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

Notices

Bargaining Council for the Fast Food, Restaurant, Catering and Allied Trades

Extension to non-parties of the Main Collective Agreement

23A. Powers of Designated Agent

 

(1) A designated agent may without warrant or after giving to the employer 24 hours enter any workplace or any other place where an employer carries on business or keeps employment records, that is not a home, in order to enforce compliance with a collective agreement concluded in the Council.

 

(2) A designated agent may only enter a home or any place other than a place referred to in sub clause (1) of this clause
(a) with the consent of the owner or occupier; or
(b) if authorised to do so by the Labour Court in terms of sub clause (3) of this clause.

 

(3) The Labour Court may issue authorisation contemplated in sub clause (2)(b) of this clause only on written application by a designated agent who states under oath the reasons for the need to enter a place, in order to monitor or enforce compliance with a collective agreement concluded in the Council.

 

(4) If it is practicable to do so, the employer and a trade union representative must be notified that the designated agent is present at a workplace and the reason for the designated agent's presence.

 

(5) In order to monitor or enforce compliance with the collective agreement a designated agent may—
(a) require a person to disclose, either orally or in writing, and either alone or in the presence of witnesses, on a matter to which the collective agreements relates, and require that disclosure to be under oath or affirmation;
(b) inspect and question a person about any record or document to which a collective agreement relates;
(c) copy any record or document referred to in paragraph (b) or remove these to make copies or extracts;
(d) require a person to produce or deliver to a place specified by the designated agent any record or document referred to in paragraph (b) for inspection;
(e) inspect, question a person about, and if necessary remove an article, substance or machinery present at a place referred to in sub clause (1) and (2) of this clause;
(f) question a person about any work performed; and
(g) perform any other prescribed function necessary for monitoring or enforcing compliance with the collective agreement.

 

(6) A designated agent may be accompanied by an interpreter and any other person if required to assist in conducting an inspection.

 

(7) A designated agent must—
(a) produce on request a copy of the authorisation referred to in sub clause (3) of this clause;
(b) provide a receipt for any record or document removed in terms of sub clause (5) of this clause; and
(c) return any removed record, document or item within 7 days of the date of compliance.

 

(8) Any person who is questioned by a designated agent in terms of sub clause (5) of this clause must answer all questions lawfully put to that person truthfully and to the best of that person's ability.

 

(9) An answer by any person to a question by a designated agent in terms of this clause may not be used against that person in any criminal proceedings, except proceedings in respect of a charge of perjury or making a false statement.

 

(10) Every employer and each employee must provide any facility and assistance at a workplace that is reasonably required by a designated agent to effectively perform the designated agent's functions.

 

(11) The Council may apply to the Labour Court for an appropriate order against any person who—
(a) Refuses or fails to answer all questions lawfully put to that person truthfully and to the best of that person's ability;
(b) Refuses or fails to comply with any requirement of the designated agent in terms of this clause; or
(c) Hinders the designated agent in the performance of the agent's functions in terms of this clause.

 

(12) For the purpose of this clause, a collective agreement is deemed to include any basic condition of employment which constitutes a term of a contract of employment in terms of section 49(1) of the Basic Conditions of Employment Act, 1997.

It is an offence to—

(a) obstruct or attempt to improperly influence a designated agent or other person who is performing a function in terms of this Agreement;
(b) present or submit a false or forged document;
(c) pretend to be a designated agent of this Council performing a function in terms of this Agreement;
(d) refuse or fail to answer fully any lawful question put by an agent, designated agent or other person in the performance of his duties in terms of this Agreement;
(e) refuse or fail to comply with any lawful request or lawful order by a designated agent or person in the performance of his duties in terms of this Agreement;
(f) hinder or obstruct a designated agent or any other person performing a function in terms of this Agreement. Upon conviction of any of the offences mentioned in sub clause 12 above, a penalty similar to that prescribed in section 92 and 93 of the Basic Conditions of Employment Act, No 75 of 1997, as amended, may be imposed.