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

Notices

National Bargaining Council for the Clothing Manufacturing Industry

Main Collective Agreement

Part A : Provisions for the Eastern Cape Region

14. Agreement

14.6 Dispute procedure

 

 

(1) Unless otherwise provided in the Council's Constitution or in this part of the Agreement, any dispute within the registered scope of the Council shall be resolved as set out below:
(a) The General Secretary of the Council shall, after consultation with the Secretary of any relevant Regional Chamber, decide whether any dispute referred to the Council must be dealt with by the Council or the Regional Chamber.
(b) The Council shall, from time to time, adopt by resolution, guidelines for the General Secretary of the Council to follow in the allocation of such disputes.
(c) When any dispute is allocated to a Regional Chamber in terms of this clause then such Regional Chamber shall have the same rights, powers and obligations as the Council.

 

(2)        Accreditation:

(a) With a view to performing its dispute resolution functions in terms of section 51 (3) of the Act only, the Council shall by decision apply to the governing body of the CCMA for accreditation to perform these functions as appropriate.
(b) In the event that the Council fails to secure such accreditation, the Council may enter into an agreement with the CCMA in terms of which the CCMA is to perform, on behalf of the Council, its dispute resolution functions in terms of section 51 (3) of the Act.

 

(3)        Panel of conciliators, arbitrators and senior arbitrators

(a)        The Council shall appoint:

(i) a panel of conciliators, for the purpose of conciliating disputes;
(ii) a panel of arbitrators, for the purpose of determining disputes;
(iii) a panel of senior arbitrators, for the purpose of determining disputes where:
(aa) the nature of the questions of law raised by the dispute;
(bb) the complexity of the dispute;
(cc) conflicting arbitration awards, Labour Court precedents or Labour Appeal Court precedents; and/or
(dd) the public interest, requires the appointment of a senior arbitrator and a party to the dispute requests that the Council refer the dispute for determination by a senior arbitrator.
(b) The Council shall determine from time to time the number of persons to be appointed to the panels of conciliators and arbitrators.
(c) All parties to the Council shall attempt to reach agreement on the persons to be appointed to the conciliation and arbitration panels. In the event that the parties to the Council cannot agree on the appointment of some or all of the conciliators and arbitrators, the following process shall be followed:
(i) The union parties to the Council shall prepare a list of nominees to fill the remaining vacancies on each panel, and the employer parties to the Council shall be filled by appointing the nominees most preferred by the shall do likewise.
(ii) The lists prepared by the parties shall be exchanged, and the union parties shall rank the nominees of the employer parties in order of their preference, and the employer parties shall do likewise in respect of the nominees of the union parties.
(iii) In the event of the number of remaining vacancies being an even number, half of the vacancies union parties from the employer parties' list, and the remaining half by appointing the nominees most preferred by the employer parties from the union parties' list.
(iv) In the event that the number of remaining vacancies is an odd number, then the appointments from the parties' lists shall make up the number of vacancies less one, and the final vacancy shall be filled by inserting the names of the next most preferred nominee from each list into a hat, from which the General Secretary of the Council shall draw the name of the remaining appointee.
(d) The arbitrators and senior arbitrators are to be appointed to the relevant panel for a period of two years, after which period they may be re-appointed by agreement between all the parties to the Council. Should any or all of the arbitrators and senior arbitrators not be re-appointed, all parties to the Council shall attempt to reach agreement on the persons to be appointed to the panel or senior panel, failing which the remaining vacancies shall be filled in accordance with the method described in subdause (3) (c) above.
(e) Notwithstanding subdause (3) (d) above, the Council may remove a member of the panel of conciliators or arbitrators from office—
(i) for serious misconduct; or
(ii) owing to incapacity; or
(iii) if at least one half of the employer parties and at least one half of the union parties have voted in favour of the removal of that member from the panel.
(f) If for any reason there is a vacancy on the panels, the Council may appoint a new member to the relevant panel in accordance with the method described in subclause (3) (c) above for the unexpired portion of the predecessor's term of office.
(g) Subject to subclause (3) (i), a person may be appointed to one or more of the panels of conciliators or arbitrators.
(h) An employee of the Council shall be eligible for appointment to the panel of conciliators and the panel of arbitrators: Provided that, should the Council have an interest in the dispute to be arbitrated, employees of the Council shall not be eligible to arbitrate the dispute.
(i) An employee of the Council shall not be eligible for appointment to the panel of senior arbitrators.
(j) Unless the parties to the dispute have agreed on a member of the relevant panel to conciliate or arbitrate their dispute or on a procedure to allocate disputes to the panel, the General Secretary of the Council or another designated official shall appoint a member of the relevant panel to conciliate or arbitrate the dispute on a rotational basis, with the next available conciliator, arbitrator or senior arbitrator being appointed, as the case may be, should any panel member(s) not be available in terms of such rotation.

 

(4)        Disputes involving non-parties to the Council

 

Any dispute contemplated in section 51 (3) of the Act, where any party to the dispute is not a party or a member of a party to the Council shall be resolved by the Council in accordance with the following procedure—

(a) Referral and conciliation of disputes:
(i) Any of the parties to the dispute may refer the dispute in writing to the Council, setting out the nature of the dispute and the outcome sought;
(ii) the party who refers the dispute to the Council shall satisfy the Council that a copy of the referral has been served on all other parties to the dispute;
(iii) the General Secretary or other designated official shall appoint a member of the panel of conciliators who shall attempt to resolve the dispute through conciliation within thirty (30) days from the date of the Council's receiving the written referral of the dispute, or any extended period as agreed to in writing by the parties to the dispute;
(iv) the conciliator may, during conciliation proceedings:
(aa) mediate the dispute;
(bb) conduct a fact-finding exercise; and
(cc) make a recommendation to the parties to the dispute, which may be in the form of a non-binding advisory arbitration award.
(v) Representation of a party to the dispute in the conciliation proceedings shall be in accordance with the provisions of the Act in relation to conciliation proceedings at the CCMA.
(vi) At the end of the thirty (30) day period, referred to in subclause (4) (a) (iii) above or any further period agreed to in writing by the parties to the dispute, the General Secretary or other designated official of the Council shall issue a certificate stating whether or not the dispute has been resolved.
(vii) Nothing in this part of the Agreement shall prevent an officer or an employee of the Council from investigating the dispute or attempting to conciliate the dispute before the appointment of a conciliator.
(b) Adjudication of disputes referred to the Council for arbitration:
(i) If the dispute remains unresolved after conciliation, any party to the dispute may request that the dispute be resolved through arbitration if:
(aa) the Act requires that the dispute be arbitrated; or
(bb) all the parties to the dispute consent to arbitration under the auspices of the Council, irrespective of whether such dispute may be subject to the jurisdiction of the CCMA or labour Court in terms of the Act.
(ii) Upon receipt of such written request for arbitration from a party to the dispute, the General Secretary or other designated official of the Council shall appoint a member of the relevant panel of arbitrators to arbitrate the dispute.
(iii) Such written request for arbitration shall be made within the time period prescribed in the Act, provided that the arbitrator may permit a late request for arbitration on good cause shown.
(iv) The General Secretary or other designated official of the Council shall serve notice of the date, time and venue of the arbitration on the parties to the dispute.
(v) Any party who has a legal interest in the arbitration may apply to the arbitrator to be allowed to intervene in the arbitration. Such intervention may be allowed by the arbitrator, who shall have the power to grant an adverse costs order against that party if such intervention is found by the arbitrator to be frivolous or vexatious.
(vi) Any party who has a legal interest in the outcome of the arbitration and a party whose application in terms of subclause (4)(b)(v) above has been granted by the arbitrator, shall have the right to:
(aa) give evidence;
(bb) call witnesses;
(cc) question the witnesses of any other party;
(dd) address arguments to the arbitrator;
(ee) be represented in accordance with the provisions of sections 138 and 140 of the Act.
(vii) The arbitration proceedings shall be conducted in accordance with the provisions of the Code of Conduct for conciliators and arbitrators as agreed to by the Council, sections 138 and 142 and, if applicable sections 139, 140 and 141 of the Act, read with the changes required by the context.
(viii) Representations at arbitration proceedings shall be in accordance with the provisions of the Act in relation to arbitration proceedings at the CCMA.
(ix) The arbitrator who has been appointed to resolve the dispute shall have the powers of a Commissioner in terms of sections 138 and 142 of the Act.
(x) Subject to the provisions of the Act, an award made by the arbitrator appointed to resolve the dispute shall be final and binding on the parties to the dispute. The arbitrator shall however, have the power to vary, rescind or amend an award made by him/her on good cause shown or of his own accord; and without limiting the generality thereof, the arbitrator shall have this power if:
(aa) the award was erroneously sought or erroneously made in the absence of any party affected by the award;
(bb) the award is ambiguous or contains an obvious error or omission;
(cc) the award was granted as a result of a mistake common to the parties to the proceedings.
(xi) The Council shall serve the award, together with any written reasons, on all parties to the dispute.
(xii) Upon receipt of a written request from a party to the dispute, the General Secretary or other designated official of the Council shall apply to the director to certify that the arbitration award is an award contemplated in section 143 (1) of the Act.

 

(5) Disputes involving parties to the Council
(a) For the purposes of this clause, a party to the Council includes the members of any registered trade union or registered employers' organisation that is a party to the Council.
(b) If the dispute between the parties is one which arises from negotiations entered into for the purpose of concluding a collective agreement in the Council or in any Regional Chamber, the General Secretary or other designated official shall appoint a member of the panel of conciliators, who shall attempt to resolve the dispute through conciliation within thirty (30) days from the date when the dispute was minuted or referred to the Council, or within any extended period as agreed to in writing by the parties to the dispute. If the dispute remains unresolved, the parties may exercise their rights in terms of the Act.
(c) Any other dispute between parties to the Council, which the Act requires to be arbitrated or which disputes would otherwise be adjudicated by the Labour Court, but which the parties to the dispute have agreed to arbitrate, including a dispute about the interpretation or application of the provisions of this part of the Agreement and/or any collective agreement between the parties to the dispute, shall be resolved by the Council in accordance with the procedure set out in subclause (4) above, subject to the proviso in subclause (5) (d) below.
(d) Upon receipt of a written request for arbitration of a dispute about the interpretation or application of the provisions of this part of the Agreement and/or any collective agreement between the parties to the dispute, the General Secretary or other designated official of the Council shall appoint a member of the panel of senior arbitrators to arbitrate the dispute.

 

(6) Compliance procedure and enforcement of collective agreements by Council:
(a) The Council shall request the Minister to appoint certain identified persons to be the designated agents of the Council to promote, monitor and enforce compliance with this Collective Agreement concluded in the Council.
(b) Such designated agents shall perform the functions and have the powers set out in the Act, including sections 33 and 33A and Schedule 10 of the Act. It is specifically recorded that such designated agent shall have the power to issue a compliance order.
(c) The Council shall take all reasonable steps necessary to ensure compliance with this part of the Agreement and with the collective agreements concluded in the Council. If, whether through its own investigations or through any other source, it appears that the provisions of such an agreement may have been breached, then the following procedures shall apply to enforce compliance:
(i) The General Secretary of the Council shall appoint a designated agent to investigate the alleged breach and may delegate such powers of appointment to the Secretary of a Regional Chamber;
(ii) If, upon completion of the investigation, the designated agent has reason to believe that an agreement has been breached, the agent may endeavour to secure compliance with the agreement, in terms of guidelines of, or decisions by, the Council, where these exist, by:
(aa) publicising the contents of the agreement;
(bb) conducting inspections;
(cc) investigating complaints;
(dd) endeavouring to secure compliance with the agreement through conciliation; or
(ee) issuing a compliance order requiring any person bound by the agreement to comply with the agreement within a specified period.
(iii) The designated agent shall report all disputes concerning compliance with any provision of a collective agreement to the General Secretary of the Council and a designated official of the Regional Chamber.
(iv) Upon receipt of the report of an unresolved dispute, the General Secretary or other designated official of the Council or Regional Chamber may refer the unresolved dispute to arbitration.
(v) The General Secretary or other designated official of the Council or Regional Chamber shall appoint a member of the relevant panel of arbitrators to arbitrate the dispute.
(vi) The General Secretary or other designated agent of the Council or Regional Chamber shall serve notice of the date, time and venue of the arbitration on the parties to the dispute.
(vii) If a party to such an arbitration is not a party to the Council and objects to the appointment of a member of the panel, the General Secretary or other designated official of the Council or Regional Chamber shall request the CCMA to appoint an arbitrator, in which event the objecting party shall pay the arbitrator's fee to the Council, and the Council shall pay the fee set by the CCMA.
(viii) The provisions of subdauses (4) (b) (v) to (4) (b) (xii) above shall apply to an arbitration in terms of this clause.
(ix) In addition, an arbitrator conducting an arbitration in terms of this clause may make any appropriate award including:
(aa) ordering any person to pay any amount owing in terms of a collective agreement;
(bb) imposing a fine for a failure to comply with a collective agreement in accordance with Item 29 of Schedule 7 and section 33A (13) of the Act;
(cc) charging a party to the arbitration an arbitration fee;
(dd) ordering a party to the arbitration to pay the costs of the arbitration;
(ee) confirming, varying or setting aside a compliance order issued by a designated agent;
(ff) any award contemplated in section 138 (9) of the Act;
(gg) any award in relation to the interest payable on any amount that a person is obliged to pay in terms of a collective agreement.
(x) Subject to the provisions of the Act, an award in an arbitration conducted in terms of this subclause shall be final and binding on the parties to the dispute.
(xi) The General Secretary or other designated official of the Council may apply to the director to certify that the arbitration award is an award contemplated in section 143 (1) of the Act.
(xii) The provisions of this procedure stand in addition to any other legal remedy through which the Council may enforce a collective agreement.

 

(7) Non-Compliance
(a) Outsourcing to non-compliant companies shall not be permitted in the industry.
(b) The parties shall enter into agreements with all Provincial and Local governments which shall have the effect that their sourcing from the Industry shall include a requirement to only source from companies which hold a valid Certificate of Compliance from the bargaining council.

 

(8) Compliance Promotion

 

8.1 All current non-compliant companies which meet a minimum of 80% of the party-to-party negotiated wage rate for current employees, shall be regarded as level B compliant, subject to sub-clause 8.2 below.

 

8.2 All companies described in 8.1 above shall achieve 100% wage compliance within a period of 18 months from 1 September 2012, in 6 monthly equal increments, failing which full compliance enforcement including the execution of writs shall apply to them.

 

8.3 The arrears of non-compliant companies shall be ring-fenced in a ‘suspense account’ at 100% of the verified arrears value and a written time-bound repayment plan agreed with the bargaining council. They should also sign a legally enforceable acknowledgement of debt.

 

8.4 The current policy that allows for a maximum of 6-months as a repayment period for arrears shall be amended, to allow for a maximum eighteen (18) months repayment period with effect from 1 November 2012.

 

8.5 The arrears will become payable in full should the employer become non-compliant, or default on the repayment plan at any time in future, unless otherwise agreed by the parties.

 

8.6 At every future meeting of the National Bargaining Council, each party shall make one practical concrete suggestion on how to further promote compliance in the industry.

 

8.7 The National Bargaining Council General Secretary shall have unfettered authority to serve any writ of execution upon any employer who fails to become compliant in terms of the new compliance provisions envisaged in this agreement, unless the parties agree otherwise.

 

8.8 Nothing in this agreement shall have the effect of downward migration of conditions of employment for any current employee.

 

8.9 The Trade Union shall have the unfettered right to embark on industrial action against any company which fails to implement the terms of this agreement.