Jurisdiction has become a tremendously complex issue in labour dispute resolution. Few individual applicants can deal with the detailed rules of the jurisdiction, and applicants often fail to understand why the CCMA may or may not have jurisdiction in a certain case.

 

The CCMA is a creature of statute, and as such, it does not have an inherent jurisdiction to consider matters which fall outside their statutory jurisdiction to conciliate or arbitrate. The CCMA’s jurisdiction is therefore limited to the circumstances conferred upon it by the Labour Relations Act or other statutes such as the Basic Conditions of Employment Act or Employment Equity Act.

 

In terms of section 114 LRA, the CCMA has jurisdiction in all the provinces of the Republic of South Africa. However, Rule 24 of the CCMA Rules determines in which region a dispute must be conciliated or arbitrated.

 

In terms of Rule 14 of the CCMA Rules during a Conciliation, the commissioner must consider jurisdictional issues that are raised by a party at conciliation or if it becomes apparent to the commissioner that a jurisdictional issue exists which has not been determined. However, jurisdictional issues requiring the consideration of evidence may be deferred by the commissioner for hearing at arbitration.

 

In terms of Rule 22 of the CCMA Rules, if during the arbitration proceedings it appears that a jurisdictional issue has not been determined, the onus is on the referring party to prove jurisdiction.

 

If a jurisdictional dispute is heard and upheld prior to the commencement of conciliation proceedings, the commissioner’s ruling puts an end to the dispute. It is not necessary in these circumstances for the commissioner to issue a certificate of outcome and the ruling binds the CCMA and all parties to the dispute. This jurisdictional ruling stands unless and until it is reviewed and set aside by this Court.

 

All jurisdictional points do not have to be raised at conciliation and can be raised at arbitration for the first time if the point has not been raised at conciliation and the issue has not been previously determined.

 

Jurisdictional issues to be raised at conciliation:

  • Those that relate to non-compliance with the time limits prescribed by the LRA for the referral of disputes, where there has been no application for condonation.
  • The referral is premature.
  • Whether a Bargaining Council has jurisdiction over the parties to the dispute.
  • If a dispute should have been referred to private conciliation.
  • Whether on the face of it, the dispute referred for conciliation is not one contemplated by the Act.
  • Where the referral was not in terms of the rules.

 

The following jurisdictional points may be raised at arbitration.

  • Where a jurisdictional ruling was made at conciliation, binding on the arbitrating
  • Where parties differ on the true nature of dispute at arbitration, the CCMA has provisional jurisdiction to enquire into and determine the issue.
  • The dispute has been settled the CCMA retains provisional jurisdiction to confirm this.
  • A party to the dispute is not an employee or
  • Applicant was not in employment when the cause of action
  • Jurisdictional points relating to foreign nationals and parties to illegal
  • The dispute arose in a location outside the geographic area of the CCMA.
  • There was no
  • The Labour Court has jurisdiction.
  • The issue is an interest
  • Unfair labour practices – closed list – dispute does not fall under the legal meaning of the list (e.g.‘ promotion’ or ‘benefit’)
  • Res judicata (not where referral withdrawn and re-referred later)
  • Dispute arose prior to commencement of Act/ amendment. It depends on the date cause of action arose.

 

Technically, an application to oppose jurisdiction to conciliate or arbitrate at the CCMA should be brought formally on affidavit in terms of Rule 31 of the CCMA Rules.

But where a point is not complex, the CCMA will normally consider it without a formal application.

 

Article by: Porthri Blauw

Dispute Resolution Official – George