PART D Bargaining Councils in the Public Service

35.   Bargaining councils in public service

There will be a bargaining council for-

1. the public service as a whole, to be known as the Public Service Co-ordinating Bargaining Council; and
2. any sector within the public service that may be designated in terms of section 37.

36.   Public Service Co-ordinating Bargaining Council

1. The Public Service Co-ordinating Bargaining Council must be established in accordance with Schedule 1.*

*Schedule 1 deals with the procedure for the establishment of the Public Service Coordinating bargaining council.


2. The Public Service Co-ordinating Bargaining Council may perform all the functions of a bargaining council in respect of those matters that-
   1. are regulated by uniform rules, norms and standards that apply across the public service; or
   2. apply to terms and conditions of service that apply to two or more sectors; or
   3. are assigned to the State as employer in respect of the public service which are not assigned to the State as employer in any sector.
   
   

37.   Bargaining councils in sectors in public service

1. The Public Service Co-ordinating Bargaining Council may, in terms of its constitution and by resolution-
   1. designate a sector of the public service for the establishment of a bargaining council; and
   2. vary the designation of, amalgamate or disestablish bargaining councils so established.
   
   
2. A bargaining council for a sector designated in terms of subsection (1) (a) must be established in terms of the constitution of the Public Service Co-ordinating Bargaining Council.


3. If the parties in the sector cannot agree to a constitution for the bargaining council for a sector designated in terms of subsection (1) (a), the Registrar must determine its constitution.


4. The relevant resolution made in terms of subsection (1) must accompany any application to register or vary the registration of a bargaining council or to register an amalgamated bargaining council.


5. A bargaining council established in terms of subsection (2) has exclusive jurisdiction in respect of matters that are specific to that sector and in respect of which the State as employer in that sector, has the requisite authority to conclude collective agreements and resolve labour disputes.

[S. 37 amended by s. 8 of Act No. 42 of 1996 and substituted by s. 8 of Act No. 12 of 2002.]

38.   Disputes between bargaining councils in public service

1. If there is a jurisdictional dispute between two or more bargaining councils in the public service, including the Public Service Co-ordinating Bargaining Council, any party to the dispute may refer the dispute in writing to the Commission.


2. The party who refers the dispute to the Commission must satisfy the Commission that a copy of the referral has been served on all other bargaining councils that are parties to the dispute.


3. The Commission must attempt to resolve the dispute as soon as possible through conciliation.


4. If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration by the Commission.

[S. 38 amended by s. 9 (a) and (b) of Act No. 42 of 1996 and substituted by s. 9 of Act 12 of 2002.]

CHAPTER THREE COLLECTIVE BARGAINING

(ss 39-48)

PART E Statutory Councils

39.   Application to establish statutory council

1. For the purposes of this Part-
   1. "representative trade union" means a registered trade union, or two or more registered trade unions acting jointly, whose members constitute at least 30 per cent of the employees in a sector and area; and
   2. "representative employers' organisation" means a registered employers' organisation, or two or more registered employers' organisations acting jointly, whose members employ at least 30 per cent of the employees in a sector and area.
   
   
2. A representative trade union or representative employers' organisation may apply to the registrar in the prescribed form for the establishment of a statutory council in a sector and area in respect of which no council is registered.


3. The registrar must apply the provisions of section 29 (2) to (10)* to the application-
   
   * The provisions of section 29 deals with the procedure for the registration of a bargaining council.
   1. read with the changes required by the context; and
   2. subject to the deletion of the word "sufficiently" in section 29 (4) (c).
   
   
4. The registrar must-
   1. consider the application and any further information provided by the applicant; and
   2. determine whether-
      1. the applicant has complied with section 29 and of this section;
      2. the applicant is representative of the sector and area determined by NEDLAC or the Minister; and
      3. there is no other council registered for the sector and area in respect of which the application is made.
      
      
5. If the registrar is not satisfied that the applicant meets the requirements for establishment, the registrar must-
   1. send the applicant a written notice of the decision and the reasons for that decision; and
   2. in that notice, inform the applicant that it has 30 days from the date of the notice to meet those requirements.
   
   
6. If, after the 30-day period, the registrar concludes that the applicant has failed to meet the requirements for establishment, the registrar must-
   1. refuse to register the applicant; and
   2. notify the applicant and any person that objected to the application in writing of that decision.
   
   

40.   Establishment and registration of statutory council

1. If the registrar is satisfied that the applicant meets the requirements for the establishment of a statutory council, the registrar, by notice in the Government Gazette, must establish the statutory council for a sector and area.


2. The notice must invite-
   1. registered trade unions and registered employers' organisations in that sector and area to attend a meeting; and
   2. any interested parties in that sector and area to nominate representatives for the statutory council.
   
   
3. The Commission must appoint a commissioner to chair the meeting and facilitate the conclusion of an agreement on-
   1. the registered trade unions and registered employers' organisations to be parties to the statutory council; and
   2. a constitution that meets the requirements of section 30, read with the changes required by the context.
   
   
4. If an agreement is concluded, the Minister may advise the registrar to register the statutory council in accordance with the agreement if the Minister is satisfied that-
   1. every registered trade union or registered employers' organisation that ought to have been included has been included in the agreement; and
   2. the constitution meets the requirements of section 30, read with the changes required by the context.
   
   
5. In considering the requirements in subsection (4) (a), the Minister must take into account-
   1. the primary objects of this Act;
   2. the diversity of registered trade unions and registered employers' organisations in the sector and area; and
   3. the principle of proportional representation.
   
   
6. If the Minister is not satisfied in terms of subsection (4), the Minister must advise the Commission of the decision and the reasons for that decision and direct the Commission to reconvene the meeting in terms of subsection (3) in order to facilitate the conclusion of a new agreement.


7. If advised by the Minister in terms of subsection (4), the registrar must register the statutory council by entering its name in the register of councils.

41.   Establishment and registration of statutory council in absence of agreement

1. If no agreement is concluded in terms of section 40 (3), the commissioner must convene separate meetings of the registered trade unions and employers' organisations to facilitate the conclusion of agreements on-
   1. the registered trade unions to be parties to the statutory council;
   2. the registered employers' organisations to be parties to the statutory council; and
   3. the allocation to each party of the number of representatives of the statutory council.
   
   
2. If an agreement is concluded on-
   1. the registered trade unions to be parties to the statutory council, the Minister must admit as parties to the statutory council the agreed registered trade unions;
   2. the registered employers' organisations to be parties to the statutory council, the Minister must admit as parties to the statutory council the agreed registered employers' organisations.
   
   
3. If no agreement is concluded on-
   1. the registered trade unions to be parties to the statutory council, the Minister must admit as parties to the statutory council-
      1. the applicant, if it is a registered trade union; and
      2. any other registered trade union in the sector and area that ought to be admitted, taking into account the factors referred to in section 40 (5);
      
      
   2. the registered employers' organisations to be parties to the statutory council, the Minister must admit as parties to the statutory council-
      1. the applicant, if it is a registered employers' organisations; and
      2. any other registered employers' organisation in the sector and area that ought to be admitted, taking into account the factors referred to in section 40 (5).
      
      
4.   
   1. The Minister must determine an even number of representatives of the statutory council, taking into account the factors referred to in section 40 (5).
   2. One half of the representatives must be allocated to the registered trade unions that are parties to the statutory council and the other half of the representatives must be allocated to the registered employers' organisations that are parties to the statutory council.
   
   
5. If no agreement is concluded in respect of the allocation of the number of representatives of the statutory council-
   1. between the registered trade unions that are parties to the council, the Minister must determine this allocation on the basis of proportional representation;
   2. between the registered employers' organisation that are parties to the council, the Minister must determine this allocation on the basis of proportional representation and taking into account the interests of small and medium enterprises.
   
   
6. If the applicant is a trade union and there is no registered employers' organisation that is a party to the statutory council, the Minister, after consulting the Commission, must appoint suitable persons as representatives and alternates, taking into account the nominations received from employers and employers' organisations in terms of section 40 (2).


7. If the applicant is an employers' organisation and there is no registered trade union that is a party to the statutory council, the Minister, after consulting the Commission, must appoint suitable persons as representatives and alternates, taking into account the nominations received from employees and trade unions in terms of section 40 (2).


8. The Minister must notify the registrar of agreements concluded and decisions made in terms of this section, and the registrar must-
   1. adapt the model constitution referred to in section 207 (3) to the extent necessary to give effect to the agreements and decisions made in terms of this section;
   2. register the statutory council by entering its name in the register of councils; and
   3. certify the constitution as the constitution of the statutory council.
   
   

42.   Certificate of registration of statutory council

After registering a statutory council, the registrar must-

1. issue a certificate of registration that must specify the registered scope of the statutory council; and
2. send the certificate and a certified copy of the registered constitution to all the parties to the statutory council and any representatives appointed to the statutory council.

43.   Powers and functions of statutory councils

1. The powers and functions of a statutory council are-
   1. to perform the dispute resolution functions referred to in section 51;
   2. to promote and establish training and education schemes; and
   3. to establish and administer pension, provident, medical aid, sick pay, holiday, unemployment schemes or funds or any similar schemes or funds for the benefit of one or more of the parties to the statutory council or their members; and
   4. to conclude collective agreements to give effect to the matters mentioned in paragraphs (a), (b), and (c).
   
   
2. A statutory council, in terms of its constitution, may agree to the inclusion of any of the other functions of a bargaining council referred to in section 28.


3. If a statutory council concludes a collective agreement in terms of subsection (1) (d), the provisions of section 31, 32 and 33 apply, read with the changes required by the context.

[Sub-s. (3) substituted by s. 10 of Act No. 42 of 1996.]
4.   
   1. 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) (c).
   2. The provisions of the laws relating to pension, provident or medical aid schemes or funds will apply in relation to any pension, provident or medical aid scheme or fund established in terms of subsection (1) (c) after the coming into operation of the Labour Relations Amendment Act, 1998.
   
   [Sub-s. (4) added by s. 3 of Act No. 127 of 1998.]

44.   Ministerial determinations

1. A statutory council that is not sufficiently representative within its registered scope may submit a collective agreement on any of the matters mentioned in section 43 (1) (a), (b) or (c) to the Minister. The Minister must treat the collective agreement as a recommendation made by the Employment Conditions Commission in terms of section 54 (4) of the Basic Conditions of Employment Act.

[Sub-s. (1) substituted by s. 10 (a) of Act No. 12 of 2002.]


2. The Minister may promulgate the statutory council's recommendations as a determination under the Basic Conditions of Employment Act if satisfied that the statutory council has complied with section 54 (3) of the Basic Conditions of Employment Act, read with the changes required by the context.

[Sub-s. (2) substituted by s. 10 (b) of Act No. 12 of 2002.]


3. The determination must provide for-
   1. exemptions to be considered by an independent body appointed by the Minister; and
   2. criteria for exemption that are fair and promote the primary objects of this Act.
   
   
4. The Minister may in a determination impose a levy on all employers and employees in the registered scope of the statutory council to defray the operational costs of the statutory council.


5. A statutory council may submit a proposal to the Minister to amend or extend the period of any determination and the Minister may make the amendment to the determination or extend the period by notice in the Government Gazette.

45.   Disputes about determinations

1. If there is a dispute about the interpretation or application of a determination promulgated in terms of section 44 (2), any party to the dispute may refer the dispute in writing to the Commission.


2. The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.


3. The Commission must attempt to resolve the dispute through conciliation.


4. If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.

46.   Withdrawal of party from statutory council

1. If a registered trade union or registered employers' organisation that is a party to a statutory council withdraws from that statutory council, the Minister may request the Commission to convene a meeting of the remaining registered trade unions or registered employers' organisations in the sector and area, in order to facilitate the conclusion of an agreement on the registered trade unions or the registered employers' organisations to be parties and the allocation of representatives to the statutory council.


2. If no agreement is concluded, the provisions of section 41 apply, read with the changes required by the context.

47.   Appointment of new representative of statutory council

1. If a representative appointed in terms of section 41 (6) or (7) for any reason no longer holds office, the Minister must publish a notice in the Government Gazette inviting interested parties within the registered scope of the statutory council to nominate a new representative.


2. The provisions of section 41 (6) or (7) apply, read with the changes required by the context, in respect of the appointment of a new representative.

48.   Change of status of statutory council

1. A statutory council may resolve to apply to register as a bargaining council.


2. The registrar must deal with the application as if it were an application in terms of section 29* except for section 29 (4) (b), (7) to (10) and (15).

* Section 29 deals with the procedure for the registration of bargaining councils.
3. If the registrar has registered the statutory council as a bargaining council, the registrar must alter the register of councils and its certificate to reflect its change of status.


4. Any determination in force at the time of the registration of the bargaining council or any agreement extended by the Minister in terms of section 43 (3)-
   1. continues to have force for the period of its operation unless superseded by a collective agreement; and
   2. may be extended for a further period.
   
   
5. The bargaining council must perform any function or duty of the statutory council in terms of a determination during the period in which the determination is still in effect.


6. If any dispute in terms of a determination is unresolved at the time the determination ceases to have effect, the dispute must be dealt with as if the determination was still in effect.