adminDavis Ndumiso Sibanda Labour Matters
MANY employers and trade unionists at National Employment Council (NEC) will push for voluntary arbitration without fully comprehending the implications of voluntary arbitration and only realise their mistake when the unappealable award has been made against them.Where parties at NEC negotiations agree to take the wage dispute or any other dispute to voluntary arbitration there is a need for parties to fully understand what they are agreeing to. Voluntary arbitration follows different rules from arbitration in terms of section 93 of the Labour Act and related regulations.
The first challenge is that watertight terms of reference must be crafted clearly and be easy to understand by all concerned. Parties should be clear on that the voluntary arbitration will be final and not appealable.
Admittedly the Arbitration Act Chapter 7.15 has expressly provided grounds for appeal even in cases where the parties agree that the voluntary arbitration is not appealable, however it is not easy.
Once parties opt for voluntary arbitration, they must be clear that they have abandoned the Labour Act and related procedures and that their dispute will have to be dealt with using procedures set out in the Arbitration Act.
In the matter Zimbabwe Educational, Scientific, Social and Cultural workers union versus Welfare and Education Institutions Employers Association SC121/11, in a dispute between the parties where the Employers Association had successfully appealed to the Labour Court and the union subsequently approached the Supreme Court citing lack of jurisdiction on the part of the Labour Court, the Supreme Court ruled that where parties elect the voluntary arbitration route then the matter cannot be appealed to the Labour Court but to the High Court as directed by the Arbitration Act.
This judgment brings out clearly the fact that an appeal against voluntary arbitration award will be a full and final order as the purpose of voluntary arbitration is to bring matters to finality.
I am of the view that the cited judgement puts a lot of pressure to parties to adequately prepare for voluntary arbitration, parties must be aware of the risks involved, the need to be thorough when preparing terms of reference, the need to select arbitrators with capacity to meticulously stay within the terms of reference. Arbitrators must be individuals who understand issues in dispute and are conversant with the Arbitration Act procedures.
Further, parties have to thoroughly work on their arbitration submissions, making sure that the written submission is clear and easy to follow. This must be supported by a quality oral presentation. It must be noted that not all employer representatives or trade union representatives are good at presentation.
Where a party is not happy with an arbitration award, there is a need to check to the Arbitration Act whether there are any legal grounds to appeal. Otherwise it could be futile exercise. Instances when one can appeal against a voluntary arbitration award are expressly given in the Arbitration Act.
It is very rare that one can successfully appeal a voluntary arbitration award thus we say generally it is not appealable.
Parties that opt for voluntary arbitration should be clear of the implications of the route they have chosen. Workers and employers should be told that the arbitrators decision is final and is not appealable unless the arbitration agreement has a cause that allows for appeal. Let the parties take the gamble with the principals aware of the consequences.
In conclusion, parties have to use voluntary arbitration if it is the best route to extinguish the particular labour dispute.
The danger of voluntary arbitration is that it can legally bring a matter to rest but on the ground it leaves the parties with worse labour relations problems. It is not the panacea for all labour relations disputes.
Davies Ndumiso Sibanda can be contacted on: email: [email protected]. Or cell No: 0772 375 235.
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