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-parties8. Dispute Resolution procedure for the Interpretation, Application, or Enforcement of Collective Agreements8.7. Arbitration |
| (a) | A dispute shall be referred to arbitration at the written request of any party to the dispute, provided such request is made to the Secretary within 30 days of the failure of conciliation in terms of Clause 8.6(b) above. |
| (b) | If the dispute is referred to arbitration, the Secretary shall appoint an arbitrator from the Council's panel of arbitrators. In making the appointment, the Secretary shall take into consideration any views the parties may express about their choice of arbitrator, and shall appoint an arbitrator who is independent of the Council in the event of the Council having a direct interest in the dispute. |
| (c) | After consultation with the parties and the appointed arbitrator, the Secretary must serve notice of the date, time and venue of the arbitration on:— |
| (i) | the parties to the dispute; |
| (ii) | any other person(s) or parties who he/she is aware may have a direct interest in the outcome of the arbitration. |
| (d) | In the event that the "other person(s) or parties" contemplated in sub-clause 8.7(c)(ii) above are employees of a party to the dispute, notice shall be deemed to be served if:— |
| (i) | it is served on a trade union of which they are a member; or |
| (ii) | it is prominently displayed on a notice board at their workplace. |
| (e) | Any notice contemplated in terms of sub-clause 8.7(d)(ii) above, shall provide for a process whereby such persons or parties, through their representatives, may elect to participate in the arbitration proceedings. The right of representation is subject to sub-clause (j) below. |
| (f) | The arbitrator may at any stage prior to or during the arbitration proceedings attempt to resolve the dispute through conciliation with the consent of the parties to the dispute. If appropriate, the arbitrator may refer the dispute to be conciliated by another conciliator. |
| (g) | In the event that the arbitrator attempts conciliation prior to the commencement of arbitration, any party to the dispute may, prior to the commencement of the arbitration object to that person continuing to arbitrate the dispute, by written notice to the secretary. In that event, the secretary shall appoint another arbitrator from the Council's panel as soon as possible. |
| (h) | The arbitrator may conduct the arbitration in the manner that he/she considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities. |
| (i) | Subject to the arbitrator's discretion as to the appropriate form of the proceedings, a party to the dispute may give evidence; call witness of any other party, and address concluding arguments to the arbitrator. |
| (j) | In any arbitration proceedings conducted in terms of this Procedure, a party to the dispute may represent him/herself or be represented only by a legal practitioner, co-employee or by a bona fide member, office bearer or official of that party's trade union or employers' organisation and, if the party is a juristic person, by a director or an employee. These provisions may be varied by agreement between the parties to the dispute. |
| (k) | Any arbitration in terms of this Procedure is conducted in terms of the Arbitration Act, 1965, provided that in terms of Section 17 of that Act, it is agreed that no formal record of proceedings shall be kept. It is further agreed that arbitration awards may be delivered other than in the presence of the parties, thereby enabling arbitrators to deliver awards to parties by fax, post or other similar means. |
| (l) | If the party who referred the dispute to the Council fails to appear in person or to be represented at the arbitration proceedings after having been given written notification thereof, the arbitrator may dismiss the matter. Subject to sub-clause (q) below, the arbitrator's decision shall be final and binding on all parties to the dispute. |
| (m) | If a party other than a party who referred the dispute to the Council fails to appear in person or to be represented at the arbitration proceedings the arbitrator may: |
| (i) | continue with the arbitration proceedings in the absence of that party; or |
| (ii) | adjourn the arbitration proceedings to a later date. |
| (n) | Within 14 days of the conclusion of the arbitration proceedings, the arbitrator must issue a signed arbitration award with reasons, and the Council must, as soon thereafter as possible, serve a copy of that award on each party to the dispute. The award shall be final and binding on all parties to the dispute. |
| (o) | On good cause shown by the arbitrator concerned, the secretary may extend the period during which the arbitration award is to be issued. |
| (p) | The arbitrator may make any appropriate award that gives effect to the collective agreement. In considering the retrospective application of any award, the arbitrator shall consider, inter alia, the period of operation of the collective agreement in question and the reasons for any delays in processing the dispute. The arbitrator may not include an order in the arbitration award for costs incurred by the parties, unless a party, or the person who represented that party in the arbitration proceedings, acted in a frivolous or vexatious manner, or unless such award is in accordance with a mandate agreed between the parties. |
| (q) | An arbitrator may at his/her own initiative or as a result of an application by an affected party, vary or rescind an award— |
| (i) | erroneously sought or erroneously made in the absence of any party affected by the award; |
| (ii) | in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; or |
| (iii) | Granted as a result of a mistake common to the parties to the proceedings. |
| (r) | The secretary or any of the parties may apply to make the arbitration award an order of the Labour Court under Section 158(1) of the Act. |
| (s) | Review proceedings may be instituted within six weeks of the date of the award, by any party who alleges a defect in the arbitration proceedings, or if the alleged defect involves corruption, within six weeks of the date that the party discovers the corruption. For the purposes of this section, a defect shall mean where: |
| (t) | An arbitrator has committed misconduct in relation to his/her duties as arbitrator, or |
| (i) | An arbitrator has committed a gross irregularity in the conduct of the arbitration proceedings or has exceeded his/her powers; or |
| (ii) | The award has been improperly obtained |