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Davies Ndumiso Sibanda

Following the Labour Amendment Act No. 5 of 2015 becoming law, the dispute resolution mechanism can no-longer be completed in most cases and has left cases from the Labour Officers and Designated Agents parked outside the Labour Court.

The new provisions of section 93 subsection 5 have taken away powers of Labour Officers and Designated Agents to arbitrate and dispose of most disputes between employers and workers. The process now requires that matters be referred to the Labour Court for a decision to be confirmed as an order of the court, subsection 5 reads as follows “After a labour officer has issued a certificate of no settlement, the labour officer, upon consulting any labour officer who is senior to him or her and to whom he or she is responsible in the area in which he or she attempted to settle the dispute or unfair labour practice –

(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, and the provisions of section 98 shall apply to such reference to compulsory arbitration; or

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

(c) may if the dispute or unfair labour practice is a dispute of right;
make a ruling that, upon a finding on a balance of probabilities that-

(i) the employer or other person is guilty of an unfair labour practice; or

(ii) the dispute of right or unfair labour practice must be resolved against any employer or other person in a specific manner by an order-

A.    directing the employer or other party concerned to cease or rectify the infringement or threatened infringement, as the case may be, including the payment of moneys, where appropriate:

B.    for damages for any loss or prospective loss caused either directly or indirectly, as a result of the infringement or threatened infringement, as the case may be: whereupon the provisions of subsections (5a) and (5b) shall apply.

(5a) A labour officer who makes a ruling and order in terms of subsection

(5)(c) shall as soon as practicable-

(a) make an affidavit to that effect incorporating, referring to or annexing thereto any evidence upon which he or she makes the draft ruling and order; and

(b) lodge, on due notice to the employer or other person against whom the ruling and order is made (“the respondent”), an application to the Labour Court, together with the affidavit and a claim for the costs of the application (which shall not exceed such amount as may be prescribed), for an order directing the respondent by a certain day (the “restitution day”) not being earlier than thirty days from the date that the application is set down to for hearing (the “return day” of the application) to do or pay what the labour officer ordered under subsection (5)(c)(ii) and to pay the costs of the application.

(5b) If, on the return day of the application, the respondent makes no appearance or, after a hearing, the Labour Court grants the application for the order with or without amendment, the labour officer concerned shall, if the respondent does not comply fully or at all with the order by the restitution day, submit the order for registration to whichever court would have had jurisdiction to make such an order had the matter been determined by it, and thereupon the order shall have effect, for purposes of enforcement, of a civil judgment of the appropriate court.

This clearly creates problems from a legal perspective in many ways and an attempt to create a check list for filing papers with the Labour Court has its own problems as well. The checklist which was released last week still leaves matters parked outside the Labour Court as judges are unlikely to accept applications by Labour Officers for orders on behalf of litigants. In addition, section 92 of the Labour Act is express on who can represent a party before the Labour Court it reads, A party to a matter before the Labour Court may appear in person or be represented and appear by — (a) a legal practitioner registered in terms of the Legal Practitioners Act [Chapter 27:07]; or

(b) an official or employee of a registered trade union or employers’ organisation of which the party is a member.

Clearly the Labour Officer is not one of the representatives and for the Labour Officer to legally file papers before the Labour Court will now have to go to the interpretation of Statute Act to see which of the two provisions of the Act is superior to the other. In my reading of the law, I’m persuaded to conclude that a draft ruling and order made by the Labour Officer in the interest of one of the parties is faulty at law. Further filing of papers requires payment, and it is not clear on who pays. In addition the Act is silent on who pays if the Labour Officer loses the case with costs. These are just a few of many questions that remain unanswered.

Further, the whole process has a potential of reducing Labour court processes to arbitration which I do not think is the intention of the law as Judges will now have to deal with applications where they have to confirm decisions of Labour Officers and Arbitrators. I do not think that was the intention of the legislature to take the Labour Court Judges away from their core business and become mini-arbitrators. The workload alone is likely to keep judges very busy and they are unlikely to cope with work.

Another challenge is that before Labour Officers, representation of parties includes those who are not allowed to represent parties before the Labour Court but as things stand, in order to retain fairness, if we are to read provisions of section 65(1) of the Constitution into the Labour Court processes, it means that those excluded from representing parties before the Labour Court will now be allowed to do so as a representative cannot be thrown out by the court half way through a hearing without creating a measure of fairness. However, this thinking will have to be tested before a Judge.

The situation has been worsened by failure by the Ministry of Labour to have arbitrators’ certificates renewed as the old window of arbitration still remains very much alive in terms of section 93(1) which allows for the arbitration route if parties are agreeable. In my opinion this is a route that is underutilised.

In conclusion, the answer lies in a quick amendment of the Act to remove the new provision of section 93 and restoring the original provisions, thus leaving the Labour Court to do its work.

Davies Ndumiso Sibanda can be contacted on:  email: [email protected]; Or cell No: 0772 375 235