Facts

The employer issued a notice in terms of section 189(3) of the LRA, contemplating the retrenchment of approximately 454 employees. In the same notice, the employer requested the CCMA to appoint a facilitator in terms of section 189A(3) of the LRA.

At the first facilitation meeting, certain unions objected to one facilitation process covering all the employer’s affected operations. They argued that each operation was autonomous and constituted a separate workplace, and that each should therefore have its own separate consultation process. The employer disagreed and maintained that it was the employer of all affected employees, irrespective of the operation in which they worked.

The facilitator adjourned the meeting and later issued an outcome in which he made a Ruling that each affected operation had to be consulted separately. The Ruling was based on the definition of “workplace” in section 213 of the LRA. The National Union of Mineworkers (NUM) brought an application in terms of section 158(1)(g) of the LRA to review and set aside the facilitator’s ruling. It contended that the facilitator had exceeded his powers under section 189A of the LRA and the applicable Regulations for the Conduct of Facilitations (Facilitation Regulations).

Legal question

The central issue before the Labour Court was whether a facilitator appointed under section 189A(3) of the LRA has the power to make a binding ruling on the level at which retrenchment consultations must be conducted.

Applicable law

Section 189A(3) of the LRA allows the CCMA to appoint a facilitator in large-scale retrenchment consultations. Section 189A(6)(b) of the LRA empowers the Minister of Employment and Labour, after consulting National Economic Development and Labour Council and the CCMA, to make regulations relating to the powers and duties of facilitators.

Regulation 4(1) of the Facilitation Regulations provides that, unless the parties agree otherwise, a facilitator may chair meetings, decide issues of procedure for the efficient conduct of such facilitation meetings, and even direct the parties to consult without the facilitator being present. Regulation 4(2) provides that a facilitator’s decision on any matter concerning the procedure for the actual facilitation, including the date and time of meetings, is final and binding.

Application of law to the facts

The Labour Court held that the facilitation process under section 189A is intended to assist the parties to reach consensus. It is not designed to empower a facilitator to make binding rulings on substantive disputes that could arise during retrenchment consultations. The court drew a clear distinction between procedural directives and substantive determinations. A facilitator may regulate the conduct of facilitation meetings, and procedure to be adopted at such meetings. However, the power to decide procedural issues under Regulation 4(1)(b) does not extend to deciding the level at which section 189 consultations must take place.

The court found that the facilitator’s ruling was not merely procedural. By directing that each affected operation had to be consulted separately, the facilitator determined the structure of the consultation process itself. That was a substantive issue and, in the absence of agreement between the parties, fell outside the facilitator’s powers.

The court also held that the facilitator’s reliance on the definition of “workplace” in section 213 of the LRA was misplaced. That definition is relevant in the context of organisational rights and any workplace forums, but it does not determine the level at which retrenchment consultations must be conducted. The Labour Court accordingly reviewed and set aside the facilitator’s Ruling.

In the recent CCMA ruling in NUM and UASA v Richards Bay Minerals, a facilitator in a section 189A process declared the employer’s section 189(3) notice defective. It held that the CCMA lacked jurisdiction to facilitate the matter and directed the employer to reissue the notice. Properly understood through the lens of NUM v CCMA, the facilitator appears to have exceeded his powers. Whether a section 189(3) notice complies with the LRA is a substantive question, not a procedural issue. While a facilitator may regulate the process and, where empowered, deal with disputes about the disclosure of information, they may not make binding determinations on substantive aspects absent agreement between the parties. The Ruling therefore illustrates the precise risk identified in NUM v CCMA: a facilitator assuming an adjudicative role under the guise of facilitation.

Key Takeaways

The judgment confirms that CCMA facilitators appointed under section 189A of the LRA perform an important but limited role. Their function is to facilitate meaningful consultation, not to determine substantive disputes between the consulting parties which once made need to be set aside by the Labour Court.

A facilitator may make final and binding decisions on matters concerning the procedure for conducting facilitation under Regulations 4(1) and 4(2). However, absent agreement between the parties, a facilitator may not make binding rulings on substantive issues such as the level or structure of retrenchment consultations.

For employers, the judgment is a useful reminder that the duty to conduct a fair consultation process remains with the employer. For unions and employees, it confirms that concerns about the fairness or structure of consultation must be pursued through the appropriate remedies under the LRA, rather than through an overextension of the facilitator’s statutory powers.