Part F: General Provisions Concerning Councils
1.
Representativeness of council
(1)
When considering the
representativeness of the parties to a council, or parties seeking registration
of a council, the registrar, having regard to the nature of the sector and the
situation of the area in respect of which registration is sought, may regard
the parties to a council as representative in respect of the whole area, even
if a trade union or employers' organisation that is a party to the council has
no members in part of that area.
(2)
A bargaining council, having a
collective agreement that has been extended by the Minister in terms of section
32, must inform the registrar annually, in writing, on a date to be determined
by the registrar, as to the 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.
(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;
(c)
employed by members of the
employers’ organisations that are party to the council.
(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.
(1)
This section does not apply to
the public service.
2.
Effect of registration of council
(1)
A certificate of registration
is sufficient proof that a registered council is a body corporate.
(2)
A council has all the powers,
functions and duties that are conferred or imposed on it by or in terms of this
Act, and it has jurisdiction to exercise and perform those powers, functions
and duties within its registered scope.
(3)
A party to a council is not
liable for any of the obligations or liabilities of the council by virtue of it
being a party to the council.
(4)
A party to, or office-bearer or
official of, a council is not personally liable for any loss suffered by any
person as a result of an act performed or omitted in good faith by a party to,
or office-bearer or official of, a council while performing their functions for
the council.
(5)
Service of any document
directed to a council at the address most recently provided to the registrar
will be for all purposes service of that document on that council.
3.
Dispute resolution functions of council
(1)
In this section, dispute means
any dispute about a matter of mutual interest between-
(a)
on the one side –
(i)
one or more trade unions;
(ii)
one or more employees; or
(iii)
one or more trade unions and
one or more employees; and
(b)
on the other side-
(i)
one or more employers'
organisations;
(ii)
one or more employers; or
(iii)
one or more employers'
organisations and one or more employers.
(2)
(a)(i) The parties to a council must attempt to resolve any
dispute between themselves in accordance with the constitution of the council.
(i)
For the purposes of
subparagraph (i), a party to a council includes the members of any registered
trade union or registered employers’ organisation that is a party to the
council.
(b)
Any party to a dispute who is
not a party to a council but who falls within the registered scope of the
council may refer the dispute to the council in writing.
(c)
The party who refers the
dispute to the council must satisfy it that a copy of the referral has been
served on all the other parties to the dispute.
(3)
If a dispute is referred to a
council in terms of this Act11 and any party to that dispute is not a party to that council, the
council must attempt to resolve the dispute -
(a)
through conciliation; and
(b)
if the dispute remains
unresolved after conciliation, the council must arbitrate the dispute if-
(i)
this Act requires arbitration
and any party to the dispute has requested that it be resolved through
arbitration; or
(ii)
all the parties to the dispute
consent to arbitration under the auspices of the council.
(4)
If one or more of the parties
to a dispute that has been referred to the council do not fall within the
registered scope of that council, it must refer the dispute to the Commission.
(5)
The date on which the referral
in terms of subsection (4) was received by a council is, for all purposes, the
date on which the council referred the dispute to the Commission.
(6)
A council may enter into an
agreement with the Commission or an accredited agency in terms of which the
Commission or accredited agency is to perform, on behalf of the council, its
dispute resolution functions in terms of this section.
(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.
(8)
Unless otherwise agreed to in a
collective agreement, sections 142A and 143 to 146 apply to any arbitration
conducted under the auspices of a bargaining council.
(9)
A bargaining council may, by
collective agreement, establish procedures to resolve any dispute contemplated
in this section.
1.
Accreditation of council or appointment of accredited agency
(1)
With a view to performing its
dispute resolution functions in terms of section 51(3), every council must –
(a)
apply to the governing body of
the Commission for accreditation to perform those functions; or
(b)
appoint an accredited agency to
perform those of the functions referred to in section 51(3) for which the
council is not accredited.
(2)
The council must advise the
Commission in writing as soon as possible of the appointment of an accredited
agency in terms of subsection (1)(b), and the terms of that appointment.
2.
Accounting records and audits
(1)
Every council must, to the
standards of generally accepted accounting practice, principles and procedures
(a) keep books and records of its income, expenditure, assets and liabilities;
and
(b)
within six months after the end
of each financial year, prepare financial statements, including at least-
(i)
a statement of income and
expenditure for the previous financial year; and
(ii)
balance sheet showing its
assets, liabilities and financial position as at the end of the previous
financial year.
(2)
Each council must arrange for
an annual audit of its books and records of account and its financial
statements by an auditor who must-
(a)
conduct the audit in accordance
with generally accepted auditing standards; and
(b)
report in writing to the
council and in that report express an opinion as to whether or not the council
has complied with those provisions of its constitution relating to financial
matters.
(3)
Every council must-
(a)
make the financial statements
and the auditor's report available to the parties to the council or their
representatives for inspection; and
(b)
submit those statements and the
auditor's report to a meeting of the council as provided for in its
constitution.
(4)
Every council must preserve
each of its books of account, supporting vouchers, income and expenditure
statements, balance sheets, and auditor's reports, in an original or reproduced
form, for a period of three years from the end of the financial year to which
they relate.
(5)
The money of a council or of
any fund established by a council that is surplus to its requirements or the
expenses of the fund may be invested only in-
(a)
savings accounts, permanent
shares or fixed deposits in any registered bank or financial institution;
(b)
internal registered stock as
contemplated in section 21 of the Exchequer Act, 1975 (Act No. 66 of 1975);
(c)
a registered unit trust; or
(d)
any other manner approved by
the registrar.
(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).
3.
Duty to keep records and provide information to registrar
(1)
In addition to the records
required by section 53(4), every council must keep minutes of its meetings, in
an original or reproduced form, for a period of three years from the end of the
financial year to which they relate.
(2)
Every council must provide to
the registrar-
(a)
within 30 days of receipt of
its auditor's report, a certified copy of that report and of the financial
statements;
(b)
within 30 days of receipt of a
written request by the registrar, an explanation of anything relating to the
auditor's report or the financial statements;
(c)
upon registration, an address
within the Republic at which it will accept service of any document that is
directed to it;
(d)
within 30 days of any
appointment or election of its national office bearers, the names and work
addresses of those office-bearers, even if their appointment or election did
not result in any changes to its office-bearers;
(e)
30 days before a new address
for service of documents will take effect, notice of that change of address;
and
(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;
(i)
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
2;
(ii)
the number of small enterprises
that are members of the employers’ organisations that are parties to the
council; and
(iii)
the number of applications for
exemptions received from small enterprises and the number of applications that
were granted and the number rejected.
(3)
Every council must provide to
the Commission-
(a)
certified copies of every
collective agreement concluded by the parties to the council, within 30 days of
the signing of that collective agreement; and
(b)
the details of the admission
and resignation of parties to the council, within 30 days of their admission or
resignation.
(4)
If a council fails to comply
with any of the provisions of section 49(2) or (3), section 53 or subsections
(1) or (2) of this section, the registrar may -
(a)
conduct an inquiry into the
affairs of that council;
(b)
order the production of the
council’s financial records and any other relevant documents;
(c)
deliver a notice to the council
requiring the council to comply with the provisions concerned;
(d)
compile a report o 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).
(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).
4.
Delegation of functions to committee of council
(1)
A council may delegate any of
its powers and functions to a committee on any conditions, imposed by the
council in accordance with its constitution.
(2)
A committee contemplated by
subsection (1) must consist of equal numbers of representatives of employees
and employers.
5.
Admission of parties to council 12
(1)
Any registered trade union or
registered employers' organisation may apply in writing to a council for
admission as a party to that council.
(2)
The application must be
accompanied by a certified copy of the applicant's registered constitution and
certificate of registration and must include-
(a)
details of the applicant's
membership within the registered scope of the council and, if the applicant is
a registered employers' organisation, the number of employees that its members
employ within that registered scope;
(b)
the reasons why the applicant
ought to be admitted as a party to the council; and
(c)
any other information on which
the applicant relies in support of the application.
(3)
A council, within 90 days of
receiving an application for admission, must decide whether to grant or refuse
an applicant admission, and must advise the applicant of its decision, failing
which the council is deemed to have refused the applicant admission.
(4)
If the council refuses to admit
an applicant it must within 30 days of the date of the refusal, advise the
applicant in writing of its decision and the reasons for that decision.
(5)
The applicant may apply to the
Labour Court for an order admitting it as a party to the council.
(6)
The Labour Court may admit the
applicant as a party to the council, adapt the constitution of the council and
make any other appropriate order.
11.
See flow
diagram No. 5 in Schedule 4.
6.
Changing constitution or name of council
(1)
Any council may resolve to
change or replace its constitution.
(2)
The council must send the
registrar a copy of the resolution and a certificate signed by its secretary
stating that the resolution complies with its constitution.
(3)
The registrar must-
(a)
register the changed or new
constitution of a council if it meets the requirements of section 30 or if it
is a statutory council established in terms of section 41 if it meets the
requirements of the model constitution referred to in section 207(3); and
(b)
send the council a copy of the
resolution endorsed by the registrar, certifying that the change or replacement
has been registered.
(4)
The changed or new constitution
takes effect from the date of the registrar's certification.
(5)
Any council may resolve to
change its name.
(6)
The council must send the
registrar a copy of the resolution and the original of its current certificate
of registration.
(7)
The registrar must-
(a)
enter the new name in the
register of councils, and issue a certificate of registration in the new name
of the council;
(b)
remove the old name from that
register and cancel the earlier certificate of registration; and
(c)
send the new certificate to the
council.
(8)
The new name takes effect from
the date that the registrar enters it in the register of councils.
7.
Variation of registered scope of council
(1)
If the registrar is satisfied
that the sector and area within which a council is representative does not
coincide with the registered scope of the council, the registrar, acting
independently or in response to an application from the council, may vary the
registered scope of the council.
(2)
The provisions of section 29
apply, read with the changes required by the context, to a variation in terms
of this section.
(3)
Despite subsection (2), if
within the stipulated period no material objection is lodged to any notice
published by the registrar in terms of section 29(3), the registrar -
(i)
may vary the registered scope
of the council;
(ii)
may issue a certificate
specifying the scope of the council as varied; and
(iii)
need not comply with the
procedure prescribed by section 29.
8.
Winding-up of council
(1)
The Labour Court may order a
council to be wound up if-
(a)
the council has resolved to
wind up its affairs and has applied to the Court for an order giving effect to
that resolution; or
(b)
the registrar of labour
relations or any party to the council has applied to the Court and the Court is
satisfied that the council is unable to continue to function for any reason
that cannot be remedied.
(2)
If there are any persons not
represented before the Labour Court whose interests may be affected by an order
in terms of subsection (1), the Court must-
(a)
consider those interests before
deciding whether or not to grant the order; and
(b)
if it grants the order, include
provisions in the order disposing of each of those interests.
(3)
If it makes an order in terms
of subsection (1), the Labour Court may appoint a suitable person as
liquidator, on appropriate conditions.
(4)
(a) The registrar
of the Labour Court must determine the liquidator's fees.
(b)
The Labour Court, in chambers,
may review the determination of the registrar of the Labour Court.
(c)
The liquidator's fees are a
first charge against the assets of the council.
(2)
If, after all the liabilities
of the council have been discharged, any assets remain that cannot be disposed
of in accordance with the constitution of that council, the liquidator must
realise those assets and pay the proceeds to the Commission for its own use.
(3)
For the purposes of this
section, the assets and liabilities of any pension, provident or medical aid
scheme or fund established by a council will be regarded and treated as part of
the assets and liabilities of the council unless –
(a)
the parties to the council have
agreed to continue with the operation of the pension, provident or medical aid
scheme or fund as a separate scheme or fund despite the winding up of the
council; and
(b)
the Minister has approved the
continuation of the scheme or fund; and
(c)
application has been made in
accordance with the provisions of the laws applicable to pension, provident or
medical aid schemes or funds, for the registration of that scheme or fund in
terms of those provisions.
(2A)
A pension, provident or medical
aid scheme or fund, registered under the provisions of those laws after its
application in terms of subsection 6(c), will continue to be a separate scheme
or fund despite the winding up of the council by which it was established.
(3A)
The Minister, by notice in the
Government Gazette, may declare the rules of a pension, provident or medical
aid scheme or fund mentioned in subsection (7) to be binding on any employees
and employer or employers that fell within the registered scope of the relevant
council immediately before it was wound up.
9.
Winding-up of council by reason of insolvency
Any person who
seeks to wind-up a council by reason of insolvency must comply with the Insolvency
Act, 1936 (Act No. 24 of 1936), and, for the purposes of this section, any
reference to the court in that Act must be interpreted as referring to the
Labour Court.
10. Cancellation of
registration of council
(1)
The registrar of the Labour
Court must notify the registrar of labour relations if the Court has ordered a
council to be wound up.
(2)
When the registrar receives a
notice from the Labour Court in terms of subsection (1), the registrar must
cancel the registration of the council by removing its name from the register
of councils.
(3)
The registrar may notify a
council and every party to the council that the registrar is considering
cancelling the council's registration, if the registrar believes that-
(a)
the council has ceased to
perform its functions in terms of this Act for a period longer than 90 days
before the date of the notice; or
(b)
the council has ceased to be
representative in terms of the provisions of the relevant Part, for a period
longer than 90 days prior to the date of the notice.
(4)
In a notice in terms of
subsection (3), the registrar must state the reasons for the notice and inform
the council and every party to the council that they have 60 days to show cause
why the council's registration should not be cancelled.
(5)
After the expiry of the 60-day
period, the registrar, unless cause has been shown why the council's
registration should not be cancelled, must notify the council and every party
to the council that the registration will be cancelled unless an appeal to the
Labour Court is noted and the Court reverses the decision.
(6)
The cancellation takes effect-
(a)
if no appeal to the Labour
Court is noted within the time contemplated in section III (3), on the expiry
of that period; or
(b)
if the council or any party has
appealed and the Labour Court has confirmed the decision of the registrar, on
the date of the Labour Court's decision.
(7)
If either event contemplated in
subsection (6) occurs, the registrar must cancel the council’s registration by
removing the name of the council from the register of councils.
(8)
Any collective agreement
concluded by parties to a council whose registration has been cancelled,
whether or not the collective agreement has been extended to non-parties by the
Minister in terms of section 32, lapses 60 days after the council's
registration has been cancelled.
(9)
Despite subsection (8), the
provisions of a collective agreement that regulates terms and conditions of
employment remain in force for one year after the date that the council’s
registration was cancelled, or until the expiry of the agreement, if earlier.
(10)
Any party to a dispute about
the interpretation or application of a collective agreement that regulates
terms and conditions of employment referred to in subsection (8) may refer the
dispute in writing to the Commission.
(11)
The party who refers the
dispute to the Commission must satisfy it that a copy of the referral has been
served on all the other parties to the dispute.
(12)
The Commission must attempt to
resolve the dispute through conciliation.
(13)
If the dispute remains
unresolved, any party to the dispute may request that the dispute be resolved
through arbitration.
(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).
(15)
The provisions of subsections
(3) to (7) do not apply to bargaining councils in the public service.
11. Disputes about demarcation
between sectors and areas
(1)
Any registered trade union,
employer, employee, registered employers' organisation or council that has a
direct or indirect interest in the application contemplated in this section may
apply to the Commission in the prescribed form and manner for a determination
as to-
(a)
whether any employee, employer,
class of employees or class of employers, is or was employed or engaged in a
sector or area;
(b)
whether any provision in any
arbitration award, collective agreement or wage determination made in terms of
the Wage Act is or was binding on any employee, employer, class of employees or
class of employers.
(2)
If two or more councils settle
a dispute about a question contemplated in subsection (1)(a) or (b), the
councils must inform the Minister of the provisions of their agreement and the
Minister may publish a notice in the Government Gazette stating the particulars
of the agreement.
(3)
In any proceedings in terms of
this Act before the Labour Court, if a question contemplated in subsection
(1)(a) or (b) is raised, the Labour Court must adjourn those proceedings and
refer the question to the Commission for determination if the Court is
satisfied that-
(a)
the question raised-
(i)
has not previously been
determined by arbitration in terms of this section; and
(ii)
is not the subject of an
agreement in terms of subsection (2); and
(b)
the determination of the
question raised is necessary for the purposes of the proceedings.
(3A)
In any proceedings before an
arbitrator about the interpretation or application of a collective agreement,
if a question contemplated in subsection (1)(a) or (b) is raised, the
arbitrator must adjourn those proceedings and refer the question to the
Commission if the arbitrator is satisfied that-
(a)
the question raised-
(i)
has not previously been
determined by arbitration in terms of this section; and
(ii)
is not the subject of an
agreement in terms of subsection (2); and
(b)
the determination of the
question raised is necessary of the purposes of the proceedings.
(4)
When the Commission receives an
application in terms of subsection (1) or a referral in terms of subsection
(3), it must appoint a commissioner to hear the application or determine the
question, and the provisions of section 138 apply, read with the changes
required by the context.
(5)
In any proceedings in terms of
this Act before a commissioner, if a question contemplated in subsection (1)(a)
or (b) is raised, the commissioner must adjourn the proceedings and consult the
director, if the commissioner is satisfied that-
(a)
the question raised-
(i)
has not previously been
determined by arbitration in terms of this section; and
(ii)
is not the subject of an
agreement in terms of subsection (2); and
(b)
the determination of the
question raised is necessary for the purposes of the proceedings.
(6)
The director must either order
the commissioner concerned to determine the question or appoint another
commissioner to do so, and the provisions of section 138 apply, read with the
changes required by the context.
(7)
If the Commission believes that
the question is of substantial importance, the Commission must publish a notice
in the Government Gazette stating the particulars of the application or
referral and stating the period within which written representations may be
made and the address to which they must be directed.
(8)
If a notice contemplated in
subsection (7) has been published, the commissioner may not commence the
arbitration until the period stated in the notice has expired.
(9)
Before making an award, the
commissioner must consider any written representations that are made, and must
consult NEDLAC.
(10)
The commissioner must send the
award, together with brief reasons, to the Labour Court and to the Commission.
(11)
If the Commission believes that
the nature of the award is substantially important, it may publish notice of
the award in the Government Gazette.
(12)
The registrar must amend the
certificate of registration of a council in so far as is necessary in light of
the award.
12. Disputes about Parts A and
C to F
(1)
Any party to a dispute about
the interpretation or application of Parts A and C to F of this Chapter, may
refer the dispute in writing to the Commission unless-
(a)
the dispute has arisen in the
course of arbitration proceedings or proceedings in the Labour Court; or
(b)
the dispute is otherwise to be
dealt with in terms of Parts A and C to F.
(2)
The party who refers the
dispute to the Commission must satisfy it that a copy of the referral has been
served on all the other parties to the dispute.
(3)
The Commission must attempt to
resolve the dispute through conciliation.
(4)
If the dispute remains
unresolved, any party to the dispute may refer it to the Labour Court for
adjudication.