Public Health and Social Development Sectoral Bargaining Council

Frequently Asked Questions

Click on one of the sections below to view our frequently asked questions:

COLLECTIVE BARGAINING FAQ'S

  1. Do I have to belong to a Trade Union?

The choice whether or not to join a trade union it’s a right conferred to you, as set out in Sections 4 and 6 of the Labour Relations Act. You may choose to join any of the trade unions admitted to the Council.

  1. Who constitutes the Public Health and Social Development Sectoral Bargaining Council (PHSDSBC) Staff?

The PHSDSBC consists of permanent appointed staff (called the Secretariat) who is led by the General Secretary to Council. (The General Secretary to Council has the same function as a CEO in a company). The PHSDSBC staff is responsible for the administrative functions amongst others, the scheduling of meetings (for collective bargaining) or the scheduling of hearings (for dispute resolution).

  1. Who are the parties to the PHSDSBC (Council)?

The parties to the Council are the Employer (State) and the five (5) Trade Unions in the Sector Public Health and Social Development, viz, NEHAWU, DENOSA, PSA, HOSPERSA and NUPSAW. The representatives attend the meetings and negotiate the collective agreements on the conditions of service of all the employees in the Sector.

  1. How decisions are made by parties in the Council?

The parties to Council consist of 50% government representatives and 50% trade union representatives. The Employer and the majority of the unions must be in favour of any decision or agreement concluded in the PHSDSBC, before it will be valid and binding on others.

  1. Is the PHSDSBC a Sub Structure of government?

No. The PHSDSBC, like other Sector Councils designated by the Public Service Coordinating Bargaining Council (PSCBC) (i.e. Safety and Security Sectoral Bargaining Council (SSSBC), Education Labour Relations Council (ELRC), and General Public Service Sectoral Bargaining Council (GPSSBC) is a statutory independent forum and it is not a government structures at all.

  1. Does the PHSDSBC have provincial and/or regional offices?

No. The PHSDSBC do not have offices in the provinces or regions but do have permanent staff members who attends and manage the meetings taking place in provinces and are called Chambers. The Chambers are the negotiation forums where parties do engage on various issues affecting the workers in a specific province, although we have also a National Chamber for the national Departments i.e. Health and Social Development. All Chamber meetings and dispute hearings are dealt with and scheduled by the PHSDSBC Secretariat from the national office.

  1. What is a Collective Agreement?

In our context a collective agreement means a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one (1) or more registered trade unions constituting a majority i.e. 50+1 of the voting weights, on the one hand, and the Employer on the other hand.

  1. Where can I get information on Collective Agreements?

All PHSDSBC collective agreements can be found on the Homepage of this website, under Collective Bargaining. If additional information on collective agreements is required, please contact the PHSDSBC Collective Bargaining Department.

  1. What do I do when a Council’s collective agreement is not implemented?

You can contact your Human Resource/ Labour Relations Office in the relevant Department or contact your trade union to report the lack and/or wrong implementation.

  1. What is the relationship between the PHSDSBC and other Public Service bargaining Councils?

There is no relationship other than being the public service bargaining councils operating in their respective sectors as indicated below:

10.1 The PHSDSBC deals with all employees who are employed by the Department of

Health and Department of Social Development, as well as employees in other

Departments who are in health and social development professions (e.g.

doctors, nurses, social workers e.t.c.).

10.2 The SSSBC deals with employees employed in the South African Police Service.

10.3 The ELRC deals with employees appointed in terms of the Educators Act.

10.4 The GPSSBC deals with public servants who do not fall within the scope of the

other Sector Bargaining Councils above.

  • The PSCBC deals with all employees who are Public Servants.
  1. Does the scope of the PHSDSBC cover health and social development issues in both the public and private sector?

No. The PHSDSBC’s scope only covers matters in the public health and social development sector and not private sector.

  1. How do I refer a matter to a Chamber?

No individual can refer any matter for discussion directly but through parties to the Chamber (the employer and trade unions). Parties to the Chamber shall refer a matter in terms of Clause 4.1 of the PHSDSBC Resolution 2 of 2007. The Resolution is available on this website.

  1. Can members of the public attend the Chamber and Council meetings?

No, only Trade Union representatives and employer representatives at Provincial and National level are allowed to attend the Chamber and Council meetings.

DISPUTE MANAGEMENT FAQ'S

FAQ: GENERAL

Question: What is the Public Health and Social Development Sectoral Bargaining Council?

A Bargaining Council established in terms of s55 of the Labour Relations Act, 1995 to sign collective agreements and among other things to resolve disputes. The Bargaining Council is accredited by the CCMA in terms of s127 of the same act to Conciliate and Arbitrate Disputes

 

Question: How do you contact the PHSDSBC?

The Council (Secretariat) offices are situated in Lyttelton, Centurion:

Public Service Bargaining Centre

Block E

260 Basden Avenue

Lyttelton

Question: When do you refer a dispute to Council?

A dispute is referred or lodged once all the internal procedures (disciplinary hearing or grievances) have been exhausted and failed. This is at the Employer-Employee level within the Department.

 

Question: What are the processes implemented in an attempt to resolve the dispute?

By way of Con-Arb, Conciliating and Arbitrating

 

Question: How and when do you file for a settlement agreement to be an award and certification of awards?

It is filed in terms of s143 through the Council then to the Labour Court.

 

 

FAQ: ARBITRATION

Question: What would I do if the dispute remains unresolved at a Conciliation process?
You may request the PHSDSBC to resolve the dispute by arbitration. At an arbitration hearing both parties would be given the opportunity to fully state their side of cases where the commissioner would issue an award which is legally binding on both parties.

 

Question: What is the time frame to refer arbitration to the PHSDSBC?
According to s136 (1) (b), a party must request the commission to arbitrate a dispute within 90 days from the date on which the Council has issued the certificate that the dispute has not been resolved.

 

Question: Which form should the referring party use to refer a dispute for arbitration?
The referring party must use the PHSDSBC form 7.13 to refer a dispute for arbitration.

 

Question: What notice period must the PHSDSBC give of arbitration meeting?
The Council must give the parties at least 21 days notice, in writing, of an arbitration hearing, unless the parties agree to a shorter period.

 

Question: Can I be represented at the arbitration hearing?

At Arbitration proceedings, a party to the dispute may appear in or be represented only by a legal practitioner on agreement between the parties, a co-employee, member and an office bearer or official of that party’s trade union or an employee of a National Department or Provincial Administration.

Question: Under what circumstances can the commissioner consider a legal practitioner to represent me?

The commissioner should consider the following:

  • The nature of the questions of law raised by the dispute,
  • The complexity of the dispute, and
  • The comparative ability of the opposing parties or their representatives to deal with the dispute.

Question: How long does it take to receive the outcome of the arbitration?
Section 138 (7) provides that an arbitration award must be issued within fourteen days of the conclusion of the proceedings. The General Secretary of the PHSDSBC may extend this period on good cause shown.

Question: What would I do if I am not satisfied with the award?
Section 145 of the LRA states that any party to the dispute who alleges a defect in any arbitration proceedings may apply to the Labour Court within six weeks for an order setting aside the award. The Labour Court may stay the enforcement of the award pending its decision.

Question: What must I do if the employer failed to comply with the award?
An employee may enforce the award as if it was an order of the Labour Court if the General Secretary has certified it.

 

FAQ: CON-ARB

Question: What is Con/Arb?

It is a one-stop process where Conciliation and Arbitration takes place on the same day. Section 191 (5A) makes provision for this process.

Question: Is it a compulsory process?

In terms of Section 191 (5A) the process is compulsory for dismissal and unfair labour practice disputes relating to probation.

Question: Can I object to the process of Con/Arb?

If the dispute is one in which Con/Arb is not compulsory, any party to the dispute may object to the process by giving notice to the PHSDSBC and the other party, at least 5 working days prior to the scheduled date. Parties have no legal obligation to provide reasons for the objection.

Question: What are its advantages?

Con/Arb promotes the principle of speedy resolution of disputes in that the matter is finalised in one day. It is cheaper than the separate Conciliation and Arbitration process, with regards to costs that may be incurred by the parties.

Question: What notice must the PHSDSBC give of a Con/Arb meeting?

The PHSDSBC must give parties at least 14 days notice in writing.

Question: Is legal representation compulsory at Con/Arb?

In Con-Arb process the representation is similar to that of arbitration proceedings, a party to the dispute may appear in or be represented only by a legal practitioner on agreement between the parties, a co-employee, member and an office bearer or official of that party’s trade union or an employee of a National Department or Provincial Administration.

Question: What happens if Arbitration does not take place on the same day?

If there is an objection to Con/Arb and the matter remains unresolved, a certificate of non-resolution will be issued. The applicant must then apply for arbitration. This fact was confirmed in the leading case of Ceramic Industries Ltd v CCMA & Another (2005) 12 BLLR 1235 (LC), where it was held that if a party objects to Con/Arb the whole process is then switched to the old regime.

 

FAQ: CONCILIATION:

Question: What is Conciliation?

A process where a commissioner meets with the parties in dispute, and explores ways to settle the dispute by agreement (Section 133 of the LRA).

Question: Which referral form should the referring party use to refer a dispute for Conciliation?
PHSDSBC Form 7.11.

Question: What other information must the referring party attach to the PHSDSBC Form 7.11?

Proof that the referring form was served on the other party to the dispute must be attached to the form. If the referral form is filled out of time, attach an application for condonation as well.

Question: What notice must the PHSDSBC give of a Conciliation meeting?

The PHSDSBC must give parties at least 14 days notice in writing of a Conciliation hearing, unless the parties agree to a shorter period.

Question: Can the PHSDSBC resolve disputes before Conciliation meetings?

Yes. Rule 12 states that the PHSDSBC may contact parties telephonically or other means, prior to the commencement of the conciliation, in order to seek to resolve the dispute.

Question: Who can represent parties at a Conciliating meeting?

In the Conciliation proceedings a party to the dispute may appear in person or be represented only by a co-employee, member, an office bearer or official of that party’s trade union or by an employee of National Department or Provincial Administration.

Question: How long should the PHSDSBC take to resolve a dispute?

The appointed commissioner must attempt to resolve the dispute through Conciliation within 30 days of the date the PHSDSBC received the referral form.

Question: What happens if Conciliation fail or the 30-day period expire?

The commissioner must issue a certificate stating whether or not the dispute has been resolved. The commissioner must serve a copy of that certificate on each party to the dispute and the PHSDSBC.

FAQ: IN LIMINE:

Question: What is an ‘in limine’ hearing?

It is a preliminary hearing on a specific legal point relating to jurisdiction prior to getting into the merits of the case. Some of the preliminary issues are so important that the determination of the point will dictate whether the dispute referred proceeds or falls away. Condonation, joinder and substitution are some of the preliminary issues that may be raised.

Question: What is a condonation hearing?

There are various time frames to refer a dispute to the PHSDSBC. For instance, an employee must refer a dismissal dispute within 30 days of the dismissal. For unfair labour practices it is 90 days. Should a party refer a dispute outside the required time frame, it should ask the PHSDSBC to condone its late referral. This condonation application must be supported by an affidavit and address aspects such as the degree of lateness, the reason(s) for the delay, prospects of success and prejudice to both parties. The PHSDSBC can deal with the application on papers or ask parties to come and argue their case in a condonation hearing.

 

Question: Is legal representation allowed at in limine hearings?

Yes. A point in limine requires a procedural ruling based on evidence and/or legal arguments

Question: What if I am not happy with the outcome?

Rulings have the same status as arbitration awards. They are final and binding. A party who is not satisfied with the outcome may apply for rescission or review at the Labour Court.

Question: When do I get the outcome of an in limine hearing?

All rulings must be served on the parties to the dispute within 14 days of the conclusion of the case.

PRE-DISMISSAL ARBITRATIONS:

Question: What is a pre-dismissal arbitration?

A process that takes the form of a disciplinary enquiry and subsequent proceedings, which are heard by the PHSDSBC

Question: Who can request a pre-dismissal arbitration hearing?

According to section 188A of the LRA, an employer may by agreement with the employee request the PHSDSBC to conduct an arbitration hearing if it relates to the conduct or capacity of that employee. The employer is responsible for the payment of the prescribed fee for requesting a pre-dismissal arbitration hearing

Question: Which form should the employer use to request a pre-dismissal arbitration meeting?

PHSDSBC Form 7.19.

Question: How can the employee consent to the hearing?

The employee must sign the request form to show that he/she has agreed to the process. The consent can also form part of an employment contract

Question: How much does the PHSDSBC charge for conducting a pre-dismissal arbitration?
Resolving a dispute by pre-dismissal arbitration costs R3 500, 00 per day

Question: How is the request form submitted to the PHSDSBC?

The employer must submit the form to the PHSDSBC by hand delivery, registered mail or by fax. The employer must give the employee a copy of the form

Question: What notice must the PHSDSBC give of a pre-dismissal arbitration meeting?

Within 21 days of receiving the form and proof of payment, the PHSDSBC must give 14 days notice of the hearing date to both parties. Fees will be refunded if the PHSDSBC is notified that the matter has been resolved before scheduling the hearing

Question: When should the PHSDSBC issue out the pre-dismissal arbitration award?

The arbitrator must furnish a pre-dismissal award within 14 days after the hearing. A copy must be served on each party. The General Secretary of the PHSDSBC may extend the period on good cause shown

Question: What legal status does the pre-dismissal arbitration award have?

It is final and binding on both parties and it may be made an order of Court. The Labour Court may only review the award.

 

RESCISSION:

Question: What is a rescission application?

It is an application to have an arbitration award or ruling overturned or annulled. The ruling or award may be rescinded on the commissioner’s own accord or, on application by any affected party.

Question: What is the time frame to apply for rescission?

An application for the rescission of an award or ruling must be made within 14 days of the date on which the applicant became aware of:

  • The award or ruling, and
  • A mistake common to the parties

Question: What are the grounds to apply for rescission?

  • If the award or ruling was erroneously made in the absence of any party,
  • If there is an ambiguity or an obvious error, but only to the extent of that ambiguity or error, and
  • If the award or ruling was granted as a result of a mistake common to the parties.

Question: What is the effect of a rescission ruling?

It is final and binding. Any party who is not satisfied with it may have it reviewed by the Labour Court.

Question: How do I apply for rescission?

There are no promulgated forms but the PHSDSBC has put together a standard application form. The application must be supported by an affidavit, a copy of which must be send to the other party and to the PHSDSBC with proof of service.

Question: What happens if I am out of time to apply for rescission?
The affected party will have to apply for condonation.