Under the 1956 Labour relations Act, parties who were dissatisfied with decisions of the then Industrial Court, could appeal to the old Labour Appeal Court, and then if still further unhappiness persists, to the former Appellate Division. Such appeals entailed placing before the court the complete record of the Industrial Court, and requesting it to decide if on the evidence, it would have come to the same conclusion. Sometimes the courts of appeal decide that they would, sometimes that they would not. When planning the new Labour Relations Act 66 of 1995, the Cheadle Commission decided that this process was too slow, too technical, too cumbersome and too expansive. So it recommended that, at least in the case of the most common disputes, the issues should be decided quickly, informally and finally by arbitration. Unless the parties agree to private arbitration under the Arbitration Act, 42 of 1956, the Commission for Conciliation, Mediation & Arbitration (CCMA) would supply the arbitrators, who would exercise their powers, not under agreed terms of reference, but under the LRA itself. Like private arbitrators, those of the CCMA are also meant to dispose of matters with a minimum of legal formalities (see section 138(1) of the LRA). But the drafters of the LRA did not mean to insulate arbitration awards entirely from the watchful eye of the Labour Court. They therefore specifically provided for review of CCMA arbitrations awards in section 145, but they also gave general powers of review in section 158(1)(g) respectively of the LRA. As if the jurisdictional puzzle created by the LRA was not complex enough, the legislature added the Promotion of Justice Act 3 of 2000. It is an attempt to give expression to the constitutional right of fair labour practices and the constitutional standard of lawfulness and rationality. If section 145 limits the grounds on which commissioners’ actions can be reviewed, or if that section cannot be interpreted to reconcile it with the PAJA, it may well be that section 145 cannot pass constitutional muster - unless that section constitutes a limitation compliant with section 36 of the Constitution. That would be for the Constitutional court to decide.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nmmu/vital:10232 |
| Date | January 2007 |
| Creators | Sauls, Paul Anthony |
| Publisher | Nelson Mandela Metropolitan University, Faculty of Law |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis, Masters, LLM |
| Format | iv, 69 leaves ; 30 cm, pdf |
| Rights | Nelson Mandela Metropolitan University |
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