Editorial Comment: Ensure all arbitrators are up to their task

law and of business and possessing good common sense, can often slice through all the personal animosities and red herrings that frequently cloud a dispute, look at the facts and the context, and come up with a solution that everyone can live with, even if no one likes this very much.
The rules of equity, that is fairness, apply as much as the rules of law.
The need for such a service in most labour disputes is even clearer than in commercial cases. In many commercial disputes arbitration is a short-cut to a negotiated settlement.
In labour cases the law is frequently only of modest help when trying to craft a just solution, not just a legal solution.
A first-class labour arbitrator can come up with a formula for, say, redundancy payments that is bearable by the troubled business shedding staff but still values the lost job fairly for the now unemployed worker.
Collective bargaining can break down; a knowledgeable arbitrator can supply a critical service so long as he or she knows labour law, understands business, has a good idea of how some grading system came into being, and is ready to apply common sense.
But it has become apparent that many who delve in labour arbitration are not up to the mark. The complaints come from experienced lawyers and from users of arbitration, and not just ordinary lawyers but lawyers who have worn a second hat as arbitrators themselves, and who know the difference between a legal settlement and an arbitrated one.
They want to keep arbitrators; they are not desperate to assume the role themselves so their complaints are not about losing business.
But they want good arbitrators in labour cases. And they are quite specific about what needs to be done to create a pool of such men and women.
For a start, arbitrators need to know the relevant areas of the law: labour law, law of contract and law of delict, that is the section of law that deals with duties and responsibilities. An arbitrated solution often goes beyond the law, but it cannot be repugnant to the law, which in many areas is the distillation of centuries of received best practice. They need not have the wide sweep of knowledge a practising lawyer must have, but they should be expert in their own patch.
Secondly they must know something about the context of business, of working relationships, of employment. Again they need not be business people. But they should be able to assess the soundness of an enterprise and an industry; they should know how people are expected to work and behave in employment.
So arbitrators have to be trained. And what makes some critics of the present system angry is that a first-class programme of training is offered by the University of Zimbabwe. Those who successfully study labour arbitration can be relied upon to have the basic skills and know how to apply them.
It also seems strange that there is no set scale of fees for arbitrators, and nobody or council that can register and grade them. We agree both are needed. The Labour Ministry, through consultation, could easily set up a sensible system that, in effect, guarantees that all parties to a dispute will get a fair shake.
Frequently in labour arbitration there is no “right answer”. The law sets boundaries but leaves a lot to negotiation. Often neither party has much experience in negotiation, so making the job of an arbitrator valuable, but only so long as they are a good arbitrator.
Sometimes a solution might need a whole revolution in how both parties view the dispute. We have all heard of industries that have a low minimum wage but plenty of steps and a lot of seniority pay.
Here a fair solution might well entail a flatter grading structure coupled with a living wage for those on the bottom of the heap. This is one reason why, in some industries trying to get through the difficulties of the currency switch, there were a number of allowances given in awards, basically giving everyone from the top manager to the man who makes his tea a similar boost in pay, rather than dealing in pure percentages.
At one time labour disputes needed to cope with colonial pay structures, of “white” jobs and “black” jobs, and there a smooth grading structure had to be imposed to replace sudden jumps in pay.
All this requires men and women with legal and business training, coupled with fairness and common sense. As there are some very good arbiters around, it should not be difficult to make all involved in what should be a profession at least competent.