CHAPTER SEVEN DISPUTE RESOLUTION

(ss 133-150)

PART C Resolution of Disputes under Auspices of Commission

133.   Resolution of disputes under auspices of Commission

1. The Commission must appoint a commissioner to attempt to resolve through conciliation-
   1. any dispute referred to it in terms of section 134; and
   2. any other dispute that has been referred to it in terms of this Act.
   
   
2. If a dispute remains unresolved after conciliation, the Commission must arbitrate the dispute if-
   1. this Act requires the dispute to be arbitrated and any party to the dispute has requested that the dispute be resolved through arbitration; or
   2. all the parties to the dispute in respect of which the Labour Court has jurisdiction consent in writing to arbitration under the auspices of the Commission.
   
   [Sub-s. 2 substituted by s. 25 of Act No. 12 of 2002.]
   

134.   Disputes about matters of mutual interest

1. Any party to a dispute about a matter of mutual interest may refer the dispute in writing to the Commission, if the parties to the dispute are-
   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. 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.

135.   Resolution of disputes through conciliation

1. When a dispute has been referred to the Commission, the Commission must appoint a commissioner to attempt to resolve it through conciliation.


2. The appointed commissioner must attempt to resolve the dispute through conciliation within 30 days of the date the Commission received the referral: However the parties may agree to extend the 30-day period.

2A.	If an extension of the 30 day period referred to in subsection (2) is necessary to ensure a meaningful conciliation process, the commissioner or a party may apply to the director in accordance with any rules made in terms of section115(2A) for an extension of the period, which may not exceed five days.
2B.	The director may only extend the period referred to in subsection (2A) if the director is satisfied that -

1. an extension is necessary to ensure a meaningful conciliation process;
2. the refusal to agree to the extension is unreasonable; and
3. there are reasonable prospects of reaching an agreement.

2C.

Subsections (2A) and (2B) do not apply to instances where the State is the employer.

3. The commissioner must determine a process to attempt to resolve the dispute which may include-
   1. mediating the dispute;
   2. conducting a fact-finding exercise; and
   3. making a recommendation to the parties, which may be in the form of an advisory arbitration award.
   
   

3A.	If a single commissioner has been appointed, in terms of subsection (1), in respect of more than one dispute involving the same parties, that commissioner may consolidate the conciliation proceedings so that all the disputes concerned may be dealt with in the same proceedings.
	[Sub-s. (3A) inserted by s. 8 (a) of Act No. 127 of 1998.]

4.   . . . . . .

[Sub-s. (4) substituted by s. 8 (b) of Act No. 127 of 1998 and deleted by s. 26 of Act No. 12 of 2002.]


5. When conciliation has failed, or at the end of the 30-day period or any further period agreed between the parties-
   1. the commissioner must issue a certificate stating whether or not the dispute has been resolved;
   2. the Commission must serve a copy of that certificate on each party to the dispute or the person who represented a party in the conciliation proceedings; and
   3. the commissioner must file the original of that certificate with the Commission.
   
   [Sub-s. (5) amended by s. 36 (b) of Act No. 42 of 1996.]
   
   
6.   
   1. If a dispute about a matter of mutual interest has been referred to the Commission and the parties to the dispute are engaged in an essential service then, despite subsection (1), the parties may consent within seven days of the date the Commission received the referral-
      1. to the appointment of a specific commissioner by the Commission to attempt to resolve the dispute through conciliation; and
      
      
      2. to that commissioner's terms of reference.
      
      
   2. If the parties do not consent to either of those matters within the seven day period, the Commission must as soon as possible-
      1. appoint a commissioner to attempt to resolve the dispute; and
      2. determine the commissioner's terms of reference.
      
      

136.   Appointment of commissioner to resolve dispute through arbitration

1. If this Act requires a dispute to be resolved through arbitration, the Commission must appoint a commissioner to arbitrate that dispute if-
   1. a commissioner has issued a certificate stating that the dispute remains unresolved; and
   2. within 90 days after the date on which that certificate was issued, any party to the dispute has requested that the dispute be resolved through arbitration. However, the Commission, on good cause shown, may condone a party's non-observance of that time-frame and allow a request for arbitration filed by the party after the expiry of the 90-day period.
   
   
[Para. (b) substituted by s. 9 (a) of Act No. 127 of 1998.]


2. A commissioner appointed in terms of subsection (1) may be the same commissioner who attempted to resolve the dispute through conciliation.


3. Any party to the dispute who wants to object to the arbitration also being conducted by the commissioner who conciliated had attempted to resolve the dispute through conciliation, may do so by filing an objection in that regard with the Commission within seven days after the date on which the commissioner's certificate was issued, and must satisfy the Commission that a copy of the objection has been served on all the other parties to the dispute.

[Sub-s. (3) substituted by s. 9 (b) of Act No. 127 of 1998.]


4. When the Commission receives an objection it must appoint another commissioner to resolve the dispute by arbitration.


5.  
   1. The parties to a dispute may request the Commission, in appointing a commissioner in terms of subsection (1) or (4), to take into account their stated preference, to the extent that this is reasonably practicable in all the circumstances.
   2. The stated preference contemplated in paragraph (a) must-
      1. be in writing;
      2. list no more than five commissioners;
      3. state that the request is made with the agreement of all the parties to the dispute; and
      4. be submitted within 48 hours of the date of the certificate referred to in subsection (1) (a).
      
      
6. If the circumstances contemplated in subsection (1) exist and the parties to the dispute are engaged in an essential service then the provisions of section 135 (6) apply, read with the changes required by the context, to the appointment of a commissioner to resolve the dispute through arbitration.

137.   Appointment of senior commissioner to resolve dispute through arbitration

1. In the circumstances contemplated in section 136 (1), any party to the dispute may apply to the director to appoint a senior commissioner to attempt to resolve the dispute through arbitration.


2. When considering whether the dispute should be referred to a senior commissioner, the director must hear the party making the application, any other party to the dispute and the commissioner who conciliated the dispute.


3. The director may appoint a senior commissioner to resolve the dispute through arbitration, after having considered-
   1. the nature of the questions of law raised by the dispute;
   2. the complexity of the dispute;
   3. whether there are conflicting arbitration awards that are relevant to the dispute; and
   4. the public interest.
   
   
4. The director must notify the parties to the dispute of the decision and-
   1. if the application has been granted, appoint a senior commissioner to arbitrate the dispute; or
   2. if the application has been refused, confirm the appointment of the commissioner initially appointed, subject to section 136 (4).
   
   
[Para. (b) substituted by s. 37 of Act No. 42 of 1996.]


5. The director's decision is final and binding.


6. No person may apply to any court of law to review the director's decision until the dispute has been arbitrated.

138.   General provisions for arbitration proceedings

1. The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.


2. Subject to the discretion of the commissioner as to the appropriate form of the proceedings, a party to the dispute may give evidence, call witnesses, question the witnesses of any other party, and address concluding arguments to the commissioner.


3. If all the parties consent, the commissioner may suspend the arbitration proceedings and attempt to resolve the dispute through conciliation.


4.   . . . . . .

[Sub-s. (4) substituted by s. 10 of Act No. 127 of 1998 and deleted by s. 27 (a) of Act No. 12 of 2002.]


5. If a party to the dispute fails to appear in person or to be represented at the arbitration proceedings, and that party-
   1. had referred the dispute to the Commission, the commissioner may dismiss the matter; or
   2. had not referred the dispute to the Commission, the commissioner may-
      1. continue with the arbitration proceedings in the absence of that party; or
      2. adjourn the arbitration proceedings to a later date.
      
      
6. The commissioner must take into account any code of good practice that has been issued by NEDLAC or guidelines published by the Commission in accordance with the provisions of this Act that is relevant to a matter being considered in the arbitration proceedings.


7. Within 14 days of the conclusion of the arbitration proceedings-
   1. the commissioner must issue an arbitration award with brief reasons, signed by that commissioner;
   2. the Commission must serve a copy of that award on each party to the dispute or the person who represented a party in the arbitration proceedings
   
   
8. On good cause shown, the director may extend the period within which the arbitration award and the reasons are to be served and filed.


9. The commissioner may make any appropriate arbitration award in terms of this Act, including, but not limited to, an award-
   1. that gives effect to any collective agreement;
   2. that gives effect to the provisions and primary objects of this Act;
   3. that includes, or is in the form of, a declaratory order.
   
   
10. The commissioner may make an order for the payment of costs according to the requirements of law and fairness in accordance with rules made by the Commission in terms of section 115 (2A) (j) and having regard to-
    1. any relevant Code of Good Practice issued by NEDLAC in terms of section 203;
    2. any relevant guideline issued by the Commission.
    
    
[Sub-s. (10) substituted by s. 27 (b) of Act No. 12 of 2002.]

[Editorial Note: In terms of s. 58 (2) of Act No. 12 of 2002 sub-s. (10) does not come into operation before the rules made by the Commission in terms of s. 115 (2A) (j) come into effect. For the rules please refer to Government Notice R.961 published in Government Gazette 23611 of 25 July, 2002.]

139.   Special provisions for arbitrating disputes in essential services

1. If a dispute about a matter of mutual interest proceeds to arbitration and any party is engaged in an essential service-
   1. within 30 days of the date of the certificate referred to in section 136 (1) (a), or within a further period agreed between the parties to the dispute, the commissioner must complete the arbitration and issue an arbitration award with brief reasons signed by that commissioner;
   2. the Commission must serve a copy of that award on each party to the dispute or the person who represented a party in the arbitration proceedings; and
   3. the Commission must file the original of that award with the registrar of the Labour Court.
   
   
2. The commissioner may not include an order for costs in the arbitration award unless a party, or the person who represented the party in the arbitration proceedings, acted in a frivolous or vexatious manner in its conduct during the arbitration proceedings.

140.   Special provisions for arbitrations about dismissals for reasons related to conduct or capacity

1.   . . . . . .

[Sub-s. (1) deleted by s. 28 of Act No. 12 of 2002.]


2. If, in terms of section 194 (1), the commissioner finds that the dismissal is procedurally unfair, the commissioner may charge the employer an arbitration fee.

141.   Resolution of disputes if parties consent to arbitration under auspices of Commission

1. If a dispute remains unresolved after conciliation, the Commission must arbitrate the dispute if a party to the dispute would otherwise be entitled to refer the dispute to the Labour Court for adjudication and, instead, all the parties agree in writing to arbitration under the auspices of the Commission.

[Sub-s. (1) substituted by s. 29 (a) of Act No. 12 of 2002.]


2. The arbitration proceedings must be conducted in accordance with the provisions of sections 136, 137 and 138, read with the changes required by the context.


3. The arbitration agreement contemplated in subsection (1) may be terminated only with the written consent of all the parties to that agreement, unless the agreement itself provides otherwise.

[Sub-s. (3) substituted by s. 29 (b) of Act No. 12 of 2002.]


4. Any party to the arbitration agreement may apply to the Labour Court at any time to vary or set aside that agreement, which the Court may do on good cause.


5.  
   1. If any party to an arbitration agreement commences proceedings in the Labour Court against any other party to that agreement about any matter that the parties agreed to refer to arbitration, any party to those proceedings may ask the Court-
      1. to stay those proceedings and refer the dispute to arbitration; or
      2. with the consent of the parties and where it is expedient to do so, continue with the proceedings with the Court acting as arbitrator, in which case the Court may only make an order corresponding to the award that an arbitrator could have made.
      
      
   2. If the Court is satisfied that there is sufficient reason for the dispute to be referred to arbitration in accordance with the arbitration agreement, the Court may stay those proceedings, on any conditions.
   
   
6. If the provisions of subsection (1) apply, the commissioner may make an award that the Labour Court could have made.

[Sub-s. (6) amended by s. 39 of Act No. 42 of 1996.]

142.   Powers of commissioner when attempting to resolve disputes

1. A commissioner who has been appointed to attempt to resolve a dispute may-
   1. subpoena for questioning any person who may be able to give information or whose presence at the conciliation or arbitration proceedings may help to resolve the dispute;
   2. subpoena any person who is believed to have possession or control of any book, document or object relevant to the resolution of the dispute, to appear before the commissioner to be questioned or to produce that book, document or object;
   3. call, and if necessary subpoena, any expert to appear before the commissioner to give evidence relevant to the resolution of the dispute;
   4. call any person present at the conciliation or arbitration proceedings or who was or could have been subpoenaed for any purpose set out in this section, to be questioned about any matter relevant to the dispute;
   5. administer an oath or accept an affirmation from any person called to give evidence or be questioned;
   6. at any reasonable time, but only after obtaining the necessary written authorisation-
      1. enter and inspect any premises on or in which any book, document or object, relevant to the resolution of the dispute is to be found or is suspected on reasonable grounds of being found there; and
      2. examine, demand the production of, and seize any book, document or object that is on or in those premises and that is relevant to the resolution of the dispute; and
      3. take a statement in respect of any matter relevant to the resolution of the dispute from any person on the premises who is willing to make a statement; and
      
      [Sub-para. (iii) added by s. 40 of Act No. 42 of 1996.]
      
      
   7. inspect, and retain for a reasonable period, any of the books, documents or objects that have been produced to, or seized by, the Commission.
   
   
2. A subpoena issued for any purpose in terms of subsection (1) must be signed by the director and must-
   1. specifically require the person named in it to appear before the commissioner;
   2. sufficiently identify the book, document or object to be produced; and
   3. state the date, time and place at which the person is to appear.
   
   
3. The written authorisation referred to in subsection (1) ( f )-
   1. if it relates to residential premises, may be given only by a judge of the Labour Court and with due regard to section 13 of the Constitution, and then only on the application of the commissioner setting out under oath or affirmation the following information-
      1. the nature of the dispute;
      2. the relevance of any book, document or object to the resolution of the dispute;
      3. the presence of any book, document or object on the premises; and
      4. the need to enter, inspect or seize the book, document or object; and
      
      
   2. in all other cases, may be given by the director.
   
   
4. The owner or occupier of any premises that a commissioner is authorised to enter and inspect, and every person employed by that owner or occupier, must provide any facilities that a commissioner requires to enter those premises and to carry out the inspection or seizure.


5. The commissioner must issue a receipt for any book, document or object seized in terms of subsection (4).


6. The law relating to privilege, as it applies to a witness subpoenaed to give evidence or to produce any book, document or object before a court of law, applies equally to the questioning of any person or the production or seizure of any document, book or object in terms of this section.


7.   
   1. The Commission must pay the prescribed witness fee to each person who appears before a commissioner in response to a subpoena issued by the commissioner.
   2. Any person who requests the Commission to issue a subpoena must pay the prescribed witness fee to each person who appears before a commissioner in response to the subpoena and who remains in attendance until excused by the commissioner.
   3. The Commission may on good cause shown waive the requirement in paragraph (b) and pay to the witness the prescribed witness fee.
   
   [Sub-s. (7) substituted by s. 30 (a) of Act No. 12 of 2002.]
   
   
8. A person commits contempt of the Commission-
   1. if, after having been subpoenaed to appear before the commissioner, the person without good cause does not attend at the time and place stated in the subpoena;
   2. if, after having appeared in response to a subpoena, that person fails to remain in attendance until excused by the commissioner;
   3. by refusing to take the oath or to make an affirmation as a witness when a commissioner so requires;
   4. by refusing to answer any question fully and to the best of that person's knowledge and belief subject to subsection (6);
   5. if the person, without good cause, fails to produce any book, document or object specified in a subpoena to a commissioner;
   6. if the person wilfully hinders a commissioner in performing any function conferred by or in terms of this Act;
   7. if the person insults, disparages or belittles a commissioner, or prejudices or improperly influences the proceedings or improperly anticipates the commissioner's award;
   8. by wilfully interrupting the conciliation or arbitration proceedings or misbehaving in any other manner during those proceedings;
   9. by doing anything else in relation to the Commission which, if done in relation to a court of law, would have been contempt of court.
   
   
9.   
   1. A commissioner may make a finding that a party is in contempt of the Commission for any of the reasons set out in subsection (8).
   2. The commissioner may refer the finding, together with the record of the proceedings, to the Labour Court for its decision in terms of subsection (11).
   
   [Sub-s. (9) substituted by s. 30 (b) of Act No. 12 of 2002.]
   
   
10. Before making a decision in terms of subsection (11), the Labour Court-
    1. must subpoena any person found in contempt to appear before it on a date determined by the Court;
    2. may subpoena any other person to appear before it on a date determined by the Court; and
    3. may make any order that it deems appropriate, including an order in the case of a person who is not a legal practitioner that the person's right to represent a party in the Commission and the Labour Court be suspended.
    
    [Sub-s. (10) added by s. 30 (c) of Act No. 12 of 2002.]
    
    
11. The Labour Court may confirm, vary or set aside the finding of a commissioner.

[Sub-s. (11) added by s. 30 (c) of Act No. 12 of 2002.]


12. If any person fails to appear before the Labour Court pursuant to a subpoena issued in terms of subsection (10) (a), the Court may make any order that it deems appropriate in the absence of that person.

[Sub-s. (12) added by s. 30 (c) of Act No. 12 of 2002.]

142A.   Making settlement agreement arbitration award

1. The Commission may, by agreement between the parties or on application by a party, make any settlement agreement in respect of any dispute that has been referred to the Commission, an arbitration award.


2. For the purposes of subsection (1), a settlement agreement is a written agreement in settlement of a dispute that a party has the right to refer to arbitration or to the Labour Court, excluding a dispute that a party is entitled to refer to arbitration in terms of either section 74 (4) or 75 (7).

[S. 142A inserted by s. 31 of Act No. 12 of 2002.]

143.   Effect of arbitration awards

1. An arbitration award issued by a commissioner is final and binding and it may be enforced as if it were an order of the Labour Court in respect of which a writ has been issued, unless it is an advisory arbitration award.

[Sub-s. (1) substituted by s. 32 (a) of Act No. 12 of 2002.]


2. If an arbitration award orders a party to pay a sum of money, the amount earns interest from the date of the award at the same rate as the rate prescribed from time to time in respect of a judgment debt in terms of section 2 of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), unless the award provides otherwise.


3. An arbitration award may only be enforced in terms of subsection (1) if the director has certified that the arbitration award is an award contemplated in subsection (1).

[Sub-s. (3) added by s. 32 (b) of Act No. 12 of 2002.]


4. If a party fails to comply with an arbitration award certified in terms of subsection (3) that orders the performance of an act, other than the payment of an amount of money, any other party to the award may without further order, enforce it by way of contempt proceedings instituted in the Labour Court.

[Sub-s. (4) added by s. 32 (b) of Act No. 12 of 2002.]


5. Despite subsection (1), an arbitration award in terms of which a party is required to pay an amount of money must be treated for the purpose of enforcing or executing that award as if it were an order of the Magistrate's Court.


6. Subsections (1), (4) and (5), as amended by the Labour Relations Amendment Act, 2014, takes effect on the date of commencement of the Labour Relations Amendment Act, 2014, and applies to an arbitration award issued after such commencement date.

144.   Variation and rescission of arbitration awards and rulings

Any commissioner who has issued an arbitration award or ruling, or any other commissioner appointed by the director for that purpose, may on that commissioner's own accord or, on the application of any affected party, vary or rescind an arbitration award or ruling-

1. erroneously sought or erroneously made in the absence of any party affected by that award;
2. in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission;
3. granted as a result of a mistake common to the parties to the proceedings; or

[S. 144 substituted by s. 33 of Act No. 12 of 2002.]


4. made in the absence of any party, on good cause shown.

145.   Review of arbitration awards

1. Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award-
   1. within six weeks of the date that the award was served on the applicant, unless the alleged defect involves corruption; or
   2. if the alleged defect involves corruption, within six weeks of the date that the applicant discovers the corruption.
   
   

1A.	The Labour Court may on good cause shown condone the late filing of an application in terms of subsection (1).
	[Sub-s. (1A) inserted by s. 34 of Act No. 12 of 2002.]

2. A defect referred to in subsection (1), means-
   1. that the commissioner-
      1. committed misconduct in relation to the duties of the commissioner as an arbitrator;
      2. committed a gross irregularity in the conduct of the arbitration proceedings; or
      3. exceeded the commissioner's powers; or
      
      
   2. that an award has been improperly obtained.
   
   
3. The Labour Court may stay the enforcement of the award pending its decision.


4. If the award is set aside, the Labour Court may-
   1. determine the dispute in the manner it considers appropriate; or
   2. make any order it considers appropriate about the procedures to be followed to determine the dispute.
   
   
5. Subject to the rules of the Labour Court, a party who brings an application under subsection (1) must apply for a date for the matter to be heard within six months of delivery of the application, and the Labour Court may, on good cause shown, condone a late application for a date for the matter to be heard.


6. Judgment in an application brought under subsection (1) must be handed down as soon as reasonably possible.


7. The institution of review proceedings does not suspend the operation of an arbitration award, unless the applicant furnishes security to the satisfaction of the Court in accordance with subsection (8).


8. Unless the Labour Court directs otherwise, the security furnished as contemplated in subsection (7) must-
   1. in the case of an order of reinstatement or re-employment, be equivalent to 24 months' remuneration; or
   2. in the case of an order of compensation, be equivalent to the amount of compensation awarded.
   
   
9. An application to set aside an arbitration award in terms of this section interrupts the running of prescription in terms of the Prescription Act, 1969 (Act No. 68 of 1969), in respect of that award.


10. Subsections (5) to (8) apply to an application brought after the date of commencement of the Labour Relations Amendment Act, 2014 and subsection (9) applies to an arbitration award issued after such commencement date.

146.   Exclusion of Arbitration Act

The Arbitration Act, 1965 (Act No. 42 of 1965), does not apply to any arbitration under the auspices of the Commission.

147.   Performance of dispute resolution functions by Commission in exceptional circumstances

1.   
   1. If at any stage after a dispute has been referred to the Commission, it becomes apparent that the dispute is about the interpretation or application of a collective agreement, the Commission may-
      1. refer the dispute for resolution in terms of the procedures provided for in that collective agreement; or
      2. appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act.
      
      
   2. The Commission may charge the parties to a collective agreement a fee for performing the dispute resolution functions if-
      1. their collective agreement does not provide a procedure as requested in section 24 (1);3* or
      
      *Section 24(1) states that every collective agreement must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement.
      
      
      2. the procedure provided in the collective agreement is not operative.
      
      
   3. The Commission may charge a party to a collective agreement a fee if that party has frustrated the resolution of the dispute.
   
   
2.   
   1. If at any stage after a dispute has been referred to the Commission, it becomes apparent that the parties to the dispute are parties to a council, the Commission may-
      1. refer the dispute to the council for resolution; or
      2. appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act.
      
      
   2. The Commission may charge the parties to a council a fee for performing the dispute resolution functions if the council's dispute resolution procedures are not operative.
   
   
3.   
   1. If at any stage after a dispute has been referred to the Commission, it becomes apparent that the parties to the dispute fall within the registered scope of a council and that one or more parties to the dispute are not parties to the council, the Commission may-
      1. refer the dispute to the council for resolution; or
      2. appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act.
      
      
   2. The Commission may charge the parties to a council a fee for performing the dispute resolution functions if the council's dispute resolution procedures are not operative.
   
   
4.  
   1. If a dispute has been referred to the Commission and not all the parties to the dispute fall within the registered scope of a council or fall within the registered scope of two or more councils, the Commission must resolve the dispute in terms of this Act.
   2. In the circumstances contemplated in paragraph (a), the Commission has exclusive jurisdiction to resolve that dispute.
   
   
5.   
   1. If at any stage after a dispute has been referred to the Commission, it becomes apparent that the dispute ought to have been referred to an accredited agency, the Commission may-
      1. refer the dispute to the accredited agency for resolution; or
      2. appoint a commissioner to resolve the dispute in terms of this Act.
      
      [Para. (a) amended by s. 41 (a) of Act No. 42 of 1996.]

   2. The Commission may-
      1. charge the accredited agency a fee for performing the dispute resolution functions if the accredited agency's dispute resolution procedures are not operative; and
      
      
      2. review the continued accreditation of that agency.
      
      
6. If at any stage after a dispute has been referred to the Commission, it becomes apparent that the dispute ought to have been resolved through private dispute resolution in terms of a private agreement between the parties to the dispute, the Commission may-
   1. refer the dispute to the appropriate person or body for resolution through private dispute resolution procedures; or
   2. appoint a commissioner to resolve the dispute in terms of this Act.
   
   [Sub-s. (6) substituted by s. 41 (b) of Act No. 42 of 1996.]

6A.

For the purpose of making a decision in terms of subsection (6), the Commission must appoint a commissioner to resolve the dispute-

1. if an employee earning less than the threshold prescribed by the Minister, in terms of section 6(3) of the Basic Conditions of Employment Act, is required to pay any part of the cost of the private dispute resolution procedures; or
2. if the person or body appointed to resolve the dispute is not independent of the employer.

7. Where the Commission refers the dispute in terms of this section to a person or body other than a commissioner the date of the Commission's initial receipt of the dispute will be deemed to be the date on which the Commission referred the dispute elsewhere.


8. The Commission may perform any of the dispute resolution functions of a council or an accredited agency appointed by the council if the council or accredited agency fails to perform its dispute resolution functions in circumstances where, in law, there is an obligation to perform them.

[Sub-s. (8) added by s. 41 (c) of Act No. 42 of 1996.]


9. For the purposes of subsections (2) and (3), a party to a council includes the members of a registered trade union or registered employers' organisation that is a party to the council.

[Sub-s. (9) added by s. 41 (c) of Act No. 42 of 1996.]

148.   Commission may provide advice

1. If asked, the Commission may advise any party to a dispute in terms of this Act about the procedure to be followed for the resolution of that dispute.


2. In response to a request for advice, the Commission may provide the advice that it considers appropriate.

149.   Commission may provide assistance

1. If asked, the Commission may assist an employee or employer who is a party to a dispute-
   1. together with the Legal Aid Board,* to arrange for advice or assistance by a legal practitioner;
   
   *The Legal Aid Board is established in terms of section 2 of the Legal Aid Act, 1969 (Act No. 22 of 1969).
   
   
   2. together with the Legal Aid Board, to arrange for a legal practitioner-
      1. to attempt to avoid or settle any proceedings being instituted against an employee or employer in terms of this Act;
      2. to attempt to settle any proceedings instituted against an employee or employer in terms of this Act;
      3. to institute on behalf of the employee or employer any proceedings in terms of this Act;
      4. to defend or oppose on behalf of the employee or employer any proceedings instituted against the employee or employer in terms of this Act; or
      
      
   3. by providing any other form of assistance that the Commission considers appropriate.
   
   
2. The Commission may provide the assistance referred to in subsection (1) after having considered-
   1. the nature of the questions of law raised by the dispute;
   2. the complexity of the dispute;
   3. whether there are conflicting arbitration awards that are relevant to the dispute; and
   4. the public interest.
   
   
3. As soon as practicable after having received a request in terms of subsection (1), but not later than 30 days of the date the Commission received the request, the Commission must advise the applicant in writing whether or not it will assist the applicant and, if so, the form that the assistance will take.

150.   Commission may appoint commissioner to conciliate in public interest

1. Despite any provision to the contrary in this Act, the director may appoint one or more commissioners who must attempt to resolve the dispute through conciliation, whether or not that dispute has been referred to the Commission or a bargaining council-
   1. with the consent of the parties; or
   2. in the absence of consent by the parties, if the director believes it is in the public interest to do so.
   
   
2. Before appointing a commissioner in terms of this section, the director must consult-
   1. the parties to the dispute; and
   2. the secretary of a bargaining council with jurisdiction over the parties to the dispute.
   
   
3. The director may appoint a commissioner who has already conciliated that dispute.


4. In addition, to assist a commissioner appointed in terms of subsection (1), the director may appoint-
   1. one person from a list of at least five names submitted by the representatives of organised labour on the governing body of the Commission; and
   2. one person from a list of at least five names submitted by the representatives of organised business on the governing body of the Commission.
   
   
5. Unless the parties to the dispute agree otherwise, the appointment of a commissioner in terms of this section does not affect any entitlement, of an employee to strike or an employer to lock-out, that the party to the dispute may have acquired in terms of Chapter IV.

150A.   Advisory arbitration panel in public interest

1. The director may appoint an advisory arbitration panel (referred to in sections 150A to 150D as the 'panel') in the public interest to make an advisory arbitration award (referred to in sections 150A to 150D as the 'award') in order to facilitate a dispute -
   1. on the director's own accord or on the application of one of the parties to the dispute;
   2. after consultation in the prescribed manner with the parties to the dispute; and
   3. in the prescribed manner setting out the panel's terms of reference as provided for in section 150C(1).
   
   
2. The director must establish an advisory arbitration panel contemplated in subsection (1) to facilitate a resolution of the dispute at any time after a commissioner has issued a certificate of unresolved dispute under section 135(5)(a) or a notice of the commencement of the strike or lockout contemplated in section 64 (1)(b),(c) and (d), whichever is the earlier -
   1. subject to subsection (3) -
      1. if directed to do so by the Minister; or
      2. on application by a party to the dispute;
      
      
   2. if ordered to do so by the Labour Court in terms of subsection (4); or
   3. by agreement of the parties.
   
   
3. The director may only appoint the panel in terms of subsection (2)(a) if the director has reasonable grounds to believe that any one or more of the following circumstances exists:
   1. The strike or lockout is no longer functional to collective bargaining in that it has continued for a protracted period of time and no resolution of the dispute appears to be imminent;
   2. there is an imminent threat that constitutional rights may be or are being violated by persons participating in or supporting the strike or lockout through the threat or use of violence or the threat of or damage to property; or
   3. the strike or lockout causes or has the imminent potential to cause or exacerbate an acute national or local crisis affecting the conditions for the normal social and economic functioning of the community or society.
   
   
4. The Labour Court may only make an order requiring the director to appoint the panel in terms of subsection (2)(b) -
   1. on application made by a person or association of persons that will be materially affected by any one or more of the circumstances contemplated in subsection (3)(b) and (c); and
   2. if the Court considers that there are reasonable grounds that any one or more of the circumstances contemplated in subsection (3)(b) and (c) exist.
   
   
5. A person may not apply to any court of law to stay or review the establishment or proceedings of an advisory arbitration panel until the panel has issued its award.

150B.   Composition of advisory arbitration panel

1. The panel contemplated in section 150A(1) must consist of -
   1. a senior commissioner as the chairperson of the panel; and
   2. subject to subsection (2) -
   
   
   1. an assessor appointed by the employer party to the dispute; and
   2. an assessor appointed by the trade union party to the dispute.
   
   
2. If the employer or trade union party to the dispute fails or refuses to appoint an assessor within the prescribed time period, the director must appoint an assessor from the relevant list of assessors determined in terms of subsection (3).


3. NEDLAC must, in the prescribed manner, provide the director with two lists of assessors which shall consist of -
   1. the employer list of assessors which must be determined by organised business as defined in section 1 of the National Economic Development and Labour Advisory Act, 1994 (Act No 35 of 1994); and
   2. the trade union list of assessors which must be determined by organised labour as defined in section 1 of the Act referred to in paragraph (a).
   
   
4. If the employer or trade union party to the dispute fails or refuses to participate in the proceedings of the panel established in terms of section 150A, the director must appoint a person with the requisite expertise to represent the interests of that party in the proceedings.


5. The chairperson of the panel, after consultation with the assessors appointed in terms of this section, may -
   1. conduct the arbitration in a manner that the chairperson considers appropriate in order to make an advisory award fairly and quickly but must deal with the substantial merits of the dispute with minimal legal formalities;
   2. exercise the powers of a commissioner under section 142;
   3. order the disclosure of all relevant information -
      1. subject to section 16(5),(10),(11),(12) and (13); and
      2. only if that information is necessary in order to make the factual finding and recommendations contemplated in section 150C(1)(a) and (b).
      
      
6. The panel must conduct its proceedings and issue an award within seven days of the arbitration hearing or any reasonable period extended by the director as the case may be, taking into account the urgency of a resolution of the dispute arising from the circumstances contemplated in section 150A(3)(a) to (c).


7. The appointment of the panel does not interrupt or suspend the right to strike or the recourse to lockout in accordance with Chapter IV.

150C.   Advisory arbitration award

1. An award must be in the prescribed form and include -
   1. a report on factual findings;
   2. recommendations for the resolution of the dispute;
   3. motivation for why the recommendations ought to be accepted by the parties; and
   4. the seven-day period within which the parties to the dispute must either indicate acceptance or rejection of the award.
   
   
2. If the chairperson is not able to secure consensus of both assessors in respect of the award contemplated in subsection (1), the chairperson must issue the award on behalf of the panel.


3. The chairperson must serve the advisory arbitration award on the parties to the dispute to allow them to consider the award and consult and take such measures as may be necessary to ensure that the award is not made publicly available before the Minister has published the award in terms of subsection (7).


4. A party to the dispute may apply to the chairperson in the prescribed form for an extension of the time period in subsection (1)(d) for no more than five days.


5.  
   1. The parties to the dispute may indicate their acceptance or rejection of the award within the period contemplated in subsection (1)(d).
   2. If a party to the dispute fails to indicate either its acceptance or rejection of the award within the period contemplated in subsection (1)(d), the party is deemed to have accepted the award.
   3. If a party rejects the award, it must motivate its rejection in the prescribed manner.
   
   
6. An employers' organisation or trade union party to a dispute must, in accordance with its constitution, consult with its members before rejecting an award in terms of subsection (5)(a).


7. The Minister must, within four days of the award being issued, publish the award in the prescribed manner for public dissemination.


8. Nothing in this section may be construed to prevent any party to the dispute to request the panel to reconvene in order to seek an explanation of the award or to mediate a settlement of the dispute based on the award or a variation of the award.

150D.   Effect of advisory arbitration award

1. An advisory arbitration award is only binding on a party and its members to the dispute if -
   1. one or more of the -
      1. trade unions party to the dispute has accepted or deemed to have accepted the award in terms of section 150C(5)(b) or subsection (2); or
      2. employer organisations party to the dispute has accepted or is deemed to have accepted the award in terms of section 150C(5)(b); or
      
      
   2. it is binding in terms of subsection (3) or 150C(5)(b).
   
   
2. Subject to subsection (3), the binding nature of an advisory arbitration award is determined in accordance with section 23 as if the award is a collective agreement for the purposes of that section.


3. If the parties to the dispute are parties to a bargaining council -
   1. the binding nature of an award is determined in accordance with section 31 as if the award is a collective agreement for the purposes of that section;
   2. the bargaining council may, subject to paragraph (c), apply to the Minister to have the award extended in accordance with section 32 as if the award is a collective agreement for the purposes of that section, to persons who -
      1. are not members of the parties to the council; or
      2. have rejected the award in terms of section 150C(5)(c) ;
      
      
   3. the Minister may extend the advisory arbitration award in accordance with section 32 as if the award is a collective agreement for the purposes of that section if the parties have been deemed to have accepted the award in terms of section 150C(5)(b).