Conciliation is a process where a commissioner meets with the parties to a dispute and explores with them ways to settle the dispute by agreement. Only issues referred to the CCMA in terms of the Labour Relations Act, the Employment Equity Act, the Basic Conditions of Employment Act, the Skills Development Act, or the National Minimum Wage Act require conciliation.
There are time limits applicable for referral of disputes to conciliation, depending on the issue in dispute. Please refer to the topic on Referring a dispute to the CCMA for more on this as well as the applicable forms for referring a matter for conciliation.
At conciliation, a party may appear in person or only be represented as follows:
i) if the party is an employer, a director or employee of that party, or if it is close corporation, by a member of that close corporation;
ii) any member of that party’s registered trade union or employers’ organisation, or an office bearer or official as defined in the Labour Relations Act (LRA) or an office bearer or official, as defined in the Act, of a registered federation of trade unions or registered federation of employers’ organisations;
iii) if the party is a registered trade union, any member of that trade union, or an office bearer or official as defined in the LRA and authorised to represent that party or an office bearer or official, as defined by the Act, of a registered federation of trade unions and authorised to represent that party; or
iv) if the party is a registered employers’ organisation, any director or employee of an employer that is a member of that employers’ organisation or any official or office bearer, as defined in the LRA and authorised to represent that party or an office bearer or official, as defined by the Act, of a registered federation of employers’ organisations and authorised to represent that party.
The conciliation meeting is private and confidential between the parties and is not recorded. The discussions between the parties are intended to find solutions and are without prejudice and may not be used against any of them in subsequent proceedings unless agreed to in writing by the parties or ordered by a court of law.
Conciliation hearings may take place in person, telephonically or through an online digital platform.
A commissioner may, depending on the nature of the dispute and sensitivities or tensions between the parties, begin by meeting jointly with the parties to obtain and ensure sharing of information about the dispute. Separate meetings between the commissioner and each party may also be held. Parties are encouraged to share information and to present proposals and ideas on how their differences could be settled. A commissioner may also put forward suggestions to assist the parties to identify solutions.
A commissioner determines the best possible process to deal with the dispute, including mediation, facilitation or making recommendations in the form of an advisory arbitration award. The commissioner's role is to assist the parties to resolve the dispute within 30 days of it being referred to the CCMA. If the dispute is resolved, a commissioner has a duty to assist the parties to draft an enforceable agreement that brings the dispute to finality. The commissioner issues a certificate recording the outcome of the dispute. A signed settlement agreement is binding on the parties. Non-compliance with the terms of a settlement agreement can be dealt with by an application to have the settlement agreement made into an arbitration award and then to have the arbitration award enforced as if it is an order of the Labour Court in respect of which a writ has been issued.
Should the dispute not be resolved, a commissioner may explain the process that may be followed thereafter.
If a party that referred a dispute fails to attend a conciliation meeting, for whatever reasons, but has not withdrawn the dispute, a commissioner has to issue a certificate indicating that the dispute remains unresolved. That certificate merely signifies that the dispute remains unresolved and this has no bearing on the merits of the dispute.
Exhausting internal procedures
Parties are encouraged to ensure that internal procedures and processes have been exhausted prior to referring a dispute to the CCMA. This is particularly so where an employment contract between the parties or a collective agreement binding on them provides for such internal remedies to be exhausted before a dispute is referred.