First published by GroundUp

• The Commission for Conciliation, Mediation and Arbitration (CCMA ), which was already under stress, is not working properly under lockdown.
• Systems have not been set up for remote hearings. Emails are not being read.
• Yet an efficient CCMA is even more important during lockdown, because labour disputes increase.

The Commission for Conciliation, Mediation and Arbitration (CCMA) has not worked properly for a few years, with excessive delays causing workers dissatisfaction. Basic administrative failings during the Covid-19 pandemic will exacerbate the problem.

The CCMA enjoys a formidable reputation internationally, and locally, its head, Cameron Morajane, maintains a prominent public profile.

The institution was established in 1995 to replace the apartheid-era Industrial Court. Unlike that court, the CCMA was meant to be expeditious, cheap and accessible. In 2013, the International Labour Organisation reported that the Industrial Court was taking an average of three years to complete a single case. It commended the CCMA for taking an average of only 70 days to close cases.

The facts get lost in statistics.

The statistics do not tell you that in February 2019, Pioneer Foods terminated the contracts of 22 workers who had been working in its Moir’s factory in Gauteng. One-and-a-half years later, the case has still not even started.

They do not tell you that in March 2018, a local family-run paint factory dismissed all 181 of its workers. One of the workers has since died and the case has still not been closed.

A bargaining council, which the CCMA accredits to arbitrate matters, took two years to close the case of a group of steel workers who only wanted to be recognised as permanent employees. Eventually, the general secretary of the trade union representing the workers had to go to the council to demand that a date be allocated for the case.

Over 100 employees of a luxury chocolate producer are now in the second year of their case.

One could put this down to the large numbers in those cases, but a statutory council, also CCMA-accredited, recently took one-and-a-half years to close a case involving only three workers.

There are a number of reasons for this. Besides what occurs during a hearing, it is not uncommon to wait an hour or longer for an interpreter before a hearing can begin, for the commissioner’s file not to contain all of the documents in a case, for a hearing room not to be available, or for the roll to be called late. In the most severe cases, the CCMA has simply neglected to set cases down for hearing.

The effects of such delays are borne by the workers, who become visibly worn down over time, as the false starts, formalities and incomprehensible technical legal points take their toll, together with the knowledge that a slow CCMA is their only realistic option (for now).

When a national lockdown was announced, labour practitioners knew that labour disputes would increase. The need for an efficient CCMA became even more important.

The CCMA during Covid-19

On 25 March 2020, the CCMA issued a notice stating that it would not hear or receive cases for the three weeks of the lockdown – from 26 March to 16 April, and then extended this to the end of April. All hearings were postponed.

Since the arbitration of labour disputes was not declared an essential government service during the initial lockdown it is unsurprising that the CCMA closed its doors during this period. What was surprising, however, was that for the whole of the “level 5” lockdown no provisions were made by the CCMA for arbitration hearings to be conducted online. When the CCMA eventually reopened its doors in May, workers who had been denied access for several weeks formed long queues around its various offices.

Only during the second week of the “level 4” lockdown did the CCMA publish directives urging the opposing sides in arbitrations to proceed with hearings by means of “video conferencing facilities” and not in person. This suggested that the Commission had used the time to put in place systems which would allow for the adjudication of workers’ disputes against their employers while minimising face-to-face encounters between the parties.

Unfortunately, our experience suggests that despite its good intentions, adequate systems have not been established or implemented by the CCMA to facilitate remote hearings.

An arbitration for the Stone Age

This week the case of the 22 Pioneer workers was again postponed. The reason? There were several. The CCMA had not read its e-mails and had not answered its phones in the weeks preceding the hearing. As a result, it did not know that the parties were making arrangements for a video conference. Since e-mails had not been checked, the CCMA had not printed all the documents required for the presiding commissioner’s file. When the commissioner arrived, he had to borrow a laptop from someone. The internet connection was unstable. In the meantime, the head of the CCMA region (one of the most senior positions in the CCMA) assisted the commissioner by printing case documents in an effort to ensure the case could proceed.

Eventually, the hearing scheduled to start at 9:30am was postponed with no future date set, and the commissioner required that all parties appear in person in the future.

It is not often that legal practitioners criticise the functioning of institutions in which they appear, whether courts or other tribunals. We do this with great reluctance, and after years spent trying to work with the CCMA. We also do this while acknowledging that to some degree, the CCMA is the victim of its own success: It has been landed with new tasks extending well beyond its original scope. This has extended to resolving disputes involving labour broking and the national minimum wage.

The problem is that the CCMA, in making up for non-functioning labour centres, may end up becoming no different from them. An institution that does not respond to e-mails or answer its phones, in a situation where workers need to restrict their own movement for personal and public health reasons, may as well close its doors. DM

Bhavna Ramji and Komnas Poriazis work in the law centre at the Casual Workers Advice Office. They are the workers’ legal representatives in all the cases mentioned. Views expressed are not necessarily those of GroundUp.