The institution that plays a critical role in safeguarding the rights of employees is the Commission for Conciliation, Mediation and Arbitration – commonly known as the CCMA.
In order to meet the demands of labour challenges in today’s rapidly changing world, the CCMA has adapted and enhanced its rules in order to streamline the dispute resolution process, promote access to justice, and create an environment that fosters productive employer-employee relationships.
Among a number of amendments, there are two new rules that have been added (Rule 1A and 31C).
Rule 1A has been introduced to ensure the protection of personal information as per legislation – the responsible party must process the personal information of the other party in accordance with POPIA.
Rule 31C relates to the re-enrolment of a matter, which states that the referring party has 14 days to request re-enrolment which then allows the opposing parties seven days to oppose.
For your convenience, below is a very brief description of the amendments to the current rules.
| Rule 1 | Telefax has been removed as one of the contact methods. |
| Rule 2 | The insertion of the commission to determine operating hours aside from normal hours, as well as documents may no longer be faxed to the CCMA. |
| Rule 3 | The commission is now able to schedule matters for the period between the 16th of December and the 7th of January. |
| Rule 4 | If a document has not been signed or if it was signed by someone who is not allowed to, that party can still show their intention to submit the document by attending the scheduled proceedings in front of the commissioner or by using any other way to confirm their intention. Electronic signatures, inclusive of an electronic referral, are deemed acceptable. |
| Rule 5 | Cosmetic changes referring to the wording, for example, instead of ‘the commissioner may direct or accept’ , it has changed to ‘the commissioner may order the service’. |
| Rule 7 | Faxing documents have been excluded as a filing method. The electronic online portal is now a preferred method of contact. |
| Rule 9 | The amendment clarifies that condonation must be sought for a late referral according to the Act, CCMA rules, or other employment laws. A condonation application can be submitted through LRA 7.11 or electronically on the CCMA online portal, while opposition by the other party would be governed by Rule 31. |
| Rule 10 | A party must refer a dispute using a 7.11 form, which can be submitted through the electronic portals. If using alternative methods, they must provide proof that it was served to the other parties and include an application for condonation if the referral is late. Failure to include condonation may result in the commission deciding how to handle the matter. Rule 10(3)has been added, stating that the CCMA will decide whether condonations will be determined through a hearing or written submissions. Top of Form |
| Rule 13 | The discretion of the commissioner is removed when deciding what to do if the party fails to attend. A certificate can only be issued if a signed picketing agreement is presented, or picketing rules have been established. |
| Rule 18 | Electronic referral online portals can be used. If using alternative methods, the requesting party must provide written proof of the request being served to the other parties, attach an application for condonation if the request is late, and the commission will decide on condonation procedures if not included. |
| Rule 23 | If a signed agreement is provided to the CCMA, the commissioner has the discretion to postpone the proceedings; however, in the absence of an agreement, an application must be made under Rule 31. Rule 23(4) allows the commissioner to either postpone the hearing, convene an inquiry to decide on postponement (for applications), or determine the matter in any appropriate manner, while Rule 24(5) states that there is no automatic right to a postponement, and unless confirmed, the matter will proceed. |
| Rule 24 | The location of a hearing, which now encompasses both conciliation and arbitration, will be determined by the commission or the commissioner, and the term ‘dispute’ has been replaced with ‘cause of action’. Additionally, virtual enquiries are now allowed, and an application can be made if a virtual enquiry is not scheduled. |
| Rule 29 | Parties may request the disclosure of relevant documents after the certificate of outcome or the 30-day conciliation period (with a five-day response time), and a commissioner has the authority to order disclosure, although parties can still reach an agreement. This rule differs from disclosure disputes under Section 16 of the Act. |
| Rule 30 | The arbitrator is required to get the reason for nonattendance. If a valid reason is provided, the arbitration may be rescheduled. However, if there is no valid reason or the absence is willful or unexplained, the party may be removed from the roll. The arbitrator must notify the parties of the decision to remove them within 14 days. |
| Rule 31 | This rule covers various types of applications, replacing ‘affidavit’ with ‘written statement or affidavit’, allowing the delivery of a written statement or affidavit within specified timelines, and permitting applications to be determined on the papers or set down for a hearing. The commission must allocate a hearing date once the replying written statement or affidavit is delivered, and parties must be notified of the hearing details. |
| Rule 32 | This rule does not apply to a decision taken by the commission or commissioner to remove a matter from the case roll in terms of Rule 30. |
| Rule 34 | LRA 7.19 requires completion and signing of a form by the employee (unless specified in a contract or collective agreement), with a copy attached to the request, following guidelines set by S188A(4)(b) and only applicable to salaries above a threshold (R241110.59 p.a.). In addition, the employer is responsible for paying the fee, while bank guaranteed cheques are no longer accepted, and conducting an enquiry would violate the Protected Disclosures Act 26 of 2000. |
| Rule 37 | The changes include specifying that the subpoena request does not apply to documents and material, which should be requested under Rule 29. The commission or commissioner may require additional information and written responses regarding the subpoena request. Serving the subpoena now includes the option of emailing it to the person subpoenaed. Sub-rules regarding service no longer apply if the commission has waived the requirement to pay witness fees. |
| Rule 40 | Clarifies that an arbitration award includes costs, a taxed bill of costs, and arbitration fees, and the sheriff has the authority to enforce the awarded amount, along with interest and the sheriff’s costs, through execution. |
| Rule 41 | Various definitions of words have been added or amended. |
As seen above, CCMA rules can potentially be a minefield to understand and navigate correctly. If you need any advice or require the services of an expert, give HRTorQue a call. We would love to help – email us on [email protected].