At the commencement of 2019, we saw the introduction of an updated set of Rules for the CCMA (Commission for Conciliation, Mediation and Arbitration). One of the rules which saw significant amendments was Rule 20 – “When must parties hold a Pre-Arbitration conference”. This article will only deal with the important amendments relating to Rule 20, as we have previously published an article on the general application of the Pre-Arbitration Conference.
In the previous version of the rules, there was a peremptory (non-discretionary) requirement for parties to hold a Pre-Arbitration conference if directed so by the convening senior commissioner or the senior commissioner in charge of a region or the presiding commissioner. In other words, should the commissioner direct the parties to hold a pre-arbitration conference, they must do so.
The primary purpose of the pre-arbitration conference is to expedite the arbitration proceeding by limiting the issues in front of the arbitrating commissioner. The manner in which pre-arbitration conferences are conducted would consist of the parties, or their representatives, meeting and attempting to reach consensus on a number of pre-determined issues, including means by which the matter can be settled, facts that are agreed between the parties, facts that are in dispute, etc. The parties would reduce the discussions to writing, in the form of Pre-Arbitration minutes, which would then be filed at the CCMA at least 7 days prior to the Arbitration process.
In 2019, Rule 20 reads as follows:
“When the parties must hold a pre-arbitration conference
1. The parties to an arbitration must hold a pre-arbitration conference dealing with the matters referred to in sub-rule (3), if:
a. Both parties are represented by a trade union, employer’s organisation, a legal practitioner and/or candidate attorney.
b. Both parties agree to hold a pre-trial conference; or
c. Directed to do so by the Convening Senior Commissioner, the Senior Commissioner in charge of a region or the presiding Commissioner.
2. A pre-trial conference convened in terms of sub-rule (1) (a) or (b) must be convened at least 14 days prior to the date of the scheduled arbitration.
6. The referring party must ensure that a copy of the pre-arbitration conference minute is delivered to the appointed commissioner seven ( days prior to the date scheduled for the arbitration.
8. The commissioner has the discretion to continue with the arbitration proceedings despite non-compliance with the provisions of sub-rule (1), (4), (5) or (6). However, any non-compliance may be taken into account when considering costs at the conclusion of the arbitration hearing.”
The new rule has thus created a further peremptory requirement for parties to hold a conference in circumstances where both parties are represented. As our members will almost certainly be represented by CEO, the only other requirement is for the other party to be represented by either a Trade Union or legal representative. Under these circumstances, the parties must embark on holding the conference.
Sub-rule (8) confers a discretion upon the presiding commissioner to continue with the arbitration notwithstanding non-compliance with the rule, however, an adverse cost order can be made against the parties.
It is therefore advisable to discuss the benefit and/or necessity of a pre-arbitration conference with your CEO representative upon receipt of the notice for arbitration. This will ensure that, if deemed beneficial, we can engage with the other party’s representative on scheduling a pre-arbitration conference, and thus avoid any possibility of an adverse cost award.
Article by: Stephen Kirsten
Provincial Manager – Cape Town