CONCILIATION, MEDIATION AND ARBITRATION COMMISSION - CMAC

CONCILIATION GUIDELINES

1. INTRODUCTION

1.1 These guidelines are published by the Commission under Section 64 (2) (e) of the Industrial Relations Act.

1.2 These guidelines lay down general principles to guide conciliators in the exercise of their powers and functions.  They are not absolute rules and each conciliation must be considered on its own merits.

1.3 The guidelines are also to assist parties in disputes.  The guidelines tell employers, unions and employees and their organisations how a conciliation is likely to be conducted and what the conciliator will expect from them.

2. PURPOSE OF THESE GUIDELINES

2.1 The purpose of these guidelines is –

2.1..1 to inform parties in disputes of the policies and
 procedures of the Commission;

2.1.2 to help conciliators to perform their functions;

2.1.3 to promote an understanding of conciliation under the Commission.

3. WHAT IS CONCILIATION?

3.1. In broad outline, conciliation is a process in which an independent, objective person attempts to assist disputing parties to find an amicable resolution..

3.2. Conciliation is described in Section 81 (2) of the Industrial Relations Act  to include:-

3.2.1. mediation
3.2.2. fact finding
3.2.3. making recommendations to the parties, which may be in the form of an advisory award.(See 3.5)
3.3 Mediation is a process in which a conciliator meets with the parties in a dispute, either together or separately, and through discussion attempts to help the parties settle their dispute on terms acceptable to all involved.

3.4 Fact – finding is a process in which a conciliator attempts to assist parties in determining certain facts in order to assist them in settling the dispute.  Fact – finding is useful where parties’ views on certain facts differ, thus preventing the resolution of a dispute.  The conciliator’s fact finding attempts are not binding on the parties, unless they agree to be bound.  They have persuasive power, giving the parties an independent person’s view on the facts.

3.5 Making an advisory award may be an informal recommendation to the parties or may result from a formal process similar to arbitration.  Whatever its form, the outcome is not binding on the parties.  It has persuasive power and is used in order to assist the parties in attempting to settle a dispute.  An advisory award should only be given if the parties to the dispute agree or the conciliator believes it will enhance settlement.

4. FUNDAMENTAL PRINCIPLES OF CONCILIATION

4.1 .1  The process of conciliation is designed to assist parties in a dispute to reach an agreement. It is a fundamental principle of conciliation that the parties are ultimately free to choose whether to settle the dispute or not.  

4.2 Tthe conciliation process under the Industrial Relations Act is a compulsory stage before utilising other mechanisms to resolve the dispute such as industrial action, the Industrial Court or arbitration.  A party is required to attend a conciliation hearing convened by the Commission but no settlement may be imposed on the party.  Parties will be encouraged to engage in the proceedings in a genuine attempt to settle.

5. CONCILIATION UNDER THE ACT

5.1 The Commission must appoint a commissioner to attempt to resolve a dispute through conciliation within 21 days of a dispute being reported to the Commission in terms of Section 80 of the Industrial Relations Act.  The Act gives the conciliator the power to determine how the conciliation shall be conducted, and this may include mediating the dispute, conducting a fact finding exercise or making recommendations to the parties, which may be in the form of an advisory arbitration award.

5.2 The commissioner appointed to conciliate has 21 days within which to attempt to resolve the dispute, provided that this period may be extended by agreement between the parties.

5.3 At the end of conciliation, the Commissioner must issue a certificate stating whether or not the dispute has been resolved.  The Commissioner must serve a copy of the certificate on Commissioner of Labour and on each party in the dispute or their representative.  The commissioner must file the original of the certificate with the Commission.

5.4 In terms of Section 81(6) of the Industrial Relations Act, a commissioner appointed to conciliate retains jurisdiction over a dispute until it is settled, notwithstanding the issue of a certificate that the dispute is not resolved.  This means that the appointed commissioner may for example attempt to continue to assist the parties to resolve a dispute during industrial action following conciliation,.  For this purpose, the commissioner should keep in contact with the parties, to assess whether further conciliation may be worthwhile.

5.5 Section 64 (5) of the Industrial Relations Act gives the Commission the power to subpoena persons for questioning, to produce any document or article relevant to a dispute, or to give evidence. 

6. ESSENTIAL SERVICES

6.1 It is specifically provided in Section 96 (2) of the Industrial Relations Act that if a dispute in an essential service is referred to the Commission, the conciliator must within 7 days,commence attempting to resolve the dispute through conciliation. This may be extended by agreement between the parties.  The conciliator does however still have the 21 day period provided for in Section 81(5) of the Act to conduct the conciliation.

7. DISPUTES REQUIRING CONCILIATION

7.1 The Industrial Relations Act requires the Commission to appoint a conciliator to attempt to resolve all disputes referred to the Commission.  This applies irrespective of the nature of the dispute.

7.2 The effect of this is that the Industrial Relations Act promotes the settlement of disputes by agreement through conciliation, before utilising arbitration, adjudication or industrial action.

8. REPRESENTATION AT CONCILIATION

8.1 Section 81 (3) of the Industrial Relations Act provides that a party to a dispute may appear in person or be represented only by:

8.1.1 a member, office bearer or official of that party’s organisation; or

8.1.2 a co – employee if the party to the dispute is an employee; or

8.1.3 a director or employee of a juristic person, if the party to the dispute is such a body.

8.2 Section 81 (4) of the Industrial Relations Act provides that, notwithstanding Section 81 (3) of the Act, a party may be represented by any other person in conciliation, if this is agreed between the parties in the dispute.

9. CONFIDENTIALITY

9.1 Conciliation is a confidential, without prejudice process aimed at helping the parties in a dispute reach anagreement.

9.2 This means that information divulged during conciliation may not be used as evidence in any other proceedings, unless the party divulging that information states otherwise.

9.3 The conciliator may not be compelled to be a witness in any other proceedings in respect of what happened during the conciliation

9.4 The confidential nature of the proceedings prevents the conciliator, the parties and their representatives from disclosing any information obtained during conciliation to any third party.

10. OUTLINE OF CONCILIATION PROCESS

10.1 Each conciliation may vary, depending on the parties involved, the style of the Commissioner, the nature of the dispute and the circumstances involved.  Most conciliations do however normally involve four distinct phases;
v Introduction;
v Gathering
v Exploring options and developing consensus
v Conclusion

10.2. PHASE ONE: INTRODUCTION PHASE

10.2.1 The conciliator should attempt to create a climate conducive to the resolution of the dispute.  The conciliator should be prepared, having read the referral documents and any law applicable to the dispute;

10.2.2 The conciliator should introduce and welcome the parties, determine the language in which proceedings are to be conducted, and if there is a need for translation, ensure the presence of a translator.

10.2.3 The conciliator must disclose if the conciliator has any interest in the outcome of the case or has had any contact with any of the parties before the conciliation, whether or not there is an objection from the parties, the conciliator must withdraw from the proceedings if the conciliator believes there is a reasonable apprehension of bias or partiality.  If there is an objection to the conciliator conducting the proceedings, the conciliator must determine whether or not to proceed after giving the parties the opportunity to make representations on the issue.

10.2.4 The conciliator should outline to the parties how the conciliation will be conducted and deal with any concerns or queries raised by the parties about the process.

10.2.5 The conciliator should inform the parties of any housekeeping arrangements and, in appropriate circumstances, obtain the commitment of the parties to certain ground rules during the process.  These may include some of the following:-

(a) an understanding that what is said in inside meetings between the conciliator and one of the parties will not be conveyed to the other party unless this has been agreed;

(b) an understanding that what is said during the conciliation will not be conveyed to anyone outside the process without the consent of all parties;

(c) an understanding that the conciliator will not be called by any of the parties as a witness in any subsequent proceedings;(d) an understanding that the proceedings are off the record and conducted on a without prejudice basis;

(e) a commitment from the parties to respect each other, the conciliator and the process.  They should accordingly give each other the opportunity to speak, as directed by the conciliator, and should conduct the proceedings in a manner that maximises the possibility of a settlement being reached.

(f) an understanding that the parties determine whether or not they wish to settle, but the conciliator controls the process.  The conciliator accordingly may decide when the parties meet in a joint session and when the conciliator meets with any of the parties separately;

10.3 PHASE TWO: GATHERING INFORMATION

The conciliator normally, in a joint session, gathers information about the dispute from all the parties by doing the following:

10.3.1.   inviting each party to tell their story;

10.3.2 allowing each party an opportunity to ask questions for clarification and to respond to any version given;

10.3.3. asking questions of the parties in an attempt to understand the real interest of the parties, the cause of the conflict, and what the parties hope to achieve; and

10.3.4.  summarising the issues that need to be addressed during the conciliation.

10.4. PHASE THREE: EXPLORING OPTIONS AND  DEVELOPING CONSENSUS

10.4.1. The conciliator may commence exploring options with the parties either in joint meetings or inside meetings with any of the parties, depending on which options would best facilitate progress being made. 

The conciliator may switch between these options, and may also consider other process options such as the following:

(a) establishing a subcommittee from the parties;
(b) meeting with the person (s) who provide a mandate to a party.

10.4.2. The conciliator should consider the order in which issues are to be addressed and attempt to generate possible trade offs or concessions between different issues.

10.4.3. The conciliator should be a sounding board for the parties, helping them to reflect on the consequences of the choices available to them, and ensuring that they have considered all the implications involved.

10.4.4. The conciliator should, through brain storming and joint problem solving techniques, attempt to widen the possible range of solutions available to the parties, and attempt to assist the parties in finding creative solutions that best serve the interests and needs of all the parties to the dispute.

10.4.5. The conciliator should draw on his/her  experiences in dealing with similar disputes in other industries or areas;

10.4.6. The conciliator should ensure that the parties have in mind the consequences of a failure to reach agreement and that they compare carefully the costs of settlement against the costs of not reaching settlement.
 
10.5 PHASE FOUR: CONCLUSION

10.5.1. The conciliator should keep a careful
record of proposals and counterproposals made by all parties and should, at an appropriate stage, draft a document that reflects the developing consensus between the parties.
 
10.5.2. If the parties do settle the dispute, the conciliator should draft a settlement agreement or assist the parties in developing such an agreement. 
The conciliator should ensure that the settlement agreement:

(a) is clearly understood by all parties;

(b) does not create further disputes;

(c) is clear and concise;

(d) includes a procedure for dealing with any disputes that may arise from the application or interpretation of the agreement;

(e) caters for any ratification process required; and

(f) is signed by all parties in the dispute;

(g) if it constitutes a collective agreement, complies with the requirements of Section 55 of the Industrial Relations Act.

10.5.3 If the parties ultimately do not settle the dispute, the conciliator should :

(a) ensure that the issues in the dispute have been narrowed down as much as possible  by getting the parties to agree in writing on those aspects of the dispute which have been eliminated;

(b) ensure that the parties are aware of their rights to process the dispute further in terms of the Industrial Relations Act i.e. whether the dispute is referred to arbitration, the Industrial Court or to the possibility of Industrial action;

(c) in the event of a dispute which gives a party the right to resort to industrial action, attempt to keep in regular contact with the parties  in order to assess whether further conciliation at any stage may assist the parties to resolve the dispute.

10.5.4 The conciliator must complete the necessary documentation, at the end of the process, certifying that the dispute has been resolved or unresolved.

10.5.5 The conciliator should remember that the parties to the dispute are normally involved in an ongoing relationship.  The process should accordingly be conducted in a manner that hopefully contributes to the growth of that relationship, irrespective of whether the particular dispute has been resolved or not.

11. CONSEQUENCES OF FAILING TO ATTEND CONCILIATION

11.1. If a party is not present at the commencement of the date and time advised for the conciliation, the conciliator should wait a short period to give the party the opportunity to arrive;
11.2. If a dispute concerns the application to any employee of existing terms and conditions of employment or the denial of any right applicable to any employee in respect of dismissal, employment, reinstatement or re – engagement, the conciliator may :

11.2.1   reject the dispute reported to the Commission, if the party that reported the dispute fails to attend a conciliation meeting;

11.2.2  grant default judgement against any other  party that fails to attend a conciliation  meeting;

11.3. If a dispute concerns matters other than those referred to in clause 11.2 and one of the parties to the dispute fails to attend a conciliation meeting; the conciliator may, at the request of a party in attendance:

11.3.1  Issue a certificate stating that the dispute has not been resolved or

11.3.2   Extend the period contemplated for  conciliation by up to 21 days
 
11.4. The purpose of these provisions is to persuade parties to attend conciliation, and thereby provide an opportunity to resolve disputes.

11.5 If a conciliator rejects the report of a dispute or grants default judgement as a result of a party failing to attend a conciliation meeting, that party may apply to the Executive Director of the Commission in terms of Section 81 (9) of the Industrial Relations Act to have the decision rescinded. The Executive Director may, on good cause, rescind the conciliator’s decision.

12.  POSTPONEMENT

12.1.  There is a need to process disputes quickly, effectively and with a minimum of delay, and for these reasons a conciliator should postpone a hearing only in special circumstances.

12.2  Irrespective of whether there is agreement between   the parties a conciliator should only postpone a hearing in appropriate circumstances such as the following:-

12.2.1 there is a good reason to do so;
12.2.2 other parties to the dispute are not unduly prejudiced as a result; or

12.2.3 there are prospects that the dispute may be settled as a result of the postponement.

13. CONCILIATION DURING ARBITRATION

13.1 Arbitrators may attempt to conciliate disputes referred to them for arbitration, if there are prospects of resolving the dispute through conciliation and if the parties agree to conciliation.  If an arbitrator believes, at any stage during the arbitration process, that the dispute may be resolved by agreement between  the parties, the arbitrator may suggest that an attempt be made  to settle the dispute through conciliation.

13.2. If an arbitrator conciliates, the arbitrator should conduct the conciliation in such a manner that it does not compromise the  person’s role as an arbitrator.  This means that:

13.2.1  the arbitrator should probably not meet with any of  the parties  separately during the conciliation process, as  this may create a perception of bias or partiality.

 13.2.2 the arbitrator should, during the conciliation phase, attempt to focus on areas of settlement as opposed to the factual issues in dispute.

 13.2.3. even if the arbitrator is not able to settle the dispute during conciliation,
the arbitrator should narrow down issues in dispute as much as possible to reduce the amount of evidence that will have to be led during
arbitration.