CHIWESHE
JP: The legal issue that arises in this
chamber application is whether the provisions of the Labour Act [Cap 20:01] exclude the jurisdiction of
the High Court in areas where the Labour Court has jurisdiction.
Section 89 (6) of the Labour Act
provides:-
“No court other
than the Labour Court, shall have jurisdiction in the first instance to hear
and determine any application, appeal or matter referred to in subsection (1).”
Section 89 of
the Labour Act spells out the functions, powers and jurisdiction of the Labour
Court.
In
Tuso V City of Harare 2004 (1)
ZLR (H) BHUNU J had occasion to consider the legal import of s 89 (6) of the
Labour Act. The learned judge concluded
at p 3 F as follows:-
“It is
manifestily clear to me that the intention of the legislature was to expressly
exclude the jurisdiction of all other courts in areas where the Labour Court
has jurisdiction in the first instance.”
I
am in entire agreement with that conclusion.
It is important to note the historical
context in which
the Labour Court was created. Its predecessor,
the Labour Relations Tribunal, was limited in terms of its powers and
jurisdiction. Its decisions were subject
to review by the High Court in much the same way as the decisions of any other
domestic tribunal would be. Even then
this court always took the view that a litigant must first exhaust the internal
remedies availed to it in terms of the Labour Act, before approaching it for
relief.
The Labour Relations Tribunal was in
2003 transformed into a court whose powers of review were the same as those of
the High Court subject to the provisions of s 89 (1) of the Labour Act. The intention of the legislature clearly was
to establish a one stop shop for all labour matters and provide finality in
litigation involving labour issues.
Otherwise why create a structure that is parallel to the High Court? However, this exclusive jurisdiction only
exists for matters provided for in s 89 (I).
In the present application the
applicant seeks to register an arbitral award with this court in terms of s 98
(14) of the Labour Act. The respondent
opposes the application on the basis that the arbitral award offends public
policy in terms of art (s) 34 and 36 of the Arbitration Act. It has incorporated by reference papers it
filed under case number HC 5560/10, a separate application , and has argued
that the present application and that filed under case HC 5560/10 be heard
together. I agree with the applicant that the correct procedure would have been
for the respondent to file a counter chamber application in terms of Rule 229
A which reads:-
“Where a
respondent files a notice of opposition and Opposing Affidavit , he may file,
together with these documents, a counter application against the applicant, in
the form, “mutatis mutandis” of a
court application or a chamber application whichever is applicable.”
In
any event it would be improper to join the two applications because the time
within which the second respondent under case number HC 5560/10 (the arbitrator)
must file a notice of opposition has not expired. The second respondent's defence in that
application is therefore not yet known.
I
have however taken the liberty to consider the heads of argument filed by the
respondent under case 5560/10 for purposes of determining the present
application. I agree with the applicant that the extent to which
the provisions of the Arbitration Act are applicable in labour matters is governed
by s 98 of the Labour Act subsection 2 of which provides:-
“Subject to this
section the Arbitration Act [Cap 7:15]
shall apply to a dispute referred to compulsory arbitration.”
Section 98
provides for inter alia the referral
of matters to compulsory arbitration, the appointment of arbitrators, appeals
against decisions of arbitrators, reviews and other remedies. These provisions are detailed and
comprehensive. Clearly it could not have
been the intention of the legislature that parties aggrieved by the decision of
an arbitrator in a labour dispute seek remedy in terms of s 34 or 36 of the
Arbitration Act.
I agree with the applicant that the
correct interpretation would be that, with regards the law, the Labour Act
takes precedence over the Arbitration Act and any other enactment. The intention of the legislature was to have
all labour matters initiated and resolved to finality in terms of the Labour
Act. Equally, the legislature must have
intended that such matters be dealt with by the Labour Court to the exclusion
of any other court.
Sections 34 and
36 of the Arbitration Act are not applicable in cases where the award sought to
be challenged relates to a labour dispute.
The mechanisms for challenging such awards are provided for in the
Labour Act and may be accessed through the medium of the Labour Court. No other court has jurisdiction to entertain
such matters.
In the present case the respondent
has lodged an appeal with the Labour Court.
The appeal is still pending.
Should the respondent wish to have the arbitrator's determination
suspended pending appeal or dealt with in any other interim way, it is to that court
that it must direct its application.
Accordingly, for as long as the
arbitral award has not been suspended or set aside on review or appeal in terms
of the Labour Act, there is no basis upon which this court may decline
registration of the same.
It is therefore ordered as follows:-
1.
The arbitral award issued by Mr A.J. Manase, an
independent arbitrator, be and is hereby registered in terms of s 98(14) of the
Labour Act [Cap 28:01].
2.
In terms of the said arbitral award, the respondent
shall pay the applicant an amount of US$287 491.00.
3.
The respondent is to pay the costs of this application
Atherstone & Cook, applicant's legal
practitioners
Dube, Manikai &
Hwacha, respondent's legal practitioners
