PRACTICE AND PROCEDURE MANUAL 5th Edition November 2010 101 Table of Contents Chapter 1 Introduction 101 Chapter 2 Functions, Jurisdiction and Powers Generally 201 Chapter 3 Notice and service 301 Chapter 4 Representation 401 Chapter 5 Referrals and initial administration 501 Chapter 6 Pre-conciliation 601 Chapter 7 Con-Arb 701 Chapter 8 Conciliation 801 Chapter 9 Certificates 901 Chapter 10 Settlement agreements 1001 Chapter 11 Request for arbitration, pre-arbitration procedures and subpoenas 1101 Chapter 12 Arbitrations 1201 Chapter 13 Admissibility and evaluation of evidence 1301 Chapter 14 Awards 1401 Chapter 15 Applications 1501 Chapter 16 Condonation applications 1601 Chapter 17 Rescissions and variations 1701 Chapter 18 Costs and taxation 1801 Chapter 19 Enforcement of settlement agreements and arbitration awards 1901 Chapter 20 Pre-dismissal arbitration 2001 Chapter 21 Review of arbitration awards 2101 Chapter 22 Contempt of the Commission 2201 Chapter 23 Facilitation of retrenchments in terms of section 189A of the LRA 2301 Chapter 24 Intervention in disputes in terms of section 150 of the LRA 2401 102 Chapter 25 Record of proceedings 2501 Chapter 26 Demarcations 2601 Chapter 27 Picketing 2701 Chapter 28 Diplomatic consulates and missions and international organisations 2801 Chapter 29 Index 2901 101 Chapter 1: Introduction 1.1 This manual records the practices and procedures of the CCMA. It is a work in progress and the intention is to continuously improve and update it, particularly as and when practices and procedures change. The manual is written in a question and answer format. It was not intended to cover every possible question. The questions covered are those which most commonly arise in the every day work environment. 1.2 The purpose of the manual is- to be a reference of the practices and procedures of the CCMA; to assist CCMA staff in the performance of their functions; and to promote consistency in the performance of the CCMA functions. 1.3 The following features of the manual will assist users in finding relevant topics: The contents page provides a list of the topics covered in each chapter; The pages are numbered in such a way that the chapter number is indicated on each page e.g. the page number 202 indicates that it is the second page of the second chapter and the number 1003 indicates that it is the third page of the tenth chapter; At the commencement of each chapter the contents of that particular chapter are set out; The index provides links between chapters and key words. 1.4 The electronic version contains hyperlinks between each chapter listed in the table of contents and the first page of the chapter. To go to the commencement of the chapter press “control” and click on the name of the chapter. The electronic version also contains hyperlinks between each question listed at the commencement of a chapter and the paragraph dealing with the question. To go to the paragraph dealing with the question, press “control” and click on the question. To return to the commencement of the chapter from the paragraph dealing with the question press “control” and click on the question. To return to the table of contents from the commencement of a chapter press “control” and click on the name of the chapter. 201 Chapter 2: Functions, Jurisdiction and Powers Generally Contents 2.1 What are the obligatory functions of the CCMA? 2.2 What are the discretionary functions of the CCMA? 2.3 What is meant by jurisdiction? 2.4 In what geographical area may the CCMA exercise its powers and where must such powers be exercised? 2.5 Who are the parties in respect of whom the CCMA has jurisdiction? 2.6 In respect of what parties does the CCMA not have jurisdiction? 2.7 What categories of disputes may generally be conciliated by the CCMA? 2.8 What disputes must be arbitrated by the CCMA? 2.9 Under what circumstances does the CCMA have jurisdiction to arbitrate an unfair dismissal dispute involving a dismissal for operational requirements of a single employee? 2.10 Under what circumstances does the CCMA have jurisdiction to arbitrate a dispute about the interpretation or application of a settlement agreement? 2.11 What disputes fall under the jurisdiction of bargaining councils and what are the CCMA‟s powers in respect of such disputes if they are referred to the CCMA? 2.12 If parties have agreed in a collective agreement to refer the disputes about the interpretation or application of the collective agreement for resolution in terms of a procedure provided for in the agreement, what are the CCMA‟s powers if such disputes are subsequently referred to it? 2.13 If parties have agreed in a private agreement that disputes between them ought to be resolved through private dispute resolution, what are the CCMA‟s powers if such disputes are subsequently referred to it? 2.14 Where applicable what should be taken into account in exercising a discretion (should one exist), whether the CCMA should continue to resolve the dispute or whether the dispute should be referred to the appropriate person, bargaining council or other body with jurisdiction? 2.15 What are the procedural requirements for each process and what relief may be awarded? 2.1 What are the obligatory functions of the CCMA? In terms of section 115 (1) of the LRA the CCMA must, inter alia- 2.1.1 attempt to conciliate any dispute referred to it in terms of the LRA; 2.1.2 arbitrate a dispute that remains unresolved after conciliation, if it has the powers to do so; 2.1.3 perform any other duties imposed on it by or in terms of the LRA; and 2.1.4 compile and publish information and statistics about its activities. 202 2.2 What are the discretionary functions of the CCMA? In terms of section 115 (2), (2A) and (3) of the LRA the CCMA may, inter alia, 2.2.1 if asked, advise a party to a dispute about the procedure to follow in terms of the LRA; 2.2.2 if asked, assist a party to obtain legal advice, assistance or representation; 2.2.3 offer to resolve a dispute that has not been referred to it through conciliation; 2.2.4 make rules regulating the matters referred to in sections 115 (2) (cA) and 115 (2A) of the LRA; 2.2.5 conduct, oversee or scrutinise any election or ballot of a registered union or employers‟ organisation if asked to do so by that trade union or employers‟ organisation; 2.2.6 publish guidelines in relation to any matter dealt with in the LRA; 2.2.7 conduct and publish research into matters relevant to its function; and 2.2.8 if asked, provide employees, employers, registered trade unions, registered employers‟ organisations, federations of trade unions, federations of employers‟ organisations or councils, with advice or training relating to the primary objects of the LRA. 2.3 What is meant by jurisdiction? 2.3.1 Jurisdiction means the power or competence of the CCMA to hear and determine an issue between parties i.e. to conciliate and arbitrate disputes between parties.1 Limitations are placed on such power or competence in relation to territory, parties, nature of dispute, procedural requirements and where applicable, the extent of the CCMA‟s powers, e.g. relief that may be awarded. 2.3.2 The CCMA is an independent statutory body established in terms of section 112 of the LRA. As such it does not have inherent jurisdiction. Further, it does not derive its jurisdiction from the common law like the High Court, but solely from Acts of Parliament. The CCMA mainly derives its jurisdiction from the LRA but to a limited extent also from the BCEA, the EEA, the SDA and the Mine Health and Safety Act and other statutes. These statutes indicate the jurisdiction of the CCMA by providing for the disputes that the CCMA may conciliate and arbitrate, the geographical area in respect of which the CCMA has jurisdiction, the categories of persons in respect of which it has jurisdiction, the procedural requirements for exercising its powers and the limitations on such powers. 2.3.3 Exclusive jurisdiction to enforce certain LRA rights has been assigned to the CCMA. At arbitration the CCMA has the power to uphold or to dismiss a claim provided it has the power or competence to do so. If the CCMA does not have the power or competence to entertain (consider) the claim, it neither has the power to uphold the claim nor the power to dismiss the claim (other than to dismiss the claim for want of jurisdiction). The claim must be one that is capable of being pursued before and ruled upon by a CCMA arbitrator. When a claimant alleges that the claim is to enforce a right 203 created by the LRA, then that is the claim that the CCMA has before it, as a fact. If the LRA authorises the CCMA to consider and to rule upon such claim then the CCMA has jurisdiction. The claimant must prove what is alleged in this regard in order to obtain relief.2 2.4 In what geographical area may the CCMA exercise its powers and where must such powers be exercised? 2.4.1 In terms of section 114 of the LRA the CCMA has jurisdiction in all the provinces of the Republic. By virtue of the provisions of the Maritime Zones Act, No 15 of 1994, this area extends to internal and external waters and the airspace above it, as well as to certain off shore zones such as installations, platforms,exploration or production vessels.It does not extend to embassies, however, because of the provisions of the Foreign States Immunities Act, No 87 of 1991.3 2.4.2 Generally, the CCMA has jurisdiction to resolve a dispute if the employer‟s undertaking in which the employee worked (works) was/is carried on inside the Republic.4 2.4.3 A party to a dispute does not have a choice as to where conciliations and arbitrations should take place.