A Conciliation is the first step at CCMA or Bargaining Council proceedings where a matter is referred in terms of the Labour Relations Act, the Employment Equity Act, the Basic Conditions Act, the Skills Development Act, or the National Minimum Wage Act.
When receiving the initial set down from the CCMA or Bargaining Council, employers will notice that it is either scheduled for a conciliation or a con/arb (where the arbitration follows the conciliation). The CCMA and Bargaining Councils encourage parties to find a way to settle their disputes by scheduling a conciliation before arbitration or adjudication (by a court).
It is a voluntary, off the record process where a Commissioner (or panellist) assists parties in resolving the dispute between them. A Commissioner has no power to make a binding legal decision, and if the dispute remains unresolved, a certificate will be issued to that effect. The applicant party will have to refer the matter for arbitration at the CCMA or adjudication at the Labour Court, depending on their jurisdiction.
Conciliation proceedings may occur in person, telephonically or through an online digital platform. A Commissioner will typically begin conciliation proceedings by explaining the process to the parties, whereafter he will meet with the parties jointly to obtain information about the dispute. Where the Commissioner finds it necessary and depending on the circumstances, he/she can separate the parties to try and negotiate a settlement between the parties.
Reality testing is a method that Commissioners use to assist the parties in finding a possible solution. As an expert on Labour Law, parties should be informed of what the law stipulates and their prospects of success. However, the process is ultimately in their hands and can only be resolved voluntarily.
At conciliation, a party may appear in person or be represented as follows:
- If the party is an employer, a director or employee of that party, or if it is a close corporation, by a member of that close corporation;
- Any member of that party’s registered trade union or employer’s organisation, or an office-bearer or official as defined in the Labour Relations Act or an office-bearer or official, as defined in the Act, of a registered federation of trade unions or federation of employer’s organisations;
- If the party is a registered trade union, any member of that trade union, or an office-bearer or official as defined in the LRA and authorised to represent that party or an office-bearer or official, as defined by the Act, of a registered federation of trade unions and authorised to represent that party; or
- If the party is a registered employer’s organisation, any director or employee of an employer that is a member of that employer’s organisation or any official or office-bearer, as defined in the LRA and authorised to represent that party or an office-bearer or official, as defined by the Act, of a registered federation of employer’s organisations and authorised to represent that party.
If the parties manage to settle their dispute, the Commissioner will draft a settlement agreement that is binding on the parties. This would be the end of the matter, and the employee will have no further recourse against his employer regarding the dispute that was resolved.
In conclusion, employers and employees should try and engage in meaningful conciliation and attempt to settle their dispute, especially if there is risk involved in arbitrating the matter.
Article by: Aletta Eksteen
Dispute Resolution Official – Cape Town