| (1) |
Procedure to enforce compliance with this agreement: |
The Council shall take all reasonable steps necessary to ensure compliance with this agreement. If whether through its own investigations or through any other source, it appears as if the provisions of this agreement have been breached then the following procedure shall apply to enforce compliance:
| (a) |
The appointed official of Council shall investigate the alleged breach. |
| (b) |
If, upon completion of the investigation, the appointed official of Council has reason to believe that this agreement has been breached, the appointed person may endeavor to secure compliance with the agreement by any or all of the following means: |
| (i) |
Issue a compliance order requiring any person bound by the collective agreement to comply with the collective agreement within a specified period. |
| (ii) |
refer the matter to arbitration in terms of this agreement |
| (iii) |
a designated agent of Council shall have all the powers conferred to him in terms of section 33 read with section 33A and Schedule 10 of the Act. |
| (i) |
Upon referral of the unresolved dispute to arbitration, Council shall appoint an arbitrator from its panel to hear and determine the alleged breach of this agreement. The arbitrator shall be independent of the Council. |
| (ii) |
The Council shall decide the date, time, and venue of the arbitration hearing, but shall give the parties at least 21 days written notice of an arbitration hearing, unless the parties agree to a shorter period. |
| (iii) |
The Council shall serve notice of the date, time and venue of the arbitration on all parties who may have a legal interest in the outcome of arbitration. |
| (iv) |
Any party who has a legal interest in the outcome of the arbitration shall have the right to — |
| - |
question the witnesses of the other party |
| - |
address the concluding arguments with the arbitrator |
| - |
be represented by a legal practitioner or co- employee or any office- bearer or official of his trade union or employers" organisation and, if the party is a juristic person, by a director or employee thereof. |
| (d) |
The arbitrator shall have the following powers: |
| (i) |
To determine whether there has been a breach of this agreement. |
| (ii) |
To make any appropriate award that gives effect to the collective agreement and to ensure compliance therewith. |
| (iii) |
To conduct the arbitration in a manner and form that he considers appropriate in order to determine the dispute fairly and quickly but shall deal with the substantial merits of the dispute with the minimum of legal formalities. Subject to the discretion of the arbitrator as to the appropriate form of the proceedings, a party to the dispute may give evidence, call witnesses, question the witnesses of any other party, and address concluding arguments to the arbitrator. |
| (iv) |
The appointed arbitrator may at any stage prior to or during the arbitration proceedings, suspend the arbitration proceedings and attempt to resolve the dispute through conciliation with the consent of all the parties to the dispute. If appropriate, the arbitrator may refer the dispute to another conciliator to be conciliated. |
| (v) |
To adjourn the arbitration proceedings to a later date or to make an award in the absence of a party who is alleged to have breached the agreement, if— |
such party fails to appear in person or to be represented at the arbitration proceedings, and prima facie evidence has been presented to the arbitrator that the party in question has failed to comply with this agreement. Provided that proof is presented that written notification has been forwarded to such party—
| (a) |
by registered mail or telegram to such party"s last known address or an address chosen by that person to receive service and 21 days have lapsed since such notification has been mailed; or |
| (b) |
by fax transmission or telexing to such party"s last known fax number or telex number; or a fax or telefax number chosen by that person to receive service and 21 days have lapsed since such notification has been faxed; or |
| (e) |
a document may also be served— |
| (i) |
on a company or other body corporate by handing a copy to a responsible employee of the company or body at its registered office, its principal place of business within the Republic or its main place of business within the magisterial district in which the dispute first arose; |
| (ii) |
on an employer by handing a copy of that document to a responsible employee of the employer at the workplace where the employees involved in the dispute ordinarily work or worked; |
| (iii) |
on a trade union or employers" organisation by handing a copy of that document to a responsible employee or official at the main office of the union or employers" organization or its office in the magisterial district in which the dispute arose; |
| (iv) |
on a partnership, firm or association by handing a copy of that document to a responsible employee or official at the place of business of the partnership, firm or association or, if it has no place of business, by serving a copy of the document on a partner, the owner of the firm or chairman or secretary of the managing or other controlling body of the association, as the case may be; |
| (v) |
on a municipality, by serving a copy of the document on the municipal manager or any person acting on behalf of that person; |
| (vi) |
on a statutory body by handing a copy to the secretary or similar officer or member of the board or committee of that body, or any person acting on behalf of that body or |
| (vii) |
on the state or a province, a state department or a provincial department, a minister, premier or a member of the executive committee of a province by handing a copy to a responsible employee at the head office of the party or to a responsible employee at any office of the State Attorney. |
| (f) |
If no person identified in (e)(i) to e(vii) above is willing to accept service may be effected by affixing a copy of the document to— |
| (i) |
the main door of the premises concerned; or |
| (ii) |
if this is not accessible, a post box or other place to which the public has access. |
| (g) |
The arbitrator conducting arbitration in terms of this subclause has the powers of a Commissioner in terms of section 33A, section 142 and section 138 of the Act, read with the changes required by the context. |
| (h) |
The appointed arbitrator shall have the power to vary, rescind or amend any arbitration award issued by him or by any arbitrator on application by any affected party or on his own accord within 14 days of the date on which the applicant became aware of the arbitration award or ruling or a mistake common to the parties to the proceedings and without limiting the generality hereof shall have this power if— |
| • |
the award was erroneously sought or erroneously made in the absence of any party affected by the award. |
| • |
the award is ambiguous or contains an obvious error or omission, but only to the extent of that ambiguity, error or omission. |
| • |
the award was granted as a result of a mistake common to the parties to the proceedings. |
| (i) |
Any award made by the arbitrator, shall be served on all interested parties by the Council and must be made within 14 days after the expiry of the arbitration proceedings. |
| (j) |
The Council may apply to make the arbitration award an order of court in terms of section 143 or section 158(1) of the Act. |
| (k) |
The Council may apply for a writ of execution to enforce the order of court made in terms of section 143(1) of the Act. |
| (I) |
The provisions of this procedure shall apply in addition to any other legal remedy which the Council may apply to enforce a collective agreement. In the event that the Council has to instruct a debt collecting agency or a legal practitioner to collect and or to litigate in respect of any amount due to it by the defaulter in terms of any arbitration award, the defaulter shall also be liable in terms of this clause for payment of any commission and any other litigation costs incurred in the enforcement and collection thereof. |
| (m) |
If the arbitrator finds that any party to the dispute has failed to comply with a provision of Council"s collective agreements which are binding on that party, then the arbitrator shall, in addition to any other appropriate order, impose a fine on the non -compliant party in accordance with Section 29(2) of Schedule 7 of the Act, read with Section 33A of the Act. An arbitrator shall also include in an order, any interest that is due in terms of clause 27 of the Council"s Main Collective Agreement and an arbitration fee of R500, 00. |
| (n) |
Notwithstanding the provisions of this clause, the Council may utilise section 33A, section 142 and Schedule 10 of the Act to monitor and enforce compliance with its collective agreements. |
| (o) |
Despite the provisions of this clause, a Council agent may not issue a compliance order in respect of any amount payable to an employee as a result of a failure to comply with any provision of this agreement if— |
That amount has been payable by the employer to the employee for longer than 12 months before the date on which a complaint was made to the Council by or on behalf of that employee or, if no complaint was made, the date on which a Council agent first endeavored to secure compliance.
| (p) |
Despite the aforesaid, if the non -compliance relates to unpaid Pension and or Provident Fund contributions, the Council must issue a compliance order to secure compliance. |
| (2) |
Procedure for Disputes about the Interpretation and/or Application of this Agreement |
| (a) |
If a dispute is referred to the Council by any party to Council, or any legal entity or person who falls within the registered scope of Council, it shall attempt to resolve the dispute through conciliation and if the dispute remains unresolved after conciliation, the Council shall appoint an arbitrator from its panel to arbitrate the dispute unless otherwise agreed to between all parties to the dispute. The arbitrator shall be independent of the Council. |
| (b) |
Any party or legal entity or person wishing to lodge such a dispute shall notify the Council in writing setting out all the details of the dispute. A copy of such notification shall be served on all parties to the dispute in accordance with Rule 5 of the Rules for the Conduct of Proceedings before the CCMA. |
| (c) |
The Council shall arrange a conciliation meeting of the parties to the dispute within 14 days of the date it received the completed referral. However, the parties to the dispute may agree to extend the 14 -day period. |
| (d) |
In conciliation proceedings a party to the dispute may appear in person or be represented only by a director or employee of that party and if a close corporation also a member thereof, or any member, office bearer or official of that party"s registered trade or registered employers" organisation. |
| (i) |
The Council may appoint a conciliator from its panel to attempt to resolve the dispute. |
| (ii) |
Any conciliator appointed in terms of this sub- clause shall have all of the powers conferred to him in terms of section 33A, section 142, section 138 and section 142A of the Act. |
| (iii) |
Any conciliator appointed in terms of this clause shall determine a process to attempt to resolve the dispute which may include— |
| • |
mediating the dispute, or |
| • |
conducting a fact finding exercise, or |
| • |
making a recommendation to the parties, which may be an advisory award. |
| (i) |
When conciliation has failed, or at the end of the 30 day period or any further period agreed to between the parties, the conciliator must: |
issue a certificate stating whether or not the dispute has been resolved and—
| (ii) |
serve a copy of that certificate on each party to the dispute or the person who represented a party in the conciliation proceedings; and |
| (iii) |
the original certificate must be filed with the Council |
| (g) |
If the dispute is not resolved at the conciliation meeting referred to in subclause (2)(c) above, it shall be referred to arbitration, unless otherwise agreed to between the parties to the dispute. |
The Council shall appoint an arbitrator who is available to commence the arbitration within 21 days from the date the dispute was not resolved at conciliation, unless otherwise agreed to between the parties to the dispute. The powers of the arbitrator shall be the same as in clause 12(1)(d) above read with the changes required by the context
| (h) |
In arbitration proceedings, a party to the dispute may appear in person or be represented only by a legal practitioner, a director or employee of that party and if a close corporation also a member thereof or any member, office bearer or official of that party"s registered trade union, or registered employers" organisation. |
| (i) |
The arbitrator shall make a determination within 14 days of the completion of the hearing unless otherwise agreed to between the parties to the dispute. |
Any party to the dispute who alleges a defect in the arbitration proceedings may apply to the Labour Court for an order setting aside the arbitration award in terms of section 145 of the LRA.
| (j) |
Any party to the dispute may apply to make the arbitration award an order of court in terms of section 143 or section 158(1) of the Act. |
| (k) |
The arbitrator may on his/her own accord or on the application of any affected party, vary or rescind an arbitration award or ruling in terms of Section 144 of the LRA read with Rule 31 and Rule 32 of the CCMA Rules. |
Signed at Johannesburg, as authorised for and on behalf of the parties to the Council, this 27 day of November 2018.
_____________________________________________
D van Deventer - National Chairman
_____________________________________________
M Mfikoe - National Vice-Chairman
National Small Business Act, 1996 (Act 102 of 1996)
