After an arbitration has been completed, an arbitration award must be issued by a Commissioner within fourteen (14) days of the date of the hearing as per the Rules of the CCMA. On good cause shown, the CCMA Director may extend this period. It is also important to know what to do when a party is not satisfied with the outcome of an award or fails to comply with it.
As per section 143(1) of the LRA: “An arbitration award issued by a Commissioner is final and binding, and it may be enforced as if it were an order of the Labour Court in respect of which a writ has been issued.”
Section 143(5) reads further: “Despite subsection (1), an arbitration award in terms of which a party is required to pay an amount of money must be treated for the purpose of enforcing or executing that award as if it were an order of the Magistrate’s Court.”
As mentioned above, the arbitration award issued by a Commissioner is final and binding unless set aside by a competent Court. Should the employer fail to comply with the award, the employee may apply to have the award certified by the CCMA Director by completing a form LRA 7.18 (LRA 7.18A for Bargaining Council awards). If payment is not made, a certified award for payment of money may be presented to the Sheriff for execution. The party must provide the physical address of the party at fault for execution by the Sheriff. An award ordering performance of an act, e.g., reinstatement or re-employment, may be enforced through contempt proceedings instituted in the Labour Court. It does not need to be made an order of Court before contempt of proceedings can be instituted. This procedure applies only to awards issued after the amended LRA came into operation, i.e., 01 January 2015.
Further, if a party is not satisfied with the outcome or alleges a defect in the arbitration award, that party can take an arbitration award or ruling on review. The CCMA awards and rulings are subject to review by the Labour Court. The party who alleges a defect must file the application with the Labour Court within six (6) weeks of the award being served. This means that a party aggrieved by a decision made by a Commissioner in an award or ruling may apply to the Labour Court in terms of section 145 of the LRA to have it set aside based on an alleged defect with that award.
A defect means that –
· the Commissioner committed misconduct in relation to his or her duties as a Commissioner;
· he or she committed a gross irregularity in conducting the proceedings;
· he or she exceeded his or her powers as a Commissioner; or
· the award or ruling was improperly obtained.
The Constitutional Court has clarified the test for review to be based on whether the decision reached by the Commissioner is one that a reasonable decision-maker could not reach. In applying this test, a reviewing Court will not interfere with an award easily but will consider whether the Commissioner considered the principal issue before them, whether or not they evaluated the facts presented at the hearing and came to a reasonable conclusion.
The Labour Court may not review any decision or ruling made during conciliation or arbitration proceedings before the issue in dispute has been finally determined by the CCMA or Bargaining Council, except if the Labour Court is of the opinion that it is just and equitable to do so.
It is important to note that the institution of review proceedings by an aggrieved party does not suspend the operation of an award unless that party applies to interdict the enforcement of the award and submits security to the satisfaction of the Court.
Article by: Tammy Koekemoer
Dispute Resolution Official – Bloemfontein