Home

New labour judgement confirms that the CCMA has teeth

By Bradley Workman Davies, Director, Kerry Badal, Associate, Werksmans Attorneys

 

CCMA and MBS TRANSPORT CC and Five Others [J1807/2015] / [JA94/2015]

 

Since the introduction of the Labour Relations Act, 66 of 1995, (“LRA”) the playing field of South African labour relations has been fundamentally affected by not only the new statutory protection of employees’ rights recognised in the LRA, but also by the dispute resolution mechanisms created, for the first time, by the LRA.

 

Introduction

Fundamentally, the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) was established by the LRA, in order to conciliate and arbitrate employment related disputes, as an efficient and cost effective forum within which employees and employers can resolve their disputes. The CCMA, in this regard, has been a success story; since its establishment in 1995, the CCMA has become one of the busiest dispute resolution forums in the world, and according to its own 2014/2015 figures, the CCMA –

 

  • received 171 854 referrals;

  • performed 59 268 con/arbs (on average 237 per day);

  • performed a total of 127 997 conciliations, including con-arbs, (on average 512 per day);

  • performed 43 975 arbitrations (on average 176 per day);

  • certified 5 423 CCMA awards.

 

Adding to the ability of the CCMA to be a one-stop shop for the first stage of the resolution of labour disputes, a new case from the Labour Appeal Court (“LAC”) recognizes the right of the CCMA to enforce arbitration awards issued by it, through its own process of certifying awards, and without having to revert to the Labour Court to issue the writ of execution.  Accordingly, the new case law has the effect that once the CCMA has certified an arbitration award, such an award is enforceable as if it were an order of the Labour Court in respect of which a writ had been issued.

 

This approach is quite novel and allows for parties in the CCMA process to continue to use the CCMA to finality in executing against a CCMA award.  In the past, a party with a CCMA award in its favour would approach the registrar of the Labour Court to issue a writ of execution.   However, approaching a different forum to enable the CCMA award to be executed, detracted from the ability of the CCMA to provide an independent and expeditious mechanism for its awards to be enforced.

 

The labour appeal court’s findings

In the case of CCMA and MBS TRANSPORT CC and Five Others [J1807/2015] / [JA94/2015], the LAC recently decided that an interpretation of section 143 of the LRA, which gives the director of the CCMA the right to certify a CCMA award as an order of court, does not justify the practice that the registrar of the Labour Court should issue a writ of execution in respect of certified CCMA awards.

 

The LAC took into account the argument of the CCMA that “employers paid no attention to [CCMA awards] because they were aware of the cumbersome enforcement provisions of the LRA. It is self-evident,” the LAC found, “that this procedure was onerous, time consuming and expensive. It created a two stage procedure in cases where the employer failed to comply with an arbitration award.”

 

The LAC accordingly found that, in order to give effect to the provisions of section 143 of the LRA, and that since the CCMA does not issue writs in the conventional way, there is no legal or practical issue with a CCMA certified award having the equivalent status of a Labour Court order in respect of which a writ has been issued.  The court concluded that “the practical effect of section 143(1) and 143(3) is that a certified arbitration award may be enforced without the need for a writ to be issued by any court or the CCMA.”

 

This judgement gives effect to the explanatory memorandum to the amendments to section 143 which were introduced in 2015, in which it was stated that changes to section 143 were necessary so that –

 

… an award which has been certified by the Commission can be presented to the Deputy-Sheriff for execution if payment is not made. This removes the need for the current practice in terms of which parties have a writ issued by the Labour Court.

 

As a result of the changes to section 143 and the findings of the LAC in CCMA v MBS Transport CC, the process for enforcing an award in the CCMA is now as simple as:

 

  • referring a dispute to the CCMA (within 30 days of the unfair dismissal, or within 90 days of the unfair labour practice);

  • receipt of an arbitration award from the CCMA ordering any party to the dispute to pay the other a sum of money (ordinarily an order for the employer to pay the former employee compensation for the commission of the unfair dismissal or unfair labour practice);

  • application to the CCMA in terms of section 143 of the LRA (using the form LRA 7.18) to certify the award;

  • receipt of the certified award;

  • delivery of the award to the Sheriff of the relevant magisterial district having jurisdiction to enforce the award; and

  • enforcement by the Sheriff (usually by taking into inventory, or possession of goods to the value of the monetary amount of the award).

 

The certification process allows a successful party to continue to use the CCMA to finalize the process and move closer towards enforcement.  It must also be noted that nothing in this judgement or the procedure enabled by section 143 prevents a party who is aggrieved by the CCMA award and who wishes to challenge it, from doing so. The unsuccessful party is always entitled to launch a review proceeding in the Labour Court under section 145 of the LRA, and can either provide security in terms of section 145(7) and (8) or apply for a stay of the execution of the award pending the review, on the basis that the award is under review.

 

It must be noted that the above process applies only in respect of CCMA awards ordering the payment of a monetary amount to a party.  If the certified award to be enforced is for the performance of an act rather than for the payment of money (for example, reinstatement of the employee), then contempt proceedings may be instituted in the Labour Court if the party which must reinstate refuses to do so.

 

Conclusion

The consequences of the LAC’s decision in CCMA v MBS Transport CC will have the practical effect that a party who is successful in the CCMA and who receives an arbitration award sounding in money, in their favour (generally an employee whose employment has been terminated), will have access to justice which is more convenient and affordable than under the old system.

 

This is in keeping with the overall approach of fairness and equity expounded by the LRA, and supports the concept of an expeditious resolution of labour disputes. The LAC’s interpretation of section 143 in the CCMA v MBS Transport CC case has brought finality to the question of the status of certified CCMA arbitration awards, which was long outstanding.

 

For more information, please contact Bradley Workman Davies at or Kerry Badal at

Article published with the kind courtesy of Werksmans Attorneys www.werksmans.com

 

 

 

 

The Protection of Personal Information


By Jan du Toit, Senior Consultant, SA Labour Guide

 

After more than seven years in the making, President Ramaphosa announced last year an effective date of 1 July 2020 for the Protection of Personal Information Act (POPI), Act 4 of 2013. “Responsible Parties” only have approximately 5 months left until 30 June 2021 to become compliant in full.

 

The duration of a typical POPI compliance project will differ from one business to another depending on the nature and size of the business, as well as the Personal Information processed by a Responsible Party. Business owners are therefore advised to, without delay, embark on a compliance project to meet the deadline.

 

Even though the Protection of Personal Information Act is welcomed by most, it has been long overdue and will require business owners (“Responsible Parties” in terms of the Act) to process Personal Information according to 8 processing conditions as set out in the Act.

 

The purpose of the Protection of Personal Information Act is in essence found in the title of the Act; to protect the Personal Information of “Data Subjects”. It gives effect to ones right to privacy as enshrined in the Constitution but also provides balance in terms of the right to privacy weighed up against the right to access to information.

 

The Act regulates the manner in which Personal Information must be processed and provides protection and recourse to those whose rights are infringed. Further to this, the Act makes provision for the establishment of an Information Regulator. Advocate, Pansy Tlakula has already been appointed as the Information Regulator a couple of years ago and has done a great deal of work in establishing her office.

 

Before I get into more detail about the eight processing conditions, it is important to note that the Act is “definitions driven”. It is therefore of utmost importance to first highlight some of the definitions found in the Act for readers to better understand the eight processing conditions.

 

The first definition is that of “Personal Information”. Personal Information is widely defined in the Act and includes, but is not limited to, information relating to an identifiable living natural person or a juristic person (“Data Subjects”), such as:

  • Race, gender, sex, pregnancy, marital status, nationality, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, believe, culture, language, birth

  • History - education, medical, financial, criminal, employment

  • Identifiers – number, symbols, e-mail address, physical address, telephone numbers, location, online ID or other assignment to a person such as a unique identifier (in example a student or patient number)

  • Biometric information – physical or psychological behavioural characterization, blood type, fingerprints, DNA analysis, retinal scanning, voice recognition

  • Personal opinion views or preferences

  • Correspondence implicitly or explicitly of a private and confidential nature

  • Views or opinions of another individual\

  • The name of the person with other information or the name alone

 

The second definition of importance is that of “processing”. The processing of Personal Information includes but is not limited to any operation/activity or any set of operations, whether automated or not, concerning Personal Information. It includes:

  • Collection / receipt / recording / organizing / collation / storage / updating / modification / retrieval / alteration of Personal Information

  • Dissemination by means of transmission distribution or making available to others.

  • Merging / linking / restricting / degradation / erasure / destruction of Personal Information.

 

A Responsible Party can either be a public body, private body or any other person or persons, domiciled in South Africa and that determines the purpose and means for processing of Personal Information.

 

Throughout the entire lifecycle of Personal Information in any business, eight processing conditions must be adhered to. The eight processing conditions are summarized below:

 

Condition 1 – Accountability. The Responsible Party must always ensure that the conditions set out in Chapter 3 of the Act and all the associated measures are complied with.

 

Condition 2 – Personal Information must be collected and processed lawfully in a reasonable manner that does not infringe the privacy of a Data Subject. The Personal Information may only be processed if it is adequate, relevant, and not excessive.
Personal Information may only be processed if the Data Subject consented thereto. Alternatively, where it is necessary to do so for the conclusion or performance of a contract, an obligation in terms of law, to protect the legitimate interest of the Data Subject, or to pursue a legitimate interest of the Responsible Party.

 

A further requirement is that the Personal Information must be collected directly from the Data Subject.

 

Condition 3 requires that Personal Information must be collected for a specific explicitly defined and lawful purpose related to a function or activity of the Responsible Party. Such Personal Information may not be retained any longer than necessary for achieving the purposes for which the information was collected and/or subsequently processed.

 

Condition 4 prohibits the further processing of Personal Information unless such processing is compatible with the initial purpose of collecting the information.

 

Condition 5 requires that Responsible Parties must take reasonable, practicable steps to ensure that Personal Information is complete, accurate, and not misleading. Such Personal Information must also be kept up to date, taking into consideration the purpose of the Personal Information.

 

The nature and purpose of the Personal Information will dictate as to how often such Personal Information must be updated.

 

Condition 6 addresses some of the rights of Data Subjects, such as the right to be informed by the Responsible Party before information is collected. The purpose of collecting and from where Personal Information will be collected must be disclosed to the Data Subject.

 

A Data Subject is entitled to the details of the Responsible Party and to be made aware of the consequences of not making Personal Information available to the Responsible Party.

 

Should it be required that Personal Information be collected and processed in terms of legislation, the Data Subject must be made aware accordingly.

 

As per Section 72 of the Act, the Data Subject must be advised if Personal Information will be transferred across the borders of South Africa. Under such circumstances the Data Subject is entitled to first be made aware of legislation in other countries that provides adequate protection of the Personal Information. In the absence of legislation, whether there are any binding corporate rules in place, alternatively a written agreement that offers adequate protection for the Data Subject, concluded between the Responsible Party and he third party.

 

Condition 7 requires that Responsible Parties must secure the integrity and confidentiality of Personal Information by taking appropriate reasonable, technical and organisational measures, to prevent loss or unlawful access of Personal Information under the control of a Responsible Party.

 

In this regard the Responsible Party is required to identify all reasonable and foreseeable internal and external risks, and to establish and maintain appropriate safeguards. Compliance with such safeguards must be regularly audited and measures updated if so required.

 

Condition 8 deals with the rights of Data Subjects and participation. In terms of condition 8, Data Subjects have the right to establish whether Personal Information is held by a Responsible Party and to have it corrected or destroyed if it is inaccurate, irrelevant, excessive, out of date, incomplete, misleading, or have been obtained unlawfully.

 

Responsible Parties are also further required to introduce Data Subject rights and participation in their PAIA (Promotion of Access to Information Act) manuals.

 

Responsible Parties are also not permitted to send direct marketing material to Data Subjects without their written consent as per from 4 four of the regulations of the Act.

 

Other important considerations in terms of the Act are that a Responsible Party may be issued with an administrative fine of up to R10 million for its non-compliance with the Act. Additionally, Data Subjects have the right to sue Responsible Parties and under specific circumstances, the Information Officer of the Responsible Party may be imprisoned.

 

Each Responsible Party must register an Information Officer (the head of the organization or a person acting in such capacity) with the Information Regulator. The Information Officer may appoint deputies to assist with ensuring compliance within the business.

 

From the above, it is evident that a POPIA compliance project is not something that should be undertaken without a solid understanding of the Act.

 

Our subscribers, a.k.a. “Responsible Parties”, are invited to attend our online POPIA presentations to better understand the Act and to ensure compliance. In-house training can also be arranged on request.

 

The author of this article is also available to assist employers with compliance projects in the form of awareness sessions, gap analysis, policy development / implementation and staff awareness.

 

For further information pertaining to training, readers are invited to visit www.labourguide.co.za or to contact Jan du Toit at .

 

 

 

 

 

Courses and Workshops

 

                   

 

Strategic Human Resources Management (HRM) and - Business Partnering

14, 15 & 16 April 2021 (08:30 - 16:00)

Interactive Online Course

Employment Equity Committee Training

14 April 2021 (09:00 - 16:00)

Interactive Online Course

COVID-19 Workplace Compliance Health, Safety and Claims Management Course

21 & 22 April 2021 (08:30 - 13:00)

Interactive Online Course

POPIA: Protection of Personal Information Act

15 April 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

14 May 2021 (09:00 - 12:00)

Interactive Online Course

Managing Poor Performance/ Incapacity

16 April 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

20 May 2021 (09:00 - 12:00)

Interactive Online Course

Management and Leadership Skills

21, 22 & 23 April 2021 (08:30 - 16:00)

Interactive Online Course

Managing Day to Day Issues/ Problem Employees Full day workshop

22 April 2021 (09:00 - 16:00)

Interactive Online Course

Workshop Chairing Disciplinary Hearings

06 & 07 May 2021 (09:00 - 16:00)

Interactive Online Course

Health and Safety Representative and Committee Training Course

06 May 2021 (08:30 - 16:00)

Interactive Online Course

AARTO and the Impact on Your Business

07 May 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

21 May 2021 (09:00 - 12:00)

Interactive Online Course

Civil and Commercial Mediation Training

03 to 07 May 2021 (09:00 - 17:00) 

10 to 12 May 2021 (09:00 - 18:00)

8 Day Practical Training

Interactive Online Course

Basic Labour Relations

13 May 2021 (09:00 - 16:00)

Interactive Online Course

The OHS Act and the Responsibilities of Management

13 May 2021 (08:30 – 16:00)

Interactive Online Course

 

 Our Clients 

 

Android App On Google Play

Android App On Google Play