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EXTRACTS FROM THE LABOUR
RELATIONS ACT - Transitional
Arrangements
CONTENTS:
Schedule 7
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
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
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 agreement 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
22. Courts
Part F-Pension Matters
23. Continuation of existing pension rights
of staff members of Commission upon assuming employment
__________________________________________________________________________________
EXTRACT FROM THE LABOUR
RELATIONS ACT:
Schedule 7
Part A-Definitions For This Schedule
1. Definitions for this Schedule
In this
Schedule, unless the context otherwise indicates "Agricultural Labour
Act" means the Agricultural Labour Act, 1993 (Act No. 147 of 1993);
"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;
"Labour Relations Act" means the
Labour Relations Act, 1956 (Act No. 28 of 1956);
"labour relations laws" means the
Labour Relations Act, the Education Labour Relations Act, Chapter I of the
Agricultural Labour Act and the Public Service 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;
"pending" means pending
immediately before this Act comes into operation;
" public service" does not
include the education sector;
"Public Service Bargaining
Council" means the bargaining council referred to in section 5(1) 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);
"registrar" means the registrar
of labour relations designated in terms of section 108; and
"trade union" includes an
employee organisation.
Part B-Unfair Labour Practices
2. Residual unfair labour practices
(1) For the purposes of this item, an
unfair labour practice means any unfair act or omission that arises
between an employer and an employee, involving-
(a) the unfair discrimination, either
directly or indirectly, against an employee on any arbitrary ground,
including, but not limited to race, gender, sex, ethnic or social
origin, colour, sexual orientation, age, disability, religion,
conscience, belief, political opinion, culture, language, marital status
or family responsibility;
(b) the unfair conduct of the employer
relating to the promotion, demotion or training of an employee or
relating to the provision of benefits to an employee;
(c) the unfair suspension of an employee
or any other disciplinary action short of dismissal in respect of an
employee;
(d) the failure or refusal of an employer
to reinstate or re-employ a former employee in terms of any agreement.
(2) For the purposes of sub-item (1)(a)-
(a) "employee" includes an
applicant for employment;
(b) an employer is not prevented from
adopting or implementing employment policies and practices that are
designed to achieve the adequate protection and advancement of persons
or groups or categories of persons disadvantaged by unfair
discrimination, in order to enable their full and equal enjoyment of all
rights and freedoms; and
(c) any discrimination based on an
inherent requirement of the particular does not constitute unfair
discrimination.
3. Disputes about unfair labour
practices
(1) Any party may refer a dispute about
an alleged unfair labour practice 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-
(a) any party to the dispute, if the
dispute is about an act or omission referred to in item 2(1)(a), may
refer the dispute to the Labour Court for adjudication;
(b) any party to the dispute, if the
dispute is about an act or omission referred
55. See flow diagram No. 14 in Schedule 4.
to in item 2(1)(b), (c) or (d), may request that the dispute be resolved
through arbitration.
4. Powers of Labour Court and Commission
(1) The Labour Court has the power to
determine any dispute that has been referred to it in terms of item 3 on
terms it deems reasonable, including, but not limited to, the ordering of
reinstatement or compensation.
(2) The arbitrator has the power to
determine any dispute that has been referred to it in terms of item 3 on
reasonable terms.
Part C-Provisions Concerning Existing Trade
Unions, Employers' Organisations, Industrial Councils And Conciliation
Boards
5. Existing registered trade unions and
employers' organisations
(1) A trade union or employers'
organisation registered in terms of the labour relations laws immediately
before the commencement of this Act is deemed to be a registered trade
union or registered employers' organisation under this Act and continues
to be a body corporate.
(2) As soon as practicable after the
commencement of this Act, the registrar must enter-
(a) the name of the trade union in the
register of trade unions;
(b) the name of the employers'
organisation in the register of employers' organisations.
(3) A trade union or employers'
organisation whose name has been entered in the appropriate register must
be issued with a new certificate of registration.
(4) If any provision of the constitution of
the trade union or employers' organisation does not comply with the
requirements of section 95, the registrar may direct that trade union or
employers' organisation, in writing, to rectify its constitution and
submit it to the registrar within a period specified in the direction,
which period may not be shorter than three months.
(5) If a trade union or employers'
organisation falls to comply with a direction issued to it in terms of
sub-item (4), the registrar must notify the trade union or employers'
organisation that cancellation of its registration is being considered
because of the failure, and give the trade union or employers'
organisation an opportunity to show cause why its registration should not
be cancelled within 30 days of the notice.
(6) If, when the 30-day period expires, the
relevant trade union or employers' organisation has not shown cause why
its registration should not be cancelled, the registrar must cancel the
registration of that trade union or employers' organisation by removing
its name from the appropriate register or take other lesser steps that are
appropriate and not inconsistent with this Act.
(7) The registrar must notify the relevant
trade union or employers' organisation whether the registration of the
trade union or employers' organisation has been cancelled.
(8) Cancellation in terms of subitem (6)
takes effect-
(a) if the trade union or the employers'
organisation has failed, within the time contemplated in section 111
(3), to appeal to the Labour Court against the cancellation, when that
period expires; or
(b) if the trade union or the employers'
organisation has lodged an appeal, when the decision of the registrar
has been confirmed by the Labour Court.
6. Pending applications by trade unions or
employers' organisations for registration, variation of scope, alteration
of constitution or name
(1) Any pending application in terms of the
labour relations laws for the registration, variation of scope of
registration or alteration of the constitution or name of a trade union or
an employers' organisation must be dealt with by the registrar as if the
application had been made in terms of this Act.
(2) The registrar appointed in terms of the
Public Service Labour Relations Act and the secretary of the Education
Labour Relations Council appointed in terms of the Education Labour
Relations Act must forward any pending application referred to in sub-item
(1) to the registrar.
(3) In any pending appeal in terms of
section 16 of the Labour Relations Act or in terms of section I I of the
Education Labour Relations Act or in terms of section I I of the Public
Service Labour Relations Act, the Minister or the registrar of the
industrial court or the registrar of the Supreme Court, as the case may
be, must refer the matter back to the registrar who must deal with the
application as if it were an application made in terms of this Act.
(4) When dealing with any application
referred to in sub-item (1) or (2), the registrar-
(a) may condone any technical
non-compliance with the provisions of this Act; and
(b) may require the applicant to amend
its application within 60 days in order to comply with the provisions of
this Act.
7. Industrial councils
(1) An industrial council registered in
terms of the Labour Relations Act immediately before the commencement of
this Act is deemed to be a bargaining council under this Act and continues
to be a body corporate.
(2) As soon as practicable after the
commencement of this Act, the registrar must enter the name of the
bargaining council in the register of councils.
(3) A bargaining council whose name has
been entered in the register of councils must be issued with a certificate
of registration.
(4) If any provision of the constitution of
a bargaining council does not comply with the requirements of section 30,
the registrar may direct the bargaining council, in writing, to rectify
its constitution and submit it to the registrar within a period specified
in the direction, which period may not be shorter than three months.
(5) If a bargaining council fails to comply
with a direction issued to it in terms of sub-item (4), the registrar must
notify the bargaining council that cancellation of its registration is
being considered because of the failure, and give the bargaining council
an opportunity to show cause why its registration should not be cancelled
within 30 days of the notice.
(6) If, when the 30-day period expires, the
bargaining council has not shown cause why its registration should not be
cancelled, the registrar must cancel the registration of that bargaining
council by removing its name from the register of councils or take other
lesser steps that are appropriate and not inconsistent with this Act.
(7) The registrar must notify the
bargaining council whether the registration of the bargaining council has
been cancelled.
(8) Cancellation in terms of sub-item (6)
takes effect-
(a) if the bargaining council has failed,
within the time contemplated in section 111(3), to appeal to the Labour
Court against the cancellation, when that period expires; or
(b) if the bargaining council has lodged
an appeal, when the decision of the registrar has been confirmed by the
Labour Court.
8. Pending applications by industrial
councils for registration and variation of scope
(1) Any pending application for the
registration or the variation of the scope of registration of an
industrial council in terms of the Labour Relations Act must be dealt with
as if it were an application made in terms of this Act.
(2) In any pending appeal in terms of
section 16 of the Labour Relations Act against the refusal to register an
industrial council, the Minister or the registrar of the Supreme Court
must refer the matter to the registrar of labour relations who must
consider the application anew as if it were an application for
registration made in terms of this Act.
(3) When dealing with the application
referred to in sub-item (1) or (2), the registrar may-
(a) require the applicant to amend its
application within 60 days in order to comply with the provisions of
this Act; and
(b) condone technical non-compliance with
the provisions of this Act.
9. Pending applications by industrial
councils for alteration of constitution or name
The provisions in item 6 apply, read with
the changes required by the context, to any pending application for the
alteration of the constitution or the name of an industrial council in
terms of the Labour Relations Act.
10. Pending applications for admission of
parties to industrial councils
(1) Any pending application for admission
of a party to an industrial council in terms of section 21 A of the
Labour Relations Act must be dealt with by the industrial council as if
it were an application made in terms of this act (2) Any pending appeal
before the industrial court against a decision of an industrial I] in
terms of section 21 A of the Labour Relations Act must be with by
council in the industrial court as if the application had been made for
admission as a party to a bargaining council in terms of this Act.
(3) An appeal against a decision of an
industrial council as contemplated in section 21 A of the Labour
Relations Act may, despite the repeal of that Act, be instituted after
the commencement of this Act, and must be heard by the Labour Court and
dealt with as if the application for admission had been made in terms of
this Act.
11. Pending applications to wind up and
cancel registration of trade unions, employers' organisations and
industrial councils
Any pending application to wind up or to
cancel the registration of a trade union, employers' organisation or
industrial council registered in terms of any labour relations law must be
dealt with by the registrar as if the labour relations laws had not been
repealed.
12. Existing agreements and awards of
industrial councils and conciliation boards
(1) Any agreement promulgated in terms of
section 48, and any award made in terms of section 50, of the Labour
Relations Act and in force immediately before the commencement of this Act
remains in force for a period of 18 months after the commencement of this
Act or until the expiry of that agreement, whichever is the shorter
period, as if that Act had not been repealed.
(2) An agreement promulgated in terms of
section 12 of the Education Labour Relations Act and in force immediately
before the commencement of this Act remains in force for a period of 18
months after the commencement of this Act or until the expiry of that
agreement, whichever is the shorter period, as if the provisions of that
Act had not been repealed.
(3) Despite the provisions of sub-item (1),
an agreement referred to in section 24(l)(x) of the Labour Relations Act
that is in force immediately before the commencement of this Act will be
deemed to be a closed shop agreement concluded in compliance with section
26 of this Act except that-
(a) the requirements in section 26(3)(d)
and section 98(2)(b)(ii) become applicable at the commencement of the
next financial year of the trade union party to the agreement; and
(b) the commencement date of the closed
shop agreement shall be deemed to be the commencement date of this Act.
(4) Any pending request for the
promulgation of an agreement in terms of section 48 of the Labour
Relations Act must be dealt with as if the Labour Relations Act had not
been repealed.
(5) Any request made before the expiry of
six months after the commencement of this Act for the promulgation of an
agreement entered into before the commencement of this Act must be dealt
with as if the Labour Relations Act had not been repealed.
(6) Any pending application for an
exemption from an agreement promulgated in terms of section 48 of the
Labour Relations Act must be dealt with as if the Labour Relations Act had
not been repealed.
13. Existing agreements including
recognition agreements
(1) For the purposes of this section, an
agreement-
(a) includes a recognition agreement;
(b) excludes an agreement promulgated in
terms of section 48 of the Labour Relations Act or section 12 of the
Education Labour Relations Act;
(c) means an agreement about terms and
conditions of employment or any other matter of mutual interest entered
into between one or more registered trade unions, on the one hand, and
on the other hand-
(i) one or more employers;
(ii) one or more registered employers'
organisations; or
(iii) one or more employers and one or
more registered employers' organisations.
(2) Any agreement that was in force
immediately before the commencement of this Act is deemed to be a
collective agreement concluded in terms of this Act.
(3) Any registered trade union that is
party to an agreement referred to in sub-items (1) and (2) in terms of
which that trade union was recognised for the purposes of collective
bargaining is entitled to the organisational rights conferred by sections
I I to 16 of Chapter III and in respect of employees that it represents in
terms of the agreement, for so long as the trade union remains recognised
in terms of the agreement as the collective bargaining agent of those
employees.
(4) If the parties to an agreement referred
to in subsection (1) or (2) have not provided for a procedure to resolve
any dispute about the interpretation or application of the agreement as
contemplated in section 24(l), the parties to the agreement must attempt
to agree a procedure as soon as practicable after the commencement of this
Act.
(5) An existing non-statutory agency shop
or closed shop agreement is not binding unless the agreement complies with
the provisions of sections 25 or 26 of this Act respectively. This
provision becomes effective 180 days after the commencement of this Act.
Part D-Matters Concerning Public Service
14. Public Service Bargaining Council
(1) The Public Service Bargaining Council
will continue to exist, subject to item 20.
(2) The departmental and provincial
chambers of the Public Service Bargaining Council will continue to exist,
subject to item 20.
(3) Within 30 days after the commencement
of this Act, the chambers of the Public Service Bargaining Council must
furnish the registrar with copies of their constitutions signed by their
authorised representatives.
(4) The constitutions of the chambers of
the Public Service Bargaining Council, are deemed to be in compliance with
section 30. However, where any provision of the constitution of a chamber
does not comply with the requirements of section 30, the registrar may
direct the chamber to rectify its constitution and re-submit the rectified
constitution within the period specified in the direction, which period
may not be shorter than three months.
(5) If a chamber fails to comply with a
direction issued to it in terms of sub-item (5), the registrar must-
(a) determine the amendments to the
constitution in order to meet the requirements of section 30; and
(b) send a certified copy of the
constitution to the chamber.
(6) A chamber of the Public Service
Bargaining Council must deal with any pending application for admission of
a party to it in terms of section 10 of the Public Service Labour
Relations Act as if the application had been made in terms of this Act.
(7) Any pending appeal before the
industrial court or an arbitrator against a decision of the Public Service
Bargaining Council in terms of section 10 of the Public Service Labour
Relations Act must, despite the repeal of any of the labour relations
laws, be dealt with by the industrial court or arbitrator as if the
application had been made in terms of this Act.
(8) Despite the repeal of the Public
Service Labour Relations Act, an appeal in terms of section 10 of that Act
against a decision of a chamber of the Public Service Bargaining Council
may be instituted after the commencement of this Act and must be heard by
the Labour Court and dealt with as if the application had been made in
terms of this Act.
15. Collective agreements in the public
service
The following provisions, read with the
changes required by the context, of the Public Service Labour Relations
Act, despite the repeal of that Act, will have the effect and status of a
collective agreement binding on the State, the parties to the chambers of
the Public Service Bargaining Council and all employees in the public
service-
(a) section I for the purposes of this
item unless the context otherwise indicates;
(b) section 4(10);
(c) section 5(2), (3), (4)(a) and (5);
(d) section 7;
(e) section 8, except that the reference
to section 5(l) should be a reference to item 14(l);
(f) section 9(3);
(g) section 10(4) and (5);
(h) section 12;
(i) section 13, except that the reference
to agreements should be a reference to collective agreements including
the collective agreement contemplated in this item;
(j) sections 14, 15 and 16(2);
(k) section 17, except that the following
subsection must be substituted for subsection (4)(b)- "If the
application of a trade union for recognition is refused, the trade
union, within 90 days of the notice of the refusal, may refer the
dispute to arbitration."; and
(l) section 18, except that-
(i) the following subsection must be
substituted for sub- section (10)(a)- "An employee who or the
employee organisation which in terms of subsection (1) has declared a
dispute, requested that a conciliation board be established and
submitted the completed prescribed form, may refer the dispute to
arbitration or to the Labour Court in terms of the provisions of this
Act and, in respect of a dispute not contemplated by this Act, to any
other court if-
(i) a meeting of a conciliation board
is not convened as contemplated in subsection (3);
(ii) the head of department concerned
falls to request the appointment of a chairperson in terms of
subsection (5);
(iii) where applicable, the
Commission fails to appoint a chairperson of the conciliation board
in terms of subsection (5);
(iv) the parties involved in the
conciliation board have failed to agree to extend the period of
office of the conciliation board in terms of subsection (7) until a
settlement is reached;
(v) the conciliation board does not
succeed in settling the dispute within the period contemplated in
subsection (7); or
(vi) the parties to the dispute agree
that they will not be able to settle the dispute and submit written
proof thereof to the Commission or relevant court."; and
(ii) any reference to the Department of
Labour should be a reference to the Commission.
16. Education Labour Relations Council
(1) The Education Labour Relations Council
will continue to exist, subject to item 20.
(2) The registered scope of the Education
Labour Relations Council is the State and those employees in respect of
which the Educators' Employment Act, 1994 (Proclamation No. 138 of 1994),
applies.
(3) Within 30 days after the commencement
of this Act, the Education Labour Relations Council must furnish the
registrar with a copy of its constitution signed by its authorised
representatives, and with the other information or documentation.
(4) The constitution agreed on between the
parties to the Education Labour Relations Council is deemed to be in
compliance with this Act: However, where any provision of the constitution
does not comply with the requirements of section 30, the registrar may
direct the Council to rectify its constitution and re-submit the rectified
constitution within the period specified in the direction, which period
may not be shorter than three months.
(5) If the Education Labour Relations
Council fails to comply with a direction issued to It in terms of sub-item
(5), the registrar must-
(a) determine the amendments to the
constitution in order to meet the requirements of section 30; and
(b) send a certified copy of the
constitution to the Council.
(6) The Education Labour Relations Council
must deal with any pending application for admission to it in terms of the
Education Labour Relations Act as if the application had been made in
terms of this Act.
(7) Any pending appeal before the
industrial court or an arbitrator against a decision of the Education
Labour Relations Council must, despite the repeal of any of the labour
relations laws, be dealt with by the industrial court or arbitrator as if
the application had been made in terms of this Act.
(8) Despite the repeal of the Education
Labour Relations Act, any appeal against a decision of the Education
Labour Relations Council may be instituted after the commencement of this
Act and must be heard by the Labour Court and dealt with as if the
application had been made in terms of this Act.
17. Education sector collective agreements
The following provisions, read with the
changes required by the context, of the Education Labour Relations Act,
despite the repeal of that Act, will have the effect and status of a
collective agreement binding on the State, the parties to the Education
Labour Relations Council and all employees within registered scope-
(a) section 6(2) and (3);
(b) section 8(3), (4) and (5)(a);
(c) section 10(3) and (4);
(d) section 12(1) to (4), except that the
disputes referred to in subsections (2) and (4) may be referred to
arbitration only; and
(e) section 13 and section 14(2).
18. Negotiating Forums in South African
Police Service
(1) The National Negotiating Forum will
continue to exist subject to item 20.
(2) The registered scope of the National
Negotiating Forum is the State and those employees in respect of whom the
South African Police Service Rationalisation Proclamation, 1995 and the
Act contemplated in section 214 of the Constitution applies.
(3) Within fourteen days of the
commencement of this Act, or signing of its constitution by its authorised
representatives, whichever is the later, the National Negotiating Forum
must furnish the registrar with a copy of its constitution signed by its
authorised representatives, and with the other information or
documentation.
(4) The constitution agreed to by the
National Negotiating Forum is deemed to be in compliance with this Act.
However where any provision of the constitution does not comply with the
requirements of section 30, the registrar may direct the National
Negotiating Forum to rectify its constitution and re-submit the rectified
constitution within fourteen days.
(5) The National Commissioner of the South
African Police Service must deal with any pending application for
registration and recognition in terms of the South made' African Police
Service Labour Regulations as if the application had been in terms of this
Act
19. Collective agreement in South African
Police Service
The provisions of the South African Police
Services Employment Regulations, read with the changes required by the
context, despite the repeal of those regulations, will have the effect and
status of a collective agreement binding on the State, the parties to the
National Negotiating Forum and all the employees within its registered
scope.
20. Consequences for public service
bargaining institutions when Public Service Co-ordinating Bargaining
Council is established
When the Public Service Co-ordinating
Bargaining Council is established in terms of item 2 of Schedule I-
(a) the Public Service Bargaining Council
and its chamber at central level will cease to exist; and
(b) the following chambers of the former
Public Service Bargaining Council will continue to exist as juristic
persons, despite paragraph (a), namely-
(i) the chamber for each department,
which will be deemed to be a bargaining council that has been
established under section 37(3)(a) of this Act for that department;
(ii) the chamber for each provincial
administration, which will be deemed to be a bargaining council that
has been established under section 37(3)(a) for that provincial
administration; and
(c) the Education Labour Relations
Council will be deemed to be a bargaining council that has been
established in terms of section 37(3)(b) of this Act for the education
sector;
(d) the National Negotiating Forum will
be deemed to be a bargaining council that has been established in terms
of section 37(3)(b) of this Act for the South African Police Service.
Part E-Disputes And Courts
21. Disputes arising before commencement of
this Act
(1) Any dispute contemplated in the
labour relations laws that arose before the commencement of this Act
must be dealt with as if those laws had not been repealed.
(2) Despite subsection (1), a strike or
lock-out that commences after this Act comes into operation will be
dealt with in terms of this Act. This rule applies even if the dispute
giving rise to the strike or lock-out arose before this Act comes into
operation.
(3) For the purposes of a strike or
lock-out referred to in sub-item (2), compliance with section 65(l)(d)
of the Labour Relations Act, section 19(l)(b) of the Public Service
Labour Relations Act and section 15(l)(b) of the Education Labour
Relations Act will be deemed to be compliance with section 64(l)(a) of
this Act.
22. Courts
(1) In any pending dispute in respect of
which the industrial court or the agricultural labour court had
jurisdiction and in respect of which proceedings had not been instituted
before the commencement of this Act, proceedings must be instituted in
the industrial court or agricultural labour court (as the case may be)
and dealt with as if the labour relations laws had not been repealed.
The industrial court or the agricultural labour court may perform or
exercise any of the functions and powers that it had in terms of the
labour relations laws when it determines the dispute.
(2) Any dispute in respect of which
proceedings were pending in the industrial court or the agricultural
labour court must be proceeded with as if the labour relations laws had
not been repealed.
(3) Any pending appeal before the Labour
Appeal Court established by section 17A of the Labour Relations Act must
be dealt with by the Labour Appeal Court as if the labour relations laws
had not been repealed.
(4) Any pending appeal from a decision of
that Labour Appeal Court or any appeal to the Appellate Division from a
decision of the Labour Appeal Court in terms of section 17C and section
64 of the Labour Relations Act must be dealt with as if the labour
relations laws had not been repealed.
(5) Any appeal from a decision of the
industrial court or the agricultural labour court in terms of sub-item
(1) or (2), must be made to the Labour Court established by section 151
of this Act, and that Labour Court must deal with the appeal as if the
labour relations laws had not been repealed.
Part F-Pension Matters
23. Continuation of existing pension rights
of staff members of Commission upon assuming employment
(1) Any staff member of the Commission who,
immediately before assuming employment with the Commission, is a member of
the Government Service Pension Fund, the Temporary Employees Pension Fund
or any other pension fund or scheme administered by the Department of
Finance (hereinafter referred to as an officer or employee), may upon
assuming that employment-
(a) choose to remain a member of that
pension fund, and from the date of exercising the choice, the officer or
employee, despite the provisions of any other law, will be deemed to be
a dormant member of the relevant pension fund within the contemplation
of section 15(l)(a) of the General Pensions Act, 1979 (Act No. 29 of
1979);
(b) request to become a member of the
Associated Institutions Pension Fund established under the Associated
Institutions Pension Fund Act, 1963 (Act No. 41 of 1963), as if the
Commission had been declared an associated institution under section 4
of that Act; or
(c) request to become a member of any
other pension fund registered under the Pension Funds Act, 1956 (Act No.
24 of 1956).
(2) In the case where an officer or
employee becomes a member of a fund after making a request in terms of
sub-item (1)(b) or (c)-
(a) the pension fund of which the officer
or employee was a member ("the former fund") must transfer to
the pension fund of which the officer or employee becomes a member of
("the new fund") an amount equal to the funding level of the
former fund multiplied by its actuarial liability in respect of that
officer or employee at the date the officer or employee assumes office
with the Commission, increased by the amount of interest calculated on
that amount at the prime rate of interest from the date when employment
with the Commission commenced up to the date of transfer of the amount;
(b) membership of the officer or employee
of the former fund will lapse from the date when employment with the
Commission commenced, and from that date the officer or employee will
cease to have any further claim against the former fund except as
provided in paragraph (a); and
(c) the former fund must transfer any
claim it may have against the officer or employee, to the new fund.
(3) In the case where an officer or
employee becomes a member of a new fund after a request in terms of
sub-item (1)(c) the State must pay the new fund an amount equal to the
difference between the actuarial liability of the former fund in respect
of the officer or employee as on the date of the commencement of
employment with the Commission, and the amount transferred in terms of
sub-item (2)(c) to the new fund, increased by the amount of interest
thereon calculated at the prime rate from the date of commencement of
employment up to the date of the transfer of the amount.
(4) Sub-items (2) and (3) will apply, read
with the changes required by the context, in respect of any officer or
employee who, by reason of having made a choice in terms of sub-item
(1)(a), has become a dormant member and thereafter requests that the
pension benefits that had accrued, be transferred in terms of section
15A(1) of the General Pensions Act, 1979, to another pension fund referred
to in that Act or a pension fund registered in terms of the Pension Funds
Act, 1956.
(5) If, after an officer or employee has
become a member of any other pension fund, by reason of having made a
choice in terms of sub-item (1)(c), a lump sum benefit has become payable
by that pension fund by reason of the death, or the withdrawal or
resignation from the pension fund, or retirement, of the officer or
employee, or the winding-up of the pension fund, then, for the purposes of
paragraph (e) of the definition of "gross income" in section I
of the Income Tax Act, 1962 (Act No. 58 of 1962), the pension fund will be
deemed, in relation to such officer or employee, to be a fund referred to
in paragraph (a) of the definition of "pension fund" in section
I of that Act.
(6) For the purposes of this item-
" actuarial liability" of a
pension fund in respect of a particular member or a group of members of
the fund, means the actuarial liability that is determined by an actuary
who the Minister has nominated for that purpose;
"funding level", in relation to a
pension fund, means the market value of the assets of the fund stated as a
percentage of the total actuarial liability of the fund, after those
assets and liabilities have been reduced by the amount of the liabilities
of the fund in respect of all its pensioners, as determined at the time of
the most recent actuarial valuation of the fund or any review thereof
carried out under direction of the responsible Minister; and
" prime rate of interest" means
the average prime rate of interest of the three largest banks in the
Republic.
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Labour Law
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