Should designated agents continue making draft rulings?

Davies Ndumiso Sibanda, Labour Matters
THE case Isoquant Investments t/a ZIMOCO vs Darikwa CCZ 65/17 pending before the Constitutional Court on whether Designated Agents (DAs) have audience before the Labour Court could leave our labour relations in disarray if the ruling is that they have no audience before the Labour Court.

The argument in the case is that in terms of the Labour Act Chapter 28:01 Section 93(5a) only the Labour Officer can approach the Labour Court to have his ruling confirmed.

Of late, the lower courts such as the Labour Court have removed from the roll cases where issues of the Designated Agents audience before the Labour Court is challenged until the Constitutional Court makes a judgment on the earlier mentioned matter. (See matter Silvester Chirinda vs Orchid Funeral Assurance Services Judgement No. LC/H/376/2018).

Designated Agents have relied on Section 63 of the Labour Act to make rulings.

However, the argument has been the DA is defined in section 2 as read with section 63 and a Labour Officer is defined in section 2 as read with section 121(1)(b).

Thus, the argument is that the two are different at law. While the DAs argue that they have the same powers as Labour Officers, the Constitutional Court will have to give direction.

In the event the Constitutional Court rules that the law is express in that the Labour Officer only can make a draft ruling and have it confirmed and the DA has no such powers it could mean that all rulings by DAs were a nullity leaving employers and workers to tear into each other especially where one of the parties demand compensation for payments made based on rulings by a DA.

The question is, will Parliament again intervene like the Zuva case and make retrospective legislation to legitimise actions by DAs so that their draft ruling that were confirmed by the Labour Court remain binding. That is a possibility.

They will obviously have to address pending cases and those appealed to higher courts as well.

Our biggest challenge on this matter today is whether it’s prudent for DAs to continue making draft rulings and approach the Labour Court, while they know they are standing on shaky ground, which could damage many NECs financially and from a reputation perspective.

I am of the view that DAs should desist from making draft rulings until the constitutional case on whether they have audience before the Labour Court is cleared.

One option is for DAs to persuade parties to go the arbitration route in terms of section 93(1) which reads “A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

Those who refuse the arbitration option can be advised of the risk before the DA makes a Draft Ruling and approach the Labour Court.

Further, NECs can come up with NEC codes of conduct that exclude the NEC involvement and register them urgently, and if the parties want DAs to remain involved in dispute resolution, then the codes of conduct can be express on the role of DAs other than making of rulings.

However, the problem remains with other disputes, which are outside the Code of Conduct.

Employers and workers should also not cry foul if DAs are excluded from the Labour Court as individual employers and workers can negotiate and register their own codes of conduct which will take care of most disciplinary and grievance issues.

However, my recommendations do not mean that DAs will be excluded as subsidiary legislation.

Statutory Instrument 15 of 2006 gives them the same powers as Labour officers to process cases in terms of section 93.

Admittedly, there are many legal questions there regarding whether subsidiary legislation can be used to alter a legal position set by Parliament given the fact that the Labour Act clearly defines who is a Labour Officer.

Again if we recall the Supreme Court in the Zuva case, the late Justice Chidyausiku said it’s not the business of the Courts to re-write defective legislation but parties should approach Parliament if they feel the legislation is defective.

In the present case, I believe there is a chance the court might simply say those excluded from making draft ruling remain excluded or the court might read the spirit of the legislation in section 63 and rule that DAs can approach the Labour Court to confirm ruling.

In conclusion, this is a potential explosive situation, which NECs should approach with sober mind and prepare for any eventuality while making sure the damage if any, when the constitutional makes its decision is minimal.

– Davies Ndumiso Sibanda can be contacted on:
Email: [email protected]