Key Benefits:
(1) A claim that-
(a) the terms and conditions of employment in any trade or industry, either generally or in a particular area, have been settled by a collective labour agreement or by a decision of the Industrial Court;
(b) the parties to the collective labour agreement or the parties bound by the decision are, or represent, either generally or in that particular area, a substantial proportion of the employers and employees in that trade or industry, being employees of the description to which the agreement or the decision relates; or
(c) in respect of any employee of the description referred to in paragraph (b), an employer engaged in that trade or industry, or, where the operation of the collective labour agreement, or of the decision, is limited to a particular area, an employer so engaged in that area is not observing those terms and conditions,
may be referred, in writing, by, or on behalf of, any employer or employee who is adversely affected thereby, to the Industrial Court.
(2) A claim contemplated under subsection (1) may be referred to the Industrial Court only if-
(a) it has been referred to the Commissioner under section 7 for mediation; and
(b) it has not been resolved within 30 days of the referral to the Commissioner or within the extended period contemplated under section 8(2), as the case may be.
(3) If, in the opinion of the Court, a claim lodged with it for the purposes of this section does not contain sufficient particulars, the Court may require to be provided with further particulars of the claim and, where it does so, the claim shall be deemed, for the purposes of this Act, not to have been lodged with the Court in accordance with this section until the Court is satisfied that it has been provided with the particulars required.
32. Recognition at the workplace
(1) A trade union seeking recognition in terms of section 48 of the Trade Unions and Employers' Organizations Act may, in the prescribed form, apply to an employer for recognition.
(2) A copy of the application, together with proof that the request has been served on the employer, shall be submitted to the Commissioner.
(3) Within 30 days of receipt of the application, the employer shall, in the prescribed form, notify the trade union whether-
(a) it grants the trade union recognition as a collective bargaining agent in terms of section 48 of the Trade Unions and Employers' Organizations Act; or
(b) it refuses to grant the union recognition.
(4) Subject to subsection (5), an employer may only refuse to recognise a trade union on the grounds that-
(a) the trade union does not represent at least one third of the employees of the employer; or
(b) the Industrial Court has authorised the withdrawal of recognition and the period contemplated in that order has not expired.
(5) Where a trade union is aggrieved by a decision made in terms of subsection (3)(b) or by the employer's failure to respond to the application within the 30 days stipulated under subsection (3), the union may refer the trade dispute to the Commissioner in the manner prescribed under section 7.
(6) If the dispute remains unresolved after 30 days of referral of the dispute, any party may refer the dispute to the Industrial Court for determination.
(7) If the dispute concerns whether the union represents at least one third of the employer's employees, the Industrial Court may direct the assigned mediator to conduct a ballot to determine the dispute.
33. Withdrawal of recognition at the workplace
(1) An employer may apply to the Commissioner to withdraw the recognition of a trade union on the grounds contemplated under section 48(8) of the Trade Unions and Employers' Organizations Act.
(2) The provisions of sections 7 and 8 shall apply to a mediation conducted in terms of this section.
(3) If the dispute remains unresolved for 30 days, the employer may refer the dispute to the Industrial Court for determination.
(4) The Industrial Court may-
(a) if the dispute concerns the trade union's representativeness,
(i) direct the Commissioner or the assigned mediator to conduct a ballot to determine the question, or
(ii) give the union an opportunity to achieve the one third representation contemplated in section 48 of the Trade Unions and Employers' Organizations Act; or
(b) if the dispute concerns a refusal to bargain or a material breach of a collective agreement-
(i) suspend or authorise the withdrawal of any of the organisational rights granted pursuant to recognition in terms of section 48B of the Trade Unions and Employers' Organizations Act; or
(ii) suspend or authorise the withdrawal of recognition.
(5) If the Industrial Court authorises a withdrawal of recognition, it shall include in its order, the period within which the union will not be entitled to recognition.
34. Recognition at the level of industry
(1) For the purposes of this section, a trade union includes two or more trade unions acting jointly.
(2) Any trade union seeking recognition in terms of section 48(A) of the Trade Unions and Employers' Organizations Act may, in the prescribed form, apply to the Commissioner for recognition in an industry.
(3) On receipt of the application, the Commissioner shall call for representations by-
(a) publishing a notice in the Gazette; and
(b) publishing a notice in a newspaper with national circulation.
(4) After considering the representations, the Commissioner shall call a meeting of all interested organisations and attempt to facilitate the establishment of a joint industrial council.
(5) If the Commissioner fails to establish a joint industrial council, he shall determine whether or not the trade union has at least one third of the employees in the industry as members.
(6) If the Commissioner is satisfied that the trade union represents at least one third of the employees in an industry, the Commissioner shall issue a certificate in the prescribed form, certifying that the union is a recognised trade union in the industry.
(7) A party aggrieved by a decision of the Commissioner granted in terms of this section may appeal to the Industrial Court against that decision.
35. Withdrawal of recognition at level of industry
(1) Any employer or employers' organisation may apply to the Commissioner to withdraw recognition granted under section 34 on the grounds that-
(a) subject to subsection (2), the trade union no longer represents one third of the employer's employees;
(b) the trade union refuses to negotiate in good faith with the employer;
(c) the trade union refuses or fails to comply with an arbitration award or an order of the Industrial Court applicable to the industry; or
(d) the trade union has materially breached a collective agreement concluded with an employer or an employers' organisation.
(2) Whether a trade union represents one third of an employer's employees or not, may be challenged only-
(a) one year after the Commissioner has issued a certificate in terms of section 34; or
(b) one year after an application in terms of this section to withdraw the union's recognition on grounds of representativeness.
(3) The employer or employers' organisation shall satisfy the Commissioner, in writing, that a copy of the application has been served on the recognised trade union.
(4) On receipt of the application, the Commissioner or labour officer delegated to do so shall-
(a) assign a mediator from the panel established under section 3, to attempt to resolve the dispute through mediation;
(b) determine the place, date and time of the first mediation meeting; and
(c) inform the parties to the dispute of the details contemplated under paragraphs (a) and (b).
(5) The provisions of sections 7 and 8 shall apply to a mediation conducted in terms of this section.
(6) If the dispute remains unresolved for 30 days, the employer or employers organisation may refer the dispute to the Industrial Court for determination.
(7) The Industrial Court may give any order it considers appropriate including-
(a) giving the trade union an opportunity to-
(i) remedy any breach, or
(ii) achieve the required threshold of representativeness, within a given period;
(b) the suspension or the authorisation of the withdrawal of any or all organisational rights granted pursuant to recognition in terms of the provisions of the Trade Unions and Employers' Organizations Act;
(c) the suspension or the authorisation of the withdrawal of recognition in respect of a particular employer; or
(d) the suspension or the authorisation of the withdrawal of recognition in respect of the whole industry.
(8) Where it is necessary to determine the representativeness of the trade union, the Industrial Court may direct the Commissioner or the assigned mediator to determine it by the conduct of a ballot.
(1) Where a union and an employer's organization consider themselves to be sufficiently representative of employees' and employers' interests in an industry, they may jointly apply in writing to the Commissioner for the establishment of a joint industrial council for that industry, and shall submit a copy of the proposed constitution of such joint industrial council with the application.
(2) On receipt of the application, the Commissioner shall consult any other interested parties and, after satisfying himself that the establishment of such a council is desirable and practicable, and that the proposed constitution is suitable, subject to any amendments that he may consider are desirable, and that all conditions required under this Act are met, he may, by notice published in the Gazette, establish and register a joint industrial council for the industry concerned.
(3) If the Commissioner does not consider that the establishment of the joint industrial council is desirable or practicable, and after hearing representations from any interested parties, he shall, as soon as possible, so inform the parties in writing, setting out the reasons for his decision.
(4) The constitution of a joint industrial council shall provide for the following matters-
(a) the industry or class or classes of employees to be covered by the council;
(b) the appointment, number and method of selection of employer and employee representatives;
(c) the appointment, number and method of selection of a chairman and deputy chairman of the council;
(d) the appointment and method of selection of a secretary or joint secretaries of the council;
(e) the procedure for the appointment of alternative members of the council;
(f) the number of members required to form a quorum;
(g) the procedure for the replacement of members;
(h) the term of office of members of the council and office holders;
(i) the procedure to be followed in the event of a dispute or deadlock in the council;
(j) the method by which persons affected by any collective agreement made or amended by the council shall be informed thereof;
(k) such other matters as may be included in the constitution by the party making the application and approved by the Commissioner, or as may be advised by the Commissioner.
(5) The Commissioner may, on the application of an interested party, and upon reasonable cause being shown, cancel the registration of a joint industrial council.
(6) Any interested party aggrieved by a decision of the Commissioner not to establish and register a joint industrial council, or a decision to cancel the registration of a joint industrial council, may appeal against such decision to the Minister.
