Are conciliation proceedings at the CCMA privileged? A case study perspective.

conciliationThe Labour Relations Act No. 66 of 1995, as amended (hereinafter referred to as “the LRA”), is regarded as the most important part of any Labour Legislation. The Labour Relations Act created structures for the purpose of collective bargaining, this included bargaining and statutory councils.

The above-mentioned councils, in conjunction with the Commission for Conciliation, Mediation and Arbitration (hereafter referred to “the CCMA”) and the Labour Courts, are collectively responsible for the resolution of disputes.

The CCMA was established as an independent juristic entity with jurisdiction in all the provinces of the Republic.

The functions of the CCMA are set out fully in the LRA. The CCMA follows a specific process as evident from the abbreviation; Conciliation, Mediation and Arbitration.  The first step in resolving a dispute is thus Conciliation.  During Conciliation the parties discuss the matter “off record” to reach a possible settlement.  Should settlement negotiations fail, the matter is then referred for Arbitration.

Section 135 of the Act sets out the powers of the Commissioner to resolve a dispute through Conciliation.

In the unreported Constitutional Court case between Theo September (“the First Applicant”); Dean September (“the Second Applicant”); Roland Paulsen (“the Third Applicant”) and the Respondent being CMI Business Enterprise CC, the main question was whether the Labour Court could receive and rely on evidence which related to discussions during a conciliation hearing at the CCMA, which in turn related to the determination of the dispute between the parties, or whether that evidence is privileged.

The rule of thumb remains that all settlement negotiations made “without prejudice” are privileged. However, with the amended Rule 16 of the CCMA Rules, parties can be ordered by court to disclose such privileged information.

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