Article 73/2022

Rule 25 of the CCMA rules

Rule 25(1)(a)(ii) of the CCMA rules states that the right of representation is extended to any office-bearer, official or a member of an employers’ organisation of which the employer party is a member.  With reference to the definitions of ‘office-bearer’ and ‘official’, as defined in s213 of the LRA, it is apparent that officials are limited to persons employed by the organisation as the secretary, assistant secretary or organiser.  How did the labour court recently apply these principles in determining whether or not so-called dispute advisers of an employers’ organisation, existing and established in terms of the LRA, are entitled to representation in terms of rule 25(1)(a)(ii) of the CCMA rules?

In determining whether or not an individual has the right to representation, is it only required, within the context of an employers’ organisation, that it be established that the organisation is a registered employers’ organisation, that the employer party to the dispute is a member of such organisation and that the individual representative from the employers’ organisation has been appointed in terms of its constitution?

Assuming that a representative meets the requirements as set out in rule 25(1) of the CCMA rules, to what extent is a commissioner still entitled to enquire into various issues in terms of rule 25(5) of the CCMA rules and exclude such representative from the proceedings?

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In Proactive Employers’ Association of SA v Director: CCMA and Others (2021) 32 SALLR 25 (LC); (2021) 42 ILJ 1511 (LC), the labour court adopted the following approach to the aforesaid issues:

  • in terms of rule 25(1)(a)(ii) of the CCMA rules:
  • only natural persons may represent an employer party at conciliation/arbitration
  • such representation is restricted to a member of the organisation of which the employer party is a member and office bearers or officials of same
  • when a person seeks representation as the office bearer or official of an employer’s organisation, the following enquiries can be identified:

first stage enquiry

  • the definition of office bearer identifies same as a person who holds office but is not an official
  • the definition of an official entails a person employed as the secretary/assistant secretary/organiser of such employers’ organisation
  • if the person seeking representation as office bearer or official is employed as a secretary/assistant secretary/organiser, the second stage of the enquiry should be undertaken – however, if the above does not hold, such person ‘falls out’ of the enquiry and is already disqualified at this first stage

second stage enquiry

  • the lawfulness/genuineness/bona fides of the organisation that the individual wishes to represent as secretary/assistant secretary/organiser is to be investigated
  • the membership of the employer of such organisation is also to be investigated
  • lastly, various other issues are to be investigated, such as the appointment of secretary/assistant secretary/organiser
  • such second stage enquiry is to be undertaken in terms of rule 25(3), rule 25(5) and rule 25(5)
  • a factual enquiry is to take place with reference to the factors listed in terms of rule 25(5), which reads as follows:

‘(5) Despite the provisions of sub-rule (1), a commissioner may exclude any person who is representing a party in any proceedings on the basis that they are a member of the same employers’ organisation as an employer party, or a member of an employers’ organisation that is a party to proceedings, if the commissioner, after enquiring into the matter and considering relevant representations. believes that –

(a) the representative joined the employer’s organisation for the purpose of representing parties at the Commission; or

(b) the representative’s participation in the dispute resolution process –

(i) would be contrary to the purpose of the Rule which is to promote inexpensive and expeditious dispute resolution in a manner that is equitable to all parties;

(ii) is not in keeping with the objectives of the Labour Relations Act 66 of 1995; or

(iii) may have the consequence of unfairly disadvantaging another party to the dispute.’

  • in conclusion, the labour court provided the following summary:
  • to sum up, rule 25 contemplates that only natural persons may represent employer parties at conciliation or in arbitration proceedings. Rule 25(1) restricts the right of representation of an employer to a member of the employers’ organisation of which the employer party is a member, or any of its office bearers or officials. When a person seeking to represent the employer party to a dispute does so as an office bearer, or official of the employers’ organisation concerned, reference must be made to the definitions of those terms contained in s213 of the LRA.  Persons claiming to be office bearers of an employers’ organisation must hold office in the organisation and a person claiming to be an official must be employed as the secretary or assistant secretary of the organisation. It is not open to an employers’ organisation to ‘self-define’ these terms
  • the CCMA’s rules are made in terms of s115(2A) and the terms ‘office bearer’ and ‘official’ carry their statutory meaning where they are defined by the LRA. Even if a person claiming the right to representation meets the above criteria, when that person seeks the right of representation on the basis that he or she is a member of the same employers’ organisation as the employer party to the dispute, rule 25(5) confers a discretion on a commissioner, to be exercised having regard to the factors listed in that sub-rule, to exclude that person from any proceedings. The discretion must be exercised by reference to the listed factors and may not extend to considerations not specifically listed in rule 25(5).
  • finally, a commissioner is entitled to enquire into whether, as a fact, the person seeking the right to represent an employer party is a member of the same employers’ organisation as the employer party, or an office bearer, or official of that organisation. There is no discreet requirement of bona fides in rule 25 – whether a person is entitled to represent an employer party in terms of the rule is a matter of fact and whether a person who establishes the right to representation on the grounds of membership of the same employers’ organisation ought nonetheless to be excluded is a matter of discretion, having regard to the factors listed in rule 25(5)

Often employment contracts contain a clause to the effect that the agreement is the sole record of the terms existing between the parties and that any variation or amendment thereof will only be valid if reduced to writing and signed by both parties.

When appearing in the labour court in motion proceedings and there are material disputes of fact, should the matter be referred for oral evidence?

Motion proceedings (including applications in terms of rule 31 of the CCMA rules) are not designed to resolve disputes of fact, but indeed disputes of law.