The term jurisdiction refers to the extent of power which the CCMA; Bargaining Councils; Labour Court and Labour Appeal Court have in order to make legal decisions and judgments.
It is imperative that employees become aware of the relevant forums in which they can refer their disputes, in order to ensure that the correct Council or Commission is able to provide them with the necessary relief sought.
The four main Bargaining councils in South Africa are the Metal and Engineering Industry Bargaining Council (MEIBC); the Motor Industry Bargaining Council (MIBCO); the Bargaining Council for the Civil Engineering Industry (BCCEI) as well as the National Bargaining Council for the Road Freight & Logistics Industry (NBCFLI). The abovementioned named Bargaining Councils are just a few. However, there are other bargaining councils which make provision for dispute resolution based on the industry the company falls under or services rendered by Employers. Each Bargaining Council has a main collective agreement that contains a scope that usually sets out the requirements in which a company that falls within its scope must have.
In most instances, an agent from the Bargaining Council will visit the premises of the company to do a thorough inspection of its premises, and then let the company know if they fall within its scope. If it happens that the company does not fall within the scope of that particular Bargaining Council, the agent would duly inform the company representative, and there would be no need for the company to register or comply with its main agreement.
It is clear that the majority companies are unaware of the specific sector which they fall in, therefore it is vital that companies enquire with one of our officials in order to avoid the possibility of compliance orders being issued against the company. In order for companies to avoid compliance orders made against them, it is advisable that they contact the Bargaining Council which they might fall under, where an agent would be able to assist with the registration process. This process includes the completion of a registration form, an explanation of the company’s compliance requirements under the main agreement, details of the benefit fund contributions and returns, as well as details of levies payable to the Bargaining Council.
If an employee refers a dispute to the CCMA and it is then established that the employer is a member of a specific bargaining council, then a jurisdictional point would be raised to inform the CCMA Commissioner that the CCMA lacks jurisdiction to entertain the dispute. The employee would then be obliged to refer the dispute to the applicable Bargaining Council in order to receive the necessary assistance, or the Commission will issue a ruling for the file to be transferred. However, if an employer does not fall within any scope, then the CCMA would have jurisdiction to assist.
There are certain circumstances in which the CCMA will assume jurisdiction, such as if a dispute has been referred to the Commission and not all the parties to the dispute fall within the registered scope of a council or fall within the registered scope of two or more councils; or if the dispute if it relates to organisational rights just to name a few.
Article by: Rebecca Mabasso
Legal Advisor – Pretoria