Amendments to Rule 11
In terms of the amended rule 11, the CCMA must give the parties at least 7 days’ notice of a conciliation (as opposed to 14 days) in relation to strikes, lockouts and major retrenchments. The 14-day notice rule continues to apply in respect of other disputes. A shorter notice period will be allowed if the parties agree to a shorter period or if reasonable circumstances require it.
Amendments to Rule 14A
The insertion of Rule 14A incorporates section 135(2A) of the LRA and in doing so provides for an extension of the conciliation period by up to five days.
Amendments to Rule 17
Rule 17(3) extends the list of disputes where an objection to a con-arb in terms of section 191(5A) of the LRA is not required, to include the following:
- Disputes relating to a compliance order referred in terms of section 69(5) of the BCEA;
- Claims for failure to pay any amount owing referred in terms of section 73A of the BCEA.
Rule 17(4)(c) gives the commissioner a discretion, as contemplated in Section 138(5) of the Act, to adjourn the proceedings to a later date.
Amendments to Rule 20
Rule 20 has been amended to make pre-arbitration conferences compulsory 14 days before the arbitration if –
- both parties are represented by a trade union, employer’s organisation, legal practitioner or candidate attorney;
- both parties agree to hold a pre-trial conference; or
- the parties are directed to do so by the CCMA.
If the pre-arbitration conference is not held, the commissioner may decide to continue with the arbitration but may consider awarding costs for the non-compliance.
Amendments to Rule 24
Rule 24 has been amended to state that a conciliation or arbitration can now be held in the region where the dispute arose or the region where the employer’s principal place of business is located.
Amendments to Rule 25
Rule 25, which deals with representation at the CCMA, has been amended to allow candidate attorneys to represent parties in arbitrations.
This amended rule also provides that a commissioner may, on application in terms of Rule 31, rule that a person not contemplated in Rule 25(1) may represent a party at the arbitration after considering various factors.
Legal representatives are also not allowed to represent parties in the facilitation of large-scale retrenchments.
Amendments to Rule 28
Rule 28 has been extended to include the following further grounds for consolidating disputes:
- The relief sought in each of the separate dispute to be consolidated, depends on the determination of similar or substantially the same questions of law and fact;
- There will be no substantial prejudice on the party or parties sought to be joined through a consolidation order;
- The balance of convenience favours such consolidation; and
- The CCMA has jurisdiction on all disputes sought to be consolidated.
Amendments to Rule 29
The amended version of rule 29 requires parties to request disclosure of documents or evidence not less than 14 days prior to the date of hearing and the request must be answered within 5 days. The parties can however agree on a later disclosure and a commissioner may still rule that relevant documents/evidence be disclosed.
Amendments to Rule 31A
Rule 31A has been included to allow parties to apply for picketing rules or ask for the determination of disputes relating thereto.
Such applications must now be set down within 2 days of receipt of the application, unless the parties agree otherwise.
Amendments to Rule 31B
Rule 31B has been included to provide for what must be included in an application for an arbitration award in respect of a compliance order or written undertaking in terms of the BCEA.
The process regarding affidavits to be filed and the hearing that could follow is also included in this rule.
Amendments to Rule 35
The provisions of Rule 35, which relates to condonations, are stated not to apply to Rule 25 (which deals with representation at the CCMA).
Amendments to Rule 37
Rule 37 has been amended to provide for the manner in which a subpoena has to be served on the subpoenaed witness at least 7 days before the arbitration hearing. Subpoenas must be served by the person who has requested the issuing of the subpoena or by the Sheriff, at least seven (7) days prior to the scheduled date of the arbitration by:-
- delivering a copy of it to the person subpoenaed personally;
- sending a copy of it by registered post to the subpoenaed person’s –
- residential address;
- place of business or employment; or
- post office box or private bag number;
- leaving a copy of it at the subpoenaed person’s place of residence or place of business or employment with a person who apparently is at least sixteen (16) years of age and is residing or employed there.
Amendments to Rule 40
Rule 40 deals with the certification and enforcement of arbitration awards and has been amended to explain that the amount of the award, costs, an arbitration fee, interest on the amount awarded and the sheriff’s costs can be enforced through execution by the Sheriff.
Section 73A of the BCEA
Section 73A of the BCEA came into effect on 1 January 2019 and provides that employees earning below the threshold of R 205 433.30 per annum may now refer disputes to the CCMA relating to employers’ failure to pay any amounts owing to that employee in terms of the Basic Conditions of Employment Act, the National Minimum Wage Act, a contract of employment, a sectoral determination or a collective agreement.
Employees who fall above the threshold can approach the Labour Court, High Court, Magistrates Court or Small Claims Court depending on the size of the claim. Previously employees had to wait for the Department of Labour to approach the Labour Court or sue their employers in the normal course.
Written by Richard Thatcher- Candidate Attorney
Overseen by Michael Maseo- Partner