Workers advocates have accused the Commission for Conciliation, Mediation and Arbitration (CCMA) of unfairly postponing arbitration hearings at the behest of employers.
The Casual Workers Advice Office (CWAO) is an organisation that provides advice to workers seeking permanent employment based on section 198 of the Labour Relations Act (LRA).
Section 198 puts a limit on the much-maligned practice of labour broking by restricting these contracts to three months, after which the law considers a worker a permanent employee of the client company — the company that has contracted the worker through a labour-broking company.
These workers are also supposed to be treated “not less favourably” than the client company’s long-standing permanent workers. They should earn the same wages and get the same benefits.
The CWAO’s Bhavna Ramji told the Mail & Guardian that the organisation has dealt with at least nine different cases that have been unfairly postponed at the CCMA, citing a pending Constitutional Court judgment on the scope of section 198.
Ramji referred to a specific case of 84 workers, employed at the Clicks distribution centre in Midrand, who referred a dispute to the CCMA to be granted pay parity and to be made permanent employees of the company in January.
The Clicks arbitration was postponed. In its postponement application labour-broking company, Adcorp Blu, said: “It is clear that the outcome of the Constitutional Court case will provide the necessary clarity in respect of such disputes.”
The Constitutional Court case, which was heard in February, was brought to the court by labour-broking company Assign Services to reinstate an interpretation of the law that would, after the three month-period, make a worker an employee of both the labour-broking company and the client company.
What became known as the “dual employer” interpretation was rejected by the CCMA in a 2015 order after Assign Services first took on the the National Union of Metalworkers of South Africa (Numsa) in a dispute.
On September 8 2015 the labour broker took the case to the Labour Court and acting Judge Martin Brassey ruled that the brokered workers were employees of both the labour broker and the client.Numsa appealed to the Labour Appeal Court, which ultimately ruled to uphold the CCMA’s sole employer interpretation and to overturn Brassey’s judgment.
In a founding affidavit to the Labour Appeal Court, managing director of Assign Services Sean Kramer said the sole employer interpretation is “tantamount to a ban on labour broking after the elapse of the three-month period under the LRA”.
In an internal document generated by the CCMA’s legal department, which has been seen by the M&G,all commissioners dealing with section 198 disputes were advised to consider applications for postponement based on the pending outcome of the Constitutional Court hearing. These guidelines were issued in November 2017.
But the Clicks workers, who are employed at the retailer’s distribution centre through labour-broking companies Adcorp Blu and Ziphi Nkomo, have said the court’s judgment has no bearing on their dispute.
According to their affidavit, the workers’ dispute is not based on the dual employer interpretation, but to enforce the part of the law that confirms their right “to no less favourable conditions of employment solely against the client company, Clicks”.
“Clicks may be held liable for our section 198A(5) right to ‘no less favourable’ treatment regardless of whether there is sole or dual employment,” the affidavit reads.
The affidavit outlines “various forms of victimisation and mistreatment at Clicks”, which the workers say they have faced since they referred their dispute for arbitration in January.
This mistreatment includes arbitrary dismissals, “interrogations” by management and reduced work hours, which the workers say coincided with their referral to the CCMA.
“Should the arbitration be postponed indefinitely, we are bound to suffer further similar changes at the hands of the Respondents [Clicks, Adcorp Blu and Ziphi Nkomo],” says the affidavit.
Clicks chief operating officer Vikesh Ramsunder told the M&G that the company does not tolerate such victimisation and would thus engage the labour-broking companies to “reinforce our commitment to fair labour practices”.
In a letter requesting an urgent meeting with CCMA director Cameron Morajane, the CWAO raised the postponement of arbitration hearings based on the pending Constitutional Court judgment.
“In effect, the LRA dispensation is being thwarted and commissioners are failing in their statutory duty to resolve disputes,” the letter reads.
Morajane has not responded to the letter, Ramji said.
When asked about the internal document, Morajane said: “We have an obligation as commissioners, as creatures of statute and as advised by the judicial system that we have in South Africa, that we inform our parties — especially those that are not sophisticated — that we have this judgment that is pending.”
Morajane told the M&G that he has been approached personally with a number of requests from employers, asking that all matters having to do with section 198 that come before the CCMA be postponed based on the decision to be made by the Constitutional Court.
“My response to that question was ‘No.’ It is unusual, it is wrong; it is not legally sound to do so. Because we’ve got hundreds of these cases. And it does not mean that the facts of each and every case will be exactly the same,” he said.
“So as part of the guideline, we gave that information that said, in this period, you are expected as the commissioner to consider postponement, based on a point of law on a matter pending at court,” Morajane said. “This is not what we do ordinarily. We don’t do that. We don’t wait to make decisions on cases before us because there is a pending court case. Unless it affects that specific case and those specific parties that are involved.”
There is nothing in the document that says, once an application is made with regards to section 198, postponement must be granted, he said.
Ramji told the M&G that though the CCMA’s internal document might well be a “guideline”, it is not being implemented as such.
“It is very concerning that the CCMA sees fit to hand down a ruling which in no way engages with the submissions made by the parties, and which does not engage even with legal principles,” Ramji said.
“In effect, the CCMA has ruled that a postponement should be granted against workers because the employers’ asked for one. This is an improper basis for a postponement, at the very least.”
The CWAO’s stand, Ramji said, remains that there is no legal basis to postpone arbitrations, and so the CCMA continues to act illegally in doing so.
“Workers are stuck between a rock and a hard place: They could technically review the CCMA ruling, however, the review is likely to take so long, that we will actually have a Constitutional Court judgment by the time the review is heard,” Ramji said.