CHAPTER THREE COLLECTIVE BARGAINING

(ss 49-63)

PART F General Provisions Concerning Councils

49.   Representativeness of council

1. When considering the representativeness of the parties to a council, or parties seeking registration of a council, the registrar, having regard to the nature of the sector and the situation of the area in respect of which registration is sought, may regard the parties to a council as representative in respect of the whole area, even if a trade union or employers' organisation that is a party to the council has no members in part of that area.


2. A bargaining council having a collective agreement that has been extended by the Minister in terms of section 32, must inform the registrar annually, in writing, on a date to be determined by the registrar as to the information specified in subsection (3) and the number of employees who are-
   1. covered by the collective agreement;
   2. members of the trade unions that are parties to the agreement;
   3. employed by members of the employers' organisations that are party to the agreement.
   
   [Sub-s. (2) substituted by s. 11 (a) of Act No. 12 of 2002.]
   
   
3. A bargaining council other than one contemplated in subsection (2) must on request by the registrar inform the registrar in writing within the period specified in the request as to the number of employees who are-
   1. employed within the registered scope of the council;
   2. members of the trade unions that are parties to the council;
   3. employed by members of the employers' organisations that are party to the council.
   
   
[Sub-s. (3) substituted by s. 11 (b) of Act No. 12 of 2002.]


4. A determination of the representativeness of a bargaining council in terms of this section is sufficient proof of the representativeness of the council for the two years following the determination for any purpose in terms of this Act, including a decision by the Minister in terms of sections 32(3)(b) and 32(5).

4A.

A determination made by the registrar in terms of -

1. section 32(3)(b) is sufficient proof that the members of the employer organisations that are party to the bargaining council, upon extension of the collective agreement, employ the majority of the employees who fall within the scope of that agreement; and
2. section 32(5)(a) is sufficient proof that the parties to the collective agreement are sufficiently representative within the registered scope of the bargaining council.

5. This section does not apply to the public service.

50.   Effect of registration of council

1. A certificate of registration is sufficient proof that a registered council is a body corporate.


2. A council has all the powers, functions and duties that are conferred or imposed on it by or in terms of this Act, and it has jurisdiction to exercise and perform those powers, functions and duties within its registered scope.


3. A party to a council is not liable for any of the obligations or liabilities of the council by virtue of it being a party to the council.


4. A party to, or office-bearer or official of, a council is not personally liable for any loss suffered by any person as a result of an act performed or omitted in good faith by a party to, or office-bearer or official of, a council while performing their functions for the council.


5. Service of any document directed to a council at the address most recently provided to the registrar will be for all purposes service of that document on that council.

51.   Dispute resolution functions of council

1. In this section, dispute means any dispute about a matter of mutual interest between-
   1. on the one side-
      1. one or more trade unions;
      2. one or more employees; or
      3. one or more trade unions and one or more employees; and
      
      
   2. on the other side-
      1. one or more employers' organisations;
      2. one or more employers; or
      3. one or more employers' organisations and one or more employers.
      
      
2.   
   1.   
      1. The parties to a council must attempt to resolve any dispute between themselves in accordance with the constitution of the council.
      
      
      2. For the purposes of subparagraph (i), a party to a council includes the members of any registered trade union or registered employers' organisation that is a party to the council.
      
      
   [Sub-para. (ii) added by s. 11 (a) of Act No. 42 of 1996.]
   
   
   2. Any party to a dispute who is not a party to a council but who falls within the registered scope of the council may refer the dispute to the council in writing.
   3. The party who refers the dispute to the council must satisfy it that a copy of the referral has been served on all the other parties to the dispute.
   
   
3. If a dispute is referred to a council in terms of this Act* and any party to that dispute is not a party to that council, the council must attempt to resolve the dispute- *The following disputes contemplated by subsection (3) must be referred to a council: disputes about the interpretation or application of the provisions of Chapter II. (see section 9); disputes that form the subject matter of a proposed strike or lockout (see section 64 (1)); disputes in essential services (see section 74); disputes about unfair dismissals (see section 191); disputes about severance pay (see section 196); and disputes about unfair labour practices (see item 2 in Schedule 7).
   The following disputes contemplated by subsection (3) may not be referred to a council; disputes about organisational rights (see sections 16, 21 and 22); disputes about collective agreements where the agreement does not provide for a procedure or the procedure is inoperative or any party frustrates the resolution of the dispute (see section 24(2) to (5)); disputes about agency shops and closed shops (see section 24 (6) and (7) and section 26 (11); disputes about determinations made by the Minister in respect of proposals made by a statutory council (see section 45); disputes about the interpretation or application of collective agreements of a council whose registration has been cancelled (see section 61 (5) to (8)); disputes about the demarcation of sectors and areas of councils (see section 62); disputes about the interpretation or application of Part C (bargaining councils), Part D (bargaining councils in the public service), Part E (statutory councils) and Part F (general provisions concerning councils)(see section 63); disputes concerning pickets (see section 69(8) to (10)); disputes about proposals that are the subject of joint decision making in workplace forums (see section 86); disputes about the disclosure of information to workplace forums (see section 89) and disputes about the interpretation or application of the provisions of Chapter V which deals with workplace forums (see section 94) [Footnote amended by Act No. 12 of 2002]
   
   
   1. through conciliation; and
   2. if the dispute remains unresolved after conciliation, the council must arbitrate the dispute if-
      1. this Act requires arbitration and any party to the dispute has requested that it be resolved through arbitration; or
      2. all the parties to the dispute consent to arbitration under the auspices of the council.
      
      
4. If one or more of the parties to a dispute that has been referred to the council do not fall within the registered scope of that council, it must refer the dispute to the Commission.


5. The date on which the referral in terms of subsection (4) was received by a council is, for all purposes, the date on which the council referred the dispute to the Commission.


6. A council may enter into an agreement with the Commission or an accredited agency in terms of which the Commission or accredited agency is to perform, on behalf of the council, its dispute resolution functions in terms of this section.

[Sub-s. (6) added by s. 11 (b) of Act No. 42 of 1996.]


7. Subject to this Act, a council may not provide in a collective agreement for the referral of disputes to the Commission, without prior consultation with the director.

[Sub-s. (7) added by s. 12 of Act No. 12 of 2002.]


8. Unless otherwise agreed to in a collective agreement, sections 142A and 143 to 146 apply to any arbitration conducted under the auspices of a bargaining council.

[Sub-s. (8) added by s. 12 of Act No. 12 of 2002.]


9. A bargaining council may by collective agreement -
   1. establish procedures to resolve any dispute contemplated in this section.
   2. provide for payment of a dispute resolution levy; and
   3. provide for the payment of a fee in relation to any conciliation or arbitration proceedings in respect of matters for which the Commission may charge a fee in terms of section 115(2A)(l), which may not exceed the fee provided for in that section.
   
   
[Sub-s(9) added by s.12 of Act No. 12 of 2002]

52.   Accreditation of council or appointment of accredited agency

1. With a view to performing its dispute resolution functions in terms of section 51 (3), every council must-
   1. apply to the governing body of the Commission for accreditation to perform those functions; or
   2. appoint an accredited agency to perform those of the functions referred to in section 51 (3) for which the council is not accredited.
   
   
2. The council must advise the Commission in writing as soon as possible of the appointment of an accredited agency in terms of subsection (1) (b), and the terms of that appointment.

[S.52 substituted by s.12 of Act No. 12 of 2002]

53.   Accounting records and audits

1. Every council must, to the standards of generally accepted accounting practice, principles and procedures-
   1. keep books and records of its income, expenditure, assets and liabilities; and
   2. within six months after the end of each financial year, prepare financial statements, including at least-
      1. a statement of income and expenditure for the previous financial year; and
      2. a balance sheet showing its assets, liabilities and financial position as at the end of the previous financial year.
      
      
2. Each council must arrange for an annual audit of its books and records of account and its financial statements by an auditor who must-
   1. conduct the audit in accordance with generally accepted auditing standards; and
   2. report in writing to the council and in that report express an opinion as to whether or not the council has complied with those provisions of its constitution relating to financial matters.
   
   
3. Every council must-
   1. make the financial statements and the auditor's report available to the parties to the council or their representatives for inspection; and
   2. submit those statements and the auditor's report to a meeting of the council as provided for in its constitution.
   
   
4. Every council must preserve each of its books of account, supporting vouchers, income and expenditure statements, balance sheets, and auditors' reports, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate.


5. The money of a council or of any fund established by a council that is surplus to its requirements, or the expenses of the fund, may be invested only in-
   1. savings accounts, permanent shares or fixed deposits in any registered bank or financial institution;
   2. internal registered stock as contemplated in section 21 of the Exchequer Act, 1975 (Act No. 66 of 1975);
   3. a registered unit trust; or
   4. any other manner approved by the registrar.
   
   
[Sub-s. (5) amended by s. 13 of Act No. 42 of 1996.]


6. A council must comply with subsections (1) to (5) in respect of all funds established by it, except funds referred to in section 28 (3).

[Sub-s. (6) amended by s. 13 of Act No. 12 of 2002.]

54.   Duty to keep records and provide information to registrar

1. In addition to the records required by section 53 (4), every council must keep minutes of its meetings, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate.


2. Every council must provide to the registrar--
   1. within 30 days of receipt of its auditor's report, a certified copy of that report and of the financial statements;
   2. within 30 days of receipt of a written request by the registrar, an explanation of anything relating to the auditor's report or the financial statements;
   3. upon registration, an address within the Republic at which it will accept service of any document that is directed to it;
   4. within 30 days of any appointment or election of its national office-bearers, the names and work addresses of those office-bearers even if their appointment or election did not result in any changes to its office-bearers;
   5. 30 days before a new address for service of documents will take effect, notice of that change of address; and
   6. each year and on a date to be determined by the registrar, a report in the prescribed form specifying-
      1. the number of employees who are employed by small enterprises that fall within the registered scope of the council and the number of employees of those enterprises who are members of trade unions;
      2. the number of employees employed by small enterprises that are covered by a collective agreement that was concluded by the council and extended by the Minister in terms of section 32;
      3. the number of small enterprises that are members of the employers' organisations that are parties to the council; and
      4. the number of applications for exemptions received from small enterprises and the number of applications that were granted and the number rejected.
      
      
[Para. (f) added by s. 14 (b) of Act No. 12 of 2002.]


3. Every council must provide to the Commission-
   1. certified copies of every collective agreement concluded by the parties to the council, within 30 days of the signing of that collective agreement;
   2. the details of the admission and resignation of parties to the council, within 30 days of their admission or resignation.
   
   
4. If a council fails to comply with any of the provisions of section 49 (2) or (3), section 53 or subsections (1) or (2) of this section, the registrar may-
   1. conduct an inquiry into the affairs of that council;
   2. order the production of the council's financial records and any other relevant documents;
   3. deliver a notice to the council requiring the council to comply with the provisions concerned;
   4. compile a report on the affairs of the council; or
   5. submit the report to the Labour Court in support of any application made in terms of section 59 (1) (b).
   
   
[Sub-s. (4) added by s. 14 (c) of Act No. 12 of 2002.]


5. The registrar may use the powers referred to in subsection (4) in respect of any fund established by a council, except a fund referred to in section 28 (3).

[Sub-s. (5) added by s. 14 (c) of Act No. 12 of 2002.]

55.   Delegation of functions to committee of council

1. A council may delegate any of its powers and functions to a committee on any conditions imposed by the council in accordance with its constitution.

[Sub-s. (1) substituted by s. 14 (a) of Act No. 42 of 1996.]


2. A committee contemplated by subsection (1) must consist of equal numbers of representatives of employees and employers.


3.   . . . . . .

[Sub-s. (3) deleted by s. 14 (b) of Act No. 42 of 1996.]

56.   Admission of parties to council

1. Any registered trade union or registered employers' organisation may apply in writing to a council for admission as a party to that council.

*See flow diagram No. 5 in Schedule 4.


2. The application must be accompanied by a certified copy of the applicant's registered constitution and certificate of registration and must include-
   1. details of the applicant's membership within the registered scope of the council and, if the applicant is a registered employers' organisation, the number of employees that its members employ within that registered scope;
   2. the reasons why the applicant ought to be admitted as a party to the council; and
   3. any other information on which the applicant relies in support of the application.
   
   
3. A council, within 90 days of receiving an application for admission, must decide whether to grant or refuse an applicant admission, and must advise the applicant of its decision, failing which the council is deemed to have refused the applicant admission.


4. If the council refuses to admit an applicant it must within 30 days of the date of the refusal, advise the applicant in writing of its decision and the reasons for that decision.


5. The applicant may apply to the Labour Court for an order admitting it as a party to the council.


6. The Labour Court may admit the applicant as a party to the council, adapt the constitution of the council and make any other appropriate order.

57.   Changing constitution or name of council

1. Any council may resolve to change or replace its constitution.


2. The council must send the registrar a copy of the resolution and a certificate signed by its secretary stating that the resolution complies with its constitution.


3. The registrar must-
   1. register the changed or new constitution of a council if it meets the requirements of section 30 or if it is a statutory council established in terms of section 41 if it meets the requirements of the model constitution referred to in section 207 (3); and
   2. send the council a copy of the resolution endorsed by the registrar, certifying that the change or replacement has been registered.
   
   
4. The changed or new constitution takes effect from the date of the registrar's certification.


5. Any council may resolve to change its name.


6. The council must send the registrar a copy of the resolution and the original of its current certificate of registration.


7. The registrar must-
   1. enter the new name in the register of councils, and issue a certificate of registration in the new name of the council;
   2. remove the old name from that register and cancel the earlier certificate of registration; and
   3. send the new certificate to the council.
   
   
8. The new name takes effect from the date that the registrar enters it in the register of councils.

58.   Variation of registered scope of council

1. If the registrar is satisfied that the sector and area within which a council is representative does not coincide with the registered scope of the council, the registrar, acting independently or in response to an application from the council, may vary the registered scope of the council.

[Sub-s. (1) substituted by s. 15 of Act No. 42 of 1996.]


2. The provisions of section 29 apply, read with the changes required by the context, to a variation in terms of this section.


3. Despite subsection (2), if within the stipulated period no material objection is lodged to any notice published by the registrar in terms of section 29 (3), the registrar-
   1. may vary the registered scope of the council;
   2. may issue a certificate specifying the scope of the council as varied; and
   3. need not comply with the procedure prescribed by section 29.
   
   
[Sub-s. (3) added by s. 15 of Act No. 12 of 2002.]

59.   Winding-up of council

1. The Labour Court may order a council to be wound up if-
   1. the council has resolved to wind up its affairs and has applied to the Court for an order giving effect to that resolution; or
   2. the registrar of labour relations or any party to the council has applied to the Court and the Court is satisfied that the council is unable to continue to function for any reason that cannot be remedied.
   
   
2. If there are any persons not represented before the Labour Court whose interests may be affected by an order in terms of subsection (1), the Court must-
   1. consider those interests before deciding whether or not to grant the order; and
   2. if it grants the order, include provisions in the order disposing of each of those interests.
   
   
3. If it makes an order in terms of subsection (1), the Labour Court may appoint a suitable person as liquidator, on appropriate conditions.


4.    
   1. The registrar of the Labour Court must determine the liquidator's fees.
   2. The Labour Court, in chambers, may review the determination of the registrar of the Labour Court.
   3. The liquidator's fees are a first charge against the assets of the council.
   
   
5. If, after all the liabilities of the council have been discharged, any assets remain that cannot be disposed of in accordance with the constitution of that council, the liquidator must realise those assets and pay the proceeds to the Commission for its own use.


6. For the purposes of this section, the assets and liabilities of any pension, provident or medical aid scheme or fund established by a council will be regarded and treated as part of the assets and liabilities of the council unless-
   1. the parties to the council have agreed to continue with the operation of the pension, provident or medical aid scheme or fund as a separate scheme or fund despite the winding-up of the council; and
   2. the Minister has approved the continuation of the scheme or fund; and
   3. application has been made in accordance with the provisions of the laws applicable to pension, provident or medical aid schemes or funds, for the registration of that scheme or fund in terms of those provisions.
   
   
[Sub-s. (6) added by s. 4 of Act No. 127 of 1998.]


7. A pension, provident or medical aid scheme or fund registered under the provisions of those laws after its application in terms of subsection (6) (c), will continue to be a separate scheme or fund despite the winding-up of the council by which it was established.

[Sub-s. (7) added by s. 4 of Act No. 127 of 1998.]


8. The Minister by notice in the Government Gazette may declare the rules of a pension, provident or medical aid scheme or fund mentioned in subsection (7), to be binding on any employees and employer or employers that fell within the registered scope of the relevant council immediately before it was wound up.

[Sub-s. (8) added by s. 4 of Act No. 127 of 1998.]

60.   Winding-up of council by reason of insolvency

Any person who seeks to wind up a council by reason of insolvency must comply with the Insolvency Act, 1936 (Act No. 24 of 1936), and, for the purposes of this section, any reference to the court in that Act must be interpreted as referring to the Labour Court.

61.   Cancellation of registration of council

1. The registrar of the Labour Court must notify the registrar of labour relations if the Court has ordered a council to be wound up.


2. When the registrar receives a notice from the Labour Court in terms of subsection (1), the registrar must cancel the registration of the council by removing its name from the register of councils.


3. The registrar may notify a council and every party to the council that the registrar is considering cancelling the council's registration, if the registrar believes that-
   1. the council has ceased to perform its functions in terms of this Act for a period longer than 90 days before the date of the notice; or
   2. the council has ceased to be representative in terms of the provisions of the relevant Part, for a period longer than 90 days prior to the date of the notice.
   
   
4. In a notice in terms of subsection (3), the registrar must state the reasons for the notice and inform the council and every party to the council that they have 60 days to show cause why the council's registration should not be cancelled.


5. After the expiry of the 60-day period, the registrar, unless cause has been shown why the council's registration should not be cancelled, must notify the council and every party to the council that the registration will be cancelled unless an appeal to the Labour Court is noted and the Court reverses the decision.


6. The cancellation takes effect-
   1. if no appeal to the Labour Court is noted within the time contemplated in section 111 (3), on the expiry of that period; or
   2. if the council or any party has appealed and the Labour Court has confirmed the decision of the registrar, on the date of the Labour Court's decision.
   
   
7. If either event contemplated in subsection (6) occurs, the registrar must cancel the council's registration by removing the name of the council from the register of councils.


8. Any collective agreement concluded by parties to a council whose registration has been cancelled, whether or not the collective agreement has been extended to non-parties by the Minister in terms of section 32, lapses 60 days after the council's registration has been cancelled.


9. Despite subsection (8), the provisions of a collective agreement that regulates terms and conditions of employment remain in force for one year after the date that the council's registration was cancelled, or until the expiry of the agreement, if earlier.


10. Any party to a dispute about the interpretation or application of a collective agreement that regulates terms and conditions of employment referred to in subsection (8) may refer the dispute in writing to the Commission.


11. 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.


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


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


14. The registrar must cancel the registration of a bargaining council in the public service by removing its name from the register of councils when the registrar receives a resolution from the Public Service Co-ordinating Bargaining Council disestablishing a bargaining council established in terms of section 37 (2).

[Sub-s. (14) added by s. 16 of Act No. 12 of 2002.]


15. The provisions of subsections (3) to (7) do not apply to bargaining councils in the public service.

[Sub-s. (15) added by s. 16 of Act No. 12 of 2002.]

62.   Disputes about demarcation between sectors and areas

1. Any registered trade union, employer, employee, registered employers' organisation or council that has a direct or indirect interest in the application contemplated in this section may apply to the Commission in the prescribed form and manner for a determination as to-
   1. whether any employee, employer, class of employees or class of employers, is or was employed or engaged in a sector or area;
   2. whether any provision in any arbitration award, collective agreement or wage determination made in terms of the Wage Act is or was binding on any employee, employer, class of employees or class of employers.
   
   
[Sub-s. (1) amended by s. 16 (a) of Act No. 42 of 1996.]


2. If two or more councils settle a dispute about a question contemplated in subsection (1) (a) or (b), the councils must inform the Minister of the provisions of their agreement and the Minister may publish a notice in the Government Gazette stating the particulars of the agreement.


3. In any proceedings in terms of this Act before the Labour Court, if a question contemplated in subsection (1) (a) or (b) is raised, the Labour Court must adjourn those proceedings and refer the question to the Commission for determination if the Court is satisfied that-
   1. the question raised-
      1. has not previously been determined by arbitration in terms of this section; and
      2. is not the subject of an agreement in terms of subsection (2); and
      
      
   3. the determination of the question raised is necessary for the purposes of the proceedings.
   
   

3A.

In any proceedings before an arbitrator about the interpretation or application of a collective agreement, if a question contemplated in subsection (1) (a) or (b) is raised, the arbitrator must adjourn those proceedings and refer the question to the Commission if the arbitrator is satisfied that-

1. the question raised-
   1. has not previously been determined by arbitration in terms of this section; and
   2. is not the subject of an agreement in terms of subsection (2); and
   
   
2. the determination of the question raised is necessary for the purposes of the proceedings.

[Sub-s. (3A) inserted by s. 16 (b) of Act No. 42 of 1996.]

4. When the Commission receives an application in terms of subsection (1) or a referral in terms of subsection (3), it must appoint a commissioner to hear the application or determine the question, and the provisions of section 138 apply, read with the changes required by the context.


5. In any proceedings in terms of this Act before a commissioner, if a question contemplated in subsection (1) (a) or (b) is raised, the commissioner must adjourn the proceedings and consult the director, if the commissioner is satisfied that-
   1. the question raised-
      1. has not previously been determined by arbitration in terms of this section; and
      2. is not the subject of an agreement in terms of subsection (2); and
      
      
   2. the determination of the question raised is necessary for the purposes of the proceedings.
   
   
6. The director must either order the commissioner concerned to determine the question or appoint another commissioner to do so, and the provisions of section 138 apply, read with the changes required by the context.


7. If the Commission believes that the question is of substantial importance, the Commission must publish a notice in the Government Gazette stating the particulars of the application or referral and stating the period within which written representations may be made and the address to which they must be directed.


8. If a notice contemplated in subsection (7) has been published, the commissioner may not commence the arbitration until the period stated in the notice has expired.


9. Before making an award, the commissioner must consider any written representations that are made, and must consult NEDLAC.


10. The commissioner must send the award, together with brief reasons, to the Labour Court and to the Commission.


11. If the Commission believes that the nature of the award is substantially important, it may publish notice of the award in the Government Gazette.


12. The registrar must amend the certificate of registration of a council in so far as is necessary in light of the award.

63.   Disputes about Parts A and C to F

1. Any party to a dispute about the interpretation or application of Parts A and C to F of this Chapter, may refer the dispute in writing to the Commission unless-
   1. the dispute has arisen in the course of arbitration proceedings or proceedings in the Labour Court; or
   
   [Para. (a) substituted by s. 17 of Act No. 42 of 1996.]
   
   
   2. the dispute is otherwise to be dealt with in terms of Parts A and C to F.
   
   
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 refer it to the Labour Court for adjudication.