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[2016] ZALAC 10
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Hospersa obo Tshambi v Department of Health, KwaZulu-Natal (DA1/2015) [2016] ZALAC 10; [2016] 7 BLLR 649 (LAC); (2016) 37 (ILJ) 1839 (LAC) (24 March 2016)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Reportable
Case no: DA 1/2015
In the matter between:
HOSPERSA OBO TS
TSHAMBI
Appellant
and
DEPARTMENT OF HEALTH,
KWAZULU –NATAL
Respondent
Heard:
25 February 2016
Delivered:
24 March 2016
Summary: Section 24 of
the LRA provides for arbitration of disputes about the
‘interpretation or application’ of collective
agreements–
interpretation of – section provides for a dispute resolution
device ancillary to collective bargaining,
not to be used to remedy
an unfair labour practice under pretext that a term of a collective
agreement has been breached.
The phrase
‘interpretation or application’ is not to be read
disjunctively – the ‘enforcement’ of
the terms of a
collective agreement is a process which follows on a positive finding
about ‘application’ not a facet
of ‘application’.
A dispute about an
employer’s failure to pay an employee during period of
suspension pending a disciplinary enquiry is, properly
characterised,
an unfair labour practice about unfair suspension as contemplated in
section 186(2) (b) of the LRA.
An arbitrator must
characterise a dispute objectively, not slavishly defer to the
parties’ subjective characterisation- failure
to do so is an
irregularity.
The determination of
what constitutes a reasonable time within which to refer a dispute
when no fixed period is prescribed for that
category of dispute, such
as a section 24 dispute, is a fact-specific enquiry having regard to
the dynamics of labour relations
considerations – where for
example the dispute may be understood as a money claim, the
prescription laws are irrelevant.
Labour court reviewing
and setting aside award in which arbitrator deferred to an incorrect
characterisation of a dispute and ordering
the matter to be heard
afresh upheld and appeal against order dismissed.
Coram: Ndlovu, Musi
et
Sutherland JJJA
JUDGMENT
SUTHERLAND JA
[1]
This
case is about what an arbitrator ought to do when there is a dispute
about the nature of a dispute referred to the CCMA or
to a bargaining
council.
[2]
The
relevant facts are few. Mr Tshambi, the appellant, was appointed to a
post by the respondent. After some time, the respondent
learnt that
he had falsified his academic credentials. An enquiry was held and he
was dismissed on 21 October 2010.
[3]
However,
prior to his dismissal, he had been suspended on 7 January 2010. Thus
he was on suspension for nine and a half months.
During this period,
he was not paid the salary due in respect of the post.
[4]
The
appellant did nothing to challenge the respondent about non-payment
during this period. He referred a dispute for conciliation
to the
bargaining council concerning his suspension without pay, 692 days
after his dismissal.
[5]
When,
in turn, the matter was placed before an arbitrator of the bargaining
council, the question of the long delay arose. The respondent
argued
that the referral ought to have been made within 90 days, as
prescribed by section 191(1)(b)(ii) of the Labour Relations
Act 66 of
1995 (LRA) which regulates time periods for the referral of disputes
about unfair dismissals and unfair labour practices.
Accordingly, so
it was argued, the referral was late, and as no condonation was
sought of that non-compliance, the matter should
not be heard.
[1]
[6]
The
appellant countered by arguing that the referral of the dispute was
not late because what had been referred was a dispute as
contemplated
by section 24 (2) of the LRA
[2]
which section does not prescribe any fixed period for a referral to
be effected, and thus had only to be referred within a reasonable
time. The appellant then argued, ostensibly, that a referral of such
a dispute, 692 days after the event, was within a reasonable
time.
[7]
The
appellant in the referral form to the bargaining council stated this:
‘
The issue in
dispute is interpretation and or application 24(2) and 24(5). The
applicant was placed on precautionary suspension
without (pay)
remuneration
.’(sic)
Further, in answering the
question what relief he wanted he stated:
‘
To order the
department of health Kwazulu Natal to pay the applicant the
equivalent of the salary that he would have received when
on
precautionary suspension.’(sic
)
[8]
These
formulations call for comment. First, it should be noted that the
citation of section 24(2) is a misnomer; that section applies
only to
referrals to the CCMA. Section 24(1) is applicable to the bargaining
council. Nothing important turns on this. Second,
the relevance of
section 24 to the grievance, i.e., having been suspended without pay,
is not comprehensively articulated. The
reader is left to infer that
what is implied by the text is that the collective agreement has
something to say about suspension
or about pay and presumably a
connection between the two.
[9]
On
the record presented to the review court and to this Court, the only
other source of information about what information made
available to
the arbitrator is that which is mentioned in the arbitrator’s
ruling. From this source, the court can glean
that the arbitrator was
either shown a copy of the collective agreement or perhaps accepted
as a common cause fact, on the say-so
of the parties, that the
collective agreement “requires a precautionary suspension to be
on full pay”.
[10]
The
contentions advanced by the respondent to address the question were,
frankly, neither insightful nor helpful. They can be ignored.
[11]
A
reading of the ruling evidences that the arbitrator did not
interrogate whether the appellant’s characterisation of his
dispute was, objectively, correct. Rather, after correctly disposing
of the distracting irrelevancies advanced by the respondent,
the
arbitrator took the appellant’s characterisation at face value.
[12]
Upon
the uninvestigated premise that the dispute that had been referred to
him was indeed one contemplated by section 24, the arbitrator
gave a
ruling about the question of the alleged delay. His rationale is
stated in paragraphs 7 – 8 of the ruling:
‘
The claim
having its foundation in the agreement has therefore been
characterised as an ‘interpretation/application’
dispute.
That being said, applicants claim is, nevertheless, essentially a
claim of a debt. As such applicant’s claim is
subject to the
provisions of the
Prescription Act 68 of 1969
. The provisions of that
Act stipulates that a debt is prescribed by prescription (3) three
years after same becomes due. ….this
dispute (ie a claim for a
debt arising from the agreement) was referred to this council well
within the 3 year period as stipulated
in the [act] and has therefore
not prescribed. When a period is prescribed for the referral of a
dispute, as is the case in this
dispute, the unreasonable delay rule
does not apply’.
[13]
It
is plain that the arbitrator was muddled. He did not make a decision
whether the dispute had been referred within a reasonable
time;
rather he concluded that a period had been prescribed by the
Prescription Act for
this particular dispute and that the period had
not yet elapsed.
[14]
On
review, the Labour Court, set the ruling aside. The Labour Court
reasoned that the dispute was not a
section 24
dispute, but was
indeed a dispute about an unfair labour practice concerning an unfair
suspension as contemplated by
section 186(2)(b)
of the LRA.
[3]
By implication the referral was late and in the absence of a
condonation application, the matter ought not to be entertained.
[15]
In
my view, the invocation of
section 24
by the appellant and the bland
acceptance of that characterisation by the arbitrator were plainly
wrong. The Labour Court criticised
the attempt to invoke
section 24
as a contrivance to circumvent the obviously late referral of an
unfair labour practice dispute. I agree that such an inference
can be
properly made.
[16]
An
arbitrator is required to determine the true dispute between the
parties. To that end, it is necessary to establish the relevant
facts
and construe the category of dispute correctly. An arbitrator must
make an objective finding about what is the dispute to
be determined.
This Court in
Wardlaw
v Supreme Mouldings (Pty) Ltd (Wardlaw),
[4]
addressed
directly the question of whether the employees characterisation of a
dispute should enjoy deference and rejected that
approach.
Distinguishing the formalistic school of thought from that of the
substantive school of thought, this Court held that
the latter should
prevail. As a result, in
Wardlaw,
an arbitrator was held to have incorrectly assumed jurisdiction over
a dispute that was about an automatically unfair dismissal,
a
category of dispute reserved for adjudication by the Labour Court.
The Constitutional Court disposed of this issue in
CUSA
v Tao Ying Industries and Others
[5]
‘
A
commissioner must, as the LRA requires, 'deal with the
substantial merits of the dispute'. This can only be done by
ascertaining
the real dispute between the parties. In deciding what
the real dispute between the parties is, a commissioner is not
necessarily
bound by what the legal representatives say the dispute
is. The labels that parties attach to a dispute cannot change its
underlying
nature. A commissioner is required to take all the
facts into consideration including the description of the nature of
the
dispute, the outcome requested by the union and the evidence
presented during the arbitration. What must be borne in mind is
that there is no provision for pleadings in the arbitration process
which helps to define disputes in civil litigation. Indeed,
the
material that a commissioner will have prior to a hearing will
consist of standard forms which record the nature of the dispute
and
the desired outcome. The informal nature of the arbitration process
permits a commissioner to determine what the real dispute
between the
parties is on a consideration of all the facts. The dispute between
the parties may only emerge once all the evidence
is in.’
That approach has been
reaffirmed by this Court in
NUMSA (Sinuko) v Powertech
Transformers (DPM) and Others
(2014) 35 ILJ 954 (LAC) at [16] –
[21] per Coppin JA.
[17]
What
is a “dispute”
per
se,
and how one is to recognise it, demands scrutiny. Logically, a
dispute
requires, at minimum, a difference of opinion about a question. A
dispute about the interpretation of a collective agreement requires,
at minimum, a difference of opinion about what a provision of the
agreement means. A dispute about the application of a collective
agreement requires, at minimum, a difference of opinion about whether
it can be invoked. What is signally absent from the record
is any
clue that the respondent disputes that the collective agreement
provides that an employee on suspension is entitled to full
pay.
Indeed, on the basis of the allusions in the ruling, that fact seems
to be common cause. Similarly, there is no clue that
the respondent
disputes that the collective agreement binds itself and the
appellant. What then, can possibly be the dispute
about
the application of the collective agreement
?
[18]
The
critical facts put before the arbitrator were that an employee was
suspended without pay.
Prima
facie
,
that is unfair. (see:
Harley
v Bacarac Trading 39 (Pty) Ltd
(2009
)
30 ILJ 2085 (LC) esp at [31])
The
characterisation of such a dispute is manifestly an unfair suspension
dispute within the purview of
section 186(2)(b)
of the LRA. The mere
fact that an express right to be paid during suspension can be
derived from a statute or an individual contract
or from a collective
agreement is not a critical dimension of the dispute; rather it is
simply evidence of the right.
[19]
The
idea that the breach of a right that derives from a collective
agreement is automatically a dispute contemplated by
section 24
is
wrong.
Section 23
, which provides for the enforceability of
collective agreements and
section 24
need to be read together.
Together they create the legal edifice for the legal effect of
collective agreements and certain disputes
which take place about
them.
Sections 23
and
24
are located in chapter III of the LRA. That
chapter deals with collective bargaining. Part A of chapter III
addresses organisational
rights, and Part B addresses collective
agreements.
Section 23
and
24
are in part B.
Parts C
and D address
bargaining councils. It is plain that
section 24
is a procedure to
oil the wheels of the collective bargaining process and an efficient
resolution of disputes about collective
agreements.
[20]
Thompson
and Benjamin,
South
African Labour Law,
AA1-141,
remarked at the time of the enactment of
section 24
in the initial
1995 statute that:
‘
Collective
agreements are legally enforceable instruments. Any dispute over the
interpretation or application (which would include
enforcement) of a
collective agreement is a rights dispute, a resort to power to settle
differences is not permitted. In a massive
policy shift that
attracted surprisingly little debate or protest from employers or
unions, the 1996 LRA privatised all dispute
resolution associated
with the enforcement of collective agreement disputes. By the same
token, it transferred the very considerable
costs associated with
such dispute resolution from the state judicial system to the parties
and their members.’
[21]
This
perspective of
section 24
articulates the significance of locating
this category of disputes about collective agreements in the arbitral
process; i.e., the
advantage of a speedy resolution of disputes and
an absence of the use of power in the form of a strike or lock-out.
By contrast,
individual disputes about employer unfairness are
provided for in chapter VIII of the LRA, where
section 186(2)
is to
be found.
[22]
The
bald statement by Thompson and Benjamin that “application”
includes enforcement is unmotivated and is, in my view,
insupportable, if what is meant is that any breach of a collective
agreement triggers a right to invoke the collective agreement
as a
cause of action to be adjudicated, pursuant to
section 24.
A better
reading of Thompson and Benjamin is that it is implied that once
“application” is proven, the referring party
can procure
more than just a declaratory order, and can obtain, pursuant to such
finding, substantive relief.
[23]
Revelas
J in
NUCW
v Oranje Mynbou en Vervoer Maatskappy Bpk
[6]
commented
about “enforcement” thus:
‘
Whether a
dispute about the “application” of a collective
agreement, referred to in section 24(1) of the Act, would
include the
enforcement of a collective agreement when it is breached, is a
further question which needs to be decided.
Enforcement of an
agreement only becomes an issue when there is some form of
non-compliance with that agreement. When a party wishes
to enforce
the agreement it would be, at least
inter
alia,
because it believes the agreement is applicable to the party who is
in breach thereof. Therefore a “dispute about the application
of a collective agreement” (section 24(1) of the Act) applies
to the situation where there is non-compliance with a collective
agreement and one of the parties wishes to enforce its terms.
Consequently, the CCMA, and not the Labour Court, should entertain
disputes arising from the non-compliance with collective agreements.
[24]
It
seems plain that the notion of enforcement articulated by Revelas J
was of a step that
followed
upon
the
“applicability” of the collective agreement being proven,
rather than a facet of the notion of “application”.
[25]
In
my view, the phrase “interpretation or application” are
not disjunctive terms, and ought to be read as being related;
i.e.,
disputes about what the agreement means and what it is applicable to.
This fits appropriately with an understanding of the
section as a
device which is ancillary to collective bargaining.
[26]
A
not dissimilar matter was dealt with in
PSA
(Hohne) v Department of social Development, Free State.
[7]
There,
the bone of contention was whether an employer had timeously
responded to a request to consider special medical leave for
an
employee. The collective agreement was the source of the entitlement.
The arbitrator examined the facts put forward, purportedly
to
substantiate an allegation of a section 24 dispute. The arbitrator
correctly recognised the true dispute was an unfair labour
practice
dispute.
Arend
and Others v SALGBC
[8]
illustrates
an attempt to disguise a dispute about the grading of employees
preparatory to a migration to a new pay structure as
a section 24
dispute which was unmasked as misdirected because the gravamen of the
controversy did not turn on the interpretation
or application of the
collective agreement.
[27]
Martin
Brassey, in
Employment
and Labour Law, Vol III,
Commentary
on the
Labour Relations Act,
A3-46
, expresses the opinion that a general rule exists that
section
24
“…is inapplicable to disputes for which remedial
processes are especially created in the statute”. The
proposition
is based on the decision in
G
A Winders (East Cape) CC and Another v Director, CCMA
(2000)
21 ILJ 323 (LAC) in which, this Court dealt with an award purporting
to have been made pursuant to
section 24
enforcing the provisions of
a collective agreement upon an employer who had claimed not to be
bound. Upon a proper characterisation
of the dispute, it was held
that the controversy was a demarcation dispute and should have been
dealt with in terms of
section 62.
[9]
The point can be made, in my view, that the LRA creates several
“special remedial processes” to address different kinds
of disputes, assigning some to particular fora, and others to be
dealt with in accordance with particular procedures; one of which
is
a class of unfair labour practices as contemplated in
section 186(2).
[28]
Certain
remarks of John Grogan, in his work,
Collective
Bargaining,
(2007) Juta, Cape Town, p114, which were cited in
HOSPERSA
(Somers) v MEC for Health Kwazulu-Natal and Others
[SAFLII]
ZALCD/2014/41 at [32] were referred to in the argument by counsel for
the appellant to supposedly support the argument
that the appellant
was correct to invoke
section 24.
The passage from Grogan’s
work is given here; the italicised text was omitted in the cited
passage, thereby distorting what
the author had written:
‘‘
The
dividing line between ‘interpretation’ and ‘application’
disputes may not always be absolutely clear
.
A dispute over the interpretation of a collective agreement exists if
the parties disagree over the meaning of a particular provision.
A
dispute over the application of a collective agreement arises when
the parties disagree over whether the agreement applies to
or in a
particular set of facts and circumstances. It is quite possible that
both types of disputes may arise in same case.’
[29]
In
my view, what Grogan articulates in this passage is the suggestion
that there might be two sets of circumstances contemplated
under the
rubric “application”. First, a difference of opinion
whether the collective agreement is applicable at all;
eg the
relevant workers are not covered by its terms. Second, whether, eg,
the activity which gives rise to controversy is covered
by the
collective agreement. It is not apparent that Grogan in this passage
intended to address the question of whether “application”
embraces “enforcement”, as Thompson and Benjamin casually
assume. Moreover, a fair reading of Grogan’s statement
cannot
construe it as intended to be a comprehensive account of the
permutations of possible meanings of
section 24
because the burden of
the text is plainly to distinguish the terms “interpretation”
and “application” and
to alert the reader to the
potential for seamlessness between these notions in a real dispute, a
sound reason why they ought not
to be read disjunctively.
[30]
There
is accordingly no need nor any justification to understand
section 24
in a sense so broad that any alleged breach of a term of a collective
agreement means the dispute automatically falls within
section 24.
In
the result, the arbitrator misdirected himself by not determining
objectively the true dispute and had he done so he would have
found
that the true dispute was one contemplated by
section 186(2)(b)
of
the LRA, and, in consequence, startlingly out of time, requiring an
application for condonation.
[31]
Accordingly,
it must follow that the order of the Labour Court, setting the award
aside and finding that the dispute is an unfair
suspension dispute,
should be upheld.
[32]
It
is not strictly necessary to address the arbitrator’s flawed
rationale that because a dispute, purportedly contemplated
by
section
24
dispute, resembles a money claim, and because
section 24
does not
prescribe a time period for referral, therefore that dispute is
subject to a prescribed period for referral as determined
by the
prescription Act. Nevertheless, it is appropriate to deal with such
flawed thinking in order to inhibit any repetition.
Axiomatically,
the arbitrator missed the point about determining a reasonable period
by thinking the
Prescription Act prescribed
a period. Perhaps a
generous reading of his ruling could be that, by analogy, inspiration
could be derived from the laws about
prescription of money claims to
assess reasonableness. However, what constitutes a reasonable time
within which to refer a true
labour dispute is dictated by the
expectations to be derived from the LRA not from civil litigation. A
true money claim belongs
to civil litigation and insofar as such a
claim is covered by
section 77
of the
Basic Conditions of Employment
Act 75 of 1997
, which confers concurrent jurisdiction on the Labour
Court to hear certain civil claims, the Labour Court could hear the
case and
Prescription Act would
prevail in such a context. The use of
analogy must be tempered by an appreciation of the context and
functionality of the procedures
and remedies provided in the LRA. In
true labour disputes, the provisions of
section 191(1)
of the LRA are
a more obvious general yardstick to test what is a reasonable time
for a referral. The absence of a prescribed period
does not
automatically license a longer period than is the norm for other
labour disputes to be referred. In labour disputes, expedition
is the
watchword, not because that is simply a good idea, but because the
prejudice of delay in matters concerning employment often
is not
capable of remedial action. This applies to both employees and
employers. The appropriate enquiry is into the history of
the
engagement between the parties about the controversy, and the elapse
of time since engagement to resolve the controversy ceased.
Self-evidently, the ultimate decision on reasonableness has to be
fact-specific. A lapse of 692 days in respect of a failure to
pay a
salary is a remarkably long time. On this record, nothing said
provides a convincing rationale why the delay was unavoidable.
Order
[33]
The
order of the court is as follows:
33.1.
The
appeal is dismissed.
_______________
Sutherland JA
Sutherland
JA (with whom Ndlovu and Musi JJA concur)
APPEARANCES:
FOR THE APPELLANT:
Adv P J Blomkamp,
Instructed by Llewwllyn
Cain attorneys
FOR THE RESPONDENT:
No
appearance
[1]
Section 191
provides:
(1)
(a)
If there is a dispute about the fairness of a dismissal, or a
dispute about an unfair labour practice, the dismissed employee
or
the employee alleging the unfair labour practice may refer the
dispute in writing to-
(i)
a council, if the parties to the dispute fall within the registered
scope
of that council; or
(ii)
the Commission, if no council has jurisdiction.
(b) A
referral in terms of paragraph (a) must be made within-
(i)
30 days of the date of a dismissal or, if it is a later date, within
30 days of the employer
making a final decision to dismiss or uphold
the dismissal;
(ii)
90 days of the date of the act or omission which allegedly
constitutes the unfair
labour practice or, if it is a later date,
within 90 days of the date on which the employee aware of the act or
occurrence.
(2) If the employee shows good cause
at any time, the council or the Commission may permit the employee
to refer the dispute after
the relevant time limit in subsection (1)
has expired.
[2]
Section 24
Disputes about collective agreements
(1)
Every collective agreement excluding an agency shop agreement
concluded in terms of
section 25
or a closed shop agreement
concluded in terms of
section 26
or a settlement agreement
contemplated in either
section 142A
or
158
(1) (c), must provide for
a procedure to resolve any dispute about the interpretation or
application of the collective agreement.
The procedure must first
require the parties to attempt to resolve the dispute through
conciliation and, if the dispute remains
unresolved, to resolve it
through arbitration.
(2)
there
is a dispute about the interpretation or application of a collective
agreement, any party to the dispute may refer the dispute
in writing
to the Commission if-
(a) the
collective agreement does not provide for a procedure as required by
subsection (1);
(b) the
procedure provided for in the collective agreement is not operative;
or
(c) any
party to the collective agreement has frustrated the resolution of
the dispute in terms
of the collective agreement.
(3) The party who refers the dispute
to the Commission must satisfy it that a copy of the referral has
been served on all the
other parties to the dispute.
(4) The Commission must attempt to
resolve the dispute through conciliation.
(5) If the dispute remains
unresolved, any party to the dispute may request that the dispute be
resolved through arbitration.
4
(6) If there is a dispute about the
interpretation or application of an agency shop agreement concluded
in terms of
section 25
or a closed shop agreement concluded in terms
of
section 26
, any party to the dispute may refer the dispute in
writing to the Commission, and subsections (3) to (5) will apply to
that dispute.
5
(7) Any person bound by an
arbitration award about the interpretation or application of
section
25
(3) (c) and (d) or
section 26
(3) (d) may appeal against that
award to the Labour Court.
(8) If there is a dispute about the
interpretation or application of a settlement agreement contemplated
in either
section 142A
or
158
(1) (c), a party may refer the dispute
to a council or the Commission and subsections (3) to (5), with the
necessary changes,
apply to that dispute.
[3]
Section 186
(2)
'Unfair labour practice' means any unfair act or omission that
arises between an employer and an employee involving-
(a)
….
(b)
the unfair suspension of an employee or any other unfair
disciplinary action short
of dismissal in respect of an employee;
(c)
….
(d)
….
[4]
(2007) 28 ILJ 1042
(LAC).
[5]
(2008) 29 ILJ 2461
(CC) at para 66.
[6]
[2000]
2
BLLR
196
(LC) at paras 8
–9.
[7]
(2008) JOL 21640
(PSCBNC).
[8]
(2015) 36 ILJ 1200
(LAC) at paras 21 – 22.
[9]
62 Disputes about
demarcation between sectors and areas
(1) Any registered trade union,
employer, employee, registered employers' organisation or council
that has a direct or indirect
interest in the application
contemplated in this section may apply to the Commission in the
prescribed form and manner for a
determination as to-
(a)
whether any employee, employer, class of employees or class of
employers,
is or was employed or engaged in a sector or area;
(b)
whether any provision in any arbitration award, collective agreement
or wage determination
made in terms of the Wage Act is or was
binding on any employee, employer, class of employees or class of
employers.
(2) If two or more councils settle a
dispute about a question contemplated in subsection (1) (a) or (b),
the councils must inform
the Minister of the provisions of their
agreement and the Minister may publish a notice in the Government
Gazette stating the
particulars of the agreement.
(3) In any proceedings in terms of
this Act before the Labour Court, if a question contemplated in
subsection (1) (a) or (b) is
raised, the Labour Court must adjourn
those proceedings and refer the question to the Commission for
determination if the Court
is satisfied that-
(a)
the question raised-
(i)
has not previously been determined by arbitration in terms of this
section;
and
(ii)
is not the subject of an agreement in terms of subsection (2); and
(b)
the determination of the question raised is necessary for the
purposes of the proceedings.
(3A) In any proceedings before an
arbitrator about the interpretation or application of a collective
agreement, if a question
contemplated in subsection (1) (a) or (b)
is raised, the arbitrator must adjourn those proceedings and refer
the question to
the Commission if the arbitrator is satisfied that-
(a)
the question raised-
(i)
has not previously been determined by arbitration in terms of this
section; and
(ii)
is not the subject of an agreement in terms of subsection (2); and
(b)
the determination of the question raised is necessary for the
purposes of the proceedings.
(4) When the Commission receives an
application in terms of subsection (1) or a referral in terms of
subsection (3), it must appoint
a commissioner to hear the
application or determine the question, and the provisions of section
138 apply, read with the changes
required by the context.
(5) In any proceedings in terms of
this Act before a commissioner, if a question contemplated in
subsection (1) (a) or (b) is
raised, the commissioner must adjourn
the proceedings and consult the director, if the commissioner is
satisfied that-
(a)
the question raised-
(i)
has not previously been determined by arbitration in terms of this
section;
and
(ii)
is not the subject of an agreement in terms of subsection (2); and
(b)
the determination of the question raised is necessary for the
purposes of the proceedings.
(6) The director must either order
the commissioner concerned to determine the question or appoint
another commissioner to do
so, and the provisions of section 138
apply, read with the changes required by the context.
(7) If the Commission believes that
the question is of substantial importance, the Commission must
publish a notice in the Government
Gazette stating the particulars
of the application or referral and stating the period within which
written representations may
be made and the address to which they
must be directed.
(8) If a notice contemplated in
subsection (7) has been published, the commissioner may not commence
the arbitration until the
period stated in the notice has expired.
(9) Before making an award, the
commissioner must consider any written representations that are
made, and must consult NEDLAC.
(10) The commissioner must send the
award, together with brief reasons, to the Labour Court and to the
Commission.
(11) If the Commission believes that
the nature of the award is substantially important, it may publish
notice of the award in
the Government Gazette.
(12) The registrar must amend the
certificate of registration of a council in so far as is necessary
in light of the award.