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    CCMA Rules - Effective 24 April 2023

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    Viola Mlo

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    © All Rights Reserved
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    No. 48445 GOVERNMENT GAZETTE, 21 APRIL 2023 DEPARTMENT OF EMPLOYMENT AND LABOUR, NO. R.3318 21 April 2023, RULES FOR THE CONDUCT OF PROCEEDINGS BEFORE THE COMINlISSION FOR ‘CONCILIATION, MEDIATION AND ARBITRATION The Governing Body of the Commission for Conciliation, Mediation and Arbitration hereby publish the Rules in terms of section 115(2) of the Labour Relations Act, 1995 (Act No, 66 of 1995), as ‘amended, effective from the 24 of Aor 2023. et ‘As published under GNR1448 in GG 25515 dated 10 October 2003 ‘88 amended by Notice Government Gazette Date Rist2 25007 47 October 2003 1748 25797 08 December 2003 R793 25026 12 December 2003 530 26279 30 April 2004 R531 26279 30 Apel 2004 R532 26279 30 Apel! 2004 R380, 27400 22 april 2005 Ro? 258 (09 February 2007. R176 51564 97 November 2008 R705 Basrt 02 September 2011 R494 35435 12 June 2012 R776 42082 7 December 2018 Rios 43090 21 February 2020 ‘COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION ‘The Governing Body of the Commission for Conciliation, Mediation and Arbitration hereby, in terms of G2etion 118 (aA) of the Labour Relations Act 8 of 1008, publichoe tho Ruloe ae Smended. Page 1 f40 ‘This gazeto is also avallable res online at www. gpwonline.co.2a eorogasens- v STAATSKOERANT, 21 APRIL 2023 No. 48445 99 ‘TABLE OF CONTENTS PART ONE SERVING AND FILING DOCUMENTS How to contact the Commission ‘Compliance with legislation regarding personel information ‘When are the offices of the Commission open How to calculate time periods in hese Rules, ‘Who must sign documents How to serve documents on other parties Notice of proceedings before the Commission How to prove that a document ws served in terms of the Rules, How to fle documents with the Commission Presumption when service was done by registered post How to Seek condonation fo referal dacuments and applications delivered late PART TWO. CONCILIATION OF DISPUTES. How to refer a dispute to the Commission for conciliation How must the Commission notiy parties of the conciliation or a facilitation Commission or a commissioner may attempt i resolve a dispute before conciliation ‘What happens ita party falls to atend at conciliation How to determine whether a commissioner may coneilate a dispute Extension of concilation period in terms of section 135(2A) of the Act Iseuing a certificate interme of section 135(6) of the Ack ‘Goncitation proceedings may noi be disclosed PART THREE ‘CON-ARB IN TERMS OF SECTION 191(6A) OF THE ACT Conduct of con-ar in terms of section 191(5A) ofthe Act PART FOUR ARBITRATION How to refer a request for arbitration tothe Commission When must the partis file statements ‘When the parties must hold a pre-arbitration conference When must the Commission notly parties of an arbitration How to determine wether a commissioner may arbitrate a dispute How to postpone an arbitration PART FIVE. RULES THAT APPLY TO CONCILIATIONS, ARBITRATIONS, CON-ARBS AND OTHER PROCESSES Where a hearing will take place Representation before the Commission How fo join or substitute partes o proceedings How to correcta citation of a party ‘When the Commission may consolidate disputes. Pee 20140 This gazote is also avaliable ra onine at www.qpwonline.co.2a 100 No. 4244s GOVERNMENT GAZETTE, 21 APRIL 2023 29 Disclosure of documents or material related tothe dispute 50 What happens i a party fails to atlend proceedings before the Commission PART SIX APPLICATIONS 31, How to bring an application 31 Howto apply for Urgent picketing rules or the determination of disputes relating thereto 31B How to apply for the enforcement of written undertakings and / or compliance orders 31C_ Request to have a matter re-enroled 32 How to apply to vary or rescind arbitration awards or rulings 33. How to apply fo refer a dismissal dispute to the Labour Court PART SEVEN INQUIRY IN TERMS OF SECTION 188A, 34 How to request an inquiry in terms of section 188A of the Act PART EIGHT ‘GENERAL 35 Condonation fo failure to comply with the Rules and form 38 Recordings of Commission proceedings 37 Howto have a subpoena issued and served to secure the presence of a person 37A Expert witnesses 38° Payment of witness fees 39 Order of costs in an arbitration 40, Gertiication and enforcement of arbitration awards 40A Payment of an arbitration fee ordered in terms of section 140 ofthe Act 41 Whatwords mean in these Rules Page seta ‘This gazeto is also avallable res online at www. gpwonline.co.2a 1A STAATSKOERANT, 21 APRIL 2023 No. 4244s 101 PART ONE ‘SERVING AND FILING DOCUMENTS. How to contact the Commission ‘The addresses, telephone numbers and e-mail addresses ofthe offices of the Commission are Isted in Schedule One to these Rules. Compliance with legislation regarding personal information When a party serves or files documents on the Commission or on the other partyin terms of these Rules, or processes documents that contain personal information with the other party, such party must: @) _be responsible for complying with their respective obligations under applicatle Data Protection Legislation, ‘Including, but not limited tothe Protection of Personal Information Act 4 of 2013 (POPIA), when processing personal information, ») take appropriate technical and organisaioral measures, and implement security Safeguards fo prevent the unauthorised or unlawful processing of personal ifermation and/ data of the other par or of another data subject; ©) process the other party's personal information andior data only in accordance with that party's instructions (naving regard to the Data Protection Legisiation), or as requited by [aur and not disclose the other party's personal Information and/or data except in accordance with that part’ instructions or as required by law. When are the offices of the Commission open (1) The offices of the Commission will be open every day from Monday to Friday, excluding publ: holidays, between the hours of OGh30 and 16h80, or a8 determinec by te (2) Documents may be led withthe Commission dng he hours refered on sub-ue (3) Notwithstanding sub-rule (2), documents may be e-mailed or referred using theofficial Sein a8 Seone els Stine poral tang te ond on any Say aFNe week tO the Commission How to calculate time periods inthese Rules (1) Forthe purpose of calculating any period of time in terms of these Rules - (@) day means a calendar day; and (©) the first day is excluded and the last day is included, subject to sub-re (2). @) The last day of any period must be excluded iit falson @ Saturday, Sunday or public ©) Talsgy otal Beet working day flowing te Sanday ot Pb Heda. (©) Sub-rule 2 wil spl, unless cleay indicated otherwise in terms of these Rules or applicable lgliaion, Page ot40 This gazote is also avaliable ra onine at www.qpwonline.co.2a 102 No. 42445 GOVERNMENT GAZETTE, 21 APRIL 2023 4 Who must sign documents ” (ay @ @ 5 Howto o @ ‘A document that a party must sign in terms ofthe Actor these Rules may be signed by the party or by a person entitled In terms of the Act or these Rules to represent that partyin he proceedings. |Where a document has not been signed or was signed by 2 person wio is not entitled {o represent that party in ems ofthe Act or these Rules, the intention of that party to ‘submit that document may be confirmed by the subsequent appearance ofthe party at the convened proceedings before the commissioner or by any other method of ‘confirmation that may be placed on record at the Commission If proceedings are jointy instituted or opposed by mare than one employee, documents may be signed by an employee who f= mandated by the ather employees (0 sign documents. A ist in writing of the employees wino have mandated the employee to sign fon their behaif, must be atached tothe referral document. re incusive of ‘online portals For purposes of hese Rules. 2 signature includes an elecwonc sigat ‘an electronic referral made through the Commissions electronic 2 Included in Schedule One. serve documents on other parties Unless otherwise provided for in these Rules, a party must serve a document on the other parties ~ (2) _byhanding a copy ofthe document to - (the person concemed: (i) reprsentativeauthrised in wring to accep service on behalf of 1 person; (ii) a person who appears to be atleast 16 years old and apparently in Charge of the person's place of residence, business oF place of temployrient premises atthe time; or (i) a person identifi in subrrue (2), (©) _byleaving @ copy of the document at = (an address chosen by the person to recelve service; or (i) any premises in accordance with sub-rule (3); (©) _bye-mailng, faxing or telexing a copy of the document tothe person's e-mail fax of telex number respectively, or an e-mail address, fax or telefax number cchosen by that person to receive service, (4) by sending a cory of the document by registered post or telegram tothe last known address of the party or an address chosen by the party to receive ‘A document may also be served - Page 6 ot 40 ‘This gazeto is also avallable res online at www. gpwonline.co.2a 5A 8 @ STAATSKOERANT, 21 APRIL 2023 No.4a44s 103 (@) oma company or other body comporate by handing @ copy of the document to 2 responsible employee St the Sompany oF Bom) at fe rogteres ces principal place of business within the Republic o its main place of business Within the magisterial district in which the dispute frst arose, (®) onan employer ty handing a copy ofthe documento a responsible employee ‘ofthe employer 2 the workplace where the employees involved inthe dispute ordinary works or worked (©) _oMatrade union or employers organisation by handing a copy ofthe decument 10 a responsible employee or official at the main office of the union or ‘employers’ orgarisation or its office in the magisterial dstict in whic the dispute arose; (4) ona partnership. frm or association by handing a copy of the document to & responsible empbyee or offical atthe place of business of the partnership, firm or association or, if has no place of business, by serving @ copy of the document on a partner, the owner ofthe frm or the chairperson or secretary ghthe managing or ether containg body ofthe ensuites he cose May (©) on amunicipaliy, by serving a copy of the document on the municipal manager ‘or any person acing on behatf ofthat person, (© on. statutory body, by handing a copy tothe secretary or similar ofcer or Meer of te Bondo comme oft Body ay person acy on Feit ofthat body or (@) onthe State ora province, a state department or a provincial departrent, a Filer, remit 2 ahi fhe ccc commie of @ prove by ing @ copy ta responsible employee atthe head ofice of he payor 10 Srosponsie smobyee at any offee ol he Slate sory. {f0 person identi in sub-rule 2) is iting to accept service service may be efected byafing copy ofthe documento ™m (2) the main door of the premises concerned: or (©) if this is not accessible, a post-box or other place to which the public hes ‘The Commission or a commissioner may direct or accept service in a manner other than prescribed in these Rules, "Notice of proceedings before the Commission ‘The Commission may provide nctice of @ conciliation oF arbitration hearing or any other proceedings before it, by means of any of the methods prescribed in Rule Sor by means of short message service. How to prove that a document was served in terms of the Rules 0 ‘A party must prove to the Commission or a commissioner that a document was served interms of these Rules, by providing the Commission or a cormmissioner = Page 640 This gazote is also avaliable ra onine at www.qpwonline.co.2a 104 No. 42445 GOVERNMENT GAZETTE, 21 APRIL 2023 (@) with a copy of proof thatthe document has been mailed by registered post to the other party! (©) with a copy ofthe telegram or telex transmitting the document to the other party; (©) with @ copy of the telefax transmission report indicating the successful ‘transmission tothe other party ofthe whole document, (@ if document was served by hand = (0 wth @ copy of a receipt stned by, or on behalf of, the oer party early ndatng te nameand designation ot hs recite te place’ me and date of service: of (i) with a statement confirming service signed by the person who delveted a copy ofthe document tothe other party or ff a any Premises; an (©) if a document was served by e-mail, wth a copy of the sent e-mail indicating the successful aipatch to the other pary ofthe e-mail and any attachments pat of sane in accotance wth sub-rule 1) is provided, is presumed, antl the Contrary is proved, that te party on whom it was served has knowedge ofthe content 9f the document! The relevant provisions ‘of the Electronic Communications and ‘Transactions Act 25 of 2002 are applicable in respect of any issue concerning service by exmall or the service of ‘of proceedings by short message service as Permitted by Rule 5A (3) The Commission may accept proof of service in a manner other than prescribed in this Rule, as sufficient 7 How to file documents with the Commission (1) Aparty must fle documents with the Commission - (©) by hand delivery of the document to the regional office of the Commission or {he office ofthe Department of Employment and Labour atthe addresses listed In Schedule One: (©) by sending a copy of the document by epstered post othe exona ce of ‘he Commission tthe address sted Schedule One by e-mailing the document to a Commission regional office at only an e-mail address listed in Schedule One. Oocuments fled by means of e-mail must be {transmitted in MS Word or POF format. (2) documents filed wth the Commission when - (@) the document is handed to the regional office of the Commission or an office of the Department of Employment and Labour listed in Schedule One (©) document sent ty registered pos is received, or presumed tobe received as Provided for in Rue 8, by an office ofthe Commission listed in Schedule One © Page 240 ‘This gazeto is also avallable res online at www. gpwonline.co.2a STAATSKOERANT, 21 APRIL 2023 No. 42445 105 (©) the e-mail is received in the regional office, as provided for in the Electronic ‘Communications and Transactions Act 25 of 2002; oF (@) the online referral or condonation application is received through the ‘Commission's electronic referral online portals as listed in Schedule One. (3) A party must only fle the original of a document, if requested to do so by the ission or a commissioner. A party must comply with a request fo fle an onginal document within seven (7) days ofthe request. 8 Presumption when service is done by registered post ‘Any document or notice sent by registered post by a party or the Commission is presumed, unt the contrary is proved, to have been received by the person to whom it was sent seven (7) Says after twas posted 9 How to seek condonation for referral documents and applications delivered late (1) This. Rule applies to any referral document or application delivered outside of the ‘applicable time period prescribed in the Act, applicable employment iaw or these Rules, (2) Aparty must apply for condonation in terms of Rule 31 (2A) Condonation may also be applied for using the official Commission electronic referral ‘online portals as included n Schedule One. (3) An application for condonation must set out the grounds for seeking condonation and must include detais of the following (2) the degree of lateness; (©) the reasons forthe lateness; (©) the referring party's prospects of succeeding withthe referral and obtaining the relief sought agairst the other party. (6) any prejudice tothe other party: and (©) anyother relevant factors. (4) The Commission may assist a refering party to comply with this Rule, PART TWO: ‘CONCILIATION OF DISPUTES 10 How to refer a dispute to the Commission for conciliation (1) A party must refer a dispute to the Commission for, conciiation by delivering @ ‘completed prescribed LRA Form 7.11, which may Include the Commission electronic referral electronic onine pertals, Pepe 40 This gazote is also avaliable ra onine at www.qpwonline.co.2a 106 No. 42445 GOVERNMENT GAZETTE, 21 APRIL 2023 " 2 13 (2) When refering a dispute by means other than the official Commission electronic referral online portals as set out in Schedule One, the referring party - (@) must attach tothe referral document, written proof, in accordance with Rule 6, that the referral document was served on the other parties to the disput. (®) must attach to the referral document, an application for condonation if the referral is referred after he relevant time limit has expire, (3) Despite Rule 10(2)(b) where a referral has been referred out of time and if conconation hhas not been attached to the referral, the Commission will decide wheter the Condonation will be determined at a hearing or by written submissions received from the parties. When must the Commission not parties of a conciliation or facilitation (1) The Commission must nofty the parties in writing of a conciliation hearing atleast — (@) seven (7) days prior to the scheduled date in matters relating to section 64, Section 85(2)a) cr section 189A(6) of the Act (©) fourteen (14) days prior tothe scheduled date, in the case of any other matte. (2) Despite sub-rule 1, the Commission may give the parties a shorter petiod of notice, if ‘he parties have agreed or reasonable citcumstances require a shorter period (3) An.sdditional seven (7) days must be provided, i a notice of conciliation in terms ofthis Rule is sent by registered mal ony, Commis n oF a commissioner may attempt to resolve dispute before coneiliation ‘The Commission or a commissioner may contact the partis by telephone or other means, prior tothe commencement of the concilation, in order to attempt to resolve the dispute, What happens if a party falls to attend at conciliation (1) Ha party fais to attend or to be represented as contemplated in Rule 25(1)a), the ‘commissioner may - (2) continue withthe proceedings; (©) adjourn the concitation to a later date within the 30-day period; or (©) conclude the proveedings by Issuing a cetficate that the dispute remains unresolved: (1A) In the event that a dispute relates to section 4 of the Act, picketing rules must be established before a certfcate of non-resoluton is issued, unless a party provides 2 Signed picketing rules agreement as required by section 69(6A) of the Act Page 9040 ‘This gazeto is also avallable res online at www. gpwonline.co.2a STAATSKOERANT, 21 APRIL 2023 No.4a44s 107 “ 14a 18 6 (2) In exercising a discretion in terms of sub-rule (1), a commissioner should take into ‘account, amongst other things = (2) whether the party has previously failed to attend a conciliation in respect of that dispute; (©) any reason given for that party’ failure to attend; ©) wheter coniaton can take pace efectvel inthe absence of one or more ° of the parties; fe (6) the tkely prejudice to the other party of the commissioners ruling; and (©) any other relevant factors. How to determine whether a commissioner may conelliate a dispute !¥t appears during conciliation proceedings that a jurisdictional igsue has not been determined, the youmtissioner must require the referring party 10 prove that the Commission nas the Jurisdiction to conciiate the dispute through conciliation. Extension of conciliation period in terms of section 135(2A) of the Act (1) The concilating commissioner or a party to a conciliation process may request an ‘extension ofthe conciliation period referred to in Section 135, @) The request must be made on the prescribed form and before the expiry of the Conciliation period as determined in terms of section 135, (The Director must within 2 (two) days of receipt ofthe request - (2) consider whether: (an extension is necessary to ensure a meaningful conciliation Process, (i) the refusal to agree to the extension is unreasonable; and (ii) whether there are reasonable prospects of reaching agreement. (©) The Commission must advise the parties on whether the extension is granted and where the extension is granted, the period of such extension, (4) The Director may not extend the conciliation period i the State isthe employer party. {suing of a certificate in torms of section 135(6) of the Act ‘A carificate issued in terms of section 135(6) ofthe Act that the dispute has or has not been Fesolved, must identily the nature of the dispute and the parties as described in the ‘elerral ‘docuntt or es Hented by ie Conmisson erty the coeolcion procasoings Conciliation proceedings may not be disclosed (1) Conciiation proceedings are private and confidential and are conducted on a without Prejudice basis. No personmay refer to anything said at concliaion proceedings during Page 10040 This gazote is also avaliable ra onine at www.qpwonline.co.2a 108 No. 4244s 7 2 GOVERNMENT GAZETTE, 21 APRIL 2023 any subsequent proceetings, unless the parties agree in writing or as ordered ‘otherwise by a court of law, No person, including @ commissioner, may be called as a witness duting any Subsequent proceedings h the Commission or in any court to give evidence about what ltangpired during conciiion unless as ordered by @ court of law or a commissioner ‘conducting an arbitration, PART THREE ‘CON-ARB IN TERMS OF SECTION 194(5A) Conduct of con-arb in terms of section 191(5A) of the Act a @ @ @ ® © The Commission must noify the parties in wrting ofa con-art hearing at least fourteen (14) days prior to the scheduled date, unless the parties agree to ashore period oF Feasonable circumstances require a shorter period. if anotiteaion is sent by registered ‘ail an adultional seven (7) days must be alowed, ‘A party thal inlens to object ta algpute being dealt with in terms of section 191(6A), ‘must deliver @ written note to the Commission and the other party. et least seven (7) ‘ays prior to the scheduled date interme of sub-rule (1. Sub-ule (2) does not apply to: (2) 2 dispute relating to the dismissal of an employee for any reason related to Probation or an unfair labour practice relating to probation (©) a dgpute relating to @ compliance order refered in terms of section £9(5) of the BCEA‘er "9 #20 : (© aims for failure pay any amount owing referred in terms of section 7A of ‘the BCEA yeny " 1 pry fais to appear otto be represented at a hearing schedule in tems of ub (2) The commissione: must conduct the conciliation on the date specified in the ‘otiication saued in terms of subule (1), respective of Whether & pay Nas lodged a notice of objection in terms of sub-rule (2). (©) Where the provisions of sub-rule 3 are applicable or no notice of objection has been lodged in tems of sub-rule (2) the commissioner must commence with the arbitration immediately ater certlying thatthe dispute remains unresoWwed, (©) euinstanding sible 4), the commissioner having commenced the arbitration, retains a discretion, as contemplate in section 138(6) of the Act 10 ‘agjour the proceedings toa later date. ‘The provisions of these, Rules that are applicable to conciliation and arbitration Fespectvely, including Rules on representation. apply with the changes required bythe context tothe conciiation and arbitration parts of Gon-arb proceedings tespectivoy, Ifthe arbitration does not proceed or is not concluded on the date specified in terms of the notice in sub-rule (7), the Commission must schedule the matter for abitralion other in the presence ofthe partes or by notifying the parties in terms of Rule 21 Pop ttet40 ‘This gazeto is also avallable res online at www. gpwonline.co.2a 8 9 STAATSKOERANT, 21 APRIL 2023 No. 42445 109 PART FOUR, ARBITRATIONS: How to refer a request for arbitration to the Commission ” @ @ Cc) A patly may request the Commission to arbirate a dispute by delivering @ duy ompleted URA torn 718, which may ncade using te offen Com letersi aay ‘eferralenine perils. When referring @ request by means other than the official Commission electronic ‘feral onine portals as set out in Schedule One, the requesting party must (2) attach to the request. writen proof, in accordance with Rule 6, that the request was served on the other partes to the dispute; (©) is required to attach tothe request, an application for condonation if the request for ‘condonation is referrad afte the relevant time limit has expired. Despite Rule 18(2)(b) where a request has been referred out of tine and if Condonation has not been attached to the request, the Commission wil decide whether the condonation ill be determined at @ hearing or by writen submissions. received from the parties This Rule does not apply o con-arb proceedings held in terms of section 191(6A) read together with Rule 17 When must the parties file statements a @ @ ‘The Commission or a commissioner may direct - (@) the requesting party in an arbitration to deliver a statement of case; and (©) the other partes to deliver an answering statement or affidavit A statement in terms of sub-rule (1) must - (@) _satout the mateal facts upon which the pat relies and the lgal ees that arise from the meterial facts; and ‘eva (b) be dalvered within the time-period specified by the Commission or ‘commissioner cine Sonmigion! Ras a craton to continue wth he mater despite non compliance With a irective of the Commission or commissioner In terms of subrule (1) lowever, ‘any non-compliance may be taken info account when ‘considering (costs at the Conclusion of the arbitration hearing Page t2ot40 This gazote is also avaliable ra onine at www.qpwonline.co.2a 110 No. 42445 GOVERNMENT GAZETTE, 21 APRIL 2023 20 When the parties must hold a pre-arbitration conference o @ @ ‘The parties o an arbitraton must hold @ pre-arbitration conference dealing with the matters referred to in sub-ule (3) (2) bath partes are represented bya rade union, employers organisation, egal (©) jraclBoner ander condaate ame. = (©) both parties agree to hold a pre-erbitration conference; oF (0) lected to do so by the Provincial or Regional Senior Commissioner or the ‘Senior Commissioner in charge of a region or te presicing commissioner. AA pre-arbitration conference convened in terms of sub-rule (1)(a) and (b) must be ‘convened at least fourteen (14) days prior tothe date of the scheduled arbitaton, {na pre-arbitration conference, the parties must attempt to reach consensus on the following = (2) any means by which the dispute may be setied; (©) facts that are agreed between the parties; (©) facts that are in dispute: (4) the issues thatthe Commission is required to decide; (©) the precise relief claimed and if compensation is claimed, the amount of the ‘compensation and how itis calculated (the sharing and exchange of relevant documents, and the preparaton of a bundle of documents in chronological order with each page numbered, (@) the manner in wich documentary evidence is to be dealt with, inclucing any agreement on the status of documents and whether documents, or parts of ‘documents, wil serve as evidence of wha they appear to be, (%) whether evidence on affidavit will be admitted with or without the right of any party to cross-examine the person who made the affidavit; (which party must begin; © the necessity for any on-the-spot inspection; (©) securing the presence at the Commission of any witness; (0) the resolution of any preiminary points that are intended tobe taken; (=) the exchange of winess statements; (0) expert evidence; (©) anyother means by which the proceedings may be shortened; (©) anestimate ofthe time required forthe hearing; Page 13040 ‘This gazeto is also avallable res online at www. gpwonline.co.2a a 2 a © © ” ® STAATSKOERANT, 21 APRIL 2023 No.aeaas 111 (@) the right of representation; and (0) wether an interpreter fs required and, if so, for how long and fr which guages. Unless a dispute is sete, the partes must draw up and sign 3 minute setting out the facts on which the parties agree or disagree. * . {lowe in terms of subule (4) may also deal with any cher mate std in sub-rule ‘The referring party must ensure that a copy of the pre-arbitration conference minute is delivered to tne appointed commissioner seven (7) days prior tothe date scheduled for the arbitration. ‘The commissioner may, efter receiving a pre-arbitration minute - (2) direct the parties to hold further prevaritetion eantecanoe: and / or (©) issue any other directive to the parties concerning the conduct of the Stale, lacing anhedsuny in mote Sr hears on are dae ‘The commissioner has a discretion to continue withthe matter despite non-compliance ih tne arectve in terme of subvule (1), o he provisions of sub-ao (4) @) andlor (6), However, any non-compliance may be taken Into account when considering costs atthe conclusion ofthe arbitration hearing. ‘When must the Commission notity parties of an arbitration ‘The Commission must notify the parties in writing of an arbitration hearing at least twenty-one (21) days prior to the scheduled date, unless the parties agree toa shorter period or reasonable Circumstances require a shorter pefiod. if a notification is sent by registered mail only, an ‘additional seven (7) days must be allowed. How to determine whether a commissioner may arbitrate a dispute urna, ne arbitration roceedings i appears that jection! sun hex not been jelermined, the commissioner must require tne refering party to prove that the Commission has Jurisdiction io arbitrate the dispute. How to postpone an arbitration o @ ‘Subject to sub-rules (2) ~ (6), an arbitration may be postponed - (@) {tthe Commission is satsie that thee is witten confmatio to postrone both parties; or Pos 7 (©) by application tote Commission and on notice to the other parties in rms of sete ‘The Commission may pos'pone an arbitration without the parties appearing if: {@) all the partes to the dispute confim in wing that they aree to the postponement: ard. 9 that hey 2a Page t4ot40 This gazote is also avaliable ra onine at www.qpwonline.co.2a 112. No. 48445 @ “ 6 GOVERNMENT GAZETTE, 21 APRIL 2023 (©) the writen confirmation for the postponement is received by the Commission atleast seven (7) days prior tothe scheduled date of the arbitration ihe conditions of subrule 2) are not met, any party may apply in ems of Rule 31 to Postpone an arbitration by delivering an application to the other parties to the dispute nd fling @ copy withthe Commission before the Scheduled date ofthe arbtration, ‘After considering the written application or confirmation, the Commission may - (@) without convening a hearing, determine whether or nat to postpone the matter; (©) convene a hearing to determine whether to postpone the matter; or (©) determine the application in any manner the Commission deems fi ‘There is no right to postponement and arbitration will proceed as scheduled unless the Commission or commissioner notifies the partes thatthe matter has been postpones PART FIVE RULES THAT APPLY TO CONCILIATIONS, ARBITRATIONS, CON-ARBS AND OTHER PROCESSES. 24 Where a hearing will take place ” 2 A dispute must be heard inthe region in which the cause of action arose or where the ‘employers principal place of business is located: unless @ Senior Commissioner in the head office of the Commission directs otherwise. ‘The Commission or commissioner within a region determines the venus forthe hearing: hich venue may include an onine hearing held via a digital platform, 25 Representation before the Commission (@) _Inconctiation proceedings a party to the dispute may appear in person of be represented only by ~ ©) tte pry ig an employer, «rector ot employe ofthat party and in asdeon,# ts'8 ose coporsion, s metnber seempojee oat Close corporation: (i) any member of that party's registered trade_union or registered employers’ organisation or an office bearer or official as defined inthe ‘Act or an office bearer or official as defined in the Act ofa registered federation of trade unions or registered federation of employers ‘organisations; ifthe party is 2 registered trade union, any member ofthat trade union ‘or any office bearer or oficial as defined inthe Act and authorised to represent that party of an office bearer or official as defined in the Act of registered ederaton of tade unons and auhorsedtepresent that pany; oF Page 1 0140 ‘This gazeto is also avallable res online at www. gpwonline.co.2a STAATSKOERANT, 21 APRIL 2023 No.4a4as 149 © © ® (i) ifthe pany is a registered employers’ organisation. any director or pies’ of fn rapoyer tat a member of that omployers Srgantaton ofan ofc or office bearer as defined inthe ct and authourised to represent that party or an affice bearer of offal a3 Gefined "in. the "Act of a fegistered federation “of employers Organisations and authorised to represent hat pat. \)_apartyisthe Deparment of Employment and Labour, any employee (Grae te Separtnan of Saplonnen ana bout ‘Subject to sub-rule 1(c), in any arbitration proceedings a party to the dispute ‘may appear in person of be represented only by = (legal practitioner; i) candidate attorney: oF (ii) _anindividualentited to represent the party at concilaion proceedings inten of subute (Ia) Ite dispute being arbitrate i referred in terms of section 69(5), 73 or 73 ‘of the BCEA or is about the faimess ofa dismissal and a pary has alleged that the reason forthe dismissal relates tothe employee's conduct or eapaciy, a party is not entitled fo be represented by a legal practitioner of @ candidate attorney in the proceedings unless: () the commissioner and all the other parties consent; (i) the commissioner concludes that itis unreasonable to expect a party todeal wit the dispute without legal representation, after considering (2) the nature of the questions of law raised by the dispute; (©) the complexity ofthe dispute; (©) the public interest; and (4) the comparative abilty of the opposing parties or their representatives to deal withthe dispute, In any faclitaton of large scale retrenchments as contemplated in section ‘189A(3) of the Act, a party may appear in person or be represented by (0. a dteior or employee ofthe party, and, i a close corporation, member or employee of fat cose compratons (i) any member, office-bearer or official of that partys registered trade union; or (i) any member, ofce-bearer or official of that party's registered union fr regstered employers’ organtsation. Page 160t40 This gazote is also avaliable ra onine at www.qpwonline.co.2a 114 No. 49445 GOVERNMENT GAZETTE, 21 APRIL 2023 @ ® @ © © (@) _Norepresentation by a legal practioner or candidate attomey shall be allowed Infgctiationscflerge scale etrenchmets as contempatedh socten188A(3) the Act (No person representing a party in proceedings before the Commission in a ‘capacity contemplated in sub-rule ()(a) or (b), other than a legal practioner ‘or candidate atorney contemplated in sub-rule (1)(b)() and (i), may charge a {oe or receive a financial benefit in consideration for agreeing to represent that It the party tothe dispute objects tothe representation of another party to the dispute fr the commissioner suspects that the representative of @ party does nol qualify In ‘terms of this Rule, the commissioner must determine the issue. The commissioner may call upon the representative to establish why the representative should be permitted to appear in tems ofthis Rule. ‘A representative must tender any documents requested by the commissioner for the purposes uf sub-rule @), including eonsttullons, paysips, contracts of erployment, ‘Socuments and forms ar recognition agreements and proof of membership ofa trade 'nion oF employers’ organisation, Despite the provisions of sub-rule (1), commissioner may exclude any person who is representing spain any proceecings onthe bans that they area member of the Same employers’ organisation as an employer party, ora member of an employers organisation hats party to proceedings, ine comnssioner, after enguring no the matter and considering relevant representations, beloves thal (®) the representative joined the employers’ organisation for the purpose of representing parties in the Commission, oF (©) the representaive's participation in the dispute resolution process — (would be contrary to the purpose of the Rule which is to promote Inexpensive and expeditious depute resotiton m's mane that tqulaole to alparises © 'gzatin oping wth tho obccve of ho Labour Relaone At 66 of (may have the consequence of unfary disadvantaging another pa to the dispute, nieaing sd Despite the provisions of this Rule, but subject to the provisions of sub-rule (1)(9, the ‘commissioner may, on application brought in accordance with Rule 31, allow a person ‘ot contemplated by sub-ule (1) to representa party a arbtration proceedings betore ie Commission, afer considering - (2) whether itis unreasonable to expect the applicant party to deal withthe dispute witout representation, aor conden the Yactore set out i subrule Ho} (6 (0) the reason wty 2 person contemplated in Rule 25 cannot represent the applicant party, which includes affordabilty If applicable: Page 1 of ‘This gazeto is also avallable res online at www. gpwonline.co.2a © © © 0 @ STAATSKOERANT, 21 APRIL 2023 No. 4244s. the, abilty of the proposed representative to meaningfuly represent the -pplicar wheter the proposed representative i subject tothe oversight and dscipine St a profesional oso body. Whether the proposed representative will contribute to the falmess of the proceedings and the expeditious resolution of the dispute: Prejudice tothe other party; and ‘any other relevant factors, 26 How to join or substitute parties to proceedings, ay @ @ ® 6 © ‘The Commission or a commissioner may, at any stage prior to the conclusion of an ‘rotation or hearing, make an order joining any number of persons as parties in the Proceedings if @ © ‘A Commission or a comm @ © © the “ght ofthe refering party fo relef depends on substantially the same question of law or fac which, fa gapute wore to be retered separately ‘against the person sought to be joined, I would aise ia separate claim: or the party to be joined has a substantial interest in the subject matter of the ings: the party to be joined may be prejudiially affected by the outcome of the proceedings. ner may make an order in terms of sub-rule (1) - ‘on own accor ‘on application by a party: or if @ person entitled to join the proceedings applies at any time during the proceedings to intervene as a party ‘An application in terms ofthis Rule must be made in terms of Rule 31 When making an order hn terms of sub-rule (1), a commissioner may - @ © ‘ive appropriate directions as to the further procedure in the proceedings; and ‘make an order of costs in accordance with these Rules. Hin any proceedings it becomes necessary to substitute a person for an existing party, ‘any party to the proceedings may apply tothe Commission for an order substiutng thet party for an existing party, and a commissioner may make such order or gle ‘8pproprate directions as tothe further procedure in the proceedings. {An application to join ary person as a party to proceedings or to be substitued for an ‘existing party must be eccompanied by copies of all documents previously delivered, including the referral form, unless the person concerned or thal person's representative Page 180¢40 This gazote is also avaliable ra onine at www.qpwonline.co.2a 115 116 No. 49445 ar 28 29 0 GOVERNMENT GAZETTE, 21 APRIL 2023 's already in possession ofthe documents. The application may be made a any stage proto the sont an asvaton Peg SPmaten may Sable ey ger made ners of subuls and (5). a indo substitution in terms ofthis Rule does not affect any steps already taken ii the proceedings How to correct the citation of a party It a party to any proceedings has been incorrectly or defectivey cited, the Commission or Commissioner may on its own accord, by consent ofthe parties or on application and on notice tothe parties concemed, correct the error or defect When the Commission may consolidate disputes o @ ‘The Commission or a commissioner may, of ts own accord, by consent of the partes 20 application, and on notice to the parties. concerned, consolidate rote than one dispute so that the disputes may be desk with in the same proceedings. ‘TRe Commission or a commissioner may order consolidation of separate dsputes of fight, where (@) the relief sought in each of the separate disputes to be consolidated, depends {98 the determination of similar or substantial the same questions of lew avd fact (©) therewillb no substantia prejuie on the party or partes sought be joined through consolation cro * ; (©) thebalanceefconvenince favour such consosdaon: nd (8) the Commissien has jurisdiction in all disputes sought to be consolidated, Disclosure of documents or material related to the dispute o @ @ 4 6) At any time after the certificate of outcome is issued or the expiry of the 30-day Conciiation period, but rot less than fourteen (14) days prior tothe hearing Gate, elise Party may, on application, request the other pary to disclose any documents or material Folovant the Sopute, ) and (), the party to whom the application is made must ‘espond tothe apoteaon wit ve (} days rom the dat on wich the soph SeeeNee at, oa, path te, apa ay eer phir won went Or asa wit three (3) days fom the day or wich any aneereey wien statement or affidavit wes served on ” 7 ‘A commissioner may ether before or during the proceedings a the commissioner's own sort oon appledton make n Oe Ses ho acces of ever anes material relevant tothe dispute Notwithstanding the above, the parties may agree on the disclosure of documents or ‘materials relevant to the dispute, This Rule is to be distinguished from disclosure of information disputes in terms of section 16 of the Act Page 190140 ‘This gazeto is also avallable res online at www. gpwonline.co.2a STAATSKOERANT, 21 APRIL 2023 No.ae4as 147 30 4 What happens if party falls to attend arbitration proceedings before the Commission (1) Ia party tothe dispute fails to attend or be represented at any arbitration proceedings before the Commission, and that party- (2) was the referring party, the commissioner appointed to arbitrate, must attempt to establish the reason for notvattendance If there appears to te a good reason for the absence, the commissioner must direct that the matter be Feschoduled fo: arbitration; oF (©) ifthe absence is, on the face oft, wilful or unexplained, oF the commissioner {does not accept the explanation, the commissioner may remove the matter fom the rol, (©) had not referred the matter to the Commission, the commissioner may = (continue wth the proceedings in the absence ofthat party; or (adjourn the proceedings to a later date. 2) Acommissioner must be satisfied thatthe party had been properly noted ofthe date, time and venue of the proceedings, before making any decision in terms of sub-rule (1) PART SIX APPLICATIONS How to bring an application (1) This Rule applies to any application, including but not limited to ~ (@) _condonation, joinder, substitution, variation, rescission, postponement and disclosure of documents; (©) application in ajurisaictional dispute; and (©) other preliminary or interlocutory application. 2) Subject to Rule 32, an application must be brought at least fourteen (14) days prior to the date of the hearing on notice to all persons who have an interest in the applcation (9) The party ringing the application must sign the notice of application in accordance with Rule 4 and must state - (2) thettile of the matter; (©) the case number assigned to the matter by the Commission, if available; (©) therelief sought: (@) the address at which the party delivering the document will accept delivery of all documents nthe proveedings; Page 200f40 This gazote is also avaliable ra onine at www.qpwonline.co.2a 118 No. 49445 ® 6) © o ® GOVERNMENT GAZETTE, 21 APRIL 2023 (€) that any party that intends to oppose the matter must deliver 2 notice of ‘opposition and answering written statement or affiavit within fe (8) days after the application nas been delivered tof () that the application may be heard in the absence of a party that does not ‘comply wth stoparagraph (e), and (g) theta schedule is included listing the documents that are material and relevant tothe application ‘The application must be supported by a written statement or affidavit. The writen statement or affidavit must clearly and Concisely set out = (@) the names, description and addresses of the parties; (©) a statement of the material facts, in chronological order, on which the Application is based, in sufficient detail to enable any person opposing the application to reply tothe facts; (©) _astatement of aga issues that arises from the material facts, in sufficient detail {o enable any party to reply to the document. (6) If the application is fled outside the relevant time period, grounds for condonation in accordance with Rule 8; and (©) ifthe application is brought urgently, the circumstances why the matter Urgent and the reasons why it cannot be deait within accordange wit th time frames prescribed in these Rules. (@ Any party oppesing the application may deliver anatice of opposition and an ngverng wren statement or ofidavk tin fe (©) days tom the day on stich the applcaton wos sented on tat ary (©) _A.notice of oppostion and an answering writen statement or afdait must Gontain, wih tte cnangesrequted by ts conten, the information eared by Stouibs (3) and Gh respectively (2) The party inna the proceedings may delvrarepyng writen statement or tide Win three 3 says fom the Gay on which any Mowe of oppostion ‘and answornguriten statement or afidavk are served of (©) The ephyingwitten statement or affidavit must address ony i8ues raed in the answering writen statement or affcavt and may not ittediee ew eaves Siac oriaws In an urgent apocatin, the Commission ora commissioner- (@) may dispense withthe requirement of tis Rule; and (©) may ony grantan order against a party that has had reasonable note ofthe ‘pplication, Applications may be set down fora hearing or determined on the papers. Page a ot40 ‘This gazeto is also avallable res online at www. gpwonline.co.2a STAATSKOERANT, 21 APRIL 2023 No. 4244s. 19 3A 3B (9) Where the application is set down for a hearing, the Commission must allocate a date {or the hearing once replying writen statement or affidavit le delivered, 0° once the time limit for devering a replying writen statement or affidavit has lapsed, whichever ‘occurs fist, The Commission must notify the parties ofthe date, time and place ofthe hearing ofthe application, (10) esti tis Rul, he Commission of a commissioner may determine an appication in any manner it deems fi, provided that the Commission or the commissioner forme the Patles of how te process willbe conducted end gves the partes an opportunity tobe ar {ow to apply for urgent picketing rules or the determination of disputes relating (1) This Rule applies to: (@) applications for picketing rules in terms of section 69(68) of the Act; (©) disputes relating tothe application oF interpretation ofa picketing egreement ‘orpicketing ule determined by the commissioner, and (©) lgputes relating to an ise concerning picketing contemplated by section (8) of the Act. ee * ” (2) _Anapplication must be brought in @ prescribed form with supporting documentation, (8) The application must be served on al elevant parties, (4) Unless the parties agree otherwise, the Commission must set down the eppication within 2 (Wd) days of receipt of the appton “ How to apply for the enforcement of written undertakings andlor compliance orders (1) This Rute applies to any - (2) application for an undertaking to be made an arbitration award in terms of Section 64(3) ofthe BCEA; and (©) application for a compliance order to be made an arbitration award in terms of Section 73(1) ofthe BCEA. @) An application must be brought ina prescribed form, o which the following documents © rustB'staches° Mowatt omen (@) a copy ofthe undertaking or compliance order, (©) _ inthe case of a compliance order, proof thatthe compliance order was served ‘on the employer in accordance with the BEA: (©) any documents related to the securing an undertaking or issuing of a ‘Compliance oféer, including, a complaint or grievance, an inspection report or ‘other notes made during an inspection and any relevant records. of the employer; Page 220840 This gazote is also avaliable ra onine at www.qpwonline.co.2a 120 No. 42445 GOVERNMENT GAZETTE, 21 APRIL 2023 sic ® “ © ) o @ ° (19) (@) an Inspector Confimatoyafidavt, he inspectors ot the one spring the prescribed form; 7 (©) supporting witness or third partyafidavits, where applicable; (anyother relevant documents, “pest ess an coat by mrp sadn gee creases ree sees tse eee ‘An employer may, subjctto the provisions of the BCEA, object to a writen undertaking GF compliance order beng made an ariration ava by serving and fing en aidan Seting out fs objections n accordance wih the provisions of this Rul ‘An objection affidavit in terms of sub-rule 4 must be delivered, supported by relevant Gocuments, to the Department. of Employment’ and. Labour and any afected employee(s) and fled wth the Commission within fve (8) days from the date on which {he application was served on the employer. “The pary inating the proceedings may deliver a reply within tree (3) days from the

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