Representation during arbitration hearings : spotlight on members of bargaining councils

Abstract

South Africa does not stand alone in its quest to establish informal, expeditious and affordable labour tribunals. Furthermore, there is no ideal "one model fits all" policy on the international front in relation to the presence or absence of legal representation before labour tribunals to attain these goals. Great Britain has not implemented any limitations regarding the right to be legally represented during the arbitration of labour disputes. In contrast, Australia is an example of a country where steps have recently been implemented to restrict legal representation during the arbitration of labour disputes to reach these goals. South Africa implemented limitations pertaining to legal representation more than fifteen years ago. Despite the relatively long passage of time, it seems that the ideals pertaining to specialist labour dispute resolution institutions remain as relevant now as they were then. In 2009 the labour appeal court considered whether South Africa's limitations pertaining to legal representation conform to the provisions of the bill of rights (the Netherburn Engineering case). The court held that there are no problems regarding the limitation of legal representation during conduct and capacity arbitrations, while, at the same time, the CCMA is striving to perform its functions in a non-legalistic and informal fashion (2009 ILJ 269 (LAC) par 44). Even though arbitrations before the CCMA do not fall under the ambit of the Promotion of Administrative Justice Act (the Sidumo case), it is informative that this piece of legislation that gives expression to section 33 of the constitution (preamble to the Promotion of Administrative Justice Act) also provides administrators with the discretion to determine whether representatives should be permitted or not.