Cape Labour Blog
Labour Consulting Services
NEW EARNINGS THRESHOLD
May 19th
New earnings threshold
In accordance with a recently released determination by the Minister of Labour, with effect from 01 July 2011 the earnings threshold for the purposes of the Basic Conditions of Employment Act, No. 75 of 1997 (“the BCEA”) will be increased from R149,736 per annum to R172,000 per annum. (In this regard, “earnings” is define in the determination as being an employee’s “regular annual remuneration before deductions (i.e. income tax, pension, medical and similar payments but excluding similar payments (contributions) made by the employer in respect of the employee: Provided that subsistence and transport allowance received, achievement awards, and payments for overtime worked shall not be regarded as remuneration for the purpose of this notice.”)
For practical purposes, this means that with effect from 01 July 2011, only employees who earn in excess of R172.000 per annum will be excluded from the provisions of the BCEA pertaining to ordinary hours of work (section9), overtime (section10), compressed working weeks (section11), averaging of hours of work (section 12), meal intervals (section 14), daily and weekly rest periods (section 15), pay for work on Sundays (section 16), night work (section 17(2)), and payment for public holidays on which the employee would not ordinarily work (section 18(3)). Any employee who earns below this threshold amount will be entitled, by law, to receive the payments and/or benefits provided for in these sections.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
EVIDENCE HAS TO BE RELEVANT TO THE DISPUTE
May 16th
Evidence is frequently confused with proof. Disciplinary and arbitration hearings are concerned, in essence with establishing whether or not an employee is “probably guilty” of the allegation(s) being leveled against them. It is only once, and if, such “Probable guilt” is established that the selection of an appropriate sanction becomes relevant and necessary.
Guilty or not guilty verdicts are determined on whether there is enough proof to find the employee probable guilty. This notion of probable guilt is determined by assessing the evidence led and the so-called persuasive, or otherwise, nature of the argument. It follows, therefore, that for an employee to be found (probable) guilty, the sum of the evidence led and argument presented, must lead a reasonable-minded person to infer “probable guilt”. That’s how the justice system works in the adjudication of labour disputes (such as alleged unfair dismissal cases) and indeed civil and criminal cases in general. The notions of evidence and proof are key to the fair adjudication of labour disputes. In short, evidence consist of oral statements (oral evidence), documents (documentary evidence) and objects (real evidence).
Some of these basic principles are worth visiting briefly. In the main, hearsay evidence is inadmissible, be it via third parties or documents. There are exceptions which, on occasion, permit the admission of hearsay evidence. Oral, real and documentary evidence each have there own rules and guiding principles. The leading of oral, for example, by way of witnesses is crucial. Evidence-in-chief, cross-examination and re-examination are the corner-stone of oral evidence, with each having a specific function and characteristics.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
EMPLOYEE VERSUS EMPLOYMENT CONTRACTOR
May 10th
The term “employee” is defined in the Labour relationship Act of 1995, the Basic Conditions of Employment Act of 1997 and other labour related legislation. However, the term “independent contractors” is not defined in any legislation. In general terms, an independent contractor is someone who independently renders specified services, or produces specified products or results, to a number of clients.
It is critical to distinguish between employees and independent contractors because:
• Only employees are protected by the provisions of the LRA, BCEA and other labour-related legislations against, for example, unfair dismissal, unfair discrimination and exploitation. This means, among other things, that whereas the contract with an independent contractor can be ended as provided for in the contract between the parties, employees can only be dismissed if the substantive and procedural requirements for a fair dismissal have been met;
• Only employees are entitled to the basic conditions of employment as stipulated in the BCEA, such as annual leave, sick leave and maternity leave, and the deduction of UIF, and the corresponding pay over to the Department of Labour, is also only relevant to employees;
• Employers of the employees are liable for any unlawful acts committed by their employees in the course and scope of their duties (for instance, accidents that injure others) whereas no such liability rests in respect of the actions of independent contractors;
• Although employers are obligated to deduct income tax from the remuneration of their employees, true independent contractors are personally responsible to pay their own income tax directly to SARS. Whether a person is truly an independent contractor, as opposed to an employee, would depend on the circumstances and facts of a specific relationship. Where most of the following factors are present, the person concerned is likely to be an employee:
• The manner in which the person works is subject to the control or direction of the person to whom services are rendered;
• The person’s hours of work are subject to the control or direction of the person to whom services are rendered;
• In the case of a person who renders service to an organisation, the person forms part of that organisation;
• The person has worked for the person to whom services are rendered for an average of at least40 hours a month over the past three months;
• The person is economically dependent on the person to whom services are rendered.
• The person is provided with tools of trade or work equipment by the person to whom services are rendered;
• The person only works for, or renders service to, one organisation;
• The object of the contract between the parties is for the person to render personal services;
• The organisation to which services are rendered may choose when to make use of the services of the person;
• The person is obligated to perform lawful commands and instructions of the organisation to which services are rendered;
• The contract between the parties terminates on the death of the person who renders the services;
• The organisation to which the services are rendered provides training to the person in respect of the business’s methods;
• The person receives fixed payments from the organisation to which services are rendered over defined consistent periods, regardless of output or results provided;
• The person belongs to the organization’s pension fund or medical aid scheme (or qualifies for any other type of employee benefit provided by the organisation). In determining whether a person is an employee our courts and the CCMA are more interested in the factual nature of the relationship between parties, than the specific label attached to the relationship by the contract.
If an employer treats a person as an independent contractor under circumstances where the person is in reality an employee, the employer is placed at risk since it is not providing the employee with benefits employees are legally entitled to. Also, no income tax will be deducted from the person’s remuneration, exposing the employer to tax problems.
Furthermore, on termination of the person’s services the employer might face a claim of unfair dismissal since it in all probability would not have followed the correct legal procedures in terminating the person’s services.
For further information on Unfair Dismissal or any labour related matters, you can contact Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
CCMA CASE LOAD
May 4th
In the 12 months to March 31, 2011, the Cape town CCMA received 18660 cases referred to it. This amounts to 12 percent of the national case.
Alleged unfair dismissals continue to dominate the CCMA’s case load, amounting to, as has historically been the case, 80 percent of all cases referred. The remaining 20 percent of labour disputes referred relate to such issues as alleged unfair labour practices, wage disputes, trade union rights and severance (retrenchment) pay disputes.
Nationally, the industry sectors in which labour disputes arise are typically retail (15 percent), business/ professional services (14 percent) , safety and security (12 percent), domestic workers (9 percent) and building / construction (9 percent).
The Cape Town CCMA has a conciliation settlement rate of 67.6 percent – significantly higher than the national average for the same period (62 percent). This means that approximately two-thirds of the labour disputes referred to the Cape Town CCMA do not proceed to arbitration, but are in fact “settled”, which ordinarily means that the employer pays the erstwhile employee who has referred the dispute a sum of money rather than proceed with the case.
Employers would be tempted to settle a case at conciliation either because they understand that their case is poor and they could loose at arbitration, or because it is felt that the payment of a settlement at conciliation avoids the inconvenience of proceeding to arbitration; this is sometimes referred to as payment “to avoid the hassle factor of arbitration”.
In Cape town the comparative “arbitration awards in favour of” statistics is more equally balanced, with employees winning 50,9 percent of arbitration cases heard, and employees winning the remaining 49.1 percent.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
Domestic Workers Wages 2011 – Wage Tables
Apr 9th
Minimum Wage for Domestic Workers 2011
The minimum wage for domestic workers in 2011 is described in the Domestic Workers Act. This act sets out Minimum Wages for Domestic Workers in South Africa and specifies working conditions such as hours of work, overtime pay, salary increases, deductions, annual and sick leave. It applies to the estimated 1 to 1.5 million workers in the country who work as domestics, gardeners, childminders (including drivers of children) and those who look after the sick, aged or disabled in private homes. The legislation also covers Domestic Workers who work as independent contractors
What are the minimum wage for domestic workers in 2011?
A domestic worker is a gardener, driver or person who looks after children, the aged, sick, frail or disabled in a private household, but not on a farm. This is the view taken in the Unemployment Insurance Contributions Act, 2002 (Act No. 4 of 2002).
The Domestic Workers’ Act for domestic workers wages 2011
The Domestic Workers’ Act sets out minimum domestics workers wages 2011 and specifies working conditions such as hours of work, overtime pay, salary increases, deductions, annual and sick leave.
This legislation also lists the urban areas (classified as A Areas) where one minimum wage applies. A second minimum wage applies to domestic workers in non-urban areas (B Areas).
To whom does the Domestic Workers Act apply?
To the estimated 1 to 1.5 million workers in the country who work as domestics, gardeners, childminders (including drivers of children) and those who look after the sick, aged or disabled in private homes. The legislation also covers domestic workers who work as independent contractors.
Table 1 Minimum domestic workers wages 2011is for domestic workers who work more than 27 ordinary hours per week
Area A
Bergrivier Local Municipality, Breederivier Local Municipality, Buffalo City Local Municipality, Cape Agulhas Local Municipality, Cederberg Local Municipality, City of Cape Town, City of Johannesburg Metropolitan Municipality, City of Tshwane Metropolitan Municipality, Drakenstein Local Municipality, Ekurhulen Metropolitan Municipality, Emalahleni Local Municipality, Emfuleni Local Municipality, Ethekwini Metropolitan Unicity, Gamagara Local Municipality, George Local Municipality, Hibiscus Coast Local Municipality, Karoo Hoogland Local Municipality, Kgatelopele Local Municipality, Khara Hais Local Municipality, Knysna Local Municipality, Kungwini Local Municipality, Kouga Local Municipality, Langeberg Local Municipality, Lesedi Local Municipality, Makana Local Municipality, Mangaung Local Municipality, Matzikama Local Municipality, Metsimaholo Local Municipality, Middelburg Local Municipality, Midvaal Local Municipality, Mngeni Local Municipality, Mogale Local Municipality, Mosselbaai Local Municipality, Msunduzi Local Municipality, Mtubatu Local Municipality, Nama Khoi Local Municipality, Nelson Mandela, Nokeng tsa Taemane Local Municipality, Oudtshoorn Local Municipality, Overstrand Local Municipality, Plettenbergbaai Local Municipality, Potchefstroom Local Municipality, Randfontein Local Municipality, Richtersveld Local Municipality, Saldanha Bay Local Municipality, Sol Plaatjie Local Municipality, Stellenbosch Local Municipality, Swartland Local Municipality, Swellendam Local Municipality, Theewaterskloof Local Municipality, Umdoni Local Municipality, uMhlathuze Local Municipality and Witzenberg Local Municipality.
Domestic Workers Wages 2011
Minimum rates for the period 1 December 2008 to
30 November 2009 Minimum rates for the period
1 December 2009 to
30 November 2010 Minimum rates for the period
1 December 2010 to 30 November 2011
Hourly Rate (R ) 6.88 Hourly Rate (R ) 7.40 Hourly Rate (R ) 7.72
Weekly Rate (R ) 309.60 Weekly Rate (R ) 333.13 Weekly Rate (R ) 347.79
Monthly Rate (R ) 1340.95 Monthly Rate (R ) 1442.86 Monthly Rate (R ) 1506.35
Wages in Area A will be subjected to a CPIX plus 1% increase for the period 1 December 2010 to 30 November 2011. The CPI (excluding Owners Equivalent Rent) six weeks prior to 1 December 2010 has been 3,4%.This means that wages for this period was calculated as follows: CPI (excluding owners’ equivalent rent) plus 1% for Area A = 3,4% + 1% =4.4%.
Domestic Workers Wages 2011
Area B
Areas not mentioned in Area A
Minimum rates for the period 1 December 2008 to 30 November 2009 Minimum rates for the period 1 December 2009 to 30 November 2010 Minimum rates for the period 1 December 2010 to 30 November 2011
Hourly Rate (R ) 5.63 Hourly Rate (R ) 6.11 Hourly Rate (R ) 6.44
Weekly Rate (R ) 253.35 Weekly Rate (R ) 275.14 Weekly Rate (R ) 290.00
Monthly Rate (R ) 1097.40 Monthly Rate (R ) 1191.78 Monthly Rate (R ) 1256.14
Wages in Area B will be subjected to a CPIX plus 2% increase for the period 1 December 2010 to 30 November 2011. The CPI (excluding Owners Equivalent Rent) six weeks prior to 1 December 2010 has been 3,4%.This means that wages for this period was calculated as follows: CPI (excluding owners’ equivalent rent) plus 2% for Area B = 3,4% + 2% =5.4%.
Table 2 Minimum domestic workers wages 2011 for domestics who work 27 ordinary hours per week or less
Area A
Bergrivier Local Municipality, Breederivier Local Municipality, Buffalo City Local Municipality, Cape Agulhas Local Municipality, Cederberg Local Municipality, City of Cape Town, City of Johannesburg Metropolitan Municipality, City of Tshwane Metropolitan Municipality, Drakenstein Local Municipality, Ekurhulen Metropolitan Municipality, Emalahleni Local Municipality, Emfuleni Local Municipality, Ethekwini Metropolitan Unicity, Gamagara Local Municipality, George Local Municipality, Hibiscus Coast Local Municipality, Karoo Hoogland Local Municipality, Kgatelopele Local Municipality, Khara Hais Local Municipality, Knysna Local Municipality, Kungwini Local Municipality, Kouga Local Municipality, Langeberg Local Municipality, Lesedi Local Municipality, Makana Local Municipality, Mangaung Local Municipality, Matzikama Local Municipality, Metsimaholo Local Municipality, Middelburg Local Municipality, Midvaal Local Municipality, Mngeni Local Municipality, Mogale Local Municipality, Mosselbaai Local Municipality, Msunduzi Local Municipality, Mtubatu Local Municipality, Nama Khoi Local Municipality, Nelson Mandela, Nokeng tsa Taemane Local Municipality, Oudtshoorn Local Municipality, Overstrand Local Municipality, Plettenbergbaai Local Municipality, Potchefstroom Local Municipality, Randfontein Local Municipality, Richtersveld Local Municipality, Saldanha Bay Local Municipality, Sol Plaatjie Local Municipality, Stellenbosch Local Municipality, Swartland Local Municipality, Swellendam Local Municipality, Theewaterskloof Local Municipality, Umdoni Local Municipality, uMhlathuze Local Municipality and Witzenberg Local Municipality.
Minimum rates for the period 1 December 2008 to 30 November 2009 Minimum rates for the period 1 December 2009 to 30 November 2010 Minimum rates for the period 1 December 2010 to 30 November 2011
Hourly Rate (R ) 8.12 Hourly Rate (R ) 8.74 Hourly Rate (R ) 9.12
Weekly Rate (R ) 219.24 Weekly Rate (R ) 235.90 Weekly Rate (R ) 246.30
Monthly Rate (R ) 949.97 Monthly Rate (R ) 1022.17 Monthly Rate (R ) 1067.15
Wages in Area A will be subjected to a CPIX plus 1% increase for the period 1 December 2010 to 30 November 2011. The CPI (excluding Owners Equivalent Rent) six weeks prior to 1 December 2010 has been 3,4%.This means that wages for this period was calculated as follows: CPI (excluding owners’ equivalent rent) plus 1% for Area A = 3,4% + 1% =4.4%.
Area B
Areas not mentioned in Area A
Minimum rates for the period 1 December 2008 to 30 November 2009 Minimum rates for the period 1 December 2009 to 30 November 2010 Minimum rates for the period 1 December 2010 to 30 November 2011
Hourly Rate (R ) 6.65 Hourly Rate (R ) 7.22 Hourly Rate (R ) 7.60
Weekly Rate (R ) 179.55 Weekly Rate (R ) 194.99 Weekly Rate (R ) 205.52
Monthly Rate (R ) 778.00 Monthly Rate (R ) 844.90 Monthly Rate (R ) 890.52
Wages in Area B will be subjected to a CPIX plus 2% increase for the period 1 December 2010 to 30 November 2011. The CPI (excluding Owners Equivalent Rent) six weeks prior to 1 December 2010 has been 3,4%.This means that wages for this period was calculated as follows: CPI (excluding owners’ equivalent rent) plus 2% for Area B = 3,4% + 2% =5.4%.
Please contact Bernard Reisner on bernard@capelabour.co.za for questions about the minimum wage for domestic workers in 2011
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
Download our Domestic Worker Contract
What is Unfair Labour Practice?
Apr 7th
Unfair Labour Practice
Unfair Labour Practice as defined by Department of Labour
Unfair Labour Practice means any unfair act or omission that arises between an employer and an employee involving:
a) Unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
b) The unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;
c) A failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and
d) An occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in the Act.
Unfair Labour Practice – Promotion
Many arguments arise in the workplace regarding promotion to an existing post, perhaps upon retirement or resignation of the existing incumbent, or even to a newly created post.
Most employees are of the opinion that because they are already employed by the employer, or because they are already employed in that particular department, or have a number of years experience in the post just below the vacant post, that they are entitled to be promoted, or that they have an entitlement to receive preference above any other applicants. They often feel therefore that it is unfair labour practice when the dont get the position
This is not so. An employee does not have any legal entitlement to be promoted to a higher post, therefore it cannot be seen as Unfair Labour Practice. If there are conditions contained in the employment contract regulating promotion, then of course the employee could make a claim in terms of those conditions.
Employers are perfectly free to choose who they will appoint to any vacant post, whether it is a promotion or not. So this should not be seen as unfair labour practice
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
Cape Labour & Industrial Consultants, headed by Bernard Reisner, has provided Employment Law (Industrial Relations) services to employers across all market segments and industries since 1987.
Cape Labour is service-orientated and strives to provide its clients with professional and cost effective advice, both in respect of the applicable laws and of a practical nature in order to present holistic solutions to all Labour related matters and unfair labour practice.
Bernard Reisner combines expertise in his field, and an outstanding knowledge of Labour law principles and issues, with a superb ability to communicate and meet his clients’ unique needs.
Bernard has a unique insight into all aspects of workplace issues and is able him to assist his clients with the best possible advice from a legal and practical perspective.
For further information on unfair labour practice any other labour related matters, you can contact Bernard Reisner (Contact Details above)
CCMA Contact Details
Apr 5th
About CCMA Cape Town
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.
CCMA Cape Town
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.
CCMA Contact Details
Tel: (021) 469-0111
Fax: (021) 465-7193/7, 465-7187/462-5006
Email: ctn@ccma.org.za
Physical Address: CCMA House
78 Darling Street, Cape Town 8001
Postal Address: Private Bag X9167, Cape Town 8000
Directions to CCMA Cape Town: Right into N2 (Settlers) – Continue Along N2 Highway – Right into Eastern Boulevard – Right into Strand Street- Continue Along Strand Street (R102) – Left into Buitenkant Street (M59) – Left into Darling Street (M4)
View Regional CCMA Contact Details :
CCMA Contact Details
For further information on Unfair Labour Practice or any labour related matters, you can contact Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
CCMA ANNUAL REPORT 2009/2010
Mar 28th
Functions of the CCMA
The CCMA’s statutory functions are set in the Labour Relations Act, 66 of 1995 (the LRA), are divided into those which are compulsory and those which are discretionary.
The CCMA’s compulsory statutory functions are to –
• Conciliate workplace disputes;
• Arbitrate certain categories of disputes that remain unresolved after conciliation;
• Establish picketing rules;
• Facilitate the establishment of workplace forum and statutory councils;
• Compile and publish information and statistics about our activities;
• Accredited and consider applications for subsidy by bargaining councils and private agencies; and
• Provide support for the Essential Services Committee.
The CCMA’s discretionary statutory functions are to –
• Supervise ballots for unions and employer organisations;
• Provide training and information relating to the primary objective of the LRA;
• Advise a party to a dispute about the procedures to follow;
• Offer to resolve a dispute that has not been referred to the CCMA; and
• Publish guidelines on any aspect of the LRA and to make rules.
During the 2009/2010 financial year, a total of 153 657 disputes (cases) were referred to the CCMA, an average of 617 new referrals every working day.
Unfair dismissal disputes continued to account for the largest percentage of issues in dispute. During the financial year under review, these disputes accounted for 81% of the total cases received.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
CCMA | Commission for Conciliation Mediation and Arbitration
Mar 10th
The CCMA (Commission for Conciliation, Mediation and Arbitration) is an independent body established by law to carry out a range of dispute resolution and prevention functions. The CCMA’s vision is to promote social justice and economic growth through the transformation of workplace relations.
WHAT DOES THE CCMA DO?
The CCMA:
• Conciliation workplace disputes;
• Arbitrates disputes that remain unresolved after conciliation;
• Offers advice and training on a variety of subjects, including:
- How best to process cases and use the CCMA’s dispute resolution processes,
- Model workplace procedures and their application resolution of workplace conflict,
- Establishment of collective bargaining structures,
- Designing and establishing workplace forums,
- Employment equity programmes,
- Workplace restructuring;
• May offer to resolve disputes prior to referral to the CCMA in certain circumstances;
• Compiles and publishes information and statistics about its activities;
• Considers application for accreditation and subsidy of bargaining councils and private agencies.
HOW DO I REFER A DISPUTE TO THE CCMA?
If it is a dismissal dispute, make sure you complete the required forms and refer your dispute to the CCMA for conciliation within 30 days of the date of dismissal or, if it is later date, within 30 days of the Employer finally deciding to dismiss you or uphold your dismissal. If it is an unfair labour practice dispute, refer your dispute to the CCMA within 90 days of the unfair labour practice or with in 90 days of you becoming aware of what you believe is an unfair labour practice.
The 30 or 90 days are calculated by counting all days, including weekends and public holidays. Ensure that you refer your case in time. Complete and serve the CCMA referral form (LRA 7.11) correctly. You may ask your nearest CCMA office to help you complete the form.
HOW TO SERVE AND FILE THE CCMA REFERRAL FORM?
The completed CCMA referral form must first be sent to the other party. This can be done in the following ways:
- By handing a copy of the form to the other party;
- By faxing the form to the other party
- By sending a copy of the form to the address of the other party by registered mail.
When filing the referral form the CCMA, proof that you have sent the form to the other party must be attached. This proof can consist of:
- If hand delivered – a copy of the receipt signed by or on behalf of the other party, which must include the name and the title of the person who received the form and the place, time and date of receipt;
- If faxed- a copy of the fax transmission report showing that all the pages of the form were faxed to the other party;
- If sent by registered post – a copy of the registered mail slip.
PROCESSES CONDUCTED BY THE CCMA
Pre-conciliation: This is an informal telephonic hearing. A commissioner will contact the parties and will try to resolve the matter telephonically.
Conciliation: A conciliation hearing is a process where commissioner (or a panelist in the case of a bargaining council or agency) meets with the parties in a dispute and explores ways to settle the dispute by agreement.
Arbitration: Arbitration is a more formal process than conciliation. The commissioner investigates the demands and counter demands of both parties and decides on a final settlement in the form of an arbitration award. The award is imposed on the parties after hearing the evidence. The award is legally binding on both parties.
Con-arb: The con-arb process is a two stage process. The first stage of the process is the conciliation process (explained above). Should the matter not be resolved in conciliation, the arbitration stage proceeds immediately thereafter. Parties a con-arb are therefore advised to attend the hearing with all their witnesses and the documentary evidence they will need to prove their case. A party to a con-arb process may object to the con-arb hearing by filing or sending a letter to the CCMA and the other party stating that they object to the con-arb process. This objection must be delivered 7 days before the hearing.
WHAT TO EXPECT AT CONCILIATION HEARING OR PRE-CONCILIATION?
Conciliation is a private and confidential informal process. An independent commissioner assists the disputing par ties to reach an agreement. It is a quick and inexpensive way of settling disputes.
During the process, parties are allowed to share information and suggest ways of settling the dispute themselves. The commissioner may also suggest and explore settlement ideas.
In a conciliation hearing you may attend or be represented only by:
- A director or employee of that party; or
- Any member, office bearer or official of your registered trade union or employers’ organisation.
You cannot be represented by a consultant or an attorney at conciliation.
The CCMA might first try to resolve the issue by telephone be prepared to participate in a telephonic conciliation.
WHAT TO EXPECT AT AN ARBITRATION OR CON-ARB HEARING?
Arbitration is a more formal process. The commissioner makes a decision on the outcome of the dispute. The decision is given to the parties in writing in the form of an arbitration award. The award is made after hearing evidence from the parties, and is binding.
Prior to the arbitration hearing, prepare the evidence you will lead. Decide which issues are in dispute, which issues are not and the relief you want. Put together all the important documents and make copies for the arbitrator and the other party.
At the arbitration hearing you may attend in person or be represented only by a legal practitioner; a director or employee of the party; or any member, office bearer or official of your trade union or registered employers’ organisation.
If the dispute is about the fairness of a dismissal, the parties my not be represented by a legal practitioner unless the commissioner and all other parties agree, or the commissioner decides that it would not be fair to expect a party to deal with the dispute without a legal representation.
During the process, you and the other party will be allowed to call witnesses and cross-examine each other’s witnesses.
Con-Arb means that the conciliation and arbitration are held together, with the arbitration stage following immediately after the conciliation stage of the process. Therefore, if a con-arb has been scheduled, the arbitration hearing will be held immediately after the conciliation, without you having to fill in a separate CCMA form requesting arbitration.
If a con-arb has not been scheduled, and settlement is not reached at the conciliation hearing and you want to continue with your case, you need to complete the CCMA referral form requesting arbitration.
• A con-arbwill always be scheduled if an employee on probation wants to refer a dismissal or unfair labour practice dispute.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
For nay help on CCMA cases please contact Bernard Reisner on details above – CCMA Forms can be downloaded here