The Scope of Labour Conciliation Mediation and Arbitration in Swaziland
by
Nathi Gumede
This article gives narrative and statistical detail on the nature and scope of the business of CMAC.
Recent statistics indicate that the total number of cases reported to CMAC is 6098. Out of the 6098 reported cases number 4180 were enquiries which could not be registered in the CMAC case management system. Such enquiries are however welcome because they provide CMAC with an opportunity to educate workers on their workplace rights and duties.
After disposing of the 4181 cases, the remaining 1886 were registered into the case management system for processing. The standard for processing conciliation cases is 90%. The processing rate currently stands at 98%. The backlog of pending CMAC cases is only 2%.
Other cases handled by CMAC sometimes have an indirect bearing on the rights of individual or unionized workers. These cases are referred to as disputes of interest. The number of these cases has however continued to decline. Possible explanations for this decline are either that workers are becoming less aggressive in making demands or that they are becoming more tolerant of the impact of the current economic conditions.
Conciliation is a process where an independent CMAC Commissioner helps the parties to agree on a settlement by helping each party understand whether their actions are fair or unfair according to labour law. If an agreement is not reached at conciliation the parties are then free to ask CMAC to hand the matter to another independent Commissioner to hear the evidence and make a binding decision on the basis of equity. This decision is called a CMAC Award.
A comparison of the conciliation and arbitration cases shows that conciliation continues to take the lead in CMAC proceedings. Conciliation accounts for 94% of the CMAC volume of business whilst arbitration only accounts for 6%.
Once cases have been registered in the CMAC case management system, parties are then invited for conciliation. Respondents’ invitations are hand-delivered at their premises by CMAC staff. These invitations have to be considered with the same level of seriousness as court summons. Applicants collect their invitations from the CMAC offices. Recently, out of 2426 invitations that were issued; 1213 were successfully served on respondents and 1176 were collected by applicants whilst 37 invitations remained uncollected. The Applicants are almost always the workers and Respondents are almost always employers.
If an employer (Respondent) does not come to CMAC after having been served with an invitation to conciliation, the Commissioner handling the case makes a Default Judgment in favour of the Worker (Applicant). The total number of default judgment in 2011 was 49.
If a Respondent (Employer) had a valid reason for failure to turn up for conciliation, the law allows the employer to apply to the Executive Director for Rescission of the Default Judgment. If the application for rescission is granted, the matter goes back to conciliation, if the application is rejected, the matter the Default Judgment stands. Out of the 49 Default Judgements issued, 35 rescission applications were subsequently received by the Commission. In 2011, 20 of the 35 applications were granted. This positive development notwithstanding, employers have to take CMAC invitation with the same level of seriousness as they do with court summons.
The hand-delivery of invitations helps reduce default judgments. It also help cut down on the time spend attending to each case at conciliation (the conciliation duration).
The hand-delivery of invitations also reduces the number of requests for postponements at the commencement of conciliation and by extension the number of pending cases.
The legal standard for concluding the conciliation process for each case is 21 days. It is currently not easy for CMAC to reach this standard. Recent statistics indicate that the conciliation duration average is 33 days. The reason for this is largely due to the increase in requests for postponement by the parties.
Some parties concede their wrongdoing before full-blown conciliation commences. This is called pre-conciliation. Out of the total conciliations heard, 1.1% are heard using the pre-conciliation process.
CMAC monitors the average settlement rate for conciliations. In 2011 the settlement rate was at 53% against the standard of 60%. CMAC also monitors the value of compensation agreed upon by the parties at conciliation (Conciliation Settlement Amounts). The annual settlements amounts have stabilized at around E1Million.
Recent statistics indicate that CMAC hears about 100 arbitration cases per year. Whilst some of these should be referrals for the Industrial Court, this practice is becoming a rarity. Out of the total awards (loosely - CMAC judgments) issues, 65% were in favour of applicants (Workers) and 35 % in favour of Respondents (Employers).
CMAC monitors the average number of arbitration days from referral to finalization. Whilst the standard if 45 days, the current performance is 57 days. Once the evidence has been adduced, arbitration awards have to be issued within 21 days. Currently, only 69% of the awards are issued within the statutory 21 days.
Compared to the Conciliation backlog, the backlog is higher in arbitration cases. On average 25% of arbitration cases remain pending, mainly as a consequence of non-attendance and/ or postponement of cases at the instance of the parties.
The trend is currently that amounts awarded in arbitrations annually reach the E1Million mark.
Case distribution by region indicates that the Manzini Region leads with 32.6% cases, followed closely by the Hhohho Region at 15%, Lubombo Region at 29%, and Shiselweni at 10%.
The Retail Sector continues to take the lead in case distribution with 27%, followed by the Security industry with 13%, Transport with 11% and the Agriculture sector with 5.7%. The four highest referring sectors account for over half the disputes received by the Commission.
Unfair dismissals dominate the distribution with 62%. They are closely followed by disputes over unfair terms and conditions of employment with 10.5%. Unpaid Wages and Constructive Dismissals account for at 4% of the cases.
Other CMAC activities include attending to strikes, balloting, retrenchments, company closures, verification counts and pickets.