2. THE LRA DISPUTE RESOLUTION INSTITUTIONS: MR. CAMERON SELLO MORAJANE
AN ASSESSMENT
PRESENTED BY
CCMA DIRECTOR:
MR. CAMERON SELLO MORAJANE

3. COPYRIGHT
© Unless otherwise indicated, copyright in this material vests in the Commission for Conciliation, Mediation and Arbitration (CCMA). No part of this material may be reproduced, modified or adapted in any form or by any means without the written permission of the Commission for Conciliation, Mediation and Arbitration.
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4. PRESENTATION LAYOUT SCOPE OF ASSESSMENT
INTEGRATED DISPUTE RESOLUTION SYSTEM
ASSESSMENT OF DISPUTE RESOLUTION INSTITUTIONS
DISPUTE RESOLUTION SYSTEM CHALLENGES
MOVING TOWARDS DISPUTE PREVENTION
CONCLUSION
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September 2017

5. SCOPE OF ASSESSMENT
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September 2017

6. SCOPE OF ASSESSMENT
Dispute resolution institutions established by statute must give effect to statutory purposes and primary objects
This assessment approach is not limited to the Labour Relations Act institutions, but includes all dispute resolution institutions of all other statutes:
How efficiently each institution deals with its mandate
Learnings from the past
Challenges to overcome in the future
Proposals for dispute prevention interventions
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September 2017

7. EMPLOYMENT LAW FRAMEWORK
International Labour Organisation Policies and Conventions
Labour Relations Act
Basic Conditions of Employment Act
South African
Constitution
Employment Equity Act
Unemployment Insurance Act
Occupational Health and Safety Act
September 2017
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8. INTERNATIONAL LABOUR ORGANISATION CONVENTIONS
South African labour law gives effect to International Labour Organisation (ILO) policy and conventions
A total of 27 Conventions ratified by South Africa :
Fundamental Conventions: 8
Governance Conventions (Priority): 2
Technical Conventions: 17
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September 2017

9. INTEGRATED DISPUTE RESOLUTION SYSTEM
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September 2017

10. INTEGRATED APPROACH TO ASSESSING DISPUTE RESOLUTION INSTITUTIONS
BCEA
LRA
UIF
OHS
EEA
The
Courts
Operational Challenges Hamper Social Justice
Statutory
Dispute Resolution
Institutions
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September 2017

11. DISPUTE RESOLUTION INSTITUTIONS
The Courts
Constitutional Court
Labour Appeal Court
Labour Court
Equality Court
CCMA
Bargaining Councils (35)
Public Sector
Private Sector
Statutory Councils
Private Agencies (4)
Compensation Commission
Occupational Health and Safety
Inspectorates
Employment Law Dispute Resolution System
Not an Exhaustive List…
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September 2017

12. EXAMPLES OF TIME TAKEN TO ATTAIN SOCIAL JUSTICE
Case / Judgment
Time Taken
Sidumo and another v Rustenburg Platinum Mines Ltd and Others (2007) 12 BLLR 1097 (CC)
7 years
Sizwe Myathaza v Johannesburg Metro bus (CC)
6 years
NUMSA & others v Bader Bop (Pty) Ltd & another [2003] 2 BLLR 103 (CC)
3 years
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September 2017

13. CRITICAL QUESTIONS ARISING FROM DISPUTE PATH
Case law is a product of the dispute path
Unintended consequence of becoming too legally driven and complicated
Justice delayed is justice denied:
Reinstatement and back pay awarded with interest. What about damages? (The case never ends)
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September 2017

14. ASSESSMENT OF INSTITUTIONS
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September 2017

15. COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION
Purpose:
Conciliate, Mediate, Arbitrate
Accredit Bargaining Councils and Private Agencies
Impact:
72% of Labour Market Represented by CCMA’s Activities
2,8 million referrals since inception
68% Disputes Settled at Conciliation for 2016/2017
52% Job Saving in Section 189A Interventions 2016/2017
Successful Dispute Management and Prevention Initiatives
Challenges:
Case Load increased from 64,600 in 1996 to 188,450 in 2016/2017
Ever-increasing Case Load due to Labour Market Factors
This situation could lead to challenges in future
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September 2017

16. SUMMARY OF CCMA RESULTS 1 APRIL 2016 – 31 MARCH 2017
is the registered caseload for the 2016/2017 financial year (compared to the of the 2015/16 financial year)
2 500 outreach activities were conducted (awareness raising activities, capacity building activities and social justice blockages activities)
24 days was the average to deal with conciliation cases as compared to the legislated target of 30 days
people were capacitated to better understand the law and their rights through the outreach activities conducted
52% of jobs ( out of jobs at stake) were saved compared to employees facing retrenchments (cases referred to the CCMA) (Section 189A)
60 days is the average time taken to deal with arbitration cases (performance target of 60 days)
4 Thought Leadership Conversations were convened:
1. “South Africa faces retrenchment crisis”
2. “Equity in the workplace”
3. “Equal Pay for Work of Equal Value”
4. “The Proposed National Minimum Wage”
143 public interest matters were settled (Section 150)
68% cases were settled through conciliation
530 complaints were received; all complaints were investigated and responded to
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September 2017

17. ESSENTIAL SERVICES COMMITTEE
Impact:
Since inception 71 referrals and 8 self-initiated investigations
Since inception 34 investigations completed
More than 100 services designated as essential services
Challenges:
Implementation of the Minimum Services Agreements
Volume of disputes could become practically problematic
Absence of consequence for non compliance
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September 2017

18. BARGAINING COUNCILS Challenges: Sustainability (eg. MEIBC)
PFMA regulations and consequent revenue challenges
Reduced from 101 bargaining councils in 2001 to 35 in 2017
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September 2017

19. BARGAINING COUNCILS REFERRAL PROCESSING 2012-2017
NB:
Only includes the 18 Bargaining Councils which use the CCMA case management system
161,817 referrals over a five year period
15.6% of the above referrals were settled at conciliation
63.9% of the above referrals were arbitrated
0.9% of the above referrals were taken on review
Of the arbitration awards taken on review, 22% set aside, 76% pending appeal at Labour Appeal Court
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September 2017

20. DEPARTMENT OF LABOUR INSPECTORATES
Impact:
Whole of the labour market represented by the various forms of inspectorates
Only opportunity for statutory relief
Challenges:
Capacity of inspectors
Enforcements of compliance orders
Capacity to deal with volumes of cases
Time taken to process relief is of great concern
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September 2017

21. DISPUTE RESOLUTION CHALLENGES
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September 2017

22. DISPUTE RESOLUTION CHALLENGES
An overly legal approach to dispute resolution has led to lengthy delays in obtaining justice
Sustainability of Bargaining Councils, reducing in number
Case load ever increasing in dispute resolution institutions
Lack of an integrated, common case management system
Time it takes to conclude cases
© The Commission for Conciliation Mediation & Arbitration
September 2017

23. DISPUTE RESOLUTION CHALLENGES
Disintegrated, unsynchronised approach to Dispute Resolution
Lack of collaboration due to the disintegrated approach
Transforming the labour market by transforming workplaces is a process, not an event
Proper diagnosis in an integrated way is required
Employment law review required
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September 2017

24. MOVING TOWARDS DISPUTE PREVENTION
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September 2017

25. STRATEGIC SHIFT TO DISPUTE PREVENTION
How can dispute resolution institutions transform into dispute prevention institutions?
Dispute Resolution
(Reactive)
Dispute Prevention
(Proactive Stance)
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September 2017

26. INTERNATIONAL APPROACH TO DISPUTE PREVENTION
The International Labour Organisation encourages dispute prevention
Requires a commitment to problem solving
Focus on addressing workplace issues that have the potential to escalate into major conflict
© The Commission for Conciliation Mediation & Arbitration
September 2017

27. EXAMPLES OF CCMA INITIATIVES TOWARDS DISPUTE PREVENTION
Capacity building interventions
Prevention interventions include joint training, improved processes of dialogue, consultation, and commitment to improved workplace relation
Facilitated 14 Managing Conflict in the Workplace (MCW) and 8 Building Workplace Relations (BWR) interventions during 2016/2017
Piloted a workplace mediation model in the Western Cape Fruit Sector
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September 2017

28. CONCLUSION © The Commission for Conciliation Mediation & Arbitration
September 2017

29. CONCLUSION Dispute prevention requires buy-in and collaboration
The dispute resolution institutions are efficient
The current dispute resolution system’s resources are stretched
The present reactive system with its capacity limitations cannot deal with underlying causes of conflict in the workplace
In line with the dispute prevention policies of the International Labour Organisation, dispute prevention measures must be pursued
Calls for joint labour market intelligence to transform workplace relations (eg. Early detection system)
The duty of care by panelists
Dispute prevention requires buy-in and collaboration
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September 2017

30. Thank You © The Commission for Conciliation Mediation & Arbitration
September 2017
August 2017