Labour Relations Act, 1995 (Act No. 66 of 1995)

Notices

Bargaining Council for the Fishing Industry

Extension to Non-parties of the Main Collective Agreement

Section lll : Regulation of Agreement

Part K : Monitor and Enforcement

40. Compliance Order
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40.1. Once the Secretary is satisfied by the designated agent that an employer has not complied with the terms of this agreement may issue a compliance order.

 

40.2. The compliance order must set out—
40.2.1. the name of the employer and each workplace to which it applies;
40.2.2. the clause number in this agreement that the employer has not complied with;
40.2.3. the details of the conduct constituting non-compliance;
40.2.4. the amount that the employer is required to pay to an employee, if applicable;
40.2.5. the reference to the written undertaking given by the employer to a designated agent of the Council and the failure by the employer to comply therewith;
40.2.6. the steps that the employer is required to take, including if necessary, the stopping of the contravention in question;
40.2.7. the period within which the steps stipulated in subclause 40.2.6 above must be taken; and
40.2.8. the maximum fine that may be imposed upon the employer in accordance with clause 42 below for a failure to comply with a provision of this agreement.

 

40.3. A designated agent shall serve a copy of the compliance order on the employer named in it, and each employee affected by it unless this is impractical and on a trade union representative of the employee(s).

 

40.4. The failure to serve a copy of a compliance order on any employee or representative trade union of the employee(s) in terms of subclause 40.3 does not invalidate the order.

 

40.5. The employer must display a copy of the compliance order prominently within the workplace named in the order that is accessible to the affected employee(s).

 

40.6. An Employer must comply with the compliance order within the time period stated in the order unless the Employer objects thereto in term of subclause 40.8 below.

 

40.7. The Secretary may not issue a compliance order in respect of any amount payable to an employee as a result of a failure to comply with the terms of this agreement if—
40.7.1. the employee is employed in a category of employees mentioned in subclause 9.3 above;
40.7.2. any proceedings have been instituted for the recovery of the amount in question;
40.7.3. any proceedings have been instituted for the recovery of the amount in question and those proceedings have been withdrawn;
40.7.4. the amount in question has been payable by the employer to the employee for longer than twelve (12) months.before the date on which a complaint was made to the Council by or on behalf of the Employee; or
40.7.5. the amount in question has been payable by the employer to the employee for longer than twelve (12) months before the date on which a designated agent first endeavoured to secure a written undertaking by the employer in terms of subclause 39.3.4 above.

 

40.8. An employer may object to a compliance order by making representations in writing to the Secretary of the Council within twenty-one (21) calendar days of receipt of the compliance order. However, if an employer shows good cause at any time, the Executive of the Council may permit an employer to object after the period of twenty-one (21) days has expired.

 

40.9. The executive shall appoint one of its members to consider information that includes—
40.9.1. any evidence concerning the employer's compliance record;
40.9.2. the likelihood that the employer was aware of the relevant term of the agreement; and
40.9.3. the steps taken by the employer to ensure compliance with the relevant term of the agreement.

 

40.10. After considering any representations by the employer and any other relevant information, the appointed Executive member in terms of subclause 40.9:—
40.10.1. may confirm, modify or cancel an order or any part of an order; and
40.10.2. must specify the period within which the employer must comply with any part of an order that is confirmed or modified.

 

40.11. The Executive member of the Council shall instruct the Secretary for a copy of the order to be served on the employer named in it, and each employee affected by it unless this is impractical and on a trade union representative of the employee{s).

 

40.12. If the appointed Executive member of the Council confirms or modifies the compliance order or any part of the compliance order, the employer must comply with that order within the time period specified in that compliance order.

 

40.13. An employer may appeal to the Secretary in writing against a compliance order issued by the Executive member of the Council within twenty-one (21) calendar days of receipt of the compliance order who shall refer the matter to arbitration in terms of clause 41 below. However, if an employer shows good cause at any time, the arbitrator may permit an employer to appeal after the period of twenty-one (21) days has expired.

 

40.14. The Arbitrator shall be bound by the process prescribed in subclauses 40.9 to 40.12 above, read with the necessary changes within the context of arbitration.