A 7.13 is a request for arbitration form completed in accordance with Section 136 of the Labour Relations Act (“LRA”). If a matter remains unresolved at Conciliation, the Commissioner will issue a certificate of non-resolution in accordance with Section 135(5) of the LRA to the parties. It is common practice that the referring party (“Applicant”) will refer the dispute for arbitration. There are instances where either party to the dispute may refer the dispute to arbitration, as in the case of Section 21(7) relating to organisational rights.
Filing of a request for arbitration
Rule 18 of the CCMA Rules provides that a party referring a dispute to arbitration must complete a 7.13, which must be served on the opponent and CCMA in accordance with Rule 6. The timeframe for filing a referral to arbitration is ninety (90) days from the date of the issuing of the certificate of non-resolution.
Once the opponent ordinarily receives a 7.13, it would be correct to ensure that the referral is accompanied by a non-resolution certificate and that the time for filing is in compliance with the rules.
If the referring party has filed outside the ninety (90) day period, the request for arbitration must be accompanied by a condonation application in accordance with Rule 18(2)(c). The CCMA may hold back the request until the formalities are complied with in accordance with Rule 18(3) until all provisions of Rule 18(2) are dealt with.
Dealing with issues of compliance
When the Respondent receives the 7.13, it is prudent to not just accept the document as being correct but to ensure that all compliance issues in terms of Rule 18 are addressed. Outside of time limits, issues of whether the matter may be referred to the CCMA may also arise at an early stage; this would refer to an issue of jurisdiction of the CCMA to hear the matter, which includes:
- Disputes where the party is an independent contractor,
- Disputes which fall outside the ambit of the LRA, BCEA, EEA and any relevant labour legislation framework, the CCMA can only deal with disputes where legislation confers powers to deal with the dispute.
- Removal of Directors
- When the interpretation of a Mutual Separation Agreement is disputed
- When the dispute is related to victimisation in the workplace
- When an employer employs more than ten (10) employees but retrenches more than one (1) employee.
- Where the referring party earns above the threshold.
- If a matter should be referred to a bargaining council.
- Where there may be a private dispute resolution agreement between the parties.
Pre-arbitration meetings are regulated according to Rule 20. Pre-arbitration meetings should be conducted no later than fourteen (14) days prior to the set down date for arbitration, and the minutes of the meeting be submitted to the arbitrating Commissioner no later than seven (7) days prior to the arbitration date. Rule 20(1) provides that the parties must hold a pre-arbitration meeting when:
- When both parties are represented by a union, employers’ organisation, or legal practitioner,
- By mutual agreement,
- When directed to do so by a presiding or senior Commissioner.
The purpose of pre-arbitration meetings is for the parties to narrow down issues in dispute and ascertain if any further issues relating to compliance with Rules need to be addressed prior to the arbitration. This is done to ensure that disputes are resolved expediently and without delay. In practice, however, this seldom occurs, but employers are encouraged to try and engage with such pre-arbitration meetings as same assists in narrowing the issues at hand and gives a better idea of what matters will be contested during the arbitration.
Preparation for arbitration
Rule 21 provides that the CCMA must provide at least twenty-one (21) days’ notice to the parties, notifying the parties of the date of the arbitration. The set down will typically be preceded by the 7.13. Therefore, it is prudent for the Respondent to ensure that they begin preparation for arbitration once they receive the 7.13.
To conclude, once an employer receives a 7.13, it is essential to notify your representative or begin preparation for the matter as soon as possible. Generally, a notice of set down will follow shortly after receiving the 7.13 form. Preparation is key to being successful in any dispute. The earlier one begins with the preparation and assessing each case’s relevant nuances, the better one stands when addressing the merits of the matter.
Article by: Wesley Lazarus
Dispute Resolution Official – George