adminLabour Matters Davis Ndumiso Sibanda
The Labour Amendment Act no. 5 of 2015 in section 93 created confusion that is now translating into chaos in the administration of disputes and allegations of unfair labour practice between employers and workers and the Ministry of Labour has not helped the situation by fuelling the confusion through legally questionable decision.
The first problem with the Labour Amendment Act section 93 is that it is express with what should happen, it reads “Section 93 (Powers of labour officers”) (2) of the principal Act is amended by the insertion of the following paragragh. This clearly shows that the original contents of section 93 are not tampered with, leaving the Act with 2 subsection 5s whose problem cannot be cured through saying there was a typographic error, any change to this section either removing the original subsection 5 or removing the amended subsection 5 would require parliament to do that.
What must be understood is that legal drafting rules are clear in that an “insertion” is different from deletion, repeal or substitution. In the present case, the amendment merely included the insertion meaning that everything else in section 93 remains alive, however, whoever reads section 93 now must also read the additional subsection 5.
Attempts have been made to interpret the provision of section 93 amendments to mean that the original subsection 5 is no longer alive. This is wrong, nobody outside parliament can sanitise the labour legislation, all parties can do is to read the law whichever way they feel like and if a dispute arises from that, only courts of law can interpret the law as it stands now. We can argue over intentions of Parliament, but that is not relevant as what we follow is what the Act reads. It is possible that as the courts interpret the Act they might follow the interpretation of Acts Principles which give precedence to the latter amendment. However, the principles also require that the latter amendments should be lawful and talk to the spirit of the legislation and the guiding principles of the Act thus we all do not know what the courts will say.
There has been talk that Ministry of Labour has given a directive that all cases before arbitrators since the amendment becoming law because they are dealing with disputes of rights I doubt that the Ministry of Labour would do that. My reading of the law is that labour officers still have a right to refer disputes of rights to arbitrators as the enabling legislation is still alive in terms of the provision of section 93 subsection (1) and (5) of the original Act as they were not repealed. If parties whose cases are before arbitrators wish they can challenge the Labour Officer’s decision to withdraw the case before arbitrators through application for review at the Labour Court. A Labour Officer has no legal authority to recall a case that has been referred to an arbitrator if there are issues of jurisdiction, parties will argue those and it will be up to the arbitrator to make a decision and whoever is unhappy can appeal to the Labour Court. Only the arbitrator, once seized with a case can pronounce that the case is not correctly before him and refer it back to the Labour Officer, however this can only be done after due process.
The new subsection 5 creates more problems in that the Labour Officer is given powers to conciliate and adjudicate cases that he will have conciliated. This violates principles of natural justice and fairness in that at conciliation, usually during breakaway sessions parties open up their armpits to the conciliator and the conciliator also expresses opinion over the matter and having the same Labour Officer adjudicate, clearly violates principles of natural justice, and does not talk legally to section 98(5) of the Labour Act which bars a Labour Officer who has conciliated a case from adjudicating over the same matter.
The amendments also allows the Labour Officer to make an affidavit and prepare a draft order for the Labour Court presumably on behalf of one of parties. The question that arises is who will argue at the Labour Court in support of the affidavit. Is it the Labour Officer who approached the Labour Court on behalf of one of the parties? It would seem so. In one of my earlier articles, I asked the question, what happens if the Labour Officer loses at the Labour Court and costs have to be paid or if the matter eventually get to the High Court and the other party opposes the registration of the order, who files the Heads of Arguments on behalf of the Labour Officer at the High Court and who argues the case at the High Court. All these questions are as a result of the clumsy provisions of section 93. Parties can argue over them until the cows come home. The answer will lie in courts of law which will have to interpret the law as it stands now.
In conclusion, I believe parties should be allowed to run with either the original provisions of section 93(5) or the new provisions. However, both could present problems and disputes that can only be settled by courts of law and until parliament decides to sanitise the legislation, we have to live with challenges of section 93. It is however sad that legislation that was supposed to improve labour relations and help businesses grow has complicated both labour relations and the way we do business. It is my prayer that Parliament will quickly read the implications of the legislation and make amendments that help create a sober labour relations environment that allows the economy to move forward by being user friendly.
Davies Ndumiso Sibanda can be contacted on:
email: [email protected]
Or cell No: 0772 375 235
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