Introduction
The enactment of the Trade Disputes Act seeks to provide an efficacious system of labour dispute settlements in Botswana. It has been the epicentre of resolving collective and individual labour disputes and a catalyst in forging industrial peace in the labour market in Botswana. It has witnessed several revisions during the past two decades.Footnote 1 The current Trade Disputes Act No 6 of 2016 (TDA or the Act) entered into force on 1 November 2016.
The resolution of trade disputes within Botswana’s labour law framework is designed to ensure the utilization of alternative dispute resolution (ADR) mechanisms, prior to litigation proceedings. Consequently, the TDA is enacted to, inter alia, provide for the resolution of trade disputes by establishing and enhancing concerted efforts of the commissioner of labour, mediators, arbitrators and the Industrial Court. Arbitration exists within the TDA framework as a form of ADR mechanism that parties to a labour dispute may or must, depending on the nature of the dispute, resort to for the resolution of their dispute.
Arbitration, like mediation, involves a neutral third party who is acceptable to both parties. However, the parties give the arbitrator the right to make a binding decision (arbitral award), which is generally absent in mediation. The arbitrators should generally possess knowledge of the law and the skills of legal practice. The Act defines arbitration as a process of “dispute resolution involving one or more neutral third parties agreed to by the disputing parties and whose decision is binding on such parties”.Footnote 2 Arbitrators are appointed by the minister in consultation with the Board,Footnote 3 to the panel of arbitrators (on full time or part time basis). They are expected to “discharge their functions subject only to the direction and control of the Commissioner”.Footnote 4 The panel of arbitrators consists of individuals with expertise in labour law, labour relations or other specialist areas of expertise.Footnote 5 The arbitrators’ primary function is to preside over trade disputes referred to them and carry out other related duties as may be assigned pursuant to the Act.Footnote 6
Furthermore, the Act distinguishes disputes of right from those of interest. On the one hand, disputes of right involve an alleged infringement of a right flowing from any written law, collective agreement or individual employment contract. These disputes are subjected to mediation first and thereafter may be referred to either arbitration or litigation. On the other hand, disputes of interest flow from the creation of new terms and conditions of employment or variation of existing terms and conditions of employment. These disputes are not apt for litigation at first instance. Instead, these classes of disputes are to be submitted consecutively to mediation, mediation-arbitration (med-arb) and arbitration.
Where the disputing parties involve those undertakings which are categorized as essential services providers, arbitration is compulsory notwithstanding the involvement of a trade union. However, where the industry is not one involving an essential service provider and a trade union is involved, arbitration is an option, which leaves it open for the parties to resort to industrial action, if they so wish.
With that in mind, the authors note that the Employment and Labour Relations Act 2025 (ELRA) has recently been passed into law by the legislature in Botswana. In addition to being signed by the president of the Republic and gazetted, the ELRA should be followed by the enactment of subsidiary instruments (regulations) to enter into force. The ELRA entirely maintains the modus operandi of the arbitration proceedings and the role of the arbitrator as it currently exists under the TDA. Thus, Part XXXI (sections 278 through 284) is designed to generally reflect the existing provisions under the TDA (that is, sections 8 and 9). That notwithstanding, there are watershed points of departure in terms of streamlining and institutionalizing the mediation and arbitration system for labour dispute resolution in Botswana. In this respect, the ELRA, under Part XI (sections 57 through 79), prescribes the establishment of an independent public body – the Mediation and Arbitration Commission (MAC), which is entrusted with the actual exercise of mediation and arbitration, and the Mediation and Arbitration Board (MAB), which shall be responsible for governing and providing directions of the affairs of the MAC. The MAB has the power to “appoint a full-time and part-time mediator and arbitrator with expertise in labour law, labour relations or any other related area, with due regard to the need to constitute an independent and professional Commission”.Footnote 7 The MAB, apart from the role of supervision and disciplining of mediators and arbitrators, also determines the terms and conditions of the appointment of same.Footnote 8 Furthermore, it is mandated with the issuance of a code of conduct for mediators and arbitrators and the compliance thereof in discharging their duties in mediating and arbitrating labour disputes.Footnote 9 The new ELRA, therefore, ushers in the establishment and constitution of the MAB (sections 59 through 66, 69 and 70) and its role in the appointment and removal of mediators and arbitrators and senior staff of the MAC (sections 67 and 73 respectively). Finally, section 70 sets out exemption from personal liability of any of the MAC’s staff, any member or secretary of the MAB, or its committees, and the Board “for any act or omission except in so far as the act or omission complained of was done in bad faith”.
The new ELRA does not significantly depart from the current labour arbitral practice. Far from it, the arbitral system under the TDA remains intact save, as alluded to above, the legislative reinforcement towards the institutionalization of labour dispute resolution through mediation and arbitration. This is essentially effectuated by the establishment of the prospectively properly funded and organized MAC and MAB and dispensing with the role of the labour commissioner under the TDA. That notwithstanding, the nitty-gritty of the entire panoply of the operational rules for mediation and arbitration under the ELRA are yet to be provided for by the MAC.Footnote 10
Whilst the new ELRA will set a new path for ADR mechanisms in Botswana as briefly demonstrated above, this paper does not seek to discuss the new changes that will be implemented once the ELRA comes into force. This work discusses the law on arbitration as is currently applicable and enforceable under the TDA, and lays a foundation against which the new framework, once implemented, may be compared against. Furthermore, arbitration of labour disputes under the TDA generally emulates arbitration of commercial disputes in the Arbitration Act.Footnote 11 This article is intended to compare and critically examine the salient features of both systems in the labour dispute settlement processes, which aims to expound the discrepancies and legal lacunae that need to be addressed to modernize both sets of arbitration laws.
Consensual and compulsory arbitration within the TDA
The TDA is designed in a manner which allows several dispute resolution mechanisms to co-exist. In this respect, a variety of ADR methods are deployed along with the establishment of the Industrial Court. Mediation, med-arb and arbitration play pivotal roles in the labour dispute settlement process under the TDA.
The arbitration proceedings may originate either from the parties’ contractual agreement to submit their disputes to arbitration or because the “dispute was one that is required by the Act to be determined by arbitration”.Footnote 12 In simpler terms, arbitration proceedings under the TDA may commence either voluntarily or compulsorily. Both approaches to arbitration are canvassed below in terms of the relevant provisions of the Act.
Consensual arbitration under the TDA
The first form of consensual arbitration under the Act arises from section 6(6)(a)(b) which mandates the commissioner to refer a dispute directly to arbitration where the dispute is one required to be determined in that manner by either a collective labour agreement or any other agreement. We argue that this is voluntary arbitration because the parties would have, out of their own volition, chosen to have arbitration as a dispute resolution mechanism for certain types of disputes during the subsistence of their relationship and reduced that into an arbitration clause in a collective labour agreement or other agreements. Because collective labour agreements are regarded as legally binding contracts under the Act,Footnote 13 where such a clause exists, it must be enforced. Section 8(1)(a) also recognizes voluntary arbitration by virtue of agreement between the disputing parties to have their matter settled by arbitration.
The second form of consensual arbitration can be reckoned from section 7(3). It envisions a situation where the dispute was referred to mediation at first instance pursuant to section 6(1). Should mediation fail, the parties have thereafter the option to either refer it to arbitration or the Industrial Court. However, this choice must be preceded by a certificate of failure to mediate, which should be issued by the mediator.Footnote 14
Compulsory arbitration under the TDA
The combined reading of sections 6(6)(c) and 8(1)(b), (c), (d) and (e) encapsulate the circumstances under which compulsory arbitration is practised under the Act. Section 6(6)(c) empowers the commissioner of labour to refer a trade dispute directly to arbitration if the dispute is one required to be determined in that manner by the Act. Such direct referral of the dispute to arbitration, which brushes aside the mediation process, is carried out by the commissioner. Section 8(1) provides thus:
“The Commissioner shall refer a trade dispute referred in terms of section 6 to arbitration where:
a) …
b) The parties to the trade dispute are engaged in an essential service and the trade dispute concerns a dispute of interest;
c) The Industrial Court has directed the Commissioner to refer the trade dispute to arbitration;
d) The trade dispute concerns a dispute of interest, except in the case of a collective dispute of interest where the employees are represented by a trade union; or
e) A mediator fails to resolve or fails to mediate a dispute of interest within the periods referred to in section 7(1) and (2), except in the case of a collective dispute of interest where an employee is represented by a trade union.”Footnote 15
It follows from the foregoing that arbitration is generally compulsory for all disputes of interest. There are, however, two exceptions to this supposition, namely, where it is a collective dispute of interest in the case of unionized employees,Footnote 16 or where it is a collective dispute of interest and the employee is unionized.Footnote 17 Notwithstanding the prohibition of mandatory referral to arbitration as aforesaid, the parties are free to consensually submit such disputes to arbitration. Furthermore, all categories of disputes of interest involving essential services are amenable to compulsory arbitration.Footnote 18
The commissioner is not mandated to directly submit any dispute to the Industrial Court without first referring the parties to mediation and / or arbitration. The Industrial Court, on the other hand, is empowered to refer any dispute before it to the commissioner for arbitration.Footnote 19 Furthermore, the Industrial Court may choose to “direct the Commissioner to assign a mediator to mediate a dispute, where, in the opinion of the Court, the matter has not been properly mediated or requires further mediation”.Footnote 20
Consensual arbitration outside the ambit of the TDA
A consensual arbitration proceeding is based on the parties’ arbitration agreement. They may agree to submit their disputes for arbitration under the TDA. In a similar vein, they may also wish to have it governed by private arbitration outside of the TDA system. The parties, thus, should remain loyal to their contractual undertakings to submit disputes to arbitration as per their agreement.
Despite the existence of a valid arbitration clause, however, either party may refer the trade disputes to the commissioner. In such instances, as per the combined reading of sections 6(6)(a) or (b) and 8(1)(a), the commissioner may refer the trade disputes to arbitration under the TDA. However, the party who is proceeded against may object to such a referral. If, for instance, the parties had agreed to subject their arbitration proceedings to the Arbitration Act and / or the Rules of Arbitration of the Botswana Institute of Arbitrators or to an ad hoc arbitration outside of the TDA system, then the parties should be referred to the private arbitration. Nevertheless, whenever the parties undertake to subject the arbitration proceedings to the applicable rules under the TDA, this showcases the parties’ choice to submit their disputes to the arbitral system under the TDA. This should also be possible where the parties have committed to appoint one or more arbitrators from the panel of arbitrators in the commissioner’s roster or have deferred the task of appointment of the arbitrators to the commissioner.
Arbitration agreements validly concluded in an employment relationship, therefore, do not necessarily fall within the ambit of the arbitral system under the TDA. This position may be criticized in that the resolution of all labour disputes must be, as a matter of public policy, amenable to the peculiar system designed by the legislature to that effect. This criticism would emanate, perhaps rightly so, from the valid concern that labour arbitrations warrant judicial or quasi-judicial oversight to prevent abuse (by repeat player employers) of individual employees (or inexperienced representatives of trade unions) who are engaged in one-off arbitration proceedings.Footnote 21 Such incidents should not, however, lead us to postulate that labour disputes should be totally administered via public arbitration. Nor is it entirely sound to conclude that labour disputes be non-arbitrable matters. On the contrary, section 7 of the Arbitration Act, which specifically sets out non-arbitrable matters in Botswana, does not preclude the submission of labour matters to arbitration.
Under the Arbitration Act, the chosen course of action has been to carve out a few specific matters from the realm of private arbitration.Footnote 22 Consequently, the resolution of a wide array of commercial disputes were left to party autonomy. Deference should therefore be accorded to arbitration agreements, thereby allowing party autonomy to prevail. This course of action should be complied with whether the parties have chosen to be governed, for instance, by the Arbitration Rules of the Botswana Institute of Arbitrators or to party-appointed arbitrators, who are mandated to be guided by party-tailored arbitration rules. This is in keeping with the parties’ freedom of contracting and is undergirded by case law.Footnote 23
The Industrial Court’s decision in Ismail v Pala BW (Pty) Ltd t / a Builders World Palapye is in the right direction in this regard. The court stressed that it retains the discretion whether to enforce an arbitration clause. It then noted that parties in employee / employer relationships do not always enjoy equal bargaining power. It, therefore, held that insofar as, at the time of agreeing to an arbitration clause, the parties enjoy a “reasonably and fairly equal bargaining power”, a stay of proceeding should be granted in favour of the arbitration agreement. It should, therefore, be noted here that, unlike arbitration agreements in other commercial transactions, labour arbitrations, according to the Industrial Court, require an additional layer of safeguard for their enforcements. The onus provandi, however, lies with the party, by whom the presence of the additional layer of safeguard is impugned. That party must show that the arbitration agreement was not concluded following a negotiation between parties having a “reasonably and fairly equal bargaining power”. Suffice it to say, therefore, that labour disputes can be submitted to private arbitration provided the parties so wish and expressly indicate their commitment thereto save where it is proved that there was no “reasonably and fairly equal bargaining power” between the parties at the time of making the arbitration agreement.
Generally, parties may choose private labour arbitration over arbitration under the TDA to avail themselves of the advantages which undergird private arbitrations such as confidentiality, finality of arbitral awards, arbitrators of their own choices, minimal judicial intervention (for instance, only set aside recourse), speed and cost-effectiveness mainly by eschewing backlog of cases and bureaucratic red-tape, which generally characterize government-administered judicial services. In Botswana, these two systems of arbitration operate disparately. Therefore, private arbitration proceedings, including private labour arbitration, are entirely subject to the Arbitration Act and, therefore, there has not been any practice or case law entitling the Industrial Court to review private arbitration proceedings or awards. Neither is such power expressly nor impliedly vested in the Industrial Court under the TDA. In this respect, a notable departure from the TDA is that the ELRA permits a collective agreement (between a trade union and an employer or employer’s organization), which provides for the resolution of a dispute outside of the Act.Footnote 24 Such a collective agreement may employ an out-of-MAC mediation or arbitration provided that it is conducted “in an independent, neutral, expedited and professional manner”. An arbitral award obtained under such an out-of-MAC arbitration proceeding is binding on the parties and is executed as an order of the Industrial Court.Footnote 25 The ERLA, accordingly, envisages the possibility of resorting to private arbitration by parties to labour disputes with the caveat that such private arbitration should be insulated from vices that negate efficient and effective arbitration proceedings.
Powers of the arbitrator under the TDA
Arbitrators play a quasi-judicial role,Footnote 26 as opposed to the facilitative role played by mediators. Resultantly, the role of an arbitrator is to settleFootnote 27 the dispute and not merely to facilitate a settlement between the parties.Footnote 28 In University of Botswana v Matlhagela & Others (Matlhagela),Footnote 29 the Industrial Court ruled thus:
“Settlement means a conclusion of the dispute through a process akin to litigation which though distinguishable, by which the arbitrator while not confined to strict rules of procedure applicable in courts of law, may nonetheless apply such principles and rules, ultimately concluding the dispute through such process, and his determination thereafter binding on all parties involved. The settlement, however, must be done in terms set out in the Trade Disputes Act.”
Accordingly, section 8(5) of the Act empowers the arbitrator to conduct arbitration proceedings in a manner that is considered appropriate with the caveat that a minimum of legal formalities should apply to the substantial merits of the dispute. Furthermore, during the conduct of the proceedings, parties to the dispute may give evidence, call witnesses, examine any other party and address concluding arguments. Similarly, the arbitrator can hand down directions, which may be necessary for the expeditious and just hearing and determination of any trade dispute before him / her.
Section 8(b) appears to give arbitrators wide powers and discretion over awards they may make. Indeed, the nature of an award depends on the type of dispute before the arbitrator and the relief sought by the aggrieved party. However, arbitrators must not act outside the ambit of the powers they have been given under the Act. Their decisions are subject to appeal or review by the Industrial Court.Footnote 30 Moreover, an arbitrator may not ordinarily make an award for costs, unless the parties to the dispute so agree, or a party or its representative acted frivolously and vexatiously by proceeding with or defending the proceedings, or generally in their conduct during the proceedings.
Section 8(8)(c) gives the arbitrator “revisionary” powers over a mediator’s award, by vesting the power to vary or rescind the mediator’s award where such award is tainted with irregularities, namely, it was erroneously made in the absence of any party affected by the award, it is ambiguous or contains an error or omission, or it was made as a result of a mistake common to the parties. This power of the arbitrator lacks in clarity especially in relation to the first two irregularities. As per section 7(10)–(12) and (14), the power to confirm or vary such default awards by the mediator are vested in the commissioner. Section 8(8)(c), therefore, merely duplicates the efforts. Neither does it prescribe the procedure by which such revisionary power over default awards might be proceeded before an arbitrator.
Furthermore, the arbitrator may dismiss a referral where the referring party fails to attend an arbitration hearing. The arbitrator may also give a default award where a party against whom a remedy is sought fails to attend the arbitration proceedings. The Act empowers arbitrators to reverse on good cause the dismissal of a referral contemplated above, as well the default award.
Arbitrator’s timeline to render an award under the TDA
One reason for parties to deploy arbitration rather than litigation is its procedural flexibility, thereby generally ensuring efficiency in resolving disputes. In this respect, there are two separate timelines provided for by the Act insofar as the conclusion of arbitration proceedings is concerned. Section 8(6) mandates the arbitrator to settle a dispute within 30 days. This section must be read and understood alongside section 8(9) which provides that “[t]he arbitrator shall, upon the conclusion of an arbitration hearing, make an award and shall, within 30 days of the hearing, give reasons for the award”.
It would be prudent to give the arbitrator sufficient time within which to hear the merits of the dispute and make an informed award that is well-reasoned. This is why the commissioner may, if appropriate, extend the number of days within which an award is to be made.Footnote 31 The request for extension should be made by the arbitrator at the time when the arbitrator is still in charge of the arbitration proceedings. An award made outside the set timeframe, where the indulgence of the commissioner has not been sought and granted, is void.Footnote 32
A proper construction of the above two provisions would help identify two timeframes. Firstly, the arbitrator has 30 days within which the hearing and making of an award should be finalized. Thereafter, the arbitrator is granted 30 days to give reasons for such an award. This is supported in Matlhagela where the court stated that an arbitrator has a total of 60 days to conclude their business, the first 30 days of which is to conclude the hearing and make their award, and the latter 30 days to give reasons for their award. However, whether 60 days would suffice for the arbitrator to finally dispose of all issues is questionable. Such expectations could be over-ambitious at times; arbitrators would need time for deliberations as well as judges. Apparently, this is why the commissioner has the discretion to “extend the number of days within which an award is to be made”.Footnote 33
The arbitrator is bound to render a reasoned arbitration award. This is because only a reasoned arbitration award can be enforceable, as per section 8(12), with the same force and effect as a judgment or order of the Industrial Court. Consequently, 30 more days are availed for the arbitrator to render a reasoned arbitral award and upon the realization of which the arbitrator becomes functus officio. This brings the total amount of time to 60 days within which the arbitrator should finally settle all issues in dispute.
Med-arb in labour dispute settlement
It should be noted that mediation plays an indispensable role in labour dispute settlement proceedings.Footnote 34 The TDA also permits the rather peculiar dispute settlement method of med-arbFootnote 35 to be resorted to by arbitrators in an attempt to cajole the parties into an amicable settlement. Indeed, a mutually agreed upon settlement agreement between the parties in an employer / employee relationship is quintessential towards forging industrial peace, which in turn is indispensable for organizational growth and profitability.
Section 8(3) and (4) of the TDA thus set out the modus operandi for med-arb in trade disputes in Botswana. It stipulates that “[n]otwithstanding that the trade dispute has been mediated, if the arbitrator is of the view that there are prospects of settlement, he or she may attempt to resolve the trade dispute through mediation before commencing the arbitration hearing”.
The neutral third party, who is appointed as an arbitrator (and not as mediator per se), may evaluate the merits of the dispute to see if there are prospects of a mediated settlement despite the fact that the trade dispute has been mediated. This applies both to those disputes of which a “failure to settle” certificate had been issued and those disputes of which a “failure to mediate” certificate had been issued by a mediator, who had previously attempted to mediate the dispute. Thus, once the arbitrator is of the view that there are prospects of settlement based on the evaluation, they may, on their discretion, proceed to mediate the dispute between the disputing parties prior to commencing the arbitration proceedings. Such endeavour, by the arbitrator to give mediation a second chance to succeed, essentially entails that the arbitrator must have the combined expertise of both mediation and arbitration. It is axiomatic that the parties are entitled to consensually resort to mediation even as arbitration proceedings continue and it is apt for the arbitrator to even encourage the parties to amicably settle their disputes. However, the arbitrator should refrain from assuming a mediator’s role prior to arbitration or to proceed to simultaneously straddle between mediation and arbitration save in exceptional circumstances.
Secondly, where the dispute has not been mediated, the arbitrator is required to attempt to resolve the dispute through mediation. Section 8(4) stipulates thus: “Where the trade dispute has not been mediated, the arbitrator shall attempt to resolve the trade dispute through mediation before the commencement of the arbitration hearing”.
The arbitrator, therefore, has the duty to mediate the dispute between the parties. This is tantamount to a compulsory mediation proceeding. The arbitrator is, therefore, enjoined to conduct a mediation proceeding, and, should there be no mediated settlement thereof, they would subsequently be led to proceed with the arbitration process. The combined role of a mediator and arbitrator over the same disputes and parties is, thus, reposed in an arbitrator.
The mixed procedure of mediation and arbitration is increasingly used in international commercial contracts.Footnote 36 This procedure creates a dispute settlement process where a mediator mediates between the parties to resolve the dispute and, if the mediation fails, the mediator becomes the arbitrator. In other words, an arbitrator is empowered to first attempt at reconciling the parties through mediation proceedings and, failing mediation, continues with arbitration proceedings. In such a case, it does not matter whether the third-party neutral is initially appointed as a mediator or arbitrator or both. Indeed, valid concerns are voiced against the med-arb practice as it defeats the purpose, which mediation purports to achieve.
Indeed, in situations where a mediator applies the effective and proper techniques of the negotiation process in mediation, one would be confronted with the following contradictions.Footnote 37 Firstly, it does hinder the parties from making offers and admissions freely during the negotiation, lest it would be counterproductive in their subsequent adversarial proceedings be it arbitration or litigation. Secondly, the parties would be cajoled to be more focused in persuading the mediator / arbitrator instead of pursuing a concerted problem-solving approach. Thirdly, the parties may find it difficult to confide in the mediator / arbitrator for fear that their respective potential weaknesses in their cases may be exposed. Fourthly, conversely, the mediator / arbitrator may find it difficult to privately caucus with each party for fear of subsequent allegations of bias. Fifthly, the parties are tempted to closely scrutinize the words and proposals made during the proceedings by the mediator / arbitrator in order to infer a likely result if arbitration becomes necessary. Finally, an inexperienced mediator / arbitrator may also be tempted to use the platform to piece up evidence during the mediation with a view of simplifying their function in the subsequent arbitration.
Under the South African Labour Relations Act, it is noted that “the commissioner appointed [as arbitrator] may be the same commissioner who attempted to resolve the dispute through conciliation”.Footnote 38 However, the parties preserve the right to object to such appointment.Footnote 39 There is no clarity under the TDA whether such a proceeding should only be practised upon the parties’ express consent or, if at all, the parties are entitled to reject such a system. However, vesting the power in a neutral third party of simultaneously mediating and arbitrating disputes is a negation of the application of mediation techniques. Parties, assisted by a mediator, must strive insofar as practicable to settle not only the legal disputes but also resolve conflicts (perceived or otherwise), underlying concerns and interests which abound in labour relationships) between the parties. This process entails jointly working towards mutually agreed upon solutions in a transparent manner with the objective of a win-win outcome in order to maintain their commercial relationship. In this regard, Jones notes:
“Conciliation is a process that can preserve commercial relationships, and in some cases, even resurrect relationships. In contrast, binding determinative processes such as litigation and arbitration are likely to destroy a business relationship because they place the parties in opposition to each other. One party will be the winner, one party will be the loser and it is common for the parties to do everything in their power to ensure they prevail. A feature of conciliation is that in order for a conciliation to be successful, parties must eschew this adversarial strategy.”Footnote 40
The med-arb process should, therefore, be sparingly resorted to by arbitrators as they exercise their powers under section 8(3) and (4) of the TDA. Whether section 8(4) is also meant to impose mediation proceedings on those disputes, which are directly referred to arbitration on the basis of an underlying arbitration agreement under section 9(1)(a) lacks in clarity. A cursory look at the legal provision apparently seems to mandate such mediation process. However, despite the lures of mediation, such practice would run counter to the parties’ agreement to submit their disputes to arbitration. It is submitted that it would be inept to be tempted, solely on the basis of section 8(4), to resort to a mediation process unless consented to by means of a multi-step dispute resolution method. Subjecting the parties to a mediation process short of their volition would defeat party autonomy and may be counter-productive. The phrase “where the trade dispute has not been mediated”, under section 8(4), should, therefore, be understood to refer to those disputes for which the mediator had already issued a “certificate of non-mediation” or those which are directly referred to arbitration by the Industrial Court and the minister.
Appeals and reviews of arbitral awards
In terms of section 20(1)(c) of the TDA, the Industrial Court may, inter alia, exercise the power to hear appeals and reviews of decisions of mediators and arbitrators. In Flo-tek Pipes and Irrigation v Commissioner of Labour Footnote 41 the Industrial Court distinguished the two processes of appeal and that of review for set aside. The court held that “[w]hereas on an appeal, the court is concerned with the merits of the decision, that is not so in a review; in a judicial review the court is concerned only with the legality of the decision, i.e., whether the arbitrator’s decision was lawful or unlawful”.
In this case, the court noted that the TDA empowers the court to review an arbitrator’s decision without, however, setting out the grounds upon which such review may be relied. The court previously relied on the common law grounds for the review of an arbitrator’s decision. In this respect, the court once held that “at common law the applicant must show that the arbitrator (1) committed misconduct in relation to the duties of the arbitrator in an arbitration, (2) committed gross irregularity in the conduct of the arbitration process,Footnote 42(3) that the arbitrator exceeded his or her power, and (4) the arbitrator acted unreasonably or in bad faith”.
The afore-cited common law principles for review of arbitrators’ decisions have, however, been supplanted by the inclusion of specific grounds of review under the TDA.
Review for set aside of an arbitrator’s decision
The grounds of review for set aside of an arbitral award are broader in scope than the grounds of appeal. The power to review the arbitrator’s decision is vested in the Industrial Court by virtue of section 20 (1)(c) of the TDA. In this regard, section 21(2) of the Act provides for the review procedure and the available grounds for review.
The grounds of review of an arbitrator’s decision under the afore-cited provision do not have a counterpart provision under the Arbitration Act. These grounds of review should, therefore, be restrictively applied to the arbitral practice under the TDA.Footnote 43 Apparently, therefore, the criteria of review for set aside that apply only to labour disputes under the TDA are different from those criteria, which apply for private consensual arbitration whether such disputes involve labour disputes or any arbitrable non-labour disputes.Footnote 44
In this respect, the arbitrator should make decisions in terms of the applicable law, the parties’ agreements and good practise in the relevant industry. Nonetheless the arbitrator’s decision is seldom amenable to judicial review on the basis of erroneous application or interpretation of the applicable law. This is reflected in Complant Botswana (Pty) Ltd v LJ Hutchings (Arbitrator) NO and Residential Holdings (Pty) Ltd. Footnote 45 This was further reiterated in Southern District Council v Gerrit Herman Vlug & CCC SAL Footnote 46 where the court, citing a Zimbabwean Supreme Court’s decision,Footnote 47 stated thus:
“a party seeking to set aside an arbitral award could succeed only if able to establish either misconduct on the part of the arbitrator or the fact that the award was improperly procured. The word ‘misconduct’ was to be understood in the sense of some wrongful, dishonest or improper conduct; a bona fide mistake whether of law or of fact on the part of the arbitrator could not be relied upon as a ground for setting aside the award.”
That notwithstanding, section 21(2)(a) provides for review and set aside because of errors or omissions in the application or interpretation of the law. This is clearly a departure from the established practice in private arbitration. Section 21(2)(b) is even more drastic in setting apart the gap between the grounds of review under the TDA arbitral system and private arbitration. The legal provision states that an arbitral award would be set aside if the arbitrator failed to apply his or her mind to the relevant issues, which resulted in the decision being arrived at “arbitrarily, capriciously, unreasonably, irrationally or in bad faith”. Leaving aside the amorphous nature of such terms as “arbitrary”, “capricious”, “unreasonableness” or “irrationality”, these terms are more akin to the criteria for exercising judicial review over decisions of administrative bodies. This distinction was made clear in Southern District Council v Gerrit Herman Vlug & CCC SAL. Footnote 48 The court held that “an arbitration arises through the exercise of private rather than public powers, and does not fall within the sphere of an ‘administrative action’”.Footnote 49 The court further noted that as arbitration is a form of private adjudication the function of an arbitrator is not administrative but judicial in nature.Footnote 50 The court then concludes that “the three conventional grounds on which administrative conduct may be subjected to judicial review, namely, ‘illegality’, ‘irrationality’, and ‘procedural irregularity’, have no application to the case at hand [that is to say, application for set aside of an arbitral award on the basis of arbitrator’s misconduct]”.Footnote 51
Indeed, the legislature, by deploying the constellation of terms under section 21(2)(b), did not choose to mirror the afore-cited three conventional grounds of judicial review for administrative actions. In fact, only the term ‘irrationality’Footnote 52 apparently features in both camps. This would, therefore, lead us to safely conclude that, in their revisionary jurisdiction over decisions of a quasi-judicial nature, courts would apply three distinct set of grounds, depending on whether the decision has been rendered by:
(i) private arbitration (section 13 of the Arbitration Act),
(ii) public labour arbitration (section 21(2)), or
(iii) administrative bodies (common law grounds of judicial review).
Notwithstanding the above compartmentalization, there is no doubt that the second set of grounds (that is to say, the public labour arbitration) would draw on the jurisprudential principles of the third set (that is to say, those for judicial review of administrative decisions) in the process of fleshing out their precise contents. This may cause the modus operandi of the arbitral system under the TDA to drift further apart from the private arbitral system, perhaps eventually morphing to be one amenable to the principles of judicial review of administrative decisions.
Appeal recourse
It significantly matters whether labour arbitration proceedings are conducted under the supervision of the commissioner of labour or in private arbitration. The procedural rules under the commissioner are different from the arbitration rules under the Arbitration Act. Furthermore, a distinct set of grounds for review are laid down. Besides, there is no appeal against an arbitral award obtained under the Arbitration Act. The law is settled that an award by an arbitrator or arbitral tribunal made in writing and in terms of the arbitration agreement is final and binding.Footnote 53
However, the position is different when viewed from the perspective of arbitrations conducted under the TDA. In terms of the power to hear appeals from the decision of an arbitrator, section 8(13) provides thus: “A person aggrieved by a decision of an arbitrator under this section may appeal against such decision to the Industrial Court, within 14 days of the arbitrator’s decision”.
The grounds of appeal against the arbitral award are limited to two conditions:Footnote 54 a party’s dissatisfaction on the arbitrator’s decision to join a party to the arbitration proceedings or the arbitrator’s decision concerning the jurisdiction of the arbitrator to make an award.Footnote 55 Both grounds of appeal are addressed in turn below.
The arbitrator’s decision to join a party to the arbitration proceedings
The first ground of appeal deals with the complicated issue of joinder, misjoinder and non-joinder of a party or parties to a judicial or arbitral proceeding.Footnote 56 The issue of joinder of a party should mean that the arbitrator has either allowed a party to join the proceedings where such a party should not have been joined or that a party has been barred from joining the proceeding where such a party should have been a proper party to so join. Joinder applications may be made by either or both disputing parties to a judicial or arbitral proceeding. As alluded to above, an arbitrator in a labour dispute might not strictly apply the rules on this issue as it is expected to be in court litigation or private arbitration. However, for the proper judicial case management and convenient disposition of a case, the arbitrator is expected to conform to the underpinning principles pertaining to when and which party may or may not be joined in a case.
The decision to allow or dismiss such applications may rest on both substantive and procedural grounds. Joinder applications may be precluded should it be made out of time; that is to say, the joinder application should be made timeously. In Sinohydro CMC NSC2 JV v PPADB and Others, Footnote 57 the High Court stated that any joinder application must be determined before the hearing of the substantive matter. Thus, a timeous joinder application must be made prior to the hearing on the substantive matter. The litmus test for a joinder application is summed up in City of Johannesburg and Others v South African Local Authorities Pension Fund and Others Footnote 58 thus:
“[I]t has by now become well-established that, in the exercise of its inherent power, a court will refrain from deciding a dispute unless and until all persons who have a direct and substantial interest in both the subject matter and the outcome of the litigation, have been joined as parties … A test often employed to determine whether a particular interest of a third party is the one or the other, is to examine whether a situation could arise in which, because the third party had not been joined, any order the court might make would not be res judicata against that party, entitling him or her to approach the court again concerning the same subject matter and possibly obtain an order irreconcilable with the order made in the first place.”
The arbitrator’s decision on their own jurisdiction
Arbitrators in private labour arbitration proceedings should carefully weigh in on their jurisdiction to adjudicate over the subject matter in dispute. This is vital because arbitrators should eventually be able to render an enforceable arbitral award. Undoubtedly similar principles apply in labour arbitrations. Thus, an arbitrator, under the TDA, should scrutinize whether they are seized of the case pursuant to:
(i) direct referral of the case to an arbitrator by the commissioner of labour;
(ii) referral of a case by the Industrial Court;Footnote 59
(iii) referral of a case by the minister;Footnote 60 and,
(iv) referral to arbitration, as the second tier of the trade disputes resolution mechanism under the TDA, subsequent to failure of the mediation proceedings to produce the desirable outcome resulting in a certificate of “failure to settle” or “failure to mediate” within 30 days unless such period is extended by the parties’ mutual agreement or by incorporating such extension in the collective labour agreement.Footnote 61
It is not, however, clear as to whether, prior to referral of the dispute to the arbitrator, the commissioner, the Industrial Court or the minister (as in the cases of the first three referrals above) has to prima facie establish the arbitrator’s jurisdiction. In so doing, the commissioner’s decision and reasoning thereof may assist the arbitrator in smoothly navigating jurisdictional issues.Footnote 62 It is unlikely though that the arbitrator, having been selected and constituted by the commissioner from amongst the panel of arbitrators, could decline to assume jurisdiction over the matter. If the arbitrator can assert or decline jurisdiction over the issues for the resolution of which they were was duly constituted, then the arbitrator is indeed empowered with the competence to determine their own jurisdiction over the matter. In arbitral jurisprudence, this competence to decide on the arbitrator’s own jurisdiction is referred to as the principle of kompetenz-kompetenz.Footnote 63 Such power may entitle the arbitrator to determine the scope, existence and validity of the arbitration agreement.Footnote 64
The principle of kompetenz-kompetenz is not, however, incorporated under the Arbitration Act of 1959, and neither has it been favourably treated by case law. In Fencing Centre (Pty) Ltd v Murray and Roberts Construction (Pty) Ltd,Footnote 65 the court held that where the validity or existence of the arbitration agreement itself is questioned, the arbitrator has no power to determine such question; it is the function of the court do so.Footnote 66 The principle is also absent from the South African Arbitration Act.Footnote 67 Courts in South Africa are nonetheless supportive of the adoption of the principle; this trajectory sits comfortably well with modern global arbitral jurisprudence. Recent cases such as Canton Trading 17 (Pty) Ltd t / a Cube Architects v Fanti Bekker Hattingh NO Footnote 68 and Zhongji Development Construction Engineering Co Ltd v Kamato Copper Co Sarl Footnote 69 epitomize this trajectory. In these cases, the court gave deference to the parties’ agreement for kompetenz-kompetenz, where the parties grant such power to the arbitrator by express consent, including in such cases by incorporating the Rules of Arbitration of the Arbitration Foundation of South Africa (AFSA), which espouses the principle. In this respect, Ramsden states that “unless the specific question of jurisdiction is referred to arbitration or there is an express agreement between the parties, an arbitration tribunal cannot decide on questions of its own jurisdiction”.Footnote 70 It is hoped that Botswana courts would pursue a similar approach primarily to uphold the sanctity of party autonomy in contracts, giving effect, for instance, to rule 11 of the Rules for the Conduct of Arbitrations of the Botswana Institute of Arbitrators,Footnote 71 which similarly embodies the principle. Any determination otherwise would obviously, albeit needlessly, render the afore-cited Rule otiose.
In contradistinction to private arbitration, in the arbitral system under the TDA, it should be implied that an arbitrator has the power to decide on their own jurisdiction, albeit amenable to appellate review by the Industrial Court. However, the afore-cited two grounds on the basis of which appeal may be filed do not relate to decisions on the substantive matter or the merits of the case; they are matters of procedure and not substance. This apparently contradicts the decision in Flo-Tek Pipes and Irrigation v Commission of Labour where the court held that an appeal is concerned with the merits of the decision. Indeed, these grounds could have been conveniently placed under section 21(2) of the TDA, where the grounds of review for set aside are set out.
An arbitrator, under the TDA arbitration system, should, thus, carefully examine sua sponte or at the behest of the parties that there is valid jurisdictional basis in order to subsequently circumvent challenges of alleged violations of the jurisdictional requirement. Thus, at the commencement of the arbitration proceedings and thereafter, the arbitrator must, inter alia, scrutinize whether:
(i) the dispute has been duly referred to the arbitrator;
(ii) the commissioner or anyone acting on their behalf, in referring the dispute, acted under a valid power or was properly delegated;
(iii) the commissioner has properly “appreciated” the existence of the dispute;
(iv) the arbitrator would exceed their powers in deciding on issues or matters which were not submitted to them or were not within the scope of their powers;
(v) in cases of references by a commissioner, whether there exists a valid arbitration agreement embedded in collective agreements or under any other agreement; and,
(vi) a “dispute” exists at all and, if so, whether the dispute falls within the definition provided under the TDA.Footnote 72
At times it may even boil down to the question whether the dispute falls within the purview of an employment relationship (otherwise known as locatio conductio operarum)Footnote 73 vis-a-vis independent consultancy contracts (also otherwise known as locatio conductio operis).Footnote 74
The applicable law in private and TDA arbitration proceedings
Procedural rules
An arbitrator must be guided by specific procedural rules, which are applied in the process of conducting the arbitration proceedings; these may include rules pertaining to evidence law and procedure. In private labour arbitration, an arbitrator may not need to apply the rules governing labour arbitrations under the TDA. Parties may choose to apply their own tailor-made procedural rules or adopt institutional rules such as the Rules for the Conduct of Arbitration of the Botswana Institute of Arbitrators or that of the AFSA or the Association of Arbitrators. Freedom of contract thus permits the parties to, through agreement, choose procedural and evidence rules or empower the arbitrator to decide on the appropriate rules to be applied to the specific arbitration proceedings.
Arbitrators, under the TDA, are obligated to apply codes, guidelines or rules for the conduct of arbitrations which are prescribed by the judge president of the Industrial Court in consultation with the minister of labour.Footnote 75 Subject to the foregoing requirement, arbitrators are empowered, under section 8(5), to conduct the arbitration in a manner that they consider appropriate. The extent to which such codes, guidelines and rules could over-regulate or under-regulate the arbitration proceedings requires an empirical study into the practice. However, the fact that the arbitrator is mandated to apply arbitration rules which are appropriate enables the arbitrator to conduct the arbitration in a manner which is more flexible and yet in consonance with the minimum standards applicable in domestic and international arbitral settings. Such a wide array of discretionary powers that the arbitrator wields in running the arbitration proceedings are in no uncertain terms enunciated under section 8(8)(a) of the Act. It provides thus: “The arbitrator shall have the power to – (a) give such directions to parties to a trade dispute or do such things as may be necessary or expedient for the expeditious and just hearing and determination of any trade dispute before him or her”.
Such discretionary powers and the procedural rules would be complemented with the Code of Ethics, which is prescribed by the minister, in consultation with the Labour Advisory Board, to help arbitrators discharge their functions under the TDA arbitral system.Footnote 76 Furthermore, arbitrators, under the TDA, are expected to apply the provisions of section 22(2) and (3) in conducting arbitral proceedings.Footnote 77 This indeed is a significant armoury, which helps lubricate the wheels of the arbitration proceedings. This power should, however, be carefully trodden as section 8(12) does not seem to place “orders” at par with “awards”. It provides: “An arbitration award shall have the same force and effect as a judgement or order of the Industrial Court, and shall be enforceable in like manner as such judgment or order”.
Whether arbitral orders made during the pendency of arbitration proceedings are tantamount to the Industrial Court’s judgment or order (so it may be immediately and effectively be executed as such) is not clear. The concern is that, in light of the legislative reticence to equating “arbitral orders” with court judgments and orders, the arbitrator may find it difficult to enforce arbitral orders pertaining, inter alia, to procedures, production of evidence or security, compelling reluctant witnesses, freezing orders and injunctive orders. Moses points out the main difference between “orders” and “awards” thus:Footnote 78 “Orders usually pertain to procedural issues that must be resolved so that the arbitral process can move forward … They essentially deal with the conduct of the proceedings. Awards, on the other hand, generally resolve substantive rights of the parties”.
Substantive laws
Arbitration is a dispute settlement process whereby the parties entrust an independent and impartial third party to hear the parties and, through the application of the law, render binding decisions in a judicial manner in order to settle the dispute. An arbitrator is, therefore, bound to properly apply the law (or possibly “rule of law” in cases of international commercial arbitrations)Footnote 79 to the dispute save in exceptional circumstances where the parties expressly exonerate the arbitrator from applying any specific law.Footnote 80 In labour disputes, the laws are generally considered as embodiments of the public policy. It is therefore unlikely that the parties would exempt an arbitrator from applying the mandatory rules of the applicable law. In this respect, section 8(5) of the TDA provides thus: “Subject to any prescribed codes or guidelines published in terms of section 53, the arbitrator … shall deal with the substantial merits of the trade dispute with the minimum of legal formalities”.
In turn, section 53 of the same Act sets out the authorities which are empowered to issue the relevant guiding principles and what these guiding principles may contain. It stipulates thus: “(1) The Minister may, after consultation with the Board, publish Codes of Practice, policies, guidelines, rules and model procedures and agreements to guide employees, employers and their representative organizations. (2) In making any decision under the Act, a mediator, arbitrator or the Industrial Court shall take any Code of Good Practices, policy, guidelines or model agreement into account”.
The guiding principles are applicable insofar as such principles would supplement the employment rights under the Constitution,Footnote 81 the Employment Act,Footnote 82 employment contracts, collective labour agreements, case-law principles, common law principles and the International Labour Organization (ILO) Conventions and Recommendations as are made or claimedFootnote 83 to be part of the law of Botswana.Footnote 84 It behoves, therefore, an arbitrator to become savvy of the panoply of this wide array of international and municipal labour law and contract law principles as are applicable (both in theory and practice) in Botswana. Labour arbitration awards in private arbitration settings are less assailable than those administered under the TDA. This is due to the fact that the Arbitration ActFootnote 85 provides for only two grounds for setting aside an arbitral award, namely where the arbitrator misconducts the arbitral proceedings or the award has been improperly procured.Footnote 86 These grounds of review are limited to procedural irregularities; courts have no power to review an arbitral award on its merits.
On the other hand, the TDA envisages the possibility of reviewing a labour arbitration award both on substantive and procedural grounds. Section 21(2)(a) of the Act stipulates that a review of a labour arbitration award lies to the Industrial Court where the arbitrator acts in contravention of the “provisions of this Act and procedures established under this Act”. Furthermore, review of the same lies to the Industrial Court where the arbitrator fails to apply their mind to the relevant issues in dispute in terms of section 21(2)(b) of the Act. Undoubtedly, an arbitrator’s failure to apply, for instance, with any code of good practice would be tantamount to the contravention of this Act. Equally so is the arbitrator’s failure to apply their mind to the relevant issue and resultantly failed to apply any code of good practice. The non-application of any form of code of practice or guidelines would be susceptible to review for set aside. Failure to consider any one or more of the international, constitutional, statutory, contractual, common-law and case-law principles a fortiori would also give rise to review for set aside. Such arbitrator errors in the application of the law are generally tolerated in private arbitration settings insofar as such are not made with malice. It is noteworthy, though, that there is no right of legal representation in any mediation or arbitration proceedings under the TDA.Footnote 87
If the parties deem a question of law to be so crucial, the arbitrator may resort to a discrete recourse or be directed by the court to do so lest they commit egregious errors or omissions. This recourse, as provided for under section 30 of the Arbitration Act, is known as “statement of case for opinion”Footnote 88 or “special case” or “case stated” procedure.Footnote 89 This recourse enables the arbitrator to state any question of law arising in the course of the arbitration proceedings in the form of a special case for decision by the court.Footnote 90 This may prove to be quintessential in the resolution of disputes pertaining to employment, intellectual property, digital technology or construction contracts where the arbitral tribunal is constituted of lay persons, IT experts or engineers (or architects) with little or no legal sophistications. In essence, this is a recourse whereby the arbitrator makes a referral to the court for clarity on points of law pertaining to the issues in the dispute during the pendency of the case.Footnote 91 It also includes the mandate to “state an award or part thereof in the form of a special case for the decision of the Court”.Footnote 92
This procedure of stating a special case for the opinion of the court originated as a voluntary process in commercial arbitration under the English Common Law Procedure Act 1854.Footnote 93 Subsequently, the English Arbitration Act 1889 vested in the courts with the power to order statement of the case.Footnote 94 Section 20 of the South African Arbitration Act and section 30 of the Botswana Arbitration Act, which provided for the “stated case procedure”, were thus borrowed from the then current English Arbitration Act of 1950.Footnote 95 In spite of being borrowed from section 21 of the English Arbitration Act of 1950, section 20 of the South African Arbitration Act and section 30 of the Botswana Arbitration Act are not homogenous on the stated case procedure. Ramsden states that an arbitrator is not vested with the right or power mero motu to refer a question of law to a court for its opinion.Footnote 96 This is true in South Africa as the arbitrator may only do so at the instance of either of the arbitrating parties. The arbitrator is compelled to so state a special case if directed by the court, at the instance of either of the parties or if the arbitrating parties so agree.Footnote 97 Furthermore, the special case procedure can only be resorted to in South Africa “at any stage before making a final award”.Footnote 98 Unlike the position in South Africa, the arbitrator in Botswana has the discretion whether to state a question of law or an award in the form of a special case. Furthermore, the court has a discretion to order the arbitrator to do so.
Enforcement of labour arbitration awards
Arbitration awards have the same force and effect as judgments of the Industrial Court. There is no requirement of confirmation by the commissionerFootnote 99 or even by the Industrial Court to be enforceable. In Moroka & Another v Ministry of Labour & Home Affairs & Another, Footnote 100 the Court of Appeal held that, where an arbitral award requires that the successful party be paid certain amounts of money and the unsuccessful party defaults or ignores the award, that aggrieved party should directly approach the registrar of the Industrial Court for enforcement in terms of section 15(9) of the TDA. The registrar may accordingly issue a writ of execution for the payment of the amounts. There is no need for that party to institute a fresh application to the Industrial Court for the arbitral award to be made an order of court. This bestows arbitral awards under the TDA better status than those made in private arbitrations under the Arbitration Act. In this regard, the legislature did not choose section 8(12) of the TDA to mirror section 20 of the Arbitration Act.Footnote 101 This must have been a deliberate choice thereby making execution of arbitral awards in labour disputes more effective and efficient than it is in private arbitration.
Arbitral awards would ordinarily require leave of the court to be enforced in the same manner as court judgments or orders. Such leave would not be granted automatically, even if there was no challenge at the behest of the award-debtor. The enforcing court would sua motu scrutinize the arbitral award to make sure that the award was not based on a subject matter which is not capable of being settled by arbitration in Botswana and that the award is not contrary to public policy. It is, however, unclear whether, following the grant of leave for enforcement, it is a necessary follow-up step to obtain judgment in terms of the award or it would be done so at the instance of the award creditor. Under section 20 of the Arbitration Act, it is optional for the award creditor to have a judgment entered in terms of the award. This indeed is the preferred interpretation in light of the fact that having a judgment entered in terms of the arbitral award may transform or merge the award into a judgment. This may mean that the award creditor is not transformed into a judgment creditor. Otherwise, the award creditor would not be able to enjoy the facilities availed to it under the New York Convention on the Recognition and Enforcement of Foreign Arbitral AwardsFootnote 102 or other more favourable systems for enforcement when and if such party wishes to have it enforced in other jurisdictions. Section 8(12) has eliminated the inconveniences that pervades the arbitration award under the Arbitration Act. It automatically equates arbitral awards to court judgments, thereby enabling the enforcement thereof without the award creditor having to obtain leave of court or having a judgment to have entered in terms of the award.Footnote 103
In this respect, an advantage of an arbitral award obtained through private arbitration vis-à-vis the compulsory arbitration under the TDA, which clearly stands out is the fact that the latter, should a need arise, does not fall under the ambit of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) of 1958.Footnote 104 The Convention requires that the award creditor seeking recognition and / or enforcement should, at the time of filing the application, supply an original arbitration agreement or a duly certified copy thereof in addition to the duly authenticated original award or a duly certified copy thereof.Footnote 105 Apparently, compulsory arbitrations take place short of arbitration agreements.
Conclusion
It has been demonstrated in this paper that the TDA creates a system of arbitrating labour disputes within a broader scheme of dispute resolution that includes mediation, med-arb and litigation. Arbitration in the TDA is largely dependent on the nature of the dispute and on the agreement of the parties to the dispute. Therefore, arbitration can only be practised in terms of the agreement of the parties or where the statute prescribes it as the appropriate dispute resolution mechanism. That being said, labour arbitration is not exclusively vested in the TDA system; in fact, the possibility to arbitrate labour disputes under the Arbitration Act (outside the TDA) is conceivable.
It has also been demonstrated that whilst the TDA enjoins an arbitrator to utilize med-arb processes prior to arbitration, this approach may complicate the subsequent arbitration process. Despite the policy choice to embrace med-arb processes, no guidelines have been put in place for its use.
Finally, the Industrial Court has the power to either review the arbitrator’s decision or entertain an appeal. The grounds set out in the Act for these recourses are nevertheless limited. In this regard, the quasi-judicial nature of arbitration proceedings under the TDA necessitates ensuring a careful selection of individuals with legal expertise to the panel of arbitrators.
Competing interests
None
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