Chapter9 alternative dispute

Chapter 9: Arbitration in Terms of the Labour Relations Act

9.1 Introduction

  • The Labour Relations Act (LRA) provides for arbitration of labour disputes when conciliation fails.

  • The Commission for Conciliation, Mediation and Arbitration (CCMA) is responsible for handling these disputes.

9.2 Arbitration by the CCMA

9.2.1 Jurisdiction of the CCMA

  • Arbitration is applicable if disputes remain unresolved after conciliation.

  • Any party must request arbitration within 90 days post-issuance of a conciliation certificate.

9.2.2 Appointment and Impartiality of the Commissioner

  • A commissioner must be appointed for arbitration if an unresolved certificate is issued.

  • The commissioner should exhibit impartiality and must not have conflict of interest with the parties involved.

9.2.3 Powers of the Arbitrating Commissioner

  • The commissioner has extensive powers:

    • To subpoena individuals for questioning.

    • To request documents related to the dispute.

    • To enter premises to retrieve necessary documentation.

9.2.4 Pre-arbitration Procedures

  • Request for inquiry, representation, and filing of statements need to be followed before arbitration.

  • A pre-arbitration conference may be held to clarify issues.

9.2.5 Representation at the Arbitration

  • Parties can be represented by legal practitioners or representatives from employer organizations.

9.2.6 Hearing

  • The arbitration hearing should be fair, expeditious, and focus on substantial merits of the case with minimal legal formalities.

  • Arbitrators can take an investigative or adversarial approach, ensuring clarity without bias.

9.2.7 The Award

  • Awards must be issued within 14 days post-arbitration with brief reasons for their conclusions.

  • The appropriateness of the award is decided according to LRA stipulations, considering collective agreements.

9.2.8 Enforcing the Award

  • Execution involves certifying the award and obtaining a warrant from the Labour Court.

  • The award prescribes after three years, necessitating timely enforcement actions.

9.3 Arbitration by Councils

9.3.1 Introduction

  • Bargaining and statutory councils are established for specific industries to handle disputes according to the LRA.

9.3.2 Jurisdiction of Councils

  • Councils resolve disputes involving their members or disputes that fall within their scope as per collective agreements.

  • Non-members may refer disputes to councils for arbitration with the right circumstances.

9.3.3 Accreditation by CCMA

  • Councils require CCMA accreditation to resolve disputes or may appoint accredited agencies for this function.

  • Certain matters like organizational rights and statutory council limitations are excluded from council arbitration.

9.3.4 Arbitration Procedures for Councils

  • Councils must follow stipulated procedures for resolving disputes, also allowing collective agreements to establish specific terms.

9.4 Private Arbitration

9.4.1 Involvement of the CCMA

  • The CCMA can appoint a commissioner to resolve disputes involving employees under specific conditions or refer to private arbitration if agreed.

9.5 Special Types of Arbitration

9.5.1 Interest Disputes

  • Strikes and lockouts in essential services are prohibited; disputes must be resolved through CCMA arbitration.

  • Arbitrators can anticipate outcomes based on fair negotiations should they not reach an agreement.

9.5.2 Pre-dismissal Inquiries

  • The LRA permits parties to request inquiries for misconduct or incapacity, ensuring an impartial third party conducts hearings.

9.5.3 Advisory Arbitration

  • Advisory arbitration provides non-binding recommendations on disputes to facilitate negotiations.

9.6 Review of Arbitration Proceedings

9.6.1 Introduction

  • The Labour Court has exclusive jurisdiction to review arbitral awards and actions under the LRA.

9.6.2 Grounds for Review

  • Grounds include misconduct, gross irregularities, exceeding powers, and improper obtaining of awards.

9.6.3 Reasonableness

  • The test for review assesses whether the commissioner's decision is reasonable based on available facts, not strictly procedural.

9.6.4 Review Judgment

  • The Labour Court can decide disputes, remitting issues for fresh arbitration if necessary. Appeals against decisions can be made to LAC.