Introduction
Representation before the Commission for Conciliation, Mediation, and Arbitration (CCMA) has been a subject of debate due to various misconceptions and complexities. Despite efforts by labour law experts to clarify the rules, understanding representation at the CCMA can still be challenging for both employers and employees. In this two-part series, we aim to simplify this topic for everyone’s comprehension.
The Rules for the Conduct of Proceedings before the CCMA (“the Rules”) govern the processes of the CCMA which also apply to Bargaining Councils.
Based on the complexity of matters, the process may require representatives to be present, who may not have an automatic right to represent their members/clients based on Rule 25 of the CCMA.
Legal representation
Legal representation at the CCMA is not automatically granted for all disputes. Certain cases allow for representation by attorneys, while others do not.
CCMA processes
There are primarily two processes at the CCMA: conciliation and arbitration. Understanding the distinction between these processes is crucial, as the rules regarding legal representation vary.
Therefore, whenever parties receive a notice to attend the CCMA proceedings, the parties must ask the question “Am I invited to conciliation”? “Am I invited to arbitration”? or “Am I invited to both”? Because sometimes conciliation and arbitration takes place on the same day.
Conciliation
Conciliation at the CCMA focuses on resolving disputes through mutual agreement between the parties, facilitated by a Commissioner. It is not a process for formal arguments or evidence presentation. During conciliation, parties attempt to reach a settlement agreement. Legal representation is not permitted during this process, except in specific cases:
Union representation: Employees can be represented by an official of a registered trade union if they are a member of the union.
Employer representation: Employers can be represented by an official of an employer’s organisation if they are a member of the organisation.
If any of the officials happen to be an attorney, they will be permitted to represent their member. However, if employees and employers are not members of a trade union or employer’s organisation respectively, both parties must attend the proceedings without legal representation.
If conciliation fails to resolve the dispute, the Commissioner issues a certificate of non-resolution, and the matter proceeds to arbitration.
Note: Discussions during conciliation are off the record and cannot be used as evidence in subsequent proceedings.
Part 2 will cover representation at arbitration.
