South African law makes provision for certain sectors or industries of employees and employers wherein they operate. Bargaining Councils are normally registered and act as the central figure, which regulates issues relevant to employment in these sectors or industries. In the context of labour disputes, this usually means that these Bargaining Councils have sole jurisdiction to consider unfair dismissal disputes, unfair labour practise disputes, and so forth.


Members of the National Bargaining Council for the Road Freight and Logistics Industry, for example, consist of employees and employers engaged in road freight and logistics operations. Disputes between these employees and employers will normally be conciliated and arbitrated by the Bargaining Council and not by the CCMA.


As it often happens, disputes may be referred to the CCMA where, in actual fact, the dispute should have been referred to a Bargaining Council with the necessary jurisdiction. In such cases, the CCMA will usually decline jurisdiction, and the dispute will then be transferred or re-referred to the correct Bargaining Council, which has the jurisdiction to deal with the matter.


When it is not clear which sector an employee or employer is categorised in, or where there is a dispute as to the sector or industry where an employee or employer is categorised in, a demarcation dispute arises.


The CCMA Practice and Procedure Guidelines define a Demarcation dispute as a dispute to whether:

a) Any employee, employer, class of employees or class of employers, is or was employed or engaged in a sector or area; or

b) Whether any provision in any arbitration award or collective agreement is or was binding on any employee, employer, class of employees or class of employers.


Section 62 of the Labour Relations Act provides that any registered trade union, employer, employee, registered employers’ organisation or council that has a direct or indirect interest in the demarcation may apply to the CCMA to consider a demarcation dispute. Only a CCMA commissioner appointed by the Director of the CCMA for this purpose may deal with a demarcation dispute, and as such, the Labour Court, as well as other arbitrators, will lack jurisdiction to deal with such disputes.


In order to refer a demarcation dispute to the CCMA, an applicant must complete and serve an LRA Form 3.23 on all other parties to the dispute as well as the CCMA, accompanied by proof of service on the other parties to the dispute.


Applicants must complete the following information:

1.Their own details;

2. The details of the other parties to the dispute;

3. The details of the sector, industry or area involved in the demarcation application;

4. The primary issues in dispute as well as;

5. What demarcation is sought.


There is no time limit during which demarcation disputes must be referred to the CCMA. As such, there will be no need to apply for condonation at any stage when filing such a referral. Alternatively, demarcation disputes may be referred to the CCMA by the Labour Court, an arbitrator or a commissioner in the form of an order or a ruling.


Demarcation disputes can, however, be lengthy disputes. It is thus important that such referrals be drafted correctly and that all relevant details be included in such applications as this will assist the CCMA to easily determine the relevant issues to the dispute.


It is thus important to obtain advice and assistance from your Employers’ Organisation when considering such a referral to the CCMA.


Article by: Gerhard Strydom

Dispute Resolution Official – Kimberley