At the workplace Wenceslaus Murape
Lately, there have been conflicts concerning whether the Arbitration Act can be amended by the Labour Act. Questions have also been asked whether the Labour Court has the jurisdiction to entertain reviews or appeals emanating from voluntary arbitration.
This week I will examine a case that addresses these issues and involved two applicants and two respondents at the Labour Court.
The Zimbabwe Clothing Manufacturers’ Association and the Indigenous Clothing Manufacturers’ Association represented the employers and were the applicants.
The National Union for the Clothing Industry and the Clothing Industry Workers’ Union represented the workers and were the respondents. The parties negotiated for salary and benefits increase for the period April 1, 2010 to March 31, 2011.
They agreed to go for voluntary arbitration concerning the issue. The two arbitrators appointed to hear and determine the dispute found that whilst it was necessary to uplift the salaries paid by the employers, such increments should avoid “catastrophic impact on the employers.”
The arbitrators raised the salaries by 33 percent from US$110 per month to US$147. Aggrieved by the increments, the employers sought a review of the arbitral awards from the Labour Court. The workers objected to such an application being brought before the court on the basis that the Labour Court had no jurisdiction to deal with the matter. They submitted that the Labour Court was a creature of statute and, as such, derived its powers from the statute creating it.
Section 89 of the Labour Act does not confer the Labour Court with jurisdiction to deal with reviews or appeals emanating from voluntary arbitration.
The appropriate Section is 89 (1) (d i) and provides that: “The Labour Court shall exercise the following functions: exercise the same powers of review as would be exercisable by the High Court in respect of labour matters.”
This section gives the Labour Court powers to review, which are similar to the High Court’s powers of review in respect of labour matters.
The question to be asked fairly is whether the issue to be determined relates to a labour matter, and it is common cause that in this case they do.
Once the answer is in the affirmative, then the court has to look at the Arbitration Act to find whether such applications are referred to the Labour Court.
It is true that the Labour Act does not specifically provide for reviews against decisions emanating from voluntary arbitration. However, once voluntary arbitration has dealt with a labour issue, the Labour Court can hear a review of such matter in terms of Section 89 (1) (d i), provided such review is provided for under the Arbitration Act. Are there any provisions in the Arbitration Act which bar the Labour Court from entertaining review from such arbitration?
Article 34 (2) and (5) of the Arbitration Act deals with the grounds upon which a disgruntled party can seek a review of the arbitral award.
Article 34 (2) provides: “An arbitral award may be set aside by the High Court only if: (a) The party making the application furnishes proof that ( i) a party to the arbitration agreement referred to in Article 7 was under same incapacity; or the said agreement is not valid under the law to which parties have subjected it or, failing any indication on that question, under the law of Zim; or . . .
(ii) The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or . . .
(iii) The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submissions . . .
(iv) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties . . .
(b) The High Court finds that, that — (i) the subject matter of the dispute is not capable of settlement by arbitration under the law of Zimbabwe; or . . .
(ii) the award is in conflict with the public policy of Zimbabwe.”
Article 34 (5) provides: “For the avoidance of doubt, and without limiting the generality of paragraph (2) (ii) of this article, it is declared that an award is in conflict with the policy of Zimbabwe if — (a) the making of the award was induced or effected by fraud or corruption; or . . .
( c) a breach of the rules of natural justice occurred in connection with the making of the award.”
In NSSA versus Chairman Workers’ Committee and Others HH 51/02, the court held that: “. . . clearly it was the intention of the legislature that, in the case of arbitral awards, the High Court could only set aside awards in terms of the specific provisions of the Arbitration Act and not in terms of the general powers conferred (by) Sections 26 and 27 of the High Court Act.”
It follows therefore that in dealing with labour matters, it was not the intention of the legislature that Section 89 (1) (d i) of the Labour Act amends the Arbitration Act.
In other words, the Arbitration Act cannot be amended by the Labour Act.
Had the legislature intended the Labour Court to deal with the reviews from voluntary arbitration, then the Arbitration Act could have been amended to reflect such intention. It is a factual finding therefore that the Labour Court has no jurisdiction to entertain reviews or appeals emanating from voluntary arbitration. However, it is agreeable that the law as it stands does not encourage litigants to agree to arbitration.
Those workers and employers who go for compulsory arbitration have better rights than those who try to be reasonable and agree to go for voluntary arbitration. There is need to harmonise the laws in that respect.
The courts are always reluctant to interfere with an award arising from voluntary arbitration.
Fieldseld CJ in Cone Textiles (Pvt) Ltd. versus Re . . . and Org, 1983 (1) ZLR 88S at 92, had the following to say.
“The starting point is that the parties have chosen to go to arbitration instead of resorting to the courts, they have specifically selected the personnel of the tribunal and they have agreed that the award shall be final and binding. It is for these reasons that a court will always be most reluctant to interfere with the award of an arbitrator.”
The parties herein agreed to go for arbitration being alive to the provisions of the Arbitration Act that the grounds of review are limited and that such review can only be entertained by the High Court.
In terms of Article 34, any reviews are done by the High Court. Accordingly, Labour Court president Ms Loice Matanda-Moyo for want of jurisdiction dismissed the application by the employers.