The Labour Relations Act, 1995 - Commission for Conciliation, Mediation and Arbitration

Disputes and conflicts between employees and employers is something prevalent to all organizations. However there is always legal ways to resolve all these disputes within the organizations. The Labour Relations Act, 1995 (Republic of South Africa, 1995) replaced the Labour Relations Act, 1956 and developed a numerous of dispute resolution institutions, specifically the CCMA, bargaining councils and private dispute resolution agencies as primary institutions of dispute resolution (Du Toit, 2006). Additionally, these legal dispute resolutions systems such as the Commission for Conciliation, Mediation and Arbitration (CCMA) are independent and cannot be controlled by any other party, organization or trade union. According to Burton (1996), disputes are normally not a long-term disagreements that are fairly easy to resolve. He further on states that the disputes that are long-term problems which involve what seems to be non-negotiable matters and are resistant to resolution are referred to as conflicts.

In order for the dispute to be in existence, it initially needs a jurisdictional then follows the function of the CCMA as a dispute resolver. A dispute must be referred to the provincial office situated in the province in which it arose. The CCMA therefore is a tripartite body. Hence the Labour Relations Act (1995) does not need formal proof that there is a dispute, commissioners just assume the existence of a dispute on the foundation that an applicant has alleged that one exists, even where the conciliation or arbitration proceeds in the absence of the employer. With all of the above mentioned, there are several ways to resolve disputes such as alternative dispute resolution, negotiation and litigation. According to Hutchinson (2009), the Labour Court may also determine the dispute in the manner it considers suitable, or forward the dispute to the CCMA for fresh arbitration, with recommendations as to proper procedures to be followed to determine the dispute afresh. Writer such as Genn et al. (2006) also add on the importance of the efficiency of the dispute resolution systems by stating that “accessibility in dispute resolution means the ability to effectively access redress systems and to participate in the redress processes in order to achieve just outcomes”.

Negotiation, arbitration, mediation and litigation are usually the possible methods of resolving dispute in terms of formality. In a general term, negotiation is mainly the most basic means of resolving differences between two parties. The process is simply the communication between these parties with the aim to come out with a solution to resolve the dispute. Negotiation is usually a way of dispute resolution where two parties try to resolve their problems without the need of others (OGC, 2002). However if negotiation fails to resolve the matter between the two parties, methods of alternative dispute resolution (ADR) may be developed involving a third party to resolve the dispute which involves two common forms such as  arbitration and mediation. According to Moses (2008) ADR does not mean the same thing to other countries. For example, he states that in European countries and many other countries, ADR links to those resolutions that does not include arbitration and litigation. In contrary, the Unites States the ADR include arbitration. He furthermore explains that ADR is basically settling disputes by any means outside of the court of law. In relation to the employee and employer labor dispute and organizational dispute, the ADR has been the method commonly used to resolve dispute because it faster and inexpensive than litigation where parties go to court for dispute resolution. According to Moses (2008), mediation is normally not compulsory, however, it is a process that is confidential. This process means that there will be a third party which will privately meet each party where they can state their view about each other. This means that mediation can be seen as an “interest based procedure” and arbitration seen as “the right based procedure”.

Stewart & Fenn (2006), argues that in this contemporary era parties would arbitration as the default dispute resolver because parties have a clear understanding about the court of law and its actions and also because of its privacy. Mentschikoff (1961) further states that arbitration is a better dispute resolver because of its inexpensiveness, expert decision, confidentiality and speed. As Hulvey & Wandel (1929) mentions that there are usually two classification of agreements to arbitrate in commercial disputes. Namely the agreements to just submit existing commercial disputes and the agreements to submit every commercial disputes together with those that may occur in future.