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Arbitration guidelines

24/08/2013 02:54:00 By Mthundzi Shabangu

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This article intends giving CMAC stakeholders a comprehensive overview of what is entailed in an arbitration hearing.

Parties to a dispute that remained unresolved at conciliation and are both desirous that their dispute be determined through arbitration within CMAC are required to fill up and sign CMAC form 8, being a Request for Arbitration, to confirm their mutual consent to arbitration. This Form mandates CMAC to appoint an Arbitrator to determine the dispute through the process of arbitration.

No unresolved dispute shall be referred to arbitration unless the disputing parties (Applicant and Respondent) sign this Form, except for the following instances wherein the consent by both parties is not required before an unresolved dispute is referred to arbitration under the auspices of the Commission (CMAC).

These exceptions include; firstly, disputes which involve an application by a registered organisation, be it a Trade Union or a Workers’ Council, to be recognised by an employer as a collective employee representative to negotiate terms and conditions of employment for its members.
In terms of Section 42(11) of The Industrial Relations Act, 2000 (as amended), if a dispute involving an application for recognition of a Trade Union is unresolved at conciliation, CMAC is authorised to refer it to arbitration without seeking for the consent of both disputing parties.

The second exception involves disputes of interest that emanate from the essential services sectors. These are sectors or industries which are designated by the Essential Services Committee as providing a service whose interruption would endanger the life, personal safety or health of the whole or part of the population.

They include water services, electricity services, fire services, health services, sanitary services, telephone and telegraphic services.
In terms of Section 96(3)(a) of The Industrial Relations Act, 2000 (as amended) any party to a dispute of interest (not a dispute of right) emanating from this sector and which remained unresolved at conciliation, may refer it to arbitration by CMAC without the consent of the other party.

The third exception relates to disputes that are referred back to CMAC by the Judge President of the Industrial Court to be determined through the process of arbitration. In terms of Section 8(8) as read together with Section 85(2)(a) of The Industrial Relations Act, the Judge President of the industrial Court has the power, upon receipt of an application, to decide whether a certain dispute which remained unresolved at conciliation can be referred to arbitration under the auspices of the Commission.

Resolve

This goes to show that a refusal by one party to have a matter referred to arbitration if conciliation failed to resolve it does not mean an end of the story or that the party who wants a determination of the dispute through arbitration has got no remedy. The party who is desirous that the matter be referred to arbitration is allowed to present an application before the Industrial Court to compel that the matter be referred to arbitration at CMAC for a final determination.

As soon as a dispute is referred to arbitration before CMAC, the Commission swiftly appoints an Arbitrator which marks the commencement of the arbitration process. CMAC’s Arbitrators are admitted Attorneys of the High Court of Swaziland with practical litigation experience both before the High Court, the Industrial Court and the Superior Courts of Swaziland.

Enable

Moreover, they receive specialised arbitration training to sharpen their skills and enable them to conduct the arbitration process in the most appropriate manner in order to determine the dispute fairly and quickly.
The gazetted target by the Commission is that an arbitration hearing should take, at least, forty-five (45) days from the date of appointment of the Arbitrator and the Arbitrator has twenty-one (21) days thereafter to write the decision or judgment which is called an Award.

These targets are in terms of Rule 21(4) of the CMAC Rules and Section 85(4)(a) of The Industrial Relations Act respectively. In any arbitration proceedings, the parties to the dispute may appear in person or be represented by their lawyers or any other person of their own choice who is knowledgeable in labour law.
Next week’s Article will unpack the stages of an arbitration hearing.