Commissioners at the CCMA are given discretionary powers to try to resolve disputes in the most efficient manner possible. Each commissioner will have his or her own unique approach in trying to resolve disputes. However, in certain circumstances, one commissioners may be more suited to hear a certain dispute than others. For example, if a commissioner has experience in a unique sector or industry and has expert knowledge of that industry, it could be appropriate for that commissioner to handle disputes pertaining to that specific industry or sector. This may also be applicable to certain types of disputes, as some commissioners may have expert knowledge regarding specific matters such as wage disputes, unfair labour practices, dismissal disputes and picketing to name a few.
It must be noted that the Labour relations act 66 of 1995 (Hereinafter referred to as the Act) does make provisions for parties to request a specific commissioner or to appoint a senior commissioner.
In terms of Section 136 (5) of the Act, after a con/arb has been objected to, parties may request commissioners of their preference to preside over their dispute. The parties may submit this to the CCMA, in writing, a list of commissioners of preference (maximum of 5), the request must also state that all parties to the dispute are in agreement with the request. The request must be submitted within 48 hours of the certificate being issued.
In addition to the above, a party to a dispute may request that a senior commissioner preside over a dispute. Senior commissioners are generally more experienced and a party would have to apply directly to the director of the CCMA to have a senior commissioner appointed. In terms of Section 137 of the Act, the director may appoint a senior commissioner after having considered the following:
- a) The nature of questions of law raised by the dispute.
- b) The complexity of the dispute.
- c) Whether there are conflicting arbitration awards that are relevant to the dispute.
- d) The public interest.
After having considered the above the director must notify the parties to the dispute whether the application has been successful. It is important to note that the decision of the director is binding on the parties and the Labour Court may not be approached until the matter has been arbitrated.
Should you require any assistance with the above please do not hesitate to contact your nearest CEO office for assistance.
Article by: Krian Rathinam
Dispute Resolution Official – Durban