This is an application for confirmation of a provisional order issued by the Honourable Mr Justice Kamocha on the 31st day of October 2013.
The applicant is a registered trade union representing the artisans employed by the first respondent. It has capacity to sue and be sued in its own name.
The first to fourth respondents (National Railways of Zimbabwe, National Association of Enginemen, Railways Association of Yard Operation Staff and Zimbabwe Amalgamated Railway Workers Union) are signatories to the Parterson Job Evaluation System used at the first respondent's place of employment.
On or about 7 July 2004, the applicant and the respondents entered into an agreement setting out how the job evaluation system was to be conducted.
A procedural manual was drafted and signed by the applicant and all the respondents in July 2006.
In terms of clause 2 of the Parterson Job Evaluation System Procedural Manual, the purpose of the manual is to “set down the principles and procedures to be observed in respect of the classification of all Railway jobs in bands A to F using the Parterson Job Evaluation System.”
Clause 6 sets up a Job Classification/Review Committee whose composition is set out in clause 6.1 as:
“…,. 16 members, 8 of whom shall be appointed by the employer and 2 by each of the registered trade unions who are members of the Railways Employment Council.”
The quorum is established in terms of clause 6.1.5 as follows:
“The quorum of this committee shall be at least 4 members from the employer and at least one member from each of the trade unions. In the event of lack of a quorum, the meeting shall stand adjourned to a date and time to be agreed upon.”
The parties conducted their business in terms of the above manual until problems surfaced, and, in a meeting held on 18 September 2012, wherein the applicant and the fourth respondent's representatives indicated, that, unless the Parterson Job Evaluation System was reviewed they would be uncomfortable to remain as members of the Job Classification/Review Committee.
The third respondent withdrew its members on 27 November 2009.
The applicant also did so on 12 January 2010.
Consequently, no meetings of the Committee were conducted since then.
However, on 10 October 2013, the respondents met, without the applicant's knowledge and consent, and a motion was moved that the Committee should convene its meetings, and, if a party is absent, the meeting should remain adjourned for seven (7) days, and, at the agreed date, those members present shall constitute a quorum.
This proposal was the idea of one Gibson Mhlophe: see annexure H…,.
Indeed, notices were sent out by the secretary to the Railway Employment Council, one W. Chitima, and G. Ndlovu, the HR Manager for the first respondent: see annexures I and J…,.
Pursuant to those notices, a meeting was scheduled for the 23rd of October 2013. However, the meeting was postponed to the 30th of October 2013.
The applicant then sought and was granted a provisional order in the following terms:
“Pending the determination of this matter, applicant is granted the following relief:
1. The respondents be and are hereby ordered not to proceed with the meeting of 30 October 2013 to evaluate jobs as it violates the procedural manual.
2. In the event the meeting has already been done, the results of such meeting be declared null and void.”
The terms of the final order sought are:
“That you show cause to this Honourable Court, if any, why a final order should not be made in the following terms:
1. The respondents be ordered to review the Parterson Job Evaluation Committee within 30 days of the order by subjecting it to an external evaluation.”
The applicant's argument is that there must be a review of the Committee's nature and functions in view of the corrupt manner in which it has been discharging its functions.
It was submitted, that, this Committee is a creature of the Manual and is strictly bound by the provisions of the manual in particular clause 6.1.5 thereof.
Further, it was submitted, that, where a quorum should be met in all such meetings, the failure to so comply renders those meetings conducted outside the requirements null and void: see L. Piros & Sons v Piros 1993 (2) ZLR 245 (H) and James North Ltd Can v Matrimson 1989 (1) ZLR 322 (HC).
The applicant also submitted, that, clause 6.1.5 of the Manual is clear and unambiguous in that the quorum of the committee shall be at least four (4) members from the employer and at least one member from each of the trade unions.
Also, it was argued, that, there is no provision in the Manual for the procedure proposed by Mhlophe and adopted by Chitima and Ndlovu.
Finally, it was submitted, that, the procedural manual is not subordinate to the Railway Employment Council constitution and any attempt to refer to it in order to resolve the impasse is a nullity.
The respondents opposed the confirmation of the provisional order on the following grounds:
(a) That, the applicant is barred from filing heads of argument because it did not, within one month of filing an answering affidavit, set the matter down for hearing in compliance with Order 32 Rule 236(4) of the High Court Rules 1971, and, as a result, the respondents have, under case number 272/14, applied for dismissal of this case for want of prosecution in terms of Order 32 Rule 236(4)(b) of this Court's rules.
(b) There is no urgency in that the decision the applicant seeks to be set aside was communicated to it on 10 October 2013 yet it waited until the 29th of October 2013 before approaching the court. Reliance was placed on Kuvarega v Registrar-General and Anor 1998 (1) ZLR 188.
(c) That the applicant has not exhausted domestic remedies provided for in terms of section 74(4) of the Labour Act [Chapter 28:01] before approaching this court.
(d) That the relief sought is incompetent in that the court has no authority to make an agreement for the parties.
(e) That constitutions of voluntary associations should be interpreted in a manner which gives effect to the objects of the association as was held in Mudzumwe & Ors vs MDC & Anor 2012 (1) ZLR 490; Mudzengi & Ors v Hungwe & Anor 2001 (1) ZLR 179; and Garment Workers Union v Vries & Ors 1948 (1) SA 1110…,.
(f) That, the decision the applicant complains of was taken when there was a full quorum and the applicant was simply out-voted.
In my view, the real issue is whether or not the respondents purported amendment of clause 6.1.5 is lawful....,.
The last point, relating to how the decision complained against was made, is relevant to the issue.
However, the respondents submission, that, when it was made, there was a full quorum, is simply incorrect.
The respondents have referred to the meeting of 18 September 2012 as the date when the decision was made.
Quite clearly, this is not the case, in that annexure H, which is the proposal by Mhlophe, was written on 10 October 2013.
It would be illogical for this proposal to have been written on this date if the “decision” had already been made in 2012.
Also annexure I and J confirm that the controversial decision was only made after Mhlophe's not so wise proposal was made.
What is abundantly clear is that the adoption of Mhlophe's proposal, by the respondents, amounted to an unlawful amendment of the Parterson Job Evaluation System Procedural Manual, in particular, clause 6.1.5.
The Manual is a Collective Bargaining Agreement which can only be lawfully amended in terms of section 81 of the Labour Act [Chapter 28:01].
In casu, this was not done.
Accordingly, the provisional order is hereby confirmed.
