GOVT WON’T SUBMIT FOR ARBITRATION AT CMAC
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.
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.