Challenging A Compliance Order - Employee Rights/ Labour Relations - Employment and HR

Challenging A Compliance Order

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The Consolidated Employers’ Organisation is a prominent South African membership-based employers’ association that assists businesses to navigate labour disputes and collective bargaining at the Commission for Conciliation, Mediation and Arbitration (CCMA) and various Bargaining Councils on a national scale - through direct representation, professional support, proactive engagement and training mechanisms.

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This article focuses only on the second option, challenging or opposing the compliance order. When one looks at a compliance order received from the Department of Employment and Labour...

South Africa Employment and HR

When an employer receives a compliance order, they essentially have two options:

The employer can comply with the compliance order or;
The employer can challenge or oppose the compliance order.

This article focuses only on the second option, challenging or opposing the compliance order. When one looks at a compliance order received from the Department of Employment and Labour, the employer essentially has fourteen (14) days to comply with the order, failing which, the Labour Inspector will refer the compliance order to the CCMA to be made an Arbitration Award. Suppose the employer wishes to object to the compliance order being made an Arbitration Award. In that case, the employer must serve and file a notice of objection in terms of CCMA Rule 31B(4) through a formal written affidavit within five (5) days of receipt of the application from the Labour Inspector.

Section 69(5) states that:

The employee must comply with the compliance order within the specific time stated in the order unless the employer disagrees with it and refers a dispute concerning the compliance order to the CCMA within the given time period.

An employer who shows good cause for disputing a compliance order may object to the whole or part of the compliance order in terms of Section 69(5). This objection must be filed through a referral in terms of Section 69(5) within fourteen (14) days of receipt of the compliance order, explaining the reasons why the employer is challenging the order.

Once a compliance dispute is referred to the CCMA, the matter will be formally set down for unobjected Con/Arb proceedings. The Department of Employment and Labour and the employer must appear at the CCMA to resolve the dispute through Conciliation. Failing that, they will prove their cases through argument at Arbitration, and the Commissioner will subsequently issue an Arbitration Award.

However, during the fourteen (14) day period within which the employer must comply, an employer can still attempt to resolve the compliance order directly with the Labour Inspector or Agent. If the matter remains unresolved after these discussions, the employer can then choose to refer it to the CCMA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.