Dispute resolution UNIT 8

Learning outcomes After studying this chapter student should be able to: Explain the context and nature of employment disputes Contextualise dispute resolution with respect to the constitution and international standards

Learning outcomes Contd. Examine how the Labour Act categorises and provides for dispute resolution Explain the progression of an internal and external dispute, both individual or collective, and the various means of resolution, and, Appreciate the importance of quick and effective dispute resolution in the employment relationship

Key vocabulary Conflict-opposition /clash in ideas between two parties Dispute- any misunderstanding between employer or employers’ organisation and an employee or trade union relating to a labour matter Conciliation-mediating a dispute; conducting a fact finding; making an advisory award if it will enhance the prospects of settlement Arbitration-engaged on after conciliation has failed; arbitrator’s verdict is binding.

Key vocabulary Dispute –any disagreement between employer and employee relating to a labour matter Dispute of interest- any dispute concerning a proposal for new or changed conditions of employment but does not include disputes to be resolved by adjudication of the Labour Act or other court of law or arbitration Dispute of right-flipside of dispute of interest Essential service-a service whose interruption could endanger the life, personal safety or health of the whole or any part of the Namibian population.

The concept and nature of labour disputes A distinction between conflict and dispute to be made Conflict confined within the organisation Merely referred to as conflict processes to resolve conflict are used Unresolved conflict is a dispute A third party used in solving a dispute Third party – conciliator /arbitrator

The concept and nature of labour dispute. Contd. Dispute differentiated by right or interest A dispute of right arise from an actual entitlement or obligation A dispute of interest arise from a perceived entitlement or obligation

Dispute of right Occurrence of an actual entitlement or obligation in contract of employment; collective agreements, in pieces of legislation, as well as regulations governing the employment relationship Example of dispute of right, when employee would like to take his / her 21 consecutive days annual leave and the employer is only willing to grant him or her 10 days annual leave

Issues that may give rise to dispute of right Employer’s refusal to: -Abide by any law or agreement -Implement statutorily determine conditions of employment -Implement conditions of employment set out in a CA. -Implement an arbitration award -Abide by processes and procedures legally determined or set out in agreements -Abide by the common law -Negotiate changes to terms and conditions of employment

Dispute of interest Might arise when party to employment relationship feels they should be, but are not yet entitled to something Should entitlement occur after negotiations and a signed agreement, it becomes a right. Issues bargained for not yet regulated by any law or agreement may lead to dispute of interest These may include new wage levels, new conditions of work etc

Processes of handling disputes Most labour relations systems provide these; Dispute of rights ConsultationConciliation Arbitration or adjudication in Labour Court

Processes of handling disputes Disputes of interest Negotiation Conciliation Arbitration Or Strike /lockout

How disputes can be minimised Employers to be pro-active and seek cultures that minimise occurrence of disputes Tips; -Effective communication -Must have tools to deal with conflict, for e.g. grievance and discipline procedure -Consultation and employee involvement -Staff forums; joint working groups, employee consultative bodies etc. -Motivate employees and encourage commitment to organisation -Establish workplace forums -Avoid any form of discrimination -Provide training and development to empower employees

Dispute resolution under the Labour Act The objective of the LA is to practice constructive and harmonious labour relations It therefore creates a comprehensive framework of workplace disputes The Act also empowers and mandates the Bargaining and statutory councils to resolve disputes

Namibia Labour Act `Part IX: Disputes between Employers or Registered Employers, and employees or registered trade unions

Section 74: Reporting of disputes Any person part to a dispute may report it Reported by notice in writing Commissioner may determine in what form to report Copy of such notice submitted to all other parties involved

Contents of the notice The names and addresses of involved parties Subject matter under dispute Facts or circumstances that gave rise to dispute If alleged to be dispute is dispute of right, then the grounds on which so alleged to be given The steps taken to try to resolve the dispute given

Altering existing CA or any agreement Employer party to a dispute involving the above, upon receipt of notice shall restore the CA If the notice has been on a date not later than 30 days after such alteration has been effected or a restraint from effecting the intended alteration until the dispute is resolved is granted, the employer shall refrain from such action. An employer who fails to comply with the above provision shall be guilty of an offence and on conviction be liable to the penalties which may be imposed by law for contempt of court.

Section 75: Establishment of conciliation boards As soon as he/she receives the notice the commissioner establishes a conciliation board for the period as from time to time will be determined by the parties to the dispute by mutual agreement The board shall consist of a Chairman not party to the dispute It shall consist equal numbers of persons from each party/or 3 members each from each party determined by the Commissioner.

Establishment of conciliation boards. Contd. Any casual vacancy by death on conciliation board shall be filled mutatis mutandis in accordance with provisions of sub-section (1) Commissioner shall not establish a conciliation board as provided by sub-section (1), unless he/she is satisfied that parties to the dispute have taken all reasonable steps to resolve /settle the dispute in question or until such a time as he/she is so satisfied. Member of conciliation board must not be a civil servant especially the Chairman-will be paid travel and subsistence for travel for work related to conciliation board activities

Establishment of conciliation boards. Contd. Admin work for conciliation board conducted by Ministry of Labour and,Manpower officers Terms of reference of conciliation board determined by Chairman after consultation with the parties to the dispute, with due regard to the subject matter. The Chairman determines the venue and time of the first meeting

Establishment of conciliation boards. Contd. The board decides the place and time of the next meeting The board may also make rules of procedures and how meetings are held No communication by any person in the course of any proceedings of a meeting of a conciliation board shall be admissible in evidence in any court proceedings instituted or any arbitration proceedings held in terms of the provisions of the Labour Act; except with the consent in writing of the person with such communication.

Section 78:Resolved disputes If persons to a dispute agree/resolve the dispute before or after establishment of a conciliation board, they will prepare and sign a memorandum of agreement. If parties desire, they will submit a copy of the memorandum to the Labour Commissioner for registration as if it was a collective agreement.

Section 79: Unresolved disputes If dispute is not resolved by conciliation, arbitration is resorted to. If dispute of rights, any party to the dispute other than the party who refused or failed to take part in the proceedings of the conciliation board may apply for an order for arbitration from the Labour Court If the matter is about disputes of interest, it is referred for arbitration Any party to such a dispute, subject to the provisions of sub-section (2) has a right to take action in the form of strike or lockout in accordance to provisions of section 81.

Where these provisions do not apply Any party providing (Employer or employee), any essential service which if interrupted or continually interrupted would endanger the life, health or personal safety of the whole or any part of Namibian residents to any party who has not complied with the provisions of section 81 (1) Shall not apply to any party to a dispute of rights which has been referred to arbitration

Research and discussion questions Research on unfair dismissals and explain why these could be termed as unprocedural. Discuss the repercussions such unfair dismissals have to the company concerned. (Get an exhaustive list of these and then for your discussion dwell on only five (5)). Give many examples of strikes that were recently experienced in Namibia. Classify them as disputes of interests or disputes of rights. State or explain why you are either saying they are disputes rights or disputes of interests.

Research and discussions Research and discuss the functions of the labour court in Namibia. *Use the Namibia Labour Act 1992 & Namibia Labour Act 2007.