This
is an appeal against the whole judgment of the High Court handed down
in Case No.HC8150/13 on 14 November 2014.
This
matter was first argued on 5 June 2015 in relation to the first
ground of appeal, to wit, the procedural point that the court a
quo
had erred in entertaining a challenge to its jurisdiction by way of
an exception as opposed to a special plea. Argument was confined to
this procedural point on the basis that a decision on that point in
favour of the appellant would dispose of the entire appeal. On
29 October 2015, the court rendered its judgment, SC59-15
(No.SC616/15), dismissing the first ground of appeal and directing
the Registrar to set the matter down for hearing of argument on the
remaining grounds of appeal.
Background
The
appellant is a national employment council in the construction
industry while the respondent is an employer of employees engaged in
the same industry. The appellant issued summons against the
respondent claiming the sum of US$165,755= for general fund and
pensions contributions due from 16 February 2009 to 31 March 2013 in
terms of the Collective Bargaining Agreement for the Construction
Industry, S.I. 244 of 1999 (“the 1999 CBA”). (This instrument has
since been repealed and replaced by S.I. 45 of 2013 (“the 2013
CBA”). The appellant also claimed interest on the principal amount,
at the rate of 7.5 per cent per annum, and costs of suit.
The
respondent duly filed its notice of appearance to defend.
Following
the further exchange of pleadings between the parties, but before
filing its plea, the respondent filed an exception to the appellant's
claim. The principal objection raised was that the High Court lacked
jurisdiction to entertain the claim as it was a labour matter. The
respondent also averred that part of the claim had prescribed by
effluxion of time and that the rate of interest claimed exceeded the
prescribed rate of interest.
The
court a
quo
found that the appellant's claim was premised on the provisions of
the 1999 CBA which had been negotiated and registered under section
79 of the Labour Act [Chapter
28:01].
Consequently, the alleged failure to comply with the Collective
Bargaining Agreement was a labour matter to be dealt with by the
Labour Court at first instance in terms of section 89(1)(a) of the
Labour Act [Chapter
28:01];
the jurisdiction of the High Court having been specifically ousted by
section 89(6) of the Act. The court further held that it was an abuse
of court process for the appellant to approach the High Court after
the jurisdictional issue was raised by the respondent. The
appellant's claim was accordingly dismissed with costs on a legal
practitioner and client scale.
The
grounds of appeal canvassed and argued by counsel at the second
hearing encompass the judgment of the court a
quo
pertaining to its jurisdictional competence, including the merits of
that judgment under the new Constitutional dispensation. Accordingly,
the judgment herein will address the following questions:
(i)
Whether the dispute between the parties was one within the exclusive
jurisdiction of the Labour Court and therefore outside the
jurisdictional competence of the High Court.
(ii)
Whether the exclusive jurisdiction of the Labour Court, under section
89 of the Labour Act [Chapter
28:01]
has been superseded by section 171 of the new Constitution.
Nature
of Dispute between the Parties
Section
89(1)(a) of the Labour Act [Chapter
28:01]
sets out the primary function of the Labour Court, viz.
“hearing and determining applications and appeals in terms of this
Act or any other enactment”. Section 89(6) of the Labour Act
[Chapter
28:01],
which was relied upon by the court a
quo
to disavow its competence to adjudicate the appellant's claim,
provides that:
“No
court, other than the Labour Court, shall have jurisdiction in the
first instance to hear and determine any application, appeal or
matter referred to in subsection (1).”
It
is trite that the High Court is a superior court of inherent
jurisdiction and that there is a presumption against the ouster of
its jurisdiction unless this is clearly intended by the legislature.
Thus, any statutory or contractual provision that purports to oust
its jurisdiction must be restrictively interpreted. With particular
reference to section 89(6) of the Labour Act, it was emphasised by
ZIYAMBI JA in Nyahora
v CFI Holdings (Pvt) Ltd
SC81-14…, that the right to approach the High Court for relief in
matters other than those specifically set out in section 89(1)(a) of
the Labour Act [Chapter
28:01]
has not been abrogated.
Counsel
for the respondent submits that the Labour Act must be broadly
construed in tandem with section 172(2) of the Constitution, to
confer exclusive jurisdiction upon the Labour Court over all matters
concerning labour and employment generally. The intention of creating
a specialised court would be defeated if its jurisdiction over unfair
labour practices were to be shared with the High Court. Thus, the
purview of the Act should not be limited purely to disputes between
employers and employees. Counsel for the respondent relies upon
various provisions of the Labour Act to buttress his submissions, in
particular, sections 8 and 82, as read with section 44 of the 2013
Collective Bargaining Agreement.
Section
8 of the Labour Act [Chapter
28:01]
deals with unfair labour practices. In terms of section 8(e)(i), “an
employer..., commits an unfair labour practice if, by act or
omission, he..., fails to comply with or to implement..., a
collective bargaining agreement”. Section 82 stipulates the binding
nature of registered collective bargaining agreements. The
enforcement of such agreements is provided for in subsection (3) and
(4) as follows:
“(3)
Any person who fails to comply with a collective bargaining agreement
which is binding upon him shall, without derogation from any other
remedies that may be available against him for its enforcement -
(a)
Commit an unfair labour practice for which redress may be sought in
terms of Part XII; and
(b)
Be guilty of an offence and liable to a fine not exceeding level
seven or to imprisonment for a period not exceeding two years or to
both such fine and such imprisonment.
(4)
If a registered collective bargaining agreement provides a procedure
for the conciliation and arbitration of any category of dispute, that
procedure is the exclusive procedure for the determination of
disputes within that category.”
Section
44 of the 2013 Collective Bargaining Agreement is titled “Penalties.”
It draws attention to section 82(3) of the Labour Act by quoting and
reproducing that provision in its entirety. Section 44 of the 1999
Collective Bargaining Agreement (which is the relevant instrument for
the purposes of the appellant's cause of action in
casu)
is virtually identical in its terms, save for the citation of the Act
and the prescription of the applicable penalty.
The
argument advanced by counsel for the respondent is that neither
Collective Bargaining Agreement provides
a procedure for the conciliation and arbitration of any category of
dispute. However, section 44 of both Collective Bargaining Agreements
refers to Part XII of the Labour Act which provides for the
resolution of disputes and unfair labour practices. That being the
case, it is Part XII of the Act that becomes, by virtue of section
82(4) of the Labour Act, the exclusive procedure for the
determination of all disputes in every category. The procedure to be
followed is by way of reference of the dispute in question to a
Labour Officer, followed by conciliation and arbitration, and,
eventually, by way of an appeal to the Labour Court under its
exclusive jurisdiction in terms of section 89(6) of the Labour Act.
In
my view, this argument is not only tendentious but entirely
fallacious for the following reasons;
(i)
First and foremost, section 44 of the 1999 (or 2013) Collective
Bargaining Agreement (CBA) does not provide any procedure for the
conciliation and arbitration of any specific category of dispute. It
simply draws attention to section 82(3) of the Labour Act for the
purpose of highlighting the penalty applicable for any failure to
comply with a binding collective bargaining agreement. In other
words, section 82(4) of the Labour Act is totally irrelevant in the
present context.
(ii)
Secondly, and equally importantly, section 82(3) of the Labour Act is
very clear as to the extent of its scope of coverage. It applies
“without
derogation from any other remedies
that may be available” for the enforcement of any collective
bargaining agreement. Additionally, it relates to the commission of
an unfair labour practice “for which redress may
be sought
in terms of Part XII” of the Act. It follows that the provision is
not only permissive but also expressly acknowledges the
non-exclusivity of Part XII of the Act as a procedural mechanism for
the enforcement of collective bargaining agreements.
In
my view, the pivotal provision for consideration in this matter is
section 3(1) of the Labour Act [Chapter
28:01]
which governs the application of the Labour Act as follows:
“This
Act shall apply to all employers and employees except those whose
conditions of employment are otherwise provided for in the
Constitution.”
The
significance of this provision is relatively clear.
The
primary purpose of the Act is to regulate employment relationships
between employers and employees, and the scope of application of its
provisions should, in principle, be restricted accordingly. By the
same token, section 89 of the Labour Act [Chapter
28:01],
which prescribes the functions, powers and jurisdiction of the Labour
Court, must also be considered in that context. Accordingly, the
exclusive jurisdiction conferred upon that court, in terms of section
89(6) of the Act, to hear and determine any application, appeal or
matter in the first instance, must be similarly confined to matters
pertaining to the relationship between employers and employees and/or
their respective representatives, i.e.
trade unions and employers organisations.
In
the instant case, it must be accepted that the respondent's duty to
pay national employment council dues is a statutory duty that arises
from its employment relationship with its employees. Be that as it
may, it is indisputably clear that a national employment council is
neither an employer nor an employee in the context of the Labour Act.
It is an entity constituted by employers and employees in the
construction industry. It is equally clear that there is no
employment relationship of any kind between the appellant and the
respondent or between the appellant and the respondent's employees.
The contractual nexus between the appellant and the respondent arose
solely and exclusively from the rights and obligations embodied in
the 1999 Collective
Bargaining Agreement (CBA) which
was the operative instrument at the relevant time; and it is that CBA
which, in terms of section 11(2), entitled the appellant to receive
from the respondent the dues prescribed to meet its expenses and
which founded its cause of action in the High Court.
Turning
to the other relevant provisions of the Labour Act, sections 8 and 9
proscribe various unfair labour practices that may be committed by
employers, trade unions or workers committees, without any reference
whatsoever to national employment councils. By the same token,
section 82 of the Act must be construed as being primarily, though
not exclusively, applicable to employers and employees, insofar as it
relates to the commission of unfair labour practices and remedies for
their redress under Part XII of the Act. This is also reflected in
section 89(2) of the Act which enumerates the powers of the Labour
Court in respect of any appeal or application before it. As is
evident from that provision, none of the remedies prescribed therein
specifically contemplate the satisfaction of a claim for dues by a
national employment council.
(iii)
Finally, I have already alluded to section 82(3) of the Labour Act
which categorically puts the answer to the question at hand beyond
any possible controversy.
This
provision allows for remedial action under the procedures laid out in
the Act itself to address non-compliance with any binding collective
bargaining agreement. In addition, however, it also explicitly
stipulates that such procedures are to apply without
derogation from any other remedies that may be available against a
non-compliant employer for the enforcement of any such agreement.
In
my view, this clearly recognises the possibility and propriety of
recourse to the High Court, by virtue of its inherent jurisdiction,
to enforce the payment of dues payable to a national employment
council in terms of a Collective
Bargaining
Agreement.
It
follows that the dispute in
casu
was not one within the exclusive jurisdiction of the Labour Court and
therefore outside the jurisdictional remit of the High Court.
Jurisdictional
Impact of New Constitution
In
light of the foregoing conclusion, and with deference to the twin
doctrines of Constitutional ripeness and avoidance, I deem it
unnecessary and somewhat academic to delve into the broader question
as to the possible supersession of the exclusive jurisdiction of the
Labour Court with the advent of the current Constitution.
Although
this Constitutional dimension is obviously important, it seems
preferable to leave it for determination at a more opportune time and
by a larger bench - possibly the Constitutional Court itself.
Disposition
It
follows from all of the foregoing that the appeal must succeed on the
first jurisdictional ground. It is accordingly ordered that:
1.
Subject to the decision of this Court in Judgment No.SC59-15, the
appeal be and is hereby allowed with costs.
2.
The judgment of the court a
quo
be and is hereby set aside and substituted with the following:
“(i)
The defendant's exception is dismissed with costs.
(ii)
The defendant shall plead to the plaintiff's claim within 10 days
of the date of this order.”
