Dispute Resolution and the Labour Relations Act

EXTRACTS FROM THE LABOUR RELATIONS ACT - Dispute Resolution

CONTENTS:

Chapter VII

Part A-Commission For Conciliation, Mediation And Arbitration

112. Establishment of Commission for Conciliation, Mediation and Arbitration
113. Independence of Commission
114. Area of jurisdiction and offices of Commission
115. Functions of Commission
116. Governing body of Commission
117. Commissioners of Commission
118. Director of Commission
119. Acting director of Commission
120. Staff of Commission
121. Establishment of committees of Commission
122. Finances of Commission
123. Circumstances in which Commission may charge fees
124. Contracting by Commission, and Commission working in association with any person
125. Delegation of governing body's powers, functions and duties
126. Limitation of liability and limitation on disclosure of information

Part B-Accreditation Of And Subsidy To Councils And Private Agencies

127. Accreditation of councils and private agencies
128. General provisions relating to accreditation
129. Amendment of accreditation
130. Withdrawal of accreditation
131. Application to renew accreditation
132. Subsidy to council or private agency

Part C-Resolution Of Disputes Under Auspices Of Commission

133. Resolution of disputes under auspices of Commission
134. Disputes about matters of mutual interest
135. Resolution of disputes through conciliation
136. Appointment of commissioner to resolve dispute through arbitration
137. Appointment of senior commissioner to resolve dispute through arbitration
138. General provisions for arbitration proceedings
139. Special provisions for arbitrating disputes in essential services
140. Special provisions for arbitrations about dismissals for reasons related to conduct or capacity
141. Resolution of disputes if parties consent to arbitration under auspices of Commission
142. Powers of commissioner when attempting to resolve disputes
143. Effect of arbitration awards
144. Variation and rescission of arbitration awards
145. Review of arbitration awards
146. Exclusion of Arbitration Act
147. Performance of dispute resolution functions by Commission in exceptional circumstances
148. Commission may provide advice
149. Commission may provide assistance
150. Commission may offer to resolve

Schedule 3 - Commission For Conciliation, Mediation & Arbitration

1 . Remuneration and allowances of members of governing body
2. Resignation and removal from office of member of governing body
3. Vacancies in governing body
4. Proceedings of governing body
5. Director of Commission
6. Bank account
7. Investment of surplus money
8. Accounting and auditing
9. Annual report
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EXTRACT FROM THE LABOUR RELATIONS ACT:

Part A-Commission For Conciliation, Mediation And Arbitration

112. Establishment of Commission for Conciliation, Mediation and Arbitration

The Commission for Conciliation, Mediation and Arbitration is hereby established as a juristic person.

113. Independence of Commission

The Commission is independent of the State, any political party, trade union, employer,

employers' organisation, federation of trade unions or federation of employers' organisations.

114. Area of jurisdiction and offices of Commission

(1) The Commission has jurisdiction in all the provinces of the Republic.

(2) The Minister, after consulting the governing body, must determine the location for the Commission's head office.

(3) The Commission must maintain an office in each province of the Republic and as many local offices as it considers necessary.

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115. Functions of Commission

(1) The Commission must-

(a) attempt to resolve, through conciliation, any dispute referred to it in terms of this Act;
(b) if a dispute that has been referred to it remains unresolved after conciliation, arbitrate the dispute if-

(i) this Act requires arbitration and any party to the dispute has requested that the dispute be resolved through arbitration; or
(ii) all the parties to a dispute in respect of which the Labour Court has jurisdiction consent to arbitration under the auspices of the Commission;

(c) assist in the establishment of workplace forums in the manner contemplated in Chapter V; and
(d) compile and publish information and statistics about its activities.

(2) The Commission may-

(a) if asked, advise a party to a dispute about the procedure to follow in terms of this Act;
(b) if asked, assist a party to a dispute to obtain legal advice, assistance or representation;
(c) offer to resolve a dispute that has not been referred to the Commission through conciliation;
(d) accredit councils or private agencies;
(e) subsidise accredited councils or accredited agencies; conduct, oversee or scrutinise any election or ballot of a registered trade union or registered employers' organisation if asked to do so by that trade union or employers' organisation;
(g) publish guidelines in relation to any matter dealt with in this Act;
(h) conduct and publish research into matters relevant to its functions; and
(i) sexual harassment in the workplace.

(3) If asked, the Commission may provide employees, employers, registered trade unions, registered employers' organisations, federations of trade unions, federations of employers' organisations or councils with advice or training relating to the primary objects of this Act, including but not limited to

(a) establishing collective bargaining structures;

(b) designing, establishing and electing workplace forums and creating deadlock-breaking mechanisms;
(c) the functioning of workplace forums;
(d) preventing and resolving disputes and employees' grievances;
(e) disciplinary procedures;
(f) procedures in relation to dismissals;
(g) the process of restructuring the workplace;
(h) affirmative action and equal opportunity programmes; and
(i) sexual harassment in the workplace.

(4) The Commission must perform any other duties imposed, and may exercise any other powers conferred, on it by or in terms of this Act and is competent to perform any other function entrusted to it by any other law.

(5) The governing body's rules of procedure, the terms of appointment of its members and other administrative matters are dealt with in Schedule 3.

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116. Governing body of Commission

(1) The Commission will be governed by the governing body, whose acts are acts of the Commission.26

(2) The governing body consists of

(a) a chairperson and nine other members, each nominated by NEDLAC and appointed 27 by the Minister to hold office for a period of three years; and

(b) the director of the Commission, who-

(i) is a member of the governing body only by virtue of having been appointed director; and
(ii) may not vote at meetings of the governing body.

(3) NEDLAC must nominate

(a) one independent person for the office of chairperson;

26. See item 4 of Schedule 3 for the governing body's rules of procedure.

27. See items 1 to 3 of Schedule 3 for the terms of appointment of members of the governing body.

(b) three persons proposed by those voting members of NEDLAC who represent organised labour; and

(d) three persons proposed by those voting members of NEDLAC who represent the State.

117. Commissioners of Commission

(1) The governing body must appoint as Commissioners as many adequately qualified persons as it considers necessary to perform the functions of commissioners by or in terms of this Act or any other law.

(2) The governing body-

(a) may appoint each commissioner-

(i) on either a full-time or a part-time basis; and
(ii) to be either a commissioner or a senior commissioner;

(b) must appoint each commissioner for a fixed term determined by the governing body at the time of appointment;

(d) when making appointments, must have due regard to the need to constitute a Commission that is independent and competent and representative in respect of race and gender.

(3) Any reference in this Act to a commissioner must be interpreted also to mean a senior commissioner, unless otherwise indicated.

(4) The governing body must determine the commissioners' remuneration, allowances and any other terms and conditions of appointment not contained in this section.

(5) A commissioner may resign by giving written notice to the governing body.

(6) The governing body must prepare a code of conduct for the commissioners and ensure that they comply with the code of conduct in performing their functions.

(7) The governing body may remove a commissioner from office for-

(a) serious misconduct;
(b) incapacity; or
(c) a material violation of the Commission's code of conduct.

(8) Each commissioner is responsible to the director for the performance of the commissioner's functions.

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118. Director of Commission

(1) The governing body must appoint, as director of the Commission, a person who

(a) is skilled and experienced in labour relations and dispute resolution; and

(b) has not been convicted of any offence involving dishonesty.

(2) The director must(a) perform the functions that are

(i) conferred on the director by or in terms of this Act or by any other law;
(ii) delegated to the director by the governing body;

(b) manage and direct the activities of the Commission; and

(3) The governing body must determine the director's remuneration, allowances and any other terms and conditions of appointment not contained in Schedule 3.

(4) A person appointed director automatically holds the office of a senior commissioner.

(5) Despite subsection (4), the provisions of section 117, with the exception of section 117(6), do not apply to the director.

119. Acting director of Commission

(1) The chairperson of the governing body may appoint any suitable person to act as director whenever

(a) the director is absent from the Republic or from duty, or for any reason is temporarily unable to perform the functions of director; or
(b) the office of director is vacant.

(2) Only a senior commissioner may be appointed as acting director.

(3) An acting director is competent to exercise and perform any of the powers and functions of the director.

120. Staff of Commission

(1) The director may appoint staff after consulting the governing body.

(2) The governing body must determine the remuneration and allowances and any other terms and conditions of appointment of staff members.

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121. Establishment of committees of Commission

(1) The governing body may establish committees to assist the Commission.

(2) A committee may consist of any combination of the following persons-

(a) a member of the governing body;
(b) the director;
(c) a commissioner;
(d) a staff member of the Commission; and
(e) any other person.

(3) The governing body must determine the remuneration and allowances and any other terms and conditions of appointment of committee members referred to in subsection (2)(e).

(4) The governing body may at any time vary or set aside a decision of a committee.

(5) The governing body may dissolve any committee.

122. Finances of Commission

(1) The Commission will be financed and provided with working capital from-

(a) the moneys that the Minister, with the agreement of the Minister of Finance, must allocate to the Commission from public funds at the commencement of this Act;
(b) the moneys that Parliament may appropriate to the Commission from time to time;
(c) fees payable to the Commission in terms of this Act;
(d) grants, donations and bequests made to it; and
(e) income earned on the surplus moneys deposited or invested.

(2) The financial year of the Commission begins on I April in each year and ends on 31 March of the following year, except the first financial year which begins on the day this Act commences and ends on the first following 31 March.

(3) In each financial year, at a time determined by the Minister, the Commission must submit to the Minister a statement of the Commission's estimated income and expenditure, and requested appropriation from Parliament, for the following financial year.

123. Circumstances in which Commission may charge fees

(1) The Commission may charge a fee only for-

(a) resolving disputes which are referred to it, In circumstances in which this Act allows the Commission, or a commissioner, to charge a fee;
(b) conducting, overseeing or scrutinising any election or ballot at the request of a registered trade union or employers' organisation; and
(c) providing advice or training in terms of section 115(3).

(2) The Commission may not charge a fee unless-

(a) the governing body has established a tariff of fees; and
(b) the fee that is charged is in accordance with that tariff.

(3) The Commission must publish the tariff in the Government Gazette.

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124. Contracting by Commission, and Commission working in association with any person

(1) The governing body may-

(a) contract with any person to do work for the Commission; and
(b) perform any function of the Commission in association with any person.

(2) Every person with whom the Commission contracts or associates is bound by the requirement of independence that binds the Commission.

125. Delegation of governing body's powers, functions and duties

(1) The governing body may delegate in writing any of its functions, other than the functions listed below, to any member of the governing body, the director, a commissioner, or any committee established by the Commission. The functions that the governing body may not delegate are-

(a) appointing the director;
(b) appointing commissioners, or removing a commissioner from office;
(c) depositing or investing surplus money;
(d) accrediting councils or private agencies, or amending, withdrawing or renewing their accreditation; or
(e) subsidising accredited councils or accredited agencies.

(2) The governing body may attach conditions to a delegation and may amend or revoke a delegation at any time.

(3) A function delegated to the director may be performed by any commissioner or staff member of the Commission authorised by the director, unless the terms of that delegation prevent the director from doing so.

(4) The governing body may vary or set aside any decision made by a person acting in terms of any delegation made in terms of subsection (1).

(5) The governing body, by delegating any function, is not divested of any of its powers, nor is it relieved of any function or duty that it may have delegated. This rule also applies if the director sub-delegates the performance of a function in terms of subsection (3).

126. Limitation of liability and limitation on disclosure of information

(1) In this section, "the Commission" means-

(a) the governing body;
(b) a member of the governing body;
(c) the director;
(d) a commissioner;
(e) a staff member of the Commission;
(f) a member of any committee established by the governing body; and
(g) any person with whom the governing body has contracted to do work for, or in association with whom it performs a function of, the Commission.

(2) The Commission is not liable for any loss suffered by any person as a result of any act performed or omitted in good faith in the course of exercising the functions of the Commission.

(3) The Commission may not disclose to any person or in any court any information, knowledge or document that it acquired on a confidential basis or without prejudice in the course of performing its functions except on the order of a court.

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Part B-Accreditation Of And Subsidy To Councils And Private Agencies

127. Accreditation of councils and private agencies

(1) Any council or private agency may apply to the governing body in the prescribed form for accreditation to perform any of the following functions-

(a) resolving disputes through conciliation; and
(b) arbitrating disputes that remain unresolved after conciliation, if this Act requires arbitration.

(2) For the purposes of this section, the reference to disputes must be interpreted to exclude disputes as contemplated in-

(a) sections 16, 21 and 22;28
(b) section 24(2) to (5);29
(c) section 24(6) and (7) and section 26(11);30
(d) section 45;31
(e) section 61(5) to (8) ;32
(f) section 62;33

28. These sections deal with disputes about organisational rights.

29. These subsections deal with disputes about collective agreements where the agreement does not provide for a procedure, the procedure is inoperative or any party frustrates the resolution of the dispute.

30. These subsections deal with disputes about agency shops and closed shops.

31. This section deals with disputes about determinations made by the Minister in respect of proposals made by a statutory council.

32. These subsections deal with disputes about the interpretation or application of collective agreements of a council whose registration has been cancelled.

33. This section deals with disputes about the demarcation of sectors and areas of councils.

(g) section 63 ;34
(h) section 69(8) to (10);35
(i) section 86; 36
(j) section 89;37
(k) section 94.38

(3) The governing body may require further information in support and, for that purpose, may require the applicant to attend one or more meetings of the governing body.

(4) The governing body may accredit an applicant to perform any function for which it seeks accreditation, after considering the application, any further information provided by the applicant and whether-

(a) the services provided by the applicant meet the Commission's standards;
(b) the applicant is able to conduct its activities effectively;
(c) the persons appointed by the applicant to perform those functions will do so in a manner independent of the State, any political party, trade union,

34. This section deals with disputes about the interpretation or application of Parts C to IF of Chapter Ill. Part C deals with bargaining councils, Part D with bargaining councils in the public service, Part E with statutory councils and Part IF with general provisions concerning councils.

35. This section concerns disputes about pickets during strikes and lock-outs.

36. This section deals with disputes about proposals that are the subject of joint decision-making.

37. This section deals with disputes about the disclosure of information to workplace forums.

38. This section deals with disputes about the interpretation or application of Chapter V which deals with workplace forums. employer, employers' organisation, federation of trade unions or federation of employers' organisations;

(d) the persons appointed by the applicant to perform those functions will be competent to perform those functions and exercise any associated powers;
(e) the applicant has an acceptable code of conduct to govern the persons whom it appoints to perform those functions; the applicant uses acceptable disciplinary procedures to ensure that each person it appoints to perform those functions will subscribe, and adhere, to the code of conduct;
(g) the applicant promotes a service that is broadly representative of South African society; and
(h) if the applicant charges a fee to the users of its services, the fee is reasonable.

(5) If the governing body decides-

(a) to accredit the applicant, the governing body must-

(i) enter the applicant's name in the register of accredited councils or the register of accredited agencies;
(ii) issue a certificate of accreditation in the applicant's name stating the period and other terms of accreditation;
(iii) send the certificate to the applicant; and
(iv) as soon as practicable after the decision, publish the certificate of accreditation in the Government Gazette; or

(b) not to accredit the applicant, the governing body must advise the unsuccessful applicant in writing of its decision.

(6) The terms of accreditation must state the extent to which the provisions of each section in Part C of this Chapter apply to the accredited council or accredited agency.

(7) (a) Any person may inspect the registers and certificates of accredited councils and accredited agencies kept in the Commission's offices.

(b) The Commission must provide a certified copy of, or extract from, any of the documents referred to in paragraph (a) to any person who has paid the prescribed fee.

128. General provisions relating to accreditation

(1) (a) An accredited council or accredited agency may charge a fee for performing any of the functions for which it is accredited in circumstances in which this Act allows the Commission, or a commissioner, to charge a fee.

(b) A fee charged in terms of paragraph (a) must be in accordance with the tariff of fees determined by the Commission.

(2) (a) An accredited council, accredited agency, or any person engaged by either of them to perform the functions for which it has been accredited, is not liable for any loss suffered by any person as a result of any act performed or omitted in good faith in the course of exercising those functions.

(b) An accredited council, accredited agency, or any person engaged by either of them to perform the functions for which it has been accredited, may not disclose to any person or in any court any information, knowledge or document that it or that person acquired on a confidential basis or without prejudice in the course of performing those functions except on the order of a court.

129. Amendment of accreditation

(1) An accredited council or accredited agency may apply to the governing body in the prescribed form to amend its accreditation.

(2) The governing body must treat the application as an application in terms of section 127.

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130. Withdrawal of accreditation

If an accredited council or accredited agency fails to comply to a material extent with the terms of its accreditation, the governing body may withdraw its accreditation after having given reasonable notice of the withdrawal to that council or accredited agency.

131. Application to renew accreditation

(1) An accredited council or accredited agency may apply to the governing body in the prescribed form to renew its accreditation either in the current or in an amended form.

(2) The governing body must treat the application for renewal as an application in terms of section 127.

132. Subsidy to council or private agency

(1) Any accredited council or accredited agency, or council or private agency that has applied for accreditation, may apply to the governing body the prescribed form for a subsidy-

(a) for performing any function for which the council or private agency is accredited or for which it has applied for accreditation; and
(b) for training persons to perform those functions.

(2) The governing body may require further information in support of the application and, for that purpose, may require the applicant to attend one or more meetings of the governing body.

(3) The governing body may grant a subsidy to the applicant after considering the application, any further information provided by the applicant and-

(a) the need for the performance by the applicant of the functions for which it is accredited;
(b) the extent to which the public uses the applicant to perform the functions for which it is accredited;
(c) the cost to users for the performance by the applicant of the functions for which it is accredited;
(d) the reasons for seeking the subsidy;
(e) the amount requested; and the applicant's ability to manage its financial affairs in accordance with established accounting practice, principles and procedures.

(4) If the governing body decides-

(a) to grant a subsidy to the applicant, the governing body must-

(i) notify the applicant in writing of the amount, duration and the terms of the subsidy; and
(ii) as soon as practicable after the decision, publish the written notice in the Government Gazette; or

(b) not to grant a subsidy to the applicant, the governing body must advise the unsuccessful applicant in writing of its decision.

(5) A subsidy granted in terms of subsection (4)(a)-

(a) may not be paid to a council or private agency unless it has been accredited; and
(b) lapses at the end of the Commission's financial year within which it was granted.

(6) (a) Any person may inspect a written notice referred to in subsection (4)(a) in the Commission's offices.

(b) The Commission must provide a certified copy of, or extract from, any written notice referred to in paragraph (a) to any person who has paid the prescribed fee.

(7) If an accredited council or accredited agency fails to comply to a material extent with the terms of its subsidy, the governing body may withdraw the subsidy after having given reasonable notice of the withdrawal to that council or agency.

(8) (a) An accredited council or accredited agency that has been granted a subsidy may apply to the governing body in the prescribed form to renew its subsidy, either in the current or in an amended form and amount.

(b) The governing body must treat the application for renewal as an application in terms of subsections (1) to (4).

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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-

(a) any dispute referred to it in terms of section 134; and
(b) 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- I

(a) this Act requires that dispute to be arbitrated and any party to the dispute has requested that the dispute be resolved through arbitration; or
(b) all the parties to the dispute in respect of which the Labour Court has jurisdiction consent to arbitration under the auspices of the Commission.

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-

(a) on the one side-

(i) one or more trade unions;
(ii) one or more employees; or 2 one or more trade unions and one or more employees; and

(b) on the other side(i) one or more employers' organisations;

(ii) one or more employers; or
(iii) 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.

(3) The commissioner must determine a process to attempt to resolve the dispute, which may include

(a) mediating the dispute;

(b) conducting a fact-finding exercise; and
(c) making a recommendation to the parties, which may be in the form of an advisory arbitration award.

(4) In the conciliation proceedings a party to the dispute may appear in person or be represented only by a co-employee or by a member, an office-bearer or official of that party's trade union or employers' organisation and, if the party is a juristic person, by a director or an employee.

(5) At the end of the 30-day period or any further period agreed between the parties-

(a) the commissioner must issue a certificate stating whether or not the dispute has been resolved;
(b) 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
(c) the commissioner must file the original of that certificate with the Commission.

(6) (a) 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-

(i) to the appointment of a specific commissioner by the Commission to attempt to resolve the dispute through conciliation; and
(ii) to that commissioner's terms of reference.

(b) If the parties do not consent to either of those matters within the seven-day period, the Commission must as soon as possible-

(i) appoint a commissioner to attempt to resolve the dispute; and
(ii) 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-

(a) a commissioner has issued a certificate stating that the dispute remains unresolved; and
(b) any party to the dispute has requested that the dispute be resolved through arbitration.

(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 objects to the arbitration being conducted by the same commissioner who conciliated the dispute, may file an objection with the Commission and must satisfy the Commission that a copy of the objection has been served on all the other parties to the dispute.

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

(5) (a) 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.

(b) The stated preference contemplated in paragraph (a) must-

(i) be in writing;
(ii) list no more than five commissioners;
(iii) state that the request is made with the agreement of all the parties to the dispute; and
(iv) 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.

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137. Appointment of senior commissioner to resolve dispute through arbitration

(1) In the circumstances contemplated in section 136(l), 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-

(a) the nature of the questions of law raised by the dispute;
(b) the complexity of the dispute;
(c) whether there are conflicting arbitration awards that are relevant to the dispute; and
(d) the public interest.

(4) The director must notify the parties to the dispute of the decision and-

(a) if the application has been granted, appoint a senior commissioner to arbitrate the dispute; or
(b) if the application has been refused, confirm the appointment of the commissioner initially appointed.

(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) In any arbitration proceedings, a party to the dispute may appear in person or be represented only by a legal practitioner, a co-employee or by a member, office-bearer or official of that party's trade union or employers' organisation and, if the party is a person, by a director or an employee.

If a party to the dispute fails to appear in person or to be represented at the arbitration proceedings, and that party-

(a) had referred the dispute to the Commission, the commissioner may dismiss the matter; or
(b) had not referred the dispute to the Commission, the commissioner may-

(i) continue with the arbitration proceedings in the absence of that party; or
(ii) 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-

(a) the commissioner must issue an arbitration award with brief reasons, signed by that commissioner;
(b) 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
(c) the Commission must file the original of that award with the registrar of the Labour Court.

(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-

(a) that gives effect to any collective agreement;
(b) that gives effect to the provisions and primary objects of this Act;
(c) that includes, or is in the form of, a declaratory order.

(10) The commissioner may not include an order for costs in the arbitration award unless a party, or the person who represented that party in the arbitration proceedings, acted in a frivolous or vexatious manner-

(a) by proceeding with or defending the dispute in the arbitration proceedings;
(b) in its conduct during the arbitration proceedings.

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-

(a) within 30 days of the date of the certificate referred to in section 136(l)(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;
(b) 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
(c) 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) If the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee's conduct or capacity, the parties, despite section 138 (4), are not entitled to be represented by a legal practitioner in the arbitration proceedings unless-

(a) the commissioner and all the other parties consent; or
(b) the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering-

(i) the nature of the questions of law raised by the dispute;
(ii) the complexity of the dispute;
(iii) the public interest; and
(iv) the comparative ability of the opposing parties or their representatives to deal with the arbitration of the dispute.

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

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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 to arbitration under the auspices of the Commission.

(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 consent of all the parties to that agreement, unless the agreement itself provides otherwise.

(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) (a) 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-

(i) to stay those proceedings and refer the dispute to arbitration; or
(ii) 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.

(b) 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)(a) apply, the commissioner may make an award that the Labour Court could have made.

142. Powers of commissioner when attempting to resolve disputes

(1) A commissioner who has been appointed to attempt to resolve a dispute may-

(a) 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;
(b) 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;
(c) call, and if necessary subpoena, any expert to appear before the commissioner to give evidence relevant to the resolution of the dispute;
(d) 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;
(e) administer an oath or accept an affirmation from any person called to give evidence or be questioned; at any reasonable time, but only after obtaining the necessary written authorisation-

(i) 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
(ii) 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

(g) 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-

(a) specifically require the person named in it to appear before the commissioner;
(b) sufficiently identify the book, document or object to be produced; and
(c) state the date, time and place at which the person is to appear.

(3) The written authorisation referred to in subsection (1)(f)-

(a) 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-

(i) the nature of the dispute;
(ii) the relevance of any book, document or object to the resolution of the dispute;
(iii) the presence of any book, document or object on the premises; and
(iv) the need to enter, inspect or seize the book, document or object; and

(b) 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 book, document or object in terms of this section.

(7) 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.

(8) A person commits contempt of the Commission-

(a) 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;
(b) if, after having appeared in response to a subpoena, that person fails to remain in attendance until excused by the commissioner;
(c) by refusing to take the oath or to make an affirmation as a witness when a commissioner so requires;
(d) by refusing to answer any question fully and to the best of that person's knowledge and belief subject to subsection (6);
(e) if the person, without good cause, fails to produce any book, document or object specified in a subpoena to a commissioner; if the person willfully hinders a commissioner in performing any function conferred by or in terms of this Act;
(g) if the person insults, disparages or belittles a commissioner, or prejudices or improperly influences the proceedings or improperly anticipates the commissioner's award;
(h) by willfully interrupting the conciliation or arbitration proceedings or misbehaving in any other manner during those proceedings;
(i) by doing anything ease in relation to the Commission which, if done in relation to a court of law, would have been contempt of court.

(9) The Commission may refer any contempt to the Labour Court for an appropriate order.

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143. Effect of arbitration awards

(1) An arbitration award issued by a commissioner is final and binding and may be made an order of the Labour Court in terms of section 158(1)(c), unless it is an advisory arbitration award.

(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.

144. Variation and rescission of arbitration awards

Any commissioner who has issued an arbitration award, acting of the commissioner's own accord or, on the application of any affected party, may vary or rescind an arbitration award-

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

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-

(a) within six weeks of the date that the award was served on the applicant, unless the alleged defect involves corruption; or
(b) if the alleged defect involves corruption, within six weeks of the date that the applicant discovers the corruption.

(2) A defect referred to in subsection (1), means-

(a) that the commissioner-

(i) committed misconduct in relation to the duties of the commissioner as an arbitrator;
(ii) committed a gross irregularity in the conduct of the arbitration proceedings; or
(iii) exceeded the commissioner's powers; or

(b) 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-

(a) determine the dispute in the manner it considers appropriate; or
(b) make any order it considers appropriate about the procedures to be followed to determine the dispute.

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) (a) 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-

(i) refer the dispute for resolution in terms of the procedures provided for in that collective agreement; or
(ii) appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act.

(b) The Commission may charge the parties to a collective agreement a fee for performing the dispute resolution functions if-

(i) their collective agreement does not provide a procedure as required by section 24(1); 39 or
(ii) the procedure provided in the collective agreement is not operative.

(c) The Commission may charge a party to a collective agreement a fee if that party has frustrated the resolution of the dispute.

(2) (a) 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-

(i) refer the dispute to the council for resolution; or
(ii) appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act.

(b) 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) (a) 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-

(i) refer the dispute to the council for resolution; or
39. Section 24(l) states that every collective agreement must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement.
(ii) appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act.

(b) 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) (a) 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.

(b) In the circumstances contemplated in paragraph (a), the Commission has exclusive Jurisdiction to resolve that dispute.

(5) (a) 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 in terms of a collective agreement between the parties to the dispute, the Commission may-

(i) refer the dispute to the accredited agency for resolution; or
(ii) appoint a commissioner to resolve the dispute in terms of this Act.

(b) The Commission may-

(i) charge the accredited agency a fee for performing the dispute resolution functions if the accredited agency's dispute resolution procedures are not operative; and
(ii) review the continued accreditation of that agency.

(6) (a) 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-

(i) refer the dispute to the appropriate person or body for resolution through private dispute resolution procedures; or
(ii) appoint a commissioner to resolve the dispute in terms of this Act.

(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.

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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 (a) together with the Legal Aid Bard to arrange for advice or assistance by a legal practitioner;

(b) together with the Legal Aid Board, to arrange for a legal practitioner-

(i) to attempt to avoid or settle any proceedings being instituted against an employee or employer in terms of this Act;
(ii) to attempt to settle any proceedings instituted against an employee or employer in terms of this Act;
(iii) to institute on behalf of the employee or employer any proceedings in terms of this Act;
(iv) 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

(2) The Commission may provide the assistance referred to in subsection (1) after having considered-

(a) the nature of the questions of law raised by the dispute;

(b) the complexity of the dispute;

(d) 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 offer to resolve dispute through conciliation

(1) If the Commission is aware of a dispute that has not been referred to it, and if resolution of the dispute would be in the public interest, the Commission may offer to appoint a commissioner to attempt to resolve the dispute through conciliation.

(2) The Commission may appoint a commissioner only if all the parties to the dispute consent to that appointment.

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Schedule 3

Commission For Conciliation, Mediation & Arbitration

1. Remuneration and allowances of members of governing body The Minister, after consulting the Minister of Finance, must determine the remuneration and allowances and any other terms and conditions of appointment of members of the governing body.

2. Resignation and removal from office of member of governing body

(1) A member of the governing body may resign by giving notice to the governing body.

(2) The Minister, acting on the advice of NEDLAC, may remove a member of the governing body from office for

(a) serious misconduct;

(b) incapacity; or
(c) being absent from three consecutive meetings of the governing body without good cause or prior permission from the chairperson.

3. Vacancies in governing body

(1) A vacancy in the governing body exists whenever

(a) a member's term of office ends;
(b) a member's resignation takes effect;
(c) a member is removed from office; or
(d) a member dies.

(2) The Minister must fill a vacancy in the governing body as soon as is practicable.

In the meantime, the Commission's proceedings and decisions continue to be valid.

(3) If a vacancy-

(a) is owing to the end of a member's term of office, the Minister may reappoint the member, or appoint another person nominated by NEDLAC in accordance with section 116(2) and (3);
(b) is owing to any other cause, the Minister must appoint another person nominated by NEDLAC in accordance with section 116(2) and (3) to replace the member and serve the unexpired portion of the replaced member's term of office.

4. Proceedings of governing body

(1) The governing body must determine procedures for its meetings.

(2) A quorum for a meeting of the governing body is three members of the governing body. The quorum must include-

(a) one member who was nominated by those voting members of NEDLAC who represent organised business;
(b) one member who was nominated by those voting members of NEDLAC who represent organised labour; and
(c) one member who was nominated by those voting members of NEDLAC who represent the State.

(3) Despite sub-item (2), a meeting of the governing body may be held in the absence of any member representing organised business or organised labour or the State, if those members have agreed to the meeting proceeding in the absence of that member and to the issues which may be dealt with in the absence of that member.

(4) If the chairperson is absent from a meeting of the governing body, the members present must elect one of themselves to preside at that meeting, and at that meeting that member may exercise or perform any function of the chairperson.

(5) A defect or error in the appointment of a member of the Commission does not affect the validity of the Commission's proceedings or decisions.

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5. Director of Commission

(1) The director may resign by giving written notice to the governing body.

(2) The governing body may remove the director from office for-

(a) serious misconduct;
(b) incapacity;
(c) a material violation of the Commission's code of conduct; or
(d) being absent from three consecutive meetings of the governing body without good cause or prior permission from the chairperson.

(3) A vacancy in the office of director exists whenever-

(a) the director reaches the age of 65;
(b) the director's resignation takes effect;
(c) the governing body removes the director from office; or
(d) the director dies.

(4) The governing body must appoint a director in accordance with the provisions of section II 8 as soon as practicable after the office of the director becomes vacant.

6. Bank account

The governing body must open and maintain an account in the name of the Commission with a bank registered in the Republic, or with another registered financial institution approved by the Minister of Finance and, subject to item 7, must

(a) deposit to that account any money that the Commission receives; and
(b) make all payments on behalf of the Commission from that account.

7. Investment of surplus money

The governing body may resolve to invest any money that the Commission does not immediately require to meet current expenditure or contingencies

(a) on call or short-term deposit with any bank that meets the requirements stated in item 6;
(b) if the Minister, with the concurrence of the Minister of Finance, gives written approval of the duration and other terms of the investment, in an investment account with the Corporation for Public Deposits.

8. Accounting and auditing

The Commission must, to the standards of generally accepted accounting practice, principles and procedures

(a) keep books and records of its income, expenditure, assets and liabilities;
(b) as soon as practicable after the end of each financial year, prepare financial statements, including at least a statement of income and expenditure for the previous financial year and a balance sheet showing its assets, liabilities and financial position as at the end of the previous financial year-, and
(c) each year, arrange for the Auditor-General to audit its books and records of account and its financial statements.

9. Annual report

(1) As soon as practicable after the end of each financial year, the Commission must provide the Minister with a report concerning the activities and the financial position of the Commission during the previous financial year.

(2) The Minister must table the Commission's annual report in Parliament within 14 days of receiving it from the Commission, but if Parliament is not in session at that time, the Minister must table the report within 14 days of the beginning of the next session of Parliament.

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