable for any of the obligations or liabilities of the trade union or employers' organisation.

(3) A member, office-bearer or official of a registered trade union or a registered employers' organisation or, in the case of a trade union, a trade union representative is not personally liable for any loss suffered by any person as a result of an act performed or omitted in good faith by the member, office-bearer, official or trade union representative while performing their functions for or on behalf of the trade union or employers' organisation.

(4) Service of any document directed to a registered trade union or employers' organisation at the address most recently provided to the registrar will be for all purposes service of that document on that trade union or employers' organisation.

98. Accounting records and audits

(1) Every registered trade union and every registered employers' organisation must, to the standards of generally accepted accounting practice, principles and procedures-

(a) keep books and records of its income, expenditure, assets and liabilities; and (b) within six months after the end of each financial year, prepare financial statements, including at least-

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

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

(2) Every registered trade union and every registered employers' organisation must arrange for an annual audit of its books and records of account and its financial statements by an auditor who must-

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

(b) report in writing to the trade union or employers' organisation and in that report-

(i) express an opinion as to whether or not the trade union or employers' organisation has complied with those provisions of its constitution relating to financial matters; and

(ii) if the trade union is a party to an agency shop agreement referred to in section 25 or a closed shop agreement referred to in section 26 express an opinion as to whether or not the trade union has complied with the provisions of those sections.

(3) Every registered trade union and every registered employers' organisation must-

(a) make the financial statements and the auditor's report available to its members for inspection; and

(b) submit those statements and the auditor's report to a meeting or meetings of its members or their representatives as provided for in its constitution.

(4) Every registered trade union and every registered employers' organisation must preserve each of its books of account, supporting vouchers, records of subscriptions or levies paid by its members, income and expenditure statements, balance sheets, and auditor's reports, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate.

99. Duty to keep records In addition to the records required by section 98, every registered trade union and every registered employers' organisation must keep-

(a) a list of its members;

(b) the minutes of its meetings, in an original or reproduced form, for a period of three years from the end of the financial, year to which they relate; and

(c) the ballot papers for a period of three years from the date of every ballot.

100. Duty to provide information to registrar Every registered trade union and every registered employers' organisation must provide to the

registrar-

(a) by 31 March each year, a statement, certified by the secretary that it accords with its records, showing the number of members as at 31 December of the previous year and any other related details that may be required by the registrar;

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

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

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

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

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

(1) A registered trade union or a registered employers' organisation may resolve to change or replace its constitution.

(2) The registered trade union or the registered employers' organisation must send the registrar a copy of the resolution and a certificate signed by its secretary stating that the resolution complies with its constitution.

(3) The registrar must-

(a) register the changed or new constitution if it meets the requirements for registration; and

(b) send the registered trade union or registered employers' organisation a copy of the resolution endorsed by the registrar, certifying that the change or replacement has been registered.

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

(5) A registered trade union or registered employers' organisation may resolve to change its name.

(6) The registered trade union or registered employers' organisation must send the registrar a copy of the resolution and the original of its current certificate of registration.

(7) If the new name of the trade union or employers' organisation meets the requirements of section 95(4),20 the registrar must-

(a) enter the new name in the appropriate register and issue a certificate of registration in the new name of the trade union or employers' organisation;

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

(c) send the new certificate to the trade union or employers' organisation. (8) The new name takes effect from the date that the registrar enters it in the appropriate register.

102. Amalgamation of trade unions or employers' organisations

(1) Any registered-

(a) trade union may resolve to amalgamate with one or more other trade unions, whether or not those other trade unions are registered; and

(b) employers' organisation may resolve to amalgamate with one or more other employers' organisations, whether or not those other employers' organisations are registered.

(2) The amalgamating trade unions or amalgamating employers' organisations ^{may apply to the registrar for registration of the amalgamated trade} union or

20. These are the requirements relating to the name of a trade union or employers' organisation to be registered. amalgamated employers' organisation, even if any of the amalgamating trade unions or amalgamating

employers' organisations is itself already registered, and the registrar must treat the application as an application in terms of section 96.

(3) After the registrar has registered the amalgamated trade union or amalgamated employers' organisation, the registrar must cancel the registration of each of the amalgamating trade unions or amalgamating employers' organisations by removing their names from the appropriate register.

(4) The registration of an amalgamated trade union or an amalgamated employers' organisation takes effect from the date that the registrar enters its name in the appropriate register.

(5) When the registrar has registered an amalgamated trade union or amalgamated employers' organisation-

(a) all the assets, rights, obligations and liabilities of the amalgamating trade unions or the amalgamating employers' organisations devolve upon and vest in the amalgamated trade union or amalgamated employers' organisation; and

(b) the amalgamated trade union or amalgamated employers' organisation succeeds the amalgamating trade unions or the amalgamating employers' organisations in respect of-

(i) any right that the amalgamating trade unions or the amalgamating employers' organisations enjoyed;

(ii) any fund established in terms of this Act or any other law;

(iii) any arbitration award or court order;

(iv) any collective agreement or other agreement; (v) membership of any council; and (vi) any written authorisation by a member for the periodic deduction of levies or subscriptions due to the amalgamating trade unions or amalgamating employers' organisations.

103. Winding-up of registered trade unions or registered employers' organisations

(1) The Labour Court may order a registered trade union or registered employers' organisation to be wound up if-

(a) the trade union or employers' organisation has resolved to wind-up its affairs and has applied to the Court for an order giving effect to that resolution; or

(b) the registrar of labour relations or any member of the trade union or employers' organisation has applied to the Court for its winding up and the Court is satisfied that the trade union or employers' organisation, for some reason that cannot be remedied is unable to continue to function.

(2) If there are any persons not represented before the Labour Court whose interests may be affected by an order in terms of subsection (1), the Court must-

(a) consider those interests before deciding whether or not to grant the order applied for; and

(b) if it grants the order applied for, include provisions in the order disposing of each of those interests.

(3) In granting order in terms of subsection (1), the Labour Court may appoint a suitable person as liquidator, on appropriate conditions.

(4) (a) The registrar of the Labour Court must determine the liquidator's fees.

(b) The Labour Court, in chambers, may review the determination of the registrar of the Labour Court.

(c) The liquidator's fees are a first charge against the assets of the trade union or employers' organisation.

(5) If, after all the liabilities of the registered trade union or registered employers' organisation have been discharged, any assets remain that cannot be disposed of in accordance with the constitution of that trade union or employers' organisation, the liquidator must realise those assets and pay the proceeds to the Commission for its own use.

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

Any person who seeks to wind-up a trade union or employers' organisation by reason of insolvency must comply with the Insolvency Act, 1936 (Act No. 24 of 1936), and, for the purposes of this section, any reference to the court in that Act must be interpreted as referring to the Labour Court.

105. Cancellation of registration of trade union that is no longer independent

(1) Any registered trade union may apply to the Labour Court for an order declaring that another trade union is no longer independent.

(2) If the Labour Court is satisfied that a trade union is not independent, the Court must make a declaratory order to that effect.

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

(1) The registrar of the Labour Court must notify the registrar of labour relations if the Court

(a) in terms of section 103 has ordered a registered trade union or a registered employers' organisation to be wound up; or

(b) in terms of section 105 has declared that a registered trade union is not independent.

(2) When the registrar receives a notice from the Labour Court in terms of subsection (1), the registrar must cancel the registration of the trade union or employers' organisation by removing its name from the appropriate register.

(3) When a trade union's or employers' organisation' s registration is cancelled, all the rights it enjoyed as a result of being registered will end.

PART B-REGULATION OF FEDERATIONS OF TRADE UNIONS AND EMPLOYERS' ORGANISATIONS

107. Regulation of federations of trade unions or employers' organisations

(1) Any federation of trade unions that has the promotion of the interests of employees as a primary object, and any federation of employers' organisations that has the promotion of the interests of employers as a primary object, must provide to the registrar-

(a) within three months of its formation, and after that by 31 March each year, the names and addresses of its members and the number of persons each member in the federation represents;

(b) within three months of its formation, and after that within 30 days of any appointment or election of its national office-bearers, the names and work addresses of those office-bearers, even if their appointment or election did not result in any changes to its ^{office-bearers;}

(c) within three months of its formation, a certified copy of its constitution and an address in the Republic at which it will accept service of any document that is directed to it;

(d) within 30 days of any change to its constitution, or of the address provided to the registrar as required in paragraph (c), notice of that change; and

(e) within 14 days after it has resolved to wind up, a copy of that resolution.

(2) Service of any document directed to a federation of trade unions or a federation of employers' organisations at the address most recently provided to the registrar will be, for all purposes, service of that document on that federation.

(3) The registrar must remove from the appropriate register the name of any federation that the registrar believes has been wound up or sequestrated.

PART C-REGISTRAR OF LABOUR RELATIONS

108. Appointment of registrar of labour relations

(1) The Minister must designate an officer of the Department of Labour as the registrar of labour relations to perform the functions conferred on the registrar by or in terms of this Act.

(2) (a) The Minister may designate any number of officers in the Department as deputy registrars of labour relations to assist the registrar to perform the functions of registrar in terms of this Act.

(b) A deputy registrar may exercise any of the functions of the registrar that have been generally or specifically delegated to the deputy.

(3) The deputy registrar of labour relations or if there is more than one, the most senior of them, will act as registrar whenever-

(a) the registrar is absent from the Republic or from duty, or for any reason is temporarily unable to perform the functions of registrar; or

(b) the office of registrar is vacant.

109. Functions of registrar

(1) The registrar must keep-

(a) a register of registered trade unions;

(b) a register of registered employers' organisations;

(c) a register of federations of trade unions containing the names of the federations whose constitutions have been submitted to the registrar;

(d) a register of federations of employers' organisations containing the names of the federations whose constitutions have been submitted to the registrar; and

(e) a register of councils.

(2) Within 30 days of making an entry in, or deletion from, a register, the registrar must give notice of that entry or deletion in the Government Gazette.

(3) The registrar, on good cause shown, may extend or condone late compliance with any of the time periods established in this Chapter, except the period within which a person may note an appeal against a decision of the registrar.

(4) The registrar must perform all the other functions conferred on the registrar by or in terms of this Act.

110. Access to information

(1) Any person may inspect any of the following documents in the registrar's office-

(a) the registers of registered trade unions, registered employers organisations, federations of trade unions, federations of employers' organisations and councils;

(b) the certificates of registration and the registered constitutions of registered trade unions, registered employers' organisations, and councils, and the constitutions of federations of trade unions and federations of employers' organisations; and (c) the auditor's report in so far as it expresses an opinion on the matters referred to in section 98(2)(b)(ii).

(2) The registrar must provide a certified copy of, or extract from, any of the documents referred to in subsection (1) to any person who has paid the prescribed fee.

(3) Any person who is a member, office-bearer or official of a registered trade union or of a registered employers' organisation, or is a member of a party to a council, may inspect any document that has been provided to the registrar in compliance with this Act by that person's registered trade union, registered employers' organisation or council.

(4) The registrar must provide a certified copy of, or extract from, any document referred to in subsection (3) to any person who has a right in terms of that subsection to inspect that document and who has paid the prescribed fee.

(5) The registrar must provide any of the following information to any person free of charge(a) the names and work addresses of persons who are national office-bearers of any registered trade union, registered employers' organisation, federation or council;

(b) the address in the Republic at which any registered trade union, registered employers' organisation, federation or council will accept service of any document that is directed to it; and

(c) any of the details of a federation of trade unions or a federation of employers' organisations referred to in section 107(l)(a), (c), and (e).

PART D-APPEALS FROM REGISTRAR'S DECISION Appeals from registrar's decision

(1) Within 30 days of the written notice of a decision of the registrar, any person who is aggrieved by the decision may demand in writing that the registrar provide written reasons for the decision.

(2) The registrar must give the applicant written reasons for the

decision within 30 days of receiving a demand in terms of subsection (1).

(3) Any person who is aggrieved by a decision of the registrar may appeal to the Labour Court against that decision, within 60 days of-

(a) the date of the registrar's decision; or

(b) if written reasons for the decision are demanded, the date of those reasons.

(4) The Labour Court, on good cause shown, may extend the period within which a person may note an appeal against a decision of the registrar.

CHAPTER VII DISPUTE RESOLUTION PART A-COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION

112. Establishment of Commission for Conciliation, Mediation and

Arbitration

The Commission for Conciliation, Mediation and Arbitration is hereby established as a juristic person.

113. Independence of Commission

The Commission is independent of the State, any political party, trade union, employer,

employers' organisation, federation of trade unions or federation of employers' organisations.

114. Area of jurisdiction and offices of Commission

(1) The Commission has jurisdiction in all the provinces of the Republic. (2) The Minister, after consulting the governing body, must determine the

^{location for the
Commission's head office.}

(3) The Commission must maintain an office in each province of the Republic and as many local offices as it considers necessary.

115. Functions of Commission

(1) The Commission must-

(a) attempt to resolve, through conciliation, any dispute referred to it in terms of this Act;

(b) if a dispute that has been referred to it remains unresolved after conciliation, arbitrate the dispute if-

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

(ii) all the parties to a dispute in respect of which the Labour Court has jurisdiction consent to arbitration under the auspices of the Commission;

(c) assist in the establishment of workplace forums in the manner contemplated in Chapter V; and

(d) compile and publish information and statistics about its activities.

(2) The Commission may-

(a) if asked, advise a party to a dispute about the procedure to follow in terms of this Act; 21

(b) if asked, assist a party to a dispute to obtain legal advice, assistance or 22 representation;

(c) offer to resolve a dispute that has not been referred to the ^{Commission through conciliation; 23}


accredited any

(d) accredit councils or private agencies; 24 (e) subsidise councils or accredited agencies; 25 conduct, oversee or scrutinise
^{election or ballot of a registered trade union or registered}
employers' organisation if asked to do so by that trade union or employers' organisation;

(h) conduct and publish research into matters relevant to its functions; and
(i) sexual harassment in the workplace.
(3) If asked, the Commission may provide employees, employers, registered trade unions, registered employers' organisations, federations of trade unions, federations of employers' organisations or councils with advice or training relating to the primary objects of this Act, including but not limited to(a) establishing collective bargaining structures;
(b) designing, establishing and electing workplace forums and creating deadlock-breaking mechanisms;
(c) the functioning of workplace forums;
(d) preventing and resolving disputes and employees' grievances; (e) disciplinary procedures; ^{(f) procedures in relation to dismissals;}
(g) the process of restructuring the workplace;
(h) affirmative action and equal opportunity programmes; and
(i) sexual harassment in the workplace.
(4) The Commission must perform any other duties imposed, and may exercise any other powers conferred, on it by or in terms of this Act and is competent to perform any other function entrusted to it by any other law.
(5) The governing body's rules of procedure, the terms of appointment of its members and other administrative matters are dealt with in Schedule ^3.

116. Governing body of Commission
(1) The Commission will be governed by the governing body, whose acts are acts of the Commission.26



hold

(2) The governing body consists of(a) a chairperson and nine other members, each nominated by NEDLAC and appointed 27 by the Minister to

office for a period of three years; and
: (b) the director of the Commission, who-
(i) is a member of the governing body only by virtue of having been appointed director; and
(ii) may not vote at meetings of the governing body. (3) NEDLAC must nominate(a) one independent person for the office of
^chairperson;

26. See item 4 of Schedule 3 for the governing body's rules of procedure.
: 27. See items 1 to 3 of Schedule 3 for the terms of appointment of

members of the governing body.

(b) three persons proposed by those voting members of NEDLAC who represent organised labour; and

(c) three persons proposed by those voting members of NEDLAC who represent organised business;

(d) three persons proposed by those voting members of NEDLAC who represent the State.

117. Commissioners of Commission

(1) The governing body must appoint as Commissioners as many adequately qualified persons as it considers necessary to perform the functions of commissioners by or in terms of this Act or any other law.

(2) The governing body-

(a) may appoint each commissioner-

(i) on either a full-time or a part-time basis; and (ii) to be either a commissioner or a senior commissioner; (b) must appoint each commissioner for a fixed term determined by the ^{governing body at the time of appointment;}

(c) may appoint a commissioner, who is not a senior commissioner, for a probationary period; and

(d) when making appointments, must have due regard to the need to constitute a Commission that is independent and competent and representative in respect of race and gender.

(3) Any reference in this Act to a commissioner must be interpreted also to mean a senior commissioner, unless otherwise indicated.

(4) The governing body must determine the commissioners' remuneration, allowances and any other terms and conditions of appointment not contained in this section.

(5) A commissioner may resign by giving written notice to the governing body.

(6) The governing body must prepare a code of conduct for the commissioners and ensure that they comply with the code of conduct in performing their functions.

(7) The governing body may remove a commissioner from office for- (a) serious misconduct; (b) incapacity; or

(c) a material violation of the Commission's code of conduct.

(8) Each commissioner is responsible to the director for the performance of the commissioner's functions.

118. Director of Commission

(1) The governing body must appoint, as director of the Commission, a person who (a) is skilled and experienced in labour relations and dispute

resolution; and

(b) has not been convicted of any offence involving dishonesty. (2) The director must(a) perform the functions that are

(i) conferred on the director by or in terms of this Act or by any other law;

(ii) delegated to the director by the governing body; (b) manage and direct the activities of the Commission; and ^{(c) supervise the Commission's staff.}

(3) The governing body must determine the director's remuneration, allowances and any other terms and conditions of appointment not contained in Schedule 3.

(4) A person appointed director automatically holds the office of a senior commissioner.

(5) Despite subsection (4), the provisions of section 117, with the exception of section 117(6), do not apply to the director.

119. Acting director of Commission (1) The chairperson of the governing body may appoint any suitable person to act as director whenever

(a) the director is absent from the Republic or from duty, or for any reason is temporarily unable to perform the functions of director; or

(b) the office of director is vacant.

(2) Only a senior commissioner may be appointed as acting director. (3) An acting director is competent to exercise and perform any of

^{the powers and
functions of the director.}

120. Staff of Commission

(1) The director may appoint staff after consulting the governing body. (2) The governing body must determine the remuneration and allowances and

^{any other terms and
conditions of appointment of staff members.}

121. Establishment of committees of Commission

(1) The governing body may establish committees to assist the Commission. (2) A committee may consist of any combination of the following persons-

(a) a member of the governing body; (b) the director;

^{(c) a commissioner;}

(d) a staff member of the Commission; and

(e) any other person.

(3) The governing body must determine the remuneration and allowances and any other terms and conditions of appointment of committee members referred to in subsection (2)(e).

(4) The governing body may at any time vary or set aside a decision of a committee.

(5) The governing body may dissolve any committee.

122. Finances of Commission

(1) The Commission will be financed and provided with working capital from-

(a) the moneys that the Minister, with the agreement of the Minister of Finance, must allocate to the Commission from public funds at the commencement of this Act;

(b) the moneys that Parliament may appropriate to the Commission from time to time;

(c) fees payable to the Commission in terms of this Act; (d) grants, donations and bequests made to it; and (e) income earned on the surplus moneys deposited or invested.

(2) The financial year of the Commission begins on I April in each year and ends on 31 March of the following year, except the first financial year which begins on the day this Act commences and ends on the first following 31 March.

(3) In each financial year, at a time determined by the Minister, the Commission must submit to the Minister a statement of the Commission's estimated income and expenditure, and requested appropriation from Parliament, for the following financial year.

123. Circumstances in which Commission may charge fees

(1) The Commission may charge a fee only for-

(a) resolving disputes which are referred to it, In circumstances in which this Act allows the Commission, or a commissioner, to charge a fee;

(b) conducting, overseeing or scrutinising any election or ballot at the request of a registered trade union or employers' organisation; and

(a) the governing body has established a tariff of fees; and

(b) the fee that is charged is in accordance with that tariff.

(3) The Commission must publish the tariff in the Government Gazette.

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

(1) The governing body may-

(a) contract with any person to do work for the Commission; and

(b) perform any function of the Commission in association with any person.

(2) Every person with whom the Commission contracts or associates is bound by the requirement of independence that binds the Commission.

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

(1) The governing body may delegate in writing any of its functions, other than the functions listed below, to any member of the governing body, the director, a commissioner, or any committee established by the Commission. The functions that the governing body may not delegate are-

(a) appointing the director;

(b) appointing commissioners, or removing a commissioner from office; (c) depositing or investing surplus money; ^{(d) accrediting councils or private agencies, or amending,} withdrawing or renewing their accreditation; or

(e) subsidising accredited councils or accredited agencies.

(2) The governing body may attach conditions to a delegation and may amend or revoke a delegation at any time.

(3) A function delegated to the director may be performed by any commissioner or staff member of the Commission authorised by the director, unless the terms of that delegation prevent the director from doing so.

(4) The governing body may vary or set aside any decision made by a

person acting in terms of any delegation made in terms of subsection (1).

(5) The governing body, by delegating any function, is not divested of

any of its powers, nor is it relieved of any function or duty that it may have delegated. This rule also applies if the director sub-delegates the performance of a function in terms of subsection (3).

126. Limitation of liability and limitation on disclosure of information

(1) In this section, "the Commission" means- (a) the governing body; (b) a member of the governing body; (c) the director; ^{(d) a commissioner;}

(e) a staff member of the Commission;

(f) a member of any committee established by the governing body; and

(g) any person with whom the governing body has contracted to do work for, or in association with whom it performs a function of, the Commission.

(2) The Commission is not liable for any loss suffered by any person as a result of any act performed or omitted in good faith in the course of exercising the functions of the Commission.

(3) The Commission may not disclose to any person or in any court any

information, knowledge or document that it acquired on a confidential basis or without prejudice in the course of performing its functions except on the order of a court.

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

127. Accreditation of councils and private agencies

(1) Any council or private agency may apply to the governing body in the prescribed form for accreditation to perform any of the following functions-

(a) resolving disputes through conciliation; and

(b) arbitrating disputes that remain unresolved after conciliation, if this Act requires arbitration.

(2) For the purposes of this section, the reference to disputes must be interpreted to exclude disputes as contemplated in-

(a) sections 16, 21 and 22;28 (b) section 24(2) to (5);29 (c) section 24(6) and (7) and section 26(11);30 (d) section 45;31 ^{(e) section 61(5) to (8) ;32}

(f) section 62;33

28. These sections deal with disputes about organisational rights.

29. These subsections deal with disputes about collective agreements where the agreement does not provide for a procedure, the procedure is inoperative or any party frustrates the resolution of the dispute.

30. These subsections deal with disputes about agency shops and closed shops.

31. This section deals with disputes about determinations made by the

^{Minister in respect of proposals made by a statutory council.}

32. These subsections deal with disputes about the interpretation or application of collective agreements of a council whose registration has been cancelled.

33. This section deals with disputes about the demarcation of sectors and areas of councils.

(g) section 63 ;34

(h) section 69(8) to (10);35 (i) section 86; 36 (j) section 89;37 (k) section 94.38 (3) The governing body may require further information in support and, for that purpose, may require the applicant to attend one or more meetings of the governing body.

(4) The governing body may accredit an applicant to perform any function

^{for which it seeks accreditation, after considering the application, any further}

information provided by the applicant and whether-

(a) the services provided by the applicant meet the Commission's standards;

(b) the applicant is able to conduct its activities effectively;

(c) the persons appointed by the applicant to perform those functions will do so in a manner independent of the State, any political party, trade union,

34. This section deals with disputes about the interpretation or application of Parts C to IF of Chapter Ill. Part C deals with bargaining councils, Part D with bargaining councils in the public service, Part E with statutory councils and Part IF with general provisions concerning councils.

35. This section concerns disputes about pickets during strikes and lock-outs.

36. This section deals with disputes about proposals that are the subject of joint decision-making.

37. This section deals with disputes about the disclosure of information to workplace forums.

38. This section deals with disputes about the interpretation or application of Chapter V which deals with workplace forums. employer, employers' organisation, federation of trade unions or federation of employers' organisations;

(d) the persons appointed by the applicant to perform those functions will be competent to perform those functions and exercise any associated powers;

(e) the applicant has an acceptable code of conduct to govern the persons whom it appoints to perform those functions; the applicant uses acceptable disciplinary procedures to ensure that each person it appoints to perform those functions will subscribe, and adhere, to the code of conduct;

(g) the applicant promotes a service that is broadly representative of South African society; and

(h) if the applicant charges a fee to the users of its services, the fee is reasonable.

(5) If the governing body decides-

(a) to accredit the applicant, the governing body must-

(i) enter the applicant's name in the register of accredited councils or the register of accredited agencies;

(ii) issue a certificate of accreditation in the applicant's name stating the period and other terms of accreditation;

(iii) send the certificate to the applicant; and

(iv) as soon as practicable after the decision, publish the certificate of accreditation in the Government Gazette; or

(b) not to accredit the applicant, the governing body must advise the unsuccessful applicant in writing of its decision.

(6) The terms of accreditation must state the extent to which the provisions of each section in Part C of this Chapter apply to the accredited council or accredited agency.

(7) (a) Any person may inspect the registers and certificates of accredited councils and accredited agencies kept in the Commission's offices.

(b) The Commission must provide a certified copy of, or extract from, any of the documents referred to in paragraph (a) to any person who has paid the prescribed fee.

128. General provisions relating to accreditation

(1) (a) An accredited council or accredited agency may charge a fee for performing any of the functions for which it is accredited in circumstances in which this Act allows the Commission, or a commissioner, to charge a fee.

(b) A fee charged in terms of paragraph (a) must be in accordance with the tariff of fees determined by the Commission.

(2) (a) An accredited council, accredited agency, or any person engaged by either of them to perform the functions for which it has been accredited, is not liable for any loss suffered by any person as a result of any act performed or omitted in good faith in the course of exercising those functions.

(b) An accredited council, accredited agency, or any person engaged by either of them to perform the functions for which it has been accredited, may not disclose to any person or in any court any information, knowledge or document that it or that person acquired on a confidential basis or without prejudice in the course of performing those functions except on the order of a court.

129. Amendment of accreditation

(1) An accredited council or accredited agency may apply to the governing body in the prescribed form to amend its accreditation.

(2) The governing body must treat the application as an application in terms of section 127.

130. Withdrawal of accreditation If an accredited council or accredited agency fails to comply to a material extent with the terms of its accreditation, the governing body may withdraw its accreditation after having given reasonable notice of the withdrawal to that council or accredited agency.

131. Application to renew accreditation

(1) An accredited council or accredited agency may apply to the governing body in the prescribed form to renew its accreditation either in the current or in an amended form.

(2) The governing body must treat the application for renewal as an application in terms of section 127.

132. Subsidy to council or private agency

(1) Any accredited council or accredited agency, or council or private agency that has applied for accreditation, may apply to the governing body the prescribed form for a subsidy-

(a) for performing any function for which the council or private agency is accredited or for which it has applied for accreditation; and

(b) for training persons to perform those functions.

(2) The governing body may require further information in support of the application and, for that purpose, may require the applicant to attend one or more meetings of the governing body.

(3) The governing body may grant a subsidy to the applicant after considering the application, any further information provided by the applicant and-

(a) the need for the performance by the applicant of the functions for which it is accredited;

(b) the extent to which the public uses the applicant to perform the functions for which it is accredited;

(d) the reasons for seeking the subsidy;

(e) the amount requested; and the applicant's ability to manage its financial affairs in accordance with established accounting practice, principles and procedures.

(4) If the governing body decides-

(a) to grant a subsidy to the applicant, the governing body must-

(i) notify the applicant in writing of the amount, duration and the terms of the subsidy; and

(ii) as soon as practicable after the decision, publish the written notice in the Government Gazette; or

(b) not to grant a subsidy to the applicant, the governing body must advise the unsuccessful applicant in writing of its decision.

(5) A subsidy granted in terms of subsection (4)(a)-

(a) may not be paid to a council or private agency unless it has been accredited; and

(b) lapses at the end of the Commission's financial year within which it was granted.

(6) (a) Any person may inspect a written notice referred to in subsection

(4)(a) in the Commission's offices.

(b) The Commission must provide a certified copy of, or extract from, any written notice referred to in paragraph (a) to any person who has paid the prescribed fee.

(7) If an accredited council or accredited agency fails to comply to a material extent with the terms of its subsidy, the governing body may

withdraw the subsidy after having given reasonable notice of the withdrawal to that council or agency.

(8) (a) An accredited council or accredited agency that has been granted

a subsidy may apply to the governing body in the prescribed form to renew its subsidy, either in the current or in an amended form and amount.

(b) The governing body must treat the application for renewal as an application in terms of subsections (1) to (4).

PART C-RESOLUTION OF DISPUTES UNDER AUSPICES OF COMMISSION

133. Resolution of disputes under auspices of Commission

(1) The Commission must appoint a commissioner to attempt to resolve through conciliation-

(a) any dispute referred to it in terms of section 134; and

(b) any other dispute that has been referred to it in terms of this Act.

(2) If a dispute remains unresolved after conciliation, the Commission must arbitrate the dispute if- I

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

(b) all the parties to the dispute in respect of which the Labour Court has jurisdiction consent to arbitration under the auspices of the Commission.

134. Disputes about matters of mutual interest

(1) Any party to a dispute about a matter of mutual interest may refer the dispute in writing to the Commission, if the parties to the dispute are-

(a) on the one side-

(i) one or more trade unions;

(ii) one or more employees; or 2 one or more trade unions and one or more employees; and

(b) on the other side(i) one or more employers' organisations; (ii) one or more employers; or (iii) one or more employers' organisations and one or more employers.

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

135. Resolution of disputes through conciliation (1) When a dispute has been referred to the Commission, the Commission must appoint a commissioner to attempt to resolve it through conciliation.

(2) The appointed commissioner must attempt to resolve the dispute through conciliation within 30 days of the date the Commission received the referral:

However the parties may agree to extend the 30-day period.

(3) The commissioner must determine a process to attempt to resolve the dispute, which may include(a) mediating the dispute;

(b) conducting a fact-finding exercise; and

(c) making a recommendation to the parties, which may be in the form of an advisory arbitration award.

(4) In the conciliation proceedings a party to the dispute may appear in person or be represented only by a co-employee or by a member, an

^{office-bearer or official
of that party's trade union or employers'}

organisation and, if the party is a juristic person, by a director or an employee.

(5) At the end of the 30-day period or any further period agreed between the parties-

(a) the commissioner must issue a certificate stating whether or not the dispute has been resolved;

(b) the Commission must serve a copy of that certificate on each party to the dispute or the person who represented a party in the conciliation proceedings; and

(c) the commissioner must file the original of that certificate with the Commission.

(6) (a) If a dispute about a matter of mutual interest has been referred to the Commission and the parties to the dispute are engaged in an essential service then, despite subsection (1), the parties may consent within seven days of the date the Commission received the referral-

(i) to the appointment of a specific commissioner by the Commission to attempt to resolve the dispute through conciliation; and

(ii) to that commissioner's terms of reference.

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

(i) appoint a commissioner to attempt to resolve the dispute; and

(ii) determine the commissioner's terms of reference.

136. Appointment of commissioner to resolve dispute through arbitration

(1) If this Act requires a dispute to be resolved through arbitration,

the Commission must appoint a commissioner to arbitrate that dispute, if-

(a) a commissioner has issued a certificate stating that the dispute remains unresolved; and

(b) any party to the dispute has requested that the dispute be resolved through arbitration.

(2) A commissioner appointed in terms of subsection (1) may be the same commissioner who attempted to resolve the dispute through conciliation.

(3) Any party to the dispute, who objects to the arbitration being

conducted by the same commissioner who conciliated the dispute, may file an objection with the Commission and must satisfy the Commission that a copy of the objection has been served on all the other parties to the dispute.

(4) When the Commission receives an objection it must appoint another commissioner to resolve the dispute by arbitration.

(5) (a) The parties to a dispute may request the Commission, in

appointing a commissioner in terms of subsection (1) or (4), to take into account their stated preference, to the extent that this is reasonably practicable in all the circumstances.

(b) The stated preference contemplated in paragraph (a) must- (i) be in writing; (ii) list no more than five commissioners;

(iii) state that the request is made with the agreement of all the parties to the dispute; and

(iv) be submitted within 48 hours of the date of the certificate referred to in subsection (1)(a).

(6) If the circumstances contemplated in subsection (1) exist and

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

137. Appointment of senior commissioner to resolve dispute through arbitration

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

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

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

(a) the nature of the questions of law raised by the dispute; (b) the complexity of the dispute; (c) whether there are conflicting arbitration awards that are relevant to the dispute; and

(d) the public interest.

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

(a) if the application has been granted, appoint a senior commissioner to arbitrate the dispute; or

(b) if the application has been refused, confirm the appointment of the commissioner initially appointed.

(5) The director's decision is final and binding.

(6) No person may apply to any court of law to review the director's decision until the dispute has been arbitrated.

138. General provisions for arbitration proceedings

(1) The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.

(2) Subject to the discretion of the commissioner as to the appropriate form of the proceedings, a party to the dispute may give evidence, call witnesses, question the witnesses of any other party, and address concluding arguments to the commissioner.

(3) If all the parties consent, the commissioner may suspend the arbitration proceedings and attempt to resolve the dispute through conciliation.

(4) In any arbitration proceedings, a party to the dispute may appear in person or be represented only by a legal practitioner, a co-employee or by a member, office-bearer or official of that party's trade union or employers' organisation and, if the party is a person, by a director or an employee.

If a party to the dispute fails to appear in person or to be represented at the arbitration proceedings, and that party-

(a) had referred the dispute to the Commission, the commissioner may dismiss the matter; or

(b) had not referred the dispute to the Commission, the commissioner may-

(i) continue with the arbitration proceedings in the absence of that party; or

(ii) adjourn the arbitration proceedings to a later date. (6) The commissioner must take into account any code of good practice

^{that has been issued by
NEDLAC or guidelines published by the Commission}

^{in accordance with the
provisions of this Act that is relevant to a}

matter being considered in the arbitration proceedings.

(7) Within 14 days of the conclusion of the arbitration proceedings- (a) the commissioner must issue an arbitration award with brief

reasons, signed by that commissioner;

(b) the Commission must serve a copy of that award on each party to the dispute or the person who represented a party in the arbitration proceedings; and

(c) the Commission must file the original of that award with the registrar of the Labour Court.

(8) On good cause shown, the director may extend the period within which the arbitration award and the reasons are to be served and filed.

(9) The commissioner may make any appropriate arbitration award in terms of this Act, including, but not limited to, an award-

(a) that gives effect to any collective agreement;

(b) that gives effect to the provisions and primary objects of this ^Act;

(c) that includes, or is in the form of, a declaratory order. (10) The commissioner may not include an order for costs in the

^{arbitration award unless
a party, or the person who represented that}

party in the arbitration proceedings, acted in a frivolous or vexatious manner-

(a) by proceeding with or defending the dispute in the arbitration proceedings;

(b) in its conduct during the arbitration proceedings.

139. Special provisions for arbitrating disputes in essential services

(1) If a dispute about a matter of mutual interest proceeds to arbitration and any party is engaged in an essential service-

(a) within 30 days of the date of the certificate referred to in section 136(l)(a), or within a further period agreed between the parties to the dispute, the commissioner must complete the arbitration and issue an arbitration award with brief reasons signed by that commissioner;

(b) the Commission must serve a copy of that award on each party to the dispute or the person who represented a party in the arbitration proceedings; and

(c) the Commission must file the original of that award with the registrar of the Labour Court.

(2) The commissioner may not include an order for costs in the

arbitration award unless a party, or the person who represented the party in the arbitration proceedings, acted in a frivolous or vexatious manner in its conduct during the arbitration proceedings.

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

(1) If the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee's conduct or capacity, the parties, despite section 138 (4), are not entitled to be represented by a legal practitioner in the arbitration proceedings unless-

(a) the commissioner and all the other parties consent; or

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

(i) the nature of the questions of law raised by the dispute;

(ii) the complexity of the dispute; (iii) the public interest; and (iv) the comparative ability of the opposing parties or their representatives to deal with the arbitration of the dispute.

(2) If, in terms of section 194(l), the commissioner finds that the dismissal is procedurally unfair, the commissioner may charge the employer an arbitration fee.

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

Commission

(1) If a dispute remains unresolved after conciliation, the Commission must arbitrate the dispute if a party to the dispute would otherwise be entitled to refer the dispute to the Labour Court for adjudication and, instead, all the parties agree to arbitration under the auspices of the Commission.

(2) The arbitration proceedings must be conducted in accordance with the provisions of sections 136, 137 and 138, read with the changes required by the context.

(3) The arbitration agreement contemplated in subsection (1) may be terminated only with the consent of all the parties to that agreement, unless the agreement itself provides otherwise.

(4) Any party to the arbitration agreement may apply to the Labour Court at any time to vary or set aside that agreement, which the Court may do on good cause.

(5) (a) If any party to an arbitration agreement commences proceedings in the Labour Court against any other party to that agreement about any matter that the parties agreed to refer to arbitration, any party to those proceedings may ask the Court-

(i) to stay those proceedings and refer the dispute to arbitration; or

(ii) with the consent of the parties and where it is expedient to do so, continue with the proceedings with the Court acting as arbitrator, in which case the Court may only make an order corresponding to the award that an arbitrator could have made.

(b) If the Court is satisfied that there is sufficient reason for the dispute to be referred to arbitration in accordance with the arbitration agreement, the Court may stay those proceedings, on any conditions.

(6) If the provisions of subsection (1)(a) apply, the commissioner may make an award that the Labour Court could have made.

142. Powers of commissioner when attempting to resolve disputes

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

(a) subpoena for questioning any person who may be able to give information or whose presence at the conciliation or arbitration proceedings may help to resolve the dispute;

(b) subpoena any person who is believed to have possession or control of any book, document or object relevant to the resolution of the dispute, to appear before the commissioner to be questioned or to produce that book, document or object;

(c) call, and if necessary subpoena, any expert to appear before the

commissioner to give evidence relevant to the resolution of the dispute;

(d) call any person present at the conciliation or arbitration proceedings or who was or could have been subpoenaed for any purpose set out in this section, to be questioned about any matter relevant to the dispute;

(e) administer an oath or accept an affirmation from any person

called to give evidence or be questioned; at any reasonable time, but only after obtaining the necessary written authorisation-

(i) enter and inspect any premises on or in which any book, document or object, relevant to the resolution of the dispute is to be found or is suspected on reasonable grounds of being found there; and

(ii) examine, demand the production of, and seize any book, document or object that is on or in those premises and that is relevant to the resolution of the dispute; and

(g) inspect, and retain for a reasonable period, any of the books, documents or objects that have been produced to, or seized by, the Commission.

(2) A subpoena issued for any purpose in terms of subsection (1) must be signed by the director and must-

(a) specifically require the person named in it to appear before the commissioner;

(b) sufficiently identify the book, document or object to be produced; and

(c) state the date, time and place at which the person is to appear. (3) The written authorisation referred to in subsection (1)(f)-

^{(a) if it relates to
residential premises, may be given only by a}

judge of the Labour Court and with due regard to section 13 of the Constitution, and then only on the application of the commissioner setting out under oath or affirmation the following information-

(i) the nature of the dispute;

(ii) the relevance of any book, document or object to the resolution of the dispute;

(iii) the presence of any book, document or object on the premises; and

(iv) the need to enter, inspect or seize the book, document or object; and

(b) in all other cases, may be given by the director.

(4) The owner or occupier of any premises that a commissioner is authorised to enter and inspect, and every person employed by that owner or occupier, must provide any facilities that a commissioner requires to enter those premises and to carry out the inspection or seizure.

(5) The commissioner must issue a receipt for any book, document or object seized in terms of subsection (4).

(6) The law relating to privilege, as it applies to a witness subpoenaed to give evidence or to produce any book, document or object before a court of law, applies equally to the questioning of any person or the production or seizure of any book, document or object in terms of this section.

(7) The Commission must pay the prescribed witness fee to each person who appears before a commissioner in response to a subpoena issued by the commissioner.

(8) A person commits contempt of the Commission-

(a) if, after having been subpoenaed to appear before the commissioner, the person without good cause does not attend at the time and place stated in the subpoena;

(b) if, after having appeared in response to a subpoena, that person fails to remain in attendance until excused by the commissioner;

(c) by refusing to take the oath or to make an affirmation as a witness when a commissioner so requires;

(d) by refusing to answer any question fully and to the best of that person's knowledge and belief subject to subsection (6);

(e) if the person, without good cause, fails to produce any book, document or object specified in a subpoena to a commissioner; if the person willfully hinders a commissioner in performing any function conferred by or in terms of this Act;

(g) if the person insults, disparages or belittles a commissioner, or prejudices or improperly influences the proceedings or improperly anticipates the commissioner's award;

(h) by willfully interrupting the conciliation or arbitration proceedings or misbehaving in any other manner during those proceedings;

(i) by doing anything ease in relation to the Commission which, if done in relation to a court of law, would have been contempt of court.

(9) The Commission may refer any contempt to the Labour Court for an appropriate order.

143. Effect of arbitration awards

(1) An arbitration award issued by a commissioner is final and binding and may be made an order of the Labour Court in terms of section

158(1)(c), unless it is an advisory arbitration award.

(2) If an arbitration award orders a party to pay a sum of money, the amount earns interest from the date of the award at the same rate as the rate prescribed from time to time in respect of a judgment debt in terms of section 2 of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of

1975), unless the award provides otherwise.

144. Variation and rescission of arbitration awards Any commissioner who has issued an arbitration award, acting of the commissioner's own accord or, on the application of any affected party, may vary or rescind an arbitration award-

(a) erroneously sought or erroneously made in the absence of any party affected by that award; (b) in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; or

(c) granted as a result of a mistake common to the parties to the proceedings.

145. Review of arbitration awards

(1) Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award-

(a) within six weeks of the date that the award was served on the applicant, unless the alleged defect involves corruption; or

(b) if the alleged defect involves corruption, within six weeks of the date that the applicant discovers the corruption.

(2) A defect referred to in subsection (1), means- (a) that the commissioner- ^{(i) committed misconduct in relation to the duties of the} commissioner as an arbitrator;

(ii) committed a gross irregularity in the conduct of the arbitration proceedings; or

(iii) exceeded the commissioner's powers; or

(b) that an award has been improperly obtained.

(3) The Labour Court may stay the enforcement of the award pending its decision.

(4) If the award is set aside, the Labour Court may-

(a) determine the dispute in the manner it considers appropriate; or

(b) make any order it considers appropriate about the procedures to be followed to determine the dispute.

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

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

(1) (a) If at any stage after a dispute has been referred to the Commission, it becomes apparent that the dispute is about the interpretation or application of a collective agreement, the Commission may-

(i) refer the dispute for resolution in terms of the procedures provided for in that collective agreement; or

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

(b) The Commission may charge the parties to a collective agreement a fee for performing the dispute resolution functions if- (i) their collective agreement does not provide a procedure as required by section 24(1); 39 or

(ii) the procedure provided in the collective agreement is not operative.

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

(2) (a) If at any stage after a dispute has been referred to the Commission, it becomes apparent that the parties to the dispute are parties to a council, the Commission may-

(i) refer the dispute to the council for resolution; or

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

(b) The Commission may charge the parties to a council a fee for performing the dispute resolution functions if the council's dispute resolution procedures are not operative.

(3) (a) If at any stage after a dispute has been referred to the Commission, it becomes apparent that the parties to the dispute fall within the registered scope of a council and that one or more parties to the dispute are not parties to the council, the Commission may-

(i) refer the dispute to the council for resolution; or

39. Section 24(l) states that every collective agreement must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement.

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

(b) The Commission may charge the parties to a council a fee for performing the dispute resolution functions if the council's dispute resolution procedures are not operative.

(4) (a) If a dispute has been referred to the Commission and not all the parties to the dispute fall within the registered scope of a council or fall within the registered scope of two or more councils, the Commission must resolve the dispute in terms of this Act.

(b) In the circumstances contemplated in paragraph (a), the Commission has exclusive Jurisdiction to resolve that dispute.

(5) (a) If at any stage after a dispute has been referred to the Commission, it becomes apparent that the dispute ought to have been referred to an accredited agency in terms of a collective agreement between the parties to the dispute, the Commission may-

(i) refer the dispute to the accredited agency for resolution; or

(ii) appoint a commissioner to resolve the dispute in terms of this Act.

(b) The Commission may- (i) charge the accredited agency a fee for performing the dispute resolution functions if the accredited agency's dispute resolution procedures are not operative; and

(ii) review the continued accreditation of that agency. (6) (a) If at any stage after a dispute has been referred to the

^{Commission, it becomes
apparent that the dispute ought to have been}

^{resolved through private
dispute resolution in terms of a private}

agreement between the parties to the dispute, the Commission may-

(i) refer the dispute to the appropriate person or body for resolution through private dispute resolution procedures; ^or

(ii) appoint a commissioner to resolve the dispute in terms of this Act.

(7) Where the Commission refers the dispute in terms of this section to a person or body other than a commissioner the date of the Commission's initial receipt of the dispute will be deemed to be the date on which the Commission referred the dispute elsewhere.

148. Commission may provide advice

(1) If asked, the Commission may advise any party to a dispute in terms

of this Act about the procedure to be followed for the resolution of that dispute.

(2) In response to a request for advice, the Commission may provide the advice that it considers appropriate.

149. Commission may provide assistance

(1) If asked, the Commission may assist an employee or employer who is a party to a dispute (a) together with the Legal Aid Bard to arrange

for advice or assistance by a legal practitioner;

(b) together with the Legal Aid Board, to arrange for a legal practitioner-

(i) to attempt to avoid or settle any proceedings being instituted against an employee or employer in terms of this Act;

(ii) to attempt to settle any proceedings instituted against an employee or employer in terms of this Act;

(iii) to institute on behalf of the employee or employer any proceedings in terms of this Act;

(iv) to defend or oppose on behalf of the employee or employer any proceedings instituted against the employee or employer in terms of this Act; or

(c) by providing any other form of assistance that the Commission considers appropriate.

(2) The Commission may provide the assistance referred to in subsection

^{(1) after having
considered-}

(a) the nature of the questions of law raised by the dispute; (b) the complexity of the dispute; (c) whether there are conflicting arbitration awards that are relevant to the dispute; and

40. The Legal Aid Board is established in terms of section 2 of the Legal Aid Act, 1969 (Act No. 22 of 1969). (d) the public interest. ^{(3) As soon as practicable after having received a request in terms of} subsection (1), but not later than 30 days of the date the Commission received the request, the Commission must advise the applicant in writing whether or not it will assist the applicant and, if so, the form that the assistance will take.

150. Commission may offer to resolve dispute through conciliation

(1) If the Commission is aware of a dispute that has not been referred to it, and if resolution of the dispute would be in the public interest, the Commission may offer to appoint a commissioner to attempt to resolve the dispute through conciliation.

(2) The Commission may appoint a commissioner only if all the parties to the dispute consent to that appointment.

PART D - LABOUR COURT

151. Establishment and status of Labour Court

(1) The Labour Court is hereby established as a court of law.

(2) The Labour Court is a superior court that has authority, inherent powers and standing, in relation to matters under its jurisdiction, equal to that which a court of a provincial division of the Supreme Court has in relation to the matters under its jurisdiction. (3) The Labour Court is a court of record.

^{152. Composition of Labour Court}

(1) The Labour Court consists of- (a) a Judge President; ^{(b) a Deputy Judge President; and}

(c) as many judges as the President may consider necessary, acting on the advice of NEDLAC and in consultation with the Minister of Justice and the Judge President of the Labour Court.

(2) The Labour Court is constituted before a single judge.

(3) The Labour Court may sit in as many separate courts as the available judges may allow.

153. Appointment of judges of Labour Court

(1) (a) The President, acting on the advice of NEDLAC and the Judicial Service Commission as defined in section 105 of the Constitution, and after consultation with the Minister of Justice must appoint a Judge President of the Labour Court.

(b) The President, acting on the advice of NEDLAC and the Judicial Service Commission as defined in section 105 of the Constitution, and after consultation with the Minister of Justice and the Judge President of the Labour Court must appoint the Deputy Judge President of the Labour Court.

(2) The Judge President and the Deputy Judge President of the Labour

Court-

(a) must be judges of the Supreme Court; and

(b) must have knowledge, experience and expertise in labour law.

(3) The Deputy Judge President must act as Judge President of the Labour

Court whenever the Judge President is unable to do so for any reason.

(4) The President, acting on the advice of NEDLAC and the Judicial Service Commission as defined in section 105 of the Constitution, and after consultation with the Minister of Justice and the Judge President of the Labour Court may appoint one or more persons who meet the requirements of subsection (6) as judges of the Labour Court.

(5) The President, acting on the advice of NEDLAC and the Judicial Service Commission as defined in section 105 of the Constitution, and after consultation with the Minister of Justice and the Judge President of the Labour Court may appoint one or more persons who meet the requirements of subsection (6) to serve as acting judges of the Labour Court.

(6) A judge of the Labour Court must-

(a) (i) be a judge of the Supreme Court; or

(ii) be a person who has been a legal practitioner for a cumulative period of at least 10 years before that person's appointment; and

(b) have knowledge, experience and expertise in labour law.

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

Court judges

(1) A judge of the Labour Court must be appointed for a period determined by the President at the time of appointment.

(2) A judge of the Labour Court may resign by giving written in the office to the President.

(3) (a) Any judge of the Labour Court who is also a judge of the Supreme

Court holds office until-

(i) the judge's period of office in the Labour Court ends; (ii) the judge's resignation takes effect; (iii) the judge is removed from office;

(iv) the judge ceases to be a judge of the Supreme Court; or

(v) the judge dies.

(b) Any other judge of the Labour Court holds office until- (i) the judge's period of office ends; (ii) the judge's resignation takes effect; (iii) the judge is removed from office; or

(iv) the judge dies.

(4) Neither the tenure of office nor the remuneration and terms and conditions of appointment applicable to a judge of the Supreme Court in terms of the Judges' Remuneration and Conditions of Employment Act, 1989 (Act No. 88 of 1989), is affected by that judge's appointment and concurrent tenure of office as a judge of the Labour Court.

(5) (a) The remuneration payable to a judge of the Labour Court appointed in terms of section 153(6) must be the same as that payable to a judge of the Supreme Court.

(b) The terms and conditions of appointment of a judge of the Labour Court refer-red to in paragraph (a) must be similar to those of a judge of the Supreme Court.

(6) A person who has been appointed a judge of the Labour Court and who is not a judge of the Supreme Court may perform the functions of a judge of the Labour Court only after having taken an oath or made a solemn affirmation in the prescribed form before the Judge President of the Labour Court.

(7) (a) A judge of the Labour Court who is also a judge of the Supreme

Court-

(i) may be removed from the office of judge of the Labour Court only if that person has first been removed from the office of a judge of the Supreme Court; and

(ii) upon having been removed as judge of the Supreme Court must be removed from office as a judge of the Labour Court.

(b) The President, acting on the advice of NEDLAC, and in consultation with the Minister of Justice and the Judge President of the Labour Court, may remove any other judge of the Labour Court from office for misbehaviour or incapacity.

155. Officers of Labour Court

(1) The Minister of Justice, subject to the laws governing the public service, must appoint the following officers of the Labour Court-

(a) a person who has experience and expertise in labour law and administration to be the registrar of the Labour Court; and

(b) one or more deputy registrars and so many other officers of the Labour Court as the administration of justice requires.

(2) (a) The officers of the Labour Court, under the supervision and control of the registrar of that Court must perform the administrative functions of the Labour Court.

(b) A deputy registrar of the Labour Court may perform any of the functions of the registrar of that Court that have been delegated generally or specifically to the deputy registrar.

(3) The deputy registrar of the Labour Court or, if there is more than one, the most senior will act as registrar of the Labour Court whenever-

(a) the registrar is absent from the Republic or from duty, or for any reason is temporarily unable to perform the functions of registrar; or

(b) the office of registrar is vacant.

(4) The officers of the Labour Court must provide secretarial and administrative assistance to the Rules Board for Labour Courts.

156. Area of jurisdiction and seat of Labour Court

(1) The Labour Court has jurisdiction 'in all the provinces of the

Republic.

(2) The Minister of Justice, acting on the advice of NEDLAC, must determine the seat of the Labour Court.

(3) The functions of the Labour Court may be performed at any place in the Republic.

157. Jurisdiction of Labour Court

(1) Subject to the Constitution and section 173, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court.

(2) The Labour Court has concurrent jurisdiction with the Supreme Court- (a) In respect of any alleged violation or threatened violation, by

^{the State in its
capacity as employer of any fundamental right}

entrenched in Chapter 3 of the Constitution; and

(b) in respect of any dispute over the constitutionally of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as employer.

(3) Any reference to the court in the Arbitration Act, 1965 (Act No. 42 of 1965), must be interpreted as referring to the Labour Court when an arbitration is conducted under that Act in respect of any dispute that may be referred to arbitration in terms of this Act.

(4) (a) The Labour Court may refuse to determine any dispute, other than an appeal or review before the Court, if the Court is not satisfied that an attempt has been made to resolve the dispute through conciliation.

(b) A certificate issued by a commissioner or a council stating that a dispute remains unresolved is sufficient proof that an attempt has been made to resolve that dispute through conciliation.

(5) Except as provided in section 158(2), the Labour Court does not have jurisdiction to adjudicate an unresolved dispute if this Act requires the dispute to be resolved through arbitration.

158. Powers of Labour Court

(1) The Labour Court may-

(a) make any appropriate order, including

(i) the grant of urgent interim relief; (ii) an interdict; (iii) an order directing the performance of any particular act which order, when implemented, will remedy a wrong and give effect to the primary objects of this Act;

(iv) a declaratory order;

(v) an award of compensation in any circumstances contemplated in this Act;

(vi) an award of damages in any circumstances contemplated in this Act; and

(vii) an order for costs;

(b) order compliance with any provision of this Act;

(d) request the Commission to conduct an investigation to assist the

Court and to submit a report to the Court;

(e) determine a dispute between a registered trade union, a registered employers' organisation, and one of its members about any alleged non-compliance with the constitution of that trade union or employers' organisation;

(f) subject to the provisions of this Act, condone the late filing of any document with, or the late referral of any dispute to, the Court;

(g) despite section 145, review the performance or purported performance of any function provided for in this Act or any act or omission of any person or body in terms of this Act on any grounds that are permissible in law;

(h) review any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law;

(i) hear and determine any appeal in terms of section 35 of the

^{Occupational Health and
Safety Act, 1993 (Act No. 85 of 1993); and}

(j) deal with all matters necessary or incidental to performing its functions in terms of this Act or any other law.

(2) If at any stage after a dispute has been referred to the Labour Court, it becomes apparent that the dispute ought to have been referred to arbitration, the Court may-

(a) stay the proceedings and refer the dispute to arbitration; or

(b) with the consent of the parties and if it is expedient to do so, continue with the proceedings with the Court sitting as an arbitrator, in which case the Court may only make any order that a commissioner or arbitrator would have been entitled to make.

(3) The reference to "arbitration" in subsection (2) must be interpreted to include arbitration-

(a) under the auspices of the Commission;

(b) under the auspices of an accredited council; (c) under the auspices of an accredited agency;

(d) in accordance with a private dispute resolution procedure; or

(e) if the dispute is about the interpretation or application of a collective agreement.

(4) (a) The Labour Court, on its own accord or, at the request of any party to the proceedings before it may reserve for the decision of the Labour Appeal Court any question of law that arises in those proceedings.

(b) A question may be reserved only if it is decisive for the proper adjudication of the dispute.

(c) Pending the decision of the Labour Appeal Court on any question of law reserved in terms of paragraph (a), the Labour Court may make any interim order.

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

(1) The Rules Board for Labour Courts is hereby established. (2) The Board consists of-

(a) the Judge President of the Labour Court, who is the chairperson; (b) the Deputy Judge President of the Labour Court; and

(c) the following persons, to be appointed for a period of three years by the Minister of Justice, acting on the advice of NEDLAC-

(i) a practising advocate with knowledge, experience and expertise in labour law;

(ii) a practising attorney with knowledge, experience and expertise in labour law; (iii) a person who represents the interests of employees; (iv) a person who represents the interests of employers; ^and

(v) a person who represents the interests of the State. (3) The Board may make rules to regulate the conduct of proceedings in

^{the Labour Court,
including, but not limited to-}

(a) the process by which proceedings are brought before the Court, and the form and content of that process;

(b) the period and process for noting appeals; (c) the taxation of bills of costs; (d) after consulting with the Minister of Finance, the fees payable and the costs and expenses allowable in respect of the service or execution of any process of the Labour Court, and the tariff of costs and expenses that may be allowed in respect of that service or execution; and

(e) all other matters incidental to performing the functions of the Court, including any matters not expressly mentioned in this subsection that are similar to matters about which the Rules Board for Courts of Law may make rules in terms of section 8 of the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985).

(4) The Board may alter or repeal any rule that it makes.

(5) Five members of the Board are a quorum at any meeting of the Board.

(6) The Board must publish any rules that it makes, alters or repeals in the Government Gazette.

160. Proceedings of Labour Court to be carried on in open court (1) The proceedings in the Labour Court must be carried on in open court. (2) Despite subsection (1), the Labour Court may exclude the members of ^{the general public, or specific persons, or categories of persons from} the proceedings in any case where a court of a provincial division of the ^{Supreme Court could have done so.}

161. Representation before Labour Court In any proceedings before the Labour Court, a party to the proceedings may appear in person or be represented only by a legal practitioner, a co-employee or by a member, an office-bearer or official of that party's trade union or employers' organisation and, if the party is a juristic person, by a director or an employee.

162. Costs

(1) The Labour Court may make an order for the payment of costs, according to the requirements of the law and fairness.

(2) When deciding whether or not to order the payment of costs, the ^{Labour Court may take into account-}

(a) whether the matter referred to the Court ought to have been referred to arbitration in terms of this Act and, if so, the extra costs incurred in referring the matter to the Court; and

(b) the conduct of the parties-

(i) in proceeding with or defending the matter before the Court; and

(ii) during the proceedings before the Court.

(3) The Labour Court may order costs against a party to the dispute or against any person who represented that party in those proceedings before the Court.

163. Service and enforcement of orders of Labour Court Any decision, judgment or order of the Labour Court may be served and executed as if it were a decision, judgment or order of the Supreme Court.

164. Seal of Labour Court

(1) The Labour Court for use as occasion may require will have an official seal of a design prescribed by the President by proclamation in the Government Gazette.

(2) The registrar of the Labour Court must keep custody of the official seal of the Labour Court.

165. Variation and rescission of orders of Labour Court The Labour Court, acting of its own accord or on the application of any affected party may vary or rescind a decision, judgment or order(a) erroneously sought or erroneously granted in the absence of any party affected

by that judgment or order;

(b) in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; or

(c) granted as a result of a mistake common to the parties to the proceedings.

166. Appeals against judgment or order of Labour Court

(1) Any party to any proceedings before the Labour Court may apply to the Labour Court for leave to appeal to the Labour Appeal Court against any final judgment or final order of the Labour Court.

(2) If the application for leave to appeal is refused, the applicant may petition the Labour Appeal Court for leave to appeal.

(3) Leave to appeal may be granted subject to any conditions that the

Court concerned may determine.

(4) Subject to the Constitution and despite any other law, an appeal against any final judgment or final order of the Labour Court in any matter in respect of which the Labour Court has exclusive jurisdiction may be brought only to the Labour Appeal Court.

PART E - LABOUR APPEAL COURT

167. Establishment and status of Labour Appeal Court

(1) The Labour Appeal Court is hereby established as a court of law and equity.

(2) The Labour Appeal Court is the final court of appeal in respect of all judgments and orders made by the Labour Court in respect of the matters within its exclusive jurisdiction.

(3) The Labour Appeal Court is a superior court that has authority, inherent powers and standing, in relation to matters under its equal to that which the Appellate Division of the Supreme Court has in relation to matters under its jurisdiction.

(4) The Labour Appeal Court is a court of record.

168. Composition of Labour Appeal Court

(1) The Labour Appeal Court consists of-

(a) the Judge President of the Labour Court, who by virtue of that office is Judge President of the Labour Appeal Court;

(b) the Deputy Judge President, who by virtue of that office is Deputy Judge President of the Labour Appeal Court; and

(c) three other judges of the Supreme Court.

(2) The Labour Appeal Court is constituted before any three judges whom the Judge President designates from the panel of judges contemplated in subsection (1).

(3) No judge of the Labour Appeal Court may sit in the hearing of an appeal against a judgment or an order given in a case that was heard before that judge.

169. Appointment of judges of Labour Appeal Court

The President, acting on the advice of NEDLAC-AC and the Judicial Service Commission as defined in section 105 of the Constitution, after consultation with the Minister of Justice and the Judge President of the Labour Appeal Court, must appoint the three judges of the Labour Appeal Court referred to in section 168(l)(c).

170. Tenure, remuneration and terms and conditions of appointment of Labour

Appeal Court judges

(1) A judge of the Labour Appeal Court must be appointed for a fixed term determined by the President at the time of appointment.

(2) A judge of the Labour Appeal Court may resign by giving written notice to the President.

(3) (a) A judge of the Labour Appeal Court holds office until-

(i) the judge's term of office in the Labour Appeal Court ends;

(ii) the judge's resignation takes effect; (iii) the judge is removed from office; ^{(iv) the judge ceases to be a judge of the Supreme Court;} or

(v) the judge dies.

(b) The Judge President and the Deputy Judge President of the Labour Appeal Court hold their offices for as long as they hold their respective offices of Judge President and Deputy Judge President of the Labour Court.

(5) A judge of the Labour Appeal Court-

(a) may be removed from the office of judge of the Labour Appeal Court only if that person has first been removed from the office of a judge of the Supreme Court; and

(b) upon having been removed as judge of the Supreme Court must be removed from office as a judge of the Labour Appeal Court.

171. Officers of Labour Appeal Court

(1) The registrar of the Labour Court is also the registrar of the Labour

Appeal Court.

(2) Each of the deputy registrars and other officers of the Labour Court also holds the corresponding office in relation to the Labour Appeal Court.

(3) (a) The officers of the Labour Appeal Court, under the supervision and control of the registrar of that Court must perform the administrative functions of the Labour Appeal Court.

(b) A deputy registrar of the Labour Appeal Court may perform any of the functions of the registrar of that Court that have been delegated generally or specifically to the deputy registrar.

(4) The deputy registrar of the Labour Appeal Court or, if there is more than one, the most senior will act as registrar of the Labour Appeal Court whenever-

(a) the registrar is absent from the Republic or from duty, or for any reason is temporarily unable to perform the functions of registrar; or

(b) the office of registrar is vacant.

172. Area of jurisdiction and seat of Labour Appeal Court

(1) The Labour Appeal Court has jurisdiction in all the provinces of the

Republic.

(2) The seat of the Labour Court is also the seat of the Labour Appeal

Court.

(3) The functions of the Labour Appeal Court may be performed at any place in the Republic.

173. Jurisdiction of Labour Appeal Court

(1) Subject to the Constitution and despite any other law, the Labour

Appeal Court has exclusive jurisdiction-

(a) to hear and determine all appeals against the final judgments and the final orders of the Labour Court; and (b) to decide any question of law reserved in terms of section 158 (4).

(2) If, in any proceedings before the Labour Appeal Court, circumstances arise such as those contemplated in-

(a) section 102(l) or (2) of the Constitution, the Labour Appeal Court must act in the manner provided for in that section; or

(b) section 102(8) of the Constitution, the Labour Appeal Court may act in the manner provided for in that section.

(3) An appeal to the Labour Appeal Court must be noted and prosecuted as if it were an appeal to the Appellate Division of the Supreme Court in civil proceedings, except that the appeal must be noted within 21 days after the date on which leave to appeal has been granted.

(4) A decision to which any two judges of the Labour Appeal Court agree is the decision of the Court.

174. Powers of Labour Appeal Court on hearing of appeals The Labour

Appeal Court has the power-

(a) on the hearing of an appeal to receive further evidence, either orally or by deposition before a person appointed by the Labour Appeal Court, or to remit the case to the Labour Court for further hearing, with such instructions as regards the taking of further evidence or otherwise as the Labour Appeal Court considers necessary; and

(b) to confirm, amend or set aside the judgment or order that is the subject of the appeal and to give any judgment or make any order that the circumstances may require.

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

Despite the provisions of this Part, the Judge President may direct that any matter before the Labour Court be heard by the Labour Appeal Court sitting as a court of first instance, in which case the Labour Appeal Court is entitled to make any order that

the Labour Court would have been entitled to make.

176. Rules for Labour Appeal Court

(1) The Rules Board for Labour Courts established by section 159 may make rules to regulate the conduct of proceedings in the Labour Appeal Court.

(2) The Board has all the powers referred to in section 159 when it makes rules for the Labour Appeal Court.

(3) The Board must publish in the Government Gazette any rules that it makes, alters or repeals.

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

(1) The proceedings in the Labour Appeal Court must be carried on in open court.

(2) Despite subsection (1), the Labour Appeal Court may exclude the members of the general public, or specific persons, or categories of persons from the proceedings in any case where a court of a provincial division of the Supreme Court could have done so.

178. Representation before Labour Appeal Court

Any person who, in terms of section 161, may appear before the Labour Court has the right to appear before the Labour Appeal Court.

179. Costs

(1) The Labour Appeal Court may make an order for the payment of costs, according to the requirements of the law and fairness.

(2) When deciding whether or not to order the payment of costs, the

Labour Appeal Court may take into account-

(a) whether the matter referred to the Court should have been referred to arbitration in terms of this Act and, if so, the extra costs incurred in referring the matter to the Court; and

(b) the conduct of the parties-

(i) in proceeding with or defending the matter before the ^{Court; and}

(ii) during the proceedings before the Court.

(3) The Labour Appeal Court may order costs against a party to the dispute or against any person who represented that party in those proceedings before the Court.

180. Service and enforcement of orders Any decision, judgment or order of the Labour Appeal Court may be served and executed as if it were a decision, judgment or order of the Supreme Court.

181. Seal of Labour Appeal Court

(1) The Labour Appeal Court for use as the occasion may require will have an official seal of a design prescribed by the President by proclamation

in the Government Gazette.

(2) The registrar of the Labour Appeal Court must keep custody of the official seal of the Labour Appeal Court.

182. Judgments of Labour Appeal Court binding on Labour Court

A judgment of the Labour Appeal Court is binding on the Labour Court.

183. Labour Appeal Court final court of appeal

Subject to the Constitution and despite any other law, no appeal lies against any decision, judgment or order given by the Labour Appeal Court in respect of-

(a) any appeal in terms of section 173(l)(a);

(b) its decision on any question of law in terms of section ^{173(l)(b); or}

(c) any judgment or order made in terms of section 175.

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

184. General provisions applicable to courts established by this Act

Sections 5,4118,4225,4330,4431,4539,464047 and 4248 of the Supreme Court Act, 1959 (Act No. 59 of 1959) apply, read with the changes required by the context, in relation to

the Labour Court, or the Labour Appeal Court, or both, to the extent that they are not

inconsistent with this Act.

41. Scope and execution of process.

42. Certified copies of court records admissible as evidence.

43. No process to be issued against judge except with consent of court.

44. Manner of securing attendance of witnesses or the production of any document.

45. Manner in which witness may be dealt with on refusal to give evidence or produce document.

46. Property not liable to be seized in execution.

47. Offences relating to execution.

48. Witness fees.

CHAPTER VIII UNFAIR DISMISSAL

185. Right not to be unfairly dismissed

Every employee has the right not to be unfairly dismissed.

186. Meaning of dismissal

"Dismissal" means that- (a) an employer has terminated a contract of employment with or without notice;

(b) an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it;

(c) an employer refused to allow an employee to resume work after she-

(i) took maternity leave in terms of any law, collective agreement or her contract of employment; or

(ii) was absent from work for up to four weeks before the expected date, and up to eight weeks after the actual date, of the birth of her child;

(d) an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another; or

(e) an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.

187. Automatically unfair dismissals

(1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 549 or, if the reason for the dismissal is-

(a) that the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action that complies with the provisions of Chapter IV;50

(b) that the employee refused, or indicated an intention to refuse, to do any work normally done by an employee who at the time was taking part in a strike that complies with the provisions of Chapter IV or was locked out, unless that work is necessary to prevent an actual danger to life, personal safety or health;

(c) to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee;

(d) that the employee took action, or indicated an intention to take action, against the employer by-

(i) exercising any right conferred by this Act; or

49. Section 5 confers protections relating to the right to freedom of association and on members of workplace forums.

50. Chapter IV deals with industrial action and conduct in support of industrial action. Section 67(4) and (5) provide-

"(4) An employer may not dismiss an employee for participating in a protected strike or for any conduct in contemplation or in furtherance of a protected strike.

(5) Subsection (4) does not preclude an employer from fairly dismissing an employee in compliance with the provisions of Chapter VIII for a reason related to the employee's conduct during the strike, or for a reason based on the employer's operational requirements."

Section 77(3) provides-

"A person who takes part in protest action or in any conduct in contemplation or in furtherance of protest action that complies with subsection (1), enjoys the protections conferred by section 67."

(ii) participating in any proceedings in terms of this Act; (e) the employee's pregnancy, intended pregnancy, or any reason

related to her pregnancy; that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.

(2) Despite subsection (1)(f)-

(a) a dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job;

(b) a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

188. Other unfair dismissals

(1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove-

(a) that the reason for dismissal is a fair reason-

(i) related to the employee's conduct or capacity; or

(ii) based on the employer's operational requirements; and

(b) that the dismissal was effected in accordance with a fair procedure.

(2) Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act.51

189. Dismissals based on operational requirements

(1) When an employer contemplates dismissing one or more employees for reasons based on the employer's operational requirements, the employer must consult-

(a) any person whom the employer is required to consult in terms of a collective agreement;

(b) if there is no collective agreement that requires consultation, a workplace forum, if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum;

(c) if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals; (d) if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose.

(2) The consulting parties must attempt to reach consensus on

(a) appropriate measures-

(i) to avoid the dismissals;

51. See Schedule 8, the Code of Good Practice: Dismissal.

(ii) to minimise the number of dismissals;

(iii) to change the timing of the dismissals; and

(iv) to mitigate the adverse effects of the dismissals; (b) the method for selecting the employees to be dismissed; and (c) the severance pay for dismissed employees.

(3) The employer must disclose in writing to the other consulting party all relevant information, including, but not limited to-

(a) the reasons for the proposed dismissals;

(b) the alternatives that the employer considered before proposing the dismissals, and the reasons for rejecting each of those alternatives;

(c) the number of employees likely to be affected and the job categories in which they are employed; (d) the proposed method for selecting which employees to dismiss; (e) the time when, or the period during which, the dismissals are ^{likely to take effect; the severance pay proposed;}

(g) any assistance that the employer proposes to offer to the employees likely to be dismissed; and

(h) the possibility of the future re-employment of the employees who are dismissed.

(4) The provisions of section 16 apply, read with the changes required by the context, to the disclosure of information in terms of subsection (3).

(5) The employer must allow the other consulting party an opportunity during consultation to make representations about any matter on which they are consulting.

(6) The employer must consider and respond to the representations made by the other consulting party and, if the employer does not agree with them, the employer must state the reasons for disagreeing.

(7) The employer must select the employees to be dismissed according to selection criteria-

(a) that have been agreed to by the consulting parties; or

(b) if no criteria have been agreed, criteria that are fair and objective.

190. Date of dismissal

(1) The date of dismissal is the earlier of-

(a) the date on which the contract of employment terminated; or

(b) the date on which the employee left the service of the employer. (2) Despite subsection (i)-

(a) if an employer has offered to renew on less favourable terms, or has failed to renew, a fixed-term contract of employment, the date of dismissal is the date on which the employer offered the less favourable terms or the date the employer notified the employee of

the intention not to renew the contract;

(b) if the employer refused to allow an employee to resume work, the date of dismissal is the date on which the employer first refused to allow the employee to resume work;

(c) if an employer refused to reinstate or re-employ the employee, the date of dismissal is the date on which the employer first refused to reinstate or re-employ that employee.

191. Disputes about unfair dismissals52

(1) If there is a dispute about the fairness of a dismissal, the

dismissed employee may refer the dispute in writing within 30 days of the date of dismissal to-

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

(b) the Commission, if no council has

(2) If the employee shows good cause at any time, the council or the Commission may permit the employee to refer the dispute after the 30-day time limit has expired.

(3) The employee must satisfy the council or the Commission that a copy of the referral has been served on the employer.

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

(5) If a council or a commissioner has certified that the dispute remains unresolved, or if 30 days have expired since the council or the

Commission received the referral and the dispute remains unresolved-

52. See flow diagrams Nos. 10, 11, 12 and 13 in Schedule 4.

(a) the council or the Commission must arbitrate the dispute at the request of the employee if-

(i) the employee has alleged that the reason for dismissal related to the employee's conduct or capacity, unless paragraph (b)(iii) applies;

(ii) the employee has alleged that the reason for dismissal is that the employer made continued employment intolerable; or

(iii) the employee does not know the reason for dismissal; or (b) the employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is-

(i) automatically unfair; (ii) based on the employer's operational requirements; (iii) the employee's participation in a strike that does not comply with the provisions of Chapter IV; or

(iv) because the employee refused to join, was refused membership of or was expelled from a trade union party to a closed shop agreement.

(6) Despite subsection (5)(a), the director must refer the dispute to the Labour Court, if the director decides, on application by any party to the dispute, that to be appropriate after considering-

(a) the reason for dismissal;

(b) whether there are questions of law raised by the dispute; (c) the complexity of the dispute; (d) whether there are conflicting arbitration awards that need to be resolved;

(e) the public interest.

(7) When considering whether the dispute should be referred to the Labour Court, the director must give the parties to the dispute and the commissioner who attempted to conciliate the dispute, an opportunity to make representations.

(8) The director must notify the parties of the decision and refer the dispute-

(a) to the Commission for arbitration; or

(b) to the Labour Court for adjudication.

(9) The director's decision is final and binding.

(10) No person may apply to any court of law to review the director's decision until the dispute has been arbitrated or adjudicated, as the case may be.

192. Onus in dismissal disputes

(1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.

(2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.

193. Remedies for unfair dismissal

(1) If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may-

(a) order the employer to reinstate the employee from any date not earlier than the date of dismissal; (b) order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or

(c) order the employer to pay compensation to the employee.

(2) The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless-

(a) the employee does not wish to be reinstated or re-employed; (b) the circumstances surrounding the dismissal are such that a

continued employment relationship would be intolerable;

(c) it is not reasonably practicable for the employer to reinstate or re-employ the employee; or

(d) the dismissal is unfair only because the employer did not follow a fair procedure.

(3) If a dismissal is automatically unfair or, if a dismissal based on

^{the employer's
operational requirements is found to be unfair, the Labour}

Court in addition may make any other order that it considers appropriate in the circumstances.53

194. Limits on compensation

(1) If a dismissal is unfair only because the employer did not follow a fair procedure, compensation must be equal to the remuneration that the employee would have been paid between the date of dismissal and the last day of the hearing of the arbitration or adjudication, as the case may be, calculated at the employee's rate of remuneration on the date of dismissal. Compensation may however not be awarded in respect of any unreasonable period of delay that was caused by the employee in initiating or prosecuting a claim.

(2) The compensation awarded to an employee whose dismissal is found to be unfair because the employer did not prove that the reason for dismissal was a fair reason related to the employee's conduct, capacity or based on the employer's operational requirements, must be just and equitable in all the circumstances, but not less than the amount specified in subsection (1), and not more than the equivalent of 12

months' remuneration calculated at the employee's rate of remuneration on the date of dismissal.

(3) The compensation awarded to an employee whose dismissal is automatically unfair must be just and equitable in all the circumstances, but not more than the equivalent of 24 months' remuneration calculated at the employee's rate of remuneration on the date of dismissal.

195. Compensation is in addition to any other amount

An order or award of compensation made in terms of this Chapter is in addition to, and not a substitute for, any other amount to which the employee is entitled in terms of any law, collective agreement or contract of employment.

196. Severance pay

(1) An employer must pay an employee who dismissed for reasons based on the employer's operational requirements severance pay equal to at least one week's remuneration for each completed year of continuous service

with that employer, unless the employer has been exempted from the provisions of this subsection.

(2) The Minister, after consulting NEDLAC and the Public Service

Co-ordinating Bargaining Council, may vary the amount of severance pay in terms of subsection (1) by notice in the Government Gazette.

(3) An employee who unreasonably refuses to accept the employer's offer

^{of alternative employment
with that employer or any other employer is not}

entitled to severance pay in terms of subsection (1).

(4) The payment of severance pay in compliance with this section does not affect an employee's right to any other amount payable according to law.

(5) An employer or a category of employers may apply to the Minister for exemption from the provisions of subsection (1) as if the application is one in terms of the Basic Conditions of Employment Act and the Minister may grant an exemption as if it were an exemption granted in terms of that Act.

(6) If there is a dispute only about the entitlement to severance pay in terms of this section, the employee may refer the dispute in writing to-

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

(b) the Commission, if no council has

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

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

(9) If the dispute remains unresolved, the employee may refer it to arbitration.

(10) If the Labour Court is adjudicating a dispute about a dismissal based on the employer's operational requirements, the Court may inquire into and determine the amount of any severance pay to which the dismissed employee may be entitled and the Court may make an order directing the employer to pay that amount.

197. Transfer of contract of employment

(1) A contract of employment may not be transferred from one employer (referred to as "the old employer") to another employer (referred to as "the new employer") without the employee's consent, unless-

(a) the whole or any part of a business, trade or undertaking is transferred by the old employer as a going concern; or

(b) the whole or a part of a business, trade or undertaking is transferred as a going concern-

(i) if the old employer is insolvent and being wound up or is being sequestrated; or

(ii) because a scheme of arrangement or compromise is being entered into to avoid winding-up or sequestration for reasons of insolvency.

(2) (a) If a business, trade or undertaking is transferred in the

circumstances referred to in subsection (1)(a), unless otherwise agreed, all the rights and obligations between the old employer and each employee at the time of the transfer continue in force as if they were rights and obligations between the new employer and each employee and, anything done before the transfer by or in relation to the old employer will be considered to have been done by or in relation to the new employer.

(b) If a business is transferred in the circumstances envisaged by subsection (1)(b), unless otherwise agreed, the contracts of all employees that were in existence immediately before the old employer's winding-up or sequestration transfer automatically to the new employer, but all the rights and obligations between the old employer and each employee at the time of the transfer remain rights and obligations between the old employer and each employee, and anything done before the transfer by the old employer in respect of each employee will be considered to have been done by the old employer.

(3) An agreement contemplated in subsection (2) must be concluded with the appropriate person or body referred to in section 189(l).

(4) A transfer referred to in subsection (1) does not interrupt the employee's continuity of employment. That employment continues with the new employer as if with the old employer.

(5) The provisions of this section do not transfer or otherwise affect the liability of any person to be prosecuted for, convicted of, and sentenced for, any offence.

CHAPTER IX GENERAL PROVISIONS

198. Temporary Employment Services

(1) In this section, "temporary employment service" means any person who, for reward, procures for or provides to a client other persons-

(a) who render services to, or perform work for, the client; and

(b) who are remunerated by the temporary employment service.

(2) For the purposes of this Act, a person whose services have been procured for or provided to a client by a temporary employment service is the employee of that temporary employment service, and the temporary employment service is that person's employer.

(3) Despite subsections (1) and (2), a person who is an independent contractor is not an employee of a temporary employment service, nor is the temporary employment service the employer of that person.

(4) The temporary employment service and the client are jointly and severally liable if the temporary employment service, in respect of any of its employees, contravenes-

(a) a collective agreement concluded in a bargaining council that regulates terms and conditions of employment;

(b) a binding arbitration award that regulates terms and conditions of employment;

(c) the Basic Conditions o Employment Act; or

(d) a determination made in terms of the Wage Act.

(5) Two or more bargaining councils may agree to bind the following

persons, if they fall within the combined registered scope of those bargaining councils, to a collective agreement concluded in any one of them-

(a) temporary employment service;

(b) a person employed by a temporary employment service; and

(c) a temporary employment service client.

(6) An agreement concluded in terms of subsection (5) is binding only if the collective agreement has been extended to non-parties within the registered scope of the bargaining council.

(7) Two or more bargaining councils may agree to bind the following persons, who fall within their combined registered scope, to a collective agreement-

(a) temporary employment service;

(b) a person employed by a temporary employment service; and

(c) a temporary employment service's client. (8) An agreement concluded in terms of subsection (7) is binding only if- (a) each of the contracting bargaining councils has requested the ^{Minister to extend the agreement to non-parties falling within its} ^{registered scope;}

(b) the Minister is satisfied that the terms of the agreement are not substantially more onerous than those prevailing in the corresponding collective agreements concluded in the bargaining councils; and

(c) the Minister, by notice in the Government Gazette, has extended the agreement as requested by all the bargaining councils that are parties to the agreement.

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

(1) A contract of employment, whether concluded before or after the coming into operation of any applicable collective agreement or arbitration award, may not-

(a) permit an employee to be paid remuneration that is less than that prescribed by that collective agreement or arbitration award;

(b) permit an employee to be treated in a manner, or to be granted any benefit, that is less favourable than that prescribed by that collective agreement or arbitration award; or

(c) waive the application of any provision of that collective agreement or arbitration award.

(2) A provision in any contract that purports to permit or grant any payment, treatment, benefit, waiver or exclusion prohibited by subsection (1) is invalid.

200. Representation of employees or employers

(1) A registered trade union or registered employers' organisation may act in any one or more of the following capacities in any dispute to which any of its members is a party- (a) in its own interest;

(b) on behalf of any of its members;

(c) in the interest of any of its members.

(2) A registered trade union or a registered employers' organisation is entitled to be a party to any proceedings in terms of this Act if one or more of its members is a party to those proceedings.

201. Confidentiality

(1) A person commits an offence by disclosing any information relating to the financial or business affairs of any other person or any business, trade or undertaking if the information was acquired by the

first-mentioned person in the performance of any function or exercise of any power in terms of this Act, in any capacity, by or on behalf of-

(a) a council;

(b) any independent body established by a collective agreement or determination to grant exemptions from the provisions of the collective agreement or determination;

(c) the registrar;

(d) the Commission; and

(e) an accredited agency.

(2) Subsection (1) does not apply if the information was disclosed to enable a person to perform a function or exercise a power in terms of this Act.

(3) A person convicted of an offence in terms of this section may be sentenced to a fine to be determined by the court, or imprisonment.

202. Service of documents

(1) If a registered trade union or a registered employers' organisation acts on behalf of any of its members in a dispute, service on that trade union or employers' organisation of any document directed to those members in connection with that dispute, will be sufficient service on those members for the purposes of this Act.

(2) Service on the Office of the State Attorney of any legal process directed to the State in its capacity as an employer is service on the State for the purposes of this Act.

203. Codes of good practice

(1) NEDLAC may-

(a) prepare and issue codes of good practice; and

(b) change or replace any code of good practice.

(2) Any code of good practice, or any change to or replacement of a code of good practice, must be published in the Government Gazette.

(3) Any person interpreting or applying this Act must take into account any relevant code of good practice.

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

or determination made in terms of the Wage Act provides otherwise, every employer on whom the collective agreement, arbitration award, or determination is binding must-

(a) keep a copy of that collective agreement, arbitration award or determination available in the workplace at all times;

(b) make that copy available for inspection by any employee; and

(c) give a copy of that collective agreement, arbitration award or determination-

(i) to an employee who has paid the prescribed fee; and

(ii) free of charge, on request, to an employee who is a trade union representative or a member of a

^{workplace forum.}

205. Records to be kept by employer

(1) Every employer must keep the records that an employer is required to keep in compliance with any applicable-

(a) collective agreement; (b) arbitration award; ^{(c) determination made in terms of the Wage Act.}

(2) An employer who is required to keep records in terms of subsection

(1) must-

(a) retain those records in their original form or a reproduced form for a period of three years from the date of the event or end of the period to which they relate; and

(b) submit those records in their original form or a reproduced form in response to a demand made at any reasonable time, to any agent of a bargaining council, commissioner or any person whose functions in terms of this Act include the resolution of disputes.

(3) (a) An employer must keep a record of the prescribed details of any strike, lock-out or protest action involving its employees.

(b) An employer must submit those records in the prescribed manner to the registrar.

206. Effect of certain defects and irregularities

(1) Despite any provision in this Act or any other law, a defect does not invalidate-

(a) the constitution or the registration of any registered trade union, registered employers' organisation or council;

(b) any collective agreement or arbitration award that would otherwise be binding in terms of this Act;

(c) any act of a council; or

(d) any act of the director or a commissioner. (2) A defect referred to in subsection (1) means-

(a) a defect in, or omission from, the constitution of any registered trade union, registered employers' organisation or council;

(b) a vacancy in the membership of any council; or

(c) any irregularity in the appointment or election of- (i) a representative to a council; (ii) an alternate to any representative to a council;

(iii) a chairperson or any other person presiding over any meeting of a council or a committee of a council; or

(iv) the director or a commissioner.

207. Ministers empowered to add and change to Schedules

(1) The Minister, after consulting NEDLAC, by notice in the Government Gazette, may add to, change or replace any Schedule to this Act, including a Schedule which at any time may have been added to this Act but excluding Schedules I and 7.

(2) The Minister for the Public Service and Administration, after consulting NEDLAC and the Public Service Co-ordinating Bargaining Council, by notice in the Government Gazette, may add to, change or replace Schedule 1.

(3) The Minister, after consulting NEDLAC, by notice in the Government Gazette, may add to this Act a further Schedule containing a model constitution for a statutory council.

(4) The Minister for the Public Service and Administration, after consulting the Public Service Co-ordinating Bargaining Council, by notice in the Government Gazette, may add to this Act a further schedule regulating the establishment and the constitutions of workplace forums in the public service.

(5) The Minister may add to, change or replace any page header or footnote.

(6) The Minister, in consultation with the Minister of Trade and Industry and after consulting NEDLAC, by notice in the Government Gazette, may add to this Act a further schedule listing institutions referred to in section 32(4).

208. Regulations

The Minister, after consulting NEDLAC and when appropriate, the Commission, may make regulations not inconsistent with this Act relating to-

(a) any matter that in terms of this Act may or must be prescribed; and

(b) any matter that the Minister considers necessary or expedient to prescribe or have governed by regulation in order to achieve the primary objects of this Act.

209. This Act binds the State

This Act binds the State.

210. Application of Act when in conflict with other laws

If any conflict, relating to the matters dealt with in this Act, arises between this Act and the provisions of any other law save the Constitution or any Act expressly amending this Act, the provisions of this Act will prevail.

211. Amendment of laws

Each of the laws referred to in items I and 2 of Schedule 5 is hereby amended to the extent specified in those items.

212. Repeal of laws, and transitional arrangements

(1) Each of the laws referred to in the first two columns of Schedule 6 is hereby repealed to the extent specified opposite that law in the third column of that Schedule.

(2) The repeal of those laws does not affect any transitional arrangements made in Schedule 7.

(3) The transitional arrangements in Schedule 7 must be read and applied as substantive provisions of this Act.

213. Definitions In this Act, unless the context otherwise indicates" area" includes any number of areas, whether or not contiguous;

" auditor" means any person who is registered to practise in the Republic as a public accountant and auditor;

"bargaining council" means a bargaining council referred to in section 27 and includes, in relation to the public service, the bargaining councils referred to in section 35;

"Basic Conditions of Employment Act" means the Basic Conditions of Employment Act, 1983 (Act No. 3 of 1983);

" code of good practice" means a code of practice issued by NEDLAC in terms of section 203(1) of this Act;

"collective agreement" means a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand-

(a) one or more employers;

(b) one or more registered employers' organisations; or

(c) one or more employers and one or more registered employers' organisations; " council" includes a bargaining council and a statutory council;

(d)"director" means the director of the Commission appointed in terms of section II 8(1) and includes any acting director appointed in terms of section 119; "dismissal" means dismissal as defined in section 186;

(e)"dispute" includes an alleged dispute;

(f) " employee "54 means(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and (b) any other person who in any manner assists in carrying on or conducting the business of an employer, and "employed" and "employment" have meanings corresponding to that of " employee";

" employers' organisation" means any number of employers associated together for the purpose, whether by itself or with other purposes, of regulating relations between employers and employees or trade unions;

" essential service" means(a) a service the interruption of which endangers the life, personal safety or health of the whole or any part of the population;

(b) the Parliamentary service;

(c) the South African Police Services;

"issue in dispute", in relation to a strike or lock-out, means the demand, the grievance, or the dispute that forms the subject matter of the strike or lock-out;

54. "Employee" is given a different and specific meaning in section 78

in Chapter V. "legal practitioner" means any person admitted to practise as an advocate or an attorney in the Republic;

"lock-out" means the exclusion by an employer of employees from the employer's workplace, for the purpose of compelling the employees to accept a demand in respect of any matter of mutual interest between employer and employee, whether or not the employer breaches those employees' contracts of employment in the course of or for the purpose of that exclusion;

"Minister" means the Minister of Labour;

"NEDLAC" means the National Economic Development and Labour Council established by section 2 of the National Economic, Development and Labour Council Act, 1994 (Act No. 35 of 1994);

" office-bearer" means a person who holds office in a trade union, employers' organisation, federation of trade unions, federation of employers' organisations or council and who is not an official;

" official", in relation to a trade union, employers' organisation, federation of trade unions or federation of employers' organisations means a person employed as the secretary, assistant secretary or organiser of a trade union, employers' organisation or federation, or in any other prescribed capacity, whether or not that person is employed in a full-time capacity. And, in relation to a council means a person employed by a council as secretary or in any other prescribed capacity, whether or not that person is employed in a full-time capacity;

" operational requirements" means requirements based on the economic, technological, structural or similar needs of an employer;

" prescribed" means prescribed from time to time by regulation in terms of section 208;

"protest action" means the partial or complete concerted refusal to work, or the retardation or obstruction of work, for the purpose of promoting or defending the socioeconomic interests of workers, but not for a purpose referred to in the definition of strike;

"public service" means the public service referred to in section l(l) of the Public Service Act, 1994 (promulgated by Proclamation No. 103 of

1994), and includes any organisational component contemplated in section

7(4) of that Act and specified in the first column of Schedule 2 to that

Act, but excluding-

(a) the members of the National Defence Force; (b) the National Intelligence Agency; and

^{(c) the South African
Secret Service.}

" registered scope" means-

(a) in the case of the Public Service Co-ordinating Bargaining

^{Council, the public
service as a whole, subject to section 36;}

(b) in the case of bargaining councils established for sectors in the public service, the sector designated by the Public Service

Co-ordinating Bargaining Council in terms of section 37(1) or by the

^{President in terms of
section 37(2) or (4);}

"registrar" means the registrar of labour relations appointed in terms of section 108 and includes-

(a) any deputy registrar appointed in terms of that section when acting on the direction or under a general or special delegation of the registrar; and

(b) any acting registrar appointed in terms of that section;

" remuneration" means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State, and "remunerate" has a corresponding meaning;

"Republic"-

(a) when used to refer to the State as a constitutional entity, means the Republic of South Africa as defined in section I of the Constitution; and

(b) when used in the territorial sense, means the national territory of the Republic as defined in section I of the Constitution;

" sector" means, subject to section 37, an industry or a service; " serve " means to send by registered post, telegram, telex,

telefax or to deliver by hand;

" statutory council" means a council established in terms of Part E of Chapter 111;

" strike" means the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to "work" in this definition includes overtime work, whether it is voluntary or compulsory; "this Act" includes the section numbers, the Schedules, except Schedules 4 and 8, and any regulations made in terms of section 208, but does not include the page headers, the headings or footnotes;

"trade union" means an association of employees whose principal purpose is to regulate relations between employees and employers, including any employers' organisations;

"trade union representative" means a member of a trade union who is elected to represent employees in a workplace-,

"Wage Act" means the Wage Act, 1957 (Act No. 5 of 1957);

" working hours" means those hours during which an employee is obliged to work;

" workplace"-

(a) in relation to a sector in the public service in respect of which a bargaining council has been established in terms of section 37 has the meaning that the responsible Minister determines after having consulted the bargaining council;

(b) in relation to the remainder of the public service, has the meaning that the Minister for the Public Service and Administration determines after having consulted the Public Service Co-ordinating Bargaining Council;

(c) in all other instances means the place or places where the employees of an employer work. If an employer carries on or conducts two or more operations that are independent of one another by reason of their size, function or organisation, the place or places where employees work in connection with each independent operation, constitutes the workplace for that operation; and

" workplace forum" means a workplace forum established in terms of

Chapter V.

214. Short title and commencement

(1) This Act is called the Labour Relations Act, 1995.

(2) This Act comes into operation on a date fixed by the President by proclamation in the Government Gazette.

SCHEDULE I

ESTABLISHMENT OF BARGAINING COUNCILS FOR PUBLIC SERVICE

1. Definitions for this Schedule In this Schedule, unless the context otherwise indicates"Education Labour Relations Act" means the Education Labour Relations Act, 1993 (Act No. 146 of 1993);

"Education Labour Relations Council" means the council established by section 6(1) of the Education Labour Relations Act;

"National Negotiating Forum" means the National Negotiating Forum established for the South African Police Service by the South African Police Service Labour Relations Regulations, 1995;

"Public Service Bargaining Council" means the council referred to in section 5(l) of the Public Service Labour Relations Act;

"Public Service Labour Relations Act" means the Public Service Labour

Relations Act, 1994 (promulgated by Proclamation No. 105 of 1994).

2. Establishment of Public Service Co-ordinating Bargaining Council (1) As soon as practicable after the commencement of this Act, the

Commission, by notice in the Government Gazette, must invite the employee and employer representatives in the Education Labour Relations Council, the National Negotiating Forum and the central chamber of the Public Service Bargaining Council to attend a meeting, with a view to those representatives agreeing on a constitution for the Public Service

Co-ordinating Bargaining Council.

(2) The Commission must appoint a commissioner to chair the meeting and facilitate the conclusion of an agreement on a constitution that meets the requirements of section 30, read with the changes required by the context.

(3) The parties to the Education Labour Relations Council, the National Negotiating Forum and the central chamber of the Public Service Bargaining Council will be the founding parties to the Public Service

Co-ordinating Bargaining Council.

(4) If an agreement is concluded and the registrar is satisfied that the constitution meets the requirements of section 30, the registrar must register the Public Service Co-ordinating Bargaining Council by entering its name in the register of councils.

(5) If no agreement is concluded on a constitution, the registrar must- (a) determine the constitution for the Public Service Co-ordinating

Bargaining Council;

(b) register the Public Service Co-ordinating Bargaining Council by entering its name in the register of councils; and

(c) certify the constitution as the constitution of the Public Service Co-ordinating Bargaining Council.

(6) After registering the Public Service Co-ordinating Bargaining

Council, the registrar must-

(a) issue a certificate of registration that must specify the registered scope of the Public Services Co-ordinating Bargaining Council; and

(b) send the certificate and a certified copy of the constitution to the Public Service Co-ordinating Bargaining Council.

3. Establishment of bargaining councils in sectors

(1) The departmental and provincial chambers of the Public Service Bargaining Council are deemed to be bargaining councils established in terms of section 37(3)(a) of this Act, subject to any designation in terms of section 37(l) of this Act.

(2) The Education Labour Relations Council is deemed to be a bargaining council established in terms of section 37(3)(b) of this Act.

(3) The National Negotiating Forum is deemed to be a bargaining council established for a sector designated in terms of section 37(2).

(4) If the President designates a sector in terms of section 37(2), the President must inform the Commission and instruct it to convene a meeting of the representatives of the registered trade unions with members

employed in the sector.

(5) The Commission must publish a notice in the Government Gazette inviting registered trade unions with members employed in the sector to attend the meeting.

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

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

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

(7) If agreement is concluded, the registrar must-

(a) admit the registered trade unions as parties to the bargaining council; and

(b) if satisfied that the constitution meets the requirements of section 30, register the bargaining council by entering its name in the register of councils.

(8) If no agreement is concluded on-

(a) the registered trade unions to be admitted, the Commission must decide which trade unions should be admitted;

(b) a constitution, the registrar, in accordance with the decisions made by the Commission in paragraph (a), must determine a constitution that meets the requirements of section 30, read with the changes required by the context.

(9) The registrar must register the bargaining council for the sector by entering its name in the register of councils.

(10) After registering the bargaining council, the registrar must- (a) issue a certificate of registration that must specify the

registered scope of the bargaining council; and

(b) send the certificate and a certified copy of the constitution to the bargaining council.

SCHEDULE 2 GUIDELINES FOR CONSTITUTION OF WORKPLACE FORUM

1. Introduction

(1) This Schedule contains guidelines for the constitution of a workplace, forum. It Is intended to guide representative trade unions that wish to establish a workplace forum, employers and commissioners.

(2) This Act places the highest value on the establishment of workplace forums by agreement between a representative trade union and an employer. The role of the commissioner is to facilitate an agreement establishing the structure and functions of a workplace forum. If agreement is not possible, either in whole or in part, the commissioner must refer to this Schedule, using its guidelines in a manner that best suits the particular workplace involved.

(3) For convenience, the guidelines follow the sequence of the paragraphs in section 82 of this Act.

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

The formula to determine the number of seats in the workplace forum should reflect the size, nature, occupational structure and physical location of the workplace. A guideline may be-

(a) in a workplace in which 100 to 200 employees are employed, five members;

(b) in a workplace in which 201 to 600 employees are employed, eight members;

(c) in a workplace in which 601 to 1000 employees are employed, IO members;

(d) in a workplace in which more than 1000 employees are employed, 10 members for the first 1000 employees, plus an additional member for every additional 500 employees, up to a maximum of 20 members.

3. Distribution of seats to reflect occupational structure (section

82(1)(b))

The formula to determine the distribution of seats in the workplace forum must reflect the I occupational structure of the workplace.

Example:

There are 300 employees in a workplace. The occupational structure is as follows: 200 employees are manual employees; 50 are administrative and clerical employees; and 50 are supervisory, managerial and technical employees. The six seats may be distributed as follows4 seats for members to be elected from candidates nominated from among the manual employees

I seat for members to be elected from candidates nominated from among the administrative and clerical employees

I seat for members to be elected from candidates nominated from among the supervisory, managerial and technical employees.

4. Elections (section 82(1)(c), (d), (g), (h), (i) and (j)) (1) The constitution must include provisions concerning the appointment of an election officer.

Example:

(a) Every election or by-election in relation to a workplace forum must be conducted by an election officer appointed by agreement between the representative trade union and the employer.

(b) If the trade union and the employer cannot agree, the trade union may apply to the Commission to appoint an election officer.

(c) The Commission must appoint an election officer to conduct a by-election only if it is satisfied that the workplace forum cannot function adequately without a by-election.

(2) The constitution must set out what the election officer should do and the procedure for an election.

Example: (a) Thirty days before each election of members of the workplace forum, the election officer must-

(i) prepare a list of all employees in the workplace; and

(ii) call for nominations for members of the workplace, forum.

(b) Any employee may be nominated as a candidate for election as a member of the workplace forum by-

(i) any registered trade union with members employed in the work- place;

(ii) a petition signed by not less than 20 per cent of the employees in the workplace or 100 employees, whichever number of employees is the smaller.

(c) Any employee who is a member or has previously served as a member of a workplace forum is eligible for re-election.

(d) Fourteen days before each election of members of the workplace forum, the election officer must-

(i) confirm that the nominated candidates qualify for election;

(ii) publish a list of all qualified candidates who have been properly nominated; and

(iii) prepare a ballot for the election, listing the nominated candidates in alphabetical order by surname.

(e) Voting must be by secret ballot.

Every employee is entitled to vote in the election of the workplace forum during working hours at the employer's premises.

(g) Every employee in the workplace is entitled to cast a number of votes equal to the number of members to be elected to the workplace forum.

(h) Every employee may cast one or more of those votes in favour of any candidate.

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

(1) The constitution must provide that the members of a workplace forum remain in office until the first meeting of the newly elected

workplace forum.

(2) The constitution must include provisions allowing the members to resign as well as provisions for the removal of members from office.

Example:

(a) A member of a workplace forum may resign by giving written notice to the chairperson.

(b) A member of a workplace forum must vacate that office- (i) when the member's resignation takes effect; (ii) if the member is promoted to senior managerial status; (iii) if the member is transferred from the workplace; (iv) if the member's employment is terminated;

(v) as a result of an award of a commissioner; or

(vi) if the representative trade union that nominated a member removes the member.

(c) The representative trade union, the employer, or the workplace forum may apply to the Commission to have a member of the workplace forum removed from office on the grounds of gross dereliction of the duties of office.

(d) Twenty percent of the employees in the workplace may submit a signed petition to the Commission applying for the removal from office of a member of the workplace forum on the grounds of gross dereliction of the duties of office.

(e) An application to remove a member of a workplace forum from office must be decided by arbitration under the auspices of the Commission.

A by-election to fill any vacancy in the workplace forum must be conducted by an election officer.

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

The constitution must include provisions governing meetings of the workplace forum.

Example:

(a) The first meeting of a newly elected workplace forum must be convened by the election officer as soon as practicable after the election.

(b) At that meeting the members of the workplace forum must elect from among their number a chairperson and a deputy chairperson.

(c) The workplace forum must meet whenever necessary, but at least once a month.

(d) A quorum of the workplace forum must be a majority of the members of the workplace forum holding office at any time.

(e) A decision of the majority of the members of the workplace forum present at the meeting must be the decision of the workplace forum.

The meetings between members of the workplace forum and the employees should be at least four times a year.

Example 1:

In a workplace that is a single place, the meetings with the employees should be with all the members of the workplace forum.

Example 2:

In a workplace that is geographically dispersed, the meetings with the employees need not be with all the members of the workplace forum, but

with one or more members of the workplace forum.

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

The constitution must include provisions governing time off for members to perform their functions.

Example:

(a) A member of a workplace forum is entitled to take reasonable time off during working hours with pay for the purpose of

(i) performing the functions and duties of a member; and

(ii) undergoing training relevant to the performance of those functions and duties.

(b) The right to time off is subject to conditions that are reasonable, so as to prevent the undue disruption of work.

(c) The costs associated with the training must be paid by the employer, if those costs are reasonable, having regard to the size and capabilities of the employer.

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

The constitution must require the employer to provide adequate facilities to the workplace forum to perform its functions.

Example:

(a) The employer must provide, at its cost-

(i) fees, facilities and materials that are necessary for the conduct of elections and by-elections of the workplace forum; and

(ii) administrative and secretarial facilities that are appropriate to enable the members of the workplace forum to perform their functions and duties.

(b) These facilities must include, but are not limited to, a room in which the workplace forum may meet and access to a telephone.

(c) The costs incurred by the employer in complying with the provisions of paragraphs (a) and (b) must be reasonable, having regard to the size and capabilities of the employer.

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

The constitution may provide for the use of experts. Example: ^{(a) A workplace forum may ask experts to assist it in the performance} of any of its functions.

(b) An expert must ensure that there is no conflict of interest between the assistance given to one workplace forum and another.

(c) An expert may attend any meeting of the workplace forum and, at its request, address any meetings of the workplace forum including a meeting with the employer or the employees. (d) An expert is entitled to any information to which the workplace forum is entitled and may inspect and copy any document.

10. Establishment of coordinating and subsidiary workplace forums

(section 82(2)(b))

(1) Where an employer carries on or conducts two or more operations that are independent of each other by reason of their size, function or organisation, the constitution may provide for the establishment of a coordinating workplace forum with jurisdiction over those matters mentioned in sections 84 and 86 that affect the employees generally and for the establishment of a subsidiary workplace forum in each of the workplaces with jurisdiction over those matters that affect only the employees in that workplace.

(2) Where the employer has a workplace that is geographically dispersed and there are matters that are of local interest rather than general interest, the constitution may establish a coordinating workplace forum with general jurisdiction and subsidiary workplace forums with local interest jurisdiction.

Example:

A bank with a head office may have many branches dispersed around the country.

If the branches are not regarded as separate workplaces, the bank may have one workplace forum for all its employees or the constitution may allow for the establishment of a coordinating workplace forum at head office level and in certain or all of the branches allow the establishment of subsidiary workplace forums that will deal with matters that affect only the employees in those branches.

SCHEDULE 3

COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION

1. Remuneration and allowances of members of governing body The Minister, after consulting the Minister of Finance, must determine the remuneration and allowances and any other terms and conditions of appointment of members of the governing body.

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

(1) A member of the governing body may resign by giving notice to the governing body.

(2) The Minister, acting on the advice of NEDLAC, may remove a member of the governing body from office for(a) serious misconduct;

(b) incapacity; or

(c) being absent from three consecutive meetings of the governing body without good cause or prior permission from the chairperson.

3. Vacancies in governing body

(1) A vacancy in the governing body exists whenever

(a) a member's term of office ends;

(b) a member's resignation takes effect; (c) a member is removed from office; or

(d) a member dies.

(2) The Minister must fill a vacancy in the governing body as soon as is practicable.

In the meantime, the Commission's proceedings and decisions continue to be valid.

(3) If a vacancy-

(a) is owing to the end of a member's term of office, the Minister may reappoint the member, or appoint another person nominated by NEDLAC in accordance with section 116(2) and (3);

(b) is owing to any other cause, the Minister must appoint another person nominated by NEDLAC in accordance with section 116(2) and (3) to replace the member and serve the unexpired portion of the replaced member's term of office.

4. Proceedings of governing body

(1) The governing body must determine procedures for its meetings.

(2) A quorum for a meeting of the governing body is three members of the governing body. The quorum must include-

(a) one member who was nominated by those voting members of NEDLAC who represent organised business;

(b) one member who was nominated by those voting members of NEDLAC who represent organised labour; and

(c) one member who was nominated by those voting members of NEDLAC ^{who represent the State.}

(3) Despite sub-item (2), a meeting of the governing body may be held in the absence of any member representing organised business or organised labour or the State, if those members have agreed to the meeting proceeding in the absence of that member and to the issues which may be dealt with in the absence of that member.

(4) If the chairperson is absent from a meeting of the governing body, the members present must elect one of themselves to preside at that meeting, and at that meeting that member may exercise or perform any function of the chairperson.

(5) A defect or error in the appointment of a member of the Commission does not affect the validity of the Commission's proceedings or decisions.

5. Director of Commission

(1) The director may resign by giving written notice to the governing body.

(2) The governing body may remove the director from office for- (a) serious misconduct; (b) incapacity;

(c) a material violation of the Commission's code of conduct; or

(d) being absent from three consecutive meetings of the governing body without good cause or prior permission from the chairperson.

(3) A vacancy in the office of director exists whenever- (a) the director reaches the age of 65; (b) the director's resignation takes effect;

(c) the governing body removes the director from office; or

(d) the director dies.

(4) The governing body must appoint a director in accordance with the provisions of section II 8 as soon as practicable after the office of the director becomes vacant.

6. Bank account The governing body must open and maintain an account in the name of the Commission with a bank registered in the Republic, or with another registered financial institution approved by the Minister of Finance and, subject to item 7, must

(a) deposit to that account any money that the Commission receives; and

(b) make all payments on behalf of the Commission from that account.

7. Investment of surplus money The governing body may resolve to invest any money that the Commission does not immediately require to meet current expenditure or contingencies

(a) on call or short-term deposit with any bank that meets the requirements stated in item 6;

(b) if the Minister, with the concurrence of the Minister of Finance, gives written approval of the duration and other terms of the investment, in an investment account with the Corporation for Public Deposits.

8. Accounting and auditing The Commission must, to the standards of generally accepted accounting practice, principles and procedures

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

(b) as soon as practicable after the end of each financial year, prepare financial statements, including at least a statement of income and expenditure for the previous financial year and a balance sheet showing its assets, liabilities and financial position as at the end of the previous financial year-, and

(c) each year, arrange for the Auditor-General to audit its books and records of account and its financial statements.

9. Annual report

(1) As soon as practicable after the end of each financial year, the Commission must provide the Minister with a report concerning the activities and the financial position of the Commission during the previous financial year.

(2) The Minister must table the Commission's annual report in Parliament within 14 days of receiving it from the Commission, but if Parliament is not in session at that time, the Minister must table the report within 14 days of the beginning of the next session of Parliament.

SCHEDULE 4

DISPUTE RESOLUTION: FLOW DIAGRAMS

This Schedule contains flow diagrams that provide guidelines to the procedures for the resolution of some of the more important disputes that may arise under this Act. This Schedule is not part of this Act. It

^{does not have the force
of law. The flow diagrams are intended only to}

provide assistance to those parties who may become involved in a dispute.

The flow diagrams do not indicate the rights that parties may have to seek urgent interim relief, nor do they indicate the right of review or appeal that parties have to the Labour Court or the Labour Appeal Court in certain cases. This Act sets out the circumstances in which these rights are available.

Awards and determinations by arbitrators are enforceable ultimately by the Labour Court.

FLOW DIAGRAM I

CHAPTER 11 (Section 9) FOOTNOTES:

1 . This procedure is relevant to the interpretation or application of Chapter II. For example, if an employer threatens to dismiss an employee unless the employee resigns from a trade union, that employee can enforce the rights conferred by this chapter in terms of this

Awards and determinations by arbitrators are enforceable ultimately by the Labour Court.

FLOW DIAGRAM I

CHAPTER 11 (Section 9) FOOTNOTES:

"(3) The Mines and Works Act, 1956 (Act No. 27 of 1956), the Wage Act,

1957 (Act No. 5 of 1957), the Manpower Training Act, 1981 (Act No. 56 of 1981) and the Labour Relations Act, 1995, as well as any matter regulated under any of them in respect of an employee, shall not be affected by this Act, but this Act shall apply in respect of any such employee in so far as a provision thereof provides for any matter which is not regulated by or under any of the said Acts in respect of such employee.".

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

Section 35 of the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993), is hereby amended-

(a) by the substitution for the words "Industrial court", wherever they occur in subsection (3), of the words "Labour Court"; and

(b) by the substitution for subsection (4) of the following subsection-

"(4) Any person who wishes to appeal in terms of subsection (3), shall within 60 days after the chief inspector's decision was given, lodge the appeal with the registrar of the Labour Court in accordance with the Labour Relations Act, 1995, and the rules of the Labour Conn. ".

SCHEDULE 6

LAWS REPEALED BY SECTION 212

Number and year of law Short title Extent of repeal

^{Act No.28
of 1956 Labour Relations Act, 1956 The whole}

Act

No.41

of

1959

Industrial
Act, 1959

Conciliation

Amendment

The

whole

Act

No.18

of

1961

Industrial
Act, 1961

Conciliation

Amendment

The

whole

Act

No.43

of

1966

Industrial
Act, 1966

Conciliation

Amendment

The

whole

Act

No.61

of

1966

Industrial
Amendment

Conciliation
Act, 1966

Further

The

whole


Act No.104 of 1967 Industrial Conciliation Amendment ^{Act, 1967 The whole}

Act No.21 of 1970 Industrial Conciliation Amendment Act, 1970 The whole

Act No.94 of 1979 Industrial Conciliation Amendment Act, 1979 The whole

Act No.95 of 1980 Industrial Conciliation Amendment

Act, 1980 The whole Act No.57 of 1981 Labour Relations Amendment Act, 1981 The whole Act No.51 of 1982 Labour Relations Amendment Act, 1982 The whole Act No. 2 of 1983 Labour Relations Amendment Act, 1983 The whole Act No.81 of 1984 Labour Relations Amendment Act, 1984 The whole Act No.83 of 1988 Labour Relations Amendment Act, 1988 The whole Act No. 9 of 1991 Labour Relations Amendment Act, 1991 The whole Act No.129 of 1993 General Law Third Amendment Act, 1993 Section 9 only Act No.146 of 1993 Education Labour Relations Act, 1993 The whole

Act No.147 of 1993 Agricultural Labour Act, 1993 Chapter I only

Act No.50 of 1994 Agricultural Labour Amendment Act, 1994 Section I only

Proclamation No.105 Public Service Labour Relations Act, 1994 The whole of 1994

Proclamation No.128 Education Labour Relations Act, Amendment The whole except of 1994 Proclamation, 1994 section 6 Proclamation No.134 Sections 1 and 2 only of 1994
South African Police Service ^{Labour Relations Regulations, The whole 1995}

SCHEDULE 7
TRANSITIONAL ARRANGEMENTS
PART A-DEFINITIONS FOR THIS SCHEDULE
Definitions for this Schedule In this Schedule, unless the context otherwise indicates"Agricultural Labour Act" means the Agricultural Labour Act, 1993 (Act No. 147 of 1993);
"Education Labour Relations Act" means the Education Labour Relations Act, 1993 (Act No. 146 of 1993);
"Education Labour Relations Council" means the council established by section 6(1) of the Education Labour Relations Act;
"Labour Relations Act" means the Labour Relations Act, 1956 (Act No. 28 of 1956);
"labour relations laws" means the Labour Relations Act, the Education Labour Relations Act, Chapter I of the Agricultural Labour Act and the Public Service Labour Relations Act;
"National Negotiating Forum" means the National Negotiating Forum established for the South African Police Service by the South African Police Service Labour Relations Regulations, 1995;
"pending" means pending immediately before this Act comes into operation; " public service" does not include the education sector; "Public Service Bargaining Council" means the bargaining council referred to in section 5(1) of the Public Service Labour Relations Act;
"Public Service Labour Relations Act" means the Public Service Labour Relations Act, 1994 (promulgated by Proclamation No. 105 of 1994);
"registrar" means the registrar of labour relations designated in terms of section 108; and
"trade union" includes an employee organisation.
PART B-UNFAIR LABOUR PRACTICES: 2. Residual unfair labour practices
: (1) For the purposes of this item, an unfair labour practice means any unfair act or omission that arises between an employer and an employee, involving-
(a) the unfair discrimination, either directly or indirectly, against an employee on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility;
(b) the unfair conduct of the employer relating to the promotion, demotion or training of an employee or relating to the provision of benefits to an employee;
(c) the unfair suspension of an employee or any other disciplinary action short of dismissal in respect of an employee;
(d) the failure or refusal of an employer to reinstate or re-employ a former employee in terms of any agreement.
: (2) For the purposes of sub-item (1)(a)-
(a) "employee" includes an applicant for employment;
(b) an employer is not prevented from adopting or implementing employment policies and practices that are designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms; and
(c) any discrimination based on an inherent requirement of the particular does not constitute unfair discrimination.
: 3. Disputes about unfair labour practices55
: (1) Any party may refer a dispute about an alleged unfair labour practice in writing to-
(a) a council, if the parties to the dispute fall within the registered scope of that council; or
(b) the Commission, if no council has jurisdiction.
: (2) The party who refers the dispute must satisfy the council or the Commission that a copy of the referral has been served on all the other parties to the dispute.
: (3) The council or the Commission must attempt to resolve the dispute through conciliation.
: (4) If the dispute remains unresolved-
(a) any party to the dispute, if the dispute is about an act or omission referred to in item 2(1)(a), may refer the dispute to the Labour Court for adjudication;
(b) any party to the dispute, if the dispute is about an act or omission referred

55. See flow diagram No. 14 in Schedule 4. to in item 2(1)(b), (c) or

(d), may request that the dispute be resolved through arbitration.

4. Powers of Labour Court and Commission

(1) The Labour Court has the power to determine any dispute that has been referred to it in terms of item 3 on terms it deems reasonable,

including, but not limited to, the ordering of reinstatement or compensation.

(2) The arbitrator has the power to determine any dispute that has been referred to it in terms of item 3 on reasonable terms.

PART C-PROVISIONS CONCERNING EXISTING TRADE UNIONS, EMPLOYERS' ORGANISATIONS, INDUSTRIAL COUNCILS AND CONCILIATION BOARDS

5. Existing registered trade unions and employers' organisations

(1) A trade union or employers' organisation registered in terms of the labour relations laws immediately before the commencement of this Act is deemed to be a registered trade union or registered employers' organisation under this Act and continues to be a body corporate.

(2) As soon as practicable after the commencement of this Act, the registrar must enter-

(a) the name of the trade union in the register of trade unions; (b) the name of the employers' organisation in the register of

employers' organisations.

(3) A trade union or employers' organisation whose name has been entered in the appropriate register must be issued with a new certificate of registration.

(4) If any provision of the constitution of the trade union or employers' organisation does not comply with the requirements of section 95, the registrar may direct that trade union or employers' organisation, in writing, to rectify its constitution and submit it to the registrar

within a period specified in the direction, which period may not be shorter than three months.

(5) If a trade union or employers' organisation falls to comply with a direction issued to it in terms of sub-item (4), the registrar must notify the trade union or employers' organisation that cancellation of

its registration is being considered because of the failure, and give the trade union or employers' organisation an opportunity to show cause why its registration should not be cancelled within 30 days of the notice.

(6) If, when the 30-day period expires, the relevant trade union or employers' organisation has not shown cause why its registration should not be cancelled, the registrar must cancel the registration of that trade union or employers' organisation by removing its name from the appropriate register or take other lesser steps that are appropriate and not inconsistent with this Act.

(7) The registrar must notify the relevant trade union or employers' organisation whether the registration of the trade union or employers' organisation has been cancelled.

(8) Cancellation in terms of subitem (6) takes effect-

(a) if the trade union or the employers' organisation has failed, within the time contemplated in section 111 (3), to appeal to the Labour Court against the cancellation, when that period expires; or

(b) if the trade union or the employers' organisation has lodged an appeal, when the decision of the registrar has been confirmed by the Labour Court.

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

(1) Any pending application in terms of the labour relations laws for the registration, variation of scope of registration or alteration of the constitution or name of a trade union or an employers' organisation must be dealt with by the registrar as if the application had been made in terms of this Act.

(2) The registrar appointed in terms of the Public Service Labour Relations Act and the secretary of the Education Labour Relations Council appointed in terms of the Education Labour Relations Act must forward any pending application referred to in sub-item (1) to the registrar.

(3) In any pending appeal in terms of section 16 of the Labour Relations Act or in terms of section I I of the Education Labour Relations Act or in terms of section I I of the Public Service Labour Relations Act, the

^{Minister or the registrar
of the industrial court or the registrar of the}

Supreme Court, as the case may be, must refer the matter back to the registrar who must deal with the application as if it were an application made in terms of this Act.

(4) When dealing with any application referred to in sub-item (1) or (2), the registrar-

(a) may condone any technical non-compliance with the provisions of this Act; and

(b) may require the applicant to amend its application within 60 days in order to comply with the provisions of this Act.

7. Industrial councils

(1) An industrial council registered in terms of the Labour Relations Act immediately before the commencement of this Act is deemed to be a bargaining council under this Act and continues to be a body corporate.

(2) As soon as practicable after the commencement of this Act, the registrar must enter the name of the bargaining council in the register of councils.

(3) A bargaining council whose name has been entered in the register of councils must be issued with a certificate of registration.

(4) If any provision of the constitution of a bargaining council does not comply with the requirements of section 30, the registrar may direct the bargaining council, in writing, to rectify its constitution and submit it to the registrar within a period specified in the direction, which period may not be shorter than three months.

(5) If a bargaining council fails to comply with a direction issued to it in terms of sub-item (4), the registrar must notify the bargaining

council that cancellation of its registration is being considered because of the failure, and give the bargaining council an opportunity to show cause why its registration should not be cancelled within 30 days of the notice.

(6) If, when the 30-day period expires, the bargaining council has not

shown cause why its registration should not be cancelled, the registrar must cancel the registration of that bargaining council by removing its name from the register of councils or take other lesser steps that are appropriate and not inconsistent with this Act.

(7) The registrar must notify the bargaining council whether the registration of the bargaining council has been cancelled.

(8) Cancellation in terms of sub-item (6) takes effect-

(a) if the bargaining council has failed, within the time contemplated in section 111(3), to appeal to the Labour Court against the cancellation, when that period expires; or

(b) if the bargaining council has lodged an appeal, when the decision of the registrar has been confirmed by the Labour Court.

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

(1) Any pending application for the registration or the variation of the scope of registration of an industrial council in terms of the Labour Relations Act must be dealt with as if it were an application made in terms of this Act.

(2) In any pending appeal in terms of section 16 of the Labour Relations Act against the refusal to register an industrial council, the Minister or the registrar of the Supreme Court must refer the matter to the registrar of labour relations who must consider the application anew as if it were an application for registration made in terms of this Act.

(3) When dealing with the application referred to in sub-item (1) or (2), the registrar may-

(a) require the applicant to amend its application within 60 days in order to comply with the provisions of this Act; and

(b) condone technical non-compliance with the provisions of this Act.

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

The provisions in item 6 apply, read with the changes required by the context, to any pending application for the alteration of the constitution or the name of an industrial council in terms of the Labour Relations Act.

10. Pending applications for admission of parties to industrial councils (1) Any pending application for admission of a party to an industrial council in terms of section 21 A of the Labour Relations Act must be

dealt with by the industrial council as if it were an application made in terms of this act (2) Any pending appeal before the industrial court against a decision of an industrial I] in terms of section 21 A of the Labour Relations Act must be with by council in the industrial

^{court as if the
application had been made for admission as a party to a}

bargaining council in terms of this Act.

(3) An appeal against a decision of an industrial council as contemplated in section 21 A of the Labour Relations Act may, despite the repeal of that Act, be instituted after the commencement of this Act, and must be heard by the Labour Court and dealt with as if the application for admission had been made in terms of this Act.

11. Pending applications to wind up and cancel registration of trade

unions, employers' organisations and industrial councils

Any pending application to wind up or to cancel the registration of a trade union, employers' organisation or industrial council registered in terms of any labour relations law must be dealt with by the registrar as if the labour relations laws had not been repealed.

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

(1) Any agreement promulgated in terms of section 48, and any award made in terms of section 50, of the Labour Relations Act and in force immediately before the commencement of this Act remains in force for a period of 18 months after the commencement of this Act or until the

expiry of that agreement, whichever is the shorter period, as if that Act had not been repealed.

(2) An agreement promulgated in terms of section 12 of the Education Labour Relations Act and in force immediately before the commencement of this Act remains in force for a period of 18 months after the

commencement of this Act or until the expiry of that agreement, whichever is the shorter period, as if the provisions of that Act had not been repealed.

(3) Despite the provisions of sub-item (1), an agreement referred to in section 24(l)(x) of the Labour Relations Act that is in force immediately before the commencement of this Act will be deemed to be a closed shop agreement concluded in compliance with section 26 of this Act except

^that-

(a) the requirements in section 26(3)(d) and section 98(2)(b)(ii) become applicable at the commencement of the next financial year of the trade union party to the agreement; and

(b) the commencement date of the closed shop agreement shall be deemed to be the commencement date of this Act.

(4) Any pending request for the promulgation of an agreement in terms of section 48 of the Labour Relations Act must be dealt with as if the Labour Relations Act had not been repealed.

(5) Any request made before the expiry of six months after the commencement of this Act for the promulgation of an agreement entered into before the commencement of this Act must be dealt with as if the Labour Relations Act had not been repealed.

(6) Any pending application for an exemption from an agreement promulgated in terms of section 48 of the Labour Relations Act must be dealt with as if the Labour Relations Act had not been repealed.

13. Existing agreements including recognition agreements

(1) For the purposes of this section, an agreement- (a) includes a recognition agreement; (b) excludes an agreement promulgated in terms of section 48 of the Labour Relations Act or section 12 of the Education Labour Relations Act;

(c) means an agreement about terms and conditions of employment or any other matter of mutual interest entered into between one or more registered trade unions, on the one hand, and on the other hand- (i) one or more employers;

(ii) one or more registered employers' organisations; or

(iii) one or more employers and one or more registered employers' organisations.

(2) Any agreement that was in force immediately before the commencement of this Act is deemed to be a collective agreement concluded in terms of this Act.

(3) Any registered trade union that is party to an agreement referred to in sub-items (1) and (2) in terms of which that trade union was recognised for the purposes of collective bargaining is entitled to the organisational rights conferred by sections I I to 16 of Chapter III and in respect of employees that it represents in terms of the agreement, for so long as the trade union remains recognised in terms of the agreement as the collective bargaining agent of those employees.

(4) If the parties to an agreement referred to in subsection (1) or (2) have not provided for a procedure to resolve any dispute about the interpretation or application of the agreement as contemplated in section 24(l), the parties to the agreement must attempt to agree a procedure as soon as practicable after the commencement of this Act.

(5) An existing non-statutory agency shop or closed shop agreement is not binding unless the agreement complies with the provisions of sections 25 or 26 of this Act respectively. This provision becomes effective 180 days after the commencement of this Act.

PART D-MATTERS CONCERNING PUBLIC SERVICE

14. Public Service Bargaining Council

(1) The Public Service Bargaining Council will continue to exist, subject to item 20.

(2) The departmental and provincial chambers of the Public Service ^{Bargaining Council will continue to exist, subject to item 20.}

(3) Within 30 days after the commencement of this Act, the chambers of the Public Service Bargaining Council must furnish the registrar with copies of their constitutions signed by their authorised representatives.

(4) The constitutions of the chambers of the Public Service Bargaining Council, are deemed to be in compliance with section 30. However, where any provision of the constitution of a chamber does not comply with the requirements of section 30, the registrar may direct the chamber to rectify its constitution and re-submit the rectified constitution within the period specified in the direction, which period may not be shorter than three months.

(5) If a chamber fails to comply with a direction issued to it in terms of sub-item (5), the registrar must-

(a) determine the amendments to the constitution in order to meet the requirements of section 30; and

(b) send a certified copy of the constitution to the chamber.

(6) A chamber of the Public Service Bargaining Council must deal with any pending application for admission of a party to it in terms of section 10 of the Public Service Labour Relations Act as if the application had been made in terms of this Act.

(7) Any pending appeal before the industrial court or an arbitrator against a decision of the Public Service Bargaining Council in terms of section 10 of the Public Service Labour Relations Act must, despite the repeal of any of the labour relations laws, be dealt with by the industrial court or arbitrator as if the application had been made in terms of this Act.

(8) Despite the repeal of the Public Service Labour Relations Act, an appeal in terms of section 10 of that Act against a decision of a chamber of the Public Service Bargaining Council may be instituted after the commencement of this Act and must be heard by the Labour Court and dealt with as if the application had been made in terms of this Act.

15. Collective agreements in the public service

The following provisions, read with the changes required by the context, of the Public Service Labour Relations Act, despite the repeal of that Act, will have the effect and status of a collective agreement binding on the State, the parties to the chambers of the Public Service Bargaining Council and all employees in the public service-

(a) section I for the purposes of this item unless the context otherwise indicates;

(b) section 4(10);

(c) section 5(2), (3), (4)(a) and (5); (d) section 7; (e) section 8, except that the reference to section 5(l) should be a reference to item 14(l);

(f) section 9(3);

(g) section 10(4) and (5); (h) section 12; (i) section 13, except that the reference to agreements should be a reference to collective agreements including the collective agreement contemplated in this item;

(j) sections 14, 15 and 16(2);

(k) section 17, except that the following subsection must be substituted for subsection (4)(b)- "If the application of a trade union for recognition is refused, the trade union, within 90 days of the notice of the refusal, may refer the dispute to arbitration."; and

(l) section 18, except that-

(i) the following subsection must be substituted for sub- section (10)(a)- "An employee who or the employee organisation which in terms of subsection (1) has declared a dispute, requested that a conciliation board be established and submitted the completed prescribed form, may refer the dispute to arbitration or to the ^{Labour Court in terms of the provisions of this Act and, in respect} of a dispute not contemplated by this Act, to any other court if-

(i) a meeting of a conciliation board is not convened as contemplated in subsection (3); (ii) the head of department concerned falls to request the appointment of a chairperson in terms of subsection (5);

(iii) where applicable, the Commission fails to appoint a chairperson of the conciliation board in terms of subsection (5);

(iv) the parties involved in the conciliation board have failed to agree to extend the period of office of the conciliation board in terms of subsection (7) until a settlement is reached;

(v) the conciliation board does not succeed in settling the dispute within the period contemplated in subsection (7); or

(vi) the parties to the dispute agree that they will not be able to settle the dispute and submit written proof thereof to the Commission or relevant court."; and

(ii) any reference to the Department of Labour should be a reference to the Commission.

16. Education Labour Relations Council

(1) The Education Labour Relations Council will continue to exist, subject to item 20.

(2) The registered scope of the Education Labour Relations Council is the State and those employees in respect of which the Educators' Employment Act, 1994 (Proclamation No. 138 of 1994), applies.

(3) Within 30 days after the commencement of this Act, the Education Labour Relations Council must furnish the registrar with a copy of its constitution signed by its authorised representatives, and with the other information or documentation.

(4) The constitution agreed on between the parties to the Education Labour Relations Council is deemed to be in compliance with this Act: However, where any provision of the constitution does not comply with the requirements of section 30, the registrar may direct the Council to rectify its constitution and re-submit the rectified constitution within the period specified in the direction, which period may not be shorter than three months.

(5) If the Education Labour Relations Council fails to comply with a direction issued to It in terms of sub-item (5), the registrar must-

(a) determine the amendments to the constitution in order to meet the requirements of section 30; and

(b) send a certified copy of the constitution to the Council.

(6) The Education Labour Relations Council must deal with any pending application for admission to it in terms of the Education Labour Relations Act as if the application had been made in terms of this Act.

(7) Any pending appeal before the industrial court or an arbitrator against a decision of the Education Labour Relations Council must, despite the repeal of any of the labour relations laws, be dealt with by

the industrial court or arbitrator as if the application had been made in terms of this Act.

(8) Despite the repeal of the Education Labour Relations Act, any appeal against a decision of the Education Labour Relations Council may be instituted after the commencement of this Act and must be heard by the Labour Court and dealt with as if the application had been made in terms of this Act.

17. Education sector collective agreements

The following provisions, read with the changes required by the context, of the Education Labour Relations Act, despite the repeal of that Act, will have the effect and status of a collective agreement binding on the State, the parties to the Education Labour Relations Council and all employees within registered scope-

(a) section 6(2) and (3);

(b) section 8(3), (4) and (5)(a); (c) section 10(3) and (4); (d) section 12(1) to (4), except that the disputes referred to in subsections (2) and (4) may be referred to arbitration only; and

(e) section 13 and section 14(2).

18. Negotiating Forums in South African Police Service

(1) The National Negotiating Forum will continue to exist subject to item

^20.

(2) The registered scope of the National Negotiating Forum is the State and those employees in respect of whom the South African Police Service Rationalisation Proclamation, 1995 and the Act contemplated in section

^{214 of the Constitution
applies.}

(3) Within fourteen days of the commencement of this Act, or signing of its constitution by its authorised representatives, whichever is the later, the National Negotiating Forum must furnish the registrar with a copy of its constitution signed by its authorised representatives, and with the other information or documentation.

(4) The constitution agreed to by the National Negotiating Forum is

deemed to be in compliance with this Act. However where any provision of the constitution does not comply with the requirements of section 30, the registrar may direct the National Negotiating Forum to rectify its constitution and re-submit the rectified constitution within fourteen days.

(5) The National Commissioner of the South African Police Service must deal with any pending application for registration and recognition in terms of the South made' African Police Service Labour Regulations as if the application had been in terms of this Act

19. Collective agreement in South African Police Service

The provisions of the South African Police Services Employment Regulations, read with the changes required by the context, despite the repeal of those regulations, will have the effect and status of a collective agreement binding on the State, the parties to the National Negotiating Forum and all the employees within its registered scope.

20. Consequences for public service bargaining institutions when Public

Service Co-ordinating Bargaining Council is established

When the Public Service Co-ordinating Bargaining Council is established in terms of item 2 of Schedule I-

(a) the Public Service Bargaining Council and its chamber at central level will cease to exist; and

(b) the following chambers of the former Public Service Bargaining Council will continue to exist as juristic persons, despite paragraph (a), namely-

(i) the chamber for each department, which will be deemed to be a bargaining council that has been established under section 37(3)(a)

of this Act for that department;

(ii) the chamber for each provincial administration, which will be deemed to be a bargaining council that has been established under

section 37(3)(a) for that provincial administration; and

(c) the Education Labour Relations Council will be deemed to be a bargaining council that has been established in terms of section 37(3)(b) of this Act for the education sector;

(d) the National Negotiating Forum will be deemed to be a bargaining council that has been established in terms of section 37(3)(b) of this Act for the South African Police Service.

PART E-DISPUTES AND COURTS

21. Disputes arising before commencement of this Act (1) Any dispute contemplated in the labour relations laws that arose before the commencement of this Act must be dealt with as if those laws had not been repealed.

(2) Despite subsection (1), a strike or lock-out that commences after this Act comes into operation will be dealt with in terms of this Act. This rule applies even if the dispute giving rise to the strike or

lock-out arose before this Act comes into operation.

(3) For the purposes of a strike or lock-out referred to in sub-item (2), compliance with section 65(l)(d) of the Labour Relations Act, section

19(l)(b) of the Public Service Labour Relations Act and section 15(l)(b) of the Education Labour Relations Act will be deemed to be compliance with section 64(l)(a) of this Act.

22. Courts (1) In any pending dispute in respect of which the industrial

court or the agricultural labour court had jurisdiction and in respect of which proceedings had not been instituted before the commencement of this Act, proceedings must be instituted in the industrial court or agricultural labour court (as the case may be) and dealt with as if the labour relations laws had not been repealed. The industrial court or the agricultural labour court may perform or exercise any of the functions

and powers that it had in terms of the labour relations laws when it determines the dispute.

(2) Any dispute in respect of which proceedings were pending in the industrial court or the agricultural labour court must be proceeded with as if the labour relations laws had not been repealed.

(3) Any pending appeal before the Labour Appeal Court established by section 17A of the Labour Relations Act must be dealt with by the Labour Appeal Court as if the labour relations laws had not been repealed.

(4) Any pending appeal from a decision of that Labour Appeal Court or any appeal to the Appellate Division from a decision of the Labour Appeal

Court in terms of section 17C and section 64 of the Labour Relations Act must be dealt with as if the labour relations laws had not been

repealed.

(5) Any appeal from a decision of the industrial court or the agricultural labour court in terms of sub-item (1) or (2), must be made to the Labour Court established by section 151 of this Act, and that Labour Court must deal with the appeal as if the labour relations laws had not been repealed.

PART F-PENSION MATTERS

23. Continuation of existing pension rights of staff members of Commission upon assuming employment (1) Any staff member of the Commission who, immediately before assuming employment with the Commission, is a member of the Government Service Pension Fund, the Temporary Employees Pension Fund or any other pension fund or scheme administered by the Department of Finance (hereinafter referred to as an officer or employee), may upon assuming that employment-

(a) choose to remain a member of that pension fund, and from the date of exercising the choice, the officer or employee, despite the provisions of any other law, will be deemed to be a dormant member of the relevant pension fund within the contemplation of section 15(l)(a) of the General Pensions Act, 1979 (Act No. 29 of 1979);

(b) request to become a member of the Associated Institutions Pension Fund established under the Associated Institutions Pension Fund Act, ^{1963 (Act No. 41 of 1963), as if the Commission had been declared an} associated institution under section 4 of that Act; or

(c) request to become a member of any other pension fund registered under the Pension Funds Act, 1956 (Act No. 24 of 1956).

(2) In the case where an officer or employee becomes a member of a fund after making a request in terms of sub-item (1)(b) or (c)-

(a) the pension fund of which the officer or employee was a member ("the former fund") must transfer to the pension fund of which the officer or employee becomes a member of ("the new fund") an amount equal to the funding level of the former fund multiplied by its actuarial liability in respect of that officer or employee at the date the officer or employee assumes office with the Commission, increased by the amount of interest calculated on that amount at the prime rate of interest from the date when employment with the Commission commenced up to the date of transfer of the amount;

(b) membership of the officer or employee of the former fund will lapse from the date when employment with the Commission commenced, and from that date the officer or employee will cease to have any further claim against the former fund except as provided in paragraph (a); and

(c) the former fund must transfer any claim it may have against the officer or employee, to the new fund.

(3) In the case where an officer or employee becomes a member of a new fund after a request in terms of sub-item (1)(c) the State must pay the new fund an amount equal to the difference between the actuarial liability of the former fund in respect of the officer or employee as on the date of the commencement of employment with the Commission, and the

amount transferred in terms of sub-item (2)(c) to the new fund, increased by the amount of interest thereon calculated at the prime rate from the date of commencement of employment up to the date of the transfer of the

amount.

(4) Sub-items (2) and (3) will apply, read with the changes required by the context, in respect of any officer or employee who, by reason of having made a choice in terms of sub-item (1)(a), has become a dormant member and thereafter requests that the pension benefits that had accrued, be transferred in terms of section 15A(1) of the General Pensions Act, 1979, to another pension fund referred to in that Act or a pension fund registered in terms of the Pension Funds Act, 1956.

(5) If, after an officer or employee has become a member of any other pension fund, by reason of having made a choice in terms of sub-item (1)(c), a lump sum benefit has become payable by that pension fund by reason of the death, or the withdrawal or resignation from the pension fund, or retirement, of the officer or employee, or the winding-up of the pension fund, then, for the purposes of paragraph (e) of the definition

of "gross income" in section I of the Income Tax Act, 1962 (Act No. 58

of 1962), the pension fund will be deemed, in relation to such officer or employee, to be a fund referred to in paragraph (a) of the definition of "pension fund" in section I of that Act.

(6) For the purposes of this item-

" actuarial liability" of a pension fund in respect of a particular member or a group of members of the fund, means the actuarial liability that is determined by an actuary who the Minister has nominated for that purpose;

"funding level", in relation to a pension fund, means the market value of the assets of the fund stated as a percentage of the total actuarial liability of the fund, after those assets and liabilities have been reduced by the amount of the liabilities of the fund in respect of all

its pensioners, as determined at the time of the most recent actuarial valuation of the fund or any review thereof carried out under direction of the responsible Minister; and

" prime rate of interest" means the average prime rate of interest of the three largest banks in the Republic.

SCHEDULE 8

CODE OF GOOD PRACTICE: DISMISSAL Introduction

(1) This code of good practice deals with some of the key aspects of dismissals for reasons related to conduct and capacity. It is intentionally general. Each case is unique, and departures from the norms established by this Code may be justified in proper circumstances. For example, the number of employees employed in an establishment may warrant a different approach.

(2) This Act emphasises the primacy of collective agreements. This Code is not intended as a substitute for disciplinary codes and procedures where these are the subject of collective agreements, or the outcome of joint decision-making by an employer and a workplace forum.

(3) The key principle in this Code is that employers and employees should treat one another with mutual respect. A premium is placed on both employment justice and the efficient operation of business. While employees should be protected from arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees.

2. Fair reasons for dismissal

(1) A dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment. Whether or not a dismissal is for a fair reason is

determined by the facts of the case, and the appropriateness of dismissal as a penalty. Whether or not the procedure is fair is determined by referring to the guidelines set out below.

(2) This Act recognises three grounds on which a termination of

employment might be legitimate. These are: the conduct of the employee, the capacity of the employee, and the operational requirements of the employer's business.

(3) This Act provides that a dismissal is automatically unfair if the reason for the dismissal is one that amounts to an infringement of the fundamental rights of employees and trade unions, or if the reason is one of those listed in section 187.

The reasons include participation in a lawful strike, intended or actual pregnancy and acts of discrimination.

(4) In cases where the dismissal is not automatically unfair, the employer must show that the reason for dismissal is a reason related to the employee's conduct or capacity, or is based on the operational requirements of the business. If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair.

3. Misconduct

Disciplinary procedures prior to dismissal

(1) All employers should adopt disciplinary rules that establish the standard of conduct required of their employees. The form and content of disciplinary rules will obviously vary according to the size and nature

of the employer's business.

In general, a larger business will require a more formal approach to discipline. An employer's rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood. Some rules or standards may be so well established

and known that it is not necessary to communicate them.

(2) The courts have endorsed the concept of corrective or progressive discipline.

This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees' behaviour through a system of graduated disciplinary measures such as counselling and warnings.

(3) Formal procedures do not have to be invoked every time a rule is broken or a standard is not met. Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. Repeated misconduct will warrant warnings, which themselves may be graded according to degrees of severity. More serious infringements or repeated misconduct may call for a final warning, or other action short of dismissal. Dismissal should be reserved for cases of serious misconduct or repeated offences.

Dismissals for misconduct

(4) Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or willful damage to the property of the employer, willful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross

^{insubordination. Whatever
the merits of the case for dismissal might be,}

a dismissal will not be fair if it does not meet the requirements of section 188.

(5) When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee's circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.

(6) The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.

4. Fair procedure

(1) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.

(2) Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.

(3) If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement.

(4) In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures.

5. Disciplinary records

Employers should keep records for each employee specifying the nature of any disciplinary transgressions, the actions taken by the employer and the reasons for the actions.

6. Dismissals and industrial action

(1) Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. However, like any other act of misconduct, it does not always deserve dismissal. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of

the case, including-

(a) the seriousness of the contravention of this Act; (b) attempts made to comply with this Act; and

(c) whether or not the strike was in response to unjustified conduct by the employer.

(2) Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. The employer should issue an ultimatum in clear and

unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. If the employer cannot reasonably be expected to extend these steps to

the employees in question, the employer may dispense with them.

7. Guidelines in cases of dismissal for misconduct

Any person who is determining whether a dismissal for misconduct is unfair should consider-

(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and

(b) if a rule or standard was contravened, whether or not- (i) the rule was a valid or reasonable rule or standard; (ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;

(iii) the rule or standard has been consistently applied by the employer; and

(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.

8. Incapacity: Poor work performance

(1) A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. The period should be determined by the nature of the job, and the time it takes to determine the employee's suitability for continued employment. When appropriate, an employer should give an employee whatever evaluation, instruction, training, guidance or counselling the employee requires to render

satisfactory service. Dismissal during the probationary period should be preceded by an opportunity for the employee to state a case in response and to be assisted by a trade union representative or fellow employee.

(2) After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has-

(a) given the employee appropriate evaluation, instruction, training, guidance or counselling; and

(b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.

(3) The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.

(4) In the process, the employee should have the right to be heard and to be assisted by a trade union representative or a fellow employee.

9. Guidelines in cases of dismissal for poor work performance

Any person determining whether a dismissal for poor work performance is unfair should consider(a) whether or not the employee failed to meet a performance standard; and

(b) if the employee did not meet a required performance standard whether or not-

(i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;

(ii) the employee was given a fair opportunity to meet the required performance standard; and

(iii) dismissal was an appropriate sanction for not meeting the required performance standard.

10. Incapacity: III health or injury

(1) Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee's disability.

(2) In the process of the investigation referred to in subsection (1) the employee I should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee.

(3) The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider.

(4) Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The courts

have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.

Guidelines in cases of dismissal arising from ill health or injury

Any person determining whether a dismissal arising from ill health or injury is unfair should consider-

(a) whether or not the employee is capable of performing the work; and

(b) if the employee is not capable-

(i) the extent to which the employee is able to perform the work;

(ii) the extent to which the employee's work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee's duties might be adapted; and

(iii) the availability of any suitable alternative work.