The applicants have approached the Court in terms of section 85(1)(a)
of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 (“the
Constitution”), which provides that any person who alleges that any of the
fundamental rights and freedoms enshrined in Chapter IV has been, is being or
is likely to be infringed may approach a Court, seeking appropriate relief,
which a court has a discretion to grant.
The applicants, with the exception of the fifth applicant
who is a Workers Committee Chairperson, are all cross border truck drivers.
They are employed by the respondent, a company, whose business is to transport
goods across borders in the Southern African Development Community (SADC)
region using trucks.
The applicants accuse the respondent of unfair labour
practices. They allege that the respondent forces them to drive for long hours
a day - from 4 a.m. to 2100 hours. They are not allowed to leave vehicles unattended
and complain that as they drive they are tracked by the respondent through
satellite devices. It is their
allegation that they are made to work overtime without pay.
The applicants allege that several of the drivers and Workers'
Committee members who tried to protest the long working hours and lack of
overtime payment were subjected to disciplinary action. Most of them were found
guilty of inciting “unlawful collective job action” and dismissed from
employment. Some of the appellants have pending disciplinary cases on the same
charge.
The applicants accept that the legality of the conduct of
the respondent can be determined in terms of a Collective Bargaining Agreement
existing between the parties. The Collective Bargaining Agreement ('the CBA') published
under S.I. No.67 of 2012 has binding effect as a law of general
application. It governs the working hours, wages and the payment of the
employees in the transport sector. The Collective Bargaining Agreement governs
the rights and obligations of the parties.
The applicants approached the Court alleging that in
conducting itself in the manner alleged the respondent has infringed their
fundamental right to fair and safe labour practices enshrined in section 65(1)
of the Constitution which provides:
“Every person has the right to fair and safe labour
practices and standards and to be paid a fair and reasonable wage.”
The relief the applicants seek is an order to the effect
that the long working hours they are required to endure, and the alleged
refusal by the respondent to pay for overtime, be declared to be unfair labour
practices in violation of section 65(1) of the Constitution. They also seek an
order interdicting the respondent from compelling them to work overtime. At the
same time, they seek an order directing the respondent to pay them for the
overtime worked. The applicants also seek an order that all employees dismissed
by the respondent, after being found guilty of misconduct relating to demands
of payment for overtime worked, be reinstated without loss of salary and
benefits. Finally, they seek an order declaring that the disciplinary action
taken by the respondent against the Workers Committee members, for raising some
of the applicants' grievances, be declared a violation of the right to organize
enshrined in section 65(5) of the Constitution.
The respondent denied the allegations levelled against it.
It averred that the truck drivers were paid for the
overtime they worked in terms of the Collective Bargaining Agreement. It said
that the long hours of work were a result of the nature of the job the drivers
had voluntarily chosen to take. The reason why the drivers were made to drive
from 4a.m. to 2100 hours was to avoid night driving and the accidents going
with it.
Counsel for the respondent argued that the grounds on which
the applicants have approached the Court do not raise a constitutional matter
for the Court to exercise its jurisdiction as conferred by section 167(1)(b) of
the Constitution.
Section 167(1)(b) of the Constitution provides that the
Constitutional Court decides only constitutional matters and issues connected
with decisions on constitutional matters in particular references and
applications under section 131(8)(b) and paraaragraph 9(2) of the Fifth
Schedule. Section 167(1)(C) provides that the Constitutional Court makes the
final decision whether a matter is a constitutional matter or whether an issue
is connected with a decision on a constitutional matter.
Section 332 of the Constitution defines 'constitutional
matter' to mean “a matter in which there is an issue involving the
interpretation, protection or enforcement of the Constitution.”
Have the applicants brought to the Court for determination
a matter in which there is an issue involving the interpretation, protection or
enforcement of the Constitution?
The fact that the applicants allege that the respondent has,
by the conduct it is alleged to have committed, infringed their fundamental
right to fair and safe labour practices enshrined in section 65(1) of the
Constitution does not mean that they have raised a constitutional matter. It is
for the Court to decide whether the determination of the legality of the
conduct of the respondent, if proved, would require the interpretation and
application of section 65(1) of the Constitution.
Counsel for the respondent correctly pointed out that section
65(1) of the Constitution sets out a minimum standard to the effect that every
person in a labour relationship is entitled to fair and safe labour
practices. The Labour Act governs all
labour matters.
Counsel for the applicants referred to section 6(1) of the
Labour Act which reiterates and expands on the standard prescribed by section
65(1) of the Constitution. The section provides, in relevant part:
“6. Protection of
employees' right to fair labour standards
(1) No employer shall –
(a) Pay any employee a wage which is lower than that to
fair labour specified for such employee by law or by agreement made under this
Act; or
(b) Require any employee to work more than the maximum
hours permitted by law or by agreement made under this Act for such employee;
or
(c) Fail to provide such conditions of employment as are
specified by law or as may be specified by agreement made under this Act; or
(d) Require any employee to work under any conditions or
situations which are below those prescribed by law or by the conventional
practice of the occupation for the protection of such employee's health or
safety.”
Section 8 of the Labour Act defines unfair labour practices
by an employer.
One of the acts specified under section 8(e)(i) of the
Labour Act, as unfair labour practice, is failure by an employer to comply with
or implement a Collective Bargaining Agreement. Section 8(e)(i) of the Labour Act
presupposes that there is a Collective Bargaining Agreement made under the Act
governing the rights and obligations of the parties who are in a labour
relationship.
The standard of what is unfair labour practice prescribed
by the Labour Act was not in issue. In other words, the question is not whether,
in defining unfair labour practice, the Labour Act violated the fundamental
right to fair labour practice enshrined in section 65(1) of the Constitution.
The Labour Act recognized that the parties in a labour
relationship have a right to fair labour practices. It recognized that there
were labour practices that would constitute unfair labour practices in
violation of the fundamental right. It went on to define those labour practices
which, if proved, would amount to unfair labour practices in violation of the right.
In defining unfair labour practices, in section 8 the Labour Act, protects the
right to fair labour practices enshrined in section 65(1) of the Constitution.
The Labour Act sets out the remedies, both in the sense of
what is to be done to seek relief and the appropriate relief to be granted, in
cases of disputes as to whether the conduct of an employer constitutes unfair
labour practice or not. There is no allegation in this case that the remedies
prescribed under the Labour Act do not meet the standard of effective remedies
the Constitution requires to be prescribed for the resolution of disputes of
right.
The fact is that the applicants invoked the wrong remedy
for the protection of their rights.
The applicants are challenging the legality of the conduct
of the respondent. It is not in dispute that such conduct is governed by the
Collective Bargaining Agreement. It is not in dispute that the Collective
Bargaining Agreement, together with the Labour Act, provides for remedies to
address a situation where an employer is allegedly practising unfair labour
practices.
The applicants have not alleged that these pieces of
legislation are unconstitutional.
The question whether the alleged conduct of an employer in
a labour relationship governed by a Collective Bargaining Agreement constitutes
unfair labour practice is not a constitutional matter. Its determination does
not involve the interpretation and application of section 65(1) of the
Constitution. It involves the interpretation and application of section 8 of
the Labour Act as read with the relevant provisions of the Collective
Bargaining Agreement. In other words, all the questions raised for
determination are not constitutional matters - they are statutory matters….,.
This case is governed by the application of the principle
of subsidiarity.
In Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC) the principle is set
out as follows:
“Where legislation has been enacted to give effect to a
right, a litigant should rely on that legislation in order to give effect to
the right or alternatively challenge the legislation as being inconsistent with
the Constitution.”
The Constitutional Court of South Africa had earlier on in
South African National Defence Union v Minister of Defence and Others 2007 ZACC
10, said:
“Where legislation is enacted to give effect to a
constitutional right, a litigant may not bypass that legislation and rely
directly on the Constitution without challenging that legislation as falling
short of the constitutional standard.”
Essentially, a litigant cannot challenge the conduct of a
decision maker as breaching a fundamental right in the Constitution without
first utilizing the remedies offered by the legislation that gives effect to
that right. Where there is legislation giving life to a right in the
Constitution, a litigant cannot found a cause of action directly on the
Constitution without attacking that statute as unconstitutional. See MEC for
Education, Kwa-Zulu Natal and Others v Pillay 2008 (1) SA 474.
JOHN GROGAN writing on 'Labour Relations' in CURRIE and DE WAAL,
'The Bill of Rights Handbook' (2013), JUTA, discussing the effect of section
23(1) of the 'The Constitution of the Republic of South Africa, 1996'
enshrining the right everyone has to fair labour practices states…,:
“Section 23 of the 1996 Constitution sets out these rights
in skeletal outline, but is buttressed by a number of national statutes,
designed to give effect to those rights. As the law now stands, if an
employee's rights can be enforced under one or other of these statutes, that
employee cannot rely directly on the Constitution.”
See Fredericks v MEC for Education & Training Eastern
Cape (2002) 23 LLJ 81 (CC).
The principle of subsidiarity underlines the fact that
there are many disputes of right or interest which do not give rise to
constitutional matters and directs as to the route to be taken for the
protection of the rights allegedly violated.
In this case, a Collective Bargaining Agreement, made
within the provisions of the Labour Act, exists; providing for wages, overtime
payment and for dispute resolution. In essence, it regulates fair labour
practices. The applicants have ignored this legislation. They have chosen to
rely directly on the provisions of section 65(1) of the Constitution in
bringing the application to the Court.
The Court cannot condone such an approach.
Once legislation to fulfil a constitutional right exists,
as was made clear in My Vote Counts NPC v Speaker of the National Assembly and
Others 2016 (1) SA 132 (CC), the Constitution's embodiment of that right is no
longer the prime mechanism for its enforcement. The legislation is primary.
The applicants cannot rely directly on section 65(1) of the
Constitution as they can claim relief under the Labour Act. It was not the
intention of the makers of the Constitution that employees should be able to
approach the Constitutional Court to complain that they have not been paid for
overtime worked or that they are made to work longer hours than are prescribed
for the particular industry.
The situation would have been different if the applicants
were attacking the constitutional validity of the provision of the Labour Act
under which the Collective Bargaining Agreement was made. As was put in My Vote
Counts NPC v Speaker of the National Assembly and Others 2016 (1) SA 132 (CC):
“Where a litigant does attack the legislation, as here,
saying that it falls short of a standard embodied in the Constitution itself,
then they are free to invoke the Constitution directly. That, indeed, is the
essence of constitutionalism: it allows all legislation to be subjected to
constitutional scrutiny. So a litigant may invoke the Constitution to gauge the
extent to which legislation meets a constitutional obligation – but the
litigant may not evade addressing that legislation.”
The principle of subsidiarity is based on the concept of
one-system-of-law.
Whilst the Constitution is the supreme law of the land, it
is not separate from the rest of the laws. The principles of constitutional
consistency and validity underscore the fact that the Constitution sets the
standard with which every other law authorized by it must conform. The
Constitution lays out basic rights and it is up to legislation to give effect
to them. This is the nature of the symbiotic relationship between the
Constitution and legislation. The legal system is one - wholesome and
indivisible. As was put in Gcaba v Minister for Safety and Security and Others
2010 (1) SA 238 (CC);
“The constitutional and legal order is one coherent system
for the protection of rights and the resolution of disputes.”
Using the Constitution directly to litigate would have been
permissible if there was no law of general application against which to measure
the conduct of the employer, thus leaving the Constitution as the only
available yardstick of measurement. In this case, the law of general
application proscribing the conduct of the employer, does exist. If the
employer engages in conduct that falls outside the scope of that law, the
aggrieved party must use that very law to protect its rights. That is the
essence of the rule of law. Ignoring these principles would undermine the laws
that support the constitutional order and the rule of law.
The application is devoid of merit. It is
dismissed with no order as to costs.
