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It is important for the labour dispute resolution process to be kept as short as possible. However, at the same time the outcome must be fair. The importance of a quick yet fair and effective result highlights the need for top quality officials presiding over the processes.
A look at the level of quality of arbitrators and their training is therefore necessary. The CCMA’s arbitrators have been given three to four weeks’ intensive, specialised training by the CCMA before being allocated cases. In addition, these arbitrators are not simply drawn from the general public. In order to qualify as arbitrators, applicants are required to have specified qualifications/experience. CCMA arbitrators may be drawn from a variety of backgrounds including:
Trade union officials
Attorneys
Advocates
Mediators
Arbitrators
Industrial Court judges
Industrial relations consultants
Human resources practitioners
A CCMA arbitrator may have a combination of any of the above listed backgrounds. For example, my own background as a labour consultant and (previously) human resources manager qualified me to become a CCMA commissioner. However, together with my fellow commissioners, I still had to go through the CCMA’s own specialised training course in labour law, conflict resolution, conciliation and arbitration. Having attended this course I can attest to the quality of this commissioner training course which supplemented my previous training and experience extremely well.
Despite my previous background and the 4-week training course which I attended at the CCMA, I also had to go through a rigorous practical training programme wherein I attended cases presided over by highly experienced arbitrators/judges. I was then assessed in terms of awards which I had to write on the cases concerned and would not have been given my own cases to preside over had I failed the practical test.
It is therefore clear that the training of CCMA arbitrators is of a high quality and that, as a result, the skills of these arbitrators should, as a whole, be high. However, this does not guarantee that the skills of all CCMA arbitrators are up to standard and the awards of a number of these arbitrators have received criticism from different directions.
Of course, it is not only poor skills and knowledge of the law which could result in an inferior or questionable award being made by an arbitrator. It is possible that even a highly skilled arbitrator could make an unfair award. This could, at least in theory, be due to a lapse in impartiality.
While training of arbitrators can and does stress the essential nature of objectivity and of uncompromising professionalism of arbitrators, training on these principles cannot create integrity in an arbitrator’s character.
Happily, I have personally seldom had reason to suspect lapses in integrity on the part of CCMA arbitrators where I have represented parties at the CCMA.
Perhaps a bigger reason for the fact that a number of CCMA arbitrators have been successfully reviewed at the Labour Court is the effect of lack of time on the quality of their awards. CCMA arbitrators have a great many cases and are thus often not able to give as much time as they would like to formulating their awards.
The existence of reputable private dispute resolution bodies is therefore a major boon to the CCMA and to parties needing speedy resolution of their disputes. A number of such bodies exist in South Africa. Included amongst them are AMSA, AFSA and the Commissioners Forum.
The Commissioners Forum is a private dispute resolution body registered as an organisation not for gain. It provides services such as:
The chairing of disciplinary hearings
Arbitration
Mediation
Investigations
Relationship building exercises
While the panellists charge fees for their services the advantages of using the CF include:
A much speedier resolution of disputes than via the statutory dispute resolution system
There are no limitations on representation by lawyers and labour consultants
The meetings are held at the users’ premises
Users are able to choose which panellist they wish to use.
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