Conducting Arbitrations in the CCMA and Bargaining Councils - Pdf

Conducting Arbitrations in the CCMA and Bargaining Councils Presented By Johanette Rheeder CONTENT SECTION 1: INTRODUCTION 1.1 What is the Commission for Conciliation, Mediation and Arbitration? 1.2 The Labour Court and Labour Appeal Court 1.3 International Labour instruments 1.4 Bargaining Councils - role and functions SECTION 2: THE LABOUR RELATIONS ACT – RELEVANT SECTIONS 2.1 Defining the employment relationship 2.2 Rights and mutual interest disputes – Jurisdiction 2.3 Unfair dismissal and unfair labour practice disputes SECTION 3: DISPUTE PROCEDURES AND PATH IN TERMS OF THE LABOUR RELATIONS ACT 3.1 Conciliation 3.2 Referral of disputes in terms of LRA 7.11 3.3 Con–Arb in terms of section 191(5A) – rule 17 3.4 Certificate of outcome - Form 7.12 3.5 Requesting arbitration 3.6 Arbitration 3.7 The New Enquiry by a Commissioner in terms of section 188A SECTION 4: CCMA RULES AND FORMS 4.1 Applications – Rule 31 4.2 Application for condonation – Rule 9 4.3 Serving and filing of documents 4.4 Calculation of time periods – Rule 3 4.5 Subpoenas and witness fees 4.6 Objections to the same Commissioner and applying for a Senior Commissioner: Form 7.14 and 7.15 4.7 Joining or substituting parties – Rule 26 4.8 Taxation of costs http://www.laboursmarttraining.co.za COPY RIGHT RESERVED 3 CONTENTS Continued 4.9 Objections to jurisdiction 4.10 Representation and appearance during proceedings – Rule 17 and 25 4.11 Settlement at conciliation or arbitrations 4.12 Effect of arbitration awards – section 143 4.13 Applications to certify award – Rule 40 4.14 Postponements – rule 23 4.15 Application for costs, cost orders and taxation – Rule 39 4.16 Disclosure of documents – Rule 29 4.17 Recording of proceedings and records – Rule 36 4.18 Private arbitrations SECTION 5: ARBITRATION – PREPARATION AND PRESENTATION 5.1 Introduction 5.2 Attending the conciliation meeting 5.3 Preparation for arbitration - planning your case, consultations, collecting information and evidence and preparing witnesses for evidence. 5.4 Procedural fairness 5.5 Substantive fairness SECTION 6: PRESENTING OR DEFENDING YOUR CASE 6.1 The Role players 6.2 Opening and closing statements 6.3 Evidentiary burden 6.4 Absolution of the instance 6.5 Discussion of sources of evidence, different types of evidence and its admissibility during arbitrations. 6.6 Security guards 6.7 Site inspections or inspection in loco 6.8 Customers and suppliers 6.9 Written statements and affidavits 6.10 Probative material 6.11 Prima facie evidence v conclusive proof 6.12 Admissibility and weight of evidence 6.13 Relevance of evidence 6.14 Character Evidence 6.15 Similar Fact Evidence 6.16 Opinion Evidence 6.17 Expert evidence http://www.laboursmarttraining.co.za COPY RIGHT RESERVED 4 CONTENTS Continued 6.18 Previous consistent statements 6.19 Hearsay Evidence 6.20 Privileged Evidence 6.21 Illegally obtained evidence 6.23 The Cautionary rule 6.24 Admissions 6.25 Confessions 6.26 Polygraph Tests 6.27 Presenting and evaluating evidence 6.28 Consultations during evidence 6.29 Evidence in chief, cross examination and re- examination of witnesses 6.30 Postponements and part heard matters SECTION 7: RESCISSIONS – RULE 32 SECTION 8: THE CCMA GUIDELINES ON CONDUCTING ARBITRATIONS SECTION 9: ROLEPLAY AND EXAMPLES