The Commission for Conciliation, Mediation and Arbitration (CCMA) issued a Directive on 08 May 2020, with regards to access to the CCMA. The Directive applies with effect from Monday, 11 May 2020 until CCMA operations may be normalised and the restrictions set out in the Regulations issued in terms of section 27(2) of the Disaster Management Act 57 of 2002 provide otherwise.
The Directive states under REGULATION 5, namely CONCILIATION HEARINGS, that unnecessary physical contact must be avoided between persons, and the CCMA must endeavour to reach consensus with the parties to hold the hearing at an alternative venue or alternative CCMA venue. Further, that where possible the resolution of disputes will take place through conciliation, either telephonically or through a digital online platform, subject to the CCMA or Commissioner’s approval and depending on what type of communication is available to the parties.
Alternative venues include the employer’s premises or site, the Union’s premises, the Employer Organisation premises or any other suitable available venue agreed to by all parties and the CCMA. The Commissioner, together with all or some of the parties to the dispute will then come together at the alternative venue to proceed with the dispute as if they were at the original CCMA building/venue.
The Directive further states under REGULATION 7, namely ARBITRATION PROCEEDINGS AND INQUIRIES BY ARBITRATOR, that parties must be directed to hold a pre-arbitration conference, PRIOR to scheduling Arbitration hearing, in order to reach consensus on certain prescribed issues in terms of the CCMA rules, in addition to the following:
- Whether parties are prepared to proceed with the arbitration hearing at the employers’ premises, however SUBJECT to the occupational health and safety standards set out in COVID-19 OCCUPATIONAL HEALTH AND SAFETY MEASURES IN WORKPLACES COVID-19 (C19 OHS), 2020 GG 43257 published in terms of section 27(2) of the Disaster Management Act (57/2002) (Which will be set out in detail below);
- Whether parties are prepared to proceed with the arbitration hearing via a video conference facility;
- Should parties not agree to (1) and (2) above, the reasons should be included in the pre-arbitration minutes;
- Agreement reached in accordance with REGULATION 7.1 above, must be recorded in writing and submitted to the CCMA.
The COVID 19 OCCUPATIONAL HEALTH AND SAFETY MEASURES IN WORKPLACES states that employers must ensure the following when agreeing to have the matter be heard at their premises:
- That as far as is reasonably possible, all persons who may be directly affected by their activities (such as customers, clients or contractors and their workers who enter their workplace or come into contact with their employees) are not exposed to hazards to their health or safety, such as COVID 19 and the transmission thereof between an infected person and his employees and vice versa;
- Social distancing measures are adhered to at the workplace in that there is queue control and a minimum distance of at least one and a half metres between workers/visitors/members of the public, for example, at workstations/meetings/conciliation or arbitration hearings. Where this is not reasonably possible, provide physical barriers between parties;
- Symptom screening must be in place upon entering the premises/reporting for work in order to ascertain if the person had observable symptoms associated with COVID 19 such as fever, cough, sore throat, redness of eyes or shortness of breath (or difficulty in breathing), body aches, loss of smell or loss of taste, nausea, vomiting, diarrhoea, fatigue, weakness or tiredness;
- That there are sufficient quantities of hand sanitiser (free of charge), that has at least 70% alcohol content, based on the number of workers or other persons who access the workplace at the entrance and in the workplace, such as the designated area, boardroom etc. where the conciliation or arbitration hearing will be held;
- That all work surfaces and equipment are cleaned and disinfected before, during and after the conciliation or arbitration hearing commences, together with all areas which will be used by the parties and CCMA present, such as toilets, common areas, door handles, shared electronic equipment;
- That there are adequate facilities for the washing of hands with soap and clean water, only paper towels are provided to dry hands after washing (the use of fabric towelling is prohibited), all persons present at the conciliation or arbitration hearing are required to wash and sanitise their hands regularly;
- That all persons present at the conciliation or arbitration hearing are wearing a cloth mask or cloth covering over their nose and mouth, upon entering the premises, in order to reduce infection. The employer must provide his employees with masks, however, the other persons attending should bring their own cloth masks;
- That the workplace is well ventilated by natural or mechanical means to reduce the SARS-CoV-2 viral load. Where reasonably practicable, have an effective local extraction ventilation system with high-efficiency particulate air HEPA filters, which is regularly cleaned and maintained;
ADDITIONALLY, the employer should also ensure that in accordance with the Directive, (as stated above), only Parties who do not exceed ten (10) in number and their Representative shall enter the other designated venues, subject to the size of the venue.
As the employer, start discussing whether you are amenable to agree to having disputes heard at your premises, site, offices. If not, prepare reasons why not, should you be asked by the CCMA. Reasons such as my offices are based at my private residence, I do not have a big enough area/boardroom, which will allow social distancing or protective screens, etc.
If you do agree, we suggest that you start identifying suitable venues, offices, sites, which will allow you to comply with the abovementioned requirements in order to streamline the process. We further suggest that the employers have a visitor attendance form at the entrance of the workplace, which includes the list for symptom screening as required and discussed above. Perhaps provide a copy thereof to the Commissioner to be placed in the CCMA file regarding all parties in attendance.
Employers should have most, if not all of these measures already in place in the workplace if they are permitted to perform work during Alert Level 4 lockdown, which will make it easier to agree to have any CCMA dispute/hearing held at the employers’ premises. However, if you agree to have the dispute/hearing, you as the employer must ensure that all the abovementioned measures are in place.