Shawn Christiansen
Senior Commissioner CCMA
Job creation vs job haemorrhaging: Saving
businesses and jobs through creative and integrated
approaches during s189A facilitations - an analysis
of the role of the CCMA and related case law
Overview of Presentation
Key Features of the Statutory
Provisions
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The 2002 LRA Amendments;
S189, s189A and the Facilitation Regulations;
Thresholds, Time Frames and Process Practicalities;
s189A Facilitation is held over a period of 60 days;
60 days commence from date of issuing s189(3);
Minimum of 4 facilitation meetings unless agreement
reached prior to 4th meeting or alternatively the
parties agree to further meetings and such is
approved by the Director of the CCMA.
S189 and s189A Referral Trends and
Analysis
S189 and s189A Referral Trends and
Analysis
2013/14 Job Saving Analysis
 45% of jobs likely to be affected by retrenchment in
2013/14 have been saved.
The ‘ticking of the boxes’ approach
 S189(2) a,b and c versus S189(3) a to j;
 Very little if any scope to manoeuvre;
 Key considerations purely to meet minimum
requirements of the statutory provisions;
 Approach not unique to either party;
 Settlement agreements are informed by
narrow interests.
The CCMA Holistic Approach and
Employment Security Unit
 The Triple Crises;
 The 2008 Global Economic Crises;
 The Holistic Approach;
 Employment Security Unit.
S189 (2) a, b and c: The Subject of
Consultation
Appropriate measures to avoid
dismissals,
minimise dismissals
change timing of dismissals and
mitigate adverse effects of dismissals
Method for selecting employees to be
dismissed
Severance Pay for dismissed employees
Applying the Holistic Approach
IDENTIFY THE
PROBLEM /
RATIONALE
IDENTIFY
CAUSES
GENERATE
ALTERNATIVES
PARTNERSHIP
INPUT &
ASSISTANCE
where
appropriate
REVIEW
IMPLEMENT
EVALUATE
ALTERNATIVES
Partnerships
BUSINESS RECOVERY &
ALTERNATIVES TO RETRENCHMENT
SUPPORT & SURVIVAL
MECHANISMS FOR RETRENCHEES
 Department of Trade and Industry
 Unemployment Insurance Fund
 Department of Economic Development
 DoL Public Employment Services
 Industrial Development Corporation
 The National Credit Regulator
 International Trade Administration
 Sector Education and Training
Commission
Authorities
 Productivity SA
 National Youth Development Agency
 Business Rescue
 SA Chamber of Business
The Financial Impact of the CCMA’s
Strategy on the South African Economy
 Professor Haroon Bhorat of the UCT School of Economics
Study 2011/12 and 2012/13;
 In both fiscal years, about 1 900 jobs were saved (1 893 in
2011/2012 and 1915 in 2012/2013) during S189 processes;
 In 2011/2012 and 2012/2013 a phenomenal 17 594 and 27 150 jobs
were saved respectively;
 It was found that the financial impact due to S189A
interventions within the CCMA constitutes 3, 982 billion Rands
and 6, 520 billion Rands in 2011/2012 and 2012/2013 respectively
towards the economy;
The Financial Impact of the CCMA’s
Strategy on the South African Economy
 Assessing the value of this financial contribution to the economy
of the CCMA:
 The CCMA’s total expenditure in 2011/2012 was R428 million whilst in
2012/2013 it stood at R508 million;
 The contribution of the CCMA to the economy is equal to 1 031
percent in 2011/2012 and 1 373 percent in 2012/2013;
 In essence, every one Rand spent by the CCMA in 2011/2012 in
preventing retrenchments, resulted in R10.24 contributed to the GDP
or national output;
 Simply put, the return on investment to society and the economy of
the CCMA can be directly measured as being somewhere in the order
of 1 000 percent.
Recent Case Law
 De Beers Group Services (Pty) Ltd v NUM [2011] 4 BLLR 319
(LAC)
 In retrenchments that fall under s189A but where no facilitator is
appointed, the employer must go through 30 days of
consultation (at the workplace);
 If no consensus reached, a dispute of interest automatically
exists and it must be referred to the CCMA for conciliation (ito
s64);
 Only once that has been done and a further 30 days have
elapsed, may an employer validly issue notices of termination;
 The LAC found that a notice of termination issued before that
was void and it reinstated the workers.
 National Union of Mineworkers v Anglo American Platinum LTD
& Others [2012] 12 BLLR 1252 (LC)
 The employer anticipated retrenching 14 000 employees;
 After interventions and meetings with Government and the Unions
the number was reduced to 6000 and the employer started
consulting in terms of section 189A;
 The Union challenged the procedural fairness on the basis that it
alleged the employer had not complied with section 52 (1) of the
Mineral Petroleum Resources and Development Act 28 of 2002 and
as such it did not participate when the question of selection criteria
and severance pay was raised;
 The Court held that section 52 does not replace the requirements
of section 189A and that if an employer raises selection criteria and
severance pay and the union refuses to discuss it, then that does
not render the dismissals unfair.
CCMA Case Studies
 Nature’s Choice
 cost of producing French fries had increased significantly;
 unable to compete with the costs of imported product;
 root cause of the problem is that potatoes from the ECC cost 30%
of those produced locally;
 Six consultation meetings were facilitated by the CCMA between 11
June and 10 August 2012;
 Involvement of Economic Development Department (EDD) and
International Trade Administration Commission (ITAC);
 application for protection submitted to ITAC, participation of
affected employees in the Training Layoff Scheme (TLS);
 no forced retrenchments and over 120 jobs were saved.
CCMA Case Studies
 SCAW Metals
 International group that manufactures a diverse range of steel
products at its principal operations in South Africa and South
America;
 s189A at the South African operations Wire Rope division;
 Trade Unions NUMSA, SAEWA, Solidarity and MEWUSA;
 trading at a loss and decision to withdraw from the flex market;
 Partnered with Economic Development Department (EDD), (dTI),
(ITAC) and Productivity South Africa (PSA);
 agreement concluded and no employee forcibly retrenched;
 Implementation of a 3 shift system; participation of 200 employees
in the Training Layoff Scheme (TLS);
 359 jobs saved, on-going company and unions interaction.
Author and Date
Author and Date