GOVT WON’T SUB­MIT FOR AR­BI­TRA­TION AT CMAC

Observer on Saturday - - News - Sto­ries by Sandile Nkambule

overn­ment has filed an ap­peal against the Swazi­land Nurses As­so­ci­a­tion (SNA) fol­low­ing an or­der from the In­dus­trial Court that the for­mer should sub­mit it­self to the Con­cil­i­a­tion Me­di­a­tion and Ar­bi­tra­tion Com­mis­sion (CMAC) for ar­bi­tra­tion.

In the ap­peal that was heard by the In­dus­trial Court of ap­peal yes­ter­day morn­ing, gov­ern­ment sub­mit­ted that the In­dus­trial Court as per Judge Pres­i­dent Si­fiso Nsi­bande who was sit­ting with as­ses­sors Musa Dlamini and Ni­cholas Manana, erred in law and mis­di­rected it­self in di­rect­ing that the gov­ern­ment should sub­mit to ar­bi­tra­tion at CMAC.

Gov­ern­ment rep­re­sented by the At­tor­ney Gen­eral’s Cham­ber fur­ther ar­gued that the In­dus­trial Court erred in law and mis­di­rected it­self in find­ing that Sec­tion 96 of the In­dus­trial Re­la­tions Act of 2000 as amended was ap­pli­ca­ble.

The mat­ter was heard by the ap­peals court com­pris­ing Judge Mumcy Dlamini (pre­sid­ing), Jus­tices Ti­tus Mlan­geni and Ticheme Dlamini.

Ac­cord­ing to lawyer Mn­deni Vi­lakati from the AG’s of­fice who was rep­re­sent­ing the Eswatini Gov­ern­ment Ne­go­ti­at­ing Team (GNT), said the grounds of ap­peal are ac­tu­ally premised on the two and sub­mit­ted be­fore the ap­peal court that ar­gu­ments in sup­port of th­ese grounds are that there are two routes of re­port­ing a dis­pute at CMAC.

Vi­lakati ar­gued that the first route is to ap­proach CMAC un­der Sec­tion 76 of the In­dus­trial Re­la­tions Act and the other is un­der Sec­tion 96 fur­ther ar­gu­ing that the court erred in or­der­ing gov­ern­ment to sub­mit to com­pul­sory ar­bi­tra­tion un­der sec­tion 96 when dis­pute was not re­ported as such.

“My Lords and Lady, the court aquo

Gerred in law if grant­ing the or­der, the re­spon­dent (SNA) used the wrong door in ap­proach­ing CMAC, we were not forced to sub­mit un­der the com­pul­sory ar­bi­tra­tion, they used sec­tion 76 which does not ap­ply to es­sen­tial ser­vices cat­e­gory, we there­fore ap­ply that the ap­peal be up­held with costs,” said Vi­lakati.

The rea­son cited by gov­ern­ment in de­clin­ing to sub­mit for ar­bi­tra­tion was that gov­ern­ment did not trust CMAC.

Judg­ment

The In­dus­trial Court in its judg­ment is­sued in June, or­dered gov­ern­ment to sub­mit it­self to ar­bi­tra­tion for the un­re­solved dis­pute re­gard­ing cost of liv­ing ad­just­ment (COLA). This came af­ter the SNA had filed an ap­pli­ca­tion where it was seek­ing an or­der that the gov­ern­ment ne­go­ti­a­tions team (GNT) should sub­mit it­self to the ar­bi­tra­tion pro­ceed­ings, over the cost of liv­ing ad­just­ments (COLA).

In his judg­ment, In­dus­trial Court Judge Pres­i­dent Nsi­bande stated that once a dis­pute be­tween par­ties was un­re­solved, the leg­is­la­ture in­tended that it be re­ferred to ar­bi­tra­tion for res­o­lu­tion at the be­hest of ei­ther party. He said the In­dus­trial Court did not come into play in this sit­u­a­tion but the party to the dis­pute sim­ply re­ferred the mat­ter to ar­bi­tra­tion.

“It seems to us that ar­bi­tra­tion is com­pul­sory in terms of the leg­is­la­tion and the other party has no choice but to fol­low the leg­is­lated dis­pute res­o­lu­tion,” said Judge Nsi­bande.

The court high­lighted that this was the only fo­rum the leg­is­la­ture had en­dowed with the power to in­ter­vene in dis­pute about es­sen­tial ser­vices.

Judge Nsi­bande fur­ther stated that there seemed to be no statu­tory ba­sis to pro­vide that such dis­pute could be heard by the In­dus­trial Court as sug­gested by gov­ern­ment

In their ap­pli­ca­tion, the nurses through Sibu­siso Lushaba’s af­fi­davit had con­tended that they de­served to be awarded a cost of liv­ing ad­just­ment of 7.58 per cent, while gov­ern­ment avers that it was un­able to do so due to fis­cal and cash flow chal­lenges. The ap­pli­ca­tion by the nurses came af­ter the Con­cil­i­a­tion, Me­di­a­tion and Ar­bi­tra­tion Com­mis­sion (CMAC) is­sued a cer­tifi­cate of un­re­solved dis­pute.

TALK TO MY LAWYER: Swazi­land Demo­cratic Nurses Union Pres­i­dent Bheki Mamba ges­tures as he ad­dressed the nurses while Gen­eral Sec­re­tary Sibu­siso Lushaba chats with lawyer Mnakekeli Nd­langa­mandla who rep­re­sented the nurses.

NOT AMUSED: The nurses cap­tured leav­ing the High Court af­ter the case.

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