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Labour Column Davies Ndumiso Sibanda
THE government and National Employment Councils (NECs) run the risk of paying huge amounts of money over lost labour cases at the Labour Court and beyond as labour officers and designated agents of NECs descend into the dispute resolution arena.

The new provisions of section 93 subsection 5 of the Labour Act, which empower labour officers and designated agents of NECs to file applications at the Labour Court on behalf of one of the parties in a dispute thus descending into the arena, clearly has a potential of leaving the government and NECs with a financial cost where the labour officer or designated agent loses the case at the Labour Court or where one of the parties approaches the High Court and costs are ordered.

Parties can also sue the labour officer or designated agents where they feel the labour officer acted on their behalf without authority to their disadvantage.

In my previous articles, I have highlighted the absurdity of having the labour officer or NEC designated agents making applications to the Labour Court on behalf of one of the parties.

Taking this argument further, the first legal hurdle for the labour officer and designated agent is that Labour Court rules have no provision for admitting cases presented by labour officers and designated agents on behalf of parties unless they follow provisions of rule 14.

Rule 14 of Statutory Instrument 59 of 2006 is express on how matters arrive at the Labour Court and in my reading of the law, the labour officer or designated agent cannot legally have an audience before the Labour Court unless rules and related forms are altered by the Labour Court itself or unless they apply in terms of rule 14.

Assuming that the labour officer or designated agent will make an application to the Labour Court in terms of rule 14, the effect of that will be to make the labour officer or designated agent the applicants thus descending into the arena and the employers or workers will be the respondent depending on the case.

The stage will then be set for a trial as guided by the rules of the Labour Court. The labour officer or designated agent would have to do all legal documentation as per Labour Court rules and present arguments in support of their applications and the other party would oppose and thereafter await a judgement.

If the judgment orders costs, definitely the NECs and Ministry of Labour would have to pay if cases are lost as the employer or worker who was not part of the litigence cannot be dragged into the case.

The Ministry of Labour, it is rumoured, has introduced some forums to be used in the process such forms are not legal for use as long as they are outside the provisions of the Labour Court rules, which require that any amendment to the forms used for Labour Court purposes must be crafted or mended by the Labour Court itself.

With these challenges, it is clear that the best way out for NECs and Ministry of Labour is to sit with the original provisions of subsection 5 as the new amendment carries with it lack of clarity and presents the legal implementation challenges, which defeat the intention and the spirit of the legislation and can easily leave government and NECs with unbudgeted for costs.

For NECs designated agents, my view is that the new subsection 5 of section 93 of the Labour Act should be a no go area as the NEC could find itself losing members’ monies, a thing that could cripple the NEC.

Parties should stick to the original section 93(5), which is still valid law until amended by another Act or struck down by a court of Law.

In conclusion, the crafting of section 93 clearly demonstrates the need for wider consultation before enactment of legislation so as to avoid unintended consequences such as the one being discussed in this article.

• Davies Ndumiso Sibanda can be contacted on: email: [email protected] <mailto:[email protected]> Or cell No: 0772 375 235