INSTITUTE OF ADMINISTRATION

AND COMMERCEANNUAL CONFERENCE

CARRIBEA BAY RESORT, KARIBA3 OCTOBER 2014

Originally, the concept of arbitration was seen as “a primitive form of justice mainly conceived as an institution of peace, the purpose of which was not primarily to ensure the rule of law but rather to maintain harmony between persons who were destined to live together” (R. David, 1895).

EFFECTIVENESS OF ALTERNATIVE DISPUTE RESOLUTION IN ZIMBABWE

LABOUR SYSTEM

Growing dissatisfaction with: the adversarial nature of traditional

litigation methods and outcomes. Litigation produces only winners and losers and often at very high costs

financially and emotionally.

Relations are irrevocably damaged

ORIGINS OF ADR

People are emotionally and financially damaged.

The reputation of lawyers and the justice system decline (Marshall, 1998 page 795)

These were the primary motivators to final alternative method of addressing and resolving conflicts and disputes. ADR with its win win persona appeared to fulfill the hopes of the people.

ADR includes processes such as:ArbitrationMediationConciliationNegotiations

DEFINITION OF TERMS

A method of settling conflicts whereby partiessubmit their dispute to a third party, who is not acting as a state court and who makes a binding decision. The decision normally is not required to be legally based and needs no thorough motivation

ARBITRATION

A process where a third party (the mediator) with the consent of disputing parties intervenes in a conflict. Its elements are democratic decision making, consensus on both the process and the eventual solution, self determination, voluntariness and confidentiality.

MEDIATION

Often used as a synonym of mediation since both processes are presided over by a third party.

The Chartered Institute of Arbitrators (CIArb) describes conciliation as a process whereby a Conciliator investigates the facts of the case, attempts to reconcile the opposing parties and asks them to formulate their own proposals for settlement of the case by indicating strong and weak points of their argument and the possible consequences of failure to settle.

CONCILIATION

A mutual discussion leading to an agreement. Several authors regard it as a conference more than a method of resolving a conflict.

NEGOTIATION

THE CONSTITUTION Section 65 LABOUR RIGHTS Sec 65(1) Every person has a right to fair and

safe Labour practices and standards and to be paid a fair and reasonable wage

• Section 69 RIGHT TO A FAIR HEARING 69(2) In the determination of civil rights and

obligations, every person has a right to a fair, speedy and public hearing within a reasonable time before and independent and impartial court, tribunal or other forum established by law.

The Law

69(3) Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute.

69(4) Every person has a right, at their own expense, to choose and be represented by a legal practitioner before any court, tribunal or forum.

THE LAW cont;

Sec 2A PURPOSE OF ACT1. The purpose of this Act is to advance social

justice and democracy in the workplace by-(f) securing the just, effective and expeditious resolution of disputes and unfair labour practices.

THE LABOUR ACT [CAP 28:1]

Sec 9898(2) Subject to this section, the Arbitration Act

[CAP 7:15] shall apply to a dispute referred to compulsory arbitration

98(6) The Minister, in consultation with the Senior Judge of the Labour Court and the appropriate advisory councils if any, shall from time to time prepare a list of arbitrators.

EFFECT OF REFERENCE TO COMPULSARY ARBITRATION UNDER PARTS XI AND XII

98(9) In hearing and determining any dispute an arbitrator shall have the same powers as the Labour Court.

98(10) An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section.

SECTION 98 cont

93(I) 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 parties by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the Labour Officer shall record the settlement in writing.

SECTION 93 POWERS OF LABOUR OFFICERS

(3) If the dispute or unfair labour practice is not settled within thirty days……the Labour Officer shall issue a certificate of no settlement……..

(4) After a Labour Officer has issued a certificate of no settlement, the Labour Officer, upon consulting any Labour Officer senior to him…..

(a) shall refer the dispute to compulsory arbitration.

SECTION 93 cont

Section 4 What may be arbitrated4(I) Any dispute which the parties may have

agreed to submit to arbitration.

5(2) Where an enactment provides for the determination of any matter by arbitration, the provisions of that enactment, to the extent that they are inconsistent with this Act, shall prevail.

ARBITRATION ACT [CAP 7:15]

THE ARBITRATION TRIBUNAL Legal source? Is it a Labour Court? Is it subordinate to the Labour Court? One man court. No rules

EFFECTIVENESS

Selection Training Background Integrity Competence

PERSONNEL OF THE TRIBUNAL

Execution Finality Systematic Standard

THE AWARD

Flexibility Confidentiality Enforceability Lower costs Speed Neutrality of arbitral venue

PERCEIVED ADVANTAGES OF ADR

Done after workplace hearing Legal representation at an early stage Not of any useful purpose No gain Putting cart before the horse.

DISADVANTAGES

THANK YOU FOR YOUR ATTENTION.

THE END