| 10. | How to refer a dispute to the Council for conciliation |
| (1) | A party must refer a dispute to the Council for conciliation by delivering a completed prescribed Council LRA Form 7.11 ('the referral document'). |
| (2) | The referring party must— |
| (a) | sign the referral document in accordance with Rule 4; and |
| (b) | attach to the referral document, written proof, in accordance with Rule 6, that the referral document was served on the other parties to the dispute. |
| (c) | if the referral document is filed out of time, attach an application for condonation in accordance with Rule 9(3) read with Rule 31. |
| (3) | The Council must accept, but may refuse to process, a referral document until sub-rule (2) has been complied with. |
| 11. | When must the Council notify parties of a conciliation |
| (1) | The Council must notify the parties in writing of a conciliation hearing at least— |
| (a) | seven (7) days prior to the scheduled date in matters relating to Section 64. |
| (b) | fourteen (14) days prior to the scheduled date, in the case of any other matter. |
| (2) | Despite sub-rule 1, the Council may give the parties a shorter period of notice, if the parties have agreed or reasonable circumstances require a shorter period. |
| (3) | An additional seven (7) days must be provided, if a notice of conciliation in terms of this rule is sent by registered mail only. |
| 12. | Council may seek to resolve dispute before conciliation |
The Council or a commissioner may contact the parties by telephone or other means, prior to the commencement of the conciliation, in order to seek to resolve the dispute.
| 13. | What happens if a party fails to attend at conciliation |
| (1) | If a party who has referred a dispute fails to attend or to be represented as contemplated in Rule 25(1)(a), the commissioner may— |
| (a) | continue with the proceedings; |
| (b) | adjourn the conciliation to a later date within the 30-day period; or |
| (c) | conclude the proceedings by issuing a certificate that the dispute remains unresolved. |
| (2) | In exercising a discretion in terms of sub-rule (1), a commissioner should take into account, amongst other things— |
| (a) | whether the party has previously failed to attend a conciliation in respect of that dispute; |
| (b) | any reason given for that party's failure to attend; |
| (c) | whether conciliation can take place effectively in the absence of one or more of the parties; |
| (d) | the likely prejudice to the other party of the commissioner's ruling; and |
| (e) | any other relevant factors. |
| 14. | How to determine whether a commissioner may conciliate a dispute |
If it appears during conciliation proceedings that a jurisdictional issue has not been determined, the commissioner must require the referring party to prove that the Council has the jurisdiction to conciliate the dispute through conciliation.
| 14A. | Extension of conciliation period in terms of Section 135(2A) of the Act |
| (1) | The concilliating commissioner or a party to a conciliation process may request an extension of the conciliation period referred to in Section 135. |
| (2) | The request must be made on the prescribed form and before the expiry of the conciliation period as determined in terms of Section 135. |
| (3) | The Council's Head of Dispute Resolution must within 2 (two) days of receipt of the request— |
| • | An extension is necessary to ensure a meaningful conciliation process; |
| • | The refusal to agree to the extension is unreasonable; and |
| • | There are reasonable prospects of reaching agreement; and |
| (b) | Advice the parties on whether or not the extension is granted and where the extension is granted, the period of such extension |
| (4) | The Council's Head of Dispute Resolution may not extend the conciliation period if the State is the employer party. |
| 15. | Issuing of a certificate in terms of Section 135(5) |
A certificate issued in terms of Section 135(5) that the dispute has or has not been resolved, must identify the nature of the dispute and the parties as described in the referral document or as identified by the Commissioner during the conciliation proceedings.
| 16. | Conciliation proceedings may not be disclosed |
| (1) | Conciliation proceedings are private and confidential and are conducted on a without prejudice basis. No person may refer to anything said at conciliation proceedings during any subsequent proceedings, unless the parties agree in writing or as ordered otherwise by a court of law. |
| (2) | No person, including a commissioner, may be called as a witness during any subsequent proceedings in the Council or in any court to give evidence about what transpired during conciliation unless as ordered by a court of law or a commissioner conducting an arbitration. |
