Labour Settlement of Disputes Regulations 2003 (Statutory Instrument 217 of 2003)

 

Statutory Instrument 217 of 2003.

 Labour Settlement of Disputes Regulations 2003

IT is hereby notified that the Minister of Public Service, Labour and Social Welfare has, in terms of section 17 of the Labour Relations Act [Chapter 28:01], made the following regulations:—

1. Title

These regulations may be cited as the Labour (Settlement of Disputes) Regulations, 2003.

2. Interpretation

In these regulations—

“form” means the appropriate form prescribed in the Schedule.

3. Powers of labour officers to settle disputes or unfair labour practices

(1) For the purposes of this section and section ninety-three of the Act, “attempt to settle” shall refer to—

• any form of communication by the labour officer to either party in respect of the dispute or unfair labour practice; or
• any form of notification for the parties to attend any proceedings in respect of the dispute or unfair labour practice; or
• any hearing that the labour officer may conduct in respect of the dispute or unfair labour practice.
• After due inquiry, a labour officer shall, in respect of any matter arising from a dispute or unfair labour practice, attempt to settle the matter through conciliation, and if the parties come to an agreement on the matter, set down, in writing, the terms of the agreement in form LR 1.
• If within thirty days from the date the labour officer attempted to settle the dispute or unfair labour practice, the parties have failed to come to an agreement, the labour officer shall issue a certificate of no settlement in form LR 2.
• Where a labour officer has issued a certificate of no settlement, the parties to the dispute may, notwithstanding the issuance of the certificate, agree to extend the period of conciliation, which agreement shall be in form LR 3.
• The agreement specified in subsection (4) shall be communicated to the labour officer who shall not refer the dispute or unfair labour practice to arbitration but shall continue in his or her attempt to settle the matter through conciliation.
• A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall not spend more than ninety days before attempting to settle it.

4. Representation of parties

A party to a matter before a labour officer may be represented by a fellow employee, an official of a registered trade union, employers organization or a legal practitioner.

5. Reference to arbitration

• After a labour officer has issued a certificate of no settlement and the parties to the dispute have not agreed to extend the period of conciliation, the labour officer shall, in terms of subsection (5) of section 93 of the Act, refer the dispute to compulsory arbitration in form LR 4.
• Before referring a dispute to arbitration, the labour officer shall afford the parties a reasonable opportunity of making representations either orally or in writing on the matter:

Provided that the labour officer shall refer the dispute to compulsory arbitration not later than fourteen days from the expiry of the thirty days referred to in subsection (3) of section 93 of the Act.

• The labour officer upon consulting any labour officer who is senior to him or her and to whom he or she is responsible in the area in which he attempted to conciliate the dispute, may appoint an arbitrator in form LR 5.
• In referring a dispute to compulsory arbitration, the labour officer may determine the share of costs of the arbitration to be borne by each party:

Provided that the labour officer shall as much as possible endeavour to ensure equity between the parties.

6. Procedure after reference to arbitration

• Upon reference of a dispute to arbitration, an arbitrator shall notify parties to the dispute of the date, time and place of hearing of the dispute in form LR 6.
• After hearing both parties the arbitrator shall make an appropriate award in form LR 7 to settle the matter which award shall be served on both parties.
• An appeal on a question of law from any award by an arbitrator shall lie with the Labour Court and shall be made in form LR 8.
• An appeal in terms of subsection (3) shall be made not later than fourteen days from the date the appellant becomes aware of the award.
• Any party to whom an arbitral award relates may submit for registration a copy of the award together with a certificate specified in form LR 9 to the court of any magistrate which would have jurisdiction to make an order corresponding to the award had the matter been determined by it, or if the arbitral award exceeds the jurisdiction of the Magistrates Court, to the High Court.
• Where the arbitral award has been registered in terms of subsection (5) it shall have the effect, for purposes of enforcement, of a civil judgment of the appropriate court.

7. Absence of party to dispute

If a party to a dispute referred to arbitration fails to appear at the hearing, the arbitrator may nevertheless proceed with the hearing in his or her absence.

                                                                                     8.   Voting by secret ballot

• Where employees or employers intend to resort to collective job action to resolve disputes in terms of section 104 of the Act, and the collective job action is to be engaged in after voting by secret ballot in terms of paragraph (e) of subsection (3) of section 104 of the Act, the chairman and the secretary of the workers’ committee, trade union or employers’ organization, as the case may be, shall, before the secret ballot is conducted, inform the employees or employers concerned, in writing, of the reasons for the ballot and the proposed collective job action.
• The secret ballot shall be conducted at the work place, before the expiry of the period of notice of the intention to resort to collective job action, and inside working hours:

Provided that this shall not be disruptive to normal production processes or will not interfere with the efficient running of the undertaking or industry.

• The chairman or secretary of the workers’ committee, trade union or employers’ organization, as the case may be, shall provide each person with a voting slip to be placed in the ballot box.
• The voting shall proceed in the presence of a labour officer or designated agent and each person shall be entitled to one vote only.
• The counting shall be done openly by the labour officer or designated agent, one of whom shall record the result of the ballot.
• The simple majority outcome shall prevail and in the case of a deadlock there shall not be a collective job action.
• In the case of an industry-wide action the secret ballot shall be conducted at the different establishments or enterprises and the Secretary General of the trade union or employers’ organization, as the case may be, shall collect all the results of the ballot from the chairmen of the respective workers’ committees or employers’ organizations, as the case may be, in the different enterprises.
• The Secretary General shall record the results of the ballot which result shall be binding on every person in the industry concerned.
• The result of the ballot shall be of those who actually cast their vote and not of the total membership of the trade union or employers’ organization, and those who do not vote shall forfeit their right to vote.
• The trade union or employers’ organization shall as much as possible endeavour to organize the ballot to cover all undertakings within their scope of coverage in the industry concerned and to make sure that all eligible employees or employers take part in the balloting.
• The trade union or employers’ organization, as the case may be, shall keep records of the ballot for three years from the date of closure of the ballot.

9. Picketing authority

Where a registered trade union or workers’ committee authorises a picket in terms of section 104A of the Act, the authorization shall be in form LR 10.

10. Transitional provisions

Any case pending before a labour officer or a senior labour officer immediately before the date of commencement of the Labour Relations Act, 2002, No. 17 of 2002, shall be proceeded with in terms of these regulations.

11. Repeals

The Labour Relations (Settlement of Disputes) Regulations, 1993 published in Statutory Instrument 30 of 1993, are repealed.

SCHEDULE (Section 2)