Layoffs and new law are perfect storm for CCMA
New head inherits an arbitration body grappling with key employment changes amid SA’s jobs crisis
SOUTH Africa’s premier dispute resolution body, the Commission for Conciliation, Mediation and Arbitration, is bracing itself for a massive increase in the number of referrals as companies retrench, says its new director, Cameron Morajane.
Some 687 cases a day are already being referred to the CCMA, which represents an increase of almost 23% over the past five years.
And the deteriorating economic situation, together with last year’s labour law amendments, mean this number will rise sharply.
“We expect an upsurge of retrenchments,” says Morajane, 45, an attorney who was head of legal services at the National Education Health and Allied Workers Union for nearly five years before becoming a senior commissioner at the CCMA in 2012.
“A number of major companies are heading towards very serious, large-scale retrenchment.”
Morajane’s appointment was announced last week.
His predecessor, Nerine Kahn, stepped down following allegations of maladministration after an investigation revealed irregularities regarding a R66-million lease agreement the CCMA entered into for its Durban office.
Morajane says the “primary focus” for the CCMA will be to gear up to meet the expected surge in cases.
The CCMA is already under severe pressure as it tries to cope with the consequences of last year’s amendments to the Labour Relations Act and Basic Conditions of Employment Act that entitle contract workers to be treated as permanent employees, receiving the same rights and benefits, if they have been with a company for six months.
According to complaints received by the CCMA, employers responded by dismissing their contract workers “in large numbers”, says Morajane.
Just before the promulgation of the Labour Relations Act, employers made preparations that resulted in serious contractual changes. Workers complained that they were “forced to sign contracts or make certain agreements or else they get dismissed”.
The amendments are seen by employers as creating a process that is costly and creates serious human resource headaches, says Morajane.
Most applications to the CCMA are from workers who say they have been fixed-term contract employees working for a labour broker, and now believe they should be permanent employees.
The CCMA can’t yet say how many part-time workers have converted to permanent employees in the year since the LRA amendment became law.
He says the amendments have created a high level of confusion — not least among workers hired by labour brokers about who their actual employers now are.
“Most of the time people didn’t care, but because of the amendment and temporary employment services issues, it has become important because they must bring the right party to the CCMA,” says Morajane.
There are now all sorts of “demarcations” in terms of the amended acts between categories of employment (temporary, fixed-term, those employed by labour brokers) that have suddenly become very important.
Observers warned at the time that the amendments were too vague and complicated, and Morajane agrees.
The CCMA has had to create specialist panels of commissioners trained specifically to deal with these cases, he says, “because of the complexity of the legal issues involved”.
The amendments have created confusion about jurisdictions between the CCMA and the Labour Court, with the CCMA recently being ruled against in the court for exceeding its jurisdiction.
It was slapped down by the Labour Court for issuing a writ of execution against an employer. It was told this was the duty of the court.
Morajane is clearly not amused.
“The intention of the amendments was to enable us to do so, so that we can expedite the process.
“Now somebody has challenged that and said: ‘ No you can’t, you’re not a court of law.’
“So the very purpose, which was to expedite and make it inexpensive, has been defeated be- cause people must go to the Labour Court for such issues. That was not the intention.”
He says there is a “list” of unintended consequences flowing from the amendments.
Morajane agrees with those who feel that the South African workplace is too litigious. There are too many referrals to the CCMA, he says.
This is an ironic admission because he himself has been at the forefront of “conscientising” workers about their rights.
“We have spent a lot of money educating them about the rights they have,” he says.
He concedes that “this is partly why we’re seeing an upsurge in cases”.
Many feel the pendulum has swung too far and that workers now have so many rights that it is making life extremely difficult for employers.
Do workers have too many rights? “They have a lot of rights,” he says.
He acknowledges concerns that “dismissal protection” is hobbling the economy and hurting small businesses.
This cannot be ignored given the high unemployment rate and the fact that the small and medium business sector provide most of the jobs in South Africa, he says. “If we can intervene to cre- ate an environment that is good for employers and employees we will do that.”
To try to staunch the flood of referrals and cut down on litigation, he says, the CCMA has developed a new process to encourage mediation in the workplace to “try to resolve disputes at the workplace before they come to us”.
It is still being piloted, but he believes it will have “a significant impact in the labour market. We intend to run with this at speed.”
There is a need for more balancing of the interests of employers and employees, he says, but the knowledge that they can get a hearing at the CCMA is an important safety valve for workers.
He recounts a case from when he was head of legal resources at the union, when a suspended employee grabbed a security guard’s gun and shot managers.
“If he’d known he could have his case heard at the CCMA this might not have happened,” he says.
While the CCMA boasts a settlement rate of 76%, there have been complaints that commissioners bully people to accept certain awards or settlements.
Morajane says the CCMA has invested in a new video system so it can log into any hearing room and see what’s going on.
“The difficulty we have sometimes is that when we’re in a conciliation it is a private process that is not on record. So when there are complaints about being bludgeoned into a settlement, it is difficult to prove.”
Former director Kahn furious- ly denounced claims by highly respected Chamber of Mines chief negotiator Elize Strydom during the ruinous strikes on the platinum mines in 2014 that CCMA mediators did not have appropriate levels of expertise.
“There’s always a need to upskill as environments change,” says Morajane.
“We are facing a huge scale of dismissals that are coming ... Our interest is to see people at work and businesses flourishing. For us to meet that need we do assessments to look at the skills levels of our commissioners. To the extent that there is a lack, we will upskill.”
Major companies are heading towards very serious, large-scale retrenchment We have spent a lot of money educating workers about the rights they have