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EXTRACTS FROM THE LABOUR RELATIONS ACT - Collective Bargaining CONTENTS: Chapter III Part A-Organisational
Rights 11. Trade union representativeness Part B-Collective
Agreements 23. Legal effect of collective agreement Part C-Bargaining Council 27. Establishment of bargaining councils Part D-Bargaining Councils
In The Public Service
Part E-Statutory Councils 39. Application to establish statutory council Part F-General Provisions Concerning Councils
Schedule 1 Establishment Of Bargaining Councils For Public Service 1. Definitions for this Schedule EXTRACT FROM THE LABOUR RELATIONS ACT: 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-
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-
(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-
(5) Subject to reasonable conditions, a trade union representative is entitled to take reasonable time off with pay during working hours-
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-
(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-
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-
(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-
(9) In order to determine the membership or support of the registered trade union, the commissioner may-
(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. 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-
(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 to the other parties. 24. Disputes about collective agreements (1) Every collective agreement, excluding an agency shop agreement concluded in terms of section 25 or a closed shop agreement concluded in terms of section 26, must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement. The procedure must first require the parties to attempt to resolve the dispute through conciliation and, if the dispute remains unresolved, to resolve it through arbitration. (2) If there is a dispute about the interpretation or application of a collective agreement, any party to the dispute may refer the dispute in writing to the Commission if-
(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. 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 its employees who are identified in the agreement and who are not 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-
(3) An agency shop agreement is binding only if it provides that-
(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 falls 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-
(3) A closed shop agreement is binding only if-
(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-
(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-
(6) It is not unfair to dismiss an employee-
(7) Despite subsection (6)-
(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-
(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-
(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. 28. Powers and functions of bargaining council The powers and functions of a bargaining council in relation to its registered scope include the following-
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-
(2) The registrar may require further information in support of the application. (3) As soon as practicable after receiving the application, the registrar must publish a notice containing the material particulars of the application in the Government Gazette. The notice must inform the general public that they-
(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-
(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-
(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-
(12) If the registrar is not satisfied that the applicant meets the requirements for registration, the registrar-
(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-
(15) After registering the applicant, the registrar must-
30. Constitution of bargaining council (1) The constitution of every bargaining council must provide for-
(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-
(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. 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 only the parties to the bargaining council who are parties to the collective agreement. 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 if at a meeting of the bargaining council request, I
(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-
(4) For the purpose of subsection (3)(e), a bargaining council in its appointment of the members of the independent body must have due regard to the nominations made by the institutions listed in the schedule promulgated in terms of section 207(6). (5) Despite subsection (3)(b) and (c), the Minister may extend a collective agreement in terms of subsection (2) if(a) the parties to the bargaining council are sufficiently representative within the registered scope of the bargaining council; and (b) the Minister is satisfied that the failure to extend the agreement may undermine collective bargaining at sectoral level. (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
(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. 33. Appointment and powers of designated agents of bargaining councils (1) The Minister may at the request of a bargaining council appoint any person as the designated agent of that bargaining council to help it enforce any collective agreement concluded in that bargaining council. (2) A bargaining council must provide each designated agent with a certificate signed by the secretary of the bargaining council stating that the agent has been appointed in terms of this Act as a designated agent of that bargaining council. (3) Within the registered scope of the bargaining council, a designated agent of the bargaining council has all the powers conferred on a commissioner by section 142, read with the changes required by the context, except the powers conferred by section 142(l)(c) and (d). Any reference in that section to the director for the purpose of this section, must be read as a reference to the secretary of the bargaining council. (4) The bargaining council may cancel the certificate provided to a designated agent in terms of subsection (2) and the agent then ceases to be a designated agent of the bargaining council and must immediately surrender the certificate to the secretary of the bargaining council. 34. Amalgamation of bargaining councils (1) Any bargaining council may resolve to amalgamate with one or more other bargaining councils. (2) The amalgamating bargaining councils may apply to the registrar for registration of the amalgamated bargaining council and the registrar must treat the application as an application in terms of section 29. (3) If the registrar has registered the amalgamated bargaining council, the registrar must cancel the registration of each of the amalgamating bargaining councils by removing their names from the register of councils. (4) The registration of an amalgamated bargaining council takes effect from the date that the registrar enters its name in the register of councils. (5) When the registrar has registered an amalgamated bargaining council-
Part D-Bargaining Councils In The Public Service 35. Bargaining councils in public service There will be a bargaining council for-
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-
37. Bargaining councils in sectors in public service (1) The Public Service Co-ordinating Bargaining Council may designate a sector of the public service for the establishment of a bargaining council. (2) Despite subsection (1), the President, after consulting the Public Service Co-ordinating Bargaining Council, may designate a sector of the public service for the establishment of a bargaining council if the uniform rules, norms and standards applicable to the public service are not appropriate to regulate employment in that sector. 8. Schedule 1 deals with the procedure for the establishment of the Public Service Co-ordinating Bargaining Council. (3) A bargaining council for a sector designated by-
(4) (a) The President may designate a sector for the establishment of a bargaining council in respect of employees of the State or organs of the State but who are not employees engaged in the public service. (b) A bargaining council must be established in respect of a sector designated by the President in terms of paragraph (a) and the provisions of item 3(3) to (9) of Schedule I apply. (c) A bargaining council established in terms of paragraph (b) will be deemed to be a bargaining council in the public service for the purposes of this Act. (5) A bargaining council established in terms of subsection (3) or (4) has exclusive jurisdiction in respect of matters that are specific to that sector and in respect of which the State as employer in that sector has the requisite authority to conclude collective agreements and resolve labour disputes. 38. Dispute resolution committee (1) The Minister for the Public Service and Administration, after consulting NEDLAC and the Public Service Co-ordinating Bargaining Council, must establish a dispute resolution committee under the auspices of the Commission, and appoint to that committee persons who have knowledge and experience of labour law and labour relations in the public service. (2) The functions of the dispute resolution committee are to resolve any jurisdictional dispute between the Public Service Co-ordinating Bargaining Council and any bargaining council established in terms of section 37(3). (3) If there is a jurisdictional dispute between the Public Service Co-ordinating Bargaining Council and a bargaining council established in terms of section 37(3), any party to the dispute may refer the dispute in writing to the dispute resolution committee. (4) The party who refers the dispute to the dispute resolution committee must satisfy it that a copy of the referral has been served on the Public Service Co-ordinating Bargaining Council. (5) The dispute resolution committee must attempt to resolve the dispute as soon as possible through conciliation. (6) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration. (7) The Minister for the Public Service and Administration must determine the remuneration and allowances and any other terms and conditions of appointment of committee members. The expenditure incurred for that purpose will be defrayed from public funds. Part E-Statutory Councils 39. Application to establish statutory council (1) For the purposes of this Part-
(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-
(4) The registrar must-
(5) If the registrar is not satisfied that the applicant meets the requirements for establishment, the registrar must-
(6) If, after the 30-day period, the registrar concludes that the applicant has failed to meet the requirements for establishment, the registrar must-
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-
(3) The Commission must appoint a commissioner to chair the meeting and facilitate the conclusion of an agreement on-
(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-
(5) In considering the requirements in subsection (4)(a), the Minister must take into account-
(6) If the Minister is not satisfied in terms of subsection (4), the Minister must advise the Commission of the decision and the reasons for that decision and direct the Commission to reconvene the meeting in terms of subsection (3) in order to facilitate the conclusion of a new agreement. (7) If advised by the Minister in terms of subsection (4), the registrar must register the statutory council by entering its name in the register of councils. 41. Establishment and registration of statutory council in absence of agreement (1) If no agreement is concluded in terms of section 40(3), the commissioner must convene separate meetings of the registered trade unions and employers' organisations to facilitate the conclusion of agreements on-
(2) If an agreement is concluded on-
(3) If no agreement is concluded on-
(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-
(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-
42. Certificate of registration of statutory council After registering a statutory council, the registrar must
43. Powers and functions of statutory councils (1) The powers and functions of a statutory council are-
(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 and 32 apply, read with the changes required by the context. 44. Ministerial determinations (1) A statutory council that is not sufficiently representative within its registered scope may submit a collective agreement on any of the matters mentioned in section 43(1)(a), (b) or (c) to the Minister. The Minister must treat the collective agreement as a recommendation made by the wage board in terms of the Wage Act. (2) The Minister may promulgate the statutory council's recommendations as a determination under the Wage Act if satisfied that the statutory council has complied with sections 7 and 9 of the Wage Act. For that purpose the provisions of sections 7 and 9 to 12 of the Wage Act, read with the changes required by the context, apply to the statutory council as if it was the wage board. (3) The determination must provide for
(4) The Minister may in a determination impose a levy on all employers and employees in the registered scope of the statutory council to defray the operational costs of the statutory council. (5) A statutory council may submit a proposal to the Minister to amend or extend the period of any determination and the Minister may make the amendment to the determination or extend the period by notice in the Government Gazette. 45. Disputes about determinations (1) If there is a dispute about the interpretation or application of a determination promulgated in terms of section 44(2), any party to the dispute may refer the dispute in writing to the Commission. (2) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute. (3) The Commission must attempt to resolve the dispute through conciliation. (4) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration. 46. Withdrawal of party from statutory council (1) If a registered trade union or registered employers' organisation that is a party to a statutory council withdraws from that statutory council, the Minister may request the Commission to convene a meeting of the remaining registered trade unions or registered employers' organisations in the sector and area, in order to facilitate the conclusion of an agreement on the registered trade unions or the registered employers' organisations to be parties and the allocation of representatives to the statutory council. (2) If no agreement is concluded, the provisions of section 41 apply, read with the changes required by the context. 47. Appointment of new representative of statutory council (1) If a representative appointed in terms of section 41(6) or (7) for any reason no longer holds office, the Minister must publish a notice in the Government Gazette inviting interested parties within the registered scope of the statutory council to nominate a new representative. (2) The provisions of section 41(6) or (7) apply, read with the changes required by the context, in respect of the appointment of a new representative. 48. Change of status of statutory council (1) A statutory council may resolve to apply to register as a bargaining council. (2) The registrar must deal with the application as if it were an application in terms of section 29,10 except for section 29(4)(b), (7) to (10) and (15). (3) If the registrar has registered the statutory council as a bargaining council, the registrar must alter the register of councils and its certificate to reflect its change of status. (4) Any determination in force at the time of the registration of the bargaining council or any agreement extended by the Minister in terms of section 43(3)-
(5) The bargaining council must perform any function or duty of the statutory council in terms of a determination during the period in which the determination is still in effect. (6) If any dispute in terms of a determination is unresolved at the time the determination ceases to have effect, the dispute must be dealt with as if the determination was still in effect. Part F-General Provisions Concerning Councils 49. Representativeness of council (1) When considering the representativeness of the parties to a council, or parties seeking registration of a council, the registrar, having regard to the nature of the sector and the situation of the area in respect of which registration is sought, may regard the parties to a council as representative in respect of the whole area, even if a trade union or employers' organisation that is a party to the council has no members in part of that area. (2) The registrar-
(3) A certificate of representativeness issued in terms of subsection (2) is sufficient proof of the representativeness of the council for the following year. 50. Effect of registration of council (1) A certificate of registration is sufficient proof that a registered council is a body corporate. (2) A council has all the powers, functions and duties that are conferred or imposed on it by or in terms of this Act, and it has jurisdiction to exercise and perform those powers, functions and duties within its registered scope. (3) A party to a council is not liable for any of the obligations or liabilities of the council by virtue of it being a party to the council. (4) A party to, or office-bearer or official of, a council is not personally liable for any loss suffered by any person as a result of an act performed or omitted in good faith by a party to, or office-bearer or official of, a council while performing their functions for the council. (5) Service of any document directed to a council at the address most recently provided to the registrar will be for all purposes service of that document on that council. 51. Dispute resolution functions of council (1) In this section, dispute means any dispute about a matter of mutual interest between-
(2) (a) The parties to a council must attempt to resolve any dispute between themselves in accordance with the constitution of the council. (b) Any party to a dispute who is not a party to a council but who falls within the registered scope of the council may refer the dispute to the council in writing. (c) The party who refers the dispute to the council must satisfy it that a copy of the referral has been served on all the other parties to the dispute. (3) If a dispute is referred to a council in terms of this Act" and any party to that dispute is not a party to that council, the council must attempt to resolve the dispute
(4) If one or more of the parties to a dispute that has been referred to the council do not fall within the registered scope of that council, it must refer the dispute to the Commission. (5) The date on which the referral in terms of subsection (4) was received by a council is, for all purposes, the date on which the council referred the dispute to the Commission. 52. Accreditation of council or appointment of accredited agency Every council must-
53. Accounting records and audits (1) Every council must, to the standards of generally accepted accounting practice, principles and procedures
(2) Each council must arrange for an annual audit of its books and records of account and its financial statements by an auditor who must-
(3) Every council must-
(4) Every council must preserve each of its books of account, supporting vouchers, income and expenditure statements, balance sheets, and auditor's reports, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate. (5) The money of a bargaining council or of any fund established by a bargaining council that is surplus to its requirements or the expenses of the fund may be invested only in-
54. Duty to keep records and provide information to registrar (1) In addition to the records required by section 53(4), every council must keep minutes of its meetings, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate. (2) Every council must provide to the registrar-
(3) Every council must provide to the Commission-
55. Delegation of functions to committee of council (1) A council may delegate any of its functions to a committee on any conditions, but any decision of a committee may be amended or set aside by the council. (2) A committee contemplated by subsection (1) must consist of equal numbers of representatives of employees and employers. (3) The council, by delegating any function, is not divested of any of its powers nor is it relieved of any function or duty that it may have delegated. 56. Admission of parties to council 12 (1) Any registered trade union or registered employers' organisation may apply in writing to a council for admission as a party to that council. (2) The application must be accompanied by a certified copy of the applicant's registered constitution and certificate of registration and must include-
(3) A council, within 90 days of receiving an application for admission, must decide whether to grant or refuse an applicant admission, and must advise the applicant of its decision, failing which the council is deemed to have refused the applicant admission. (4) If the council refuses to admit an applicant it must within 30 days of the date of the refusal, advise the applicant in writing of its decision and the reasons for that decision. 12. See flow diagram No. 5 in Schedule 4. (5) The applicant may apply to the Labour Court for an order admitting it as a party to the council. (6) The Labour Court may admit the applicant as a party to the council, adapt the constitution of the council and make any other appropriate order. 57. Changing constitution or name of council (1) Any council may resolve to change or replace its constitution. (2) The council must send the registrar a copy of the resolution and a certificate signed by its secretary stating that the resolution complies with its constitution. (3) The registrar must-
(4) The changed or new constitution takes effect from the date of the registrar's certification. (5) Any council may resolve to change its name. (6) The council must send the registrar a copy of the resolution and the original of its current certificate of registration. (7) The registrar must-
(8) The new name takes effect from the date that the registrar enters it in the register of councils. 58. Variation of registered scope of council (1) If the registrar is satisfied that the sector and area within which a council is representative does not coincide with the registered scope of the council, the registrar, acting independently or in response to an application from the council or NEDLAC, may vary the registered scope of the council. (2) The provisions of section 29 apply, read with the changes required by the context, to a variation in terms of this section. 59. Winding-up of council (1) The Labour Court may order a council to be wound up if-
(2) If there are any persons not represented before the Labour Court whose interests may be affected by an order in terms of subsection (1), the Court must-
(3) If it makes an order in terms of subsection (1), the Labour Court may appoint a suitable person as liquidator, on appropriate conditions. (4) (a) The registrar of the Labour Court must determine the liquidator's fees. (b) The Labour Court, in chambers, may review the determination of the registrar of the Labour Court. (c) The liquidator's fees are a first charge against the assets of the council. (5) If, after all the liabilities of the council have been discharged, any assets remain that cannot be disposed of in accordance with the constitution of that council, the liquidator must realise those assets and pay the proceeds to the Commission for its own use. 60. Winding-up of council by reason of insolvency Any person who seeks to wind-up a council by reason of insolvency must comply with the Insolvency Act, 1936 (Act No. 24 of 1936), and, for the purposes of this section, any reference to the court in that Act must be interpreted as referring to the Labour Court. 61. Cancellation of registration of council (1) The registrar of the Labour Court must notify the registrar of labour relations if the Court has ordered a council to be wound up. (2) When the registrar receives a notice from the Labour Court in terms of subsection (1), the registrar must cancel the registration of the council by removing its name from the register of councils. (3) The registrar may notify a council and every party to the council that the registrar is considering cancelling the council's registration, if the registrar believes that-
(4) In a notice in terms of subsection (3), the registrar must state the reasons for the notice and inform the council and every party to the council that they have 60 days to show cause why the council's registration should not be cancelled. (5) After the expiry of the 60-day period, the registrar, unless cause has been shown why the council's registration should not be cancelled, must notify the council and every party to the council that the registration will be cancelled unless an appeal to the Labour Court is noted and the Court reverses the decision. (6) The cancellation takes effect-
(7) If either event contemplated in subsection (6) occurs, the registrar must cancel the council' s registration by removing the name of the council from the register of councils. (8) Any collective agreement concluded by parties to a council whose registration has been cancelled, whether or not the collective agreement has been extended to non-parties by the Minister in terms of section 32, lapses 60 days after the council's registration has been cancelled. (9) Despite subsection (8), the provisions of a collective agreement that regulates terms and conditions of employment remain in force for one year after the date that the council' s registration was cancelled, or until the expiry of the agreement, if earlier. (10) Any party to a dispute about the interpretation or application of a collective agreement that regulates terms and conditions of employment referred to in subsection (8) may refer the dispute in writing to the Commission. (11) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute. (12) The Commission must attempt to resolve the dispute through conciliation. (13) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration. 62. Disputes about demarcation between sectors and areas (1) Any registered trade union, employer, registered employers' organisation or council that has a direct or indirect interest in the application contemplated in this section may apply to the Commission in the prescribed form and manner for a determination as to-
(2) If two or more councils settle a dispute about a question contemplated in subsection (1)(a) or (b), the councils must inform the Minister of the provisions of their agreement and the Minister may publish a notice in the Government Gazette stating the particulars of the agreement. (3) In any proceedings in terms of this Act before the Labour Court, if a question contemplated in subsection (1)(a) or (b) is raised, the Labour Court must adjourn those proceedings and refer the question to the Commission for determination if the Court is satisfied that-
(4) When the Commission receives an application in terms of subsection (1) or a referral in terms of subsection (3), it must appoint a commissioner to hear the application or determine the question, and the provisions of section 138 apply, read with the changes required by the context. (5) In any proceedings in terms of this Act before a commissioner, if a question contemplated in subsection (1)(a) or (b) is raised, the commissioner must adjourn the proceedings and consult the director, if the commissioner is satisfied that-
(6) The director must either order the commissioner concerned to determine the question or appoint another commissioner to do so, and the provisions of section 138 apply, read with the changes required by the context. (7) If the Commission believes that the question is of substantial importance, the Commission must publish a notice in the Government Gazette stating the particulars of the application or referral and stating the period within which written representations may be made and the address to which they must be directed. (8) If a notice contemplated in subsection (7) has been published, the commissioner may not commence the arbitration until the period stated in the notice has expired. (9) Before making an award, the commissioner must consider any written representations that are made, and must consult NEDLAC. (10) The commissioner must send the award, together with brief reasons, to the Labour Court and to the Commission. (11) If the Commission believes that the nature of the award is substantially important, it may publish notice of the award in the Government Gazette. (12) The registrar must amend the certificate of registration of a council in so far as is necessary in light of the award. 63. Disputes about Parts A and C to F (1) Any party to a dispute about the interpretation or application of Parts A and C to F of this Chapter, may refer the dispute in writing to the Commission unless-
(2) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute. (3) The Commission must attempt to resolve the dispute through conciliation. (4) If the dispute remains unresolved, any party to the dispute may refer it to the Labour Court for adjudication. Establishment Of Bargaining Councils For Public Service 1. Definitions for this Schedule In this Schedule, unless the context otherwise indicates"Education Labour Relations Act" means the Education Labour Relations Act, 1993 (Act No. 146 of 1993); "Education Labour Relations Council" means the council established by section 6(1) of the Education Labour Relations Act; "National Negotiating Forum" means the National Negotiating Forum established for the South African Police Service by the South African Police Service Labour Relations Regulations, 1995; "Public Service Bargaining Council" means the council referred to in section 5(l) of the Public Service Labour Relations Act; "Public Service Labour Relations Act" means the Public Service Labour Relations Act, 1994 (promulgated by Proclamation No. 105 of 1994). 2. Establishment of Public Service Co-ordinating Bargaining Council
3. Establishment of bargaining councils in sectors
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