June 19, 2023
By: Louis Kruger
The Commission for Conciliation, Mediation and Arbitration ("CCMA") has recently announced certain amendments to its rules and forms that took effect on 24 April 2023. In the first instance, these changes appear to be routine, as section 115 of the Labour Relations Act 66 of 1995 ("LRA") mentions that the CCMA must review its rules every second year to ensure that the rules comply with new legislation. Another reason for this review was necessitated by recent case law developments, particularly in decisions laid down by the Labour Court ("LC") and Labour Appeal Court ("LAC").
Firstly, have abolished the option to serve and file documents and correspondence on the CCMA by facsimile. Rule 1 only mentions addresses, telephone numbers and email addresses as realisable ways to contact the CCMA. A similar amendment is repeated in Rule 2(3) and Rule 7(2), where the use of facsimiles is no longer mentioned. However, parties may still serve documents to each other by way of fax. The new rules also address compliance with the Protection of Personal Information Act 4 of 2013  ("POPIA"). Rule 1A requires a party to serve or file documents compliant with POPIA and other data protection legislation. While the POPIA's objective is protecting personal information, these amendments aim at including POPIA compliance on CCMA forms, as it now boasts a built-in POPIA clause. Previously, the POPIA compliance was provided separately but is now replaced by the "POPIA Confirmation" clause on the CCMA forms.
Following case law in Adams v National Bargaining Council for the Freight and Logistics Industry and Others, the LAC echoed the decision of the National Bargaining Council for the Freight and Logistics Industry ("NBCFLI"). In this matter, both the employee's referral forms, as well as when the case was referred to arbitration, were signed by his attorney. The respondent's representative argued that the referral was fatally defective as the forms were signed by someone else and not him, further arguing that the bargaining council lacked jurisdiction because of this flaw. The LAC found that both referral forms were defective, as the NBCFLI Rules, specifically Rule 6, require that the employee sign these forms. With the amendments to Rule 4 of the CCMA Rules, the CCMA has identified that this is a common stumbling block for referring parties who may not be well-versed in the rules of the CCMA. Rule 4(1) now states that documents can be signed by either the parties or their representatives entitled to do so by the LRA or the Rules. Rule 4(1A) goes further by providing discretion to a commissioner. If a document was not signed by a party or by the person entitled to represent that party, the attendance of such a party to the proceeding shows the party's intention to have signed the document. This is quite a radical departure from the strict previous approach, which appeared to have placed undue emphasis on form over substance.
In the spirit of resolving labour matters fairly and swiftly while effectively dealing with the substantial merits, Rule 30(1) was amended due to the judgment delivered by Moshoana J in the Labour Court. In Solomons v Food Lovers Market Kempton Park, both partiesdid not attend arbitration proceedings as there was an agreement between these parties to postpone the arbitration. After the commissioner dismissed the matter without dealing with the parties' reasons behind the arrangement, the LC found this to be an error and that the case should have been postponed. Here, S138(5)(a) of the LRA applies as this section deals with a no-show of the referring party at arbitration. The LC compared the concept of "dismiss", as expressed in S138(5)(a), to "striking the matter off the roll", meaning that the matter could be re-enrolled at a later stage if the referring party were to provide a satisfactory explanation for their absence. Interestingly, the LAC addressed this in the recent decision of Mohube v CCMA and Others (JA18/2022). Waglay JP expressed disagreement with how the LC interpreted the word "dismissal" in the Solomons-judgment, mentioning that it created "legal confusion". The LAC indicated that the word "dismissal" in S138(5)(a) should keep its plain and unambiguous meaning. However, he added that commissioners should remember that the word "may dismiss" means it should be done as a matter of last resort. See para :
"A decision to dismiss on pure technical non-compliance is a drastic result because it brings the dispute to finality and must therefore not be made lightly. It is a decision, especially in the absence of a proper ventilation of the merits of the dispute, to be made as a last resort."
After the LAC clarified the position, the CCMA published a new directive regarding Rule 30, stating that the ruling (to dismiss) made in terms of Rule 30 is "a ruling contemplated in terms of S144 of the LRA". This means that the dismissal ruling can be rescinded if the ruling was made in the absence of any of the parties (if good cause is shown.
The amended Rules also deal with how the Commission can handle condonation applications. In the interest of making CCMA processes more accessible, Rule 9(2)A was inserted, stating that referring parties may apply for condonation for late delivery or filing of documents via the electronic online portal. Rule 10(2)b states that an application for condonation must accompany such a late referral via the online portal if the referral was not made within the prescribed time period. In contrast to the specific nature of Rule 10(2)b and the word "must" d in the subsection, Rule 10(3) gives further powers to the CCMA: If there is no condonation attached to an out-of-time referral, the CCMA can decide if condonation will be determined at a hearing or through written submission by the parties, effectively eliminating the need for potential in limine hearings.
Additionally, the changes to Rule 13 focus on when picketing rules should be agreed on. Before the implementation of these amendments, the commissioner dealing with a conciliation for a dispute relating to section 64 of the LRA would determine the picketing rules while issuing the certificate of non-resolution. However, Rule 13 now states that the picketing rules must be established before the certificate is issued, ensuring that all parties have agreed on picketing rules at the moment of issuance in an effort to curb violence during strikes, which is a common occurrence.
Continuing in the spirit of saving time, postponements will be more challenging to attain when scrutinising the changes to Rule 23(2). Before the amendments, parties could agree to postpone an arbitration proceeding without the CCMA having any say in the matter. By substituting the word "must" for the word "may" in Rule 23(2), the power now lies with the CCMA, meaning that the CCMA can now veto an agreement between the parties to postpone arbitration without the parties appearing. The goal of this amendment is to expedite proceedings and cancel frivolous postponements. This concept is also rehashed with the inclusion of Rule 23(5), which states that parties have no right to a postponement.
Since 2021, the CCMA started scheduling hearings between 16 December and 7 January — usually during the time it would have its annual shutdown. The reasons for this were based on trying to catch up on the backlog of cases caused by the COVID shutdowns and the CCMA's budgetary constraints as part-time commissioners were let go, putting extra strain on the ones left. This trend will likely continue, again emphasising accelerating the resolution of matters. Rule 3(2) now states that when a party calculates time periods, they must include the last day if it falls between 16 December and 7 January.
Lastly, another meaningful change can be found in Rule 37, read together with Rule 29. The CCMA now clearly separates the procedure to request disclosure of documents or other material related to the dispute, such as video footage, from the procedure to subpoena a witness. A party can now request by an application that the other party disclose these documents or relevant materials after the CCMA has issued a certificate of outcome or if the initial 30-day period for conciliation has lapsed. However, to ensure a witness is present at the arbitration proceeding, the party should complete an LRA Form 7.16 and include motivation stipulating why the CCMA should subpoena a witness.
In essence, these amendments are seen as a decisive step in the right direction by making processes more accessible to those needing them most, ensuring that the CCMA deals with matters quickly and efficiently, and ensuring cases are dealt with substantively.