Movement or progress?
The Labour Relations Amendment Bill seeks to effect various several changes to the current Labour Relations Act 66 of 1995 (the LRA). The Bill is being considered by Parliament and is expected to come into effect during the final quarter of 2013.
Among other aims, the Bill proposes streamlining the review of CCMA arbitration awards granted. It further discourages litigants from instituting review applications as a tactical ploy to frustrate or delay compliance with the award.
New time limit to prosecute review applications:
The amended section 145(5) of the LRA provides that a person who institutes a review application must arrange for the matter to be heard by the Labour Court within six months of commencing proceedings. However, the Labour Court has been given the power to condone a failure to comply with this provision upon good cause shown.
In terms of a new section 145(6) judges are required to hand down judgment in review applications “as soon as reasonably possible”. This provision re-iterates the need for the speedy resolution of review applications. One of the original aims of the current LRA has been the speedy resolution of labour disputes. Sixteen years after its promulgation this aim has sadly not been realised. While there are numerous reasons for the delays in finalising labour disputes, any positive steps to reduce litigation time should be welcomed.
If review applications are to be finalised speedily, litigants will have to adhere to the timelines provided for pleadings. We expect that, given the renewed imperative to quickly dispose of matters, the Labour Court will be less inclined to grant condonation for failure to comply with these timelines. This should especially assist employers who find themselves at the mercy of dilatory ex-employees who fail to timeously review arbitration awards handed down against them.
Employers should, however, similarly take care in managing their own review applications. They should take all necessary steps to progress the matter to avoid censure for delays in the proceedings. Employers who institute review proceedings, and then unnecessarily delay the matter, will face an increased risk of having the review application dismissed.
No need to interdict
As things currently stand, instituting a review application does not automatically suspend the operation of an arbitration award. In the normal course, an employee who has obtained relief under an arbitration award is entitled to enforce that award unless the employer brings an urgent application in the Labour Court to stay the award pending the outcome of the review application.
New sections 145(7) and (8) dispense with the necessity of approaching the Labour Court to stay the execution of an arbitration award. The effect of these sub‑sections is that the operation of an arbitration award will automatically be suspended once an application to review the award has been launched. However, this suspension is conditional upon the applicant furnishing security to the satisfaction the Court.
New obligation regarding security of costs
Unless the Court directs otherwise, the security which the applicant is required to furnish must be (1) equivalent to 24 months’ remuneration in the case of an award granting re-instatement or re-employment, and (2) equivalent to the amount of compensation granted in the award.
Change for the better?
These provisions are intended to discourage CCMA litigants from availing themselves of review proceedings merely for the purposes of delay. Furthermore, a litigant would have to be fairly confident of its prospects of success if it is willing to put up as much as 24 months’ security.
Clarity is still required on practical details relating to some of these amendments. For instance, the exact manner of furnishing security is not specified
Whilst the jury is out on the impact of all the proposed amendments on workplace relations, any changes that will result in more expeditious dispute resolution should be welcomed.
Johan Botes is the Director, and Mark Meyerowitz, Associate, Cliffe Dekker Hofmeyr.