CCMA to facilitate Amplats retrenchments consultation

This request comes in the wake of a decision by Amplats to give employees notice that it is contemplating retrenchments and therefore, would like to consult over this matter, said the CCMA in a statement on Wednesday.

The request for CCMA assistance is in line with provision 189A of the Labour Relations Act.

"In anticipation of the consultation process between the parties, which is to start today, we are putting together a high level team, including experts in a range of fields, to ensure we maximize our experience in similar situations on the Platinum Belt," said CCMA director Nerine Kahn.

"These processes are complex and impact directly on workers' lives, as well as on the future profitability of their employer. We intend to do whatever necessary to ensure the best possible outcome for all parties."

The CCMA said that in the event an employer is contemplating retrenchments, Section 189A of the Labour Relations Act required an employer to give employees notice and to consult with affected workers on a range of issues.

These include the reasons for the proposed retrenchment, measures to avoid retrenchments, possible alternatives to retrenchment, the timing of the dismissals, the method of selecting employees for retrenchment, severance pay and measures to mitigate the harsh effects of retrenchments.

It said when an employer retrenches a worker there must be a fair reason for doing so. This is known as 'substantive fairness' and may be based on the following:

• Economic needs (for example if the employer is losing money and is no longer making a profit);
• Technological needs (for example if the employer intends introducing new machinery which will replace workers); or
• Structural needs (for example if the employer contemplates re-structuring the business).

The employer may request CCMA facilitation in terms of section 189A when it issues notice to workers that it is contemplating retrenchments and would like to begin consultations.

If the employer does not request CCMA facilitation, the trade union or worker representatives may request a facilitator within 15 days of receiving the notice of possible retrenchments. Alternatively, the parties may agree to ask for a facilitator at any stage during the consultation process.

"During the facilitation process, facilitators assist the parties to reach an agreement by helping them to consider different solutions and to address their differences. The facilitator's role includes setting and enforcing realistic time frames; establishing what outcomes the parties want; and ensuring that there is involvement of all consulting parties in the process.

"The use of a facilitator is encouraged as the panel of CCMA facilitators has been carefully trained to introduce a holistic approach in the process, including options such as partnering with other organisations to assist with business recovery, business turnaround strategies and the training layoff scheme. These facilitators have developed partnerships with a range of institutions to support such initiatives," it said.

Normally, the facilitation takes place over four meetings and must be concluded within 60 days of the notice in terms of section 189(3). However, the parties may agree to more meetings and to extend the period.

Very often, task teams are established so that specific alternatives and options can be thoroughly explored. These task team meetings consist of the consulting parties. They meet independently and report back to the section 189A meetings. The CCMA has found that task teams are a very effective mechanism for fully exploring solutions, as the members are familiar with the workplace and its particular challenges.

In the absence of an agreement to resolve the dispute, and once the 60 day period has expired, the employer has a right to give notice to terminate the contracts of employment of the effected workers. The union in turn has the right to give notice of strike action over the substantive fairness of the dismissals, or alternatively, it could refer a dispute about the fairness of the dismissals to the Labour Court.

The CCMA said it was important for employers, trade unions and workers to familiarise themselves with the requirements for procedural and substantive fairness associated with large-scale retrenchments and to keep an open mind on the various ways in which retrenchments can be avoided or minimise the impact thereof.