BCHC: What you need to know about the recent amendments to the CCMA rules

In this newsletter we look at the recent amendments to the CCMA Rules which came into effect on 1 January 2019. The need to amend the rules flows from practical issues that have been experienced by the CCMA and from the recent changes to legislation. Whilst most of the changes to the Rules may not appear to be substantial, it is still important for parties to ensure that they adhere to these new rules. 

The main amendments can be summarised as follows:

• In terms of 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.
• Rule 14A now incorporates section 135(2A) of the Labour Relation Act, 66 1995 (the LRA) and provides for an extension of the conciliation period.
• 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.
• In terms of rule 24 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.
• Candidate attorneys have specifically been included in rule 25 as being able 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.
• The amended version of rule 29 requires parties to request disclosure of documents/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.
• In terms of rule 31A parties can apply for picketing rules or ask for the determination of disputes relating thereto and such applications must now be set down within 2 days of receipt of the application, unless the parties agree otherwise.
• Section 73A of the LRA 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, 75 of 1997 or the National Minimum Wage Act, 2018, contracts 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.
• Given the above amendment to the LRA, a new rule 31B has been added to the CCMA Rules in relation to what should be included in an application for an arbitration award in respect of a compliance order or written undertaking. The process regarding affidavits to be filed and the hearing that could follow are also included in this rule.
• Rule 37 has been amended to provide for how a subpoena has to be served at least 7 days before the arbitration hearing.
• 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.
• Rule 40A provides that if a commissioner awards arbitration fees in respect of a procedurally unfair dismissal, the fee must be paid by the employer to the CCMA within 14 days.

The amendments to the Rules will hopefully contribute to the more efficient and speedy resolution of disputes going forward.