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Labour Column Davies Ndumiso Sibanda
SINCE the amendment of the Labour Act no Arbitrator Certificate has been renewed with now very few active arbitrators remaining, a thing that has resulted in rumours that arbitration as an option has been abandoned by the Ministry of Labour and as such no new practising certificates for arbitrators shall be issued.

Nobody has come out clear as to why expiring Arbitrator Certificates have not been renewed and why applications have not been processed.

Rumour has it that the Employers’ Confederation of Zimbabwe (EMCOZ) complained that the quality of arbitration was very poor resulting in expensive arbitration awards in terms of payments to be made and litigation costs as employers appeal.

Some say the Government is employing an appeasement policy in order to make employers happy so as to get them to compromise in other areas.

With all these rumours floating, there is a need for Government to give the correct position.

The law on arbitration is very clear, arbitration is covered in section 98(6) and (7) of the Labour Act, which reads, (6 ) The Minister, in consultation with the Senior President of the Labour Court and the appropriate advisory council, if any, appointed in terms of section nineteen, shall from time to time prepare a list of arbitrators consisting of:

(a) any labour officer, ex officio or designated agent whom he considers to be experienced or qualified in arbitration; and [Paragraph as amended by section 35 of Act 7 of 2005]

(b) any other person whom he considers to be experienced or qualified in arbitration.

(7 ) In referring a dispute to compulsory arbitration by a person other than a labour officer, or a designated agent for the employment council which is registered to represent the undertaking or industry to which the parties belong, the Labour Court or labour officer shall determine the share of the costs of the arbitration to be borne by each party, as read with related appropriate Statutory Instrument.

The duty to appoint arbitrators rests with the Minister. He or she is not given a choice as the Act says he “shall” from time to time prepare a list of arbitrators.

In my reading of the law, this is a duty that the Minister has to perform personally.

He or she cannot delegate it to anybody else and he cannot abandon the duty without first approaching Parliament and having the Act amended.

Therefore, as things stand, I do believe that at law there is no way the Minister can suspend the issuing of Arbitrators Certificates.

In fact, due to ignorance of the law, in my opinion people have not litigated over the non-availability of arbitrators to dispose of cases that were started before the Amendment Act became law.

Instead, Labour Officers have been allowed to adulterate the process in a number of cases where they have concluded matters that have been started in terms of the old provisions of section 93 using the new provisions.

Further, section 93(1) of the Labour Act provides parties with a choice, either to have the matter disposed of through arbitration by agreement which means that as this agreement is in terms of the Labour Act, the progression of the case is in terms of the labour Act.

However, parties that have taken this route have been forced by Labour Officers and Designated Agents to have the matter disposed of in terms of the new section 93(5), yet the old section 93(5) remains alive.

In my view, this is unlawful as when the Labour Officer says there are no arbitrators, one can approach the Labour Court and apply for an order compelling the Minister to appoint an arbitrator to dispose of the matter. There is no way the Minister will oppose the order as the Act is express.

Whatever is contained in the arbitration regulations is irrelevant when it comes to that duty as the regulations are subsidiary legislation.

The cost of the application can easily be placed on the Minister’s door. Arguments have been raised that the old section 93(5) is superseded by the new section 93(5).

My view is that this argument will have to be tested in court as I believe the old section 93(5) walks clearly on the Constitutional provisions of section 65(1) on fairness as it separates roles of the conciliator and arbitrator unlike the new provisions of section 93(5) where the conciliator becomes the adjudicator and later a litigant on behalf of one of the parties making the whole process defective at law.

It has only survived because no robust arguments have been taken to court to have the section dismissed as unlawful. In conclusion, I believe the Minister has the duty to appoint arbitrators as provided for at law.

The fact that at present the arbitration process has problems is not the issue as the problems can be resolved while complying with the legal duty to appoint arbitrators.

Further, parties can refuse to have matters dealt with in terms of the new section 93(5) and opt for the old one which helps bring matters to finality through arbitration.

Davies Ndumiso Sibanda can be contacted on: email: [email protected] or call: 0772 375 235