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

JurisdictionSouth Africa
Citation2012 Acta Juridica 120
Pages120-147
Date15 August 2019
AuthorAnton Steenkamp
Published date15 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.
120
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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