Part D: Bargaining Councils in the Public Service
1.
Bargaining councils in public service
There will be a
bargaining council for-
(a)
the public service as a whole,
to be known as the Public Service Co-ordinating Bargaining Council; and
(b)
any sector within the public
service that may be designated in terms of section 37.
2.
Public Service Co-ordinating Bargaining Council
(1)
The Public Service
Co-ordinating Bargaining Council must be established in accordance with
Schedule 1.8
(2)
The Public Service
Co-ordinating Bargaining Council may perform all the functions of a bargaining
council in respect of those matters that-
(a)
are regulated by uniform rules,
norms and standards that apply across the public service; or
(b)
apply to terms and conditions
of service that apply to two or more sectors; or
(c)
are assigned to the State as
employer in respect of the public service that are not assigned to the State as
employer in any sector.
8. Schedule 1 deals with the
procedure for the establishment of the Public Service Co-ordinating Bargaining
Council.
3.
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.
(1)
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.
(2)
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
(3)
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.
(4)
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.
4.
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.
Part E: Statutory Councils
5.
Application to establish statutory council
(1)
For the purposes of this Part-
(a)
"representative trade
union" means a registered trade union, or two or more registered trade
unions acting jointly, whose members constitute at least 30 per cent of the
employees in a sector and area; and
(b)
"representative employers'
organisation" means a registered employers' organisation, or two or more
registered employers' organisations acting jointly, whose members employ at
least 30 per cent of the employees in a sector and area.
(2)
A representative trade union or
representative employers' organisation may apply to the registrar in the
prescribed form for the establishment of a statutory council in a sector and
area in respect of which no council is registered.
(3)
The registrar must apply the
provisions of section 29(2) to (10)9 to the application-
(a)
read with the changes required
by the context; and
(b)
subject to the deletion of the
word "sufficiently" in section 29(4)(c).
(4)
The registrar must-
(a)
consider the application and
any further information provided by the applicant; and
(b)
determine whether-
(i)
the applicant has complied with
section 29 and of this section;
(ii)
the applicant is representative
of the sector and area determined by NEDLAC or the Minister; and
(iii)
there is no other council
registered for the sector and area in respect of which the application is made.
(5)
If the registrar is not
satisfied that the applicant meets the requirements for establishment, the
registrar must-
(a)
send the applicant a written
notice of the decision and the reasons for that decision; and
(b)
in that notice, inform the
applicant that it has 30 days from the date of the notice to meet those
requirements.
(6)
If, after the 30-day period,
the registrar concludes that the applicant has failed to meet the requirements
for establishment, the registrar must-
(a)
refuse to register the
applicant; and
(b)
notify the applicant and any
person that objected to the application in writing of that decision.
6.
Establishment and registration of statutory council
(1)
If the registrar is satisfied
that the applicant meets the requirements for the establishment of a statutory
council, the registrar, by notice in the Government Gazette, must establish the
statutory council for a sector and area.
(2)
The notice must invite-
(a)
registered trade unions and
registered employers' organisations in that sector and area to attend a
meeting; and
(b)
any interested parties in that
sector and area to nominate representatives for the statutory council.
(3)
The Commission must appoint a
commissioner to chair the meeting and facilitate the conclusion of an agreement
on-
(a)
the registered trade unions and
registered employers' organisations to be parties to the statutory council; and
(b)
a constitution that meets the
requirements of section 30, read with the changes required by the context.
(4)
If an agreement is concluded,
the Minister may advise the registrar to register the statutory council in
accordance with the agreement if the Minister is satisfied that-
(a)
every registered trade union
and registered employers' organisation that ought to have been included has
been included in the agreement; and
(b)
the constitution meets the
requirements of section 30, read with the changes required by the context.
(5)
In considering the requirements
in subsection (4)(a), the Minister must take into account-
(a)
the primary objects of this
Act;
(b)
the diversity of registered
trade unions and registered employers' organisations in the sector and area;
and
(c)
the principle of proportional
representation.
(6)
If the Minister is not
satisfied in terms of subsection (4), the Minister must advise the Commission
of the decision and the reasons for that decision and direct the Commission to
reconvene the meeting in terms of subsection (3) in order to facilitate the
conclusion of a new agreement.
(7)
If advised by the Minister in
terms of subsection (4), the registrar must register the statutory council by
entering its name in the register of councils.
9. The provisions of section 29
deal with the procedure for the registration of a bargaining council.
7.
Establishment and registration of statutory council in absence of
agreement
(1)
If no agreement is concluded in
terms of section 40(3), the commissioner must convene separate meetings of the
registered trade unions and employers' organisations to facilitate the
conclusion of agreements on-
(a)
the registered trade unions to
be parties to the statutory council;
(b)
the registered employers'
organisations to be parties to the statutory council; and
(c)
the allocation to each party of
the number of representatives of the statutory council.
(2)
If an agreement is concluded
on-
(a)
the registered trade unions to
be parties to the statutory council, the Minister must admit as parties to the
statutory council the agreed registered trade unions;
(b)
the registered employers'
organisations to be parties to the statutory council, the Minister must admit
as parties to the statutory council the agreed registered employers'
organisations.
(3)
If no agreement is concluded
on-
(a)
the registered trade unions to
be parties to the statutory council, the Minister must admit as parties to the
statutory council-
(i)
the applicant, if it is a
registered trade union; and
(ii)
any other registered trade
union in the sector and area that ought to be admitted, taking into account the
factors referred to in section 40(5);
(b)
the registered employers'
organisations to be parties to the statutory council, the Minister must admit
as parties to the statutory council-
(i)
the applicant, if it is a
registered employers' organisation; and
(ii)
any other registered employers'
organisation in the sector and area that ought to be admitted, taking into
account the factors referred to in section 40(5).
(4)
(a) The Minister
must determine an even number of representatives of the statutory council,
taking into account the factors referred to in section 40(5).
(b)
One half of the representatives
must be allocated to the registered trade unions that are parties to the
statutory council and the other half of the representatives must be allocated
to the registered employers' organisations that are parties to the statutory
council.
(5)
If no agreement is concluded in
respect of the allocation of the number of representatives of the statutory council-
(a)
between the registered trade
unions that are parties to the council, the Minister must determine this
allocation on the basis of proportional representation;
(b)
between the registered
employers' organisations that are parties to the council, the Minister must
determine this allocation on the basis of proportional representation and
taking into account the interests of small and medium enterprises.
(5)
If the applicant is a trade
union and there is no registered employers' organisation that is a party to the
statutory council, the Minister, after consulting the Commission, must appoint
suitable persons as representatives and alternates, taking into account the
nominations received from employers and employers' organisations in terms of
section 40(2).
(6)
If the applicant is an
employers' organisation and there is no registered trade union that is a party
to the statutory council, the Minister, after consulting the Commission, must
appoint suitable persons as representatives and alternates, taking into account
the nominations received from employees and trade unions in terms of section
40(2).
(7)
The Minister must notify the
registrar of agreements concluded and decisions made in terms of this section,
and the registrar must-
(a)
adapt the model constitution
referred to in section 207(3) to the extent necessary to give effect to the
agreements and decisions made in terms of this section;
(b)
register the statutory council
by entering its name in the register of councils; and
(c)
certify the constitution as the
constitution of the statutory council.
8.
Certificate of registration of statutory council
After registering
a statutory council, the registrar must -
(a)
issue a certificate of
registration that must specify the registered scope of the statutory council;
and
(b)
send the certificate and a
certified copy of the registered constitution to all the parties to the
statutory council and any representatives appointed to the statutory council.
9.
Powers and functions of statutory councils
(1)
The powers and functions of a
statutory council are-
(a)
to perform the dispute
resolution functions referred to in section 51;
(b)
to promote and establish
training and education schemes; and
(c)
to establish and administer
pension, provident, medical aid, sick pay, holiday, unemployment schemes or
funds or any similar schemes or funds for the benefit of one or more of the
parties to the statutory council or their members; and
(d)
to conclude collective
agreements to give effect to the matters mentioned in paragraphs (a), (b), and
(c).
(2)
A statutory council, in terms
of its constitution, may agree to the inclusion of any of the other functions
of a bargaining council referred to in section 28.
(3)
If a statutory council
concludes a collective agreement in terms of subsection (1)(d), the provisions
of sections 31, 32 and 33 apply, read with the changes required by the context.
(4)
(a) From the date on which the Labour
Relations Amendment Act, 1998, comes into operation, the provisions of the laws
relating to pension, provident or medical aid schemes or funds must be complied
with in establishing any pension, provident or medical aid scheme or fund in
terms of subsection (1)(c).
(b)
The provisions of the laws
relating to pension, provident or medical aid schemes or funds will apply in
relation to any pension, provident or medical aid scheme or fund established in
terms of subsection (1)(c) after the coming into operation of the Labour
Relations Amendment Act, 1998.
10. Ministerial determinations
(1)
A statutory council that is not
sufficiently representative within its registered scope may submit a collective
agreement on any of the matters mentioned in section 43(1)(a), (b) or (c) to
the Minister. The Minister must treat the collective agreement as a
recommendation made by the Employment Conditions Commission in terms of section
54(4) of the Basic Conditions of Employment Act.
(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.
(3)
The determination must provide
for -
(a)
exemptions to be considered by
an independent body appointed by the Minister; and
(b)
criteria for exemption that are
fair and promote the primary objects of this Act.
(4)
The Minister may in a
determination impose a levy on all employers and employees in the registered
scope of the statutory council to defray the operational costs of the statutory
council.
(5)
A statutory council may submit
a proposal to the Minister to amend or extend the period of any determination
and the Minister may make the amendment to the determination or extend the
period by notice in the Government Gazette.
11. Disputes about
determinations
(1)
If there is a dispute about the
interpretation or application of a determination promulgated in terms of
section 44(2), any party to the dispute may refer the dispute in writing to the
Commission.
(2)
The party who refers the
dispute to the Commission must satisfy it that a copy of the referral has been
served on all the other parties to the dispute.
(3)
The Commission must attempt to
resolve the dispute through conciliation.
(4)
If the dispute remains
unresolved, any party to the dispute may request that the dispute be resolved
through arbitration.
12. Withdrawal of party from
statutory council
(1)
If a registered trade union or
registered employers' organisation that is a party to a statutory council
withdraws from that statutory council, the Minister may request the Commission
to convene a meeting of the remaining registered trade unions or registered
employers' organisations in the sector and area, in order to facilitate the
conclusion of an agreement on the registered trade unions or the registered
employers' organisations to be parties and the allocation of representatives to
the statutory council.
(2)
If no agreement is concluded,
the provisions of section 41 apply, read with the changes required by the
context.
13. Appointment of new
representative of statutory council
(1)
If a representative appointed
in terms of section 41(6) or (7) for any reason no longer holds office, the
Minister must publish a notice in the Government Gazette inviting interested
parties within the registered scope of the statutory council to nominate a new
representative.
(2)
The provisions of section 41(6)
or (7) apply, read with the changes required by the context, in respect of the
appointment of a new representative.
14. Change of status of
statutory council
(1)
A statutory council may resolve
to apply to register as a bargaining council.
(2)
The registrar must deal with
the application as if it were an application in terms of section 29,10
except for section 29(4)(b), (7) to (10) and (15).
(3)
If the registrar has registered
the statutory council as a bargaining council, the registrar must alter the
register of councils and its certificate to reflect its change of status.
(4)
Any determination in force at
the time of the registration of the bargaining council or any agreement
extended by the Minister in terms of section 43(3)-
(a)
continues to have force for the
period of its operation unless superseded by a collective agreement; and
(b)
may be extended for a further
period.
(5)
The bargaining council must
perform any function or duty of the statutory council in terms of a
determination during the period in which the determination is still in effect.
(6)
If any dispute in terms of a
determination is unresolved at the time the determination ceases to have
effect, the dispute must be dealt with as if the determination was still in
effect.