What to do if the Employer refuses to comply with a CCMA award

 Advocate Estelle Botha

The CCMA has made a financial or monetary arbitration award in favour of an employee. An arbitration award is final and binding – although it is not an Order of the Labour Court, it may be enforced (subject to certain procedures being complied with) as if it were an order of the Labour Court. (section 143 (1) LRA). This does not apply to an advisory award.

It very often is the case that the employer refuses to comply with the terms of the award – so what does the employee do? Firstly, it must be noted that, in terms of section 143(3) of the LRA, an award can only be enforced (as if it were an order of the Labour Court) when the award has been certified by the Director of the CCMA.

Therefore, when an employer refuses to voluntarily comply with the award, the employee must go back to the CCMA, and complete a form LRA 7.18 (Application to certify CCMA award & Writ of Execution.) A copy of the award must be attached to the Form LRA 7.18. There are no time limitations on this process.

A written statement made by the employee, to certify that the award has been served on the respondent party, must accompany the Form LRA 7.18. The service of the award on the employer is carried out by the employee, and proof of serviced is required – a fax transmission slip, registered letter slip, signature or something of that nature.

That statement should include a statement certifying that the respondent has failed to comply with the requirements of the award. Part 3 of the Form is a Writ of Execution, which must be completed by the employee. The employee can also follow the above process, but can bring an application to the Labour Court in terms of section 158(1)(c) of the LRA.

The same procedure applies – and the matter is heard by the Labour Court on the motion roll. The award is then made an order of the Court. The application for a Writ of Execution is then made through the Registrar of the Labour Court. In both cases, the Writ is handed to the Sheriff, who will proceed to the premises of the employer, and attach movable property that will be sold and the proceeds paid to the employee in terms of the award.