SA’s impressive dispute settling statistics are compelling enough to explore the case for entrenching ADR into Zimbabwe’s labour dispute resolution system.
SA’s phenomenal turnaround was driven by the Commission for Conciliation, Mediation and Arbitration (CCMA), a body set up through the SA’s amended Labour Relations Act of 1995 (LRA) to coordinate and professionalise labour-related ADR.
The pre-CCMA epoch astoundingly mirrors Zimbabwe’s current labour dispute challenges. Here is a quote from the CCMA to underline the striking similarities: “The failure of the statutory structure to resolve these disputes resulted in an excessively high load for the Industrial Court. However, in certain circumstances, the laws themselves impeded the promotion of good relations”.
It should be noted that the LRA came after the overthrow of apartheid. What is interesting is that prior to the amendment, SA’s labour laws incorporated Conciliation Boards and the Industrial Court, quite similar to our current labour dispute resolution structure as provided for in the Labour Act (28:01) in which labour officers administer conciliation and the Labour Court (LC) administers compulsory arbitration. In essence, our Labour Act provides no structures for ADR, by default, buttressing an adversarial paradigm of labour dispute resolution. One reason, as cited by SA’s CCMA for the failure of Conciliation Boards and the Industrial Court model is that these supposedly dispute resolution structures were patently anti-labour and brazenly biased towards business. In Zimbabwe, though a moot point, it can be argued that the Labour Act is to a large extent pro-labour. Under such circumstances, the dispute resolution mechanism becomes a dispute complicating system.
Six lessons can be gleaned from SA’s dispute resolution architecture.
- First, to increase the labour dispute resolution rates we need an independent labour dispute authority to coordinate and professionalise ADR. In SA, the body that administers ADR, the CCMA, was established by an act of parliament through section 112 of the LRA as an independent body. Section 113 of the LRA states that the CCMA shall be independent of the state, political parties, employers, employers’ organisations, trade unions, federations of trade unions and federations of employers’ organisations. The CCMA practically gets the entirety of its funding from the state. How then can the CCMA be said to be independent of the state? The CCMA is expected to show no partiality in the process of solving disputes. Thus the proof of independence is in its action and conduct, not its funding relationship with the state.
- Second, the LRA empowers the CCMA to make rules for the conduct of labour dispute hearings within the framework of escalation. The LRA stipulates that the CCMA shall first attempt to settle disputes through conciliation. When conciliation fails, the CCMA is empowered to use arbitration to solve the dispute within the scope of disputes the CCMA can handle. The CCMA produces information sheets, explaining the meaning of conciliation and arbitration. The CCMA has gone a step further to hybridise the basic forms of ADR, the conc-arb (conciliation-arbitration) being one such hybrid. Our Labour Act does not define what conciliation means. The CCMA provides a clear conceptual delineation of the meaning of conciliation, how it is to be conducted and the circumstances conciliation is appropriate. Zimbabwe’s Labour Act must define and scope conciliation.
- Third, the CCMA allows for de-escalation and the handling of cases that ordinarily would have to be handled by the LC. De-escalation means that a dispute that initially failed to be settled through conciliation and subsequently taken for arbitration can still be referred back for conciliation. In principle, disputes of right are to be heard directly by the LC. A dispute of right is a dispute arising from unlawful labour practices — a violation of the provisions of the labour law such as unfair dismissal, discrimination, denying rights entrenched in the act, for instance. Disputes of interest arise from unfair labour practices (not necessarily unlawful). Disputes over working conditions and pay increments are examples. Besides disputes of interest, the CCMA is also empowered to solve disputes of right, if the disputants so wish. Zimbabwe should adopt the escalation/de-escalation principle.
- Fourth, the CCMA is empowered by the LRA to enforce its decisions. The CCMA’s decisions do not need to be registered with the LC for them to become binding. In Zimbabwe LC judgements must be registered with the High Court, creating a large inventory of unfinalised cases. Large inventories, whether it is bank queues or waiting lists, are a sign of inefficiencies hiding huge business costs. In Zimbabwe the cost of huge inventories of unfinalised cases is the accumulation of avoidable labour costs in between the LC’s judgement and ratification by the High Court. Settlements done by CCMA through conciliation, mediation and arbitration are legally binding. In Zimbabwe, any settlements arrived at through ADR are not legally binding and depend on the goodwill of disputants to uphold settlement agreements. CCMA decisions are final, with room to apply to the LC to set aside arbitration awards on grounds of irregularity and misconduct.
- Fifth, the LRA did not throw away the baby with the water, retaining courts, but de-emphasising their pre-eminence. It provides for the LC and the LC of Appeal to arbitrate disputes involving unlawful labour practices. In Zimbabwe we have the LC. However, a dedicated LC of Appeal is absent. Our High Court serves as the labour court of appeal. The LC of SA now handles fewer cases because the CCMA’s 70% settlement rate means fewer cases spill over into the LC and even fewer escalate to the LC of Appeal. Zimbabwe needs to clear its labour dispute cases inventories. De-judicialising Zimbabwe’s labour dispute resolution as far as is possible and empowering the LC to handle appeals and enforce its decisions will reduce the costs of the inventories of unfinalised labour disputes.
- Last, the CCMA is as much about dispute prevention as it is about dispute resolution through capacity building. The CCMA also accredits private organisations to undertake ADR. Thus in SA there is a dispute resolution menu: Bargaining Councils, private institutes, CCMA and the courts. Thus accredited bodies can solve labour disputes in their own right. In fact, disputes between labour federations are to be resolved by the federations according to the LRA. The CCMA also respects private settlements done through CCMA-accredited bodies, including the public service bargaining councils. SA’s labour dispute resolution architecture is pyramidal, meaning the bulk of cases are solved at lower levels and disproportionately fewer cases are solved at higher levels. In contrast, Zimbabwe’s architecture is an “inverted pyramid” where the bulk of unresolved cases sit at the higher levels. A pyramid standing on its pointed end is unstable. The result, “disputes within a dispute”.
The current labour reform process should not miss the opportunity to adapt the successes of SA’s CCMA.
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