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Industrial Court reviews enforcement of arbitration and mediation awards

The Industrial Court is seeking effective ways to improve its enforcement of arbitration and mediation awards especially those without backing of writ of execution or court-endorsed process.

The trade disputes court this week held a symposium on the enforcement of arbitration awards, the main objective being the discussion on statutory provisions that deals with arbitration of disputes in the country and case law relating to enforcement of trade disputes awards with particular reference to arbitration awards.

Further they are seeking ways to harmonise processes and procedures, which parties and litigants could enforce and other trade disputes awards. Justice Basheer Waglay, who is the South African judge president of the Labour Appeal Court and Labour Court and judge of the High Court led the discussions on the arbitration and mediation awards with lessons from the South African labour courts.

He explained that the enforcement of mediated settlement agreements, or orders made in the mediation process or arbitration awards lies at the centre of effective dispute resolution in the field of Labour Law. He explained that in South Africa and in terms of the Labour Relations Act 66 of 1995 (LRA), two institutions are mandated to mediate and arbitrate disputes between employees and employers being the bargaining councils set up by employers and employees in organised industries in specific fields of employment and the Commission for Conciliation, Mediation and Arbitration (CCMA).

“The purpose of creating these two institutions to resolve labour disputes is to create an environment that is flexible and less onerous to the parties to the dispute so that they can deal with their matter in a less formal, easy and speedy manner,” he said.

Justice Waglay said the creation of these institutions was to provide a cost-effective and a simplified procedure to labour litigations when compared to the procedure in civil proceedings.

Meaning that those institutions are obliged to attempt to resolve disputes through conciliation/mediation and to arbitrate the dispute if it remains unresolved after that process.

“They resolve disputes in a less technical manner so as to avoid or reduce delays thereby enabling litigants to get effective and quick remedies. Once a dispute is resolved, either by way of a settlement agreement, or by a ruling at conciliation or, by the issuance of an arbitration award, the agreement, ruling or award needs enforcement,” he said.

On the enforcement of arbitration awards, he explained that once dispute was resolved there is legislative provision through which the various amendments sought to simply the enforcement of arbitration awards.

He said such endeavour was salutary in light of the fact that poor employees are those more affected with the enforcement of the awards.

Justice Waglay however acknowledged that like any law, it couldn’t achieve its desired outcome without proper implementation. “More so that some institutional, interpretational and human factors are all deterrent to the full implementation of any law,” he said.

On the reflections on the development of labour legislation of the enforcement of awards under the Trade Disputes Act, Botswana Industrial Court judge, Justice Harold Ruhukya said the Act that introduced the setting up of the dispute court never dealt with the arbitration.

He explained that regarding mediation it seemed like there was no anticipation that a dispute could ever be mediated successfully and so no provisions existed where if mediation resulted in the parties signing a settlement agreement and one reneged what enforcement mechanisms existed for such a situation.

“Arbitration’s were not provided for as a dispute resolution route under the Act and so it said nothing about arbitration awards,” he said.

Ruhukya said the Act was amended in 2004 under Act No 15 of 2004 and arbitration was introduced under section 7(6) of which said that the Commissioner may refer a dispute directly to arbitration requiring the agreement of both parties to do so.

He explained that where arbitration was conducted an award with reasons had to be made within 30 days, section 9(12) then providing that an arbitration award had the same force and effect as a judgment of the Industrial Court and was enforceable in exactly the same manner.

He however noted it raised a problem because there was no explanation or process laid out as to how that was to happen leading to different judges interpreting the enforcement in different ways.

MPHO MOKWAPE

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