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The University of Botswana Law Journal is a peer refereed journal published twice a year. It provides a forum for scholars and practitioners to reflect on diverse legal issues of national, regional and international significance and of local and regional relevance.PatronThe Hon. Justice Nganunu, Chief Justice of BotswanaInternational Editorial Advisory BoardProf. D. D. N. Nsereko, Judge, International Criminal Court, The Hague, The NetherlandsProf. W. Du Plessis Faculty of Law, North-West University (Potchefstroom Campus), South Africa Prof. T. Maluwa H. Laddie and Linda P. Montague Professor of Law, Dickinson School of Law, Penn. State University, USA Prof. M. Reisman Myres McDougal Professor of Law, Yale Law School, New Haven, USA Prof. K. Frimpong Ghana Institute of Management and Public Administration, (GIMPA), Accra, Ghana Prof. S. Roberts Department of Law, London School of Economics, United Kingdom Prof. A. McCall Smith Edinburgh Law School, University of Edinburgh, United Kingdom Prof. C. Forsyth Faculty of Law, Robinson College, University of Cambridge, United Kingdom Prof. B. Othlogile Vice Chancellor, University of Botswana Dr. A. Molokomme Attorney-General, BotswanaEditorial BoardProf. Peter Takirambudde Editor-in-Chief, University of BotswanaMrs. E. Macharia-Mokobi Secretary, University of BotswanaDr. K. Solo University of BotswanaProf. C. Ngongola University of BotswanaProf. J. Kiggundu University of BotswanaProf. E. K. Quansah University of BotswanaDr. O. B. Tshosa University of BotswanaMr. T. Sebego Vice chairman, Law Society of Botswana

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• Publié par: PULP (Pretoria University Law Press)
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• Langue: English
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Extrait

UNIVERSITY OF BOTSWANA LAW JOURNAL

VOLUME 14 JUNE 2012

ARTICLES

The alternative labour dispute resolution system in ...................................3 Zimbabwe: Some comparative perspectives L. Madhuku

Bringing the Paris Principles home: Towards the establishment of .........45 a National Human Rights Commission in Botswana B.R. Dinokopila

Reflections on the Refugee Protection regime in Africa: .........................71 Challenges and prospects O. Jonas

The judiciary under siege in Swaziland: Re-engendering a .....................95 “unique democracy”? M. Langwenya

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Expropriation of freehold land by sleight of legislative hand: ...............123 Review ofQuarries of Botswana (Pty) LtdvGamalete Development Trust and Others,Court of Appeal, Civil Appeal no. CACLB-036-10, unreported C. Ng’ong’ola and R. Segokgo

Enhancing good governance in Africa: The imperative of a ..................135 supranational approach B. Fagbayibo

The emerging jurisprudence of the African Court on Human and .........147 Peoples’ Rights –African Commission on Human and Peoples’ RightsvGreat Socialist People’s Libyan Arab Jamahiriya (order for provisional measures) R.J.V. Cole

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The alternative labour dispute resolution system in Zimbabwe: Some comparative perspectives*

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Lovemore Madhuku**

The modern trend in labour dispute resolution is to utilise a set of methods made up of conciliation, mediation and arbitration. These are alternatives to the use of adjudication by the ordinary courts. Although Zimbabwean labour law provides a framework for alternative labour dispute resolution (ADR), the system has not been effective owing to a variety of factors. First, Zimbabwe has a two-tier labour law system with labour relations in state employment being subjected to a different legal regime from that governing the rest of the labour field. There is no ADR in state employment. Secondly, the exact scope of conciliation and arbitration have not been fully explored. Thirdly, the Labour Court, set up to be at the center of labour dispute resolution, is struggling to stamp its mark in the face of jurisdictional conflicts with the High Court. Finally, the institutional and administrative framework for ADR is in need of reform and experiences of some systems in Southern Africa provide a good reference point for reform efforts in Zimbabwe.

1.

INTRODUCTION

This article seeks to review the current alternative labour dispute resolution system in Zimbabwe. The review includes an analysis of the current law on the ADR system, a comparison of that law with other systems in Southern Africa, a critical analysis of the role of the Labour Court in the ADR system and a set of recommendations and/or proposals for improving the ADR system. In this article, the expression “alternative dispute resolution” is taken to refer to a set of methods of dispute resolution made up of conciliation, mediation and arbitration. These methods are “alternatives” to resolution by adjudication by the ordinary courts. The ADR covered in the article only relates to labour relations outside government service. There is no ADR in the government service.

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This article is adapted from an audit of the ADR system in Zimbabwe which was undertaken by the author in the period December 2010 to April 2011. The audit was commissioned by the ILO office in Harare. All references in the article to the author`s observations and experiences refer to the survey by the author during the audit. The author would like to thank the ILO for the opportunity to have insights into the labour dispute system in Zimbabwe. Professor of Law, Faculty of Law, University of Zimbabwe.

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2.1

THE CURRENT STATE OF THE ADR SYSTEM

The public/private sector divide in Zimbabwean labour law

1 Zimbabwe has a two-tier labour law system. The Labour Act does not apply to all workers in the country. It does not apply to those “whose conditions of 2 employment are otherwise provided for in the constitution.” Workers whose conditions are provided for in the Constitution are many. The main group is that of members of the Public Service. Employment conditions for most 3 employees in the Public service are governed by the Public Service Act. Some employees in the Public Service who are engaged in what is described as “public health delivery” have been transferred to a recently constituted “Health 4 Service” which is governed by the Health Service Act. This means that the Public Service has two statutes regulating labour relations, namely the Public Service Act and the Health Service Act. Other groups of workers covered by the Constitution and therefore excluded from the Labour Act are the army, the police and prison officers. It is not accurate to describe this divide in Zimbabwean labour law as public/private sector because that portion of the public sector outside strict government employment is governed by the Labour Act. Thus, local government, state enterprises and statutory corporations are all governed by the Labour Act. A more accurate description would be government service/ non-government service divide.

2.2

ADR in government service

Strictly, this does not exist. It is a fundamental defect of the Zimbabwean labour dispute settlement system because close to 30% of Zimbabwean workers are employed in the Public service, the army, the police and the prison service and labour disputes in government service impact on the rest of the economy. Almost invariably, a major dispute in government service leads to a strike which drags on for an inordinate period because of the absence of an ADR framework. Outside government service, Zimbabwean labour law has specific provisions regulating the resolution of labour disputes. There are no similar provisions in government service. The dichotomy between the two labour law systems is substantial.

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Chapter 28:01. See Section 3 of the Labour Act. Chapter 16:04. Chapter 15:16.

ALTERNATIVE LABOUR DISPUTE RESOLUTION SYSTEM IN ZIMBABWE 5

Labour regulations in the government service provide for a 5 “grievance procedure.” A “grievance” is not a dispute: it is defined in the regulations as “any dissatisfaction or feeling of injustice on the part of a member which is connected with the member’s work or the member’s contact 6 with other persons in the work place.” The grievance is reported to the employer, who has the final decision on how it is addressed. Clearly, this is not a dispute resolution mechanism as understood in labour law. Jurisprudentially, a dispute only arises when the two parties (employer and employee) are disagreeing or are in conflict. This means that a dispute may arise at the end of the grievance procedure. There is no provision to deal with any dispute which may arise at the end of the grievance procedure. There is no collective bargaining in government service. What exist are “consultations.” Labour regulations provide for a framework for the 7 conduct of these consultations. Agreements reached between government and workers` representatives are not binding on the government, as employer. Interestingly, the failure to reach this non-binding agreement is termed a “dispute” and must be resolved by reference to arbitration in terms of the 8 Arbitration Act, 1996. This arbitration will merely resolve the issue of what recommendation/s to make to government. It is therefore conceptually different from arbitration of labour disputes as understood in labour law.

2.3

ADR outside government service

On 7 March 2003, a new set of legal provisions on labour dispute resolution entered into force. They were introduced by the Labour Relations Amendment Act, 2002 (Act No. 17 of 2002). These are the legal provisions which are still in force today. However, it is instructive to outline the previous law in order to provide insights into the current law.

2.3.1

Historical background: The state of ADR before 7 March 2003

During the period 1980–1985 the Industrial Conciliation Act, a colonial piece of legislation, remained in force during this period. Its focal point in dispute resolution was the Industrial Court modeled along its counterparts in South Africa. The Act did not have any meaningful reference to ADR as it is known in this audit. Although the new government had enacted the Minimum Wages

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See for example, Part IX of the Public Service Regulations, 2000 (SI 1/2000). See also Part IX of the Health Service Regulations, SI 117/2006. See Section 53 of each of the above Regulations. See Public Service (Public Service Joint Negotiating Council) Regulations, 1997 (SI 141/97) and Health Service (Health Service Bipartite Negotiating Panel) Regulations, 2006 (SI 111/2006). See Section 8 of each of the above Regulations.

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Act and the Employment Act, the new pieces of legislation had no provisions on dispute resolution. The period 1985–1992saw the coming into force of the first comprehensive post-independence labour legislation in Zimbabwe, the Labour Relations Act, 1985. As may be expected, there was very little sensitivity to the concept of ADR. It only provided for conciliation as follows:

“A labour relations officer to whom any matter has been referred … or who is acting on his own initiative to redress any dispute or unfair labour practice shall, as soon as possible, investigate such matter and, after due inquiry, may – (a) attempt to redress or rectify the 9 matter through conciliation between the parties …”

Conciliation was not mandatory. It was optional and this depended on the labour relations officer. Where the labour relations officer opted for conciliation, the prescribed time for engaging in it was “a reasonable period” and if it failed, the labour relations officer was required either to resort to 10 adjudication or to refer the matter to other institutions designated by the Act. There was no reference to mediation and voluntary arbitration. The Act also provided for compulsory arbitration for disputes that could lead to collective job action. Apart from the two references to conciliation and compulsory arbitration, there were no other provisions on ADR. A key feature of this period was a lengthy dispute resolution structure involving no less than six levels as follows:

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(i) Labour relations officer – This was the first level for any dispute or unfair labour practice. The labour relations officer was required to investigate the matter first before exercising any of the other powers conferred by the Act. After the investigation, he/she had the following options: conciliate or conduct a hearing and make a determination or refer the matter to a hearing officer or refer the matter to the Labour Relations Board or refer the matter to compulsory arbitration. (ii) Hearing officer – This could only operate as a second level. It received disputes from labour relations officers. The hearing officer had no power to do anything else other than one of two things: either conducting a hearing and making a determination or referring the dispute to another authority.

See Section 109(2) of the Labour Relations act, 1985 (before the 1002 amendments). See Section 109(4) of the Labour Relations Act, 1985 (before the 1992 amendments).

ALTERNATIVE LABOUR DISPUTE RESOLUTION SYSTEM IN ZIMBABWE 7

(iii)Regional hearing officer – This was an appeal level. It heard appeals from either hearing officers or labour relations officers. The Regional hearing officer had power to “confirm, vary or set aside the decision appealed against”. (iv)Labour Relations Board – This heard appeals from the regional hearing officer. Appeals were not automatic as leave to appeal was required from the regional hearing officer. If leave to appeal was refused, there was a right of appeal against that refusal to a member of the Board. (v) Labour Relations Tribunal – This was the appeal court for matters from the Labour Relations Board. It was also a court of first instance for compulsory arbitration. (vi)Supreme Court – Appeals from the Labour Relations Tribunal on matters of both fact and law lay with the Supreme Court.

Between 1992 and 2003 major amendments to the Labour Relations Act which were introduced by the Labour Relations Amendment Act, 1992. The main methods of labour dispute resolution were conciliation, mediation, 11 arbitration and adjudication. For the first time, “mediation” was introduced and was stipulated as a separate method from conciliation. The law did not make a clear distinction between “conciliation” and “mediation” and seemed to have used the terms interchangeably. It gave a labour officer the discretion to decide whether to engage in conciliation or mediation. A labour officer could treat the two processes as the same thing. Fundamentally, conciliation and mediation were not compulsory. A labour officer to whom a dispute had been referred to or acting on his/her own initiative had six options: either (i) conciliate or (ii) mediate or (iii) with the agreement of the parties, refer it to voluntary arbitration or (iv) adjudicate or (v) refer the dispute to an appropriate workers committee, works council, trade union, employers organisation or employment council or (vi) refer it to compulsory arbitration, where appropriate. The law did not guide the labour officer in deciding the appropriate 12 route except in matters involving compulsory arbitration. The labour officer had up to 12 months to resolve any dispute. In theory, this meant that a labour officer could be engaged in conciliation or mediation efforts for that whole period. There was one situation in which the labour officer had no discretion in determining the route to take. This situation was where the Minister of Labour directed the labour officer, in respect of disputes between trade unions

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See the old Section 93 of the Labour Relations Act, 1985. See the old Section 93(1)(d) which directed reference to compulsory arbitration in any dispute involving organised workers and where collective job action was a likely consequence of the dispute. Even in this instance, the discretion of the labour officer played a key role.

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and employers either to use adjudication or to refer the matter to compulsory 13 arbitration. Thus, the law provided room for the Minister of Labour to be involved directly in determining the manner of resolution of labour disputes involving trade unions and employers. The law had no specific provisions on what was to be done where either conciliation or mediation failed. As the Act gave the labour officer the discretion to choose the method of resolution, the law was, in practice, interpreted to mean that where conciliation/mediation failed, the same labour officer would convert the proceedings into a hearing, whereupon he/she would make a binding determination. In other words, where conciliation/ mediation failed, adjudication followed. A labour relations officer could not act as an arbitrator. All he/she could do was to “refer” to arbitration. Two types of arbitration were envisaged: voluntary arbitration where the appointment of the arbitrator/s was governed by the agreement of the parties and compulsory arbitration where the arbitrator was either the Labour Relations Tribunal or an independent 14 mediator appointed by the Minister of Labour. Regarding appeals against decisions made by the labour relations officer, the law made a distinction between adjudications and other methods of dispute resolution. In the case of adjudication, there was a right of appeal (termed a “reference”) to a senior labour relations officer. The latter had the power to “confirm, vary, set aside or substitute the determination of the labour relations officer” or even to order a re-hearing before the same or a different 15 officer. Regarding conciliation or mediation, an aggrieved party was entitled to appeal to the Labour Relations Tribunal against the “conduct” of 16 the labour relations officer.

2.3.2

ADR after 7 March 2003: The current law

Section 2 of the Labour Act defines a “dispute” as “means a dispute relating to any matter concerning employment which is governed by this Act”. While it is clear that a dispute must relate to matters concerning employment, does every disagreement over matters concerning employment constitute a “dispute”? It would appear that the intention is to take the ordinary grammatical meaning of the word “dispute” and therefore every disagreement over matters concerning employment is a “dispute”. The limitation that a dispute must relate to a “matter concerning employment” is significant. Disputes relating to social, economic and political issues of a general nature fall outside the scope of this definition.

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See the proviso to the old Section 93(1). See the old Section 100. See the old Section 95. See the old Section 97(1)(b).

ALTERNATIVE LABOUR DISPUTE RESOLUTION SYSTEM IN ZIMBABWE 9

There is a further limitation, namely that matters of employment at the centre of the dispute must be “governed by this Act”. Disputes in government employment are not covered by the Labour Act. To understand more fully the scope of this definition, it is important to state the two main classifications of labour disputes. The first classification is of “individual and collective disputes”. A dispute is “individual” if it “involves a single worker or a number of workers in their individual capacities or in relation to their individual contracts of employment, while a dispute is 17 collective if it involves a number of workers collectively”. The definition of “dispute” in the Act does not distinguish between “individual” and “collective” disputes. This means that it covers both types of disputes. The ADR methods provided for in the Act are therefore available for both individual and collective disputes. The second classification is of “disputes of right” and “disputes of interest”. In general, “disputes of right”, refer to disputes about “the application or interpretation of an existing law or collective agreement (in some countries existing individual contracts of employment), whereas interest or economic disputes arise from the failure of collective bargaining, i.e. when the parties` negotiations for the conclusion, renewal, revision or extension of a 18 collective agreement end in deadlock”. In a dispute of right, there is an alleged vindication of an existing legal right or standard while with a dispute of interest, there is no existing legal right in contention but the parties are seeking either to establish new rights or to obtain the best bargain under the existing market and economic conditions. A “dispute of right” is defined in Section 2 of the Act as:

“means any dispute involving legal rights and obligations, including any dispute occasioned by an actual or alleged unfair labour practice, a breach or alleged breach of this Act or of any regulations made under this Act, or a breach or alleged breach of any of the terms of a collective bargaining agreement or contract of employment.”

A “dispute of interest” is defined as “means any dispute other than a dispute of right”. Although the Act makes this distinction, the definition of “dispute” covers both “a dispute of right” and “a dispute of interest”. Thus, whenever the Act uses the word “dispute”, it would be referring to both types of disputes and where it wishes to refer either to a dispute of right or of interest, it says so specifically. In general, the ADR methods of resolution provided for in the Act apply to both types of disputes.

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See ILO, Conciliation and Arbitration Procedures in Labour Disputes (1980), p 5. Ibid.

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3.

ADR METHODS PROVIDED FOR IN THE LABOUR ACT

The Act provides for three methods of ADR namely conciliation/mediation, arbitration and use of the Labour Court. The use of the Labour Court is considered here as a separate method of ADR.

3.1

Conciliation and mediation

The current law no longer makes any reference to mediation. The separate reference to “conciliation” and “mediation” has been done away with. The new section refers to “conciliation” only. Section 93(1) now provides:

“A labour officer to whom a dispute has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.”

This reference to conciliation only is deliberate. Although conciliation is not defined in the Act, it is submitted that it is being used in a broad sense which covers mediation. Mediation is merely regarded as one of the methods of conciliation. It is further submitted that conciliation in the Act has the same scope as in the South African Labour Relations Act, 1995 where it has been defined as:

“… a process by which a conciliator helps the parties to a dispute to reach a settlement. This can be done by any consensus -building process including mediation, by fact-finding or by making 19 recommendations, including advisory arbitration …”

This means that the labour officer attempting to resolve a dispute through conciliation has a wide discretion to determine the precise method of conciliation appropriate for the dispute. He/she may use mediation or concentrate on establishing the underlying facts and making them available to the parties as a way of contributing to the resolution of the dispute. He/she may make firm proposals on how the dispute should be resolved. The thrust of conciliation is to assist the parties to reach a settlement and this necessarily entails a wide and flexible process encompassing a variety of methods. Simon Deakin and Gillian Morris define conciliation in these words:

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“The process of conciliation involves assisting the parties to clarify their points of disagreement and attempting to promote a settlement

See A. Bassonet al,Essential Labour Law, volume 2, 3rd ed., Labour Law Publishing (2002) p. 202.

ALTERNATIVE LABOUR DISPUTE RESOLUTION SYSTEM IN ZIMBABWE 11

but the terms of any settlement remain the responsibility of the 20 parties.”

Unlike in the old law, conciliation is now compulsory. Every dispute must be subjected to a conciliation process except where the parties agree to refer it to voluntary arbitration. The framers of this new provision believe that conciliation is an effective method and therefore that most disputes will be resolved at this stage. This is why the only escape from compulsory conciliation is by agreeing to refer the matter to voluntary arbitration, a method which leads to a final award. Conciliation is compulsory for all disputes, whatever their nature. Thus, disputes of right and disputes of interest and individual and collective disputes – all fall under the ambit of Section 93(1). The conciliator is a labour officer, a public official employed by the government. The Act obliges the government, through the Public Service, to appoint “such number of labour officers and employment officers as may be necessary for carrying out the functions assigned to such officers in terms of 21 this Act”. In other developed labour relations systems, conciliation has been moved from government officers to independent statutory bodies funded by the state. The United Kingdom and South Africa are cases in point. In 1975, the United Kingdom, abandoned the system of using labour officers as conciliators and established, through the Employment Protection Act, 1975, an independent tripartite body called the Advisory, Conciliation and Arbitration Service (ACAS). Its functions include providing conciliation services through its conciliation officers. This system has been adopted by South Africa, which, through the Labour Relations Act, 1995 established the Commission for Conciliation, Mediation and Arbitration (CCMA). This is also an independent tripartite body funded by the state. Its functions include providing conciliation services through the appointment of commissioners as conciliators. The conciliation process is given a time span of 30 days from the day 22 that the labour officer begins the process. The period is counted not necessarily from reference to the Labour Officer but from the time that the labour officer begins to attempt to settle the matter. When does a Labour Officer “begin to attempt to settle a dispute”? Is it when the labour officer acknowledges receipt of the communication concerning the dispute or is it after he/she conducts the first hearing? The wording of this section is problematic and a more definitive point of reference must be established.

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See S. Deakin and G. Morris,Labour Law, Butterworths (1995) p. 92. See Section 121(1) of the Act. See Section 93(3).