[NATLEX database] ZIMBABWE LABOUR RELATIONS ACT Acts 16/1985, 12/1992, 20/1994 (s

ZIMBABWE LABOUR RELATIONS ACT (Acts No. 16 of 1985 asmended through Act No. 20 of 1994) (Chap. 28:01).

PART I: PRELIMINARY

1. Short title.

2. Interpretation.

3. Application of Act.

PART II: FUNDAMENTAL RIGHTS OF EMPLOYEES

4. Employees' entitlement to membership of trade unions and workers committees.

5. Protection of employees against discrimination.

6. Protection of employees' right to fair labour standards.

7. Protection of employees' right to democracy in the work place.

PART III: UNFAIR LABOUR PRACTICES

8. Unfair labour practices by employer.

9. Unfair labour practices by trade union or workers committee.

10. Minister may prescribe further unfair labour practices.

PART IV: GENERAL CONDITIONS OF EMPLOYMENT

11. Contracts by young persons.

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18. Maternity leave.

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PART X: COLLECTIVE BARGAINING AGREEMENTS NEGOTIATED BY TRADE UNIONS AND EMPLOYERS ORGANIZATIONS

74. Scope of collective bargaining agreements.

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PART XI: LABOUR RELATIONS TRIBUNAL

83. Establishment of Tribunal.

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89. Functions of Tribunal.

90. Exercise of functions by Tribunal.

91. Determination of disputes.

92. Effect of determination.

PART XII: DETERMINATION OF DISPUTES AND UNFAIR LABOUR PRACTICES

93. Powers of Labour relations officers.

94. Prescription of disputes.

95. Powers of senior labour relations officers.

96. Determination by labour relations officers and senior labour relations officers.

97. Appeal to Tribunal.

98. Reference to compulsory arbitration.

99. Effect of reference to compulsory arbitration.

100. Procedure relating to compulsory arbitration.

101. Employment codes of conduct.

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PART XV: GENERAL

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124. Protection against multiple proceedings.

125. Records to be kept by employers, principals and contractors.

126. Investigative powers of labour relations officers.

127. Regulations.

128. General offences and penalties.

AN ACT to declare and define the fundamental rights of employees; to define unfair labour practices; to regulate conditions of employment and other related matters; to provide for the control of wages and salaries; to provide for the appointment and functions of workers committees; to provide for the formation, registration, certification and functions of trade unions, employers organizations, employment councils and employment boards; to regulate the negotiation, scope and enforcement of collective bargaining agreements; to provide for the establishment and functions of the Labour Relations Board and the Labour Relations Tribunal; to provide for the prevention of trade disputes, and unfair labour practices; to regulate and control collective job action; to regulate and control employment agencies; and to provide for matters connected with or incidental to the foregoing. [Date of commencement: 15th December, 1985.]

PART I: PRELIMINARY

1. Short title

This Act may be cited as the Labour Relations Act

2. Interpretation

In this Act --

"accreditation proceedings" means proceedings held in terms of section forty-one;

"agent union" means a trade union acting as an agent union in terms of section thirty-one;

"appropriate trade union", in relation to any employees means --

(a) a trade union which is an agent union for the employees concerned; or

(b) where there is no agent union for the employees concerned, the trade union which is registered or certified for interests which correspond most closely to those of the employees concerned;

"association dues" means money levied by an employers organization in terms of section fifty-two;

"certificate of registration" means a certificate relating to the registration of an employment agency issued in terms of paragraph (a) of subsection (2) of section one hundred and fifteen;

"certified", in relation to a registered trade union or employers organization, means certified in terms of section thirty-eight;

"Chairman" means the Chairman of the Tribunal; "code" means an employment code of conduct registered in terms of section one hundred and one;

"collective bargaining agreement" means an agreement negotiated in accordance with this Act which regulates the terms and conditions of employment of employees;

"collective job action" means an industrial action calculated to persuade or cause a party to an employment relationship to accede to a demand related to employment, and includes a strike, boycott, lock-out, sit-in or sit-out, or other such concerted action;

"compulsory arbitration" means compulsory arbitration in terms of section ninety-eight;

"contractor" means a person who renders to an employer services which are related to or connected with those of the employer's undertaking;

"Deputy Chairman" means the Deputy Chairman of the Tribunal;

"dispute" means a dispute relating to any matter concerning employment which is governed by this Act;

"employee", subject to the provisions of section three, means any person employed by or working for any employer, and receiving or entitled to receive any remuneration in respect of such employment or work;

"employer", subject to the provisions of section three, means any person whatsoever who employs or provides work for another person and remunerates or expressly or tacitly undertakes to remunerate him, and includes the manager, agent or representative of such person who is in charge or control of the work upon which such other person is employed;

"employers organization" means any association or organization formed to represent or advance the interests of any employers or groups thereof in respect of matters relating to employment;

"employment agency" means any business carried on for gain or reward in which employment of any nature whatsoever is procured for persons seeking work, or in which advice in regard to the procurement of employment is given to such persons;

"employment board" means an employment board appointed in terms of Part IX;

"employment council" means an employment council formed in terms of section fifty-six or fifty-seven;

"employment officer" means an officer designated as such in terms of his employment in the Public Service;

"federation" means a group of trade unions or employers organizations, each of which is representative of a single undertaking or industry;

"fixed date" means the 15th December, 1985;

"labour relations officer" means a labour relations officer referred to in paragraph (d) of subsection (1) of section one hundred and twenty-one, and includes a senior labour relations officer and an employment officer;

"managerial employee" means an employee whose contract of employment requires or permits him to hire, transfer, promote, suspend, lay off, dismiss, reward, discipline or adjudge the grievances of other employees, or to make recommendations on these matters to his employer;

"maximum wage notice" means a notice issued in terms of section twenty-two;

"member" means a member of the Tribunal including the Chairman or Deputy Chairman;

"membership fees", in relation to a trade union or employers organization, means those fees chargeable by the trade union or employers organization concerned in respect of membership or renewal thereof;

"minimum wage notice" means a notice issued in terms of section twenty;

"Minister" means the Minister of Public Service, Labour and Social Welfare or any other Minister to whom the President may, from time to time, assign the administration of this Act;

"region" means any area within Zimbabwe declared by the Minister, by statutory instrument, to be a region for the purposes of this Act;

"Registrar" means the Registrar of Labour Relations referred to in paragraph (c) of subsection (1) of section one hundred and twenty-one, and includes an Assistant Registrar referred to in that paragraph;

"relevant particulars" means such information and other particulars as are within the interests of a workers committee, trade union, employers organization or federation, as the case may be, and which relate to the issue that is legitimately before the organization requesting such information and other particulars;

"trade union" means any association or organization formed to represent or advance the interests of any employees or class thereof in respect of their employment;

"Tribunal" means the Labour Relations Tribunal established by section eighty-three;

"unfair labour practice" means an unfair labour practice specified in Part III, or declared to be so in terms of any other provision of this Act;

"union agreement" means a collective bargaining agreement that has been negotiated by an appropriate trade union and an employer or employers organization;

"union dues" means money levied by a trade union in terms of section fifty-two;

"workers committee" means a workers committee appointed or elected in terms of Part VI;

"works council" means a council composed of an equal number of representatives of an employer and representatives drawn from members of a workers committee.

3. Application of Act

This Act shall apply to all employers and all employees except those whose conditions of employment are otherwise provided for by or under the Constitution.

PART II: FUNDAMENTAL RIGHTS OF EMPLOYEES

4. Employees' entitlement to membership of trade unions and workers committees

(1) Notwithstanding anything contained in any other enactment, every employee shall, as between himself and his employer, have the following rights --

(a) the right, if he so desires, to be a member or an officer of a trade union;

(b) where he is a member or an officer of a trade, the right to engage in the lawful activities of such trade union for the advancement or protection of his interests;

(d) the same rights, mutatis mutandis, as are set out in paragraphs (a), (b), and (c) in relation to workers committees.

(2) Every employee shall have the right to be a member of a trade union which is registered or certified, as the case may be, for the undertaking or industry in which he is employed if he complies with the conditions of membership.

(3) No term or condition of employment and no offer of employment shall include a requirement that an employee or prospective employee shall undertake --

(a) if he is a member or officer of a trade union or workers committee, to relinquish his membership or office of such trade union or workers committee; or

(b) not to take part in the formation of a trade union or workers committee;

and any such requirement shall be void.

(4) Without prejudice to any other remedy that may be available to him in any competent court, any person who is aggrieved by any infringement or threatened infringement of a right specified in subsection (1) shall be entitled to apply under Part XII for either or both of the following remedies --

(a) an order directing the employer other party concerned to cease the infringement or threatened infringement, as the case may be;

(b) an order for damages for any loss or prospective loss caused either directly or indirectly, as a result of the infringement or threatened infringement, as the case maybe.

5. Protection of employees against discrimination

(1) No employer shall discriminate against any employee or prospective employee on grounds of race, tribe, place of origin, political opinion, colour, creed or sex in relation to --

(a) the advertisement of employment; or

(b) the recruitment for employment; or

(d) the determination or allocation of wages, salaries, pensions, accommodation, leave or other such benefits; or

(e) the choice of persons for jobs or posts, training, advancement, apprenticeships, transfer, promotion or retrenchment; or

(f) the provision of facilities related to or connected with employment; or

(g) any other matter related to employment.

(2) No person shall discriminate against any employee or prospective employee on the grounds of race, tribe, place of origin, political opinion, colour, creed or sex in relation to --

(a) the advertisement of employment; or

(b) the recruitment of persons; or

(d) any other matter related to employment.

(3) Any person who contravenes subsection (1) or (2) shall be guilty of an offence and liable to a fine not exceeding two thousand dollars or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

(4) Without prejudice to any other remedy that may be available to him in any competent court, any person who is aggrieved by any act or omission of an employer in contravention of subsection (1) shall be entitled to claim or apply under Part XII, as the case may be, for either or both of the following remedies --

(a) damages from the employer for any loss caused directly or indirectly as a result of the contravention;

(b) an order directing the employer to redress the contravention, including an order to employ any person, notwithstanding that the vacancy in question has already been filled and notwithstanding that the employer may be liable to any claim arising from the need to dismiss or terminate the services of any other employee who has been engaged.

(5) Without prejudice to any other remedy that may be available to him in any competent court, any person who is aggrieved by any act or omission of any person in contravention of subsection (2) shall be entitled to claim or apply under Part XII, as the case may be, for either or both of the following remedies --

(a) damages from such person for any loss caused either directly or indirectly as a result of the contravention;

(b) an order directing such person to redress the contravention.

(6) For the purposes of this section, a person shall be deemed to have discriminated if his act or omission causes or is likely to cause persons of a particular race, tribe, place of origin, political opinion, colour, creed or sex to be treated --

(a) less favourably; or

(b) more favourably;

than persons of another race, tribe, place of origin, political opinion, colour, creed or sex, unless it is shown that such act or omission was not attributable wholly or mainly to the race, tribe, place of origin, political opinion, colour, creed or sex of the persons concerned.

(7) Notwithstanding subsections (1) and (2), no person shall be deemed to have discriminated against another person --

(a) on the grounds of sex where --

(i) in accordance with this Act or any other law, he provides special conditions for female employees; or

(ii) in accordance with this Act or any other law or in the interests of decency or propriety, he distinguishes between employees of different sexes; or

(iii) it is shown that the act or omission concerned was done or omitted to be done, as the case may be, by or on behalf of a men's or women's or boys' or girls' organization in the bona fide pursuit of the lawful objects of such organization;

(b) on the grounds of political opinion or creed where it is shown that the act or omission concerned was done or omitted to be done, as the case may be, by or on behalf of a political, cultural or religious organization in the bona-fide pursuit of the lawful objects of such organization.

(8) It shall be no defence to a charge in respect of a contravention of subsection (1) or (2) to prove that --

(a) the employee or prospective employee concerned was not in fact taken into employment by the employer concerned or that such employee would, in any case, not have been taken into such employment for any other lawful reason; or

(b) the employee or prospective employee concerned has left or has not left the employment of the employer concerned; or

(c) the employee or prospective employee concerned has subsequently been taken into employment by the employer concerned in circumstances showing that he has not been discriminated against; or

(d) the employer concerned subsequently withdrew or did not fill the vacancy; or

(e) the person charged is no longer committing any contravention of subsection (1) or (2); or

(f) the employee or prospective employee concerned was party to the alleged contravention or did not complain about it; or

(g) it was in the business interests of the person charged to commit the contravention; or

(h) the contract or agreement which forms the subject of the charge was entered into prior to the fixed date.

6. Protection of employees' right to fair labour standards

(1) No employer shall --

(a) pay any employee a wage which is lower than that to fair labour specified for such employee by law or by agreement made under this Act; or

(b) require any employee to work more than the maximum hours permitted by law or by agreement made under this Act for such employee; or

(c) fail to provide such conditions of employment as are specified by law or as may be specified by agreement made under this Act; or

(d) require any employee to work under any conditions or situations which are below those prescribed by law or by the conventional practice of the occupation for the protection of such employee's health or safety; or

(e) hinder, obstruct or prevent any employee from, or penalize him for, seeking access to any lawful proceedings that may be available to him to enable him lawfully to advance or protect his rights or interests as an employee.

(2) Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding two thousand dollars or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

7. Protection of employees' right to democracy in the work place

(1) No person shall --

(a) hinder, obstruct or prevent any employee from forming or conducting any workers committee for the purpose of airing any grievance, negotiating any matter or advancing or protecting the rights or interests of employees;

(b) threaten any employee with any reprisal for any lawful action taken by him in advancing or protecting his rights or interests.

(2) Every employer shall permit a labour relations officer or a representative of the appropriate trade union or employment board, if any, to have reasonable access to his employees at their place of work during working hours for the purpose of --

(a) advising the employees on the law relating to their employment; and

(b) advising and assisting the employees in regard to the formation or conducting of workers committees and trade unions; and

and shall provide such labour relations officer or representative of the appropriate trade union or employment board, if any, with reasonable facilities and access for the exercise of such functions.

(4) Notwithstanding subsection (3), nothing done to prevent any disruption of normal production processes, or any interference with the efficient running of an undertaking or industry shall be held to be in contravention of subsection (1) or (2).

PART III: UNFAIR LABOUR PRACTICES

8. Unfair labour practices by employer

An employer commits an unfair labour practice if, by act or omission, he --

(a) prevents, hinders or obstructs any employee in the exercise of any right conferred upon him in terms of Part II; or

(b) contravenes any provision of Part II; or

(c) refuses to negotiate in good faith with a workers committee or a trade union which has been duly formed and which is authorized in terms of this Act to represent any of his employees in relation to such negotiation; or

(d) refuses to co-operate in good faith with an employment council or employment board on which the interests of any of his employees are represented; or

(e) fails to comply with or to implement --

(i) a collective bargaining agreement; or

(ii) a decision or finding of an employment council or employment board on which any of his employees are represented; or

(iii) a decision or finding made under Part XII; or

(iv) any determination or direction which is binding upon him in terms of this Act; or

(f) bargains collectively or otherwise deals with another trade union, where a certified trade union representing his employees exists.

9. Unfair labour practices by trade union or workers committee

A trade union or a workers committee commits an unfair labour practice if by act or omission it --

(a) prevents, hinders or obstructs an employee in the exercise of any right conferred upon him in terms of Part II; or

(b) contravenes any of its constitution; or

(c) fails to represent an employee's interests with respect to any violation of his rights under this Act or under a valid collective bargaining agreement, or under a decision or finding of an employment council or employment board, or under Part XII; or

(d) fails to comply with or to implement any decision or finding of an employment council or employment board, or any decision or finding made under Part XII, or any determination or direction under this Act which is binding upon it; or

(e) not being registered, purports to act as a collective bargaining agent in terms of Part X or participates in the collection union dues; or

(f) recommends collective job action in contravention of a valid collective bargaining agreement; or

(g) except as may be authorized in terms of this Act, purports to act as the collective bargaining agent for employees, or calls for collective job action when another trade union has duly been certified to represent the employees concerned; or

(h) purports to enter upon an agency agreement or collective bargaining agreement when another trade union has been duly certified for the workers concerned.

10. Minister may prescribe further unfair labour practices

(1) The Minister may, after consultation with the Board, from time to time, prescribe by statutory instrument acts or omissions which constitute unfair labour practices, whether by employers, employees, workers committees or trade unions or otherwise and may from time to time vary, amend or repeal any such notice.

(2) Before exercising his powers in terms of subsection (1), the Minister shall publish in the Gazette notice of intent and shall call for any objections thereto within a period specified in such notice.

PART IV: GENERAL CONDITIONS OF EMPLOYMENT

11. Contracts by young persons

No contract of employment shall be enforceable against any person under the age of sixteen years, whether or not such person was assisted by his guardian, married, or otherwise tacitly or expressly emancipated, but such person may enforce any rights that have accrued to him by or under such contract;

Provided that a contract of apprenticeship duly entered into and registered in terms of the law relating to apprentices shall, notwithstanding the age of the apprentice concerned, be enforceable against the apprentice.

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17. Regulatory powers of Minister

(1) Subject to this Act, the Minister may make regulations providing for the development, improvement, protection, regulation and control of employment and conditions of employment.

(2) Regulations made by the Minister in terms of subsection (1) shall, unless such regulations otherwise provide, prevail over any other statutory instrument or of any agreement or arrangement whatsoever, and in the event of any inconsistency, such other statutory instrument, agreement or arrangement shall, to the extent of such inconsistency, be construed with such modifications, qualifications, adaptations and exceptions as may be necessary to bring them into conformity with the regulations made by the Minister.

(3) Without prejudice to the generality of subsection (1), the Minister may make regulations in terms of that subsection providing for --

(a) the rights of employees, including minimum wages, benefits, social security, retirement and superannuation benefits, and other conditions of employment;

(b) the deductions which may be made from the wages of employees;

(d) rest and meal breaks, the provision of food and other services at work in special cases and the charges that may be made from wages therefor;

(e) leave, including sick leave, maternity leave and bereavement leave, that shall be granted to employees and the remuneration and allowances that shall be payable in respect thereof;

(f) the holidays that shall be granted to, or that may be withheld from, employees, and the remuneration and allowances that shall be payable in respect thereof;

(g) the establishment of pension, social security, sick, medical, holiday, provident, insurance and other funds for employees, and the levying of contributions thereto by employers and employees;

(h) the special conditions that shall be applicable to female, juvenile and disabled employees, including the prohibition of the employment of persons below the age of sixteen years;

(i) the restriction on the employment of juveniles and pregnant women in specified types and categories of employment or at specified hours, and the rights and privileges of mothers with suckling infants;

(j) the regulation and control of employment on contract, overtime, part-time, short-time or casual basis, including the conditions relating to any such employment;

(k) the encouragement of employment of disabled persons and the remuneration and allowances payable to, and the facilities which should be provided for, such persons;

(l) the settling of disputes in a category or class of employment by reference to specified officials or tribunals;

(m) the protection of the rights of employees in respect of wages, pensions, benefits and holidays where the employer terminates or transfers his undertaking;

(n) the implementation of any national or international standards of employment, including those related to the rights and obligations of employers and employees as to safety, health and compensation for occupational disablement;

(o) the recruitment and employment of unskilled, semi-skilled and skilled labour and apprentices in any occupation, including the regulation and control of the recruitment of citizens, non-citizens and residents for any type of employment within and outside Zimbabwe: Provided that no regulations shall be made in terms of this paragraph without prior consultation with the Minister responsible for apprenticeship training;

(p) the employment of unemployed persons and persons released from penal institutions;

(q) regulating and restricting the circumstances in which employers may suspend or terminate the employment of any of their employees;

(r) specifying or otherwise restricting the circumstances in which contracts of employment may be terminated summarily or otherwise;

(s) the reinstatement of employees where they have been retrenched, whether voluntarily or otherwise in circumstances which are to their disadvantage, or which are contrary to the national interest;

(t) the regulation and control of persons recruiting labour or operating employment agencies, including the registration of such persons or employment agencies;

(u) any other matter relating to or connected with employment which it may be necessary to regulate.

(4) Regulations made in terms of subsection (1) may provide for penalties for any contravention thereof:

Provided that no such penalty shall exceed a fine of two thousand dollars or imprisonment for a period of one year or both such fine and such imprisonment.

(5) Unless in the opinion of the Minister the urgency of the situation demands otherwise, the Minister shall, before making regulations in terms of this section, cause to be published in the Gazette a notice setting forth the general purport of the proposed regulations and stating that the regulations shall be open for inspection at a place specified in the notice, and calling upon persons who have any objections to the proposed regulations to lodge them in writing with the Minister within thirty days of the date of publication of such notice:

Provided that failure by the Minister to comply with this subsection shall not affect the validity of the regulations concerned.

18. Maternity leave

(1) Unless more favourable conditions have otherwise been provided for in any employment contract or in any enactment, a female employee who is pregnant and who furnishes to her employer a certificate signed by a registered medical practitioner or State Registered Nurse certifying that the birth of her child is likely to take place within the next forty-five days shall, at her request, be granted maternity leave from a date specified by her for any period to which she is entitled in terms of subsection

(2), under the following conditions as may be applicable to her case --

(a) if, prior to going on maternity leave, she agrees to forfeit the leave or vacation days which she was entitled to accumulate in the previous six months, she shall, in addition to receiving all her normal benefits payable by the employer, be entitled to not less than seventy-five per centum of her normal pay which shall be payable as and when it would have been regularly payable, had she not gone on such maternity leave; or

(b) if she was not entitled to any leave or vacation days in terms of paragraph (a), or if she is unwilling or unable to forfeit such leave or vacation days as are referred to in paragraph (a), she shall be paid not less than sixty per centum of her normal pay and benefits payable by the employer: Provided that -- o (i) where a female employee who has benefited from paragraph (a) or (b) fails, for any reason other than death, or dismissal by the employer, to return to the employer's service for a period at least as long as that during which she was on maternity leave and on terms not less favourable than she enjoyed prior to going on such leave, she shall be liable for the repayment to the employer of all the wages and benefits she received from the employer in consideration of such leave; o (ii) the frequency of paid maternity leave that a female employee may take in terms of this subsection shall not exceed once every twenty-four months and a total of three times with respect to her total service to any one employer.

(2) The aggregate of maternity leave which a female employee may take in terms of subsection (1) before and after the birth other child shall be ninety days:

Provided that --

(i) where the birth of her child in fact takes place after the expiry of the forty-five days referred to in the certificate mentioned in subsection (1), the period of ninety days shall be extended without pay by the number of days that have elapsed between the expiry of such period of forty-five days and the date of birth of the child;

(ii) where a registered medical practitioner or State Registered Nurse certifies that, as a result of complications accompanying the birth of a child, the child's mother needs to convalesce for a specified period in excess of forty-five days after such birth, the period of ninety days shall be extended without pay to include the whole of such specified period.

(iii) the employee shall go on maternity leave at least fourteen days before the birth other child.

(3) During the period when a female employee is on maternity leave in accordance with subsections (1) and (2), her normal benefits and entitlements, including her rights to seniority or advancement and the accumulation of pension rights, shall continue uninterrupted in the manner in which they would have continued had she not gone on such leave, and her period of service shall not be considered as having been interrupted, reduced or broken by the exercise of her right to maternity leave in terms of this section.

(4) A female employee who is the mother of a suckling child shall, during each working day, be granted at her request at least one hour or two half-hour periods, as she may choose during normal working hours, for the purpose of nursing her child, and such employee may combine the portion or portions of time to which she is so entitled with any other normal breaks so as to constitute longer periods that she may find necessary or convenient for the purpose of nursing her child.

(5) Any person who contravenes this section shall be guilty of an unfair labour practice.

(6) Notwithstanding subsections (4) and (5), the grant of breaks during normal working time to a female employee for the purpose of nursing her child shall be made in accordance with the exigencies of her employment and nothing done to prevent any disruption of normal production processes or any interference with the efficient running of an undertaking or industry shall be held to be in contravention of subsection (4).

(7) A female employee shall be entitled to the benefits under subsection

(4) for the period during which she actually nurses her child or six months, whichever is the lesser.

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PART X: COLLECTIVE BARGAINING AGREEMENTS NEGOTIATED BY TRADE UNIONS AND EMPLOYERS ORGANIZATIONS

74. Scope of collective bargaining agreements

(1) This Part shall apply to collective bargaining agreements negotiated by registered or certified trade unions, employers and employers organizations or federations thereof:

Provided that nothing in this Part contained shall prevent an unregistered trade union or employers organization from negotiating a collective bargaining agreement.

(2) Subject to this Act and the competence and authority of the parties, trade unions and employers or employers organizations may negotiate collective bargaining agreements as to any conditions of employment which are of mutual interest to the parties thereto.

(3) Without derogation from the generality of subsection (2), a collective bargaining agreement may make provision for --

(a) rates of remuneration and minimum wages for different grades and types of occupations;

(b) benefits for employees;

(c) deductions which an employer may make from employees' wages, including deductions for membership fees and union dues, and deductions which an employer may be required or permitted by law or by order of any competent court to make;

(d) methods of calculating, or factors for adjusting rates of pay, and the dates, times and modes of payment;

(e) all issues pertaining to overtime, piece-work, periods of vacation and vacation pay and constraints thereon;

(f) the demarcation of the appropriate categories and classes of employment and their respective functions;

(g) the conditions of employment for apprentices;

(h) the number of hours of work and the times of work with respect to all or some of the employees;

(i) the requirements of occupational safety;

(j) the maintenance of, and access by the parties to, records of employment and pay.

(4) Nothing contained in any collective bargaining agreement shall prevent either or both of the parties from seeking to negotiate or amend the agreement after twelve months of its operation in order to take account of changed circumstances in the industry or undertaking concerned.

(5) A collective bargaining agreement shall not contain any provision which is inconsistent with this Act or any other enactment, and any collective bargaining agreement which contains any such provision shall, to the extent of such inconsistency, be construed with such modifications, qualifications, adaptations and exceptions as may be necessary to bring it into conformity with this Act or such other enactment.

(6) The existence of a collective bargaining agreement shall not preclude an employer and his employees from agreeing to the introduction of higher rates of pay or other more favourable conditions of employment before the expiry of such collective bargaining agreement, so however that the rights and interests of the employees are not thereby diminished or adversely affected:

Provided that the collective bargaining agreement shall be endorsed to reflect such higher rates of pay or other more favourable conditions of employment.

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PART XI: LABOUR RELATIONS TRIBUNAL

83. Establishment of Tribunal

(1) There is hereby established a tribunal to be known as the Labour Relations Tribunal which shall be a court of record.

(2) In the performance of its functions under this Act, the Tribunal shall be assisted by the Registrar.

(3) The Tribunal shall consist of --

(a) the Chairman; and

(b) the Deputy Chairman; and

(c) not fewer than two and not more than four other members who shall be qualified legal practitioners or persons experienced in labour

(4) The President shall appoint --

(a) as Chairman, a person who is or is qualified to be a judge of the High Court, and in so doing, he shall act after consultation with the Judicial Service Commission;

(b) as Deputy Chairman, a person who is registered as a legal practitioner in terms of the Legal Practitioners Act.

(5) A member shall be appointed by the President acting on the advice of the Minister.

(6) A member shall hold office for such period and on such terms and conditions as may be determined by the President at the time of his appointment.

(7) A person who ceases to be a member shall be eligible for re-appointment.

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89. Functions of Tribunal

The Tribunal shall exercise the following functions

(a) hearing and determining appeals in terms of any provision of this Act which provides for an appeal to the Tribunal; and

(b) hearing and determining appeals from any determination, direction or decision of the Minister in terms of section twenty-five, fifty-one, seventy-nine or eighty-one; and

(d) doing such other things as may be assigned to it in terms of this Act or any other enactment.

90. Exercise of functions by Tribunal

(1) Subject to this section and section eighty-nine, the functions of the Tribunal may be exercised by one or more members sitting alone or assisted by one or more assessors appointed in terms of subsection (2).

(2) At any sitting the Tribunal may appoint a person with expert knowledge to assist it in an advisory capacity in proceedings where it appears to the Tribunal that expert knowledge is required for a proper determination of the proceedings, but the Tribunal shall not be bound by any advice tendered by such person.

(3) Any decision on a question of a law determined by the Tribunal consisting of or presided over by the Chairman shall be binding on all members.

(4) Where a question of law is determined by the Tribunal consisting of the Chairman, the Chairman shall as far as necessary take steps to notify members of a decision referred to in subsection (3).

(5) If the Chairman is unable for any period to exercise his functions in terms of this section, the Deputy Chairman shall exercise such functions, other than the power to make binding decisions in terms of subsection (3).

(6) For the purpose of taking evidence on any question of fact before it the Tribunal shall have the powers which the High Court has to summon witnesses, to cause the oath to be administered to them, to examine them and to call for the production of books, plans and documents.

(7) The procedure at any sitting of the Tribunal shall be as prescribed.

91. Determinations of Tribunal

(1) In determining an appeal in terms of this Pan, the Tribunal may confirm, vary or set aside the determination appealed against, or substitute its own determination for the one appealed against, and may make any order as to costs.

(2) Subsections (1) to (4) of section ninety-six --

(a) shall apply, mutatis mutandis, where the Tribunal varies a determination or substitutes its own determination for the one appealed against;

(b) may, at the direction of the Tribunal, mutatis mutandis, apply to any determination made by it otherwise than on appeal.

92. Effect of Tribunal's decisions

(1) The Tribunal may fix the date from which any decision or determination made by it shall operate, which date may be the date of such decision or determination or an earlier or later date.

(2) An appeal on a question of law from any decision of the Tribunal shall lie to the Supreme Court.

PART XII: DETERMINATION OF DISPUTES AND UNFAIR LABOUR PRACTICES

93. Powers of labour relations officers

(1) A labour relations officer, acting on his own initiative to redress any dispute or unfair labour practice or upon reference to him by any person of a dispute or unfair labour practice --

(a) may attempt to redress or rectify the dispute or unfair labour practice through conciliation, mediation or, if agreed by the parties, reference to arbitration; or

(b) after giving both parties an opportunity to submit representations orally or in writing, may make such determination in regard to the dispute or unfair labour practice as may be just in the circumstances; or

(c) where he considers it is necessary to do so, may refer the matter to an appropriate workers committee, works council, trade union, employers organization or employment council; or

(d) in the case of a dispute between one or more trade unions, workers committees, employers or employers organizations, may refer the dispute to compulsory arbitration in terms of section ninety-eight: Provided that, where --

(i) the Minister requires the labour relations officer to do so, such officer shall; or

(ii) the parties to the dispute request it and are agreed as to the issues in the dispute, the labour relations officer may;

determine the dispute or unfair labour practice or refer it to compulsory arbitration, as the case may be.

(2) A labour relations officer shall make an adequate written record of all proceedings commenced or completed in terms of subsection (1), incorporating all relevant documentary evidence and statements relating to the dispute or unfair labour practice.

(3) In pursuance of his functions in terms of this section a labour relations officer may, subject to the Justices of the Peace and Commissioners of Oaths Act, exercise the powers of a commissioner of oaths for the purpose of attesting affidavits from parties or witnesses to a dispute or unfair labour practice, and any person who makes a false statement in any affidavit sworn before such officer shall be guilty of an offence.

(4) A labour relations officer shall, in accordance with subsection (1), dispose of every dispute or unfair labour practice as soon as is practicable and, in any case, not later than twelve calendar months from the date when he is first seized of the dispute or unfair labour practice.

(5) Any party aggrieved by a determination of a labour relations officer made in terms of this section may, in the time and manner prescribed, apply for the dispute or unfair labour practice concerned to be referred to a senior labour relations officer.

94. Prescription of disputes

(1) Subject to subsection (2), after the 1st January, 1993, no labour relations officer shall entertain any dispute or unfair labour practice which --

(a) arose before 1st January, 1993, unless it is referred to a labour relations officer within one hundred and eighty days from 1st January, 1993, and any debts arising therefrom have not been prescribed in terms of the Prescription Act;

(b) arises after 1st January, 1993, unless it is referred to a labour relations officer within one hundred and eighty days from the date when such dispute or unfair labour practice first arose.

(2) Subsection (1) shall not apply to an unfair labour practice which is continuing at the time it is referred to or comes to the attention of a labour relations officer.

(3) For the purpose of paragraph (b) of subsection (1), a dispute or unfair labour practice shall be deemed to have first arisen on the date when --

(a) the acts or omissions forming the subject of the dispute or unfair labour practice first occurred; or

(b) the party wishing to refer the dispute or unfair labour practice to the labour relations officer first became aware of the acts or omissions referred to in paragraph (a), if such party cannot reasonably be expected to have known of such acts or omissions at the date when they first occurred.

95. Powers of senior labour relations officers

(1) Upon reference to a senior labour relations officer of a dispute or unfair labour practice in terms of subsection (5) of section ninety-three, the senior labour relations officer, having considered the record prepared by the labour relations officer in terms of subsection (2) of that section, may --

(a) confirm, vary, set aside or substitute the determination of the labour relations officer concerned; or

(b) remit the dispute or unfair labour practice for further investigation and additionally, or alternatively, the making of a further determination by the same or a different labour relations officer.

(2) Pending the determination of a dispute or unfair labour practice referred to him a senior labour relations officer may serve on any party concerned an interim determination --

(a) for the immediate cessation or rectification of any alleged unfair labour practice; or

(b) where the dispute involves the suspension or dismissal of an employee, for the reinstatement of the employee or payment to the employee of a portion of his remuneration, not exceeding half the amount he would have earned during the period in question had he not been suspended or dismissed.

(3) Unless otherwise modified by the senior labour relations officer concerned, an interim determination issued in terms of subsection (2) shall have effect for a period of six months from the date when it is issued or until the final determination of the matter, whichever is the earlier, and any person who fails to comply with such an interim determination shall be guilty of an offence.

96. Determinations by labour relations officers and senior labour relations officers

(1) Without derogation from the generality of sections ninety-three and ninety-five, a determination made in terms of those sections may provide for --

(a) back pay from the time when the dispute or unfair labour practice arose;

(b) in the case of an unfair labour practice involving a failure or delay to pay or grant anything due to an employee, the payment by the employer concerned to the employee or someone acting on his behalf of such amount, whether as a lump sum or by way of instalments, as will, in the opinion of the labour relations officer or senior labour relations officer concerned, adequately compensate the employee for any loss or prejudice suffered as a result of the unfair labour practice;

(c) reinstatement or employment in a job: Provided that any such determination shall specify an amount of damages to be awarded to the employee concerned as an alternative to his reinstatement or employment;

(d) insertion into a seniority list at an appropriate point;

(e) promotion or, if no promotion post exists, pay at a higher rate pending promotion;

(f) payment of legal fees and costs;

(g) cessation of the unfair labour practice;

as may be appropriate.

(2) Any party to whom a determination made in terms of Section ninety-three or ninety-five relates may submit for registration copies thereof, duly certified by the labour relations officer or senior labour relations officer, as the case may be, to the clerk of the magistrates court having jurisdiction in the area where the dispute or unfair labour practice arose.

(3) Where a determination is registered in terms of subsection (2) it shall, for purposes of enforcement, have the effect of a civil judgment of the magistrates court.

(4) If any determination which is registered in terms of subsection (2) is varied or set aside by the Tribunal on appeal, the clerk of the court concerned shall make the appropriate adjustment in his register.

97. Appeal to Tribunal

(1) Any person who is aggrieved by --

(a) the confirmation, variation, substitution or setting aside of a determination by a senior labour relations officer, or

(b) the conduct of the investigation of a dispute or unfair labour practice by a labour relations officer or senior labour relations officer;

may, within such time and in such manner as may be prescribed, appeal against such determination or conduct to the Tribunal.

(2) An appeal in terms of subsection (1) may --

(a) address the merits of the determination or decision appealed against; or

(b) seek a review of the determination or decision on any ground on which the High Court may review it; or

(c) address the merits of the determination appealed against and seek its review on a ground referred to in paragraph (b).

(3) An appeal in terms of subsection (1) shall have the effect of suspending the determination or decision appealed against.

(4) Upon receiving notice of an appeal, the Tribunal may --

(a) proceed with the appeal by way of a hearing; or

(b) decide the appeal on the record; or

(c) remit the matter to the senior labour relations officer concerned for further investigation, and, upon the conclusion of such investigation, proceed with the appeal by way of a hearing or decide the appeal on the record.

(5) Pending the determination of an appeal the Tribunal may make such interim determination in the matter as it thinks fit.

98. Reference to compulsory arbitration

(1) At a hearing convened for the purposes of paragraph (e) of subsection

(2) of section ninety-three, if the labour relations officer, after giving the parties a reasonable opportunity of making representations to him, and after firing into account the consequences likely to flow from collective job action in the undertaking or industry concerned if the dispute is not referred forthwith to compulsory arbitration and such other matters as may be prescribed, considers that compulsory arbitration is appropriate to resolve the dispute, he shall order the dispute to be referred to compulsory arbitration.

(2) In ordering a dispute to be referred to compulsory arbitration in terms of subsection (1), the labour relations officer shall state the issues which, in his opinion, must be arbitrated upon.

(3) Where a dispute concerns the interpretation, or application of a collective bargaining agreement which appropriately makes provision for arbitration, the labour relations officer shall refer such dispute to arbitration as provided for in such collective bargaining agreement.

99. Effect of reference to compulsory arbitration

(1) Where a labour relations officer has referred a dispute to compulsory arbitration, no employee, workers committee, trade union, employer or employers organization shall engage in collective job action in respect of the dispute.

100. Procedure relating to compulsory arbitration

(1) When a labour relations officer orders a dispute to be referred to compulsory arbitration in terms of subsection (1) of section ninety-eight, be shall forthwith communicate such order to the Minister.

(2) Within fourteen days of receiving the order referred to in subsection

(1), the Minister shall refer the dispute to the Tribunal for determination:

Provided that if the parties so request, the Minister may appoint an independent mediator to mediate between the parties to the dispute for the purpose of resolving it.

(3) The Tribunal or the independent mediator, as the case may be, shall communicate forthwith any decision or determination made in the dispute to the Minister who shall publish such decision or determination in the Gazette within fourteen days of receiving such decision or determination.

101. Employment codes of conduct

(1) An employment council or works council may apply in the manner prescribed to the Registrar to register an employment code of conduct that shall be binding in respect of a particular industry, undertaking or workplace:

Provided that --

(i) a works council may apply for the registration of a code notwithstanding that an employment council has applied or proposes to apply for the registration of a code governing employers and employees represented by the works council;

(ii) where more than one code is registered pursuant to proviso (i), the code registered on application by the works council shall prevail and be binding in respect of the particular workplace, undertaking or industry for which it is registered.

(2) On application being made in terms of subsection (1), the Registrar shall, if he is satisfied that the code concerned provides for the matters referred to in subsection (3), register the code in the manner prescribed.

(3) A code shall provide for --

(a) the disciplinary rules to be observed in the undertaking, industry or workplace concerned, including the precise definition of those acts or omissions that constitute misconduct;

(b) the procedures to be followed in the case of any breach of the code;

(c) the penalties for any breach of the code, which may include oral or written warnings, fines, reductions in pay for a specified period, suspension with or without pay or on reduced pay, demotion and dismissal from employment;

(d) the person, committee or authority that shall be responsible for implementing and enforcing the rules, procedures and penalties of the code;

(e) the notification to any person who is alleged to have breached the code that proceedings are to be commenced against him in respect of the alleged breach;

(f) the right of a person referred to in paragraph (e) to be heard by the appropriate person, committee or authority referred to in paragraph (d) before any decision in his case is made;

(g) a written record or summary to be made of any proceedings or decisions taken in terms of the code, which record or summary shall be made at the time such proceedings and decisions are taken.

(4) An applicant referred to in subsection (2) may, at any time after the registration of a code, apply in the manner prescribed to the Registrar to register any amendment to the code, and subsection (3) shall apply, mutatis mutandis, in relation to that amendment.

(5) Notwithstanding this Part, but subject to subsection (6), no labour relations officer or senior labour relations officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under a code, nor shall he intervene in any such proceedings.

(6) If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer such matter to a labour relations officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.

(7) Any person aggrieved by --

(a) a determination made in his case under a code; or

(b) the conduct of any proceedings in terms of a code;

may, within such time and in such manner as may be prescribed, appeal against such determination or conduct to the Tribunal.

(8) On an appeal in terms of subsection (7) the Tribunal may --

(a) confirm the determination or proceedings appealed against; or

(b) remit the matter for determination by the person, committee or authority referred to in paragraph (d) of subsection (3); or

(9) The Minister may, after consultation with representatives of trade unions and employers organizations, by statutory instrument publish a model employment code of conduct.

(10) An employment council or works council may, by making application in terms of subsection (1), adopt the model code referred to in subsection

(9), subject to such modifications as may be appropriate to the industry, undertaking or workplace concerned.

PART XV: GENERAL

* * *

124. Protection against multiple proceedings

(1) Where any proceedings in respect of any matter have been instituted, completed or determined in terms of this Act, no person who is aware thereof shall institute or cause to be instituted, or shall continue any other proceedings, in respect of the same or any related matter, without first advising the authority, court or tribunal which is responsible for or concerned with the second-mentioned proceedings of the fact of the earlier proceedings.

125. Records to be kept by employers, principals and contractors

(1) Every employer upon whom any agreement, determination or regulation is binding under this Act in relation to remuneration to be paid, time to be worked or such other particulars as may be prescribed shall at all times keep, in respect of all persons employed by him, records of the remuneration paid, of the time worked and of those other particulars.

(2) The form and manner in which the records referred to in subsection (1) shall be kept as prescribed:

Provided that the Registrar may in writing authorize the keeping of such records in some other form if the records so kept will, in his opinion, enable a labour relations officer or designated agent to ascertain therefrom the required particulars.

(3) Whenever any agreement, determination or regulation regulates the rates at which or the principles upon which payment shall be made by a principal or contractor to any person to whom any work is given out on contract by that principal or contractor, every such principal or contractor shall at all times keep records of payments made by him to any person to whom he has so given out work on contract and of such other particulars as may be prescribed, and every such person to whom work has so been given out on contract shall at all times keep records of payments received by him from any such principal or contractor in respect of such work and such other particulars as may be prescribed.

(4) Every person who is or has been an employer or principal or contractor, as the case may be, shall retain the records referred to in subsections (1) and (3) for a period of three years and shall produce these records on demand made at any time during that period by --

(a) a labour relations officer; or

(b) a designated agent acting within the scope of his authority, in terms of subsection (3) of section sixty-three.

(5) If an employer fails to keep or retain the records referred to in this section or falsifies any such record, it shall be presumed for the purposes of this Act that every employee employed by him during the relevant period was engaged throughout that period for not less than the ordinary hours of work applicable to that employee in terms of any agreement, determination or regulation under this Act.

(6) Where it is proved that any statement or entry contained in any record is false, the person required in terms of this section to keep that record shall be presumed, until the contrary is proved, wilfully to have falsified that record.

(7) Any person who fails to comply with any of the provisions of this section applicable to him or who wilfully falsifies any record referred to in this section shall be guilty of an offence.

126. Investigative powers of labour relations officers

(1) A labour relations officer --

(a) may without previous notice enter upon any premises in which any person is being employed; and

(b) in respect of matters relating to wages, hours or conditions of work, may question, either apart from or in the presence of others, any person who is or has been upon or in any premises in which any person is being employed; and

(c) may require from any person who is or has been upon or in any premises in which any person is being employed the production then and there, or at a time and place fixed by the labour relations officer, of all relevant books and documents which are or have been upon or in the premises or in the possession or custody or under the control of any employer by whom the premises are occupied or used, or of any employee of that employer; and

(d) may at any time and at any place require from any person who has the possession or custody or control of any relevant book or document relating to the business of any person who is or was an employer, the production then and there, or at a time and place fixed by the labour relations officer, of that book or document; and

(e) may examine and make extracts from and copies of all books and documents produced to or examined by him, and may require an explanation of any entries in any such books or documents; and

(f) may seize any such books or documents as he believes on reasonable grounds may afford evidence of any offence under this Act.

(2) Any employer in connection with whose business any premises are occupied or used, and every person employed by him, shall at all times furnish such facilities as are required by a labour relations officer for the purpose of exercising any of the powers conferred by subsection (1).

(3) Where any work is given out on contract to any person by a principal or contractor who is himself an employer in or is engaged in the undertaking, industry, trade or occupation concerned, a labour relations officer may exercise in relation to that principal or contractor any or all of the powers conferred by subsection (1).

(4) Any labour relations officer exercising a power or performing a duty conferred or imposed upon him by this section shall on demand produce the certificate furnished to him in terms of subsection (3) of section one hundred and twenty-one.

(5) Any person who --

(a) refuses or fails to answer to the best of his ability or knowledge any question which a labour relations officer in the exercise of his functions puts to him; or

(b) refuses or fails to comply to the best of his ability or knowledge with any request made by a labour relations officer in the exercise of his functions; or

shall be guilty of an offence.

127 Regulations

(1) The Minister may make regulations prescribing anything which, in terms of this Act, is to be prescribed or which in his opinion, is necessary or convenient to be prescribed, for carrying out or giving effect to this Act.

(2) Regulations made in terms of subsection (1) may provide for --

(a) the form of applications, notices or orders in terms of this Act;

(b) the procedures to be followed in making applications or appeals and the procedures to be followed by any official, board, tribunal or authority upon which functions are conferred in terms of this Act;

(c) the examination and inspection of the books, records and documents of workers committees, trade unions and employers organizations;

(d) the requirement by workers committees, trade unions and employers organizations to submit returns concerning their affairs to the Minister or such officials as may be specified;

(e) the duties and functions of officers in terms of this Act.

(3) Regulations made in terms of subsection (1) may provide penalties for any contravention thereof:

Provided that no such penalty shall exceed a fine of one thousand dollars or imprisonment for a period of six months or both such fine and such imprisonment.

128 General offences and penalties

(1) Any person who --

(a) contravenes any provision of this Act or any determination, direction or order made in terms of this Act for the contravention of which no penalty is expressly provided; or

(b) falsely holds himself out to be --

(i) a labour relations officer; or

(ii) a designated agent of an employment council;or

(iii) an official of a trade union or employers organization; or

(c) being an officer, agent or official referred to in paragraph (b), falsely represents that he is authorized by the Minister, an employment council or a trade union or employers organization to collect any moneys when he is not so authorized;

shall be guilty of an offence.

(2) Any person who is guilty of an offence in terms of subsection (1) shall be liable --

(a) if the offence involves the collection by him of moneys in the circumstances specified in paragraph (b) or (c) of that subsection, to a fine of
--

(i) five thousand dollars; or

(ii) an amount equivalent to twice the amount of the moneys so collected; whichever is the greater; or

(b) in any other case, to a fine of five thousand dollars;

or imprisonment for a period of two years or both such fine and such imprisonment.