Note: This is the first draft Bill published on 17 December 2010 for public comment. Comments may be submitted before 11 February 2011, whereafter it will probably be reviewed by Nedlac before being submitted to Parliament.

For ease of reference the original section has been placed in a text box, with the proposed amendments located beneath.

Interim comments are placed in a separate text box below the proposed amendments.

43. Powers and functions of statutory councils (1) The powers and functions of a statutory council are-

(a) to perform the dispute resolution functions referred to in section 51;

(b) to promote and establish training and education schemes; and

(c) to establish and administer pension, provident, medical aid, sick pay, holiday, unemployment schemes or funds or any similar schemes or funds for the benefit of one or more of the parties to the statutory council or their members; and

(d) to conclude collective agreements to give effect to the matters mentioned in paragraphs (a), (b), and (c).

(2) A statutory council, in terms of its constitution, may agree to the inclusion of any of the other functions of a bargaining council referred to in section 28.

(3) If a statutory council concludes a collective agreement in terms of subsection (1)(d), the provisions of sections 31, 32 and 33 apply, read with the changes required by the context.

(4) (a) From the date on which the Labour Relations Amendment Act, 1998, comes into operation, the provisions of the laws relating to pension, provident or medical aid schemes or funds must be complied with in establishing any pension, provident or medical aid scheme or fund in terms of subsection (1)(c).

(b) The provisions of the laws relating to pension, provident or medical aid schemes or funds will apply in relation to any pension, provident or medical aid scheme or fund established in terms of subsection (1)(c) after the coming into operation of the Labour Relations Amendment Act, 1998.

51. Dispute resolution functions of council

(1) In this section, dispute means any dispute about a matter of mutual interest between-

(a) on the one side –

(i) one or more trade unions;

(ii) one or more employees; or

(iii) one or more trade unions and one or more employees; and

(b) on the other side-

(i) one or more employers' organisations;

(ii) one or more employers; or

(iii) one or more employers' organisations and one or more employers.

(2) (a)(i) The parties to a council must attempt to resolve any dispute between themselves in accordance with the constitution of the council.

(i) For the purposes of subparagraph (i), a party to a council includes the members of any registered trade union or registered employers’ organisation that is a party to the council.

(b) Any party to a dispute who is not a party to a council but who falls within the registered scope of the council may refer the dispute to the council in writing.

(c) The party who refers the dispute to the council must satisfy it that a copy of the referral has been served on all the other parties to the dispute.

(3) If a dispute is referred to a council in terms of this Act11 and any party to that dispute is not a party to that council, the council must attempt to resolve the dispute -

(a) through conciliation; and

(b) if the dispute remains unresolved after conciliation, the council must arbitrate the dispute if-

(i) this Act requires arbitration and any party to the dispute has requested that it be resolved through arbitration; or

(ii) all the parties to the dispute consent to arbitration under the auspices of the council.

(4) If one or more of the parties to a dispute that has been referred to the council do not fall within the registered scope of that council, it must refer the dispute to the Commission.

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

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

(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.

65. Limitations on right to strike or recourse to lock-out

(1) No person may take part in a strike or a lock-out or in any conduct in contemplation or furtherance of a strike or a lock-out if-

(a) that person is bound by a collective agreement that prohibits a strike or lock-out in respect of the issue in dispute;

(b) that person is bound by an agreement that requires the issue in dispute to be referred to arbitration;

(c) the issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court in terms of this Act;

(d) that person is engaged in-

(i) an essential service; or

(ii) a maintenance service. 13

(2) (a) Despite section 65(l)(c), a person may take part in a strike or a lock-out or in any conduct in contemplation or in furtherance of a strike or lock out if the issue in dispute is about any matter dealt with in sections 12 to 15. 14

(b) If the registered trade union has given notice of the proposed strike in terms of section 64(l) in respect of an issue in dispute referred to in paragraph (a), it may not exercise the right to refer the dispute to arbitration in terms of section 21 for a period of 12 months from the date of the notice.

(3) Subject to a collective agreement, no person may take part in a strike or a lock-out or in any conduct in contemplation or furtherance of a strike or lock-out-

(a) if that person is bound by-

(i) any arbitration award or collective agreement that regulates the issue in dispute; or

(ii) any determination made in terms of section 44 by the Minister that regulates the issue in dispute; or

(b) any determination made in terms of the Wage Act and that regulates the issue in dispute, during the first year of that determination.

13. Essential services, agreed minimum services and maintenance services are regulated in sections 71 to 75. 14. These sections deal with organisational rights.

115. Functions of Commission

(1) The Commission must-

(a) attempt to resolve, through conciliation, any dispute referred to it in terms of this Act;

(b) if a dispute that has been referred to it remains unresolved after conciliation, arbitrate the dispute if-

(i) this Act requires arbitration and any party to the dispute has requested that the dispute be resolved through arbitration; or

(ii) all the parties to a dispute in respect of which the Labour Court has jurisdiction consent to arbitration under the auspices of the Commission;

(c) assist in the establishment of workplace forums in the manner contemplated in Chapter V; and

(d) compile and publish information and statistics about its activities.

(2) The Commission may-

(a) if asked, advise a party to a dispute about the procedure to follow in terms of this Act; 21

(b) if asked, assist a party to a dispute to obtain legal advice, assistance or representation; 22

(c) offer to resolve a dispute that has not been referred to the Commission through conciliation; 23

(cA) make rules –

(i) to regulate, subject to Schedule 3, the proceedings at its meetings and at the meetings of any committee of the Commission;

(ii) regulating the practice and procedure of the essential services committee;

(iii) regulating the practice and procedure –

(aa) for any process to resolve a dispute through conciliation;

(bb) at arbitration proceedings; and

(iv) determining the amount of any fee that the Commission may charge under section 147, and regulating the payment of such a fee in detail;

(d) [Deleted]

(e) [Deleted]

(f) conduct, oversee or scrutinise any election or ballot of a registered trade union or registered employers’ organisation if asked to do so by that trade union or employers’ organisation;

(g) publish guidelines in relation to any matter dealt with in this Act;

(h) conduct and publish research into matters relevant to its functions; and

(i) [Deleted]

(2A) The Commission may make rules regulating –

(a) the practice and procedure in connection with the resolution of a dispute through conciliation or arbitration;

(b) 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;

(k) the right of any person or category of persons to represent any party in any conciliation or arbitration proceedings;

(l) 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

(m) all other matters incidental to performing the functions of the Commission.

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

(a) establishing collective bargaining structures;

(b) designing, establishing and electing workplace forums and creating deadlock-breaking mechanisms;

(c) the functioning of workplace forums;

(d) preventing and resolving disputes and employees' grievances;

(e) disciplinary procedures;

(f) procedures in relation to dismissals;

(g) the process of restructuring the workplace;

(h) affirmative action and equal opportunity programmes; and

(i) the prevention of sexual harassment in the workplace.

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

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

(6) (a) A rule made under subsection (2)(cA) or (2A) must be published in the Government Gazette. The Commission will be responsible to ensure that the publication occurs.

(b) A rule so made will not have any legal force or effect unless it has been so published.

(c) A rule so made takes effect from the date of publication unless a later date is stipulated.

21. See section 148.

22. See section 149.

23. See section 150.

136. Appointment of commissioner to resolve dispute through arbitration

(1) If this Act requires a dispute to be resolved through arbitration, the Commission must appoint a commissioner to arbitrate that dispute, if-

(a) a commissioner has issued a certificate stating that the dispute remains unresolved; and

(b) within 90 days after the date on which that certificate was issued, any party to the dispute has requested that the dispute be resolved through arbitration. However, the Commission on good cause shown, may condone a party’s non-observance of that timeframe and allow a request for arbitration filed by the party after the expiry of the 90-day period.

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

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

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

(5) (a) The parties to a dispute may request the Commission, in appointing a commissioner in terms of subsection (1) or (4), to take into account their stated preference, to the extent that this is reasonably practicable in all the circumstances.

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

(i) be in writing;

(ii) list no more than five commissioners;

(iii) state that the request is made with the agreement of all the parties to the dispute; and

(iv) be submitted within 48 hours of the date of the certificate referred to in subsection (1)(a).

(6) If the circumstances contemplated in subsection (1) exist and the parties to the dispute are engaged in an essential service, then the provisions of section 135 (6) apply, read with the changes required by the context, to the appointment of a commissioner to resolve the dispute through arbitration.

143. Effect of arbitration awards

(1) An arbitration award issued by a commissioner is final and binding and it may be enforced as if it were an order of the Labour Court, unless it is an advisory arbitration award.

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

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

(4) If a party fails to comply with an arbitration award that order the performance of an act, other than the payment of an amount of money, any other party to the award may enforce it by way of contempt proceedings instituted in the Labour Court.

144. Variation and rescission of arbitration awards and rulings

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

(a) erroneously sought or erroneously made in the absence of any party affected by that award;

(b) in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; or

(c) granted as a result of a mistake common to the parties to the proceedings.

Currently certificates may only be reviewed by the Labour Court. It would seem that by virtue of the amended umbrella clause, certificates issued in terms of section 135 (i.e. "certificates of outcomes") are included in the phrase "arbitration award or ruling" otherwise the amendment would be meaningless. The alternative view is that the phrase "arbitration award or ruling" should read "arbitration award, certificate or ruling".

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

(1) (a) If at any stage after a dispute has been referred to the Commission, it becomes apparent that the dispute is about the interpretation or application of a collective agreement, the Commission may-

(i) refer the dispute for resolution in terms of the procedures provided for in that collective agreement; or

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

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

(i) their collective agreement does not provide a procedure as required by section 24(1); 39 or

(ii) the procedure provided in the collective agreement is not operative.

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

(2) (a) If at any stage after a dispute has been referred to the Commission, it becomes apparent that the parties to the dispute are parties to a council, the Commission may-

(i) refer the dispute to the council for resolution; or

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

(b) The Commission may charge the parties to a council a fee for performing the dispute resolution functions if the council's dispute resolution procedures are not operative.

(3) (a) If at any stage after a dispute has been referred to the Commission, it becomes apparent that the parties to the dispute fall within the registered scope of a council and that one or more parties to the dispute are not parties to the council, the Commission may-

(i) refer the dispute to the council for resolution; or

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

(b) The Commission may charge the parties to a council a fee for performing the dispute resolution functions if the council's dispute resolution procedures are not operative.

(4) (a) If a dispute has been referred to the Commission and not all the parties to the dispute fall within the registered scope of a council or fall within the registered scope of two or more councils, the Commission must resolve the dispute in terms of this Act.

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

(5) (a) If at any stage after a dispute has been referred to the Commission, it becomes apparent that the dispute ought to have been referred to an accredited agency, the Commission may-

(i) refer the dispute to the accredited agency for resolution; or

(ii) appoint a commissioner to resolve the dispute in terms of this Act.

(b) The Commission may-

(i) charge the accredited agency a fee for performing the dispute resolution functions if the accredited agency's dispute resolution procedures are not operative; and

(ii) review the continued accreditation of that agency.

(6) If at any stage after a dispute has been referred to the Commission, it becomes apparent that the dispute ought to have been resolved through private dispute resolution in terms of a private agreement between the parties to the dispute, the Commission may-

(a) refer the dispute to the appropriate person or body for resolution through private dispute resolution procedures; or

(b) appoint a commissioner to resolve the dispute in terms of this Act.

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

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

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

39. Section 24(l) states that every collective agreement must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement.

150. Commission may offer to resolve dispute through conciliation

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

(2) The Commission may 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 –

(a) a certificate has been issued in terms of section 135(5)(a) stating that the dispute remains unresolved; or

(b) the period contemplated in section 135(2) has elapsed;

(3) The Commission may appoint a commissioner in terms of subsection (1) or (2) if all the parties to the dispute consent to that appointment.

157. Jurisdiction of Labour Court

(1) Subject to the Constitution and section 173, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court.

(2) The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising from –

(a) employment and from labour relations;

(b) any dispute over the constitutionally of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as an employer; and

(c) the application of any law for the administration of which the Minister is responsible.

(3) Any reference to the court in the Arbitration Act, 1965 (Act No. 42 of 1965), must be interpreted as referring to the Labour Court when an arbitration is conducted under that Act in respect of any dispute that may be referred to arbitration in terms of this Act.

(4) (a) The Labour Court may refuse to determine any dispute, other than an appeal or review before the Court, if the Court is not satisfied that an attempt has been made to resolve the dispute through conciliation.

(b) A certificate issued by a commissioner or a council stating that a dispute remains unresolved is sufficient proof that an attempt has been made to resolve that dispute through conciliation.

(5) Except as provided in section 158(2), the Labour Court does not have jurisdiction to adjudicate an unresolved dispute if this Act requires the dispute to be resolved through arbitration.

158. Powers of Labour Court

(1) The Labour Court may-

(a) make any appropriate order, including

(i) the grant of urgent interim relief;

(ii) an interdict;

(iii) an order directing the performance of any particular act which order, when implemented, will remedy a wrong and give effect to the primary objects of this Act;

(iv) a declaratory order;

(v) an award of compensation in any circumstances contemplated in this Act;

(vi) an award of damages in any circumstances contemplated in this Act; and

(vii) an order for costs;

(b) order compliance with any provision of this Act;

(c) make any arbitration award or any settlement agreement an order of the Court;

(d) request the Commission to conduct an investigation to assist the Court and to submit a report to the Court;

(e) determine a dispute between a registered trade union or registered employers' organisation, and any one of the members or applicants for membership thereof, about any alleged non-compliance with –

(i) the constitution of that trade union or employers' organisation (as the case may be); or

(ii) section 26(5)(b);

(f) subject to the provisions of this Act, condone the late filing of any document with, or the late referral of any dispute to, the Court;

(g) subject to section 145, review the performance or purported performance of any function provided for in this Act on any grounds that are permissible in law;

(h) review any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law;

(i) hear and determine any appeal in terms of section 35 of the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993); and

(j) deal with all matters necessary or incidental to performing its functions in terms of this Act or any other law.

(1A) For the purposes of subsection (1)(c), 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).

(2) If at any stage after a dispute has been referred to the Labour Court, it becomes apparent that the dispute ought to have been referred to arbitration, the Court may-

(a) stay the proceedings and refer the dispute to arbitration; or

(b) with the consent of the parties and if it is expedient to do so, continue with the proceedings with the Court sitting as an arbitrator, in which case the Court may only make any order that a commissioner or arbitrator would have been entitled to make.

(3) The reference to "arbitration" in subsection (2) must be interpreted to include arbitration-

(a) under the auspices of the Commission;

(b) under the auspices of an accredited council;

(c) under the auspices of an accredited agency;

(d) in accordance with a private dispute resolution procedure; or

(e) if the dispute is about the interpretation or application of a collective agreement.

(4) (a) The Labour Court, on its own accord or, at the request of any party to the proceedings before it may reserve for the decision of the Labour Appeal Court any question of law that arises in those proceedings.

(b) A question may be reserved only if it is decisive for the proper adjudication of the dispute.

(c) the decision of the Labour Appeal Court on any question of law reserved in terms of paragraph (a), the Labour Court may make any interim order.

186. Meaning of dismissal and unfair labour practice

(1) "Dismissal" means that-

(a) an employer has terminated a contract of employment with or without notice;

(b) an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it;

(c) an employer refused to allow an employee to resume work after she-

(i) took maternity leave in terms of any law, collective agreement or her contract of employment; or

(ii) was absent from work for up to four weeks before the expected date, and up to eight weeks after the actual date, of the birth of her child;

(d) an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another; or

(e) an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.

(f) an employee 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.

(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) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;

(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and

(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.

Sections referred to:-

185. Right not to be unfairly dismissed or subjected to unfair labour practice

186. Meaning of dismissal and unfair labour practice

188. Other unfair dismissals

189. Dismissals based on operational requirements

189A. Dismissals based on operational requirements by employers with more than 50 employees

197. Transfer of contract of employment

Note a similar limitation in the Basic Conditions of Employment Act:-

70. Limitations

A labour inspector may not issue a compliance order in respect of any amount payable to an employee as a result of a failure to comply with a provision of this Act if— (a) the employee is covered by a collective agreement that provides for resolution by arbitration of disputes concerning amounts owing in terms of this Act; (b) the employee is employed in a category of employees mentioned in section 6(1)(a) or in respect of which a notice has been issued in terms of section 6(3)¹;

6. Application of this Chapter

(1) This Chapter, except section 7, does not apply to— (a) senior managerial employees; (b) employees engaged as sales staff who travel to the premises of customers and who regulate their own hours of work; (c) employees who work less than 24 hours a month for an employer.

(2) Sections 9, 10(1), 14(1), 15(1), 17(2) and 18(1) do not apply to work which is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work.

(3) The Minister must, on the advice of the Commission, make a determination that excludes the application of this Chapter or any provision of it to any category of employees earning in excess of an amount stated in that determination.

(4) Before the Minister issues a notice in terms of subsection (3), the Minister must— (a) publish in the Gazette a draft of the proposed notice; and (b) invite interested persons to submit written representations on the proposed notice within a reasonable period.

^1. Determination of Earnings Threshold

188A. Agreement for pre-dismissal arbitration

(1) An employer may, with the consent of the employee, 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 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 to 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 –

(a) a co-employee

(b) a director or employee, if the party is a juristic person

(c) any member, officer bearer or official of that party’s registered trade union or registered employers’ organisation; or

(d) a legal practitioner, o agreement between the parties.

(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(1)(a) to (e), (2) and (7) to (9), read with the changes required by the context, and any reference in that section to the director for the purpose of this section, must be read as a reference to –

(a) the secretary of the council, it the arbitration is held under the auspices of the council;

(b) the director of the accredited agency, if the arbitration is held under the auspices of an accredited agency.

(8) The provision 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 fairness in the Act, direct what action, if any, should be taken against the employee.

(10) (a) A private agency may only conduct an arbitration in terms of this section if it is accredited for this purpose by the Commission.

(b) A council may only conduct an arbitration in terms of this section in 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.

191. Disputes about unfair dismissals and unfair labour practices52

(1) (a) If there is a dispute about the fairness of a dismissal or a dispute about an unfair labour practice, the dismissed employee or the employee alleging the unfair labour practice may refer the dispute in writing within to-

(i) a council, if the parties to the dispute fall within the registered scope of that council; or

(ii) the Commission, if no council has jurisdiction.

(b) A referral in terms of paragraph (a) must be made within –

(i) 30 days of the date of a dismissal or, if it is a later date, within 30 days of the employer making a final decision to dismiss or uphold the dismissal;

(ii) 90 days of the date of the act or omission which allegedly constitutes the unfair labour practice or, if it is a later date, within 90 days of the date on which the employee became aware of the act or occurrence.

(2) If the employee shows good cause at any time, the council or the Commission may permit the employee to refer the dispute after the relevant time limit in subsection (1) has expired.

(2A) Subject to subsections (1) and (2), an employee whose contract of employment is terminated by notice, may refer the dispute to the council or the Commission once the employee has received that notice.

(3) The employee must satisfy the council or the Commission that a copy of the referral has been served on the employer.

(4) The council or the Commission must attempt to resolve the dispute through conciliation.

(5) If a council or a commissioner has certified that the dispute remains unresolved, or if 30 days have expired since the council or the Commission received the referral and the dispute remains unresolved-

(a) the council or the Commission must arbitrate the dispute at the request of the employee if-

(i) the employee has alleged that the reason for dismissal related to the employee's conduct or capacity, unless paragraph (b)(iii) applies;

(ii) the employee has alleged that the reason for dismissal is that the employer made continued employment intolerable or the employer provided the employee with substantially less favourable conditions 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;

(iii) the employee does not know the reason for dismissal; or

(iv) the dispute concerns an unfair labour practice; or

(b) the employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is-

(i) automatically unfair;

(ii) based on the employer's operational requirements;

(iii) the employee's participation in a strike that does not comply with the provisions of Chapter IV; or

(iv) because the employee refused to join, was refused membership of or was expelled from a trade union party to a closed shop agreement.

(5A) 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 concerns –

(a) the dismissal of an employee for any reason relating to probation;

(b) any unfair labour practice relating to probation;

(c) 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.

(6) Despite subsection (5)(a) or (5A), the 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;

(c) the complexity of the dispute;

(d) whether there are conflicting arbitration awards that need to be resolved;

(e) the public interest.

(7) When considering whether the dispute should be referred to the Labour Court, the director must give the parties to the dispute and the commissioner who attempted to conciliate the dispute, an opportunity to make representations.

(8) The director must notify the parties of the decision and refer the dispute-

(a) to the Commission for arbitration; or

(b) to the Labour Court for adjudication.

(9) The director's decision is final and binding.

(10) No person may apply to any court of law to review the director's decision until the dispute has been arbitrated or adjudicated, as the case may be.

(11) (a) The referral, in terms of subsection (5)(b), of a dispute to the Labour Court for adjudication must be made within 90 days after the council or (as the case may be) the commissioner has certified that the dispute remains unresolved.

(b) However, the Labour Court may condone non-observance of that timeframe on good cause shown.

(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.

(13) (a) An employee 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).

52. See flow diagrams Nos. 10, 11, 12 and 13 in Schedule 4.

197. Transfer of contract of employment

(1) In this section and in section 197A –

(a) ‘business’ includes the whole or a part of any business, trade, undertaking or service; and

(b) ‘transfer’ means the transfer of a business by one employer (‘the old employer’) to another employer (‘the new employer’) as a going concern.

198. Temporary Employment Services

(1) In this section, "temporary employment service" means any person who, for reward, procures for or provides to a client other persons-

(a) who render services to, or perform work for, the client; and

(b) who are remunerated by the temporary employment service.

(2) For the purposes of this Act, a person whose services have been procured for or provided to a client by a temporary employment service is the employee of that temporary employment service, and the temporary employment service is that person's employer.

(3) Despite subsections (1) and (2), a person who is an independent contractor is not an employee of a temporary employment service, nor is the temporary employment service the employer of that person.

(4) The temporary employment service and the client are jointly and severally liable if the temporary employment service, in respect of any of its employees, contravenes-

(a) a collective agreement concluded in a bargaining council that regulates terms and conditions of employment;

(b) a binding arbitration award that regulates terms and conditions of employment;

(c) the Basic Conditions o Employment Act; or

(d) a determination made in terms of the Wage Act.

(5) Two or more bargaining councils may agree to bind the following persons, if they fall within the combined registered scope of those bargaining councils, to a collective agreement concluded in any one of them-

(a) temporary employment service;

(b) a person employed by a temporary employment service; and

(c) a temporary employment service client.

(6) An agreement concluded in terms of subsection (5) is binding only if the collective agreement has been extended to non-parties within the registered scope of the bargaining council.

(7) Two or more bargaining councils may agree to bind the following persons, who fall within their combined registered scope, to a collective agreement-

(a) temporary employment service;

(b) a person employed by a temporary employment service; and

(c) a temporary employment service's client.

(8) An agreement concluded in terms of subsection (7) is binding only if-

(a) each of the contracting bargaining councils has requested the Minister to extend the agreement to non-parties falling within its registered scope;

(b) the Minister is satisfied that the terms of the agreement are not substantially more onerous than those prevailing in the corresponding collective agreements concluded in the bargaining councils; and

(c) the Minister, by notice in the Government Gazette, has extended the agreement as requested by all the bargaining councils that are parties to the agreement.

200A. Presumption as to who is employee

(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:

(a) the manner in which the person works is subject to the control or direction of another person;

(b) the person’s hours of work are subject to the control or direction of another person;

(c) in the case of a person who works for an organisation, the person forms part of that organisation;

(d) the person has worked for that other person for an average of at least 40 hours per month over the last three months;

(e) the person is economically dependent on the other person for whom he or she works or renders services;

(f) the person is provided with tools of trade or work equipment by the other person; or

(g) 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 employees.

(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 employees.

201. Confidentiality

(1) A person commits an offence by disclosing any information relating to the financial or business affairs of any other person or any business, trade or undertaking if the information was acquired by the first-mentioned person in the performance of any function or exercise of any power in terms of this Act, in any capacity, by or on behalf of-

(a) a council; (b) any independent body established by a collective agreement or determination to grant exemptions from the provisions of the collective agreement or determination;

(c) the registrar;

(d) the Commission; and

(e) an accredited agency.

(2) Subsection (1) does not apply if the information was disclosed to enable a person to perform a function or exercise a power in terms of this Act.

(3) (a) A person convicted of an offence in terms of this section may be sentenced to a fine not exceeding R10 000.

(b) The Minister, in consultation with the Minister of Justice, may from time to time by notice in the Government Gazette, amend the maximum amount of the fine referred to in paragraph (a).

203. Codes of good practice

(1) NEDLAC may-

(a) prepare and issue codes of good practice; and

(b) change or replace any code of good practice.

(2) Any code of good practice, or any change to or replacement of a code of good practice, must be published in the Government Gazette.

(3) Any person interpreting or applying this Act must take into account any relevant code of good practice.

(4) A Code of Good Practice issued in terms of this section may provide that the code must be taken into account in applying or interpreting any employment law.

New section

201. Confidentiality

(1) A person commits an offence by disclosing any information relating to the financial or business affairs of any other person or any business, trade or undertaking if the information was acquired by the first-mentioned person in the performance of any function or exercise of any power in terms of this Act, in any capacity, by or on behalf of-

(a) a council; (b) any independent body established by a collective agreement or determination to grant exemptions from the provisions of the collective agreement or determination;

(c) the registrar;

(d) the Commission; and

(e) an accredited agency.

(2) Subsection (1) does not apply if the information was disclosed to enable a person to perform a function or exercise a power in terms of this Act.

(3) (a) A person convicted of an offence in terms of this section may be sentenced to a fine not exceeding R10 000.

(b) The Minister, in consultation with the Minister of Justice, may from time to time by notice in the Government Gazette, amend the maximum amount of the fine referred to in paragraph (a).

205. Records to be kept by employer

(1) Every employer must keep the records that an employer is required to keep in compliance with any applicable-

(a) collective agreement;

(b) arbitration award;

(c) determination made in terms of the Wage Act.

(2) An employer who is required to keep records in terms of subsection (1) must-

(a) retain those records in their original form or a reproduced form for a period of three years from the date of the event or end of the period to which they relate; and

(b) submit those records in their original form or a reproduced form in response to a demand made at any reasonable time, to any agent of a bargaining council, commissioner or any person whose functions in terms of this Act include the resolution of disputes.

(3) (a) An employer must keep a record of the prescribed details of any strike, lock-out or protest action involving its employees.

(b) An employer must submit those records in the prescribed manner to the registrar.

213. Definitions.

In this Act, unless the context otherwise indicates –

"area" includes any number of areas, whether or not contiguous;

"auditor" means any person who is registered to practise in the Republic as a public accountant and auditor;

"bargaining council" means a bargaining council referred to in section 27 and includes, in relation to the public service, the bargaining councils referred to in section 35;

"Basic Conditions of Employment Act" means the Basic Conditions of Employment Act, 1997 (Act No.75 of 1997);

"code of good practice" means a code of practice issued by NEDLAC in terms of section 203(1) of this Act;

"collective agreement" means a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand-

(a) one or more employers;

(b) one or more registered employers' organisations; or

(c) one or more employers and one or more registered employers' organisations; " council" includes a bargaining council and a statutory council;

"director" means the director of the Commission appointed in terms of section II 8(1) and includes any acting director appointed in terms of section 119; "dismissal" means dismissal as defined in section 186;

"dispute" includes an alleged dispute;

"employee "54 means –

(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and

(b) any other person who in any manner assists in carrying on or conducting the business of an employer, and "employed" and "employment" have meanings corresponding to that of " employee";

54. "Employee" is given a different and specific meaning in section 78 in Chapter V.

"employers' organisation" means any number of employers associated together for the purpose, whether by itself or with other purposes, of regulating relations between employers and employees or trade unions;

“employment law” includes this Act, any other act the administration of which has been assigned to the Minister, and nay of the following acts:

(a) the Unemployment Insurance Act, 1966 (Act No. 30 of 1966);

(b) 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); and

(e) the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993);

"essential service" means –

(a) a service the interruption of which endangers the life, personal safety or health of the whole or any part of the population;

(b) the Parliamentary service;

(c) the South African Police Services;

"issue in dispute", in relation to a strike or lock-out, means the demand, the grievance, or the dispute that forms the subject matter of the strike or lock-out;

"legal practitioner" means any person admitted to practise as an advocate or an attorney in the Republic;

"lock out" means the exclusion by an employer of employees from the employer's workplace, for the purpose of compelling the employees to accept a demand in respect of any matter of mutual interest between employer and employee, whether or not the employer breaches those employees' contracts of employment in the course of or for the purpose of that exclusion;

"Minister" means the Minister of Labour;

"NEDLAC" means the National Economic Development and Labour Council established by section 2 of the National Economic, Development and Labour Council Act, 1994 (Act No. 35 of 1994);

"office-bearer" means a person who holds office in a trade union, employers' organisation, federation of trade unions, federation of employers' organisations or council and who is not an official;

"official", in relation to a trade union, employers' organisation, federation of trade unions or federation of employers' organisations means a person employed as the secretary, assistant secretary or organiser of a trade union, employers' organisation or federation, or in any other prescribed capacity, whether or not that person is employed in a full-time capacity. And, in relation to a council means a person employed by a council as secretary or in any other prescribed capacity, whether or not that person is employed in a full-time capacity;

"operational requirements" means requirements based on the economic, technological, structural or similar needs of an employer;

"prescribed" means prescribed from time to time by regulation in terms of section 208;

"protest action" means the partial or complete concerted refusal to work, or the retardation or obstruction of work, for the purpose of promoting or defending the socio-economic interests of workers, but not for a purpose referred to in the definition of strike;

"public service" means the national departments, provincial administrations, provincial departments and organisational components contemplated in section 7(2) of the Public Service Act, 1994 (promulgated by Proclamation No. 103 of 1994), but excluding-

(a) the members of the South African National Defence Force;

(b) the National Intelligence Agency; and

(c) the South African Secret Service.

"registered scope" means-

(a) in the case of the Public Service Co-ordinating Bargaining Council, the public service as a whole, subject to section 36;

(b) in the case of bargaining councils established for sectors in the public service, the sector designated by the Public Service Co-ordinating Bargaining Council in terms of section 37(1);

(c) in the case of any other council, the sector and area in respect of which it is registered in terms of this Act;

"registrar" means the registrar of labour relations appointed in terms of section 108 and includes-

(a) any deputy registrar appointed in terms of that section when acting on the direction or under a general or special delegation of the registrar; and

(b) any acting registrar appointed in terms of that section;

"remuneration" means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State, and "remunerate" has a corresponding meaning;

"Republic"-

(a) when used to refer to the State as a constitutional entity, means the Republic of South Africa as defined in section I of the Constitution; and

(b) when used in the territorial sense, means the national territory of the Republic as defined in section I of the Constitution;

"sector" means, subject to section 37, an industry or a service;

"serve " means to send by registered post, telegram, telex, telefax or to deliver by hand;

"statutory council" means a council established in terms of Part E of Chapter 111;

"strike" means the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to "work" in this definition includes overtime work, whether it is voluntary or compulsory;

"this Act" includes the section numbers, the Schedules, except Schedules 4 and 8, and any regulations made in terms of section 208, but does not include the page headers, the headings or footnotes;

"trade union" means an association of employees whose principal purpose is to regulate relations between employees and employers, including any employers' organisations;

"trade union representative" means a member of a trade union who is elected to represent employees in a workplace-,

"Wage Act" means the Wage Act, 1957 (Act No. 5 of 1957);

"working hours" means those hours during which an employee is obliged to work;

"workplace"-

(a) in relation to the public service –

(i) for the purposes of collective bargaining and dispute resolution, the registered scope of the Public Service Co-ordinating 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 component 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.;

(c) in all other instances means the place or places where the employees of an employer work. If an employer carries on or conducts two or more operations that are independent of one another by reason of their size, function or organisation, the place or places where employees work in connection with each independent operation, constitutes the workplace for that operation; and

"workplace forum" means a workplace forum established in terms of Chapter V.