Labour Relations Act, 1995 (Act No. 66 of 1995)NoticesBargaining Council for the Building Industry, Cape of Good HopeRe-enactment and Amendment of Main Collective Agreement25. Resolution of Disputes |
| (1) | Procedure to enforce compliance with this Agreement: The Council shall take all reasonable steps necessary to ensure compliance with this Agreement. If, whether through its own investigations or through any other source, it appears as if the provisions of this Agreement have been breached then the following procedure shall apply to enforce compliance: |
| (a) | The Secretary of the Council shall appoint a designated agent to investigate the alleged breach. |
| (b) | If, upon completion of the investigation, the designated agent has reason to believe that this Agreement has been breached, the agent shall issue a compliance order. |
| (c) | The Secretary of the Council may— |
| (i) | impose a penalty in terms of sub clause 25 (1) (I); or |
| (ii) | refer the matter to arbitration in terms of this Agreement if the respondent party does not consent to the compliance order or the penalty, in which case the respondent party may be ordered to pay the costs of the process; |
| (iii) | take such other steps as he may deem reasonable: |
| (d) | If the Secretary to the Council decides to refer the matter for arbitration, he shall appoint an arbitrator to hear and determine the alleged breach of this Agreement. |
| (e) | The Secretary, in consultation with all parties who may have a legal interest in the outcome of the arbitration, shall decide the date, time and venue of the arbitration hearing. |
| (f) | The Secretary of the Council shall serve notice of the date, time and venue of the arbitration on all parties who may have a legal interest in the outcome of the arbitration. |
| (g) | Any party who has a legal interest in the outcome of the arbitration shall have the right to— |
| (i) | give evidence; |
| (ii) | call witnesses; |
| (iii) | question the witnesses of any other party; |
| (iv) | address the concluding arguments to the arbitrator; |
| (v) | be represented by a legal practitioner or co-employee or an office-bearer or official of his trade union or employers" organisation and, if the party is a juristic person, by a director or employee thereof. |
| (h) | The arbitrator shall have the following powers: |
| (i) | To determine whether there has been a breach of this Agreement. |
| (ii) | To make any appropriate award that gives effect to the Collective Agreement and to ensure compliance therewith. |
| (iii) | To determine the appropriate form of and the procedure to be followed at the arbitration proceedings. |
| (iv) | To make any order as to costs that he deems appropriate. |
| (v) | To make an award in the absence of a party who is alleged to have breached the Agreement, if— |
| (aa) | such party fails to appear in person or to be represented at the arbitration proceedings; |
| (ab) | proof is presented that such party has been notified of the proceedings: Provided that notice of the arbitration proceedings shall be deemed to have been given if proof is presented that written notification has been forwarded to such party— |
| (A) | by registered mail to such party"s last-known address and 14 days have elapsed since such notification has been mailed; or |
| (B) | by fax transmission to such party"s last-known fax number; or |
| (C) | by hand delivery to such party"s last-known business or residential address; |
| (ac) | prima facie evidence has been presented to the arbitrator that the party in question has failed to comply with this Agreement. |
| (vi) | To vary, rescind or amend any arbitration award made by him or any arbitrator on good cause shown and without limiting the generality hereof the arbitrator shall have this power if— |
| (aa) | the award was erroneously sought or erroneously made in the absence of any party affected by the award; |
| (ab) | the ward is ambiguous or contains on obvious error or omission, but only to the effect of that ambiguity, error or omission; |
| (ac) | the award was granted as a result of a mistake common the parties to the proceedings. |
| (i) | Any award made by the arbitrator, together with any reasons, shall be served on all interested parties by the Council. |
| (j) | The Secretary of the Council may apply to make the arbitration award an order of the Labour Court in terms of section 158 (1) of the Act. |
| (k) | The provisions of this procedure shall stand in addition to any other legal remedy which the Council may apply to enforce a collective agreement. |
| (I) |
| (i) | the arbitrator finds that any party to the dispute has failed to comply with a provision of any of the Council"s Collective Agreements which are binding on that party, then the arbitrator must, in addition to any other appropriate order, impose a penalty on the non-compliant party in accordance with paragraph (l)(ii) below; |
| (ii) | The penalty that an arbitrator must impose for a failure to comply with a provision of a Collective Agreement— |
| (aa) | not involving a failure to pay an amount due to an employee/party in terms of any provision, shall be the penalty determined in terms of Table One; or |
| (ab) | involving a failure to pay an amount due to an employee/party, shall be the greater of the amount determined in terms of Table One or Table Two: |
TABLE ONE |
|
No previous failure to comply |
R100 per employee in respect of whom the failure to comply occurs. |
A previous failure to comply in respect of the same provision |
R200 per employee in respect of provision whom the failure to comply occurs. |
A previous failure to comply in respect of the same provision within the previous 12 months or two previous failures to comply in respect of the same provision within three years |
R300 per employee in respect of whom the failure to comply occurs. |
Three previous failures to comply in respect of the same provision within three years |
R400 per employee in respect of whom the failure to comply occurs. |
Four previous failures to comply in respect of the same provision within three years |
R500 per employee in respect of whom the failure to comply occurs. |
TABLE TWO |
|
No previous failure to comply |
25% of the amount due, including any interest owing on the amount at the date of the order. |
A previous failure to comply in respect of the same provision within three years |
50% of the amount due, including any interest owing on the amount at the date of the order. |
A previous failure to comply in respect of the same provision within the previous 12 months or two previous failures to comply in respect of the same provision within three years |
75% of the amount due, including any interest owing on the amount at the date of the order. |
Three previous failures to comply in respect of the same provision within three years |
100% of the amount due, including any interest owing on the amount at the date of the order. |
Four or more previous failures to comply in respect of the same provision within three years |
200% of the amount due, including any interest owing on the amount at the date of the order. |
| (m) | A cost award by an arbitrator may include the following costs or any costs which in the opinion of the arbitrator should be awarded: |
| (i) | Fee of the arbitrator including travelling and accommodation; |
| (ii) | venue costs; |
| (iii) | administration fee of the Council; |
| (iv) | costs of issuing subpoenas; |
| (v) | representative"s fee which is to be taxed by the Labour Cour; |
| (vi) | cost of the designated agent or other staff of the Council who have to attend the arbitration. |
| (2) | Procedure for the resolution of disputes about the application or interpretation of this Agreement: |
| (a) | Any person who falls within the registered scope of the Council may refer a dispute about the interpretation or application of this Agreement to the Council for resolution in terms of this Agreement. |
| (b) | If a dispute is so referred to the Council, it shall attempt to resolve the dispute- |
| (i) | through conciliation; and |
| (ii) | if the dispute remains unresolved after conciliation, the Council shall appoint an arbitrator to arbitrate the dispute. The powers of the arbitrator shall be the same as in sub clause (1) (i) above. |
| (c) | The Secretary of the Council may apply to have an arbitration award made an order of the Labour Court in terms of section 158 (1) of the Act. |
| (3) | Notwithstanding, the provisions of the clause the Council may utilise section 33A of the LRA 1995 (as amended) in conjunction with annexure "A" (Rules for conciliating and arbitrating disputes in the Building Industry Bargaining Council) to monitor and enforce compliance with its collective agreement and to conciliate and arbitrate LRA 1995 disputes. |