WHILE a lot has been said by the courts about the place of labour consultants in dispute resolution, this remains a highly contested area between labour consultants, labour officers and trade unionists. There are many reasons why labour officers and trade unionists are not comfortable with labour consultants. The first problem is that not all labour consultants conduct themselves in a professional manner as this is an unregulated area where even those who are not qualified practice as a way of making a living.
On the other hand, many labour officers have social science qualifications and have no legal training at all other than the rudimentary paralegal training given in-house.
This makes them uncomfortable when seasoned and qualified labour consultants challenge them. A similar position applies to trade unionists.
At times the problem arises from the fact that labour consultants tend to be thorough in looking at cases, thus making a case which looked simple much more complex. The legal position on representation is guided initially by the common law position, which grants all citizens the right to representation.
Various statutes then regulate who has a right to represent parties before various forums. On labour matters, the Labour Act Chapter 28:01 is express on representation before the Labour Court only as guided by section 92 of the Labour Act Chapter 28:01. Attempts to import the provisions of section 92 of the Labour Act Chapter 28:01 to other tribunals has been dismissed by the Supreme Court and the Labour Court in a number of decided cases, for example, the matter Inter Agric Pvt Ltd vs Mudavanhu SC 9/15 and Soltra Trading vs Chigwaza LC/H/308/14.
Appearance of labour consultants before the Labour Court is prohibited by an Act of Parliament as Parliament is the only authority empowered to alter a common law position.
Provisions of Statutory Instrument 217 of 2003 section (4) are defective in that the Minister of Labour in regulation in my opinion is attempting to alter a common law position, which powers he does not have as a common law position can only be altered by an act of Parliament.
Thus the right to represent parties before labour officers remains available to labour consultants. There is a lot of case law which is related to common law position and the powers of ministers. The same principle applies to appearance before conciliators and arbitrators.
The right of representation remains available. One problematic thing for labour officers is that the Labour Act Chapter 28:01 is clumsily worded where the labour officer transforms from being a labour officer to a conciliator or arbitrator, at that point the law lacks clarity on the applicable legal provisions.
My reading of the law is that once the labour officer sits as a conciliator or arbitrator, the provisions of Statutory Instrument 217 of 2003 takes a back seat and Arbitration Act provisions and Statutory Instrument 173 of 2012 kick in meaning that whoever appears before a conciliator or arbitrator is not regulated by law anywhere, thus at that meeting of minds a labour consultant in my opinion and also as guided by case law legitimately appear before the labour officer who then will be a conciliator or arbitrator. One also needs to go into The Constitution of Zimbabwe to look at rights to representation.
In conclusion, this is an area that requires interpretation of statute skills and ability to go into case law for answers.
Davies Ndumiso Sibanda can be contacted on: email: [email protected], Or cell No: 0772 375 235.