CCMA 2020/21 Annual Performance Plans; with Minister and Deputy Minister

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Employment and Labour

12 May 2020
Chairperson: Ms M Dunjwa (ANC); Mr M Rayi (ANC, Eastern Cape)
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Meeting Summary

Audio: CCMA & CF 2020/21 Annual Performance Plans

Annual Performance Plan (APP) of Government Departments & Entities 20/2021

The Commission for Conciliation, Mediation and Arbitration (CCMA) briefed the Joint Committees on their 2021 Annual Performance Plan in a virtual meeting, and warned that between three and seven million workers could lose their jobs, depending on the trajectory of the COVID-19 lockdown and the recovery of the economy.

The Minister said the CCMA had already received 17 large-scale retrenchment applications in terms of section 189 of the Labour Relations Act, and 151 smaller scale retrenchments, during the lockdown. The larger ones were just the tip of the iceberg. Small and Medium Enterprises (SMEs) had taken a hammering as a result of the pandemic. He expected there to be a lot of litigation over the planned retrenchments.

With its offices due to reopen on Monday 18 May, the CMMA was already planning for these eventualities by adopting a decentralised model to cope with the increased workload. It was decentralising its call centres and looking for local venues to hold meetings so that parties did not have to travel long distances to access the services.

The Minister responded to the call by the Congress of South African Trade Unions (COSATU) for the government to ease the lockdown as soon as possible, and said the government had to be first guided by science and health experts. The strong lobby for opening the economy paid very little attention to the health of the workers. They had to keep a balance between opening the economy and the health of the workers. It was not about what COSATU wanted, but about facts on the ground.

The CCMA reported that last year it had received 221 547 cases, including 7 715 involving the national minimum wage, and 20 698 were still on the conveyer belt. During the lockdown, it had received 1 669 matters in April, and 849 so far in May. As it had received 16 248 in March, this meant that the level had dropped to 10% of what they normally received in a month, which was because the majority of its users were walk-ins.

To deal with the projected increased case load now and in the future, the CCMA had introduced web-based hearings which were reliant on Information Communication Technology (ICT) systems. In the facilitation of some disputes, like the South African Airways (SAA) situation, they were also making use of Zoom and Microsoft Teams. However, because this was something that was still new, it was based on parties agreeing to do so. Commissioners were being trained to become specialised in handling different types of hearings. The main challenge it faced was dealing with labour issues involving farm workers and domestic workers, as its place of work was also private property, and access was often restricted. It was also difficult to help those in rural areas to understand their legislated rights. The Department was trying to overcome these challenges through a multi-disciplinary approach.

Meeting report

Minister’s overview

Mr Thulas Nxesi, Minister of Employment and Labour, said the Department was now caught between plans based on pre-COVID 19 data and budgets, and the fact that they were now in the middle of the pandemic. It was important for reasons of compliance and accountability that departments and entities submitted and presented their existing plans. This should be done being mindful of the need to fundamentally review these plans in the light of the new budget and priorities.

The Commission for Conciliation, Mediation and Arbitration (CCMA) had already received 17 large-scale retrenchment applications in terms of section 189 of the Labour Relations Act, and 151 smaller scale retrenchments. The larger ones were like the tip of the iceberg. Small and medium enterprises (SMEs) had taken a hammering as a result of the pandemic. With offices due to open on Monday 18 May, the CMMA was already planning for these eventualities by adopting a decentralised model to cope with the increased workload. This involved decentralising the call centres and looking for local venues to hold meetings so that parties did not have to travel long distances to access the services. The Department would help where it could with the district and provincial offices. They may need to ask for additional space from other organs of government.

Also to prepare for these disputes, the regulations had been amended to allow for the bargaining councils and leadership of trade union movements to mediate with some limited disputes so that they did not become full-blown disputes. He was expecting there to be a lot of litigation over the planned retrenchments -- probably less over substantive issues than procedural ones. The CCMA was being asked to increase its caseload, but this was going to have budgetary implications. The CCMA was already labouring under the increased workload which had arisen following the implementation of the minimum wage. Moreover, working with the Departments of Agriculture and Justice had seen the CCMA agreeing to take on additional responsibilities. All this took a toll on their time and budget, so they needed the Department’s support.

He lastly referred to the article by Jeremy Cronin titled, “There is no going back, but where are going to?” He said this was the debate that they were all going to be having in the coming weeks.

Co-Chairperson Rayi commented that he was happy that the Minister was there so that they could fight for the budget of the CCMA to be increased, given that there would be a lot of job cuts as a result of COVID 19.  

CCMA: Annual performance plan

Mr Cameron Morajane, Director: CCMA, presented the programmes which they were going to use to support their strategic pillars.

Programme 1: High-performance institutions

The purpose was for the CCMA to successfully deliver on its objectives through a cohesive, well-structured organisation, in which people, processes, and systems performed optimally. As a publicly accountable entity, the focus would continue to be on clean administration and resource optimisation. Focus was on the development of human and organisational capacity towards building a world-class institution. This required a series of strategic human resource interventions aimed at attracting, developing and retaining talent. By its very nature, the CCMA was an information-intensive organisation, requiring strong, reliable and integrated Information Management Systems, underpinned by the best range of Information Technology (IT) platforms, leveraging on opportunities presented by the fourth industrial revolution (4IR) to sustain a high performing institution.

Programme 2: Proactive and relevant labour market intervention

The purpose was to respond appropriately and timeously to labour market developments through focused proactive and reactive labour market interventions for successful dispute prevention and management and workplace transformation whilst promoting and supporting dialogue, democratisation, best employment practices and relationship building in workplaces.

Programme 3: Special interventions and support

The aim of this programme was to respond to special mediation and arbitration requests that supported economic development and labour market stability.

Programme 4: Efficient and quality dispute resolution and enforcement services

The objective was to advance accessible, efficient and quality resolution and enforcement mechanisms. To sufficiently address the growing inequality in the labour market due to external factors changing the nature of work, a proactive approach to the advancement of social justice was required to adequately maintain social cohesion, contribute to labour peace and human advancement and progress. The CCMA would focus on initiatives that would ensure increased and effective access to the CCMA in vulnerable areas and amongst vulnerable groups through collaboration with strategic partners and increased access points, as well as initiatives that would enhance the efficiency of service delivery, quality of settlements and enforceability of awards.

Programme 5: Effective strategy management and governance.

The purpose was to provide a catalytic environment for successful strategy implementation, operational excellence, innovation and good governance.

Discussion

Dr M Cardo (DA) commented that the Minister had said there might be a loss of three to seven million jobs because of the COVID 19 pandemic. Also, the CCMA was expecting a huge spike in retrenchment applications. Should the priority now not be to get people to work as safely as possible, to avoid an unemployment disaster?

Did the Minister agree with the statement made by the Congress of South African Trade Unions (COSATU) that the government should ease the lockdown as quickly as possible to level three so that more workers could go back to work? There was a need to find a way to ease the lockdown regulations, especially on small businesses that had been hit hard by COVID-19, as indicated in the presentation. There was a need to make it easier for small businesses to hire workers and free them from the extension of collective bargaining. They had need to think laterally about how they were going to go about promoting temporary work, and above all to try and absorb a large number of people into the workplace with pro-growth economic reforms. He wanted the Minister to comment on that.

Mr S Mdabe (ANC) referred to social protection in relation to the capacity of advocacy and outreach to vulnerable groups, and asked what the CCMA’s approach was to dealing with rural economy issues, in particular those involving farm workers who were not receiving a minimum wage.

A Member questioned the accessibility of the CCMA, and asked how many offices they had in the rural areas. What was their immediate plan to ensure that their ICT systems were up and running so that people would be able to access and get help from them? She asked the Department to enlighten the Committee on the large number of retrenchments.

Ms S Boshoff (DA, Mpumalanga) asked for a cost analysis of the upgraded ICT system of the CCMA.

How was the Department going to situate itself post-COVID-19 concerning retrenchments and retrenchments in the fourth industrial revolution? They had also spoken about the budget impacting caseloads, so she wanted to know how many cases had been lodged since the COVID-19 lockdown, the number of cases that had been carried over from previous years, and if the cases ever expired. 

Ms H Denner (FF+) asked how the caseloads were being handled during the COVID 19 period. She asked the Minister about the Edcon group which had been placed under voluntary business rescue. With the large amount of investment in Edcon by the Unemployment Insurance Fund (UIF), how would this affect the funds available to the UIF at the moment?

Mr M Mmoiemang (ANC, Northern Cape) referred to Programme Three (the Presidential programme), and said he was interested in its readiness to deal with the COVID-19 crisis, given the fact that it was part and parcel of what the presenter had termed the “Presidential projects” under Programme Three.

Mr M Bagraim (DA) made a few suggestions. The first involved case management, where he proposed the CCMA should have some sort of barrier when they identified that referrals had no merit, and that they should be given some power in the rules to deal with them.

He asked the commissioners to be a little more intrusive when they were entering into reconciliations. At the moment, they were not intrusive as they had been told to hold back. They should be able to tell the employees outright if they had a case or not.

He remarked that there should be more cost orders, especially against people who were frivolous in their applications.

Apart from empowering the bargaining council so that they could be more intrusive in their dispute resolution, the rules should also be intrusive. More power should be given to the senior commissioners so that they were more involved, to the extent that they could settle cases.

He suggested moving some of the financial claims on the CCMA back to the Department of Labour.

Lastly, he commented that there was a problem with the real definition of “essential workers,” with the one that had been formulated under the COVID-19 regulations.

Mr M Nontsele (ANC) asked for clarity on the mechanisms in place to deal with disputes that might arise.

Dr N Nkabane (ANC) said it was commendable that the CCMA had explored multiple streams of income to ensure its financial viability, and also commended them for obtaining an unqualified audit opinion for consecutive years. She asked if there were any outstanding or remaining audit findings that they needed to attend to as an entity.

What was its state of readiness in the areas of human capital, financial capacity and sustainability and other related necessary resources, to deal with the demands arising from disputes and caseload costs post-COVID-19? What proactive mechanisms had they put in place to deal with job losses after COVID-19? The projection was that South Africa was going to face a 50% unemployment rate. She wanted them to speak on the interventions that were going to assist the entity to meet its strategic objectives as far as preserving jobs and job security.

Ms A Zuma (ANC) asked what the implementation plan was for domestic workers and farm workers who were not receiving a minimum wage.

Ms N Hermans (ANC) wanted to know what interventions were in place for companies facing liquidation post-COVID-19. Also, how was it going to be controlled in terms of those that had already benefited from the Department’s interventions post-COVID-19?

Ms B Mathevula (EFF, Limpopo) asked how long it was going to take the department to prepare offices per district, to avoid people having to travel long distances. How many disputes had they received so far from farm workers since the implementation of the minimum wage, and how many had they resolved so far?

Responses

Ms Boitumelo Moloi, Deputy Minister of Employment and Labour said that the CCMA’s presentation had been very clear, as they were describing what they required in the next five years in terms of their strategic plans. She hoped that through the wisdom of the Members, the Committee would support the presentation.

Minister Nxesi responded to COSATU’s proposal that the government should ease the lockdown as soon as possible. He said the government was not just going to just ease the lockdown -- they first had to be guided by science and health experts. There was a strong lobby that the government must open the economy and pay very little attention to the health of the workers, but the evidence now showed that many workers were starting to be affected. In their Department, for example, they had an employee who had passed on. Therefore, the way they were going to move from one stage to another was by adopting a minimal risk approach. This was why they were saying at level four, the employers must prepare the workplace well. They had to keep a balance between opening up the economy and the health of the workers. It was therefore not about what COSATU wanted, but about the facts on the ground.

Concerning SMEs and deregulation, he said the issue of deregulating people, market flexibility or exempting people in the labour market, was not a new argument. The government was very clear that they were not going to do simply that. In most instances, what the people wanted was for them to fire the workers very easily so that the workers did not have any recourse. However, in the labour legislation, when firms had to be exempted, there were certain processes which must be followed. Many thought that they should just be exempted, which led to a lot of problems, like the rise in inequality. The legislature had created a way for even small businesses, if they had to be exempted, to apply, and the Department would make an assessment.

Mr Thobile Lamati, Director General: Department of Employment and Labour (DEL), referred to the Edcon situation, and said that the UIF had invested R1.2 billion in Edcon. The intention had been to protect jobs. One of the conditions was that because it was not a grant, if anything happened, the UIF would be the first creditor to claim its money back. This meant that if Edcon went down, the UIF would get its money back.

Mr Morajane responded on the issue of social protection and the inclusive economy, especially in respect of farm workers and domestic workers, where they had faced challenges involving capacitation and advocacy campaigns. He pointed out that there was no way that people who do not know their rights could enforce them. When it came to farming, there were certain restrictions that they now had to impose on how people accessed those places. Their biggest problem when they were talking about the minimum wage and other cases was access. It was not very easy to access a farm. If a farm worker had a case, they had to be accessible, as sometimes it was really difficult for them to reach the CCMA offices. Secondly, many did not know that they had rights, as the minimum wage clearly stated what they should earn. The strategy they had adopted in dealing with that particular sector was an integrated approach, which included both the CCMA and also inspections and enforcement and the like. For example, if they issued an award against a farmer, which directed that they had to pay a worker a certain amount, the worker had to first understand the award that was being given to them.

Another difficult issue was that in South Africa, there were 11 languages, and currently they mainly did cases in English with the help of an interpreter. In most instances, the farm workers and domestic workers were not represented in cases. A study had shown that it was easier to understand disputes if people were allowed to express their issues in their language of choice because they understood them better. They should therefore start issuing the awards in a language that people understood. Some workers were also visually impaired and could not read, and that was direct discrimination. So for people to know that they had to be paid a minimum wage and for them to enforce their rights, they had to be able to read it, hear it and interpret it for themselves. This was because things got lost in translation. They therefore needed to take a bold step to include those vulnerable sectors for social protection.

The domestic worker issue was quite a unique one, because the workers’ environment was a private home.  Secondly, it was not just a private home to the domestic worker -- it was a workplace. This meant they were fully entitled to all protection, including social and other statutory protections. They had made interventions where they had made a call and trained domestic workers, but this was not enough.

A second problem involved enforcement. Enforcing an award for a domestic worker required the CCMA to go into their workplaces, which were the private homes. Sometimes they were hindered by privacy clauses which did not allow them to trespass on private properties. One of the problems they were going to have post-COVID-19 was that there were many domestic workers who had lost employment because of the question of accessibility. Many of the domestic workers had lost income because they were at home, and could not access their workplaces during the lockdown. The issue now was the enforceability of the awards. Access was a problem. For example, there would be domestic workers who were going to be retrenched according to section 189. For section 189 to be applied, there had to be a disclosure of information, which meant that if the employer was arguing that they were no longer going to keep the domestic worker because they could no longer afford them, they must first disclose their financial status. Even if that was disclosed, the person that this was being disclosed to should be able to interpret it. Secondly, to access the financial statements meant one was crossing the line of privacy and confidentiality of financial statements, but the domestic worker had to have access to that. Therefore, generally with the domestic worker, there was a need for an integrated multi-entity approach, so that when the CCMA was in the workplace of a domestic worker, they could have access to the different data they required. Accessibility was therefore very important.

Concerning their ICT infrastructure, there was workplace training for people to be able to lodge a case using digital literal forms, instead of taking forms and walking into the offices of the CCMA.

Mr Morajane responded on the issue of accessibility, and said they had 24 offices. However, integral to that was the ICT system, because they needed to have an easily accessible and easy to use integrated system between them and other entities of government.

Another matter they were going to pursue to ease pressure on the budget, was to proposed they should be able to use government’s properties for free because, they were an entity of government. This would avoid incurring costs on new facilities. They had to be able to find a coherent way of avoiding costs, while improving their systems. Once they solved that challenge, they would be able to install their ICT systems.

On the issue of retrenchments, he said it was correct that the numbers involved were 3 300.

The projected cost for the ICT project was R56 million.

On the handling of cases during lockdown, he said that during lockdown people could not travel. As a result, no one was able to walk into their offices, and most of their cases involved walk-ins. This was why they had decided to open their offices on 18 May, subject to proper and effective personal protective equipment (PPE) being provided.

He said the CCMA had something they called “web-based hearings,” which was reliant on ICT systems. They had proposed that when they conducted hearings, they were going to have different types of commissioners -- they were going to be specialised. They were making use of Zoom and Microsoft teams in the facilitation of some disputes, like the South African Airways (SAA) situation. However, because it was something which was still new, it was based on parties agreeing to do so. They should be able to have access to a building with uncapped Wi-Fi, so that the cases would not be disrupted. This helped in maintaining social distancing and ensuring that there was no contact, to help in flattening the curve of COVID-19.

Web-based hearings were a mechanism that was not only used for COVID-19 matters, but it also helped in instances where a person could not travel long distances to access the CCMA.

Another mechanism was that of the travelling commissioner post-COVID-19. What they were going to do was to send commissioners to the workplace to deal with cases, as they had a mobile recording system. Instead of people travelling to the CCMA, the travelling commissioner could go there instead, accompanied by a translator in support of a stable Wi-Fi, because they could not afford the system collapsing.

Another option was where they dealt with telephones. Cases which would be received during COVID-19 would be using the exact system. This had the highest access rate in resolving disputes.

On 18 May, they were opening their offices for walk-ins. They would allow for social distancing, and no one would be allowed to enter their premises without wearing a mask.

Regarding the question about special interventions and support, the CCMA had introduced a programme they called the web-based Business Unity South Africa (BUSA) tool. This enabled small employers, without employing lawyers or expensive consultants, to use the web page to answer most of the questions that would be normally answered through their commissioners.

He welcomed the suggestions made by Mr Bagraim. However, it was difficult to create a sifting procedure to determine cases that had prospects and those that did not. This was because of the acceptance that many people were uninitiated into the legalities on how to deal with labour matters. Most of the time, it was difficult to determine the prospects of success of a case before the evidence was led. Where they had cases that should not proceed, they dealt with them there and then, without having them proceed to arbitration. They were very cautious in dealing with such cases, because sometimes what they read in the referral form and what came out of the evidence were two different things. However, he promised that they were going to deal cautiously with the sifting process.

They were also very cautious about giving cost orders to some employers, because this may also serve as a threat to people who wanted to refer genuine cases. However, this was specific to employers -- for example, those who knew that they did not pay a minimum wage and yet they still contested the referral and took the CCMA through the whole process of arbitration. In such cases, it was appropriate to grant a cost order for wasting the CCMA’s time and costs.

He agreed that the CCMA could empower the bargaining councils. In the submissions they had made earlier, they had said they were going to report about the performance of the bargaining councils when they were reporting about the current quarter, as well as in the future. They had specific departments which monitored all the accredited bargaining councils. There were 36 bargaining councils that they had accredited, including private agencies. They had set certain criteria to monitor them quarterly before they accredited them. A lack of resources was responsible for them not paying more attention to bargaining councils. They needed to capacitate the office, and part of the solution was the ICT environment so that they could do most of the things on the web, instead of relying on the physical movement of their commissioners into the different bargaining councils.

Reviewing the rules was something that the CCMA had to do constantly. With the challenges that they were currently facing concerning COVID-19, they had to review their rules in many ways.

Empowering senior commissioners was important so that they could deal with specialised cases.

Concerning the confusion over “essential services,” he said that the essential service committee was very important, and they were going to deal with that issue.

On dispute resolution, one of the problems that they were facing was the uptake by employers on the programmes. Dispute prevention was intended to deal with the caseload they were talking about. For example, there were disputes that dealt with workplace mediation, where they had programmes that they offered, but their success was dependent on the uptake by employers. This also applied to collective bargaining. There was what they called the pre-collective bargaining process that they were involved in, where they attempted to resolve issues before dealing with them through collective bargaining itself. They therefore had several mechanisms that they were applying in both dispute of right and dispute of interest, and they have proved to be quite successful. The reason why this had been included in the presentation was because of the nature of the presentation itself, but they did have specifics which they could explain to the Members as far as dispute resolution was concerned. Also, dispute resolution was going to be more critical post-COVID-19.

The CCMA’s role and plan regarding domestic workers was that they were going to use an integrated approach, ICT and an advocacy campaign, using different platforms. Using webinars and web-based training and advocacy campaigns was going to become critical. Many people had access to social media, and most of the domestic workers and farm workers had access to cell phones, so if they had data they could access that training.

He conceded that they still had outstanding audit issues. There had been 17 total findings, of which 14 had been closed. The remaining three were in the process of being resolved.

Mr Marius Kotze, National Senior Commissioner, CCMA, said that last year they had received 221 547 cases, and of those, 20 698 were still on the conveyer belt. On the national minimum wage, they had received 7 715 matters out of the 221 547 cases last year. During the lockdown period, they had dealt with 17 matters which had involved 3 344 employees. What was of interest was that out of the 17 matters, seven of them had been done by video conferencing.

During the lockdown in April, they had received 1 669 matters to deal with, and had received 849 so far in May. Compared to the figures in March, when there had been 16 248, this meant that during the lockdown they were getting only 10% of what they normally received in a month. This was because the majority of their users were mostly walk-ins.

They had a two-fold approach to dealing with retrenchments,. The first was to enhance the capacity they had internally in the organisation, which was by skilling their commissioners to be able to facilitate the process. The second was linking their various parties to bring them into the processes that they were involved in, to have a sort of coordinated approach to help deal with the scourge of job losses.

Mr Kotze said that in the submissions they had made, there was a need for resources. With the impact of COVID-19 -- and even before that -- the DG and the Minister were helping to make sure they were financially capacitated to achieve the work they had presented. At the moment they were anxious about the load and their ability to achieve that financially. They did not want to find themselves not being able to do cases because they could not afford them.

Lastly, he said that without PPE, they would have to close their offices because they could not put lives at risk for the sake of the cases. The Department had offered to help with the provision of PPE.

To respond on the number of COVID cases per province, and the number of disputes they had received from farm workers, they would make a written submission to the Members.

Chairperson Rayi asked the DG how far they had progressed with assisting the CCMA with the equipment that was required for them to safely open their offices on Monday 18 May.

Mr Lamati said they were in discussions with all the entities -- that is, they were working with the departmental chief financial officers (CFOs). They were looking at the financial resources that they would require so that the entire portfolio of the department could meet its obligations and make sure that the offices were opened and whoever came in was safe. If the CCMA opened on Monday, they would have all the resources they needed. No office would open without a plan. Risk assessments had been done. They were going to reduce the number of people going to workplaces. Those who were working from home would continue to do so.

Chairperson Dunjwa commented that they had received a very comprehensive report. She commended the Director for showing a passion for his work. She said one should not take for granted and just assume that all domestic workers had phones that could access the web. They had to try and devise some mechanism to reach out to communities by using community radio stations and community print media. This may be costly, but it would ensure that workers were knowledgeable and were not being manipulated by their employers.

The meeting was adjourned.

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