Engineering Iron & Steel Association Zimbabwe v National Engineering Workers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/88/14
HELD AT HARARE 24TH SEPTEMBER 2012
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/88/14

HELD AT HARARE 24TH SEPTEMBER 2012		CASE NO LC/H/389/11

& 14TH FEBRUARY 2014

In the matter between:

ENGINEERING IRON & STEEL ASSOCIATION			Applicant

ZIMBABWE

And

NATIONAL ENGINEERING WORKERS UNION		Respondent

Before The Honourable L Hove, Judge

For Applicant		G Makings (Legal Practitioner)

For Respondent		C Kwaramba (Legal Practitioner)

HOVE, J:

This is an appeal against a decision by an arbitrator.  The arbitrator awarded a 20% increase to A1 engineering employees in the Engineering Sector covered by the National Employment Council for the period

1 March 2011 to 28 February 2012.

Dissatisfied with this award, the appellant noted an appeal to this Court.

A preliminary issue was raised when the appeal was challenged.

It was submitted that the arbitrator had not been appointed in terms of the Labour Act [Chapter 28:01] (The Labour Act) but in terms of the arbitration Act [Chapter 7:01] (the arbitration act).

It was submitted that the Labour Court had no jurisdiction to entertain an appeal against an award which is as a result of voluntary arbitration.  The jurisdiction of the Labour Court, it was submitted, is limited to appeals against arbitral awards issued as a result of compulsory arbitration only.

In support of this position, the Court was referred to the provisions of section 98 (10) of the Labour Act which provided as follows;

“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section”

It was submitted further that in casu, the proceedings had been in terms of the arbitration Act and as such this Court has no jurisdiction.

The issue that the proceedings had been in terms of the arbitration act was disputed.  Mr Makings for the appellant argued that it wasinfactcompulsory arbitration as the arbitrator had been selected in terms of section 98 (6) (b) of the Labour Act when she was appointed.  Further he submitted that the terms of reference were in terms of the Labour Act.  Although the dispute was one of interest, he submitted that the parties had agreed that it would be dealt with in terms of the Labour Act.

MrKwaramba for the respondent persisted with his denials that the proceedings had been in terms of the Labour Act and maintained that the arbitration proceedings were in terms of the arbitration act and as such the Court had no jurisdiction to entertain the appeal.

He further submitted that since the arbitration was a voluntary one, article 34 of the arbitration Act specifically excludes an appeal as this one.

The Court has noted from the submissions made that parties are not agreed as to whether the proceedings were in terms of the Arbitration Act or the Labour Act.

The arbitrator however stated in the arbitral award that the proceedings were in terms of the arbitration act.  She understood herself to have been appointed by the parties in terms of article 11 (eleven) of the Arbitration Act

In outlining her powers in the award, the honourable arbitrator stated that she had been appointed in terms of the arbitration act.  In outlining the background, she stated that the parties at conciliation had agreed to refer the matter for voluntary arbitration.

The appellant seeks to challenge the fact that the proceedings were voluntary.  Whether or not the proceedings were voluntary or compulsory is infact a question of fact.

That decision by the arbitrator cannot be challenged in this Court unless it has been alleged that in arriving at that factual conclusion, the arbitrator had been grossly unreasonable.  No such allegation is made in the grounds of appeal filed with the Court.

It is therefore not open to the appellant to argue before the Labour Court issues of facts as only appeals on points of law are allowed to the Labour Court from decisions of arbitrators.

Section 98 (10) provides that much, it reads:

“an appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section”

Once it is accepted that this is a factual issue, and that facts

cannot be challenged, it follows that this court must accept that the proceedings were in terms of the arbitration act as was found by the arbitrator.

In the case of:

Pamire and others v Dumbutshena&Anor2002 (1) ZLR 123

It was held that an award made in terms of the arbitration act cannot be challenged in the Labour Court.  Honourable MAKARAU J (as she then was) had this to say

“I am not persuaded that an arbitration award made under the provisions of the arbitration act [Chapter 7:15] can be set aside or attacked other than in terms of section 34 of the model law contained in the schedule  to the arbitration act.”

In Mtetwa and another v Mupamhadzi 2007 (1) ZLR) 253 (S) Honourable GWAUNZA JA stated that:

“The use of the words “exclusive” and “only” in my view, suggest that there is to be no compromise when it comes to an attempt to have an arbitral award set aside.”

The challenge to the arbitral award ought therefore to have been made

in terms of the provisions of article 34 of the arbitration Act.

An appeal can thus not properly lie to this Court.  The Court is thus.

found to lack the necessary jurisdiction.

I accordingly order as follows:

The appeal is dismissed

There is no order as to costs.

G Makings, applicant’s legal practitioners

MbidzoMuchadehama&Makoni, respondent’s legal practitioners