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CCMA: New Directive on Arbitration proceedings
- 09 June 2023
- Legal and Compliance
- South African Accounting Academy
Section 138(5)(a) of the Labour Relations Act 66 of 1995 (LRA) provides a commissioner with the power and discretion to dismiss a matter in instances where the referring party fails to appear for the arbitration.
Sub-section 138(5)(a) deals with arbitration proceedings in which the referring party fails to appear in person or to send a representative to the ensuing CCMA hearing. This is now understood to be good reason for a commissioner to dismiss the matter.
A Labour Court ruling in August 2021 interpreted sub-section 138(5)(a) as ‘an administrative act’. At the time, it was held that in such circumstances section 144 of the LRA (variation and rescission of arbitration awards) does not apply. Instead, the matter should be removed from the roll. The applicant may then request that it be ‘re-enrolled’.
On 18 May 2023, the Labour Appeal Court rejected this interpretation of sub-section 138(5)(a) and overturned the ruling.
According to the new directive, this decision ‘created new practice and procedures’ to be adopted by parties and the CCMA when applying sub-section 138(5)(a) of the LRA and CCMA Rule 30.
Against that backdrop, by 9 June 2023 the CCMA was expected to have issued guidelines on:
- factors to be considered when exercising the power to dismiss, and
- how to deal with matters pending in terms of the CCMA’s repealed October 2021 directive.
Click here to access the Directive information:
Relevance to Auditors, Independent Reviewers & Accountants:
- The Labour Relations Act is yet another piece of legislation that your clients must comply with, and which you must assess compliance with. If they don’t comply with the relevant laws and regulations, you have certain reporting obligations in terms of NOCLAR (NOn-Compliance with Laws And Regulations) – this could include reporting to management, qualifying your audit opinion, reporting a Reportable Irregularity, etc.
- As an auditor, independent reviewer and accoutant, you need to consider whether your clients have conducted their affairs in accordance with the latest CCMA Rules, where applicable.
- As an employer, you also need to comply with the Labour Relations Act in your workplace.
Relevance to Your clients:
- An entity (company or close corporation) has a duty to comply with the Labour Relations Act, and conduct their affairs in accordance with the latest CCMA Rules, where applicable.
- An employer has a duty to comply with the Labour Relations Act
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https://accountingacademy.co.za/profession/monthly-legislation-update
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