Labour court rules, 2017- what’snew?

The recently introduced Statutory Instrument 150 of 2017 ushered in the new Labour Court Rules, 2017, which rules replaced the old Labour Court Rules, 2006. The new rules introduced a wide range of procedural and substantive changes to our labour litigation. This piece will, therefore, seek to highlight some of the most important of these changes, whose introduction will significantly impact our practice of labour law.

1. Persons who may effect service of document
   The new rules introduced procedural changes as to who may effect the service of documents, more particularly notices of set down. Under Rule 8, the mandate to serve all notices of set down now exclusively vests in the Sheriff or his/her deputy, a position that did not exist in terms of the Old Rules.
2. Informality of proceedings
   The new rules altered the position relating to the informality proceedings. Under the new Rules, Rule 12(2) provides that: “The Court may, so far as appear to it appropriate, avoid formality in its proceedings…”, a position dissimilar to the old Rules, which provided that the Court “shall” as opposed to “may”. In effect, the new rules grant the Labour Court additional discretion in the avoidance of formality in its proceedings, as opposed to mandating it.
3. Applications
   The new rules introduced significant changes in respect to the type, manner and forms of Applications applicable in the Labour Court. Whereas, under the old rules, ‘Applications’ were narrowly defined, the new rules have broadened the scope of ‘Applications’ to include: Court Applications, Chamber Applications, Urgent Chamber Applications, Applications by the Minister in terms of section 120 of the Act, Applications for condonation of late noting of an appeal or review, and Applications for an order by a Labour Officer or Designated Agent in terms of section 93(5)(a), (5)(b) and (c) of the Act. The new rules have, further, gone on to provide procedural guidelines as to the prescribed forms, dies, and security for costs necessary in such applications in the Labour Court.
4. Record Preparation
   The new rules introduced procedural changes as to the preparation of records. Under the new Rules, Rule 21 has been introduced stipulating the requirement that it shall be the duty of the parties or litigants to prepare the record of proceedings by indexing, paginating and binding; a duty that did not exist under the Old Rules.
5. Cross-Appeals
   The new rules have made an important introduction through the specific provision for cross-appeals under Rule 19(4). Such cross-appeals were not explicitly provided for under the old Rules.
6. Adoption of incorrect form of application
   The new rules have introduced clarity in respect to the adoption of incorrect forms of applications. Under the new Rules, Rule 24 has been introduced which, simply put, provides that the adoption of an incorrect form of application shall not be a ground for dismissing an application, unless there is some prejudice that cannot be remedied.
7. Representation
   The new rules introduced guidelines in respect to the representation of parties before the Labour Court. Under Rule 25, a party may be represented by an official or employee of a registered trade union or employer’s organization. Further, a party may also be represented by a company official. Where one is represented by a trade union official, such representative must produce proof of their capacity to represent. Similarly, where a party is represented by a company official, such official must produce a company resolution or letter of appointment authorizing them to act.
8. Hearing of Applications
   The new rules have, under Rule 34, reversed the previous position allowing a legal practitioner representing a party to make a submission or cite an authority that was not outlined or set out in the heads of argument.
9. Referral in terms of Section 175(4) of the Constitution
   The new rules have, under Rule 44, introduced provision for the referral of matters, by a Judge, to the Constitutional Court mero motu in terms of Section 175(4) of the Constitution, a provision that did not exist in terms of the Old Rules.

In light of the above, it is evident that the new Labour Court Rules, 2017 have indeed introduced a wide range of procedural and substantive changes to our labour litigation. Though the present piece only highlights but a few of the changes, several others exist whose introduction and application, along the one’s expounded herein, will significantly impact our practice of labour law.