Unless otherwise provided for in this collective agreement and ratified by the council, any dispute within the registered scope of the council must be resolved as set out herein, as per the collective agreement concluded on the Dispute Resolution Rules and Procedures of the Statutory Council for the Squid and Related Fisheries of South Africa, which may be amended from time to time.
| 7.1. |
ACCREDITATION OF COUNCIL FOR DISPUTE RESOLUTION |
| 7.1.1. |
The council must apply for accreditation with the governing body of the CCMA for the purposes of dispute resolution in terms of section 52 read with section 127 of the Act. |
| 7.1.2. |
In the event that the council fails to maintain such accreditation, the council may then enter into an agreement with the CCMA in terms of which the CCMA is to perform all dispute resolution functions on behalf of the council in terms of section 51(6) of the Act. |
| 7.2. |
PANEL OF COMMISSIONERS |
| 7.2.1. |
The council must appoint a panel of commissioners for the purpose of presiding over con-arb dispute hearings. |
| 7.2.2. |
The commissioners are to be appointed to the council's panel for a period of one (1) year, but may be re-appointed at the expiry of the period of the appointment. |
| 7.2.3. |
The council may remove a panellist from office for misconduct or for incapacity or if at least half of the employer representatives and half the employee representatives vote in favour of the removal of that member of the panel. |
| 7.2.4. |
A panellist appointed to replace a panel member who leaves the panel for any reason other than due to the expiry of office, will serve on the panel for the remainder of the predecessors term of office. |
| 7.2.5. |
An employee of the council, subject to accreditation by the CCMA, may be appointed to the panel of commissioners, provided that where there might be a vested interest in the dispute to be conciliated or arbitrated, the said employee of the council will not be eligible to conciliate or arbitrate the dispute. |
| 7.3. |
DISPUTES INVOLVING PARTIES WHO ARE NON-REPRESENTED AT THE STATUTORY COUNCIL |
| 7.3.1. |
Any dispute contemplated in terms of 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, must be resolved as follows: |
| 7.3.1.1. |
Any of the parties to the dispute may refer the dispute in writing to the council using the prescribed Council or CCMA dispute referral documentation (form LRA 7.11), setting out the nature of the dispute and the outcome sought. |
| 7.3.1.2. |
The applicant in the dispute must satisfy the council that a copy of the referral form has been served on all other parties to the dispute. |
| 7.3.2. |
The Secretary of the council must appoint a member of the panel of commissioners who must attempt to resolve the dispute through conciliation and arbitration at the earliest opportunity as agreed between the parties. |
| 7.3.3. |
The Secretary of the council must serve notice of the date, the time and the venue of the con-arb hearing of the dispute, on both the parties to the dispute. |
| 7.3.4. |
During the conciliation part of the proceedings, the commissioner may— |
| 7.3.4.1. |
mediate the dispute, |
| 7.3.4.2. |
conduct a fact-finding exercise and/or |
| 7.3.4.3. |
make a recommendation to the parties to the dispute which may be in the form of a binding or non-binding arbitration award. |
| 7.3.5. |
Representation of parties to a con-arb hearing must be in accordance with the rules of the council. |
| 7.3.6. |
Whether or not the matter is resolved on the date scheduled for the con-arb hearing, commissioner who was appointed to resolve the dispute must issue a certificate indicating whether or not the dispute has been resolved. |
| 7.3.7. |
Nothing in this agreement prevents an officer of the council from investigating the dispute in an attempt to resolve the dispute before a date is set down of a con-arb hearing and appointing of a commissioner to preside over a con-arb dispute hearing. |
| 7.3.8. |
Subject to the provisions of the Act, an arbitration award made by a commissioner to resolve the dispute is final and binding on the parties to the dispute. The commissioner shall have power to vary, rescind or amend an award made by him/her on good cause shown, or of his/her own accord. Without limiting the generality thereof, the commissioner shall have the power if— |
| 7.3.9. |
The award was erroneously sought or erroneously made in the absence of any party affected by the award; or |
| 7.3.9.1. |
The award is ambiguous or contains an obvious error or omission; or |
| 7.3.9.2. |
The award was granted as a result of a mistake common to the parties to the proceedings. The council must serve the award together with written reasons given by the commissioner on all the parties to the dispute. |
| 7.3.10. |
Upon receipt of a written request from a party to the dispute, the Secretary of the council must apply to the Director of the CCMA to certify that the arbitration award is an award contemplated in section 143(1) of the Act. |
| 7.4. |
DISPUTE INVOLVING PARTIES REPRESENTED AT THE STATUTORY COUNCIL |
For the purpose of this clause, a party to the council includes any registered trade union or any registered employer's organisation that is a party to the council.
| 7.4.1. |
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, the Secretary must appoint a member of the panel of commissioners who must attempt to resolve the dispute through conciliation within thirty (30) days from the date when the dispute was referred to the council, or as soon as possible thereafter. If the dispute remains unresolved, the parties may exercise their rights in terms of the Act and / or any collective agreement concluded at the council. |
| 7.4.2. |
Any other dispute between the 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 the 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 Agreement and / or any collective agreement between the parties to the dispute, must be resolved by the council in accordance with the procedures set out herein. |
| 7.4.3. |
Upon receipt of a written request for arbitration of a dispute about the interpretation or application of the provisions of any collective agreement between the parties to a dispute, the Secretary must appoint a member of the panel of commissioners to arbitrate the dispute. |
| 7.5. |
COMPLIANCE PROCEDURE AND ENFORCEMENT OF COLLECTIVE AGREEMENTS CONCLUDED AT THE COUNCIL |
| 7.5.1. |
The Secretary / Compliance Officer / Designated Agent of the council shall be responsible for the monitoring and enforcing compliance with any collective agreement concluded at the council. |
| 7.5.2. |
The council shall take all reasonable and necessary steps to ensure compliance with this agreement and with any collective agreements concluded at the council. If, whether through its own investigations or through any other source, it appears that the provisions of this or any other collective agreement may have been breached, the council shall invoke the following procedures to enforce compliance: |
| 7.5.2.1. |
The Secretary shall investigate the alleged breach. |
| 7.5.2.2. |
The Secretary will conduct an investigation and if Secretary has reason to believe that a collective agreement has been breached, the Secretary may endeavour to secure compliance with the collective agreement in terms of guidelines of, or decisions by the council, where these exists, by: |
| 7.5.2.2.1. |
publicising the contents of the collective agreement, |
| 7.5.2.2.2. |
conducting inspections, |
| 7.5.2.2.3. |
investigating complaints, |
| 7.5.2.2.4. |
conciliation and |
| 7.5.2.2.5. |
issuing of a compliance order requesting any person bound by the collective agreement to comply with the collective agreement within a specified period, thereby indicating that a dispute exists. |
| 7.5.2.3. |
In the event of an unresolved dispute, the Secretary of the council may refer the dispute to arbitration. |
The Secretary of the council must—
| 7.5.2.3.1. |
Appoint a commissioner from the panel of commissioners to arbitrate the dispute. |
| 7.5.2.3.2. |
Serve notice of the time, date and venue of the arbitration on the parties of the dispute giving at least twenty one (21) days' notice of such process. |
| 7.5.2.4. |
If any party to such arbitration is not party to the council and objects to the appointment of a member of the council's panel of commissioners, the Secretary must approach the CCMA to appoint an arbitrator, in which case the objecting party must pay the arbitrator's fee to the council and the council shall pay the fee set by the CCMA. |
| 7.5.2.5. |
The provisions regarding the handling of arbitration matters contained herein shall apply throughout, provided that the arbitrator may make any appropriate award including: |
| 7.5.2.5.1. |
ordering a person to pay an amount owing in terms of a collective agreement; |
| 7.5.2.5.2. |
imposing a fine for failure to comply with a collective agreement in accordance with item 29 of schedule 7 and section 33A(13) of the Act; |
| 7.5.2.5.3. |
charging a party to the arbitration an arbitration fee; |
| 7.5.2.5.4. |
ordering a party to the arbitration to pay the costs of the arbitration; |
| 7.5.2.5.5. |
confirming, varying or setting aside a compliance order issued; |
| 7.5.2.5.6. |
any award contemplated in terms of section 138(9) of the Act which gives effect to the objectives of the Act, the council's constitution or this or any collective agreement reached at the council; |
| 7.5.2.5.7. |
any award in relation to interest or penalties payable on any amount that a person is obliged to pay in terms of a collective agreement. |
| 7.5.2.6. |
Subject to the provisions of the Act, an award in an arbitration concluded in terms of this procedure is final and binding on the parties to the dispute. |
| 7.5.2.7. |
The Secretary of the council may apply to the Director of the CCMA to certify that an arbitration award issued in terms of this procedure is an award contemplated in terms of section 143(1) of the Act. |
| 7.5.2.8. |
The provisions of this procedure stand in addition to any other legal remedy through which the council may enforce a collective agreement. |
National Regulator for Compulsory Specifications Act, 2008
