06/30/2021

REGIONAL GUIDELINES ON LABOUR DISPUTE PREVENTION

AND RESOLUTION IN SADC

IMPROVING PERFORMANCE FOR INDUSTRIAL PEACE

AND ECONOMIC DEVELOPMENT

FUMANE `MALEBONA KHABO

TABLE OF CONTENTS
EFFECTIVE AND EFFICIENT LABOUR DISPUTE PREVENTION AND
RESOLUTION IN PRINCIPLE
1. AN OVERVIEW

ABBREVIATIONS
ADR

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1. EFFECTIVE AND EFFICIENT LABOUR DISPUTE PREVENTION AND
RESOLUTION IN PRINCIPLE
AN OVERVIEW

Conflicting interests between employers and employees often result in disputes.

However, frequent and prolonged labour disputes can have a negative impact on
industrial growth, economic development and the overall socio - political
stability of any country1 and must therefore be prevented or resolved
expeditiously. At the heart of labour dispute settlement mechanisms, guided by
standards set out by the International Labour Organisation (ILO) is the
promotion of social justice which incorporates principles of access to justice
and decent work. Establishing effective labour dispute settlement processes is
key to minimising the occurrence and consequences of workplace conflict 2 for
an atmosphere of industrial peace, conducive to economic development. Ideally,
such processes must, first and foremost aim at prevention and obviate the need
for third - party intervention and prevent strikes or lockouts.
Conflicts can be prevented from arising or escalating into major disputes
through such preventive measures as consultation, negotiation, collective
bargaining, information sharing, joint problem solving, dialogue, and labour
inspections. Where despite having preventive measures at the shop - floor, a
dispute arises, it is best resolved through consensus - based initiatives which
primarily include negotiation, joint problem solving and collective bargaining.
These are conflict management initiatives where disputes are primarily resolved
through the efforts of the disputing parties themselves and are geared more
towards the maintenance and improvement of the employer /employee
relationship.
Sometimes despite the best efforts of the parties, preventive or in - house
dispute resolution measures fail leading to a deadlock. Resort can be had to
third - party intervention in the form of alternative dispute resolution (ADR)
otherwise referred to as alternative dispute settlement (ADS) mechanisms and
adjudication. These third - party intervention mechanisms must provide a
platform in which labour disputes can be resolved in an expeditious, informal,
accessible and cost - effective manner. ‘Many of the regional labour courts have
been criticised for having lengthy and cumbersome processes and extensive
technical procedures and formalities.’3 ADR in the form of
conciliation/mediation and/or arbitration is preferred over court - based methods
1
Samuel J. Goolsarran : Labour Administration Services in the Caribbean: A Guide, 2 nd ed., ILO, Caribbean,
2005 p. 47
2
Labour Dispute Systems - Guidelines for improved performance, International Training Centre of the ILO,
Turin, 2013, Foreword.
3
Christie S., & Madhuku L., (eds) Labour Dispute Resolution in Southern Africa, Friedrich Ebert Stiftung & the
Institute of Development and Labour Law, University of Cape Town (1996) at p. 11

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which are adversarial in nature, technical, lengthy, risky, burdensome, costly,
and can be very intimidating.
ADR processes seek to encourage disputing parties to discuss their differences
with a view to assisting them develop their own negotiated solution to the
problem. Conciliation can function not only as a dispute resolution tool but also
as a means of dispute prevention in that by facilitating and promoting
communication between disputing parties, a dispute can be prevented from
escalating. Conciliation has shown such positive results that it has now
permeated the judiciary in the form of court - annexed mediation.
Despite the obvious advantages of ADR, courts of law still have a vital role to
play in the resolution of labour disputes, hence the establishment of Labour
Courts. As it is, not all disputes lend themselves well to conciliation or
mediation. Hence, it is very critical that the two systems complement each
other, instead of being antagonistic or competitive with each other. Essentially,
if parties are not ready and willing to negotiate, mediation cannot take place.
Parties will not participate constructively if they are forced to engage. As
observed by Timothy Hedeen4 the “magic” behind the success of mediation is
its voluntary nature which has shown to lead to higher settlement rates and
greater adherence to settlement terms. It can also depend on the nature of the
dispute at hand.
The words mediation and conciliation have been used interchangeably in the
paper, and Labour Court to refer to the Industrial Court, Industrial Relations
Court and the Employment Tribunal as used in the region, for ease of reference.
The value and significance of any ADR or court - based system depends on its
effective implementation and practical impact. In order to evaluate and assess
the adequacy of the current labour dispute settlement machinery in the SADC
region, it is important to analyse the situation on the ground against ILO
standards and other global benchmarks.
2. AN ANALYSIS OF EXISTING LEGAL AND INSTITUTIONAL
FRAMEWORKS FOR SETTLEMENT OF LABOUR DISPUTES IN THE SADC
REGION

All SADC Member States5 are members of the ILO. Their labour legislation
frameworks have been developed in line with principles enunciated by the ILO
through its standard setting machinery, namely, its Conventions and
Recommendations. These standards, among others, promote ADR mechanisms
including collective bargaining as fundamental to effective and efficient
4
The Justice System Journal (2005) Vol. 26, Issue 3 p. 275 cited in Prof A. Fiadjoe???, 2004 “Alternative
Dispute Resolution: A Developing World Perspective”
5
Angola, Botswana, Comoros, Democratic Republic of Congo, Eswatini, Lesotho, Madagascar, Malawi,
Mauritius, Mozambique, Namibia, Seychelles, South Africa, Tanzania, Zambia, Zimbabwe.

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settlement of labour disputes. The main aim of international labour standards is
to protect human rights at work with the overarching objective of improvement
of working conditions, all in pursuit of social justice and decent work.
The traditional way of resolving labour disputes was generally court - based,
hence, in most Member States, the establishment of Labour Courts preceded the
formation of ADR mechanisms. To this end, Labour Courts were established
around the same time in Botswana established the Industrial Court through the
Trade Disputes (Amendment) Act, 1992, Lesotho, the Labour Court through the
Labour Code Order, 1992, Namibia - the Labour Court through the Labour Act,
1992 and Eswatini - the Industrial Court through the Industrial Relations Act,
1980, Seychelles, Angola Mauritius, Malawi - in the Constitution, 6 the
Industrial Relations Court established through ILO assistance.
South Africa with the establishment of the Industrial Court in 1956. 7 South
Africa will need a brief explanation because of its history. The earlier
legislation, the Industrial Conciliation Act, 1924 introduced Industrial Councils
and Conciliation Boards, which did not cover black employees. The Industrial
Court was first introduced in 1956 as aforementioned. The … Act was
introduced following the Wieham Commission and redrafted with the
democratic dispensation as the Labour Relations Act, 1995 which established,
among others, the labour Court, CCMA, introduction of private dispute
resolution agencies accredited to the CCMA, and covered both private and
public sector employees and Tanzania were rather ahead.8
Prior to the establishment of Labour Courts, labour matters were handled by
generalised Courts, a factor lamented by one of the esteemed scholars, Lord
Wedderburn9 who yearned for a “new kind of judiciary which will assert and
develop an autonomous labour law freed from the property - based concepts,
procedures and habits of the common law.” The common law was fraught with
arbitrariness, for instance, there was no need for an employer to justify a
dismissal as long as it was preceded by the requisite notice. The fairness or
otherwise of the dismissal was not an issue. These are the kind of equity issues
which inspired the establishment of specialised Courts which better appreciated
the foundations and the spirit behind labour law, and a quest for a speedy,
informal and equitable system that would develop labour law jurisprudence and
promote enforcement of ILO standards.
However, as things evolved, the virtues of ADR mechanisms prevailed over
Court - based processes, culminating in the birth and promotion of ADR
mechanisms in the region despite the existence of specialised Courts. The winds
6
Section 110 of the Constitution of Malawi, 1995
7

8
1967 industrial Court
9
Hepple B., Labour Courts: Some Comparative Perspectives (1988) 41, Current Legal Problems at p. 167

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of change blew strongly in favour of ADR mechanisms for efficient and
effective dispute resolution. Fenwick10 considered the new approach non -
confrontational and based on user - friendly procedures that suit the parties to
labour disputes instead of adversarial court - based methods (referring to then
incoming Labour Act, 2007 of Namibia).
2.1 PREVENTIVE MEASURES

(a) Enterprise level

 Shop - floor Level Consultative Process - Bipartite
This process affords workers and employers at the level of the undertaking an
opportunity to consult on matters of mutual interest to them outside the scope of
collective bargaining (trade union involvement) in order to engender co-
operation, commitment, and good industrial relations. It plays an important role
of preventing and resolving labour disputes at source and help inculcate a
culture of voluntary bargaining. A great number of disputes are resolved at the
enterprise level through dialogue and consultation between employers and
employees. These mechanisms may be formalised by law into in - house
workplace forums.
These are bi-partite consultative arrangements to promote participatory
management of the workplace through information sharing, consultation, and
joint problem solving to address issues such as restructuring of the workplace,
changes in the organisation of work. These can play a pivotal role in preventing
and resolving disputes that may arise. Examples include provisions for the
establishment of Works’ Councils in Botswana, Eswatini, and Zambia.
Madagascar Works’ Councils.11 In the absence of a recognised or registered
trade union or staff association, these help employee representatives negotiate
for employees, thus serving not only the interests of union members but of all
employees in the particular establishment. In Lesotho, the law is silent on these
arrangements resulting in industrial relations that continue to be State directed
and dominated.
 Prevention of Disputes through Collective Bargaining
Most countries in the region have in place laws aimed at encouraging collective
bargaining as a means of regulating relations between employers and employees
and preventing and settling disputes between them. Through collective
bargaining agreements employers and employees determine conditions of
employment and may even bargain for improved terms and conditions of
employment beyond the floor of rights prescribed by law. Bargaining may occur
at an enterprise or sectoral level and it is a very effective tool in the promotion
10
Fenwick C., Labour Law in Namibia, 2007 p. 40
11
Decree No. 2005 - 728 of 2005

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of collective bargaining. At the sectoral level it can happen through a
Bargaining Council to negotiate on behalf of employees within an industry
where it is sufficiently representative.
To this end, the Labour Relations Act in South Africa provides for the
establishment of Bargaining Councils at the industry level. In terms of Section
51 of the Labour Relations Act12 they are mandated to resolve disputes within
their sectors, a power that complements the work of CCMA thereby reducing its
caseload and backlog. These were formally known as Industrial Councils, but
were renamed to Bargaining Councils to reflect coverage beyond industries and
the private sector to include the public sector. In Eswatini the law provides for
the establishment of Joint Negotiation Councils (JNCs) which have a duty to
negotiate for all employees in a particular sector, 13 and in Botswana for Joint
Industrial Councils (JICs), whose objective is to promote the development of
voluntary agreements covering terms and conditions within an industrial sector
to facilitate collective bargaining.14 The same position holds for the Botswana
Joint Industrial Councils (JICs) and the Public Service Bargaining Council
under established under the Public Service Act.15 Namibia, ...??
 The Right to Strike/ Lockout
Where collective bargaining has failed, workers may resort to a strike action to
remedy a grievance or resolve a dispute, and an employer may lockout its
premises. Strikes and lockouts are essential elements of collective bargaining
and are entrenched as a right in most countries, but this right may be subject to
conciliation procedures aimed at fostering dialogue between disputing parties
and exploring the prospects of averting the strike because of its adverse effects
on the economy. The right to strike or lockout emanates from Article 3 of the
ILO Convention on Freedom of Association and Protection of the Right to
Organise16 which affords employers’ and workers’ organisations, among others,
the right to organise their administration and activities and to formulate their
programs without interference by public authorities.
The right to strike or lockout recognised as a right in Botswana, 17 South Africa,
Seychelles, Comoros, Mauritius,18 Madagascar19 as long as it is undertaken
within the prescribed precincts of the law. In South Africa, 20 Eswatini,21

12
Act No.,, of 1994
13
Section 45 of the Industrial Relations Act, 2000 (as amended)
14
Section 36 (1) of the Trade Disputes Act [48:02], 2004 (re - enacted)
15
Section 50 of the Public Service Act {26:02], 2010 (re - enacted)
16
C087 - Freedom of Association and Protection of the Right to Organise Convention, 1947 (No. 87)
17
Section 39 (1) of the Trade Disputes Act [48:02], 2004
18
Section 76 (1) of the Employment Relations Act, 2008
19
Section 228 - 231 of the Labour Code, 2004
20

21
Section 87 (4) of the Labour Relations Act, 2000

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Namibia22 the law is explicit that a worker who has acted in accordance with the
law, is not in breach of his or her contract of employment. It is considered a
protected strike, and an employee may not be dismissed for participating in such
a strike. However, the employer has no obligation to remunerate an employee
for services not rendered during a strike or lockout. In Lesotho there is no
concept of a protected strike. A strike declared in accordance with the Labour
Code is legal, but an employee may be liable to a breach of the contract of
employment, a position that obtained in the common law.
 Settlement of Disputes in Essential Services
The right to strike or lockout Essential services are defined as …. Trade
Disputes Act It is a Definition prone to disputes, Committee to identify
problems resolve and guarantee against unnecessarily disruptive industrial
action. Whether in the private or public sector services such as health,
education, utilities, telecommunications, police and fire -fighting considered as
essential because they sustain the well - being of the society. Most member
States have put in place some measures to ensure the continuous delivery of
services in areas they consider as essential, There are tripartite structures in the
region for pre - emptive disputes prevention measures in this area that
“endanger lives.”23LRA (as amended in 2014)24 provides for the establishment
of an Essential Services Committee (ESC)25 “to promote effective dispute
resolution in essential services” RSA Essential Services Committee
qualifications of members of the committee designated to must be people who
are conversant with the realities of the workplace. which has one of its mandate:
promotion of effective dispute resolution in essential services including the
determination of which services are designated as essential. The Committee is
established by the Minister of Labour, after consultation with the National
Economic Development and Labour Council (NEDLAC) which falls under the
auspices of the Commission for Conciliation, Mediation and Arbitration
(CCMA). Members of the ESC must have suitable qualifications or experience
in labour law, labour relations, commerce, public affairs, the administration of
justice, industry or the economy. SA Namibia established the Essential Services
Committee
Zambia26Minister in consultation with the Tripartite Consultative Labour
Council prescribe what constitutes an essential service.
Tanzania – May be PREVENTIVE MEASURES
(a) Enterprise level
22
Section 76 (1) of the Labour Act, 2007
23
ILO
24
Labour Relations Amendment Act, 2014
25
Section 70 of the Labour Relations Act
26
Section 107 of the Industrial and labour Relations Act, 1993

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  Shop - floor Level Consultative Process - Bipartite
This process affords workers and employers at the level of the undertaking an
opportunity to consult on matters of mutual interest to them outside the scope of
collective bargaining (trade union involvement) in order to engender co-
operation, commitment, and good industrial relations. It plays an important role
of preventing and resolving labour disputes at source and help inculcate a
culture of voluntary bargaining. A great number of disputes are resolved at the
enterprise level through dialogue and consultation between employers and
employees. These mechanisms may be formalised by law into in - house
workplace forums.
These are bi-partite consultative arrangements to promote participatory
management of the workplace through information sharing, consultation, and
joint problem solving to address issues such as restructuring of the workplace,
changes in the organisation of work. These can play a pivotal role in preventing
and resolving disputes that may arise. Examples include provisions for the
establishment of Works’ Councils in Botswana, Eswatini, and Zambia.
Madagascar Works’ Councils.27 In the absence of a recognised or registered
trade union or staff association, these help employee representatives negotiate
for employees, thus serving not only the interests of union members but of all
employees in the particular establishment. In Lesotho, the law is silent on these
arrangements resulting in industrial relations that continue to be State directed
and dominated.
 Prevention of Disputes through Collective Bargaining
Most countries in the region have in place laws aimed at encouraging collective
bargaining as a means of regulating relations between employers and employees
and preventing and settling disputes between them. Through collective
bargaining agreements employers and employees determine conditions of
employment and may even bargain for improved terms and conditions of
employment beyond the floor of rights prescribed by law. Bargaining may occur
at an enterprise or sectoral level and it is a very effective tool in the promotion
of collective bargaining. At the sectoral level it can happen through a
Bargaining Council to negotiate on behalf of employees within an industry
where it is sufficiently representative.
To this end, the Labour Relations Act in South Africa provides for the
establishment of Bargaining Councils at the industry level. In terms of Section
51 of the Labour Relations Act28 they are mandated to resolve disputes within
their sectors, a power that complements the work of CCMA thereby reducing its
caseload and backlog. These were formally known as Industrial Councils, but
27
Decree No. 2005 - 728 of 2005
28
Act No.,, of 1994

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were renamed to Bargaining Councils to reflect coverage beyond industries and
the private sector to include the public sector. In Eswatini the law provides for
the establishment of Joint Negotiation Councils (JNCs) which have a duty to
negotiate for all employees in a particular sector, 29 and in Botswana for Joint
Industrial Councils (JICs), whose objective is to promote the development of
voluntary agreements covering terms and conditions within an industrial sector
to facilitate collective bargaining.30 The same position holds for the Botswana
Joint Industrial Councils (JICs) and the Public Service Bargaining Council
under established under the Public Service Act.31 Namibia, ...??
 The Right to Strike/ Lockout
Where collective bargaining has failed, workers may resort to a strike action to
remedy a grievance or resolve a dispute, and an employer may lockout its
premises. The right emanates from Article 3 of Convention No. 87 32 which
establishes the right of workers’ organisations to organise their administration
and activities and to formulate their programmes without interference by public
authorities. Strikes and lockouts are essential elements of collective bargaining
and are entrenched as a right in most countries. The right may, however, be
exercised only after a conciliation procedure has been exhausted, because of its
adverse effects on the economy. The right to strike or lockout recognised as a
right in Botswana,33 South Africa, Seychelles, Comoros, Mauritius,34
Madagascar35 as long as it is undertaken within the prescribed precincts of the
law. In South Africa,36 Eswatini,37 Namibia38 the law is explicit that a worker
who has acted in accordance with the law, is not in breach of his or her contract
of employment. It is considered a protected strike, and an employee may not be
dismissed for participating in such a strike. However, the employer has no
obligation to remunerate an employee for services not rendered during a strike
or lockout. In Lesotho there is no concept of a protected strike. A strike declared
in accordance with the Labour Code is legal, but an employee may be liable to a
breach of the contract of employment, a position that obtained in the common
law.
 Settlement of Disputes in Essential Services
The right to strike may be prohibited in services considered as essential to the
health, safety and well - being of the society. What constitutes an essential
29
Section 45 of the Industrial Relations Act, 2000 (as amended)
30
Section 36 (1) of the Trade Disputes Act [48:02], 2004 (re - enacted)
31
Section 50 of the Public Service Act {26:02], 2010 (re - enacted)
32
Freedom of Association ..
33
Section 39 (1) of the Trade Disputes Act [48:02], 2004
34
Section 76 (1) of the Employment Relations Act, 2008
35
Section 228 – 231 of the Labour Code, 2004
36

37
Section 87 (4) of the Labour Relations Act, 2000
38
Section 76 (1) of the Labour Act, 2007

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service depends to a large extent on the circumstances prevailing in a particular
country. The CFA has held that in order to determine situations in which a
strike could be prohibited, the criteria which is to be met is the existence of a
clear and imminent threat to the life, personal safety or health of the whole or
part of the population.39 The CFA has considered the following services as
essential Trade Disputes Act It is a Definition prone to disputes, Committee to
identify problems resolve and guarantee against unnecessarily disruptive
industrial action. There are tripartite structures in the region to address disputes
in this area Pre - empt and prevent disputes in this area that “endanger the
lives”40LRA (as amended in 2014)41 provides for the establishment of an
Essential Services Committee (ESC)42 RSA Essential Services Committee
qualifications of members of the committee designated to must be people who
are conversant with the realities of the workplace. which has one of its mandate:
promotion of effective dispute resolution in essential services including the
determination of which services are designated as essential. The Committee is
established by the Minister of Labour, after consultation with the National
Economic Development and Labour Council (NEDLAC) which falls under the
auspices of the Commission for Conciliation, Mediation and Arbitration
(CCMA). Members of the ESC must have suitable qualifications or experience
in labour law, labour relations, commerce, public affairs, the administration of
justice, industry or the economy. Namibia established the Essential Services
Committee
Zambia-

ILO supervisory bodies43 pointed out that the “”recognition of the principle of
freedom of association does not necessarily imply the right to strike … The
Committee on Freedom of Association has called attention to the abuses that
might arise out of an excessively wide definition of the term “essential services”
and suggested that the prohibition of strikes be confined to services which are
essential in the strict sense of the term.” right have warned that a balance should
be struck between declaring services as essential with the fundamental rights of
workers to participate in the determination of their conditions of work in a
meaningful way.

39
ILO General Survey on the Application of the Conventions on Freedom of Association and on the Right to
Organize and Collective Bargaining, Report3 (Part 4B) of the Committee of Experts on the Application of
Conventions and Recommendations to the 58 th Session of the International Labour Conference (1973) para.
779
40
ILO
41
Labour Relations Amendment Act, 2014
42
Section 70 of the Labour Relations Act
43
CEACR, General Survey, 1973

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In Eswatini there is the Essential Services Commission, a tripartite structure to
advise the Government on a wide range of issues relating to this sector.
ESSENTIAL SERVICES - Botswana - Minister if it involves an essential
service - Section 9 of the Trade Disputes Act, where parties request, parties are
from an essential service or the dispute of interest the Labour Commissioner
shall appoint an Arbitrator the arbitration process is given thirty (30) days.

In Eswatini there is the Essential Services Commission, a tripartite structure to

advise the Government on a wide range of issues relating to this sector.
ESSENTIAL SERVICES - Botswana - Minister if it involves an essential
service - Section 9 of the Trade Disputes Act, where parties request, parties are
from an essential service or the dispute of interest the Labour Commissioner
shall appoint an Arbitrator the arbitration process is given thirty (30) days.
(b) National Level
 Labour Inspection Services
Labour inspections play a very critical role in the prevention of labour disputes
and enforcement of labour law. Labour inspection services are an integral part
of labour administration. It is very important for Ministries of Labour to achieve
the desired outputs in all its core functions including inspection services, and for
Labour Inspectors to appreciate their role in the Labour dispute resolution
process. They contribute directly to the implementation and observance of
labour laws. Most, if not all, Member States have inspection services within
their Ministries of Labour and some have ratified the Labour Administration
Convention,44 and the Labour Inspection Convention.45
The capacity of labour inspection services is, however, limited by resource
constraints and their scope seems to be confined to the formal sector. This might
be attributable to a lack of understanding of the important role labour inspection
services play. In practice some of the disputes that come to light during labour
inspection visits. Since most of the labour disputes are solved at the workplace,
Labour Inspectors render advice to both employers and workers at the
workplace in respect of compliance with labour legislation, minimum wages
and the importance of bargaining for better wages and standards in the
improvement of productivity, safety issues other aspects of labour law.
2.1 LABOUR DISPUTE RESOLUTION MECHANIISMS IN PLACE
(a) ALTERNATIVE DISPUTE RESOLUTION

44
C 150 - Labour Administration Convention, 1978 (No. 150) Ratifications - Democratic Republic of Congo
Rwanda, Lesotho, Namibia, Malawi, Mauritius, Seychelles, Zambia, Zimbabwe,
45
C 081 - Labour Inspection Convention, 1947 (No. 81)

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(i) Conciliation/ Mediation
Traditionally, conciliation of labour disputes has been the responsibility of
Departments of Labour. Some Member States have maintained this position.
Although conciliation services differ from country to country, they tend to fall
into one of the following categories:
 Those Provided by the Ministries of Labour
Under this regime, where grievances or disputes fail to be resolved in the
workplace, they may be reported to the Ministry of Labour for mediation and or
arbitration. These are countries where the Ministries of Labour are charged
with, among others, the responsibility to mediate over labour disputes. These
include Botswana,46 Zambia,47 Angola48 Malawi,49 Seychelles,50 Zimbabwe51 and
Madagascar,52 Comoros53Angola presents a rather peculiar case where a
distinction is drawn between conciliation and mediation, labour disputes fall
under the jurisdiction of provincial Labour Courts, but parties may approach the
General Inspectorate of Labour for mediation, or refer the matter for private
arbitration.54 The Namibian case is also not common as it establishes Arbitration
Tribunals manned by public officers that operate under the auspices of the
Labour Commissioner’s office as contemplated by its Constitution 55to handle
disputes where conciliation has failed.
Under this regime, if the mediation process is successful, a settlement
agreement is recorded, and becomes enforceable with modalities differing in
different countries.
 Challenges Posed by the System
Labour Commissioners are public officers, ultimately responsible to the
Minister responsible for labour. This has implications on their professional
independence and impartiality in the performance of their statutory functions
and compromises the autonomy of their institutions because they are susceptible
to the Minister’s overall political authority. This is more so in situations where
the law regulates the public sector as well as in Botswana. Where a case
involves a Government department, it is rather intimidating on the mediator or
46
Under the Trade Disputes Act, 2004 (48:02) Re - enacted
47
Employment Act, Cap. 268 of the Laws of Zambia - Ministry of Labour and Social Security
48
General Labour Law (7/15) Ministry of Public Administration, Employment and Social Security (General
Inspectorate of Labour)
49
(Principal Secretary responsible for Labour)
50
(Ministry of Labour and Social Affairs)
51
(Ministry of Labour and Social Welfare,
52
Labour Code (N0. 2003 -044), 2004
53
Section 219 of the ???
54
General Labour Law of 15th September, 2015 (7/15) repealing the General Labour Law (2/ 00) of 11 th
February, 2000
55
Article 12 (1) (a) of the Namibian Constitution and Section 85 (2) of the Labour Act, 2007

Page | 12
arbitrator who is a public officer. Granted, officers might be doing their best to
carry out their conciliation/mediation roles fairly and efficiently, but perceptions
of users of the systems is paramount, as dictated by the legal precept - “justice
should not only be done, but must also be seen to be done.”
Furthermore, Labour Departments are generally poorly equipped because of the
low budget often allocated to them in most countries. This hampers their
capacity to undertake such proactive preventive measures as labour inspections
or put in place effective and efficient ADR mechanisms. They are not
considered as important, because they are not perceived as income generating, if
they do, perhaps through fees from the issuance of work permits/ employment
certificates, it is considered insignificant by many in the executive. This
overlooks the social justice role that they play, and why they are there in the
first place. In some countries in the region the Ministries of Labour have large
portfolios, as with the Ministry of Labour and Home Affairs in Botswana, when
it comes to allocation of funds the many departments that fall under the
Ministry compete for funds.
It is recommended that the Ministry of Labour and by implication the office of
the Labour Commissioner concentrate on labour administration which is
defined as “public administration activities in the field of national labour
policy.”56 The office just has too much on its shoulders, to name but a few,
labour inspections, national employment services, safety and health issues,
social security, reports to the ILO on Core and ratified Conventions, and co -
ordination of the various tripartite structures. Offloading the office with labour
dispute settlement would make them more focused on labour policy issues, ease
its burden and be in keeping with the global trend towards the establishment of
autonomous ADR structures.
(ii) Independent Institutions Funded by the State
This is where conciliation and arbitration services are offered by independent
and autonomous State funded institutions, rendering a free service in line with
the Voluntary Conciliation and Arbitration Recommendation57 which
recommends the establishment of voluntary conciliation machineries whose
procedures are free of charge. These include Lesotho - Directorate of Disputes
Prevention and Resolution (DDPR),58 Eswatini - Conciliation, Mediation, and
Arbitration Commission (CMAC),59 South Africa - Commission for
Conciliation, Mediation and Arbitration (CCMA) 60 and Tanzania - Commission

56
Article 1 (b) of C150 - Labour Administration Convention, 1978 (No. 150)
57
R092 - Conciliation and Arbitration Recommendation, 1951 (No. 92)
58
Section 46B (1) of the Labour Code (Amendment) Act, 2000
59
Section 62 (1) of the Industrial Relations Act, 2000
60
Section 112 of the Labour Relations Act, 1995

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for Mediation and Arbitration (CMA) 61 Mauritius - Commission for
Conciliation and Mediation (CCM).
(iii) Private ADR Institutions
Private arbitration may take two forms. One that is established and operate
under the auspices of legal framework regulating labour ADR forums, and one
that is under the general Arbitration Act, which regulates all forms of
arbitrations. for instance, South Africa has the Arbitration Act, 1965, and
Lesotho Arbitration Act, 1980 and those accredited under the CCMA the
Labour Relations Act. The latter is, however, not very popular in the labour law
arena, perhaps because labour ADR forums are well grounded.
Private arbitration is an alternative method of voluntary dispute resolution
available to disputants which provides a valuable complementary dispute
resolution role in augmenting ADR institutions provided by the State. One of its
advantages is that it provides privacy. These include entities such as the
Independent Mediation Services of South Africa (IMSSA), a non -
governmental organisation (NGO) which predates democratic South Africa,
since dissolved and Tokiso, the Arbitration Foundation of South Africa which
offer private mediation and arbitration services.
In Botswana there is the Botswana Institute of Arbitrators as one of the main
bodies that offer and conduct alternative dispute resolution proceedings,
although parties are not obliged to use this or other bodies unless they have
agreed to do so. Madagascar has the Arbitration and Mediation Centre of
Madagascar created in 2000 as an independent arbitration organisation with a
separate legal entity and organises mediation and arbitration proceedings for
domestic and international disputes. Mozambique - Centre for Arbitration,
Conciliation and Mediation. Zambia, - Centre for Dispute Resolution. In
Namibia private arbitration is permissible by agreement of both parties through
an application to the Labour Commissioner.62 Similarly, in Angola an
employment dispute may go directly to voluntary arbitration.63
2.2 Arbitration

As it is, arbitration is more like adjudication except that it is more informal and
less adversarial in the manner in which it is conducted. It is inquisitorial in
nature. It is an Arbitrator’s task to find out the truth by asking questions
requiring parties to produce either oral, documentary or other forms of evidence
that may lead to a just and expedited determination of the dispute. In most
countries ADR involves a two - stage process, combining conciliation and
arbitration (Con - arb) which entitles parties to move to arbitration as soon as
61
Section 12 of the Labour Institutions Act, 2004
62
Section 91, Part D of the Labour Act, 2007
63
Angola Arbitration

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conciliation or mediation fails. As soon as disputing parties cannot agree at the
conciliation stage, they have to submit to binding arbitration which could even
be on the same day. It is the most appropriate process as it is time and cost
saving, and avoids unnecessary delays brought about by postponements.
In Tanzania64 and Lesotho65 the same officer who attempted to conciliate the
dispute, presides over the arbitration process. In contrast, in Zimbabwe it is not
the same Arbitrator. It is explicitly provided in the law that a Labour Officer
who attempted to conciliate the dispute which is referred to arbitration shall not
be appointed an arbitrator in that dispute. 66 In South Africa, the law provides
that a Commissioner who resolves the dispute by arbitration may be the same
person who attempted to resolve the dispute through conciliation. 67 Any party to
the dispute may object to the arbitration being conducted by the Commissioner
who attempted to resolve the dispute through conciliation.68 It is, therefore, not
mandatory to use the same person in arbitration who attempted conciliation. The
Con-arb process is popular as it is deemed speedier and reduces costs. Some
people consider the conciliation process to be a waste of time in that not
everyone is prepared for settlement and some want to go straight to arbitration.
Some feel the process somehow influences an arbitrator’s decision because of
his familiarity with the merits of the case and the attitudes of the parties towards
the dispute. These arguments still reflect an obsession with court-based
processes.
The Labour Court in South Africa supervises private arbitrations by Bargaining
Councils, statutory councils and accredited private agencies.69
3.2 ADJUDICATION

 Specialised Courts
Some Member States have in place specialised Labour Courts with an emphasis
on fairness, informality, expediency and accessibility (Botswana, Eswatini,
Lesotho, South Africa) some specifically established as both Courts of law and
equity, South Africa,70 Botswana, Seychelles, Malawi, Mauritius, Madagascar
and Eswatini.
Some jurisdictions require that judges possess a specialised qualification in
labour law whilst others do not. In Botswana, Industrial Court Judges are to be
appointed from among persons possessing the qualifications to be Judges of the

64
Rule 18 Government Notice No. 64 of 2007
65
Section 21 (2) of the Labour Code (Directorate of Disputes Prevention and Resolution) Regulations, 2011
66
Section 98 (5) (b) Zimbabwe Labour Act
67
Section 136 (2) of the Labour Relations Act, 1995
68
Section 136 (3) supra (as amended)
69
Arbitration Act ????
70
Section 151 (1) of the Labour Relations Act, 1995

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High Court,71 but not necessarily a specialised qualification in labour law. In
Lesotho, presiding officers of the Labour Court have to be persons qualified in
law with experience in labour relations. 72 The Law does not require specialty in
labour law in respect of judges of the Labour Appeal Court. It simply provides
that a judge of the Labour Appeal Court shall be a judge of the High Court
nominated by the Chief Justice in consultation with the Industrial Relations
Council.73 Likewise in Eswatini, there is no requirement to possess a specialist
qualification in labour law. This in in sharp contrast to South Africa where the
law requires judges of the Labour Court to have knowledge, experience and
expertise in labour law.74
In some, labour disputes are handled by the High Court, with a specialised
labour division. These include Tanzania in which from the Commission for
Mediation and Arbitration, matter may be taken to the High Court’s labour
division, then to the Court of Appeal, the same applies to Namibia where the
Labour Court has been established as a division of the High Court to determine
appeals from arbitration awards,75 with no dedicated specialist judges. Any
judge of the High Court may be appointed to sit as a Labour Court judge. In
Lesotho, the Labour Appeal Court is not necessarily specialised, any High
Court judge may sit to determine reviews and appeals from the Labour Court or
hear any administrative action taken in the performance of any function in terms
of the Labour Code or any other labour law, and it may hear a matter as a Court
of first instance.76 In Zimbabwe, from arbitration, an appeal on a question of law
lies with the Labour Court, 77 and in turn an appeal against decisions of the
Labour Court lies to the Supreme Court,78 in Zambia - Industrial Court -
Constitution of Zambia - Amendment Act No. 2 of 2016 Establishment of the
Industrial Court Section 133 (2) ??Malawi from the Industrial Relations Court
appeals lie with the High Court.
This system tends to compromise efficient resolution of labour issues as they
require specialisation and arbiters vested with specialised skills to handle labour
disputes effectively.79 Eswatini’s and South African position is enviable in this
regard. The former has an Industrial Court, and an Industrial Court of Appeal,
and the latter the Labour Court and the Labour Appeal share similarities in that
there is a specialised Court beyond the High Court. In Botswana a judge of the
Industrial Court must possess qualifications equivalent to those of High Court
71
Section 17(3) Trade disputes (Amendment) Act
72
Section 23 (2) of the Labour Code Order, 1992
73
Section 38 (3) (a) of the Labour Code (Amendment) Act, 2000
74
Section 153 (6) (b) of the Labour Relations Act, 1995
75
Section 115 of the Labour Act, 2007
76
Section 38A (3) of the Labour Code (Amendment) Act, 2000
77
Section 98 (10) of the Labour Act, … Zimbabwe
78
Section 92D of the Labour Act [Chapter 28: 01]
79
Khabo FM - Collective Bargaining and Labour Dispute Resolution : Is SADC Meeting the Challenge, 2008, at
p.14

Page | 16
judges as prescribed in the Constitution.80 By implication, such a judge does not
necessarily have to possess specialist labour law qualifications. This is in sharp
contrast to the South African situation which requires judges of the Labour
Court to have knowledge, experience and expertise in labour law.81 Through
their skills and experience judges of the Labour Court and Labour Appeal
Court/Industrial Court of Appeal accumulate the expertise which enables them
to resolve labour disputes speedily.
Lesotho …. the right of appeal from the Industrial Court and the Labour Court,
respectively, lie with the Court of Appeal. In Malawi from the Labour Office, a
matter may be referred to the Industrial Relations Court, to the High Court and
ultimately to the Supreme Court of Appeal. The fact that the Labour Appeal
Court Lesotho can hear labour matters as a court of first instance encourages
forum - shopping, and undermines the role played by the Directorate of
Disputes Prevention and Resolution (DDPR) in promoting conciliation and
arbitration as primary and appropriate mechanisms of resolving labour disputes.
 Status of the Labour Court vis `a vis the High Court
The Status of the Labour Court in relation to the High Court is unclear in some
jurisdictions, whether it is a Court of law or an administrative tribunal. This has
been a source of controversy in some countries in the region, and has created a
situation where some litigants are confused as to which Court to go to between
the Labour Court and the High Court. The ushering in of Labour Courts has
brought with it a certain amount of uneasiness in the judicial circle. It is
generally not easy to interfere with the jurisdiction of superior courts, unless the
legislation is clear. In South Africa, the Labour Court is established as a
superior Court of record with powers equal to those of the High Court, and is
established as both a Court of law and of equity82 conferred with exclusive
jurisdiction to deal with matters listed in the law. The Section is explicit to
avoid labour cases finding their way to the High Court through its inherent
powers. It is only in constitutional or administrative matters involving the State
as an employer that the Labour Court enjoys concurrent jurisdiction with the
High Court. The Botswana Industrial Court has been established as a Court of
law and equity.83
In Malawi, the status of the Industrial Relations Court is explicit, it has been
established by the Constitution as subordinate to the High Court with original
jurisdiction over labour disputes and all matters relating to employment as
specified in the relevant Act of Parliament. 84 In Botswana, the Industrial Court
80
Section 96 (3) of the Botswana Constitution and Section 16 (1) of the Trade Disputes (48:02) Act
81
Section 153 (2) (a) and (b) of the Labour Relations Act, 1995
82
Section 151 (1) of the Labour Relations Act, 1995.
83
Section 15(1) of the Trade Disputes Act 2004
84
Section 110 (2) of the Constitution of Malawi, 1995

Page | 17
enjoys the same status as the High Court but with exclusive jurisdiction over
labour matters. This status is, however, by implication as judges of the
Industrial Court have to possess the same qualifications as judges of the High
Court,
Eswatini has been battling with where the Industrial Court and the Industrial
Court of Appeal fit in in the Court hierarchy. In Dube v Ezulwini Municipality
and Others85 the issue was whether decisions of the Industrial Court of Appeal
were reviewable by the High Court. The Court concluded that the Industrial
Court and the Industrial Court of Appeal were part of the judiciary but they
were not equal to the judges of the High Court and the Court of Appeal,
respectively. That the two Courts were inferior to the High Court. The basis of
this decision was that the High Court has statutory as well as inherent/common
law jurisdiction to review decisions and orders of courts or tribunals such as the
Industrial Court of Appeal which is not a superior court in terms of the
Constitution. The Industrial Relations Act, 2000 expressly allows the High
Court to review decisions of the Industrial Court but is silent on review of the
decisions of the Industrial Court of Appeal. This is all because the law is not
clear.
The South African decision of Chirwa v Transnet and Others 86 involved an
unfair dismissal claim and instead of referring the matter to the CCMA, the
applicant launched it with the High Court on the basis that it violated her right
to a just administrative action in terms of the Promotion of Administrative Right
Act (PAJA). The Constitutional Court held that since the applicant relied on
provisions of the LRA for her claim, she should have taken its route. The Court
observed that should employees be given a choice of going to the High Court
instead of following the labour relations mechanism, it will lead to a dual
system which will defeat the purpose of the LRA. The Labour Court in South
Africa has been established as “a superior court that has authority, inherent
powers and standing, in relation to matters under its jurisdiction, equal to that
which a court of a provincial division of the High Court has in relation to the
matters under its jurisdiction.”87
In CGM Industrial (Pty) Ltd v Lesotho Clothing and Allied Workers’ Union and
Others,88 the Court of Appeal held that Section 119 (1) of the Constitution
cannot be interpreted in isolation. It held that the original jurisdiction vested in
the High Court in terms of the Section does not detract from the exclusive
jurisdiction conferred by Parliament on the Labour Court. It made it clear that it

85
(91/2016) [2018] SZSC 49 (30 November, 2018)
86
(2008) 28 ILJ 73 (CC)
87
Section 151 (2) of the Labour Relations Act, 1995
88
C of A CIV/10/99) reported in (1995 - 1999 ) Lesotho Law Reports and Legal Bulletin (LLRLB), 791

Page | 18
is the Labour Court and not the High Court that has jurisdiction over matters it
has been exclusive jurisdiction over.
 Jurisdictional Uncertainties
Jurisdictional uncertainties also affect ADR forums. Besides the frustration to
parties, it also tends to prolong disputes, because the issue of jurisdiction has to
be determined first before parties can get into the merits of the dispute. The
issue that sometimes come up in this respect is whether every labour dispute
must first be subjected to conciliation before arbitration or adjudication by the
Labour Court. The legislative framework must be clear, which is not often the
case. In Madagascar, conciliation is mandatory before any matter may be taken
to Court for adjudication.89
In Lesotho Highlands Development Authority v Mohlolo and 10 Others, 90 the
appellant contended that in order to qualify to bring their case before the Labour
Court, the respondents should have first approached the Directorate of Disputes
Prevention and Resolution (DDPR) for conciliation. In essence, they argued that
the Labour Court did not have jurisdiction to determine the matter. The Labour
Appeal Court ruled in favour of the appellants concluding that the DDPR has
jurisdiction to attempt to settle disputes before such disputes can ultimately be
resolved by adjudication in the Labour Court. Practically, matters do not
necessarily start at the DDPR, depending on the jurisdiction stipulated in the
Labour Code (Amendment) Act, 2000, an aggrieved party may approach either
the DDPR, the Labour Court or the Labour Appeal Court (High Court) as a
Court of first instance. If the statute had clearly expressed the legislative intent
whether every labour matter must first be mediated upon, this issue would not
have come up for determination.
On the same legal point in the Botswana case of Mogae Mmolawa v Lobatse
Clay Works91 the Court stated that the procedure to refer disputes directly to the
Industrial Court should not be encouraged as it was never the intention of the
legislature. The Court ruled that parties must first exhaust the mediatory process
by the Labour Department, a procedure it maintained had several advantages. It
is less costly, less time - consuming and a settlement could be reached at a much
earlier stage.
In National Union of Metalworkers of South Africa v Fry’s Metals (Pty) Ltd, 92
the Supreme Court of Appeal (SCA) had to consider whether it had any
appellate jurisdiction in respect of appeals from the Labour Appeal Court. It
concluded that the Constitution vested the SCA with powers to hear appeals

89
Section 200 of the Labour Code, Law 2003 - 044
90
LAC/CIV/O7/2009
91
1996 BLR, 1 (IC)
92
2005 (5) SA 433

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from the Labour Appeal Court. The issue was later straightened out by the
Seventeenth Amendment to the Constitution93 which provided that the Supreme
Court of Appeal may decide any appeals from the High Court or a Court of a
similar status to the High Court, except labour and competition matters. Clearly,
appeals from the Labour Appeal Court go directly to the Constitutional Court as
the highest Court highest Court in South Africa in terms of the Constitution.
In Lesotho, workmen’s compensation claims still fall under the jurisdiction of
the Magistrate Court,94 although in practice they are handled by the Labour
Court. There is need to amend the Workmen’s Compensation Act, 1977 in order
to harmonise it with the Labour Code to avert confusion among claimants.
In the quest for expediency in the resolution of labour disputes, Section 38 (2)
of the Lesotho Labour Code (Amendment) Act, 2000 provides that the Labour
Appeal Court is a final court of appeal in respect of all judgments and orders
made by the Labour Court. It reinforced the provision in Section 38 Section
38A (4) of the Labour Code (Amendment) Act, 2000 that no appeals shall lie
against decisions of the Labour Appeal Court, rendering it a final arbiter in
labour matters. The constitutionality of this Section granting final powers of
appeal to the Labour Appeal Court was challenged in Ts`euoa v Minister of
Labour and Employment and 3 Others.95 The Constitutional Court declared the
Section unconstitutional on the basis that it restricted the applicants right to a
fair trial and equality before the law by denying him access to the Court of
Appeal.
 The Role of Court Assessors
Most of the SADC countries have a system of Labour Court assessors perhaps
to the exclusion of South Africa. Where the system is in place, the Court is not
properly constituted in the absence of assessors. In the ILO context, the system
emanates from the principle of tripartism, fundamental to its operations and the
promotion of social dialogue. One social dialogue .. They are drawn from
employers’ and workers’ organisations and from their experience .. the legal
requirements are good but the practice leaves much to be desired Legi .but
challenges often arise from their calibre
PERFORMANCE OF THE SYSTEM
INSTITUTIONAL SUPPORT

 Codes of Good Practice

93
The Seventeenth Amendment Act, 2012
94
Section 22 (1) of the Workmen’s Compensation Act, 1977
95
Constitutional Case No. 4/2005

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Codes of good practice facilitate practical implementation of the legislative
framework by giving users guidance on the application of the law. Botswana, 96
Lesotho, Eswatini, Tanzania97 have published policies, guidelines, model
procedures and agreements to guide employers, employees and their respective
organisations. These codes are normally a product of consultation with tripartite
structures.
 Capacity Building for Social Partners
There is a need to strengthen the capacity of social partners to enable them to
participate meaningfully in dispute prevention and resolution mechanisms and
to engage in bipartite and tripartite consultations. Lesotho has established the
Industrial, Peace, Advisory and Promotion Unit (IPAPU) in 2002 within the
Directorate of Dispute Prevention and Resolution (DDPR) aimed at equipping
and capacitating social partners with skills and competencies to prevent disputes
from arising in the workplace by dissemination of relevant information through
workshops and consultative forums; conducting proactive awareness sessions
on labour relations, and conflict management; advising social partners on
prevention and resolution of disputes at workplaces, and better conflict
management strategies.
In South Africa, CCMA does conduct trainings, and other entities such as
Tokiso, the Education Labour Relations Council (ELRC), a State initiative
under the Employment of Educators Act, to maintain and promote labour peace,
prevent and resolve labour disputes in education, and to promote collective
bargaining in relation to matters of mutual interest in the education sector.
These are also empowered to appoint conciliators and arbitrators if there is a
dispute. Eswatini … In Madagascar, the Labour Code establishes the National
Institute of Labour98 an autonomous body with a legal personality under the
auspices of the Ministry of Labour to ensure continuous training of workers and
employers to strengthen their capacity in promoting social dialogue, and
interestingly skills in business management and economics to enable them to
participate meaningfully in negotiations and minimum wage determinations.
LEGITIMACY OF THE SYSTEMS - TRIPARTITE GOVERNANCE / SOCIAL
DIALOGUE

Stakeholders’ involvement in the design of dispute resolution mechanisms will

lend credence to them and ensure their sustainability. In the labour context this
is achieved through the principle of tripartism, which is fundamental to all ILO
operations. It is a consultative process between the Government, employers’ and
workers’ organisations where they jointly participate in a variety of consultative

96
Industrial Relations Codes of Practice …
97
Mediation and Arbitration Guidelines, Government Notice No. 67 of 2007
98
Article 188 of the Labour Code, Law No. 2003 - 044

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structures designed to advise the Government on such matters as labour policy,
changes in the policy, and legislative frameworks relating to labour and
employment such as minimum wage determination or adjustment thereto,
labour law reforms/reviews, changes in work, safety and health arrangements,
although not leading to binding agreements are likely to result in better decision
- making by Government. It also helps build trust and confidence between the
social partners, and contributes to the reduction of labour disputes. These
tripartite structures are many in the region, and have differing roles. There are
overarching tripartite structures dealing with general labour policies and laws
with subsidiary ones specifically focused on particular issues, for instance on
wages and health and safety. Botswana and Eswatini have the Labour Advisory
Board, Namibia - the Labour Advisory Council, Lesotho - the National
Advisory Committee on Labour - Malawi…. Zambia …Seychelles - National
Consultative Committee on Employment, Madagascar, the National Labour
Council, Comoros - the Advisory Council for Labour and Employment.
In South Africa has an arrangement that goes beyond the three traditional social
partners, namely, the Government, employers’ organisations and organised
labour to include members who represent organised community and
development interests99 comprising the National Economic Development and
Labour Council (NEDLAC). Of particular interest is NEDLAC’s role under
Section 77 of the Labour Relations Act, 1995 which speaks to protest action by
workers. Its intention is primarily to bring disputing parties together to engage
on a matter in order to find a resolution, and at the same time to try and prevent
any protest action which is burdensome to both employers and workers and
negatively affects the economy.100
Tripartite structures have been established to, among others, to make
recommendations for the improvement of performance of dispute settlement
mechanisms. To name but a few, are the Lesotho Industrial Relations Council
(IRC) chaired by the Principal Secretary, Ministry of Labour and Employment,
a tripartite body established to oversee dispute prevention and resolution, to
ensure that the dispute resolution systems, the Directorate of Disputes
Prevention and Resolution (DDPR) and the Labour Court operate effectively. In
Namibia the Committee for Dispute Prevention and Resolution’s role is to,
among others, review the performance of dispute prevention and resolution by
the Labour Commissioner on a regular basis and to report thereon to the Labour
Advisory Council and to recommend on policies and guidelines on dispute
prevention and resolution for application by the Labour Commissioner.
EFFICIENCY
Speed with which disputes are resolved
99
Section 3 of the National Economic Development and Labour Council (NEDLAC) Act, 1994
100
NEDLAC, ‘What is Section 77?” - 22nd October, 2015

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  Urgent Matters and ADR Mechanisms
Prompt response to all cases including urgent matters that sometimes impinge
on addressing crisis situations in labour. In some jurisdictions including Lesotho
and Namibia, arbitrators have no powers to deal with urgent applications. Such
matters are dealt with by the Labour Court in both jurisdictions. If arbitrators
could be granted powers to determine urgent matters it could go a long way in
resolving disputes speedily, to avoid parties having to resort to Labour Courts
for urgent applications.
 Setting Time - frames
In the Determination of a Case
Speedy resolution of disputes dictates time - lines. This entails the prescription
of time - limits within which a matter must be disposed of consistent with the
Voluntary Conciliation and Arbitration Recommendation which recommends
that national laws or regulations put in place mechanisms for expeditious
resolution of labour disputes and fix time limits for the proceedings which must
be kept to a minimum.101 In Botswana a mediator shall attempt to resolve a
dispute within thirty days of the referral of the dispute102. …South Africa, the
Labour Relations Act prescribe that a Commissioner appointed to resolve a
dispute through conciliation must do so within thirty days of the date of receipt
of the referral,103 which may be subject to postponement on good cause shown.
In Eswatini, the conciliation process must be completed within 21 days of
receipt of the referral.104 Similarly, in Namibia,105 Tanzania,106 Lesotho
(arbitration process inclusive)107 conciliation must be completed within 30 days.
In contrast, the Labour Act, 2003 (28.01) of Zimbabwe does not give time
prescriptions on arbitrators, resulting in a lot of cases pending, particularly in
the security industry in Zimbabwe.108
Record of proceedings for reviews or appeals Namibia - In terms of the Labour
Court Rules, 2008 (Rule 17 (7) the record must be provided within 21 days after
the noting of an appeal to the Labour Court and that the appeal must be
prosecuted within ninety (90) days.109 Appeal lapses if not prosecuted within the
prescribed days. Records often not provided within the specified time. The
appellant has to approach the Court for an extension at his / her own cost.
101
Clause 3 (1) of R 092 - Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92)
102
Section 8 (1) of the Trade Disputes Act, 2004 48:02 (re - enacted)
103
Section 135 (2) of the Labour Relations Act, 1995
104
Section 81(2) of the Industrial Relations Act, 2000
105
Section 82 (10) (a) of the Labour Act, 2007
106

107

108
As observed by Mariwo (2008) cited in Pharaoh Maitireyi and Richard Duve - Labour Arbitration
Effectiveness in Zimbabwe: Fact or Fiction? 2014 at p. 140
109
Rule 17 (25) of the Labour Court Rules, 2008

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For Issuance of Arbitral Awards
In South Africa, an arbitration award must be issued within fourteen days of the
conclusion of the arbitration proceedings. 110 In Namibia an arbitrator must issue
an award within 3 days of the conclusion of the case. The Labour Court in
Namibia had an opportunity to interpret whether an arbitral award had to be
issued strictly within three days in terms of Section 86 (18) of the Labour Act,
2007 in William S. Torbitt v The National University of Management. 111 The
Court interpreted this Section which provides that “within 3 days of the
conclusion of arbitration proceedings the arbitrator must issue an award …” to
be peremptory, requiring strict compliance, and that an award issued outside the
time period is null and void ab initio.
The case was taken on appeal to the Supreme Court 112 and it overturned the
decision. It held that the legislature had no intention to visit strict non -
compliance with Section 86 (18) of the Act. It, however, does not mean that
arbitrators may not disregard the time limit prescribed in the Section but that the
time limit must still be regarded as the guiding objective when awards are to be
issued by arbitrators. There is a view that this judgment has brought some laxity
on the compliance with the set thirty days among arbitrators. On the other hand,
there is a view that declaring the award a nullity prejudices and punishes an
innocent party who would have to commence proceedings afresh (de novo), but
an undue delay in the issuance of arbitration awards and delivery of judgments
defeats the objective of speedy resolution of labour disputes. Granted, there are
challenges in terms of available resources. Most Labour Courts, where
subordinate to the High Court do not enjoy the same facilities and
administrative support as Judges do.
Namibia - CJ JP have set time - lines in the High Court and the Supreme Court
PERFORMANCE OF THE SYSTEM
 Staff Competence/ Professionalism

Not only should labour dispute settlement institutions be independent in their

establishment and administration, but the process for the appointment of staff
manning such entities should not be subject to any Government, political,
employers’ organisation or trade union influence. In South Africa, the Director,
and Commissioners of the Commission for Conciliation, Mediation and
Arbitration (CCMA) are appointed by the Governing body made up of a
chairperson and nine other members, each nominated by the National Economic
Development and Labour Council (NEDLAC) and appointed by the Minister to

110
Section 138 (7) (a) of the Labour Relations Act, 1995
111
LC 114/2013
112
SA 16/2014 William S. Torbitt and 3 Others v the International University of Management

Page | 24
hold office for a period of three years.113 In Lesotho the Director, Deputy
Director of the Directorate of Dispute Prevention and Resolution (DDPR) and
arbitrators are appointed by the Minister responsible for labour after
consultation with the Industrial Relations Council, a tripartite structure chaired
by the Principal Secretary, Ministry of Labour and Employment.114
The process must provide for the selection of competent decision who makers
who should possess relevant qualifications. Must be qualified
 Case Management System
The existence of a case management system in dispute resolution institutions
ensures that only cases in which they have jurisdiction go through them, instead
of presiding officers having to grapple with preliminary issues of ascertaining
jurisdiction, and delaying the disposal of substantive issues. It also helps weed
out frivolous cases from the system. In Lesotho the Directorate of Disputes
Prevention and Resolution (DDPR) has engaged Case Management Officers
whose duties include, to the extent relevant to this paper, assessing, screening
and registering cases presented to the DDPR, and performance of dispute
prevention activities.115
ACCESSIBILITY

Accessibility of dispute prevention and resolution structures implies a lot of

things: cost, geographical distribution of services, informality in terms of
procedure, legal representation, and availability of the relevant pieces of
national legislation. Most ADR structures in the region offer free services in
line with the Voluntary Conciliation and Arbitration Recommendation116 which
recommends, among others, that labour dispute prevention and resolution
procedures be provided free of charge. Informality entails the absence of
complicated referral procedures. This will ensure that lack of literacy does not
become a barrier to access to justice.
(i) Affordability
Costs involve legal costs, dispute resolution fees and order of costs awarded
against an unsuccessful party to the dispute. Dispute resolution is mainly
provided by the State. It is very critical that these services are rendered free of
charge. Labour dispute settlement services afforded by Governments in the
region are generally free of charge. On the issue of costs, the general trend is
not to award costs unless a party has been found by the Court to have acted in a
vexatious or frivolous manner.117

113
Section 116 (2) of the Labour Relations Act, 1995
114
Section 46B (3) (a) of the Labour Code (Amendment) Act, 2000
115
DDPR - Job Description - Position of Case Management Officer
116
R 092 - Voluntary, Conciliation and Arbitration Recommendation, 1951 (No. 92)

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 (ii) Legal Representation
In some cases, disputing parties engage either legal representatives or private
labour consultants for assistance in proceedings. Some Member States prohibit
legal representation or the use of labour consultants at conciliation meetings. In
South Africa at the Commission for Conciliation Mediation and Arbitration
(CCMA) legal representation is not allowed at the conciliation stage. 118 It is,
however, permissible during arbitration, but not without criticism. On allowing
legal representation, CCMA arbitrations have been found to have become
technical and court like.119 Botswana is similar to South Africa with legal
representation not allowed at conciliation,120 and at arbitration if the parties
agree to it or if the arbitrator considers the matter complex and likely to
prejudice one of the parties to the dispute. 121 In Lesotho122 and Namibia123 legal
representation is only permissible if parties agree to it, or if in the opinion of the
conciliator or arbitrator it would be unreasonable to expect the parties to deal
with the matter without legal representation, due to its complexity or likelihood
of prejudice to the parties. Legal representation at conciliation tends to turn the
meetings legalistic and costly for ordinary parties to the dispute and negates the
very objective of speedy and simplified disputes envisaged by the conciliation
process.
(iii) Access to laws

 Availability
Botswana has re - enacted its labour laws incorporating all the amendments to
the labour laws. Namibia presents a classic case of labour laws that are easily
accessible by having all its labour laws in one piece of legislation, the Labour
Act of 2007 covering Fundamental Rights and Protections; Basic Conditions of
Employment; Health, Safety and Welfare of Employees; Unfair Labour
Practices; Trade Unions and Employers’ Organisations; Strikes and Lockouts;
Prevention and Resolution of Disputes; Labour Institutions; and General
Provisions. It’s all encompassing.
 Fragmented Pieces of Labour Legislation
Namibia …Botswana has three pieces of legislation all relating to labour law.
This can impede accessibility. The initiative of the Botswana Government to re-
117
Botswana- Section 29 of the Trade Disputes Act, 2004 (re - enacted); Lesotho - Section 228 E (2) of the
Labour Code (Amendment) Act, 2000; Eswatini … Zimbabwe …
118
Rule 25 (1) of the CCMA Rules
119
Benjamin “Conciliation, Arbitration and Enforcement: The CCMA’s Achievements and Challenges” 2009 ILJ
p. 26
120
Section 10 (1) of the Trade Disputes Act, 2004 - 48: 02 (re - enacted)
121
Section 10 (2) ibid
122
Section 228A of the Labour Code (Amendment) Act, 2000
123
Sections 82 (13) and 85 (12) of the Labour Act, 2007

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enact the various pieces of legislation in order to consolidate all the
amendments is commendable. However, it would be ideal to have one piece of
legislation covering all the labour related issues as in Namibia.
In Angola The General Labour law, Collective labour law regulated by three
pieces of legislation - Trade union Law (21- C/92); The law on the rights to
Collective Bargaining (20 – A/92); and the Strike Law (23/91)
PERFORMANCE MANAGEMENT

Code of Conduct for Conciliators, Arbitrators, Judges of Labour Courts in

Context
There is need to set out a code of conduct for arbitrators and judges to promote
accountability. Tanzania, has adopted a conduct for mediators and conciliators
regulated by the Labour Institutions Act (Code of Conduct for Mediators and
Arbitrators) Rules124 SA - Norms and Standards for the Performance of Judicial
Function. Namibia adopted the Rules of Ethical Judicial Conduct in Namibia for
Superior Courts, Zambia, the Judicial (Code of Conduct) Act, 1999, Tanzania
Code of Conduct for Judicial Officers mainly based on the Bangalore Principles
of Judicial Conduct as agreed to in a meeting held in 2001 in Bangalore, India
where Chief Justices recognised the need for universally accepted standards of
judicial integrity. Some countries have put in place some ethical standards. In
Botswana they have the Code of Ethics Mediators and Arbitrators???

(iv) Informality of Processes

INNOVATION OF PROCESSES

The CCMA has launched a free digital platform for users to refer conciliation
and arbitration disputes, enforcements and or condonation applications. This
initiative, although precipitated by the COVID - 19 pandemic is more than
welcome as it will fast track the filing of processes and reduce the use of paper.
5.5 ENFORCEMENT MECHANISMS

Ensuring compliance with the provisions of labour laws is important in holding

violators to account and securing respect for such laws. set labour standards is
The use criminal sanctions to enforce labour right s should be discouraged. AS a
remedy for violations. These may act as a deterrent.
The Arbitrator makes a binding award that has the same force and effect as an
order of the Industrial Court and shall be so enforced. Decision of an Arbitrator
has the same effect as an award of the Industrial Court. Settlement agreements
be enforced in the same manner as arbitral awards.

124
Government Notice No.66 of 2007

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Set
SA LRA - amendment, 2015 - Section 143 (3) – An award issued by
Commissioner is final and binding and may be enforced as if it were an order of
the Labour Court - Reinstatement enforced by contempt proceedings no need to
apply that award be made an order of Court (Lesotho)
Labour Code Section - Similar - it is enforced by the Labour Court has to issue
a writ of execution. Can issue a warrant of arrest for failure to comply with
either the DDPR award or an Order of the Labour Court. Reinstatement
contempt proceedings, but for an award or judgment sounding in money -
warrant of arrest to enforce labour laws. Need to decriminalise labour law as it
violates international labour standards??
SA may be enforced directly by the CCMA upon application by a party to a
settlement agreement to have it converted into an arbitration award, thereby
acquiring the enforcement status of an arbitral award. 125 The Director of the
CCMA has statutory powers to certify the award. Thereby making it
enforceable immediately.
Tanzania – Labour Division of the High Court to enforce the decision of the
mediator as if its126
Namibia in terms of Rule 18 of the Labour Court Rules, an award of the
Arbitration Tribunal sounding in money may be enforced in accordance with
the rules applicable in civil proceedings in the High Court. May be executable
by proceeds sold in execution, Lesotho imprisonment127
NAMIBIA
Settlement agreements flowing from conciliation meetings have no force in
Namibia as there is no established statutory mechanisms to enforce them/
128
.enforcement an order of Court.
Lesotho the Law is silent on the enforcement of settlement agreements and the
Labour Appeal Court129 ruled that parties wishing to enforce settlement
agreements must approach the Magistrate Court for an ordinary breach of
contract case. Creates a challenge of one of the parties settling in bad faith
knowing quite well that the settlement agreement will take ages because of the
backlog of cases within the magistracy and a lack of interest in the specialised
labour law jurisdiction. It becomes a farce??
Employees whose Status is Unclear
125
Section 142A of the Labour Relations Act 200…
126

127
Section 34 of the Labour Code Order, 1992
128
Felix Musukublili Dr., – Namibian Dispute Resolution System: Comparison with South Africa, … at p. 13
129
Judge ‘Musi …..

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“atypical” workers such as those working part -time, Zim Section 2 an
employee employed on a casual basis is deemed to have become employed
permanently if his/ her period of employment exceeds six weeks in any four
consecutive months.
Problem normally arises from the definition of employer and employee. In
Article 44 of the Labour Code of Madagascar defines a temporary worker as
any worker hired, Homeworker Article 46 is a worker for the purposes of the
Labour Code who performs work in accordance with the instructions of his
employer in a place or premises of his choice but not belonging to the latter –
there exists between the worker and the provider of work a legal subordination,
if he works under the direct and regular monitoring of the work provider, if he
or she owns the accommodation and the materials the worker uses, if the answer
is positive, then homeworker enjoys like all workers legal and regulatory
provisions applicable to all employees in terms of working conditions and social
protection.
BASIC CONDITIONS OF EMPLOYMENT
RSA

ANGOLA - The General Labour Law uses the concept of micro, small,
medium, ad large sized companies to differentiate the legal rules applicable to
various aspects of employment. The law states that micro, small and medium
sized companies are subject to more flexible and cost effective standards.
3. LESSONS LEARNT FROM EXPERIENCE WITH DISPUTE SETTLEMENT
PROCEDURES IN THE REGION

The above scenario reflects the differing approaches to labour dispute

prevention and resolution frameworks. Based on the lessons learnt from
experience, Member States are able to identify options for enhancing the
efficiency and effectiveness of their labour dispute settlement machineries.
Most systems are proving to be inadequate or not functioning properly.
Industrial Courts continue to be clogged despite the existence of ADR
mechanisms. As observed by Benjamin130 the number of referrals received by
the CCMA per year far exceeds the expectation that was formulated. Too much
reliance on Industrial/Employment Tribunals and Labour Courts as opposed to
preventative systems such as collective bargaining and other workplace dispute
management structures and ADR mechanisms hamper the efficiency in dispute
prevention and resolution. The judicial system is fraught with too many
problems such as postponement of matters by legal practitioners, and the delay
in the delivery of judgments by some judges.

130
In Conciliation, Arbitration and Enforcements

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In the majority of Member States current labour dispute settlement machineries
are not coping. The failure to cope can be attributed to a number of factors
including the increase in the number of disputes referred, insufficient training of
personnel and general inadequacy of resources. Some of the deficiencies
identified are a multiplicity of structures charged with resolution and settlement
of disputes.131Labour cases still find their way into courts of law in high
numbers, a sign that the mediation process still faces challenges.132
It has become a global trend for alternative ways to address labour disputes as
opposed to litigation. However, despite the establishment of ADR institutions,
many aggrieved parties still prefer to resort to Courts of law, overloading an
already bloated system.
In some Member States, Labour laws are scattered in various pieces of
legislation. Multiple for a. Definition of an employee, therefore need for clear
guidelines, education of users on the processes,
Over the years, labour dispute prevention and resolution mechanisms in the
region have Multiple mechanisms, forums with jurisdictional uncertainty and
overlaps leading to forum shopping, exclusion of those whose employment
status is unclear. Systems ineffective - Inadequacy of the framework
Over time, the machinery for prevention and resolution of labour disputes to
give effect to the protection of employment rights, entrenched in most
Constitutions in the region, is hence the need for reform. However, ADR
structures also need to be developed, revitalised/ revived/ reformed in order to
be sustainable and effective to prevent.
Co - ordination Already some integration in other developmental issues.
Inherent delays in finalising disputes are still prevalent both in ADR and the
court systems negating the ultimate objective of labour law which seeks to
ensure that labour disputes are resolved expeditiously and in an efficient
manner.
An effective operation of an industrial relations system is closely tied to the
nature, the quality and the service provided by the dispute management system.
RSA Chapter 7 of the Labour Relations Act deals with dispute resolution. The
intention of the legislature is clear, namely, “to establish and maintain an
effective dispute resolution system”133 Tanzania

131
Emmanuel K.B Ntumy “Labour Dispute Resolution in Southern Africa: A Study of Emerging Trends and
Realities in Botswana, Lesotho and Swaziland” Thesis - University of Cape Town, December, 2015
132
Ibid at p. 143
133
Section 1 (d) (iv) of the Labour Relations Act

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Members provide a range
of labour dispute
and prevention mechanisms different, with similarities here and there, need for
a more co - ordinated approach within SADC.
Labour Courts flooded with cases that could have been resolved by conciliation
and arbitration, clogging the judiciary system

In realisation of this ideal SADC .. with the rest of the world…

Cognisant of Goal.. ILO CON partricularly. DECENT WORK COUNTRY
PROGRAMME134 OAU, In line with the R092 - Voluntary Conciliation and
Arbitration Recommendation, 1951 (No. 92)
Cognisant of :
Values and principles embraced by Goal 16 UN call for peace, justice and
strong institutions
The Charter of fundamental Social Rights in SADC, 2003, in line with the
African Union Agenda 2063: the Africa we want which places access to justice
as one of its fundamental aspirations
The obligation as member States of the ILO to deliver on its Decent Work
Agenda based on its four pillars of employment creation; social protection;
rights at work and social dialogue with gender equality as across cutting
objective, adapted to national situations and priorities.
Recognising the need for co - operative action to achieve effective and
efficient labour settlement procedures not only to develop new laws but to
translate them into action. Striving towards these ideals Meeting at …resolved
…
It is against this backdrop that the following guidelines are recommended to
improve the performance of labour dispute prevention and resolution systems in
the SADC region cognisant of the following regional and international legal and
policy frameworks:
 UNDP Sustainable Development Goals (SDGs) - Goal 16 - calls for
peace, justice and strong institutions for sustainable development;

 Labour standards formulated by the International Labour Organisation

(ILO) through Conventions and Recommendations;

134

Page | 31
  Principles set out in the ILO Declaration on Fundamental Principles and
Rights at Work, 1998 which includes freedom of association and the
recognition of the right to collective bargaining;

 ILO Decent Work Agenda - The obligation of Member States to deliver

on the Decent Work Agenda based on four pillars of employment
creation; rights at work; social protection; and social dialogue with
gender equality as a across cutting objective, adapted to national
situations and priorities;

 The African Union Agenda 2063 - The Africa We Want - Aspiration 3 -

which aspires for an Africa of good governance, democracy, respect for
human rights, justice and the rule of law;

 The Charter of Fundamental Social Rights in SADC, 2003 - Article 4 (d)

which enjoins Member States to create an enabling environment
consistent with ILO Conventions on Freedom of Association 135 and the
Right to Organise and Collective Bargaining136 so that the industrial
dispute settlement machinery and method of operation is autonomous,
accessible, efficient and subject to tripartite consultation and in agreement
with guaranteed right to established appeals or review procedures;

 The extensive body of legal and policy frameworks in SADC Member

States, largely influenced by ILO Conventions and Recommendations;
and

 International best practice benchmarks developed over the years.

- Institutional arrangements for dispute prevention and resolution e,g

whether autonomous, operates under government and implications on
professional independence in the performance of the system -
independence and

- Range of services offered and good practices in dispute prevention and

resolution including innovative approaches used in light of the complex
135

136

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 arrangements and new forms of organisation of work introduced by

- COVID - 19 pandemic and the future of work (Fourth industrial

Revolution) - working from home etc, use of virtual platforms
- Case management systems
- Performance management systems

- Funding modalities for dispute prevention and resolution bodies and

agencies and their impact on performance and professionalism

- Social dialogue and tripartite governance mechanisms of ADR bodies

-
- To avoid legal technicalities.

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SOUTHERN AFRICAN DEVELOPMENT COMMUNITY (SADC)

Page | 34
 REGIONAL GUIDELINES FOR IMPROVED PERFORMANCE IN THE
PREVENTION AND RESOLUTION OF LABOUR DISPUTES

These guidelines are aimed at promoting sound labour relations through the
protection of freedom of association, the encouragement of effective collective
bargaining and the promotion of an orderly, peaceful, proactive, transparent,
expeditious, accessible, and affordable labour dispute settlement mechanisms
conducive for the promotion of social justice, increased productivity and
economic development.
They provide an invaluable and relevant benchmark for effective and efficient
settlement of labour disputes in the region. The effectiveness of these principles
is, however, largely dependent on their sustainability in terms of material
resources, as well as the qualifications, expertise and integrity of the people who
execute them. The determinants of the efficacy of dispute settlement
machineries are the speed with which disputes are settled, client satisfaction,
enforcement rate and cost. These are measurable.
It is the responsibility of Ministries of Labour, Alternative Dispute Resolution
(ADR) bodies, employers’ and workers’ organisations and the judiciary, to
promote sound labour relations that are conducive to industrial peace and
economic development. The overriding objective is to manage disputes,
including encouraging the promotion of ADR mechanisms and facilitating their
use. To this end, these guidelines are intended to guide and motivate Member
States to provide organisational structures, systems and the required resources
to enable them to deliver quality, effective services to employers and employees
in pursuit of social justice, industrial democracy, economic development, social
stability and decent work for all.
These guidelines envisage first and foremost the prevention of labour disputes,
but if third - party intervention becomes necessary they should be resolved as
quickly and as informally as possible, with little or no procedural technicalities
and without allowing them to drag on indefinitely,137 with the ultimate purpose
of achieving quicker, fairer and equitable results. A strive towards building of
harmonious relationship between employers and employees should be at the
core of any dispute settlement mechanism.
IMPROVING THE LABOUR DISPUTE PREVENTION AND RESOLUTION
FRAMEWORK
1. PREVENTION OF DISPUTES

137
Felix Musukublili Dr supra at p. 15

Page | 35
Dispute prevention is a critical element in peaceful industrial relations. 138 Pre
-emptive conflict management strategies through early interventions in the
workplace help alleviate the caseload of ADR mechanisms and Courts by
reducing the number of disputes progressing to conciliation or court - based
processes. A key feature of an effective dispute resolution mechanism is to
promote the development and utilisation of voluntary processes of dispute
prevention and resolution mainly through consultation, information sharing and
negotiation between employers and employees at the enterprise level. These can
either be formal or informal.
(a) ENTERPRISE LEVEL BARGAINING - (Bipartite arrangements)

 Workplace Forums
These are formal enterprise - based forums ideally consisting of an equal
number of employer and employee representatives established at the workplace
for the purpose of facilitating consultations and the exchange of information on
work related issues for plant level bargaining. As far as is practicable, Member
States should provide for the establishment of these formalised workplace
forums in their legislative frameworks to promote employee participation in
decision - making and to help inculcate a culture of voluntary bargaining.
An efficient and effective system of prevention and settlement of labour
disputes should be peaceful, orderly and principally be through the efforts of the
parties themselves to avoid resort to strikes and lockouts as they adversely
affect the economy.
Grievances and disputes be settled through internal processes from occurring or
escalating and where they have arisen, to have in place efficient and strong
institutions for the resolution of such disputes - to provide steps to be taken to
either revitalise or reinforce existing systems or establish ones that will provide
a more efficient service. last resort to ADR, but .. Adju that are specialised
ADR- Adjudication - specialised up to the highest Court. Management of
grievances and conflicts. In keeping with the Conciliation
In order to guarantee confidentiality of mediation process, there is no binding
determination at the conciliation or mediation stage.
Workplace forums
(b) PROMOTION OF COLLECTIVE BARGAINING

Collective bargaining is an effective tool in fostering co-operation and

integration between employers and trade unions, and makes it easier for them to
deliberate on issues that affect them, thereby promoting social dialogue and

138
Kalula E., Bosch …. At p. 70

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minimising conflict. Legislative frameworks just provide a floor of rights on
which trade unions have to bargain for more improved terms and conditions of
employment for their members beyond what is offered by law, within
acceptable labour standards. A determining factor of whether to establish
sectoral or enterprise level bargaining is the capacity of an establishment.
Collective bargaining promotes industrial peace by preventing disputes through
the conclusion and enforcement of collective bargaining agreements which can
provide for internal dispute settlement machineries which must be exhausted
before any third-party intervention or strike action.
Strike Action vis `a vis Collective Bargaining
Strike action is one of the fundamental means available to workers and their
organisations to promote their economic and social interests. But strikes should
not be seen in isolation from industrial relations as a whole. They are expensive
and disruptive for workers, employers and society as whole. They do occur as a
result of failure to fix working conditions through collective bargaining. The
right to strike is recognised by the ILO’s supervisory bodies as an intrinsic
corollary of the right to organise protected by the right to organise as envisaged
by Convention 87 deriving from the right of workers’ organisations to formulate
their programmes of activities to further and defend economic and social
interests of their members. It is however, not an absolute right. It may be subject
to certain legal conditions or restrictions and may even be prohibited in
exceptional circumstances139 It is explicitly recognised in certain international
instruments (to check AU and SADC)???
Exhaustion of conciliation or mediation procedures prior to calling a strike may
encourage further negotiation. Provides a cooling - off period. However, the
procedure should not be so slow or complex that a lawful strike becomes
impossible or loses its effectiveness.140
(i) Facilitating Collective Bargaining
In any workplace, employees who are members of a registered trade union have
a right to elect from among themselves, a workplace union representative to
represent a union in the particular workplace., make representations to the
employer on any matter affecting the unionised employees Workplace forums
Member States must put in place legislative frameworks that support and
encourage collective bargaining in line with Article 4 of the Right to Organise
and Collective Bargaining Convention141 which provides that measures be taken
to encourage and promote the full development and utilisation of machinery for

139
C 087 - Freedom of Association and Protection of the Right tp Organise Convention, 1948 (No. 87) - Article 3
: General Survey on Freedom of Association and Collective Bargaining, para 151
140
Supra para 171
141
C. 098 - Right to Organise and Collective Bargaining Convention, 1949 (No. 98)

Page | 37
voluntary negotiation between employers’ organisations and workers’
organisations with a view to the regulation of terms and conditions of
employment by means of collective agreements. Must be able to organise to
facilitate collective bargaining Legal requirement for collective bargaining –
Workers must be free to join trade unions in order for collective bargain
Convention 87142 stipulates that public authorities shall refrain from any
interference that would restrict the right or impede the lawful exercise of the
freedom of association. In order to promote and facilitate collective bargaining
Member States have to put in place enabling laws for the exercise of this right.
Collective bargaining could take place at the workplace at the sectoral level
through the establishment of Bargaining Councils, a union that represents the
majority of the employees becomes an exclusive bargaining agent of the
employees in that bargaining unit, for instance in the motor industry, for
purposes of negotiating collective agreements or any matter of mutual interest
for its members.
Workplace councils ??industry based bodies consisting of representatives of
trade unions and employers in the industry having as their primary function the
prevention and settlement of disputes and the regulation of issues of mutual
interest in the particular industry.
(ii) Force of Law

(iii) Capacity Building

 Negotiation Skills - Both employers or employer organisations and trade

unions must be capacitated to enable them to engage in collective
bargaining and also be sensitised on labour laws and industrial relations.

 Para - legal training - They further have to be provided with para - legal
training to enable them to appear before ADR forums and court
proceedings.
(c) Strengthening Labour Inspection Services
Labour inspections contribute to the maintenance of harmonious relations
between employers and employees and the protection of fundamental rights of
workers. Legislation empowers Labour Officers as designated agents of
Ministries of Labour143 to carry out industrial inspections with the aim of
ensuring compliance with and respect for labour legislation and collective
bargaining agreements. This also contributes to minimisation of labour disputes.

142
C. 087 - Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Article
3(2)
143

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Member States must strive to conduct labour inspections on a regular basis in
order to be proactive and identify problem areas within workplaces timeously.
Need for effective inspection services.
They also advise employers and workers on other issues despite handling of
disputes such as labour laws, health and safety and social security. Many
workers and employers are unaware of the role of labour inspection and the
capacity of inspectors to provide advice on the improvement of workplace
practices and the promotion of a culture of prevention.144 Labour inspections can
either be routine, investigative or a be follow - up to earlier ones. They are
critical in investigating and resolving work related disputes, uncovering abuses
and malpractices in the workplace.
c. Promoting Social Dialogue Through Tripartite Arrangements
Social dialogue has been described by the ILO to include all types of
negotiation, consultation, and exchange of information between and among
representatives of Government, employers and workers on issues of common
interest relating to economic and social policy. 145 It can exist as a tripartite
arrangement with the traditional arrangement between Government, employers’
organisations and trade unions or through bipartite relations between labour and
management or employers’ organisations and trade unions, including workplace
co-operation collective bargaining at the enterprise level, sectoral level The
promotion of social dialogue should be through both internal workplace
structures and State supported tripartite mechanisms. In regard to the latter, the
principle of Tripartism146 is basic to all operations of the ILO that involve
Governments, employers and workers. It the occurs at a national level and
provides a platform for consultation, dialogue and monitoring and requires the
Government in collaboration with the most representative employers’ and
workers’ organisations to formulate and implement national labour policies and
legislative frameworks including those relating to the establishment or
strengthening of labour dispute prevention and resolution. Tripartism allows for
consensus - based solutions to labour issues as opposed to imposed ones.
Member States must have legislative frameworks that promote establishment of
these participatory forums with social partners to foster industrial peace and
stability.
The tripartite relationship between the Government, employers’ and employees’
organisations fosters the independence and transparency of the forums they

144
Maria Luz Vega and Ren`e Robert - Labour Inspection Sanctions: Law and Practice of National Labour
Inspection Systems, ILO, Geneva, 2013 at p. 2
145
Social Dialogue ILO brochure
146
C144 - Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144)

Page | 39
jointly participate in including dispute resolution mechanisms, thereby affording
them credibility.
2. THIRD PARTY INTERVENTION

Where preventive and dispute resolution systems have failed at the enterprise
level, third party intervention through ADR mechanisms and courts of law
become necessary.
a. Promotion of Alternative Dispute Resolution (ADR) Mechanisms
Alternative dispute resolution mechanisms in the form of conciliation and
arbitration provide disputing parties an opportunity to settle their differences in
an informal, flexible, less costly, expeditious and non - adversarial manner and
alleviates caseload of courts. They provide greater opportunities to help parties
resolve their disputes without resort to litigation, thereby avoiding the hurdles
associated with the court system. Informality, speed and focus on substance
rather that form147 are the primary features of ADR. It is recommended that
ADR processes be made a mandatory process before litigation and even after
commencement of litigation. Ordinarily courts are overwhelmed by an incessant
overflow of mostly civil cases to dispense with, hence ADR offers a mechanism
to supplement their efforts. The challenges faced by the court system would not
have been succinctly captured by the renowned scholars Rosenberg and
Folberg148 when they pointed out that;
..The high cost of court litigation, means that access to justice is denied for the vast
majority of the population; the long delays inherent in the court procedures often
means that relief comes too late - justice delayed is justice denied; the parties to the
dispute suffer a lack of control over the dispute resolution processs due to the usual
representation by attorneys who may not necessarily share or appreciate their real
concerns; the rules of civil procedure (used to address labour disputes) are rigid and
cumbersome; the adversarial nature of court proceedings often leads to a breakdown
of personal relationships that are valuable to the parties; and the court process is
limited to that the legal remedies it provides can often produce a ‘win - lose’
resolution to a dispute.

Legal representation is discouraged at conciliation. Conciliation is facilitative

and not interventionist enabling disputing parties to reach a negotiated and
mutually agreeable solution that suits both parties.
Some of the challenges facing many countries in the region towards achieving
effective and efficient dispute settlement machineries is an over - reliance on
Courts when ADR mechanisms are available and more appropriate for the
resolution of labour disputes. Together, Member States to have to strive towards
a fair, effective, expedient, informal, cost effective, consistent, co - ordinated,
147
Felix Musukublili Dr., Namibian Labour Dispute Resolution System: Comparison with South Africa … at p. 11
148
Rosenberg J.D., and Folberg H.J., Alternative Dispute Resolution: An Empirical Analysis, Stanford Law
Review, Vol. 46, (1994) 1487 - 1551 at p. ..

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integrated and sustainable dispute prevention and resolution system. Member
States are urged to embark on strategies to sensitise communities on ADR
options in order to increase awareness on the alternatives to litigation. If ADR
systems fail to deliver the expected results, people will resort to Courts and end
up clogging the Court system. Courts should be the last resort, and be used only
where it is absolutely necessary.
 Conciliation Undertaken by Ministries of Labour
It is recommended that ADR be undertaken by independent, autonomous body
corporates and not the executive through Ministries of Labour because of the
likelihood of political influence of the executive thereby compromising their
impartiality and efficacy of such systems.
Promotion of Private Dispute Resolution Forums
These play a very important supplementary role to national dispute resolution
forums. They should be registered by and regulated by a national dispute
prevention and resolution institution for quality assurance.
 Proper Streamlining of Jurisdiction between ADR forums and
Courts
All labour cases should be subjected to mediation before adjudication. It will
emerge during mediation or arbitration whether there are any prospects of
settling the matter through ADR. Jurisdiction/ competencies of the various
institutions be properly streamlined to avoid forum shopping
Arbitration is a quasi - judicial function while Labour Courts exercise full
judicial functions.
b. ADJUDICATION

2.1 Specialisation
The distinguishing feature of Labour Courts is that they are specialised and
guarantee informal processes in terms of procedure, and affordable access to
justice. The credibility of any judicial system …. They are established as both
courts of law and equity. It is advisable that labour disputes not go through the
normal appeal/ review processes of normal courts. They should form a parallel
structure to the normal judiciary to handle reviews or appeals from the Labour
Courts where decisions could proceed to a higher Court of similar specialised
focus on labour, training and competence.
Such institutions must be independent of Government, Employer organisations
trade unions and politics.

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Establish specialised Courts - that labour matters be adjudicated by specialists
equity jurisdiction distinct from the normal civil justice system. The specialised
Labour Courts should run parallel to the other general judicial system.

Courts to promote labour law principles as enunciated in ILO Conventions and

Recommendations. Specialty for the development of Labour law jurisprudence,
guarantee of equity jurisdiction to uphold social justice and human dignity
Constitution be amended to cater for specialised Courts - S. 118
Guarantee specialisation throughout the Labour dispute resolution system
Representation - legal representation? More complex cases in ADR mechanisms
 Specialisation

 Jurisdiction of ADR systems, Industrial/Labour Courts, and Labour

Appeal Courts be properly streamlined, Concurrent jurisdiction
with the general courts or the High Court be discouraged

 Industrial/ Labour Court judges possess the same be qualifications

as High Court Judges

 Cognisant of the fact that the role of Industrial/ Labour Courts is to

interpret and enforce labour laws to ensure effective industrial
relations, this requires harmonisation with the other actors, the
general judiciary.
Enforceable and binding agreement
2.2 Promotion of Court Annexed Mediation
Mediation is a generally preferred method of dispute resolution in various
spheres including commerce and family. Litigation should always be the last
resort.
Litigation - Mandatory mediation. Also to help the Judiciary establish effective
labour dispute resolution mechanisms. Promote out of Court settlements - Court
annexed mediation at Labour/ Industrial Courts - Courts to help those who wish
to invoke available ADR arrangement s within the Court system, which must be
legally enforceable
Compulsory mediation is recommended. However, mediation being by its
nature a consensual process, works best when parties come to mediation
willingly and of their own volition.149 Evidence indicates that voluntary

149
Civil Court Mediation Service Manual. United Kingdom, Version 3 - February, 2009 at p. 6

Page | 42
mediation is more likely to achieve higher settlement rates when compared to
compulsory mediation.150 The problem with voluntary mediation is that parties
are so much used to litigation that given an option, they are less likely to opt for
mediation. Parties can realise the virtue of mediation and futility of litigation at
any stage of a dispute
Even after the commencement of litigation, it is recommended that a process be
carved out so that mediation may be used to settle the differences between the
parties prior to the hearing of the case - UK CIVIL PROCEDURE RULES -
settling on the stairs of the Court. ADR - parties be warned of implications in
terms of costs if they outrightly refuse to explore the prospects of an out - of -
court settlement.
 The role of judges in in driving the change process and encouraging
parties to mediate is very important;

 Even at the pre - trial stage, judges should look into the possibilities of
diverting a matter to the mediation process.
SPEED

2.3 Urgent Applications

Tribunals be empowered to deal with urgent applications to relieve the caseload
on Industrial/Labour Courts.
c. RELIEF

Where parties have been successful… Reinstatement - In cases of unfair

dismissals, where a dismissal has been found to have been unfair, reinstatement
of an employee to his or her former positions without loss of remuneration,
seniority or other entitlements should be the primary relief, unless it is
impractical.151 In monetary compensation, statutory limitations on the awarding
of compensation is recommended to avoid award of arbitrary or unreasonable
compensation amounts. Labour law is about fairness to both the employer and
the worker.
JURISDICTION

Jurisdiction to be properly streamlined DDPR power to settle disputes before

they can “ultimately be resolved by adjudication in the Labour Court” Labour
Court given exclusive jurisdiction in certain disputes.
ENFORCEMENT (EXECUTION) MECHANISMS OF ARBITRAL AWARDS AND
LABOUR COURT JUDGMENTS

150
Ibid
151

Page | 43
Ensuring compliance with arbitral awards and Court judgments. Without
effective settlement mechanisms…
a. Settlement Agreements

Settlement agreements resulting from conciliation meetings have to be

statutorily enforceable in the same manner as arbitral awards by
Conciliation forums as

b. Awards and Court Judgments

The day an award is executed is an award or judgment. Good if can be
enforced. Improvement of enforcement mechanisms. Of settlement agreements
Arbitral awards, Labour Court Judgments
IMPROVING WORKPLACE COMPLIANCE THROUGH SOCIAL DIALOGUE,
improved labour inspection mechanisms - capacity, manpower, transport

INFORMATION DISSEMINATION AND PROVISION OF ADVISORY SERVICES

COMPUTER (ELECTRONIC SYSTEMS TO IMPROVE EFFICIENCY

Case tracking etc
DISTINCTION BETWEEN DISPUTES OF RIGHT AND DISPUTES OF INTEREST

It is important for dispute resolution frameworks to draw a distinction between

disputes of rights and disputes of interest. Dispute resolution approaches
generally differ in respect of these two categories of disputes. Labour rights and
obligations are normally set out in the law, individual contracts of employment
and collective bargaining agreements. Essentially, a dispute of from a breach of
or contravention of anyone of the three. A dispute of interest, on the other hand,
is a dispute over which an employee has no right, but hinges on his or her
interests and well - being in the workplace. In disputes of right parties are
expected to have recourse to ADR mechanisms and adjudication, and with
disputes of interest, an aggrieved party/parties normally have to go through
conciliation ending up in either arbitration or an industrial action.
Section 80 Namibia
ACCESSIBILITY

Labour dispute settlement systems will only be accessible if their users have full
knowledge of them and their procedures. The majority of users of ADR
systems, litigants, and even some legal professionals know very little about
ADR processes, hence they should be educated about what they are and their
potential for settling disputes in a mutually agreeable manner and their capacity
to build bridges.
Page | 44
Need to embark on public awareness campaigns to disseminate information on
the role and functions of ADR mechanisms and the benefits of setting cases
outside Court, Dispute settlement systems need to be simple and accessible to
potential users so as to encourage the speedy resolution of disputes. 152 The
structure of ADR has enabled greater access to justice for the poor, the illiterate
and in particular rural communities who often have difficulty navigating Court
processes.153
Knowledge of the Systems and Procedures
The system will be accessible if people have full knowledge of its procedures
and the system in general. Knowledge could be imparted through:

(i) Dissemination of information on dispute prevention and resolution

processes which could be through training which could be rolled out
through:

 Distribution of pamphlets;

 Broadcast of information through local radio stations;

 Provision of information and advisory services to users of ADR and

Court systems on site. This could entail the deployment of Case
Management Officers or Dispute Prevention Officers.

(i) Training of users of the mediation and arbitration services through:

 Workshops and seminars to raise awareness on the systems;

 Provision of para - legal training for those who use the Court
system.

(b) Informal Processes

Ease with which disputants can institute proceedings before ADR mechanisms
and Industrial/Labour Courts improves accessibility of dispute prevention and
resolution to users of the system. Minimal legal and procedural formalities
affording an opportunity for parties to represent themselves particularly at ADR
forums. Disputants should be able to resort to the available processes without
complications and complex legal paperwork;
During hearings, the emphasis should be on substance rather than form.

152
Kalula E., Bosch C., & Clarke M., - Draft Report on Dispute Prevention and Conflict Resolution supra at p.69
153
Petrina Ampeire Bireije - ADR in South Africa: A Brief Overview, International Mediation Institute

Page | 45
 (c) Affordability
ADR services must be offered free of charge by Member States in line with the
Voluntary, Conciliation and Arbitration Recommendation154 which
recommends, among others, that labour disputes be resolved by a voluntary
conciliation machinery that is free of charge and expeditious.
(a) Access to Legislation
Consolidation/Codification of labour related legislation
Accessibility also implies easy access to Labour laws, namely, those relating to
laws establishing and regulating ADR mechanisms, Labour Courts, appeal/
review mechanisms, employment relations, Social security arrangements
including workmen’s compensation, safety and health in the workplace. These
laws should be consolidated in one comprehensive piece of legislation for ease
of access.
Provisions relating to specific areas regulating labour, individual rights, health
and safety in the workplace mostly subject to specific standalone laws. Impedes
access to legislation. Avoid many pieces of legislation on labour - codification
relating to ADR mechanisms, safety and health in the workplace, other
provisions such as conditions of employment – hours of work, overtime, leave
work -permits. Labour Courts,
Labour laws and regulations are important vehicles of implementing ILO
standards, promoting the ILO Declaration and Fundamental Principles and
Rights at Work (one of the fundamental.. ) and putting the concept of Decent
work in practice.
Legal Representation at ADR
Legal practitioners’ involvement should be limited to Courts of law and
arbitration proceedings, only for complex cases to be determined by the
Arbitrator. The involvement of legal practitioners at the conciliation stage
makes the system expensive, fraught with legal technicalities and therefore
ineffective. Arbitrators must deal with the substantial merits of the dispute with
the minimum of legal technicalities. Limited legal representation.
Geographical Distribution of ADR Facilities and Courts
In order to be accessible to the populace at large ADR and court facilities must
be geographically balanced in the country, otherwise it leads limited physical
access by users of the systems. In most countries access depends on which part
of the country one resides in as facilities tend to mainly found in areas where
there is concentration of economic activity. The anomaly can be addressed by
154
R 092 - Voluntary, Conciliation and Arbitration Recommendation, 1951 (No. 92)

Page | 46
regional conciliation forums and Courts oy by circuiting. Dispute resolution
offices to be located within a reasonable travelling distance.
Physical Access to ADR and Court Buildings
People with disability - Buildings to have special access to people with physical
disabilities, allow access to physically disabled - new buildings and existing
ones to be renovated
Revitalise or establish voluntary, free of charge and
Protection be extended to all workers - whether in the public service, temporary,
manual,
Definition of Terms
Definition of concepts in the law or regulations can become an impediment to
access to justice. For instance the definition of terms such as discrimination. Of
who is the employer or the employee.
ESSENTIAL SERVICES

Essential services are services that are vital to the health and welfare of society
and are essential to maintain. ILO’s supervisory bodies have taken the position
that is admissible to limit or prohibit the right to strike in essential services,
defined as “those the interruption of which would endanger the life, personal
safety or health of the whole part of the population.” 155 Essential services need
special attention because of their sensitive nature. Need to establish a tripartite
consultative body comprising equal number of representatives from the
Government, employers and employees to oversee the issues concerning
essential services - what constitutes an essential service, to recommend what
services may be classified as essential. The concept of essential services be
adopted in the context of ILO Conventions 87 on Freedom of Association and
Protection of the Right to Organise 156 and 98157 on the Right to Organise and
Collective Bargaining.
Essential Services Councils/Boards should be manned by people who have
knowledge and experience in labour law and labour relations.
Member States normally prohibit strike action in essential services Member
states not unduly prevent recourse to strikes in defence of the interests of
workers.
DISPUTES AFFECTING A NATIONAL INTEREST

155
General Survey, p. 159
156
C 087 - Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
157
C 098 - Right to Organise and Collective Bargaining Convention, 1949 (No. 98)

Page | 47
This involves services that do not necessarily provide an essential service, but
of national interest, for instance of a very strategic economic significance. If a
Minister responsible for Labour considers a dispute to be in the national interest
he or she may refer such dispute or potential dispute for conciliation on an
urgent basis.
PUBLIC OFFICERS

Public officers to enjoy all the protection afforded to all workers.

A single regime regulating all workers is recommended for all Public officers
have a right to enjoy equal protection of such rights as freedom of association
and collective bargaining consistent with Convention 151 158 which promotes
settlement of disputes relating to public officers in connection with terms and
conditions of employment through negotiation between the parties or through
independent and impartial third - party intervention such as mediation,
conciliation or arbitration. This right goes together with …. Some Member
States have excluded public officers from forming trade unions, and have
adopted a separate legislatives regime regulating them. Granted there are classes
managerial who can be excluded but it is not proper to deny all public officers
to exercise their power to withdraw their labour, where needs be.
RESEARCH AND LABOUR STATISTICS

Collection of information … and statistical data and undertake research best

practice. Member States to gather, collate, analyse and publish regular series of
cases handled and their nature in order to monitor trends and initiate remedial
actions such as training in areas identified as problematic.
TARGETS

Of No- of cases filed, performance indicators

PERFORMANCE MEASUREMENT

some presiding officers and judges take long to release judgments. The Rules
should prescribe time periods which should be strictly adhered to.
Regular reporting on performance, conduct of performance audits to assess
performance by ADR and Court systems.
Need for statutory time - lines from the filing of a matter to the hearing of cases
and within which they may be finalised in both ADR and court systems to set
performance standards against which performance may be evaluated for speedy
resolution of labour disputes.

158
C 151 - Labour Relations (Public Service) Convention, 1978 (N0. 151)

Page | 48
Need to evaluate the effectiveness of the labour dispute prevention and
mechanism to assess its effectiveness. It is important that monitoring be used
for feedback on performance achieved.
NB Check Australian system - internal appeal system- serious about social
justice
EXPREDIENCY

The speed with which a system operates in dispensing justice is a paramount

feature in the delivery of justice.159 The dispute resolution system should allow
for expeditious resolution of disputes by not lengthening the dispute resolution
process.
Legislative frameworks …employers and workers and their organisations be
resolve disputes through conciliation and mediation, Adjudication be the last
resort.
. Set - down of case by telephone, e - mail facilities to improve speed;
Timeframes be set from handing down of arbitration awards and judgments.
THE CHANGING WORLD OF WORK

All workers deserve adequate social protection and an opportunity to bargain

for improved terms and conditions of employment. The changing world of work
brings with it new opportunities and risks.
Employment Relationships
Labour administration systems tend to be structured to suit the needs of
commercial and industrial undertakings which are more organised. There are
workers who are often overlooked or excluded by legal frameworks and
therefore deprived of due protection. These include:
 Workers not covered by formal legal arrangements

Member States must strive to extend protection to all workers including those in
the informal economy, casual, domestic workers, farm workers, those in sub -
contracting, family relations set - ups, social units, part - time, temporary,
seasonal and workers in co- operatives who, intermittent workers who, more
often than not, lack social protection, job security, freedom of association, and
are subjected to poor working conditions. Workers with disabilities, women,
young and older workers in these se- ups need special attention.
 Workers whose employment status is unclear
There are some arrangements that deprive “workers’ of protection due to them.
These are situations that render it difficult to establish whether an employment
159
Pharaoh at p. 145

Page | 49
relationship exists or not. These include situations where the respective rights
and obligations of the parties concerned are not clear, where there has been an
attempt to disguise the employment relationship, or where inadequacies or
limitations exist in the legal framework or in its interpretation or application.
Labour brokers… it enables the employer to cut human resource management
costs. Employers argue that they cut they help them focus on their core business
and increase production. In some instances employees recruited through labour
brokers earn less than those who are employed directly. Labour brokers
sometimes undermine labour standards. They, therefore need to be regulated.
 New Forms of Employment / The Future of Work
There is a proliferation of new forms of employment sometimes leading to an
increase in undeclared work arrangements. These exclude people who are
otherwise workers from efforts to raise awareness of their rights. It also
constrains the ability of labour inspectors to enforce the law. Some
arrangements which include labour broking, and work in complex supply chains
can make it very difficult to identify who the employer is with implications on
enforcement of rights and disputes settlement in the areas.
Member States should investigate these arrangements, formulate and apply
appropriate national laws to ensure effective protection of all categories of
workers.
The protection afforded to the informal economy could be through lesser
stringent laws and regulations.
NEW FORMS OF ORGANISATION OF WORK/

Introduction of new forms of work accelerated by the Fourth Industrial

Revolution and the COVID -19 pandemic has brought with it acceleration of
technological advancement and new forms of organisation of work with
implications on the dispute resolution mechanisms. The pandemic has thawed
historic opposition to use of cameras in Courts. ADR and Court proceedings can
now be conducted virtually thereby reducing travel costs for all involved and
most importantly the parties before Court. It has also improved access to a
wider community and transparency in both ADR and Court proceedings.
COVID - 19 has forced all industries to accelerate keeping up with
technological advancement Has accelerated the digital transition to a notable
increase.
Obtaining Court dates can now be done electronically.
People working from, critical question should one really work from the office?
USE OF DIGITAL PLATFORMS

Page | 50
Need to invest in the transition to digital mechanisms and artificial intelligence
INNOVATIVE MECHANISMS
a. AUTOMATION/DIGITILISATION OF PROCESSES
ELECTRONIC CASE MANAGEMENT SYSTEM

To improve the efficiency of ADR and court administration and case

management. Must take into account developments within the dispute resolution
realm and formulate strategic responses thereto in order to improve the efficacy
of the system. To move to a digital system whereby applicants would institute
claims through an online portal and submit documents electronically, all
documents be stored shared electronically. For instance, communication
systems be technologically responsive to modern day realities. Communication
with clients could also be by e - mail. Electronic management system is ideal to
records management, but where there are challenges in securing the system,
dispute resolution machineries should explore prospects of engaging Case
Management Officers in both ADR and Court - based processes.
The world of work is evolving in terms of technological advancement. Court
documents should be digitised? Storage of Court documents should move away
from large voluminous files that occupy space, and on occasion get lost, should
rather be digitised - will improve access, with adequate security environment
cognisant of data
However, whilst in keeping abreast with technological advancement, ADR
forums and Courts of law must also ensure that the poor are not further
marginalised by creating further barriers to access to justice as a result of
technology. Need to maintain a balance.
Face to face interaction is necessary during proceedings to fully examine
witnesses’ demeanour, but certain proceedings such as interlocutory
proceedings can be dealt with virtually using an array of available platforms.
COVID - 19 seems to be a catalyst that pushes labour dispute machineries
including Courts into accelerated technological advancement.
Will provide an accurate reflection
 Record keeping Systems

It is recommended that all court records be stored digitally. Case management

system.
i. MEDIATION HELPLINES

Mediation helplines, with the use of telephones as an efficient means of

providing mediation services throughout the country. Resulting on parties not
having to travel to Court or to an ADR forum resulting in savings to both time
Page | 51
and cost. To have full - time skilled Call Operators. Parties agree to be bound by
the terms contained in the agreement and that the settlement agreement shall be
a full and final settlement of the dispute. The Mediators will send both parties a
copy of an agreement if mediation is successful. Should be enforceable as if it is
an order of Court in case of a breach.
APPROPRIATE FRAMEWORK

Basic Conditions of Employment Act

Provides minimum conditions of employment different classes of workers.
Covers …Different standards to different to different classes of workers. The
advantage of regulating these categories sepa.. For instance, conditions of a bar
attender in a big hotel cannot be equated with a small bar/or a tavern in some
location. It is unfair on the small business. Covers notably farmworkers,
domestic workers,
For those employees who have insufficient bargaining power to ward off
exploitative working conditions160 to guarantee statutory protection to all.
CREATING AN ENABLING ENVIRONMENT

 Constitutional, Legislative and Political Support

Promotion of ADR mechanisms should be guaranteed in Constitutions of
Member States. Legislative frameworks should translate constitutional
guarantees and policies aimed at ensuring the efficacy of dispute resolution
mechanisms into enforceable documents, properly streamlining such issues as
scope of the legislation, objectives, jurisdiction, and legal consequences for non
- compliance. In turn, the effective implementation of the law will be
dependent on the political will of each Member State in terms of financial and
material resources and to remove any other administrative bottlenecks that
undermine the speedy resolution of labour disputes.
 Codes of Good Practice
These serve as implementation tools. Codes of good practice facilitate practical
implementation of the legislative framework by giving users guidance on the
application of the law. Implementation BOTSWANA - Minister in consultation
with the Labour Advisory Board may publish codes of good practice. Industrial
Relations Codes of Practice. Section 51 of the Trade Disputes Act Minister after
consultation with the Labour Advisory Board may publish Codes of Good
Practice, policies, guidelines and model procedures and agreements to guide
employers, employees and their respective organisations.
a. RESOURCE SUPPORT
160
Woolfrey D., “South African Legislation - Commentary on the Labour Relations Act 28 of 1956 and the
Basic Conditions of Employment Act 3 of 1983” at p. 10

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Budget cuts in many countries affect the performance of labour dispute
settlement mechanisms. Member States have to provide adequate human,
financial and other resources such as manpower, transport, office
accommodation and other utilities for the provision of effective and efficient
services. Insufficient manpower in the system leading to conciliators, arbitrators
and judges of Labour Courts being overwhelmed by the high number of
disputes they have to handle. This leads to delays. Need to engage sufficient…
Laws to make provision for part - time arbitrators to cater for a high influx of
cases In order to guarantee proper implementation and effectiveness of the law,
labour inspection services and those facilitating execution of arbitral awards and
court judgments should be adequately resourced.
Confidentiality
Conciliators as neutral have the responsibility of maintaining strict
confidentiality on cases that become before them for conciliation. Because it is
a confidential process it provides a conducive environment to settlement. Have
a duty to keep confidential any information acquired in the course of the
mediation process.
Institutional Credibility
In order to enjoy or restore the trust and confidence of users, labour dispute
resolution institutions need to provide a safe, neutral environment where
disputing parties are assisted by a competent, impartial mediator, arbitrator or
judicial officer.
Institutional capacity
Provision of adequate and competent manpower
 Skills and Expertise
Suitably qualified personnel at every point in the system. For arbitrators and
judges, professionalism in the context of labour dispute resolution requires a
specialised knowledge of relevant ILO standards, labour laws, rules, and
policies applicable in the particular labour market. Conciliators/mediators,
arbitrators as well as judges should, therefore, possess relevant skills,
knowledge and experience in labour law and industrial relations in order to
perform their duties efficiently, fairly and within a reasonable time.
Capacity Building
Capacitating the workforce to competently deliver on its mandate
Member States should provide staff of labour dispute settlement systems with
initial and ongoing training on handling labour disputes. Provide appropriate
training to labour inspectors, mediators, arbitrators, and judges. Required

Page | 53
knowledge of labour laws, rules and policies, international labour standards
applicable within the labour market. Members should strive to train, retrain
officers, provide refresher courses in dispute prevention and resolution
mechanisms.
 CONFIDENCE AND TRUST OF USERS
 INDEPENDENCE, Impartiality, conflict of interest
ADR forums need to be established as autonomous statutory bodies, with legal
personality funded by the State. Neutrality, and independence of conciliation,
mediation, arbitration and adjudication services will provide credibility to the
service that they render. This entails independence from government, business,
employers’ organisations, trade unions and political influence in order to win
the trust and confidence of social partners and other users.
b. PERSONNEL
c. Knowledge

That providers of the dispute resolution systems are sufficiently experienced

and competent.
 A dispute resolution system must be staffed with personnel who have the
ability to act independently, and without bias. This will ensure that the
system achieves a certain amount of credibility.161
Mediators, Arbitrators to disclose anything that or may be seen to materially
affect their independence. Disclose any conflict of interest. Will always act in
an independent and impartial manner.

 Fairness and

Dispute resolution systems must be uniformly applied to both employers and

employees. Labour Courts being both Courts of law and equity, presiding
officers and judges always strive the satisfy the tenets of fairness; Conduct the
process with fairness to all parties and to ensure that all parties have an equal
opportunity to raise issues. Avoid conflict of interest.
Security of Tenure of Staff

161
Kalula E. Bosch C & Clarke M Draft report on Dispute Prevention & Conflict Resolution - Conference on
Labour Relations in Southern Africa, Johannesburg. 12 th - 15th October, 1999 at p. 69

Page | 54
Conciliators, Arbitrators and Judicial Officers must be appointed on a
permanent and pensionable basis to guarantee continuity and foster
professionalism.
 Case Management System

ADR AND COURT PROGRAMMES – DESIGN AND IMPLEMENTATION

PRGRAMMES

Performance to be monitored to between expected outcomes and actual

performance to enable continuous process improvement
planning reporting systems, monitoring and evaluation
PERFORMANCE INDICATORS AND
MONITORING AND EVALUATION

Establishment of an appropriate mechanism for monitoring the effectiveness of

the existing labour dispute prevention and resolution frameworks.
PERIODIC REVIEW OF STRATEGIES

Strategic plans of institutions offering ADR services and Industrial/ Labour

Courts to have as one of their strategic objectives, “fair, affordable and
expeditious delivery of justice.” Ultimate purpose of achieving quicker, fairer
and equitable results must be ensured. Annual reports to identify training needs,
among others.
PUBLIC COMPLAINTS MECHANISM

There is a need to devise a complaints mechanism where complaints may be

reported in order to evaluate performance and address gaps. Measure client
satisfaction with the system.
COLLABORATION AMONG ALL THE DIFFERENT DISPUTE RESOLUTION
PROCESSES

Law for basic conditions

A
321ccreditation to Private Dispute Arbitration
REGIONAL INTEGRATION

Regional integration in labour context within SADC implies co-ordinated

labour policies. Such international standards - e.g on equal opportunity to
employment and occupation. The significant movement of capital, goods and
services, between the SADC Member States Convention 111. suggests that
means should be sought to regularise such movements with a view to

Page | 55
minimising the unfavourable social consequences of such flows. There is
already integration in the movement of goods and services in the region in the
form of arrangements such as SACU (Southern African C..), but no co -
ordinated labour policies. With the prevalent movement of workers between
Member States because of a globalised economy, these policies will ensure that
these workers are not subjected to unfavourable working and social conditions.
SADC Social Charter 1 (g) - ‘promote the development of institutional
capacities as well as vocational and technical skills in the Region.’
Convention on Migration of Workers for Employment - 97 and 143
Platform for exchange of information and development of policies surrounding
ADR, conduct research, share experiences
Should aim for common rights of workers in SADC right to join unions enjoy
all the rights enjoyed by other workers.
Promotion of common trade union and worker right, harmonised conditions of
employment and labour law, Broader social, economic and political co -
operation and integration within SADC. Could be undermined by national
means.
Need to share experiences.
Possible areas of collaboration for training - a Regional Institute of Labour
Dispute Resolution to promote, facilitate on alternative dispute resolution
mechanisms including judicial officers Establishment of a regional resource
Centre (
Turin model?)
COLLABORATION AND CO - ORDINATION BETWEEN DISPUTE PREVENTION
AND RESOLUTION ACTORS

- Collaboration mechanisms between different actors dispute resolution

agencies, labour inspectorate, judiciary disharmony disintegration in
labour law regime. This can be achieved by Specialisation
Doing away with parallel or multiple dispute resolution avenues with unclear
demarcations between them.
Instead of competing. Labour inspection, ADR forums, Courts of law and the a
cademia.
agencies, labour inspectorate, judiciary disharmony disintegration in labour law
regime. This can be achieved by establishment of a specialisation tier of labour
dispute resolution agencies starting with an ADR forum, Industrial/ Labour The
different dispute resolution agencies should complement each other.

Page | 56
BIBLIOGRAPHY

Angelique Pouponneau - Mediation of Employment Cases in the Seychelles, …;

Civil Court Mediation Service Manual, UK - Version 3 - February, 2009;
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Kalula E., & Woolfrey D., (Eds) Southern African Labour Legislation:
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Kalula E., Bosch C., & Clarke M., Draft Report on Dispute Prevention and
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Maria Luz Vega and Ren`e Robert - Labour Inspection Sanctions: Law and
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Pharaoh Matireyi and Richard Dave : Labour Arbitration Effectiveness in
Zimbabwe : Fact or Fiction? January, 2011;
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Bushe B., The Efficacy of Alternative Dispute Resolution (ADR) in Labour
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Africa and Zimbabwe - LLM Dissertation, UNISA, 2019

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Kna``be T and Carrio`n - Crespo., The Scope of Essential Services : Laws,
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STATUTES

CASE LAW

Section 89Arbitration is entrusted to Arbitrators appointed in terms of the

Zimbabwe Arbitration Act (17.05) with arbitration costs borne equally by the
disputants.

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