The new CCMA Rules were published at the end of last year and became effective as of 1 January 2019. There are a number of changes that have been effected which you need to be aware of.

Change in representation rules

According to the previous CCMA Rules, a party to a dispute could be represented by a legal practitioner or another party entitled to represent parties to a dispute, for example, a union representative. The new CCMA rules state that, in addition to the above-mentioned individuals, a candidate attorney is also allowed to represent a party to the dispute.

With respect to the right to legal representation, if the matter deals with the fairness of a dismissal or an allegation that an employee was dismissed because of his/her conduct or capacity, according to the old rules either party is not entitled to legal representation. This is unless:

• Both parties, in addition to the CCMA Commissioner, agree that legal representation should be allowed, or
• The Commission feels that it is unreasonable for legal representation to be denied.

In the new rules, with respect to disputes in terms of the Basic Conditions of Employment Act (BCEA), no legal representation is permitted as it is not anticipated that there will be any material disputes or fact of law that will require the expertise of a legal. This decision is misguided as material disputes of fact and law do arise with respect to compliance orders, something which the BCEA governs.

No legal representation allowed for s189A facilitations

In terms of the new rules, attorneys and candidate attorneys are not allowed to represent employers at s189A facilitations. This is cause for concern as employers’ rights in terms of the retrenchments may not be adequately represented otherwise.

Changes to the rules for con/arb

The amended CCMA rules do not allow objections to con/arb in the following matters:

• Probation and/or unfair labour practice disputes relating to probation. This has not changed from the previous version of the CCMA rules.
• Compliance disputes in terms of s69(5)* of the BCEA.
• Claims for payment in terms of s73A** of the BCEA.

Con/arb is governed by s191(5A) of the Labour Relations Act (LRA). This falls under s191 of the LRA which is the latter section of the LRA that deals with dismissals and unfair labour practices.  It has nothing to do with compliance orders and/or claims for money.  This means that monetary claims and/or compliance disputes cannot be set down for con/arb as these do not fall into the category of s191(5A) disputes. This a strange amendment as the new CCMA rules prohibit you from objecting to something that the CCMA is not allowed to do in the first place. Thus, you should not be concerned regarding this.

Case Law Update:

CHEP/C-FORCE – TES or Independent Contractor?

As business re-aligns to ensure sustainability in an uncertain trading environment with various disruptors, it is inevitable that outsourcing, contracting and TES will continue to form part of the ecosystem. What is crucial is that businesses approach these arrangements on an informed basis so that they can withstand litigation by employees of suppliers who allege that they are in fact employees of the principal client rather than the service provider.

In this Labour Court review, it was found that C-Force provided a legitimate outsourced solution to Chep SA and that C-Force was therefore not acting as a TES where deeming would arise. In referring to the Constitutional Court judgement (Assign Services vs NUMSA) as well as other judgements, it was determined that:

• The Service Level Agreement (SLA) between Chep SA and C-Force was indicative of that of an independent contractor relationship rather than a TES;
• C-Force provided pallet reconditioning services and were paid on output rather than labour provided (i.e. Chep were interested in the fruits of the labour rather than the labour itself)
• Despite the fact that C-Force used the premises, raw materials and equipment of Chep, C-Force had management and control of their part of the operation and attended to supervision, occupational health and safety and the like.

This aligns with other judgements such where similar findings were made. There is no doubt that outsourcing, sub-contracting and related forms of engagement will grow going forward and we are here to assist you in attending to commercial agreements, s197 transfers, s189 matters, litigation and other services related to these transactions.

If you have any queries regarding this ruling or the CCMA Rules, please do not hesitate to contact your nearest GBS office.

On the subject of legislation and rules, at our Annual Employment Conference, an esteemed panel of experts will be looking at how the future of work is changing and if labour law is keeping up. To find out more about this conference, follow this link.

Kind regards,
Johnny and Grant

* This section deals with the ability of employers to object to compliance disputes.

** This section allows parties to refer disputes, to the CCMA, regarding monies owed under the BCEA, the National Minimum Wage Act, an employment contract, a sectoral determination or a collective agreement.