Annexure F of the Main

H1
Resolution of Disputes
(Annexure F of the Main)

(Clause 24.1 and 24.2 of the MAIN Collective Agreement)
‘CLAUSES 15 to ‘32’, inclusive, OF THE COUNCIL’S CONSTITUTION’
RESOLUTION OF DISPUTES UNDER THE AUSPICES OF THE COUNCIL
Note: The dispute resolution procedure provided for in clauses 15 to 32 does not apply to the interpretation or application of a collective agreement unless the terms of that agreement specifically say so.]

15.	Resolution of disputes under the auspices of the council
15.1	Except as set out in clauses 23 to 25, the council must appoint a commissioner to attempt to resolve through conciliation:
	15.1.1	any dispute referred to the council in terms of clause 16; and
	15.1.2	any other disputes that have been referred to the council in terms of the Act.
15.2	Except as set out in clauses 23 to 25, if a dispute remains unresolved after conciliation, the council must arbitrate the dispute if:
	15.2.1	the parties to the dispute are parties to the council; or
	15.2.2	the Act requires that the dispute be arbitrated and any party to the dispute has requested that the dispute be resolved through arbitration; or
	15.2.3	all the parties to the dispute consent to arbitration under the auspices of the council.
16.	Disputes about matters of mutual interest
16.1	Except as set out in clauses 23 to 25, any party to a dispute about a matter of mutual interest may refer the dispute in writing to the council, if the parties to the dispute are:
	16.1.1	on the one side-
		16.1.1.1	one or more registered trade union(s);
		16.1.1.2	one or more employee(s); or
		16.1.1.3	one or more registered trade union(s) and one or more employee(s); and
	16.1.2	on the other side:
		16.1.2.1	one or more registered employers' organisation(s);
		16.1.2.2	one or more employer(s); or
		16.1.2.3	one or more registered employers' organisation(s) and one or more employer(s).
16.2	The party who refers the dispute to the council must satisfy the council that a copy of the referral has been served on all the other parties to the dispute.
17.	Resolution of disputes through conciliation
17.1	Except as set out in clauses 23 to 25, when a dispute has been referred to the council, the council must appoint a commissioner to attempt to resolve it through conciliation.
17.2	The appointed commissioner must attempt to resolve the dispute through conciliation within 30 days of the date on which the council received the referral, however the parties may agree to extend the 30-day period.
17.3	The commissioner must determine a process to attempt to resolve the dispute, which may include:
	17.3.1	mediating the dispute;
	17.3.2	conducting a fact finding exercise; and
	17.3.3	making a recommendation to the parties, which may be in the form of an advisory award.
17.4	In the conciliation proceedings a party to the dispute may appear in person or be represented only by a co-employee or by a member, office bearer or official of that party's trade union or employers' organisation and, if the party is a juristic person, by a director or an employee.
17.5	At the end of the 30-day period or any further period agreed to between the parties:
	17.5.1	the commissioner must issue a certificate stating whether or not the dispute has been resolved;
	17.5.2	the council must serve a copy of that certificate on each party to the dispute or the person/s who represented each party at the conciliation proceedings; and
	17.5.3	the commissioner must file the original of that certificate with the council.
18.	Appointment of arbitrator to resolve dispute through arbitration
18.1	Except as set out in clauses 23 to 25, if the Act requires a dispute to be resolved through arbitration, the council must appoint an arbitrator to arbitrate that dispute, if:
	18.1.1	the commissioner has issued a certificate stating that the dispute remains unresolved; and
	18.1.2	any party to the dispute has requested that the dispute be resolved through arbitration.
18.2	An arbitrator appointed in terms of clause 18.1 may be the commissioner who attempted to resolve the dispute through conciliation.
18.3	Any party to the dispute, who objects to the arbitration being conducted by the commissioner who conciliated the dispute, may file an objection with the council and must satisfy the council that a copy of the objection has been served on all the other parties to the dispute.
	18.3.1	When the council receives an objection it must appoint another arbitrator to resolve the dispute by arbitration.
18.4	The parties to a dispute may request the council, in appointing an arbitrator in terms of clauses 18.1 or 18.3.1 to take into account their stated preference, to the extent that this is reasonably practicable in the circumstances.
	18.4.1	The stated preference contemplated above must:
		18.4.1.1	be in writing;
		18.4.1.2	list no more than three arbitrators;
		18.4.1.3	furnish proof that the request is made with the agreement of all the parties to the dispute; and
		18.4.1.4	be submitted within 48 hours of the date of the certificate referred to in clause 18.1.1.
19.	Appointment of senior arbitrator to resolve dispute
19.1	In the circumstances contemplated in clause 18.1, any party to the dispute may apply to the general secretary to appoint a senior arbitrator to attempt to resolve the dispute through arbitration.
19.2	When considering whether the dispute should be referred to a senior arbitrator, the general secretary must hear from the party making the application, as well as from the other party to the dispute, and from the commissioner who conciliated the dispute.
19.3	The general secretary may recommend to the council that it appoint a senior arbitrator to resolve the dispute through arbitration, after having considered:
	19.3.1	the nature of the questions of law raised by the dispute;
	19.3.2	the complexity of the dispute;
	19.3.3	whether there are conflicting arbitration awards that are relevant to the dispute; and
	19.3.4	the public interest
19.4	The general secretary must notify the parties to the dispute of the decision of the council and:
	19.4.1	if the application has been granted, request the chairman for the time being of CCMA to appoint a senior arbitrator to arbitrate the dispute; or
	19.4.2	if the application has been refused, confirm the appointment of the arbitrator initially appointed.
19.5	The council's decision is final and binding
19.6	No person may apply to any court of law to review the council's decision until the dispute has been arbitrated.
20.	General provisions for arbitration proceedings
20.1	The arbitrator may conduct the arbitration in a manner that the arbitrator considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.
20.2	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.
20.3	If all the parties consent, the arbitrator may suspend the arbitration proceedings and attempt to resolve the dispute through conciliation.
20.4	In any arbitration proceedings, a party to the dispute may appear in person or be represented only by a legal practitioner, a co-employee or by a member, office bearer or official of that party's trade union or employers' organisation and, if the party is a juristic person, by a director or an employee.
20.5	If a party to the dispute fails to appear in person or to be represented at the arbitration proceedings, and that party:
	20.5.1	had referred the dispute to the council, the arbitrator may dismiss the matter; or
	20.5.2	had not referred the dispute to the council, the arbitrator may-
		20.5.2.1	continue with the arbitration proceedings in the absence of that party; or
		20.5.2.2	adjourn the arbitration proceedings to a later date.
20.6	The arbitrator must take into account any code of good practice that has been issued by NEDLAC or guidelines published by the council in accordance with the provisions of the Act that is relevant to a matter being considered in the arbitration proceedings
20.7	Within 14 days of the conclusion of the arbitration proceedings:
	20.7.1	the arbitrator must issue an arbitration award with brief reasons, signed by that arbitrator;
	20.7.2	the council must serve a copy of that award on each party to the dispute or the person who represented a party in the arbitration proceedings.
20.8	On good cause shown, the general secretary may extend the period within which the arbitration award and the reasons are to be served and filed.
20.9	The arbitrator may make any appropriate arbitration award in terms of the Act, including, but not limited to, an award:
	20.9.1	that gives effect to any collective agreement;
	20.9.2	that gives effect to the provisions and primary objects of the Act;
	20.9.3	that includes, or is in the form of, a declaratory order.
20.10	The arbitrator may not include an order for costs in the arbitration award unless a party, or the person who represented that party in the arbitration proceedings, acted in a frivolous or vexatious manner:
	20.10.1	by proceeding with or defending the dispute in the arbitration proceedings;
	20.10.2	in its conduct during the arbitration proceedings.
21.	Special provisions for arbitrations
	about dismissals for reasons related to conduct or capacity
21.1	If the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee's conduct or capacity, the parties, despite clause 20.4, are not entitled to be represented by a legal practitioner in the arbitration proceedings unless:
	21.1.1	the arbitrator and all the other parties consent; or
	21.1.2	the arbitrator concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering
		21.1.2.1	the nature of the questions of law raised by the dispute;
		21.1.2.2	the complexity of the dispute;
		21.1.2.3	the public interest; and
		21.1.2.4	the comparative ability of the opposing parties or their representatives to deal with the arbitration of the dispute.
22.	Resolution of disputes
	if parties consent to arbitration under the auspices of the council
22.1	If a dispute remains unresolved after conciliation, the council must arbitrate the dispute if a party to the dispute would otherwise be entitled to refer the dispute to the Labour Court for adjudication and, instead, all the parties agree in writing to arbitration under the auspices of the council.
22.2	The arbitration proceedings must be conducted in accordance with sections 136, 137 and 138 of the Act.
22.3	The arbitration agreement contemplated in clause 22.1 may be terminated only with the consent of all the parties to that agreement, unless the agreement itself provides otherwise.
22.4	Any party to the arbitration agreement may apply to the Labour Court at any time to vary or set aside that agreement, which the Court may do on good cause shown.
	22.4.1	If any party to an arbitration agreement commences proceedings before the Commission or in the Labour Court against any other party to that agreement about any matter that the parties agreed to refer to arbitration, any party to those proceedings may ask the Commission or the Court, as the case may be:
		22.4.1.1	to stay those proceedings and refer the dispute to arbitration by the council; or
		22.4.1.2	with the consent of the parties and where it is expedient to do so, to continue with the proceedings with a commissioner or the Court acting as arbitrator, in which case the commissioner or Court may only make an order corresponding to the award that an arbitrator appointed by the council could have made.
	22.4.2	If the commissioner or the Court is satisfied that there is sufficient reason for the dispute to be referred to arbitration in accordance with the arbitration agreement, the commissioner or the Court may stay those proceedings, on any conditions.
23.	Disputes between the parties to the council
	Despite the provisions of clauses 15, 16 and 17, if a dispute arises between the parties to the council, which the parties are not able to settle among themselves, any party to the dispute may at any time give notice to the other party and to the general secretary that a dispute exists which must be referred to arbitration. For the purposes of this clause any reference to a party to the council excludes any person contemplated by section 51(2)(ii) of the Act. A dispute involving any person contemplated by section 51(2)(ii) of the Act will be dealt with in the manner provided in clause 15 to 32 but with the exclusion of clauses 23 and 24.
24.	Disputes involving this constitution and the parties to the council
	Despite the provisions of clauses 15, 16 and 17, if a dispute arises between the parties to the council about the interpretation or application of this constitution it must be referred to arbitration for determination. For the purposes of this clause any reference to a party to the council excludes any person contemplated by section 51(2)(ii) of the Act. A dispute involving any person contemplated by section 51(2)(ii) of the Act will be dealt with in the manner provided for in clause 15 to 32 but with the exclusion of clauses 23 and 24.
25.	Disputes in terms of section 30(j) of the Act
	Despite the provisions of clauses 15, 16 and 17, if a dispute arises between a registered trade union that is a party to the council, or its members, or both, on the one hand, and employers who belong to a registered employers organisation that is a party to the council, on the other hand, and the dispute has not been settled by the council after three meetings have been held for that purpose, it must be referred to arbitration for final determination.
26.	Powers of arbitrator when attempting to resolve disputes
26.1	An arbitrator who has been appointed to resolve a dispute, including any dispute contemplated by clauses 23 to 25 may:
	26.1.1	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;
	26.1.2	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 arbitrator to be questioned or to produce that book, document or object;
	26.1.3	call, and if necessary subpoena, any expert to appear before the arbitrator to give evidence relevant to the resolution of the dispute;
	26.1.4	call any person who was present at the conciliation or arbitration proceedings or who was or could have been subpoenaed for any purpose set out in this clause, to be questioned about any matter relevant to the dispute;
	26.1.5	administer an oath or accept an affirmation from any person called to give evidence or be questioned;
	26.1.6	at any reasonable time, but only after obtaining the necessary written authorisation-
		26.1.6.1	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 found there; and
		26.1.6.2	examine, demand the 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
		26.1.6.3	inspect, and retain for a reasonable period, any of the books, documents or objects that have been produced to, or seized by, the council.
26.2	A subpoena issued for any purpose in terms of clause 26.1 must be signed by the general secretary and must:
	26.2.1	specifically require the person named in it to appear before the arbitrator;
	26.2.2	sufficiently identify the book, document or object to be produced; and
	26.2.3	state the date, time and place at which the person is to appear.
26.3	The written authorisation referred to in clause 26.1.6:
	26.3.1	if it relates to residential premises, may be given only by a judge of the Labour Court, and then only on the application of the arbitrator setting out under oath or affirmation the following information-
		26.3.1.2	the relevance of any book, document or object to the resolution of the dispute;
		26.3.1.1	the nature of the dispute;
		26.3.1.3	the presence of any book, document or object on the premises; and
		26.3.1.4	the need to enter, inspect or seize the book, document or object; and
	26.3.2	in all other cases, may be given by the general secretary.
26.4	The owner or occupier of any premises that an arbitrator is authorised to enter and inspect, and every person employed by that owner or occupier, must provide any facilities that an arbitrator requires to enter those premises and to carry out the inspection or seizure.
26.5	The arbitrator must issue a receipt for any book, document or object seized in terms of clause 26.4.
26.6	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.
26.7	The council must pay the prescribed witness fee to each person who appears before an arbitrator in response to a subpoena issued by the general secretary.
27.	Effect of arbitration awards
27.1	An arbitration award issued by an arbitrator is final and binding and it may be enforced as if it were an order of the Labour Court, unless it is an advisory arbitration award;
27.2	An arbitration award may only be enforced in terms of 27.1 if the director has certified that the arbitration award is an award contemplated in terms of clause 27.1.
27.3	If a party fails to comply with an arbitration award that orders the performance of an act, other than the payment of an amount of money, any other party to the award may enforce it by way of contempt proceedings instituted in the Labour Court.
27.4	If an arbitration award orders a party to pay a sum of money, the amount earns interest from the date of the award at the same rate as the rate prescribed from time to time in respect of a judgement debt in terms of section 2 of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), unless the award provides otherwise.
28.	Variation and recission of arbitration awards
28.1	Any arbitrator who has issued an arbitration award or ruling, acting on the arbitrator's own accord or, on the application of any affected party, may vary or rescind an arbitration award or ruling:
	28.1.1	erroneously sought or erroneously made in the absence of any party affected by that award;
	28.1.2	in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; or
	28.1.3	granted as a result of a mistake common to the parties to the proceedings.
29.	Review of arbitration awards
29.1	Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the council may apply to the Labour Court for an order setting aside the arbitration award:
	29.1.1	within six weeks of the date that the award was served on the applicant, unless the alleged defect involves corruption; or
	29.1.2	if the alleged defect involves corruption, within six weeks of the date that the applicant discovers the corruption.
29.2	A defect referred to in clause 29.1, means:
	29.2.1	that the arbitrator-
		29.2.1.1	committed misconduct in relation to the duties of the arbitrator as an arbitrator
		29.2.1.2	committed a gross irregularity in the conduct of the arbitration proceedings; or
		29.2.1.3	exceeded the arbitrator's powers; or
	29.2.2	that an award has been improperly obtained.
29.3	The Labour Court may stay the enforcement of the award pending its decision.
29.4	If the award is set aside, the Labour Court may:
	29.4.1	determine the dispute in the manner it considers appropriate; or
	29.4.2	make any order it considers appropriate about the procedures to be followed to determine the dispute.
30.	Exclusion of Arbitration Act
	The Arbitration Act, 1965 (Act No. 42 of 1965), does not apply to any arbitration under the auspices of the council.
31.	Council may provide advice
31.1	If asked, the council may advise any party to a dispute in terms of the Act about the procedures to be followed for the resolution of that dispute.
31.2	In response to a request for advice, the council may provide the advice that it considers appropriate.
32.	Request for pre-dismissal arbitration
32.1	Any party to the dispute may in terms of the Collective Agreement request the council to conduct a pre-dismissal arbitration, by delivering a completed form prescribed by the council to the Council.
32.2	When filing the prescribed form, the employer must pay an amount of R3’420,00 (R3’000,00 plus VAT) to a bank account of the council. Payment of the fee may only be made by:
	32.2.1	bank guaranteed cheques; or
	32.2.2	electronic transfer.
32.3	Upon payment of the fee as set out above, the council must notify the parties of the date, time and place of the pre-dismissal arbitration.
32.4	If the council is unable to set this matter down within 21 days of receipt of the fee the council will be required to refund the fee paid in terms of 32.2.
32.5	An arbitrator appointed in terms of this clause has all the powers conferred on a commissioner as contemplated in the Act, read with the changes required by the context.
32.6	The provisions of sections 143 to 146 of the Act apply to any award made by an arbitrator made in terms of this clause.
32.7	An arbitrator conducting a pre-dismissal arbitration in terms of this clause must, in terms of the Act, direct what action, if any, should be taken against the employee.
32.8	In any arbitration in terms of this clause a party to the dispute may appear in person or be represented only by:
	32.8.1	a co-employee;
	32.8.2	a director or employee, if the party is a juristic person;
	32.8.3	any member, office bearer or official of that party’s registered trade union or registered employers’ organisation; or
	32.8.4	a legal practitioner by agreement between the parties.

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