Opposed
Application-Exception
CHIGUMBA J:
It is trite that only the Labour
Court may deal with labour matters, at first instance.
In
my view, it is now settled that, there is no concurrent jurisdiction
between the Labour Court and this court, in a dispute which involves
a purely labour matter, at first instance. The Labour Court has
exclusive and unique jurisdiction to deal with labour matters, at
first instance.
The
problem that is bedeviling this court is that legal practitioners,
who practice labour law, see fit to bring all manner of labour
matters disguised or masquerading as matters which this court has
jurisdiction over. It is time that legal practitioners stopped this
unethical practice of “enticing”, for want of a better word, or
coaxing the High Court to exercise its inherent jurisdiction, and
inducing it to dispose of purely labour matters which ought to be
dealt with by the Labour Court at first instance. With all due
respect, I urge this court, to resist these insidious attempts to
undermine the powers and jurisdiction of the Labour Court.
Failure
to comply with a collective bargaining agreement is an unfair labour
practice, which must be dealt with in accordance with strictly laid
down procedures when it is resolved. A litigant, who wishes to have
an unfair labour practice of this nature resolved, ought to approach
the Labour Court for relief. This is because Collective Bargaining
Agreements are registered as statutory instruments in order to make
them enforceable by either the employer or an employee who may be
aggrieved by an act or omission of the other.
Do
Collective bargaining agreements regulate employer-employee
relationships, and set out their rights and obligations? Do
Collective bargaining agreements seek to regulate employer- employee
dynamics?
If
so, which court should properly be seized with the resolution of a
dispute, at first instance, between an employer, which collects
monthly pension contributions from its employees, for onward
transmission to a National Employment Council for a certain industry,
between the High Court and the Labour Court?
The
defendant has raised an exception to the plaintiff's claim on the
basis that this court has no jurisdiction to entertain it, because of
the ouster provisions of s 89 (1) (i), as read with s 89 (6) of the
Labour Act [Cap 28; 01] (the Act).
The
defendant raised two other grounds for excepting to the plaintiff's
claim, that the claim has prescribed, and in relation to the rate of
interest claimed, which exceeds the prescribed rate. I will not
consider the merits of these grounds of exception, it being my
considered view that jurisdiction must be founded first, before this
court may give its views on the propriety of any matters brought
before it by a litigant. Once jurisdiction is founded, the merits or
otherwise of other issues which will then be properly before the
court can be ventilated.
The
question for determination in regards to the issue of jurisdiction,
is whether the plaintiff's claim against the defendant, being a
claim for pension contributions payable by defendant (an employer)
for and on behalf of its employees, in terms of SI 45/2013
(Collective Bargaining Agreement Construction Industry Regulations,
provided for in terms of section 79 of the act, is such a claim that
only the Labour Court may determine at first instance. Put
differently, the court must determine whether it has jurisdiction to
entertain the plaintiff's claim, or whether its jurisdiction is
ousted in terms of s 89 of the act.
The
plaintiff issued summons against the defendant on 2 October 2013,
claiming payment of the sum of USD$165 755-06 being general fund and
pensions contributions due from the defendant, to the plaintiff,
calculated from 16 February 2009 to 31 March 2013, interest thereon
at 7.5% per annum calculated from the date of issue of the summons to
the date of payment, and costs of suit. In the declaration to the
summons, the plaintiff identifies itself as an employment council as
defined by the act. It avers that the defendant, by virtue of being
an employer engaged in the construction industry as defined by the
act, and in the Collective Bargaining Agreement (CBA) for the
Construction Industry SI 244/99 as read with SI 45/2013, is obliged
to deduct certain dues and pensions contributions from its employees
and forward these to the plaintiff. The plaintiff averred that the
defendant is obliged to match each employee's contribution, and
itself remit similar sums to the plaintiff. It was averred further,
that, the defendant is obliged to file returns in which it sets out
each employee's identity, grade, pension, and contribution towards
the general funds and sets out the defendant's own contributions
towards those funds. Plaintiff averred further that, during the
period February 2008 to March 2013, the defendant's obligation
towards the general and pension funds amounted to USD$165 755.06
inclusive of compound interest calculated from 31 August 2013. This
figure covers all of the defendant's employees at all its worksites
at Borrowdale Brook, Bindura, Borrowdale racecourse and CBZ
Borrowdale.
The
plaintiff charged the defendant with misrepresenting its employees'
contributions by omitting some employees and understating the number
of weeks worked, on its returns. The plaintiff averred that it
uncovered evidence of the defendant's alleged misrepresentations
following impromptu visits to the sites, and from the correct returns
which were given to the plaintiff by some of the defendant's
employees.
On
1 November 2013, the defendant filed a notice of Appearance to
Defend, and subsequently requested for further particulars, on 5
November 2013. On 6 December 2013, plaintiff furnished further and
better particulars as requested, and filed a notice to plead and
intention to bar on 12 December 2013. On 9 December 2013, the
defendant's legal practitioners addressed a letter to the
plaintiff's legal practitioners, which letter appears at p 31 of
the record. In the letter, the plaintiff's legal practitioner is
advised that, s 82(3)(a) as read with s 8(e) of the Labour Act,
provides that failure to comply with a CBA shall be regarded as an
unfair labour practice, and that, any aggrieved party must place the
matter before a Labour Officer for arbitration in terms of Part XII.
It was pointed out that, in the result, the plaintiff had not
exhausted domestic remedies, and that, and the plaintiff had
approached the wrong court, this matter being in the sole purview, of
the Labour Court. The plaintiff did not afford the defendant the
courtesy of a reply. Accordingly, on 18 December 2013, the defendant
filed the present exception which has now come before me for
consideration. The defendant averred that, this court has no
jurisdiction to entertain the plaintiff's claim, because the
plaintiff's cause of action arises from the Collective Bargaining
Agreement: Construction Industry Regulations which are registered in
terms of s 79 of the Act.
Section
79 of the Act provides that, after negotiation, a CBA shall be
submitted to the Registrar of the Labour Court for registration, and
or approval. The effect of such registration is that the Minister
must then publish it as a Statutory Instrument (in this case SI
45/2013), and thereafter, the terms and conditions of a registered
CBA become effective and binding from the date of publication of the
SI, (see s 80 of the Act).
Statutory
Instrument 45/2013 is the Collective Bargaining Agreement for the
Construction industry, which replaced Statutory Instrument 244/1999,
and was registered in terms of the Labour Act. Part VIII of the CBA
which provides penalties in s 44, expressly stipulates that: “Section
44(1) Attention is drawn to s 82(3) of the Labour Act… which reads-
(3) Any person who fails to comply with the provisions of a
collective bargaining agreement which is binding on him/her shall,
without derogating from any other remedies that may be available
against him/her for its enforcement-
(a)
commit an unfair labour practice for which redress may be sought in
terms of part XII.”
My
reading of s 44 of the CBA is that it entrenches s 82(3) of the
Labour Act as the section that parties to the CBA should look to,
when looking for resolution of any disputes that may arise from the
CBA. The phrase “…without derogating from any other remedies that
may be available against him/her for its enforcement”, clearly
refers to the remedies for enforcement which are provided for in
terms of other penalty provisions of the Labour Act such as reporting
the violation of the CBA as a criminal offence, which if proved, will
result in the levying of a fine or other sanctions provided by the
Labour Act. This phrase cannot in any way be interpreted as authority
for a violation of the CBA to be dealt with or enforced in terms of
other enactments, if the Labour Act does not expressly say so. The
phrase cannot in my view be interpreted as an invitation to litigants
to choose a different forum to resolve a dispute emanating from an
alleged violation of a CBA. The CBA, in section 44, expressly draws
attention to s 82(3) of the Labour Act as the recommended section to
rely on when seeking penalties for violation of the CBA.
Section
8 of the Act identifies what constitutes an unfair labour practice.
The category which is relevant to the matter at hand is identified in
terms of s 8 (e) (i) as follows:
“Unfair
labour practices by employer
An employer or, for the purpose of paragraphs (g) and (h), an
employer or any other person, commits an unfair labour practice if,
by act or omission, he— (a)… (b) … (c)… (d)… (e) fails to
comply with or to implement— (i) a collective bargaining
agreement”;
or
Section 82 of the Act provides for Collective Bargaining Agreements
(CBA). In section 82 (3) (a) the Act provides that:
“82
Binding nature of registered collective bargaining agreements
(1)
… (2) This section shall apply, mutatis mutandis, in respect of any
part of a collective bargaining agreement. (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)… (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”. (my emphasis)
Part
XII provides for the resolution of disputes and unfair labour
practices, and, in s 93 of the Act, provides the powers of labour
officers to whom labour disputes or unfair labour practices are
referred for resolution. s 82(3) (a) provides that failure to comply
with the provisions of a CBA is an unfair labour practice. See
Barnsley v Harambe Holdings1
and DHL v Madzikanda2..
My
reading of s 82(4) of the Act, is that the procedure set out in a CBA
for resolution of disputes is the only procedure that ought to be
used to resolve any disputes which may arise in terms of the CBA.
Section
93 (1) of the Act stipulates that, a labour officer to whom a dispute
or unfair labour practice has been referred, shall attempt to settle
it through conciliation or if agreed by the parties, by reference to
arbitration. If the labour officer fails to resolve the dispute by
conciliation within thirty days, a certificate of no settlement shall
be issued to the parties to the unfair labour practice. The period
for conciliation may be extended by consent. Section 93(5) goes
further to provide the circumstances in which the unfair labour
practice may be referred to arbitration, and whether such referral
ought to be compulsory or voluntary.
The
interpretation which is the most reasonable and probable is that, an
unfair labour practice is subject to the conciliation procedure, and
possibly, by consent of the parties or operation of law, may be
referred to arbitration.
The defendant's exception to
the plaintiff's claim is premised on the averment that, only the
Labour Court may hear labour matters at first instance as provided in
s 89 of the Act as follows:
“89
Functions, powers and jurisdiction of Labour Court
(1)
The Labour Court shall exercise the following functions—
(a)
hearing and determining applications and appeals in terms of this Act
or any other enactment; and (2)…
(3)
…
(4)
…
(5)
…
(6)
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).”
Section 89(1)(a), as read with s 89(6), clearly ousts the
jurisdiction of any other court, except the Labour Court, to hear and
determine applications and appeals in terms of the Labour Act, or any
other enactment. See Telecel Zimbabwe Private Limited v Naquib Omar3
where it was held that s 89 ousts the jurisdiction of this court to
hear labour matters at first instance, and that this court does not
have inherent or concurrent jurisdiction with the Labour Court. Such
jurisdiction has clearly been ousted by s 89 of the Act. I associate
myself fully with the sentiments expressed in that judgment. I am
fortified in my view by a plethora of other decided cases which
support this view. See DHL International Private Limited v Clive
Madzikanda4,
National Railways of Zimbabwe v Railways Artisans Union & Ors 5
where the Supreme Court cleared up the apparent confusion as follows:
“As a general statement, it is correct that the Labour Court has no
jurisdiction to entertain claims that are brought at common law. It
can only determine applications and appeals among others that are
brought in terms of the Act. Where, however a dispute can either
found a cause of action at common law, or in terms of the Act, a case
of apparent concurrent jurisdiction between this court and the Labour
Court appears to arise (my emphasis). I say appears to arise because
the apparent conflict can easily be resolved by paying regard to the
overall intention of the legislature in creating the Labour Court. In
my view, in such a case, the Labour Court's jurisdiction being
special must prevail. It would make a mockery of the clear intention
of the Legislature to create a special court if the jurisdiction of
such a court could be defeated by the mere framing of disputes into
common law cause of action where the act has made specific provisions
for the same. In my view, if the dispute is provided for in the Act,
the Labour Court has exclusive jurisdiction even if the dispute is
also resolvable at common law”. (my emphasis)
A
collective bargaining agreement is negotiated for and registered in
terms of s 79 of the Labour Act. Failure to comply with a CBA is an
unfair labour practice, in terms of s 83 (3) (a) of the Act. An
unfair labour practice must be resolved in terms of s 93 of the act,
by going through a conciliation process before a Labour Officer, and
possibly arbitration. Ergo, failure to comply with a CBA is a labour
matter, which must be dealt with by the Labour Court, at first
instance. The High Court's jurisdiction is expressly outsted in
this matter. It would be an abuse of the High Court's inherent
jurisdiction to entertain a purely labour matter, which matter has
not been heard by the Labour Court at first instance, simply because
the applicant found it more expedient to approach this court, and to
shun the Labour Court.
The
plaintiff wrote a letter to the defendant in which it pointed out the
issue of jurisdiction. The defendant ignored the letter. The law is
now settled. It is clear. There is no lacuna, or grey area.
As
a mark of its disapproval of the defendant's conduct of bringing a
purely labour matter to this court to be heard at first instance, the
court will exercise its discretion and make a punitive order as to
costs.
In
the result, the matter is dismissed with costs on a higher scale of
Legal Practitioner and client.
Muza & Nyapadi,
(excipient) defendant's legal practitioners
Mabulala &
Dembure, (respondent's) plaintiff's legal practitioners
1. HC4648-2011 111
@114( C)
2. 2011 (1) ZLR 201
@204
3. HH 116-11
4. HH 51-2000
5. SC 8/05
