Retrenchments – When may parties apply for facilitation of the consultation process?
By Hannes de Kock
The purpose of section 189A of the Labour Relations Act (“LRA”) is to regulate large-scale
retrenchments. The section also determines the circumstances under which parties may apply
for facilitation of the consultation process.
First, it must be determined whether a large-scale retrenchment as contemplated in section
189A (1)(a), read in conjunction with section 189A (1)(b) of the LRA, is at stake after which
the Commission for Conciliation, Mediation and Arbitration (CCMA) must fulfil its role in terms
of section 189A (3) and (4) of the LRA.
In terms of section 189A (3) of the LRA the Commission must appoint a facilitator in terms of
any regulations issued in terms of subsection (6) to assist the parties engaged in the
(a) the employer requested facilitation in its notice issued in terms of section 189 (3);
(b) parties to the consultation representing the majority of the employees whom the
employer intends to retrench, have requested facilitation and have notified the
Commission within 15 days of the notice.
In terms of section 189A (4) of the LRA, the parties may further enter into an agreement to
appoint a facilitator in circumstances not regulated by subsection (3).
In Edcon v Steenkamp and Others (2015) 36 ILJ 1469 (LAC), the Labour Appeal Court ruled
that the facilitation of a consultation process is one of the most innovative additions to the LRA
as far as large-scale retrenchments are concerned. This assumption remained unchallenged
even when the matter went to the Constitutional Court.
The Edcon case confirms that parties are not under an obligation to apply for facilitation. Only
in such case where one of the parties applies for facilitation will this become a requirement.
Moreover, the parties may agree to appoint a facilitator from outside the Commission instead,
which may hold further benefits for the parties.