Settlement of Labour Disputes(Conciliation, mediation,

arbitration and labour Courts)

PUMULANI MUSAGWIZA

ZIMBABWE

pumulanim@gmail.com

03 February 2017

Intro’d

• In the Republic of Zimbabwe labour disputes settlement machinery is mainly composed of conciliation, mediation and arbitration

• The tenets of its legislative provisions and its administrative structure are most derived from regional and international labour standards

• Zimbabwe has managed to ring-fence the dispute settlement system to promote equity and social justice were parties can be allowed to be self actors

Legal framework

• Zimbabwe has also created a specialised court for labour matters

• Hence promoting and securing the just, effective and expeditious resolution of disputes and fair labour practices

• Zimbabwe labour disputes are classified into two main groups: • Dispute of right, defined, ITCILO Guidelines,(2013 p. 18) a disagreement on

the violation of existing entitlement that are embodied in the law or contract of employment

• Dispute of interest, defined as disagreement which concerns future rights and obligations under the employment contract

• Usually both types of disputes can also be for either individual or collective, ITCILO Guidelines, (2013).

Legal framework cont’d

• The labour court is not a court of first instance

• Deals with appeals, reviews and applications and has inherent jurisdiction over all labour matters

• It should be noted that after the amendment Act Number 5 of 2015, the labour court powers were diluted and its status down graded by virtue of it confirming draft rulings by the conciliators, (Labour officers and Designated agents).

Legal framework cont’d

• The labour court can either vary or confirm or set aside the draft ruling submitted by either conciliator or designated agent.

• Legislation also provide for the conciliator to adjudicate over a labour dispute and could be done by a labour officer appointed by government or designated agent from the National Employment Council who has delegated powers to allow for expeditious resolution of disputes at sectorial level

• The conciliator is obliged to make a ruling if the dispute is a dispute of right.

Legal framework cont’d

• In terms of the new amendment failure by the parties to reach a consensus at conciliation level, the conciliator shall refer a matter to compulsory arbitration where the dispute is a dispute of interest and parties are engaged in an essential service.

• The conciliator may with the agreement of parties refer the matter to voluntary arbitration if the dispute is a dispute of interest,

• Conciliators no longer make mere referrals but they can now hear the matter and make a ruling upon finding on a balance of probabilities.

• Conciliator as soon as practicable will make an application to the labour court for the ruling to be confirmed with or without amendment.

Legal framework cont’d

• The ruling by the conciliator on its own is not binding because it is a mere draft ruling which needs to be confirmed with or without amendment by the labour court.

• Checklist is done by the Registrar of the Labour Court. The checklist is particularly on the affidavit which is the basis on which the draft order was made, it must be signed and commissioned by the commissioner of oath.

• The conciliator also include draft ruling which he/she wants the Labour court to confirm, draft order , proof of payment to the deputy sheriff’s costs for the services of notices and proof of services of the application on the person against whom the ruling and order is made

Legal framework cont’d

• The employment council designated agent in terms section 93 of the Amendment No. 5 is now protagonist, mediator, adjudicator, litigant which is illegal

• The retrenchment process no longer questioned by the adjudicating authority, as long the employer can settle to pay the minimum set package which is 2weeks for every year worked

• The legislation needs to address these gaps in terms of retrenchment procedures as the employer imposes minimum package without negotiating

Legal framework cont’d

• The principles of natural justices breeched

• Purpose rule, literal rule, golden rule in interpretations of the legislation i.e 12 (4A) compensating employees dismissed by the code is now subject to abuse

Arbitration

• the parties gives their various submissions to the arbitrators in whatever form has been agreed and the arbitrator provides a solution that will be binding on both parties

• The arbitrator will make an award which the parties have previously agree will bind them with either right to appeal or not depending on whether it is a compulsory arbitration or voluntary arbitration.

• The five main phases of a typical arbitration process are Introduction, opening statements/narrowing of issues, evidence, arguments and then the award.

Challenges faced in the Labour Dispute Settlement system• In terms of the new amendment the conciliator becomes an

adjudicator at the end.

• The conciliator administrate the process to the labour court.

• It is again the conciliator who stand before the labour court judge as an applicant, therefore the whole system is done in an unsatisfactory manner.

• Labour Amendment Act No. 5 poses serious bottlenecks to the dispute settlement system to the extent that labour cases are piling up without resolution

Challenges faced in the Labour Dispute Settlement system and solutions• For an efficient, easy and improved dispute settlement system the

following amendments to the labour Act are proposed; • To repeal section 16 of the Labour Amendment Act No. 5 which created the

new dispute settlement system and revert back to the old dispute resolution system.

• To review section 93 of the Labour Act to cover the following; Powers, roles and jurisdiction of the court

• Registration of Settlements, it should be proposed that settlements should be registrable and enforceable by the Labour Court.

Challenges faced in the Labour Dispute Settlement system and Recommendations• To amend section 98 of the Labour Act 28:01 to cover matters related

to arbitration as follows; I) powers of arbitrators ii) Defined time frame to conclude the process iii) Representation of parties at arbitration

• To review section 89 and 98 of the Labour Act to strengthen the Powers of the Labour Court.

• Amendments to these sections will include; Functions, powers and jurisdiction of the Labour Court to give the Labour Court jurisdiction over all labour matters, Enforcements of decisions by the LabourCourt.

Strength of the system

• Labour officers and DA are neutral

• Conciliation is done before arbitration which there is room to educate social partners and record of proceedings

• Fair hearing at no cost and no need for representation during conciliation and labour court proceedings

• Right to administrative justices section 68 of the constitution as read with 63 and 93 of the labour Act 28:01

Strength of the system

• NECs are sector specific which allows for expeditious, timeous resolution of the disputes

• The system has streamlined disputes as some go direct to the labouroffice and others to the DA or retrenchment board or NEC retrenchment committee whilst appeals on dismissal goes straight to the labour court

• The system does increase transparency, accountability