Who qualifies to be an arbitrator?

Labour matters Davies Ndumiso Sibanda
My last article on arbitration raised many questions about who then qualifies to be an arbitrator with many employers and unions asking me whether they can challenge the arbitration awards that were made by arbitrators. My argument in the article was simple. It was based on the fact that parliament set minimum standards for one to be an arbitrator, that is experience and qualification in arbitration in terms of Section 98 of the Labour Act.

The Minister of Labour in terms of powers vested on him or her in terms of the Section 17 of the Labour Act removed the minimum qualifications given in the Act and put her own and made the qualifications given in the Labour Act an added advantage.

In my reading of the law this is not correct as the Minister cannot make secondary law that is capable of amending an Act of Parliament.
What the minister should have done was to make experience and qualifications in arbitration a mandatory qualification and the degree requirement should have been an added advantage otherwise it was not necessary. Alternatively the minister should have gone back to parliament to have Section 98 amended to have a degree and experience in human resources be the minimum qualification and experience in arbitration as well as qualification in arbitration be an added advantage.

I however doubt that parliament would have allowed that as it is well known that labour arbitration is a specialised field requiring more than just any degree but one must have covered a course in alternative dispute resolution to be able to handle arbitration.

This explains why in South Africa lawyers and human resources practitioners who want to handle arbitration matters do special post graduate qualifications. At the inception of The Commission for Conciliation, Mediation and Arbitration (CCMA) in South Africa, everyone involved had to undergo specialised training in conciliation and arbitration. This has also been the case in many countries including Zimbabwe with the support of ILO. However, it is these qualifications that the regulations have rejected.

The interesting bit is that we spent years building that capacity at the University of Zimbabwe and still runs that Alternative Dispute Resolution (ADR) programme which is not recognised by the regulations as a qualification to be an arbitrator unless one has a degree and two years experience in human resources. I believe it is time as a nation we focused on improving the quality of arbitration through utilising the skills of our graduates from University of Zimbabwe who hold the post graduate diploma in Alternative Dispute Resolution as many of them went through Recognition of Prior Learning.

Now turning to the legal question on who qualifies to be an arbitrator- as the law stands- anybody with a degree and two years experience in a human resources environment.
Experience in arbitration and a qualification in labour arbitration does not qualify one to be an arbitrator, these are merely an added advantage. I however believe as mentioned in my earlier article, that the regulations violate the Labour Act and until such a time someone approaches the courts over the issue the position will not change.

I cannot foresee anyone seeking registration taking the minister on, over the issue as arbitration fees are low and it will not be cost effective, however I can foresee employers and employees who will have been on the losing side of an arbitration award appealing on grounds that certain arbitrators were defectively registered especially where the arbitrator demonstrates lack of knowledge of arbitration law and principles and there is evidence that the arbitrator had no experience or qualification in arbitration at the time or registration.

In conclusion, I believe this challenge should be dealt with by employers and unions at the tripartite negotiating forum as I am of the view that the minister made the regulations in good faith but there were challenges with the drafting of the regulations.

If my reading of the law is found correct the minister should engage drafting and labour law experts before the draft law is confirmed. Furthermore, the supporting arms of the Ministry of Labour shall have appropriate skills, considering that the regulations have a lot of gaps. Lessons for example can be learnt from CCMA rules.