| (1) |
Disputes about the interpretation or application of Council's Collective Agreements (Enforcement): |
| (a) |
In this clause a dispute is any dispute arising out of the interpretation, or application or enforcement of the Council's Collective Agreements and includes a breach or breaches or alleged breach or alleged breaches of those agreements. |
| (b) |
Any person may refer a dispute about the interpretation, application or enforcement of the Council's Collective Agreements to the Council who may require an agent or designated agent as appointed by the Minister of Labour at the request of the Council, to assist in giving effect to the terms of this Agreement and/or to investigate the dispute. |
| (c) |
Any designated agent of the Council must investigate a dispute that comes to his attention in the course of performing his duties. |
| (d) |
A dispute may be conciliated by: |
| (i) |
a designated agent in the course of or after an investigation; or |
| (ii) |
a duly appointed conciliator. |
| (e) |
Any designated agent of the Council is authorized to issue a Compliance Order requiring any person bound by the Council's Collective Agreements to comply with the Collective Agreements within 14 days. |
| (f) |
Any dispute envisaged in this clause may be dealt with in accordance with the provisions of Section 33A of the Act. |
| (g) |
Any arbitrator who has issued an arbitration award or ruling, or any other arbitrator appointed by the Secretary for that purpose may at his own initiative or as a result of an application by an affected party, vary or rescind an award or ruling— |
| (i) |
erroneously sought or made in the absence of any party affected by the award; |
| (ii) |
in which there is ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; |
| (iii) |
granted as a result of a mistake common to the parties to the proceedings; or |
| (iv) |
made in the absence of any party, on good cause shown. |
| (h) |
If the arbitrator makes an award and a party to the arbitration must pay an arbitration fee, such fee will be determined by the Council from time to time. |
| (2) |
Other disputes referred to Council in terms of the Act: |
| (a) |
All disputes in terms of this clause shall, if required by the Act, be referred to the Council for conciliation and arbitration, in terms of the Council's rules. |
| (b) |
The Council shall be entitled but not required to investigate any matter referred to it by whatever means it considers appropriate for the purposes of assisting in the determination of the nature, date or complexity of the dispute in order to assist with its administrative functions. |
| (c) |
When a dispute has been referred to the Council, the Council must appoint a conciliator to attempt to resolve through conciliation. |
| (d) |
The appointed conciliator must attempt to resolve the dispute through conciliation within 30 days of the date the Council received the referral; however the parties may agree to extend the 30 day period. |
| (e) |
The conciliator(s) must determine a process to attempt to resolve the dispute, which may include— |
| (i) |
mediating the dispute; |
| (ii) |
conducting a fact finding exercise; |
| (iii) |
making a recommendation to the parties, which may be in the form of an advisory award; and |
| (iv) |
conducting the conciliation hearing telephonically. |
| (f) |
When conciliation has failed, or at the end of the 30 day period, or any further period agreed between the parties– |
| (i) |
the conciliator shall issue a certificate as envisaged in Section 135(5) of the Act stating whether or not the dispute has been resolved; |
| (ii) |
the conciliator shall 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 conciliator shall file the original of that certificate with the Council. |
| (g) |
If a dispute remains unresolved after conciliation in terms of this subclause the Council shall arrange for arbitration of the dispute if— |
| (i) |
the Act requires arbitration and any party to the dispute has requested in writing that it be resolved through arbitration; |
| (ii) |
the written request to Council for arbitration is accompanied by proof that a copy of the request has been served on the other party; |
| (iii) |
a conciliator has issued a certificate stating that the dispute remains unresolved; and |
| (iv) |
the written request referred to in (i) above is made within 90 days after the date on which the certificate referred to in (iii) above was issued: however, the Council, on good cause shown, may condone a party's non-observance of this time frame and allow a request for arbitration filed by the party after the expiry of the 90 day period. |
| (h) |
The categories of disputes that the Council is required to resolve through arbitration, are those set out in the Act. |
| (i) |
The Secretary or a designated official of the Council, shall— |
| (i) |
appoint an arbitrator from the Council's accredited panel in respect of the dispute; |
| (ii) |
schedule the time and place for the hearing and notify the parties; |
| (iii) |
if necessary, arrange for witnesses to be subpoenaed to attend the hearing. |
| (j) |
If any party to a dispute objects to the arbitration of the dispute by an arbitrator appointed by the Secretary of the Council, the objecting party may request arbitration by an arbitrator selected from an independent panel providing arbitration services which, where required, complies with the provisions of the Act. |
| (k) |
The arbitrator shall conduct the arbitration in a manner 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. |
| (I) |
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. |
| (m) |
An arbitrator appointed in terms of this clause has the powers set out in Section 142(1) of the Act. |
| (n) |
The arbitrator shall take into account any code of good practice that has been issued by NEDLAC, in accordance with the provisions of the Act, relevant to the matter being considered in the arbitration proceedings. |
| (o) |
The arbitrator may make any appropriate arbitration award, in terms of the Act, including, but not limited to, an award— |
| (i) |
that give effect to the provisions and primary objects of the Act; |
| (ii) |
that gives effect to the applicable Collective Agreements; |
| (iii) |
that includes, or is in the form of, a declaratory order. |
If the arbitrator finds that a dismissal or unfair labour practice is procedurally unfair, the arbitrator may charge the employer an arbitration fee to be determined by the Council from time to time.
| (q) |
Within 14 days of the conclusion of the arbitration proceedings— |
| (i) |
the arbitrator shall issue an arbitration award, signed by that arbitrator; |
| (ii) |
the arbitrator shall serve a copy of that award on each party to the dispute or the person who represented a party in the arbitration proceedings; and |
| (iii) |
the arbitrator shall file the original of that award with the Secretary of the Council. |
| (r) |
Within 30 days of the conclusion of the arbitration proceedings, the arbitrator shall, at the written request of either party, furnish reasons for the award if such reasons were not given in the award itself. |
| (s) |
On good cause shown, the Secretary may extend the period within which the arbitration award and the reasons are to be served and filed. |
| (a) |
The Secretary may apply to the Labour Court to make any arbitration award issued in terms of this agreement an order of the Labour Court in terms of Section 158(1) of the Act. |
| (b) |
The Council may issue rules not inconsistent with the provisions of this agreement further regulating the practice and procedures for the conduct of exemption or dispute proceedings. Once issued a copy of such rules must be kept by and may be obtained from the offices of the Council. |
| (c) |
The provisions of this agreement stand in addition to any other legal remedy through which the Council may enforce its Collective Agreements. |
| (d) |
This agreement recognizes the applicability of Sections 33A, 51 and 191 of the Act and the Sections of the Act referred to in those Sections to proceedings conducted in terms of this clause. |
[Clause 75 substituted by clause (6) of Notice No. 426, GG 42312, dated 15 March 2019]
Disputes about the interpretation, application or enforcement of this Agreement must be resolved in accordance with the procedure prescribed in the Council's Exemptions and Dispute Resolution Collective Agreement published under Government Notice R.1143 appearing in Government Gazette of 7 December 2007, as amended and extended from time to time.
Signed at Johannesburg, for and on behalf of the parties to the Council this 25 day of August 2011.
|
T C SHORT
|
M GWEDASHE
|
J LETSWALO
|
|
Chairman of the Council
|
Vice-Chairman of the Council
|
Secretary of the Council
|
South African Council for Educators Act, 2000
