Labour Relations Act, 1995 (Act No. 66 of 1995)NoticesBargaining Council for the Building Industry, Cape of Good HopeExtension to Non-parties of the Main Consolidated Collective AgreementAnnexure A: Rules for Conciliating and Arbitrating disputes in the Building Industry Bargaining Council (Rules)Part E: Rules that apply to Conciliations, Arbitrations and Con-Arbs23. Who may represent a party before the Council |
| (1) | In conciliation proceedings before the Council a party to a dispute may appear in person or be represented only by— |
| (a) | if the party is an employer, a director or employee of that party and, in addition, if it is a close corporation, a member or employee of that close corporation; |
| (b) | any member of that party's registered trade union or registered employers' organisation or an office bearer or official as defined in the Act or an office bearer or official as defined in the Act of a registered federation of trade unions or registered federation of employers' organisations; |
| (c) | if the party is a registered trade union, any member of that trade union or any office bearer or official as defined in the Act and authorized to represent that party or an office bearer or official as defined in the Act of a registered federation of trade unions and authorized to represent that party; |
| (d) | if the party is a registered employers' organisation, any director or employee of an employer that is a member of that employers' organisation or an official or office bearer as defined in the Act and authorized to represent that party or an office bearer or official as defined in the Act of a registered federation of employers' organisations and authorized to represent that party; |
| (e) | if a party is the department of labour, any employee or official of the department of labour; or |
| (f) | another party to the dispute if proceedings are brought or opposed by more than one party. |
| (2) | Subject to sub-rule (3) below, in arbitration proceedings before the Council a party to a dispute may appear in person or be represented only by— |
| (a) | a legal practitioner; |
| (b) | a candidate attorney; or |
| (c) | an individual entitled to represent the party at conciliation proceedings in terms of sub-rule (1). |
| (3) | Notwithstanding sub rule (1), if the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee's conduct or incapacity, the parties are not entitled to be represented by a legal practitioner or a candidate attorney in the proceedings unless— |
| (a) | the Council arbitrator and all the other parties' consent; |
| (b) | the Council arbitrator concludes that it is unreasonable to expect the party to deal with the dispute without legal representation, after considering— |
| (i) | the nature of the questions of law raised by the dispute; |
| (ii) | the complexity of the dispute; |
| (iii) | the public interest; and |
| (iv) | the comparative ability of the opposing parties or their representatives to deal with the dispute. |
| (4) | No person representing a party in proceedings before the Council in a capacity contemplated in sub-rule (1) or (2) other than a legal practitioner or candidate attorney contemplated in sub-rule (2), may charge a fee or receive a financial benefit in consideration for agreeing to represent that party. |
| (5) | If a party to a dispute objects to the representation of another party to the dispute or the presiding Council arbitrator suspects that the representative of a party does not qualify in terms of this rule, the Council arbitrator must determine the issue and may call upon the representative to establish why that representative should be permitted to appear in terms of this rule. |
| (6) | Despite the provisions of sub-rule (1) and (2), a presiding Council arbitrator may exclude any person who is representing a party in any proceedings on the basis that they are a member of the same employers' organisation as an employer party, or a member of an employers' organisation that is a party to proceedings, if the Council arbitrator, after enquiring into the matter and considering relevant representations, believes that— |
| (a) | the representative joined the employer's organisation for the purpose of representing parties in the Commission; or |
| (b) | the representative's participation in the dispute resolution process— |
| (i) | would be contrary to the purpose of the rule which is to promote inexpensive and expeditious dispute resolution in a manner that is equitable to all parties; |
| (ii) | is not in keeping with the objectives of the Labour Relations Act 66 of 1995; or |
| (iii) | may have the consequence of unfairly disadvantaging another party to the dispute. |
| (7) | Subject to the provisions of sub-rule (4), the presiding Council arbitrator may, on application brought in accordance with rule 30, allow a person not contemplated by sub-rule (2) to represent a party at arbitration proceedings before the Council, after considering— |
| (a) | whether it is unreasonable to expect the applicant party to deal with the dispute without representation, after considering the factors set out in sub-rule 3(b)(i) to (iv); |
| (b) | the reason why a person contemplated in this rule cannot represent the applicant party, which includes affordability, if applicable; |
| (c) | the ability of the proposed representative to meaningfully represent the applicant; |
| (d) | whether the proposed representative is subject to the oversight and discipline of a professional or statutory body; |
| (e) | whether the proposed representative will contribute to the fairness of the proceedings and the expeditious resolution of the dispute; |
| (f) | prejudice to the other party; and |
| (g) | any other relevant factors. |