Enforcing a CCMA Award

A Comprehensive Guide to Enforcing a CCMA Award

Winning your case is one thing; enforcing a ccma award is another. The Commission for Conciliation, Mediation, and Arbitration (CCMA) is central to South Africa’s labor law landscape, playing a pivotal role in resolving disputes between employers and employees. While the CCMA effectively settles matters through conciliation and arbitration, a significant challenge arises when a party fails to comply with an arbitration award. In such cases, it becomes necessary to take formal steps to enforce the CCMA award.

This article provides an extensive guide on enforcing a CCMA award, covering the legal processes, mechanisms, and remedies available to ensure compliance. We also include a detailed FAQ section to address common concerns and conclude with a list of key references.

The Nature of a CCMA Award

A CCMA arbitration award is a legally binding decision handed down by a commissioner after arbitration proceedings. The award could include remedies such as reinstatement, compensation, or compliance with labor regulations. Although CCMA awards are binding, many parties, typically employers, fail to comply voluntarily. In such cases, the successful party must resort to formal enforcement mechanisms.

The Legal Framework for Enforcing a CCMA Award

The legal basis for enforcing a CCMA award is found in Section 143 of the Labour Relations Act (LRA). This section grants a CCMA award the status of a court order once it has been certified by the director of the CCMA. The process of certification transforms the award into an executable legal document, which allows for enforcement through the courts.

Key Provisions:

Section 143(1):

Provides that an arbitration award issued by a commissioner is final and binding.

Section 143(3):

Once certified by the CCMA director, the award can be enforced in the same manner as an order of the Labour Court or Magistrate’s Court.

Section 143(4):

Allows for contempt of court proceedings if a party wilfully refuses to comply with the award.

Certification of a CCMA Award

Certification is a critical step in enforcing a CCMA award. Without certification, the award cannot be enforced as an order of the court. The process is relatively straightforward:

The party seeking enforcement must apply to the director of the CCMA for certification.

The director certifies the award, effectively converting it into a document with the legal status of a court order.

Once certified, the award can be enforced in several ways, including through the attachment of property, garnishee orders, or contempt of court proceedings.

Methods of Enforcing a CCMA Award

Once the award is certified, the successful party has several options for enforcement, depending on the nature of the award. Below are the most common enforcement mechanisms:

Writ of Execution

A writ of execution is one of the most frequently used methods of enforcing monetary awards. It allows the sheriff of the court to attach and sell the property of the non-complying party to satisfy the award. The writ is issued by the Labour Court or Magistrate’s Court, depending on the jurisdiction.

Garnishee Orders

A garnishee order allows the prevailing party to recover the owed amount directly from the debtor’s employer or bank. This is particularly useful for monetary awards when the debtor has no attachable property. The garnishee order directs a third party, usually a bank or employer, to deduct a portion of the debtor’s income or funds to satisfy the award.

Committal for Contempt of Court

If a party wilfully refuses to comply with a CCMA award, contempt of court proceedings may be initiated under Section 143(4) of the LRA. Contempt proceedings are serious, and a party found in contempt may face fines or imprisonment. The Labour Court has broad discretion in dealing with contempt and will not hesitate to compel compliance with a CCMA award.

Review Application

In some cases, a party may apply for a review of the award under Section 145 of the LRA. A review application, however, does not automatically suspend the enforcement of the award. The reviewing party must apply separately to stay the enforcement pending the outcome of the review.

Labour Court Jurisdiction and Powers in Enforcing a CCMA Award

The Labour Court plays an essential role in the enforcement of CCMA awards. While the CCMA itself does not have the authority to enforce awards, the Labour Court’s jurisdiction extends to the enforcement of both CCMA and bargaining council awards. The court has exclusive jurisdiction over disputes arising from the LRA and the power to adjudicate and enforce awards.

The Labour Court’s powers under Section 158(1) of the LRA include:

Granting orders to enforce CCMA awards.

Reviewing awards for irregularities under Section 145.

Holding parties in contempt of court for failing to comply with an award.

It is important to note that the Labour Court has exclusive jurisdiction over labor matters, and its decisions can be appealed only to the Labour Appeal Court or, in exceptional cases, to the Constitutional Court.

Bargaining Council Awards and Their Enforcement

Bargaining councils play a crucial role in certain sectors where collective bargaining agreements govern employment relationships. Awards issued by bargaining councils have the same status as CCMA awards once certified under Section 51 of the LRA. These awards can be enforced in the same way as CCMA awards, either through the Labour Court or the Magistrate’s Court.

Under Sections 142A to 146 of the LRA, settlement agreements reached in bargaining councils may also be made arbitration awards and are thus enforceable through the same mechanisms. Additionally, bargaining councils may establish their own procedures for resolving disputes and enforcing awards, provided they align with statutory requirements.

Prescription of CCMA Awards

One of the critical issues in enforcing a CCMA award is the law of prescription. According to South African law, claims based on CCMA awards prescribe after three years if no enforcement action is taken. However, if a party applies for a review of the award, the prescription period is interrupted. This principle was affirmed in the case of Myathaza v Johannesburg Metropolitan Bus Services (SOC) Ltd t/a Metrobus, where the Constitutional Court held that the filing of a review application suspends the running of prescription.

The implication of this decision is that parties must act diligently to enforce awards before the prescription period lapses, especially in the absence of a review application.

Rescission and Variation of Awards

Parties may, in certain circumstances, seek to rescind or vary a CCMA award. Section 144 of the LRA allows for the rescission or variation of an award on limited grounds, such as clerical errors, mutual mistakes, or if the award was erroneously granted in the absence of one of the parties.

However, it is important to note that rescission applications cannot be used to revisit the merits of the case. The power to rescind or vary an award is narrow and is intended only to correct procedural or clerical errors, not to change the substantive outcome.

Suspension of Enforcement Pending Review

A party who applies to review a CCMA award under Section 145 of the LRA may also apply for a stay of enforcement pending the outcome of the review. The Labour Court has discretion to grant such a stay if the applicant can show that the award is likely to be overturned on review and that irreparable harm will result if the award is enforced while the review is pending.

It is important to note that filing a review application does not automatically suspend enforcement. The applicant must explicitly request a stay, and the court will weigh the prospects of success on review against the potential harm to the applicant.

Frequently Asked Questions (FAQ)

What is a CCMA award?

A CCMA award is a legally binding decision issued by a CCMA commissioner after arbitration proceedings. It may involve orders for compensation, reinstatement, or compliance with labor laws.

How do I enforce a CCMA award?

To enforce a CCMA award, you must first have it certified by the CCMA director. Once certified, the award can be enforced like a court order through mechanisms such as a writ of execution, garnishee orders, or contempt of court proceedings.

What does it mean to certify a CCMA award?

Certification involves applying to the director of the CCMA to confirm that the award is final and binding. Once certified, the award can be enforced through the Labour Court or Magistrate’s Court.

Can an employer refuse to comply with a CCMA award?

An employer cannot legally refuse to comply with a certified CCMA award. Failure to comply can result in enforcement actions, including attachment of property, garnishee orders, or even imprisonment through contempt of court proceedings.

What is a writ of execution?

A writ of execution is a legal document that allows the sheriff to attach and sell the property of the non-complying party to satisfy a CCMA award.

What is a garnishee order?

A garnishee order allows a party to recover funds directly from the employer or bank of the non-complying party. The third party is ordered to deduct a portion of the debtor’s income or funds to satisfy the award.

What happens if I want to review a CCMA award?

You can apply for a review under Section 145 of the LRA. However, filing a review does not automatically suspend the enforcement of the award. You must apply for a stay of enforcement while the review is pending.

Can a CCMA award be rescinded or varied?

Yes, under Section 144 of the LRA, a party may apply to rescind or vary a CCMA award in limited circumstances, such as clerical errors or awards granted in a party’s absence.

How long do I have to enforce a CCMA award?

CCMA awards prescribe after three years. However, if a review application is filed, the prescription period is interrupted.

List of References

• Labour Relations Act, No. 66 of 1995
• Section 143, Labour Relations Act (Certification of Awards)
• Section 145, Labour Relations Act (Review of Awards)
• Section 144, Labour Relations Act (Rescission of Awards)
• Myathaza v Johannesburg Metropolitan Bus Services (SOC) Ltd t/a Metrobus (Constitutional Court)
• NUM & others v BKH Mining Services CC (Labour Court, Contempt of Court)
• City of Tshwane Metropolitan Municipality v Campella NO & others (Labour Court, Stay of Enforcement Pending Review)

Enforcing a CCMA award is a crucial process to ensure that justice is served following a labor dispute. Understanding the legal mechanisms and remedies available allows the prevailing party to secure compliance with the award, safeguarding their rights within the framework of South African labor law.

If you would like to know more about protecting your rights as an employee click here.

If you would like the forms for certification of awards click here.