The CCMA / by Feosa_Admin
a. The CCMA as an institution – The CCMA is established in terms of section 112 of the Labour Relations Act of 1995 (the LRA).
It is a juristic person and it is independent of the State, any political party, trade union, employer, employers’ organisation, federation of trade unions etc. This neutrality and independence is a prerequisite for the CCMA’s effective and efficient fulfilling its functions. As an institution it would not have any interity or legitimacy if it was under the control of the state or employers, for example. The CCMA is a organ of state as contemplated in section 239 of the Constitution of 1996 and it is funded by the state. There are CCMA offices in all provinces and the head office of the CCMA is in Johannesburg.
Generally, the CCMA provides its services free of charge. In terms of section 123 of the LRA, however, the CCMA may charge fees of disputing parties in circumstances where the Act expressly permits the charging of fees, or where the CCMA conducts or supervises any ballot at the request of a trade union or employers’ organisation. The CCMA may also charge fees for providing advice and training.
The CCMA is governed by a governing body, consisting of a chairperson and nine other members. All members of the governing body are nominated by NEDLAC and are appointed for a period of three years by the Minister of Labour. The director of the CCMA also sits on the governing body of the CCMA by virtue of his or her appointment as director.
The governing body must, in terms of section 117 of the LRA, appoint commissioners to resolve labour disputes. Commissioners may be appointed on either a full-time or a part-time basis and may be either a senior commissioner or an ordinary commissioner.
In attempting to resolve disputes, a commissioner is clothed with powers of subpoena by section 142 of the LRA.
The functions of the CCMA are set out in detail in section 115 of the LRA – note that this provision was amended considerably in 2002. The Commission must attempt to first resolve any dispute referred to it by means of conciliation. If the dispute remains unresolved after conciliation, the CCMA must resolve the dispute through arbitration, but only if the LRA requires that the dispute be resolved through arbitration. If the Act requires a dispute to be referred to the Labour Court after conciliation has failed, the CCMA will only have jurisdiction to resolve the dispute through arbitration if all the parties to the dispute consent to arbitration under the auspices of the CCMA. Even where the LRA prescribes adjudication by the Labour Court, the parties may, in terms of section 115(1)(b)(ii) of the LRA, consent to the arbitration jurisdiction of the CCMA.
After the 2002 amendments to the LRA, the CCMA now has considerable rule-making powers (see section 115(2A)). These rules relate to the practice and procedure in connection with the resolution of a dispute by means of conciliation or arbitration, the process in terms of which conciliation is initiated, the way in which arbitration proceedings are initiated, and a number of other practical issues. These CCMA rules are of pivotal importance in referring a matter to the CCMA or proceeding with either a CCMA conciliation or arbitration.
In terms of section 133 of the LRA, the CCMA is obliged to appoint a commissioner to attempt to resolve any dispute through conciliation where the dispute has been referred to the commission in terms of the Act, and, after conciliation has failed, the CCMA must arbitrate the dispute if the LRA requires that the dispute be arbitrated or if all the disputing parties consent to arbitration by the CCMA in spite of the Labour Court having jurisdiction over the dispute.
The CCMA must also assist in the establishment of a workplace forum in terms of the Act and must also compile and publish information and statistics about its activities.
On the request of a party to a dispute, the CCMA may advise that party about the procedure to be followed in terms of the Act, and, again on request of a party to a dispute, may assist a party to obtain legal advice, assistance or representation.
Bargaining or statutory councils or private agencies may apply to the governing body of the CCMA for accreditation in order to perform dispute resolution functions in terms of the LRA. The council or the private agency will have to comply with the requirements set out in section 127(4) of the LRA, and may not perform dispute resolution functions in respect of a list of dispute-types.
Conciliaton at the CCMA
Conciliation is a process that is based on seeking consensus. The commissioner or conciliator appointed by the bargaining council seeks to assist the parties to try and reach a mutually acceptable resolution of the dispute. In most instances, for the purposes of the LRA, conciliation is a compulsory process – parties cannot elect, for example, to skip the conciliation process and proceed straight to arbitration or to the Labour Court.
Section 135 of the LRA provides that if a dispute is referred to the CCMA, the CCMA must appoint a commissioner to attempt to resolve the dispute through conciliation. The Commissioner has 30 days in which to attempt to resolve the dispute, and the parties may agree to extend this 30 day period.
A dispute is referred to the CCMA for conciliation using LRA Form 7.11 – this is called the referral document. The referring party must sign the document and attach written proof that the referral document was served on the other party or parties to the dispute. If a dispute is referred for conciliation outside the relevant time period, an application for condonation must also be made. Condonation is dealt with in rules 9 and 31 of the CCMA rules. Rule 9(3) provides that an application for condonation must set out the grounds for seeking condonation and must include details of the following:
- The degree of lateness,
- The reason why the party is late in referring the dispute,
- The referring party’s prospects of succeeding with the referral and obtaining the relief sought,
- Any prejudice to the other party and
- Any other relevant factors.
Rule 31 relates generally to the bringing of an application and what must be contained in the application.
Determining the exact process to be used in the conciliation process is left to the discretion of the commissioner. The LRA simply states that the process may include mediating a dispute, conducting a fact-finding exercise and/or making a recommendation to the parties in the form of a non-binding advisory arbitration award.
If the conciliation has failed, the commissioner must issue a Certificate of Outcome stating whether or not the dispute has been resolved. The CCMA must serve a copy of that certificate on each party to the dispute or the representative of the party.
Rules 10 – 16 of the CCMA rules relate to the conciliation of disputes. Rule 13 sets out what happens if a party fails to attend or is not represented at conciliation. Rule 14 relates to jurisdictional matters: if it appears during conciliation proceedings that a jurisdictional issue has not been determined, the CCMA commissioner must require the referring party to prove that the CCMA has the jurisdiction to attempt to resolve the dispute by means of conciliation.
Arbitration at the CCMA
Arbitration before the CCMA (or a bargaining or statutory council) and in terms of the LRA is usually a compulsory process where a CCMA commissioner or council arbitrator hears the parties’ cases and then decides the dispute between the parties. Arbitration therefore differs from conciliation in that, instead of assisting the parties to reach their own settlement, a settlement is made and imposed by the arbitrator after hearing each side to the dispute.
Arbitrations are not subject to appeal – they may be subject to review on certain grounds, however.
Within 90 days of the Certificate of Outcome being issued and conciliation failed, a party to a dispute may request that a dispute be resolved through arbitration, but only if the LRA requires that the dispute be resolved through arbitration (section 136 ). The 90-day time limit from the date of the Certificate of Outcome was introduced in amendments to the LRA in 1998. But a commissioner may condone the late referral or the non-observance of the time frame “on good cause shown”. The commissioner doing the arbitration may be the same commissioner that attempted to conciliate the dispute.
The arbitrating commissioner is appointed by the CCMA, but the disputing parties may state a preference in writing. This list of preferences may list no more than five commissioners and the request must state explicitly that it is agreed by all the disputing parties. The written statement of preference for a commissioner to arbitrate the dispute must be submitted to the CCMA within 48 hours of the date reflected on the Certificate of Outcome.
Parties may also apply, in terms of section 137 of the LRA, for the appointment of a senior commissioner to arbitrate the dispute.
The arbitrating commissioner has a wide discretion to determine the way in which the arbitration process is conducted. Section 138 of the LRA, while conferring this wide discretion also places some limits on that discretion, by providing that the parties may give evidence, call witnesses, question witnesses and address closing arguments to the commissioner.
Section 138(4) used to contain limitations regarding representation at arbitration hearings. The 2002 amendments to the LRA did away with section 138(4) in its entirety.
If an arbitrating commissioner fails to exercise his or her discretion properly, his or her actions may be subject to review by the Labour Court.
The LRA requires that within 14 days of the conclusion of the arbitration proceedings, the arbitrating commissioner must issue an award with brief reasons, signed by the commissioner. The award must be served on all parties to the dispute by the CCMA and the original award must be filed with the registrar of the Labour Court. As a rule, a commissioner may not order costs, but may do so in the case of frivolous or vexatious actions by a party either in pursuing the matter or in the party’s conduct during the arbitration proceedings. The commissioner may make any appropriate order in terms of the Act, including an award that gives effect to any collective agreement, that gives effect to the primary objectives of the LRA, and it may be in the form of a declaratory order (section 138 of the LRA).
Section 143 of the LRA (amended in 2002) provides that an arbitration award issued by a CCMA commissioner is final and binding and it may be enforced as if it were an order of the Labour Court (this does not apply in the case of advisory arbitration awards). If an arbitration award orders a party to pay a sum of money, the amount earns interest from the date of the award. If a party fails to comply with an arbitration award that orders the performance of an act other than the payment of an amount of money, any other party to the award may enforce it by way of contempt proceedings instituted in the Labour Court.
Section 144 of the LRA (amended in 2002) provides that an commissioner who has issued an arbitration award or ruling or any other commissioner appointed by the Director of the CCMA for that purpose, may on that commissioner’s own accord or, on the application of any affected party, vary or rescind an arbitration award or ruling that was –
Erroneously sought or erroneously made in the absence of any party affected by the award,
In which there is an ambiguity or an 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.
Rules 18 – 23 of the CCMA rules relate to arbitrations. The referral document is Form LRA 7.13, which must be signed by the party referring the dispute. Rule 19 relates to when the parties must file statements, and rule 20 to the holding of a pre-arbitration conference. Note that rule 20(2) sets out what the parties must attempt to reach consensus on. Rule 22 relates to jurisdiction: if during the arbitration proceedings it appears that a jurisdictional issue has not been determined, the commissioner must require the referring party to prove that the CCMA has jurisdiction to arbitrate the dispute. Rule 23 relates to the postponement of arbitration proceedings.
This new procedure was introduced in the 2002 amendments to the LRA. In essence this procedure is a conciliation followed immediately by an arbitration – there is no extended period of time between the conciliation and arbitration proceedings. Section 191(5A) of the LRA provides that a council or the CCMA must begin the arbitration immediately after issuing a certificate of outcome certifying that the dispute remains unresolved if the dispute concerns any of the following:
The dismissal of an employee for any reason relating to probation,
Any unfair labour practice relating to probation, any other dispute contemplated in section 191(5)(a) in respect of which no party has objected to the matter being dealt with in terms of the new con-arb procedure.
Rule 17 of the CCMA rules apply in respect of the new con-arb procedure. The CCMA must give the parties at least 14 days’ notice in writing that a matter has been scheduled for con-arb in terms of section 191(5A) of the LRA. A party that intends to object to a dispute being dealt with in terms of the con-arb procedure must deliver written notice to the CCMA and the other party at least 7 days before the scheduled date of the con-arb. In con-arb proceedings a party to the dispute may appear in person or by represented only by a legal practitioner, a director or employee of that party or any member, office bearer or official of that party’s registered trade union or registered employers’ organisation. The other CCMA rules relating to conciliation and arbitration also apply in respect of con-arbs.