Part C: Bargaining Councils
1.
Establishment of bargaining councils
(1)
One or more registered trade
unions and one or more registered employers' organisations may establish a
bargaining council for a sector and area by-
(a)
adopting a constitution that
meets the requirements of section 30; and
(b)
obtaining registration of the
bargaining council in terms of section 29.
(2)
The State may be a party to any
bargaining council established in terms of this section if it is an employer in
the sector and area in respect of which the bargaining council is established.
(3)
If the State is a party to a
bargaining council in terms of subsection (2), any reference to a registered
employers' organisation includes a reference to the State as a party.
(4)
A bargaining council may be
established for more than one sector.
2.
Powers and functions of bargaining council
(1)
The powers and functions of a
bargaining council in relation to its registered scope include the following-
(a)
to conclude collective
agreements;
(b)
to enforce those collective
agreements;
(c)
to prevent and resolve labour disputes;
(d)
to perform the dispute
resolution functions referred to in section 51;
(e)
to establish and administer a
fund to be used for resolving disputes;
(f)
to promote and establish
training and education schemes;
(g)
to establish and administer
pension, provident, medical aid, sick pay, holiday, unemployment and training
schemes or funds or any similar schemes or funds for the benefit of one or more
of the parties to the bargaining council or their members;
(h)
to develop proposals for
submission to NEDLAC or any other appropriate forum on policy and legislation
that may affect the sector and area;
(i)
to determine by collective
agreement the matters which may not be an issue in dispute for the purposes of
a strike or a lock-out at the workplace; and
(j)
to confer on workplace forums
additional matters for consultation;
(k)
to provide industrial support
services within the sector; and
(l)
to extend the services and
functions of the bargaining council to workers in the informal sector and home
workers.
(1)
From the date on which the
Labour Relations Amendment Act, 1998, comes into operation, the provisions of
the laws relating to pension, provident or medical aid schemes or funds must be
complied with in establishing any pension, provident or medical aid scheme or
fund in terms of subsection (1)(g)
(2)
The laws relating to pension,
provident or medical aid schemes or funds will apply in respect of any pension,
provident or medical aid scheme or fund established in terms of subsection
(1)(g) after the coming into operation of the Labour Relations Amendment Act,
1998.
3.
Registration of bargaining councils
(1)
The parties referred to in
section 27 may apply for registration of a bargaining council by submitting to
the registrar-
(a)
the prescribed form that has
been properly completed;
(b)
a copy of its constitution; and
(c)
any other information that may
assist the registrar to determine whether or not the bargaining council meets
the requirements for registration.
(2)
The registrar may require
further information in support of the application.
(3)
As soon as practicable after
receiving the application, the registrar must publish a notice containing the
material particulars of the application in the Government Gazette and send a
copy of the notice to NEDLAC. The notice
must inform the general public that they-
(a)
may object to the application
on any of the grounds referred to in subsection (4); and
(b)
have 30 days from the date of
the notice to serve any objection on the registrar and a copy on the applicant.
(4)
Any person who objects to the
application must satisfy the registrar that a copy of the objection has been
served on the applicant and that the objection is on any of the following
grounds-
(a)
the applicant has not complied
with the provisions of this section;
(b)
the sector and area in respect
of which the application is made is not appropriate;
(c)
the applicant is not
sufficiently representative in the sector and area in respect of which the
application is made.
(5)
The registrar may require
further information in support of the objection.
(6)
The applicant may respond to an
objection within 14 days of the expiry of the period referred to in subsection
(3)(b), and must satisfy the registrar that a copy of that response has been
served on the person who objected.
(7)
The registrar, as soon as
practicable, must send the application and any objections, responses and
further information to NEDLAC to consider.
(8)
NEDLAC, within 90 days of
receiving the documents from the registrar, must-
(a)
consider the appropriateness of
the sector and area in respect of which the application is made;
(b)
demarcate the appropriate
sector and area in respect of which the bargaining council should be
registered; and
(c)
report to the registrar in
writing.
(9)
If NEDLAC fails to agree on a
demarcation as required in subsection (8)(b), the Minister must demarcate the
appropriate sector and area and advise the registrar.
(10)
In determining the
appropriateness of the sector and area for the demarcation contemplated in
subsection (8)(b), NEDLAC or the Minister must seek to give effect to the primary
objects of this Act.
(11)
The registrar-
(a)
must consider the application
and any further information provided by the applicant;
(b)
must determine whether-
(i)
the applicant has complied with
the provisions of this section;
(ii)
the constitution of the
bargaining council complies with section 30;
(iii)
adequate provision is made in
the constitution of the bargaining council for the representation of small and
medium enterprises;
(iv)
the parties to the bargaining
council are sufficiently representative of the sector and area determined by
NEDLAC or the Minister; and
(v)
there is no other council
registered for the sector and area in respect of which the application is made;
and
(c)
if satisfied that the applicant
meets the requirements for registration, must register the bargaining council
by entering the applicant's name in the register of councils.
(12)
If the registrar is not
satisfied that the applicant meets the requirements for registration, the
registrar-
(a)
must send the applicant a
written notice of the decision and the reasons for that decision; and
(b)
in that notice, must inform the
applicant that it has 30 days from the date of the notice to meet those
requirements.
(13)
If, within that 30-day period,
the applicant meets those requirements, the registrar must register the applicant
by entering the applicant's name in the register of councils.
(14)
If, after the 30-day period,
the registrar concludes that the applicant has failed to meet the requirements
for registration, the registrar must-
(a)
refuse to register the
applicant; and
(b)
notify the applicant and any
person that objected to the application of that decision in writing.
(15)
After registering the
applicant, the registrar must-
(a)
issue a certificate of
registration in the applicant's name that must specify the registered scope of
the applicant; and
(b)
send the registration
certificate and a certified copy of the registered constitution to the
applicant.
(16)
Subsections (3) to (10) and
11(b)(iii) and (iv) do not apply to the registration or amalgamation of
bargaining councils in the public service.
4.
Constitution of bargaining council
(1)
The constitution of every
bargaining council must at least provide for-
a)
the appointment of
representatives of the parties to the bargaining council, of whom half must be
appointed by the trade unions that are party to the bargaining council and the
other half by the employers' organisations that are party to the bargaining
council, and the appointment of alternates to the representatives;
(b)
the representation of small and
medium enterprises;
(c)
the circumstances and manner in
which representatives must vacate their seats' and the procedure for replacing
them;
(d)
rules for the convening and
conducting of meetings of representatives, including the quorum required for,
and the minutes to be kept of, those meetings;
(e)
the manner in which decisions
are to be made; the appointment or election of office-bearers and officials,
their functions, and the circumstances and manner in which they may be removed
from office;
(f)
the establishment and
functioning of committees;
(g)
the determination through
arbitration of any dispute arising between the parties to the bargaining
council about the interpretation or application of the bargaining council's
constitution;
(h)
the procedure to be followed if
a dispute arises between the parties to the bargaining council;
(i)
the procedure to be followed if
a dispute arises between a registered trade union that is a party to the
bargaining council, or its members, or both, on the one hand, and employers who
belong to a registered employers' organisation that is a party to the
bargaining council, on the other hand;
(j)
the procedure for exemption
from collective agreements;
(k)
the banking and investment of
its funds;
(l)
the purposes for which its
funds may be used;
(m)
the delegation of its powers
and functions;
(n)
the admission of additional
registered trade unions and registered employers' organisations as parties to
the bargaining council, subject to the provisions of section 56;7
(o)
a procedure for changing its
constitution; and
(p)
a procedure by which it may
resolve to wind up.
(2)
The requirements for the
constitution of a bargaining council in subsection (1) apply to the
constitution of a bargaining council in the public service except that-
(a)
any reference to an
"employers' organisation" must be read as a reference to the State as
employer; and
(b)
the requirement in subsection
(1)(b) concerning the representation of small and medium enterprises does not
apply.
(3)
The constitution of the Public
Service Co-ordinating Bargaining Council must include a procedure for
establishing a bargaining council in a sector of the public service designated
in terms of section 37(l).
(4)
The constitution of a
bargaining council in the public service may include provisions for the
establishment and functioning of chambers of a bargaining council on national
and regional levels.
(5)
The procedures for the
resolution of disputes referred to in subsection (1)(h), (i) and (j) may not
entrust dispute resolution functions to the Commission unless the governing
body of the Commission has agreed thereto.
7. Section
56 provides for a procedure for the admission of parties to a council.
5.
Binding nature of collective agreement concluded in bargaining
council
Subject to the
provisions of section 32 and the constitution of the bargaining council, a
collective agreement concluded in a bargaining council binds –
(a)
the parties to the bargaining
council who are also parties to the collective agreement;
(b)
each party to the collective
agreement and the members of every other party to the collective agreement in
so far as the provisions thereof apply to the relationship between such a party
and the members of such other party; and
(c)
the members of a registered
trade union that is a party to the collective agreement and the employers who
are members of a registered employers’ organisation that is such a party, if
the collective agreement regulates-
(i)
terms and conditions of
employment; or
(ii)
the conduct of the employers in
relation to their employees or the conduct of the employees in relation to
their employers.
6.
Extension of collective agreement concluded in bargaining council
(1)
A bargaining council may ask
the Minister in writing to extend a collective agreement concluded in the
bargaining council to any non-parties to the collective agreement that are within
its registered scope and are identified in the request, if at a meeting of the
bargaining council -
(a)
one or more registered trade
unions whose members constitute the majority of the members of the trade unions
that are party to the bargaining council vote in favour of the extension; and
(b)
one or more registered
employers' organisations, whose members employ the majority of the employees
employed by the members of the employers' organisations that are party to the
bargaining council, vote in favour of the extension.
(2)
Within 60 days of receiving the
request, the Minister must extend the collective agreement, as requested, by
publishing a notice in the Government Gazette declaring that, from a specified
date and for a specified period, the collective agreement will be binding on
the non-parties specified in the notice.
(3)
A collective agreement may not
be extended in terms of subsection (2) unless the Minister is satisfied that-
(a)
the decision by the bargaining
council to request the extension of the collective agreement complies with the
provisions of subsection (1);
(b)
the majority of all the
employees who, upon extension of the collective agreement, will fall within the
scope of the agreement, are members of the trade unions that are parties to the
bargaining council;
(c)
the members of the employers'
organisations that are parties to the bargaining council will, upon the
extension of the collective agreement, be found to employ the majority of all
the employees who fall within the scope of the collective agreement;
(d)
the non-parties specified in
the request fall within the bargaining council's registered scope;
(e)
provision is made in the
collective agreement for an independent body to hear and decide, as soon as
possible, any appeal brought against -
(i)
the bargaining council’s
refusal of a non-party’s application for exemption from the provisions of the
collective agreement;
(ii)
the withdrawal of such an
exemption by the bargaining council;
(f)
the collective agreement
contains criteria that must be applied by the independent body when it
considers an appeal, and that those criteria are fair and promote the primary
objects of this Act; and
(g)
the terms of the collective
agreement do not discriminate against non-parties.
(3)
[Deleted]
(4)
Despite subsection (3)(b) and
(c), the Minister may extend a collective agreement in terms of subsection (2)
if –
(a)
the parties to the bargaining
council are sufficiently representative within the registered scope of the
bargaining council; and
(b)
the Minister is satisfied that
failure to extend the agreement may undermine collective bargaining at sectoral
level or in the public service as a whole.
(6)
(a) After a notice has been
published in terms of subsection (2), the Minister, at the request of the
bargaining council, may publish a further notice in the Government Gazette
(i)
extending the period specified
in the earlier notice by a further period determined by the Minister; or
(ii)
if the period specified in the
earlier notice has expired, declaring a new date from which, and a further
period during which, the provisions of the earlier notice will be effective.
(b)
The provisions of subsections
(3) and (5), read with the changes required by the context, apply in respect of
the publication of any notice in terms of this subsection.
(7)
The Minister, at the request of
the bargaining council, must publish a notice in the Government Gazette
cancelling all or part of any notice published in terms of subsection (2) or
(6) from a date specified in the notice.
(8)
Whenever any collective
agreement in respect of which a notice has been published in terms of
subsection (2) or (6) is amended, amplified or replaced by a new collective
agreement, the provisions of this section apply to that new collective
agreement.
(9)
For the purposes of extending
collective agreements concluded in the Public Service Co-ordinating Bargaining
Council or any bargaining council contemplated in section 37(3) or (4)-
(a)
any reference in this section
to an employers’ organisation must be read as a reference to the State as
employer; and
(b)
subsections (3)(c), (e) and (f)
and (4) of this section will not apply.
(10)
If the parties to a collective
agreement that has been extended in terms of this section terminate the
agreement, they must notify the Minister in writing.
7.
Appointment and powers of designated agents of bargaining councils
(1)
The Minister may, at the
request of a bargaining council, appoint any person as the designated agent of
that bargaining council to promote, monitor and enforce compliance with any
collective agreement concluded in that bargaining council.
(1A)
A designated agent may –
(a)
secure compliance with the
council’s collective agreements by –
(i)
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.
(2)
A bargaining council must
provide each designated agent with a certificate signed by the secretary of the
bargaining council stating that the agent has been appointed in terms of this
Act as a designated agent of that bargaining council.
(3)
Within the registered scope of
the bargaining council, a designated agent of the bargaining council has all
the powers set out in Schedule 10.
(4)
The bargaining council may
cancel the certificate provided to a designated agent in terms of subsection
(2) and the agent then ceases to be a designated agent of the bargaining
council and must immediately surrender the certificate to the secretary of the
bargaining council.
33A. Enforcement of collective agreements
by bargaining councils
(1)
Despite any other provision in
this Act, a bargaining council may monitor and enforce compliance with its
collective agreements in terms of this section or a collective agreement
concluded by the parties to the council.
(2)
For purposes of this section, a
collective agreement is deemed to include –
(a)
any basic condition of
employment which in terms of section 49(1) of the Basic Conditions of
Employment Act constitutes a term of employment of any employee covered by
the collective agreement; and
(b)
the rules of any fund or scheme
established by the bargaining council.
(3)
A collective agreement in terms
of this section may authorise a designated agent appointed in terms of section
33 to issue a compliance order requiring any person bound by that collective
agreement to comply with the collective agreement within a specified period.
(4)
(a) The council may refer any unresolved dispute concerning compliance
with any provision of a collective agreement to arbitration by an arbitrator
appointed by the council.
(b)
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).
(9)
Interest on any amount that a
person is obliged to pay in terms of a collective agreement accrues from the
date on which the amount was due and payable at the rate prescribed in terms of
section 1 of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975),
unless the arbitration award provides otherwise.
(10)
An award in an arbitration
conducted in terms of this section is final and binding and may be enforced in
terms of section 143.
(11)
Any reference in section 138 or
142 to the director must be read as a reference to the secretary of the
bargaining council.
(12)
If an employer, upon whom a
fine has been imposed in terms of this section, files an application to review
and set aside an award made in terms of subsection (8), any obligation to pay a
fine is suspended pending the outcome of the application.
(13)
(a) The Minister may, after
consulting NEDLAC, publish in the Government Gazette a notice that sets out the
maximum fines that may be imposed by an arbitrator acing in terms of this
section.
(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;
(ba)
involving a failure to pay any
amount of money; and
(ii)
for repeated breaches of the
collective agreement contemplated in subparagraph (i).
8.
Amalgamation of bargaining councils
(1)
Any bargaining council may
resolve to amalgamate with one or more other bargaining councils.
(2)
The amalgamating bargaining
councils may apply to the registrar for registration of the amalgamated
bargaining council and the registrar must treat the application as an
application in terms of section 29.
(3)
If the registrar has registered
the amalgamated bargaining council, the registrar must cancel the registration
of each of the amalgamating bargaining councils by removing their names from
the register of councils.
(4)
The registration of an
amalgamated bargaining council takes effect from the date that the registrar
enters its name in the register of councils.
(5)
When the registrar has
registered an amalgamated bargaining council-
(a)
all the assets, rights, liabilities
and obligations of the amalgamating bargaining councils devolve upon and vest
in the amalgamated bargaining council; and
(b)
all the collective agreements
of the amalgamating bargaining councils, regardless of whether or not they were
extended in terms of section 32, remain in force for the duration of those
collective agreements, unless amended or terminated by the amalgamated
bargaining council.