SCHEDULE 7 OF LABOUR RELATIONS ACT
TRANSITIONAL ARRANGEMENTS

[Schedule 7 amended by s. 56 of Act No. 42 of 1996, by Proclamation No. R.1734 of 1 November 1996, by Government Notice No. R.2025 of 6 December 1996, by Government Notice No. R.440 of 27 March 1997, by Government Notice No. R.654 of 9 May 1997, by s. 64 of Act No. 55 of 1998, by s. 28 of Act No. 127 of 1998 and by s. 55 (a) and (b) of Act No. 12 of 2002.]

 

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 bargaining council established in terms of 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 Educational Labour Relations Act, Chapter 4 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

   . . . . . .

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

  1. A trade union or employers' organisation registered or deemed to be registered in terms of the labour relations laws immediately before the commencement of this Act, will be 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-
    1. the name of the trade union in the register of trade unions;
    2. 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 fails to comply with a direction issued to it in terms of subitem (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-
    1. 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
    2. 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 subitem (1) to the registrar.

  3. In any pending appeal in terms of section 16 of the Labour Relations Act or in terms of section 11 of the Education Labour Relations Act or in terms of section 11 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 subitem (1) or (2), the registrar-
    1. may condone any technical non-compliance with the provisions of this Act; and
    2. 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 or deemed to be registered in terms of the Labour Relations Act immediately before the commencement of this Act, will be 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 provisions 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 subitem (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 subitem (6) takes effect-
    1. 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
    2. 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 or vary the scope of an industrial council, the Minister or the registrar of the Supreme Court, as the case may be, 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 subitem (1) or (2), the registrar may-
    1. require the applicant to amend its application within 60 days in order to comply with the provision of this Act; and
    2. condone technical non-compliance with the provisions of this Act.

8A.   Pending enquiries by industrial registrar

Any pending enquiry conducted by the industrial registrar under section 12 (3) of the Labour Relations Act, must, after the commencement of this Act, be continued and dealt with further by the same person in terms of the Labour Relations Act as if it had not been repealed.

9.   Pending applications by industrial councils for alterations 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 application for admission of parties to industrial councils

  1. Any pending application for admission of a party to an industrial council in terms of section 21A 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 council in terms of section 21A of the Labour Relations Act must be dealt with by 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 21A 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.   
    1. Any agreement promulgated in terms of section 48, any award binding in terms of sections 49 and 50, and any order made in terms of section 51A, of the Labour Relations Act and in force immediately before the commencement of this Act, remains in force and enforceable, subject to paragraphs (b) and (c) of this subitem, and to subitem (5B), for a period of 18 months after the commencement of this Act or until the expiry of that agreement, award or order, whichever is the shorter period, in all respects, as if the Labour Relations Act had not been repealed.
    2. On the request of any council deemed by item 7 (1) to be a bargaining council, an agreement referred to in paragraph (a) that had been concluded in that council-
      1. if it expires before the end of the 18-month period referred to in paragraph (a), may be extended or declared effective in accordance with the provisions of subsection (4) (a) of section 48 of the Labour Relations Act, for a period ending before or on the expiry of that 18-month period, which provisions, as well as any other provisions of the Labour Relations Act relating to industrial council agreements extended or declared effective in terms of that subsection, will apply in all respects, read with the changes required by the context, in relation to any agreement extended or declared effective on the authority of this subparagraph as if those various provisions had not been repealed. However, the Minister may not on the authority of this subparagraph declare an agreement to be effective if it expires after 31 March 1997;
      2. may be cancelled, in whole or in part, in accordance with the provisions of subsection (5) of section 48 of the Labour Relations Act, which provisions, as well as any other provisions of the Labour Relations Act relating to industrial council agreements wholly or partly cancelled in terms of that subsection, will apply in all respects, read with the changes required by the context, in relation to any agreement wholly or partly cancelled on the authority of this subparagraph as if those various provisions had not been repealed.

    3. An agreement referred to in paragraph (a) that had been concluded by parties to a conciliation board-
      1. if it expires before the end of the 18-month period referred to in paragraph (a), may, at the request of the parties that were represented on that conciliation board at the time of the conclusion of that agreement, be extended in accordance with, and in the manner provided for in, paragraph (b) (i) which will apply, read with the changes required by the context, in relation to the extension of agreements of that nature;
      2. may, at the request of those parties, be cancelled, in whole or in part, in accordance with paragraph (b) (ii) which will apply, read with the changes required by the context, in relation to the cancellation of agreements of that nature.

    (1A)  

    1. An agreement referred to in subitem (1) that had been concluded in a council deemed by item 7 (1) to be a bargaining council, may be amended or amplified by a further agreement concluded in that bargaining council and promulgated in accordance with the provisions of subsections (1) and (2) of section 48 of the Labour Relations Act, which provisions will apply in all respects, read with the changes required by the context, for the purposes of this paragraph as if they had not been repealed.
    2. Sub-items (1) (b), (3) and (8) (a) will apply to any further agreement concluded and promulgated on the authority of paragraph (a) of this subitem, in all respects as if it were an agreement referred to in subitem (1) (a).

  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 subitem (1), an agreement referred to in section 24 (1) (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-
    1. 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
    2. 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. (5A)  Any exemption from an agreement or award, or from an order, contemplated in subitem (1), that was in force immediately before the commencement of this Act, will remain in force for a period of 18 months after the commencement of this Act or until the period for which the exemption had been granted, has expired, whichever is the shorter period, as if the Labour Relations Act had not been repealed.

    (5B)  Any one or more of or all the provisions of an order referred to in subitem (1) (a), may be cancelled, suspended or amended by the Minister in accordance with the provisions of section 51A (4) (a) of the Labour Relations Act, which provisions will apply for the purposes of this subitem as if they had not been repealed.

  6. Any pending application for an exemption from all or any of the provisions of any agreement or award remaining in force in terms of subitem (1), or for an exemption from any provision of an order remaining in force in terms of that subitem, must-
    1. in the case of that agreement or award, be dealt with in terms of the provisions of section 51 and, whenever applicable, any other relevant provisions, of the Labour Relations Act, in all respects, read with the changes required by the context, as if the provisions in question had not been repealed;
    2. in the case of that order, be dealt with in terms of the provisions of section 51A and, whenever applicable, any other relevant provisions, of the Labour Relations Act as if the provisions in question had not been repealed.

  7. An exclusion granted in terms of section 51 (12) of the Labour Relations Act will remain in force until it is withdrawn by the Minister.

  8. After the commencement of this Act and despite the repeal of the Labour Relations Act-
    1. any person or class of persons bound by an agreement or award remaining in force in terms of subitem (1), may apply in accordance with the provisions of section 51 of the Labour Relations Act for an exemption from all or any of the provisions of that agreement or award (as the case may be). Any application so made, must be dealt with in terms of the provisions of section 51 and, whenever applicable, any other relevant provisions, of the Labour Relations Act, in all respects as if the provisions in question had not been repealed;
    2. any person bound by an order remaining in force in terms of subitem (1), may apply in accordance with the provisions of section 51A of the Labour Relations Act for exemption from any provision of that order. Any application so made, must be dealt with in terms of the provisions of section 51A and, whenever applicable, any other relevant provisions, of the Labour Relations Act, in all respects as if the provisions in question had not been repealed.

12A.   Designated agents

  1. Any person appointed under section 62 of the Labour Relations Act as a designated agent of an industrial council deemed by item 7 (1) to be a bargaining council, who holds that office immediately before the commencement of this Act, will be deemed to be a designated agent appointed for that bargaining council under section 33 of this Act.

  2. The certificate of appointment that had been issued in terms of section 62 (2) of the Labour Relations Act to that designated agent, will be deemed to have been issued in terms of section 33 (2) of this Act.

13.   Existing agreements including recognition agreements.

  1. For the purposes of this section, an agreement-
    1. includes a recognition agreement;
    2. excludes an agreement promulgated in terms of section 48 of the Labour Relations Act;
    3. 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-
      1. one or more employers;
      2. one or more registered employers' organisations; or
      3. 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 subitem (1) and (2) in terms of which that trade union was recognised or the purposes of collective bargaining is entitled to the organisational rights conferred by sections 11 to 16 of Chapter III as may be regulated by that agreement 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 (1), 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 this item. Sections 25 and 26 of this Act become effective 180 days after the commencement of this item.

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 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 subitem (5), the registrar must-
    1. determine the amendments to the constitution in order to meet the requirements of section 30; and
    2. 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-

  1. section 1 for the purposes of this item unless the context otherwise indicates;
  2. section 4 (10);
  3. section 5 (2), (3), (4) (a) and (5);
  4. section 7;
  5. section 8, except that the reference to section 5 (1) should be a reference to item 14 (1);
  6. section 9 (3);
  7. section 10 (4) and (5);
  8. section 12;
  9. section 13, except that the reference to agreements should be a reference to collective agreements including the collective agreement contemplated in this item;
  10. sections 14, 15 and 16 (2);
  11. section 17, except that the following subsection must be substituted for subsection (4) (b)-

    12. "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

  12. section 18, except that-
    1. the following subsection must be substituted for subsection (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-

      1. a meeting of a conciliation board is not convened as contemplated in subsection (3);
      2. the head of department concerned fails to request the appointment of a chairperson in terms of subsection (5);
      3. where applicable, the Commission fails to appoint a chairperson of the conciliation board in terms of subsection (5);
      4. 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;
      5. the conciliation board does not succeed in settling the dispute within the period contemplated in subsection (7); or
      6. 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

    2. 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 in 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 subitem (5), the registrar must-
    1. determine the amendments to the constitution in order to meet the requirements of section 30; and
    2. 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-

  1. section 6 (2) and (3);
  2. section 8 (3), (4) and (5) (a);
  3. section 10 (3) and (4);
  4. section 12 (1) to (4), except that the disputes referred to in subsections (2) and (4) may be referred to arbitration only; and
  5. 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 register 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 African Police Service Labour Regulations as if the application had been made in terms of this Act.

19.   Collective agreements in South African Police Service

The provisions of the South African Police Service Labour Relations 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 1-

  1. the Public Service Bargaining Council and its chamber at central level will cease to exist; and
  2. the following chambers of the former Public Service Bargaining Council will continue to exist as juristic persons, despite paragraph (a), namely-
    1. 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;
    2. the chamber of 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

  3. 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;
  4. 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 subitem (2), compliance with section 65 (1) (d) of the Labour Relations Act, section 19 (1) (b) of the Public Service Labour Relations Act and section 15 (1) (b) of the Education Labour Relations Act will be deemed to be compliance with section 64 (1) (a) of this Act.

21A.   Dispute resolution by councils before their accreditation

  1. Despite the provisions of section 52, a council may attempt to resolve through conciliation-
    1. any dispute that may be referred to it in terms of this Act before 1 December 1996; and
    2. if the council has applied for accreditation in terms of section 127 of this Act before 1 December 1996, also any dispute so referred to it after 1 December 1996 but before the governing body of the Commission has made a decision on that application in terms of section 127 (5) of this Act.

  2. For the purposes of subitem (1), any person appointed by a council to perform on its behalf the dispute resolution function referred to in that subitem, will be competent to exercise any of the powers conferred on a commissioner by section 142 of this Act, except the powers contemplated in subsection (1) (c) and (d) of that section. In applying that section for the purposes of this subitem, that section must be read with the changes required by the context, and any reference in that section to the director must be read as a reference to the secretary of the council.

  3. A council must refer to the Commission, for arbitration, any dispute that-
    1. was referred to the council in terms of this Act on the authority of subitem (1); and
    2. remains unresolved after the council has attempted to resolve it through conciliation; and
    3. is by this Act required to be resolved through arbitration.

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. (2A)  In relation to any proceedings which, in terms of this Schedule, are brought or continued before the industrial court, the rules which, immediately before the commencement of this Act, were in force under the provisions of paragraph (c) or (d) of section 17 (22) of the Labour Relations Act, will apply as if those provisions had not been repealed, subject to subitem (2B).

    (2B)  The Minister, after consultation with the president of the industrial court, may make rules in accordance with the provisions of paragraph (c) of section 17 (22) of the Labour Relations Act, and, in accordance with the provisions of paragraph (d) of that section, may repeal or alter any rule so made as well as any of the rules contemplated in subitem (2A), as if those provisions had not been repealed and the Minister were the Board contemplated in those provisions.

  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 subitem (1) or (2), must be made to the Labour Appeal Court established by section 167 of this Act, and that Labour Appeal Court must deal with the appeal as if the labour relations laws had not been repealed.

  6. Despite the provisions of any other law but subject to the Constitution, no appeal will lie against any judgment or order given or made by the Labour Appeal Court established by this Act in determining any appeal brought in terms of subitem (5).

22A.   Minister may authorise Commission to perform industrial court's functions

  1. The Minister, after consulting the Commission, may authorise the Commission, by notice in the Government Gazette, to perform the industrial court's functions in terms of item 22 (1)-
    1. in respect of the Republic as a whole or any province specified in the notice; and
    2. with effect from a date so specified.

  2. The authorisation of the Commission in terms of subitem (1)-
    1. does not affect the competence of the industrial court in terms of item 22 (1) to decide and finalise all pending matters that are partly heard by it as at the date when the authorisation takes effect, nor does it relieve that court of its functions, duties and responsibility with regard to those matters;
    2. does not empower the Commission to perform any of the industrial court's functions with regard to the matters mentioned in paragraph (a); and
    3. has the effect of substituting the Commission for the industrial court in so far as all other pending matters are concerned.

  3. In the application of this item-
    1. the provisions of item 22 (1) will apply to the Commission in all respects as if it were the industrial court; and
    2. the rules governing the proceedings at the industrial court in terms of item 22 (2A) and (2B) will apply to the proceedings at all pending matters to be decided by the Commission by virtue of its authorisation in terms of this item.

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-
    1. 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 (1) (a) of the General Pensions Act, 1979 (Act No. 29 of 1979);
    2. 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
    3. 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 subitem (1) (b) or (c)-
    1. 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;
    2. 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
    3. 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 subitem (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 subitem (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 subitem (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 subitem (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 1 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 1 of that Act.

  6. For the purposes of this item-

    7. "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.

PART G Essential Services

24.   Essential services in the public service

  1. An essential service contemplated in section 20 (1) of the Public Service Labour Relations Act, will be deemed to have been designated an essential service in terms of this Act for a period ending on a date 10 months after the commencement of this Act or on the date of the publication of the notice of designation mentioned in subitem (2), in the Government Gazette, whichever date occurs first.

  2. The essential services committee must, in the case of the services contemplated in section 20 (1) of the Public Service Labour Relations Act, as soon as possible after the commencement of this Act make a new designation, under section 71 of this Act, of services that are essential services. Such a designation will be effective from the date of the publication of the notice of designation in the Government Gazette in terms of section 71 (8) of this Act.

25.   Essential services provided for in the Labour Relations Act

  1. The services in which employers referred to in paragraphs (a) and (b) of section 46 (1) of the Labour Relations Act, and employees referred to in paragraphs (e) and ( f ) of that section, are engaged, as well as any service contemplated in paragraph (a) or (b) of section 46 (7) of that Act in which the employers and employees to whom a notice in terms of the latter section applied immediately before the commencement of this Act, are engaged, will be deemed to have been designated essential services in terms of this Act for a period ending on a date 10 months after the commencement of this Act or on the date of the publication of the notice of designation mentioned in subitem (2), in the Government Gazette, whichever date occurs first.

  2. The essential services committee must, in the case of the services contemplated in subitem (1), as soon as possible after the commencement of this Act make a new designation, under section 71 of this Act, of services that are essential services. Such a designation will be effective from the date of the publication of the notice of the designation in the Government Gazette in terms of section 71 (8) of this Act.

PART H Transitional Provisions arising out of the Application of the Labour Relations Amendment Act, 2002

26.   Definitions

In this part-

  1. "Act" means the Labour Relations Act, 1995 (Act No. 66 of 1995); and
  2. "Amendment Act" means the Labour Relations Amendment Act, 2002.

27.   Representation in conciliation and arbitration

  1. Until such time as rules made by the Commission in terms of section 115 (2A) (k) of the Act come into force-
    1. sections 135 (4), 138 (4) and 140 (1) of the Act remain in force as if they had not been repealed, and any reference in this item to those sections is a reference to those sections prior to amendment by this Amendment Act;
    2. a bargaining council may be represented in arbitration proceedings in terms of section 33A of the Act by a person specified in section 138 (4) of the Act or by a designated agent or an official of the council;
    3. the right of any party to be represented in proceedings in terms of section 191 of the Act must be determined by-
      1. section 138 (4) read with section 140 (1) of the Act for disputes about a dismissal; and
      2. section 138 (4) of the Act for disputes about an unfair labour practice.

  2. Despite subitem 1 (a), section 138 (4) of the Act does not apply to an arbitration conducted in terms of section 188A of the Act.

28.   Order for costs in arbitration

Section 138 (10) of the Act, before amendment by the Amendment Act, remains in effect as if it had not been amended until such time as the rules made by the Commission in terms of section 115 (2A) (j) of the Act come into effect.

29.   Arbitration in terms of section 33A

  1. Until such time as the Minister promulgates a notice in terms of section 33A (13) of the Act, an arbitrator conducting an arbitration in terms of section 33A of the Act may impose a fine in terms of section 33A (8) (b) of the Act subject to the maximum fines set out in Table One and Two of this item.

  2. The maximum fine that may be imposed by an arbitrator in terms of section 33A (8) (b) of the Act-
    1. for a failure to comply with a provision of a collective agreement not involving a failure to pay any amount of money, is the fine determined in terms of Table One; and
    2. involving a failure to pay an amount due in terms of a collective agreement, is the greater of the amounts determined in terms of Table One and Table Two.

 

TABLE ONE: MAXIMUM PERMISSIBLE FINE NOT INVOLVING AN UNDERPAYMENT
No previous failure to comply R100 per employee in respect of whom the failure to comply occurs
A previous failure to comply in respect of the same provision R200 per employee in respect of whom the failure to comply occurs
A previous failure to comply within the previous 12 months or two previous failures to comply in respect of the same provisions within three years R300 per employee in respect of whom the failure to comply occurs
Three previous failures to comply in respect of the same provision within three years R400 per employee in respect of whom the failure to comply occurs
Four or more previous failures to comply in respect of the same provision within three years R500 per employee in respect of whom the failure to comply occurs

 

TABLE TWO: MAXIMUM PERMISSIBLE FINE INVOLVING AN UNDERPAYMENT
No previous failure to comply 25% of the amount due, including any interest owing on the amount at the date of the order
A previous failure to comply in respect of the same provision within three years 50% of the amount due, including any interest owing on the amount at the date of the order
A previous failure to comply in respect of the same provision within a year, or two previous failures to comply in respect of the same provision within three years 75% of the amount due, including any interest owing on the amount at the date of the order
Three previous failures to comply in respect of the same provision within three years 100% of the amount due, including any interest owing on the amount at the date of the order
Four or more previous failures to comply in respect of the same provision within three years 200% of the amount due, including any interest owing on the amount at the date of the order

 

30.   Unfair labour practice

  1. Any dispute about an unfair labour practice referred to a council or Commission in accordance with items 3 (1) and (2) of this Schedule prior to the commencement of the Amendment Act must be dealt with as if items 2, 3 and 4 of this Schedule had not been repealed.

  2.  
    1. A dispute concerning any act or omission constituting an alleged unfair labour practice that occurred prior to the commencement of the Amendment Act that had not been referred to a council or Commission in terms of item 3 (1) and 3 (2) prior to the commencement of the Amendment Act must be dealt with in terms of section 191 of the Act.
    2. If a dispute contemplated in paragraph (a) is not referred to conciliation in terms of section 191 (1) (a) of the Act within 90 days of the commencement of the Amendment Act, the employee alleging the unfair labour practice must apply for condonation in terms of section 191 (2) of the Act.
    3. Subitem (a) does not apply to an unfair labour practice in relation to probation.

31.   Bargaining councils in public service

Any bargaining council that was established or deemed to be established in terms of section 37 (3) of the Act prior to the Amendment Act coming into force is deemed to have been established in terms of section 37 (2) of the Act.

32.   Expedited applications in terms of section 189A (13)

Until such time as rules are made in terms of section 159 of the Act-

  1. the Labour Court may not grant any order in terms of section 189A (13) or (14) of the Act unless the applicant has given at least four days' notice to the respondent of an application for an order in terms of subsection (1). However, the Court may permit a shorter period of notice if-
    1. the applicant has given written notice to the respondent of the applicant's intention to apply for the granting of an order;
    2. the respondent has been given a reasonable opportunity to be heard before a decision concerning that application is taken; and
    3. the applicant has shown good cause why a period shorter than four days should be permitted;

  2. an application made in terms of section 189A (13) must be enrolled by the Labour Court on an expedited basis.