Transcript INSTITUTE OF ADMINISTRATION AND COMMERCE

ANNUAL CONFERENCE
CARRIBEA BAY RESORT, KARIBA
3 OCTOBER 2014
Originally, the concept of arbitration was seen
as “a primitive form of justice mainly
conceived as an institution of peace, the
purpose of which was not primarily to ensure
the rule of law but rather to maintain
harmony between persons who were destined
to live together” (R. David, 1895).
Growing dissatisfaction with:
 the adversarial nature of traditional
litigation methods and outcomes.
Litigation produces only winners and
losers and often at very high costs
financially and emotionally.
 Relations
are irrevocably damaged
People are emotionally and financially
damaged.
The reputation of lawyers and the
justice system decline (Marshall, 1998
page 795)
These were the primary motivators to
final alternative method of addressing
and resolving conflicts and disputes.
ADR with its win win persona
appeared to fulfill the hopes of the
people.
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ADR includes processes such as:
Arbitration
Mediation
Conciliation
Negotiations
A method of settling conflicts whereby parties
submit their dispute to a third party, who is
not acting as a state court and who makes a
binding decision. The decision normally is not
required to be legally based and needs no
thorough motivation
A process where a third party (the mediator)
with the consent of disputing parties
intervenes in a conflict. Its elements are
democratic decision making, consensus on
both the process and the eventual solution,
self
determination,
voluntariness
and
confidentiality.
Often used as a synonym of mediation since
both processes are presided over by a third
party.
The Chartered Institute of Arbitrators (CIArb)
describes conciliation as a process whereby a
Conciliator investigates the facts of the case,
attempts to reconcile the opposing parties and
asks them to formulate their own proposals for
settlement of the case by indicating strong and
weak points of their argument and the possible
consequences of failure to settle.
A mutual discussion leading to an agreement.
Several authors regard it as a conference
more than a method of resolving a conflict.
THE CONSTITUTION
Section 65 LABOUR RIGHTS
 Sec 65(1) Every person has a right to fair and safe
Labour practices and standards and to be paid a fair
and reasonable wage
• Section 69 RIGHT TO A FAIR HEARING
 69(2) In the determination of civil rights and
obligations, every person has a right to a fair,
speedy and public hearing within a reasonable
time before and independent and impartial court,
tribunal or other forum established by law.
69(3) Every person has the right of
access to the courts, or to some
other tribunal or forum established
by law for the resolution of any
dispute.
 69(4) Every person has a right, at
their own expense, to choose and be
represented by a legal practitioner
before any court, tribunal or forum.
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Sec 2A PURPOSE OF ACT
1. The purpose of this Act is to advance social
justice and democracy in the workplace by(f) securing the just, effective and expeditious
resolution of disputes and unfair labour
practices.
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Sec 98
98(2) Subject to this section, the Arbitration Act [CAP
7:15] shall apply to a dispute referred to
compulsory arbitration
98(6) The Minister, in consultation with the Senior
Judge of the Labour Court and the appropriate
advisory councils if any, shall from time to time
prepare a list of arbitrators.
98(9) In hearing and determining any dispute an
arbitrator shall have the same powers as the Labour
Court.
98(10) An appeal on a question of law shall lie to the
Labour Court from any decision of an arbitrator
appointed in terms of this section.
93(I) A labour officer to whom a dispute or
unfair labour practice has been referred, or
to whose attention it has come, shall
attempt to settle it through conciliation, or
if agreed by parties by reference to
arbitration.
(2) If the dispute or unfair labour practice is settled
by conciliation, the Labour Officer shall record the
settlement in writing.
(3) If the dispute or unfair labour practice is not
settled within thirty days……the Labour Officer shall
issue a certificate of no settlement……..
(4) After a Labour Officer has issued a certificate of
no settlement, the Labour Officer, upon consulting
any Labour Officer senior to him…..
(a) shall refer the dispute to compulsory
arbitration.
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Section 4 What may be arbitrated
4(I) Any dispute which the parties may have agreed
to submit to arbitration.
5(2) Where an enactment provides for the
determination of any matter by arbitration, the
provisions of that enactment, to the extent that
they are inconsistent with this Act, shall prevail.
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THE ARBITRATION TRIBUNAL
Legal source?
Is it a Labour Court?
Is it subordinate to the Labour Court?
One man court.
No rules
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Selection
Training
Background
Integrity
Competence
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Execution
Finality
Systematic
Standard
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Flexibility
Confidentiality
Enforceability
Lower costs
Speed
Neutrality of arbitral venue
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Done after workplace hearing
Legal representation at an early stage
Not of any useful purpose
No gain
Putting cart before the horse.
THANK YOU FOR YOUR
ATTENTION.