Labour Legislations

Commission for Conciliation, Mediation and Arbitration (CCMA)

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The Commission for Conciliation, Mediation and Arbitration (CCMA) is an independent, juristic body that helps to resolve disputes and offers advice and training on labour relations. The Commission for Conciliation, Mediation and Arbitration (CCMA) is a dispute resolution body established in terms of the Labour Relations Act, 66 of 1995 (LRA). It is an independent body, does not belong to and is not controlled by any political party, trade union or business.

The Governing Body is the supreme policy making body of the CCMA and consists of a chairperson, three state representatives; three representatives from organised labour and three representatives from organised business; The Commission for Conciliation, Mediation and Arbitration (CCMA) is an independent juristic body, mainly state-funded. On its governing body are representatives from government, business and labour, each with 3 representatives. All of whom are nominated by NEDLAC and the Director of the CCMA nominated by the Governing Body.

Referring a dispute:

If you are an employee in dispute with your employer, or vice versa, over a matter such as-
• dismissal,
• wages and working conditions
• workplace changes, or
• discrimination

The CCMA’s functions are to:

• try to resolve disputes through conciliation or arbitration;
• help in forming workplace forums;
• publish information on its activities and guidelines for dispute resolutions;
• advise on getting legal advice;
• determine dispute resolution fees, if applicable;
• make rules to regulate –
• the meeting procedure of its committees;
o conciliation and arbitration procedures;
o office hours for delivering processes;
o forms to be used;
o how arbitration costs are calculated; and to publish these rules in the Government Gazette

Advice and Training:

The CCMA provides advice and training to workers, registered trade unions and trade union federations, employers, employers’ organisations and federations of employers’ organisations on –

• forming collective bargaining bodies;
• forming and managing workplace forums;
• preventing and resolving disputes and grievances;
• disciplinary procedures;
• workplace restructuring;
• affirmative action and equal opportunity programmes; and on
• Preventing sexual harassment.

Application

The Labour Relations Act applies to all employers, workers, trade unions and employers’ organisations, but does not apply to –

• members of the:
o National Defence Force;
o National Intelligence Agency; or
o South African Secret Service.

Applies to all workers and employers and aims to advance economic development, social justice, labour peace and the democracy of the workplace. You may want to ask the CCMA to conciliate or even arbitrate your dispute. A union or employer’s organisation may also initiate this action. You do not need the other party’s consent before taking a matter to the CCMA.

The advent of the new Labour Relations Act (LRA) has raised expectations about the fundamental change in the nature of South African labour relations and of effective dispute resolution and collective bargaining in particular.

For many observers, the replacement of the Industrial Court by the CCMA signals a shift from a highly adversarial model of relations to one based on promoting greater co-operation, industrial peace and social justice. The apparent shift seems all the more plausible as an unfolding democratisation process intersects with the challenges of a highly competitive globalised economy, new forms of work organisation and participative decision making.

In South Africa the mechanisms offered for dispute resolution in the previous LRA, namely: Conciliation Boards and the Industrial Court lacked credibility with the State’s social partners, organised business and organised labour and resulted in a very low settlement rate of disputes.

The explanatory memorandum released with the draft bill of the LRA highlighted that the previous dispute resolution processes resulted in only 20% of disputes being settled. The failure of the statutory structure to resolve those disputes effectively resulted in an excessively high workload for the Industrial Court and the unnecessarily high incidence of strikes and lockouts. More specifically, the old legislature attempted to provide a basis for relations among its citizens. However, in certain circumstances, the laws themselves impeded the promotion of good relations.

Since its inception, the CCMA has enjoyed a national settlement rate of 70% and greater – a clear signal that the CCMA is committed to restoring sound labour and industrial relations within the South African economy.

The new labour legislative environment anticipates, as well as encourages, a paradigm shift away from the old adversarial model which was characterised by high levels of conflict, union repression, discrimination, cheap labour and authoritarian managerial styles. Because of its relative informality and the greater variety of approaches and solutions which may be adopted, those groups who may be considered ill-served by the old legislature often regard the new dispensation as especially suitable for use. The premise being that it is a more co-operative model based on collective bargaining, greater participation, organisational rights, effective resolution of conflict and higher levels of co-operation resulting in greater flexibility and improved productivity outcomes.

The CCMA will:

• 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

Note: The following disputes cannot be referred to the CCMA

• where an independent contractor is involved,
• where the case does not deal with an issue in the LRA or Employment Equity Act (EEA). (Basic Conditions of Employment Act (BCEA) issues may be linked to unfair dismissal disputes and unfair retrenchment disputes at the CCMA),
• where a bargaining council or statutory council exists for that sector,
• where a private agreement exists for resolving disputes (for example: private arbitration)

Steps for disputes at the CCMA

Step 1: If you have a labour problem, it is very important that you take steps immediately. 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, if the case is an unfair labour practice, you have only 90 days and, with discrimination cases, you have six months.
Step 2: If you have decided to lodge a dispute, you need to complete a CCMA case referral form (also known as LRA Form 7.11.). These forms are available from the CCMA offices, Department of Labour and the CCMA website. (http://www.ccma.org.za).
Step 3: Once you have completed the form, you need to ensure that a copy is delivered to the other party and you must be able to prove that a copy was sent. 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).
Step 4: You do not have 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.
Step 5: The CCMA will inform both parties as to the date, time and venue of the first hearing.
Step 6: Usually the first meeting is called conciliation. Only the parties, trade union or employers’ 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.
Step 7: 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 for arbitration or the Labour Court as the next step.
Step 8: In order to have an arbitration hearing, you have to complete a request for arbitration form, (also known as LRA Form 7.13.). A copy must be served on the other party (same as in step 3). Arbitration should be applied for within three months from the date on which the commissioner issued the certificate.
Step 9: 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.
Step 10: If a party does not comply with the arbitration award, it may be made an order of the Labour Court.

What disputes can not be handled by the CCMA?

The following disputes cannot be referred to the CCMA:

• Where an independent contractor is involved.
• Where the case does not deal with an issue in the LRA or Employment Equity Act (EEA). (Basic Conditions of Employment Act (BCEA) issues may be linked to unfair dismissal disputes and unfair retrenchment disputes at the CCMA).
• Where a bargaining council or statutory council exists for that sector.
• Where a private agreement exists for resolving disputes (for example: private arbitration).

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