Introduction
The Labour Amendment Bill is proposing changes to the powers of labour officers in resolving disputes and complaints of unfair labour practices. The 2015 amendments to the Labour Act brought about a system where all disputes before labour officers would go through conciliation whereupon if parties do not agree the Labour Officer would proceed to issue a draft ruling. The draft ruling would be of no force until confirmed by the Labour Court.[1] We believe this resulted in a situation where cases dealt with by Labour Officers clogged the Labour Courts through the confirmation proceedings. We trust, to deal with this situation the legislature is proposing the system that was there before the 2015 amendments. Since this is not a new system we shall not proceed in greater detail. This section will highlight the major points.
Conciliation
Conciliation as a dispute resolution mechanism was introduced by Act 7 of 2005. It survived the 2015 amendments. The Bill is proposing that conciliation remains in the dispute resolution process. It is the first method used to resolve labour disputes. One can go through Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa (CCZ 6 of 2020) and get a full appreciation of what this process entails. What is important to note is that conciliation produces either a certificate of settlement or a certificate of no settlement.
Certificate of settlement
When this is issued and signed by parties, it means the dispute has been resolved. Through this Bill, a layer of protection is being added to disputes resolved through conciliation. The Bill now provides:
“(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing, which shall be registrable with the relevant court for enforcement upon default. The certificate of settlement to enable enforcement shall be issued by the labour officer and it shall have the effect for purposes of enforcement, of a civil judgment of the appropriate court”.[2]
A certificate of settlement will be registrable with a relevant court depending on the monetary jurisdiction of the court and the monetary value of the settlement. This is a welcome development as it empowers Labour Officers to come up with binding settlements unlike the previous generation of laws that did not support the enforcement of a certificate of settlement. In our view, this encourages speedy resolution of labour disputes.
Certificate of No Settlement
The procedure here is that, if a dispute is conciliated for 30 days, a labour officer is compelled to issue a certificate of no settlement unless if the conciliation is extended. Once the labour officer issues a certificate of no settlement, the dispute will have to be referred for arbitration.[3] The Bill envisages two types of arbitration, compulsory arbitration which involves referring the dispute to an Arbitrator under the Ministry of Labour or the NEC, as the case may be, and also voluntary arbitration in which case parties choose the arbitrator they want to make use of.[4] Whichever form of arbitration the parties find themselves in, the effect at the end of the day is the same.
Arbitration and effect thereof
The major advantage of the proposed dispute resolution mechanism is the capacity to produce binding arbitral awards as compared to the draft rulings provided for under the amendments effected in 2015. An arbitral award can be registered with an appropriate court and can be enforced as an order of that court. This speeds up the resolution of disputes and relieves the Labour Courts as most cases may end up being resolved at the arbitration level.
Once a dispute has been referred for arbitration, the Arbitration Act (Chapter 7:15) kicks in.[5] Here, the process is more or less like a court process in that parties are allowed to make submissions whereupon the arbitrator can issue a binding determination.[6] The winning party can register the award for purposes of enforcement whereas the aggrieved party can appeal to the Labour Court. The arbitrator will have the same powers as the Labour Court in dealing with the matter.[7]
Further, once a dispute has been referred for compulsory arbitration, no person shall engage in collective job action in connection with such a dispute.
Costs associated with such arbitration will be shared between the parties and it is the role of the Labour Officer or the Labour Court to determine the costs to be borne by the disputants.
Appeals
A party aggrieved with an arbitral award can appeal to the Labour Court only on a question of law. What constitutes a question of law is now settled in this jurisdiction. The court in Hlahla v OK Zimbabwe (SC 64/2004) made use of the dictum in Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S) at 220 D-G where it was noted:
“the term question of law is used in three distinct though related senses. First, it means a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter. Second, it means a question as to what the law is. Thus, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter. And third, any question which is within the province of the judge instead of the jury is called a question of law. This division of judicial function arises in this country in a criminal trial presided over by a judge and assessors.”
The law is thus clear in terms of what constitutes a question of law when one is contemplating an appeal against an arbitral award. In the Hlahla matter pointed out above, the court reviewed the grounds of appeal lodged by the appellant and concluded that no question of law was raised and struck the matter off the roll with costs.
Conclusion
We note that the Bill is proposing a system of dispute resolution that existed before the amendments of 2015. We believe the system was more effective and will continue to work well in our jurisdiction. We applaud the legislature for ensuring that the certificate of settlement is enforceable in the same manner as arbitral awards. We believe the system will result in quicker resolution of disputes as there will be no need for further confirmation by the Labour Court.
[1] See Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa (CCZ 6 of 2020) which argued “A “draft ruling” does not determine the dispute between the parties. Whether made against an employer or employee, it does not confer any right until it is confirmed by the Labour Court. It is not clear why a procedure providing access to the Labour Court should by construction be made available to one party in a dispute of right which has not been resolved and not to the other party”.
[2] Proposed Section 93 (2) of the Labour Act
[3] See proposed Section 93(3) to Section 93(7) of the Labour Act.
[4] See proposed Section 93(3) to Section 93(7) of the Labour Act.
[5] See proposed Section 98(1) to Section 98(8) of the Labour Act.
[6] See proposed Section 98(1) to Section 98(8) of the Labour Act.
[7] See proposed Section 98(1) to Section 98(8) of the Labour Act.