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LABOUR PORTFOLIO COMMITTEE
21 October 2005
COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION: ANNUAL REPORT BRIEFING
Chairperson: Ms O Kasienyane (ANC)
Documents handed out:
Commission for Conciliation, Mediation and Arbitration: Annual Report 2004/05
The Commission for Conciliation, Mediation and Arbitration (CCMA) presented its 2004/05 Annual Report to the Committee. This included a presentation of statistical evidence relating to the number of questions and cases handled. Of key importance was the dispute resolution technique referred to as ‘Con-Arb’, which involved conciliation immediately followed by arbitration. The organisation had found that this procedure successfully sped up the dispute resolution process. Officials also reported on the recent wage dispute between the CCMA management and workers from the Commission Staff Association.
Mr M Allie (CCMA Acting Director) related that their organisation had been established in 1996 to work with employers and employees to resolve disputes through conciliation, mediation and arbitration. The first case had been lodged with the CCMA on 11 November 1996. The CCMA had spent its first decade putting the necessary structures, such as Information Technology (IT) and case management systems into place. The CCMA had succeeded in building an effective case management system, which it now shared with its sister organisations.
The CCMA had compiled information on its activities on a monthly basis, and made this available to the public on its website. The CCMA had many discretionary functions, including helping parties to use best practices to efficiently resolve disputes and bring down the costs of employment, advising parties regarding procedures for dismissal and the like, providing courses in 11 official languages, and facilitating resolution of disputes.
Mr Allie reported that the CCMA had handled a total of one million cases from its inception. From April 2004 to March 2005, it had handled 128 000 disputes. Mr Allie compared this number to the 66 000 cases it handled during the organisation’s first year.
The number of non-jurisdictional disputes had increased from 31% during the last year to 34% this year. These were disputes over which the CCMA would not have jurisdiction, such as unemployment claims and workers’ compensation. The CCMA had conducted telephone conciliations of 6% of those non-jurisdictional cases, where their ‘front desk’ had perceived from a preliminary review that the case might involve a procedural issue within the CCMA’s jurisdiction and which might have a simple resolution. For example, where the application contained a complaint about a dismissal and it appeared the proper dismissal procedures had not been followed, the CCMA would conduct a brief telephone conciliation with both parties present. This situation was especially helpful with smaller employers that did not have human resources departments. The CCMA found that half of these settled at the front desk.
Mr Allie reported that by far the largest number of cases occurred in the Gauteng province. Unfair dismissal comprised the largest number of cases, followed by unfair labour practices, collective bargaining, and severance pay. The retail sector had referred by far the largest number of cases. The domestic work sector had represented 10% of the caseload. This had been followed by business and professional employees at 9%, the food & beverage sector at 5%, and the agriculture and farming sector at 5%.
The CCMA had handled 150 000 hearings during the past year, which had been an increase from the prior year. Of its cases, the largest percentage had been handled through conciliation, at 51%, and through hearings and arbitration, at 27%.
Mr Allie also explained the Con-Arb programme. In this procedure, a case not settled through conciliation would be immediately followed by an arbitration. This was an efficient way of speeding up the entire dispute resolution process. However, the CCMA had encountered problems with employers that did not come prepared for the arbitration, or that simply wanted to delay the process. The CCMA was working to communicate the benefit to these employers of resolving the dispute more quickly, rather than drawing out the process.
Con-Arbs conducted during the past year had increased from 40% to 51% of total load. The CCMA had held over 40 000 Con-Arbs last year. At least 45% had settled in conciliation. Of those involving an award, 61% of awards had favoured the employee, while 39% had been in favour of the employer. The CCMA expected to continue increasing the use of Con-Arbs in the coming year.
Arbitrations by the CCMA were binding, and so parties were reluctant to get into arbitration. Mr Allie reported that they were used more by professional employees who had more confidence in that process and appreciated its expedient nature. The CCMA hoped to see more smaller businesses using arbitration during the next year.
The CCMA’s dispute management focus last year had been on best practice training, especially of shop stewards and trade managers, so that the parties could settle disputes on their own. The CCMA had focused on gender equality, requiring that half of the training workshops be comprised of women. The CCMA saw this as an important avenue in outlying rural areas, such as with farmers. The drawback was the lack of training funds. However, the CCMA’s assessment of best practice training had shown that the parties were coming to the CCMA more prepared.
In addition, the CCMA had held numerous workshops with federations. Since the federations provided venues and accommodation, this minimised the costs for the CCMA and allowed it to hold more workshops. The CCMA had also held breakfast seminars that generated income to cover some the CCMA costs.
Mr Allie stated that the CCMA also participated in a regional forum with other countries from southern Africa. He reported that Namibia and Botswana were in the process of setting up dispute resolution structures like the CCMA. The CCMA hoped the regional forum would be self-sustaining, so that each country could fund its own initiative.
Mr Allie then discussed the CCMA Call Centre’s work. The Call Centre handled over 200 000 calls last year, and generally took over 700 calls each day from both employers and employees. People rang the Call Centre for advice on issues such as dismissal procedures and the like. The Call Centre was growing as an important component. The attraction for the parties was that it only involved the cost of the call, was not binding and formal, and provided the advice needed.
The Call Centre was a small structure, comprised of one person to answer questions in each of the 11 languages. The majority of callers were English-speaking, and came from Gauteng. The breakdown of calls to the Call Centre generally tracked the same percentages as cases referred to the CCMA from each province. Mr Allie reported that the non-unionised sectors, such as banking and professional, provided the highest number of calls. Domestic workers also used the Call Centre, proving that it was accessible to non-unionised workers.
In addition to the Call Centre, the CCMA provided information relating to cases in the ‘CCMail’, its quarterly publication. The CCMA office could send information such as dismissal procedures through various means, including electronically, by facsimile, telephone, and the like. The CCMA also provided up-to-date information sheets relating to the law on various issues, such as dismissal procedures.
Mr Allie stated that 53 Bargaining Councils that had been handling conciliations, and the CCMA was pushing to handle arbitrations as well. Arbitrations would be handled by CCMA-accredited panellists.
Mr Allie further discussed the "Section 143" problem of employers not complying with arbitration awards. Part of the CCMA training would be aimed at getting employers to comply with the arbitration awards. The rules required the employee to file an application with the Labour Board. The CCMA found that employees would often give up rather than go to the Board. Although the CCMA had no duty to deal with this issue, it was trying to help with the problem by assisting the employee in completing the form process to submit the issue to the Board. However, because it was costly to execute the award, the CCMA often advised the employee that it was not cost-effective to pursue. One approach to dealing with this problem was to then to negotiate a lower payment than the full award amount by the employer.
Mr Allie reported that the Bargaining Councils were not being consistent and that the CCMA had insisted that they adopt rules. Many of the Bargaining Councils were adopting the CCMA rules. In addition, the CCMA was encouraging the Bargaining Councils to adopt their own case management system, because this allowed the CCMA to better monitor their dispute resolutions. In the case of smaller Bargaining Councils however, it was not practical for them to adopt the CCMA’s case management system due to the costs involved.
Mr Allie stated that the CCMA had again received an unqualified audit for the last year.
Finally, Mr Allie talked about the Commission Staff Association (CSA) dispute with the CCMA management. The CCMA employed 400 employees, including 300 CSA employees. Of those 300 employees, approximately 160 CSA employees had been involved in the strike. The employees had demanded between 14% and 54% pay increases, which the CCMA could not meet with only a 5% budget increase. The resultant strike had been conducted in a professional manner by the employees, and relations were now back to normal. During the strike, the CCMA had not postponed any cases.
The Chairperson stated that the CCMA was doing ‘landmark work’. He wondered whether the CCMA could be considered to be performing an "essential function" since worker strikes had serious consequences. Mr Allie responded that the Essential Services Committee (ESC) would only get involved in situations involving life and death matters. For example, where it involved a strike in a hospital’s blood transfusion section or in children’s homes.
Mr M Mzondeki (ANC) asked Mr Allie to discuss some of the weaker findings from the audit. This included the IT security issue. Mr Allie agreed to provide a summary report on each weak area in lieu of covering them all at the meeting. With respect to the IT security issue, every person at the CCMA had been given a security code that was required in order to handle information on the system. Part of the problem had been that there had been no head of IT for a while. The CCMA could not afford to pay enough to attract one. It had tried during the past year to build internal capacity. However, the IT section at least needed a mentor with the proper expertise. So the CCMA had decided to go outside its salary budget to attract a Head of IT and would then work on building internal capacity.
Mr Mzondeki also asked about the link between the Labour Centre and the Advice Centres in making sure the public received correct information. Mr Allie stated that the CCMA was developing a co-operative relationship between the Labour Centre and the Advice Centres, but the Advice Centres were not sufficiently funded to travel and do other necessary things. There did not appear to be any link between the Labour Centre and the Advice Centres. There generally needed to be more funding for Advice Centres.
Mr Allie stated that it was asking the Labour Centre to advertise the CCMA Call Centre, rather than misinform people. In addition, the CCMA had been holding joint programmes with the Labour Centre to train Labour Centre employees. However, those employees often moved to another job within a year. Mr Allie stated that with its limited budget, the CCMA had to concentrate on its core function, which was resolution of cases, although it was also trying to train when it could.
In response to a question from the Chairperson, Mr Allie stated that the CCMA’s access to the traditional leadership authorities was limited, although it did respond when approached. For example, the CCMA had had much interaction with KwaZulu-Natal because its leadership had contacted the CCMA for information. Otherwise, the CCMA did not want to interfere unnecessarily.
Next, Mr Mzondeki asked about the CCMA’s progress in providing information sheets in the 11 languages. Mr Allie stated that it had information sheets in four of the 11 official languages and was continuing to work on the others.
Mr L Maduma (ANC) asked for comments on the capacity of unions in dealing with challenges. He also wanted to know whether, in addition to gender equality, the CCMA had focused on the physically challenged and youth in its training workshops.
Mr Allie responded that the trade unions needed training, but that the CCMA wanted to be careful about appearing independent and not favouring one side over another. One problem was that many of the trade unionists did not prepare properly for hearings, with the result that an employee in one case would lose where another in a similar case would win. The trade unionists needed to be trained on how to properly prepare evidence. With respect to a focus on the physically challenged in training, unfortunately there were no programmes as yet. Since the CCMA did not have the capacity to work on those issues, it operated on a reactive basis. The CCMA had gone into high schools recently because it had been approached by some youth organisations. However, it had not begun to do this on a mass scale.
Mr G Anthony (ANC) asked if the mining sector had been covered in the CCMA’s Annual Report. Mr Allie replied that it had.
The Chairperson asked if the non-jurisdictional issue delayed cases. She had heard from the Department about long waits in getting referred cases resolved. Mr Allie responded that its handling of non-jurisdictional cases did not create a backlog because it would forward such cases immediately back to the Labour Board. This would occur except where it saw that the whole case could be dealt with quickly through a telephone conciliation, based on a technical dismissal procedure issue over which the CCMA had jurisdiction.
Mr Allie stated that there could appear to be a backlog where there wasn’t one. For example, where an employee submitted an application and failed to include an address where s/he could be reached, this might result in the case being closed and later re-opened due to a long delay in the employee’s response to the CCMA for information. When the case was reopened, it kept the original date of application giving the appearance of a backlog. Mr Allie did agree that the huge numbers in Gauteng, at 50 000 per year, could result in a backlog. Finally, there was a problem with having insufficient numbers of Commissioners, and the CCMA was consistently recruiting.
Mr Maduma asked whether the federations could help address the issue with the trade unionists. This this was particularly important for farmers. Mr Allie replied that the CCMA was contracting with two federations that had received funding for this next year. Once the federation received funding, the CCMA could then provide the federation with a Commissioner with expertise to provide training. The CCMA had had much success with communicating to the farmers what it was trying to accomplish. The Advice Centres would be a good avenue for assisting farm workers. The CCMA was currently trying to advise farm workers, especially where eviction resulted from a dismissal.
The meeting was adjourned.