Employees seeking relief at the CCMA will most certainly be relieved by the judgement of the Labour Appeal Court in the matter of the CCMA vs MBS TRANSPORT CC and Five Others [J1807/2015] / [JA94/2015] delivered on 28 June 2016. In this judgement the court confirms that an award issued by the CCMA may be directly presented to a sheriff for execution if payment is not made in terms thereof.
Prior to the above a party was required to approach the Labour Court to issue a writ in terms of a CCMA award. The CCMA was thus not regarded as competent to issue a writ in terms of such an award. These cumbersome enforcement provisions of the Act were often exploited by employers who simply refrained from making payment in terms of such awards until the writ was eventually issued.
Section 143(1) of the Act determines that an arbitration award issued by a commissioner is final and binding and it may be enforced as if it were an order of the Labour Court in respect of which a writ has been issued, unless it is an advisory arbitration award.
If a party fails to comply with an arbitration award that orders the performance of an act, other than the payment of an amount of money, any other party to the award may, without a further order, enforce it by way of contempt proceedings instituted in the Labour Court. (S143(4))
An arbitration award in terms of which a party is required to pay an amount of money must be treated for the purpose of enforcing or executing that award as if it were an order of the Magistrate’s Court. (S143(5))
The legislature considered the confusing nature of the Act and endeavoured to clarify the position with the enactment of the Labour Relations Amendment Act 2014 which came into effect on 1 January 2015. To provide even further clarity an explanatory memorandum was tabled with the Labour Relations Bill, 2012, in the following terms:
‘Amendments to this section are intended to further streamline the mechanisms for enforcing arbitration awards of the commission and to make these mechanisms more effective and accessible. Firstly, an award which has been certified by the Commission can be presented to the Deputy-Sheriff for execution if payment is not made. This removes the need for the current practice in terms of which parties have a writ issued by the Labour Court…’
The legislature’s intention to uplift the constraints for the issuing of writs was made abundantly clear with the various amendments to section 143. The procedure created by the amendments to section 143 makes it easier, inexpensive, effective and accessible for a person to enforce a certified arbitration award.
The practical effect of the amended sections 143(1) and 143(3) which the Court in the MBS matter confirmed, is that a certified arbitration award for the payment of an amount of money may be enforced without the need for a writ to be issued by any court or the CCMA.
Section 145(3) of the Act clearly provides that the Labour Court may stay the enforcement of an award pending its decision and this position was confirmed by the learned judge who was of the opinion that the section has no qualification or limitation. Therefore, the enforcement of a certified award by the CCMA may be stayed by the Labour Court pending its decision.
What does this mean for employers who intend to stay such a process pending an appeal of an award by the CCMA? Employers who dread an unfavourable award should immediately prepare their urgent application to stay execution steps in terms of section 145(3) of the Act as there may be less warning with the newly adopted condensed execution process.
Gerhard Truter is a director at Barnard Incorporated Attorneys in Centurion. RMI4law members enjoy the benefit of legal advice from an attorney 24 hours a day. If you wish to join RMI4law, call 0861 668 677.