The Council has, in terms of section 127 of the Labour Relations Act, 1995, been accredited to perform dispute resolution functions, subject to the terms and conditions set out in the accreditation. The accreditation is renewable on annual basis, and for purposes of enforcement and dispute resolution, the Council has designated agents appointed by the Minister, and it uses the services of accredited CCMA commissioners to resolve disputes.
[Introduction to Clause 9 inserted by section 6 of Notice No. R. 41, GG39610, 22 January 2016]
| 9.1 | Any person may lodge a complaint or refer to a dispute about the interpretation, application or enforcement of this Agreement with the General Secretary or other designated official of the Council for resolution in terms of this Agreement. |
| 9.2 | The General Secretary may require a designated agent to investigate the complaint or dispute. |
| 9.3 | Such designated agent shall perform the functions and have the powers set out in the Act, including those set out in section 33 and 33A and Schedule 10 of the Act. It is specifically recorded that such designated agent shall have the power to issue compliance orders. |
| 9.4 | The Council shall take all reasonable steps necessary to ensure compliance with this Agreement. This may be done through its own investigations or through any other source. If it appears that the provisions of this Agreement may have been breached, then the following procedures shall apply to enforce compliance: |
| (a) | The General Secretary or other designated official of the Council shall appoint a designated agent to investigate the alleged breach; |
| (b) | if, upon completion of the investigation, the designated agent has reason to believe that this Agreement has been breached, the agent may endeavour to secure compliance with the Agreement, in terms of guidelines, or decisions of the Council, where these exist, by— |
| (i) | publicising the contents of this Agreement; |
| (ii) | conducting inspections; |
| (iii) | investigating complaints; |
| (iv) | endeavouring to secure compliance with this Agreement through conciliation; or |
| (v) | issuing a compliance order requiring any person bound by this Agreement to comply with this Agreement within a specified period. |
| 9.5 | The designated agent shall submit a written report to the General Secretary on the investigation, the steps taken to secure compliance and the outcome of those steps. |
| 9.6 | On receipt of the report, the General Secretary may— |
| (a) | require the designated agent to make further investigations; or |
| (b) | if further conciliation is required, appoint a conciliator from the Council's panel of conciliators to conciliate; or |
| (c) | issue a compliance order; or |
| (d) | refer the dispute to arbitration in terms of this Agreement. |
| 9.7 | If a compliance order is issued, that order shall be served on the party allegedly in breach of this Agreement. |
| 9.8 | The party on whom the order is served may object thereto in writing. The objection shall be served on the Council and other interested parties within 14 days of service of the order. |
| 9.9 | If a party objects, the General Secretary may take of the steps referred to in 9.6 above, except to issue another compliance order. |
| 9.10 | If there is no objection, the General Secretary or any affected party may at any time apply to have the order made an arbitration award. |
| 9.11 | The designated agent shall report all disputes concerning compliance with any provisions of this Agreement to the General Secretary or other designated official of the Council. |
| 9.12 | The Council may refer any unresolved dispute concerning the interpretation and application of or compliance with this agreement to arbitration by an arbitrator appointed in terms of 9.13. |
| 9.13 | If the dispute is referred to arbitration, the General Secretary shall appoint an arbitrator from the Council's panel of arbitrators. |
| 9.14 | The General Secretary shall decide the date, time, and venue of the arbitration hearing. |
| 9.15 | The General Secretary shall serve notices of the date, time, and venue of the arbitration on the parties to the dispute. |
| 9.16 | The arbitrator shall resolve the dispute through arbitration. |
| 9.17 | The arbitrator shall conduct the arbitration in a manner that the arbitrator 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. |
| 9.18 | Subject to the arbitrator's discretion as to the appropriate form of the proceedings, a party to the dispute, including the Council, may give evidence, call witnesses, question witnesses of any other party and address concluding arguments to the arbitrator. |
| 9.19 | The arbitrator may suspend the arbitration proceedings and attempt to resolve the dispute through conciliation if the parties to the dispute consent to this. |
| 9.20 | In any arbitration proceedings, a party to the dispute may appear in person or be represented 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 employee. Parties may be represented by a legal practitioner in the proceedings: Provided that— |
| (a) | the panelist and all the other parties consent, |
| (b) | the panelist concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering— |
| (i) | the nature of the questions of law raised by the dispute; |
| (ii) | the complexity of the dispute; |
| (iii) | the public interest; and |
| (iv) | the comparative ability of the opposing parties or their representatives to deal with the dispute. |
| 9.21 | If the party who referred the dispute to the council fails to appear in person or to be represented at the arbitration proceedings, the arbitrator may dismiss the matter. |
| 9.22 | If a party, other than the party who referred the dispute to the council, fails to appear in person or be represented at the arbitration proceedings, the arbitrator may, providing that the parties have been properly served and it is appropriate in the circumstances to do so— |
| (a) | continue with the arbitration proceedings in the absence of that party; or |
(b) adjourn the arbitration proceedings to a later date.
| 9.23 | Within 14 days of the conclusion of the arbitration proceedings— |
| (a) | the arbitrator shall issue an arbitration award with reasons, signed by the arbitrator; and |
| (b) | the Council shall serve a copy of that award on each party to the dispute or the person who represented a party to the dispute within 48 hours of receipt thereof. |
| 9.24 | On good cause shown, the General Secretary of the Council may extend the period in which the arbitration award and the reasons are to be served and filed. |
| 9.25 | Any arbitrator who has issued an arbitration award or ruling, or any other arbitrator appointed by the General Secretary may, on his own initiative or as a result of an application by an affected party, vary or rescind an award or ruling— |
| (a) | erroneously sought or made in the absence of any party affected by the award or ruling; |
| (b) | in which there is ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; or |
| (c) | granted as a result of a mistake common to the parties to the proceedings. |
| 9.26 | An arbitrator conducting an arbitration in terms of this clause may make any appropriate award including— |
| (a) | ordering any person to pay any amount owing in terms of this Agreement; |
| (b) | imposing a fine for a failure to comply with this Agreement in accordance with item 29 of Schedule 7 and section 33A(13) of the Act; |
| (c) | charging a party to the arbitration an arbitration fee; |
| (d) | ordering a party to the arbitration to pay the costs of the arbitration; |
| (e) | confirming, varying or setting aside a compliance order issued by a designated agent; |
| (g) | any award in relation to the interest payable on any amount that a person is obliged to pay in terms of this Agreement. |
| 9.27 | Subject to the provisions of the Act, an arbitration award made in terms of this clause shall be final and binding on the parties to the dispute. |
| 9.28 | The General Secretary or other designated official of the Council may apply to the Director to certify that the arbitration award is an award contemplated in terms of section 143(1) of the Act. |
