CCMA is avoiding ruling on jurisdictional objections at conciliation

If you have attended conciliation proceedings intending to raise a jurisdictional objection only for the commissioner to decline to issue a ruling and defer to the arbitrating commissioner, then read on. Prudence Gqoba, one of Numsa's national legal officers, gives you ammunition to force the commissioner to rule on the matter.

In Fidelity Guards Holdings (Pty) Ltd v Epstein NO & Others (2000) 21 ILJ 2382 (LAC) the Labour Appeal Court found that the issuing of a certificate of non-resolution would confer the necessary jurisdiction upon the arbitrating commissioner to arbitrate the dispute.

Whether such a certificate is valid or invalid will not affect the jurisdiction of the arbitrating commissioner to arbitrate and the certificate of non-resolution will remain valid until such time as it is set aside on review by the Labour Court.

In the recent decision of EOH Abantu (Pty) Ltd (EOH) v CCMA and Mostert (J68/08 dated 17 January 2008 unreported) the applicant had contended that the CCMA lacked jurisdiction to adjudicate the dispute as Mostert was not an employee but had been appointed by and rendered services to EOH as an independent contractor.

The commissioner declined to make a ruling as to the CCMA’s jurisdiction and issued a certificate of non-resolution.
The applicant then sought to set aside the certificate of outcome by way of a review application.

The Labour Court, per Basson J, found that in this case the commissioner acted wrongly. Bassoon said the CCMA is enjoined (required) to rule on its jurisdiction whenever a jurisdictional point is raised before it at the conciliation stage.

Use these legal principles to argue

The CCMA is a creature of statute and derives its powers from the Labour Relations Act, 66 of 1995 (LRA) and the Rules for the Conduct of Proceedings before the CCMA (the CCMA Rules).

In terms of Section 115(4) of the LRA, the CCMA may only exercise the powers conferred upon it. It is only competent to decide those matters over which it has jurisdiction.

In EOH, the Court found that jurisdictional facts are conditions precedent (conditions that must be fulfilled) for the CCMA to act.

In other words, as a first enquiry, the CCMA must establish whether it has the necessary jurisdiction to conciliate the dispute referred to it. In this regard,

Rule 14 of the CCMA Rules provide that:

“If it appears during conciliation proceedings that a jurisdictional issue has not been determined, the commissioner must require the referring party to prove that the commission has the jurisdiction to conciliate the dispute through conciliation.”

Rule 14 thus prescribes a peremptory obligation on the conciliating commissioner to determine a jurisdictional reservation.

A refusal to do so will in itself constitute a reviewable irregularity.

May an arbitrating commissioner examine the same jurisdictional issue that has been raised during conciliation?

Rule 22 of the CCMA Rules provides that:
“If during the arbitration proceedings it appears that a jurisdictional issue has not been determined, the commissioner must require the referring party to prove that the commission has jurisdiction to arbitrate the dispute.”

Rule 22 will thus only apply where –

* a jurisdictional issue was not raised at conciliation; and

* the conciliating commissioner issues a certificate of non-resolution in circumstances where the employer did not attend the conciliation hearing and only raises a jurisdictional point at the commencement of the arbitration proceedings.

Basson J found that the purpose of Rule 22 was to assist parties to a labour dispute, most of whom are lay people, who may not have realized or known that a jurisdictional concern even existed or ought to have been raised at the conciliation stage.

Rule 22 will not apply where the conciliating commissioner has already made a ruling on jurisdiction or where a party participates in the conciliation proceedings but deliberately chooses not to raise the issue at conciliation.

Basson J found that such would constitute an abuse of the CCMA proceedings.

The CCMA must establish whether it has the necessary jurisdiction, before it adjudicates any dispute referred to it in terms of the LRA.

Jurisdictional objections may include, but are not limited to, the following:

* The existence of an employer-employee relationship;

* The existence of a dispute in terms of the LRA;

* Where the parties fall under the jurisdiction of a bargaining council, the CCMA will not have jurisdiction unless jurisdiction has been conferred on the CCMA; and

* Whether the dispute has been referred to the CCMA within the prescribed time limits.
Although the jurisdictional objection in EOH concerned the nature of the relationship between the parties, the same principles apply irrespective of the nature of the jurisdictional point raised.


Numsa Bulletin No 20 August 2008