Trade Unions and/or Employees often refer matters of mutual interest to the CCMA and Bargaining Councils. These types of disputes can cause a bit of a headache for Employers; if the parties do not come to a solution at the conciliation stage the commissioner may issue a Certificate which will allow the Employees to go on strike. Strikes can have far-reaching consequences on any business, bringing production and services to a halt, which in its turn may lead to loss of profit.

In a recent matter, a Commissioner issued a Certificate, as mentioned above, in the absence of the Employer who did not receive the date for the conciliation. The Employer was faced with a potential strike on its hands while never playing any part in the conciliation process. Clearly, the Employer has been prejudiced and deprived of its right to negotiate and make submissions at the conciliation stage.

Fortunately, there is way to circumvent the above situation. Section 150(2) of the Labour Relations Act states that:

The Commission may offer to appoint a commissioner to assist the parties to resolve, through further conciliation, a dispute that has been referred to the Commission or a council and in respect of which –

(a)       a certificate has been issued in terms of section 135(5)(a) stating that the dispute remains unresolved; or

(b)       the period contemplated in Section 135(2) has lapsed.

A section 150 intervention will be processed by the CCMA upon request thereof by any party to a dispute.

All that is required is that all the parties to the dispute consent thereto or if the Director of the CCMA believes that it would be in the public interest to appoint a commissioner to attempt to resolve the dispute through further conciliation. It is further important that the parties to the dispute agree in terms of Section 150(5) of the Labour Relations Act that the appointment of a Commissioner will suspend any entitlement of the employees to strike that they may have acquired through an issued Certificate as set out above.

If the parties agree to the above, the Employees will not be able to continue with the strike. The dispute will return to the CCMA in the form of a conciliation and both parties will have a fair and equal opportunity to make submissions and negotiate a deal if it is at all possible.

The Section 150 process is therefore an important tool to any Employer and can be invaluable when used in the right scenario. Employers who may find themselves in similar situations are encouraged to engage with Consolidated Employers Organisation.


Article by: Ruaan Heunis

Dispute Resolution Official – East London