Labour dispute resolution under the 1995 LRA: Problems, pitfalls and potential

• Jurisdiction: South Africa
• Citation: 2012 Acta Juridica 120
• Pages: 120-147
• Date: 15 August 2019
• Author: Anton Steenkamp
• Published date: 15 August 2019

Labour dispute resolution under the 1995

LRA: Problems, pitfalls and potential

ANTON STEENKAMP* AND CRAIG BOSCH

†

The objectives of labour dispute resolution are, and have for a long time been,

speed, accessibility (in terms of geographical location, cost and relatively

simple procedures) and legitimacy (which derives from representivity in the

dispute resolution body, certainty and expertise).The raisons d’etre for these are

fairly obvious: neither employers nor employees (especially those recently

dismissed) can afford delays and they do not have an intimate knowledge of

legal processes. Labour dispute resolution bodies have an important role to

play in maintaining an appropriate balance between the rights and interests of

employers and employees while maintaining relatively healthy industrial

relations with minimal resort to self-help.

This contribution aims to critically examine the dispute resolution institu-

tions and processes established by the Labour Relations Act 66 of 1995 (the

LRA) in order to assess the extent to which they have realised the objectives of

promoting healthy industrial relations. We deal with the examination of these

institutions in two parts: in the f‌irst, Craig Bosch deals with conciliation and

arbitration in the Commission for Conciliation, Mediation and Arbitration

(the CCMA); and in the second, Anton Steenkamp deals with the labour

court.

I CONCILIATIONAND ARBITRATION IN THE CCMA

(1) Introduction

This part of the contribution examines the role and functioning of the

CCMA. Space constraints do not permit a discussion of dispute resolution

in bargaining councils or private dispute resolution bodies. I will assess

how conciliation and arbitration processes in the CCMA are, and could

better be, conducted; and in doing so I will focus some attention on the

issue of enforcing arbitration awards and settlement agreements – some-

thing which is arguably corroding the base of the CCMA. Finally, I

discuss brief‌ly the recently proposed amendments to the LRA, which

impact on the role and functioning of the CCMA. One theme which

rears its head throughout this f‌irst part is the relationship (and often

tension) between dispute resolution processes, which deliver on the

LRA’s promise of economic development, social justice and labour peace,

and the f‌inancial constraints under which institutions like the CCMA

* BA LLB (Stell) LLM (Pret) LLM (Notre Dame); Judge of the Labour Court.

†

BA LLB (Stell) LLM (UCT); Mediator and arbitrator; Research Associate of the Labour

and Social Security Law Unit, Faculty of Law,Nelson Mandela Metropolitan University.

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2012 Acta Juridica 120

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operate. I suggest that careful consideration needs to be given to the need

to properly resource the CCMA in order to ensure that it delivers quality

labour dispute resolution that is expeditious, accessible and fair.

(2) The backdrop to the LRA

It is necessary to begin a discussion of the LRA’s dispute resolution

processes with reference to the ills they were intended to cure. In the

Explanatory Memorandum which accompanied the draft Labour Rela-

tions Bill the drafters noted that utilising the then conciliation procedures

required sophistication and expertise, and the conciliation process was

mired in procedural technicalities. These diff‌iculties were compounded

by a lack of resources, and by personnel who were poorly paid and poorly

trained. The industrial court was, to many,a court in name only. It did not

form part of the formal judicial hierarchy nor did it have the status of a

high court. Its staff had no security of tenure and their remuneration

packages were relatively low. The industrial court’s processes became

technical and thus inaccessible to lay people, and appeals lay from that

court to the Labour Appeal Court and from there to the then appellate

division. That led to increased costs and delays.

1

(3) The framework of dispute resolution under the LRA

The LRA aimed to address these problems by providing ‘simple proce-

dures for the resolution of labour disputes through statutory conciliation,

mediation and arbitration (for which purpose the Commission for

Conciliation, Mediation and Arbitration [was] established) and through

independent dispute resolution services accredited for that purpose.’

Section 1 of the LRA states that one of the primary objects of theAct is to

promote ‘the effective resolution of labour disputes’ and, according to s 3,

the LRA must be interpreted in accordance with its primary objects. It has

been said that an effective dispute resolution system is one that is properly

structured and functioning, and resolves disputes quickly and f‌inally.

2

I would add that effective dispute resolution processes resolve disputes

fairly in addition to being accessible, speedy and inexpensive.

1

‘Explanatory Memorandum’ (1995) 16 ILJ 278 at 326. See also Pep Stores(Pty) Ltd v Laka

NO & others (1998) 19 ILJ 1534 (LC). It is somewhat ironic that the Wiehahn Commission, on

whose recommendation the industrial court was established, recommended that the court

should follow a less formal procedure but observe the principles of natural justice, and that the

costs of litigation should be kept as low as possible. See Part 1 of the Wiehahn Report of 1979;

and the discussion in M Brassey ‘The new industrial court’(1980) 1 ILJ 75.

2

Pep Stores (Pty) Ltd v Laka NO & others (n 1) 1539.

121LABOUR DISPUTE RESOLUTION UNDER THE 1995 LRA

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