The Council shall take all reasonable steps 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 may request designated agent to investigate the alleged breach. |
| (b) | If, on completion of the investigation, the designated agent has reason to believe that this Agreement has been breached, the designated agent may endeavor to secure compliance with this Agreement through conciliation. The designated agent may issue a compliance order, which calls upon a person or party to comply in a specified manner and in within a specified time period, with the terms of this Agreement |
| (c) | At the end of the investigation, the designated agent shall submit a report to the Secretary of the Council as to the result of the investigation, the steps taken to secure compliance with this Agreement through conciliation and the outcome thereof. |
| (d) | On receipt of the report, the Secretary may— |
| (i) | require the designated agent to make further investigations; or |
| (ii) | refer the matter to arbitration in terms of this Agreement; or |
| (iii) | take such other steps as may be deemed reasonable. |
| (e) | If the Secretary of the Council decides to refer the matter to arbitration, he shall appoint an arbitrator to hear and determine the alleged breach of this Agreement. |
| (f) | The Secretary of the Council shall decide the date, time and venue of the arbitration hearing. |
| (g) | The Secretary of the Council shall serve notices of the date, time and venue of the arbitration on all the parties who may have legal interest in the outcome of the arbitration. Any party who has legal interest in the outcome of the arbitration shall have to right to— |
| (iii) | question witnesses of any other party; |
| (iv) | address concluding arguments to the arbitrator; |
| (aa) | legal practitioner; or |
| (ab) | 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 the Agreement; |
| (ii) | to make any appropriate award that gives effect to the Agreement and ensures compliance therewith; |
| (iii) | to determine the appropriate form of and procedure to be followed at the arbitration proceedings; |
| (iv) | to make any order as to costs that he deems appropriate and where the Act provides for such an order to be made or for the Council to recover its costs of providing the arbitration service. The arbitrator shall make a costs order against the party concerned which shall, as a minimum, cover the Council's cost of dealing with the dispute; |
| (v) | to make an award in the absence of a party who is alleged to have breached the Agreement if— |
| (i) | the party fails to appear in person or be represented at the arbitration proceedings; |
| (ii) | proof is presented that such party has been notified of the proceedings; |
| (iii) | prima fade evidence has been presented to the arbitration that the party in question has failed to comply with this Agreement. |
| (vi) | vary, rescind or amend an arbitration award made by him or any other arbitrator on good cause shown. Without limiting the generality hereof, the arbitrator shall have this power if— |
| (i) | the award was erroneously sought or erroneously made in the absence of any party affected by the award; |
| (ii) | the award is ambiguous or contains an obvious error or omission, but only to the effect of that ambiguity, error or omission; |
| (iii) | the award was granted as a result of a mistake common to the parties to the proceedings; |
| (vii) | to subpoena witnesses to attend a hearing, if necessary. |
| (viii) | If the arbitrator finds that any party has failed to comply with any of the provisions of the Council's Collective Agreement, which is binding on that party, the arbitrator may, in addition to any other appropriate order, impose a fine. |
| (ix) | The maximum fine that may be imposed by the arbitrator in terms of section 33A(8)(b) of the Act— |
| (a) | for a failure to comply with a provision of the Collective Agreement not involving a failure to pay any amount of money, is the fine determined in terms of Table One; and |
| (b) | involving a failure to pay an amount due in terms of the Collective Agreement, is the greater of the amounts determined in terms of Table One and Table Two. |
TABLE ONE: MAXIMUM PERMISSIBLE FINE NOT INVOLVING AN UNDERPAYMENT
No previous failure to comply
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R100 per employee in respect of whom the failure to comply occurs
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A previous failure to comply in respect of the same provision
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R200 per employee in respect of whom the failure to comply occurs
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A previous failure to comply within the previous 12 months or two previous failures to comply in respect of the same provisions within three years
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R300 per employee in respect of whom the failure to comply occurs
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Three previous failures to comply in respect of the same provision within three years
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R400 per employee in respect of whom the failure to comply occurs
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Four or more previous failures to comply in respect of the same provision within three years
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R500 per employee in respect of whom the failure to comply occurs
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TABLE TWO: MAXIMUM PERMISSIBLE FINE INVOLVING AN UNDERPAYMENT
No previous failure to comply
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25% of the amount due, including any interest owing on the amount at the date of the order
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A previous failure to comply in respect of the same provision within three years
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50% of the amount due, including any interest owing on the amount at the date of the order
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A previous failure to comply in respect of the same provision within a year, or two previous failures to comply in respect of the same provision within three years
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75% of the amount due, including any interest owing on the amount at the date of the order
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Three previous failures to comply in respect of the same provision within three years
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100% of the amount due, including any interest owing on the amount at the date of the order
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Four or more previous failures to comply in respect of the same provision within three years
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200% of the amount due, including any interest owing on the amount at the date of the order
|
| (i) | The Secretary of the Council may apply to enforce an arbitration award as if it were an order of the Labour Court, unless it is an advisory arbitration award, in terms of section 143 of the Act. |
| (j) | All arbitrations conducted by the Council are heard in terms of the Labour Relations Act and not the Arbitration Act 42 of 1965. |
| (k) | the Council may apply to the Labour Court or the High Court to hold directors of establishments personally liable for any outstanding amounts due in terms of this Agreement. |
[Clause 29D(k) inserted by Correction Notice No. R. 1066, GG43781, dated 9 October 2020]
