| (1) | In this section, dispute means any dispute about a matter of mutual interest between— |
| (ii) | one or more employees; or |
| (iii) | one or more trade unions and one or more employees; and |
| (i) | one or more employers" organisations; |
| (ii) | one or more employers; or |
| (iii) | one or more employers" organisations and one or more employers. |
| (i) | The parties to a council must attempt to resolve any dispute between themselves in accordance with the constitution of the council. |
| (ii) | For the purposes of subparagragh (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. |
[Section 51(7) inserted by section 10(a) of Act No. 12 of 2002]
| (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. |
[Section 51(8) inserted by section 10(a) of Act No. 12 of 2002]
| (9) | A bargaining council may, by collective agreement— |
| (a) | establish procedures to resolve any dispute contemplated in this section; |
| (b) | provide for payment of a dispute resolution levy; and |
| (c) | provide for the payment of a fee in relation to any conciliation or arbitration proceedings in respect of matters for which the commission may charge a fee in terms of section 115(2A)(l), which may not exceed the fee provided for in that section. |
[Section 51(9) substituted by section 6 of Act No. 6 of 2014]
| 11 | The following disputes, contemplated by subsection (3), must be referred to a council: disputes about the interpretation or application of the provisions of Chapter II (see section 9); disputes that form the subject matter of a proposed strike or lock—out (see section 64(1)); disputes in essential services (see section 74); disputes about unfair dismissals (see section 191); disputes about severance pay (see section 196); and disputes about unfair labour practices (see item 2 in Schedule 7). |
The following disputes, contemplated by subsection (3), may not be referred to a council: disputes about organisational rights (see sections 16 , 21 and 22); disputes about collective agreements where the agreement does not provide for a procedure or the procedure is inoperative or any party frustrates the resolution of the dispute (see section 24(2) to (5)); disputes about agency shops and closed shops (see section 24(6) and (7) and section 26(11)); disputes about determinations made by the Minister in respect of proposals made by a statutory council (see section 45); disputes about the interpretation or application of collective agreements of a council whose registration has been cancelled (see section 61(5) to (8)); disputes about the demarcation of sectors and areas of councils (see section 62); disputes about the interpretation or application of Part C (bargaining councils), Part D (bargaining councils in the public service), Part E (statutory councils) and Part F. (general provisions concerning councils) (see section 63); disputes concerning pickets (see section 69(8) to (10)); disputes about proposals that are the subject of joint decision—making in workplace forums (see section 86); disputes about the disclosure of information to workplace forums (see section 89); and disputes about the interpretation or application of the provisions of Chapter V which deals with workplace forums (see section 94).
