16 December 2010

Zimbabwe: Labour Dispute - Madhuku's Findings

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RECENTLY, Lovemore Madhuku, was appointed by the International Labour Organisation (ILO) to do an audit of the labour dispute resolution system in Zimbabwe. The Madhuku audit, which is publicly available, identifies a number of structural and policy weaknesses as well as opportunities to strengthen Zimbabwe's labour dispute resolution mechanisms.

The concept of dispute resolution needs to be examined to provide context to our text.

Conciliation, mediation and arbitration are the three basic forms of dispute resolution that have been developed. Arbitration should be resorted to when other ADR mechanisms have failed. ADR-based arbitration is not discharged through the courts system, though its workings are similar to that of a court.

The principle of escalation can assist ADR to work. Under conciliation parties to a dispute talk to each other in the presence of a neutral observer. The disputants arrive at a settlement minus the intervention of the facilitator. If that fails mediation should be tried. Under mediation, the mediator can give their points of view but these viewpoints are not binding. A skilled mediator enriches the discussion by encouraging the disputants to explore several angles. The underlying principle of conciliation and mediation is called creative dialogue. Creative dialogue means the disputants strive to come up with solutions that on their own would not have thought of.

In arbitration, the arbitrator acts as a judge weighing the merits of the cases of complainants and defendants, in which losers and winners are expected.

Conciliation, mediation and arbitration can be hybridised to create other ADR forms such as mediation-arbitration. So there is a wide scope to solve labour disputes outside the formal court system.

In Zimbabwe, the current labour laws (Arbitration Act 7:15 and Labour Act 28:01), by default explicitly recognise only two forms of dispute resolution, namely conciliation and arbitration. If conciliation and arbitration are discharged through the formal court system, what Isaac Mazanhi terms the "judicialisation of ADR", they cease to be ADR. However, Zimbabwe's labour laws do not preclude disputants from solving their disputes outside the court system.

We will now explore some of Madhuku's findings as interpreted by the ILO, the commissioners of the audit.

First, the absence of guidelines on conciliation was identified as a major structural weakness. It was noted that the current labour laws do not define conciliation. Absence of prescribed guidelines and procedures for carrying out conciliation was noted. Principally, the competence and scope of powers of conciliators were found to be unclear. The issue of the competence of conciliators should not be confused with the competence of arbitrators an issue Wellington Chibebe recently passionately defended in a strongly worded article in which he called for an end to the vilification of arbitrators. Chibebe stressed that Zimbabwean arbitrators are highly qualified, having studied at some of the best South African universities. ILO noted that countries such as Botswana have clear cut standards on the competences (skills, knowledge, attitude, experience) of conciliators.

Second, the ILO audit found that there is no independent panel of conciliators in Zimbabwe and felt that conciliation should not be restricted to labour officers who are ministry appointees. This is a very sensible recommendation that is in line with the tenets of ADR. ADR is predicated on the premise that disputes should as far as is possible be solved outside the court system.

Third, the audit questioned the place of lawyers in ADR and recommended that lawyers should not be allowed in conciliation hearings. Some commentators have observed that some lawyers' approach in conciliation betokens a mini-court scenario, a flagrant violation of the tenets of conciliation. Traditionally, a conciliator does not make a ruling on the poverty or merit of cases. A conciliator is a "midwife", allowing the disputants to deliver amicable solutions, without voicing his/her opinions. The audit also noted that lawyers can cause delays when they are engaged elsewhere.

Fourth, the audit noted that some National Employment Councils (Necs) have developed excellent ADR mechanisms for their sectors. These pockets of best practice can be used as a basis for developing a robust ADR mechanism with solid Zimbabwean roots.

Fifth, the Madhuku audit noted that there was no system of allocating cases to conciliators and arbitrators and that there were no guidelines for case management. These procedural bottlenecks need to be removed to hasten the wheels of justice. Martin Luther King Jnr, the slain American civil rights leader's statement that the arc of freedom is long but it tends to justice, need not apply in the case of labour disputes.

Sixth, no Code of Ethics for conciliators and arbitrators is in place. The audit underlined the need to ensure confidentiality and the establishment of a fee structure for arbitration as key issues the Code of Ethics should address. It was recommended that a system of social responsibility be instituted so that fees are not charged in needy cases. Madhuku's suggestion is very sensible as financial impotence should not preclude access to justice.

Seventh, the ILO audit claims that they are no prescribed qualifications for Labour Court judges and that there is a lack of systematic training on labour law for those in offices. In my opinion, this could explain partly why judgements by the Labour Court have to be registered with the High Court.

Eighth, the audit notes that awards and judgements by the Labour Court are not immediately enforceable as they have to be registered with the High Court. Some reformists have suggested that the Labour Court should be made the court of final appeal in all labour matters and be empowered to enforce its own decisions.

Ninth, the audit notes that there are no time limits prescribed for making judgements. This was contrasted with other countries where time limits, the most common being 30 and 90 days are stipulated. In my opinion, this is desirable to expedite the finalisation of labour disputes.

Tenth, the enforcement of settlements from conciliation is not entrenched in the law as they are no stipulations on effect of the conciliation agreement and sanctions for breaching settlement agreement, the audit notes.

Finally, the finality of arbitration awards is seen as a challenge. This is so, as the current labour laws encourage appeals on what is called a "question of law". According to the ILO audit this has resulted in more appeals than warranted, slowing down the wheels of justice.

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