|Article Date: 23 October 2002
by Derrick Mahlangu
The Labour Relations Act constitutes a broad framework, conferring certain rights on citizens and judicial bodies. In order for these rights to be fairly and justly administered, the Rules were created to construct a clear framework in which the administrative process can operate. The rules give users of the CCMA a clear indication about what to expect and also ensure that all CCMA staff conduct themselves in a consistent manner.
THE PROCESS OF MAKING THE RULES
The CCMA Rules came into operation concurrently with the implementation of the Labour Relations Amendment Act, the Basic Conditions of Employment Amendment Act and new Labour Relations Regulations, which include new referral forms for referring disputes to the CCMA.
Section 115(2A) of the Labour Relations Amendment Act delegates powers to the CCMA to create such Rules. In creating the Rules, the CCMA followed a broadly consultative and transparent process. The new Rules, like the Labour Relations Amendment Act, were the product of intense negotiation by the social partners, comprising organised labour, organised business and the State. Their central purpose is to give effect to many of the new provisions created by the Labour Relations Amendment Act while, at the same time, improving upon efficiencies and the general operation of the CCMA.
THE IMPORTANCE OF THE RULES
The Rules were created to accommodate the new processes introduced by the amendments to the Labour Relations Act, such a pre-dismissal arbitration. The Rules provide commissioners with guidelines for conducting processes and ensures that all commissioners conduct processes in a similar manner.
The amendments to the LRA have made it necessary to review and redesign the CCMA Rules to accommodate the new processes introduced by the amendments. The Rules now provide procedures to be adhered to when dealing with the following:
• Pre-dismissal arbitrations
• Con- Arb
• New approach to probation
• Facilitation in retrenchment
• Additions to the meaning of dismissal and unfair labour practices
• The status of settlement agreements and arbitration awards
THE NEW VERSUS THE OLD – KEY CHANGES
There was a need to make the rules easier for the parties to understand by putting them into plain English and by creating a simple format that would assist users to identify relevant Rules more quickly and easily. The following are some of the key changes to the Rules.
The old CCMA Rules defined “day” as a “court day” which meant that Saturdays, Sundays and public holidays were excluded when calculating time periods. Unfortunately this created confusion amongst users at the CCMA, particularly unrepresented parties, who did not understand that for the purposes of calculating time periods in the Labour Relations Act, “day” was a calendar or ordinary day, whereas for the purposes of calculating periods in the CCMA Rules, “day” was defined as a court day.
The new Rules revert to the definition of “day” as a calendar day. The new Rules explain that when calculating any period of time, the first day is excluded and the last day is included. The only departure from the calculation of time periods as set out in the Labour Relations Act is that if the last day of any period falls on a Saturday, Sunday or public holiday it is excluded from the calculation. This provision was necessary as most employees and employers are not available to attend CCMA processes during the period of 16 December to 7 January. The new Rules suspend action during the Christmas/New Year period. However, the period in the Labour Relations Act, such as the time periods to refer a dismissal dispute or an unfair labour practice dispute are not affected by the new Rules and these periods continue to run during the period 16 December to 7 January.
Signing of documents
The CCMA referral forms require the referring party to sign the referral form. The new Rules clarify who may sign documents, including a referral form. These may be signed by the party to the dispute or by a person entitled, in terms of the Labour Relations Act or the new Rules, to represent that party in proceedings. A registered trade union and a registered employer’s organisation may sign a referral form. A labour consultant, who is not entitled to represent a party in the CCMA, may not sign a referral form. It is arguable that the new Rules do not oust the common law right of an attorney to sign a referral form on behalf of a client. This right derives from the common law of agency. The Labour Relations Act is silent on this issue and should be interpreted so as not to oust the common law position.
The new Rules further provide that if proceedings are jointly instituted or opposed by more than one employee, documents may be signed by an employee who is “mandated by the other employees to sign documents”. A list must, however, be attached to the document setting out the names of the employees who have mandated the signatory to sign on their behalf. This rule is intended to address the problems associated with group referrals where it is often cumbersome for all the referring employees to sign the referral form. The new procedure ensures that the identity of all those involved in the dispute is established when the dispute is initiated.
Service and filing in terms of the rules
The new Rules provide detailed provisions on the service, filing and delivery of documents. These rules are intended to clarify the meaning of proper service of any process (a new referral, an application or a document) at the CCMA. Rule 5(1) defines what constitutes “service”, while Rule 5(2) sets out what is acceptable service on a company, body corporate, a trade union or employer’s organisation, a partnership, firm or association, a municipality, a statutory body or the state or a province, a state department or a provincial department, a minister, premier or a member of the executive committee of a province. To assist in determining whether or not there has been proper service of a document, Rule 6 sets out how a party should prove that a document was served in terms of the new Rules. The Rules create a rebuttable presumption that if proof of service in terms of the Rules is provided, it is presumed, until the contrary is proved, that the party on whom service was made has knowledge of the contents of the documents, which were served. The new Rules, however, grant the CCMA discretion to accept proof of service in any manner other than that prescribed in the rules.
Rule 7 clarifies when a document is filed with the CCMA. Rule 8 creates a rebuttable presumption that if a document is sent by registered post, it is presumed to have been received by the person to whom the document was sent, seven (7) days after it was posted. This presumption applies to all documents sent by registered post, whether posted by a party or by the CCMA.
The CCMA may, in terms of Rule 12, contact the parties to the dispute by telephone or by other means, prior to the commencement of the conciliation, to try to resolve the dispute. This pre-conciliation contact is utilised to great effect by the CCMA to try to settle disputes, particularly those involving domestic workers, without having to convene a formal conciliation. If the dispute is not settled by these means prior to the conciliation, the conciliation would still proceed in the normal course.
The Rules further provide a whole lot of procedures, for instance, the CCMA must give parties 14 days notice for a con-arb. This is in compliance with section 191(5A).
The new Rules provide that in complex arbitrations, the parties may be ordered to file pleadings. In terms of these provisions, the referring party may be required to file a statement of case and the respondent an answering statement, within time frames determined by a commissioner.
More key changes are found on: applications for condonation, rescission applications and the other elements, which deal with the correction of citation, consolidation, substitution and joinder of applications. If a party to the proceedings has incorrectly or defectively cited another party, the CCMA may on application and on notice to the parties, correct the error or defect.
Just like the Labour Court and the Labour Appeal Court, the CCMA has Rules. The CCMA Rules had been created to put uniform standards both in the administration of proceedings and in the application of the Act. The predetermined objective of the Rules is to simplify and clarify the provisions of the Labour Relations Act and to address the problems identified in the Old Rules. Whether the new Rules will achieve the envisioned objective, will be determined largely by the manner in which they are applied
Albertyn, S. 2002. The New CCMA Rules. CCMA: Institution Building Department: Head Office.
CCMA. 2002. How best to use the CCMA and the Law. Best Practice Phase 3. Resource manual for the trade unionists. August 2002.
CCMA. 2002. Rules for the conduct of proceedings before the CCMA (The New CCMA Rules). Regulations gazette No. 23611, Volume 445. Government notice R961 of 25 July 2002.
Government Printers. 2002. The Labour Relations Amendment Act, No. 12 of 2002. Proclamation No. R61 in government gazette No 23611, Volume 445 of 25 July 2002.