It is trite that the Commission for Conciliation Mediation and Arbitration (CCMA) is a creature of statute, that it has no inherent jurisdiction, and that its jurisdiction is limited to the circumstances conferred upon it by the Labour Relations Act (LRA). As a result, the CCMA may not infer jurisdiction which it does not have, nor deprive itself of jurisdiction which has been conferred upon it.
Section 115 of the LRA sets out the matters over which CCMA has jurisdiction, and the commission is, amongst other things, required to attempt to resolve through conciliation any dispute referred to it in terms of the LRA and subsequently to arbitrate disputes that have been conciliated but remains unresolved (if the LRA requires such disputes to be arbitrated). The CCMA will only arbitrate a dispute if a commissioner has issued a certificate that that the matter remains unresolved after the conciliation.
Section 135(3) of the LRA provides that the commissioner must determine a process to resolve the dispute, which may include (a) mediating the dispute; (b) conducting a fact-finding exercise; and (c) making a recommendation to the parties, which may be in the form of an advisory award.
Rule 15 of the CCMA rules provides that:
“A certificate issued in terms of section 135(5) that the dispute has or has not been resolved, must identify the nature of the dispute and the parties as described in the referral document or as identified by the commissioner during the conciliation proceedings.”
Clearly, rule 15 intended for the commissioner to have the right and power to investigate and identify the true nature of the dispute but are the parties bound to the nature of dispute identified on the certificate?
In the past, the conciliating commissioner’s determination of the nature of the dispute and the dispute path to be followed in the certificate was regarded as binding on the parties but led to a series of review applications where parties regarded the classification of the dispute as incorrect. This approach has changed since judgement in Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others where it was concluded that in so far the certificate provides a space for the commissioner to categorise the dispute, this is not a function contemplated by the Act, has no legal significance, and constitutes no more than a commissioner’s recommendation.
This principle was perfectly phrased in paragraph 9 of Strautmann v Silver Meadows Trading 99 CC (Pty) Ltd t/a Mugg and Bean Suncoat and Others judgement which reads as follows:
“It follows that when a commissioner completes Form 7.12 and categorises the dispute referred to the CCMA by ticking one of the boxes provided, the commissioner does not make a jurisdictional ruling. Nor does the ticking of any of the boxes marked “CCMA arbitration”, “Labour Court” “None” or “Strike/Lockout” amount to a ruling on which of those courses of action must be pursued by a referring party. Consistent with the principle established in the Driveline case, it is not for commissioners, by means of certificates of outcome or otherwise, to dictate to litigants either how they should frame the disputes that they might wish to pursue or which forum they are obliged to approach to have those disputes determined. Litigants must stand and fall by the claims that they bring to arbitration.”
This judgment illustrates the court’s approach that substance must precede formalism and that in subsequent proceedings an enquiry may be made on the true nature of the dispute conciliated, notwithstanding the categorisation of the dispute by the referring party or the commissioner.
Article by: Erenst du Toit
CEO Regional Manager – Gauteng