Resolving disputes under new labour legislation

This is Part Four of ‘Resolving disputes under new labour legislation’

Section 93 (5) of the Labour Act, as amended, provides that, after a labour officer has issued a certificate of no settlement, he or she, upon consulting his or her senior:

(a) shall refer the dispute to compulsory arbitration if the dispute is a dispute of interest and the parties are engaged in an essential service; or

(b) may, with the agreement of the parties, refer the dispute or unfair labour practice to voluntary arbitration; or

(c) may refer the dispute or unfair labour practice to compulsory arbitration if the dispute or unfair labour practice is a dispute of right.

There are two types of arbitration which stand out in terms of Section 93(5) that warrant some bit of discussion:

Compulsory arbitration

Voluntary arbitration

There is a difference between these two concepts.

Voluntary arbitration

Voluntary arbitration refers to a process where parties involved in a dispute agree to submit their case to an arbitrator or a panel of arbitrators. It is a consensual method of resolving conflicts outside of the court system.

The parties voluntarily choose arbitration as an alternative to litigation and agree to be bound by the decision of the arbitrator(s).

The decision reached through voluntary arbitration is typically legally binding and enforceable.

Compulsory arbitration

Compulsory arbitration, on the other hand, is a form of mediation that is mandated or required by law. The Labour Act, as amended, specifies the types of disputes that may be subject to compulsory arbitration.

This means the parties are obligated to resolve their dispute through arbitration. The decision reached through compulsory arbitration is also usually legally binding and enforceable.

The key distinction between voluntary arbitration and compulsory arbitration lies in the element of choice.

Voluntary arbitration is entered into willingly by the parties, while compulsory arbitration is imposed upon them by law or contractual obligations.

Where the parties in a dispute of interest are engaged in an essential service, the labour officer must refer the case for compulsory arbitration.

The wording used in the section  — “shall” — is peremptory.

Where the parties in a dispute of interest are not engaged in an essential service, the labour officer may refer the dispute for voluntary arbitration with the agreement of the parties.

Section 93(5)(c) of the Labour Act brings back arbitration as a dispute resolution mechanism.

Provisions of section 98 shall apply to such reference to compulsory arbitration.

The position of the law must be known. Section 98 does not apply to voluntary arbitration. It only applies to compulsory arbitration.

There is no scope for appeal against a decision for a voluntary arbitral award.

Neither the Labour Act (Cap. 20:28) nor the Arbitration Act (Cap. 7:15) has any provision granting a litigant in voluntary arbitration the right of appeal against an arbitral award granted in the proceedings.

Both statutes do not provide for the remedy of an application for review of such an arbitral award by the Labour Court. The jurisdiction of the Labour Court is governed in terms of Section 89 of the Labour Act. That is where the court’s powers are derived.

The question for determination, therefore, is whether Section 89 provides for the hearing of an appeal from a voluntary arbitration award.

The words, in terms of this Act or any other enactment, limit the powers of the exercise of the functions of hearing and determining the grounds raised in an application and appeal made or noted in the exercise of a right given under the law or any other piece of legislation.

There should be a provision in the Act or any other enactment giving the party the right to make the application or note the appeal to the Labour Court before it can exercise the power to hear and determine the matter as an application or appeal.

The Labour Court has the power to hear and determine an appeal from a compulsory arbitration award because the appeal would have been noted in accordance with the right of appeal given by Section 98(10) of the Act.

The Labour Court would be exercising the power of hearing and determining an appeal validly placed before it in the exercise of a right of appeal given by the Act.

A right to appeal is a statutory right that must be created by the statute by which a court is established or by any other enactment.

An application or appeal to a court or tribunal is a remedy that exists because
there is a statutory right to use it to seek relief.

For the court to exercise the right to review a decision of the arbitrator, as provided by Section 89(1) (d)(1), there has to be a valid application for review in terms of the Act or any other enactment as provided by Section 89(1).

The fact that Section 98(10) of the Act gives a limited right to appeal on a question of law underscores the fact that a right of appeal is a statutory creation and its ambit will depend on the terms of the statute creating it.

If the words in terms of this Act, as used in Section 89(1)(a) of the law, did not mean an appeal noted in the exercise of a right of appeal under the provisions of the Act , Section 98(10) would have no bearing on the question of  the validity of the exercise of the power to hear and determine an appeal from a decision of an arbitrator in compulsory arbitration proceedings.

The provisions of Section 98(10) become relevant in the determination of the question of the validity of the hearing and determination of the appeal because, in terms of the provision, there is no right of appeal against a decision of an arbitrator in compulsory arbitration proceedings on a question of fact.

 

LEGAL DISCLAIMER: The material contained in this article is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the article. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

 

Arthur Marara is a practising attorney, author, human capital trainer, business speaker, thought leader, law lecturer, consultant, coach and legal proctor (UZ). He is also a notary public and conveyancer. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]