• 3. The Procedures for Resolving Industrial Disputes Introduced in 1994
  
  • 3.1 The Context of the 1994 Reforms: The Procedures for Resolving Industrial Disputes contained in the 1982 Legislation
  • 3.2 The Aim of the 1994 Reforms
  • 3.3 The Procedures Introduced in 1994
  • 3.4 Mediation by the Commissioner of Labour
  • 3.5 The Procedure for Dealing with Protests against termination of Employment
  • 3.6. The Procedure for Dealing with Individual Grievances

3 The Procedures for Resolving Industrial Disputes Introduced in 1994

3.1 The Context of the 1994 Reforms: The Procedures for Resolving Industrial Disputes contained in the 1982 Legislation

In terms of the 1982 Legislation (which was operative until first April 1994), there were two separate legal procedures for settling a labour dispute, depending on whether the dispute related to an individual grievance or to a trade (i.e. collective) dispute.

page-number of print edition: 8

An individual grievance could be settled in one of two ways: either by taking an ordinary civil action for breach of contract in a civil court, or by protest to the Department of Labour where the grievance concerned a termination of employment. Such protests were first investigated and then determined by a labour officer who effectively operated a 'Labour Officer's Court', because section 27 of the Employment Act provided, that every order made by a labour officer in determining such disputes, should have the effect of a civil judgement of a Magistrate's Court.

Before long, however, it became apparent that this system imposed unrealistic demands upon labour officers:

"Without substantial legal training, labour officers were placed in an invidious situation where they were 'prosecutors, judges and jury' and furthermore the section constituted the Commissioner of Labour as the Court of Appeal. Moreover the accumulated statistics on reported cases suggested that the Department of Labour was becoming overwhelmed by the number of grievances reported... Given the demands which were placed upon it and lacking the requisite resources, the Department was clearly unable to carry out its statutory obligations." [Takirambudde, P.N., and Molokomme, A.L., p. 13

An entirely separate procedure for resolving collective trade disputes was contained in the Trade Disputes Act of 1982. This Act also required a government officer, known as the Permanent Arbitrator to exercise a quasi-judicial role in determining such disputes, but like its sister procedure under the Employment Act, this mechanism similarly failed to achieve its intended impact, due to a lack of "personnel and other requisite supporting resources" [Takirambudde, P.N., and Molokomme, A.L., p 14 .

3.2 The Aim of the 1994 Reforms

The need to reform these labour dispute resolution procedures was given further impetus by the 1990 Report of the Presidential Commission on

page-number of print edition: 9

the Review of the Incomes Policy. This report recommended that state intervention in industrial relations and trade disputes should be radically reduced. In the Commission's view, the time had arrived when collective bargaining should replace Government intervention as the primary mechanism for determining pay and conditions of employment. In reaching this conclusion, the Commission was nevertheless concerned that the growth in formal sector employment would continue to generate an increasing number of disputes, and accordingly it advocated the establishment of a permanent Industrial Court to resolve those disputes which could not be settled through direct negotiation and consultation. Government accepted these recommendations by introducing appropriate amendments to the Trade Disputes Act. These were passed by Parliament in October 1992, but the new procedures were not operative until first April 1994, when the Industrial Court was given authority to commence its work.

In a 1995 address, the Commissioner of Labour described the significance of these changes in the following terms:

"Prior to the establishment of the Court, officers of the Department had extensive powers not only to investigate grievances and disputes, but also to arbitrate and make a determination with the legally enforceable powers of a Magistrate. Under the amendments to the Employment and Trade Disputes Act, these powers have been significantly reduced, and the new role of the Department emphasises the functions of mediation and conciliation to bring about voluntary and mutually agreed settlement of grievances and disputes.

The liberalisation, and deregulation of the economy, has also meant, that the role the Department used to play in early intervention in collective disputes, during the outbreak of industrial action for example, has also been significantly reduced. The responsibility for the settlement of such disputes has been transferred back to employers and employees, through trade unions, through direct negotiations and collective bargaining, or mediation, and ultimately the Industrial Court." [Palai, M.]

page-number of print edition: 10

3.3 The Procedures Introduced in 1994

The 1992 Trade Disputes (Amendment) Act, which was effective from first April 1994, provided three procedures for resolving a trade dispute:

• The Commissioner of Labour may mediate between the parties to a trade dispute, and any trade dispute may be referred directly to the Commissioner of Labour for such mediation. Any collective dispute may be referred to the Commissioner of Labour under this procedure (see 2.4 below)
• A protest against termination of employment may be made to the nearest district labour officer (see 2.5 below)
• An 'individual grievance' (arising for example from a dispute over the terms of an individual contract of employment) may be referred to the nearest district labour officer (see 2.6 below)

Where a dispute is referred for mediation in accordance with one of the above procedures, and mediation fails to resolve the dispute, the Commissioner of Labour may issue a certificate to enable the dispute to be taken to the Industrial Court.

With reference to the above classification of disputes, analysis of the first 150 cases heard (and judged) by the Industrial Court indicates that the types of dispute which are referred to the Industrial Court are as follows:

• 10% of cases involved a collective dispute
• 23% of cases involved an individual grievance
• 83% of cases involved a protest against termination of employment

(Note that some cases involved two types of dispute, such as where an employee claimed both compensation for unlawful dismissal and payment of severance benefit or overtime worked but unpaid.)

page-number of print edition: 11

3.4 Mediation by the Commissioner of Labour

The Commissioner of Labour has always been able to attempt mediation in industrial disputes. In terms of section 4 of the 1982 Trade Disputes Act, where the Commissioner of Labour is satisfied that a trade dispute exists or is anticipated, he may himself mediate between the parties to the dispute or authorise some other person so to mediate. Section 6 of the 1982 Act also gave the Commissioner a particular role in mediating collective disputes by providing that where a dispute has been reported to the Commissioner and 'he is of the opinion that suitable means for reaching a settlement of the dispute exist by virtue of a collective labour agreement, he shall refer the dispute for settlement by those means unless he is satisfied that there has already been a failure to reach a settlement of the dispute by those means'. However, where the Commissioner does not refer the dispute for settlement under subsection (1), or where he is satisfied that these means have failed to produce a settlement, it was further provided that he then has a responsibility:

• (a)to inquire into the causes of the dispute by requesting every party to it to appear before him, and
• (b)to take such steps as may appear to him necessary or expedient to reach a settlement of the dispute, which may include conciliation and a request that the parties attempt to negotiate a settlement.

These powers of mediation were not affected in any way by the 1992 Trade Disputes (Amendment) Act. However, the 1992 Act recognised the potential role of the new Industrial Court in resolving collective disputes, by providing that if attempts to reach a voluntary settlement did not succeed within 42 days after the dispute was referred to the Commissioner (or longer if all parties involved so agree), the Commissioner then became obliged to issue a 'section 7 certificate' which permitted a party to take the dispute to the Industrial Court. The Commissioner also had power at any time within the 42-day period to issue this certificate.

page-number of print edition: 12

3.5 The Procedure for Dealing with Protests against termination of Employment

The 1992 Act introduced an entirely new procedure for dealing with such protests. Since it is this procedure which proved to be problematic and unreasonably technical, it is necessary to describe the procedure in some detail.

In terms of the 1992 amendments (which were effective from 1 April 1994), where an employee wished to protest against termination of employment, he or she should make a written report to the nearest labour officer. If such protest was not made within 14 days immediately after learning of the termination or intended termination, section 5 (6) (d) provided that the employee is deemed to have waived the right to protest. Similar rules also applied where an employer wished to protest against an employee who had deserted without giving notice (or making payment in lieu of notice under section 19 of the Employment Act).

The 1992 Amendment Act provided that where such a protest was made, the role of the labour officer was to mediate between the parties. The Act therefore stated that the labour officer should "enquire into the circumstances giving rise to the protest to try to secure a resolution of the conflict acceptable to both the employer and the employee". A new policy introduced by the Department of Labour and Social Security emphasised that:

"The labour officer's objective is to bring about a mutually acceptable solution and not to pass judgement. The labour officer however, will form an opinion on the case and try to persuade the parties to accept a solution. Unless agreement is reached at the meeting, the labour officer will record details of the case and the recommended solution and send copies to each party. If within a reasonable period of time the dispute over the termination has not been resolved, the labour officer then reports the case to the Commissioner. The law does not specify the length of time for mediation at the level of the labour officer, but it is the department's policy to move things as quickly as possible. Once

page-number of print edition: 13

the employer and the employee have received the written recommendation of the labour officer, it is up to them to respond, if the case is to be pursued further" [Palai, p. 6 ]

After the labour officer's report on an unresolved dispute was received by the Commissioner of Labour, further attempts could be made to bring about a voluntary settlement within a period of up to 21 days (or longer if all parties involved so agree). But once this period has elapsed, the Commissioner became obliged by section 7 to issue a certificate, which permitted either or both parties to take the dispute to the Industrial Court. The Commissioner had power at any time within the 21-day period to issue this so-called 'section 7 certificate'.

3.6. The Procedure for Dealing with Individual Grievances

Although the term 'individual grievances' was not used in the 1992 Amendment Act, it is a convenient residual term to describe those disputes which are not concerned with termination of employment and which do not amount to collective disputes. A grievance in this category will usually be concerned with the terms and conditions of an individual contract of employment.

The new procedure for dealing with individual grievances was broadly similar to that for handling protests against termination of employment. Once again, the employee or employer should initially report the matter in writing to the nearest labour officer who attempted through conciliation and mediation to settle the dispute by mutual agreement. If this failed, the labour officer should similarly report the matter as an unresolved dispute to the Commissioner so that a further attempt at mediation could be made before a 'section 7 certificate' was issued.

There were however two main differences between the procedure for dealing with individual grievances and that for dealing with protests against termination. These were that in the case of an individual grievance:

page-number of print edition: 14

• The initial report to a labour officer did not have to be made within 14 days. There was in fact no time limit stated in the Act for reporting an individual grievance.
• The Commissioner was not obliged to issue a 'section 7 certificate' until 42 days have elapsed after receipt of the labour officer's report on an unresolved dispute.