The Labour Relations Act, 66 of 1995 (hereafter referred to as the "LRA"), is built on the spirit of conciliation and resolving labour disputes in a speedily and cost-effective manner. Accordingly, it has always been the tendency of the CCMA Commissioners to encourage the parties to the dispute to reach settlement agreements.

By both parties entering into the settlement agreement, the settlement agreement is the full and final settlement of the disputes between the parties. Often, the settlement agreements are for the benefit of employers and employees. However, that does not imply that employers will always comply with settlement agreements.

CCMA settlement agreements, as with other settlement agreement, stipulate the date and obligations that a party to the settlement has to comply with. The big question is, what happens when the employer does not comply with the settlement agreement?

Making settlement agreement arbitration award

In terms of Section 142A(1) of the LRA, a Commissioner by agreement or on application by a party may make any settlement agreement regarding any dispute that has been referred to the Commission, an arbitration award. In respect of cases where the Applicant applies for the settlement agreement as a result of the employer's non-payment or non-compliance or partial compliance with the settlement agreement, the employee has to make an application in terms of Section 142A of the LRA.

This is as a result of failure or refusal by the Respondent to comply with obligations as per the settlement agreement to which they have entered under the auspices of the CCMA. Both parties enter into such an agreement willfully and there is an underlying principle that settlement agreements are meant to be complied with.

The Application in terms of Sections 142A of the LRA

This Application consists of a Notice of Application and affidavit by the employee (Applicant). The Notice of Application is similar to a Notice of Motion. It contains a prayer requesting the Commission to make the settlement agreement entered between the parties to be made an arbitration award in terms of Section 142A. Furthermore, the notice sets out the prescribed fourteen-day (14) period wherein the Respondent is provided with to file its/their answering affidavit if the Respondent wishes to oppose the Application.

Failure for the Respondent to file its answering affidavit opposing the settlement agreement being made an arbitration award, the matter or Application will be heard or decided on papers in the Respondent's absence.

The affidavit contains the background of the dispute and will provide reasons why the Application is being made. It is the side of the Applicant. The background to the dispute will comprise of the following:

• The date when the settlement was concluded and the settlement agreement will be annexed to the Application and marked "A".
• Since the dispute is unresolved, the party to the dispute has the right to refer to arbitration.
• The date of referring the matter for conciliation and under which case number.
• State that the parties have not agreed the settlement agreement be made an arbitration award; and
• Lastly, the reason for the Application (e.g failure or refusal by the employer to comply with its obligation in terms of settlement agreement).

Once the affidavit has been commissioned, the Applicant has to serve the Application and the attached settlement agreement on the Respondent and thereafter file the Application with the CCMA with proof of service on the Respondent. Then, within fourteen (14) days, the Commissioner will issue the Arbitration Award to both the Applicant and the Respondent.

Enforcement of an Arbitration Award

after receipt of the Arbitration Award, the next step is to have the arbitration award certified. The certification will result in the arbitration award being made a warrant that the Sheriff of the court can enforce.

In terms of section 143(3) of the LRA, the Applicant may apply for the Arbitration award to be certified by the CCMA. However, the Applicant will have to complete and commission the Application to certify CCMA Award and serve it on the CCMA. This form is available on the CCMA website and is called the LRA Form 7.18.

The Applicant will have to serve the 7.18 form accompanied by the Arbitration award and the proof of email from the CCMA as proof of issuing the Arbitration Award to both parties.

After fourteen (14) days, the CCMA will issue an Enforcement of Award instructing the Sheriff to execute the Respondent's movable goods at the Respondent's premises and, after realise the movable goods by public auction for the sum stipulated on the settlement agreement plus interest.

The CCMA may only enforce payment of an amount of money as per the arbitration award or settlement agreement against the Respondent. Suppose the employer fails or refuses to comply with an obligation in terms of the settlement agreement or Arbitration Award other than the payment of money. In that case, the employer will be contempt of the arbitration award. Therefore, the Applicant may enforce compliance by way of contempt proceeding in the Labour Court as per Section 143(4) of the LRA.

Conclusion

Unless reviewed, arbitrations awards are final and binding. They may be enforced as if they were an order of the Labour Court in terms Section 143(1) of the LRA. Failure or refusal to comply with such would result in Applicant applying to have the Arbitration Award being enforceable by the Sheriff in terms of payment of an amount of money or the institution of contempt proceedings if there is a failure to comply with performance of an act or both.

The certification of an arbitration award is a valuable and essential mechanism for securing compliance with Arbitration Awards. This a short route which enables parties prejudiced by non-compliance with payment of an amount to have recourse which is cost effective and speedily instead of approaching the Labour Court which may take months to provide the appropriate recourse or compliance.

Written by Petrus Khumalo, Attorney, SchoemanLaw Inc.