Labour Relations Act, 1995 (Act No. 66 of 1995)Chapter III : Collective BargainingPart F : General Provisions concerning Councils62. Disputes about demarcation between sectors and areas |
| (1) | Any registered trade union, employer, employee, registered employers" organisation or council that has a direct or indirect interest in the application contemplated in this section may apply to the Commission in the prescribed form and manner for a determination as to— |
| (a) | whether any employee, employer, class of employees or class of employers, is or was employed or engaged in a sector or area; |
| (b) | whether any provision in any arbitration award, collective agreement or wage determination made in terms of the Wage Act is or was binding on any employee, employer, class of employees or class of employers. |
| (2) | If two or more councils settle a dispute about a question contemplated in subsection (1)(a) or (b), the councils must inform the Minister of the provisions of their agreement and the Minister may publish a notice in the Government Gazette stating the particulars of the agreement. |
| (3) | In any proceedings in terms of this Act before the Labour Court, if a question contemplated in subsection (1)(a) or (b) is raised, the Labour Court must adjourn those proceedings and refer the question to the Commission for determination if the Court is satisfied that— |
| (a) | the question raised— |
| (i) | has not previously been determined by arbitration in terms of this section; and |
| (ii) | is not the subject of an agreement in terms of subsection (2); and |
| (b) | the determination of the question raised is necessary for the purposes of the proceedings. |
| (3A) | In any proceedings before an arbitrator about the interpretation of or application of a collective agreement, if a question contemplated in subsection (1)(a) or (b) is raised, the arbitrator must adjourn those proceedings and refer the question to the Commission if the arbitrator is satisfied that — |
| (a) | the question raised — |
| (i) | has not previously been determined by arbitration in terms of this section; and |
| (ii) | is not the subject of an agreement in terms of subsection (2); and |
| (b) | the determination of the question raised is necessary for the purposes of the proceedings. |
| (4) | When the Commission receives an application in terms of subsection (1) or a referral in terms of subsection (3), it must appoint a commissioner to hear the application or determine the question, and the provisions of section 138 apply, read with the changes required by the context. |
| (5) | In any proceedings in terms of this Act before a commissioner, if a question contemplated in subsection (1)(a) or (b) is raised, the commissioner must adjourn the proceedings and consult the director, if the commissioner is satisfied that— |
| (a) | the question raised— |
| (i) | has not previously been determined by arbitration in terms of this section; and |
| (ii) | is not the subject of an agreement in terms of subsection (2); and |
| (b) | the determination of the question raised is necessary for the purposes of the proceedings. |
| (6) | The director must either order the commissioner concerned to determine the question or appoint another commissioner to do so, and the provisions of section 138 apply, read with the changes required by the context. |
| (7) | If the Commission believes that the question is of substantial importance, the Commission must publish a notice in the Government Gazette stating the particulars of the application or referral and stating the period within which written representations may be made and the address to which they must be directed. |
| (8) | If a notice contemplated in subsection (7) has been published, the commissioner may not commence the arbitration until the period stated in the notice has expired. |
| (9) | Before making an award, the commissioner must consider any written representations that are made, and must consult NEDLAC. |
| (10) | The commissioner must send the award, together with brief reasons, to the Labour Court and to the Commission. |
| (11) | If the Commission believes that the nature of the award is substantially important, it may publish notice of the award in the Government Gazette. |
| (12) | The registrar must amend the certificate of registration of a council in so far as is necessary in light of the award. |