The CCMA jurisdiction in respect of claims for monies outstanding, also referred to as claims in terms of section 73A of the Basic Conditions of Employment Act (BCEA), is limited. These limitations on claims in terms of section 73A are:
Threshold
In Prestige Campworld (Pty) Ltd t/a Comet Caravans v Botha and others (JR 20147/20), the Employer applied to the Labour Court to review an arbitration award on the basis that the CCMA did not have jurisdiction to make a section 73A of the BCEA award in that matter. The Employer argued that the commissioner erred by not taking commission payments into account when the commissioner determined if the Employee’s earnings exceeded the threshold requirement.
The Labour Court confirmed that the Ministerial Determination, on what constitutes “remuneration”, includes cash payments made to the Employee, if such cash payments was not specifically excluded. The Labour Court confirmed that commission payments should have been included when calculating the remuneration of the Employee. When commission payments were included in the Prestige Campworld matter, then the CCMA lacked jurisdiction and the award was set aside on that ground.
As stated in Zapop (Pty) Ltd v CCMA and Others (CA21/2014) [2016] ZALAC 16; (2016 37 ILJ 1882 (LAC); [2016] 9 BLLR 910 (LAC), where the employee earns commission based on sales, the monthly remuneration must be determined according to the remuneration over the last 13 weeks.
Legal Representation
Rule 25(1)(c) of the Rules of the Conduct of Proceedings at the CCMA also applies to section 73A of the BCEA disputes. The sub-rule states that if the dispute, being arbitrated, was referred in terms of section 73A of the BCEA, a party is not entitled to be represented by a legal practitioner or a candidate attorney unless:
- The commissioner and all the other parties consent;
- The commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation after considering the criteria as provided for by Rule 25.
This has been confirmed in Netherburn Engineering CC t/a Ntherburn Ceramics v Mudau and others [2008] ZALAC 13; [2009] 4 BLLR 299 (LAC); (2009) 30 ILJ 269 (LAC).
Conciliation/ Arbitration
A party may not object to conciliation/arbitration being on the same day in respect of matters involving a dispute in terms of section 73A of the BCEA.
Postponements
In respect of requests for a postponement of the arbitration, after concluding a non-resolution at conciliation, the normal rules apply and such request must be considered by the commissioner.
In Rikus Diedericks v CCMA and others the employee had made a referral in terms of section 73A. The parties could not reach agreement in conciliation and the applicant made an application for a postponement in respect of the arbitration. The commissioner did not consider the request. The ruling of the commissioner was set aside on that basis.
