CCMA on collective bargaining, caseload management & environment post-Covid–19; with Minister

Meeting report

The Chairperson welcomed Members and officials from the Council for Conciliation, Mediation and Arbitration (CCMA) to the meeting, and invited the Minister of Employment and Labour, Mr Thulas Nxesi, to make opening remarks.

Minister's opening remarks
Minister Nxesi observed that some of the contributions of the CCMA were ensuring orderly labour relations, preventing and resolving disputes, and helping to maintain the system of collective bargaining which in turn helped to maintain labour peace and promote economic development. It was a vital cog in the machinery of promoting decent work and ensuring that labour legislation was enforced. It also protected vulnerable workers and prevented job losses.

The scale of the CCMA’s operation was considerable. In 2019/20, before the COVID-19 pandemic, it had received over 221 000 referrals, and in 2021/22, 21 bargaining councils had made use of the CCMA’s case management system (CMS) to process nearly 32 000 cases. In the same year, the CCMA had handled nearly 100 000 unfair dismissal referrals, of which 601 had been related to COVID-19. He understood that Members of the Committee might be concerned about a new wave of strikes, but noted that it was the season for wage bargaining. The CCMA became involved in bargaining issues only where strikes were not resolved.

CCMA presentation
Mr Morwa Setlago, Acting National Senior Commissioner, CCMA, outlined the legislative environment in which the CCMA operated and its mandatory and discretionary functions. He confirmed that it had received over 221 000 referrals in 2019/20. This number had declined to around 150 000 in 2020/21 and 2021/22 due to pandemic-related factors. The Council had re-opened its doors on 1 May 2022, and this was expected to lead to a rebound in the number of referrals.

He discussed the numbers of COVID-19 related and vaccine mandate-related referrals in the period 1 April 2021 to 30 April 2022:

- Total referrals: 168 538, of which 968 (0.57%) were COVID-19-related and 292 (0.17%) were vaccine mandate-related;
- Unfair dismissal disputes: 99 219, of which 601 (0.6%) were COVID-19-related and 204 (0.2%) were vaccine mandate-related;
- Unfair labour practice disputes: 15 260, of which 147 (1%) were COVID-19-related and 53 (0.3%) were vaccine mandate-related;
- Unfair discrimination disputes: 2 438, of which 23 (0.9%) were COVID-19-related and 26 (1%) were vaccine mandate-related.

Mr Setlago discussed the pro-active approach taken by the Council’s Dispute Prevention and Workplace Outreach (DP&WO) Unit, noting that it now had the capacity to deliver its services face-to-face, virtually or through a hybrid approach. He also discussed its indirect contributions to labour peace through its collective bargaining functions (from 2019 to 2021 it had settled between 50% and 60% of the roughly 4 000 wage-related matters referred to it each year), and to poverty, inequality and unemployment reduction through its statutory interventions in terms of key employment legislation and its “back-to-work” focus.

He cited research by the Development Policy Research Unit (DPRU) which showed that every rand spent by the CCMA on saving jobs contributed R20 to gross domestic product (GDP), but also observed that over 80% of retrenched workers opted for monetary compensation rather than reinstatement at the same workplace or re-employment at a different workplace. He drew attention to some challenges the Council faced, such as the reluctance of sheriffs to execute the sale of goods to realise money awarded through arbitration, and some of its plans and programmes, such as memorandums of understanding (MOUs) with a number of strategic partners and a small business advice web tool and mobile app developed in partnership with Business Unity South Africa (BUSA).

Discussion
Mr M Mmoeimang (ANC, Northern Cape) asked about the balancing of workplace transformation and conflict resolution, which was at the core of the Council’s DP&WO Unit. How successful had the unit been in developing capacity and creating an atmosphere for conflict-free workplaces and sustainable collective agreements? He also asked what opportunities, challenges and potential solutions there were for the transformation of the labour market, particularly via the implementation of labour laws.

Mr Setlago replied that the Unit had made great strides in the labour market. It had helped the CCMA become a trusted actor in the transformation of the labour market. For example, one of the critical problems facing the labour market was inter-union rivalry, and the CCMA did multi-day presentations to manage problems like this. He was proud of the CCMA’s success rate.

Ms H Boshoff (DA, Mpumalanga) observed that the registrar of labour relations was supposed to receive annual reports from the bargaining councils. How many reports had been received and how many included exemption applications? How many bargaining councils were there in the private sector and how many people did the private sector employ? How many exemption applications were granted, refused and withdrawn, in which sectors and for what reasons? How many exemption applications received in 2021/22 were under consideration, and when would they be finalised?

Mr Setlago replied that the Department might be better placed to answer the questions about bargaining councils, as the CCMA did not handle exemption applications.

Mr Thobile Lamati, Director-General, Department of Employment and Labour (DEL), explained that he had experienced a connectivity issue when the questions about exemptions had been asked. He did observe, however, that bargaining councils had a life of their own, and government did not play much of a role in their affairs.

Ms Boshoff asked how effective the CCMA’s virtual interventions had been.

Mr Setlago replied that there were challenges and benefits associated with virtual interventions. The CCMA encouraged people to use a virtual platform, but this was not always possible. In some workplaces, such as big mining houses, on the other hand, union representatives could be accommodated at the company’s boardroom. The virtual interventions were delivering value, and their successes should be built on and improved, while challenges such as connectivity should be addressed.

Ms Boshoff asked how many cases that were not finalised in the financial year they were received had been finalised in the next year.

Mr Setlago replied that the CCMA set internal timelines for finalising cases, which it strived to adhere to. The carry-over of large-scale retrenchments was minimal, and it was monitored. Any carry-over that did arise was dealt with speedily.

Mr M Dangor (ANC, Gauteng) asked what impact the roughly 4 000 wage-related cases dealt with annually by the CCMA had on collective bargaining. Did the Council interface with both employers and trade unions?

Mr Setlago replied that there was definitely an impact. With the exception of the strike taking place at Sibanye-Stillwater, the wage negotiation space was fairly quiet at the moment, and the CCMA was able to assist through conciliation and through section 150 of the Labour Relations Act. In some cases, the Council was approached for assistance even before a dispute was declared, and the DP&WO Unit also promoted pre-dispute resolutions.

Mr T Apleni (EFF, Eastern Cape) commended the Council on the improved rate of processing cases and encouraged it to continue improving.

The Chairperson recalled that at the Committee’s previous meeting with the CCMA in 2020 it had appealed for more funding, and he was happy to see that its budget had since increased. He asked whether the Council was able to monitor the use of its mobile app for small business.

Mr Setlago replied that it should be possible to monitor the use of the mobile app. He had not heard any complaints about its functionality and he was confident that it was being used regularly.

The Chairperson called on the Minister of Employment and Labour to assist the Council in dealing with the reluctance of sheriffs to implement arbitration awards. Perhaps he could discuss the problem with the Minister of Justice. He recalled that he often used to represent domestic workers in arbitration, and even when the workers won their cases employers often refused to honour the arbitration award. The CCMA would then refer the worker to the sheriff’s office but would leave them to take the matter further on their own. Arbitration awards were meaningless if they did not result in actual compensation for workers.

Mr Lamati agreed that a meeting between the Minister of Employment and Labour and the Minister of Justice might be helpful. He recalled that the CCMA had not always had sufficient funding to enforce arbitration awards. Over the years, the Department had transferred money collected from conscientious objectors to agency shop agreements in terms of section 25(4) of the Labour Relations Act to the CCMA, to be used to pay awards. However, it would remain a very difficult situation if sheriffs refused to co-operate.

The meeting was adjourned.