The Amended Section 143(1) of the LRA reads as follows: “An arbitration award issued by a commissioner is final and binding and it may be enforced as if it were an order of the Labour Court in respect of which a writ has been issued”.
Section 143 (5) as amended further reads: “Despite subsection (1), an arbitration award in terms of which a party is required to pay an amount of money must be treated for the purpose of enforcing or executing that award as if it were an order of the Magistrates Court”.
The implications of the above mentioned amendments are as follows:
(a) Employees who have awards issued in their favour, no longer have to approach the Labour Court for a writ of execution in the event of non-compliance with the award;
(b) An arbitration award that orders compensation must be enforced or executed as if it is an order of the Magistrates Court.
The above mentioned position was confirmed by the Labour Appeal Court on 28 June 2016 when it delivered judgement in CCMA v MBS Transport CC.
The Department of Labour has made funding available to the CCMA to assist employees who are not in a financial position to enforce awards in their favour. The funding is aimed at employees who are too indigent to afford the costs of enforcement. These employees are deemed to be:
(a) Employees who earn below the earnings threshold (currently at R205 433.30 per annum) – proof of income will be required by the CCMA;
(b) Employees who earn up to the amount as reflected above, irrespective of whether they are represented by a union or legal representative at the arbitration proceedings.
It is important to note that in the enforcement of the award the sheriff will be empowered to:
(a) Attach movable goods belonging to the employer;
(b) Take the above goods into execution;
(c) Publicly auction the goods;
(d) Pay over from the proceeds of the auction the amount due to the employee;
(e) Deduct his costs incurred in the course of the execution from the proceeds of the auction after the employee has been paid;
(f) Recover the whole or the unpaid portion of the costs of the execution from the CCMA.
The amendments as discussed above therefore makes it easier for an employee to enforce an award in his / her favour and the employer should therefore be pro-active with regards to any matter involving the CCMA to avoid non-compliance and the consequences thereof.
Article by: Ilze Strydom
CEO Dispute Resolution Official – Port Elizabeth