Marius Scheepers & Company Attorneys



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Marius Scheepers and Company Attorneys and their associates accept no liability for any damages or losses suffered as a result of actions taken based on information contained herein. They are committed to regularly update all information that is subject to change from time to time. Any person may contact them for further information and to arrange for a consultation to deal with a specific issue or send an e-mail to mariusscheepers@irodo.com The information contained herein does not serve as alternative to legal advice that may be provided during a furrow assessment of the case at a proper consultation.


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Labour Relations Act 66 of 1995 after amendment by the Labour Relations Amendment Act 12 of 2002

 

Key for changes:

 

………..  indicates new additional parts to act

[           ]  indicates deleted parts to act

 

 

CHAPTER I

PURPOSE, APPLICATION AND INTERPRETATION (ss 1-3)

 

 

CHAPTER II

FREEDOM OF ASSOCIATION AND GENERAL PROTECTIONS (ss 4-10)

 

 

CHAPTER III

COLLECTIVE BARGAINING (ss 11-63)

 

Legal effect of collective agreement

 

Section 23 (4)

 

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

 

Disputes about collective agreements

 

Section 24 (1)

 

 

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

 

Section 24 (8)

 

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

 

Powers and functions of bargaining council

 

Section 28 (1) (k)

 

to provide industrial support services within the sector; and

 

Section 28 (1) (l)

 

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

 

Registration of bargaining councils

 

Section 29 (3)

 

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

 

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

 

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

 

Section 29 (16)

 

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

 

Extension of collective agreement concluded in bargaining council

 

Section 32 (5) (a)

 

the parties to the bargaining council are sufficiently representative within the registered scope of the bargaining council; and

 

Section 32 (10)

 

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

 

Appointment and powers of designated agents of bargaining councils

 

Section 33 (1)

 

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

 

Section 33 (1A)

 

            A designated agent may-

 

(a)       secure compliance with the council's collective agreements by-

 

                                    (i)         publicising the contents of the agreements;

 

                                    (ii)        conducting inspections;

 

                                    (iii)       investigating complaints; or

 

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

 

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

 

Section 33 (3)

 

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

 

Enforcement of collective agreements by bargaining councils

 

Chapter III- COLLLECTIVE BARGAINING
Section 33A- Enforcement of collective agreements by Bargaining Councils

 

 

“Collective agreement (CA)”:

                Basic condition of employment covered by CA

               Rules of BC fund or scheme

 

 

BC party                                 Non-BC party

         |                                               |

 

BC arbitrator                 CCMA appoint arbitrator

                                                                        (not under CCMA auspices)

 

nSame power as commissioner ito S142

nS138 applies (General provisions of Arb proceedings)

nMay determine:

nInterpretation of CA / Application of CA

nIssue award:

nAny amount ito CA

nFine ito CA

nCharge arbitration fee

nCosts

n138(9) awards

nInterest

 

Award final and binding

Review

Settlement agreement [142A]

Rescission, Review [143]

Execution of order [146]

 

 

 

 

 

Section 33A -

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

            (c) If an arbitrator is appointed in terms of subparagraph (b)-

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

                        (c)        charging a party an arbitration fee;

 

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

 

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

 

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

 

138 (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.

 

 

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

 

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

 

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

 

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

 

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

 

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

 

                        (i)         for a breach of a collective agreement-

 

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

 

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

 

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

 

Bargaining councils in sectors in public service

 

Section 37 - Bargaining councils in sectors in public service

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Section 38 - Disputes between bargaining councils in public service

 

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

 

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

 

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

 

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

 

Ministerial determinations

 

Section 44 (1)

 

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

 

Section 44 (2)

 

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

 

Representativeness of council

 

Section 49 (2)

 

A bargaining council having a collective agreement that has been extended by the Minister in terms of section 32, must inform the registrar annually, in writing, on a date to be determined by the registrar as to the number of employees who are-

 

                        (a)       covered by the collective agreement;

 

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

 

(c)        employed by members of the employers' organisations that are party to the agreement.

 

Section 49 (3)

 

A bargaining council must on request by the registrar inform the registrar in writing within the period specified in the request as to the number of employees who are-

 

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

 

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

 

(d)   employed by members of the employers' organisations that are party to the council.

 

 

 

 

 

Section 49 (4)

 

A determination of the representativeness of a bargaining council in terms of this section is sufficient proof of the representativeness of the council for the year following the determination.

 

Section 49 (5)

 

            This section does not apply to the public service.

 

Dispute resolution functions of council

 

nMust refer disputes within BC:

nFreedom of association [9]

nStrikes and lock-outs [64(1)]

nDisputes precluded from participation in Strikes or Lock-outs [74]

nUnfair dismissals [191]

nSeverance pay [196?] [BCEA 41]

nUnfair labour practices [Schedule 7, item 2?] [191]

n

n

 

 

 

nMay not refer disputes:

nOrganisational rights [16, 21 and 22]

nCA without procedure /party frustrates [24(2) to (5)]

nAgency shops / Closed shops [24(6),(7)]

ndisputes about determinations made by the Minister in respect of proposals made by a statutory council (see section 45); disputes about the interpretation or application of collective agreements of a council whose registration has been cancelled (see section 61 (5) to (8)); disputes about the demarcation of sectors and areas of councils (see section 62); disputes about the interpretation or application of Part C (bargaining councils), Part D (bargaining councils in the public service), Part E (statutory councils) and Part F (general provisions concerning councils) (see section 63); disputes concerning pickets (see section 69 (8) to (10)); disputes about proposals that are the subject of joint decision-making in workplace forums (see section 86); disputes about the disclosure of information to workplace forums (see section 89); and disputes about the interpretation or application of the provisions of Chapter V which deals with workplace forums (see section 94).

 

 

 

Section 51 (3) - footnote

 

The following disputes contemplated by subsection (3) must be referred to a council: disputes about the interpretation or application of the provisions of Chapter II (see section 9); disputes that form the subject matter of a proposed statutory council or lock-out (see section 64 (1)); disputes in essential services (see section 74); disputes about unfair dismissals (see section 191); disputes about severance pay (see section 196); and disputes about unfair labour practices (see item 2 in Schedule 7).

 

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

 

Section 51 (7)

 

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

 

Section 51 (8)

 

Unless otherwise agreed to in a collective agreement, sections 142A (settlement agreements) and 143 (final arbitration awards, rescission, condonation, review) to 146 (writ of execution) apply to any arbitration conducted under the auspices of a bargaining council.

 

Section 51 (9)

 

A bargaining council may by collective agreement establish procedures to resolve any dispute contemplated in this section.

 

Accounting records and audits

 

Section 53 (6)

 

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

 

Duty to keep records and provide information to registrar

 

Section 54 (2) (f)

 

each year and on a date to be determined by the registrar, a report in the prescribed form specifying-

 

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

 

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

 

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

 

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

 

Section 54 (4)

 

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

 

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

 

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

 

(c)        deliver a notice to the council requiring the council to comply with the provisions concerned;

 

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

 

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

 

Section 54 (5)

 

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

 

Variation of registered scope of council

 

Section 58 (3)

 

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

 

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

 

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

 

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

 

Cancellation of registration of council

 

Section 61 (14)

 

The registrar must cancel the registration of a bargaining council in the public service by removing its name from the register of councils when the registrar receives a resolution from the Public Service Co-ordinating Bargaining Council disestablishing a bargaining council established in terms of section 37 (2).

 

Section 61 (15)

 

The provisions of subsections (3) to (7) do not apply to bargaining councils in the public service.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER IV

STRIKES AND LOCK-OUTS (ss 64-77)

 

Strike or lock-out not in compliance with this Act

 

Section 68 (1) (b) Strikes and Lock-outs that do not comply with Chapter,

 

                        - the Labour Court has exclusive jurisdiction:

 

to order the payment of just and equitable compensation for any loss attributable to the strike or lock-out, [or conduct], having regard to-

 

                                    (i)         whether-

 

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

 

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

 

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

 

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

 

                                    (ii)        the interests of orderly collective bargaining;

 

(iii)       the duration of the strike or lock-out or conduct; and

 

(iv)              the financial position of the employer, trade union or employees respectively.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER V

WORKPLACE FORUMS (ss 78-94)

 

 

CHAPTER VI

TRADE UNIONS AND EMPLOYERS' ORGANISATIONS (ss 95-111)

 

Requirements for registration of trade unions or employers' organisations

 

Section 95 (7)

 

The registrar must not register a trade union or an employers' organisation unless the registrar is satisfied that the applicant is a genuine trade union or a genuine employers' organisation.

 

Section 95 (8)

 

The Minister, in consultation with NEDLAC, may by notice in the Government Gazette publish guidelines to be applied by the registrar in determining whether an applicant is a genuine trade union or a genuine employers' organisation.

 

Winding-up of registered trade unions or registered employers' organizations

 

Section 103 - heading

 

Winding-up of (registered) trade unions or (registered)employers' organisations.

 

Section 103 (1)

 

The Labour Court may order a trade union or employers' organisation to be wound up if-

 

(a)       the trade union or employers' organisation has resolved to wind-up its affairs and has applied to the Court for an order giving effect to that resolution; or

 

(b)       the registrar or any member of the trade union or employers' organisation has applied to the Court for its winding up and the Court is satisfied that the trade union or employers' organisation for some reason that cannot be remedied is unable to continue to function.

 

Section 103 (1A)

 

If the registrar has cancelled the registration of a trade union or employers' organisation in terms of section 106 (2A), any person opposing its winding-up is required to prove that the trade union or employers' organisation is able to continue to function.

 

Section 103 (5)

 

If, after all the liabilities of the trade union or employers' organisation have been discharged, any assets remain which cannot be disposed of in accordance with the constitution of that trade union or employers' organisation, the liquidator must realise those assets and pay the proceeds to the Commission for its own use.

 

Section 103 (6)

 

(a) The Labour Court may direct that the costs of the registrar or any other person who has brought an application in terms of subsection (1) (b) be paid from the assets of the trade union or employers' organisation.

 

(b) Any costs in terms of paragraph (a) rank concurrently with the liquidator's fees.

 

Cancellation of registration of trade union that is no longer independent

 

Section 105 - heading

 

Declaration that trade union is no longer independent

 

Cancellation of registration of trade unions or employers' organisations

 

Section 106 (1)

 

            The registrar of the Labour Court must notify the registrar if the Court-

 

(a)       in terms of section 103 or 104 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.

 

Section 106 (2A)

 

The registrar may cancel the registration of a trade union or employers' organisation by removing its name from the appropriate register if the registrar-

 

(a)       is satisfied that the trade union or employers' organisation is not, or has ceased to function as, a genuine trade union or employers' organisation, as the case may be; or

 

(b)       has issued a written notice requiring the trade union or employers' organisation to comply with sections 98, 99 and 100 within a period of 60 days of the notice and the trade union or employers' organisation has, despite the notice, not complied with those sections.

 

Section 106 (2B)

 

The registrar may not act in terms of subsection (2A) unless the registrar has published a notice in the Government Gazette at least 60 days prior to such action-

 

(a)       giving notice of the registrar's intention to cancel the registration of the trade union or employers' organisation; and

 

(b)       inviting the trade union or employers' organisation or any other interested parties to make written representations as to why the registration should not be cancelled.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER VII

 

DISPUTE RESOLUTION (ss 112-184)

 

Functions of Commission

 

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;*

 

(b)               if asked, assist a party to a dispute to obtain legal advice, assistance or representation;#

 

(c)               offer to resolve a dispute that has not been referred to the Commission through conciliation;+

 

(cA) make rules-

 

(i)                 to regulate, subject to Schedule 3, the proceedings at its meetings and at the meetings of any committee of the Commission;

 

(ii)               regulating the practice and procedure of the essential services committee;

 

(iii)             regulating the practice and procedure-

 

(aa)            for any process to resolve a dispute through conciliation;

 

(bb)            at arbitration proceedings; and

 

(iv)              determining the amount of any fee that the Commission may charge under section 147, and regulating the payment of such a fee in detail;

 

 

( c) (d) and (e)   ......

 

(e)               conduct, oversee or scrutinise any election or ballot of a registered trade union or registered employers' organisation if asked to do so by that trade union or employers' organisation;

 

(f)                 publish guidelines in relation to any matter dealt with in this Act; and

 

(g)               conduct and publish research into matters relevant to its functions; and

 

(h)               ......

 

[NB: A sub-s. (2A) has been inserted by s. 22 (a) of the Labour Relations Amendment Act 12 of 2002, a provision which will be put into operation by proclamation..]

 

 

Section 115 (2A)

 

            The Commission may make rules (see Government Gazette no. 23611 of 25-07-2002) regulating-

 

(a)       the practice and procedure in connection with the resolution of a dispute through conciliation or arbitration;

 

(b)       the process by which conciliation is initiated, and the form, content and use of that process;

 

(c)        the process by which arbitration or arbitration proceedings are initiated, and the form, content and use of that process;

 

(d)       the joinder of any person having an interest in the dispute in any conciliation and arbitration proceedings;

 

(e)       the intervention of any person as an applicant or respondent in conciliation or arbitration proceedings;

 

(f)         the amendment of any citation and the substitution of any party for another in conciliation or arbitration proceedings;

 

(g)       the hours during which offices of the Commission will be open to receive any process;

 

(h)        any period that is not to be counted for the purpose of calculating time or periods for delivering any process or notice relating to any proceedings;

 

                        (i)         the forms to be used by parties and the Commission;

 

(j)         the basis on which a commissioner may make any order as to costs in any arbitration;

 

(k)        the right of any person or category of persons to represent any party in any conciliation or arbitration proceedings;

 

(l)         the circumstances in which the Commission may charge a fee in relation to any conciliation or arbitration proceedings or for any services the Commission provides; and

 

(m)             all other matters incidental to performing the functions of the Commission.

 

(3) If asked, the Commission may provide employees, employers, registered trade unions, registered employers' organisations, federations of trade unions, federations of employers' organisations or councils with advice or training relating to the primary objects of this Act, including but not limited to-

 

      • establishing collective bargaining structures;

 

      • designing, establishing and electing workplace forums and creating deadlock-breaking mechanisms;

 

      • the functioning of workplace forums;

 

      • preventing and resolving disputes and employees' grievances;

 

      • disciplinary procedures;

 

      • procedures in relation to dismissals;

 

      • the process of restructuring the workplace;

 

      • affirmative action and equal opportunity programmes; and

 

      • the prevention of sexual harassment in the workplace.

 

 

(4) The Commission must perform any other duties imposed, and may exercise any other powers conferred, on it by or in terms of this Act and is competent to perform any other function entrusted to it by any other law.

 

(5) The governing body's rules of procedure, the terms of appointment of its members and other administrative matters are dealt with in Schedule 3.

 

(6) (a) A rule made under subsection (2) (cA) must be published in the Government Gazette. The Commission will be responsible to ensure that the publication occurs.

 

(b) A rule so made will not have any legal force or effect unless it has been so published.

 

Section 115 (6)

 

(a) A rule made under subsection (2) (cA) or (2A) must be published in the Government Gazette. The Commission will be responsible to ensure that the publication occurs.

 

(b) A rule so made will not have any legal force or effect unless it has been so published.

 

(c ) A rule so made takes effect from the date of publication unless a later date is stipulated.

 

Accreditation of councils and private agencies

 

Section 127 (5) (a) (iv) - deleted

 

Section 127 (5A)

 

The governing body must annually publish a list of accredited councils and accredited agencies.

 

General provisions relating to accreditation

 

Section 128 (1) (a)

 

An accredited council or accredited agency may charge a fee for performing any of the functions for which it is accredited in circumstances in which this Act allows a commissioner to charge a fee.

 

Section 128 (3)

 

(a) (i) An accredited council may confer on any person appointed by it to resolve a dispute, the powers of a commissioner in terms of section 142(powers of commission), read with the changes required by the context.

 

(ii) For this purpose, any reference in that section to the director must be read as a reference to the secretary of the bargaining council.

 

(b) An accredited private agency may confer on any person appointed by it to resolve a dispute, the powers of a commissioner in terms of section 142 (1) (a) to (e), (2) supiena a witness) and (7) (pay witness fee) to (9) (refer contempt matter to court), read with the changes required by the context.

 

Resolution of disputes under auspices of Commission

 

Section 133 (2)

 

If a dispute remains unresolved after conciliation, the Commission must arbitrate the dispute if-

 

(a)       this Act requires the 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 in writing to arbitration under the auspices of the Commission.

 

Resolution of disputes through conciliation

 

Section 135 (4) and 138 (4) – deleted

 

(Not deleted yet- ito section 115(2A)(m) no such rules were promulgated by CCMA yet. See page __ hereunder for the existing position)

 

(legal representation at conciliation and arbitration)

 

(See para 26 and 27 hereunder)

 

135(4) In the conciliation proceedings a party to the dispute may appear in person or be represented only by-

 

        • a director or employee of that party; or

 

        • any member, office bearer or official of that party's registered trade union or registered employers' organisation.

 

[NB: Sub-s. (4) has been deleted by s. 26 of the Labour Relations Amendment Act 12 of 2002, a provision which will be put into operation by proclamation.]

 

138(4) In any arbitration proceedings, a party to the dispute may appear in person or be represented only by-

 

        • a legal practitioner

 

        • a director or employee of the party; or

 

        • any member, office-bearer or official of that party's registered trade union or registered employers' organisation.

 

[NB: Sub-s. (4) has been deleted by s. 27 (a) of the Labour Relations Amendment Act 12 of 2002, a provision which will be put into operation by proclamation.]

 

General provisions for arbitration proceedings

 

Section 138 (10)

 

The commissioner may make an order for the payment of costs according to the requirements of law and fairness in accordance with rules made by the Commission in terms of section 115 (2A) (j) and having regard to-

 

(a)       any relevant Code of Good Practice issued by NEDLAC in terms of section 203;

 

(b)      any relevant guideline issued by the Commission.

 

(Ito rule 39(1) – may also take account to taxation master. But old section 138(10) had not yet been repieled. Seepage __ hereunder)

 

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

 

Section 140 (1) – deleted

 

(Not deleted yet- ito section 115(2A)(m) no such rules were promulgated by CCMA yet. See page __ hereunder for the existing position)

 

(legal representation regarding misconduct and capacity dismissals)

 

140(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-

 

(e)   the commissioner and all the other parties consent; or

 

(f)     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.

 

[NB: Sub-s. (1) has been deleted by s. 28 of the Labour Relations Amendment Act 12 of 2002, a provision which will be put into operation by proclamation.]

 

 

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

 

Section 141 (1)

 

If a dispute remains unresolved after conciliation, the Commission must arbitrate the dispute if a party to the dispute would otherwise be entitled to refer the dispute to the Labour Court for adjudication and, instead, all the parties agree [in writing] to arbitration under the auspices of the Commission.

 

Section 141 (3)

 

The arbitration agreement contemplated in subsection (1) may be terminated only with the [written] consent of all the parties to that agreement, unless the agreement itself provides otherwise.

 

 

 

 

 

Powers of commissioner when attempting to resolve disputes

 

 

Subpoena of witness at CCMA [Rule 37]

 

 

n14 days prior to Arb: complete LRA 7.16

+ written notice why need for evidence

and/or reasons for requesting CCMA to waive requirement to pay witness

nCCMA issues subpoena/ refuse subpoena

n7 days prior to Arb: serve subpoena on witness

+pay 1 day witness fee (if so directed by CCMA)

nAt arb:

nCCMA pay witness fee [142(c) or 142(a)]

nParty pay witness fee [142(b)]

nNo witness fee payable –CCMA direction [R38(3)]

When must pay witness fee?

 

 

 

 

Section 142 (7)

 

(a) The Commission must pay the prescribed witness fee to each person who appears before a commissioner in response to a subpoena issued by the commissioner.

 

[(b) Any person who requests the Commission to issue a subpoena must pay the prescribed witness fee to each person who appears before a commissioner in response to the subpoena and who remains in attendance until excused by the commissioner.

 

(c) The Commission may on good cause shown waive the requirement in paragraph (b) and pay to the witness the prescribed witness fee.]

 

Section 142 (9)

 

(a) A commissioner may make a finding that a party is in contempt of the Commission for any of the reasons set out in subsection (8).

 

(b) The commissioner may refer the finding, together with the record of the proceedings, to the Labour Court for its decision in terms of subsection (11).

 

Section 142 (10)

 

Before making a decision in terms of subsection (11), the Labour Court-

 

(a)       must subpoena any person found in contempt to appear before it on a date determined by the Court;

 

(b)       may subpoena any other person to appear before it on a date determined by the Court; and

 

(c)        may make any order that it deems appropriate, including an order in the case of a person who is not a legal practitioner that the person's right to represent a party in the Commission and the Labour Court be suspended.

 

Section 142 (11)

 

The Labour Court may confirm, vary or set aside the finding of a commissioner.

 

Section 142 (12)

 

If any person fails to appear before the Labour Court pursuant to a subpoena issued in terms of subsection (10) (a), the Court may make any order that it deems appropriate in the absence of that person.

 

Making settlement agreement arbitration award

 

Section 142A - Making settlement agreement arbitration award

 

(1) The Commission may, by agreement between the parties or on application by a party, make any settlement agreement in respect of any dispute that has been referred to the Commission, an arbitration award.

 

(2) For the purposes of subsection (1), a settlement agreement is a written agreement in settlement of a dispute that a party has the right to refer to arbitration or to the Labour Court, excluding a dispute that a party is entitled to refer to arbitration in terms of either section 74 (4) (maintenance service)or 75 (7) (essential service).

 

Effect of arbitration awards

 

143(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.

 

Section 143 (1)

 

An arbitration award issued by a commissioner is final and binding and it may be (made an order of the Labour Court in terms of section 158 (1)) [enforced as if it were an order of the Labour Court,] unless it is an advisory arbitration award.

 

 

 

 

Section 143 (3)

 

An arbitration award may only be enforced in terms of subsection (1) if the director has certified that the arbitration award is an award contemplated in subsection (1).

 

Section 143 (4)

 

If a party fails to comply with an arbitration award that orders the performance of an act, other than the payment of an amount of money, any other party to the award may enforce it by way of contempt proceedings instituted in the Labour Court.

 

Variation and rescission of arbitration awards

 

Section 144 - Variation and rescision of arbitration awards and rulings

 

Any commissioner who has issued an arbitration award [or ruling], or any other commissioner appointed by the director for that purpose, may on that commissioner's own accord or, on the application of any affected party, vary or rescind an arbitration award or ruling-

 

(a)       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

 

(b)               granted as a result of a mistake common to the parties to the proceedings.

 

Review of arbitration awards

 

Section 145 (1A)

 

The Labour Court may on good cause shown condone the late filing of an application in terms of subsection (1) (review).

 

Commission may offer to resolve dispute through conciliation

 

Section 150 (2)

 

The Commission may offer to appoint a commissioner to assist the parties to resolve through further conciliation a dispute that has been referred to the Commission or a council and in respect of which-

 

(a)       a certificate has been issued in terms of section 135 (5) (a) stating that the dispute remains unresolved; or

 

                        (b)       the period contemplated in section 135 (2) has elapsed;

 

Section 150 (3)

 

The Commission may appoint a commissioner in terms of subsection (1) or (2) if all the parties to the dispute consent to that appointment.

 

Powers of Labour Court

 

158           Powers of Labour Court

 

(1)   The Labour Court may-

 

make any appropriate order, including-

 

the grant of urgent interim relief;

 

an interdict;

 

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;

 

a declaratory order;

 

an award of compensation in any circumstances contemplated in this Act;

 

an award of damages in any circumstances contemplated in this Act; and

 

an order for costs;

 

order compliance with any provision of this Act;

 

make any arbitration award or any settlement agreement, other than a collective agreement, an order of the Court;

 

[NB: Para. (c) has been substituted by s. 36 (a) of the Labour Relations Amendment Act 12 of 2002, a provision which will be put into operation by proclamation .]

 

Section 158 (1) (c)

 

make any arbitration award or any settlement agreement (, other than a collective agreement, ) an order of the Court;

 

(also see section 158(1A) hereunder)

 

 

 

request the Commission to conduct an investigation to assist the Court and to submit a report to the Court;

 

determine a dispute between a registered trade union or registered employers' organisation and any one of the members or applicants for membership thereof, about any alleged non-compliance with-

 

the constitution of that trade union or employers' organisation (as the case may be); or

 

section 26 (5) (b);

 

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;

 

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;

 

[NB: Para. (g) has been substituted by s. 36 (b) of the Labour Relations Amendment Act 12 of 2002, a provision which will be put into operation by proclamation.]

 

 

 

 

Section 158 (1) (g)

 

(despite) [subject to] 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;

 

review any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law;

 

hear and determine any appeal in terms of section 35 of the Occupational Health and Safety Act, 1993 (Act 85 of 1993); and

 

deal with all matters necessary or incidental to performing its functions in terms of this Act or any other law.

 

[NB: A sub-s. (1A) has been inserted by s. 36 (c) of the Labour Relations Amendment Act 12 of 2002, a provision which will be put into operation by proclamation. ]

 

Section 158 (1A)

 

For the purposes of subsection (1) (c), a settlement agreement is a written agreement in settlement of a dispute that a party has the right to refer to arbitration or to the Labour Court, excluding a dispute that a party is only entitled to refer to arbitration in terms of section 22 (4), 74 (4) or 75 (7) (essential services, maintenance services, organisational rights).

 

(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-

 

             stay the proceedings and refer the dispute to arbitration; or

 

            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-

 

under the auspices of the Commission;

 

under the auspices of an accredited council;

 

under the auspices of an accredited agency;

 

in accordance with a private dispute resolution procedure; or

 

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.

 

Representation before Labour Court

 

Section 161 (d)

 

                                    a designated agent [or official] of a council; or

 

Jurisdiction of Labour Appeal Court

 

Section 173 (3) - deleted

 

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)   ......

 

(3)   An appeal to the Labour Appeal Court must be noted and prosecuted as if it were an appeal to the Supreme Court of Appeal in civil proceedings, except that the appeal must be noted within 21 days after the date on which leave to appeal has been granted.

 

[NB: Sub-s. (3) has been deleted by s. 38 of the Labour Relations Amendment Act 12 of 2002, a provision which will be put into operation by proclamation.]

 

(4) A decision to which any two judges of the Labour Appeal Court agree is the decision of the Court.

 

 

 

 

 

 

 

 

 

 

Chapter VIII - heading

 

UNFAIR DISMISSAL AND UNFAIR LABOUR PRACTICE

 

Right not to be unfairly dismissed

 

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

 

            Every employee has the right not to be-

 

                        (a)       unfairly dismissed; and

 

                        [(b)      subjected to unfair labour practice.]

 

Section 186 – heading

 

Meaning of dismissal[and unfair labour practice]

 

 

Section 186 (f)

 

[an employee terminated a contract of employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.]

 

Unfair Labour Practice

 

Schedule 7, item 2          Residual unfair labour practices

 

(4)   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)               ......

 

[Para. (a) deleted by s. 64 of Act 55 of 1998.]

 

(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;

 

(g)   (d)    the failure or refusal of an employer to reinstate or re-employ a former employee in terms of any agreement.

 

Section 186 (2)

 

'Unfair labour practice' means any unfair act or omission that arises between an employer and an employee involving-

 

(a)       unfair conduct by the employer relating to the promotion, demotion, [probation (excluding disputes about dismissals for a reason relating to probation)] or training of an employee or relating to the provision of benefits to an employee;

 

(b)       the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;

 

(c)        a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and

 

[(d)      an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.]

 

186           Automatically unfair dismissals

 

187           Automatically unfair dismissals

 

(1)               A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 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;

 

(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

 

(ii)               participating in any proceedings in terms of this Act;

 

(e)               the employee's pregnancy, intended pregnancy, or any reason related to her pregnancy;

 

(f)                 that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.

 

[NB: Paras. (g) and (h) have been added by s. 42 of the Labour Relations Amendment Act 12 of 2002, a provision which will be put into operation by proclamation.]

 

 

Section 187 (1) (g)

 

[a transfer, or a reason related to a transfer, contemplated in section 197 or 197A; or ]

 

Section 187 (1) (h)

 

[a contravention of the Protected Disclosures Act, 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act.]

 

(2) Despite subsection (1) (f)-

 

a dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job;

 

a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

 

 

 

 

 

 

Other unfair dismissals

 

Section 188A - Agreement for pre-dismissal arbitration

 

Pre-dismissal arb [188A]

 

Conduct/ capacity dismissals only

 

Employee earn more than R__                               Employee earn less than R__

 

Written consent              Provision contained                            Written consent

[188A(4)]                      in employment contr                          [188A(1)]

            +                                  +                                              +

had been advised                       no need to advise                                     had been advised

of alleged charges           of alleged charges                          of alleged charges

[188A(4)(a)]                                                                     [188A(4)(a)]

 

                                                +                                              +

                                    LRA 7.19 signed                          LRA 7.19 signed

                                    by employee                               by employee

 

nPrescribed LRA 7.19 form [188A(2), Rule 34]

nPayment of prescribed fee [188A(3)(a)]

nBank guaranteed cheque

nElectronic transfer

n(forfeit payment after CCMA issued notice of date of arb)

nLegal representation only if agreed between parties[188A(5)(f)]

nGeneral provisions for arbitrations applies [138]

nSubpoena provisions [142(1)(a) - (e)]

nWitness fees [142(7)]

nContempt provisions [142(9)]

nEffect of arbitration award [143]

nVariation, Rescission [144]

nReview [145]

nExecution of order [146]

nCCMA must notify within 21 days of referral of arbitration date

nCCMA must notify at least 14 days prior to arbitration date

 

 

 

 

 

 

(1) An employer may, with the consent of the employee, request a council, an accredited agency or the Commission to conduct an arbitration into allegations about the conduct or capacity of that employee.

 

            (2) The request must be in the prescribed form.

 

(3) The council, accredited agency or the Commission must appoint an arbitrator on receipt of-

 

                        (a)       payment by the employer of the prescribed fee; and

 

                        (b)       the employee's written consent to the inquiry.

 

(4) (a) An employee may only consent to a pre-dismissal arbitration after the employee has been advised of the allegation referred to in subsection (1) and in respect of a specific arbitration.

 

(b) Despite subparagraph (a), an employee earning more than the amount determined by the Minister in terms of section 6 (3) of the Basic Conditions of Employment Act, may consent to the holding of a pre-dismissal arbitration in a contract of employment.

 

(5) In any arbitration in terms of this section a party to the dispute may appear in person or be represented only by-

 

                        (a)       a co-employee;

 

                        (b)       a director or employee, if the party is a juristic person;

 

(c)        any member, office bearer or official of that party's registered trade union or registered employers' organisation; or

 

                        (d)       a legal practitioner, on agreement between the parties.

 

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

 

(7) An arbitrator appointed in terms of this section has all the powers conferred on a commissioner by section 142 (1) (a) to (e), ) (supiena a witness) and (7) (pay witness fee) to (9) (refer contempt matter to court, read with the changes required by the context, and any reference in that section to the director for the purpose of this section, must be read as a reference to-

 

(a)       the secretary of the council, if the arbitration is held under the auspices of the council;

 

(b)       the director of the accredited agency, if the arbitration is held under the auspices of an accredited agency.

 

(8) The provisions of sections 143 to 146 (Effect of arbitration awards, Variation and rescission of arbitration awards, Review of arbitration awards, Exclusion of Arbitration Act) apply to any award made by an arbitrator in terms of this section.

 

(9) An arbitrator conducting an arbitration in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, direct what action, if any, should be taken against the employee.

 

(10) (a) A private agency may only conduct an arbitration in terms of this section if it is accredited for this purpose by the Commission.

 

(b)   A council may only conduct an arbitration in terms of this section in respect of which the employer or the employee is not a party to the council, if the council has been accredited for this purpose by the Commission.

 

Dismissals based on operational requirements

 

Section 189 - Dismissals based on operational requirements

 

(1) When an employer contemplates dismissing one or more employees for reasons based on the employer's operational requirements, the employer must consult-

 

(a)       any person whom the employer is required to consult in terms of a collective agreement;

 

(b)       if there is no collective agreement that requires consultation-

 

(i)         a workplace forum, if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum; [and

 

(ii)        any registered trade union whose members are likely to be affected by the proposed dismissals;]

 

(c)        if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals; [or]

 

(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 employer and the other] consulting parties must [in the consultation envisaged by subsections (1) and (3) engage in a meaningful joint consensus-seeking process and] attempt to reach consensus on-

 

                        (a)       appropriate measures-

 

                                    (i)         to avoid the dismissals;

 

                                    (ii)        to minimise the number of dismissals;

 

                                    (iii)       to change the timing of the dismissals; and

 

                                    (iv)       to mitigate the adverse effects of the dismissals;

 

(b)       the method for selecting the employees to be dismissed; and

 

                        (c)        the severance pay for dismissed employees.

 

(3) The employer must (disclose in righting to)[issue a written notice inviting] the other consulting party [to consult with it and disclose in writing] all relevant information, including, but not limited to-

 

                        (a)       the reasons for the proposed dismissals;

 

(b)       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;

 

                        (f)         the severance pay proposed;

 

(g)       any assistance that the employer proposes to offer to the employees likely to be dismissed;

 

(h)        the possibility of the future re-employment of the employees who are dismissed;

 

(i)         [the number of employees employed by the employer; and

 

(j)         the number of employees that the employer has dismissed for reasons based on its operational requirements in the preceding 12 months.]

 

(4) (a) The provisions of section 16 apply, read with the changes required by the context, to the disclosure of information in terms of subsection (3).

 

[(b) In any dispute in which an arbitrator or the Labour Court is required to decide whether or not any information is relevant, the onus is on the employer to prove that any information that it has refused to disclose is not relevant for the purposes for which it is sought.]

 

(5) The employer must allow the other consulting party an opportunity during consultation to make representations about any matter (on which they are consulting) [dealt with in subsections (2), (3) and (4) as well as any other matter relating to the proposed dismissals.]

 

(6) (a) The employer must consider and respond to the representations made by the other consulting party and, if the employer does not agree with them, the employer must state the reasons for disagreeing.

 

[(b) If any representation is made in writing the employer must respond in writing.]

 

(7) The employer must select the employees to be dismissed according to selection criteria-

 

(a)    that have been agreed to by the consulting parties; or

 

(b)    if no criteria have been agreed, criteria that are fair and objective.

 

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

 

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

 

189(3) employer’s notice to consult

                                 

                                                employer request facilitation

                                                [189A(3)]

                                                                                      within 15 days

                                                                               majority representative

                                                                        request CCMA – facilitation

                                                                        [189A(3)(b)]

                                                                                                   Agreement between

                                                                                                    parties – facilitation

                                                                                                    [189A(4)]

 

                                    60 days lapsed + CCMA appoint Facilitator [189A(7)]

                                                           

                                                Employer give notice of termination [189A(7)(a)]

 

 

Employees:

 

 

                                                Notice of Strike         Refer to LC [189A(7)(b)]

                   

 

30 days from 189(3) notice + 64(1) period elapsed + NO facilitator appointed

 

 

Employer give notoice of temination [189A(8)(a),(b)]

 

                       

 

 

Employees give notice of strike ito S64(1)                    Labour Court    

 

 

(at any time that employer give notice of termination [189A(9)]

(not if dispute referred to LC) [189A(10)(ii)]

 

 

Notice  of secondary strike [189A(11), (12)]

 

           14 days notice prior to strike + Facilitation if requested by employer

 

Strike

 

Court Interdict [189A(13)] – 30 days after notice to terminate

 

 

LC no procedural unfair jurisdiction [189A(18)]

 

LC has extensive Substantively unfair jurisdiction[189A(19)]

 

 

 

 

 

[(1) This section applies to employers employing more than 50 employees if-

 

(a)       the employer contemplates dismissing by reason of the employer's operational requirements, at least-

 

(i)         10 employees, if the employer employs up to 200 employees;

 

(ii)        20 employees, if the employer employs more than 200, but not more than 300, employees;

 

(iii)       30 employees, if the employer employs more than 300, but not more than 400, employees;

 

(iv)       40 employees, if the employer employs more than 400, but not more than 500, employees; or

 

(v)        50 employees, if the employer employs more than 500 employees; or

 

(b)       the number of employees that the employer contemplates dismissing together with the number of employees that have been dismissed by reason of the employer's operational requirements in the 12 months prior to the employer issuing a notice in terms of section 189 (3), is equal to or exceeds the relevant number specified in paragraph (a).

 

            (2) In respect of any dismissal covered by this section-

 

(a)       an employer must give notice of termination of employment in accordance with the provisions of this section;

 

(b)       despite section 65 (1) (c), an employee may participate in a strike and an employer may lock out in accordance with the provisions of this section;

 

(c)        the consulting parties may agree to vary the time periods for facilitation or consultation.

 

(3) The Commission must appoint a facilitator in terms of any regulations made under subsection (6) to assist the parties engaged in consultations if-

 

(a)       the employer has in its notice in terms of section 189 (3) requested facilitation; or

 

(b)       consulting parties representing the majority of employees whom the employer contemplates dismissing have requested facilitation and have notified the Commission within 15 days of the notice.

 

(4) This section does not prevent an agreement to appoint a facilitator in circumstances not contemplated in subsection (3).

 

(5) If a facilitator is appointed in terms of subsection (3) or (4) the facilitation must be conducted in terms of any regulations made by the Minister under subsection (6) for the conduct of such facilitations.

 

(6) The Minister, after consulting NEDLAC and the Commission, may make regulations relating to-

 

(a)       the time period, and the variation of time periods, for facilitation;

 

                        (b)       the powers and duties of facilitators;

 

(c)        the circumstances in which the Commission may charge a fee for appointing a facilitator and the amount of the fee; and

 

(d)       any other matter necessary for the conduct of facilitations.

 

(7) If a facilitator is appointed in terms of subsection (3) or (4), and 60 days have elapsed from the date on which notice was given in terms of section 189 (3)-

 

(a)       the employer may give notice to terminate the contracts of employment in accordance with section 37 (1) of the Basic Conditions of Employment Act; and

 

(b)       a registered trade union or the employees who have received notice of termination may either-

 

(i)         give notice of a strike in terms of section 64 (1) (b) or (d); or

 

(ii)        refer a dispute concerning whether there is a fair reason for the dismissal to the Labour Court in terms of section 191 (11) .

 

            (8) If a facilitator is not appointed-

 

(a)       a party may not refer a dispute to a council or the Commission unless a period of 30 days has lapsed from the date on which notice was given in terms of section 189 (3); and

 

(b)       once the periods mentioned in section 64 (1) (a) have elapsed-

 

(i)         the employer may give notice to terminate the contracts of employment in accordance with section 37 (1) of the Basic Conditions of Employment Act; and

 

(ii)        a registered trade union or the employees who have received notice of termination may-

 

(aa)     give notice of a strike in terms of section 64 (1) (b) or (d); or

 

(bb)     refer a dispute concerning whether there is a fair reason for the dismissal to the Labour Court in terms of section 191 (11).

 

(9) Notice of the commencement of a strike may be given if the employer dismisses or gives notice of dismissal before the expiry of the periods referred to in subsections (7) (a) or (8) (b) (i).

 

            (10) (a) A consulting party may not-

 

(i)         give notice of a strike in terms of this section in respect of a dismissal, if it has referred a dispute concerning whether there is a fair reason for that dismissal to the Labour Court;

 

(ii)        refer a dispute about whether there is a fair reason for a dismissal to the Labour Court, if it has given notice of a strike in terms of this section in respect of that dismissal.

 

            (b) If a trade union gives notice of a strike in terms of this section-

 

(i)         no member of that trade union, and no employee to whom a collective agreement concluded by that trade union dealing with consultation or facilitation in respect of dismissals by reason of the employers' operational requirements has been extended in terms of section 23 (1) (d), may refer a dispute concerning whether there is a fair reason for dismissal to the Labour Court;

 

(ii)        any referral to the Labour Court contemplated by subparagraph (i) that has been made, is deemed to be withdrawn.

 

(11) The following provisions of Chapter IV apply to any strike or lock-out in terms of this section:

 

                        (a)       Section 64 (1) and (3) (a) to (d), except that-

 

(i)         section 64 (1) (a) does not apply if a facilitator is appointed in terms of this section;

 

(ii)        an employer may only lock out in respect of a dispute in which a strike notice has been issued;

 

                        (b)       subsection (2) (a), section 65 (1) and (3);

 

(c)        section 66 except that written notice of any proposed secondary strike must be given at least 14 days prior to the commencement of the strike;

 

                        (d)       sections 67, 68, 69 and 76.

 

(12) (a) During the 14-day period referred to in subsection (11) (c), the director must, if requested by an employer who has received notice of any intended secondary strike, appoint a commissioner to attempt to resolve any dispute, between the employer and the party who gave the notice, through conciliation.

 

(b) A request to appoint a commissioner or the appointment of a commissioner in terms of paragraph (a) does not affect the right of employees to strike on the expiry of the 14-day period.

 

(13) If an employer does not comply with a fair procedure, a consulting party may approach the Labour Court by way of an application for an order-

 

                        (a)       compelling the employer to comply with a fair procedure;

 

(b)       interdicting or restraining the employer from dismissing an employee prior to complying with a fair procedure;

 

(c)        directing the employer to reinstate an employee until it has complied with a fair procedure;

 

(d)       make an award of compensation, if an order in terms of paragraphs (a) to (c) is not appropriate.

 

(14) Subject to this section, the Labour Court may make any appropriate order referred to in section 158 (1) (a).

 

(15) An award of compensation made to an employee in terms of subsection (14) must comply with section 194.

 

(16) The Labour Court may not make an order in respect of any matter concerning the disclosure of information in terms of section 189 (4) that has been the subject of an arbitration award in terms of section 16.

 

(17) (a) An application in terms of subsection (13) must be brought not later than 30 days after the employer has given notice to terminate the employee's services or, if notice is not given, the date on which the employees are dismissed.

 

(b) The Labour Court may, on good cause shown condone a failure to comply with the time limit mentioned in paragraph (a).

 

(18) The Labour Court may not adjudicate a dispute about the procedural fairness of a dismissal based on the employer's operational requirements in any dispute referred to it in terms of section 191 (5) (b) (ii).

 

(19) In any dispute referred to the Labour Court in terms of section 191 (5) (b) (ii) that concerns the dismissal of the number of employees specified in subsection (1), the Labour Court must find that the employee was dismissed for a fair reason if-

 

(a)       the dismissal was to give effect to a requirement based on the employer's economic, technological, structural or similar needs;

 

(b)       the dismissal was operationally justifiable on rational grounds;

 

                        (c)        there was a proper consideration of alternatives; and

 

                        (d)       selection criteria were fair and objective.

 

(20) For the purposes of this section, an 'employer' in the public service is the executing authority of a national department, provincial administration, provincial department or organisational component contemplated in section 7 (2) of the Public Service Act, 1994 (promulgated by Proclamation 103 of 1994).]

 

Disputes about unfair dismissals

 

Section 191 - heading

 

Disputes about unfair dismissals [and unfair labour practices]

 

Disputes about unfair dismissals

 

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

 

the Commission, if no council has jurisdiction.

 

[NB: Sub-s. (1) has been substituted by s. 46 (b) of the Labour Relations Amendment Act 12 of 2002, a provision which will be put into operation by proclamation.]

 

Section 191 (1)

 

(a) If there is a dispute about the fairness of a dismissal, [or a dispute about an unfair labour practice], the dismissed employee or the employee alleging the unfair labour practice may refer the dispute in writing (within 30 days of the date of the dismissal) to-

 

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

 

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

 

            (b) [A referral in terms of paragraph (a) must be made within-

 

(i)         30 days of the date of a dismissal or, if it is a later date, within 30 days of the employer making a final decision to dismiss or uphold the dismissal;

 

(ii)               90 days of the date of the act or omission which allegedly constitutes the unfair labour practice or, if it is a later date, within 90 days of the date on which the employee became aware of the act or occurrence.]

 

(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.

 

[NB: Sub-s. (2) has been substituted by s. 46 (c) and a sub-s. (2A) has been inserted by s. 46 (d) of the Labour Relations Amendment Act 12 of 2002, provisions which will be put into operation by proclamation.]

 

 

Section 191 (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 days) [relevant]  time limit in subsection (1) has expired.

 

Section 191 (2A)

 

[Subject to subsections (1) and (2) (30 days, 90 days or condonation granted) , an employee whose contract of employment is terminated by notice, may refer the dispute to the council or the Commission once the employee has received that notice.]

 

(3) 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-

 

        • the council or the Commission must arbitrate the dispute at the request of the employee if-

 

        • the employee has alleged that the reason for dismissal is related to the employee's conduct or capacity, unless paragraph (b) (iii) applies;

 

        • the employee has alleged that the reason for dismissal is that the employer made continued employment intolerable; or

 

[NB: Sub-para. (ii) has been substituted by s. 46 (e) of the Labour Relations Amendment Act 12 of 2002, a provision which will be put into operation by proclamation.]

 

 

Section 191 (5) (a) (ii)

 

the employee has alleged that the reason for dismissal is that the employer made continued employment intolerable [or the employer provided the employee with substantially less favourable conditions or circumstances at work after a transfer in terms of section 197 or 197A, unless the employee alleges that the contract of employment was terminated for a reason contemplated in section 187];(automatically unfair dismissal)

 

the employee does not know the reason for dismissal; or

 

[NB: A sub-para. (iv) has been added by s. 46 (f) of the Labour Relations Amendment Act 12 of 2002, a provision which will be put into operation by proclamation.]

 

 

 

Section 191 (5) (a) (iv)

 

                                                the dispute concerns an unfair labour practice; or

 

the employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is-

 

automatically unfair;

 

based on the employer's operational requirements;

 

the employee's participation in a strike that does not comply with the provisions of Chapter IV; or

 

because the employee refused to join, was refused membership of or was expelled from a trade union party to a closed shop agreement.

 

[NB: A sub-s. (5A) has been inserted by s. 46 (g) of the Labour Relations Amendment Act 12 of 2002, a provision which will be put into operation by proclamation.]

 

 

Section 191 (5A)

 

Despite any other provision in the Act, the council or Commission must commence the arbitration immediately after certifying that the dispute remains unresolved if the dispute concerns-

 

(a)       the dismissal of an employee for any reason relating to probation;

 

                        (b)       any unfair labour practice relating to probation;

 

(b)               any other dispute contemplated in subsection (5) (a) in respect of which no party has objected to the matter being dealt with in terms of this subsection.

 

Conciliation-arbitration [191(5A), R17]

 

nCompulsory:

    nDismissal relating to probation period

    nULP relating to probation period

    nOther dismissals with parties consent

 

nReferral form 7.11- without signature objecting

nNotice: 14 days prior to Con-arb-CCMA gives notice [R17(1)]

nParty may object: 7 days prior to date (not if probation matter) [R17(2)]

nIf party fail to appear at con-arb: continue [R17(4),(5)]

nLegal representation allowed [R17(6)]

nConduct/capacity qualified legal representation

nIf arbitration not started – Schedule another date

 

 

 

 

Section 191 (6)

 

Despite subsection (5) (a) [or (5A)], the director must refer the dispute to the Labour Court, if the director decides, on application by any party to the dispute, that to be appropriate after considering-

 

                        (a)       the reason for dismissal;

 

                        (b)       whether there are questions of law raised by the dispute;

 

                        (c)        the complexity of the dispute;

 

(d)       whether there are conflicting arbitration awards that need to be resolved;

 

(e)               the public interest.

 

(7) When considering whether the dispute should be referred to the Labour Court, the director must give the parties to the dispute and the commissioner who attempted to conciliate the dispute, an opportunity to make representations.

 

(8) The director must notify the parties of the decision and refer the dispute-

 

to the Commission for arbitration; or

 

to the Labour Court for adjudication.

 

(9) The director's decision is final and binding.

 

(10) No person may apply to any court of law to review the director's decision until the dispute has been arbitrated or adjudicated, as the case may be.

 

(11) (a) The referral, in terms of subsection (5) (b), of a dispute to the Labour Court for adjudication, must be made within 90 days after the council or (as the case may be) the commissioner has certified that the dispute remains unresolved.

 

(b)   However, the Labour Court may condone non-observance of that timeframe on good cause shown.

 

[NB: Sub-ss. (12) and (13) have been added by s. 46 (i) of the Labour Relations Amendment Act 12 of 2002, a provision which will be put into operation by proclamation. S. 191 has been amended by s. 46 (a) of the Labour Relations Amendment Act 12 of 2002, a provision which will be put into operation by proclamation.]

 

Section 191 (12)

 

If an employee is dismissed by reason of the employer's operational requirements following a consultation procedure in terms of section 189 that applied to that employee only, the employee may elect to refer the dispute either to arbitration or to the Labour Court.

 

Section 191 (13)

 

(No provision was made for conciliation, only 90-day period for referral to the Labour Court necessary)

 

(a) An employee may refer a dispute concerning an alleged unfair labour practice to the Labour Court for adjudication if the employee has alleged that the employee has been subjected to an occupational detriment by the employer in contravention of section 3 of the Protected Disclosures Act, 2000, for having made a protected disclosure defined in that Act.

 

(b)   A referral in terms of paragraph (a) is deemed to be made in terms of subsection (5) (b).

 

Remedies for unfair dismissal

 

Section 193 - heading

 

Remedies for unfair dismissal [and unfair labour practice]

 

Section 193 (4)

 

[An arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation.]

 

Limits on compensation

 

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.

 

[NB: Sub-s. (1) has been substituted by s. 48 (a) of the Labour Relations Amendment Act 12 of 2002, a provision which will be put into operation by proclamation.]

 

(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.

 

[NB: Sub-s. (2) has been deleted by s. 48 (b) of the Labour Relations Amendment Act 12 of 2002, a provision which will be put into operation by proclamation.]

 

 

 

Section 194 (1)

 

The compensation awarded to an employee whose dismissal is found to be unfair either because the employer did not prove that the reason for dismissal was a fair reason relating to the employee's conduct or capacity or the employer's operational requirements or the employer did not follow a fair procedure, or both, must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months' remuneration calculated at the employee's rate of remuneration on the date of dismissal.

 

Section 194 (2) – deleted

 

(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.

 

[NB: A sub-s. (4) has been added by s. 48 (c) of the Labour Relations Amendment Act 12 of 2002, a provision which will be put into operation by proclamation.]

 

Section 194 (4)

 

The compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances, but not more than the equivalent of 12 months remuneration.

 

Section 197 - Transfer of contract of employment

 

(see sect 187(1)(g) regarding automatically unfair dismissal)

 

Section 197 and 197A

 

 

Old employer                                                              New employer

 

 

 

Automatically substituted

All rights and obligations

Anything done

No interruption of continuity

No unfavourable terms

 

 

But: other funds my be introduced

 

          bound by: arbitration award

                   common law

                   statutory law

                   collective agreements

 

 

 

Section 197 only

 

Agreement in writing:       Old employer, New employer and Sec 189(1)-party

                                       Disclose all relevant information

                                       Value:          Leave pay

                                               Severance pay

                                               Other payments

                                        Specify which employer liable for payments

 

 

12 months after transfer:  

 

Old and new employer jointly

            and severably liable:                 Operational requirements dismissal

                                                     Claim for condition of employment              prior to transfer

 

 

 

 

 

            (1) In this section and in section 197A-

 

(a)       'business' includes the whole or a part of any business, trade, undertaking or service; and

 

(b)       'transfer' means the transfer of a business by one employer ('the old employer') to another employer ('the new employer') as a going concern.

 

(2) If a transfer of a business takes place, unless otherwise agreed in terms of subsection (6)-

 

(a)       the new employer is automatically substituted in the place of the old employer in respect of all contracts of employment in existence immediately before the date of transfer;

 

(b)       all the rights and obligations between the old employer and an employee at the time of the transfer continue in force as if they had been rights and obligations between the new employer and the employee;

 

(c)        anything done before the transfer by or in relation to the old employer, including the dismissal of an employee or the commission of an unfair labour practice or act of unfair discrimination, is considered to have been done by or in relation to the new employer; and

 

(d)       the transfer does not interrupt an employee's continuity of employment, and an employee's contract of employment continues with the new employer as if with the old employer.

 

(3) (a) The new employer complies with subsection (2) if that employer employs transferred employees on terms and conditions that are on the whole not less favourable to the employees than those on which they were employed by the old employer.

 

(b) Paragraph (a) does not apply to employees if any of their conditions of employment are determined by a collective agreement.

 

(4) Subsection (2) does not prevent an employee from being transferred to a pension, provident, retirement or similar fund other than the fund to which the employee belonged prior to the transfer, if the criteria in section 14 (1) (c) of the Pension Funds Act,1956 (Act 24 of 1956), are satisfied.*

 

(5) (a) For the purposes of this subsection, the collective agreements and arbitration awards referred to in paragraph (b) are agreements and awards that bound the old employer in respect of the employees to be transferred, immediately before the date of transfer.

 

(b) Unless otherwise agreed in terms of subsection (6), the new employer is bound by-

 

(i)         any arbitration award made in terms of this Act, the common law or any other law;

 

(ii)        any collective agreement binding in terms of section 23; and

 

(iii)       any collective agreement binding in terms of section 32 unless a commissioner acting in terms of section 62 decides otherwise.

 

(6) (a) An agreement contemplated in subsection (2) must be in writing and concluded between-

 

(i)         either the old employer, the new employer, or the old and new employers acting jointly, on the one hand; and

 

(ii)        the appropriate person or body referred to in section 189 (1), on the other.

 

(b) In any negotiations to conclude an agreement contemplated by paragraph (a), the employer or employers contemplated in subparagraph (i), must disclose to the person or body contemplated in subparagraph (ii), all relevant information that will allow it to engage effectively in the negotiations.

 

(c) Section 16 (4) to (14) applies, read with the changes required by the context, to the disclosure of information in terms of paragraph (b).

 

            (7) The old employer must-

 

(a)       agree with the new employer to a valuation as at the date of transfer of-

 

(i)         the leave pay accrued to the transferred employees of the old employer;

 

(ii)        the severance pay that would have been payable to the transferred employees of the old employer in the event of a dismissal by reason of the employer's operational requirements; and

 

(iii)       any other payments that have accrued to the transferred employees but have not been paid to employees of the old employer;

 

                        (b)       conclude a written agreement that specifies-

 

(i)         which employer is liable for paying any amount referred to in paragraph (a), and in the case of the apportionment of liability between them, the terms of that apportionment; and

 

(ii)        what provision has been made for any payment contemplated in paragraph (a) if any employee becomes entitled to receive a payment;

 

(c)        disclose the terms of the agreement contemplated in paragraph (b) to each employee who after the transfer becomes employed by the new employer; and

 

(d)       take any other measure that may be reasonable in the circumstances to ensure that adequate provision is made for any obligation on the new employer that may arise in terms of paragraph (a).

 

(8) For a period of 12 months after the date of the transfer, the old employer is jointly and severally liable with the new employer to any employee who becomes entitled to receive a payment contemplated in subsection (7) (a) as a result of the employee's dismissal for a reason relating to the employer's operational requirements or the employer's liquidation or sequestration, unless the old employer is able to show that it has complied with the provisions of this section.

 

(9) The old and new employer are jointly and severally liable in respect of any claim concerning any term or condition of employment that arose prior to the transfer.

 

(10) This section does not affect the liability of any person to be prosecuted for, convicted of, and sentenced for, any offence.

 

Section 197A - Transfer of contract of employment in circumstances of insolvency

 

            (1) This section applies to a transfer of a business-

 

                        (a)       if the old employer is insolvent; or

 

(b)       if a scheme of arrangement or compromise is being entered into to avoid winding-up or sequestration for reasons of insolvency.

 

(2) Despite the Insolvency Act, 1936 (Act 24 of 1936), if a transfer of a business takes place in the circumstances contemplated in subsection (1), unless otherwise agreed in terms of section 197 (6)-

 

(a)       the new employer is automatically substituted in the place of the old employer in all contracts of employment in existence immediately before the old employer's provisional winding-up or sequestration;

 

(b)       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;

 

(c)        anything done before the transfer by the old employer in respect of each employee is considered to have been done by the old employer;

 

(d)       the transfer does not interrupt the employee's continuity of employment and the employee's contract of employment continues with the new employer as if with the old employer.

 

(3) Section 197 (3), (4), (5) and (10) applies to a transfer in terms of this section and any reference to an agreement in that section must be read as a reference to an agreement contemplated in section 197 (6).

 

(4) Section 197 (5) applies to a collective agreement or arbitration binding on the employer immediately before the employer's provisional winding-up or sequestration.

 

(5) Section 197 (7), (8) and (9) does not apply to a transfer in accordance with this section.

 

Section 197B - Disclosure of information concerning insolvency

 

(1) An employer that is facing financial difficulties that may reasonably result in the winding-up or sequestration of the employer, must advise a consulting party contemplated in section 189 (1).

 

(2) (a) An employer that applies to be wound up or sequestrated, whether in terms of the Insolvency Act, 1936, or any other law, must at the time of making application, provide a consulting party contemplated in section 189 (1) with a copy of the application.

 

(b)   An employer that receives an application for its winding-up or sequestration must supply a copy of the application to any consulting party contemplated in section 189 (1), within two days of receipt, or if the proceedings are urgent, within 12 hours.

(b)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER IX

 

GENERAL PROVISIONS (ss 198-214)

 

Section 200A - Presumption as to who is employee

 

(1) Until the contrary is proved, a person who works for, or renders services to, any other person is presumed, regardless of the form of the contract, to be an employee, if any one or more of the following factors are present:

 

(a)       the manner in which the person works is subject to the control or direction of another person;

 

(b)       the person's hours of work are subject to the control or direction of another person;

 

(c)        in the case of a person who works for an organisation, the person forms part of that organisation;

 

(d)       the person has worked for that other person for an average of at least 40 hours per month over the last three months;

 

(e)       the person is economically dependent on the other person for whom he or she works or renders services;

 

(f)         the person is provided with tools of trade or work equipment by the other person; or

 

(g)       the person only works for or renders services to one person.

 

(2) Subsection (1) does not apply to any person who earns in excess of the amount determined by the Minister in terms of section 6 (3) of the Basic Conditions of Employment Act. (R __ ).

 

(3) If a proposed or existing work arrangement involves persons who earn amounts equal to or below the amounts determined by the Minister in terms of section 6 (3) of the Basic Conditions of Employment Act, any of the contracting parties may approach the Commission for an advisory award on whether the persons involved in the arrangement are employees.

 

(4) NEDLAC must prepare and issue a Code of Good Practice that sets out guidelines for determining whether persons, including those who earn in excess of the amount determined in subsection (2) are employees.

 

 

Codes of good practice

 

Section 203 (4)

 

A Code of Good Practice issued in terms of this section may provide that the code must be taken into account in applying or interpreting any employment law.

 

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

 

Section 204 - words preceding para. (a)

 

Unless a collective agreement, arbitration award or determination made in terms of the (Wage act) [Basic Conditions of Employment Act] provides otherwise, every employer on whom the collective agreement, arbitration award, or determination, is binding must-

 

Section 213 - definitions

 

'Basic Conditions of Employment Act' means the Basic Conditions Employment Act, 1997 (Act 75 of 1997).

 

'employment law' includes this Act, any other Act the administration of which has been assigned to the Minister, and any of the following Acts:

 

                        (a)       the Unemployment Insurance Act, 1966 (Act 30 of 1966);

 

                        (b)       the Skills Development Act, 1998 (Act 97 of 1998);

 

                        (c)        the Employment Equity Act, 1998 (Act 55 of 1998);

 

(d)       the Occupational Health and Safety Act, 1993 (Act 85 of 1993); and

 

(e)       the Compensation for Occupational Injuries and Diseases Act, 1993 (Act 130 of 1993);

 

'public service' means the national departments, provincial administrations, provincial departments and organisational components contemplated in section 7 (2) of the Public Service Act, 1994 (promulgated by Proclamation 103 of 1994), but excluding-

 

(a)       the members of the South African National Defence Force;

 

                        (b)       the National Intelligence Agency; and

 

                        (c)        the South African Secret Service.

 

            'registered scope' - para. (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);

 

            'workplace' - para. (a)

 

                                    in relation to the public service-

 

(i)         for the purposes of collective bargaining and dispute resolution, the registered scope of the Public Service Co-ordinating Bargaining Council or a bargaining council in a sector in the public service, as the case may be; or

 

(ii)        for any other purpose, a national department, provincial administration, provincial department or organisational component contemplated in section 7 (2) of the Public Service Act, 1994 (promulgated by Proclamation 103 of 1994), or any other part of the public service that the Minister for Public Service and Administration, after consultation with the Public Service Co-ordinating Bargaining Council, demarcates as a workplace;

 

            'workplace', para. (b) – deleted

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Schedule 7

 

TRANSITIONAL ARRANGEMENTS

 

Residual unfair labour practices

 

Disputes about unfair labour practices

 

Powers of Labour Court and Commission

 

Schedule 7, items 2, 3 and 4 - deleted

 

 

 

Schedule 7, Part H - Transitional Provisions arising out of the Application of the Labour Relations Amendment Act, 2002

 

Definitions

 

            In this part-

 

(a)       'Act' means the Labour Relations Act, 1995 (Act 66 of 1995); and

 

(b)       'Amendment Act' means the Labour Relations Amendment Act, 2002.

 

Representation in conciliation and arbitration

 

(1) Until such time as rules made by the Commission in terms of section 115 (2A) (m) of the Act come into force-

 

(a)       sections 135 (4(no legal representation at conciliation), 138 (4) (limited legal representation at arbitration) and 140 (1) (qualified legal representation at misconduct and capacity dismissals) of the Act remain in force as if they had not been repealed, and any reference in this item to those sections is a reference to those sections prior to amendment by this Amendment Act;

 

(b)       a bargaining council may be represented in arbitration proceedings in terms of section 33A of the Act by a person specified in section 138 (4) of the Act or by a designated agent or an official of the council;

 

(c)        the right of any party to be represented in proceedings in terms of section 191 of the Act must be determined by-

 

(i)                 section 138 (4) read with section 140 (1) of the Act for disputes about a dismissal; and

 

(legal representation at all dismissal arbitrations now qualified until CCMA issues its rules)

 

(ii)               section 138 (4) of the Act for disputes about an unfair labour practice.

 

(legal representation at unfair labour practice arbitrations allowed)

 

1.                                                                  Despite subitem 1 (a), section 138 (4) of the Act does not apply to an arbitration conducted in terms of section 188A of the Act.

 

(no legal representation allowed at pre-dismissal arbitrations)

 

Order for costs in arbitration

 

Section 138 (10) of the Act, before amendment by the Amendment Act, remains in effect as if it had not been amended until such time as the rules made by the Commission in terms of section 115 (2A) (j) of the Act come into effect.

 

Arbitration in terms of section 33A

 

(1) Until such time as the Minister promulgates a notice in terms of section 33A (13) of the Act, an arbitrator conducting an arbitration in terms of section 33A of the Act may impose a fine in terms of section 33A (8) (b) of the Act subject to the maximum fines set out in Table One and Two of this item.

 

(2) The maximum fine that may be imposed by an arbitrator in terms of section 33A(8)(b) of the Act-

 

(a)       for a failure to comply with a provision of a collective agreement not involving a failure to pay any amount of money, is the fine determined in terms of Table One; and

 

(b)       involving a failure to pay an amount due in terms of a collective agreement, is the greater of the amounts determined in terms of Table One and Table Two.

 

TABLE ONE: MAXIMUM PERMISSIBLE FINE NOT INVOLVING AN UNDERPAYMENT

 

 

No previous failure to comply         

R100 per employee in respect of whom the failure to comply occurs    

A previous failure to comply in respect of the same provision    

R200 per employee in respect of whom the failure to comply occurs    

A previous failure to comply within the previous 12 months or two previous failures to comply in respect of the same provisions within three years

R300 per employee in respect of whom the failure to comply occurs    

Three previous failures to comply in respect of the same provision within three years           

R400 per employee in respect of whom the failure to comply occurs    

Four or more previous failures to comply in respect of the same provision within three years           

R500 per employee in respect of whom the failure to comply occurs    

 

TABLE TWO: MAXIMUM PERMISSIBLE FINE INVOLVING AN UNDERPAYMENT

 

 

No previous failure to comply         

25% of the amount due, including any interest owing on the amount at the date of the order 

A previous failure to comply in respect of the same provision within three years         

50% of the amount due, including any interest owing on the amount at the date of the order 

A previous failure to comply in respect of the same provision within a year, or two previous failures to comply in respect of the same provision within three years         

75% of the amount due, including any interest owing on the amount at the date of the order 

Three previous failures to comply in respect of the same provision within three years           

100% of the amount due, including any interest owing on the amount at the date of the order           

Four or more previous failures to comply in respect of the same provision within three years           

200% of the amount due, including any interest owing on the amount at the date of the order           

 

Unfair labour practice

 

(1) Any dispute about an unfair labour practice referred to a council or Commission in accordance with items 3 (1) and (2) of this Schedule prior to the commencement of the Amendment Act must be dealt with as if items 2, 3 and 4 of this Schedule had not been repealed.

 

(2) (a) A dispute concerning any act or omission constituting an alleged unfair labour practice that occurred prior to the commencement of the Amendment Act that had not been referred to a council or Commission in terms of item 3 (1) and 3 (2) prior to the commencement of the Amendment Act must be dealt with in terms of section 191 of the Act.

 

(b) If a dispute contemplated in paragraph (a) is not referred to conciliation in terms of section 191 (1) (a) of the Act within 90 days of the commencement of the Amendment Act, the employee alleging the unfair labour practice must apply for condonation in terms of section 191 (2) of the Act.

 

(c) Subitem (a) does not apply to an unfair labour practice in relation to probation.

 

Bargaining councils in public service

 

Any bargaining council that was established or deemed to be established in terms of section 37 (3) of the Act prior to the Amendment Act coming into force is deemed to have been established in terms of section 37 (2) of the Act.

 

Expedited applications in terms of section 189A (13)

 

            Until such time as rules are made in terms of section 159 of the Act-

 

(a)       the Labour Court may not grant any order in terms of section 189A (13) or (14) of the Act unless the applicant has given at least four days' notice to the respondent of an application for an order in terms of subsection (1). However, the Court may permit a shorter period of notice if-

 

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

 

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

 

(iii)       the applicant has shown good cause why a period shorter than four days should be permitted;

 

(b)       an application made in terms of section 189A (13) must be enrolled by the Labour Court on an expedited basis.

 

 

 

 

 

 

 

 

 

 

Schedule 8, item 8 (1) - heading

 

PROBATION

 

Schedule 8 - item 8 (1)

 

(a) An employer may require a newly-hired employee to serve a period of probation before the appointment of the employee is confirmed.

 

(b) The purpose of probation is to give the employer an opportunity to evaluate the employee's performance before confirming the appointment.

 

(c) Probation should not be used for purposes not contemplated by this Code to deprive employees of the status of permanent employment. For example, a practice of dismissing employees who complete their probation periods and replacing them with newly-hired employees, is not consistent with the purpose of probation and constitutes an unfair labour practice.

 

(d) The period of probation should be determined in advance and be of reasonable duration. The length of the probationary period should be determined with reference to the nature of the job and the time it takes to determine the employee's suitability for continued employment.

 

(e) During the probationary period, the employee's performance should be assessed. An employer should give an employee reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render a satisfactory service.

 

(f) If the employer determines that the employee's performance is below standard, the employer should advise the employee of any aspects in which the employer considers the employee to be failing to meet the required performance standards. If the employer believes that the employee is incompetent, the employer should advise the employee of the respects in which the employee is not competent. The employer may either extend the probationary period or dismiss the employee after complying with subitems (g) or (h), as the case may be.

 

(g) The period of probation may only be extended for a reason that relates to the purpose of probation. The period of extension should not be disproportionate to the legitimate purpose that the employer seeks to achieve.

 

(h) An employer may only decide to dismiss an employee or extend the probationary period after the employer has invited the employee to make representations and has considered any representations made. A trade union representative or fellow employee may make the representations on behalf of the employee.

 

(i) If the employer decides to dismiss the employee or to extend the probationary period, the employer should advise the employee of his or her rights to refer the matter to a council having jurisdiction, or to the Commission.

 

(j) Any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period.

 

 

 

Schedule 10 - Powers of designated agent of bargaining council

 

(Section 33)

 

(1) A designated agent may, without warrant or notice at any reasonable time, enter any workplace or any other place where an employer carries on business or keeps employment records, that is not a home, in order to monitor or enforce compliance with a collective agreement concluded in the bargaining council.

 

(2) A designated agent may only enter a home or any place other than a place referred to in subitem (1)-

 

                        (a)       with the consent of the owner or occupier; or

 

(b)       if authorised to do so by the Labour Court in terms of subitem (3);

 

(3) The Labour Court may issue an authorisation contemplated in subitem (2) (b) only on written application by a designated agent who states under oath or affirmation the reasons for the need to enter a place, in order to monitor or enforce compliance with a collective agreement concluded in the bargaining council.

 

(4) If it is practicable to do so, the employer and a trade union representative must be notified that the designated agent is present at a workplace and of the reason for the designated agent's presence.

 

(5) In order to monitor or enforce compliance with a collective agreement a designated agent may-

 

(a)       require a person to disclose information, either orally or in writing, and either alone or in the presence of witnesses, on a matter to which a collective agreement relates, and require that disclosure to be under oath or affirmation;

 

(b)       inspect and question a person about any record or document to which a collective agreement relates;

 

(c)        copy any record or document referred to in paragraph (b) or remove these to make copies or extracts;

 

(d)       require a person to produce or deliver to a place specified by the designated agent any record or document referred to in paragraph (b) for inspection;

 

(e)       inspect, question a person about, and if necessary remove, an article, substance or machinery present at a place referred to in subitems (1) and (2);

 

                        (f)         question a person about any work performed; and

 

(g)       perform any other prescribed function necessary for monitoring or enforcing compliance with a collective agreement.

 

(6) A designated agent may be accompanied by an interpreter and any other person reasonably required to assist in conducting an inspection.

 

            (7) A designated agent must-

 

(a)       produce on request a copy of the authorisation referred to in subitem (3);

 

(b)       provide a receipt for any record or document removed in terms of subitem (5) (e); and

 

(c)        return any removed record, document or item within a reasonable time.

 

(8) Any person who is questioned by a designated agent in terms of subitem (5) must answer all questions lawfully put to that person truthfully and to the best of that person's ability.

 

(9) An answer by any person to a question by a designated agent in terms of this item may not be used against that person in any criminal proceedings, except proceedings in respect of a charge of perjury or making a false statement.

 

(10) Every employer and each employee must provide any facility and assistance at a workplace that is reasonably required by a designated agent to effectively perform the designated agent's functions.

 

(11) The bargaining council may apply to the Labour Court for an appropriate order against any person who-

 

(a)       refuses or fails to answer all questions lawfully put to that person truthfully and to the best of that person's ability;

 

(b)       refuses or fails to comply with any requirement of the designated agent in terms of this item; or

 

(c)        hinders the designated agent in the performance of the agent's functions in terms of this item.

 

(12) For the purposes of this Schedule, a collective agreement is deemed to include any basic condition of employment which constitutes a term of a contract of employment in terms of section 49 (1) of the Basic Conditions of Employment Act.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

RULES FOR THE CONDUCT OF PROCEEDINGS

BEFORE THE CCMA

STAATSKOERANT, 25 JULIE 2002 No. 23611 245

 

T A B L E OF C O N T E N T S

 

 

PART ONE

SERVING AND FILING DOCUMENTS

 

1. How to contact the Commission

2. When are the offices of the Commission open

3. How to calculate time periods in these rules

4. Who must sign documents

5. How to serve documents on other parties

6. How to prove that a document was served in terms of the rules

7. How to file documents with the Commission

8. Documents and notices sent by registered post

9. How to seek condonation for documents filed late

 

PART TWO

CONCILIATION OF DISPUTES

 

10. How to refer a dispute to the Commission for conciliation

11. What notice must the Commission give of a conciliation

12. Commission may seek to resolve dispute before conciliation

13. What happens if a party fails to attend or is not represented at conciliation

14. How to determine whether a commissioner may conciliate a dispute

15. Issuing a certificate in terms of section 135(5)

16. Conciliation proceedings may not be disclosed

 

PART THREE

CON -ARB IN TERMS OF SECTION 191 (5A)

 

17. Conduct of con-arb in terms of section 191 (5A)

 

PART FOUR

ARBITRATIONS

 

18. How to request arbitration

19. When must the parties fiie statements

20. When the parties must hold a pre-arbitration conference

21. What notice must the commission give of an arbitration

22. How to determine whether a Commissioner may arbitrate a dispute

23. How to postpone an arbitration

 

PART FIVE

RULES THAT APPLY TO CONCILIATIONS AND ARBITRATIONS AND

CON-ARBS

 

24. Where a conciliation or arbitration will take place.

25. Objections to a representative appearing before the Commission

26. How to join or substitute parties to proceedings

27. How to correct a citation of a party

28. When the Commissioner may consolidate disputes

29. Disclosure of documents

30. What happens if a party fails to attend proceedings before the

Commission

PART SIX

APPLICATIONS

 

31. How to bring an application

32. How to apply to vary or rescind arbitration awards or rulings

33. How to apply to refer a dismissal dispute to the Labour Court

 

PART SEVEN

PRE-DISMISSAL ARBITRATION IN TERMS OF SECTION 188A

 

34. How to request a pre-dismissal arbitration in terms of section 188A

 

PART EIGHT

GENERAL

 

35. Condonation for failure to comply with the rules

36. Recordings of Commission proceedings

37. How to have a subpoena issued

38. Payment of witnws fees .

39. Taxation of bills of cost

40. What words mean in these rules

 

 

PART ONE

 

SERVING AND FILING DOCUMENTS

 

  1. How to contact the Commission

 

(I) The addresses, telephone and telefax numbers of the offices of

the Commission are listed in Schedule One to these rules.

(2) Documents may only be filed with the Commission at the

addresses or telefax numbers listed in Schedule One.

 

  1. When are the offices of the Commission open

 

(1) The head office and the provincial offices of the

Commission will be open every day from Monday to

Friday, excluding public holidays, between the hours of

08h30 and 16h30, or as determined by the Commission.

 

(2) Documents may only be filed with the Commission

during the hours referred to in subrule (4).

 

(3) Notwithstanding subrule (2), documents may be faxed at

any time to the Commission.

 

  1. How to calculate time periods in these rules

 

(1) For the purpose of calculating any period of time in terms of

these rules -

(a) day means a calendar day; and

(b) the first day is excluded and the last day is included, subject

to subrule (2).

 

(2) The last day of any period must be excluded if it falls on a

Saturday, Sunday, public holiday or on a day during the period

between 16 December to 7 January.

 

  1. Who must sign documents

 

(1) A document that a party must sign in terms of the Act or these

rules may be signed by the party or by a person entitled in terms

of the Act or these rules to represent that party in the

proceedings.

 

(2) If proceedings are jointly instituted or opposed by more than one

employee, documents may be signed by an employee who is

mandated by the other employees to sign documents. A list in

writing, of the employees who have mandated the employee to

sign on their behalf must be attached to the referral document.

  1. How to serve documents on other parties

 

(1) A party must serve a document on the other parties -

(a) by handing a copy of the document to

(i) the person concerned;

(ii) a representative authorised in writing to

accept service on behalf of the person;

(iii) a person who appears to be at least 16

years old and in charge of the person's

place of residence, business or place of

employment premises at the time;

(iv) a person identified in subrule (2);

 

(b) by leaving a copy of the document at -

(i) an address chosen by the person to receive

service;

(ii) any premises in accordance with subrule (3);

 

(c) by faxing or telexing a copy of the document to the

person's fax or telex number respectively, or a

number chosen by that person to receive service;

 

(d) by sending a copy of the document by registered - post

or telegram to the last-known address of the party or an

address chosen by the party to receive service.

 

 

(2) A document may also be served-

(a) on a company or other body corporate by handing a

copy of the document to a responsible employee of

the company or body at its registered office, its

principal place of business within the Republic or its

main place of business within the magisterial district

in which the dispute first arose;

 

(b) on an employer by handing a copy of the document

to a responsible employee of the employer at the

workplace where the employees involved in the

dispute ordinarily work or worked;

 

(c) on a trade union or employers’ organisation by

handing a copy of the document to a responsible

employee or official at the main office of the union or

employers’ organisation or its office in the

magisterial district in which the dispute arose;

 

(d) on a partnership, firm or association by handing a

copy of the document to a responsible employee or

official at the place of business of the partnership,

firm or association or, if it has no place of business,

by serving a copy of the document on a partner, the

owner of the firm or the chairman or secretary of the

managing or other controlling body of the

association, as the case may be;

 

(e) on a municipality, by serving a copy of the document

on the municipal manager or any person acting on

behalf of that person;

 

(f) on a statutory body, by handing a copy to the

secretary or similar officer or member of the board or

committee of that body, or any person acting on

behalf of that body;

 

(g) on the State or a province, a state department or a

provincial department, a minister, premier or a

member of the executive committee of a province by

handing a copy to a responsible employee at the

head office of the party or to a responsible employee

at any office of the State Attorney.

 

(3) If no person identified in subrule (2) is willing to accept

service, service may be effected by affixing a copy of the

document to -

(a)               the main door of the premises concerned or;

 

(b) if this is not accessible, a post-box or other place

to which the public has access.

 

(4) The Commission or a commissioner may order service in a

manner other than prescribed in this rule.

 

  1. How to prove that a document was served in terms of the rules

 

(1) A party must prove to the Commission or a commissioner

that a document was served in terms of these rules, by

providing the Commission or a commissioner:

(a) with a copy of proof of mailing the document by

registered post to the other party;

 

(b) with a copy of the telegram or telex communicating

the document to the other party;

 

(c) with a copy of the telefax transmission report

indicating the successful transmission to, the other

party of the whole document; or

 

(d) if a document was served by hand -

(i) with a copy of a receipt signed by, or on behalf

of, the other party clearly indicating the name

and designation of the recipient and the place,

time and date of service; or

 

(ii) with a statement confirming service signed by

the person who delivered a copy of the

document to the other party or left it at any

premises.

 

(2) If proof of service in accordance with subrule (1) is

provided, it is presumed, until the contrary is proved, that

the party on whom it was served has knowledge of the

contents of the document.

 

(3) The Commission may accept proof of service in a manner

other than prescribed in this rule, as sufficient.

 

  1. How to file documents with the Commission

 

(1) A party must file documents with the Commission:

(a) by handing the document to the office of the provincial

registrar at the address listed in Schedule One;

 

(b) by sending a copy of the document by registered post to

the office of the provincial registrar at the address listed

in Schedule One; or

 

(c) by faxing the document to the office of the provincial

Registrar at a number listed in Schedule One.

 

(2) A document is filed with the Commission when -

(a) the document is handed to the office of the

provincial Registrar;

 

(b) a document sent by registered post is received by

the office of the provincial Registrar; or

 

(c)   the transmission of a fax is completed.

 

(3) A party must only file the original of a document filed by fax, if

requested to do so by the Commission or a commissioner. A

party must comply with a request to file an original document

within seven days of the request.

 

  1. Documents and notices sent by registered post

 

Any document or notice sent by registered post by a party or the

Commission is presumed, until the contrary is proved, to have

been received by the person to whom it was sent seven days

after it was posted.

 

  1. How to seek condonation for documents delivered late

 

(1) This rule applies to any referral document or application

delivered outside of the applicable time period prescribed in the

Act or these rules.

 

(2) A party must apply for condonation, in terms of rule 31, when

delivering the document to the Commission.

 

(3) . An application for condonation must set out the grounds for

seeking condonation and must include details of the following:

(a) the degree of lateness;

(b) the reasons for the lateness;

(c) the referring parties’ prospects of succeeding with the

referral and obtaining the relief sought against the other

party;

(d) any prejudice to the other party; and

(e) any other relevant factors.

 

(4) The Commission may assist a referring party to comply with this

rule.

 

.PART TWO

 

CONCILIATION OF DISPUTES

 

10 How to refer a dispute to the Commission for conciliation

 

(1 ) A party must refer a dispute to the Commission for conciliation

by delivering a completed LRA Form 7.1 I (”the referral

document”).

 

(2) The referring party must -

(a) sign the referral document in accordance with rule 4;

(b) attach to the referral document written proof, in

accordance with rule 6, that the referral document was

served on the other parties to the dispute;

(c) if the referral document is filed out of time, attach an

application for condonation in accordance with rule 9.

 

(3) The Commission must refuse to accept a referral document until

subrule (2) has been complied with.

 

11 What notice must the Commission give of a conciliation

 

The Commission must give the parties at least 14 days notice in

writing of a conciliation hearing, unless the parties agree to a

shorter period of notice.

 

12 Commission may seek to resolve dispute before conciliation

 

The, Commission or a commissioner may contact the parties by

telephone or other means, prior to the commencement of the

conciliation, in order to seek to resolve the dispute.

 

13. What happens if a party fails to attend or is not represented at

conciliation

 

(1) The parties to a dispute must attend a conciliation in person,

irrespective of whether they are represented.

 

(2) If a party is represented at the conciliation but fails to attend in

person, the commissioner may -

(a) continue with the proceedings;

(b) adjourn the proceedings; or

( c) dismiss the matter by issuing a written ruling.

 

(3) In exercising a discretion in terms of subrule (2), a commissioner

should take into account, amongst other things -

(a) whether the party has previously failed to attend a

conciliation in respect of that dispute;

 

(b) any reason given for that party’s failure to attend;

 

(c) whether conciliation can take place effectively in the

absence of that party;

 

(d) the likely prejudice to the other party of the

commissioner‘s ruling;

 

(e)   any other relevant factors.

 

(4) If a party to a dispute fails to attend in person or to be

represented at a conciliation, the commissioner may deal with it

in terms of rule 30.

 

14. How to determine whether a commissioner may conciliate a

dispute

 

If it appears during conciliation proceedings that a jurisdictional

issue has not been determined, the commissioner must require

the referring party to prove that the Commission has the

jurisdiction to conciliate the dispute through conciliation.

 

1 Section 135(4) provides that: ’In the conciliation proceedings a party to the dispute may appear in person or be represented only by -

(a) a djrector or employee of that party; or

(b) any member, office bearer or official of that party‘s registered trade union or

registered employers’ organisation.”

 

 

15 Issuing of a certificate in terms of section 135(5)

 

A certificate issued in terms of section 135(5) that the dispute has or

has not been resolved, must identify the nature of the dispute as

described in the referral document or as identified by the commissioner

during the conciliation process.

 

16 Conciliation proceedings may not be disclosed

 

(1) Conciliation proceedings are private and confidential and

are conducted on a without prejudice basis. No person

may refer to anything said at conciliation proceedings

during any subsequent proceedings, unless the parties

agree in writing.

 

(2) No person, including a commissioner, may be called as a

witness during any subsequent proceedings in the

Commission or in any court to give evidence about what

transpired during conciliation.

 

 

PART THREE

 

CON-ARB IN TERMS OF SECTION 191(5A)

 

 

17. Conduct of con-arb in terms of section 191(5A)

 

(1) The Commission must give the parties at least fourteen days

notice in writing that a matter has been scheduled for con-arb in

terms of section 191 (5A) of the Act.

 

(2) A party that intends to object to a dispute being dealt with in

terms of section 191 (5A), must deliver a written notice to the

Commission and the other party, at least seven days prior to the

scheduled date in terms of subrule (1).

 

(3) Subrule (2) does not apply to a dispute concerning the dismissal

of an employee for any reason related to probation or an unfair

labour practice relating to probation.

 

(4) If a party fails to appear or be represented at a hearing

scheduled in terms of subrule (1), the commissioner must

conduct the conciliation on the date specified in the notice

issued in subrule (1).

 

(5) Subrule (4) applies irrespective of whether a party has lodged a

notice of objection in terms of subrule (2).

 

(6) In con-arb proceedings a party to the dispute may appear in

person or be represented only by -

(a) subject to subrule (7) a legal practitioner;

(b) a director or employee of that party; or

(c) any member, office bearer or official of that party's

registered trade union or registered employers'

organisation'.

 

(7) If the dispute concerns an unfair dismissal and the party has

alleged the reason for the dismissal relates to the employee's

conduct or capacity, a party may only be represented by a legal

practitioner in the circumstances contemplated in section

140(1)3.

 

(8) The provisions of the Act and these rules that are applicable to

conciliation and arbitration respectively apply, with the changes

required by the context, to con-arb proceedings.

If the arbitration does not commence on the date specified in

terms of the notice in subrule (l), the Commission must

schedule the matter for arbitration either in the presence of the

parties or by issuing a notice in terms of rule 21.

 

PART FOUR

 

ARBITRATIONS

 

18. How to request arbitration

 

(1) A party may request the Commission to arbitrate a dispute by

delivering a document in the form of Annexure LRA 7.13 ("the

referral document").

 

(2) The referring party must -

(a)   sign the referral document in accordance with rule 4;

 

2 Subdes (6) and (7) apply item 27(l)(c) of Schedule 7 to the Act.

3 The text of section 140(1) is reproduced in footnote 5 to Rule 25.

 

 

 

(b) attach to the referral document written proof that the

referral document was sewed on the other parties to the

dispute in accordance with rule 6; and

 

(c) if the referral document is served out of time, attach an

application for condonation in accordance with rule 9.

 

(3) The Commission must refuse to accept a referral document until

subrule (2) has been complied with.

 

(4) This rule does not apply to con-arb proceedings held in terms of

section 191 (5A).

 

19 When must the parties file statements

 

(1) The Commission or a commissioner may direct -

(a) the referring party in an arbitration to deliver a statement

of case; and

(b)   the other parties to deliver an answering statement.

 

(2) A statement in terms of subrule (2) must -

(d) set out the material facts upon which the party relies and

the legal issues that arise from the material facts;

 

(e) be delivered within the time-period in the notice referred

to in subrule (2).

 

20 When the parties must hold a pre-arbitration conference

 

(1 ) The parties to an arbitration must hold a pre-arbitration

conference dealing with the matters referred to in subrule (2), if

directed to do so by the Director.

 

(2) In a pre-arbitration conference, the parties must attempt to reach

consensus on the following:

(a)   any means by which the dispute may be settled;

 

4 In terms of section 136(l)(b), a party must request the Commission to arbitrate a dispute within 90 days after the Commission has issued a certificate that the dispute has not been resolved. A request made outside of this time-period may be condoned on good cause shown.

 

(b)   facts that are agreed between the parties;

 

(c ) facts that are in dispute;

 

(d) the issues that the Commission is required to

decide;

 

(e) the precise relief claimed and if compensation is

claimed, the amount of the compensation and how

it is calculated;

 

(f)the sharing and exchange of relevant documents,

and the preparation of a bundle of documents in

chronological order with each page numbered;

 

(g) the manner in which documentary evidence is to

be dealt with, including any agreement on the

status of documents and whether documents, or

parts of documents, will serve as evidence of what

they appear to be;

 

(h) whether evidence on affidavit will be admitted with

or without the right of any party to cross-examine

the person who made the affidavit;

 

(i) which party must begin;

 

(j) the necessity for any on-the-spot inspection;

 

(k) securing the presence at the Commission of any

witness;

 

(l) the resolution of any preliminary points that are

intended to be taken;

 

(m) the exchange of witness statements;

 

(n) expert evidence;

 

(o) any other means by which the proceedings may be

shortened:

 

(p) an estimate of the time required for the hearing;

 

(q) the right of representation; and

 

( r) whether an interpreter is required and, if so, for

how long and for which languages.

 

(3) Unless a dispute is settled, the parties must draw up and

sign a minute setting out the facts on which the parties

agree or disagree.

 

(4) A minute in terms of subrule (3) may also deal with any

other matter listed in subrule (2).

 

(5) The referring party must ensure that a copy of the pre-

arbitration conference minute is delivered to the

appointed commissioner within seven days' of the

conclusion of the pre-arbitration conference.

 

(6) The commissioner may, after receiving a pre-arbitration

minute -

(a) enroll the matter for arbitration;

(b) direct the parties to hold a further pre-arbitration

conference; or

(c) make any other direction to the parties concerning

the conduct of the arbitration.

 

(7) If a party that has referred a matter to arbitration fails to

attend a pre-arbitration conference, the commissioner

may deal with the matter in terms of rule 30.

 

(8) If any other party fails to attend a pre-arbitration

conference without a justifiable reason, the commissioner

may make an order of costs against that party.

 

(9) The parties to an arbitration may agree to hold a pre-

arbitration conference in terms of sub-rule (2).

 

21. What notice must the commission give of an arbitration

 

The Commission must give the parties at least 21 days notice, in

writing, of an arbitration hearing, unless the parties agree to a shorter

period.

 

22. How to determine whether a commissioner may arbitrate a dispute

 

If during the arbitration proceedings it appears that a jurisdictional issue

has not been determined, the commissioner must require the referring

party to prove that the Commission has jurisdiction to arbitrate the

dispute.

 

23. How to postpone an arbitration

 

(1 ) An arbitration may be postponed -

(a) by agreement between the parties in terms of subrule (2);

or

(b) by application and on notice to the other parties in terms

of sub-rule (3).

 

(2) The Commission must postpone an arbitration without the

parties appearing if -

(a) all the parties to the dispute agree in writing to the

postponement; and

(b) the written agreement for the postponement is

received by the Commission more than seven days

prior to the scheduled date of the arbitration.

 

(3) If the conditions of sub-rule (2) are not met, any party may apply

in terms of rule 31 to postpone an arbitration by delivering an

application to the other parties to the dispute and filing a copy

with the Commission before the scheduled date of the

arbitration.

 

(4) After considering the written application, the Commission may -

(a) without convening a hearing, postpone the matter; or

(b) convene a hearing to determine whether to postpone the

matter.

 

 

PART FIVE

 

RULES THAT APPLY TO CONCILIATIONS AND ARBlTRATlONS AND

CON-ARBS

 

24. Where a conciliation or arbitration will take place

 

(1) A dispute must be conciliated or arbitrated in the province in

which the cause of action arose, unless a senior commissioner

in the head office of the Commission directs otherwise.

 

(2) The Commission within a province determines the venue for

conciliation or arbitration proceedings.

 

25. Objections to a representative appearing before the Commission.

 

(1) If a party to the dispute objects to the representation of another

party to the dispute or the commissioner suspects that the

representative of a party does not qualify in terms of the Act, the

commissioner must determine this issue. 2

 

(2) The commissioner may call upon the representative to establish

why the representative should be permitted to appear in terms of

the Act.

 

(3) A representative must tender any documents requested by the

commissioner, in terms of sub-rule (2), including constitutions,

pay slips, contracts of employment, documents and forms,

recognition agreements and proof of membership of a trade union

or employers' organisation.

 

26. How to join or substitute parties to proceedings

 

(1) The Commission or a commissioner may join any number

of persons as parties in proceedings if their right to relief

depends on substantially the same question of law or fact.

 

(2) A commissioner may make an order joining any person as

a party in the proceedings if the party to be joined has a

substantial interest in the subject mz.tter of the

proceedings.

 

(3) A commissioner may make an order in terms of subrule

(2) -

(a) of its own accord;

( b ) on application by a party; or

(c) if a person entitled to join the proceedings applies

at any time during the proceedings to intervene as

a party.

 

(4) An application in terms of this rule must be made in terms

of rule 31.

(5) When making an order in terms of subrule (2), a

commissioner may -

(a) give appropriate directions as to the further

procedure in the proceedings; and

(b) make an order of costs in accordance with these

rules.

 

(6) If in any proceedings it becomes necessary to substitute a

person for an existing party, any party to the proceedings

may apply to the Commission for an order substituting

that party for an existing party, and a commissioner may

make such order or give appropriate directions as to the

further procedure in the proceedings.

 

(7) An application to join any person as a party to

proceedings or to be substituted for an existing party must

be accompanied by copies of all documents previousty

delivered, unless the person concerned or that person’s

representative is already in possession of the documents.

 

(8) Subject to any order made in terms of subrules (5) and

(6), a joinder or substitution in terms of this rule does not

affect any steps already taken in the proceedings.

 

27. How to correct the citation of a party

 

If a party to any proceedings has been incorrectly or defectively

cited, the Commission may, on application and on notice to the

parties concerned, correct the error or defect.

 

28. When the Commission may consolidate disputes

 

The Commission or a commissioner, of its own accord or on

application, may consolidate more than one dispute so that the

disputes may be dealt with in the same proceedings.

 

29. Disclosure of documents

 

(1) Either party may request a commissioner to make an

order as to the disclosure of relevant documents.

 

(2) The parties may agree on the disclosure of documents.

 

30. What happens if a party fails to attend proceedings before the

Commission

 

(1) If a party to the dispute fails to attend or be represented at any

proceedings before the Commission, and that party -

(a) had referred the dispute to the Commission, a

commissioner may dismiss the matter by issuing a written

ruling; or

(b) had not referred the matter to the Commission, the

commissioner may -

(i) continue with the proceedings in the absence of

that party; or

(ii) adjourn the proceedings to a later date.

 

(2) A commissioner must be satisfied that the party had been

properly notified of the date, time and venue of the proceedings,

before making any decision in terms of subrule (1).

 

(3) If a matter is dismissed, the Commission must send a copy of

the ruling to the parties.

 

The representation of parties at the Commission is dealt with in sections 135(4), 138(4) and

140(1) of the Act.

Section 135(4) provides that: "In the conciliation proceedings a party to the dispute may

appear in person or be represented only by -

(a) a director or employee of that party; or

(b) any member, office bearer or official of that party's registered trade union or

registered employers'organisafion."

Section 138(4) provides that: "In any arbitration proceedings, a party to the dispufe may

appear in person or be represented only by:

(a) that a legal practitioner;

(b) a director or employee of the party; or

(c) any member, ofice-bearer or official of that party's registered trade union or a

registered employers' organisation."

Section 140(1) provides that: " I f 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 legalpraciifioner in the proceedings unless -

(a) the commissioner and all the other parties consent;

(b) the commissioner concludes that it is unreasonable to expect a party to deal with the

dispufe without legal representation, after considering -

(i) the nature of the questions of law raised by the dispute;

(ii) the complexity of the dispufe;

(iii) the public interest; and

(iv) the comparative ability of the opposing parties or their

representatives to deal with the dispute.

 

PART SIX

 

APPLICATIONS

 

31, How to bring an application

 

(1) This rule applies to any -

(a) application for condonation, joinder, substitution,

variation or rescission;

(b) application in a jurisdictional dispute;

(c)               other preliminary or interlocutory application.

 

(2) An application must be brought on notice to all persons

who have an interest in the application.

 

(3) The party bringing the application must sign the notice of

application in accordance with rule 4 and must state -

(a) the title of the matter:

(b) the case number assigned to the matter by the

Commission;

(c ) the relief sought;

(d) the address at which the party delivering the

document will accept delivery of all documents and

proceedings;

(e) that any party that intends to oppose the matter

must deliver a notice of opposition and answering

affidavit within fourteen days after the application

has been delivered to it;

(f) that the application may be heard in the absence of

a party that does not comply with sub-paragraph (e);

(g) that a schedule is included listing the documents

that are material and relevant to the application.

 

(4) The application must be supported by an affidavit. The

affidavit must clearly and concisely set out -

(a) the names, description and addresses of the parties;

 

(b)a statement of the material facts, in chronological

order, on which the application is based, in sufficient

detail to enable any person opposing the application

to reply to the facts;

( c) a statement of legal issues that arise from the

material facts, in sufficient detail to enable any party

to reply to the document;

(d) if the application is filed outside the relevant time

period, grounds for condonation in accordance with

rule 9; and

(e) if the application is brought urgently, the

circumstances why the matter is urgent and the

reasons why it cannot be dealt with in accordance

with the time frames prescribed in these rules.

 

(5)(a) Any party opposing the application may deliver a

notice of opposition and an answering affidavit within

fourteen days from the day on which the application

was served on that party.

 

(b) A notice of opposition and an answering affidavit

must contain, with the changes required by the

context, the information required by subrules (3) and

(4) respectively.

 

(6)(a) The party initiating the proceedings may deliver a

replying affidavit within seven days from the day on

which any notice of opposition and answering

affidavit are served on it.

 

(b) The replying affidavit must address only issues

raised in the answering affidavit and may not

introduce new issues of fact or law.

 

(7) A commissioner may permit the affidavits referred to in

this rule to be substituted by a written statement.

 

(8) In an urgent application, the Commission or a

commissioner -

(a) may dispense with the requirements of this rule; and

(b) may only grant an order against a party that has had

reasonable notice of the application.

 

(9)(a) The Commission must allocate a date for, the

hearing of the application once a replying affidavit is

delivered, or once the time limit for delivering a

replying affidavit has lapsed, whichever occurs first.

 

(b) The Commission must notify the parties of the date,

time and place of the hearing of the application.

 

(c ) Applications may be heard on a motion roll.

 

(10) Despite this rule, the Commission or a commissioner may

determine an application in any manner it deems fit.

 

32. How to apply to vary or rescind arbitration awards or rulings

 

(1) An application for the variation or rescission of an

arbitration award or ruling must be made within fourteen

days of the date on which the applicant became aware

of-

(a) the arbitration award or ruling; or

(b) a mistake common to the parties to the

proceedings.

 

(2) A ruling made by a commissioner which has the effect of

a final order, will be regarded as a ruling for the purposes

of this rule.

 

33. How to apply to refer a dismissal dispute to the Labour Court

 

( I ) An application in terms of section 191(6) of the Act to

refer a matter to the Labour Court, must be delivered -

(a) within ninety days of a certificate that the dispute

has not been resolved being issued; or

(b) by a party that has not requested arbitration, within

fourteen days of the referral for arbitration being

filed.

 

(2) Despite subrule (I), a party that requests arbitration may

not thereafter make an application in terms of section

I91 (6).

 

(3) The application must state the grounds on which a party

relies in requesting that the dispute be referred to the

Labour Court.

 

(4) If any party to the dispute objects to the matter being

referred to the Labour Court, that party must state the

grounds for the objection within seven days of receipt of

the application.

 

(5) The Commission must notify the parties of its decision in

terms of section 191(8) within fourteen days of receiving

the objection.

 

PART SEVEN

 

PRE-DISMISSAL ARBITRATION IN TERMS OF SECTION 188A

 

34. How to request a pre-dismissal arbitration in terms of section

188A

 

(1) An employer requesting the Commission to conduct a pre-

dismissal arbitration, must do so by delivering a completed LRA

Form 7. I 9 to the Commission.]

 

(2) The employee must sign the LRA form 7.1 9 unless the

employee has consented in terms of section 188A(4)(b)6 to pre-

dismissal arbitration in a contract of employment, in which case

a copy of the contract must be attached to the form.

 

(3) When filing the LRA Form 7.19, the employer must pay the

prescribed fee to the Commission. Payment of the fee may only

be made by -

(a) bank guaranteed cheque; or

(b) electronic transfer into the bank account of the

Commission.

 

(4.) Within twenty-one days of receiving a request in terms of

subrule (I) and payment of the prescribed fee, the Commission

must notify the parties to the pre-dismissal arbitration of when

and where the pre-dismissal arbitration will be held.

 

(5) Unless the parties agree otherwise, the Commission must give

the parties at least fourteen days notice of the commencement

of the pre-dismissal arbitration.

 

(6) The Commission is only required to refund a fee paid in terms of

subrule (3), if the Commission is notified of the resolution of the

matter prior to issuing a notice in terms of sub-rule (4).

 

 

 

 

PART EIGHT

 

GENERAL

 

35. Condonation for failure to comply with the rules

 

The Commission or a commissioner may condone any failure to

comply with the time frames in these rules, on good cause shown.

 

36. Recordings of Commission proceedings

 

(1) The Commission must keep a record of -

(a) any evidence given in an arbitration hearing;

(b) any sworn testimony given in any proceedings

before the Commission; and

(c) any arbitration award or ruling made by a

Commissioner.

 

(2) The record may be kept by legible hand-written notes or

by means of an electronic recording.

 

(3) A party may request a copy of the transcript of a record or

a portion of a record kept in terms of subrule (2), on

payment of the costs of the transcription.

 

(4) After the person who makes the transcript of the record

has certified that it is correct, the record must be returned

to the provincial Registrar.

 

(5) The transcript of a record certified as correct in terms of

subrule (4) is presumed to be correct, unless the Labour

Court decides otherwise.

 

37. How to have a subpoena issued

 

(1) Any party who requires the Commission or a

commissioner to subpoena a person in terms of section

142( 1) of the Act, must file a completed LRA Form 7.1 6

270 No. 23611 GOVERNMENT GAZETTE, 25 JULY 2002

together with a written motivation setting out why the

evidence of the person to be subpoenaed is necessary.

 

(2) A party requesting the Commission to waive the

requirement for the party to pay witness fees in terms of

section 142(7)(c) must set out the reasons for the request

in writing at the time of requesting the Commission to

issue a subpoena in respect of that witness.

 

(3) An application in terms of subrule (I) must be Tiled with

the Commission at least fourteen days before the

arbitration hearing, or as directed by the commissioner

hearing the arbitration.

 

(4) The Commission or a commissioner may refuse to issue

a subpoena if-

(a) the party does not establish why the evidence of

the person is necessary;

(b) the party subpoenaed does not have a reasonable

period in which to comply with the subpoena;

(c) the Commission or a commissioner is not satisfied

that the party has made arrangements to pay the

witness fees and the reasonable travel costs of the

person subpoenaed.

 

(5) A subpoena must be served on the witness subpoenaed -

(a) by the person who has requested the issue of the

subpoena or by the Sheriff, at least seven days

before the scheduled date of the arbitration; and

(b) if so directed by the Commission, accompanied by

payment of the prescribed witness fees for one day

in accordance with the tariff of allowances

published by notice in the Government Gazette in

terms of section 142(7) of the Act and the

witnesses’ reasonable travel costs.

 

(6) Subrules 4(c) and 5(b) do not apply if the Commission in

terms of section 142(7)(c), has waived the requirement to

pay witness fees.

 

38. Payment of witness fees

 

(1) A witness subpoenaed in any proceedings in the

Commission must be paid a witness fee in accordance

with the tariff of allowances published by notice in the

Government Gazette in terms of section 142(7) of the Act.

 

(2) The witness fee must be paid by -

(a) the party who requested the Commission to issue the

subpoena; or

(b) the Commission, if the issue of the subpoena was not

requested by a party or if the Commission waives the

requirement to pay witness fees in terms of section

142(7)(c).

 

(3) Despite subrule (I), the commissioner may, in

appropriate circumstances, order that a witness receive

no fee or only part of the prescribed fee.

 

39. Taxation of bills of cost

 

(1) The basis on which a commissioner may make an order

as to costs in an arbitration, is regdated by section

138( IO) of the Act.

 

(2) The Director may appoint taxing officers to perform the

functions of a taxing officer in terms of these rules.

 

(3) The taxing officer must tax any bill of costs for services

rendered in connection with proceedings in the

Commission on Schedule A of the prescribed

Magistrates' Court tariff, in terms of the Magistrates'

Courts Act, No 32 of 1944, unless the parties have

agreed to a different tariff.

 

(4) At the taxation of any bill of costs, the taxing officer may

call for any book, document, paper or account that, in the

taxing officer's opinion, is necessary to properly

determine any matter arising from the taxation.

 

(5) Any person requesting a taxation must complete LRA

Form 7.17 and must satisfy the taxing officer -

(a) of that party’s entitlement to be present at the

taxation: and

(b) that the patty liable to pay the bill has received

notice of the date, time and place of the taxation.

 

(6) Despite subrule (4), notice need not be given to a party -

(a) who failed to appear or to be represented at the

hearing; or

(b) who consented in writing to the taxation taking

place in that party’s absence.

 

(7) Any decision by a taxing officer is subject to review by the

Labour Court.

 

40. Certification and enforcement of arbitration awards

 

(1) An application to have an arbitration award certified must be

made on or contain the information in -

(a) LRA Form 7.18 in respect of an award by a

commissioner;

(b) LRA Form 7.18A in respect of an award in arbitration

conducted under the auspices of a bargaining council.

 

(2) Any arbitration award that has been certified in terms of section

143 of Act that orders the payment of an amount of money, may

be executed:

(a) by using the warrant of execution in the LRA Form 7.18 or

LW Form 7.18A; or

(b) the warrant of execution prescribed in the Rules for the

Conduct of Proceedings in the High Court.

 

(3) For the purposes of subrule ( Z ) , an arbitration award includes an

award of costs in terms of section 138(10), a taxed bill of costs

in respect of an award of costs and an arbitration fee charged in

terms of section 140(2).

 

41. What words mean in these rules

 

Any expression in these rules that is defined in the Labour

Relations Act8, 1995 (Act No. 66 of 1995), has the same

meaning as in that Act and

 

“Act” means the Labour Relations Act, 1995 (Act No. 66 of

1995), and includes any regulation made in terms of that Act;

“association” means any unincorporated body of persons;

“Commission” means the Commission for Conciliation

Mediation and Arbitration established by section I12 of the Act;

“commission@r” means a Commissioner appointed in terms

of section 1 I 7 of the Act;

‘‘con-arb” means proceedings held in terms of section 191 (5A);

“deliver” means serve on other parties and file with the

Commission:

“Director” means the Director of the Commission appointed in

terms of section 118 of the Act, and includes any person

delegated by the director to perform any of the functions of the

director;

‘file’ means to lodge with the Commission in terms of rule 7;

‘U’bour Cowrt” means the Labour Court established by section

I51 of the Act and includes any judge of the Labour Court;

‘‘party’’ means any party to proceedings before the

Commission;

“provincial registrar” means the provincial registrar of the

Commission appointed in terms of section 120 of the Act in each

of the provinces, or any other person authorised to act in the

place of the Provincial Registrar;

“public holiday” means a public holiday referred to in section

1 of the Public Holidays Act, 1994 (Act No. 36 of 1994);

“rules” means these rules and includes any footnote to a rule;

 

The following words used in the rules are defined in section 213 of the Act : dispute,

dismissal, employee, employers‘ organisation, trade union, and workplace.

“senior commissioner” means a senior commissioner

appointed in terms of section 117 of the Act and includes any

person delegated by the senior commissioner to perform any of

the functions of the senior commissioner;

“serve’’ means to serve in accordance with rule 5 and “service”

has a corresponding meaning; and

“taxing offices” means any employee of the Commission

appointed by the Director in terms of rule 39.

 

 

SCHEDULE ONE

 

ADDRESSES OF THE COMMISSION

 

The addresses of the head office of the Commission are as follows:

CCMA HEAD OFFICE

The National Registrar

Physical address: CCMA House

20 Anderson Street

Johannesburg

200 1

Marshalltown

21 07

Postal address: Private Bag X94

Telephone: (01 1) 377-6650

Fax: (01 I ) 834-7351

The addresses of the provincial offices of the CCMA are as follows:

CCMA EASTERN CAPE

The Registrar

Physical address: 102 Govan Mbeki Avenue

Port Elizabeth

6001

Port Elizabeth

6000

Postal address: Private Bag X22500

Tel: (041) 586-4466

Fax: (041 ) 586-4585/6

CCMA FREE STATE

The Registrar

Physical address: CCMA House

Cnr. Elizabeth & West Kruger Streets

Bloemfontein

9301

Bloemfontein

9300

Postal address: Private Bag X20705

Tel: (051) 505-4400

Fax: (051) 448-4468/9

276 No. 23611 GOVERNMENT GAZETTE, 25 JULY 2002

CCMA GAUTENG

The Registrar

Physical address: CCMA House

20 Anderson Street

Johanesburg

Postal address: Private Bag X96

Marshalltown

21 07

Tel: (01 1) 377-6600

Fax (01 1) 377-6658; 377-6680; 377-6804; 377-661 8; 377-6678 or

834-7331

CCMA KWAZULU NATAL

The Registrar

61 Field Street

Durban

4001

Durban

4000

Physical address: Garlicks Chambers

Postal address: Private Bag X54363

Tel: (03 1 ) 306-5454

Fax: (031) 306-5401/4

CCMA LIMPQPO

The Registrar

Physical address: 104 Hans Van Rensburg Street

Polokwane

0699

Polokwane

0700

P ostal address: Private Bag X951 2

Tel: (01 5) 297-5010

Fax: (01 5) 297-1 649

CCMA MPUMAMNGA

The Registrar

Eddie Street

Witbank

1035

Witbank

1035

Physical address: Foschini Centre

Postal address: Private Bag X7290

Tel: (01 3) 656-2800

Fax: (01 3) 656-2885/6

STAATSKOERANT, 25 JULIE 2002 No. 23611 277

CCMA NORTH WEST

The Registrar

Kierksdorp

2570

Klerksdorp

2571

Physical address: 47-51 Siddle Street

Postal address: Private Bag X5004

Tei: (0 1 8 ) 464-0700

Fax: (01 8) 462-41 26

CCMA NORTHERN CAPE

The Registrar

Kimberley

8301

Kimberley

8300

Physical address: I A Bean Street

P ostal address: Private Bag X61 00

Tel: (053) 831-6780

Fax: (053) 831-5947/8

CCMA WESTERN CAPE

The Registrar

Cape Town

8001

Cape Town

8000

Physical address: 78 Darling Street

Postal address: Private Bag X91 67

Tel: (021) 469-01 11

Fax: (021) 4657193/7