Commission for Conciliation, Mediation and Arbitration: Annual Report

Meeting report

LABOUR PORTFOLIO COMMITTEE
7 June 2005
COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION: ANNUAL REPORT

Acting Chairperson: Mr M Mzondeki (ANC)
Documents handed out:
Commission for Conciliation, Mediation and Arbitration Director’s Report, 1 April 2004 to 31 March 2005
Commission for Conciliation, Mediation and Arbitration PowerPoint presentation
CCMA website

SUMMARY
The Commission for Conciliation, Mediation and Arbitration (CCMA) gave the Committee an overview of its activities over the 2004 – 2005 financial year. This included a report on the findings of a customer service survey, its dispute resolution performance, its challenges especially those produced for the CCMA by the Labour Relations Amendment Act of 2002, dispute management training and future research on the criticism that the CCMA is over-legalistic and over-procedural.

The Committee asked questions about training constituency offices about how to fill in CCMA applications, the reason for part-time Commissioners, the large number of people who went to the CCMA unrepresented by trade unions, over-legislation being a hindrance in enforcing awards, the issue that awards from the CCMA did not have the effect of an order of court, and the accessibility of the CCMA.

MINUTES

Commission for Conciliation, Mediation and Arbitration briefing
Mr Edwin Molahlehi (CCMA Director) indicated that the CCMA had been guided by a three-year strategic plan to ensure an optimal use of expedited dispute resolution processes; establish specialist services with distinctive competencies; strengthen partnerships with CCMA users and social partners; develop a regulatory system to ensure the delivery of high quality dispute resolution by accredited bargaining councils; and to recruit, retain and train skilled staff. Expedited processes such as fact-finding would be useful in finding the cause of problems in the workplace.

Service Delivery
Parliament had noted that public service institutions need to sharpen their service delivery using the Batho Pele principles. A survey had been carried out to find out what CCMA users felt about the CCMA. About 42% of the respondents had rated the CCMA’s Commissioners understanding of issues as ‘good’; 31% rated it as ‘excellent’; 22% rated it as ‘average’; and 5% rated it as ‘poor’. More than 80% said that the CCMA staff at the front desk had informed them of what to do to resolve their problems. 76% said that an attempt had been made to resolve their problems at the front desk through a pre-conciliation hearing. Based on these results, the CCMA’s Education and Training Department (ETD) had set up training workshops to find the approach needed to deal with the challenges to effective service delivery.

In terms of quality, it was necessary for the Commissioners to keep up with trends in the labour market and labour economics, and to enhance the quality of award writing. Economic Literacy and Plain English Writing courses had been established.

Dispute resolution
Mr Molahlehi said that 32% of the jurisdictional cases had been finalised in one event at conciliation/arbitration. Conciliation/arbitration had been set up to speed up the processes, but there still remained some challenges in changing the perceptions of the parties in the use of this process. On average, one conciliation took 33 days to go from ‘activated’ to ‘case closed.’

The research showed that 74% of the postponements came from part-time Commissioners. This contributed to delays in finalising cases and costs to the CCMA. This problem was compounded by some of the rules governing conciliations. As soon as the two parties agreed to a postponement, the commissioner had no choice but to postpone the matter.

From 1 of April 2004 to 31 March 2005, 128 018 cases came in as new referrals. 80% of these were dismissal disputes. The CCMA relied on both full-time and part-time Commissioners. There was a need to simplify the processes as most of the CCMA’s users are in the low-income bracket and have few expectations in terms of customer service. The call-centre continued to be the hub of the CCMA with 198 226 calls logged during the 2004 – 2005 financial year.

To increase accessibility, offices in East London, Pietermaritzburg and Richard’s Bay had been opened, with one in George opening soon. The opening of an office in Pretoria office had allowed work to flow in from diplomatic missions. New policies have been developed to deal with cases from these diplomatic missions to allow them to be handled sensitively. Technical assistance had been given within the SADC region as well. The CCMA had intervened in conflict situations through section 150 of the Labour Relations Act, even those not referred to the CCMA. Examples were the CCMA intervention in the Road Freight Industry strike and the Mineworkers’ strike in Kwa-Zulu Natal.

Through Dispute Management Unit initiatives, education and training had been given to employers, trade union officials and shop stewards on how best to use the law and the CCMA. If resources permit, the training would be expanded as there had been favourable responses to the training as it helped workers to prepare better to consult management about issues affecting them, and would be able to use their skills in their communities.

One of the challenges was the new certification procedure for the enforcement of CCMA awards that was introduced in the Labour Relations Amendment Act of 2002 to Section 143 of the Labour Relations Act. The CCMA acknowledged it failed to satisfy its users because of the bureaucratic processes involved in enforcing awards. There have been deliberations at the governing-body level to find the best way to circumvent the strict legal procedures in enforcement. Other challenges relate to the CCMA’s capacity and resources; the labour market conditions and globalisation; the capacity and conduct of CCMA users; and the role of the CCMA in the broader economy and labour market.

Governance
The CCMA had been criticised as being ‘over-proceduralistic’ and too ‘legalistic.’ Mr Molahlehi said that he did not know of any substantive research that would support this claim. The CCMA has designed a research project to focus on the CCMA’s contribution to the transformation process as envisaged by the Labour Relations Act. The main research question will be "To what extent are perceptions of the CCMA’s ‘over-proceduralism’ and ‘over-legalism correct.’" A sub-question would ask if procedures of misconduct dismissals are overemphasised by CCMA Commissioners. If so, did the CCMA’s dispute resolution processes unnecessarily add to the costs to the parties and the CCMA? In particular, did this contribute to importing an unnecessary burden on the employers without advancing the protection of workers?

Over the past year, conciliations took 33 days to be completed and arbitrations took 88 days. The Labour Relations Act stated that conciliations should take 33 days and arbitrations 90 days. In some provinces, the figure for arbitrations is 60 days. Therefore the CCMA had been successful. There were 150 cases referred to the CCMA; 3 794 cases activated; 3 849 cases at the arrangement stage before 31 March 2005. There had been 2 159 cases created before 31 March 2005 scheduled for hearing after 1 April 2005. Therefore, 19 239 cases were in progress. The majority of cases had been allocated to part-time Commissioners, the cost of that being R1 480 800.

The CCMA did not use the general accounting system used in the public service. The accrual system was used, meaning that costs were not carried over, but where costs had already been incurred, these would be calculated into the budgetary system.

Discussion
Ms L Moss (ANC) asked if it was possible for the training to be extended to some of the administrators in constituency offices who often have to help illiterate people to fill in their CCMA application forms.

Mr Molahlehi replied that the CCMA was willing to train constituency officers. There had been a favourable response to this offer in Kwa-Zulu Natal. The CCMA had had to close down some courses because they were unable to cope with the large numbers. The Department of Labour had assisted them in providing funds. But no other provinces had shared this enthusiasm.

Mr O Mogale (ANC) asked if problems were dealt with at the front desk, why were there so many cases pending and overlapping? He asked why the CCMA did not hire more full-time Commissioners if they could pay part-time Commissioners R1 200 per day. If the Commissioners were being trained and so on, why the need for part-time Commissioners?

Mr Molahlehi responded that the CCMA could not simply turn people away when they entered the offices. They have been meeting with bargaining councils to have a uniform case management system. This would adapt bargaining councils’ systems to the CCMA. Thus when a Member from these councils came to the CCMA, the case was entered and transferred electronically to the bargaining council, receiving a case number. A lot of cases were still pending as parties began to involve lawyers and consultants, drawing the processes out.

The CCMA was empowered by law to hire part-time and full-time Commissioners. This was necessary given the huge number of cases that come in. Part-time Commissioners help to prevent a backlog of cases, and to plug gaps created by Commissioners going into the private sector.

Mr N Godi (PAC) noted that 75% of the people who went to the CCMA were not represented by trade unions. He wanted to know if this was because they were not members of trade unions, they chose not to be represented, or that workers who were members of trade unions were more secure. He also wanted to know where the problem was in enforcing awards. Was over-legislation a hindrance in enforcing awards?

Mr Molahlehi replied that a lot of the people who came to the CCMA did so as individuals. Trade Unions needed to do more to attract more membership. Awards from the CCMA did not have the effect of an order of court. Since the ‘Shakespeare Pub case’, employers have tended to challenge the decisions and delay payments. This area needed attention. Mr Molahlehi disagreed that there was over-legislation.

Mr S Rasmeni (ANC) wanted to find out how accessible the CCMA was to people in rural areas.

Mr Molahlehi said that it was important to note the Department of Labour and CCMA had different jurisdictions. The CCMA was more of a dispute resolution body, while the Department administered labour law

Mr M Mzondeki (ANC) wanted to know what progress the CCMA had made in making its processes more accessible to people in terms of language.

Mr Molahlehi responded that this was a difficult issue. English would be the official language, with all awards written in English. If the parties needed a translation, this would be done. There had been cases where consent has been given to use another language acceptable to both parties. There had been a movement to translate all the CCMA documents and information sources into other languages, and this had been well received.

The meeting was adjourned.