CHAPTER SEVEN DISPUTE RESOLUTION

(ss 112-126)

PART A Commission for Conciliation, Mediation and Arbitration

112.   Establishment of Commission for Conciliation, Mediation and Arbitration

The Commission for Conciliation, Mediation and Arbitration is hereby established as a juristic person.

(Date of commencement 1 January, 1996.)

113.   Independence of Commission

The Commission is independent of the State, any political party, trade union employer, employers' organisation, federation of trade unions or federation of employers' organisations.

114.   Area of jurisdiction and offices of Commission

1. The Commission has jurisdiction in all the provinces of the Republic.


2. The Minister, after consulting the governing body, must determine the location for the Commission's head office.


3. The Commission must maintain an office in each province of the Republic and as many local offices as it considers necessary.

115.   Functions of Commission

1. The Commission must-
   1. attempt to resolve, through conciliation, any dispute referred to it in terms of this Act;
   2. if a dispute that has been referred to it remains unresolved after conciliation, arbitrate the dispute if-
      1. this Act requires arbitration and any party to the dispute has requested that the dispute be resolved through arbitration; or
      2. all the parties to a dispute in respect of which the Labour Court has jurisdiction consent to arbitration under the auspices of the Commission;
      
      
   3. assist in the establishment of work-place forums in the manner contemplated in Chapter V;
   4. compile and publish information and statistics about its activities; and
   5. at least every second year, review any rules made in terms of this section.
   
   
2. The Commission may-

a.	if asked, advise a party to a dispute about the procedure to follow in terms of this Act;* *See section 148
b.	if asked, assist a party to a dispute to obtain legal advice, assistance or representation;* *See section 149
bA.	if requested, provide assistance of an administrative nature to an employee earning less than the threshold prescribed by the Minister under section 6(3) of the Basic Conditions of Employment Act to serve any notice or document in respect of conciliation or arbitration proceedings in terms of this Act, provided that the employee remains responsible in law for any such service;
c.	offer to resolve a dispute that has not been referred to the Commission through conciliation;* *See section 150
cA.	make rules-

1. to regulate, subject to Schedule 3, the proceedings at its meetings and at the meetings of any committee of the Commission;
2. . . . . . .
3. regulating the practice and procedure-



(aa)   for any process to resolve a dispute through conciliation;
(bb)   at arbitration proceedings; and


4. determining the amount of any fee that the Commission may charge under section 147, and regulating the payment of such a fee in detail;

[Para. (cA) inserted by s. 6 (a) of Act No. 127 of 1998.]

d.	. . . . . .* *................ [Para. (d) deleted by s. 31 (a) of Act No. 42 of 1996.]
e.	. . . . . .* *................ [Para. (e) deleted by s. 31 (a) of Act No. 42 of 1996.]
f.	conduct, oversee or scrutinise any election or ballot of a registered trade union or registered employers' organisation if asked to do so by that trade union or employers' organisation;
g.	publish guidelines in relation to any matter dealt with in this Act;
h.	conduct and publish research into matters relevant to its functions.
i.	. . . . . . [Para. (i) deleted by s. 31 (a) of Act No. 42 of 1996.]

2A.   The Commission may make rules regulating-

a.	the practice and procedure in connection with the resolution of a dispute through conciliation or arbitration;
b.	the process by which conciliation is initiated, and the form, content and use of that process;
c.	the process by which arbitration or arbitration proceedings are initiated, and the form, content and use of that process;
d.	the joinder of any person having an interest in the dispute in any conciliation and arbitration proceedings;
e.	the intervention of any person as an applicant or respondent in conciliation or arbitration proceedings;
f.	the amendment of any citation and the substitution of any party for another in conciliation or arbitration proceedings;
g.	the hours during which offices of the Commission will be open to receive any process;
h.	any period that is not to be counted for the purpose of calculating time or periods for delivering any process or notice relating to any proceedings;
i.	the forms to be used by parties and the Commission;
j.	the basis on which a commissioner may make any order as to costs in any arbitration;
k.	the right of any party to be represented by any person or category of persons in any conciliation or arbitration proceedings; including the regulation or limitation of the right to be represented in those proceedings;
kA.	the consequences for any party to conciliation or arbitration proceedings for not attending those proceedings;
l.	the circumstances in which the Commission may charge a fee in relation to any conciliation or arbitration proceedings or for any services the Commission provides; and
m.	all other matters incidental to performing the functions of the Commission.

[Sub-s. (2A) inserted by s. 22 (a) of Act No. 12 of 2002.]

3. The Commission may provide employees, employers, registered trade unions, registered employers' organisations, federations of trade unions, federations of employers' organisations or councils with advice or training relating to the primary objects of this Act or any other employment law, including but not limited to-
   1. establishing collective bargaining structures;
   2. designing, establishing and electing work-place forums and creating deadlock-breaking mechanisms;
   3. the functioning of work-place forums;
   4. preventing and resolving disputes and employees' grievances;
   5. disciplinary procedures;
   6. procedures in relation to dismissals;
   7. the process of restructuring the work-place;
   8. affirmative action and equal opportunity programmes; and
   9. the prevention of sexual harassment in the work-place.
   
   
[Para. (i) substituted by s. 31 (b) of Act No. 42 of 1996.]


4. The Commission must perform any other duties imposed, and may exercise any other powers conferred, on it by or in terms of this Act and is competent to perform any other function entrusted to it by any other law.


5. The governing body's rules of procedure, the terms of appointment of its members and other administrative matters are dealt with in Schedule 3.


6.   
   1. A rule made under subsection (2) (cA) or (2A) must be published in the Government Gazette. The Commission will be responsible to ensure that the publication occurs.
   2. A rule so made will not have any legal force or effect unless it has been so published.
   3. A rule so made takes effect from the date of publication unless a later date is stipulated.
   
   
[Sub-s. (6) added by s. 6 (b) of Act No. 127 of 1998 and substituted by s. 22 (b) of Act No. 12 of 2002.]

116.   Governing body of Commission

1. The Commission will be governed by the governing body, whose acts are acts of the Commission.*

*See item 4 of Schedule 3 for the governing body's rules of procedure.


2. The governing body consists of-
   1. a chairperson and nine other members, each nominated by NEDLAC and appointed* by the Minister to hold office for a period of three years; and
   2. the director of the Commission, who-
      
      *See items 1 to 3 of Schedule 3 for the terms of appointment of members of the governing body.
      
      
      1. is a member of the governing body only by virtue of having been appointed director; and*
      2. may not vote at meetings of the governing body.
      
      
3. NEDLAC must nominate-
   1. one independent person for the office of chairperson;
   2. three persons proposed by those voting members of NEDLAC who represent organised labour; and
   3. three persons proposed by those voting members of NEDLAC who represent organised business;
   4. three persons proposed by those voting members of NEDLAC who represent the State.
   
   
4. The governing body may appoint any of its members to act as chairperson whenever -
   1. the chairperson is absent from the Republic or from duty, or for any reason is temporarily unable to perform the functions of the chairperson; or
   2. the office of the chairperson is vacant.
   
   
5. An acting chairperson is competent to exercise and perform any of the powers of the chairperson.

(Date of commencement of s. 116: 1 January, 1996.)

117.   Commissioners of Commission

1. The governing body must appoint as commissioners as many competent persons as it considers necessary to perform the functions of commissioners by or in terms of this Act or any other law.


2. The governing body-
   1. may appoint each commissioner-
      1. on either a full-time or a part-time basis; and
      2. to be either a commissioner or a senior commissioner;
      
      
   2. must appoint each commissioner for a fixed term determined by the governing body at the time of appointment;
   3. may appoint a commissioner, who is not a senior commissioner, for a probationary period; and
   4. when making appointments, must have due regard to the need to constitute a Commission that is independent and competent and representative in respect of race and gender.
   
   
3. Any reference in this Act to a commissioner must be interpreted also to mean a senior commissioner, unless otherwise indicated.


4. The governing body must determine the commissioners' remuneration, allowances and any other terms and conditions of appointment not contained in this section.


5. A commissioner may resign by giving written notice to the governing body.


6. The governing body must prepare a code of conduct for the commissioners and ensure that they comply with the code of conduct in performing their functions.


7. The governing body may remove a commissioner from office for-
   1. serious misconduct;
   2. incapacity; or
   3. a material violation of the Commissioner's code of conduct.
   
   
8. Each commissioner is responsible to the director for the performance of the commissioner's functions.

(Date of commencement of s. 117: 1 January, 1996.)

118.   Director of Commission

1. The governing body must appoint, as director of the Commission, a person who-
   1. is skilled and experienced in labour relations and dispute resolution; and
   2. has not been convicted of any offence involving dishonesty.
   
   
2. The director must-
   1. perform the functions that are-
      1. conferred on the director by or in terms of this Act or by any other law;
      2. delegated to the director by the governing body;
      
      
   2. manage and direct the activities of the Commission; and
   3. supervise the Commission's staff.
   
   
3. The governing body must determine the director's remuneration, allowances and any other terms and conditions of appointment not contained in Schedule 3.


4. A person appointed director automatically holds the office of a senior commissioner.


5. Despite subsection (4), the provisions of section 117, with the exception of section 117 (6), do not apply to the director.


6. The director, in consultation with the governing body, may delegate any of the functions of that office, except the functions mentioned in sections 120 and 138 (8), to a commissioner.

[Sub-s. (6) added by s. 7 of Act No. 127 of 1998.]
(Date of commencement of s. 118: 1 January, 1996.)

119.   Acting director of Commission

1. The chairperson of the governing body may appoint any suitable person to act as director whenever-
   1. the director is absent from the Republic or from duty, or for any reason is temporarily unable to perform the functions of director; or
   2. the office of director is vacant.
   
   
2. Only a senior commissioner may be appointed as acting director.


3. An acting director is competent to exercise and perform any of the powers and functions of the director.

(Date of commencement of s. 119: 1 January, 1996.)

120.   Staff of Commission

1. The director may appoint staff after consulting the governing body.


2. The governing body must determine the remuneration and allowances and any other terms and conditions of appointment of staff members.

(Date of commencement of s. 120: 1 January, 1996.)

121.   Establishment of committees of Commission

1. The governing body may establish committees to assist the Commission.


2. A committee may consist of any combination of the following persons-
   1. a member of the governing body;
   2. the director;
   3. a commissioner;
   4. a staff member of the Commission; and
   5. any other person.
   
   
3. The governing body must determine the remuneration and allowances and any other terms and conditions of appointment of committee members referred to in subsection (2) (e).


4. The governing body may at any time vary or set aside a decision of a committee.


5. The governing body may dissolve any committee.

(Date of commencement of s. 121: 1 January, 1996.)

122.   Finances of Commission

1. The Commission will be financed and provided with working capital from-
   1. the moneys that the Minister, with the agreement of the Minister of Finance, must allocate to the Commission from public funds at the commencement of this Act;
   2. the moneys that Parliament may appropriate to the Commission from time to time;
   3. fees payable to the Commission in terms of this Act;
   4. grants, donations and bequests made to it; and
   5. income earned on the surplus moneys deposited or invested.
   
   
2. The financial year of the Commission begins on 1 April in each year and ends on 31 March of the following year, except the first financial year which begins on the day this Act commences and ends on the first following 31 March.


3. In each financial year, at a time determined by the Minister, the Commission must submit to the Minister a statement of the Commission's estimated income and expenditure, and requested appropriation from Parliament, for the following financial year.

(Date of commencement of s. 122: 13 September, 1996.)

123.   Circumstances in which Commission may charge fees

1. The Commission may charge a fee only for-
   1. resolving disputes which are referred to it, in circumstances in which this Act allows the Commission, or a commissioner, to charge a fee;
   2. conducting, overseeing or scrutinising any election or ballot at the request of a registered trade union or employers' organisation; and
   3. providing advice or training in terms of section 115 (3).
   
   
2. The Commission may not charge a fee unless-
   1. the governing body has established a tariff of fees; and
   2. the fee that is charged is in accordance with that tariff.
   
   
3. The Commission must publish the tariff in the Government Gazette.

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

1. The governing body may-
   1. contract with any person to do work for the Commission or contract with an accredited agency to perform, whether for reward or otherwise, any function of the Commission on its behalf; and
   
   [Para. (a) substituted by s. 32 of Act No. 42 of 1996.]
   
   
   2. perform any function of the Commission in association with any person.
   
   
2. Every person with whom the Commission contracts or associates is bound by the requirement of independence that binds the Commission.

(Date of commencement of s. 124: 1 January, 1996.)

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

1. The governing body may delegate in writing any of its functions, other than the functions listed below, to any member of the governing body, the director, a commissioner, or any committee established by the Commission. The functions that the governing body may not delegate are-
   1. appointing the director;
   2. appointing commissioners, or removing a commissioner from office;
   3. depositing or investing surplus money;
   4. accrediting councils or private agencies, or amending, withdrawing or renewing their accreditation; or
   5. sub-sidising accredited councils or accredited agencies.
   
   
2. The governing body may attach conditions to a delegation and may amend or revoke a delegation at any time.


3. A function delegated to the director may be performed by any commissioner or staff member of the Commission authorised by the director, unless the terms of that delegation prevent the director from doing so.


4. The governing body may vary or set aside any decision made by a person acting in terms of any delegation made in terms of subsection (1).


5. The governing body, 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. This rule also applies if the director sub-delegates the performance of a function in terms of subsection (3).

(Date of commencement of s. 125: 1 January, 1996.)

126.   Limitation of liability and limitation on disclosure of information

1. In this section, "the Commission" means-
   1. the governing body;
   2. a member of the governing body;
   3. the director;
   4. a commissioner;
   5. a staff member of the Commission;
   6. a member of any committee established by the governing body; and
   7. any person with whom the governing body has contracted to do work for, or in association with whom it performs a function of, the Commission.
   
   
2. The Commission is not liable for any loss suffered by any person as a result of any act performed or omitted in good faith in the course of exercising the functions of the Commission.


3. The Commission may not disclose to any person or in any court any information, knowledge or document that it acquired on a confidential basis or without prejudice in the course of performing its functions except on the order of a court.