|
IN exercise of the powers
conferred on the Commission under
section 152 of the Labour Act,
2003 (Act 651) these Regulations
are made this 1st day of February,
2006.
Negotiation procedures
Negotiation in good faith.
1. Parties to an industrial
dispute shall negotiate in good
faith in the first instance to
resolve the dispute in accordance
with the dispute settlement
procedures established in their
respective Collective Agreements
or Contracts of Employment.
Time for concluding negotiations
2. The negotiation shall be
concluded within seven working
days after the occurrence of the
dispute.
Records of negotiation process.
3. (1) The parties shall keep
written records of the negotiation
process and the outcome signed by
both parties.
(2) Where the parties cannot agree
to sign a consensus record
together, each party may present
its own record duly signed.
Failure to resolve dispute by
negotiation.
4. If the dispute remains
unresolved after seven working
days, either party shall refer it
to the Commission for the
appointment of a mediator.
Failure to exhaust procedures in
Collective Agreement
5. Where the Commission is
satisfied that the parties have
not exhausted the procedures
established in the Collective
Agreement or have not agreed to
waive those procedures, the
Commission shall order the parties
to comply with those procedures
within the time determined by the
Commission.
Mediation procedures
Complaint
to be in writing
.
6. The complainant shall submit a
written complaint to the
Commission or complete Form '1\
(Complainant Form) specified in
the Schedule to these Regulations
and' submit it to the Commission.
Time within which to respond to
complaint
7. (1) The Commission shall within
three working days serve the other
party with a copy of the complaint
and request the other party to the
dispute to respond to the
complaint in writing within
fourteen working days after the
receipt ofthe Commission's
request.
(2) Where a party to a dispute
fails to respond to the request of
the Commission within the
stipulated period of fourteen
working days, the Commission shall
send a final notice to the party
concerned to respond within a
further seven working days after
which the Commission shall proceed
to determine the case.
Choice of mediator
8. After receipt of the response
in regulation 7, the Commission
shall provide both parties with
the list of mediators for the
parties to make a selection of a
mediator or mediators.
Appointment of mediator
9. The Commission shall appoint
the mediator or mediators jointly
chosen by the; parties to mediate
in the dispute.
Failure to agree on choice of
mediator
10. Where the parties to a dispute
fail to agree on a choice of
mediator the Commission shall,
within two working days, appoint a
mediator or mediators to mediate
il1 the dispute.
Time 'within which to conclude
mediation
11. The mediation shall be
concluded within fourteen days
after the date of appointment of
the mediator.
Dispute settled through mediation
12. (1) Where at the end of the
mediation there is a settlement of
the dispute, the terms of the
settlement shall be recorded and
signed by the mediator and the
parties to the dispute.
(2) A copy of the signed terms of
settlement shall be lodged with
the Commission.
Binding settlement
13. The settlement referred to in
regulation 12 shall be binding on
the parties.
Duty to co-operate in mediation
efforts
14. The parties to the mediation
process shall co-operate in the
mediation efforts.
Failure to settle through
mediation
15. Where there is no settlement
at the end Of the mediation
process, the mediator shall
immediately declare the dispute as
unresolved and refer the dispute
to the Commission within three
working days for voluntary
arbitration.
Conflict of interest
16. (1) A mediator shall disc10se
in writing any interest of vi hat
ever nature in a dispute referred
for mediation.
(2) Upon consideration of the
interest by the Commission, the
mediator may be changed unless the
parties to the dispute consent in
writing to retain the mediator.
Voluntary arbitration
Reference to voluntary arbitration
17. \A/here a dispute is referred
to the Commission under regulation
15, the Commission shall, with the
consent of the parties, refer the
dispute to an arbitrator or an
arbitration panel for voluntary
arbitration.
Failure to agree on choice of
arbitrator
18. W11ere the parties to a
voluntary arbitration fail to
agree on the appointment of an
arbitrator or an arbitration
panel, the Commission shall,
within three working days, appoint
an arbitrator or arbitration
panel.
Disclosure of interest.
19. ~ 1) An arbitrator shall
disclose in writing any interest
of whatever nature the arbitrator
may have in a dispute referred for
voluntary arbitration.
(2) Upon consideration of the
interest by the Commission, the
arbitrator may be changed unless
the parties to the dispute consent
in writing to waive this option.
Time within which to submit
statement of issues or questions
in dispute
20. Within three working days
after the appointment of an
arbitrator or arbitration panel
the parties to an industrial
dispute shall submit to the
arbitrator in writing « statement
on the issues or questions in
dispute signed by one or more of
the parties or their
representatives.
Failure or refusal to sign a
statement of issues or questions
in a dispute
21. (l) 'v\'here a party to a
dispute fails or refuses to sign a
statement as required in
regulation 20, the statement may
be submitted without that party's
signature.
(2) A statement pursuant to
sub-regulation (i) shall state
that the other party has failed or
refused to sign the statement and
the Commission shall authorise the
arbitrator to proceed with the
arbitration despite the fact that
only one party, signed the
statement of the issue.
Failure to appear before an
arbitrator
22. If a party fails to appear
before the arbitrator or
arbitration panel after the "
expiration of seven working days
after being notified, the
arbitrator or arbitration panel
shall proceed to hear and
determine the dispute.
Time within which to conclude
voluntary arbitration
23. The voluntary arbitration
process shall be concluded within
fourteen working days after the
date of appointment of the
arbitrator or arbitration panel or
within the extra time determined
by the Commission.
Voluntary arbitration award
binding
24. The decision of the arbitrator
or a majority of the arbitrators
shall be binding on the parties.
Arbitration award to be
communicated
25. The arbitrator or arbitration
panel shall within seven working
days of the last sitting make an
award and communicates the award
to the parties and the Commission
within seventy-two hours.
Compulsory arbitration
Compulsory arbitration by the
Commission
26. If a dispute remains
unresolved within seven working
days after the commencement of a
strike or lock out, the dispute
shall be settled by compulsory
arbitration by the Commission.
Content of notice to be served by
the Commission
27. (1) Where a dispute is
referred to the Commission under
regulation 26, the Commission
shall serve a notice on the
parties
(a)
stating what in its opinion the
unresolved issues are between the
parties, and
(b)
asking the parties whether they
agree to those issues.
(2) The parties shall respond
within three working days.
Composition of Compulsory
Arbitration Panel
28. A compulsory arbitration shall
comprise three members of the
Commission, one member each
representing Government, Organized
Labour and Employers Organisation.
Time within which to conclude
compulsory arbitration
29. A compulsory arbitration
process shall be concluded within
fourteen working days Bller
service of the notice in
regulation 27.
Compulsory arbitration award
binding
30. The award of the majority of
the arbitrators in a compulsory
arbitration shall be binding on
the parties.
Publication of compulsory
arbitration award in Gazette
31. A compulsory arbitration award
shall immediately on completion be
published in the Gazette
and other State media by the
Commission and copies shall be
given to the parties to the
dispute.
Appeals against compulsory
arbitration award
32. Appeals against a compulsory
arbitration award shall lie to the
Court of Appeal on questions of
law only, within seven working
days after the publicatiol1 of the
award under regulation 31.
Summary settlement of dispute by
the Commission
33. (1) After the receipt of a
complaint in accordance with
regulation 6 and a response to the
complaint in accordance with
regulation 7, the Commission may,
after giving the parties to the
dispute the right to be heard,
settle the dispute summarily
without recourse to mediation or
arbitration.
(2) Where a party to a dispute
fails to respond to a complaint in
accordance with regulation 7, the
Commission may determine the
complaint without recourse to that
party and the decision of the
Commission shall be binding on the
parties to the dispute.
(3) The Commission may re-open a
dispute which has been determined
under sub-regulation (2) if a
party to the dispute on
application within fourteen
working days after the
determination of the case provides
reasonable explanation for the
failure to respond to the
complaint.
Procedures for resolving disputes
from essential services
Dispute resolution in Essential
Services
34. Parties to an industrial
dispute in essential services
shall endeavour to settle the
dispute within three days after
the occurrence of the dispute by
negotiation.
Referral to the Commission after
failure to resolve dispute
35. If the dispute remains
unresolved after the expiration of
the three days referred to in
regulation 34, the parties shall
within the next working day refer
the dispute to the Commission for
settlement by compulsory
arbitration.
Compulsory arbitration by the
Commission
36. The Commission shall, not
later than three working days
after the dispute has been
referred to it, constitute a
compulsory arbitration panel to
settle the dispute by compulsory
arbitration within fourteen
working days.
Strikes and lockout procedures
Notice of intention to strike or
lockout
37. Where
(a)
the parties fail to agree to refer
a dispute for voluntary
arbitration, or (b) a
dispute remains unresolved at the
end of the arbitration
proceedings, either party
intending to take strike action or
prepare for lockout, shall give
written notice of the intended
action to the other party and the
Commission shall, within seven
working days after the failure of
the parties to agree to refer the
dispute to another arbitration,
terminate the arbitration
proceedings.
Time within which strike or
lockout action can be undertaken
38. Strike action or lockout may
be undertaken after the expiration
of seven working days from the
date of the notice referred to in
regulation 37 and not at any time
before the expiration of that
period.
Effective date of notice of strike
or lockout
39. The seven working days
referred to in regulation 38 shall
begin to run from the date of
receipt of the notice by the
Commission.
Prohibition of strike or lockout
in respect of essential services
40. An employer carrying on, or a
worker engaged in an essential
service shall not resort to a
lockout or strike in connection
with or in furtherance of an
industrial dispute in which
workers in the essential service
are involved.
Cooling-off period
41. A party to an industrial
dispute shall not resort to a
strike or lockout during the
period when negotiation, mediation
or arbitration proceedings are in
progress.
Procedures for maintaining a
database of mediators and
arbitrators and fees
List of mediators and arbitrators
42. The Commission shall maintain
a list of industrial relations
mediators or arbitrators who meet
the criteria of the Commission.
Application to be listed as
mediator or arbitrator
43. A person who seeks to be
listed as a mediator or arbitrator
shall complete and submit an
application form which may be
obtained from the Commission.
Mediators and arbitrators not
employees of Commission
44. A person appointed as mediator
or arbitrator of the Commission
does not become an employee of the
Commission.
Disqualified mediator or
arbitrator
45.
A
person appointed as a mediator or
arbitrator is not qualified to
serve in that capacity if the
person has a financial or other
interest in the undertaking or
employers' or workers'
organisation involved in the
dispute, unless the parties to the
dispute agree to the appointment
in writing despite the disclosure
of the interest.
Removal from the list
of mediators and arbitrators
46.
A
person listed as a mediator or
arbitrator may be removed from the
list by the Commission on the
grounds that the person
(a)
no longer satisfies the criteria
for admission,
(b)
has been repeatedly or flagrantly
delinquent in submitting reports
to the Commission,
(c)
has refused to make reasonable and
periodic reports in a timely
manner to the Commission
concerning activities relating to
mediation or arbitration,
(d)
has been the subject of complaints
by parties who use the services of
the Commission after appropriate
enquiry has established a just
cause for the cancellation, or
(e)
has died.
Notice for removal
of mediators and arbitrators
47.
A
mediator or arbitrator listed on
the database may only be removed
after thirty days notice.
Voluntary withdrawal from list
of mediators or arbitrators.
48.
A
person listed as a mediator or an
arbitrator by the Commission may
withdraw from the list at any
time by giving the Commission
thirty days notice ~ writing.
Mediation and voluntary
arbitration fees
49
.
Fees shall be in conformity with
Government Consultancy rates
obtained from the Ministry of
Finance and Economic Planning.
SCHEDULE
.
(Regulatioll
6)
NATIONAL LABOUR COMMISSION
COMPLAINT
FORM A
Complainant:
.....................................
.
Address:
.............................................
.
Contact Nr
..........................................
.
Respondent:
......................... .
Address:
............................... .
Contact Nr .
COMPLAINT
Relief Sought.
...............................................................................................
.
Signed:
.........................................
.
COMPLAINANT
JOSEPH A. ARYITEY Chairperson,
National Labour Commission
Date of Gazette
notification: 17th March, 2006.
Entry into force: 22nd June, 2006.
|
.gif)