CONCILIATION AND ARBITRATION
Conciliation in Zimbabwe is provided for under section 93(1) of the Labour Act (Chapter 28:01) hereinafter called “the Act”.
Conciliation is an attempt by a third party to resolve a dispute. The parties are invited to appear before a conciliator who is the Designated Agent (DA). If parties settle, a certificate of settlement is issued. Nonetheless, if parties fail to settle a certificate of no settlement is issued and the conciliator requests that parties to a dispute submit heads of arguments which are used to come up with a draft ruling. Such a draft ruling should be confirmed with the Labour Court in the jurisdiction where the matter was committed. This is only applicable to disputes of rights.
Arbitration is the process of solving civil disputes which take place in private. if an agreement is reached by the disputing parties, the parties should be willing to be bound by the decision to be produced by the arbiter in terms of the law, following a fair hearing process. The act provides for two forms of arbitration:
- Voluntary Arbitration
- Compulsory Arbitration
Is provided for under section 93(1) of the labour act. The Act governs compulsory arbitration. Voluntary arbitration mainly arises from three distinct scenarios, namely:
- Where parties agree to withdraw from mandatory conciliation to pursue voluntary arbitration in terms of section 93(1) of the Act.
- Where after conciliating a dispute of interests, a certificate of no settlement has been issued and the parties agree to submit for voluntary arbitration in terms of section 93(5)(b).
- Under the Arbitration Act 1996, following an arbitration agreement.
Compulsory Arbitration largely arises when the disputing parties fail to have a meeting of minds and subsequently a certificate of no settlement is entered into to signify the end of the conciliation and a passport for migration to arbitration.
Four key elements arising from these particular provisions to note in compulsory arbitration are:
- The Labour Officer who would have signed a certificate of no settlement should first consult his superior before referring the matter.
- The arbiter entertaining a dispute for compulsory arbitration should have received it from another Designated Agent, Labour Officer or the Labour Court as a reference matter.
- The nature of the dispute should be a dispute of interest (a dispute where no clear obligations and rights have been established)
- the nature of the industry, in that, it must be an essential service.