Labour Relations Amendment Act [No. 12 of 2002]


Government Gazette

REPUBLIC OF SOUTH AFRICA
Vol. 444 Cape Town 24 June 2002 No. 23540
THE PRESIDENCY
No. 848 24 June 2002
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
No. 12 of 2002: Labout Relations Amendment Act, 2002.


2 No. 23540 GOVERNMENT GAZETT , 24 JUNE 2002
Act No. 12,2002 LABOUR RELATIONS AMENDMENT ACT, 2002
GENERAL EXPLANATORY NOTE:
] Words in bold type in square brackets indicate omissions from existing enactments.
Words underlined with a solid line indicate insertions in existing enactments.
(English text signed by the President.) (Assented to 18 June 2002.)
ACT To amend the Labour Relations Act, 1995, so as to provide for-
the enforcement of collective bargaining agreements; the extension of the functions of bargaining councils so as to enhance the
effective enforcement of bargaining council agreements and to clarify the dispute resolution powers of bargaining councils;
the rationalisation of the registration and amalgamation of bargaining councils in the public service and for the resolution of jurisdictional disputes between such bargaining councils;
the extension of the information that bargaining councils must supply to the registrar and for the clarification of the registrar’s powers in respect of bargaining councils and in respect of registration and winding-up of employers’ organisations and trade unions;
the extension of the powers of the Commission to make rules concerning procedures;
the making of regulations by the Minister concerning representation at the Commission and the charging of fees by the Commission;
the making of settlement agreements into arbitration awards or Labour Court orders:
the exclusion of the application of the Arbitration Act, 1965, to bargaining council arbitrations;
the concurrent appointment of Labour Court judges as High Court judges: the regulation of the right of employees not to be subjected to unfair labour
the regulation of the resolution of disputes concerning an occupational
the clarification and revision of procedures for resolving disputes in respect of
the expediting of the resolution of disputes by the Commission by conciliation
the clarification of the compensation that may be awarded in respect of unfair
the clarification of the transfer of contracts of employment in the case of
a rebuttable presumption as to who is an employee;
practices;
detriment in terms of the Protected Disclosures Act, 2000;
dismissals based on the employer’s operational requirements;
or arbitration;
dismissals;
transfers of a business, trade or undertaking as a going concern;
and to provide for matters incidental thereto.
4 No. 23540 GOVERNMENT GAZETIT, 24 JUNE 2002
Act No. 12,2002 LABOUR RELATIONS AMENDMENT ACT, 2002
B E IT ENACTED by the Parliament of the Republic of South Africa, as follows:- Amendment of section 23 of Act 66 of 1995
1. Section 23 of the Labour Relations Act, 1995 (hereinafter referred to as the principal Act), is amended by the substitution for subsection (4) of the following 5 subsection:
“(4) Unless the collective agreement provides otherwise, any party to a collective agreement that is concluded for an indefinite period may terminate the agreement by giving reasonable notice in writing to the other parties.”.
Amendment of section 24 of Act 66 of 1995 10
2. Section 24 of the principal Act is amended by- ( a ) the substitution for subsection (1) of the following subsection:
“( 1) Every collective agreement excluding an agency shop agreement concluded in terms of section 25 or a closed shop agreement concluded in terms of section 26 or a settlement agreement contemplated in either 15 section 142A or 158(l)(c), must provide for a procedure to resolve any dispute about the interpretation or application of the collective agree- ment. The procedure must first require the parties to attempt to resolve the dispute through conciliation and, if the dispute remains unresolved, to resolve it through arbit ation.”; and 20
“(8) If there is a dispute about the interpretation or application of a settlement agreement contemplated in either section 142A or 158( l)(c), a party may refer the dispute to a council or the Commission and subsections (3) to ( 3 , with the necessary changes, apply to that 25 dismte.”.
(b) the addition of the following subsection:
Amendment of section 28 of Act 66 of 1995
3. Section 28 of the principal Act is amended by- ( a ) the deletion in subsection (1) after paragraph ( i ) of the word “and”; and ( 6 ) the addition t subsection (1) of the following paragraphs: 30
“ ( k ) to provide industrial support services within the sector; and (1) to extend the services and functions of the bargaining council to
workers in the informal sector and home workers.”.
Amendment of section 29 of Act 66 of 1995
4. Section 29 of the principal Actis amended by- 35 ( a ) the substitution for subsection (3) of the following subsection:
‘‘ (3) As soon as practicable after receiving the application, the registrar must publish a notice containing the material particulars of the application in the Government Gazette and send a copy of the notice to NEDLAC. The notice must inform the general public that they- 40 ( a ) may object to the application on any of the grounds referred to in
(b) have 30 days from the date of the notice to serve any objection on subsection (4); and
the registrar and a copy on the applicant.”; and (6) the addition of the following subsection: 45
“( 16) Subsections (3) to (10) and (1 l)(b)(iii) and (iv) do not apply to the registration or amalgamation of bargaining councils in the public service.”.
Amendment of section 32 of Act 66 of 1995, as amended by section 7 of Act 42 of 1996 and substituted by section 2 of Act 127 of 1998 50
5. Section 32 of the principal Act is amended by- ( a ) the substitution in subsection ( 5 ) for paragraph ( a ) of the following paragraph:
6 No. 23540 GOVERNMENT GAZETTE. 24 JUNE 2002
Act No. 12,2002 LABOUR ELATIONS AMENDMENT ACT, 2002
“(a) the parties to the bargaining council are sufficiently representative within the registered scope of the bargaining council [in the area in respect of which the extension is sought]; and”; and
(b) the addition of the following subsection: “( 10) If the parties to a collective agreement that has been extended in 5
terms of this section terminate the agreement, they must notify the Minister in writing.”.
Amendment of section 33 of Act 66 of 1995
6. Section 33 of the principal Act is amended by- ( a ) the substitution for subsection (1) of the following subsection: 10
“( 1) The Minister may at the request of a bargaining council appoint any person as the designated agent of that bargaining council to [help it enforce] promote, monitor and enforce compliance with any collective agreement concluded in that bargaining council.”;
( b ) the insertion after subsection (1) of the following subsection: 15 ‘‘(1A) A designated agent may-
( a ) secure compliance with the council’s collective agreements by- (i) publicising the contents of the agreements;
(ii) conducting inspections; (iii) investigating complaints; or (iv) any other means the council may adopt; and
20
(b ) perform any other functions that are conferred or imposed on the agent by the council.”; and
( c ) the substitution for subsection (3) of the following subsection: “(3) Within the registered scope of a bargaining council, a designated 25
agent of the bargaining council has all the powers [conferred on a commissioner by section 142, read with the changes required by the context, except the powers conferred by section 142(l)(c) and (d). Any reference in that subsection to the director for the purpose of this section, must be read as a reference to the secretary of the 30 bargaining council.] set out in Schedule 10.”.
Insertion of section 33A in Act 66 of 1995
7. The following section is inserted after section 33 of the principal Act:
“Enforcement of collective agreements by bargaining councils
33A. ( 1 ) Despite any other provision in this Act, a bargaining council may monitor and enforce compliance with its collective agreetnents in terms of this section or a collective agreement concluded by the parties to the council.
( 2 ) For the purposes of this section, a collective agreement is deemed to include- ( a ) any basic condition of employment which in terms of section 49( 1) of
the Basic Conditions of Emplovment Act constitutes a term of employment of any employee covered by the collective agreetnent; and
( b ) the rules of any fund or scheme established by the bargaining council. (3) A collective agreement in terms of this section may authorise a
designated agent appointed in terms of section 33 to issue a compliance order requiring any person bound by that collective agreement to comply with the collectitle agreetnent within a specified period.
( 3 ) ( a ) The council may refer any unresolved dispute concerning compliance with any provision of a collective agreement to arbitration by an arbitrator appointed by the council.
(6) If a party to an arbitration in terms of this section, that is not a party to the council. objects to the appointment of an arbitrator in terms of
35
40
45
50
8 No. 23540 GOVERNMENT GAZETTE, 24 JUNE 200
Act No. 12,2002 LABOUR ELATIONS AMENDMENT ACT, 2002
paragraph (a) , the Commission, on request by the council, must appoint an arbitrator.
( c ) If an arbitrator is appointed in terms of subparagraph (b)- (i) the Council remains liable for the payment of the arbitrator’s fee;
(ii) the arbitration is not conducted under the auspices of the
(5) An arbitrator conducting an arbitration in terms of this section has the powers of a commissioner in terms of section 142, read with the changes required by the context.
(6) Section 138, read with the changes required by the context, applies to any arbitration conducted in terms of this section.
(7) An arbitrator acting in terms of this section may determine any dispute concerning the interpretation or application of a collecrive agreement.
(8) An arbitrator conducting an arbitration in terms of this section may make an appropriate award, including- ( a ) ordering any person to pay any amount owing in terms of a collective
(b) imposing a fine for a failure to comply with a collective agreement in
( c ) charging a party an arbitration fee; ( d ) ordering a party to pay the costs of the arbitration; (e) confirming, varying or setting aside a compliance order issued by a
(fl any award contemplated in section 138(9). (9) Interest on any amount that a person is obliged to pay in terms of a
collective agreement accrues from the date on which the amount was due and payable at the rate prescribed in terms of section 1 of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), unless the arbitration award provides otherwise.
(10) An award in an arbitration conducted in terms of this section is final and binding and may be enforced in terms of section 143.
( 1 1 ) Any reference in section 138 or 142 to the director must be read as a reference to the secretary of the burgaining council.
( 12) If an employer upon whom a fine has been imposed in terms of this section files an application to review and set aside an award made in terms of subsection (8), any obligation to pay a fine is suspended pending the outcome of the application.
(13) ( a ) The Minister may, after consulting NEDLAC, publish in the Government Gazette a notice that sets out the maximum fines that may be imposed by an arbitrator acting in terms of this section.
( 0 ) A notice in terms of paragraph ( a ) may specify the maximum fine thaf may be imposed- (i) for a breach of a collective agreement-
and
Commission.
agreement;
accordance with subsection (1 3);
designated agent in accordance with subsection (4);
(aa) not involving a failure to pay any amount of money; (bb) involving a failure to pay any amount of money; and
subparagraph (i).”. (i i) for repeated breaches of the collecrive agreement contemplated ic
5
10
15
20
25
30
35
40
45
Substitution of section 37 of Act 66 of 1995, as substituted by section 8 of Act 42 of 50 1996
8. The following section is substituted for section 37 of the principal Act:
“Bargaining councils in sectors in public service
bargaining council; and
councils so established. ( 0 ) vary the designation of, amalgamate or disestablish bargaining
10 No. 23510
I
GOVERNMENT GAZETTE, 24 JUNE 2002
Act No. 12,2002 LABOUR RELATIONS AMENDMENT ACT, 2002
( 2 ) A bargaining council for a sector designated in terms of subsection (l)(a) must be established in terms of the constitution of the Public Service Co-ordinating Bargaining Council.
(3) If the parties in the sector cannot agree to a constitution for the bargaining council for a sector designated in terms of subsection (l)(a), the Registrar must determine its constitution.
(4) The relevant resolution made in terms of subsection (1) must accompany any application to register or vary the registration of a bargair7ing council or to register an amalgamated bargaining council.
( 5 ) A bargaining council established in terms of subsection (2) has exclusive jurisdiction in respect of matters that are specific to that sector and in respect of which the State as employer in that sector, has the requisite authority to conclude collective agreements and resolve labour disputes.”.
Substitution of section 38 of Act 66 of 1995
5
10
i
9. The following section is substituted for section 38 of the principal Act: 15
“Disputes between bargaining councils in public service
38. ( 1 ) If there is a jurisdictional dispute between two or more bargaining councils in the public service, including the Public Service Co-ordinating Bargaining Council, any party to the dispute may refer the dispute in writing to the Commission.
(2) The party who refers the dispute to the Commission must satisfy the Commission that a copy of the referral has been served on all other bargaining courzcils that are parties to the dispute.
(3) The Commission must attempt to resolve the dispute as soon as possible through conciliation.
(4) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration by the Commis- sion.”. -
20
25
Amendment of section 44 of Act 66 of 1995
10. Section 44 of the principal Act is amended by- 30 ( c r ) the substitution for subsection (1) of the following subsection:
“( 1 ) A statutory council that is not sufficiently representative within its registered scope may submit a collective agreement on any of the matters mentioned in section 43(l)(a), ( 6 ) or ( c ) to the Minister. The Minister [will] must treat the collective agreement as a recommendation made by 35 the [wage board] Employment Conditions Commission in terms of section 54(4) of the [Wage Act] Basic Conditions of Emplovrnent Act.”; and
( 0 ) the substitution for subsection (2) of the following subsection: “(2) The Minister may promulgate the staruton council’s recommen- 40
dations as a determination under the [Wage Act] Basic Conditions of Emplovrnent Act if satisfied that the statutory council has complied with [sections 7 and 91 section 54(3) of the [Wage Act] Basic Conditions of Etnploytlenr Act. [For that purpose the provisions of sections 7 and 9 to 12 of the Wage Act] read with the changes required by the context 45 [apply to the statutory council as if it was the wage board].”.
Amendment of section 49 of Act 66 of 1995
11. Section 49 of the principal Act is amended by- ( a ) the substitution for subsection (2) of the following subsection:
“(2) A bargaining council having a collective agreement that has been 50 extended by the Minister in terms of section 32, must inform the registrar annually, in writing, on a date to be determined by the registrar as to the number of employees who are-
12 No. 23540 GOVERNMENT GAZE’ITE, 24 JUNE 2002
Act No. 12.2002 LABOUR RELATIONS AMENDMENT ACT, 2002 ~ _ _ _ _ _ _ _
( a ) covered by the collective agreement; ( b ) members of the trade unions that are parties to the agreement; (c) employed by members of the employers ’ organisations that are
party to the agreement.”; ( 6 ) the substitution forsubsection (3) of the following subsection: 5
“(3) A bargaining council must on request by the registrar inform the registrar in writing within the period specified in the request as to the number of employees who are- ( a ) employed within the registered scope of the council; ( 6 ) members of the trade unions that are parties to the council; ( c ) employed by members of the employers’ organisations that are
10
party to the council.“; and (c ) the addition of the following subsections:
“(4) A determination of the representativeness of a bargaining council in terms of this section is sufficient proof of the representativeness of the council for the year following the determination.
(5) This section does not apply to the public service.”.
Amendment of section 51 of Act 66 of 1995, as amended by section 11 of Act 42 of 1996
12. Section 51 of the principal Act is amended by the addition of the following
“(7) Subject to this Act, a council may not provide in a collective agreement for the referral of disputes to the Commission, without prior consultation with the director.
(8) Unless otherwise agreed to in a collective agreement, sections 142A and 143 to 146 apply to any arbitration conducted under the auspices of a bargaining council.
(9) A bargaining council may by collective agreement establish procedures to resolve any dispute contemplated in this section.”.”) and ( 2 )
subsections:
Amendment of section 53 of Act 66 of 1995, as amended by section 13 of Act 42 of 1996
13. Section 53 of the principal Act is amended by the addition of the following
“(6) A council must comply with subsections ( 1 ) to (5) in respect of all funds subsection:
established by it, except funds referred to in section 28(3).”.
Amendment of section 54 of Act 66 of 1995
14. Section 54 of the principal Act is amended by- ( a ) the deletion in subsection ( 2 ) after paragraph ( d ) of the word “and” and the
( b ) the addition to subsection (2 ) of the following paragraph: insertion after paragraph ( e ) of the word “and”;
“lf) each year and on a date to be determined by the registrar,
(i) the number of employees who are employed by small enterprises that fall within the registered scope of the council and the number of employees of those enterprises who are members of trade unions;
are covered by a collective agreement that was concluded by the council and extended by the Minister in terms of section 32;
(iii) the number of small enterprises that are members of the employers ’ organisations that are parties to the council; and
(iv) the number of applications for exemptions received from small enterprises and the number of applications that were granted and the number rejected.”; and
a report in the prescribed form specifying-
(ii) the number of employees employed by small enterprises that I
(c) the addition of the following subsections: “(4) If a council fails to comply with any of the provisions of section
49(2) or (31, section 53 or subsections (1) or ( 2 ) of this section, the registrar may-
15
20
25
30
35
40
45
?
50
55
14 No. 23540 GOVERNMENT GAZE’ITE, 24 JUNE 2002 ~~
Act No. 12,2002 LABOUR ELATIONS AMENDMENT ACT, 2002 ~~~
(a) conduct an inquiry into the affairs of that council; ( b ) order the production of the council S financial records and any other
(c) deliver a notice to the council requiring the council to comply with
( d ) compile a report on the affairs of the council; or ( e ) submit the report to the Labour Court in support of any application
( 5 ) The registrar may use the powers referred to in subsection (4) in respect of any fund established by a council, except a fund referred to in section 28(3).”.
relevant documents;
the provisions concerned;
made in terms of section 59(l)(b).
Amendment of section 58 of Act 66 of 1995, as amended by section 15 of Act 42 of 1996
15. Section 58 of the principal Act is amended by the addition of the following
“(3) Despite subsection (2), if within the stipulated period no material objection is lodged to any notice published by the registrar in terms of section 29(3), the registrar- ( i ) may vary the registered scope of the council;
(ii) may issue a certificate specifying the scope of the council as varied;
(iiiheed not comply with the procedure prescribed by section 29.”.
subsection:
and
Amendment of section 61 of Act 66 of 1995
16. Section 61 of the principal Act is amended by the addition of the following
“( 14) The registrar must cancel the registration of a bargaining council in the public senlice by removing its name from the register of councils when the registrar receives a resolution from the Public Service Co-ordinating Bargaining Council disestablishing a bargaining council established in terms of section 37(2).
(1 5 ) The provisions of subsections (3) to (7) do not apply to bargaining councils in the public service.”
subsections:
Amendment of section 68 of Act 66 of 1995
17. Section 68 of the principal Act is amended by the substitution in subsection (1) for
“(b) to order the payment of just and equitable compensation for any loss paragraph ( 6 ) of the following paragraph:
attributable to the strike or lock-out, or conduct, having regard t o - (i) whether-
(aa) attempts were made to comply with the provisions of this Chapter
(bb) the strike or lock-out or conduct was premeditated; (cc) the strike or lock-out or conduct was in response to unjustified
(dd) there was compliance with an order granted in terms of paragraph
and the extent of those attempts;
conduct by another party to the dispute: and
(a); (ii) the interests of orderly collective bargaining;
(iii) the duration of the strike or lock-out or conduct; and (iv) the financial position of the mployer, trade union or employees
respectively.”.
Amendment of section 95 of Act 66 of 1995
18. Section 95 of the principal Act is amended by the addition of the following subsections:
“(7) The registrar must not register a trade union or an employers’organisation unless the registrar is satisfied that the applicant is a genuine trade union or a I - genuine employers’ organisation.
_ _ I
5
10
15
20
25
30
35
40
45
50
16 No. 23530 GOVERNMENT GAZETTE. 24 JUNE 2002
Act No. 12,2002 LABOUR ELATIONS AMENDMENT ACT. 2002
(8) The Minister, in consultation with NEDLAC, may by notice in the Government Gazette publish guidelines to be applied by the registrar in determining whether an applicant is a genuine trade union or a genuine employers’ organisation.”.
Amendment of section 103 of Act 66 of 1995, as amended by section 30 of Act 42 of 5 1996
19. Section 103 of the principal Act is amended by- ( a ) the substitution for the heading of the following heading:
“Winding-up of [registeredl trade unions or [registered] employers’ organisations.”; 10
(b ) the substitution for subsection (1) of the following subsection: “(1) The Labour Court may order a [registered] trade union or
[registeredl emploJers ’ organisation to be wound up if- ( a ) the trade union or employers’orgcnisation has resolved to wind-up
its affairs and has applied to the Court for an order giving effect to 15 that resolution; or
(b) the registrar [of labour relations] or any member of the trade union or employers’ organisation has applied to the Court for its winding up and the Court is satisfied that the trade union or emylo~ers’organisation for some reason that cannot be remedied is 20 unable to continue to function.”;
(c) the insertion after subsection (1) of the following subsection: “(1A) If the registrar has cancelled the registration of a trade union or
employers’ organisation in terms of section 106(2A), any person opposing its winding-up is required to prove that the trade union or 25 emplowrs’ organisation is able to continue to function.”;
( d ) the substitution for subsection ( 5 ) of the following subsection: “(5) If, after all the liabilities of the [registered] trade union or
[registered] employers’ organisation have been discharged, any assets remain [that] which cannot be disposed of in accordance with the 30 constitution of that trade union or etnployers’organisation, the liquidator must realise those assets and pay the proceeds to the Commission for its own use.”; and
( e ) the addition of the following subsection: “ ( 6 ) (a) The Labour Court may direct that the costs of the registrar or 35
any other person who has brought an application in terms of subsection (1)(6) be paid from the assets of the trade union or employrs’ orgnnisation.
(6) Any costs in terms of paragraph (a) rank concurrently with the liquidator’s fees.”. 40
Amendment of section 105 of Act 66 of 1995
20. Section 105 of the principal Act is amended by the substitution for the heading of
‘*[Cancellation of registration of] Declaration that trade union [that] is no longer independent”. 45
the following heading:
Amendment of section 106 of Act 66 of 1995
21. Section 106 of the principal Act is amended by- ( a ) the substitution for subsection (1) of the following subsection:
“( 1 ) The registrar of the Labour Court must notify the registrar [of labour relations] if the Court- 50 (a) in terms of section 103 or 104 has ordered a registered trade union
(b) in terms of section 105 has declared that a registered trade union is or a registered employers’ organisation to be wound up; or
not independent.”; and (b ) the insertion after subsection (2) of the following subsections: 55
“(2A) The registrar may cancel the registration of a trade union or employers’ organisation by removing its name from the appropriate register if the registrar-
18 No. 23510 GOVERNMENT GAZETTE. 24 JUNE 200
Act No. 12,2002 LABOUR RELATIONS AMENDMENT ACT, 2002
(a J is satisfied that the trade union or employers ’ organisation is not. or has ceased to function as, a genuine trade union or emploxers’ organisation, as the case may be; or
(b) has issued a written notice requiring the trade union or emplorers’ organisation to comply with sections 98,99 and 100 within a period of 60 days of the notice and the trade union or employers ’ organisation has, despite the notice, not complied with those sections.
(2B) The registrar may not act in terms of subsection (2A) unless the registrar has published a notice in the Government Gazette at least 60 days prior to such action- (a) giving notice of the registrar’s intention to cancel the registration of
the trade union or employers’ organisation; and (6) inviting the trade union or employers’ organisation or any other
interested parties to make written representations as to why the registration should not be cancelled.”.
Amendment of section 115 of Act 66 of 1995, as amended by section 31 of Act 42 of 1996 and section 6 of Act 127 of 1998
22. Section 115 of the principal Act is amended by- ( ( I ) the insertion after subsection (2) of the following subsection:
“(2A) The Commission may make rulesregdatinp- ( c r ) the practice and procedure in connection with the resolution of a
dispute through conciliation or arbitration; (bJ the process by which conciliation is initiated, and the form. content
and use of that process; (c) the process by which arbitration or arbitration proceedings are
initiated. and the form, content and use of that process; ( d ) the joinder of any person having an interest in the dispute in any
conciliation and arbitration proceedings; ( e ) the intervention of any person as an applicant or respondent in
conciliation or arbitration proceedings; (f) the amendment of any citation and the substitution of any party for
another in conciliation or arbitration proceedings; (g) the hours during which offices of the Commission will be open to
receive any process: ( h ) any period that is not to be counted for the purpose of calculating
time or periods for delivering any process or notice relating to any proceedings;
( i ) the forms to be used by parties and the Commission: ( j ) the basis on which a commissioner may make any order as to costs
in any arbitration; f k ) the right of any person or category of persons to represent any party
in any conciliation or arbitration proceedings: ( 0 the circumstances in which the Commission may charge a fee in
relation to any conciliation or arbitration proceedings or for any services the Commission provides; and
( t u ) all other matters incidental to performing the functions of the Commission.”; and
( h ) the substitution for subsection (6) of the following subsection: “(6) ( a ) A rule made under subsection (2)fcA) or (2A) must be
published in the Government Gazette. The Commission will be responsible to ensure that the publication occurs.
10) A rule so made will not have any legal force or effect unless i t has been so published.
5
10
~
1 15
30
(c) A &le so made takes effect from the date of publication unless a later date is stipulated.”.
15
30
35
50
45
50
55
20 No. 23540 GOVERNMENT GAZETE. 24 JUNE 2002
Act No. 12,2002 LABOUR ELATIONS AMENDMENT ACT. 2002
23. Section 127 of the principal .4ct is amer?ded by- (a ) the deletion in subsection (5)(a) of subparagraph (iv); (b) the insertion after subsection (5 ) of the following subsection: and
“(5A) The governing body must annually publish a list of accredited councils a.nd accredited agencies.”.
Amendment of section 128 of Act 66 of 1995, as amended by section 34 of Act 42 of 1996
24. Section 128 of the principal Act is amended by- fa) the substitution in subsection (1) for paragraph (a) of the following paragraph:
‘ ‘(a) An accredited council or accredited agency may charge a fee for performing any of the functions for which it is accredited in circum- stances in which [section 140(2)] this Act allows a commissioner to charge a fee.”; and
(b) the addition of the following subsection: “(3) (a) (i) An accredited council may confer on any person appointed
by it to resolve a dispute, the powers of a commissioner in terms of section 142. read with the changes required by the context.
( i i ) For this purpose, any reference in that section to the director must be read as a reference to the secretary of the bargaining council.
(b ) An accredited private agency may confer on any person appointed by it to resolve a dispute, the powers of a commissioner in terms of section 142(1)fa) to ( e ) , (2) and (7) to (9), read with the changes required by the context.”.
Amendment of section 133 of Act 66 of 1995
25. Section 133 of the principal Act is amended by the substitution for subsection (2)
“(2) If a dispute remains unresolved after conciliation. the Commission must arbitrate the dispute if- (a ) this Act requires [that] & dispute to be arbitrated and any party to the ilispure
has requested that the dispute be resolved through arbitration; or (0) all the parties to the dispute in respect of which the Labour Collrt has
jurisdiction consent in writing to arbitration under the auspices of the Commission.”.
of the following subsection:
AmendmeEt of section 135 of Act 66 of 1995, as amended by section 36 of Act 42 of 1996 and section 8 of Act 127 of 1998
5
10
15
20
25
30
35
26. Section 135 of the principal Act is amended by the deletion of subsection (4).
Amendment of section 138 of Act 66 of 1995, as substituted by section 10 of Act 127 of 1998 40
27. Section 138 of the principal Act is amended by- ( a ) the deletion of subsection (4); ( b ) the substitution for subsection ( I O ) of the following subsection:
”( 10) The commissioner may make an order for the payment of costs
rules made by the Commission in terms of section 1 15(2A)(j) and having regard t o - (a) any relevant Code of Good Practice issued by NEDLAC in terms of
(h) any relevant guideline issued by the Commission. 50
according to the requirements of law and fairness in
section 203;
Amendment of section 140 of Act 66 of 1995
28. Section 140 of the principal Act is amended by the deletion of subsection ( 1 ).
,
i
22 No. 23510 GOVERNMENT GAZETTE, 24 JUNE 2002
Act No. 12,2002 LABOUR RELATIONS AMENDMENT ACT, 2002
Amendment of section 141 of Act 66 of 1995, as amended by section 39 of Act 42 of 1996
29. Section 141 of the principal Act is amended by- ( a ) the substitution for subsection (1) of the following subsection:
“( 1) If a dispute remains unresolved after conciliation, the Commis- 5 sion must arbitrate the dispute if a party to the dispute would otherwise be entitled to refer the dispure to the Labour Court for adjudication and. instead. all the parties agree in writing to arbitration under the auspices of the Commission.”; and
(b) the substitution for subsection (3) of the following subsection: 10 “(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.”.
Amendment of section 142 of Act 66 of 1995, as amended by section 40 of Act 42 of 1996 15
30. Section 142 of the principal Act is amended by- ( a ) the substitution for subsection (7) of the following subsection:
‘‘(7) (a) The Commission must pay the prescribed witness fee to each person who appears before a commissioner in response to a subpoena issued by the commiss oner. 20 (6) 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 nd who remains in
~~ ~~ ~ ~~ ~~~~
attendance until excused by the commissioner.
in paragraph ( 6 ) and pay to the witness the prescribed witness fee.”; ( c ) The Commission may on good cause shown waive the requirement 25
(0 ) the substitution for subsection (9) of the following subsection: . , c “(9) ( a , A commissioner may make a finding that a party is in
contempt of the Commission for any of the reasons set out in subsection 01 30 ~
(b) The commissioner may refer the finding. together with the record of the proceedinps, to the Labour Court for its decision in terms of subsection (1 11.’’; and
( c ) the addition of the following subsections: “( 10) Before making a decision in terms of subsection ( 1 1). the
Labour Court- ( a ) must subpoena any person found in contempt to appear before i t on
a date determined by the Court; (0) may subpoena any other person to appear before it on a date
determined by the Court: and ( c ) 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.
( 1 1 ) The Labour Court may confirm. vary or set aside the finding of a commissioner.
(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.”.
35
30
45
24 No. 23510 GCVERNMENr GAZETTE, 24 JUNE 2002
Act No. 12,2002 LABOUR RELATIONS AMENDMENT ACT, 2002
Insertion of section 142A in Act 66 of 1995
31. The foilowing section is inserted after section 142 of the principal Act:
“Making settlement agreement arbitration award
142A. (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 ( I ) , 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).”.
Amendment of section 143 of Act 66 of 1995
32. Section 143 of the principal Act is amended by- ( u ) the substitution for subsection (1) of the following subsection:
“ ( I ) 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, unless it is an advisory arbitration award.”; and
(b) the addition of the following subsections:
5
10
15
“(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 20 contemplated in subsection (1).
(4) If a party fails to comply with an arbitration award that orders the perfolmance of an act, other than the payment of an amount of money, anv other party to the award may enforce it by way of contempt proceedings instituted in the Labour Court.”. 25
Substitution of section 144 of Act 66 of 1995
33. The following section is substituted for section 144 of the principal Act:
“Variation and rescision of arbitration awards and rulings
144. Any commissioner who has issued an arbitration award[, acting of the] or ruling, or any other commissioner appointed by the direcror for that 30 purpose. may on that commissioner’s own accord or, on the application of any agected party, [may] vary or rescind an arbitration award or ruling- (a) erroneously sought or erroneously made in the absence of any party
(6) in which there is an ambiguity, or an obvious error or omission, but 35
( c ) granted as a result of a mistake common to the parties to the
affected by that award;
only to the extent of that ambiguity, error or omission: or
proceedings.”.
Amendment of section 145 of Act 66 of 1995
34. Section 145 of the principal Act is amended by the insertion after subsection (1) 40
“( 1A) The Labour Court may on good cause shown condone the late filing of an of the following subsection:
application in terms of subsection (l).”.
Amendment of section 150 of Act 66 of 1995
35. Section 150 of :he principal Act is amended by- 45 (a) the substitution for subsection (2) of the following subsection:
“(2) The Commission may offer to appoint a commissioner to assist the parties to resolve through further conciliation a dispute that has been referred to the Commission or a council and in respect of which- - (c: a certificate has been issued in terms of section 135(5)(a) stating 50
that the dispute remains unresolved; or
26 No. 23530 GOVERNMENT GAZETTE. 24 JUNE 2002
Act No. 12,2002 LABOUR RELATIONS AMENDMENT ACT. 2002
(bj the period contemplated in section 13x2) has elapsed;”; and (b) the addition of the following subsection:
“(3) The Commission may appoint a commissioner in terms of subsection ( I ) or ( 2 ) if all the parties to the dispute consent to that appointment.“.
Amendment of section 158 of Act 66 of 1995, as amended by section 44 of Act 42 of 1996
36. Section 158 of the principal Act is amended by- (a) the substitution in subsection ( 1 ) for paragraph (c) of the following paragraph:
“(c ) make any arbitration award or any settlement agreement[, other
( 6 ) the substitution in subsection ( I ) for paragraph (g ) of the following paragraph: “ (g ) [despite] subject to section 145. review the performance or
purported performance of any function provided for in this Acf [or any act or omission of any person or body in terms of this Act] on any grounds that are permissible in law:”: and
than a collective agreement,] an order of the Court;”;
(c) the insertion of the following subsection after subsection ( I ) : “( 1A) For the purposes of subsection (1 Mc), 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 only entitled to refer to arbitration in terms of section 22(4). 74(4) or 75(7).”.
Amendment of section 161 of Act 66 of 1995, as substituted by section 16 of Act 127 of 1998
37. Section I6 I of the principal Act is amended by the substitution for paragraph (d) of the following paragraph:
.‘(d) a designated agent or official of a cowzcil: or“.
Amendment of section 173 of Act 66 of 1995, as amended by section 22 of Act 127 of 1998
38. Section 173 of the principal Act is amended by the deletion of subsection (3).
Substitution of heading to Chapter VI11 of Act 66 of 1995
39. The following heading is substituted for the heading to Chapter VI11 of the principal Act:
“UNFAIR DISAIISSAL AND UNFAIR LABOUR PRACTICE”
Substitution of section 185 of Act 66 of 1995
40. The following section is substituted for section 185 of the principal Act:
“Right not to be unfairly dismissed or subjected to unfair labour practice
185. Every employee has the right not to be- - (rrl unfairly dismissed; and ( b ) subjected to unfair labour practice.”.
Amendment of section 186 of Act 66 of 1995, as amended by section 95 of Act 75 of 1997
41. Section 186 of the principal Act is amended by- ( t r ~ the substitution for the heading of the following heading:
( 6 ) the addition of the following paragraph: “Meaning of dismissal and unfair labour practice”;
45
28 No. 23540 GOVERNMENT GAZETTE. 24 JUNE 2002
Act No. 12,2002 LABOUR ELATIONS AMENDMENT ACT, 2002
“lf) an emplovee terminated a contract of employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the
~~~~~
employee than those provided by the old employer.”; 5 ( c ) the addition of the following subsection:
“(2) ’Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving- ( a ) unfair conduct by the employer relating to the promotion, demotion.
probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
(b) the unfair suspension of an employee or any other unfair disciplin- ary action short of dismissal in respect of an employee;
f c ) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and
fd) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 20001, on account of the employee having made a protected disclosure defined in that Act.”.
Amendment of section 187 of Act 66 of 1995
42. Section 187 of the principal Act is amended by the addition to subsection ( 1 ) of the
“(x) a transfer, or a reason related to a transfer, contemplated in section 197 or following paragraphs:
197A: or 35 ~. .. ~~ ( h J a contravention of the Protected Disclosures Act. 2000. by the employer. on
account of an employee having made a protected disclosure defined in that Act.”.
--
-
Insertion of section 188A in Act 66 of 1995
43. The following section is inserted after section 188 of the principal Act: 30
“Agreement for pre-dismissal arbitration
188A. ( 1) An employer may, with the consent of the e m p h e e . request a council. an accredited agency or the Commission to conduct an arbitration into allegations about the conduct or capacity of that employee.
(2) The request must be in the prescribed form. (3) The council, accredited agency or the Commission must appoint an
35
arbitrator on receipt of- ( a ) payment by the employer of the prescribed fee: and (b) the employee’s written consent to the inquiry.
(4) (a) An employee may only consent to a pre-dismissal arbitration after the employee has been advised of the allegation referred to in subsection ( 1 ) and in respect of a specific arbitration.
(b) Despite subparagraph (a), an employee earning more than the amount determined by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act, may consent o the holding of a pre-dismissal arbitration in a contract of employment.
( 5 ) In any arbitration in terms of this section a party to the dispute may appear in person or be represented only by- (u ) a co-employee; (bi a director or employee, if the party is a juristic person: ( c ) any member. office bearer or official of that party’s registered trade
union or registered employers ’ organisation: or (d ) a legal practitioner, on agreement between the parties.
I
40
45
50
30 No. 23540 GOVERNMENT GAZETTE, 24 JUNE 2002
Act No. 12,2002 LABOUR ELATIONS AMENDMENT ACT, 2002
(6) Section 138, read with the changes required by the context, applies to any arbitration in terms of this section.
(7) An arbitrator appointed in terms of this section has all the powers conferred on a commissioner by section 142( l)(a) to (e) , (2) and ( 7 ) to (9). read with the changes required by the context, and any reference in that 5 section to the director for the purpose of this section, must be read as a reference t D - (a ) the secretary of the council, if the arbitration is held under the auspices
( 6 ) the director of the accredited agency, if the arbitration is held under the 10 of the council;
auspices of an accredited agency. (8) The provisions of sections 143 to 146 apply to any award made by an
arbitrator in terms of this section. (9) An arbitrator conducting an arbitration in terms of this section must.
in the light of the evidence presented and by reference to the criteria of 15 fairness in the Act, direct what action, if any, should be taken against the employee.
(IO) (a ) A private agency may only conduct an arbitration in terms of this section if i t is accredited for this purpose by the Commission.
(b) A council may only conduct an arbitration in terms of this section in 20 respect of which the employer or the employee is not a party to the council, if the council has been accredited for this purpose by the Commission.”.
Substitution of section 189 of Act 66 of 1995
44. The following section is substituted for section 189 of the principal Act:
“Dismissals based on operational requirements 25
189. ( I ) When an employer contemplates dismissing one or more employees for reasons based on the employer’s operational requiren~ents. the employer must consult- ( ( 7 ) any person whom the employer is required to consult in terms of a
(h) if there is no collective agreement that requires consultation- collective agreement; 30
- ( i ) a workplace forum, if the employees likely IO be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplaceforum;
( i i ) any registered trade union whose members are likely to be 35 affected by the proposed dismissals:
(c) if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered rrade union whose members are likely to be affected by the proposed dismissals; or 40
( d ) if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose.
(2) The mployer and the other consulting parties must in the consultation envisaged by subsections (1) and (3) engage in a meaningful 45 joint consensus-seeking process and attempt to reach consensus on- ( a ) appropriate measures-
(i) to avoid the dismissals; (ii) to minimise the number of dismiss&; (iii) to change the timing of the dismissals; and 50 (iv) to mitigate the adverse effects of the dismissals;
(b) the method for selecting the employees to be dismissed; and ( e ) the severance pay for dismissed employees.
inviting the other consulting party to consult with it and disclose in writing 55 all relevant information, including, but not limited to-
(3) The employer must [disclose in writing to] issue a written notice
32 No. 23540 GOVERNMENT GAZEITE, 24 JUNE 2002
Act No. 12, 2002 LABOUR ELATIONS AMENDMENT ACT, 2002
the reasons for the proposed dismissals; the alternatives that the employer considered before proposing the dismissals, and the reasons for rejecting each of those alternatives; the number of employees likely to be affected and the job categories in which they are employed; 5 the proposed method for selecting which employees to dismiss: the time when, or the period during which, the dismissals are likely to take effect; the severance pay proposed; any assistance that the employer proposes to offer to the employees 10 likely to be dismissed; [and] the possibility of the future re-employment of the employees who are dismissed;
(i) the number of employees employed by the employer; and 0) the number of employees that the employer has dismissed for reasons 15
based on its operational requirements in the preceding 12 months. (4) @The provisions of section 16 apply, read with the changes required
by the context, to the disclosure of information in terms of subsection ( 3 ) . f h ) In any dispute in which an arbitrator or the Labour Court is required
to decide whether or not any information is relevant, the onus is on the 20 employer to prove that any information that it has refused to disclose is not relevant for the purposes for which it is sought.
(5) The employer must allow the other consulting party an opportunity during consultation to make representations about any matter [on which they are consulting] dealt with in subsections ( 2 ) , (3) and (4) as well as any 25 other matter relating to the proposed dismissals.
( 6 ) @zJ The employer must consider and respond to the representations made by the other consulting party and, if the employer does not agree with them, the employer must state the reasons for disagreeing.
writing.
selection criteria- (a) that have been agreed to by the consulting parties; or (b) if no criteria have been agreed, criteria that are fair and objective.”. 35
(b) If any representation is made in writing the employer must respond in 30
(7) The employer must select the employees to be dismissed according to
Insertion of section 189A in Act 66 of 1995
45. The following section is inserted after section 189 of the principal Act:
“Dismissals based on operational requirements by employers with more than 50 employees
189A. (1) This section applies to employers employing more than 50 employees if- (a) the employer contemplates dismissing by reason of the employer’s
operational requirements, at least- (i) 10 employees, if the employer employs up to 200 employees; (ii) 20 employees, if the employer employs more than 200, but not
(iii) 30 employees, if the employer employs more than 300, but not
(iv) 40 employees, if the employer employs more than 400, but not
more than 300, employees;
more than 400, employees;
more than 500, employees; or
40
45
50
34 No. 235 0 GOVERNMENT GAZETTE. 24 JUNE 2002
Act No. 12,2002 LABOUR RELATIONS AMENDMENT ACT. 2002
(v) 50 employees, if the employer employs more than 500 employ-
(0) the number of employees that the employer contemplates dismissing together with the number of employees that have been dismissed by reason of the employer’s operational requirements in the 12 months prior to the employer issuing a notice in terms of section 189(3). is equal to or exceeds the relevant number specified in paragraph (a) .
ees; or
( 2 ) In respect of any dismissal covered by this section- ( a ) an employer must give notice of termination of employment in
accordance with the provisions of this section; ( 0 ) despite section 65(l)(c), an employee may participate in a strike and an
employer may lock out in accordance with the provisions of this section;
( c ) the consulting parties may agree to vary the time periods for facilitation or consultation.
( 3 ) The Commission must appoint afacilitator in terms of any regulations made under subsection (6) to-assist the parties engaged in consultations if- ((7) the employer has in its notice in terms of section 189(3) requested
facilitation; or (0) consulting parties representing the majority of employees whom the
employer contemplates dismissing have requested facilitation and have notified the Commission within 15 days of the notice.
(4) This section does not prevent an agreement to appoint a facilitator in circumstances not contemplated in subsection (3).
( 5 ) If a facilitator is appointed in terms of subsection (3) or (4) the facilitation must be conducted in terms of any regulations made by the Millister under subsection (6) for the conduct of such facilitations.
(6) The Minister. after consulting NEDLAC and the Commission. may make regulations relating to- ( a ) the time period, and the variation of time periods, for facilitation: ( h ) the powers and duties of facilitators: ( c ) the circumstances in which the Commission may charge a fee for
appointing a facilitator and the amount of the fee: and ( d ) any other matter necessary for the conduct of facilitations.
(7) If a facilitator is appointed in terms of subsection (3) or (4). and 60 days have elapsed from the date on which notice was given in terms of section 189(31- ( a ) the employer may give notice to terminate the contracts of employ-
ment in accordance with section 37( 1) of the Basic Corlditior~s r y Employmewt Act: and
( 0 ) a registered trade union or the employees who have received notice of termination may either- ( i ) give notice of a strike in terms of section 64( 1 ) ( / > ) or (d) ; or (ii) refer a dispute concerning whether there is a fair reason for the
dismissal to the Labour Court in terms of section 19 1 ( 1 1). (8) If a facilitator is not appointed-
( L I J a party may not refer a dispure to a comcil or the Commission unles: a period of 30 days has lapsed from the date on which notice was giver in terms of section 189(3); and
( i ) the employer may give notice to terminate the contracts ol employment in accordance with section 37(1) of the Basic Conditions of Employmerzt Act: and
(i i ) a registered trade union or the employees who have receivec notice of termination may-
(aa) give notice of a strike in terms of section 64(1)(0) or (d) : 01 (bb) refer a dispute concerning whether there is a fair reasor
for the dismissal to the Labour Court in terms of sectior
(1,) once the periods mentioned in section 64( l)(a) have elapsed-
191(11).
5
LO
15
!O
3
30
35
40
45
50
55
60
36 No. 23510 GOVERNMENT GAZETTE, 24 JUNE 200
Act No. 12.2002 LABOUR RELATIONS AMENDMENT ACT, 2002
(9) Notice of the commencement of a strike may be given if the employer dismisses or gives notice of dismissal before the expiry of the periods referred to in subsections (7)(a) or (8)(b)(i).
(IO) (a) A consulting party may not- (i) give notice of a strike in terms of this section in respect of a
dismissal, if it has referred a dispute concerning whether there is a fair reason for that dismissal to the Labour Court;
(ii) refer a dispute about whether there is a fair reason for a dismissal to the Labour Court, if it has given notice of a strike in terms of this section in respect of that dismissal.
(b) If a trade union gives notice of a strike in terms of this section- (i) no member of that trade union, and no employee to whom a collective
agreement concluded by that trade union dealing with consultation 01 facilitation in respect of dismissals by reason of the employers' operational requirements has .been extended in terms of section 23( l)(d), may refer a dispute concerning whether there is a fair reason for dismissal to the Labour Court;
(ii) any referral to the Labour Court contemplated by subparagraph (i) thal has been made, is deemed to be withdrawn.
(1 1) The following provisions of Chapter IV apply to any strike 01 [ock-out in terms of this section: (a) Section 64( 1) and (3)(a) to (d), except that-
(i) section 64(l)(a) does not apply if a facilitator is appointed ir
(ii) an employer may only lock out in respect of a dispute in which i terms of this section;
strike notice has been issued; (bl subsection (2)(a), section 65( 1) and ( 3 ) ; (c) section 66 except that written notice of any proposed secondary strikc
must be given at least 14 days prior to the commencement of the strike (d) sections 67, 68, 69 and 76.
( 12) (a) During the 14-day period referred to in subsection ( 1 I)(c), thc director must, if requested by an employer who has received notice of an) intended secondary strike, appoint a commissioner to attempt to resolvc any dispute, between the employer and the party who gave the notice through conciliation.
(b) A request to appoint a commissioner or the appointment of : commissioner in terms of paragraph (a) does not affect the right o employees to strike on the expiry of the 14-day period.
(1 3) If an employer does not comply with a fair procedure, a consultini party may approach the Labour Court by way of an application for ar order- (a) compelling the employer to comply with a fair procedure; (b) interdicting or restraining the employer from dismissing an employe1
( c ) directing the employer to reinstate an employee until it has compliec
f d ) make an award of compensation, if an order in terms of paragraphs (a
(14) Subject to this section, the Labour Court may make any appropriatc order referred to in section 158( l)(a).
(15) An award of compensation made to an employee in terms o subsection (14) must comply with section 194.
( 16) The Labour Court may not make an order in respect of any matte concerning the disclosure of information in terms of section 189(4) that ha been the subject of an arbitration award in terms of section 16.
(17) (a) An application in terms of subsection (13) must be brought no later than 30 days after the employer has given notice to terminate th,
prior to complying with a fair procedure;
with a fair procedure;
to ( c ) is not appropriate.
I
I 1
I
t
I
I .
/
f
f
I
1 .
?
1 '
)
f
r S
It e
5
10
15
10
25
30
35
40
45
50
55
3x No. 23.540 GOVERNMENT GAZETTE. 24 J U N E 2002
Act No. 12,2002 LABOUR RELATIONS AMENDMENT ACT. 2002
enyloyee's services or, if notice is not given, the date on which the employees are dismissed.
( 0 ) The Labour Court may, on good cause shown condone a failure to comply with the time limit mentioned in paragraph (a).
( 18) The Labour Court may not adjudicate a dispure about the procedural fairness of a distnissul based on the employer's opemtionnl requirements in any dispute referred to it in terms of section 191 (5)(h)(ii).
(19) In any dispute referred to the Labour Court in terms of section 191(5)(D)(ii) that concerns the clisrnissal of the number of enzployres specified in subsection ( I ) , the Labour Court must find that the employee was dismissed for a fair reason if- (cr) the di.sn~i.r.sul was to give effect to a requirement based on the
employer's economic, technological. structural or similar needs: (6) the dismissal was operationally justifiable on rational grounds; ( c ) there was a proper consideration of alternatives; and Id) selection criteria were fair and objective,
(20) For the purposes of this section. an 'employer' in the p[tOlic .sen-ice is the executing authority of a national department, provincial administra- tion. provincial department or organisational component contemplated in section 7(2) of the Public Service Act. 1994 (promulgated by Proclamation No. 103 of 1994):'.
Amendment of section 191 of Act 66 of 1995, as amended by section 25 of Act 127 of 1998
5
10
15
20
46. Section 191 of the principal Act is amended by- l a ) the substitution for the heading of the following heading: 25
( h ) the substitution for subsection ( 1 ) of the following subsection: "Disputes about unfair dismissals and unfair labour practices":
"( 1 ) @ I f there is a dispute about the fairness of a tli.str~i.s.srrl. r/i.spfrrr about an unfair labour practice. the dismissed c w l p l o \ w e/rlployr alleging the unfair labour practice may refer the rli,spute in 30 Lvriting [within 30 days of the date of dismissal] to-
[ ( a ) ] ci, a c.nrr/~cil. if the parties to the tlisplrre fall within the registered . sc~)pe
[(b)](& the Commission. if no cmr~ci l has jurisdiction. of that comcil: or
( 1 7 ) A referral in terms of paragraph ( ( 1 ) must be made within- 3s ( i ) 30 days of the date of a clis/rli.sscrl or. if it is a later date. within 30
days of the employer making ;I final decision to dismiss or uphold the tli.srnis.sal:
( i i ) 90 days of the date of the act or omission which al lepi ly constitutes the unfair labour practice or. if it is a later date. within 90 40 days of the date on which the errlployrc became aware of the act or occurrence.":
( c . 1 the substitution for subsection (2) of the following subsection: " ( 2 ) If the employee shows good cause at any time. the c o r m ~ i l or the
Commission may permit he r~nploxee to refer the dispute after the 35 [30-day] relevant time limit in subsection ( 1 ) has expired.":
( t l ) the insertion after subsection ( 2 ) of the following subsection: "(2A) Subject to subsections ( 1) and (2). an ernplovee whose contract
of employment is terminated by notice. may refer the dispute to the c w t r z c i l or the Commission once the emplowe has received that notice.": 50
( e ) the substitution in subsection ( 5 ) ( u ) for subparagraph (i i ) of the followin:
" ( i i ) the employee has alleged that the reason for disrrlissrrl is that the employer made continued employment intolerable or the employer provided the employee with substantially less favourable conditions 55 or circumstances at work after a transfer in terms of section 197 or 197A, unless the employee alleges that the contract of employment was terminated for a reason contemplated in section 187:":
subparagraph:
40 No. 23540 GOVERNMENT GAZETTE. 24 JUNE 2002
Act No. 12,2002 LABOUR ELATIONS AMENDMENT ACT, 2002
cf) the addition in subsection (5 ) (a ) of the following subparagraph: .‘(iv) the dispute concerns an unfair labour practice: or”
(g) the insertion after subsection ( 5 ) of the following subsection: “(SA) Despite any other provision in the Act, the council or
Commission must commence the arbitration immediately after certifying that the dispute remains unresolved if the dispute concems- (a) the dismissal of an employee for any reason relating to probation: (b) any unfair labour practice relating to probation; ( e ) any other dispute contemplated in subsection (5) (a) in respect of
which no party has objected to the matter being dealt with in terms of this subsection.”;
(h) the substitution for subsection (6) of the following subsection: “(6) Despite subsection (S) (a) or (SA), ;he director- must refer the
dispute to the Labour Court, if the director decides, on application by any party to the dispute, that to be appropriate after considering- ( a ) the reason for dismissal; (b ) whether there are questions of law raised by the dispute; ( e ) the complexity of the dispute; (d ) whether there are conflicting arbitration awards that need to be
( e ) the public interest.”; ( i ) the addition of the following subsections:
resolved;
“( 12) If an employee is dismissed by reason of the employer’s operational requirements following a consultation procedure in terms of section 189 that applied to that employee only, the employee may elect to refer the dispute either to arbitration or to the Labour Court.
( 1 3) ( a ) An enzploTee may refer a dispute concerning an alleged unfair labour practice to the Labour Court for adjudication if the employee has alleged that the employee has been subjected to an occupational detriment by the employer in contravention of section 3 of the Protected Disclosures Act, 2000, for having made a protected disclosure defined in that Act.
(b) A referral in terms of paragraph ( a ) is deemed to be made in terms of subsection (5)(b).”.
5
10
15
20
35
30
Amendment of section 193 of Act 66 of 1995 35
47. Section 193 of the principal Act is amended by- ( 0 , the substitution for the heading of the following heading:
( b ) the insertion after subsection (3) of the following subsection: “Remedies for unfair dismissal and unfair labour practice”:
“(4) An arbitrator appointed in terms of this Act may determine any 40 unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable. which may include ordering reinstatement. re-employment or compensation.”.
.4mendment of section 194 of Act 66 of 1995
48. Section 194 of the principal Act is amended by- 45 ( ( I ) the substitution for subsection (1) of the following subsection:
“ ( I ) The compensation awarded to an emplovee whose dismissal is found to be unfair either because the employer did not prove that the reason for diymissal was a fair reason relating to the employee’s conduct or capacity or the employer’s operational requirements or the employer did not follow a fair procedure, or both, must be just and equitable in all
50
the circumstances, but may not be more than the equivalent of 12 months’ remuneration calculated at the emp/oyee:y rate of remuneration I on the date of dismissal.”;
(b ) the deletion of subsection (2 ) ; and 55 ( c ) the addition of the following subsection:
“(4) The compensation awarded to an emplovee in respect of an unfair labour practice must be .just and equitable in all the circumstances. but not more than the equivalent of 12 months rem~~neration.”.
Substitution of section 197 of Act 66 of 1995
49. The following section is substituted for section 197 of the principal Act:
“Transfer of contract of employment
197. (1) In this section and in section 197A- ( a ) ‘business’ includes the whole or a part of any business, trade,
undertaking or service; and (6) ‘transfer’ means the transfer of a business by one employer (‘the old
employer’) to another employer (’the new employer’) as a going concern.
(2) If a transfer of a business takes place. unless otherwise agreed in terms of subsection (6)- f a ) the new employer is automatically substituted in the place of the old
employer in respect of all contracts of employment in existence immediately before the date of transfer;
( h ) all the rights and obligations between the old employer and an enlployee at the time of the transfer continue in force as if they had been rights and obligations between the new employer and the employee;
(c) anything done before the transfer by or in relation to the old employer. including the dismissal of an employee or the commission of an unfair labour practice or act of unfair discrimination. is considered to have been done by or in relation to the new employer: and
( d ) the transfer does not interrupt an employee’s continuity of employ- ment. and an employeek contract of employment continues with the new employer as if with the old employer.
(3) ( a ) The new employer complies with subsection ( 2 ) if that employer employs transferred employees on terms and conditions that are on the whole not less favourable to the enzployees than those on which they were employed by the old employer.
( 0 ) Paragraph f a ) does not apply to employees if any of their conditions of employment are determined by a collective agreement.
(4) Subsection ( 2 ) does not prevent an employee from being transferred to a pension. provident. retirement or similar fund other than the fund ta which the employee belonged prior to the transfer. if the criteria in section 1 4 1 )(c) of the Pension Funds Act, 1956 (Act No. 23 of 1956), are satisfied.”’
( 5 ) (a) For the purposes of this subsection, the collective agreemerzts and arbitration awards referred to in paragraph (6) are agreements and award: that bound the old employer in respect of the employees to be transferred. immediately before the date of transfer.
( b J Unless otherwise agreed in terms of subsection (6). the new employel is bound by- ( i ) any arbitration award made in terms of this Act. the common law 01
(ii) any cdlecrive agreement binding in terms of section 23; and (i i i ) any collective agreement binding in terms of section 32 unless 2
commissioner acting in terms of section 62 decides otherwise. (6) (a ) An agreement contemplated in subsection ( 2 ) must be in writing
and concluded between- ( i ) either the old employer, the new employer, or the old and neu
employers acting jointly, on the one hand; and ( i i ) the appropriate person or body referred to in section 189( l ) , on thc
other. (b) In any negotiations to conclude an agreement contemplated b)
paragraph (a), the employer or employers contemplated in subparagrapt ti). must disclose to the person or body contemplated in subparagraph (ii) all relevant information that will allow it to engage effectively in thc negotiations.
any other law;
5
10
15
10
25
30
35
40
45
50
55
44 No. 23540 GOVERNMENT GAZE'lTE, 24 JUNE 2002
Act No. 12,2002 LABOUR ELATIONS AMENDMENT ACT, 2002
(c ) Section 16(4) to (14) applies, read with the changes required by the
(7) The old employer must- context, to the disclosure of information in terms of paragraph (6).
(a) agree with the new employer to a valuation as at the date of transfer of- (i) the leave pay accrued to the transferred employees of the old
employer: (ii) the severance pay that would have been payable to the transferred
employees of the old employer in the event of a dismissal by reason of the employer's operational requirements: and
(iii) any other payments that have accrued to the transferred employees but have not been paid to employees of the old employer;
(6) conclude a written agreement that specifies- (i) which employer is liable for paying any amount referred to in
paragraph (a), and in the case of the apportionment of liability between them, the terms of that apportionment; and
(ii) what provision has been made for any payment contemplated in paragraph (a) if any employee becomes entitled to receive a payment;
(c) disclose the terms of the agreement contemplated in paragraph (b) to each employee who after the transfer becomes employed by the new employer; and
(dJ take any other measure that may be reasonable in the circumstances to ensure that adequate provision is made for any obligation on the new employer that may arise in terms of paragraph (a).
(8) For a period of 12 months after the date of the transfer, the old employer is jointly and severally liable with the new employer to any emplovee who becomes entitled to receive a payment contemplated in subsection (7)(a) as a result of the employee's dismissal for a reason relating to the employer's operarional requirements or the employer's liquidation 01 sequestration. unless the old employer is able to show that it has complied with the provisions of this section.
(9) The old and new employer are jointly and severally liable in respecl of any claim concerning any term or condition of employment that arose prior to the transfer.
(10) This section does not affect the liability of any person to br prosecuted for, convicted of, and sentenced for, any offence.".
Insertion of sections 197A and 197B in Act 66 of 1995
50. The following sections are inserted in the principal Act after section 197:
"Transfer of contract of employment in circumstances of insolvency
5
LO
15
20
25
30
35
40
197A. (1) This section applies to a transfer of a business- (a) if the old employer is insolvent: or (6) if a scheme of arrangement or compromise is being entered into to
( 2 ) Despite the Insolvency Act, 1936 (Act No. 24 of 1936), if a transfer of a business takes place in the circumstances contemplated in subsection (l), unless otherwise agreed in terms of section 197(6)- (a) the new employer is automatically substituted in the place of the old
employer in all contracts of employment in existence immediately before the old employer's provisional winding-up or sequestration:
(b) all the rights and obligations between the old employer and each employee at the time of the transfer remain rights and obligations between the old employer and each employee;
avoid winding-up or sequestration for reasons of insolvency. 45
50
46 No. 23540 GOVERNMENT GAZETTE, 24 JUNE 2002 ~~ ~
Act No. 12,2002 LABOUR RELATIONS AMENDMENT ACT, 2002 ~~ ~~ ~
(c) anything done before the transfer by the old employer in respect of each employee is considered to have been done by the old employer;
( d ) the transfer does not interrupt the employee’s continuity of employ- ment and the employee’s contract of employment continues with the new employer as if with the old employer.
(3) Section 197(3), (4), (5) and (10) applies to a transfer in terms of this section and any reference to an agreement in that section must be read as a reference to an agreement contemplated in section 197(6).
(4) Section 197(5) applies to a collective agreement or arbitration binding on the employer immediately before the employer’s provisional winding-up or sequestration.
( 5 ) Section 197(7), (8) and (9) does not apply to a transfer in accordance with this section.
Disclosure of information concerning insolvency
197B. (1) An employer that is facing financial difficulties that may 15 reasonably result in the winding-up or sequestration of the employer, must advise a consulting party contemplated in section 189 (1).
( 2 ) ( a ) An employer that applies to be wound up or sequestrated, whether in terms of the Insolvency Act, 1936, or any other law, must at the time of making application, provide a consulting party contemplated in section 189 20 (I) with a copy of the application.
(b) An employer that receives an application for its winding-up or sequestration must supply a copy of the application to any consulting party contemplated in section 189(1), within two days of receipt, or if the proceedings are urgent, within 12 hours.”. 25
Insertion of section 200A in Act 66 of 1995
51. The following section is inserted after section 200 of the principal Act:
“Presumption as to who is employee
200A. ( 1 ) Until the contrary is proved, a person who works for. or renders services to, any other person is presumed. regardless of the form of the contract. to be an employee, if any one or more of the following factors are present: ( t r l the manner in which the person works is subject to the control or
(b ) the person’s hours of work are subject to the control or direction of
(c) in the case of a person who works for an organisation. the person forms
(ti) the person has worked for that other person for an average of 3t least
(e) the person is economically dependent on the other person for whom he
C f l the person is provided with tools of trade or work equipment by the
Cg) the person only works for or renders services to one person. (2) Subsection (1) does not apply to any person who earns in excess of
the amount determined by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act.
(3) If a proposed or existing work arrangement involves persons who earn amounts equal to or below the amounts determined by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act, any of the contracting parties may approach the Commission for an advisory award on whether the persons involved in the arrangement are emploxees.
direction of another person;
another person;
part of that organisation;
40 hours per month over the last three months;
or she works or renders services;
other person; or
30
35
40
45
50
48 No. 23540 GOVERNMENT GAZETTE. 24 JUNE 2002
Act No. 12,2002 LABOUR ELATIONS AMENDMENT ACT, 2002
(4) NEDLAC must prepare and issue a Code of Good Practice that sets out guidelines for determining whether persons, including those who earn in excess of the amount determined in subsection ( 2 ) are employes.”.
Amendment of section 203 of Act 66 of 1995
52. Section 203 of the principal Act is amended by the addition of the following 5 subsection:
“(4) A Code qfCood Practice issued in terms of this section may provide that the code must be taken into account in applying or interpreting any employment law.”.
Amendment of section 204 of Act 66 of 1995
53. Sectior. 204 of the principal Act is amended by the substitution for the words 10
“Unless a collective agreement, arbitration award or determination made in terms of the [Wage Act] Basic Conditions of Employment Act provides otherwise, every employer on whom the collective agreement, arbitration award. or determination, is binding must-”. 15
preceding paragraph ( a ) of the following words:
Amendment of section 213 of Act 66 of 1995
54. Section 2 13 of the principal Act is amended by- ( a ) the substitution for the definition of “Basic Conditions of Employment Act”
of the fo!lowing definition: “ ‘Basic Conditions of Employment Act’ means the Basic Conditions 20 Employment Act, 1397 (Art No. 75 of 1997).”;.
(b ) the insertion of the following definition after the definition of ‘employers’
“ ‘employment lsw’ includes this Act. any other Act the administration of which has been assigned to :he Minister, and any of the following 25 Acts: ( a ) the Unemployment Insurance Act, 1966 (Act No. 30 of 1966); ( 6 ) the Skills Development Act, 1998 (Act No. 97 of 1998); ( c ) the Employment Equity Act, 1998 (Act No. 55 of 1998); (d) the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993); 30
( e ) the Compensation for Occupational Injuries and Diseases 7Act, 1993 organisation’
and
(Act No. 130 of 1993); ( c ) the substitution for the definition of “public service” of the following
definition: 35 “ ‘public service’ means [the service referred to in section l(1) of the Public Service Act, 1994 (promulgated by Proclamation No. 103 of 1994), and includes any organisational component contemplated in section 7(4) of that Act and specified in the first column of Schedule 2 to that Act] the Rational departmenrs, provincial administrations, 40 provincial departments and organisaticnal components Contemplated in
tion No. 103 of 1994), but excluding- (a) the members of the South African National Defence Force; ( b ) the National Intelligence Agency; and ’ 45 ( c ) the South African Secret Service.” ;
-- section 7 ( 2 ) of the Public Service Act, 1994 (promulgated by Proclama-
(dl the substitution in the definition of ‘registered scope’ for paragraph (b) of the
“(b) in the case of bargaining councils established for sectors in the public service, the sector designated by the Public Service 50 Co-ordinating Bargaining Council in terms of section 37( 1 ) [or by the President in terms of section 37(2) or (4)];”;
( e ) the substitution in the definition of ‘workplace’ for paragraph ( a ) of the
following paragraph:
following paragraph: “(a) in relation to the public service- 55
( i ) for the purposes of collective bargaining and dispute resolu- I ticn. the registered scope of the Public Service Co-ordinaring 1
50 No. 23540 GOVERNMENT GAZETTE, 24 JUNE 2002 ~
Act No. 12,2002 LABOUR ELATIONS AMENDMENT ACT, 2002
Bargaining Council or a bargaining council in a sector in the public service, as the case may be; or
(ii) for any other purpose, a national department, provincial administration, provincial department or organisational com- ponent contemplated in section 7(2) of the Public Service Act, 1994 (promulgated by Proclamation No. 103 of 1994), or any other part of the public service that the Minister for Public Service and Administration, after consultation with the Public Service Co-ordinating Bargaining Council, demarcates as a workplace;”;
(f) the deletion in the definition of “workplace” of paragraph (b).
Amendment of Schedule 7 of Act 66 of 1995, as amended by section 56 of Act 42 of 1996, section 64 of Act 55 of 1998 and section 28 of Act 127 of 1998
55. Schedule 7 to the principal Act is amended by- ( a ) the deletion of items 2 , 3 and 4; and (b ) the addition of the following Part:
“Part H- Transitional Provisions arising out of the Application of the Lnbour Relations Amendment Act, 2002
Definitions
5
10
15
26. In this part- 20 ( a ) ‘Act’ means the Labour Relations Act. 1995 (Act No. 66 of 1995); and (b ) ‘Amendment Act’ means the Labour Relations Amendment Act. 2009.
Representation in conciliation and arbitration
27. (1 ) Until such time as rules made by the Commission in terms of section 115(2A)(m) of the Act come into force- (a ) sections 135(4), 138(4) and 140( 1) of the Act remain in force as if they
had not been repealed, and any reference in this item to those sections is a reference to those sections prior to amendment by this Amendment Act;
(0) a bargaining council may be represented in arbitration proceedings in terms of section 33A of the Act by a person specified in section 138(4) of the Act or by a designated agent or an official of the council;
( c ) the right of any party to be represented in proceedings in terms of section 191 of the Act must be determined by- (i) section 138(4) read with section 140( 1) of the Act for dispures
(ii) section 138(4) of the Act for disputes about an unfair labour
(2) Despite subitem l(a), section 138(4) of the Act does not apply to an
about a dismissal; and
practice.
arbitration conducted in terms of section 188A of the Act.
Order for costs in arbitration
28. Section 138(10) of the Act, before amendment by the Amendment Act, remains in effect as if it had not been amended until such time as the rules made by the Commission in terms of section 115(2A)(j) of the Act come into effect.
Arbitration in terms of section 33A
29. (1) Until such time as the Minister promulgates a notice in terms of section 33A( 13) of the Act, an arbitrator conducting an arbitration in terms of section 33A of the Act may impose a fine in terms of section 33A(8)(b) of the Act subject to the maximum fines set out in Table One and Two of this item.
25
30
35
40
45
50
52 No. 23540 GOVERNMENT GAZETTE, 24 JUNE 2002
Act No. 12,2002 LABOUR RELATIONS AMENDMENT ACT, 2002
( 2 ) The maximum fine that may be imposed by an arbitrator in terms of section 33A(8)(b) of the Act- ( a ) for a failure to comply with a provision of a collective agreement not
involving a failure to pay any amount of money, is the fine determined in terms of Table One; and
(b) involving a failure to pay an amount due in terms of a collective agreement, is the greater of the amounts determined in terms of Table One and Table Two.
TABLE ONE: MAXIMUM PERMISSIBLE FINE NOT INVOLVING AN UNDERPAYMENT
No previous failure to comply R l 0 0 per employee in respect of whom the failure to comply occurs
A previous failure to comply in R200 per employee in respect of respect of the same provision whom the failure to comply occurs A previous failure to comply within R300 per employee in respect of the previous 12 months or two previ- whom the failure to comply occurs ous failures to comply in respect of the same provisions within three years Three previous failures to comply in R400 per employee in respect of respect of the same provision within whom the failure to comply occurs three years Four or more previous failures to R500 per employee in respect of comply in respect of the same provi- whom the failure to comply occurs sion within three years
TABLE TWO: MAXIMUM PERMISSIBLE FINE INVOLVING AN UNDERPAYMENT
No previous failure to comply
A previous failure to comply in respect of the same provision within three years A previous failure to comply in respect of the same provision within a year. or two previous failures to comply in respect of the same provi- sion within three years Three previous failures to comply in respect of the same provision within three years Four or more previous failures to comply in respect of the same provi- sion within three vears
25% of the amount due, including any interest owing on the amount at [he date of the order 50% of the amount due, including any interest owing on the amount at the date of the order 75% of the amount due, including any interest owing on the amount at the date of the order
100% of the amount due, including any interest owing on the amount at the date of the order 200% of the amount due, including any interest owing on the amount a! the date of the order
54 No. 23540 GOVERNMENT GAZETTE, 24 JUNE 2002
Act No. 12,2002 LABOUR ELATIONS AMENDMENT ACT, 2002
Unfair labour practice
30. (1) Any dispute about an unfair labour practice referred to a council or Commission in accordance with items 3(1) and (2) of this Schedule prior to the commencement of the Amendment Act must be dealt with as if items 2 , 3 and 4 of this Schedule had not been repealed.
( 2 ) (a) A dispute concerning any act or omission constituting an alleged unfair labour practice that occurred prior to the commencement of the Amendment Act that had not been referred to a council or Commission in terms of item 3( 1) and 3(2) prior to the commencement of the Amendment Act must be dealt with in terms of section 191 of the Act.
(b ) If a dispute contemplated in paragraph (a ) is not referred to conciliation in terms of section 191(l)(a) of the Act within 90 days of the commencement of the Amendment Act, the employee alleging the unfair labour practice must apply for condonation in terms of section 19 l(2) of the Act.
(c) Subitem (a ) does not apply to an unfair labour practice in relation to probation.
Bargaining councils in public service
31. Any bargaining council that was established or deemed to be established in terms of section 37(3) of the Act prior to the Amendment Act 20 coming into force is deemed to have been established in terms of section 37(2) of the Act.
Expedited applications in terms of section 189A(13)
32. Until such time as rules are made in terms of section 159 of the Act- (a) the Labour Court may not grant any order in terms of section
189A( 13) or (14) of the Act unless the applicant has given at least four days’ notice to the respondent of an application for an order in terms of subsection (1). However, the Court may permit a shorter period of notice if- (i) the applicant has given written notice to the respondent of the
applicant’s intention to apply for the granting of an order; (ii) the respondent has been given a reasonable opportunity to be
heard before a decision concerning that application is taken; and (iii) the applicant has shown good cause why a period shorter than
four days should be permitted; (b ) an application made in terms of section 189A( 13) must be enrolled by
the Labour Court on an expedited basis.”.
25
30
35
Amendment of Schedule 8 to Act 66 of 1995, as amended by section 57 of Act 42 of 1996
56. Schedule 8 to the principal Act is amended by the substitution in item 8 for 40 subitem (1) of the following subitem:
“Probation
(1) (a) An employer may require a newly-hired emplovee to serve a period of probation before the appointment of the employee is confirmed.
( b ) Thepurpose of probation-& to give the employer an opportunity to evaluate the employee 5 performance before confirming the appointment.
(c ) Probation should not be used for purposes not contemplated by this Code to deprive employees of the status of permanent employment. For example, a practice of dismissing employees who complete their probation periods and replacing them with newly-hired employees, is not consistent with the purpose of probation and constitutes an unfair labour practice.
45
50
56 No. 23540 GOVERNMENT GAZETI’E, 24 JUNE 2002
Act No. 12,2002 LABOUR ELATIONS AMENDMENT ACT, 2002
( d ) The period of probation should be determined in advance and be of reasonable duration. The length of the probationary period should be determined with reference to the nature of the job and the time it takes to determine the employee S suitability for continued employment.
( e ) During the probationary period, the employee S performance should be assessed. An employer should give an employee reasonable evaluation, instruction, training, guidance or counselling in order io allow the employee to render a satisfactory service. If) If the employer determines that the mployee S performance is below
standard, the employer should advise the mployee of any aspects in which the employer considers the employee to be failing to meet the required performance standards. If the employer believes that the employee is incompetent, the employer should advise the employee of the respects in which the emplovee is not competent. The employer may either extend the probationary period or dismiss the employee after complying with subitems (g ) or (h), as the case may be.
(g ) The period of probation may only be extended for a reason that relates to the purpose of probation. The period of extension should not be disproportionate to the legitimate purpose that the employer seeks to achieve.
(h) An employer may only decide to dismiss an employee or extend the probationary period after the employer has invited the employee to make representations and has considered any representations made. A trade u n i m representative or fellow employee may make the representations on behalf of the employee.
( i ) If the employer decides to dismiss the employee or to extend the probationary period, the employer should advise the mployee of his or her rights to refer the matter to a council having jurisdiction, or to the Commission.
Cj) Any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reasons for dismissal that may be les5 compelling than would be the case in dismissals effected after thc completion of the probationary period.”.
Substitution of Schedule 10 to Act 66 of 1995
57. The following Schedule is substituted for Schedule I O to the principal Act:
“Schedule 10
POWERS OF DESIGNATED AGENT OF BARGAINING COUNCIL
(Section 33)
( 1 ) A desimated agent may. without warrant or notice at any reasonable time, enter any \corkplace or any other place where an employer carries on business or keeps employment records, that is not a home, in order to monitor or enfcrce compliance with a collecti1.e ngreernent concluded in the bargaining council.
( 2 ) A designated agent may only enter a home or any place other than a place referred to in subitem ( 1 )-
( a ) with the consent of the owner or occupier: or ( b ) if authorised to do so by the Labour Court in terms of subitem (3);
(3) The Labour Court may issue an authorisation contemplated in subitem (2)(b) only on written application by a designated agent who states under oath or affirmation the reasons for the need to enter a place, in order to monitor or enforce compliance with a collective qreement concluded in the bargaining council.
(4) If it is practicable to do so, the employer and a trade union representative must be
I
5
I O
15
20
35
30
35
1 4o
notified that~the designated agent is present at a workplace and of the reawn for the designated agent’s presence.
58 No. 23540 GOVERNMENT GAZETE, 24 JUNE 2002
Act No. 12,2002 LABOUR ELATIONS AMENDMENT ACT, 2002
(5) In order to monitor or enforce compliance with a collective agreement a
(a ) require a person to disclose information, either orally or in writing, and either alone or in the presence of witnesses, on a matter to which a collective agreement relates, and require that disclosure to be under oath or affirmation;
(b) inspect and question a person about any record or document to which a collective agreement relates;
(c) copy any record or document referred to in paragraph (b) or remove these to make copies or extracts;
(d) require a person to produce or deliver to a place specified by the designated agent any record or document referred to in paragraph (b) for inspection;
( e ) inspect, question a person about, and if necessary remove, an article, substance or machinery present at a place referred to in subitems (1) and (2);
(f) question a person about any work performed; and ( g ) perform any other prescribed function necessary for monitoring or enforcing
(6 ) A designated agent may be accompanied by an interpreter and any other person
(7) A designated agent must-
designated agent may-
compliance with a collective agreement.
reasonably required to assist in conducting an inspection.
(a ) produce on request a copy of the authorisation referred to in subitem (3); (b) provide a receipt for any record or document removed in terms of subitem
(c) return any removed record, document or item within a reasonable time. (8) Any person who is questioned by a designated agent in terms of subitem (5) must
answer all questions lawfully put o that person truthfully and to the best of that person’s ability.
(9) An answer by any person to a question by a designated agent in terms of this item may not be used against that person in any criminal proceedings, except proceedings in respect of a charge of perjury or making a false statement.
(10) Every employer and each employee must provide any facility and assistance at workplace that is reasonably required by a designated agent to effectively perform the designated agent’s functions.
(1 1) The bargaining council may apply to the Labour Court for an appropriate order against any person who-
( a ) refuses or fails to answer all questions lawfully put to that person truthfully
(b) refuses or fails to comply with any requirement of the designated agent in
(c) hinders the designated agent in the performance of the agent’s functions in
(1 2) For the purposes of this Schedule, a collective agreement is deemed to include any basic ondition of employment which constitutes a term of a contract 01 employment in terms of section 49( 1) of the Basic Conditions of Employment Acr.”.
( W e ) ; and
and to the best of that person’s ability;
terms of this item; or
terms of this item.
5
IO
15
20
25
30
35
40
Short title and commencement
58. ( 1) This Act is called the Labour Relations Amendment Act, 2002, and comes into 45
(2) Section 27(b) of this Act does not come into operation before the rules made by the operation on a date determined by the President by proclamation in the Gazette.
Commission in terms of section 115(2A)(j) of the principal Act come into effect.
Footnotes: ( I ) Amend footnote 11 to section 5 1 of the principal Act by inserting after “disputes” in 50
the first line of the footnote “contemplated by subsection (3)”. Amend footnote 11 to section 5 1 of the principal Act by inserting after “disputes” in the second paragraph of the footnote “contemplated by subsection (3)”.
60 No. 23540 GOVERNMENT GAZETIT, 24 JUNE 2002
Act No. 12,2002 LABOUR ELATIONS AMENDMENT ACT. 2002
(3) Insert footnote 53a to section 197(4) into the principal Act with the following text: “Section 14( l)(c) of the Pensions Funds Act requires the registrar to be satisfied that any scheme to amalgamate or transfer funds is reasonable and equitable, and accords full recognition to the rights and reasonable benefit expectations of the persons concerned in terms of the fund rules, and to additional benefits which have become 5 established practice.”.