Navigating the New CCMA Landscape: 2023 Rule Amendments unpacked
On the 21st of April 2023, the Commission for Conciliation, Mediation and Arbitration (CCMA) published amended Rules for the proceedings at the CCMA (“Rules”). The amendments to the Rules include several additions as well as alterations. The Rules came into effect on the 24th of April 2023.
In addition to the amendment to the Rules, the CCMA has also introduced additional referral forms that now need to be used by a referring party.
Rule 1A requires of parties to comply with data protection legislation, such as the Protection of Personal Information Act 4 of 2013 (POPIA). This applies to serving and filing documents and the processing of personal information.
It is advisable that employers familiarise themselves with the obligations under the POPIA in this regard to avoid being in breach of POPIA whilst litigating in the CCMA. The CCMA’s official electronic referral online portals are now the preferred method for communication.
An example with reference to the online platform, is that a party may apply for condonation under Rule 9(2A) via the online portal.
Parties may now also refer a dispute for conciliation and/or arbitration by using the online portal.
Rule 10(2)(b) still provides for an application for condonation to be attached to a conciliation referral form if the referring party is late.
The number of in limine hearings will reduce because of the amendment of Rule 10(3), which now provides the CCMA with the authority to determine whether condonation applications will be decided after a hearing or by written submissions from the parties only.
Rule 23(5) has been amended with the insertion that a postponement is not a right and Rule 23(5) now indicates that a Commissioner “may” postpone an Arbitration without the parties appearing in front of the Commissioner.
Picketing rules, under Rule 13(1A), now provides that picketing rules must first be established before a certificate of non-resolution can be issued by a Commissioner, unless a signed picketing agreement is provided to the CCMA by the parties at the conciliation proceedings.
Rule 31A now prescribes the process that a party must follow when applying for urgent picketing rules or for the determination of disputes relating to picketing rules. The CCMA is obligated to, in terms of the new rules that regulate picketing rules, set down the application within two days of receipt of the application.
Rule 30(1) now obliges the Commissioner to establish the reason for non-attendance if a party failed to attend an Arbitration hearing.
According to Rule 31, if there is a good reason for non-attendance, then the Commissioner may reschedule. The referral will no longer be dismissed as was the case previously and a party may now submit a request for re-enrollment within 14 days of becoming aware that the matter has been removed from the roll.
The rule also provides for the other party to oppose the application for re-enrollment, within seven days from receipt of the request for re-enrollment.
Rule 32(2) now determines that a referring party no longer needs to apply for a rescission. The referring party would only need to seek a re-enrollment of the arbitration instead of applying to the CCMA for a decision to be rescinded or amended.
Requests for documents in terms of Rule 37(1) provides clarity by stating that requests for documents and material must be made in terms of Rule 29.
Rule 3(2) was removed, which now suggests that the CCMA may continue to schedule matters in the period between 16 December and 7 January for processes.
