'Love thy labour' is a weekly column published in the Cape Argus, written by labour law expert Michael Bagraim. Picture: Tracey Adams/African News Agency/ANA
'Love thy labour' is a weekly column published in the Cape Argus, written by labour law expert Michael Bagraim. Picture: Tracey Adams/African News Agency/ANA

Love Thy Labour: Mediation key tool to resolve strife

By Michael Bagraim Time of article published Apr 11, 2018

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South Africa's labour legislation has come a long way since the advent of our democracy.

A strong emphasis has been placed on industrial peace and the use of statutory structures to try and resolve disputes effectively. The use of mediation (conciliation) has become one of the most fantastic tools used to resolve disputes.

Many disputes are destructive, negative and appear to be insoluble. Our legislation has implemented a system of conciliation for labour conflict which has proved to be superb. The results coming out of the bargaining councils and the Commission for Conciliation, Mediation and Arbitration have been proof of a system that is working.

Many other countries have sent experts to study our system and I regularly speak to foreign labour lawyers who are astounded when I describe the system to them.

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In essence, conciliation must take place and it is central to everything that follows thereafter. If an employee has discord with his or her employer and the parties have been unable to resolve that issue internally, the first step would be for that employee or the trade union involved to send that dispute to one of the statutory bodies.

Normally, the CCMA or the bargaining council concerned will then formally set a time, date and place for a conciliation to take place. In essence, this conciliation will be structured with a trained mediator chairing the session. The mediator will hear both sides of the argument and then try to bring the parties closer together.

The mediator does not have the power to make final and binding decisions but has the power to ensure both sides are heard.

The words mediator and conciliator are used interchangeably, and this trained official has the aim of trying to create a middle path to ensure that the dispute is not destructive to either party.

In 1995, our new Labour Relations Act specifically structured a process which brings two arguing parties together in order to see if there is a way to avoid a fight and find a resolution. It has often been said that a good resolution is when two unhappy parties find a way to avoid the dispute.

A good mediator will have the necessary labour law skills, coupled with empathy and the ability to create an environment of discussion and, eventually, agreement.

The mediator will normally listen to the parties while both are present and then separate them in order to give advice on how the law will handle the matter if it goes to arbitration or the Labour Court. The mediator will outline the law and the possible outcomes and the possible negative consequences. Basically, the mediator will draw a clearer picture for both and try to guide the warring parties into middle ground.

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In the past 20 years, the Department of Labour has successfully mediated the majority of disputes and has saved the economy millions of hours of negative strike action and many more millions of hours of negative fighting.

This statutory conciliation gives the parties the choice to avoid lengthy disputes and possible negative outcomes. Obviously, no individual can be forced into a settlement, but it is highly recommended that the process be approached with a positive mindset and not with the view of “winning”, but with the view of resolution.

It must be remembered that the parties are in full control of the outcome and the process and the conciliator is merely there in order to facilitate the structured workable process. The parties can enter into voluntary negotiation or can default to the statutory mediation.

If the dispute is referred to either the bargaining council or the CCMA, the CCMA chooses the mediator who will outline the structured process and will make a decision as to whether there is a possibility of finding a solution or not.

If during the conciliation process the parties do come to a resolution, this will then be captured on a document which will be written out by the conciliator and thereafter very carefully read out to the parties and explained.

The parties should only sign this agreement once they are satisfied that it reflects the actual agreement reached.

Normally, the conciliator will bring another trained conciliator in order to ascertain that no one is forced or bullied into signing the agreement.

Once the agreement is signed by both parties, it is final and binding and can be made into a Labour Court Order.

* Michael Bagraim is a labour lawyer.

** The views expressed here are not necessarily those of Independent Media

Cape Argus

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