‘This paper is one in a series of national studies that examine how certain high performing dispute resolution institutions have responded to the changing nature of workplace disputes with a view to informing future developments in dispute resolution policy. Undertaken on behalf of the ILO by leading regional experts, each paper in the series looks at the evolution of a national dispute resolution institution. Highlighting the key challenges the institution has faced and the ways in which it has responded, the papers offer a critical insight into the achievements and continued weaknesses of the system in question.’
Professor Paul Benjamin’s Working Paper No. 47, ‘Assessing South Africa’s Commission for Conciliation, Mediation and Arbitration (CCMA)’ was released two days ago and is a ‘must read’ for everyone involved or interested in what has happened in industrial relations and labour law over the last 20 years.
Extracts from the Working Paper
Foreword by Moussa Oumarou,Director, Governance & Tripartism Department
Conflict is inevitable in workplace relations. Establishing institutions and practices that are able to manage workplace conflict effectively is therefore an integral dimension of any workplace relations system. However, the nature of workplace relations and workplace conflict is changing. For example, as trade union density has declined, work-related disputes have become increasingly individualised, rendering institutions built on the expectation of collective disputes struggling under the resulting workload. Broader legislative and economic developments have also affected the nature of disputes, with many countries reporting a sharp increase in the number of rights disputes (and termination-related rights disputes in particular) proportionate to the number of interest disputes. Such changes can pose significant challenges to those charged with managing workplace disputes, and may demand a range of policy adjustments at an institutional or legislative level.
This paper is one in a series of national studies that examine how certain high performing dispute resolution institutions have responded to the changing nature of workplace disputes with a view to informing future developments in dispute resolution policy. Undertaken on behalf of the ILO by leading regional experts, each paper in the series looks at the evolution of a national dispute resolution institution. Highlighting the key challenges the institution has faced and the ways in which it has responded, the papers offer a critical insight into the achievements and continued weaknesses of the system in question.
In this paper, Professor Paul Benjamin1 examines the evolution of South Africa’s Commission for Conciliation, Mediation and Arbitration (CCMA). After setting the historical, regulatory and socio-economic context in which it operates, Professor Benjamin considers the particular challenges the CCMA has faced since it was established in 1995.
These include unanticipated levels of individual cases, increasing adversarialism and violence in collective bargaining, extreme social inequality and extensive job losses following the financial crisis. This is followed by a nuanced critique of the CCMA’s responses to these challenges, in which Professor Benjamin identifies several initiatives as being critical to the CCMA’s success in exceptionally difficult circumstances. These include procedures for the expeditious conciliation and arbitration of individual disputes, innovative and proactive approaches to collective dispute resolution, the adoption of modern telecommunications and information technology and a holistic strategy concerning job retention. While areas of further development are also identified, this paper offers a rich resource for institutions, policymakers and other stakeholders looking to establish or improve dispute resolution services in the face of under-resourcing, unemployment and broader social division.
The working papers of the Governance and Tripartism Department are intended to encourage an exchange of ideas and are not final documents. The views expressed are the responsibility of the author and do not necessarily represent those of the ILO. I am grateful to Professor Benjamin for undertaking the study and commend it to all readers interested in labour dispute resolution.
Introduction
The post-apartheid restructuring of labour law in South Africa is characterised by both legislative amendments and institutional reorganization. The transition to democracy was regulated by a 1993 Interim Constitution that entrenched a number of labour rights such as protection against unfair labour practices, rights of freedom of association and collective bargaining, and rights to strike and lockout.
Hailed by many as the first major legislative achievement of the transition, a new Labour Relations Act (enacted in late 1995) sought to establish a labour law regime that complied with international standards whilst, at the same time, codifying and simplifying the body of jurisprudence that had been established by the industrial courts since 1980.
It introduced, for instance, a reworking of unfair dismissal law that sought to reduce the time and costs involved in resolving dismissal disputes that were, at the time, responsible for major backlogs in the industrial courts and contributed significantly to strike action.
A central feature of the new Act was the establishment of the Commission for Conciliation, Mediation and Arbitration (CCMA) as the entity responsible for dispute resolution (other than formal litigation) in certain categories of disputes.
Since South African labour relations are subject to a complex legacy of political marginalisation and systemic inequality, legal reforms in both individual and collective dispute resolution have sought to address not only pragmatic concerns such as the accessibility and efficiency of processes, but also to encourage opportunities for more harmonious and constructive labour relations by promoting the role of consensus-seeking processes such as conciliation and forums for worker participation. This is also reflected in the mandate of the CCMA.
The Explanatory Memorandum accompanying the Labour Relations Act (LRA) describes its ‘main function’ as the ‘attempt to resolve disputes by conciliation so as to reduce the incidence of industrial action and litigation’.
The CCMA’s mandate to conciliate all disputes referred to it poses two distinct sets of challenges for the organization. On the one hand, it is required to provide expeditious conciliation in a very large number (currently in excess of 100 000 annually) of “rights” disputes that may be referred to arbitration or adjudication. The overwhelming majority of these cases are claims of unfair dismissal. On the other hand, the CCMA is required to mediate unresolved collective bargaining disputes ranging from disputes involving single employers to disputes arising out of sectoral bargaining in major sectors of the economy.
This paper examines the evolution of the CCMA’s approach to the conciliation and arbitration of individual and collective disputes during its life span. It does so in the context of a brief discussion of the historical evolution of South African labour legislation as well as the very pressing challenges that confront the South African labour market: high levels of unemployment and massive economic and social inequality.
The paper identifies key institutional aspects of the CCMA which have contributed to its effective operation and which offer useful examples to dispute resolution institutions in other countries.
The paper examines how the procedures for expeditiously conciliating and arbitrating individual disputes have allowed the CCMA to accommodate an extremely high caseload of individual cases.
It also examines the adaptation of its collective dispute resolution strategies aimed at the re-emergence of a high level of adversarialism in the collective bargaining arena.
In addition, the adoption of a holistic strategy to deal with job loss and job retention, which evolved after the 2008 recession, is examined.
Conclusion
This paper has presented a detailed picture of the establishment and evolution of South Africa’s CCMA. The paper has highlighted many of the institutional innovation reflected in its structure. In conclusion, it is worth dwelling on the significance of the CCMA’s experience for an international audience, particularly those engaging in policy debates about labour dispute resolution.
From an institutional perspective, the design of the CCMA reflects a “mainstreaming” of techniques associated with Alternative Dispute Resolution (ADR) such as the use of conciliation and arbitration as core techniques. Its institutional architecture has already had a significant impact on labour law reforms in the Southern African region with countries such as Lesotho (2000), Swaziland (2000), Botswana (2004), Tanzania (2004) and Namibia (2007) establishing specialist labour dispute resolution institutions that promote the role of mediation and arbitration as the primary mechanism for the prevention and settlement of labour disputes. While the model of the CCMA has played a prominent role in these reform processes, the variety of institutions that have been established show the extent to which the innovations in the South African experience can be adapted to the circumstances of other countries.120
The design of the CCMA can be seen as moving beyond the conventional debate on the establishment of specialist labour tribunals, which has been so prominent in labour law, and raises the question of how labour dispute resolution processes can be made accessible and effective. When compared to conventional courts, whether civil courts with general jurisdiction or specialised labour courts, the CCMA has proved highly successful.
Specifically, it has succeeded in providing enhanced and expedited access to dispute resolution to employees who generally would not otherwise have had the resources to bring legal challenges against decisions by their employers in conventional litigation proceedings. This success can be attributed to a range of factors, including simplified referral forms, the absence of formal legal pleadings and restrictions on legal representation in certain categories of disputes. However, the CCMA’s success in lowering the barriers for access to dispute resolution has had the consequence that the CCMA is required to deal with a caseload considerably larger than had been anticipated. This in turn has required it to develop a range of streamlining techniques to ensure that the volume of its caseload does not result in delaying the resolution of disputes.
The CCMA was established to provide social justice in the employment arena through the accessible and expeditious conciliation and arbitration of disputes. Given the CCMA’s enormous (and in all likelihood increasing) caseload, its achievements in conciliating and arbitrating cases, particularly dismissal cases, within relatively short periods of time have been impressive. The economic benefits of its success include a very significant decrease in the rate of industrial action over dismissal disputes in the post-1996 period. The development and tailoring of an electronic Case Management System has enabled it to enhance the efficiency of its processes, while at the same time being a source of key labour market information. The CCMA has embraced technology in a number of aspects of its operation, for instance, by using SMSes to notify parties of hearings. The effective use of technology may require that rules on issues such as the service of documents be revised.
However, the experience of the CCMA does show the potential for reforms that seek to overcome the bottlenecks and delays typically associated with conventional litigation. Despite the considerable achievements in this area, the enforcement of awards remains a significant ongoing challenge.
In the collective dispute resolution arena, the initial vision was for the CCMA to conciliate unresolved disputes arising from negotiations, once referred by a party to the dispute. In this regard, the original CCMA model reflected the conventional wisdom about the autonomy of collective bargaining and dispute resolution. Increasingly, however, the need to intervene at an earlier stage in key disputes that could have disruptive consequences for the labour market has been identified as a significant priority. This reflects the emergence of a more ‘active’ approach to conciliation, pursuant to which the CCMA offers to facilitate collective bargaining at an early stage and seeks to prevent disputes spiraling into disruption and violence. However, criteria have been developed to ensure that an appropriate balance is struck between the public interest in dispute prevention and the autonomy of collective bargaining.
As noted above, collective bargaining in South Africa has become increasingly adversarial in the last five years, and has been accompanied by significant levels of violence. This may seem to be a reason to disregard the dispute resolution innovations that are a feature of South African law. However, the author is of the view that the nature of collective bargaining is a reflection of the broader social and economic realities in South Africa, in particular the apartheid inheritance and the high levels of inequality. The establishment of the CCMA has served to mitigate the potential negative impact of these disputes on the economy. A 2011 survey by the OECD captures the CCMA’s contribution to the South African labour market in the following terms:
“As one of the great post-apartheid institutions set up in the early phase of building a national system of regulated flexibility, the commission acts as a social safety valve, dealing with numerous individual disputes between employers and employees as well as “interest” cases, and acting as a conciliator and eventually arbitrator between employer bodies and unions. Despite its budgetary limitations, it has played a very positive role in limiting social tensions and in creating and preserving a deliberative labour policy.
It now performs functions that go well beyond the terms of reference one would expect from its name”.
The CCMA plays a diverse range of roles in the South African labour market and has repeatedly reshaped its capacities in response to changing labour market realities. Its credibility and legitimacy as an institution charged with dispute prevention and dispute resolution have enabled the CCMA to respond to the fallout of high levels of inequality and unemployment by playing an increasingly active role in facilitating consensus-seeking processes, both in the collective bargaining arena and in situations where there are potential job losses. In part, this flows from the active tripartite participation of the social partners in its governance. This has enabled the CCMA to offer its services to parties to facilitate complex negotiations and increasingly improve the calibre of collective bargaining. Its development of an integrated job saving strategy has resulted in the CCMA playing an innovative role in coordinating the responses of a wide range of public institutions with the capacity to assist to enterprises in distress and their employers. These initiatives point to the further contribution it will make in the years to come.”