Labour Relations Act, 1995

Act 66 of 1995

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South Africa

Labour Relations Act, 1995

Act 66 of 1995

  • Published in Government Gazette 16861 on 13 December 1995
  • Assented to on 29 November 1995
  • There are multiple commencements
  • Provisions Status
    Chapter IV, section 70(1), (2)(a), section 71; Chapter VI, Part C, section 108–109; Chapter VII, Part A, section 112, section 116–121, section 124–125; Part D, section 153–156, section 159; Part E, section 169–172, section 176; Chapter IX, section 203, section 206–208 commenced on 1 January 1996 by Proclamation R112 of 1995.
    Note: Schedule 3 and item 23 of Schedule 7 also commenced
    Chapter VII, Part A, section 122; Part B, section 127–128, section 132 commenced on 13 September 1996 by Proclamation R53 of 1996.
    Chapter I (section 1–3); Chapter II (section 4–10); Chapter III (section 11–63); Chapter IV, section 64–69, section 70(2)(b)–(c), section 72–77; Chapter V (section 78–94); Chapter VI, Part A (section 95–106); Part B (section 107); Part C, section 110; Part D (section 111); Chapter VII, Part A, section 113–115, section 123, section 126; Part B, section 129–131; Part C (section 133–150); Part D, section 151–152, section 154(8)–(9), section 157–158, section 159(7)–(10), section 160–166; Part E, section 167–168, section 169(1)–(2), section 170(6)–(7), section 173–175, section 177–183; Part F (section 184); Chapter VIII (section 185–197); Chapter IX, section 198–202, section 204–205, section 208A–214 commenced on 11 November 1996 by Proclamation R66 of 1996.
  • [This is the version of this document as it was from 9 May 1997 to 30 November 1998.]
  1. [Amended by Labour Relations Act, 1995: Amendment of Schedule 7, 1996 (Government Notice R1734 of 1996) on 1 November 1996]
  2. [Amended by Labour Relations Amendment Act, 1996 (Act 42 of 1996) on 11 November 1996]
  3. [Amended by Labour Relations Act, 1995: Addition of Schedule 10 (Government Notice R1865 of 1996) on 15 November 1996]
  4. [Amended by Labour Relations Act, 1995: Amendment of Schedule 7, 1996 (Government Notice R2025 of 1996) on 6 December 1996]
  5. [Amended by Labour Relations Act, 1995: Amendment of Schedule 7, 1997 (Government Notice R440 of 1997) on 27 March 1997]
  6. [Amended by Labour Relations Act, 1995: Addition of Schedule 9 (Government Notice R443 of 1997) on 27 March 1997]
  7. [Amended by Labour Relations Act, 1995: Amendment of Schedule 7, 1997 (Government Notice R654 of 1997) on 9 May 1997]
(English text signed by the President.)ACTTo change the law governing labour relations and, for that purpose—to give effect to section 27 of the Constitution;to regulate the organisational rights of trade unions;to promote and facilitate collective bargaining at the workplace and at sectoral level;to regulate the right to strike and the recourse to lock-out in conformity with the Constitution;to promote employee participation in decision-making through the establishment of workplace forums;to provide simple procedures for the resolution of labour disputes through statutory conciliation, mediation and arbitration (for which purpose the Commission for Conciliation, Mediation and Arbitration is established), and through independent alternative dispute resolution servives accredited for that purpose;to establish the Labour Court and Labour Appeal Court as superior courts, with exclusive jurisdiction to decide matters arising from the Act;to provide for a simplified procedure for the registration of trade unions and employers’ organisations, and to provide for their regulation to ensure democratic practices and proper financial control;to give effect to the public international law obligations of the Republic relating to labour relations;to amend and repeal certain laws relating to labour relations; andto provide for incidental matters.BE IT ENACTED by the Parliament of the Republic of South Africa as follows:—

Chapter I
Purpose, application and interpretation

1. Purpose of this Act

The purpose of this Act1 is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are—1An italicized word or phrase indicates that the word or the phrase is defined in section 213 of this Act.
(a)to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution; 22Section 27, which is in the Chapter on Fundamental Rights in the Constitution entrenches the following rights:"(1)Every person shall have the right to fair labour practices.(2)Workers shall have the right to form and join trade unions, and employees shall have the right to form and join employers’ organisations.(3)Workers and employers shall have the right to organise and bargain collectively.(4)Workers shall have the right to strike for the purpose of collective bargaining.(5)Employers’ recourse to the lock-out for the purpose of collective bargaining shall not be impaired, subject to subsection 33(1)."
(b)to give effect to obligations incurred by the Republic as a member state of the International Labour Organisation;
(c)to provide a framework within which employeeʼs and their trade unions, employers and employers’ organisations can—
(i)collectively bargain to determine wages, terms and conditions of employment and other matters of mutual interest; and
(ii)formulate industrial policy; and
(d)to promote—
(i)orderly collective bargaining;
(ii)collective bargaining at sectoral level;
(iii)employee participation in decision-making in the workplace; and
(iv)the effective resolution of labour disputes.

2. Exclusion from application of this Act

This Act does not apply to members of—
(a)the National Defence Force;
(b)the National Intelligence Agency; and
(c)the South African Secret Service.

3. Interpretation of this Act

Any person applying this Act must interpret its provisions—
(a)to give effect to its primary objects;
(b)in compliance with the Constitution; and
(c)in compliance with the public international law obligations of the Republic.

Chapter II
Freedom of association and general protections

4. Employees’ right to freedom of association

(1)Every employee has the right—
(a)to participate in forming a trade union or federation of trade unions; and
(b)to join a trade union, subject to its constitution.
(2)Every member of a trade union has the right, subject to the constitution of that trade union
(a)to participate in its lawful activities;
(b)to participate in the election of any of its office-bearers, officials or trade union representatives;
(c)to stand for election and be eligible for appointment as an office bearer or official and, if elected or appointed, to hold office; and
(d)to stand for election and be eligible for appointment as a trade union representative and, if elected or appointed, to carry out the functions of a trade union representative in terms of this Act or any collective agreement.
(3)Every member of a trade union that is a member of a federation of trade unions has the right, subject to the constitution of that federation—
(a)to participate in its lawful activities;
(b)to participate in the election of any of its office-bearers or officials; and
(c)to stand for election and be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office.

5. Protection of employees and persons seeking employment

(1)No person may discriminate against an employee for exercising any right conferred by this Act.
(2)Without limiting the general protection conferred by subsection (1), no person may do, or threaten to do, any of the following—
(a)require an employee or a person seeking employment—
(i)not to be a member of a trade union or workplace forum;
(ii)not to become a member of a trade union or workplace forum; or
(iii)to give up membership of a trade union or workplace forum;
(b)prevent an employee or a person seeking employment from exercising any right conferred by this Act or from participating in any proceedings in terms of this Act; or
(c)prejudice an employee or a person seeking employment because of past, present or anticipated—
(i)membership of a trade union or workplace forum;
(ii)participation in forming a trade union or federation of trade unions or establishing a workplace forum;
(iii)participation in the lawful activities of a trade union, federation of trade unions or workplace forum;
(iv)failure or refusal to do something that an employer may not lawfully permit or require an employee to do;
(v)disclosure of information that the employee is lawfully entitled or required to give to another person;
(vi)exercise of any right conferred by this Act; or
(vii)participation in any proceedings in terms of this Act.
(3)No person may advantage, or promise to advantage, an employee or a person seeking employment in exchange for that person not exercising any right conferred by this Act or not participating in any proceedings in terms of this Act. However, nothing in this section precludes the parties to a dispute from concluding an agreement to settle that dispute.
(4)A provision in any contract, whether entered into before or after the commencement of this Act, that directly or indirectly contradicts or limits any provision of section 4, or this section, is invalid, unless the contractual provision is permitted by this Act.

6. Employers’ right to freedom of association

(1)Every employer has the right—
(a)to participate in forming an employersʼ organisation or a federation of employers’ organisations; and
(b)to join an employers’ organisation, subject to its constitution.
(2)Every member of an employers’ organisation has the right, subject to the constitution of that employers’ organisation
(a)to participate in its lawful activities;
(b)to participate in the election of any of its office-bearers or officials; and
(c)if—
(i)a natural person, to stand for election and be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office;
(ii)a juristic person, to have a representative stand for election, and be eligible for appointment, as an office-bearer or official and, if elected or appointed, to hold office.
(3)Every member of an employersʼ organisation that is a member of a federation of employers’ organisations has the right, subject to the constitution of that federation—
(a)to participate in its lawful activities;
(b)to participate in the election of any of its office-bearers or officials; and
(c)if—
(i)a natural person, to stand for election and be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office; or
(ii)a juristic person, to have a representative stand for election, and be eligible for appointment, as an office-bearer or official and, if elected or appointed, to hold office.

7. Protection of employers’ rights

(1)No person may discriminate against an employer for exercising any right conferred by this Act.
(2)Without limiting the general protection conferred by subsection (1), no person may do, or threaten to do, any of the following—
(a)require an employer—
(i)not to be a member of an employersʼ organisation;
(ii)not to become a member of an employers’ organisation; or
(iii)to give up membership of an employers’ organisation;
(b)prevent an employer from exercising any right conferred by this Act or from participating in any proceedings in terms of this Act; or
(c)prejudice an employer because of past, present or anticipated—
(i)membership of an employersʼ organisation;
(ii)participation in forming an employers’ organisation or a federation of employers’ organisations;
(iii)participation in the lawful activities of an employersʼ organisation or a federation of employers’ organisations;
(iv)disclosure of information that the employer is lawfully entitled or required to give to another person;
(v)exercise of any right conferred by this Act; or
(vi)participation in any proceedings in terms of this Act.
(3)No person may advantage, or promise to advantage, an employer in exchange for that employer not exercising any right conferred by this Act or not participating in any proceedings in terms of this Act. However, nothing in this section precludes the parties to a dispute from concluding an agreement to settle that dispute.
(4)A provision in any contract, whether entered into before or after the commencement of this Act, that directly or indirectly contradicts or limits any provision of section 6, or this section, is invalid, unless the contractual provision is permitted by this Act.

8. Rights of trade unions and employers’ organisations

Every trade union and every employers’ organisation has the right—
(a)subject to the provisions of Chapter VI—
(i)to determine its own constitution and rules; and
(ii)to hold elections for its office-bearers, officials and representatives;
(b)to plan and organise its administration and lawful activities;
(c)to participate in forming a federation of trade unions or a federation of employers’ organisations;
(d)to join a federation of trade unions or a federation of employers’ organisations, subject to its constitution, and to participate in its lawful activities; and
(e)to affiliate with, and participate in the affairs of, any international workers’ organisation or international employers’ organisation or the International Labour Organisation, and contribute to, or receive financial assistance from, those organisations.

9. Procedure for disputes3

3See flow diagram No.1 in Schedule 4.
(1)If there is a dispute about the interpretation or application of any provision of this Chapter, any party to the dispute may refer the dispute in writing to—
(a)a council, if the parties to the dispute fall within the registered scope of that council; or
(b)the Commission, if no council has jurisdiction.
(2)The party who refers the dispute must satisfy the council or the Commission that a copy of the referral has been served on all the other parties to the dispute.
(3)The council or the Commission must attempt to resolve the dispute through conciliation.
(4)If the dispute remains unresolved, any party to the dispute may refer it to the Labour Court for adjudication.

10. Burden of proof

In any proceedings—
(a)a party who alleges that a right or protection conferred by this Chapter has been infringed must prove the facts of the conduct; and
(b)the party who engaged in that conduct must then prove that the conduct did not infringe any provision of this Chapter.

Chapter III
Collective bargaining

Part A – Organisational rights

11. Trade union representativeness

In this Part, unless otherwise stated, "representative trade union" means a registered trade union, or two or more registered trade unions acting jointly, that are sufficiently representative of the employees employed by an employer in a workplace.

12. Trade union access to workplace

(1)Any office-bearer or official of a representative trade union is entitled to enter the employer’s premises in order to recruit members or communicate with members, or otherwise serve members’ interests.
(2)A representative trade union is entitled to hold meetings with employees outside their working hours at the employer’s premises.
(3)The members of a representative trade union are entitled to vote at the employer’s premises in any election or ballot contemplated in that trade union’s constitution.
(4)The rights conferred by this section are subject to any conditions as to time and place that are reasonable and necessary to safeguard life or property or to prevent the undue disruption of work.

13. Deduction of trade union subscriptions or levies

(1)Any employee who is a member of a representative trade union may authorise the employer in writing to deduct subscriptions or levies payable to that trade union from the employee’s wages.
(2)An employer who receives an authorisation in terms of subsection (1) must begin making the authorised deduction as soon as possible and must remit the amount deducted to the representative trade union by not later than the 15th day of the month first following the date each deduction was made.
(3)An employee may revoke an authorisation given in terms of subsection (1) by giving the employer and the representative trade union one month’s written notice or, if the employee works in the public service, three months’ written notice.
(4)An employer who receives a notice in terms of subsection (3) must continue to make the authorised deduction until the notice period has expired and then must stop making the deduction.
(5)With each monthly remittance, the employer must give the representative trade union
(a)a list of the names of every member from whose wages the employer has made the deductions that are included in the remittance;
(b)details of the amounts deducted and remitted and the period to which the deductions relate; and
(c)a copy of every notice of revocation in terms of subsection (3).

14. Trade union representatives

(1)In this section, "representative trade union" means a registered trade union, or two or more registered trade unions acting jointly, that have as members the majority of the employees employed by an employer in a workplace.
(2)In any workplace in which at least 10 members of a representative trade union are employed, those members are entitled to elect from among themselves—
(a)if there are 10 members of the trade union employed in the workplace, one trade union representative;
(b)if there are more than 10 members of the trade union employed in the workplace, two trade union representatives;
(c)if there are more than 50 members of the trade union employed in the workplace, two trade union representatives for the first 50 members, plus a further one trade union representative for every additional 50 members up to a maximum of seven trade union representatives;
(d)if there are more than 300 members of the trade union employed in the workplace, seven trade union representatives for the first 300 members, plus one additional trade union representative for every 100 additional members up to a maximum of 10 trade union representatives;
(e)if there are more than 600 members of the trade union employed in the workplace, 10 trade union representatives for the first 600 members, plus one additional trade union representative for every 200 additional members up to a maximum of 12 trade union representatives; and
(f)if there are more than 1 000 members of the trade union employed in the workplace, 12 trade union representatives for the first 1 000 members, plus one additional trade union representative for every 500 additional members up to a maximum of 20 trade union representatives.
(3)The constitution of the representative trade union governs the nomination, election, term of office and removal from office of a trade union representative.
(4)A trade union representative has the right to perform the following functions—
(a)at the request of an employee in the workplace, to assist and represent the employee in grievance and disciplinary proceedings;
(b)to monitor the employer’s compliance with the workplace-related provisions of this Act, any law regulating terms and conditions of employment and any collective agreement binding on the employer;
(c)to report any alleged contravention of the workplace-related provisions of this Act, any law regulating terms and conditions of employment and any collective agreement binding on the employer to—
(i)the employer;
(ii)the representative trade union; and
(iii)any responsible authority or agency; and
(d)to perform any other function agreed to between the representative trade union and the employer.
(5)Subject to reasonable conditions, a trade union representative is entitled to take reasonable time off with pay during working hours
(a)to perform the functions of a trade union representative; and
(b)to be trained in any subject relevant to the performance of the functions of a trade union representative.

15. Leave for trade union activities

(1)An employee who is an office-bearer of a representative trade union, or of a federation of trade unions to which the representative trade union is affiliated, is entitled to take reasonable leave during working hours for the purpose of performing the functions of that office.
(2)The representative trade union and the employer may agree to the number of days of leave, the number of days of paid leave and the conditions attached to any leave.
(3)An arbitration award in terms of section 21(7) regulating any of the matters referred to in subsection (2) remains in force for 12 months from the date of the award.

16. Disclosure of information

(1)For the purposes of this section, "representative trade union" means a registered trade union, or two or more registered trade unions acting jointly, that have as members the majority of the employees employed by an employer in a workplace.
(2)Subject to subsection (5), an employer must disclose to a trade union representative all relevant information that will allow the trade union represen­tative to perform effectively the functions referred to in section 14(4).
(3)Subject to subsection (5), whenever an employer is consulting or bargaining with a representative trade union, the employer must disclose to the representative trade union all relevant information that will allow the representative trade union to engage effectively in consultation or collective bargaining.
(4)The employer must notify the trade union representative or the representative trade union in writing if any information disclosed in terms of subsection (2) or (3) is confidential.
(5)An employer is not required to disclose information—
(a)that is legally privileged;
(b)that the employer cannot disclose without contravening a prohibition imposed on the employer by any law or order of any court;
(c)that is confidential and, if disclosed, may cause substantial harm to an employee or the employer; or
(d)that is private personal information relating to an employee, unless that employee consents to the disclosure of that information.
(6)If there is a dispute about what information is required to be disclosed in terms of this section, any party to the dispute may refer the dispute in writing to the Commission.
(7)The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.
(8)The Commission must attempt to resolve the dispute through conciliation.
(9)If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.
(10)In any dispute about the disclosure of information contemplated in subsec­tion (6), the commissioner must first decide whether or not the information is relevant.
(11)If the commissioner decides that the information is relevant and if it is information contemplated in subsection (5)(c) or (d), the commissioner must balance the harm that the disclosure is likely to cause to an employee or employer against the harm that the failure to disclose the information is likely to cause to the ability of a trade union representative to perform effectively the functions referred to in section 14(4) or the ability of a representative trade union to engage effectively in consultation or collective bargaining.
(12)If the commissioner decides that the balance of harm favours the disclosure of the information, the commissioner may order the disclosure of the information on terms designed to limit the harm likely to be caused to the employee or employer.
(13)When making an order in terms of subsection (12), the commissioner must take into account any breach of confidentiality in respect of information disclosed in terms of this section at that workplace and may refuse to order the disclosure of the information or any other confidential information which might otherwise be disclosed for a period specified in the arbitration award.
(14)In any dispute about an alleged breach of confidentiality, the commissioner may order that the right to disclosure of information in that workplace be withdrawn for a period specified in the arbitration award.

17. Restricted rights in domestic sector

(1)For the purposes of this section, "domestic sector" means the employment of employees engaged in domestic work in their employersʼ homes or on the property on which the home is situated.
(2)The rights conferred on representative trade unions by this Part in so far as they apply to the domestic sector are subject to the following limitations—
(a)the right of access to the premises of the employer conferred by section 12 on an office-bearer or official of a representative trade union does not include the right to enter the home of the employer, unless the employer agrees; and
(b)the right to the disclosure of information conferred by section 16 does not apply in the domestic sector.

18. Right to establish thresholds of representativeness

(1)An employer and a registered trade union whose members are a majority of the employees employed by that employer in a workplace, or the parties to a bargaining council, may conclude a collective agreement establishing a threshold of representativeness required in respect of one or more of the organisational rights referred to in sections 12, 13 and 15.
(2)A collective agreement concluded in terms of subsection (1) is not binding unless the thresholds of representativeness in the collective agreement are applied equally to any registered trade union seeking any of the organisational rights referred to in that subsection.

19. Certain organisational rights for trade union party to council

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

20. Organisational rights in collective agreements

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

21. Exercise of rights conferred by this Part4

4See flow diagram No. 2 in Schedule 4.
(1)Any registered trade union may notify an employer in writing that it seeks to exercise one or more of the rights conferred by this Part in a workplace.
(2)The notice referred to in subsection (1) must be accompanied by a certified copy of the trade unionʼs certificate of registration and must specify—
(a)the workplace in respect of which the trade union seeks to exercise the rights;
(b)the representativeness of the trade union in that workplace, and the facts relied upon to demonstrate that it is a representative trade union; and
(c)the rights that the trade union seeks to exercise and the manner in which it seeks to exercise those rights.
(3)Within 30 days of receiving the notice, the employer must meet the registered trade union and endeavour to conclude a collective agreement as to the manner in which the trade union will exercise the rights in respect of that workplace.
(4)If a collective agreement is not concluded, either the registered trade union or the employer may refer the dispute in writing to the Commission.
(5)The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on the other party to the dispute.
(6)The Commission must appoint a commissioner to attempt to resolve the dispute through conciliation.
(7)If the dispute remains unresolved, either party to the dispute may request that the dispute be resolved through arbitration.
(8)If the unresolved dispute is about whether or not the registered trade union is a representative trade union, the commissioner—
(a)must seek—
(i)to minimise the proliferation of trade union representation in a single workplace and, where possible, to encourage a system of a representative trade union in a workplace; and
(ii)to minimise the financial and administrative burden of requiring an employer to grant organisational rights to more than one registered trade union;
(b)must consider—
(i)the nature of the workplace;
(ii)the nature of the one or more organisational rights that the registered trade union seeks to exercise;
(iii)the nature of the sector in which the workplace is situated; and
(iv)the organisational history at the workplace or any other workplace of the employer; and
(c)may withdraw any of the organisational rights conferred by this Part and which are exercised by any other registered trade union in respect of that workplace, if that other trade union has ceased to be a representative trade union.
(9)In order to determine the membership or support of the registered trade union, the commissioner may—
(a)make any necessary inquiries;
(b)where appropriate, conduct a ballot of the relevant employees; and
(c)take into account any other relevant information.
(10)The employer must co-operate with the commissioner when the commissioner acts in terms of subsection (9), and must make available to the commissioner any information and facilities that are reasonably necessary for the purposes of that subsection.
(11)An employer who alleges that a trade union is no longer a representative trade union may apply to the Commission to withdraw any of the organisational rights conferred by this Part, in which case the provisions of subsections (5) to (10) apply, read with the changes required by the context.

22. Disputes about organisational rights

(1)Any party to a dispute about the interpretation or application of any provision of this Part, other than a dispute contemplated in section 21, may refer the dispute in writing to the Commission.
(2)The party who refers a dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.
(3)The Commission must attempt to resolve the dispute through conciliation.
(4)If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration as soon as possible.

Part B – Collective agreements

23. Legal effect of collective agreement

(1)A collective agreement binds—
(a)the parties to the collective agreement;
(b)each party to the collective agreement and the members of every other party to the collective agreement, in so far as the provisions are applicable between them;
(c)the members of a registered trade union and the employers who are members of a registered employersʼ organisation that are party to the collective agreement if the collective agreement regulates—
(i)terms and conditions of employment; or
(ii)the conduct of the employers in relation to their employees or the conduct of the employees in relation to their employers;
(d)employees who are not members of the registered trade union or trade unions party to the agreement if—
(i)the employees are identified in the agreement;
(ii)the agreement expressly binds the employees; and
(iii)that trade union or those trade unions have as their members the majority of employees employed by the employer in the workplace.
(2)A collective agreement binds for the whole period of the collective agreement every person bound in terms of subsection (1)(c) who was a member at the time it became binding, or who becomes a member after it became binding, whether or not that person continues to be a member of the registered trade union or registered employersʼ organisation for the duration of the collective agreement.
(3)Where applicable, a collective agreement varies any contract of employment between an employee and employer who are both bound by the collective agreement.
(4)Unless the collective agreement provides otherwise, any party to a collective agreement that is concluded for an indefinite period may terminate the agreement by giving reasonable notice to the other parties.

24. Disputes about collective agreements

(1)Every collective agreement, excluding an agency shop agreement concluded in terms of section 25 or a closed shop agreement concluded in terms of section 26, must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement, The procedure must first require the parties to attempt to resolve the dispute through conciliation and, if the dispute remains unresolved, to resolve it through arbitration.
(2)If there is a dispute about the interpretation or application of a collective agreement, any party to the dispute may refer the dispute in writing to the Commission if—
(a)the collective agreement does not provide for a procedure as required by subsection (1);
(b)the procedure provided for in the collective agreement is not operative; or
(c)any party to the collective agreement has frustrated the resolution of the dispute in terms of the collective agreement.
(3)The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.
(4)The Commission must attempt to resolve the dispute through conciliation.
(5)If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.55See flow diagram No. 3 in Schedule 4.
(6)If there is a dispute about the interpretation or application of an agency shop agreement concluded in terms of section 25 or a closed shop agreement concluded in terms of section 26, any party to the dispute may refer the dispute in writing to the Commission, and subsections (3) to (5) will apply to that dispute.66See flow diagram No. 4 in Schedule 4.
(7)Any person bound by an arbitration award about the interpretation or application of section 25(3)(c) and (d) or section 26(3)(d) may appeal against that award to the Labour Court.

25. Agency shop agreements

(1)A representative trade union and an employer or employers' organisation may conclude a collective agreement, to be known as an agency shop agreement, requiring the employer to deduct an agreed agency fee from the wages of employees identified in the agreement who are not members of the trade union but are eligible for membership thereof.[subsection 1 substituted by section 1(a) of Act 42 of 1996]
(2)For the purposes of this section, "representative trade union" means a registered trade union, or two or more registered trade unions acting jointly, whose members are a majority of the employees employed—
(a)by an employer in a workplace; or
(b)by the members of an employers’ organisation in a sector and area in respect of which the agency shop agreement applies.
(3)An agency shop agreement is binding only if it provides that—
(a)employees who are not members of the representative trade union are not compelled to become members of that trade union;
(b)the agreed agency fee must be equivalent to, or less than—
(i)the amount of the subscription payable by the members of the representative trade union;
(ii)if the subscription of the representative trade union is calculated as a percentage of an employeeʼs salary, that percentage; or
(iii)if there are two or more registered trade unions party to the agreement, the highest amount of the subscription that would apply to an employee;
(c)the amount deducted must be paid into a separate account administered by the representative trade union; and
(d)no agency fee deducted may be—
(i)paid to a political party as an affiliation fee;
(ii)contributed in cash or kind to a political party or a person standing for election to any political office; or
(iii)used for any expenditure that does not advance or protect the socio-economic interests of employees.
[paragraph (d) amended by section 1(b) of Act 42 of 1996]
(4)
(a)Despite the provisions of any law or contract, an employer may deduct the agreed agency fee from the wages of an employee without the employee’s authorisation.
(b)Despite subsection 3(c) a conscientious objector may request the employer to pay the amount deducted from that employee’s wages into a fund administered by the Department of Labour.
(5)The provisions of sections 98 and 100(b) and (c) apply, read with the changes required by the context, to the separate account referred to in subsection (3)(c).
(6)Any person may inspect the auditorʼs report, in so far as it relates to an account referred to in subsection (3)(c), in the registrar’s office.
(7)The registrar must provide a certified copy of, or extract from, any of the documents referred to in subsection (6) to any person who has paid the prescribed fees.
(8)An employer or employersʼ organisation that alleges that a trade union is no longer a representative trade union in terms of subsection (1) must give the trade union written notice of the allegation, and must allow the trade union 90 days from the date of the notice to establish that it is a representative trade union.
(9)If, within the 90-day period, the trade union fails to establish that it is a representative trade union, the employer must give the trade union and the employees covered by the agency shop agreement 30 days’ notice of termination, after which the agreement will terminate.
(10)If an agency shop agreement is terminated, the provisions of subsection (3)(c) and (d) and (5) apply until the money in the separate account is spent.

26. Closed shop agreements

(1)A representative trade union and an employer or employers’ organisation may conclude a collective agreement, to be known as a closed shop agreement, requiring all employees covered by the agreement to be members of the trade union.
(2)For the purposes of this section, "representative trade union" means a registered trade union, or two or more registered trade unions acting jointly, whose members are a majority of the employees employed—
(a)by an employer in a workplace; or
(b)by the members of an employersʼ organisation in a sector and area in respect of which the closed shop agreement applies.
(3)A closed shop agreement is binding only if—
(a)a ballot has been held of the employees to be covered by the agreement;
(b)two thirds of the employees who voted have voted in favour of the agreement;
(c)there is no provision in the agreement requiring membership of the representative trade union before employment commences; and
(d)it provides that no membership subscription or levy deducted may be—
(i)paid to a political party as an affiliation fee;
(ii)contributed in cash or kind to a political party or a person standing for election to any political office; or
(iii)used for any expenditure that does not advance or protect the socio-economic interests of employees.
[paragraph (d) amended by section 2 of Act 42 of 1996]
(4)Despite subsection (3)(b), a closed shop agreement contemplated in subsection (2)(b) may be concluded between a registered trade union and a registered employersʼ organisation in respect of a sector and area to become binding in every workplace in which—
(a)a ballot has been held of the employees to be covered by the agreement; and
(b)two thirds of the employees who voted have voted in favour of the agreement.
(5)No trade union that is party to a closed shop agreement may refuse an employee membership or expel an employee from the trade union unless—
(a)the refusal or expulsion is in accordance with the trade union’s constitution; and
(b)the reason for the refusal or expulsion is fair, including, but not limited to, conduct that undermines the trade union’s collective exercise of its rights.
(6)It is not unfair to dismiss an employee
(a)for refusing to join a trade union party to a closed shop agreement;
(b)who is refused membership of a trade union party to a closed shop agreement if the refusal is in accordance with the provisions of subsection (5); or
(c)who is expelled from a trade union party to a closed shop agreement if the expulsion is in accordance with the provisions of subsection (5).
(7)Despite subsection (6)
(a)the employees at the time a closed shop agreement takes effect may not be dismissed for refusing to join a trade union party to the agreement; and
(b)employees may not be dismissed for refusing to join a trade union party to the agreement on grounds of conscientious objection.
(8)The employees referred to in subsection (7) may be required by the closed shop agreement to pay an agreed agency fee, in which case the provisions of section 25(3)(b), (c) and (d) and (4) to (7) apply.
(9)If the Labour Court decides that a dismissal is unfair because the refusal of membership of or the expulsion from a trade union party to a closed shop agreement was unfair, the provisions of Chapter VIII apply, except that any order of compensation in terms of that Chapter must be made against the trade union.
(10)A registered trade union that represents a significant interest in, or a substantial number of, the employees covered by a closed shop agreement may notify the parties to the agreement of its intention to apply to become a party to the agreement and, within 30 days of the notice, the employer must convene a meeting of the parties and the registered trade union in order to consider the application.
(11)If the parties to a closed shop agreement do not admit the registered trade union as a party, the trade union may refer the dispute in writing to the Commission.
(12)The registered trade union must satisfy the Commission that a copy of the referral has been served on all the parties to the closed shop agreement.
(13)The Commission must attempt to resolve the dispute through conciliation.
(14)If the dispute remains unresolved, any party to the dispute may refer it to the Labour Court for adjudication.
(15)The representative trade union must conduct a ballot of the employees covered by the closed shop agreement to determine whether the agreement should be terminated if—
(a)one third of the employees covered by the agreement sign a petition calling for the termination of the agreement; and
(b)three years have elapsed since the date on which the agreement commenced or the last ballot was conducted in terms of this section.
(16)If a majority of the employees who voted, have voted to terminate the closed shop agreement, the agreement will terminate.
(17)Unless a collective agreement provides otherwise, the ballot referred to in subsections (3)(a) and (15) must be conducted in accordance with the guidelines published by the Commission.

Part C – Bargaining councils

27. Establishment of bargaining councils

(1)One or more registered trade unions and one or more registered employers’ organisations may establish a bargaining council for a sector and area by—
(a)adopting a constitution that meets the requirements of section 30; and
(b)obtaining registration of the bargaining council in terms of section 29.
(2)The State may be a party to any bargaining council established in terms of this section if it is an employer in the sector and area in respect of which the bargaining council is established.
(3)If the State is a party to a bargaining council in terms of subsection (2), any reference to a registered employers’ organisation includes a reference to the State as a party.
(4)A bargaining council may be established for more than one sector.[subsection (4) added by section 3 of Act 42 of 1996]

28. Powers and functions of bargaining council

The powers and functions of a bargaining council in relation to its registered scope include the following—
(a)to conclude collective agreements;
(b)to enforce those collective agreements;
(c)to prevent and resolve labour disputes;
(d)to perform the dispute resolution functions referred to in section 51;
(e)to establish and administer a fund to be used for resolving disputes;
(f)to promote and establish training and education schemes;
(g)to establish and administer pension, provident, medical aid, sick pay, holiday, unemployment and training schemes or funds or any similar schemes or funds for the benefit of one or more of the parties to the bargaining council or their members;
(h)to develop proposals for submission to NEDLAC or any other appropriate forum on policy and legislation that may affect the sector and area;
(i)to determine by collective agreement the matters which may not be an issue in dispute for the purposes of a strike or a lock-out at the workplace; and
(j)to confer on workplace forums additional matters for consultation.

29. Registration of bargaining councils

(1)The parties referred to in section 27 may apply for registration of a bargaining council by submitting to the registrar—
(a)the prescribed form that has been properly completed;
(b)a copy of its constitution; and
(c)any other information that may assist the registrar to determine whether or not the bargaining council meets the requirements for registration.
(2)The registrar may require further information in support of the application.
(3)As soon as practicable after receiving the application, the registrar must publish a notice containing the material particulars of the application in the Government Gazette. The notice must inform the general public that they—
(a)may object to the application on any of the grounds referred to in subsection (4); and
(b)have 30 days from the date of the notice to serve any objection on the registrar and a copy on the applicant.
(4)Any person who objects to the application must satisfy the registrar that a copy of the objection has been served on the applicant and that the objection is on any of the following grounds—
(a)the applicant has not complied with the provisions of this section;
(b)the sector and area in respect of which the application is made is not appropriate;
(c)the applicant is not sufficiently representative in the sector and area in respect of which the application is made.
(5)The registrar may require further information in support of the objection.
(6)The applicant may respond to an objection within 14 days of the expiry of the period referred to in subsection (3)(b), and must satisfy the registrar that a copy of that response has been served on the person who objected.
(7)The registrar, as soon as practicable, must send the application and any objections, responses and further information to NEDLAC to consider.
(8)NEDLAC, within 90 days of receiving the documents from the registrar, must—
(a)consider the appropriateness of the sector and area in respect of which the application is made;
(b)demarcate the appropriate sector and area in respect of which the bargaining council should be registered; and
(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.

30. 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;
(f)the appointment or election of office-bearers and officials, their functions, and the circumstances and manner in which they may be removed from office;
(g)the establishment and functioning of committees;
(h)the determination through arbitration of any dispute arising between the parties to the bargaining council about the interpretation or application of the bargaining councilʼs constitution;
(i)the procedure to be followed if a dispute arises between the parties to the bargaining council;
(j)the procedure to be followed if a dispute arises between a registered trade union that is a party to the bargaining council, or its members, or both, on the one hand, and employers who belong to a registered employers’ organisation that is a party to the bargaining council, on the other hand;
(k)the procedure for exemption from collective agreements;
(l)the banking and investment of its funds;
(m)the purposes for which its funds may be used;
(n)the delegation of its powers and functions;
(o)the admission of additional registered trade unions and registered employers’ organisations as parties to the bargaining council, subject to the provisions of section 56;77Section 56 provides for a procedure for the admission of parties to a council.
(p)a procedure for changing its constitution; and
(q)a procedure by which it may resolve to wind up.
[subsection (1) amended by section 5(a) of Act 42 of 1996]
(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 "employersʼ 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(1).
(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 rocedures 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.[subsection (5) added by section 5(b) of Act 42 of 1996]

31. Binding nature of collective agreement concluded in bargaining council

Subject to the provisions of section 32 and the constitution of the bargaining council, a collective agreement concluded in a bargaining council binds—
(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.
[section 31 substituted by section 6 of Act 42 of 1996]

32. Extension of collective agreement concluded in bargaining council

(1)A bargaining council may ask the Minister in writing to extend a collective agreement concluded in the bargaining council to any non-parties to the collective agreement that are within its registered scope and are identified in the 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 employersʼ 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;[paragraph (b) substituted by section 7(a) of Act 42 of 1996]
(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;[paragraph (c) substituted by section 7(a) of Act 42 of 1996]
(d)the non-parties specified in the request fall within the bargaining council’s registered scope;
(e)the collective agreement establishes or appoints an independent body to grant exemptions to non-parties and to determine the terms of those exemptions from the provisions of the collective agreement as soon as possible;
(f)the collective agreement contains criteria that must be applied by the independent body when it considers applications for exemptions, and that those criteria are fair and promote the primary objects of this Act; and
(g)the terms of the collective agreement do not discriminate against non-parties.
(4)For the purpose of subsection (3)(e), a bargaining council in its appointment of the members of the independent body must have due regard to the nominations made by the institutions listed in the Schedule promulgated in terms of section 207(6).
(5)Despite subsection (3)(b) and (c), the Minister may extend a collective agreement in terms of subsection (2) if—
(a)the parties to the bargaining council are sufficiently representative within the registered scope of the bargaining council in the area in respect of which the extension is sought; and[paragraph (a) substituted by section 32(b) of Act 42 of 1996]
(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.[paragraph (b) substituted by section 32(b) of Act 42 of 1996]
(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.
[subsection (9) added by section 7(c) of Act 42 of 1996]

33. Appointment and powers of designated agents of bargaining councils

(1)The Minister may at the request of a bargaining council appoint any person as the designated agent of that bargaining council to help it enforce any collective agreement concluded in that bargaining council.
(2)A bargaining council must provide each designated agent with a certificate signed by the secretary of the bargaining council stating that the agent has been appointed in terms of this Act as a designated agent of that bargaining council.
(3)Within the registered scope of the bargaining council, a designated agent of the bargaining council has all the powers conferred on a commissioner by section 142, read with the changes required by the context, except the powers conferred by section 142(1)(c) and (d). Any reference in that section to the director for the purpose of this section, must be read as a reference to the secretary of the bargaining council.
(4)The bargaining council may cancel the certificate provided to a designated agent in terms of subsection (2) and the agent then ceases to be a designated agent of the bargaining council and must immediately surrender the certificate to the secretary of the bargaining council.

34. Amalgamation of bargaining councils

(1)Any bargaining council may resolve to amalgamate with one or more other bargaining councils.
(2)The amalgamating bargaining councils may apply to the registrar for registra­tion of the amalgamated bargaining council and the registrar must treat the application as an application in terms of section 29.
(3)If the registrar has registered the amalgamated bargaining council, the registrar must cancel the registration of each of the amalgamating bargaining councils by removing their names from the register of councils.
(4)The registration of an amalgamated bargaining council takes effect from the date that the registrar enters its name in the register of councils.
(5)When the registrar has registered an amalgamated bargaining council
(a)all the assets, rights, liabilities and obligations of the amalgamating bargaining councils devolve upon and vest in the amalgamated bargain­ing council; and
(b)all the collective agreements of the amalgamating bargaining councils, regardless of whether or not they were extended in terms of section 32, remain in force for the duration of those collective agreements, unless amended or terminated by the amalgamated bargaining council.

Part D – Bargaining councils in the public service

35. Bargaining councils in public service

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

36. Public Service Co-ordinating Bargaining Council

(1)The Public Service Co-ordinating Bargaining Council must be established in accordance with Schedule 1.88Schedule 1 deals with the procedure for the establishment of the Public Service Co-ordinating Bargaining Council.
(2)The Public Service Co-ordinating Bargaining Council may perform all the functions of a bargaining council in respect of those matters that—
(a)are regulated by uniform rules, norms and standards that apply across the public service; or
(b)apply to terms and conditions of service that apply to two or more sectors; or
(c)are assigned to the State as employer in respect of the public service that are not assigned to the State as employer in any sector.

37. Bargaining councils in sectors in public service

(1)The Public Service Co-ordinating Bargaining Council may designate a sector of the public service for the establishment of a bargaining council.
(2)Despite subsection (1), the President, after consulting the Public Service Co-ordinating Bargaining Council, may designate a sector of the public service for the establishment of a bargaining council if the uniform rules, norms and standards applicable to the public service are not appropriate to regulate employment in that sector.
(3)A bargaining council for a sector designated by—
(a)the Public Service Co-ordinating Bargaining Council must be established in terms of its constitution;
(b)the President must be established in terms of Schedule 1.
(4)
(a)The President may designate a sector for the establishment of a bargaining council in respect of employees of the State or organs of the State but who are not employees engaged in the public service.
(b)A bargaining council must be established in respect of a sector designated by the President in terms of paragraph (a), and the provisions of item 3(4) to (10) of Schedule 1 will apply.[paragraph (b) substituted by section 8 of Act 42 of 1996]
(c)A bargaining council established in terms of paragraph (b) will be deemed to be a bargaining council in the public service for the purposes of this Act.
(5)A bargaining council established in terms of subsection (3) or (4) has exclusive jurisdiction in respect of matters that are specific to that sector and in respect of which the State as employer in that sector has the requisite authority to conclude collective agreements and resolve labour disputes.

38. Dispute resolution committee

(1)The Minister for the Public Service and Administration, after consulting NEDLAC and the Public Service Co-ordinating Bargaining Council, must establish a dispute resolution committee under the auspices of the Commission, and appoint to that committee persons who have knowledge and experience of labour law and labour relations in the public service.
(2)The functions of the dispute resolution committee are to resolve any jurisdictional dispute between the Public Service Co-ordinating Bargaining Council and any bargaining council contemplated in section 37(3), or between two or more bargaining councils of the latter type.[subsection (2) substituted by section 9(a) of Act 42 of 1996]
(3)If there is a jurisdictional dispute between the Public Service Co-ordinating Bargaining Council and a bargaining council contemplated in section 37(3), or between two or more bargaining councils of the latter type, any party to the dispute may refer the dispute in writing to the dispute resolution committee.[subsection (3) substituted by section 9(a) of Act 42 of 1996]
(4)The party who refers the dispute to the dispute resolution committee must satisfy that committee that a copy of the referral has been served on all other bargaining councils that are parties to the dispute.[subsection (4) substituted by section 9(a) of Act 42 of 1996]
(5)The dispute resolution committee must attempt to resolve the dispute as soon as possible through conciliation.
(6)If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration by the dispute resolution committee.[subsection (6) substituted by section 9(b) of Act 42 of 1996]
(7)The Minister for the Public Service and Administration must determine the remuneration and allowances and any other terms and conditions of appointment of committee members. The expenditure incurred for that purpose will be defrayed from public funds.

Part E – Statutory councils

39. Application to establish statutory council

(1)For the purposes of this Part—
(a)"representative trade union" means a registered trade union, or two or more registered trade unions acting jointly, whose members constitute at least 30 per cent of the employees in a sector and area; and
(b)"representative employers’ organisation" means a registered employers’ organisation, or two or more registered employerʼ 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—9The provisions of section 29 deal with the procedure for the registration of a bargaining council.
(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.

40. Establishment and registration of statutory council

(1)If the registrar is satisfied that the applicant meets the requirements for the establishment of a statutory council, the registrar, by notice in the Government Gazette, must establish the statutory council for a sector and area.
(2)The notice must invite—
(a)registered trade unions and registered employersʼ organisations in that sector and area to attend a meeting; and
(b)any interested parties in that sector and area to nominate representatives for the statutory council.
(3)The Commission must appoint a commissioner to chair the meeting and facilitate the conclusion of an agreement on—
(a)the registered trade unions and registered employers’ organisations to be parties to the statutory council; and
(b)a constitution that meets the requirements of section 30, read with the changes required by the context.
(4)If an agreement is concluded, the Minister may advise the registrar to register the statutory council in accordance with the agreement if the Minister is satisfied that—
(a)every registered trade union and registered employers’ organisation that ought to have been included has been included in the agreement; and
(b)the constitution meets the requirements of section 30, read with the changes required by the context.
(5)In considering the requirements in subsection (4)(a), the Minister must take into account—
(a)the primary objects of this Act;
(b)the diversity of registered trade unions and registered employers’ organisations in the sector and area; and
(c)the principle of proportional representation.
(6)If the Minister is not satisfied in terms of subsection (4), the Minister must advise the Commission of the decision and the reasons for that decision and direct the Commission to reconvene the meeting in terms of subsection (3) in order to facilitate the conclusion of a new agreement.
(7)If advised by the Minister in terms of subsection (4), the registrar must register the statutory council by entering its name in the register of councils.

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

(1)If no agreement is concluded in terms of section 40(3), the commissioner must convene separate meetings of the registered trade unions and employers’ organisations to facilitate the conclusion of agreements on—
(a)the registered trade unions to be parties to the statutory council;
(b)the registered employers’ organisations to be parties to the statutory council; and
(c)the allocation to each party of the number of representatives of the statutory council.
(2)If an agreement is concluded on—
(a)the registered trade unions to be parties to the statutory council, the Minister must admit as parties to the statutory council the agreed registered trade unions;
(b)the registered employers’ organisations to be parties to the statutory council, the Minister must admit as parties to the statutory council the agreed registered employers’ organisations.
(3)If no agreement is concluded on—
(a)the registered trade unions to be parties to the statutory council, the Minister must admit as parties to the statutory council
(i)the applicant, if it is a registered trade union; and
(ii)any other registered trade union in the sector and area that ought to be admitted, taking into account the factors referred to in section 40(5);
(b)the registered employersʼ 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 employersʼ organisation; and
(ii)any other registered employersʼ organisation in the sector and area that ought to be admitted, taking into account the factors referred to in section 40(5).
(4)
(a)The Minister must determine an even number of representatives of the statutory council, taking into account the factors referred to in section 40(5).
(b)One half of the representatives must be allocated to the registered trade unions that are parties to the statutory council and the other half of the representatives must be allocated to the registered employers’ organisations that are parties to the statutory council.
(5)If no agreement is concluded in respect of the allocation of the number of representatives of the statutory council
(a)between the registered trade unions that are parties to the council, the Minister must determine this allocation on the basis of proportional representation;
(b)between the registered employers’ organisations that are parties to the council, the Minister must determine this allocation on the basis of proportional representation and taking into account the interests of small and medium enterprises.
(6)If the applicant is a trade union and there is no registered employersʼ organisation that is a party to the statutory council, the Minister, after consulting the Commission, must appoint suitable persons as representatives and alternates, taking into account the nominations received from employers and employers’ organisations in terms of section 40(2).
(7)If the applicant is an employers’ organisation and there is no registered trade union that is a party to the statutory council, the Minister, after consulting the Commission, must appoint suitable persons as representatives and alternates, taking into account the nominations received from employees and trade unions in terms of section 40(2).
(8)The Minister must notify the registrar of agreements concluded and decisions made in terms of this section, and the registrar must—
(a)adapt the model constitution referred to in section 207(3) to the extent necessary to give effect to the agreements and decisions made in terms of this section;
(b)register the statutory council by entering its name in the register of councils; and
(c)certify the constitution as the constitution of the statutory council.

42. Certificate of registration of statutory council

After registering a statutory council, the registrar must—
(a)issue a certificate of registration that must specify the registered scope of the statutory council; and
(b)send the certificate and a certified copy of the registered constitution to all the parties to the statutory council and any representatives appointed to the statutory council.

43. Powers and functions of statutory councils

(1)The powers and functions of a statutory council are—
(a)to perform the dispute resolution functions referred to in section 51;
(b)to promote and establish training and education schemes; and
(c)to establish and administer pension, provident, medical aid, sick pay, holiday, unemployment schemes or funds or any similar schemes or funds for the benefit of one or more of the parties to the statutory council or their members; and
(d)to conclude collective agreements to give effect to the matters mentioned in paragraphs (a), (b), and (c).
(2)A statutory council, in terms of its constitution, may agree to the inclusion of any of the other functions of a bargaining council referred to in section 28.
(3)If a statutory council concludes a collective agreement in terms of subsection (1)(d), the provisions of section 31, 32 and 33 apply, read with the changes required by the context.[subsecton (3) substituted by section 10 of Act 42 of 1996]

44. Ministerial determinations

(1)A statutory council that is not sufficiently representative within its registered scope may submit a collective agreement on any of the matters mentioned in section 43(1)(a), (b) or (c) to the Minister. The Minister must treat the collective agreement as a recommendation made by the wage board in terms of the Wage Act.
(2)The Minister may promulgate the statutory councilʼs recommendations as a determination under the Wage Act if satisfied that the statutory council has complied with sections 7 and 9 of the Wage Act. For that purpose the provisions of sections 7 and 9 to 12 of the Wage Act, read with the changes required by the context, apply to the statutory council as if it was the wage board.
(3)The determination must provide for—
(a)exemptions to be considered by an independent body appointed by the Minister; and
(b)criteria for exemption that are fair and promote the primary objects of this Act.
(4)The Minister may in a determination impose a levy on all employers and employees in the registered scope of the statutory council to defray the operational costs of the statutory council.
(5)A statutory council may submit a proposal to the Minister to amend or extend the period of any determination and the Minister may make the amendment to the determination or extend the period by notice in the Government Gazette.

45. Disputes about determinations

(1)If there is a dispute about the interpretation or application of a determination promulgated in terms of section 44(2), any party to the dispute may refer the dispute in writing to the Commission.
(2)The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.
(3)The Commission must attempt to resolve the dispute through conciliation.
(4)If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.

46. Withdrawal of party from statutory council

(1)If a registered trade union or registered employersʼ 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 employersʼ organisations to be parties and the allocation of represen­tatives to the statutory council.
(2)If no agreement is concluded, the provisions of section 41 apply, read with the changes required by the context.

47. Appointment of new representative of statutory council

(1)If a representative appointed in terms of section 41(6) or (7) for any reason no longer holds office, the Minister must publish a notice in the Government Gazette inviting interested parties within the registered scope of the statutory council to nominate a new representative.
(2)The provisions of section 41(6) or (7) apply, read with the changes required by the context, in respect of the appointment of a new representative.

48. Change of status of statutory council

(1)A statutory council may resolve to apply to register as a bargaining council.
(2)The registrar must deal with the application as if it were an application in terms of section 29,10 except for section 29(4)(b), (7) to (10) and (15).10Section 29 deals with the procedure for the registration of bargaining councils.
(3)If the registrar has registered the statutory council as a bargaining council, the registrar must alter the register of councils and its certificate to reflect its change of status.
(4)Any determination in force at the time of the registration of the bargaining council or any agreement extended by the Minister in terms of section 43(3)
(a)continues to have force for the period of its operation unless superseded by a collective agreement; and
(b)may be extended for a further period.
(5)The bargaining council must perform any function or duty of the statutory council in terms of a determination during the period in which the determination is still in effect.
(6)If any dispute in terms of a determination is unresolved at the time the determination ceases to have effect, the dispute must be dealt with as if the determination was still in effect.

Part F – General provisions concerning councils

49. Representativeness of council

(1)When considering the representativeness of the parties to a council, or parties seeking registration of a council, the registrar, having regard to the nature of the sector and the situation of the area in respect of which registration is sought, may regard the parties to a council as representative in respect of the whole area, even if a trade union or employers’ organisation that is a party to the council has no members in part of that area.
(2)The registrar
(a)after consultation with a council, must fix a date for an annual review of the representativeness of the council;
(b)must conduct that review once every year by that date; and
(c)if satisfied that the council remains representative, must issue a certificate of representativeness that must include the following particulars—
(i)the number of employees employed within the registered scope of the council;
(ii)the number of those employees who are members of the trade unions that are party to the council; and
(iii)the number of employees employed within the registered scope of the council by the members of the employers’ organisations that are party to the council.
(3)A certificate of representativeness issued in terms of subsection (2) is sufficient proof of the representativeness of the council for the following year.

50. Effect of registration of council

(1)A certificate of registration is sufficient proof that a registered council is a body corporate.
(2)A council has all the powers, functions and duties that are conferred or imposed on it by or in terms of this Act, and it has jurisdiction to exercise and perform those powers, functions and duties within its registered scope.
(3)A party to a council is not liable for any of the obligations or liabilities of the council by virtue of it being a party to the council.
(4)A party to, or office-bearer or official of, a council is not personally liable for any loss suffered by any person as a result of an act performed or omitted in good faith by a party to, or office-bearer or official of, a council while performing their functions for the council.
(5)Service of any document directed to a council at the address most recently provided to the registrar will be for all purposes service of that document on that council.

51. Dispute resolution functions of council

(1)In this section, dispute means any dispute about a matter of mutual interest between—
(a)on the one side—
(i)one or more trade unions;
(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.[subparagraph (i), previously paragraph (a), renumbered by section 11(a) of Act 42 of 1996]
(ii)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.[subparagraph (ii) added by section 11(a) of Act 42 of 1996]
(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—11The following disputes must be referenced to a council: disputes about the intepretation or application of the provisions of Chapter II (see section 9); disputes that form the subject matter of a proposed strike 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 may not be referred to a council: disputes about organisational rights (see section 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 intepretation 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 council (see section 62); disputes about the intepretation 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); and 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 intepretation or application of the provisions of Chapter V which deals with workplace forums (see section 94).
(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.[subsection (6) added by section 11(b) of Act 42 of 1996]

52. 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.
[section 52 substituted by section 12 of Act 42 of 1996]

53. Accounting records and audits

(1)Every council must, to the standards of generally accepted accounting practice, principles and procedures—
(a)keep books and records of its income, expenditure, assets and liabilities; and
(b)within six months after the end of each financial year, prepare financial statements, including at least—
(i)a statement of income and expenditure for the previous financial year; and
(ii)a balance sheet showing its assets, liabilities and financial position as at the end of the previous financial year.
(2)Each council must arrange for an annual audit of its books and records of account and its financial statements by an auditor who must—
(a)conduct the audit in accordance with generally accepted auditing standards; and
(b)report in writing to the council and in that report express an opinion as to whether or not the council has complied with those provisions of its constitution relating to financial matters.
(3)Every council must—
(a)make the financial statements and the auditor’s report available to the parties to the council or their representatives for inspection; and
(b)submit those statements and the auditor’s report to a meeting of the council as provided for in its constitution.
(4)Every council must preserve each of its books of account, supporting vouchers, income and expenditure statements, balance sheets, and auditor’s reports, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate.
(5)The money of a 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.
[subsection (5) amended by section 13 of Act 42 of 1996]

54. Duty to keep records and provide information to registrar

(1)In addition to the records required by section 53(4), every council must keep minutes of its meetings, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate.
(2)Every council must provide to the registrar
(a)within 30 days of receipt of its auditorʼs 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 auditorʼs report or the financial statements;
(c)upon registration, an address within the Republic at which it will accept service of any document that is directed to it;
(d)within 30 days of any appointment or election of its national office-­bearers, the names and work addresses of those office-bearers, even if their appointment or election did not result in any changes to its office-bearers; and
(e)30 days before a new address for service of documents will take effect, notice of that change of address.
(3)Every council must provide to the Commission—
(a)certified copies of every collective agreement concluded by the parties to the council, within 30 days of the signing of that collective agreement; and
(b)the details of the admission and resignation of parties to the council, within 30 days of their admission or resignation.

55. Delegation of functions to committee of council

(1)A council may delegate any of its powers and functions to a committee on any conditions imposed by the council in accordance with its constitution.[subsection (1) substituted by section 14(a) of Act 42 of 1996]
(2)A committee contemplated by subsection (1) must consist of equal numbers of representatives of employees and employers.
(3)[subsection (3) deleted by section 14(b) of Act 42 of 1996]

56. Admission of parties to council12

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

57. Changing constitution or name of council

(1)Any council may resolve to change or replace its constitution.
(2)The council must send the registrar a copy of the resolution and a certificate signed by its secretary stating that the resolution complies with its constitution.
(3)The registrar must—
(a)register the changed or new constitution of a council if it meets the requirements of section 30 or if it is a statutory council established in terms of section 41 if it meets the requirements of the model constitution referred to in section 207(3); and
(b)send the council a copy of the resolution endorsed by the registrar, certifying that the change or replacement has been registered.
(4)The changed or new constitution takes effect from the date of the registrar’s certification.
(5)Any council may resolve to change its name.
(6)The council must send the registrar a copy of the resolution and the original of its current certificate of registration.
(7)The registrar must—
(a)enter the new name in the register of councils, and issue a certificate of registration in the new name of the council;
(b)remove the old name from that register and cancel the earlier certificate of registration; and
(c)send the new certificate to the council.
(8)The new name takes effect from the date that the registrar enters it in the register of councils.

58. Variation of registered scope of council

(1)If the registrar is satisfied that the sector and area within which a council is representative does not coincide with the registered scope of the council, the registrar, acting independently or in response to an application from the council, may vary the registered scope of the council.[subsection (1) substituted by section 15 of Act 42 of 1996]
(2)The provisions of section 29 apply, read with the changes required by the context, to a variation in terms of this section.

59. Winding-up of council

(1)The Labour Court may order a council to be wound up if—
(a)the council has resolved to wind up its affairs and has applied to the Court for an order giving effect to that resolution; or
(b)the registrar of labour relations or any party to the council has applied to the Court and the Court is satisfied that the council is unable to continue to function for any reason that cannot be remedied.
(2)If there are any persons not represented before the Labour Court whose interests may be affected by an order in terms of subsection (1), the Court must—
(a)consider those interests before deciding whether or not to grant the order; and
(b)if it grants the order, include provisions in the order disposing of each of those interests.
(3)If it makes an order in terms of subsection (1), the Labour Court may appoint a suitable person as liquidator, on appropriate conditions.
(4)
(a)The registrar of the Labour Court must determine the liquidator’s fees.
(b)The Labour Court, in chambers, may review the determination of the registrar of the Labour Court.
(c)The liquidator’s fees are a first charge against the assets of the council.
(5)If, after all the liabilities of the council have been discharged, any assets remain that cannot be disposed of in accordance with the constitution of that council, the liquidator must realise those assets and pay the proceeds to the Commission for its own use.

60. Winding-up of council by reason of insolvency

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

61. Cancellation of registration of council

(1)The registrar of the Labour Court must notify the registrar of labour relations if the Court has ordered a council to be wound up.
(2)When the registrar receives a notice from the Labour Court in terms of subsection (1), the registrar must cancel the registration of the council by removing its name from the register of councils.
(3)The registrar may notify a council and every party to the council that the registrar is considering cancelling the council’s registration, if the registrar believes that—
(a)the council has ceased to perform its functions in terms of this Act for a period longer than 90 days before the date of the notice; or
(b)the council has ceased to be representative in terms of the provisions of the relevant Part, for a period longer than 90 days prior to the date of the notice.
(4)In a notice in terms of subsection (3), the registrar must state the reasons for the notice and inform the council and every party to the council that they have 60 days to show cause why the councilʼs registration should not be cancelled.
(5)After the expiry of the 60-day period, the registrar, unless cause has been shown why the councilʼs 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 111(3), on the expiry of that period; or
(b)if the council or any party has appealed and the Labour Court has confirmed the decision of the registrar, on the date of the Labour Court’s decision.
(7)If either event contemplated in subsection (6) occurs, the registrar must cancel the council’s registration by removing the name of the council from the register of councils.
(8)Any collective agreement concluded by parties to a council whose registration has been cancelled, whether or not the collective agreement has been extended to non-parties by the Minister in terms of section 32, lapses 60 days after the council’s registration has been cancelled.
(9)Despite subsection (8), the provisions of a collective agreement that regulates terms and conditions of employment remain in force for one year after the date that the council’s registration was cancelled, or until the expiry of the agreement, if earlier.
(10)Any party to a dispute about the interpretation or application of a collective agreement that regulates terms and conditions of employment referred to in subsection (8) may refer the dispute in writing to the Commission.
(11)The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.
(12)The Commission must attempt to resolve the dispute through conciliation.
(13)If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.

62. Disputes about demarcation between sectors and areas

(1)Any registered trade union, employer, 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.
[subsection (1) amended by section 16(a) of Act 42 of 1996]
(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 inte retation 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 for the purposes of the proceedings.
[subsection (3A) inserted by section 16(b) of Act 42 of 1996]
(4)When the Commission receives an application in terms of subsection (1) or a referral in terms of subsection (3), it must appoint a commissioner to hear the application or determine the question, and the provisions of section 138 apply, read with the changes required by the context.
(5)In any proceedings in terms of this Act before a commissioner, if a question contemplated in subsection (1)(a) or (b) is raised, the commissioner must adjourn the proceedings and consult the director, if the commissioner is satisfied that—
(a)the question raised—
(i)has not previously been determined by arbitration in terms of this section; and
(ii)is not the subject of an agreement in terms of subsection (2); and
(b)the determination of the question raised is necessary for the purposes of the proceedings.
(6)The director must either order the commissioner concerned to determine the question or appoint another commissioner to do so, and the provisions of section 138 apply, read with the changes required by the context.
(7)If the Commission believes that the question is of substantial importance, the Commission must publish a notice in the Government Gazette stating the particulars of the application or referral and stating the period within which written representations may be made and the address to which they must be directed.
(8)If a notice contemplated in subsection (7) has been published, the commissioner may not commence the arbitration until the period stated in the notice has expired.
(9)Before making an award, the commissioner must consider any written representations that are made, and must consult NEDLAC.
(10)The commissioner must send the award, together with brief reasons, to the Labour Court and to the Commission.
(11)If the Commission believes that the nature of the award is substantially important, it may publish notice of the award in the Government Gazette.
(12)The registrar must amend the certificate of registration of a council in so far as is necessary in light of the award.

63. Disputes about Parts A and C to F

(1)Any party to a dispute about the interpretation or application of Parts A and C to F of this Chapter, may refer the dispute in writing to the Commission unless—
(a)the dispute has arisen in the course of arbitration proceedings or proceedings in the Labour Court; or[paragraph (a) substituted by section 17 of Act 42 of 1996]
(b)the dispute is otherwise to be dealt with in terms of Parts A and C to F.
(2)The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.
(3)The Commission must attempt to resolve the dispute through conciliation.
(4)If the dispute remains unresolved, any party to the dispute may refer it to the Labour Court for adjudication.

Chapter IV
Strikes and lock-outs

64. Right to strike and recourse to lock-out

(1)Every employee has the right to strike and every employer has recourse to lock-out if—
(a)the issue in dispute has been referred to a council or to the Commission as required by this Act, and—
(i)a certificate stating that the dispute remains unresolved has been issued; or
(ii)a period of 30 days, or any extension of that period agreed to between the parties to the dispute, has elapsed since the referral was received by the council or the Commission; and after that—
(b)in the case of a proposed strike, at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer, unless—
(i)the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; or
(ii)the employer is a member of an employersʼ organisation that is a party to the dispute, in which case, notice must have been given to that employers’ organisation; or
(c)in the case of a proposed lock-out, at least 48 hours’ notice of the commencement of the lock-out, in writing, has been given to any trade union that is a party to the dispute, or, if there is no such trade union, to the employees, unless the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; or
(d)in the case of a proposed strike or lock-out where the State is the employer, at least seven days’ notice of the commencement of the strike or lock-out has been given to the parties contemplated in paragraphs (b) and (c).
(2)If the issue in dispute concerns a refusal to bargain, an advisory award must have been made in terms of section 135(3)(c) before notice is given in terms of subsection (1)(b) or (c). A refusal to bargain includes—
(a)a refusal—
(i)to recognise a trade union as a collective bargaining agent; or
(ii)to agree to establish a bargaining council;
(b)a withdrawal of recognition of a collective bargaining agent;[paragraph (b) amended by section 18 of Act 42 of 1996]
(c)a resignation of a party from a bargaining council;
(d)a dispute about—
(i)appropriate bargaining units;
(ii)appropriate bargaining levels; or
(iii)bargaining subjects.
(3)The requirements of subsection (1) do not apply to a strike or a lock-out if—
(a)the parties to the dispute are members of a council, and the dispute has been dealt with by that council in accordance with its constitution;
(b)the strike or lock-out conforms with the procedures in a collective agreement;
(c)the employees strike in response to a lock-out by their employer that does not comply with the provisions of this Chapter;
(d)the employer locks out its employees in response to their taking part in a strike that does not conform with the provisions of this Chapter; or
(e)the employer fails to comply with the requirements of subsections (4) and (5).
(4)Any employee who or any trade union that refers a dispute about a unilateral change to terms and conditions of employment to a council or the Commission in terms of subsection (1)(a) may, in the referral, and for the period referred to in subsection (1)(a)
(a)require the employer not to implement unilaterally the change to terms and conditions of employment; or
(b)if the employer has already implemented the change unilaterally, require the employer to restore the terms and conditions of employment that applied before the change.
(5)The employer must comply with a requirement in terms of subsection (4) within 48 hours of service of the referral on the employer.

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

(1)No person may take part in a strike or a lock-out or in any conduct in contemplation or furtherance of a strike or a lock-out if—
(a)that person is bound by a collective agreement that prohibits a strike or lock-out in respect of the issue in dispute;
(b)that person is bound by an agreement that requires the issue in dispute to be referred to arbitration;
(c)the issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court in terms of this Act;
(d)that person is engaged in—
(i)an essential service; or
(ii)a maintenance service.1313Essential services, agreed minimum services and maintenance services are regulated in sections 71 to 75.
(2)
(a)Despite section 65(1)(c), a person may take part in a strike or a lock-out or in any conduct in contemplation or in furtherance of a strike or lock-out if the issue in dispute is about any matter dealt with in sections 12 to 15.1414These sections deal with organisational rights.
(b)If the registered trade union has given notice of the proposed strike in terms of section 64(1) in respect of an issue in dispute referred to in paragraph (a), it may not exercise the right to refer the dispute to arbitration in terms of section 21 for a period of 12 months from the date of the notice.
(3)Subject to a collective agreement, no person may take part in a strike or a lock-out or in any conduct in contemplation or furtherance of a strike or lock-out
(a)if that person is bound by—
(i)any arbitration award or collective agreement that regulates the issue in dispute; or
(ii)any determination made in terms of section 44 by the Minister that regulates the issue in dispute; or
(b)any determination made in terms of the Wage Act and that regulates the issue in dispute, during the first year of that determination.

66. Secondary strikes

(1)In this section "secondary strike" means a strike, or conduct in contemplation or furtherance of a strike, that is in support of a strike by other employees against their employer but does not include a strike in pursuit of a demand that has been referred to a council if the striking employees, employed within the registered scope of that council, have a material interest in that demand.[subsection (1) substituted by section 19 of Act 42 of 1996]
(2)No person may take part in a secondary strike unless—
(a)the strike that is to be supported complies with the provisions of sections 64 and 65;
(b)the employer of the employees taking part in the secondary strike or, where appropriate, the employers’ organisation of which that employer is a member, has received written notice of the proposed secondary strike at least seven days prior to its commencement; and
(c)the nature and extent of the secondary strike is reasonable in relation to the possible direct or indirect effect that the secondary strike may have on the business of the primary employer.
(3)Subject to section 68(2) and (3), a secondary employer may apply to the Labour Court for an interdict to prohibit or limit a secondary strike that contravenes subsection (2).
(4)Any person who is a party to proceedings in terms of subsection (3), or the Labour Court, may request the Commission to conduct an urgent investigation to assist the Court to determine whether the requirements of subsection (2)(c) have been met.
(5)On receipt of a request made in terms of subsection (4), the Commission must appoint a suitably qualified person to conduct the investigation, and then submit, as soon as possible, a report to the Labour Court.
(6)The Labour Court must take account of the Commission’s report in terms of subsection (5) before making an order.

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

(1)In this Chapter, "protected strike" means a strike that complies with the provisions of this Chapter and "protected lock-out" means a lock-out that complies with the provisions of this Chapter.
(2)A person does not commit a delict or a breach of contract by taking part in—
(a)a protected strike or a protected lock-out; or
(b)any conduct in contemplation or in furtherance of a protected strike or a protected lock-out.
(3)Despite subsection (2), an employer is not obliged to remunerate an employee for services that the employee does not render during a protected strike or a protected lock-out, however—
(a)if the employee’s remuneration includes payment in kind in respect of accommodation, the provision of food and other basic amenities of life, the employer, at the request of the employee, must not discontinue payment in kind during the strike or lock-out; and
(b)after the end of the strike or lock-out, the employer may recover the monetary value of the payment in kind made at the request of the employee during the strike or lock-out from the employee by way of civil proceedings instituted in the Labour Court.
(4)An employer may not dismiss an employee for participating in a protected strike or for any conduct in contemplation or in furtherance of a protected strike.
(5)Subsection (4) does not preclude an employer from fairly dismissing an employee in accordance with the provisions of Chapter VIII for a reason related to the employee’s conduct during the strike, or for a reason based on the employer’s operational requirements.
(6)Civil legal proceedings may not be instituted against any person for—
(a)participating in a protected strike or a protected lock-out; or
(b)any conduct in contemplation or in furtherance of a protected strike or a protected lock-out.
(7)The failure by a registered trade union or a registered employers’ organisation to comply with a provision in its constitution requiring it to conduct a ballot of those of its members in respect of whom it intends to call a strike or lock-out may not give rise to, or constitute a ground for, any litigation that will affect the legality of, and the protection conferred by this section on, the strike or lock-out.
(8)The provisions of subsections (2) and (6) do not apply to any act in contempla­tion or in furtherance of a strike or a lock-out, if that act is an offence.
(9)Any act in contemplation or in furtherance of a protected strike or a protected lock-out that is a contravention of the Basic Conditions of Employment Act or the Wage Act does not constitute an offence.

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

(1)In the case of any strike or lock-out, or any conduct in contemplation or in furtherance of a strike or lock-out, that does not comply with the provisions of this Chapter, the Labour Court has exclusive jurisdiction—
(a)to grant an interdict or order to restrain—1515See flow diagram No. 6 in Schedule 4.
(i)any person from participating in a strike or any conduct in contemplation or in furtherance of a strike; or
(ii)any person from participating in a lock-out or any conduct in contemplation or in furtherance of a lock-out;
(b)to order the payment of just and equitable compensation for any loss attributable to the strike or lock-out, having regard to—
(i)whether—
(aa)attempts were made to comply with the provisions of this Chapter and the extent of those attests;
(bb)the strike or lock-out was premeditated;
(cc)the strike or lock-out was in response to unjustified conduct by another party to the dispute; and
(dd)there was compliance with an order granted in terms of paragraph (a);
(ii)the interests of orderly collective bargaining;
(iii)the duration of the strike or lock-out; and
(iv)the financial position of the employer, trade union or employees respectively.
(2)The Labour Court may not grant any order in terms of subsection (1)(a) unless 48 hours’ notice of the application has been given to the respondent: However, the Court may permit a shorter period of notice if—
(a)the applicant has given written notice to the respondent of the applicant’s intention to apply for the granting of an order;
(b)the respondent has been given a reasonable opportunity to be heard before a decision concerning that application is taken; and
(c)the applicant has shown good cause why a period shorter than 48 hours should be permitted.
(3)Despite subsection (2), if written notice of the commencement of the proposed strike or lock-out was given to the applicant at least 10 days before the commencement of the proposed strike or lock-out, the applicant must give at least five days’ notice to the respondent of an application for an order in terms of subsection (1)(a).
(4)Subsections (2) and (3) do not apply to an employer or an employee engaged in an essential service or a maintenance service.
(5)Participation in a strike that does not comply with the provisions of this Chapter, or conduct in contemplation or in furtherance of that strike, may constitute a fair reason for dismissal. In determining whether or not the dismissal is fair, the Code of Good Practice: Dismissal in Schedule 8 must be taken into account.

69. Picketing16

16See flow diagram No. 7 in Schedule 4.
(1)A registered trade union may authorise a picket by its members and supporters for the purposes of peacefully demonstrating—
(a)in support of any protected strike; or
(b)in opposition to any lock-out.
(2)Despite any law regulating the right of assembly, a picket authorised in terms of subsection (1), may be held —
(a)in any place to which the public has access but outside the premises of an employer; or
(b)with the permission of the employer, inside the employer’s premises.
[subsection (2) amended by section 20 of Act 42 of 1996]
(3)The permission referred to in subsection (2)(b) may not be unreasonably withheld.
(4)If requested to do so by the registered trade union or the employer, the Commission must attempt to secure an agreement between the parties to the dispute on rules that should apply to any picket in relation to that strike or lock-out.
(5)If there is no agreement, the Commission must establish picketing rules, and in doing so must take account of—
(a)the particular circumstances of the workplace or other premises where it is intended that the right to picket is to be exercised; and
(b)any relevant code of good practice.
(6)The rules established by the Commission may provide for picketing by employees on their employer’s premises if the Commission is satisfied that the employer’s permission has been unreasonably withheld.
(7)The provisions of section 67, read with the changes required by the context, apply to the call for, organisation of, or participation in a picket that complies with the provisions of this section.
(8)Any party to a dispute about any of the following issues may refer the dispute in writing to the Commission—
(a)an allegation that the effective use of the right to picket is being undermined;
(b)an alleged material contravention of subsection (1) or (2);
(c)an alleged material breach of an agreement concluded in terms of subsection (4); or
(d)an alleged material breach of a rule established in terms of subsection (5).
(9)The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.
(10)The Commission must attempt to resolve the dispute through conciliation.
(11)If the dispute remains unresolved, any party to the dispute may refer it to the Labour Court for adjudication.

70. Essential services committee

(1)The Minister, after consulting NEDLAC, and in consultation with the Minister for the Public Service and Administration, must establish an essential services committee under the auspices of the Commission and appoint to that committee, on any terms, persons who have knowledge and experience of labour law and labour relations.
(2)The functions of the essential services committee are—
(a)to conduct investigations as to whether or not the whole or a part of any service is an essential service, and then to decide whether or not to designate the whole or a part of that service as an essential service;
(b)to determine disputes as to whether or not the whole or a part of any service is an essential service; and
(c)to determine whether or not the whole or a part of any service is a maintenance service.1717A maintenance service is defined in section 75.
(3)At the request of a bargaining council, the essential services committee must conduct an investigation in terms of subsection (2)(a).

71. Designating a service as an essential service

(1)The essential services committee must give notice in the Government Gazette of any investigation that it is to conduct as to whether the whole or a part of a service is an essential service.
(2)The notice must indicate the service or the part of a service that is to be the subject of the investigation and must invite interested parties, within a period stated in the notice—
(a)to submit written representations; and
(b)to indicate whether or not they require an opportunity to make oral representations.
(3)Any interested party may inspect any written representations made pursuant to the notice, at the Commission’s offices.
(4)The Commission must provide a certified copy of, or extract from, any written representations to any person who has paid the prescribed fee.
(5)The essential services committee must advise parties who wish to make oral representations of the place and time at which they may be made.
(6)Oral representations must be made in public.
(7)After having considered any written and oral representations, the essential services committee must decide whether or not to designate the whole or a part of the service that was the subject of the investigation as an essential service.
(8)If the essential services committee designates the whole or a part of a service as an essential service, the committee must publish a notice to that effect in the Government Gazette.
(9)The essential services committee may vary or cancel the designation of the whole or a part of a service as an essential service, by following the provisions set out in subsections (1) to (8), read with the changes required by the context.
(10)The Parliamentary service and the South African Police Service are deemed to have been designated an essential service in terms of this section.

72. Minimum services

The essential services committee may ratify any collective agreement that provides for the maintenance of minimum services in a service designated as an essential service, in which case—
(a)the agreed minimum services are to be regarded as an essential service in respect of the employer and its employees; and
(b)the provisions of section 74 do not apply.

73. Disputes about whether a service is an essential service

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

74. Disputes in essential services18

18See flow diagram No. 8 in Schedule 4.
(1)Any party to a dispute that is precluded from participating in a strike or a lock-out because that party is engaged in an essential service may refer the dispute in writing to—
(a)a council, if the parties to the dispute fall within the registered scope of that council; or
(b)the Commission, if no council has jurisdiction.
(2)The party who refers the dispute must satisfy the council or the Commission that a copy of the referral has been served on all the other parties to the dispute.
(3)The council or the Commission must attempt to resolve the dispute through conciliation.
(4)If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration by the council or the Commission.
(5)Any arbitration award in terms of subsection (4) made in respect of the State and that has financial implications for the State becomes binding—
(a)14 days after the date of the award, unless a Minister has tabled the award in Parliament within that period; or
(b)14 days after the date of tabling the award, unless Parliament has passed a resolution that the award is not binding.
(6)If Parliament passes a resolution that the award is not binding, the dispute must be referred back to the Commission for further conciliation between the parties to the dispute and if that fails, any party to the dispute may request the Commission to arbitrate.
(7)If Parliament is not in session on the expiry of—
(a)the period referred to in subsection (5)(a), that period or the balance of that period will run from the beginning of the next session of Parliament;[paragraph (a) amended by section 21(a) of Act 42 of 1996]
(b)the period referred to in subsection (5)(b), that period will run from the expiry of the period referred to in paragraph (a) of this subsection or from the beginning of the next session of Parliament.[paragraph (b) substituted by section 21(b) of Act 42 of 1996]

75. Maintenance services

(1)A service is a maintenance service if the interruption of that service has the effect of material physical destruction to any working area, plant or machinery.
(2)If there is no collective agreement relating to the provision of a maintenance service, an employer may apply in writing to the essential services committee for a determination that the whole or a part of the employer’s businesses or service is a maintenance service.[subsection (2) substituted by section 22(a) of Act 42 of 1996]
(3)The employer must satisfy the essential services committee that a copy of the application has been served on all interested parties.
(4)The essential services committee must determine, as soon as possible, whether or not the whole or a part of the employer's business or service is a maintenance service.[subsection (4) substituted by section 22(b) of Act 42 of 1996]
(5)As part of its determination in terms of subsection (4), the essential services committee may direct that any dispute in respect of which the employees engaged in a maintenance service would have had the right to strike, but for the provisions of section 65(1)(d)(ii), be referred to arbitration.[subsection (5) added by section 22(c) of Act 42 of 1996]
(6)The committee may not make a direction in terms of subsection (5) if—
(a)the terms and conditions of employment of the employees engaged in the maintenance service are determined by collective bargaining; or
(b)the number of employees prohibited from striking because they are engaged in the maintenance service does not exceed the number of employees who are entitled to strike.
[subsection (6) added by section 22(c) of Act 42 of 1996]
(7)If a direction in terms of subsection (5) requires a dispute to be resolved by arbitration—
(a)the provisions of section 74 will apply to the arbitration; and
(b)any arbitration award will be binding on the employees engaged in the maintenance service and their employer, unless the terms of the award are varied by a collective agreement.
[subsection (7) added by section 22(c) of Act 42 of 1996]

76. Replacement labour

(1)An employer may not take into employment any person—
(a)to continue or maintain production during a protected strike if the whole or a part of the employer’s service has been designated a maintenance service; or
(b)for the purpose of performing the work of any employee who is locked out, unless the lock-out is in response to a strike.
(2)For the purpose of this section, "take into employment" includes engaging the services of a temporary employment service or an independent contractor.

77. Protest action to promote or defend socio-economic interests of workers

(1)Every employee who is not engaged in an essential service or a maintenance service has the right to take part in protest action if—
(a)the protest action has been called by a registered trade union or federation of trade unions;
(b)the registered trade union or federation of trade unions has served a notice on NEDLAC stating—
(i)the reasons for the protest action; and
(ii)the nature of the protest action;
(c)the matter giving rise to the intended protest action has been considered by NEDLAC of any other appropriate forum in which the parties concerned are able to participate in order to resolve the matter; and
(d)at least 14 days before the commencement of the protest action, the registered trade union or federation of trade unions has served a notice on NEDLAC of its intention to proceed with the protest action.
(2)The Labour Court has exclusive jurisdiction—
(a)to grant any order to restrain any person from taking part in protest action or in any conduct in contemplation or in furtherance of protest action that does not comply with subsection (1);
(b)in respect of protest action that complies with subsection (1), to grant a declaratory order contemplated by subsection (4), after having consid­ered—
(i)the nature and duration of the protest action;
(ii)the steps taken by the registered trade union or federation of trade unions to minimise the harm caused by the protest action; and
(iii)the conduct of the participants in the protest action.
(3)A person who takes part in protest action at in any conduct in contemplation or in furtherance of protest action that complies with subsection (1), enjoys the protections conferred by section 67.
(4)Despite the provisions of subsection (3), an employee forfeits the protection against dismissal conferred by that subsection, if the employee
(a)takes part in protest action or any conduct in contemplation or in furtherance of protest action in breach of an order of the Labour Court; or
(b)otherwise acts in contempt of an order of the Labour Court made in terms of this section.

Chapter V
Workplace forums

78. Definitions in this chapter

In this Chapter—
(a)"employee" means any person who is employed in a workplace, except a senior managerial employee whose contract of employment or status confers the authority to do any of the following in the workplace
(i)[subparagraph (i) deleted by section 23 of Act 42 of 1996]
(ii)represent the employer in dealings with the workplace forum; or
(iii)determine policy and take decisions on behalf of the employer that may be in conflict with the representation of employees in the workplace; and
(b)"representative trade union" means a registered trade union, or two or more registered trade unions acting jointly, that have as members the majority of the employees employed by an employer in a workplace.

79. General functions of workplace forum

A workplace forum established in terms of this Chapter—
(a)must seek to promote the interests of all employees in the workplace, whether or not they are trade union members;
(b)must seek to enhance efficiency in the workplace;
(c)is entitled to be consulted by the employer, with a view to reaching consensus, about the matters referred to in section 84; and
(d)is entitled to participate in joint decision-making about the matters referred to in section 86.

80. Establishment of workplace forum

(1)A workplace forum may be established in any workplace in which an employer employs more than 100 employees.
(2)Any representative trade union may apply to the Commission in the prescribed form for the establishment of a workplace forum.
(3)The applicant must satisfy the Commission that a copy of the application has been served on the employer.
(4)The Commission may require further information in support of the application.
(5)The Commission must—
(a)consider the application and any further information provided by the applicant; and
(b)consider whether, in the workplace in respect of which the application has been made—
(i)the employer employs 100 or more employees;
(ii)the applicant is a representative trade union; and
(iii)there is no functioning workplace forum established in terms of this Chapter.
(6)If satisfied that the requirements of subsection (5) are met, the Commission must appoint a commissioner to assist the parties to establish a workplace forum by collective agreement or, failing that, to establish a workplace forum in terms of this Chapter.
(7)The commissioner must convene a meeting with the applicant, the employer and any registered trade union that has members employed in the workplace, in order to facilitate the conclusion of a collective agreement between those parties, or at least between the applicant and the employer.
(8)If a collective agreement is concluded, the provisions of this Chapter do not apply.[subsection (8) amended by section 24 of Act 42 of 1996]
(9)If a collective agreement is not concluded, the commissioner must meet the parties referred to in subsection (7) in order to facilitate agreement between them, or at least between the applicant and the employer, on the provisions of a constitution for a workplace forum in accordance with this Chapter, taking into account the guidelines in Schedule 2.
(10)If no agreement is reached on any of the provisions of a constitution, the commissioner must establish a workplace forum and determine the provisions of the constitution in accordance with this Chapter, taking into account the guidelines in Schedule 2.
(11)After the workplace forum has been established, the commissioner must set a date for the election of the first members of the workplace forum and appoint an election officer to conduct the election.
(12)The provisions of this section do not apply to the public service. The establishment of workplace forums in the public service will be regulated in a Schedule promulgated by the Minister for the Public Service and Administration in terms of section 207(4).

81. Trade union based workplace forum

(1)If a representative trade union is recognised in terms of a collective agreement by an employer for the purposes of collective bargaining in respect of all employees in a workplace, that trade union may apply to the Commission in the prescribed form for the establishment of a workplace forum.
(2)The applicant may choose the members of the workplace forum from among its elected representatives in the workplace.
(3)If the applicant makes this choice, the provisions of this Chapter apply, except for section 80(11) and section 82(1)(b) to (m).
(4)The constitution of the applicant governs the nomination, election and removal from office of elected representatives of the applicant in the workplace.
(5)A workplace forum constituted in terms of this section will be dissolved if—
(a)the collective agreement referred to in subsection (1) is terminated;
(b)the applicant is no longer a representative trade union.
(6)The provisions of this section do not apply to the public service.

82. Requirements for constitution of workplace forum

(1)The constitution of every workplace forum must—
(a)establish a formula for determining the number of seats in the workplace forum;
(b)establish a formula for the distribution of seats in the workplace forum so as to reflect the occupational structure of the workplace;
(c)provide for the direct election of members of the workplace forum by the employees in the workplace;
(d)provide for the appointment of an employee as an election officer to conduct elections and define that officer’s functions and powers;
(e)provide that an election of members of the workplace forum must be held not later than 24 months after each preceding election;
(f)provide that if another registered trade union becomes representative, it may demand a new election at any time within 21 months after each preceding election;
(g)provide for the procedure and manner in which elections and ballots must be conducted;
(h)provide that any employee, including any former or current member of the workplace forum, may be nominated as a candidate for election as a member of the workplace forum by—
(i)any registered trade union with members employed in the work­place; or
(ii)a petition signed by not less than 20 per cent of the employees in the workplace or 100 employees, whichever number of employees is the smaller;
(i)provide that in any ballot every employee is entitled—
(i)to vote by secret ballot; and
(ii)to vote during working hours at the employer’s premises;
(j)provide that in an election for members of the workplace forum every employee is entitled, unless the constitution provides otherwise—
(i)to cast a number of votes equal to the number of members to be elected; and
(ii)to cast one or more of those votes in favour of any candidate;
(k)establish the terms of office of members of the workplace forum and the circumstances in which a member must vacate that office;
(l)establish the circumstances and manner in which members of the workplace forum may be removed from office, including the right of any representative trade union that nominated a member for election to remove that member at any time;
(m)establish the manner in which vacancies in the workplace forum may be filled, including the rules for holding by-elections;
(n)establish the circumstances and manner in which the meetings referred to in section 83 must be held;
(o)provide that the employer must allow the election officer reasonable time off with pay during working hours to prepare for and conduct elections;
(p)provide that the employer must allow each member of the workplace forum reasonable time off with pay during working hours to perform the functions of a member of the workplace forum and to receive training relevant to the performance of those functions;
(q)require the employer to take any steps that are reasonably necessary to assist the election officer to conduct elections;
(r)require the employer to provide facilities to enable the workplace forum to perform its functions;
(s)provide for the designation of full-time members of the workplace forum if there are more than 1 000 employees in a workplace;[paragraph (s) substituted by section 25(a) of Act 42 of 1996]
(t)provide that the workplace forum may invite any expert to attend its meetings, including meetings with the employer or the employees, and that an expert is entitled to any information to which the workplace forum is entitled and to inspect and copy any document that members of the workplace forum are entitled to inspect and copy;[paragraph (t) substituted by section 25(b) of Act 42 of 1996]
(u)provide that office-bearers or officials of the representative trade union may attend meetings of the workplace forum, including meetings with the employer or the employees;[paragraph (u) amended by section 25(c) of Act 42 of 1996]
(v)provide that the representative trade union and the employer, by agreement, may change the constitution of the workplace forum; and[paragraph (v) amended by section 25(d) of Act 42 of 1996]
(w)establish the manner in which decisions are to be made.[paragraph (w) added by section 25(e) of Act 42 of 1996]
(2)The constitution of a workplace forum may—
(a)establish a procedure that provides for the conciliation and arbitration of proposals in respect of which the employer and the workplace forum do not reach consensus;
(b)establish a co-ordinating workplace forum to perform any of the general functions of a workplace forum and one or more subsidiary workplace forums to perform any of the specific functions of a workplace forum; and
(c)include provisions that depart from sections 83 to 92.
(3)The constitution of a workplace forum binds the employer.
(4)The Minister for the Public Service and Administration may amend the requirements for a constitution in terms of this section for workplace forums in the public service by a Schedule promulgated in terms of section 207(4).

83. Meetings of workplace forum

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

84. Specific matters for consultation

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

85. Consultation

(1)Before an employer may implement a proposal in relation to any matter referred to in section 84(1), the employer must consult the workplace forum and attempt to reach consensus with it.
(2)The employer must allow the workplace forum an opportunity during the consultation to make representations and to advance alternative proposals.
(3)The employer must consider and respond to the representations or alternative proposals made by the workplace forum and, if the employer does not agree with them, the employer must state the reasons for disagreeing.
(4)If the employer and the workplace forum do not reach consensus, the employer must invoke any agreed procedure to resolve any differences before implement­ing the employer’s proposal.

86. Joint decision-making

(1)Unless the matters for joint decision-making are regulated by a collective agreement with the representative trade union, an employer must consult and reach consensus with a workplace forum before implementing any proposal concerning—
(a)disciplinary codes and procedures;
(b)rules relating to the proper regulation of the workplace in so far as they apply to conduct not related to the work performance of employees;
(c)measures designed to protect and advance persons disadvantaged by unfair discrimination; and
(d)changes by the employer or by employer-appointed representatives on trusts or boards of employer-controlled schemes, to the rules regulating social benefit schemes.
(2)A representative trade union and an employer may conclude a collective agreement
(a)conferring on the workplace forum the right to joint decision-making in respect of additional matters in that workplace;
(b)removing any matter referred to in subsection (1)(a) to (d) from the list of matters requiring joint decision-making.
(3)Any other law may confer on a workplace forum the right to participate in joint decision-making about additional matters.
(4)If the employer does not reach consensus with the workplace forum, the employer may—
(a)refer the dispute to arbitration in terms of any agreed procedure; or
(b)if there is no agreed procedure, refer the dispute to the Commission.
(5)The employer must satisfy the Commission that a copy of the referral has been served on the chairperson of the workplace forum.
(6)The Commission must attempt to resolve the dispute through conciliation.
(7)If the dispute remains unresolved, the employer may request that the dispute be resolved through arbitration.1919See flow diagram No. 9 in Schedule 4.
(8)
(a)An arbitration award is about a proposal referred to in subsection (1)(d) takes effect 30 days after the date of the award.
(b)Any representative on the trust or board may apply to the Labour Court for an order declaring that the implementation of the award constitutes a breach of a fiduciary duty on the part of that representative.
(c)Despite paragraph (a), the award will not take effect pending the determination by the Labour Court of an application made in terms of paragraph (b).
(9)For the purposes of workplace forums in the public service, a collective agreement referred to in subsections (1) and (2) is a collective agreement concluded in a bargaining council.

87. Review at request of newly established workplace forum

(1)After the establishment of a workplace forum, the workplace forum may request a meeting with the employer to review—
(a)criteria for merit increases or the payment of discretionary bonuses;
(b)disciplinary codes and procedures; and
(c)rules relating to the proper regulation of the workplace in so far as they apply to conduct not related to work performance of employees in the workplace.
(2)The employer must submit its criteria, disciplinary codes and procedures, and rules, referred to in subsection (1), if any, in writing to the workplace forum for its consideration.
(3)A review of the criteria must be conducted in accordance with the provisions of section 85.
(4)A review of the disciplinary codes and procedures, and rules, must be conducted in accordance with the provisions of section 86(2) to (7) except that, in applying section 86(4), either the employer or the workplace forum may refer a dispute between them to arbitration or to the Commission.[subsection (4) substituted by section 26 of Act 42 of 1996]

88. Matters affecting more than one workplace forum in an employer’s operation

(1)If the employer operates more than one workplace and separate workplace forums have been established in two or more of those workplaces, and if a matter has been referred to arbitration in terms of section 86(4)(a) or (b), or by a workplace forum in terms of section 87(4), the employer may give notice in writing to the chairpersons of all the workplace forums that no other workplace forum may refer a matter that is substantially the same as the matter referred to arbitration.[subsection (1) substituted by section 27 of Act 42 of 1996]
(2)If the employer gives notice in terms of subsection (1)
(a)each workplace forum is entitled to make representations and participate in the arbitration proceedings; and
(b)the arbitration award is binding on the employer and the employees in each workplace.

89. Disclosure of information

(1)An employer must disclose to the workplace forum all relevant information that will allow the workplace forum to engage effectively in consultation and joint decision-making.
(2)An employer is not required to disclose information—
(a)that is legally privileged;
(b)that the employer cannot disclose without contravening a prohibition imposed on the employer by any law or order of any court;
(c)that is confidential and, if disclosed, may cause substantial harm to an employee or the employer; or
(d)that is private personal information relating to an employee, unless that employee consents to the disclosure of that information.
(2A)The employer must notify the workplace forum in writing if of the view that any information disclosed in terms of subsection (1) is confidential.[subsection (2A) inserted by section 28 of Act 42 of 1996]
(3)If there is a dispute about the disclosure of information, any party to the dispute may refer the dispute in writing to the Commission.
(4)The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.
(5)The Commission must attempt to resolve the dispute through conciliation.
(6)If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.
(7)In any dispute about the disclosure of information contemplated in subsec­tion (3), the commissioner must first decide whether or not the information is relevant.
(8)If the commissioner decides that the information is relevant and if it is information contemplated in subsection (2)(c) or (d), the commissioner must balance the harm that the disclosure is likely to cause to an employee or employer against the harm that the failure to disclose the information is likely to cause to the ability of the workplace forum to engage effectively in consultation and joint decision-making.
(9)If the commissioner decides that the balance of harm favours the disclosure of the information, the commissioner may order the disclosure of the information on terms designed to limit the harm likely to be caused to the employee or employer.
(10)When making an order in terms of subsection (9), the commissioner must take into account any breach of confidentiality in respect of information disclosed in terms of this section at that workplace and may refuse to order the disclosure of the information or any other confidential information, that might otherwise be disclosed, for a period specified in the arbitration award.

90. Inspection and copies of documents

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

91. Breach of confidentiality

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

92. Full-time members of workplace forum

(1)In a workplace in which 1 000 or more employees are employed, the members of the workplace forum may designate from their number one full-time member.
(2)
(a)The employer must pay a full-time member of the workplace forum the same remuneration that the member would have earned in the position the member held immediately before being designated as a full-time member.
(b)When a person ceases to be a full-time member of a workplace forum, the employer must reinstate that person to the position that person held immediately before election or appoint that person to any higher position to which, but for the election, that person would have advanced.

93. Dissolution of workplace forum

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

94. Disputes about workplace forums

(1)Unless a collective agreement or this Chapter provides otherwise, any party to a dispute about the interpretation or application of this Chapter may refer that dispute to the Commission in writing, if that party is—
(a)one or more employees employed in the workplace;
(aA)a workplace forum;[paragraph (aA) inserted by section 29 of Act 42 of 1996]
(b)a registered trade union with members employed in the workplace;
(c)the representative trade union; or
(d)the employer.
(2)The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.
(3)The Commission must attempt to resolve the dispute through conciliation.
(4)If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.

Chapter VI
Trade unions and employers’ organisations

Part A – Registration and regulation of trade unions and employers’ organisations

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

(1)Any trade union may apply to the registrar for registration if—
(a)it has adopted a name that meets the requirements of subsection (4);
(b)it has adopted a constitution that meets the requirements of subsec­tions (5) and (6);
(c)it has an address in the Republic; and
(d)it is independent.
(2)A trade union is independent if—
(a)it is not under the direct or indirect control of any employer or employers’ organisation; and
(b)it is free of any interference or influence of any kind from any employer or employersʼ organisation.
(3)Any employers’ organisation may apply to the registrar for registration if—
(a)it has adopted a name that meets the requirements of subsection (4);
(b)it has adopted a constitution that meets the requirements of subsec­tions (5) and (6), and
(c)it has an address in the Republic.
(4)Any trade union or employersʼ organisation that intends to register may not have a name or shortened form of the name that so closely resembles the name or shortened form of the name of another trade union or employers’ organisation that it is likely to mislead or cause confusion.
(5)The constitution of any trade union or employersʼ organisation that intends to register must—
(a)state that the trade union or employersʼ organisation is an association not for gain;
(b)prescribe qualifications for, and admission to, membership;
(c)establish the circumstances in which a member will no longer be entitled to the benefits of membership;
(d)provide for the termination of membership;
(e)provide for appeals against loss of the benefits of membership or against termination of membership, prescribe a procedure for those appeals and determine the body to which those appeals may be made;
(f)provide for membership fees and the method for determining member­ship fees and other payments by members;
(g)prescribe rules for the convening and conducting of meetings of members and meetings of representatives of members, including the quorum required for, and the minutes to be kept of, those meetings;
(h)establish the manner in which decisions are to be made;
(i)establish the office of secretary and define its functions;
(j)provide for other office-bearers, officials and, in the case of a trade union, trade union representatives, and define their respective functions;
(k)prescribe a procedure for nominating or electing office-bearers and, in the case of a trade union, trade union representatives;
(l)prescribe a procedure for appointing, or nominating and electing, officials;
(m)establish the circumstances and manner in which office-bearers, officials and, in the case of a trade union, trade union representatives, may be removed from office;
(n)provide for appeals against removal from office of office-bearers, officials and, in the case of a trade union, trade union representatives, prescribe a procedure for those appeals and determine the body to which those appeals may be made;
(o)establish the circumstances and manner in which a ballot must be conducted;
(p)provide that the trade union at employers’ organisation, before calling a strike or lock-out, must conduct a ballot of those of its members in respect of whom it intends to call the