1.0.INTRODUCTION.
This paper aims at examining the efficacy of trade unions in settling labour disputes in Tanzania: Law and Practice. The establishment of trade unions is to administer workers’ welfare, but ever since workers go on swimming on conflicting interest with their employers in vain. A trade union for an average person signifies the association of workers that is engaged in securing certain economic benefits for its members. It tries to advance the social, political and cultural interests of its members through collective actions. According to Chambers Encyclopedia, a trade union is an association of wage earners or salary earners formed primarily for the purpose of collective action for the forwarding or defence of its professional interests. In view of above definitions, trade unions have their interest despite they are established to protect workers’ interest.
Generally, trade unions are voluntary organizations of workers formed to promote and protect their interests by collective action in working place. The composition of trade union comprises of non-supervisory or non-managerial employees including part-time workers (employees employed not for permanent in a particular plant rather visiting in the working place for special circumstances).
The union leader as elected by members is the intermediary, generally between the union and the employer . Where a union member feels something has gone wrong, or an unfair labour practice has been committed, the union leader is usually the first to contact the employer and discuss the issue, hopefully having it solved. The branch unions established in working place are part and parcel of a larger union network.
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1.1.HISTORICAL BACKGROUND.
The view of establishing trade unions originates from Western countries notably European and Asian countries. Workers cried for their interest from the point that employers gained much benefit from them. This came with the increase of industries and expansion of means of production . It is due to
the controversial interests between the employer and the employee in their contractual employment. Ever since trade unions were established for representing workers in their working premises. Tanzania experienced the establishments of trade unions in 19th centuries when the Motor Drivers’ Union was formed in Moshi demanding for high wages and working conditions , however the union proved unsuccessful at earliest stage due to ideological differences between the members. Before independence , the established trade unions lacked enough force to handle matters pertaining to workers . For example, in 1955 TFL failed to organize a strike due to unfair dismissal of three waiters of the Kinondoni Hotel on ground that, the strikes was unconstitutional.
Few years after independence trade unions gained autonomous, they lose strength within a short period since their autonomous was regarded as a threat to the new nationalist government and their ruling parties. For example, the rights of trade unions in demanding for workers rights such as organizing labour strikes was regarded as undesirable and that such activities threatened national peace, security and unity of the new nations, so some of the trade unions were abolished or were put under strong State control . This was witnessed during the struggle for independence where the relationship between TANU and TFL and other trade unions was so oppressive. Such that TFL enjoyed relative autonomy but soon after independence began to deteriorate, while TFL and other unions wanted to maintain their autonomy as trade unions and carry out their activities for the benefits of their members, TANU and the government began to differ on a number of policy issues such as:- a)The Africanization of the civil service
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b)The perpetuation or abolition of the East African High Commission. Two factors contradicted the establishment of trade unions. The first was the Africanization, this was the process of bringing African together against the colonies. In this aspect, TFL preferred the process because it was basing on African; while the government wanted to avoid the aspect of colour segregation. Second was the establishment of the African High Commission. The rationale was to establishment the East African Federation; TFL preferred the abolition of this instrument because in itself perpetuated colonialism, where as the government preferred it as a foundation for the establishment of the East African Federation . The government then enacted some laws that hampered the function of trade unions: a)Trade Unions Ordinance (Amendment) Act, 1962 (No. 51of 1962) b)Civil Service (Negotiating) Machinery Act, 1962 (No. 52 of 1962) c)Trade Disputes(Settlement) Act,1962 (No. 60 of 1962)
These Acts at first strengthened the TFL and other individual unions, second banned participation by senior civil servants in trade unions and lastly drastically limited the right to strike. The enactment of the Preventive Detention Act was a clear indication of the government determination to limit factional opposition and to control and economically disruptive trade union activity .
The dissolution of TFL in 1964 was a result of the establishment of NUTA under the NUTA Act, 1964 . NUTA was a sole trade union in the country and its main function was to propagate government policies rather than workers rights . It is at that juncture that workers remained orphans with nowhere to present their claims. The function that performed by TANU was politically oriented . The trade union autonomy was revealed in 1980s due to the economic crisis and country’s transition to multi-party system in 1990s. The existing trade unions declined paving way to the Organization of Tanzania Trade Unions (OTTU) .
OTTU succeeded to conduct a fruitful strike in 1992 after the failure of the President to fulfill the promise of raising salaries in the country. The union indicated itself that it was not under control of the government. The efficacy of trade union always depends on the good relationships existing within the working environment. In 1994, trade unions witnessed a massive repression by the government due to the high school teachers’ strike that led to the suspension of 318 teachers and creation of Tanzania Teachers Union. The government established the TFTU but had no power to negotiate with the employers leaving it to be done by the respective industrial union .
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Trade unions independence was witnessed in 1998 after enactment of Trade Unions Act, 1998 . Many trade unions supported this except for the great
powers conferred to the Registrar of trade unions. The Act allows the Registrar of trade union to de-register a trade union at any time . The powers vested to the registrar of trade unions are so huge to extent that he may cancel registration of trade union as he deems fit to do so.
1.2STATEMENT OF THE PROBLEM.
The philosophical idea of the trade union is to regulate the relationship existing between employees and employers. There are barriers to employees and trade unions as well, where employees are threatened to be expelled from job if they join trade union and the issue of preventing the organization within working premises, so this in one way or another makes workers not to know or to be aware on the existence and benefits of the trade unions . The rise of the workers struggle was to fight for the workers’ interests such as working hours, payment of wages, good working conditions and other employment benefits entitled to the employee. Since its rise, the government in taking fair actions against employers has hampered trade unions in Tanzania.
During colonial period, trade unions became inoperative through establishing work councils for collective bargaining since such councils did not serve the purpose of the employees rather than opposed the interests between capital and labour. The problems facing trade unions today is less consideration of workers’ benefits from the State. The burning issues like low payments, reluctance of employers to follow labour laws and overworking are challenging factors to trade unions in representing workers’ rights.
In fact, even though trade unions have a task of representing workers’ interests and are eager to do that, there are some political elements that have been imparted into unions leaders who for their personal interests fears to engage fully on unions’ functions. Shivji on his book argued that: “When some trade unionist did realize that the question of trade union autonomy was essentially a political question and could not be solved through the trade unions’ themselves they resorted to either joining or forming splinter political parties”
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Although there is a great efforts taken by trade unions to maintain there autonomy, there are mainly two factors that retard such efforts. First, the disunite among the trade unions themselves, second, government interference. Where there a unity between trade unions themselves it is possibly to maintain their autonomy. One union leader once remarked that: There are technicalities that they employ for the strike held by TUICO to be successfully, so incase all trade unions are united together it is possibly to maintain their autonomy, without uniting together these weaknesses will not end .
Disunite among the trade unions operate as a great factor that makes a loophole for the government to interfere the functions of trade unions. It is obvious that strikes is condemned by the government in whatever trade unions stage on strike on issues that the government fails to concur with.
1.3LITERATURE REVIEW.
Since trade union is not a new phenomenon, various authors have discussed various issues concerning trade unions. Their discussions have been basing into various field, which to some extent did not touch on the efficacy of trade unions in settling labour disputes. Through this paper will indicate some gapes that authors did not discuss in various sources.
Shivji contends that members for social services made a lukewarm reference to trade unions by saying that Labour Officers may assist trade unions with advice, but such assistance should not go to the length of the active organization of associations. In reference to the author, the government has granted freedom of association to every person, and once organizations have been formed, becomes independent of it without being interfered by State. The assistant granted by the Labour Officer should not be a submergence of trade unions in performing their duty. The body corporate of trade unions should be maintained irrespective of such assistance.
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Goswami , pointed out the rights of trade unions that if exercised effectively would make trade unions to represent workers in effective way. These rights include; (i) The right of representation of labour before employer in works committees before conciliations, mediation and arbitration before courts and tribunals or labour departments. (ii) The rights to negotiate and settle disputes with the employers and sign the settlement and execute them. (iii) The rights to hold meetings, conference, post their notices or inspect the places where the members are employed for work.
(iv) The right to accept services of notices summons, etc. (v) The rights to perform other formalities like attestations of agreements. (vi) The right to obtain legal aid, the right to stage demonstration and strikes. A common right, which is subject to laws regulating the strikes. All these rights will be implemented effectively only if less interference by government to trade unions will be considered. The effectiveness application of those rights will strengthen trade unions in settling labour disputes.
Mwapachu contends that, there is a need of revisiting the industrial relations regime in place on the ground that, in the industrialized world trade unionism is fast departing from its confrontational mode. There is an experienced decline in trade union membership and use of strikes as a weapon for negotiations. Here trade unions are found to be more economical than undertaking labour matters. That trade union is based more on collecting dues from members instead of strengthening themselves in settling labour disputes. Lack of income is one of the factors that render trade unions to be ineffective, the author should have argued on the factors that may develop skills to the trade unions stakeholders for the running of trade unions for the benefits of the workers.
Nyerere contends that, the purpose of trade unions is to ensure for the workers a fair share of the profits of their labour. Such a fair share must be fair in relation to the whole society so long as trade union leaders and their members are true socialist. The government will not coerce them to demand within the limits imposed by the needs of the society as a whole. The author focused his views on socialist ideas without considering that trade unions perform their duties on capitalist system where profit maximization is the foundation of the capitalist.
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Trade unions should be strong enough to meet the intention of such capitalist as can be witnessed in a case manned by Justice Mwipopo in handling a case, was blessed by TUICO in settling disputes between employees of SPM and the employer SPM and the buyer of the industry PSRC, MPM and RGK. The issue to the case was the payments of monthly salary, leave payments and other employment benefits as required by the law. The author here did not consider the efficacy of trade unions rather he was interesting on social relations among the society.
Tendon argued that, the effectiveness of trade unions are witnessed where workers perform their functions smoothly without conflicts between employers and employees. However, public opinions generally are against some of the unions and their organization where certain labour organizations are charged for corruption and curtailment of democracy. He went on to argue that trade unions are blamed by organizing strikes and labour disputes illegally. The author has not discovered the possibility of workers being unaware of their rights and the problem of not knowing where to present their blames. This paper has examined the problem that exist among trade unions stakeholders and workers where possibly will enable them to restore from such rights.
Sachikonye agued that the responsibility of workers committees and unions are important instrument for regulating control over workers through internal campaigns aimed at enforcing discipline and productivity. Further, examined the importance of relationship that exists between workers committees, unions and the management in the attainment of the discipline and productivity. The author is on the view for increasing productivity with respect to the existence of workers’ committee, trade unions and the management. The author though is silent on the means that will be employed by trade unions on the need to solve labour dispute in case it arise and the power embodied on trade unions in handling labour matters.
Sikalumba in his book contends that in some instances the labour laws may contain some ouster clauses that prevent a person to challenge any decision from the Industrial Court. So the decision of the court shall be final and not liable to be challenged, reviewed, questioned or called in question in any court save for lack of jurisdiction. It clearly indicated by the author that, the arguments laid down in the book focused more on ouster clauses contained in the labour law. There is nothing said concerning trade unions and measures to be taken by trade unions in case labour laws are not properly followed by the employer or the relationship that exist between trade unions, workers and the employer.
1.5. SIGNIFICANCE OF THE STUDY
The study of this paper covers a range of data regarding the efficacy of trade unions in settling labour disputes. The reasons for the study of this paper are as follows:- First, since the rationale of establishing trade unions is to regulate relationship persisting between employees and employers, then the study of this paper will enable employees to know their rights under the contract of employment. Second, the study is to contribute knowledge on the labour laws to the working class and their rights as employees.
Third, the paper will come up with possible solutions to the problems facing trade unions in settling labour disputes.
1.5.HYPOTHESIS.
The hypotheses tested on this study were as follows:-
First, trade unions do not adequately protect the interest of workers in respect of them being established to represent the working class. Second, trade unions are formed purposively to represent workers but corrupt practices are found to be the main instrument of ineffective trade unions.
1.6. RESEARCH METHODOLOGY.
In this study, two research techniques were employed:-
2.2.Documentary Review.
This is one of the procedures that constituted an intensive review of both primary and secondary data. Both techniques were to examine the efficacy of trade unions in settling labour disputes. The use of these data was to construct the historical background, statement of the problem and the literature review.
Under the primary data, the researcher visited policy documents, government papers of various seminars, newspapers, magazines, legislation and speeches of various government and organizations leaders. Secondary data constituted mainly of textbooks, dissertations of other researchers, journals, articles, reports, case laws, and papers. The researcher visited RUCO library, Tumaini Library at Iringa, Iringa regional library and internet sources.
1.6.2. Field Research.
A researcher employed this method where two research tools were in use, that is:-
a)Direct interview
b)Questionnaires.
Direct interviews were employed in proving the first and second hypothesis on the government control over trade unions in settling labour disputes has contributed to the trade unions to be undemocratic and trade unions does not adequately protect the interest of workers in respect of them being established to represent the working class. The significance of this tool was to the effect that, the researcher had an opportunity of discussing with the respondents and got more clarification on points made by the respondents.
The nature of questions asked was semi-structured, where on the course of responding to the questions the researcher discovered some new questions. The offices that were visited for interview were firstly, TUICO office in Iringa where the researcher interviewed with the General Secretary of TUICO in Iringa region Mr. Thomson Mboya, TUGHE office, TPAWU office, TALGWU and RAAWU respectively. The questions that were asked in these offices was based on the rationale for the establishment of trade unions, the appropriate means of settling labour disputes and the independent of trade unions. The aim was to examine whether trade unions perform exactly the functions of representing workers.
Secondly, workers from MPM, TANWAT, TWICO and Green Resources Co.Ltd. The interview to the workers was to examine the strength of trade unions in settling their problems and how do they know about labour laws.
Thirdly, a researcher visited to the High Court of Tanzania at Iringa to examine the judgments concerning workers’ disputes and the general views of High Court on the independence of trade unions in settling labour disputes.
Questionnaires employed for testing the third hypothesis to see the control of government over trade unions. One of the questions formulated were, trade unions being an instrument of representing workers in settling labour disputes, whether trade unions have been democratically empowered in settling labour disputes. Selections of respondents was done randomly although some of the respondents who were given questionnaires denied to feel in instead they passed to other workers.
The importance of court observations was to extract the decision made by court regarding workers disputes and the independence of trade unions. Through reading case laws, the researcher examined the approach made by courts of law and the court’s views in respect to effective of trade unions.
CHAPTER TWO
TRADE UNIONS ORGANIZATION AND THE MILITARY STATE SYSTEM
2.1. INTRODUCTION.
Under this chapter, the researcher intends to outline and analyse the relationship between trade unions organization and the State government. Furthermore, the rights of workers to form a trade union it is a basic right .
2.2.THE RELATIONSHIP BETWEEN TRADE UNIONS AND STATE SYSTEM.
2.2.1. What is a trade union and State system?
A trade union is a workers’ association established for securing certain benefits for its members. It is an association formed to regulate the relations between workers and employers, workers and workers, or between employers and employers. The relation between the two parties is to improve production as to the employers and achieve the employment interests as to the employees .
State is a body politic, or society of men, united together for promoting their mutual safety and advantage . It is the most general instrument of power and the highest form of institutionalization of political power with sovereignty capable of enforcing coercive power.
2.2.2. RELATIONSHIP BETWEEN TRADE UNION AND STATE.
The emergence of trade unions in Tanzania can best understand in analyzing the relationship that exists between State and civil society. This is because development of State has necessitated the development of civil society in most of the society. Furthermore, development of State system has resulted into the process of polarization between State and non-State society. The process of polarization has given rise to contradiction relationship between State and non-State society that constitutes trade unions as well. So non-State society needs State for protection and defence. The non-State society on the other side needs protection from tendencies of domination, oppression, exploitation and abuse of human rights by the State. Therefore, through this contradiction relationship, the need for the development of the civil society such as trade unions, a cooperative union, political parties etc. has arises.
2.3. THE RIGHTS OF WORKERS TO FORM A TRADE UNION.
It is from the contradictory relationship between State and non-State society construed above that lead to the rights of workers to form a trade union. This is a basic right enshrined in the constitution that requires any person to join any association of his or her choice, this includes the right to form and join trade union. This right is subject to the rules of the organization concerned that means when an organization is formed it establishes its rules that are to be followed by its members, but such rules shall not be contradictory to the constitution. So the right of workers to form a trade union was witnessed after the oppressions and exploitations of workers’ rights. Workers fought for better wages, hours of work and better working conditions as it reflects in our labour laws . In the 1920s to 1940s in Tanganyika (by then) workers in various working premises formed their association like The African Cooks, Washer Men and House Servants Associations in 1939, and the Railway African Associations in 1944.
In the struggle for the independence, trade unions that were established realized that struggles for workers rights, better wages and working conditions through isolated workers organisations in different areas of work was difficult. As a result began to organize together and for a larger trade
union, so in 1955 a number of trade unions formed were under umbrella organisation called Tanganyika Federation of Labour (TFL)
2.4. POWERS OF TRADE UNIONS IN SETTLING LABOUR DISPUTES.
Having seen the rights of workers to form a trade union, herein are the powers embodied on trade unions in settling labour disputes.
2.4.1. Situation before independence.
As noted that, trade unions in 1920s and 1940s were scattered in different areas of work. By being scattered trade unions lacked efforts regarding labour disputes and financial difficulties, this made them to fail to organize labour matters. On 1955, trade unions managed to organize themselves and form one large trade union called Tanganyika Federation of Labour (TFL) .
2.4.2. Situation at and After Independence.
At independence and few years after independence, trade unions were quite free and autonomous even though they had joined hands with political parties in the nationalist struggles against colonialism. Their autonomy was distorted soon after independence on the ground that trade unions’ activities were seen to be a threat to the new nationalist government and their political parties. Shivji , examines that the government after independence did an effort to place working class organisations under its control so as to minimize their autonomous. With this, the government enacted four pieces of legislation that had significant impact on trade unions. a)Trade Unions Ordinance (Amendment) Act 1962, (No.51 of 1962).
b)Trade Disputes (Settlement) Act 1962, ( No. 43 of 1962)
c)The Civil Service (Negotiating Machinery) Act, 1962, (No. 52 of 1962).
d)The Preventive Detention Act, 1962, (No.60 of 1962).
The consequence of these Acts was to abolish strikes by setting up a complex procedure arbitration and settlement of labour disputes. They continued registration of any trade union and the Registrar of trade union would cancel where a trade union failed within three months of its registration to become member of TFL. The law empowered the President to order detention to any person who in his opinion was conducting manners prejudicial to State.
So the activities of trade unions in demanding for workers’ rights including the right to stage strikes was regarded as undesirable action and such activities threatened national peace, security and unity of the new government. TFL and TANU began to differ on a number of policy issues such as; the process of Africanization of the civil services and the perpetuation or abolition of the East African High Commission. On Africanization TFL preferred the process to be based purely on African while the government wanted to avoid aspects of colour segregation. On the African High Commission TFL preferred its abolition as it was identified with perpetuation of colonialism, while the government preferred its perpetuation as it could provide the foundation for the establishment of the East African Federation .
This made trade unions to be soundless on labour matters as the government put control over them. This is evidenced from the laws enacted governing trade unions being tyranny to them and any activity organized by the union leader about labour matter. What is seen today is to condemn any trade union’s activity where the government through court of law restricts strikes organized by trade unions. The current labour laws provide a leeway to trade unions to act as directed by the law, but the State and employers have hindered such freedom as well.
This is witnessed where TUICO leaders were chased from the employer’s premises contrary to the law , the law permits a representative of the trade union to enter employer’s premises for the purpose of communicating with members and pursuing any activity concerning their organisation. Such act of releasing TUICO leaders contravenes the law that provides for such right and indicates the existence of corrupt practices between the employer and State in such circumstances.
2.5. CONCLUSION.
In summing up, though the idea of establishing trade unions as an instrument of regulating workers’ relations has not been as effective as to the motives of establishing it due to the relationship existing between trade unions and the State to be a controversial one. The laws that grants rights to the workers seems to be legitimate within the provisions of the statutes and procedures stipulated by the same law, so there is no implementation as it
is required by the law. The autonomous of trade unions as an independent organisation are being discouraged by the State through its organs and enacting tyrannical laws that hinders the effectiveness of trade unions.
CHAPTER THREE
SALIENT CHANGES BROUGHT BY TRADE UNIONS IN TANZANIA.
3.0. Introduction.
Since its transformation of trade unions before and after colonialism, trade unions in Tanzania have been facing various problems especially that of acquiring independence in representing their members. In reflecting the previous time trade unions have undergone some changes that have disclosed awareness to the workers’ rights. This chapter examines the recognition of strikes as the last weapon of workers in settling disputes in Tanzania. The trade unions disputes settlement mechanism will be discussed in this chapter too. The chapter also covers barriers for trade unions for effective settling labour disputes.
3.1. The legal recognition of strikes as a last weapon in settling labour disputes in Tanzania.
3.1.1. What is a strike?
In general is a withdrawal from work of a group of workers for the aim of obtaining better terms for their employment. Legally strike is a total or partial stoppage of work by employees if the stoppage is to compel their employer, any other employer, or employers’ association to which the employer belongs to accept, modify or abandon any demand that may form the subject matter of a dispute of interest .
3.1.2. Legal Recognition of strikes in Tanzania.
The new labour laws have clearly defined all rights to stage strikes . It should be noted that strikes is a last alternative in disputes resolution after the employer have failed to understand the other language. Where workers have sit down with the employer to agree on some terms of employment and the employer fails to meet such terms it is a right for employee to stage strike . The law requires an employee to stage strike on dispute of interest. A dispute of interest is any dispute except a complaint that is where workers demand for better wages, good working conditions, reduction of long working hours etc. but a complaint is a demand for the application, interpretation or implementation of an agreement or contract with an employer, or a collective agreement, etc.
However even if the law grants workers the rights to stage strike, but its implementation seems to be minimal due government intervention soon workers announce to stage strike. The law allows provides for the order of injunction by the High Court Labour Division as means of restricting strike. However when the government orders the High Court to grant injunction there are some technical grounds that are used contrary to law. The support of this refers to the strike that was held by the CWT where there was no consultation with the respondent. In such a strike, teachers were barred from organizing strike as a illegal way of claiming their employment benefits.
Sometimes improper procedures used to threaten the employees from staging strikes. For instance, the ruling political party (CCM) condemned teachers’ strikes to be illegal despite of following the clear procedures of strikes. Such procedures includes; the dispute must be a dispute of interest, the dispute must have been referred in the prescribed form to the Commission for mediation and the strike must be held by trade unions through ballots and a notice of 48 hours to be delivered to the employer for the intention to strike .
4.3. Dispute Settlement Mechanisms under the Trade Unions.
4.3.1.What is a dispute?
A dispute generally means a conflicting interest between two parties where one party asserting the right and the denying the existing of such right. The law relating to labour relations defines it as any dispute concerning a labour matter between any employer or registered employers’ association on the one hand and any employee or registered trade union on the other hand. Disputes on labour matters are categorized into two categories:
a)Dispute of interest
b)Complaint.
(a) Dispute of interest
This includes any dispute save for complaint. A dispute of interest involves disputes for the increase of salary, allowances, promotion and other employment benefits.
(b) Complaint
This dispute involves the application, interpretation or implementation of agreement, contract or collective agreement.
4.3.2.Modes of dispute settlement on labour matters.
Unlike in other disputes where the matter has to be instituted to the court of competent jurisdiction like PMCs, DMCs and the RMCs as well as to the High Court, dispute regarding labour issues has its defined modes of disputes settlements. In considering the effectiveness of trade unions in settling labour disputes and avoiding unnecessary delay of settling such disputes, labour laws have provided settlement of disputes out of court for any dispute involving labour matters. The dispute has to be referred to the Commission for Mediation and Arbitration who is empowered to appoint the arbitrator or mediator to deal with the matter.
4.3.2.1.Mediation
This is the process of resolving dispute using a mediator, where a dispute is referred to the Commission in a prescribed form . The Commission appoint the mediator for a dispute who will state the time, date and place where the mediation will be held and advice the parties to the dispute that will be stated by them. The mediator facilitates the case moving by opening channels for communication. The mediator enables the parties to distinguish between needs and wants and the result is confidential to the mediator. So once a dispute arise shall be presented to the Commission by the plaintiff and another copy is served to the defendant through register, by way of fax and by dispatch .
The mediator shall resolve the dispute within 30 days or more where the parties agree in writings. Failure of the mediator to resolve the dispute in a prescribed time the plaintiff will have two options, either to stage strike or to serve the dispute to the High Court Labour Division. However the mediator may remain with the dispute unresolved for a prescribed time and may convene a meeting between the parties to dispute for settling it at any time before or during a strike, arbitration, lockout or adjudication.
4.3.2.2.Arbitration.
This is the of dispute settlement mechanism which involves an impartial third party like in mediation. However, arbitration involves a third party who is supposed to be a lawyer and meet with the parties to a dispute listening and discusses the matter together and is empowered to give its award. Under the contract of employment, the arbitration is stated as follows:
First, where a dispute is a dispute of interest and parties are engaged in essential services .
Second, a complaint involving fairness or lawfulness of an employee’s termination of employment; or where a complaint involves a contravention of the labour laws and where any dispute referred arbitration by the labour court. A dispute is resolved by arbitration after being failed in mediation where the commission appoints the arbitrator to resolve the dispute. The award granted by the arbitrator is binding upon the parties to the disputes as if such award was executed by the court of competent jurisdiction.
Under arbitration, a secretary of trade union, his or her fellow member or an advocate may represent a member of a trade union. However, mediation and arbitration do not pursue the general procedures under alternative dispute resolution where the law empowers the Commission to appoint the mediator or arbitrator instead of parties’ agreement to appoint the mediator or arbitrator. It is possible for the Commission to appoint a person who may be in favour of one of the party. Where trade unions were to be given some opportunity of participating in the appointment of mediator or arbitrator it is likely to be effective in representing workers.
