Commission for Conciliation, Mediation & Arbitration (CCMA) 2007/08 Annual Report: briefing

Meeting report

Ms Nerine Kahn, Director, CCMA, thanked the Committee for the opportunity to come and make a presentation before them. She remarked that she was excited about the presentation and also by the fact that amongst her delegation there were representatives of the business world. She introduced her team: Mr Obed Sekgololo, Chief Financial Officer, Mr Ronald Bernickow, General Manager Operations, Mr Nersan Govender, General Manager Operations, Ms Tanya Cohen, Business Representative, Business Unity South Africa (BUSA), Mr Thembinkosi Mkalipi, Government Representative, Department of Labour, Mr David Carson, Chief Executive Officer, SELFSA, Mr Elias Monage, Business Representative, BUSA.

Ms Kahn began with an overview of the “Tsoso” strategy (meaning “revive, re-awaken”) that provided strategic direction for the CCMA for the period April 2007 to March 2010. She briefly touched on what the strategy entailed and emphasized that the Tsoso strategy was goal oriented. Her presentation was based primarily on the outcomes of the first year of implementation of the strategy. There were three strategic goals:
▪ promote social justice through the professional delivery of services while ensuring compliance with legislation at all times;
▪ ensure friendly, quality services that are delivered with speed;
▪ to maintain operational effectiveness while ensuring services are cost effective.
She referred to the table which reflected the strategic focus areas. If the target area had a green dot, it meant that they had been successful. Amber meant that part of the strategy had been successful but they should proceed with caution and red meant failure on their part. Most of the strategic areas in all the goals were green and they were proud of their performance.

Mr Obed Sekgololo reviewed the 2007/08 annual financial statements. He said that the highlights were that administrative expenses increased by only 3% and operating costs by 8%. Staff costs and benefits increased by 19% and the increase in staff costs was attributable to revision of the remuneration policy and the increase in permanent staff. He went on to the comparative financial review and ended the 2007/08 financial highlights with disclosures on the annual financial statements for year ending 31 March 2008. As an aside he informed the Committee that they were involved in a law suit but the advice they had been given was that they had little to no chances of success.

Discussion
The Chair asked if there was a tangible decrease in the case load especially since they had previously informed the Committee that one of the reasons they had requested funds to be moved from the administrative program to the policy program was in a bid to decrease the case load.

Mr Sekgololo replied that on the question of virements, the commission had received two virement for the year under review. The first one was for five million which they had employed in enhancing the case management system that they used to log the cases. Their main intention was to then roll out this case management system to all the labor centres, bargaining councils and the SADC region.

The second virement was R5,6 million which they had received before the end of the financial year. This was allocated to alternative energy sources like generators to ensure that there would be no postponement of cases due blackouts in large offices such as Johannesburg, Cape Town and Durban. In smaller offices such as Limpopo and the Eastern Cape they were looking into using solar energy as an alternative energy source. Cutting down on postponed matters was crucial because this added to the costs of the case load. He added that the surplus reported for the financial year 2007/08 went on to cover inflation related costs and other costs for the current financial year because the baseline had not been increased.

The Chair asked Ms Kahn if there were any arrangements between themselves and civil society organizations that would increase the public’s awareness of the services offered by the CCMA.

Ms Kahn replied that in terms of civil society they dealt with dispute management and dispute prevention sectors. They were training shop stewards, employers, and advice centres by request.

She added that the CCMA’s case management system was quite sophisticated in reflecting public awareness. It enabled them to identify in each region if a trade union lodged X amount of cases against an employer and if the specific employer succeeded in the cases or not. Moreover, if there were a lot of disputes in relation to a particular field moreover, part of their work was to talk to the trade union and employer and try and deal with the troublesome area. To improve work relations, they would train both the employer and the trade union and in this field of work they had found success in the smaller regions such as Mpumalanga. Ms Kahn remarked that 60-70% of matters relating to employees were by organized labor

Mr T Mkalipi added that they were pushing hard for the CCMA to get into the second phase of their accessibility program.

Ms Twala (ANC) remarked that she was not convinced by the answer given by Mr Mkalipi because most vulnerable workers were farm workers who were far from labor centres so on this point the CCMA needed to work hard. This could be the reason why in some provinces the scorecard was low because it was these vulnerable workers who pulled it down and something needed to be done especially after 15 years of democracy.

The Chair queried the CCMA on the status and progress of the proposal for extending the CCMA jurisdiction to deal with discriminatory cases especially those related to employment equity and sexual harrassment.

Mr Mkalipi replied that the issue of the CCMA arbitrating on sexual offences and discrimination had been raised by the Employment Equity Commission. One of the proposals they had made was that the law be amended to allow the extension of the CCMA jurisdiction to cover discrimination cases related to employment and sexual harassment. This amendment of the law he said, was still in its early stages and might actually come before the Committee in the next parliamentary term. What needed to be taken note of was that it was still in its early stages. 

Ms A Dreyer (DA) began by complimenting the Director and the commission for a job and presentation well done. She said that they were like a fresh breeze blowing through the parliamentary chambers because there was nothing really to fault about the job they had done so far. However, she had received complaints from some parties to CCMA hearings who had said that they had not received notices about the hearings. In addition, these parties who happened not to receive these notices often discovered that the hearings had taken place and a ruling made to which they were not privy. She then asked about the process of hearings, especially if they sent out notices as a matter of policy. Was the presence of the complainant at the hearings non essential? Also how did absentee parties get informed of the ruling?

Ms Kahn replied that the CCMA faced various challenges in terms of the law concerning the giving of notices. The law allowed the CCMA to give notices in various forms and they had a sophisticated process around this. Essentially if the CMMA has given a notice in terms of the law and the commissioner was satisfied that notice had been adequately given, the commissioner was able to proceed with the case even in the absence of either of the parties. The CCMA rules and regulations on this was that they had the “standard person” they notified and in addition, 48 hours before the hearing of the case they normally sent out an SMS containing the case number and the issues involved as an extra measure to notify the parties. Despite all these precautions, miscommunication did occur. In most cases, the middlemen were not aware of the person to whom the notification should be sent to or they misinformed the commission with respect to the addresses to where the notifications should be sent. She gave an example of a security guard who might give the address of the owner of the building where he works as the notification address as opposed to the security giving the notification to the security company that employs him if the guard had grievances with his/her employer. However, she was pleased to note that since the advent of the SMS mode of notification there had seen a 36% improvement in attendance. Having said this Ms Kahn added that the law was oblique when it came to issues of whether a case can be dismissed or can proceed in the absence of one of the parties. What is concrete is that in the absence of one of the parties, a matter can proceed. A recent ruling in the Labor Appeal Court stated that failure to attend by the applicant could lead to a dismissal of the case or could be the end of the matter.

Ms A Dreyer (DA) asked if they could not by-pass the Sector Education and Training Agency (SETA) by acquiring tenders from outside service providers who would then be in charge of training.

Ms Kahn replied that she did not purport to be an expert on SETAs but it was her understanding that given the nature of the CCMA, they were entitled to put out tenders for training. The problem unique to the CCMA was that the skilled people who were equipped to do the training were actually employed by the CCMA. As a result there were few people who could do skills training and even with tenders they would end up with a consortium of commissioners tendering. But having said that she added that they could tender out other skills training

Ms A Dreyer (DA) insisted that making a direct tender and not going through the SETA was more cost effective, efficient and quicker.

Ms Kahn replied that she considered CMMA as part of the Department of Labor and as such they followed the process of that department. However in relation to SETA, she said that it was more cost effective for them as a state entity to utilize SETA. This was because they received great benefits by using SETAs such as being refunded levies.

Ms A Dreyer (DA) asked for clarity’s sake other examples of “matters of national interest” which were not strikes.  

Ms Kahn replied that strikes were indeed classified as matters of national interest but there were not the only examples of matters of national interest. She remarked that a good example was their current involvement with the 2010 World Cup. She said that recently they had been invited by the Sports Commission to help with workers involved in the construction of the 2010 stadiums. The CCMA however was only mandated to be involved in strikes that were legal and the strikes that happened with the workers constructing the stadiums were illegal. Nevertheless, the CCMA was called in to resolve the issue because construction of the 2010 stadiums was a matter of national interest. She added that what had to borne in mind every time was the fact that the CCMA could only intervene if the employer agreed to the CCMA arbitration. If the employer refused, there was nothing much the CCMA could do except to keep in touch with the parties. 

Ms A Dreyer (DA) asked how they maintained their targeted 7% staff turnover. Such information she felt was vital to transfer to departments that had high staff turnover problems.

Ms Kahn replied that they had managed to retain their target aim of 7% by working closely with the Department of Labor and the Committee in relation to the budget vote and allocation. On top of that they had done a whole lot of initiatives such as improving the working conditions for staff, ensuring a friendly environment, increased remuneration in recognition for work done and ensuring that they made the CCMA an employer of choice. But having said all this, she went on to emphasize that the CCMA did train people for the labour market so they did expect some staff turnover.  

Mr M Mzondeki (ANC) began by thanking the Commission for a beautiful presentation. He then asked how far they had gone in their bid to target certain language groups in their information policy to ensure that they were bringing services closer to all people.

Ms Kahn agreed with Mr Mzondeki and said that it was indeed correct that they had discussed the issue of language use in the CCMA and there were talks with the Language Board of South Africa especially on the aspect of language accessibility. The call centres covered all languages and one was also able to queue for any international language and the number for this service was an 086 number. Moreover, they did have information sheets translated in all languages but these were available in provinces that had three or four major languages in use. One could also ask to be assisted by an interpreter at the front desk or if one telephoned in, one could request the use of a particular language. She did not think that the process was perfect but they had made significant inroads in the language department to try and ensure that the CCMA was more accessible. In addition, they were going to the rural areas and they had, as part of their team, interpreters to ensure that there would be no language barriers. 

Mr Mzondeki asked if labor centres could assist the commission to facilitate the decentralization of services.  This was because every time he was in Welkom and he wanted assistance, he had to go to Bloemfontein. 

Mr Bernickow replied that the CCMA did venture out to where the parties were to hear the cases. In the smaller towns they sent commissioners who used venues such as the church or library. As a result they did improvise when it came to the use of various office spaces and this allowed them to take the hearings to the people. The problem normally arose when there was a feasible need for satellite offices. He said that they were currently in the process of setting up satellite offices in areas that dealt with at least 1% of the national case load which would be about 1 200 cases. The George office was coming into operation this very month with full time commissioners and officers. The George office would also have a rotating staff member who would be in different  labor centres on different days in a bid to ensure that the officers were able to reach beyond the satellite offices. In areas like Johannesburg where traditionally the cases came through the main office in the city, they were starting to hear cases outside the city area and they were looking to set up satellite offices. Broadly speaking over the 12 months, budget permitting, they intended to install satellite offices in areas that had a minimum of 1% of the case load.

Mr Mzondeki asked if they could establish the reasons for the poor performance of the under-performing provinces, especially the Eastern Cape.

Ms Kahn replied that as a director she agreed with the Committee that underperformance should not be encouraged and performance should be above 70% in all provinces. In the Eastern Cape however there had to be a major intervention and turnaround in the management of the province. They had nevertheless managed to stabilize the province and they hoped to report on improvements made in a follow-up meeting. One of the reasons why the Eastern Cape was struggling was the prevalence of tensions and differing views when it came to fiscal matters. In addition, the province was struggling because it had vast territories to cover but they were looking to improve on accessibility.

Mr Mzondeki requested further clarity about the table that contained information on the use of community radio stations as a medium. He wanted a detailed explanation because in some areas like Gauteng there was no indication of the number of community radio stations. Did this mean that there were no community radio stations in Gauteng or Johannesburg?

Ms Kahn replied that it was not a matter of Gauteng not having community radio stations but that most community radio stations wanted to be paid to have a programme on the CCMA. So it was a matter of economics. It made sense that they should then appear on bigger radio stations as opposed to the community radio station. She said she spoke frequently on the radio in Gauteng.

The Chair asked why the minimum target for community radio station and the other forums such as imbizos or road shows was four.

Ms S Rajbally (MF) asked if a worker who had lost a case could apply to the CCMA for a re- appeal.

Ms Kahn replied that part of the CCMA process was that the arbitration award was final and binding. If an employer failed to comply, there was a provision that allows one to take the matter to the labour court which then enforced the award like any other normal court. However, there were no provisions for an appeal. If a worker was dissatisfied with a decision made by the commissioner, the worker could make an application to the CCMA director who would then look at the case; but the rights involved were ones of review not appeal. 

Ms Rajbally asked if workers were aware of their rights, in particular, when they could use the CCMA and for what. She asked if the CCMA held seminars in the various provinces. 

Ms Kahn replied that they did hold seminars in the provinces and they tried to hold them in different areas however the seminars were never well attended.

The Chair asked about progress they had made in the matter of expediting cases in the labor court.

Dr U Roopnarain (IFP) thanked the director for the presentation. She then asked why the process of the signing of performance contracts she had read on page 22, had not been completed.

Ms Kahn replied that the CCMA had always had its own performance management system and in the course of the year they had tried to change and re-engineer the process. Due to time constraints among other things they were unable to finish the re-engineering process so they were back to using the old performance contracts. However they intended to finish the re-engineering process during the course of the year.

Dr Roopnarain asked if sexual harassment was a common workplace problem and challenge.

Ms Kahn replied that sexual harassment was a problem.

Dr Roopnarain asked who would intervene if the staff of the CCMA had a dispute.

Ms Kahn replied that the CCMA, like any other workplace, had disputes and disagreements. The CCMA nevertheless had a staff association which was significantly representative and like any other employer they had processes where they engaged and negotiated with their staff. They also had a collective agreement that informed them on how to deal with their disputes and the staff had a right to refer the case to the CCMA. When a member of staff referred a case to the CCMA, the appointed commissioner would be a part time one. Previously they used to have private arbitration if any disputes broke out but they changed the system to the referral one because this was more cost effective. Private arbitration was more expensive. The CCMA staff also had a right to declare disputes with them and go on strikes.

Dr Roopnarain asked about the most common workplace dispute.

Ms Kahn replied that 75% of the CCMA case load involved unfair dismissals and this was the bulk of their work.

Mr L Labuschagne (DA) echoed the sentiments of the other speakers in terms of the quality of the presentation. He asked for the required qualifications needed for one to be appointed a commissioner.

Ms Kahn replied that the CCMA commissioners were appointed by a governing body and most of the members of the governing body were among the delegation before the Committee. There were no set requirements although all commissioners were required to perform according to a certain standard required by the board.  What they looked for was experience in industrial relations and the work place and as such they were seeing more lawyers, industrial relations and human resources specialists or ex-trade unionists being appointed as commissioners. In most cases these groups of people have already done the courses covered during training. 

Mr Labuschagne asked if all commissioners came fully trained or were they trained after being appointed as commissioners?

Ms Kahn replied that the CCMA did train the staff once appointed. However, their role was more generic and could be done by an independent service provider like a university that is accredited to do the job. For any practical work, the CCMA undertook the sole role of trainer because they wanted commissioners to be up to a certain standard in order for them to meet and balance their goal of quality and quantity.

The Chair agreed with Ms Twala that the hope of the vulnerable worker was the CMMA - so there was need for a workable budget. She asked what they were doing in terms of vulnerable workers who were unrepresented, especially when they were dealing with labor brokers.

Mr T Anthony (ANC) asked what the CCMA was doing in terms of raising awareness of the CCMA at school level.

Mr Labuschagne asked if they ever tested or performed spot checks on their call centres. This was because whenever he wanted help and telephoned a call centre all he ever got where endless reference numbers but no results.

Mr Nersan Govender replied that their call centres where open from 8:30 to 5pm. He and his other colleagues did check on the call centres to make sure that they were up to standard was to call the call centres disguised as a member of pblic. In addition to this, call centre managers frequently listened in to telephone calls made to the centres. The problem was that most members of the public made calls to the call centre wanting instant gratification. What they needed to understand was that call centres were there to ensure that the public were made aware of the proper procedure and process to take when they were dissatisfied.

Mr Labuschagne asked if the Commission could not share offices with the Department of Labour in order for them to increase their footprint in society. Moreover this also seemed cost effective.

Ms Kahn replied that sharing offices with the Department of Labour was part of the process that was why they had brought the case management system into the department as opposed to them opening their own offices. As a result they were pushing for resource sharing by working together with the department. Moreover they regularly teamed up with the department whenever they went around in their mobile trucks.
 
Mr Labuschagne asked if the Commission could explain to him briefly the CCMA process.
 
Mr Afzul Soobedaar, National Senior Commissioner: Mediation, replied and used the example of an unfair dismissal case. In such an instance a complainant had 30 days to refer the case to the CCMA. If the case was referred after 30 days the complainant has to show good cause why the case was not referred within the 30 days. If good cause was shown, condonation was given for the late referral. The first part of the process was called pre-con and basically during this period they make contact with the employer and inform the employer of the allegations being brought and they try to resolve the issue during this period. A lot of cases actually got resolved at the pre-con stage. If pre-con fails then they have to conciliate the matter within 30 days. This part of the process was known as the con-up period. If it went well during con-up then a conciliation agreement was drawn up and the matter was resolved. If however after both these processes failed, the matter was taken up for arbitration and within 14 days an arbitration decision that was binding, was given. 

The Meeting was adjourned.