The continuing crisis in the CCMA: the most vulnerable workers are paying the price - Karibu

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Right in the middle of the COVID pandemic when the workers and poor of South Africa were sliding deeper into poverty and joblessness, the government announced a R600 million/3-year cut in the budget to the CCMA as part of its economic austerity drive. As we pointed out at the time, the impacts of this move were most directly and drastically felt by non-unionised and casualised workers who are most dependent on the CCMA to uphold and protect their worker rights.

Almost immediately, the CCMA suspended its walk-in dispute referral facility (through which over 60% of disputes are referred) as well as its call centre, resulting in all disputes having to be filed online, which is a largely inaccessible terrain for the most vulnerable and poorest workers. Further, the services of part-time commissioners, who make up the majority of CCMA commissioners and hear up to 80% of all arbitrations, were suspended.

Not surprisingly, the CCMA has been a nightmare since, particularly for casualised and non-unionised workers. Amongst other things: the hearing of cases has been seriously delayed for months at a time; the online system has been largely non-responsive; retrenchment disputes were not conciliated; and, many commissioners have pressured workers into settling disputes, often for paltry amounts. Workers have also been forced to use online services they cannot afford.

In response, our campaign and allies across the country have engaged in various direct actions and advocacy initiatives to push back against this disastrous state of affairs. While these activities further raised public awareness of the CCMA crisis, we also believe they contributed to the recent re-instatement of walk-in facilities on 1st May and some improvement in the functioning of the CCMA.

Nonetheless, recent reports from our affiliate organisations and activists across the country who have been monitoring CCMA cases and visiting various CCMA offices, reveal that there continue to be major problems and challenges, even while there has been some, if highly uneven, improvement. Below is a snapshot summary of the present situation in selected provinces:

Kwa-Zulu Natal: Some of the CCMA offices, such as the satellite office in Pietermaritzburg have resumed walk-in operations, face to face conciliations as well as arbitrations. More generally, while there is an increase in the operating hours of commissioners facilitating disputes, the physical spaces available for hearings are inadequate, with anti-worker, short-cut ‘solutions’ being adopted.
Gauteng: The Pretoria, Benoni and Johannesburg CCMA offices have not fully (re)opened. As a result, many workers remain standing in long queues outside the building. Further, cases are not heard on time and set down notifications are not being sent out timeously or at all.
Eastern Cape: While the CCMA in East London is now open, there is a huge backlog of cases. The rush to deal with this backlog is only increasing the use of Rule 25 and the tendency of commissioners to seek short-cut ‘solutions’, thus taking further advantage (especially) of vulnerable workers.
Western Cape: Most CCMA offices are open but as elsewhere, a massive backlog of cases has developed. Most commissioners are actively and inappropriately pushing conciliation over arbitration, with a key result being that many workers are settling for money in cases where they should return to work.

The reports confirm that the situation is similar in all other provinces, with the CCMA in rural areas remaining the least serviced and inaccessible. Taken together, the general picture which emerges is one in which:

Similar to the situation when it comes to access to justice through the court system, CCMA services are increasingly becoming less accessible for all workers, but more especially for those who are most vulnerable and non-unionised
The quality and promptness of services, like those in the broader realm of electricity, water and transport, continues to deteriorate so much so, that the CCMA is in danger of becoming a destroyer rather than an enabler of worker rights
There is an expanding crisis of representation at CCMA hearings due to the continued use of Rule 25, which only allows representation for workers who are members of registered trade unions
CCMA commissioners are becoming even more biased towards the bosses and thus completely compromised in the ways in which cases are handled and directed, as well as in how and what decisions are made. Our most recent experience is of commissioners and case managers inciting employers to take technical legal points against workers.

The bottom line is that the CCMA is in crisis, with all the main problems of insufficient permanent commissioners, an over-reliance on part-time commissioners, many with an innate bias against workers, too many cases, resulting in pressure on workers to settle at conciliation stage, and rude and incompetent administrative staff.

There is a ‘perfect storm’ brewing for workers in general and vulnerable/non-unionised ones in particular. The core reasons are: the combined impacts of both government and private sector approaches to dealing with the Covid pandemic; the imposition of anti-poor/worker budget cuts; general mismanagement and corruption at the CCMA; and, the increasing ideological ‘capture’ of CCMA commissioners.

Without immediate and radical action to address this crisis (see our demands in the annex to this statement), the CCMA is becoming little more than another oppressive and obstructive tool to be wielded by those with political and economic power.

We demand:

The immediate full reopening of the CCMA, including walk-in facilities and part-time commissioners hearing cases, with all the necessary Covid-19 health protocols in place to prevent the spread of the coronavirus.
An increase in the budget of the CCMA to meet its growing caseload.
The immediate appointment of more full-time commissioners, even if this means cutting the R4 million annual salary of the CCMA director.
A complete ban on part-time commissioners acting for employers during the period of transition towards the employment of more full-time commissioners.
The creation of a mechanism allowing workers and communities to report corrupt commissioners, anti-worker commissioners and hold to account disrespectful staff.
Scrapping Rule 25 and giving all workers the right to representation at the CCMA, regardless of whether they are members of registered trade unions or not.
The immediate closure of NEDLAC – 56% of whose R40 million annual budget goes to salaries, where the average salary is R800 901 and where the working class is routinely sold out by ‘organised labour’ and self-styled, unaccountable ‘community representatives’.
The immediate closure of Productivity SA – whose budget is over R80 million per year and whose sole purpose is to find ways to intensify the daily exploitation of workers.
The redirecting to the CCMA of the existing DEL funding to Productivity SA and NEDLAC.
The resignation from the CCMA governing body of the three labour federations. Bheki Ntshalintshali, a paid employee of Cosatu, to pay back the R206 157 he received for attending governing body meetings in 2019 and Narius Moloto, a paid employee of Nactu, to pay back the R174 312 he received. Geoffrey Esitang of Fedusa was also paid, R52 293.
A restructured DEL that includes an increased budget, increased inspectorate that can assume enforcement functions currently and inappropriately entrusted to the CCMA, dismissal of staff responsible for corruption in the UIF and Compensation Fund, and a weeding out of staff who are nothing more than outriders for employer interests, including directors and chief directors.