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

Notices

Bargaining Council for the Building Industry, Cape of Good Hope

Re-enactment and Amendment of Main Collective Agreement

26. Powers of Designated Agents and Appointed Conciliators and Arbitrators

 

(1) A designated agent appointed by the Minister in terms of section 33 (1) of the Act to attempt to resolve a dispute or to investigate any alleged contravention and for purposes of routine inspection to enforce compliance with this Agreement may—
(a) subpoena for questioning any person who may be able to give information or whose presence at the conciliation or arbitration proceedings may help to resolve the dispute;
(b) subpoena any person who is believed to have possession or control of any book, document or object relevant to the resolution of the dispute to appear before the designated agent to be questioned or to produce that book, document or object;
(c) administer an oath or accept affirmation from any person called to give evidence or be questioned;
(d) at any reasonable time, but only after obtaining the necessary written authorisation—
(i) enter and inspect any premises on or in which any book, document or object relevant to the resolution of the dispute is to be found or is suspected on reasonable grounds of being there;
(ii) examine, demand and production of, and seize any book, document or object that is on or in those premises and that is relevant to the resolution of the dispute; and
(iii) take a statement in respect of any matter relevant to the resolution of the dispute from any person on the premises who is willing to make a statement;
(e) inspect, and retain a reasonable period, any of the books, documents or objects that have been produced to, or seized by, the designated agent.

 

(2) A subpoena issued for any purpose in terms of sub clause (1) shall be signed by the Secretary of the Bargaining Council and shall—
(a) specifically require the person named in it to appear before the designated agent;
(b) sufficiently identify the book, document or object to be produced; and
(c) state the date, time and place at which the person is to appear.

 

(3) The written authorisation referred to in sub clause (1) (d)—
(a) if it relates to residential premises, may be given only by a judge of the Labour Court and with due regard to section 14 of the Constitution of the Republic of South Africa, and then only on the application of the designated agent setting out under oath or affirmation the following information:
(i) The nature of the dispute;
(ii) the relevance of any book, document or object to the resolution of the dispute;
(iii) the presence of any book, document or object on the premises; and
(iv) the need to enter, inspect or seize the book, document or object; and
(b) in all other cases, may be given by the Secretary of the Council.

 

(4) The owner or occupier of any premises that a designated agent is authorised to enter and inspect, and every person employed by that owner or occupier, shall provide facilities that a designated agent requires to enter those premises and to carry out the inspection or seizure.

 

(5) The appointed person shall issue a receipt for any book, document or object seized in terms of sub clause (1).

 

(6) The law relating to privilege, as it applies to a witness subpoenaed to give evidence or to produce any book, document or object before a court of law, applies equally to the questioning of any person or the production or seizure of any book, document or object in terms of this clause.

 

(7) The appointed person shall pay the specified witness fee to each person who appear before him in response to a subpoena issued.

 

(8) A person shall be in contempt of the designated agent-
(a) if,  after  having been subpoenaed  to appear  before him, the person without  good cause does attend at the time and place stated in the subpoena;        .
(b) if, after having appeared in response to a subpoena, that person fails to remain in attendance until excused by the designated agent;
(c) by refusing to take the oath or to make an affirmation as a witness when a designated agent so requires;
(d) by refusing to answer any question fully and to the best of that person"s knowledge and belief, subject to sub clause (6);
(e) if the person, without good cause, fails to produce the book, document or object specified in a subpoena to a designated agent;
(f) if the person wilfully hinders a designated agent in performing any function conferred by or in terms of the Act;
(g) if the person insults, disparages or belittles a designated agent, or prejudices or improperly influences an
(h) by wilfully interrupting the conciliation or arbitration proceedings or misbehaving in any other manner during investigation or improperly anticipates the designated agent"s recommendations; those proceedings;
(i) by doing anything else in relation to the designated agent which, if done in relation to a court of law, would have been contempt of court.

 

(9) The designated agent may refer any contempt to the Labour Court for an appropriate order.

 

(10) A designated agent may decline to investigate and follow up on a complaint made by an employee who reports the dispute to the Council more than 17 weeks after the dispute arose: Provided that the employer of the complainant shall be assessed for the full period of non-compliance including interest and penalties as prescribed in this Agreement.

 

(11) A designated agent may decline to investigate and follow up on a complaint made by a trade union if the trade union has not attempted first to resolve the alleged dispute directly with the employer party to the alleged dispute.