Sober reflection as SA’s CCMA turns 15

Posted on November 12, 2011


As the world teeters on the brink of a further slide toward what looks like economic chaos, South Africa’s Commission for Conciliation Mediation and Arbitration (CCMA) has marked 15 years of existence. Director Nerine Kahn proudly noted that there was much to celebrate, but there was no celebration.

As befits the times, the occasion was marked by a period of serious reflection. Top labour law specialists gathered to discuss, debate and analyse what the CCMA has done, is doing and may do in future.

“We didn’t ask them to come and be polite. We will conduct an audit: the state of the labour market. What is the dream? How have we done?” says Kahn.

Although she does not say so, the decision to stage a “think tank” was also a reflection of the pressure now being put on one of the country’s major labour relations innovations. Austerity being the current global watchword, institutions such as the CCMA are likely to see their budgets frozen or even reduced.

And while she tries to navigate the state bureaucracy, she is probably already aware that there is also some questioning within government circles about whether the expense of maintaining the CCMA is really necessary; that the labour courts and private conciliation agencies should handle labour disputes.

Elements in the business sector who remain hostile to the “interference” of the CCMA tend to support this view, despite the fact that the organisation’s governing body consists of representatives from labour, business and government. They resent curbs on what they see as their managerial right to hire and fire at will.

Yet there is consensus, certainly within the labour movement, that industrial relations would have been a great deal more chaotic had it not been for the CCMA. It is also widely agreed that, given the ongoing global economic crisis, there will, in coming months and years, be greater tension within the labour market and a greater need to uphold the social justice the CCMA embodies.

This aspect of social justice is what tends to stand out for most of the 1.4 million workers whose cases have made their way to the CCMA over the past decade and a half. It is part of the mandate of the organisation that was established by the Labour Relations Act (LRA) with the somewhat idealistic goals of advancing “economic development, social justice, labour peace and the democracy of the workplace”.

The primary role was to settle amicably labour disputes and this would obviously contribute toward labour peace. But, above all, it amounted to a major break with the attitudes and the masters and servants legislation of the apartheid past, putting employers and employees on an equal footing in the resolution of disputes — at least in terms of conciliation and arbitration.

Because it provides a free service, without the intervention of legal teams, even unorganised workers have increasingly come to know about and to appreciate the existence of the CCMA. Domestic workers, for example, now comprise 9 per cent of the CCMA case load and outreach educational work by CCMA commissioners among farmers and farm labourers is starting to bring this generally neglected area into formal dispute resolution.

But, as one commissioners notes, employers with deep pockets can still “thumb their noses” at the CCMA by dragging out the dispute process when they have not got their way. This is done by taking matters to the labour court and further if necessary until financially exhausted worker claimants fall by the wayside.

Or, having taken matters as far as the labour court, and obviously being in the wrong, an employer can simply pay off a desperate worker. One of the classic examples in the early years of the CCMA was the age discrimination case brought by Virginia Swart who, at 29, was considered “too old” to work in a video store. In debt and desperate, she accepted R1 500 offered to her on her doorstep and dropped the case.

There are also instances when employers simply ignore arbitration awards made against them. “This is very frustrating and we can’t help,” says Kahn. Even when warrants are issued by the courts, workers have to pay a sheriff — part of an outsourced business — to have them served on the defaulting employer, something many workers simply cannot afford.

But these constitute a small minority of cases and most receive no publicity other than word of mouth. A great deal of formal publicity over the years has also been negative, often arising from complaints by employers who have better access, and better ability, to use the media.

Yet some of the criticism, especially in the earlier years, was justified. Various “teething troubles” and what one commissioner calls “glitches” marred the proper functioning of the organisation. It took time to get solidly on track; to ensure the adequate training and appointment of commissioners and to gradually extend CCMA services.

However, Kahn is quick to point out that while the ratio of negative to positive publicity tends not to have changed, the CCMA certainly has, both in terms of efficiency and in the sheer volume of cases handled. In the 12 months to the end of March, for example, commissioners around the country dealt with 154 279 cases, an average of 591 a day.

More than 90 per cent of these were settled, either by conciliation, usually within 30 days, or by arbitration within 60 days. Monitoring by the organisation reveals that fewer than 7 per cent of cases handled result in 99 per cent of the relatively sparse publicity generated.

It is an admirable record that reflects the reality that the demand and need for CCMA services is increasing steadily. This is unlikely to change, given the latest dismal projections about economic growth and job creation prospects.

So, for the sake of preserving an element of social justice, let alone ensuring greater industrial peace, the powers that be would do well to heed the call of labour and provide the CCMA with more resources and perhaps greater powers.