THE COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION
The Commission for Conciliation Mediation and Arbitration (the CCMA) is a dispute resolution body established in terms of the Labour Relations Act, number 66 of 1995.
FUNCTIONS OF CCMA.
- Conciliate workplace disputes Arbitrate disputes that remain unresolved after conciliation Facilitate the establishment of workplace forums and statutory councils Compile and publish information and statistics about its activities
Consider applications for accreditation and subsidy from Bargaining Councils and private agencies.
The CCMA may:
- Supervise ballots for unions and employer organisations
- Give training and advice on:
- The establishment of collective bargaining structures
- Workplace restructuring
- Consultation processes
- Termination of employment
- Employment equity programmes
- Dispute prevention
SETTLEMENT OF DISPUTES
In the case of an unfair dismissal dispute, you have only 30 days from the date on which the dispute arose to open a case. With discrimination cases, you have six months.
If you have decided to lodge a dispute, you need to complete a CCMA case referral form, also known as a LRA Form 7.11. These forms are available from the CCMA offices, DOL offices and the CCMA website. (http://www.ccma.org.za).
Once you have completed the form, you need to ensure that a copy is delivered to the other party. You must be able to prove that they received a copy. Acceptable methods include faxing a copy (keep the fax transmission slip), sending it by registered mail (keep the postal receipt), send it by courier (keep proof) or deliver in person (ask the person receiving it to sign for it).
You do not need to bring the referral form to the CCMA in person. You may also fax the form or post it. Make sure that a copy of the proof that the form had been served on the other party is also enclosed.
The CCMA will inform both parties as to the date, time and venue of the first hearing.
Usually the first meeting is called a conciliation hearing. Only the parties, trade union or employer organisation representatives (if a party to the dispute is a member) and the CCMA Commissioner will attend. The purpose of the hearing is to reach an agreement acceptable to both parties. Legal representation is not allowed.
If no agreement is reached, the Commissioner will issue a certificate to that effect. Depending on the nature of the dispute, the case may be referred to the CCMA arbitration or the Labour Court as a further step.
In order to have an arbitration hearing, you have to complete a request for arbitration form, also called a LRA Form 7.13. A copy must be served on the other party. Arbitration should be applied for within three months from the date on which the Commissioner issued the certificate.
Arbitration is a more formal process and evidence, including witnesses and documents, may be necessary to prove your case. Parties may cross -examine each other. Legal representation may be allowed. The commissioner will make a final and binding decision, called an arbitration award, within 14 days.
If a party does not comply with the arbitration award, it may be made and order of the Labour Court.
If you are an employee in dispute with your employer, or vice versa, over a matter such as:
Wages and working conditions;
Or discrimination You may want to ask the CCMA to conciliate or even arbitrate your dispute.
A union or employers' organisation may also initiate this action. You do not need the other party's consent before taking a matter to the CCMA.
When conciliation fails, a party may request the CCMA to resolve the dispute by arbitration. At an arbitration hearing, a commissioner of the CCMA (or an arbitrator, if the dispute is being heard by a Council or an agency) gives both parties the opportunity to fully state their cases. The commissioner/ arbitrator then makes a decision on the issue in dispute. The decision, called the arbitration award, is legally binding on both parties. Attempts must generally be made to resolve the dispute through conciliation. If it cannot be resolved by conciliation, the parties can go to arbitration or the Labour Court. The Act specifies which dispute goes to which process. In an arbitration hearing the party in dispute may appear in person or be represented by a legal practitioner, a director or employee of the party or any member, office-bearer or official of the party's registered trade union or registered employers' organisation. Lawyers are not normally allowed to represent parties in arbitrations over dismissal disputes. They can be used, though, if the commissioner and the parties consent, or if the commissioner decides that it is unreasonable to expect a party to deal with the dispute without legal representation.
Having heard the parties and their arguments, the commissioner will decide the outcome of the case, by issuing an award. The decision is legally binding on the parties and it ends the dispute. Copies of all CCMA arbitration awards are forwarded to the Labour Court and to the parties, within two weeks of the award being made.
By agreement between the parties or when so directed by the Director or a Senior Commissioner the parties to the proceedings must hold a pre-arbitration conference to:Determine facts in dispute, common cause facts, issues to be decided, and relief claimed.
Exchange documents that will be used in the arbitration.
Draw up and sign a minute of the pre-arbitration conference.
CCMA does not generally charge fees for its dispute resolution work, but may do so in exceptional circumstances outlined here.
- When it is resolving disputes, which are referred to it, in circumstances in which the labour legislation allows fees to be charged (all listed here); When conducting, overseeing or scrutinising any election or ballot at the request of a registered trade union or employers' organisation. The fee is between R750 to R1000 for each day or part thereof; When asked by employees, employers, registered trade union, registered federation of trade unions, federations of employers organisations or councils to provide advice or training relating to:
- Establishing collective bargaining structures; Designing, establishing and electing workplace forums and creating deadlock-breaking mechanisms; The functioning of workplace forums; Preventing and resolving disputes and employees' grievances; Disciplinary procedures; Procedures in relation to dismissals; The process of restructuring the workplace; Affirmative action and equal opportunity programmes; and Sexual harassment in the workplace,
The fee is between R750 and R1 500 for each day or part thereof. The CCMA may charge R750 for each day of the hearing if the commissioner in an arbitration finds that the dismissal is unfair only because the employer did not follow a proper procedure.
CCMA may charge R750 - R2000 for each day or part thereof when resolving a dispute about the interpretation of a collective agreement when:
- The collective agreement does not provide a procedure for resolving that dispute; The procedure provided in the collective is not operative; A party to a collective agreement has frustrated the resolution of the dispute; Resolving a dispute between parties to a council if the council's dispute resolution procedures are not operative;
Resolving a dispute between parties to a collective agreement that provides for the resolution of that dispute by an accredited agency,
CCMA commissioners may include an order of costs in the arbitration award if a person or representative conducted the case in a manner, which lacked seriousness or proceeded with or defended the dispute in arbitration without sufficient grounds for action just to annoy the other party. No loss of professional earnings may be claimed from CCMA only witness fee may be paid if that witness was called by CCMA. Legislation: Sections 115(3), 123(1)(b), 138(10), 140(2) and 147 of the Labour Relations Act No 66 of 1995 and General Regulations
In terms of section 145 of the LRA, a party may apply to the Labour Court on the basis of an alleged defect with a commissioner's ruling or awards. The party who alleges such a defect must apply to the Labour Court to set aside the award within six weeks of the award being served.A defect means:
- that the commissioner committed misconduct in relation to the duties of the commissioner as arbitrator that the commissioner committed a gross irregularity in the conduct of the arbitration proceedings that the commissioner exceeded his powers
that the award was improperly obtained.
It is important to note that the review is not an appeal, and therefore it is not related to the merits of the matter but to the commissioner's conduct.