LABOUR LAW EXPERTS

CALL FOR THE RETURN TO CCMA’S ORIGINAL MANDATE OF EASY AND EFFECTIVE DISPUTE RESOLUTION

TIME HAD COME FOR THE LABOUR LAW TO BE REDESIGNED TO MEET THE ORIGINAL AIM OF ENSURING SPEEDY, COST-EFFECTIVE AND INFORMAL RESOLUTION OF CASES.

So doing would meet the wishes of the drafters of the labour Relations Act (LRA) that the legislation must be “easily accessible and understandable to workers.” This sentiment ran like a common thread at the Commission for Conciliation, Mediation and Arbitration (CCMA) annual labour conference held in Boksburg, near Johannesburg recently.

The conference was held under the theme: 25 years in pursuit of social justice and equity. It brought together several labour law experts, a representative of Business Unity South Africa (BUSA) as well as South African Medical Research Council (SAMRC).

Basheer Waglay, judge president of the labour Appeal Court and the labour court of South Africa, said way back in 1995 when the drafters put their heads together, they envisaged a “progressive and protective system with informal and inexpensive procedures.” He said the drafters of the LRA wanted to provide simple procedures for the resolution of disputes in a way which would be speedy. “If the law keeps workers waiting for ever, where is justice? Remember that at the time of the drafting of the new LRA, our labour laws were full of procedural stiffness.”

The judge president was speaking on the topic: Has the labour court delivered on its mandate over the last 25 years? He said:” The LRA came into being the same year (1996) that our constitution was adopted. It was an instrument for management and labour to find ways of engagement. Sadly, the expected return has not been forthcoming. “Too many workplaces remain conflictdriven rather than relationship-driven.

All this happens in an economy that’s shedding jobs. Employers are not blameless: The juridification of workplace discipline remains the norm. As to the labour court, we have come to accept that there are not enough judges to adjudicate matters. Equally frustrating is to see that lawyers are not shy to bring matters to court that have no merits. These lead to clogging of the system.” Judge Waylay said: “The labour court procedures today are as formal as those of the High court. We are still waiting for amendments of a technical nature to the LRA. The goal of an efficient dispute resolution system has not been achieved. The separation of the labour court and labour Appeal Court is necessary. The problem with the Dispute Resolution mechanism is systemic in nature.” He said there were more than 1700 matters awaiting court dates with trails being enrolled for hearing in the first half of 2024. He called on labour and business to work together to fight corruption so that the country can regain its former glory. Sadly, the labour movement is in dire straits. Others are internally divided instead of dealing with workplace challenges. We also see major splits within the business community. There are major challenges in the global economy brought about by the Covid–19 pandemics and the war in Ukraine.

“The 4th Industrial Revolution has profoundly changed our world with the social and economic impact thereof to be felt in years to come. “Unemployment and inequality must be tackled with greater urgency. We need the help of academics to draw up plans to deal with this problem. What good is there in having the best labour laws when half the nation is unemployed? We need to map out a route to a South African living wage and in designing and revising our labour laws, we should see how can we create a better society that is able to shine the torch of transparency in dark corners.

The solution for our labour resolutions, lies in:

• Ensuring that the CCMA is properly resourced; • Discouraging the juridification of workplace disciplinary procedures; • Having a legitimate presentation on right not to be unfairly dismissed; • Incorporating technological advancement in courts; • Seeing to it that only cases that should be referred to labour court are forwarded.

As things stand, the court is sitting with 35 percent of cases that should not have been referred.

Charles Nupen, executive Chairman of StratAlign, said the significance of the CCMA in resolving disputes could not be overemphasised. He said the case load of the organisation had grown exponentially with figures showing that it received 190 000 referrals in 2019- the largest in the world. “It’s noteworthy that behind every referral is a person and behind every person is a family.” “Too many workplaces remain conflict-driven instead of being relationship –driven. Employers and unions need support to embark on a new relationship path,” he said.

Paul Benjamin, Director: Cheadle Thompson and Haysom Inc – who was evaluating the effectiveness of the CCMA over 25 years, said the fact that the labour court in Johannesburg was already setting matters for 2024 tells there are huge problems on the horizon. Are we not reproducing the type of problems the LRA was meant to deal with?

Employment and Labour Minister-Thulas Nxesi said in relation to labour dispute resolution, institutions and processes draw their mandate from Section 27 of the Constitution and the LRA. On balance – and I see this claim will be subject to critical scrutiny at this conference – but my assessment would be that the CCMA has delivered on the implementation of this legislation – strengthening workers’ rights and supporting social justice. One measure of the effectiveness of legislation and the CCMA is through public awareness. There can be few employers and employees - perhaps in some remote area - who are not acquainted with the terms ‘unfair labour practice’ and ‘unfair dismissal’ - as well as the role that the CCMA plays in facilitating a settlement.

Prior to introduction of the LRA, dispute resolution was not institutionalised – workers and unions had to fight for the rights of workers before they could focus on bargaining for conditions of service. The LRA and having institutions such as the CCMA, Labour Courts, and bargaining councils etc. to resolve labour disputes – entrenched rights and processes which allowed the parties to bargain collectively in a stable and organised fashion. Even so, we must always be interrogating issues of accessibility to these institutions as well as compliance with legislation. One specific trend I want to raise with you is the paradox – that whilst membership of registered unions has increased in recent years, union representativity in bargaining councils dropped. Between 2013/14 and 2020/21 union membership increased from three and quarter million to over 4 million, whilst the total number of registered unions rose from 203 to 220.

My Department commented that “one of the unintended consequences of the freedom of association espoused by the 1995 Labour Relations Act was the proliferation of trade unions.” I flag this because I see that issues of freedom of association feature in one of your sessions tomorrow. Taken together with a prevailing ‘majoritarianism’ this tends to mean that members of splinter unions are not directly represented in bargaining chambers with the result that the collective representation of workers is weakened. This matter I have raised with various unions with the suggestion that they need to find modalities to unite all workers including those in splinter unions – difficult as that might be.

It appears, however, that there is fierce competition for membership to the point where some trade unions are using collective bargaining as a recruiting turf for membership by portraying their rivals as ‘sell-outs’ and by resorting to intransigent tactics. I need to mention that this is an important area where the CCMA plays a role in facilitating the settlement of long and damaging strikes.

There can be no doubt that the growing calls by eminent persons for the CCMA to return to its original foundational principle have gained ground.