CHAPTER THREE COLLECTIVE BARGAINING
(ss 27-34)

PART C Bargaining Councils

27. Establishment of bargaining councils

One or more registered trade unions and one or more registered employers' organisations may establish a bargaining council for a sector and area by-

adopting a constitution that meets the requirements of section 30; and

obtaining registration of the bargaining council in terms of section 29.

The State may be a party to any bargaining council established in terms of this section if it is an employer in the sector and area in respect of which the bargaining council is established.

If the State is a party to a bargaining council in terms of subsection (2), any reference to a registered employers' organisation includes a reference to the State as a party.

A bargaining council may be established for more than one sector.

[Sub-s. (4) added by s. 3 of Act No. 42 of 1996.]

28. Powers and functions of bargaining council.

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

to conclude collective agreements;

to enforce those collective agreements;

to prevent and resolve labour disputes;

to perform the dispute resolution functions referred to in section 51;

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

to promote and establish training and education schemes;

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

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

to determine by collective agreement the matters which may not be an issue in dispute for the purposes of a strike or a lock-out at the work-place;

to confer on work-place forums additional matters for consultation;

to provide industrial support services within the sector; and

[Para. (k) added by s. 3 (b) of Act No. 12 of 2002.]

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

[Para. (l) added by s. 3 (b) of Act No. 12 of 2002.]

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

[Sub-s. (2) added by s. 1 of Act No. 127 of 1998.]

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

[Sub-s. (3) added by s. 1 of Act No. 127 of 1998.]

29. Registration of bargaining councils

The parties referred to in section 27 may apply for registration of a bargaining council by submitting to the registrar-

the prescribed form that has been properly completed;

a copy of its constitution; and

any other information that may assist the registrar to determine whether or not the bargaining council meets the requirements for registration.

The registrar may require further information in support of the application.

As soon as practicable after receiving the application, the registrar must publish a notice containing the material particulars of the application in the Government Gazette and send a copy of the notice to NEDLAC. The notice must inform the general public that they-

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

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

[Sub-s. (3) substituted by s. 4 (a) of Act No. 12 of 2002.]

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

the applicant has not complied with the provisions of this section;

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

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

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

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

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

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

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

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

report to the registrar in writing.

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

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

The registrar-

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

must determine whether-

the applicant has complied with the provisions of this section;

the constitution of the bargaining council complies with section 30;

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

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

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

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

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

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

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

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

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

refuse to register the applicant; and

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

After registering the applicant, the registrar must-

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

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

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

[Sub-s. (16) added by s. 4 (b) of Act No. 12 of 2002.]

30. Constitution of bargaining council

The constitution of every bargaining council must at least provide for-

the appointment of representatives of the parties to the bargaining council, of whom half must be appointed by the trade unions that are party to the bargaining council and the other half by the employers' organisations that are party to the bargaining council, and the appointment of alternates to the representatives;

the representation of small and medium enterprises;

the circumstances and manner in which representatives must vacate their seats and the procedure for replacing them;

rules for the convening and conducting of meetings of representatives, including the quorum required for, and the minutes to be kept of, those meetings;

the manner in which decisions are to be made;

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

the establishment and functioning of committees;

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

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

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

the procedure for exemption from collective agreements;

the banking and investment of its funds;

the purposes for which its funds may be used;

the delegation of its powers and functions;

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

a procedure for changing its constitution; and

a procedure by which it may resolve to wind up.

[Sub-s. (1) amended by s. 5 (a) of Act No. 42 of 1996.]

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

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

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

The constitution of the Public Service Co-ordinating Bargaining Council must include a procedure for establishing a bargaining council in a sector of the public service designated in terms of section 37 (1).

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

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

[Sub-s. (5) added by s. 5 (b) of Act No. 42 of 1996.]

31. Binding nature of collective agreement concluded in bargaining council
Subject to the provisions of section 32 and the constitution of the bargaining council, a collective agreement concluded in a bargaining council binds-

the parties to the bargaining council who are also parties to the collective agreement;

each party to the collective agreement and the members of every other party to the collective agreement in so far as the provisions thereof apply to the relationship between such a party and the members of such other party; and

the members of a registered trade union that is a party to the collective agreement and the employers who are members of a registered employers' organisation that is such a party, if the collective agreement regulates-

terms and conditions of employment; or

the conduct of the employers in relation to their employees or the conduct of the employees in relation to their employers.

[S. 31 substituted by s. 6 of Act No. 42 of 1996.]

32. Extension of collective agreement concluded in bargaining council

A bargaining council may ask the Minister in writing to extend a collective agreement concluded in the bargaining council to any non-parties to the collective agreement that are within its registered scope and are identified in the request, if at a meeting of the bargaining council-

one or more registered trade unions whose members constitute the majority of the members of the trade unions that are party to the bargaining council vote in favour of the extension; and

one or more registered employers' organisations, whose members employ the majority of the employees employed by the members of the employers' organisations that are party to the bargaining council, vote in favour of the extension.

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

2A. If the registrar determines that the parties to the bargaining council are sufficiently representative within the registered scope of the bargaining council for the purposes of subsection (5) (a), the Minister must publish the notice contemplated in subsection (2) within 90 days of the request.

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

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

b.i. the registrar, in terms of section 49(4A)(a), has determined that the majority of all the employees who, upon extension of the collective agreement, will fall within the scope of the agreement, are members of the trade unions that are parties to the bargaining council; or

(ii). the registrar, in terms of section 49(4A)(a), has determined that the members of the employers' organisations that are parties to the bargaining council will, upon the extension of the collective agreement, be found to employ the majority of all the employees who fall within the scope of the collective agreement;

c. [deleted]

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

dA. the bargaining council has in place an effective procedure to deal with applications by non-parties for exemptions from the provisions of the collective agreement and is able to decide an application for an exemption within 30 days;

e. provision is made in the collective agreement for an independent body to hear and decide, as soon as possible, and not later than 30 days after the appeal is lodged, any appeal brought against-

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

the withdrawal of such an exemption by the bargaining council;

[Para. (e) substituted by s. 2 (a) of Act No. 127 of 1998.]

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

[Para. ( f ) substituted by s. 2 (a) of Act No. 127 of 1998.]

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

3A. No representative, office-bearer or official of a trade union or employers' organisation party to the bargaining council may be a member of, or participate in the deliberations of, the appeal body established in terms of subsection (3)(e).

3B. The Minister may make regulations on the procedures and criteria that a bargaining council must take into consideration when developing the criteria for the purposes of section 32(3)(dA), (e) and (f).

  . . . . . .

[Sub-s. (4) deleted by s. 2 (b) of Act No. 127 of 1998.]

Despite subsection 3 (b) and (c), the Minister may extend a collective agreement in terms of subsection (2) if-

the registrar has, in terms of section 49(4A)(b), determined that the parties to the bargaining council are sufficiently representative within the registered scope of the bargaining council;

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

the Minister has published a notice in the Government Gazette stating that an application for an extension in terms of this subsection has been received, stating where a copy may be inspected or obtained, and inviting comment within a period of not less than 21 days from the date of the publication of the notice; and

the Minister has considered all comments received during the period referred to in paragraph (c);

5A. When determining whether the parties to the bargaining council are sufficiently representative for the purposes of subsection (5)(a), the registrar may take into account the composition of the workforce in the sector, including the extent to which there are employees assigned to work by temporary employment services, employees employed on fixed term contracts, part-time employees or employees in other categories of non-standard employment; and



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

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

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

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

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

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

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

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

[Sub-s. (9) added by s. 7 (c) of Act No. 42 of 1996.]

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

[Sub-s. (10) added by s. 5 (b) of Act No. 12 of 2002.]

A bargaining council that has a collective agreement extended in terms of this section must ensure that the independent appeal body is able to determine appeals within the period specified in subsection (3)(f).

32A. Renewal and extension of funding agreements

For the purposes of this section -

a 'funding agreement' means a collective agreement concluded in a bargaining council, including a provision in such an agreement to fund -

the operational and administrative activities of the bargaining council itself;

a dispute resolution fund referred to in section 28(1)(e);

a training and education scheme contemplated in section 28(1)(f); or

a pension, provident, medical aid, sick pay, holiday, unemployment and training schemes or funds or any similar schemes or funds for the benefit of one or more of the parties to the bargaining council or their members, as contemplated in section 28(1)(g);

the 'renewal of a funding agreement' means an agreement that is -

binding on the parties to the agreement; and

deemed to be an extension of the agreement to non-parties in terms of section 32(2).

Subject to subsection (3), and where the Minister is satisfied that the failure to renew the funding agreement may undermine collective bargaining at sectoral level, the Minister may renew a funding agreement for up to 12 months at the request of any of the parties to a bargaining council if -

the funding agreement has expired; or

the parties have failed to conclude a collective agreement to renew or replace the funding agreement before 90 days of its expiry.

The Minister must, before making a decision under subsection (2) -

publish a notice in the Government Gazette calling for public comment on the request within a period stipulated in the notice; and

consider the comments received.

Any review of the Minister's decision under subsection (2) must be determined by the Labour Court and any such decision remains in force until -

set aside by the Labour Court; or

if the decision is taken on appeal, set aside by the Labour Appeal Court or the Constitutional Court, as the case may be.

33. Appointment and powers of designated agents of bargaining councils

The Minister may at the request of a bargaining council appoint any person as the designated agent of that bargaining council to promote, monitor and enforce compliance with any collective agreement concluded in that bargaining council.

[Sub-s. (1) substituted by s. 6 (a) of Act No. 12 of 2002.]

1A. A designated agent may-

secure compliance with the council's collective agreements by-

publicising the contents of the agreements;

conducting inspections;

investigating complaints; or

any other means the council may adopt; and

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

[Sub-s. (1A) inserted by s. 6 (b) of Act No. 12 of 2002.]

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

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

[Sub-s. (3) substituted by s. 6 (c) of Act No. 12 of 2002.]

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

33A. Enforcement of collective agreements by bargaining councils

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

For the purposes of this section, a collective agreement is deemed to include-

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

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

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



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

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

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

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

the arbitration is not conducted under the auspices of the Commission.

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

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

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

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

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

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

charging a party an arbitration fee;

ordering a party to pay the costs of the arbitration;

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

any award contemplated in section 138 (9).

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

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

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

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



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

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

for a breach of a collective agreement-

aa. not involving a failure to pay any amount of money;
bb. involving a failure to pay any amount of money; and

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

[S. 33A inserted by s. 7 of Act No. 12 of 2002.]

34. Amalgamation of bargaining councils

Any bargaining council may resolve to amalgamate with one or more other bargaining councils.

The amalgamating bargaining councils may apply to the registrar for registration of the amalgamated bargaining council and the registrar must treat the application as an application in terms of section 29.

If the registrar has registered the amalgamated bargaining council, the registrar must cancel the registration of each of the amalgamating bargaining councils by removing their names from the register of councils.

The registration of an amalgamated bargaining council takes effect from the date that the registrar enters its name in the register of councils.

When the registrar has registered an amalgamated bargaining council-

all the assets, rights, liabilities and obligations of the amalgamating bargaining councils devolve upon and vest in the amalgamated bargaining council; and

all the collective agreements of the amalgamating bargaining councils, regardless of whether or not they were extended in terms of section 32, remain in force for the duration of those collective agreements, unless amended or terminated by the amalgamated bargaining council.

CHAPTER THREE COLLECTIVE BARGAINING (ss 27-34)

PART C Bargaining Councils

27. Establishment of bargaining councils

28. Powers and functions of bargaining council.

29. Registration of bargaining councils

30. Constitution of bargaining council

31. Binding nature of collective agreement concluded in bargaining council

32. Extension of collective agreement concluded in bargaining council

32A. Renewal and extension of funding agreements

33. Appointment and powers of designated agents of bargaining councils

33A. Enforcement of collective agreements by bargaining councils

34. Amalgamation of bargaining councils

CHAPTER THREE COLLECTIVE BARGAINING
(ss 27-34)