Maputo — The Consultative Labour Commission (CCT), the tripartite negotiating body between the Mozambican government, the trade unions, and the employers’ associations, is calling for an amendment to the constitution that will make it obligatory for labour disputes to go to mediation before courts are involved.
This norm was included in the labour law. Both unions and employers approved of Article 184 in the law which ensured compulsory mediation or arbitration before any resort to the courts.
But the Constitutional Council, the highest body in matters of constitutional law, struck down this article as unconstitutional.
The Council ruled, in October 2011, that constitutionally enshrined rights, freedoms and guarantees (such as the right to approach the courts) may only be limited in cases which the constitution itself envisages, such as the declaration of a state of siege or a state of emergency. Labour disputes do not fall within this category.
By limiting the right of citizens to resort to the courts, and limiting the power of the courts in labour matters, Article 184 of the Labour Law was "materially unconstitutional", the Constitutional Council declared.
The Council's ruling does not make mediation illegal - it merely states that it cannot be compulsory. It seems that the only way round this ruling is to insert compulsory mediation into the Constitution itself.
Speaking on Thursday, at a meeting of the Labour Mediation and Arbitration Commission (COMAL), the Deputy Chairperson of the Confederation of Mozambican Business Associations (CTA), Prakash Prehlad, said the CTA and the CCT have signed a document on the need for a constitutional amendment.
“The results obtained by the work undertaken by COMAL in resolving disputes encourage us towards this goal”, Prehlad told the two-day meeting, which is being held at the Pequenos Libombos resort in Maputo province. The constitutional amendment proposed would make it obligatory for any and every labour dispute to go to mediation before ether side could call on the courts.
The Mozambican parliament, the Assembly of the Republic, is currently debating constitutional amendments, and so the CTA and CCT have the opportunity right now to submit their amendment for inclusion.
Prehlad said the CTA regards COMAL as “the channel that speeds matters up, and provides solutions with fewer costs, where all the parties emerge as winners”.
For in many thousands of cases, the parties in dispute much prefer to go to COMAL than to the courts. COMAL Chairperson Mario Ussene said that from 2010 to September of this year the Labour Mediation and Arbitration Centres had handled 24,633 mediation requests. Of these, 16,233 (65.8 per cent) had resulted in agreements.
These figures, Ussene said, “show the importance of these conflict resolution mechanisms, and the need to continue this work, continually improving the service provided”.
He wanted to see the mediation centres expanded from the provincial capitals into the districts, to prevent and to solve disputes.
The country’s largest trade union federation, the OTM, also praised the work of COMAL. “Dispensing justice in cases of labour disputes is not at all easy”, said OTM chairperson Carlos Mucareia. “In addition to knowledge of the applicable legal rules, it requires a great deal of calm, patience, tolerance and impartiality”.
He thought mediation was much to be preferred to a court case, in which sentence is simply handed down, without any of the “social and civic education of the parties to the conflict”, which mediation involves.