Labour Relations Act
	Basic Conditions of Employment Draft Bill
	Employment Standards Statute Green Paper
	Council for Conciliation Mediation and Arbitration
	National Productivity Institute
	Nedlac
	Department of Labour
	Ministry of Labour
	SA Labour Bulletin

	Get your act together before you hire and fire
	Employers Must Study the Fine Print
	Mboweni's new labour Bill could bust the Budget
	Mboweni's 'skills revolution' binds business and labour
	Tito's good intentions tripped up by bureaucratic notions
	You can't afford to be casual about your part-time helper
	Contracts for domestic employees
	Wrapping up that package is an art
	Sheltered jobs giving way to contract work at all levels
	Time to deal with the reality of AIDS
	Trust the way to avoid strikes
	Labour's new, 'friendly' face fails to inspire instant rapport
	Troubled birth predicted for new labour dispensation

THIS week, Labour Guides discusses aspects of the CCMA hearing process with Chris Mbileni, who heads up Afroscene Management Consulting and is a part-time commissioner with the CCMA. He comments on his experiences and observations of why parties attending a conciliation hearing often fail to reach a negotiated agreement. He notes the following critical points with concern:

The Commissioner's introduction: The Commissioner’s introduction is critical in setting the stage for conciliating or mediating labour disputes. The commissioner has a duty to explain to the disputants or parties his/her responsibility as a commissioner; the process that will be followed and some guidelines that will assist the process to move smoothly.

Disputes evoke emotions. Parties get embroiled in arguments and deviate from the issues in dispute. Often parties like to dwell on the issues that caused the dispute and blame each other. The guidelines or standards will help parties to be focussed, to remain cool, listen attentively and show respect to one another, as well as to the facilitator or commissioner.

Parties’ Perceptions of Commissioners:
Many parties have certain perceptions about the commissioner who is conciliating the dispute. In many instances, parties perceive commissioners as ill-trained , poorly qualified and lack experience to deal with issues in an effective and efficient way.

Parties think the issues in dispute are so complex, inextricable and cannot be handled by commissioners and therefore require the intervention of a senior commissioner. The perception is so intense particularly if the commissioner happens to be black. Parties simply forget that they have a duty to negotiate with the guidance and advice of the commissioner.

The commissioner will help analyse the issues, using the Act as a guiding document. Parties should be committed to finding a solution to their differences and not use the commissioner as a scapegoat. Parties need to shift their mind set and appreciate that things are never equal.

Principal and Agent Relationship:
I have noted with dismay how agents (people who represent or negotiate on behalf of others) protect their own interests rather than those of their principals (the absent party who delegated that responsibility). Sometimes, the representative does not consult or even ask for a caucus to advise or seek an opinion of the client or principal.

I have witnessed many imminent settlements being scuppered by such unscrupulous agents. I have seen many dismissed employees becoming victims of circumstances. Sometimes these employees are represented by some “fly by night” unions whose motive is to secure financial settlement in order to share 50/50 with the employee.

Managers have a perception that if they settle, then they are weak or their decisions will be seen as inappropriate. They also think the employees will ridicule them back in the workplace. Agents need to seek open mandates to negotiate those options on the table first without making commitments and then recommended reasonable and fair deals to their principals. In this way, many disputes will be resolved.

Devaluation of Expectations and Offers:
Parties coming to the CCMA for conciliation often fail to settle a dispute because the applicant (employee party) devalues the offer as put forward by the respondent (the employer party). In the same spirit, the respondent believes that the expected outcome (proposal) by the applicant is unreasonable, it is too high.

In order to circumvent this difficulty, I suggested that expectations must be reasonable to be considered by the respondent and offers must also be reasonable to attract a commitment by the applicant in order to settle. Parties must consider the cost and benefit of a settlement before they decide to reach a deadlock.