No. 66 of 1995: Labour Relations Act

as amended by

Labour Relations Amendment Act, No 42 of 1996

Proclamation, No 66 of 1996

Labour Relations Amendment Act, No 127 of 1998

Labour Relations Amendment Act, No 12 of 2002

ACT

To 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 lockout 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 services 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; and

* to provide for incidental matters.

BE IT ENACTED by the State President and the Parliament of the Republic of South Africa, as follows:-

TABLE OF CONTENTS

CHAPTER ONE

Purpose, Application and Interpretation

1. Purpose of this Act

2. Exclusion from application of this Act

3. Interpretation of this Act

CHAPTER TWO

Freedom of Association and General Protections

4. Employees' right to freedom of association

5. Protection of employees and persons seeking employment

6. Employers' right to freedom of association

7. Protection of employers' rights

8. Rights of trade unions and employers' organisations

9. Procedure for disputes

10. Burden of proof

CHAPTER THREE

Collective Bargaining

Part A: Organisational Rights

11. Trade union representativeness

12. Trade union access to workplace

13. Deduction of trade union subscriptions or levies

14. Trade union representatives

15. Leave for trade union activities

16. Disclosure of information

17. Restricted rights in domestic sector

18. Right to establish thresholds of representativeness

19. Certain organisational rights for trade union party to council

20. Organisational rights in collective agreements

21. Exercise of rights conferred by this Part

22. Disputes about organisational rights

Part B: Collective Agreements

23. Legal effect of collective agreement

24. Disputes about collective agreements

25. Agency shop agreements

26. Closed shop agreements

Part C: Bargaining Council

27. Establishment of bargaining councils

28. Powers and functions of bargaining council

29. Registration of bargaining councils

30. Constitution of bargaining council

31. Binding nature of collective agreement concluded in bargaining council

32. Extension of collective agreement concluded in bargaining council

33. Appointment and powers of designated agents of bargaining councils

34. Amalgamation of bargaining councils

Part D: Bargaining Councils In The Public Service

35. Bargaining councils in public service

36. Public Service Coordinating Bargaining Council

37. Bargaining councils in sectors in public service

38. Dispute resolution committee

Part E: Statutory Councils

39. Application to establish statutory council

40. Establishment and registration of statutory council

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

42. Certificate of registration of statutory council

43. Powers and functions of statutory councils

44. Ministerial determinations

45. Disputes about determinations

46. Withdrawal of party from statutory council

47. Appointment of new representative of statutory council

48. Change of status of statutory council

Part F: General Provisions Concerning Councils

49. Representativeness of council

50. Effect of registration of council

51. Dispute resolution functions of council

52. Accreditation of council or appointment of accredited agency

53. Accounting records and audits

54. Duty to keep records and provide information to registrar

55. Delegation of functions to committee of council

56. Admission of parties to council

57. Changing constitution or name of council

58. Variation of registered scope of council

59. Winding-up of council

60. Winding-up of council by reason of insolvency

61. Cancellation of registration of council

62. Disputes about demarcation between sectors and areas

63. Disputes about Parts A and C to F

CHAPTER FOUR

Strikes and Lock-Outs

64. Right to strike and recourse to lockout

65. Limitations on right to strike or recourse to lockout

66. Secondary strikes

67. Strike or lockout in compliance with this Act

68. Strike or lockout not in compliance with this Act

69. Picketing

70. Essential services committee

71. Designating a service as an essential service

72. Minimum services

73. Disputes about whether a service is an essential service

74. Disputes in essential services

75. Maintenance services

76. Replacement labour

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

CHAPTER FIVE

Workplace Forums

78. Definitions in this Chapter

79. General functions of workplace forum

80. Establishment of workplace forum

81. Trade union based workplace forum

82. Requirements for constitution of workplace forum

83. Meetings of workplace forum

84. Specific matters for consultation

85. Consultation

86. Joint decision-making

87. Review at request of newly established workplace forum

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

89. Disclosure of information

90. Inspection and copies of documents

91. Breach of confidentiality

92. Full-time members of workplace forum

93. Dissolution of workplace forum

94. Disputes about workplace forums

CHAPTER SIX

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

96. Registration of trade unions or employers' organisations

97. Effect of registration of trade union or employers' organisation

98. Accounting records and audits

99. Duty to keep records

100. Duty to provide information to registrar

101. Changing constitution or name of registered trade unions or employers' organisations

102. Amalgamation of trade unions or employers' organisations

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

104. Winding-up of trade unions or employers' organisations by reason of insolvency

105. Cancellation of registration of trade union that is no longer independent

106. Cancellation of registration of trade unions or employers' organisations

Part B: Regulation of Federations of Trade Unions and Employers' Organisations

107. Regulation of federations of trade unions or employers' organisations

Part C: Registrar of Labour Relations

108. Appointment of registrar of labour relations

109. Functions of registrar

110. Access to information

Part D: Appeals from Registrar's Decision

111. Appeals from registrar's decision

CHAPTER SEVEN

Dispute Resolution

Part A-Commission for Conciliation, Mediation and Arbitration

112. Establishment of Commission for Conciliation, Mediation and Arbitration

113. Independence of Commission

114. Area of jurisdiction and offices of Commission

115. Functions of Commission

116. Governing body of Commission

117. Commissioners of Commission

118. Director of Commission

119. Acting director of Commission

120. Staff of Commission

121. Establishment of committees of Commission

122. Finances of Commission

123. Circumstances in which Commission may charge fees

124. Contracting by Commission, and Commission working in association with any person

125. Delegation of governing body's powers, functions and duties

126. Limitation of liability and limitation on disclosure of information

Part B: Accreditation of and Subsidy to Councils and Private Agencies

127. Accreditation of councils and private agencies

128. General provisions relating to accreditation

129. Amendment of accreditation

130. Withdrawal of accreditation

131. Application to renew accreditation

132. Subsidy to council or private agency

Part C: Resolution of Disputes under Auspices of Commission

133. Resolution of disputes under auspices of Commission

134. Disputes about matters of mutual interest

135. Resolution of disputes through conciliation

136. Appointment of commissioner to resolve dispute through arbitration

137. Appointment of senior commissioner to resolve dispute through arbitration

138. General provisions for arbitration proceedings

139. Special provisions for arbitrating disputes in essential services

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

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

142. Powers of commissioner when attempting to resolve disputes

143. Effect of arbitration awards

144. Variation and rescission of arbitration awards

145. Review of arbitration awards

146. Exclusion of Arbitration Act

147. Performance of dispute resolution functions by Commission in exceptional circumstances

148. Commission may provide advice

149. Commission may provide assistance

150. Commission may offer to resolve

Part D: Labour Court

151. Establishment and status of Labour Court

152. Composition of Labour Court

153. Appointment of judges of Labour Court

154. Tenure, remuneration and terms and conditions of appointment of Labour Court judges

155. Officers of Labour Court

156. Area of jurisdiction and seat of Labour Court

157. Jurisdiction of Labour Court

158. Powers of Labour Court

159. Rules Board for Labour Courts and rules for Labour Court

160. Proceedings of Labour Court to be carried on in open court

161. Representation before Labour Court

162. Costs

163. Service and enforcement of orders of Labour Court

164. Seal of Labour Court

165. Variation and rescission of orders of Labour Court

166. Appeals against judgement or order of Labour Court

Part E: Labour Appeal Court

167. Establishment and status of Labour Appeal Court

168. Composition of Labour Appeal Court

169. Appointment of other judges of Labour Appeal Court

170. Tenure, remuneration and terms and conditions of appointment of Labour Appeal Court judges

171. Officers of Labour Appeal Court

172. Area of jurisdiction and seat of Labour Appeal Court

173. Jurisdiction of Labour Appeal Court

174. Powers of Labour Appeal Court on hearing of appeals

175. Labour Appeal Court may sit as court of first instance

176. Rules for Labour Appeal Court

177. Proceedings of Labour Appeal Court to be carried on in open court

178. Representation before Labour Appeal Court

179. Costs

180. Service and enforcement of orders

181. Seal of Labour Appeal Court

182. Judgements of Labour Appeal Court binding on Labour Court

183. Labour Appeal Court final court of appeal

Part F: General Provisions Applicable To Courts Established By This Act

184. General provisions applicable to courts established by this Act

CHAPTER EIGHT

Unfair Dismissal

185. Right not to be unfairly dismissed

186. Meaning of dismissal

187. Automatically unfair dismissals

188. Other unfair dismissals

189. Dismissals based on operational requirements

190. Date of dismissal

191. Disputes about unfair dismissals

192. Onus in dismissal disputes

193. Remedies for unfair dismissal

194. Limits on compensation

195. Compensation is in addition to any other amount

196. Severance pay

197. Transfer of contract of employment

CHAPTER NINE

General Provisions

198. Temporary Employment Services

199. Contracts of employment may not disregard or waive collective agreements or arbitration awards

200. Representation of employees or employers

201. Confidentiality

202. Service of documents

203. Codes of good practice

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

205. Records to be kept by employer

206. Effect of certain defects and irregularities

207. Ministers empowered to add and change to Schedules

208. Regulations

208A. Delegations

209. This Act binds the State

210. Application of Act when in conflict with other laws

211. Amendment of laws

212. Repeal of laws, and transitional arrangements

213. Definitions

214. Short title and commencement

SCHEDULE ONE

Establishment of Bargaining Councils for Public Service

1. Definitions for this Schedule

2. Establishment of Public Service Coordinating Bargaining Council

3. Establishment of bargaining council in sectors

SCHEDULE TWO

Guidelines for Constitution of Workplace Forum

1. Introduction

2. Number of seats in workplace forums (section 82(1)(a))

3. Distribution of seats to reflect occupational structure (section 82(l) (b))

4. Elections (section 82(l)(c), (d), (g), (h), (i) and (j))

5. Terms of office (section 82(l)(k), (1) and (m))

6. Meetings of workplace forum (section 82(l)(n))

7. Time off for members of workplace forum (section 82(1)(p))

8. Facilities to be provided to workplace forum (section 82(l)(r))

9. Experts (section 82(l)(t))

10. Establishment of coordinating and subsidiary workplace forums (section 82(2)(b))

SCHEDULE THREE

Commission for Conciliation, Mediation and Arbitration

1. Remuneration and allowances of members of governing body

2. Resignation and removal from office of member of governing body

3. Vacancies in governing body

4. Proceedings of governing body

5. Director of Commission

6. Bank account

7. Investment of surplus money

8. Accounting and auditing

9. Annual report

SCHEDULE FOUR

Dispute Resolution: Flow Diagrams

SCHEDULE FIVE

Amendment of Laws

1. Amendment of section 1 of Basic Conditions of Employment Act

2. Amendment of section 35 of Occupational Health and Safety Act, 1993

3. Amendment of section 2 of Pension Funds Act, 1956

4. Amendment of section 2 of Medical Schemes Act, 1967

5. Amendment of section 1 of Insurance Act, 1943

6. Amendment of section 2 of Friendly Societies Act, 1956

7. Amendment of section 3 of Friendly Societies Act, 1956

SCHEDULE SIX

Laws Repealed By Section 212

SCHEDULE SEVEN

Transitional Arrangements

Part A: Definitions for This Schedule

1. Definitions for this Schedule

Part B: Unfair Labour Practices

2. Residual unfair labour practices

3. Disputes about unfair labour practices

4. Powers of Labour Court and Commission

Part C: Provisions Concerning Existing Trade Unions, Employers' Organisations, Industrial Councils and Conciliation Boards

5. Existing registered trade unions and employers' organisations

6. Pending applications by trade unions or employers' organisations for registration, variation of scope, alteration of constitution or name

7. Industrial councils

8. Pending applications by industrial councils for registration and variation of scope

8A. Pending enquiries by industrial registrar

9. Pending applications by industrial councils for alteration of constitution or name

10. Pending applications for admission of parties to industrial councils

11. Pending applications to wind up and cancel registration of trade unions, employers' organisations and industrial councils

12. Existing agreements and awards of industrial councils and conciliation boards

12A. Designated agents

13. Existing agreements including recognition agreements

Part D: Matters Concerning Public Service

14. Public Service Bargaining Council

15. Collective agreements in the public service

16. Education Labour Relations Council

17. Education sector collective agreements

18. Negotiating Forum in South African Police Service

19. Collective agreements in South African Police Service

20. Consequences for public service bargaining institutions when Public Service Coordinating Bargaining Council is established

Part E: Disputes and Courts

21. Disputes arising before commencement of this Act

21A. Dispute resolution by councils before their accreditation

22. Courts

Part F: Pension Matters

23. Continuation of existing pension rights of staff members of Commission upon assuming employment

Part G: Essential Services

24. Essential services in the public service

25. Essential services provided for in the Labour Relations Act

SCHEDULE EIGHT

Code of Good Practice: Dismissal

1. Introduction

2. Fair reasons for dismissal

3. Disciplinary measures short of dismissal

4. Fair procedure

5. Disciplinary records

6. Dismissals and industrial action

7. Guidelines in cases of dismissal for misconduct

8. Incapacity: Poor work performance

9. Guidelines in cases of dismissal for poor work performance

10. Incapacity: III health or injury

11. Guidelines in cases of dismissal arising from ill health or injury

CHAPTER I

PURPOSE, APPLICATION AND INTERPRETATION

1. Purpose of this Act

The purpose of this Actš 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-

(a) to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution;˛

(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 employees 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.

1 An italicised word or phrase indicates that the word or phrase is defined in section 213 of this Act.

2 Section 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 employers 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 lockout for the purpose of collective bargaining shall not be impaired, subject to subsection 33(l).

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 employers' organisation or a federation of employers' organisations; and

(b) to 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 employers' 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 employers' 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 employers' organisation;

(ii) participation in forming an employers' organisation or a federation of employers' organisations;

(iii) participation in the lawful activities of an employers' 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 disputes ?

(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.

3. See flow diagram No. 1 in Schedule 4.

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 if there are more than 1000 members of the trade union employed in the workplace, 12 trade union representatives for the first 1000 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 (I 2), 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 employers' 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 Part 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 unions 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 cooperate 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.

4. See flow diagram No. 2 in Schedule 4.

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 I 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 employers' 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 employers' 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 in writing 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 or a settlement agreement contemplated in either section 142A or 158(1)(c), must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement. The procedure must first require the parties to attempt to resolve the dispute through conciliation and, if the dispute remains unresolved, to resolve it through arbitration.

(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.5

(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.6

(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.

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

5. See flow diagram No. 3 in Schedule 4.

6. See flow diagram No. 4 in Schedule 4.

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.

(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 employee's 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.

(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 auditor's 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 employers' 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 employers' 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.

(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 employers' 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.

28. Powers and functions of bargaining council

(1) The powers and functions of a bargaining council in relation to its registered scope include the following-

(a) to conclude collective agreements;

(b) to enforce those collective agreements;

(c) to prevent and resolve labour disputes;

(d) to perform the dispute resolution functions referred to in section 51;

(e) to establish and administer a fund to be used for resolving disputes;

(f) to promote and establish training and education schemes;

(g) to establish and administer pension, provident, medical aid, sick pay, holiday, unemployment and training schemes or funds or any similar schemes or funds for the benefit of one or more of the parties to the bargaining council or their members;

(h) to develop proposals for submission to NEDLAC or any other appropriate forum on policy and legislation that may affect the sector and area;

(i) to determine by collective agreement the matters which may not be an issue in dispute for the purposes of a strike or a lock-out at the workplace; and

(j) to confer on workplace forums additional matters for consultation;

(k) to provide industrial support services within the sector; and

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

(2) From the date on which the Labour Relations Amendment Act, 1998, comes into operation, the provisions of the laws relating to pension, provident or medical aid schemes or funds must be complied with in establishing any pension, provident or medical aid scheme or fund in terms of subsection (1)(g)

(3) The laws relating to pension, provident or medical aid schemes or funds will apply in respect of any pension, provident or medical aid scheme or fund established in terms of subsection (1)(g) after the coming into operation of the Labour Relations Amendment Act, 1998.

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 and send a copy of the notice to NEDLAC. The notice must inform the general public that they-

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

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

(4) Any person who objects to the application must satisfy the registrar that a copy of the objection has been served on the applicant and that the objection is on any of the following grounds-

(a) the applicant has not complied with the provisions of this section;

(b) the sector and area in respect of which the application is made is not appropriate;

(c) the applicant is not sufficiently representative in the sector and area in respect of which the application is made.

(5) The registrar may require further information in support of the objection.

(6) The applicant may respond to an objection within 14 days of the expiry of the period referred to in subsection (3)(b), and must satisfy the registrar that a copy of that response has been served on the person who objected.

(7) The registrar, as soon as practicable, must send the application and any objections, responses and further information to NEDLAC to consider.

(8) NEDLAC, within 90 days of receiving the documents from the registrar, must-

(a) consider the appropriateness of the sector and area in respect of which the application is made;

(b) demarcate the appropriate sector and area in respect of which the bargaining council should be registered; and

(c) report to the registrar in writing.

(9) If NEDLAC fails to agree on a demarcation as required in subsection (8)(b), the Minister must demarcate the appropriate sector and area and advise the registrar.

(10) In determining the appropriateness of the sector and area for the demarcation contemplated in subsection (8)(b), NEDLAC or the Minister must seek to give effect to the primary objects of this Act.

(11) The registrar-

(a) must consider the application and any further information provided by the applicant;

(b) must determine whether-

(i) the applicant has complied with the provisions of this section;

(ii) the constitution of the bargaining council complies with section 30;

(iii) adequate provision is made in the constitution of the bargaining council for the representation of small and medium enterprises;

(iv) the parties to the bargaining council are sufficiently representative of the sector and area determined by NEDLAC or the Minister; and

(v) there is no other council registered for the sector and area in respect of which the application is made; and

(c) if satisfied that the applicant meets the requirements for registration, must register the bargaining council by entering the applicant's name in the register of councils.

(12) If the registrar is not satisfied that the applicant meets the requirements for registration, the registrar-

(a) must send the applicant a written notice of the decision and the reasons for that decision; and

(b) in that notice, must inform the applicant that it has 30 days from the date of the notice to meet those requirements.

(13) If, within that 30-day period, the applicant meets those requirements, the registrar must register the applicant by entering the applicant's name in the register of councils.

(14) If, after the 30-day period, the registrar concludes that the applicant has failed to meet the requirements for registration, the registrar must-

(a) refuse to register the applicant; and

(b) notify the applicant and any person that objected to the application of that decision in writing.

(15) After registering the applicant, the registrar must-

(a) issue a certificate of registration in the applicant's name that must specify the registered scope of the applicant; and

(b) send the registration certificate and a certified copy of the registered constitution to the applicant.

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

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; the appointment or election of office-bearers and officials, their functions, and the circumstances and manner in which they may be removed from office;

(f) the establishment and functioning of committees;

(g) the determination through arbitration of any dispute arising between the parties to the bargaining council about the interpretation or application of the bargaining council's constitution;

(h) the procedure to be followed if a dispute arises between the parties to the bargaining council;

(i) the procedure to be followed if a dispute arises between a registered trade union that is a party to the bargaining council, or its members, or both, on the one hand, and employers who belong to a registered employers' organisation that is a party to the bargaining council, on the other hand;

(j) the procedure for exemption from collective agreements;

(k) the banking and investment of its funds;

(l) the purposes for which its funds may be used;

(m) the delegation of its powers and functions;

(n) the admission of additional registered trade unions and registered employers' organisations as parties to the bargaining council, subject to the provisions of section 56;7

(o) a procedure for changing its constitution; and

(p) a procedure by which it may resolve to wind up.

(2) The requirements for the constitution of a bargaining council in subsection (1) apply to the constitution of a bargaining council in the public service except that-

(a) any reference to an "employers' organisation" must be read as a reference to the State as employer; and

(b) the requirement in subsection (1)(b) concerning the representation of small and medium enterprises does not apply.

(3) The constitution of the Public Service Co-ordinating Bargaining Council must include a procedure for establishing a bargaining council in a sector of the public service designated in terms of section 37(l).

(4) The constitution of a bargaining council in the public service may include provisions for the establishment and functioning of chambers of a bargaining council on national and regional levels.

(5) The procedures for the resolution of disputes referred to in subsection (1)(h), (i) and (j) may not entrust dispute resolution functions to the Commission unless the governing body of the Commission has agreed thereto.

7. Section 56 provides for a procedure for the admission of parties to a council.

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.

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 employers' organisations that are party to the bargaining council, vote in favour of the extension.

(2) Within 60 days of receiving the request, the Minister must extend the collective agreement, as requested, by publishing a notice in the Government Gazette declaring that, from a specified date and for a specified period, the collective agreement will be binding on the non-parties specified in the notice.

(3) A collective agreement may not be extended in terms of subsection (2) unless the Minister is satisfied that-

(a) the decision by the bargaining council to request the extension of the collective agreement complies with the provisions of subsection (1);

(b) the majority of all the employees who, upon extension of the collective agreement, will fall within the scope of the agreement, are members of the trade unions that are parties to the bargaining council;

(c) the members of the employers' organisations that are parties to the bargaining council will, upon the extension of the collective agreement, be found to employ the majority of all the employees who fall within the scope of the collective agreement;

(d) the non-parties specified in the request fall within the bargaining council's registered scope;

(e) provision is made in the collective agreement for an independent body to hear and decide, as soon as possible, any appeal brought against -

(i) the bargaining council's refusal of a non-party's application for exemption from the provisions of the collective agreement;

(ii) the withdrawal of such an exemption by the bargaining council;

(f) the collective agreement contains criteria that must be applied by the independent body when it considers an appeal, and that those criteria are fair and promote the primary objects of this Act; and

(g) the terms of the collective agreement do not discriminate against non-parties.

(4) [Deleted]

(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; and

(b) the Minister is satisfied that failure to extend the agreement may undermine collective bargaining at sectoral level or in the public service as a whole.

(6) (a) After a notice has been published in terms of subsection (2), the Minister, at the request of the bargaining council, may publish a further notice in the Government Gazette

(i) extending the period specified in the earlier notice by a further period determined by the Minister; or

(ii) if the period specified in the earlier notice has expired, declaring a new date from which, and a further period during which, the provisions of the earlier notice will be effective.

(b) The provisions of subsections (3) and (5), read with the changes required by the context, apply in respect of the publication of any notice in terms of this subsection.

(7) The Minister, at the request of the bargaining council, must publish a notice in the Government Gazette cancelling all or part of any notice published in terms of subsection (2) or (6) from a date specified in the notice.

(8) Whenever any collective agreement in respect of which a notice has been published in terms of subsection (2) or (6) is amended, amplified or replaced by a new collective agreement, the provisions of this section apply to that new collective agreement.

(9) For the purposes of extending collective agreements concluded in the Public Service Co-ordinating Bargaining Council or any bargaining council contemplated in section 37(3) or (4)-

(a) any reference in this section to an employers' organisation must be read as a reference to the State as employer; and

(b) subsections (3)(c), (e) and (f) and (4) of this section will not apply.

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

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 promote, monitor and enforce compliance with any collective agreement concluded in that bargaining council.

(1A) A designated agent may -

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

(i) publicising the contents of the agreements;

(ii) conducting inspections;

(iii) investigating complaints; or

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

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

(2) A bargaining council must provide each designated agent with a certificate signed by the secretary of the bargaining council stating that the agent has been appointed in terms of this Act as a designated agent of that bargaining council.

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

(4) The bargaining council may cancel the certificate provided to a designated agent in terms of subsection (2) and the agent then ceases to be a designated agent of the bargaining council and must immediately surrender the certificate to the secretary of the bargaining council.

33A. Enforcement of collective agreements by bargaining councils

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(c) charging a party an arbitration fee;

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

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

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

(9) Interest on any amount that a person is obliged to pay in terms of a collective agreement accrues from the date on which the amount was due and payable at the rate prescribed in terms of section 1 of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), unless the arbitration award provides otherwise.

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

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

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

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

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

(i) for a breach of a collective agreement -

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

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

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

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 1.8

(2) The Public Service Co-ordinating Bargaining Council may perform all the functions of a bargaining council in respect of those matters that-

(a) are regulated by uniform rules, norms and standards that apply across the public service; or

(b) apply to terms and conditions of service that apply to two or more sectors; or

(c) are assigned to the State as employer in respect of the public service that are not assigned to the State as employer in any sector.

8. Schedule 1 deals with the procedure for the establishment of the Public Service Co-ordinating Bargaining Council.

37. Bargaining councils in sectors in public service

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

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

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

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

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

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

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

38. Disputes between bargaining councils in public service

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

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

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

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

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 employers' organisations acting jointly, whose members employ at least 30 per cent of the employees in a sector and area.

(2) A representative trade union or representative employers' organisation may apply to the registrar in the prescribed form for the establishment of a statutory council in a sector and area in respect of which no council is registered.

(3) The registrar must apply the provisions of section 29(2) to (10)9 to the application-

(a) read with the changes required by the context; and

(b) subject to the deletion of the word "sufficiently" in section 29(4)(c).

(4) The registrar must-

(a) consider the application and any further information provided by the applicant; and

(b) determine whether-

(i) the applicant has complied with section 29 and of this section;

(ii) the applicant is representative of the sector and area determined by NEDLAC or the Minister; and

(iii) there is no other council registered for the sector and area in respect of which the application is made.

(5) If the registrar is not satisfied that the applicant meets the requirements for establishment, the registrar must-

(a) send the applicant a written notice of the decision and the reasons for that decision; and

(b) in that notice, inform the applicant that it has 30 days from the date of the notice to meet those requirements.

(6) If, after the 30-day period, the registrar concludes that the applicant has failed to meet the requirements for establishment, the registrar must-

(a) refuse to register the applicant; and

(b) notify the applicant and any person that objected to the application in writing of that decision.

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 employers' organisations in that sector and area to attend a meeting; and

(b) any interested parties in that sector and area to nominate representatives for the statutory council.

(3) The Commission must appoint a commissioner to chair the meeting and facilitate the conclusion of an agreement on-

(a) the registered trade unions and registered employers' organisations to be parties to the statutory council; and

(b) a constitution that meets the requirements of section 30, read with the changes required by the context.

(4) If an agreement is concluded, the Minister may advise the registrar to register the statutory council in accordance with the agreement if the Minister is satisfied that-

(a) every registered trade union and registered employers' organisation that ought to have been included has been included in the agreement; and

(b) the constitution meets the requirements of section 30, read with the changes required by the context.

(5) In considering the requirements in subsection (4)(a), the Minister must take into account-

(a) the primary objects of this Act;

(b) the diversity of registered trade unions and registered employers' organisations in the sector and area; and

(c) the principle of proportional representation.

(6) If the Minister is not satisfied in terms of subsection (4), the Minister must advise the Commission of the decision and the reasons for that decision and direct the Commission to reconvene the meeting in terms of subsection (3) in order to facilitate the conclusion of a new agreement.

(7) If advised by the Minister in terms of subsection (4), the registrar must register the statutory council by entering its name in the register of councils.

9. The provisions of section 29 deal with the procedure for the registration of a bargaining council.

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 employers' organisations to be parties to the statutory council, the Minister must admit as parties to the statutory council-

(i) the applicant, if it is a registered employers' organisation; and

(ii) any other registered employers' organisation in the sector and area that ought to be admitted, taking into account the factors referred to in section 40(5).

(4) (a) The Minister must determine an even number of representatives of the statutory council, taking into account the factors referred to in section 40(5).

(b) One half of the representatives must be allocated to the registered trade unions that are parties to the statutory council and the other half of the representatives must be allocated to the registered employers' organisations that are parties to the statutory council.

(5) If no agreement is concluded in respect of the allocation of the number of representatives of the statutory council-

(a) between the registered trade unions that are parties to the council, the Minister must determine this allocation on the basis of proportional representation;

(b) between the registered employers' organisations that are parties to the council, the Minister must determine this allocation on the basis of proportional representation and taking into account the interests of small and medium enterprises.

(6) If the applicant is a trade union and there is no registered employers' organisation that is a party to the statutory council, the Minister, after consulting the Commission, must appoint suitable persons as representatives and alternates, taking into account the nominations received from employers and employers' organisations in terms of section 40(2).

(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 sections 31, 32 and 33 apply, read with the changes required by the context.

(4) (a) From the date on which the Labour Relations Amendment Act, 1998, comes into operation, the provisions of the laws relating to pension, provident or medical aid schemes or funds must be complied with in establishing any pension, provident or medical aid scheme or fund in terms of subsection (1)(c).

(b) The provisions of the laws relating to pension, provident or medical aid schemes or funds will apply in relation to any pension, provident or medical aid scheme or fund established in terms of subsection (1)(c) after the coming into operation of the Labour Relations Amendment Act, 1998.

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 Employment Conditions Commission in terms of section 54(4) of the Basic Conditions of Employment Act.

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

(3) The determination must provide for -

(a) exemptions to be considered by an independent body appointed by the Minister; and

(b) criteria for exemption that are fair and promote the primary objects of this Act.

(4) The Minister may in a determination impose a levy on all employers and employees