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Shawn Christiansen. Senior Commissioner CCMA. Job creation vs job haemorrhaging: Saving businesses and jobs through creative and integrated approaches during s189A facilitations - an analysis of the role of the CCMA and related case law. Overview of Presentation.
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Shawn Christiansen Senior Commissioner CCMA Job creation vs job haemorrhaging: Saving businesses and jobs through creative and integrated approaches during s189A facilitations - an analysis of the role of the CCMA and related case law
Key Features of the Statutory Provisions • The 2002 LRA Amendments; • S189, s189A and the Facilitation Regulations; • Thresholds, Time Frames and Process Practicalities; • s189A Facilitation is held over a period of 60 days; • 60 days commence from date of issuing s189(3); • Minimum of 4 facilitation meetings unless agreement reached prior to 4th meeting or alternatively the parties agree to further meetings and such is approved by the Director of the CCMA.
2013/14 Job Saving Analysis • 45% of jobs likely to be affected by retrenchment in 2013/14 have been saved.
The ‘ticking of the boxes’ approach • S189(2) a,b and c versus S189(3) a to j; • Very little if any scope to manoeuvre; • Key considerations purely to meet minimum requirements of the statutory provisions; • Approach not unique to either party; • Settlement agreements are informed by narrow interests.
The CCMA Holistic Approach and Employment Security Unit • The Triple Crises; • The 2008 Global Economic Crises; • The Holistic Approach; • Employment Security Unit.
Applying the Holistic Approach IDENTIFY THE PROBLEM / RATIONALE IDENTIFY CAUSES GENERATE ALTERNATIVES EVALUATE ALTERNATIVES IMPLEMENT REVIEW PARTNERSHIP INPUT & ASSISTANCE where appropriate
Partnerships SUPPORT & SURVIVAL MECHANISMS FOR RETRENCHEES • Unemployment Insurance Fund • DoL Public Employment Services • The National Credit Regulator • Sector Education and Training Authorities • National Youth Development Agency • SA Chamber of Business BUSINESS RECOVERY & ALTERNATIVES TO RETRENCHMENT • Department of Trade and Industry • Department of Economic Development • Industrial Development Corporation • International Trade Administration Commission • Productivity SA • Business Rescue
The Financial Impact of the CCMA’s Strategy on the South African Economy • Professor Haroon Bhorat of the UCT School of Economics Study 2011/12 and 2012/13; • In both fiscal years, about 1 900 jobs were saved (1 893 in 2011/2012 and 1915 in 2012/2013) during S189 processes; • In 2011/2012 and 2012/2013 a phenomenal 17 594 and 27 150 jobs were saved respectively; • It was found that the financial impact due to S189A interventions within the CCMA constitutes 3, 982 billion Rands and 6, 520 billion Rands in 2011/2012 and 2012/2013 respectively towards the economy;
The Financial Impact of the CCMA’s Strategy on the South African Economy • Assessing the value of this financial contribution to the economy of the CCMA: • The CCMA’s total expenditure in 2011/2012 was R428 million whilst in 2012/2013 it stood at R508 million; • The contribution of the CCMA to the economy is equal to 1 031 percent in 2011/2012 and 1 373 percent in 2012/2013; • In essence, every one Rand spent by the CCMA in 2011/2012 in preventing retrenchments, resulted in R10.24 contributed to the GDP or national output; • Simply put, the return on investment to society and the economy of the CCMA can be directly measured as being somewhere in the order of 1 000 percent.
Recent Case Law • De Beers Group Services (Pty) Ltd v NUM [2011] 4 BLLR 319 (LAC) • In retrenchments that fall under s189A but where no facilitator is appointed, the employer must go through 30 days of consultation (at the workplace); • If no consensus reached, a dispute of interest automatically exists and it must be referred to the CCMA for conciliation (ito s64); • Only once that has been done and a further 30 days have elapsed, may an employer validly issue notices of termination; • The LAC found that a notice of termination issued before that was void and it reinstated the workers.
National Union of Mineworkers v Anglo American Platinum LTD & Others [2012] 12 BLLR 1252 (LC) • The employer anticipated retrenching 14 000 employees; • After interventions and meetings with Government and the Unions the number was reduced to 6000 and the employer started consulting in terms of section 189A; • The Union challenged the procedural fairness on the basis that it alleged the employer had not complied with section 52 (1) of the Mineral Petroleum Resources and Development Act 28 of 2002 and as such it did not participate when the question of selection criteria and severance pay was raised; • The Court held that section 52 does not replace the requirements of section 189A and that if an employer raises selection criteria and severance pay and the union refuses to discuss it, then that does not render the dismissals unfair.
CCMA Case Studies • Nature’s Choice • cost of producing French fries had increased significantly; • unable to compete with the costs of imported product; • root cause of the problem is that potatoes from the ECC cost 30% of those produced locally; • Six consultation meetings were facilitated by the CCMA between 11 June and 10 August 2012; • Involvement of Economic Development Department (EDD) and International Trade Administration Commission (ITAC); • application for protection submitted to ITAC, participation of affected employees in the Training Layoff Scheme (TLS); • no forced retrenchments and over 120 jobs were saved.
CCMA Case Studies • SCAW Metals • International group that manufactures a diverse range of steel products at its principal operations in South Africa and South America; • s189A at the South African operations Wire Rope division; • Trade Unions NUMSA, SAEWA, Solidarity and MEWUSA; • trading at a loss and decision to withdraw from the flex market; • Partnered with Economic Development Department (EDD), (dTI), (ITAC) and Productivity South Africa (PSA); • agreement concluded and no employee forcibly retrenched; • Implementation of a 3 shift system; participation of 200 employees in the Training Layoff Scheme (TLS); • 359 jobs saved, on-going company and unions interaction.
