My best experience with the Industrial Court was when Dunseith Judge President, as he then was, stated that I had gamely defended my client in his Court. Then I had never come across the word GAMELY. This is how the judge phased his compliment: “Mr. Gumedze for the Applicant gamely responded to these arguments, stressing that his client's right to an expeditious hearing should override the Respondent's objections.” the case in point was that of Zodwa Gamedze v Swaziland Hospice at Home Industrial Court Case No. 252/2009. The issue was whether the Industrial Court should refer the case to Arbitration. After the case had been delayed for close to three months in the Industrial Court, I had to request the Court to refer the cae back to the Conciliation, Mediation and Arbitration Commission (CMAC). The case touched on whether the Industrial Court had confidence that CMAC Arbitration was of the same quality as Industrial Court Adjudication.
The role of the Industrial Court is the adjudication of legal matters on the principles of fairness and simplicity. This is why lawyers who do not appear in the current list of legal practitioners or hold even a mere certificate in law are able to represent workers in the Industrial Court.
The leading case on the subject of arbitration referral in Swaziland is the Sydney Mkhabela v Maxi-Prest Tyres (IC Case No. 29/2005). This case was cited with approval in the case of Zodwa Gamedze v Swaziland Hospice at Home Industrial Court Case No. 252/2009. In the latter case it was argued that factors that militate against referral to arbitration include complex issues of law arising for determination, the amount involved. Mr. Simelane for the Respondent also argued that his client would not have control over the choice of arbitrator and that therefore the Respondent had more confidence in the Industrial Court than in an arbitration tribunal.
The Maxiprest and Hospice at Home Cases were further cited by Nsibande JP in Mabuza v Medicine Sans Frontiers IC Case 455/2009, Hlophe v Swaziland Beverages Limited Case No 412/2007, Mngometulu v Ukuthula Roadworks Industrial Court Case No: 553/2006.
The amount involved in the Maxiprestcase was E36,000; E160 000 in the Hospice case; E28,000 in the Frontiers Case and E50,000 in the Beverages Case. The court perceived all of these amounts as substantial. These cases however give little guidance on the cut off between what is substantial and what is not. The highest award that CMAC has ever issued was in the case of Dr. Crescent Tigagambi v Ministry of Health; where CMAC had to decide on a claim for E1Million for unfair dismissal.
The Maxiprest case was very detailed on the difference between Adjudication under the Industrial Court and Arbitration under CMAC.
In the Maxiprest case, the Judge President contracted CMAC Arbitration to. He went on to state that “Private arbitration agreements often provide that the decision of the arbitrator shall be final, based on the high level of confidence reposedin the arbitrator chosen by mutual consent. It is very different to subject a litigant to adjudication by an arbitrator not of his choosing, and render the decision of such arbitrator final on all issues of fact.” This reasoning on the part of the public has continued to fly in the face of common sense, simplicity and expedition of arbitration.
Dunseith JP contended contrary to this proponents of robust justice perceive Industrial Court adjudication as of a comparatively higher standard of judicial process and reasoning. He however acknowledged that in the field of industrial relations, the need for a user- friendly process and a speedy outcome should override any claim of right to the benefits of formal court proceedings and judicial deliberation. He then stated that factors that would be considered include the complexity of the factual issues in dispute; the complexity and/or novelty of any legal issues requiring determination; the nature of the relief claimed; whether the matter lends itself to determination by the more flexible and simple process of arbitration; whether the matter can be determined more expeditiously by way of arbitration; and whether any party will be prejudiced, directly or indirectly, if the matter is referred to arbitration.
Since Maxiprest, the tendency of the Court has been to reject applications for arbitration referral. All of the arbitration referral cases have been perceived to be complex.
Another statement that was made by Dunseith JP in the Maxiprest case was the “CMAC Commissioners are not required by law to hold judicial qualifications, nor is it to be expected that a CMAC arbitrator shall offer the same degree of legitimacy and judicial authority as that of the Industrial court”. In an effort to reverse this perception, all CMAC Arbitrators are now experienced Attorneys with a minimum of an LLB Degree. Some of them qualify to be judges. Evidence for this is the current Acting Judge of the Industrial Court who previously served CMAC as an Arbitrator. The CMAC Awards on the SwaziLii Website are evidence of quality adjudication.
CMAC has however decided complex cases, the quality of which has been endorsed by the High Court and the Supreme Court. such as the Fire Shift System Case which was one of the most prolonged and expensive process for conflict resolution. This case is the SNACS/Fire Services Employees v PS Public Service and Others CMAC Case 1244/03. The matter was heard once by CMAC, once by the Industrial Court, Twice by the High Court and twice by the Court of Appeal/Supreme Court. The case started in 2003 and ended in 2011. Government was by and large the winner in this case. What the workers wanted was to continue enjoying overtime payments under the Three-Shift System; they lost these payments under the new Four-shift System.
Proposals for change in the shift system commenced in 2003 when the Swaziland National Association of Civil Servants (SNACS), inter alia, demanded payment of overtime hours from Swaziland Government on behalf of the employees of the National Fire and Emergency Service. The Statute that Establishes the Fire and Emergency Services is the Fire and Emergency Services King’s Order in Council 1975. Section 96(6) of the Industrial Relations Act 2000 states that“any party to a dispute is precluded from participating in a strike or lockout by reason that that party is engaged in an essential service may refer the dispute to the Commission (CMAC) which shall immediately call the parties involved in the dispute to conciliate.
Earlier on, Government succeeded to sign a Collective Agreement to pay less than what was envisaged in previous Government General Orders. The Union fell into this trap but later changed its wanted to change its mind.
The Case commenced with protracted and futile negotiations for the payment of overtime in terms of the The Wages Regulations Act 1964. Government insisted on the terms of a Collective Agreement that offered less overtime to the employees represented by the Union.
The case was then referred to CMAC for conciliation. This attempt was also futile.Invoking Section 85(1) of the Industrial Relations Act 2000 (Statute), CMAC issued a Certificate of Unresolved Dispute after the parties could not agree on anything at CMAC conciliation.
After the futile appearance at CMAC Conciliation, the Union referred the dispute to CMAC Arbitration underSection 96(3) of the Industrial Relations Act 2000 (SNACS for Fire Services Employees v PS Public Service and Others CMAC Case 1244/03). The Arbitrator, inter alia, amended the agreement by changing the 56 hours in the Collective Agreement to 48 Hours to make the Collective Agreement consistent with the Government General Orders. The Arbitrator then, inter, alia, awarded the Union payment of the period worked in excess of the 48 hours. The provisions of Section 74 0f the South African Labour Relations Act are similar to the Sections 85 and 96 of the Swaziland Industrial Relations Act insofar as both provide for conciliation and subsequent arbitration in the event of an essential services strike.
Dissatisfied with the decision, Government took the Arbitration Award for review by the High Court (Swaziland Government v Aaron Dlamini, CMAC and Others HC 2954/04) partly on the grounds that the Arbitrator had no powers to amend the Collective Agreement. The High Court rejected this agreement and thereby confirmed the decision of the Arbitrator. The Court also held that this section does not make Conciliation compulsory. Section 19(5) of the Industrial Relations Act 2000 provides that an award issues by a CMAC Arbitrator is reviewable by the High Court
Dissatisfied with the decision of the High Court, Government approached the Supreme Court (Swaziland Government v Aaron Dlamini and Others CA 4/2005) to appeal against the decision of the High Court. The Court of Appeal confirmed the ruling of the High Court and by extension, the decision of the Arbitrator.
Burdened with the 2005 decision for cost of overtime in excess of 48 hours, the Government introduced a Four Shift Work System, moving away from a Three Shift Work System. The Union approached the Industrial Court (SNACS v Swaziland Government and Others IC 494/2010) for an interdict against the implementation of the Four Shift Work System on the grounds that the issue was subject to negotiation beyond just mere consultation. Citing various cases on the controversy of consultation and negotiation, and observing that, “in negotiations the parties work towards an agreement and compromise, whereas in consultation, through advice, permission or approval is sought, parties need not agree or reach compromise”, the Industrial Court’s decision was that the Shift System was subject to negotiations in line with Article 7 of the Recognition Agreement.
Dissatisfied with the decision of the Industrial Court, Government took the Industrial Court decision for review in the High Court (Swaziland Government and Others v SNACS HC 4276/2010). Setting aside the decision of the Industrial Court, The High Court took the view that the introduction of the four shift system is a work practice that falls within Managerial Prerogative and that the Applicant (Government) was not obliged to negotiate with the Respondent (the Union) on the introduction of the Four Shift System”.
Dissatisfied with the decision of the High Court, the Union appealed against the High Court Decision. Confirming the decision of the High Court, the Supreme Court (SNACS v Swaziland Government and Others IC 494/2010) concluded that the employer had the prerogative to formulate policy position, improvement of efficiency and increased productivity as well as the reduction of operational costs…the employer is not expected to negotiate …on issues relating to managerial prerogative”.
There is in light of the discussion above a need for the Tripartite partners to review current trend of lack of trust in CMAC Arbitration.