CCMA and Bargaining Council Representation
Referrals, Con-Arb and Arbitration in the Right Forum
Dismissed in Johannesburg, and the 30-day clock is already running. The first trap is the address on the referral form: where the employer falls within a bargaining council’s registered scope, the dispute belongs at the council, and a CCMA referral can be a nullity that burns the deadline. The second is con-arb, where settlement talks can become a full arbitration the same morning.
We draft and defend referrals for Johannesburg employers and employees in both forums, from the forum check through conciliation, con-arb and arbitration, from our Sandton office.
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Two Forums, One Set of Deadlines
The Labour Relations Act 66 of 1995 runs two dispute-resolution machines side by side. The CCMA serves workplaces that no council covers; bargaining councils and statutory councils, created under sections 27 to 30 of the Act, hold first-instance jurisdiction over dismissals in the sectors they regulate. The deadlines and the con-arb machinery are the same in both. What differs is where the referral must go.
A dismissal dispute moves through these stations:
- forum check: council or CCMA
- referral within 30 days of dismissal
- conciliation before a commissioner
- certificate of non-resolution
- con-arb or scheduled arbitration
- award, enforcement or review
Section 191 of the LRA sets the referral deadline: 30 days from dismissal, 90 days for an unfair labour practice. Where the employer is within a council’s registered scope, the referral goes to the council; otherwise it goes to the CCMA. Both then follow the same arc: confidential conciliation, a certificate of outcome if unresolved, then con-arb or arbitration. The award is final and binding, enforceable as an order of the Labour Court and reviewable only on limited grounds.
The forum error is the trap that catches unrepresented Johannesburg parties. A CCMA referral against a council-covered employer does not stop the 30-day clock: it is a nullity, and the deadline keeps running. The metal and engineering sector illustrates the point: those dismissals belong with the MEIBC, not the CCMA.
What a CCMA and Bargaining Council Lawyer Does
For employees: checking the forum before anything else, drafting the referral inside the deadline, preparing evidence and witnesses for con-arb, and arguing reinstatement or compensation at arbitration. Where the deadline has passed or the referral went to the wrong forum, preparing the condonation application with a proper explanation and prospects of success.
For employers: confirming whether a council covers the workplace, responding timeously in the right forum, building the procedural and substantive fairness record, settling at conciliation where the numbers favour it, and defending the matter at arbitration – or applying to review an irregular award.
The forum follows the employer’s sector, not the employee’s preference. The wrong referral does not pause the 30 days.
The Referral Process, Step by Step
The pathway, stage by stage, in either forum.
Check the forum first
The employer’s sector decides the address: bargaining council where one covers the workplace, CCMA where none does. This check comes before any form is signed.
Refer within 30 days
The referral is completed, signed, served on the employer and filed with the council or the CCMA – 30 days from dismissal, 90 for an unfair labour practice.
Conciliation
A commissioner or council panellist shuttles between the parties. Everything said is confidential and without prejudice, and most disputes end here.
Con-arb or arbitration request
Councils proceed to con-arb unless a party objects in time; in the CCMA, misconduct and incapacity dismissals roll into con-arb automatically.
Arbitration hearing
Evidence under oath, witnesses cross-examined, closing arguments. The arbitrator applies the LRA and Schedule 8 to what actually happened.
Award, enforcement or review
The award follows within 14 days of the hearing. Non-compliance is certified and enforced in the Labour Court; irregular awards are reviewable within six weeks.
CCMA vs Bargaining Council
The CCMA Route
The default forum where no bargaining council covers the employer. The referral is lodged on form 7.11 with the CCMA, which sets the matter down for conciliation before a commissioner.
Unresolved misconduct and incapacity dismissals proceed to con-arb the same day; other disputes are set down for arbitration on request. Filing carries no tariff for employees.
The Bargaining Council Route
Where the employer falls within a council’s registered scope, the council has first-instance jurisdiction. The referral goes to the council’s own dispute-resolution machinery, such as the MEIBC process for metals and engineering.
Councils run conciliation and con-arb on similar lines, usually proceeding to arbitration unless a party objects in time. Councils also administer the sector’s wage agreements, agency-shop arrangements and picketing rules.
| Feature | CCMA | Bargaining Council |
|---|---|---|
| Who it covers | Employers outside any council’s registered scope | Employers in the sector, including non-parties where agreements are extended |
| Referral deadline | 30 days for dismissals, 90 for unfair labour practices | Identical: 30 days for dismissals, 90 for unfair labour practices |
| Default process | Conciliation, then con-arb for most dismissals | Council conciliation, then con-arb unless a party objects in time |
| Johannesburg venue | CCMA Johannesburg, Gauteng Provincial Office | The council’s own dispute-resolution offices |
| Beyond disputes | Resolves disputes only | Also administers sector agreements, agency shop and picketing rules |
Which Forums Serve Johannesburg Labour Matters
Johannesburg workplace disputes move through two parallel machines:
- CCMA Johannesburg, Gauteng Provincial Office – conciliation and arbitration where no council covers the workplace – 30-day referral deadline.
- Sector bargaining councils – first-instance dispute resolution for covered sectors, the MEIBC for metals and engineering among them.
- Labour Court, Johannesburg – reviews of CCMA and council awards, urgent relief, and enforcement of awards.
Otrebski Attorneys serves Johannesburg employers and employees from its 5th Street, Sandhurst office in Sandton.
How to Choose Labour Representation in Johannesburg
Both forums run on timelines. Choose on process discipline.
- Checks the forum before drafting.Ask which forum the dispute belongs in and why. A firm that files first and checks later spends your 30 days finding out.
- Experience in both forums.Council constitutions, panellists and objection rules differ from CCMA practice; the two are a related craft, not the same one.
- Acts for both sides.A lawyer who defends referrals knows where employee cases fail, and drafts employee cases that do not.
- Honest prospects talk.No ethical lawyer guarantees an award. They can tell you whether the dismissal was fair on both tests and what it is worth.
- Written scope and fees.Each phase – referral, conciliation, arbitration – scoped and quoted in writing.
What CCMA and Bargaining Council Matters Cost
As a market guide, an employee’s unfair dismissal referral through conciliation commonly runs R10,000–R25,000; contested arbitration from R25,000–R60,000 depending on witnesses and days, on hourly rates of R1,500–R4,400. CCMA filing carries no tariff for employees; some councils levy administrative charges, which should appear in the written quote. Employer defences are priced on the same scale.
Otrebski Attorneys scopes each phase in writing before it begins. Ask for the quote in writing – and treat any firm that will not give one with caution. No hidden costs.
CCMA or Bargaining Council? Quick Routing
Where the Referral Goes
| If This Is Your Position | Then the Referral Goes Here |
|---|---|
| The employer falls within a bargaining council’s registered scope | To the council, such as the MEIBC for metals and engineering. The deadlines and the con-arb machinery are the same as the CCMA’s; only the address differs. |
| No council covers the workplace | To the CCMA on form 7.11, which sets the matter down for conciliation before a commissioner. |
| A CCMA referral was filed against a council-covered employer | It is a nullity that does not stop the 30-day clock. Re-refer to the council urgently, or prepare a condonation application if the window has closed. |
| The award, from either forum, is irregular | The remedy is review in the Labour Court within six weeks; otherwise the award is final, binding and enforceable as an order of court. |
Common Mistakes to Avoid
The expensive mistakes are avoidable.
Frequently Asked Questions
How do I know whether to refer my dismissal to the CCMA or a bargaining council?
The employer’s sector decides. If the employer falls within the registered scope of a bargaining council, the dispute must be referred to that council; only workplaces outside council coverage go to the CCMA. A lawyer can confirm coverage from the council’s scope and extension notices before any form is filed.
How many days do I have to refer a dismissal?
Thirty days from the date of dismissal, under section 191 of the Labour Relations Act 66 of 1995, whether the referral goes to the CCMA or a council. Unfair labour practice disputes carry 90 days. After expiry you need condonation on good cause shown.
What is con-arb?
A combined process where conciliation and arbitration happen on the same day. If conciliation fails, the matter proceeds directly to arbitration. It is standard for misconduct and incapacity dismissals, which is why preparation for both is essential.
Can a lawyer represent me at the hearing?
In the CCMA, legal representation at arbitration requires a legally complex dispute, or agreement of the parties, or the commissioner’s direction. Bargaining councils set their own rules in their constitutions, often along similar lines. Prepare with a lawyer even where they cannot appear.
What can an arbitrator award for unfair dismissal?
Reinstatement, re-employment, or compensation of up to 12 months’ remuneration for ordinary unfair dismissal and up to 24 months for an automatically unfair dismissal, in both the CCMA and the councils. The arbitrator weighs what is just and equitable, not what either party demands.
I referred to the CCMA, but my employer is covered by a bargaining council. Is my case over?
Not necessarily, but the clock has not stopped. The CCMA referral is a nullity and the 30 days keep running, so the dispute must be re-referred to the correct council urgently. If that window has closed, a condonation application explaining the error and the prospects of success is required.
I missed the 30 days. Is my case over?
Not necessarily. Condonation can be granted where the delay is short, the explanation is reasonable and the prospects of success are set out. The longer the delay and the weaker the merits, the grimmer the outcome.
Can a bargaining council award be enforced like a CCMA award?
Yes. A council arbitration award is as binding as a CCMA award: it is certified on non-compliance and enforced as an order of the Labour Court, and it is reviewable on the same limited grounds.
Thirty days. Two forums. One referral. Get it right the first time.
Otrebski Attorneys practises from Office 9th Floor, The Spaces, 5th Street, Sandhurst, Sandton – with transparent billing and no hidden costs.
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