| (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 Employment Act constitutes a term of employment of any employee covered by the collective agreement; 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 collective agreement within a specified period. |
| (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. |
| (b) | 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 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; and |
| (ii) | the arbitration is not conducted under the auspices of the Commission. |
| (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 collective 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 agreement; |
| (b) | imposing a fine for a failure to comply with a collective agreement in accordance with subsection (13); |
| (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 designated agent in accordance with subsection (4); |
| (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. |
| (11) | Any reference in section 138 or 142 to the director must be read as a reference to the secretary of the bargaining 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. |
| (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. |
| (b) | A notice in terms of paragraph (a) may specify the maximum fine that may be imposed— |
| (i) | for a breach of a collective agreement— |
| (aa) | not involving a failure to pay any amount of money; |
| (bb) | involving a failure to pay any amount of money; and |
| (ii) | for repeated breaches of the collective agreement contemplated in subparagraph (i). |
[Section 33A inserted by section 7 of Act No. 12 of 2002]
