Labour Relations Act, 1995 (Act No. 66 of 1995)NoticesBargaining Council for the Metal and Engineering IndustriesDispute Resolution AgreementExtension of the Dispute Resolution Collective Agreement to Non-parties6. Dispute Resolution |
| 6.1. | Preamble |
| (a) | Subject to sub-clause (c) below; the procedures set out in this Agreement shall be utilised to deal with all disputes arising within the Council's jurisdiction as defined in Clause (1) above. |
| (b) | Different processes shall be utilised for different types of disputes, as set out below. In the event of a dispute over which section should be applied, the dispute shall be processed in accordance with sub-clause 6.1.3.1 below. Notwithstanding this Agreement, parties may agree to meet whenever they mutually deem it necessary for the purpose of resolving a dispute. They may give consideration at their own cost to privately appointing a mediator, arbitrator or referring the dispute to any other process, as agreed between them. |
| (c) | Notwithstanding sub-clause (a) above, employers and employees may, through a collective agreement establish their own dispute procedure which does not necessitate them having to refer disputes to the Council, even though the parties fall within the Council's jurisdiction. |
| (d) | If at any stage after a dispute has been referred to the Council, it becomes apparent that the dispute ought to have been resolved through private dispute resolution in terms of a collective agreement or in terms of a private agreement between the parties to the dispute, the Council may refer the dispute back to the referring parties for processing in terms of their private dispute resolution procedure. |
| (e) | The Council is in terms of Section 127(5) of the Labour Relations Act No.66 of 1995 as amended accredited to conciliate and arbitrate disputes. |
| 6.1.1. | Negotiating Procedure |
| (a) | Where any party to the Council wishes to initiate negotiations for the amendment of any existing agreement or the introduction of a new agreement, that party shall submit its proposals in writing to the General Secretary of the Council at the address as listed in Schedule 1 to this Rules. |
| (b) | The General Secretary shall immediately arrange for the proposal to be circulated to all interested parties and shall take steps to arrange a negotiating meeting within 45 days of receipt of the proposal. Where the General Secretary, in consultation with the President of the Council, decides that the proposal relates to the negotiation of an industry matter, the date of the first negotiating meeting shall be decided at the next meeting of the Council's Management Committee, and such negotiating meeting shall be held within 30 days of that Management Committee meeting. |
| (c) | Further negotiating meetings may be held by agreement between the parties, who may also agree on any procedures, documentation, or any other matters for the purposes of assisting the negotiations. |
| (d) | If negotiations have not been resolved in terms of sub-clause 6.1.1(b) above or as otherwise agreed between the parties, any party to those negotiations may declare a dispute by notice in writing to the Council and must satisfy the Council that a copy of the referral has been served on all other parties to the dispute, Industry disputes shall be processed in accordance with sub-clause 6.1.2 below. |
| 6.1.2. | Disputes about Negotiations |
| (a) | In the event that the General Secretary, in consultation with the President of the Council, decides that a dispute declared in terms of sub-clause 6.1.1(d) above is an industry matter, he/she shall arrange for the Management Committee to meet within 14 days of the declaration of such dispute, for the purposes of considering the matter. |
| (b) | The Management Committee shall use its best endeavours to settle the dispute and shall meet as often as it deems necessary for this purpose. In the course of its deliberations the Committee may give consideration to the following:— |
| (i) | appointing a sub-committee to meet within a specified number of days, for the purposes of attempting to resolve the dispute, or to recommend to the Management Committee a process by which the dispute can be resolved; |
| (ii) | referring the dispute to conciliation in terms of the Act and the Rules for conciliating and arbitrating disputes attached as Schedule A hereto. This shall be compulsory, in the case of a dispute involving a non-party to the Council; |
| (iii) | referring the dispute to arbitration in terms of the Act and the Rules; |
| (iv) | instructing the General Secretary to issue a certificate stating that the dispute remains unresolved. |
| (c) | Subject to this Agreement, if the dispute has not been settled within 30 days from the date on which the dispute was referred to the Council, and if the parties have not within that period agreed on a process to resolve the dispute, any party to the dispute shall be entitled to pursue whatever means are available in the Act to process that dispute. |
| 6.1.3. | Dispute Settlement Procedures |
Disputes within the Council's jurisdiction in terms of section 51 of the Act and which do not fall within the scope of sub-clause 6.1.1 above, shall be dealt with in terms of the Act in conjunction with the CCMA Rules as published from time to time.
| 6.1.3.1 | Disputes about the Interpretation or Application of the Council's Collective Agreements |
| (a) | In the event of a dispute arising relating to the interpretation or application of a Collective Agreement in terms of section 24(2) of the Act, it shall be processed in terms of the Rules. |
| (b) | This part excludes demarcation disputes referred to in section 62 of the Act and which are to be referred to the Commission. |
| (c) | A party wishing to refer such a dispute may refer the dispute in writing, setting out the details of the dispute to the Council if: |
| (i) | The collective agreement does not provide for a procedure. |
| (ii) | The procedure provided for in the collective agreement is inoperative. |
| (iii) | Any party to the collective agreement has frustrated the resolution of the dispute in terms of the collective agreement. |
| 6.1.3.2 | Enforcement of Collective Agreements by the Council |
Disputes within the Council's jurisdiction in terms of section 33A of the Act shall be dealt with in terms of the Act and Clause 8 below, in conjunction with the Rules.
| (a) | Despite any other provision the council shall monitor and enforce compliance with its collective agreements in terms of this clause or a collective agreement concluded by the parties to the Council. |
| (b) | For the purpose of this clause the collective agreement is deemed to include— |
| (i) | any condition of employment of any employee covered by a collective agreement; and |
| (ii) | the rules of any fund or scheme established by the Council. |
| (c) | The council may refer any unresolved dispute, in terms of this agreement, concerning compliance with any provision of a collective agreement to arbitration by an arbitrator appointed by the Council. |
| (d) | If a party to an arbitration in terms of this clause that is not a party to the Council, objects to the appointment of an arbitrator in terms of sub-clause (c) above, the Commission, on request by the Council must appoint an arbitrator. |
| (e) | An arbitrator conducting an arbitration in terms of this clause has the powers of a commissioner in terms of Section 142 of the Act, read with the changes required by the context. |
| (f) | An arbitrator acting in terms of this clause may determine any dispute concerning the interpretation or application of a collective agreement. |
| (g) | An arbitrator conducting an arbitration in terms of this clause may make an appropriate award, including— |
| (i) | ordering any person to pay any amount owing in terms of a collective agreement; |
| (ii) | imposing a fine for a failure to comply with a collective agreement in accordance with sub-clause (i) and Table One and Two as set out hereunder; |
| (iii) | charging a party an arbitration fee; |
| (iv) | ordering a party to pay the costs of the arbitration; |
| (v) | confirming, varying or setting aside a compliance order issued by a designated agent; |
| (vi) | any award contemplated in Section 138(9) of the Act. |
| (h) | Interest on any amount that a person is obliged to pay in terms of a collective agreement accrues from the date on which the amount was due and payable at the rate prescribed in terms of Section 1 of the Prescribed Rate of Interest Act, 1975 (Act 55 of 1975), unless the arbitration award provides otherwise. |
| (i) | An award in an arbitration conducted in terms of this clause is final and binding and may be enforced in terms of Section 143 of the Act. |
| (j) | If an employer upon whom a fine has been imposed in terms of this clause files an application to review and set aside an award made in terms of sub-clause (g) above, any obligation to pay a fine is suspended pending the outcome of the application. |
| (k) | The maximum fine that may be imposed by an arbitrator acting in terms of this clause is subject to variation by notice of the Minister as published in the Government Gazette. A notice in terms of this paragraph may specify the maximum fine that may be imposed— |
| (i) | For a breach of a collective agreement— |
| (aa) | not involving a failure to pay any amount of money; |
| (bb) | involving a failure to pay any amount of money; and |
| (ii) | For repeated breaches of the collective agreement contemplated in subparagraph (a). |
| 6.1.3.3 | Arbitration in terms of Clause 6.1.2.2 above |
| (a) | The maximum fine that may be imposed by an arbitrator: |
| (i) | For a failure to comply with a provision of a collective agreement not involving a failure to pay any amount of money, is the fine determined in terms of Table One; and |
| (ii) | Involving a failure to pay an amount due in terms of a 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 |
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 whom the failure to comply occurs |
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 |
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 or more 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: MAXIMUM PERMISSIBLE FINE INVOLVING AN UNDERPAYMENT
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 a year, 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. |