€ R a 8 LABOUR DISPUTE SETTLEMENT/RESOLUTION A labour dispute is a disagreement between an employer and an employee with regard to terms of employment (labour matters). *The term labour matters was emphasized in the case of Nyota Tanzania Limited v. Onesmus .D. Onyango & Another Civil Appeal No.224 of 2018, HC, DSM (Unreported):- The Court held that:- Section 4 of the Employment and Labour Relations Act defines the term labour matter to mean any matter relating to employment or labour relations. *Disputes are therefore part and parcel of human nature and always manifest everywhere including in the employment arena.Mi CATEGORIES OF LABOUR DISPUTES IN TANZANIA + A labour dispute is generally divided into two types:-(Section 4 of the Employment and Labour Relations Act) (i) Dispute of Interest. (ii) Dispute of right (complaint) 1. DISPUTE OF INTEREST ‘This is any other dispute which is not a complaint or (dispute of right). In other words, all other disputes are not concerned with the application, interpretation, or implementation of an agreement or contract of employment and the Employment and Labour Relations Act or any other law administered by the minister for labour. EXAMPLES:- Disputes involving salary increases and disputes concerning increases or decreases in working hours.2. DISPUTE OF RIGHT (COMPLAINT) *This is any dispute which involves the interpretation, application, or implementation of an agreement or contract with an employee and the Employment and Labour Relations Act or any other law administered by the minister for labour. + EXAMPLES:- Failure by the employer to pay the salary(remuneration) to an employee, a dispute involving refusal or failure to implement what has been agreed in the contract of employment.8 LAWS GOVERNING LABOUR DISPUTE RESOLUTION IN TANZANIA 1. The Employment and Labour Relations Act [CAP 366 R.E 2019] (ELRA) 2. The Labour Institutions Act [CAP 300 R.E 2019] (LIA) 3. The Labour Court Rules, 2007 (GN No. 106 of 2007). 4. The Employment and Labour Relations (Mediation and Arbitration Guidelines) Rules GN No.67 of 2007. 3° INSTITUTIONS RESPONSIBLE FOR HANDLING/RESOLVING LABOUR DISPUTES IN TANZANIA -There are three(3) major institutions:- Court of Appeal of the United Republic of Tanzania The Labour Court (The High Court Labour Division) The Commission for Mediation and Arbitration (CMA)ge PROCEDURES INVOLVED IN RESOLVING LABOUR DISPUTES IN TANZANIA 2 1. Mediation 2. Arbitration 3. Adjudication Mi MEDIATION = Is a process in which a person independent of the parties is appointed as mediator and attempts to assist them to resolve a dispute and may meet with the parties either jointly or separately, and through discussion and facilitation, attempt to help the parties settle their dispute. OR « Mediation is defined to mean ‘a method of nonbinding dispute resolution involving a neutral party known as the mediator who tries to help the disputing parties reach mutually agreeable solution. (According to Black’s Law dictionary, 8th Edition)m@ THE MANDATORY REQUIREMENT OF REFERRING THE DISPUTE FOR MEDIATION BEFORE ARBITRATION AND ADJUDICATION = It is the mandatory requirement of the law that all labour disputes mustfirsty be referred for mediation before embarkingon other procedures. This position was emphasized in the case of :- gq V Hector Sequeiraa v. Serengeti Breweries Ltd, High Court of Tanzania, Labour Division Labour Complaint No. 20 of 2009:- the complaint was thrown out in 2011 by High Court Labour Division, on technicalities. The Court ordered the case to undergo mediation first at the CMA.= "Mediation of a dispute is mandatory before referring the same to arbitration”. Cable Television Network (CTV) Ltd v. Athumani Kuwinga & others, Labour Revision No. 94 of 2009, HC, LD, DSM (unreported) at p. 5. = Reference should also be made to the wording of Section 86 & Section 88 of the Employment and Labour Relations Act and Rule 3 of The Employment and Labour Relations (Mediation and Arbitration Guidelines) Rules GN No.67 of 2007.m@ REQUIREMENT OF CMA FORM No.1 & CMA FORM No.7 = It is the requirement of the law that all labour disputes which are to be referred for mediation must be referred through CMA form no.1. = While CMA form no.7 is applicable only where the dispute is to be referred for mediation out of time. = It must be kept in mind that disputes are to be referred for mediation within 30 days of the happening of the dispute.Mi TIME LIMIT FOR RESOLVING THE DISPUTE THROUGH MEDIATION = The mediator will have 30 days to resolve the dispute through mediation. However subject to a written agreement by the parties to the dispute, the time may be extended. (Refer to Section 86(4) of the ELRA) Mi MEDIATION SETTLEMENT AGREEMENT AND IT IS BINDINGNESS = After the dispute has been successfully resolved through the mediation process, then the mediator will be required to issue a mediation settlement. = The decision reached by the parties must be reduced into writing and signed by all the parties, becoming binding and may be executed as a decree in the Labour Court. (Refer Section 89(1), (2) of the ELRA.)ARBITRATION « Arbitration is a procedure of resolving disputes whereby the parties’ dispute is submitted to one or more arbitrators who make a binding decision on the dispute upon receiving evidence from each party. = Steadman defines arbitration as a process in which an independent third party hears the parties' respective cases, determines the dispute between them, and issues an ‘award’ or ‘decision.’ The award or decision is typically final and binding, subject to review or revision but not to appeal. (Steadman, F., Handbook on Alternative Labour Dispute Resolution Geneva: ILO, 2017, pp.2122. 319)MB TYPES OF ARBITRATION 1. Compulsory Arbitration:- the mediator is appointed by the CMA after the dispute has been referred to arbitration by the parties. 2. Voluntary Arbitration:-the parties to a labour dispute select or choose the mediator of their choice. NB:- Arbitration cannot be effected unless there is proof of failure of mediation. In the case of Katavi and Kapufi Limited and another v. Emmanuel Dotto Ibrahim and 8 others Labour Revision No. 04 of 2020, HC, LD, Sumbawanga (unreported) at p. 46. the Court ruled that it is a spirit of the labour laws that once mediation fails, the dispute is referred to the stage of arbitration. 8¢(See also Section 88 of the ELRA and Rule 19-28 of the Labour Institutions (Mediation and Arbitration) Rules, 2007 (G.N. No. 64 of 2007).= In the same vein, the law directs that within 30 days of the conclusion of the arbitration proceedings, the arbitrator is obliged to issue a signed award with reasons thereof. @ An arbitration award is binding on the parties to the dispute and the same may be executed in the Labour Court as if it were a decree of a court of law. (See Section 89 of the ELRA and Rule 18(3), (4). ADJUDICATION (See Section 94 of the ELRA, Section 51 of the Labour Institutions Act, and Rule 6 of the Labour Court Rules GN No.106 of 2007. = Is a formal process that takes place in the context of courts of law as opposed to quasi-judicial bodies; it is a process whereby the Judge adjudicates the matter and then determines the dispute between the parties. @ Here, the Judge decides who is right or wrong based on the evidence placed before him and issues an outcome in the form of a judgment.@ It is important to note that adjudication is carried out by the Labour Court and Court of Appeal. = However, the Labour Court has the discretion to refuse to hear a complaint if, among others, the complaint has not been referred to mediation by the CMA. (Refer to the case of Hector) @ Labour Court Form No.1is used to refer to a labour dispute in the Labour Court. (Rule 6 of the Labour Court Rules GN No. 106 of 2007. lB APPEALS FROM THE LABOUR COURT TO THE COURT OF APPEAL m With regard to the Court of Appeal, the law stipulates that any party to the proceedings in the Labour Court may appeal against the decision of the Labour Court to the Court of Appeal of Tanzania on a point of law only as per Section 57 of the Appellate Jurisdiction Act, Cap. 141 and Court of Appeal Rules, 2009 (G.N. No. 368 of 2009).NOTE:- APPEALS, REVIEW, REVISION ANS SETTING ASIDE OF THE ARBITRATION AWARD @ Any party to a labour dispute may make an application before the labour court to set aside any arbitration award from the CMA (See Section 94(1) of the ELRA) © Edited 15:53