Regulation No. R. 1043 of 1999

Government Gazette

Vol. 411, No. 20425, 1 September 1999

Regulation Gazette, No. 6620

No. R. 1043

GOVERNMENT NOTICE

SOUTH AFRICAN NATIONAL DEFENCE FORCE

DEFENCE ACT, 1957

AMENDMENT TO THE GENERAL REGULATIONS FOR THE SOUTH AFRICAN NATIONAL DEFENCE FORCE AND RESERVE

The Minister of Defence has, under section 87 (1)(rB), read with section 126C of the Defence Act, 1957 (Act No.44 of 1957), made the regulations in the Schedule.

SCHEDULE

1. In this Schedule "the Regulations" means Chapter XX of the General Regulations for the South African National Defence Force and the Reserve.

2. The Regulations are hereby amended by the inclusion of Chapter XX.

CHAPTER XX

LABOUR RIGHTS

Definitions

1. In this Chapter, unless the context otherwise indicates -

"Act" means the Defence Act, 1957 (Act No. 44 of 1957);

"agreement" means a binding written agreement concluded between the parties to the Council in respect of matters of mutual interest, and "collective agreement" shall have the same meaning;

"Board" means the Military Arbitration Board established by regulation 72;

"collective bargaining" means the process whereby the employer and military trade unions engage in negotiations on matters of mutual interest;

"Constitution" means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);

"Council" means the Military Bargaining Council established by regulation 62;

"Defence Force" means the South African National Defence Force;

"employer" means the Department of Defence or any authorised person acting as its representative;

"former constituent force" means any of the former South African Defence Force, Bophuthatswana Defence Force, Transkei Defence Force, Ciskei Defence Force, Venda Defence Force, Umkhonto we Sizwe, Azanian Peoples Liberation Army or a Self Protection Unit;

"grievance" means a complaint by a member or members of the Defence Force affecting the employment relationship of the member or members concerned, or where there is an alleged violation of his or her or their rights, including any unfair labour practice;

"military trade union" means a trade union established in terms of these regulations;

"office-bearer" means a member of the military trade union who is elected in terms of the constitution of a military trade union to hold office in that military trade union and who is not an official;

"official" in relation to a military trade union means a person employed as a secretary, assistant secretary or organiser of a military trade union, or in any other prescribed capacity in a full time post;

"registered" means registered in terms of these Regulations;

"Registrar" means the Registrar of Military Trade Unions appointed by the Minister in terms of regulation 41;

"remuneration" means any payment in money or in kind, or both money and in kind, made or owing to a member for that person serving in the Defence Force, and remunerate has a similar meaning;

"secondary strike" means a strike, or conduct in contemplation or furtherance of a strike by other employees against their employer, that is in support of any other strike or in solidarity with a strike undertaken by employees other than members of the Defence Force against any employer;

"strike" means the partial or complete concerted refusal to serve, or the retardation or obstruction of service, or failure to serve, by members of the Defence Force, for the purpose of protest, petition or remedying a grievance or resolving a dispute in respect of any matter of mutual interest between the employer and member and every reference to "serve" in this definition includes overtime service or duty, whether it is voluntary or compulsory;

"unfair labour practice" means any unfair act or omission that arises between a member and the employer, involving -

unfair discrimination, either directly or indirectly, against a member on any arbitrary ground, including, but not limited to membership of a former constituent force, race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility;
the unfair conduct by the employer relating to the appointment to a post, promotion, demotion or training of a member or relating to the provision of benefits to a member;
the unfair suspension or dismissal of a member or other disciplinary action short of dismissal; or
the failure or refusal by the employer to reinstate or re-employ a former member in terms of any agreement.

PART 1

OBJECTIVES AND APPLICATION

Application

2. The Defence Force, being an all volunteer force that is structured and managed as a disciplined military force, requires that all citizens who voluntarily join the Defence Force accept the rights and limitations with respect to their labour rights as specified in these Regulations.

Objectives

3. The objectives of these Regulations are to provide for -

fair labour practices;
the establishment of military trade unions;
collective bargaining on certain issues of mutual interest;
to ensure that trade union activities do not disrupt military operations, military exercises and training and do not undermine the Constitutional imperative of maintaining a disciplined military force; and
generally to provide for an environment conducive to sound and healthy service relations.

PART 2

RIGHTS AND LIMITATIONS

Individual Rights And Limitations

Rights of members

4. (1) Subject to the provisions of these Regulations, a member shall be entitled to exercise his or her labour rights as contemplated in section 23 of the Constitution, on an individual basis or collectively through a military trade union.

(2) No member of the Permanent Force or of any Auxiliary Service may join or belong to any trade union other than one established in terms of these Regulations.

(3) These regulations apply to members of the Citizen Force and Commandos only in respect of military service rendered, or required to render by them, in their capacity as members of the Citizen Force or Commandos, as the case may be.

Lawful commands

5. No member may refuse to obey a lawful command on the grounds that some matter is, or may become, the subject of collective bargaining, joint consultation or grievance proceedings.

Strikes

6. No member may participate in a strike, secondary strike or incite other members to strike or to support or to participate in a secondary strike.

Prohibited activities

7. Subject to regulation 8, no member may participate in peaceful and unarmed assembly, demonstration, picket and petition in support of a strike or secondary strike if this relates to any Defence matter.

Permissible activities

8. Members have the right to peaceful and unarmed assembly, demonstration, picket and petition, and to present petitions in their private capacity: Provided that such right shall not be exercised -

while in uniform or wearing any part of a uniform or displaying any insignia linked to the Defence Force, in a manner which indicates in any other way employment in the Defence Force or the Department of Defence; or
in respect of any matter concerning either the employment relationship with the Department of Defence or any matter related to the Department of Defence.

ORGANISATIONAL RIGHTS OF MILITARY TRADE UNIONS

Collective rights

9. Only a registered military trade union has collective bargaining and organisational rights in respect of members.

Right to recruit

10. A military trade union that wishes to register has the right to recruit members with the aim of meeting the threshold requirements for registration provided that -

such a military trade union gives notice to the Minister to that effect; and
the Minister causes the existence of the said union to be communicated within the Defence Force within 14 days of receipt of such notification.

Right to organise own affairs

11. Subject to the provisions al these Regulations, a military trade union has the right -

to determine its own constitution and rules;
to hold elections for its office-bearers and representatives;
to appoint its officials; and
to plan and organise its administration and lawful activities, including the right to hold meetings with its members as agreed upon by the parties to the Council.

Exclusivity of military trade unions

12. (1) Military trade unions may be formed and joined only by members of the Defence Force.

(2) The establishment or membership of a military trade union shall not be based on any political affiliation, former constituent force, race, gender, sexual orientation or religion.

Affiliation with other organisations

13. A military trade union shall not affiliate or associate with -

any labour organisation, labour association, trade union or labour federation that is not recognised and registered; and
any political party or organisation.

Employment and remuneration of staff

14. Military trade unions may employ any person who is not a member of the Defence Force for their own internal administration as employees or officials, and may determine the remuneration and conditions of service that they deem appropriate for such employees or of finials.

Prohibited remuneration

15. No official of a military trade union shall receive any remuneration or benefit from the Defence Force in relation to his or her duties on behalf of, or on instruction from, an, military trade union.

Independence of military trade unions

16. All military trade unions shall be independent of and shall not be subject to the command and control of the Defence Force, save that members who are office bearers in such military trade unions shall remain subject to Defence legislation at all times.

Membership voluntary

17. (1) Membership of a military trade union shall be voluntary.

(2) No person may -

prevent a member forcibly or hi any other manner from joining a military trade union or engaging in any activity of a military trade union; or
discriminate against a member for exercising any right conferred by these Regulations.

Membership restriction

18. A member may not belong to more than one military trade union at the same time.

Prohibited agreements

19. Military trade unions shall not have the right to negotiate a closed shop or agency shop agreement with the employer.

Prohibited funding

20. The Department of Defence shall not fund the activities of military trade unions, and shall not fund the costs incurred by any official or employee of a military trade union in the execution of their activities, save as provided for in a collective agreement.

DISCLOSURE OF INFORMATION

Duty to disclose information

21. (1) Subject to the limitations in terms of these Regulations the employer must disclose to a registered military trade union all relevant information that will allow that union to effectively perform the functions contemplated in these Regulations.

(2) The employer is not required to disclose information -

that is legally privileged;
that the employer cannot disclose without contravening a prohibition imposed on the employer by any law or order of any Court;
that relates to military operations, military exercises, operational planning (including contingency planning), military acquisition programmes or military equipment;
that if disclosed, may cause substantial harm to a member or the employer;
that is private personal information relating to a member, unless that member consents in writing to the disclosure of that information.

Classified information

22. (1) The employer shall notify a registered military trade union in writing if an! information disclosed in terms of these Regulations is classified.

(2) The employer may require a military trade union or a representative of such a registered military trade union to sign an undertaking relating to the non-disclosure al official information before making any classified information available.

MILITARY TRADE UNION REPRESENTATIVES

Election of trade unions representatives

23. (1) Military trade union members may elect from amongst themselves one union representative for every twenty-five members, but not more than ten representatives per union per any one unit or base.

(2) The constitution of a military trade union shall govern the nomination, election, terms of of rice and removal from of flee of a military trade union representative.

Adherence to military professionalism and discipline

24. Military professionalism and military discipline shall be adhered to at all times by members of military trade unions.

Rights of military trade union representatives

25. A military trade union representative has the right to -

at the request of a member, assist the member with respect to grievance and disciplinary proceedings, but not to representation;
at the request of a member, assist the member in redressing any alleged unjust administrative action or unfair labour practice through the use of the official channels for redressing such alleged unjust administrative action or unfair labour practice;
report, in writing, any alleged contravention of these Regulations or a collective agreement binding on the employer to -

the registered military trade union;

the commander or manager of the unit, base, headquarters or head office; and

failing any action by the commander or manager to remedy or solve the alleged contravention, the immediate superior of such commander or manager, provided that such commander or manager be so informed.

perform any other function agreed to in the form of a collective agreement.

Time off during official working hours

26. Subject to the operational and training schedule of the unit, base or headquarters, and the maintenance of good order and military discipline, a military trade union representative is entitled to take reasonable time off with pay during working hours, but not more than eight hours per month, to -

perform the functions of a military trade union representative; and
be trained in any subject relevant to the performance of the functions of a military trade union representative, provided that such training shall not be at the expense of the Department of Defence.

ASSISTANCE WITH RESPECT TO DISCIPLINARY AND GRIEVANCE PROCEEDINGS

Assistance to members by military trade unions

27. Military trade unions may -

assist their members with respect to grievance procedures, including the formulation of grievances; or
assist their members with respect to any disciplinary hearings and military court proceedings,

provided that such assistance shall not include representation by an official, office bearer or military trade union representative.

DEDUCTION OF SUBSCRIPTIONS AND LEVIES

Authorised deductions from wages or salaries

28. Any member who is a member of a military trade union may authorise the employer in writing to deduct subscriptions or levies payable to that military trade union from the member's wages or salary.

Deductions by employer

29. On receiving the authorisation contemplated in regulation 28 the employer shall make the authorised deduction within 30 days, and shall remit the amount deducted to the military trade union by not later than the 15th day of the month following the date when each deduction was made.

Revocation of authority

30. A member may revoke an authorisation contemplated in regulation 28 by giving the employer and the registered military trade union three months' written notice.

Continuation of deduction

31. The employer shall, upon receipt of a notice contemplated in regulation 30, continue to make the authorised deduction until the notice period has expired and shall then cease the deduction.

Information to military trade unions

32. With each monthly remittance, the employer must give the respective military trade unions -

a list of the names of members of that military trade union from whose salary the employer has made deductions that are included in the remittance;
details of the amounts deducted and the period to which the deductions relate; and
a copy of every notice or revocation in terms of these Regulations.

ACCESS TO DEPARTMENT OF DEFENCE PREMISES

Conditions for access to Defence premises

33. (1) Any office-bearer or official of a military trade union is entitled to enter a unit, base, headquarters or head office in order to recruit members, communicate with members or otherwise serve their interests, provided that the time of entry be agreed to by the Officer Commanding prior to entry.

(2) An Officer Commanding shall not unreasonably deny the access contemplated in subregulation (1).

(3) Access shall be limited to those areas of a unit, base, headquarters or head office that are designated as restricted by the Minister for military security reasons as specified in the Act.

(4) Access shall not be granted to operational vehicles, aircraft or vessels of the Defence Force.

Time of meetings

34. A military trade union is entitled to hold meetings with members outside their working or training hours on the employer's premises.

Voting on Defence premises

35. The members of a registered military trade union are entitled to vote at the employer's premises by prior arrangement with the employer in any election or ballot contemplated by the military trade unions' constitution.

COLLECTIVE BARGAINING RIGHTS OF MILITARY TRADE UNIONS

Limitations on collective bargaining rights

36. Military trade unions may engage in collective bargaining, and may negotiate on behalf of their members, only in respect of -

the pay, salaries and allowances of members, including the pay structure;
general service benefits;
general conditions of service;
labour practices; and
procedures for engaging in union activities within units and bases of the Defence Forces

LIMITATIONS ON MILITARY TRADE UNIONS

Military operations or exercises

37. (1) No member may participate in the activities of a military trade union while participating in a military operation including operation in fulfilment of an authorised international obligation as contemplated in section 201(2)(c) of the Constitution or military exercise, undergoing training as an integral part of a military operation or during military training.

(2) No military trade union may liaise or consult with its members whilst such members participate in a military operation or exercise, undergo training as an integral part of a military operation or during military training.

Emergencies

38. As from the date of a declaration of state of emergency, or when the President has employed the Defence Force in the defence of the Republic as provided for in section 201(2)(b) of the Constitution, all activities other than administrative and financial maintenance functions of trade unions shall be suspended until termination of such declaration or employment.

Prohibition on impediment of military activities

39. A military trade union shall not undertake or support any activity which may impede military operations, military exercises, training during military operations or exercises or the preparation for military operations or exercises or during military training.

Other prohibited activities

40. A military trade union shall not engage in collective bargaining with the employer with respect to military operations, military exercises, operational planning (including contingency planning), military acquisition programmes, military equipment or curriculum or geographic location of military training.

PART 3

REGISTRATION OF MILITARY TRADE UNIONS

REGISTRAR OF MILITARY TRADE UNIONS

Appointment of Registrar

41. A person designated by the Minister as the Registrar of military trade unions shall exercise the powers and perform the duties conferred on him or her by or in terms of these Regulations.

Functions of Registrar

42. The Registrar -

shall exercise all the powers and perform all the duties conferred on him or her by or in terms of these Regulations;
shall keep a register of registered military trade unions;
shall within 30 days of making an entry in or deletion from a register, give notice of that entry or deletion in the Government Gazette;
may on good cause shown, extend or condone late compliance with any of the time periods established in this Part, except the period within which a person may note an appeal against a decision of the Registrar; and
shall remove from the appropriate register the name of any military trade union that has been deregistered, wound up, liquidated or sequestrated.

Requirements for registration

43. (1) A military trade union may apply to the Registrar for registration if -

it is composed exclusively of serving members of the Defence Force;
it has adopted a constitution that meets the requirements of these Regulations;
it has an address in the Republic;
it is independent as contemplated in subregulation (2), and
it has a proven membership that meets the threshold requirement of five thousand members of the Defence Force on the date of application for registration.

(2) A military trade union shall be deemed to be independent if -

it is not under the direct or indirect control of the Department of Defence; and
it is not aligned to any political party or organisation or to any trade union or trade union federation outside the Defence Force, or does not receive any funding from such a party.

(3) A military trade union that intends to register may not have a name or a shortened form of the name which so closely resembles the name or shortened form of the name of any other local or international organisation that it is likely to mislead or cause confusion.

(4) The constitution of a military trade union shall -

state that membership of the union is restricted to members of the Defence Force and the union is independent as contemplated in regulations 13 and 16;
state that the military trade union is an association not for gain;
provide for the adoption of a code of conduct, and methods of dealing with breaches of such a code;
establish the circumstances in which a member will no longer be entitled to the benefits of membership;
provide for the termination of membership;
provide for appeals against loss of the benefits of membership or against termination of membership, prescribe a procedure for those appeals and determine the body to which those appeals may be made;
provide for membership fees and the method for determining membership fees and other payments by members;
prescribe rules for the convening and conducting of meetings of members and meetings of representatives of members, including the quorum required for, and the minutes to be kept of those meetings;
establish the manner in which decisions are to be made;
establish the of rice of secretary and define its functions;
provide for other office-bearers, officials and military trade union representatives, and define their respective functions;
prescribe a procedure for nominating or electing office-bearers;
prescribe a procedure for appointing or nominating and electing of finials;
establish the circumstances and manner in which office-bearers, officials and representatives, may be removed from office;
provide for appeals against removal from office of office-bearers, officials and representatives, prescribed a procedure for those appeals and determine the body to which those appeals may be made;
established the circumstances and manner in which a ballot must be conducted;
provide for banking and investing its money;
establish the purposes for which its money may be used;
provide for acquiring and controlling property;
determine a date for the end of its financial year;
prescribe a procedure for changing its constitution; and
prescribe a procedure by which it may resolve to wind up.

(5) The constitution of a military trade union may not include any provision that discriminates directly or indirectly against any person on the grounds of political affiliation, membership of former constituent force, religion or religious beliefs, race, gender or sexual orientation.

Procedure for registration

44. (1) A military trade union may apply for registration by submitting to the Registrar -

a completed form in the format approved by the Registrar that has been properly completed;
a copy of its constitution; and
a list of names of its paid up members in the format approved by the Registrar.

(2) The Registrar may require additional information from a military trade union in support of the application.

Approval of application

45. The Registrar shall consider the application and any further information provided by the applicant and, if he or she is satisfied that the applicant meets the requirements for registration, shall register the applicant by entering the applicant's name in the register of military trade unions.

Request for further information

46. (1) If the Registrar is not satisfied that the applicant meets the requirements for registration, the Registrar shall send the applicant a written notice of the decision and the reasons for that decision and in that notice, inform the applicant that it has 30 days from receipt of the notice to meet the specified requirements.

(2) If the applicant meets the requirements for registration within the period contemplated in subregulation (1), the Registrar shall register the applicant by entering the applicant's name in the appropriate register.

Proof of registration

47. After registering the applicant, the Registrar shall -

issue a certificate of registration in the applicant's name; and
send the certificate and a certified copy of the registered constitution to the applicant.

Effect of registration of a military trade union

48. (1) A certificate of registration is sufficient proof that a military trade union is a body corporate.

(2) Service of any document directed to a registered military trade union at the address most recently provided to the Registrar shall, for all purposes, be deemed to be proper service of that document on that military trade union.

Cancellation of registration of a military trade union

49. (1) Whenever the Registrar receives information which indicates that a military trade union does not comply with the provisions of these Regulations, the Registrar may inform the military trade union concerned that he or she intends terminating its registration.

(2) A military trade union contemplated in subregulation (1) shall within 30 days of receiving a notification to that effect, provide the Registrar with reasons why its registration should not be cancelled, failing which its registration will be cancelled.

(3) Upon receipt of the reasons contemplated in subregulation (2), the Registrar shall within 30 days make a decision with regard to the cancellation of the registration of such military trade union or allow the continued registration of such a military trade union subject to conditions imposed by the Registrar .

Amalgamation of military trade unions

50. (1) Any military trade union may resolve to amalgamate with one or more other military trade unions.

(2) The amalgamating military trade unions may apply to the Registrar for registration of the amalgamated military trade union, even if any of the amalgamating military trade unions is itself already registered, and the Registrar must treat such application as a new application in terms of these Regulations.

(3) After the Registrar has registered the amalgamated military trade unions, the Registrar must cancel the registration of each of the amalgamating military trade unions by causing the removal of their names from the appropriate register.

(4) The registration of an amalgamated military trade union takes effect from the date that the Registrar causes its name to be entered in the appropriate register.

Effects of amalgamation of military trade unions

51. When the Registrar has registered an amalgamated military trade union -

all the assets, rights, obligations and liabilities of the amalgamating military trade unions devolve upon and vest in the amalgamated military trade union; and
that military trade union succeeds the amalgamating military trade unions in respect of-

any right that the amalgamating military trade unions enjoyed;

any fund or funds established in terms of their constitution or any other law;

membership of the Council;

any written authorisation by a member for the periodic deduction of levies or subscriptions due to the amalgamating military trade unions;

any arbitration award or court order; and

any collective agreement or other agreement.

Duty to provide information to the Registrar

52. Every military trade union must provide to the Registrar -

by 31 March each year, a statement, certified by the General Secretary of the military trade union that accords with its records, showing the number of members as at 31 December of the previous year and any other related details that may be required by the Registrar;
within 30 days of receipt of its auditor's report, a certified copy of that report and of the financial statements;
within 30 days of receipt of a written request by the Registrar, an explanation of anything relating to the statement of membership, the auditor's report and the financial statements;
within 30 days of any appointment or election of its office-bearers, the names and work addresses of those office-bearers, even if their appointment or election did not result in any changes to its office-bearers; and
at least 30 days before a new address for service of documents will take effect, notice of that change of address.

Withdrawal of registration

53. The Registrar may withdraw the registration of a military trade union that does not comply with the provisions of this part and inform the military trade union of such withdrawal in writing: Provided that if a military trade union wishes to continue exercising its activities in terms of these Regulations, it may reapply for registration in the manner prescribed in these Regulations.

Other information

54. Any military trade union that has been registered in terms of these Regulations shall submit to the Registrar

within 90 days of its registration, and after that by 31 March each year, the names and addresses of its members and the number of persons each military trade union represents; and
within 90 days of its registration, and after that within 30 days of any appointment or election of its national office-bearers, the names and work addresses of those office-bearers, even if their appointment or election did not result in any changes to its office-bearers.

ACCOUNTING RECORDS AND AUDITS

Keeping of books and financial records

55. A registered military trade union shall, in accordance with the standards of generally recognised accounting practice -

keep books and records of its income, expenditure, assets and liabilities; and
within six months after the end of each financial year, prepare financial statements, including at least -

a statement of income and expenditure for the previous financial year; and

a balance sheet showing its assets, liabilities and financial position as at the end of the previous financial year.

Annual audit

56. A registered military trade union shall arrange for an annual audit of its books records of account and financial statements by an auditor registered in terms of the Public Accountants and Auditors Act, 1991 (Act No. 80 of 1991), who shall -

conduct the audit in accordance with generally recognised auditing principles;
report to the military trade union by means of a certified report on the following:

The paid-up membership numbers at the time of the audit;

the growth or decline in membership numbers since the previous report;

the number of official meetings held by the military trade union and whether all meetings were properly minuted;

the number and names of of rice bearers at the time of the. audit;

the number of disputes resolved or unresolved since the previous audit;

the number of disputes referred for arbitration since the previous audit;

whether the military trade union complies with the requirements for registration under these Regulations at the time of the audit;

whether the military trade union complied with its constitution during the audit period, and

the cost of membership during the audit period and any changes therein; and

in that report express an opinion as to whether or not the military trade union has complied with those provisions of its constitution relating to financial matters.

Submission to members

57. A registered military trade union shall -

make the financial statements and the auditor's report available to its members for inspection; and
submit the statements contemplated in paragraph (a) and the auditor's report contemplated in regulation 56, to a meeting or meetings of its members or their representatives as provided for in its constitution.

Preservation of documents

58. A registered military trade union shall preserve its books of account, supporting vouchers, records of subscriptions or levies paid by its members, income and expenditure statements, balance sheet, and auditor's reports, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate.

Duty to keep records

59. In addition to the records required by these Regulations, a registered military trade union shall keep -

a list of its members;
the minutes of its meetings, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate; and
the ballot papers for a period of three years from the date of every ballot.

Changing of a constitution or name

60. (1) A registered military trade union may resolve to change or replace its constitution.

(2) A military trade union must submit to the Registrar a copy of the resolution contemplated in subregulation (1) and a certificate signed by its secretary stating that the resolution complies with its constitution.

(3) The Registrar shall -

register a changed or new constitution if it meets the requirements for registration; and
send the registered military trade union a copy of the resolution endorsed by the Registrar, certifying that the change or replacement has been registered.

(4) A changed or new constitution takes effect from the date of the registrar's certification.

Change of name

61. (1) A registered military trade union may resolve to change its name, whereafter the military trade union shall submit to the Registrar a copy of the resolution and the original of its current certificate of registration.

(2) If the new name of a registered military trade union meets the requirements of these Regulations the Registrar shall -

cause the new name to be entered in the appropriate register and issue a certificate of registration in the new name of the military trade union;
remove the old name from that register and cancel the earlier certificate of registration; and
send a new certificate of registration to that military trade union.

(3) The new name of a registered military trade union takes effect from the date that the Registrar causes it to be entered in the appropriate register.

PART 4

MILITARY BARGAINING COUNCIL

Establishment of Council

62. The Military Bargaining Council is hereby established.

Functions of Council duties

63. The powers and duties of the Council include -

the conclusion of collective agreements;
the enforcement of collective agreements;
the prevention and resolution of labour disputes; and
the promotion of labour relations and training in this regard.

Constitution of Council

64. The constitution of the Council shall provide for -

the appointment of representatives of the parties to Council;
the circumstances and manner in which representatives must vacate their seats and the procedure for replacing them;
rules for the convening and conducting of meetings, including the quorum required for and the minutes to be kept of, those meetings;
the vote weights of parties in Council, including the determination of how vote weights are to be allocated, provided that the employer shall have a fifty percent vote;
the manner in which representations shall be made to Council;
the manner in which decisions are to be made;
the appointment or election of the chair-person, secretary and supporting secretariat of the Council, their functions, and the circumstances and manner in which they may be removed from office:
the setting up of an executive committee to manage administrative matters addressed to Council;
the establishment and functioning of committees;
the resolution through conciliation, or failing conciliation, arbitration of any dispute arising between the parties to Council about the interpretation or application of Council's constitution;
the resolution through conciliation, and failing conciliation, referral to the Board of any dispute arising between the parties to the Council about matters of mutual interest on which an agreement can not be reached;
the procedure for exemption from collective agreements;
the institution of a levy to fund the operation of the Council, provided that such levy shall be compulsory for all members, and the amount of which shall be determined by agreement
subject to regulation 63, the delegation of its powers and duties;
the admission of additional military trade unions as parties to Council, including the recalculation of vote weights;
the admission of two or more military trade unions that are acting together to meet the threshold for admission to the Council;
a procedure for changing the Councils' constitution; and
a procedure by which the Council may resolve to wind up.

Chairperson of Council

65. (1) The parties to the Council may appoint an independent, non-voting chairperson for the Council.

(2) The remuneration of a chairperson contemplated in subregulation (1) shall be determined by collective agreement and shall be divided in the percentage of 50 percent for the employer and 50 percent for the admitted military trade unions in the Council.

Committees of Council

66. (1) The Council may delegate any of its powers and functions to a committee of the Council on any condition determined by the Council in accordance with its constitution, provided that -

committees shall consist of equal numbers of representatives of military trade unions and the employer, unless otherwise agreed to in the Council;
members of committees need not be official representatives in the Council;
committees may co-opt experts to assist and advise on the matter at hand, provided that payment to such experts shall be determined by collective agreement; and
committees shall not have the power of decision-making or entering into collective agreements.

(2) Any committee of the Council shall present its findings to the Council for a decision or collective agreement, as the case may be.

Formal setting up of first Council

67. (1) The establishment of the first Council shall take place on a date to be determined by the Minister.

(2) All military trade unions that comply with the threshold requirements for admission referred to in regulation 69 shall be recognised in Council for not more than 60 days, within which 60 days such admitted trade unions must furnish the Council with a certified list of the members of that trade union.

(3) Any failure by a military trade union to provide the Council with a list contemplated in subregulation (2), shall result in the automatic exclusion of that union from the Council until it meets the threshold and reapplies for admission in terms of these Regulations.

(4) The first Council shall adopt a Constitution for the Council within 120 days of its first sitting.

(5) The Council shall be chaired by a person appointed by the Minister until such time as the Council appoints a chairperson as contemplated in the constitution of the Council

(6) The employer shall provide a secretariat for the setting up of Council.

(7) The procedures to be followed during the setting up of the Council shall be as determined by the appointed chairperson.

Admission of parties to the council

68. (1) A registered military trade union may apply in writing to the Council for admission as a party to the Council if that union meets the threshold requirement of fifteen thousand members on the date of application.

(2) Military trade unions may act jointly with one another to gain admission to the Council on the proviso that such military trade unions acting together meet or exceed the threshold requirement.

(3) An application contemplated in subregulation (1) shall be accompanied by a certified copy of the applicant's registered constitution and certificate of registration and shall include certified details of the applicant's membership.

(4) The Council shall, within 60 days of receiving an application for admission, evaluate the application and decide whether to grant or refuse an applicant admission, anti shall thereafter advise the applicant of its decision.

(5) If the Council refuses to admit an applicant it must within 30 days of the date of refusal, advise the applicant in writing of its decision and the reasons for that decision.

(6) An applicant may request the Board to investigate the reasons and make recommendations in any case of refusal of admission.

Legal effect of collective agreements

69. (1) A collective agreement shall be implemented by the parties bound by such an agreement in terms of subregulation (2), and within the time limit provided for in the agreement.

(2) A collective agreement binds -

the parties to the agreement;
the members of every party to the agreement, insofar as the provisions are applicable to them;
members who are not members of military trade unions and military trade unions not party to the agreement: Provided that -

such members are identified in the agreement;

the agreement expressly binds the members; and

the agreement is not prejudicial in any way to such members.

(3) Subject to subregulation (2), where a collective agreement has the effect of amending a contract of employment, such contract shall be deemed to have been amended accordingly.

(4) Unless a collective agreement provides otherwise, no party may unilaterally withdraw from such agreement.

(5) The employer shall communicate the contents and implications of collective agreements in a concise and accessible manner within the Department.

Disputes about collective agreements

70. (1) Every collective agreement shall provide for a procedure to resolve any dispute about the interpretation or application of the agreement, which procedure must first require the parties to attempt to resolve the dispute through conciliation and, if the dispute remains unresolved, through referral to the Board for compulsory arbitration.

(2) If 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 Board for dispute resolution if -

the collective agreement does not provide for a procedure as required by these Regulations;
the procedure provided for in the collective agreement is not operative; or
any party to the collective agreement has frustrated the resolution of the dispute in terms of the collective agreement.

(3) A party who refers a dispute for conciliation, or to the Board for compulsory arbitration, must satisfy the Council that a copy of the referral has been served on all the other parties to the dispute.

Dispute resolution functions of Council

71. (1) In this regulation, "dispute" means any disagreement in respect of a collective agreement, or any other matter which is or could be the subject of collective bargaining, and the parties to the dispute may include -

parties to the Council;
military trade unions not party to the Council; and
members.

(2) The council shall attempt to resolve a dispute between the parties through conciliation in accordance with the constitution of the Council.

(3) A party who refers a dispute to the Council must satisfy the Council that a copy of the referral has been served on all the other parties to the dispute.

(4) The Council may enter into an agreement with an independent agency for the purposes of conducting conciliation in terms of its dispute resolution functions specified in this section.

(5) If an agency contemplated in subregulation (4) is unable to achieve a conciliation within 60 days of referral -

that agency shall issue a certificate to this extent; and
the Council shall refer the matter to the Board.

PART 5

THE MILITARY ARBITRATION BOARD

Establishment of Board

72. The Military Arbitration Board to whom matters shall be referred for arbitration as specified in these Regulations is hereby established.

Composition of Board

73. The Board shall consist of five independent persons appointed by the Minister.

Secretariat of Board

74. The employer and the military trade unions shall provide a secretariat for the Board, each bearing halt of the cost.

Dispute resolving procedure

75. (1) Any dispute referred for arbitration shall be dealt with in accordance with these Regulations and in accordance with the Arbitration Act, 1965 (Act No. 42 of 1965), where applicable.

(2) The Board may conduct the arbitration in a manner that it considers appropriate in order to resolve the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.

(3) Subject to subregulation (2), a party to a dispute may give evidence, call witnesses, question the witnesses of any other party, and address concluding arguments to the Board.

(4) The Board may at any stage prior to or during arbitration proceedings attempt to resolve the dispute through conciliation with the consent of the parties to the dispute, and if the Board deems it appropriate the Board may refer the dispute to be conciliated by an independent conciliator.

(5) Any of the parties subject to arbitration may be represented during the proceedings as they see fit, including legal practitioners, provided that each party be represented on an equal footing.

(6) Arbitration awards may be delivered other than in the presence of the parties, thereby enabling the Board to deliver awards to parties by post or other similar means.

Failure to appear

76. (1) If a party who referred a dispute to the Board fails to appear in person or to be represented at the arbitration proceedings, after having been given written notification thereof, the Board may dismiss the matter, and the Board's decision in respect of that matter shall be final and binding on all parties to the dispute.

(2) If a party, other than a party who referred the dispute to the Council, fails to appear in person or to be represented at the arbitration proceedings, the Board may -

continue with the arbitration proceedings in the absence of that party; or
adjourn the arbitration proceedings to a later date.

Arbitration orders

77. Within 15 working days of the conclusion of arbitration proceedings, the Board shall issue a signed arbitration award with reasons and the Council shall as soon thereafter as possible serve a copy of that award on each party to the dispute, which award shall be final and binding on all parties to the dispute.

Arbitration Award

78. (1) The Board shall not make an arbitration award that has financial Implications for the State as employer that tells outside the mandated position of the employer in the Council.

(2) If an award cannot be made as a result of a limitation contemplated in subregulation (1), the Board shall submit a confidential advisory report to the Minister and inform each party that such submission has been made.

(3) Any arbitration award in terms of subregulation (2) becomes binding -

30 calendar days after the date of the award if the Minister has not tabled the award in Parliament within that period; or
30 calendar days after the date of tabling the award, unless Parliament has passed a resolution that the award is not binding, which decision shall be final

(4) If Parliament is not in session on the expiry of -

the period referred to in subregulation (3)(a), that period shall run from the beginning of the next session of Parliament;
the period referred to in subregulation (3)(b), that period shall run from the beginning from the next session of Parliament.

(5) The Board shall not be obliged to disclose the contents of a report to any party to the arbitration proceedings.

(6) The Board may make any appropriate award including, but not limited to, an award

that gives effect to a collective agreement; or
that includes, or is in the form of, a declaratory order.

Costs

79. The Board may not include an order in an arbitration award for costs incurred by the parties, unless a party, or the persons who represented that party in the arbitration proceedings, acted in a frivolous, vexatious or malicious manner

(a) by proceeding with or defending the dispute in the arbitration proceedings; or
(b) in its conduct during the arbitration proceedings.

Variation of rescission of award

80. The Board may on its own initiative, or as a result of an application by an affected party, vary or rescind an award -

erroneously sought or erroneously made in the absence of any party affected by the award; or
in which there is an ambiguity, or any obvious error or omission, but only to the extent of that ambiguity, error or omission; or
granted as a result of a mistake common to the parties to the proceedings.

HIGH COURT

Application to High Court

81. Any of the parties to a dispute, may apply to the High Court to make the arbitration award an order of court.

High Court review procedure

82. (1) Any party to a dispute who alleges a defect in any arbitration proceedings in terms of these Regulations may apply to the High Court for an order setting aside the arbitration award within six weeks of the date on which the award was served on the applicant.

(2) A defect referred to in subregulation (1) above means that -

the Board, or an individual member of the Board -

has committed misconduct in relation to the duties of the Board, or an individual member, as an arbitrator;

has committed a gross irregularity in the conduct of the arbitration proceedings; or

has exceeded the Boards' powers; or

that an award has been improperly obtained.

(3) The High Court may stay the enforcement of an award pending its decision.

Award set aside

83. If the award is set aside by the High Court, the court may -

determine the dispute in the manner it considers appropriate; or
make any order it considers appropriate about the procedures to be followed to determine the dispute.

OFFENCES AND PENALTIES

84. Any person who contravenes any provision of these Regulations is guilty of an offence.