adminLabour Matters Davies Ndumiso Sibanda
One of the reasons why there is an outcry over the quality of a number of labour arbitration awards is because the Arbitration Regulations (Statutory Instrument 173 of 2012) provide for registration of people who do not meet the minimum legal requirements set in the Act for one to be an arbitrator.
The Labour Act Section 98(6)(a)(b) is express in that only those who are experienced or qualified in arbitration can be appointed as arbitrators. Section 98 6 (a)(b) empowers “the Minister in consultation with the Senior President of the Labour Court and the appropriate Advisory Council if any . . . to from time to time prepare a list of arbitrators consisting of (a) any Labour Officer, ex-officio or Designated Agent whom he considers to be experienced or qualified in arbitration, and (b) any other person whom he considers to be experienced or qualified in arbitration.” This clearly makes qualification to be an arbitrator to be based on either experience or qualification in arbitration and not any other qualification.
I am of the view that not all Labour Officers qualify to be arbitrators unless there is evidence of the fact that they are experienced or qualified at the time of certification. Further, not all Designated Agents of NECS qualify to be arbitrators unless there is evidence of experience or qualifications in arbitration at the time of certification.
The regulations in my view are not consistent with the provisions of the Labour Act as in Section 3 (2) they require “a university degree with at least two years in the human resources or industrial relations field, a diploma in the field of personnel management, conciliation and arbitration will be an added advantage.”
In terms of the regulations, a university degree is acceptable as long as one has been in human resources or industrial relations field of two years. What it means is that someone with a degree in embalming and having worked as an employee welfare officer for 2 years would qualify as a arbitrator. Further a large number of degrees, even those in human resources or labour relations do not cover the area of alternative dispute resolution. If it is touched, it is in passing. This is not what the Act in Section 98 prescribes. The Act is prescriptive and the right to arbitrate has to be given only those with experience or qualification at the time of certification.
Strangely the diplomas in personnel management, conciliation and arbitration that meet the minimum in terms of Section 98 are given as an added advantage meaning that those graduates who hold University of Zimbabwe diplomas in alternative dispute resolution do not qualify unless they have a degree yet these are qualifications that meet the Act’s requirements. If you look at Alternative Dispute Resolution studies in most universities such as Unisa, Stellenbosch, Pretoria, Orange Free State, Western Cape and others, coverage is at post-graduate certificate or diploma level, meaning that graduates who want to practise as arbitrators have to first get these additional qualifications.
I am of the view that the legislature was specific and did not delegate the role of making principal legislation to the Minister or Labour Court Advisory Committee so the substitution of principal qualifications for arbitrators given in the Act and making them subordinate regulations in my view goes beyond the delegated authority to make law given to the Minister. Further, the regulations are specific on what the Advisory Council should look at when advising the Minister but are silent on guidelines for the Labour Court President in advising the Minister. I am of the view that the Judge President should check compliance with provisions of Section 98 (6) of the Labour Act.
I believe that the regulations can be successfully challenged in court as I am of the view they are not consistent with the Act. In fact I believe parties can successfully challenge the correctness of certification of some arbitrators moreso if at the time of appointment they had no experience or qualifications in arbitration. It will mean going through the academic transcript or arbitration cases handled.
I am of the opinion that experience in arbitration in terms of Section 98 would not include any work in human resources or industrial relations but calls for demonstrable evidence that one has handled arbitration matters either as Voluntary Arbitration cases or as guided by the Arbitration Act. There must be evidence of a sizeable number of labour cases the individual has presided over. I do not think appearing before an arbitrator representing a party would be adequate experience considering the legal and procedural complexities related to arbitration.
On qualified persons I am of the view that one’s academic or professional training record must show that the individual covered the component on alternative dispute resolution and the qualification must be from a reputable institution.
It would be interesting to see what the Supreme Court would say if a party approached it arguing that the arbitrator who dealt with the matter was defectively appointed because the qualifications of the arbitrator do not meet the minimum set in the Act and that the provisions of the regulations that led to the appointment are defective. I am of the view that since the Labour Court President also plays an advisory role to the Minister on appointment the Labour Court might not be the appropriate authority to approach.
Arbitration regulations have many other interesting provisions and gaps, I shall look at other interesting aspects of the regulations in my next article.
Londile Moyo
Online Reporter