MAKONI
J:
The
applicant approached this court seeking the following relief:
“IT
IS DECLARED AS FOLLOWS:
1.
The application to the Applicant of the provisions of a collective
bargaining agreement born of a process to which the Applicant was not
party is a violation of the Applicant's constitutional right to
freedom of association.
2.
The imposition upon the Applicant of the requirement to register with
the Second Respondent is a violation of the Applicant's
constitutional right to freedom of association.
3.
The mandatory payment of dues by the Applicant to the Second
Respondent is a compulsory acquisition of the Applicant's property
in violation of the Applicant's constitutional right to protection
from the compulsory acquisition of property without compensation.
4.
Section 82(1)(a) of the Labour Act [Chapter 28:01] and sections 2(a)
and 36 of the Collective Bargaining Agreement for the Communications
and Allied Services Industry (S.I.1 of 2012) are in violation of
section 21 of the Constitution to the extent that they provides for
the infringements declared in paragraphs A1 and A2 of this order.
5.
Sections 33 of the Collective Bargaining Agreement for the
Communications and Allied Services Industry (S.I.1 of 2012) is in
violation of section 16 of the Constitution by reason of the
infringement declared in paragraph A3 of this order.
IT
IS ORDERED THAT:
1.
Sections 2(a), 33 and 36 of the Collective Bargaining Agreement for
the Communications and Allied Services Industry (S.I.1 of 2012) are
struck down.
2.
Section 82(1)(a) of the Labour Act [Chapter 28:01] is struck down to
the extent of deleting the words “and all employers, contractors
and their respective employees in the undertaking or industry to
which the agreement relates.”
The
background to the matter is that the applicant is in the business of
providing cellular communications. The second respondent is a council
established in terms of section 56 of the Labour Act [Chapter…]
(“the Act”) for the communications services sector.
Sometime
in 2010 the second respondent, after having followed the due process
provided for in the Act, varied its scope to include, inter
alia,
cellular communications.
In
a letter dated 9 January 2012 the second respondent advised the
applicant that a Collective Bargaining Agreement for the
Communications and Allied Services Industry (the (CBA) had been
published on 6 January 2012, in S.I.11 of 2012. It further invited
the applicant to register with the second respondent and pay the dues
as stipulated in the CBA.
The
applicant objected and the second respondent threatened to have the
applicant arrested. The applicant then instituted the present
proceedings.
The
applicant avers that despite being the biggest employer in the
communications industry, it was not aware of and did not participate
in the creation of either the second respondent or the CBA. It has no
wish to be a member of second respondent nor does it wish to pay dues
to it. It has notified the second respondent which has sought to
compel the applicant to submit to membership and remit dues in terms
of the provisions of the CBA and the Act.
It
further avers that section 82(1)(a) of the Act makes CBA's apply to
entire industries without regard to whether the participants have
adopted the instrument. It is not a member of the employers
association that is party to the CBA and is not aware whether any of
its employees belong to a union party. Section 82(1)(a) therefore
violates its right to freedom of association and is therefore
inconsistent with section 21 of the Constitution.
Sections
2(a) and (b) of the CBA are unconstitutional for the same reasons.
The
applicant further avers that section 33 and 36 of the CBA are
unconstitutional. Section 33 effects a compulsory acquisition of the
applicant's funds by requiring the applicant to pay dues to second
respondent. This violates section 16 of the Constitution. Section 36
compels the applicant to join the second respondent thereby violating
the applicant's rights under section 21 of the Constitution. The
second respondent went to the extent of violating the applicant's
rights by making a report to the Police and persuading the Police to
arrest officers of the applicant.
In
opposition the second respondent initially raised two points in
limine
namely:
(1)
Whether this court has jurisdiction to entertain the present matter.
(2)
Whether the applicant is approaching the court with dirty hands.
On
the merits the application is opposed on the basis that the applicant
is bound by the
CBA
as it is registered with the respondent in terms of the law. The CBA
is registered to cover the entire communications industry. The
applicant is bound by the CBA as it is an employer in the
Communication and Allied Services Industry. The publication of the
CBA as S.I. 1 of 2012 was constructive notice to the applicant about
its coming into being.
At
the hearing of the matter, the second respondent abandoned the issue
of the doctrine dirty hands. It will not be necessary to make a
determination on it.
The
second respondent approached the issue of lack of jurisdiction of
this court from two angles, viz:
(i)
that this court has no jurisdiction to declare legislation
unconstitutional.
(ii)
that this court has no jurisdiction, at first instance, to entertain
the application as the matter emanates from the provisions of the
Labour Act.
I
will deal with the points in seriatim.
Lack
of jurisdiction to declare legislation unconstitutional
Mr
Mucheche
submitted that the issue for determination by this court is captured
in
paragraph
5 of the applicant's founding affidavit, viz:
He
contended that this court has no jurisdiction, at first instance, to
determine a constitutional application. Under the then current
Constitution, that jurisdiction is the preserve of the Supreme Court
sitting as a Constitutional Court. The Supreme Court is approached
either by way of referral in terms of section 24(2) or a direct
application in terms of section 24(1).
He
further contended that although the application is for a declaratur
it in fact is a disguised Constitutional application.
He
submitted that the court should look at the grounds on which the
application is based rather than the order sought. He concluded by
submitting that the relief sought by the applicant can only be
obtained in the Supreme Court. He cited Narasha
v Old
Mutual Life Assurance Co Ltd
2000 (2) ZLR 197 H.
Mr
Ochieng
submitted that in terms of section 13 of the High Court Act [Chapter
7:06]
this court has jurisdiction to entertain the matter. The Supreme
Court will then confirm the order of the High Court.
In
my view, it is trite, that this court has jurisdiction in
Constitutional matters. This court is entitled to rule on whether
breaches of the Declaration of Rights or other violations have
occurred. For the benefit of the second respondent, and like other
minded litigants, I will restate the law on this point in the hope
that this point will not detain courts in the future.
Section
81 of the Constitution provides:
“(1)
There shall be a High Court which shall be a Superior Court of record
and shall have jurisdiction and powers as may be conferred upon it by
or in terms of the Constitution or any Act of Parliament.”
Section
13 of the High Court Act [Chapter
7:06]
provides:
“Subject
to this Act and any other law, the High Court shall have full
original civil jurisdiction over all persons and over all matters
within Zimbabwe”.
Civil
matters are defined as any case or matter which is not a criminal
case or matter. Clearly this includes Constitutional matters.
This
position was re-enforced in Capital
Radio (Pvt) Ltd
v Broadcasting
Authority of Zimbabwe & Ors 2003
(2) ZLR 236 (S) at 243 C-D. Chidyausiku CJ spoke of a litigant's
right to institute a Constitutional application in the High Court
when he stated:
“The
provisions of section 24 do not, in any way, circumscribe the locus
standi
of an applicant in the High Court. In the High Court the common law
test, namely, having an interest in the matter under adjudication, is
sufficient to establish locus
standi.
In a Constitutional application in the High Court all that a litigant
is required to show to establish locus
standi
is a substantial interest in a matter.”
In
any event there are a plethora of cases in our jurisdiction where the
High Court has dealt with Constitutional matters; see Zimbabwe
Banking & Allied Workers Union & Anor v
Beverley
Building Society & Ors
2007 (2) ZLR 117 H; Chituku
v
Minister
of Home Affairs and Ors HH
6/04; Banana
v
Attorney
General 1998
(1) ZLR 309 (S).
See
also Greig
Linnington Constitutional Law of Zimbabwe
(2001) p 18-20).
Labour
Dispute
Mr
Mucheche
submitted that although the applicant is seeking for a declaratur,
the court must look at the nature of the dispute and see whether the
legislature has not provided relief in another forum. The issue of
CBAs fall under the domain of Labour Court. The Labour Act provides
for adequate remedies to address peculiar circumstances of an
employer or employee such as:
“(1)
Section 81 of the Act provides for an appeal to the Labour Court.”
He
further submitted that in terms section 89(6) of the Act no other
court in Zimbabwe is competent to deal with labour matters other than
the Labour Court. The applicant is taking issue with provisions that
regulate the administration of CBAs. The provisions are within the
ambit and shape of the Labour Act and the forum of first instance is
the Labour Court and not any other court.
Mr
Ochieng
contended that the dispute between the parties relate to violations
of the applicants constitutional rights and the Labour Court is not
empowered to grant such relief. He further contended that the Labour
Court has no power to issue declarators.
Paragraph
5 of the applicant's founding affidavit is very clear on the nature
of the application before me. The application seeks to challenge the
constitutionality of section 82(1)(a) of the Act and section 2(a), 33
and 36 of S.I.1/12.
It
is a dispute over the violations of applicant's constitutional
rights and is not the sort of dispute that is reserved for the Labour
Court by section 89(6) of the Act. The Labour Court is a creature of
statute and is empowered only to grant the forms of relief that are
specified in the relevant statute. See Gomba
v
Associated
Mine Workers Union
HH118/05.
There
is nothing in the enactment that empowers the Labour Court to
determine disputes as to violations of the Constitution and strike
down legislation. In any event it is settled law that the Labour
Court has no power to issue declarators. See Mushoriwa
v
Zimbabwe
Banking Corporation Ltd 2008
(1) ZLR 125 H at 129 A - C.
It
is clear from the above that from whichever angle you look at this
issue, this court has jurisdiction to determine the dispute before
it.
Violation
of section 21(1) of the Constitution
Mr
Ochieng
contended
that the nub of the issue is that by compelling the applicant to
register with the second respondent the CBA forces the applicant into
a position where it is a member of the second respondent and deprives
the applicant of its property. The applicant is being compelled to
associate with the second respondent. Such conduct is a negation of
the freedom that section 21 of Constitution serves to uphold.
In
addition to the forced association, section 33 of the CBA, reinforced
by section 2(a) of the CBA and section 82(1)(a) of the Act, compel
the applicant to pay levies to the second respondent against its
will.
Mr
Ochieng
contended that voluntary participation in the process and conscious
submission to agreed terms are essential elements of collective
bargaining. This is confirmed by the fact that participation in
collective bargaining is not made mandatory by section 74(2) of the
Act. It uses the permissive 'may' in relation to collective
bargaining.
Mr
Ochieng
further
contended that levies being demanded by the second respondent do not
constitute a rate or tax that is reasonably justifiable in a
democratic society and therefore not a permissible derogation from
section 16(1) of the Constitution.
Mr
Mucheche
submitted that the second respondent is a legal body set up in terms
of section 56 of the Act. It has authority to regulate conditions of
employment in the communications industry. The fact that the
applicant professes ignorance of its existence does not take away its
legal authority.
He
further contended that CBAs created minimum conditions of employment
in an industry and are justified in democratic society. They
harmonise the interests of employers and employees. The applicant is
bound by operation of the law as it is operating in that industry and
cannot seek to escape the minimum conditions of that industry.
The
applicant did not take advantage of the domestic remedies provided
for in the Act if it had any issues with the coming into being of the
CBA that binds it.
The
ILO Right To Organise and Collective Bargaining Convention (No. 98)
1949 describes collective bargaining as:
“Voluntary
negotiation between employees or employer's organisations and
workers organisations, with a view to the regulation of terms and
conditions of employment by collective agreement.”
Some
of the essential features of collective bargaining are viz:
“(i)
It is a method used by trade unions to improve the terms and
conditions of employment of their members.
(ii)
It seeks to restore the unequal bargaining position between employer
and employee.”
An
agreement recorded as the outcome of a collective bargaining is
binding on the
parties
to the agreement. Collective bargaining legislation imposes
obligations on the parties to adhere to the terms of the agreement.
See Collective Bargaining by Dr I. Chanetsa in Pe
COP Journal of Social and Management Sciences
p 6.
In
our jurisdiction, CBAs are entered into in terms of section 74(2)
which reads:
“(2)
Subject to this Act and the competence and authority of the parties
trade unions and employers or employees organisations may negotiate
collective bargaining agreements as to any conditions of employment
which are of mutual interest to the parties thereto….”.
Section
79 of the Act provides for the registration of the CBA by the
Registrar of Labour.
In
terms of section 80(1) the registration of the CBA, the Minister of
Labour shall publish agreement as a statutory instrument.
In
terms of section 80(2):
“the
terms and conditions of the collective bargaining agreement shall
become effective and binding –
(a)
from the date of publication of the agreement in terms of subsection
(1); or
(b)
from such other date as may be specified in the agreement”.
The
impugned section 82(1)(a) provides:
“82
Binding nature of registered collective bargaining agreements
(1)
where a collective bargaining agreement has been registered it shall
–
(a)
with effect from the date of its publication in terms of section
eighty-five,
or such other date as may be specified in the agreement, be binding
on the parties to the agreement, including all the members of such
parties and all employers, contractors and their respective employees
in the undertaking or industry to which the agreement relates”.
Section
2(a) of the CBA provides:
“This
collective bargaining agreement shall apply to –
(a)
all employers in the communication and allied services industry i.e
telecommunications, postal services, cellular communications, courier
services, phone shops and public financial series within the
communications sector.
(b)
All non-managerial employees (including contract or fixed period
employees in the communications and allied services, in the area of
Zimbabwe”.
What
comes out from the definition of collective bargaining in the
convention and from section 74(2) of the Act is the voluntary element
in collective bargaining. Voluntary participation in the process and
conscious submission to the agreed terms are essential elements.
Section
82 brings in the element of the binding nature of registered CBAs. It
provides that a registered CBA shall be binding on the parties to the
agreement including all the members of such parties, and all
employers, contractors and their employees in the undertaking or
industry to which the agreement relate.
As
the applicants contend, who are the parties to the CBA.
The
answer is to be found in section 2(a) of the CBA which states that it
applies to all employers in the communications and allied services
industry. In other words even if the applicant had no part whether as
principal or agent, in the agreement it is bound by the CBA by virtue
of it being an employer in the communications industry.
The
applicant complains that it is being compelled to register with the
second respondent i.e. associate with the second respondent against
its will.
It
is not in dispute that the applicant is being compelled, against its
will, to be bound by the provisions of the CBA and as a consequence
register with the second respondent and pay dues due to the second
respondent.
The
applicant contends that section 21(3) recognises that the formation
and activities of employers associations are an exercise of the
freedom of association. The exercise is especially insulated from
derogations that are permissible in the case of other associations of
persons.
Mr
Mucheche
on the other hand contends that section 27(3) provides an exception
or derogation to section 21(1) and that the registration of a CBA
does not run foul to section 21(1) of the Constitution.
Section
21 provides:
“(1)
Except with his own consent or by way of parental discipline, no
person shall be hindered in his freedom of assembly and association,
that is to say, his right to assemble freely and associate with other
persons and in particular to form or belong to political parties or
trade unions or other associations for the protection of his
interests.
(2)
The freedom referred to in subsection (1) shall include the right not
to be compelled to belong to an association.
(3)
Nothing contained in or done under the authority of any law shall be
held to be in contravention of subsection (1) to the extent that the
law in question makes provisions:-
(a)……………
(b)……………
(c)
for the registration of companies, partnerships, societies or other
associations of persons, other
than political parties, trade unions or employers organisations; or
(d)………….
(My own underlining).
except
so far as that provision or, as the case may be, the thing done under
the authority thereof is shown not to be reasonably justifiable in a
democratic society”.
I
find merit in the submissions by Mr Ochieng.
Section
21(3)(c) recognises that the formation and activities of employees
associations are an exercise of the right of freedom of associations.
He concludes on p 80 of the Head of Argument by saying:
“So
special is that exercise, that it is specifically insulated from
derogations that are permissible in the case of other associations of
persons”.
In
other words there are derogations in respect of other associations
but not in respect of trade unions or employer's associations.
As
is clear from section 21 of the Constitution, the right to freedom of
association embraces the right to form and join associations and the
right not to be compelled to belong to any association.
National
Constitutional Assembly v
The
President & Ors
2005 (2) ZLR 301 (H) at 316 G reinforced the point when Guvava J
stated:
“I
know of no right in the Constitution which forces persons to
associate against their will. Indeed, it would be a total negation of
that very freedom which section 21 of the Constitution strives to
uphold particularly the freedom of association.”
I
would agree with the applicant that section 36 of the CBA violates
the applicant's rights in so far as it compels the applicant to
behave as though it was the second respondent's member by requiring
it to register with it.
As
regards section 82 of the Act my view is the issue for determination
is whether the applicant can be bound by the provisions of the CBA in
issue.
It
is common cause that the applicant, as a principal or through an
agent, did not participate in neither did it sign the agreement.
I
find merit in the submissions made by Mr Mucheche
that the whole fabric of the process of collective bargaining and
enforceability is meant to protect the interests of those parties
that are affected by it.
The
law maker determined that the registration of the CBAs shall have the
effect of binding all players in the industries to which they apply.
Not to do so would defeat the objectives of collective bargaining
some of which are to restore the unequal bargaining position between
employers and employees and to peg minimum conditions of employment
to ensure adequate protection of the weaker party to the employment
contract i.e. the employee.
Statutory
intervention is justified to deter some unscrupulous employers from
abusing and trampling upon the rights of employees with impunity.
The
whole essence of collective bargaining was aptly underscored by
Archibold
Cox,
Labour
Law, Cases and Materials
(Thirteenth Edition) 2001 at p 200 where he stated:
“Genuine
collective bargaining is the only way to attain equality of
bargaining power. The greatest obstacle to collective bargaining are
employer dominated unions, which have multiplied with amazing
rapidity since Industry Recovery Act. Such a union makes a sham of
equal bargaining power.
Only
representatives who are not subservient to the employer with whom
they deal can act presently in the interest of employees. For these
reasons the very first step towards genuine collective bargaining is
the abolition of the employer dominated union as an agency for
dealing with grievances, labour disputes, wages rated, or hours of
employment.”
At
page 289, the same learned author reinforces the importance of
collective bargaining at industry level as follows;
“The
perceived benefits of mult-employer bargaining are several. For both
the employers and the union, it brings less expensive, less frequent
and more informed negotiations than would obtain on an
individual-employer basis. Workers desire industry–wide bargaining
also because it may help the union insure gains which no one employer
can grant for fear of competitive disadvantage.”
The
fact that the applicant has a functional workers committee and has
been working together with it on issues such as improvement of
conditions of service is neither here nor there. The fact that the
applicant pays wages higher than those set by the second respondent
is to be commended but cannot detract from the fact that it has to so
bound by the law governing the operations of its industry.
I
do not see how the applicant's right to freedom of association is
violated.
In
any event, section 34 of S.I. 1/12 provides adequate remedies to
address the peculiar circumstances of the applicant. In terms of
section 34 of S.I 1/12, the respondent, may in its sole discretion,
grant exemptions.
In
my view it will not be necessary to determine the issue of the
violation of section 16 of the Constitution in view of my finding
that the applicant cannot be compelled to register with the second
respondent. Registration would have entailed that the applicant pays
dues to the second respondent.
The
applicant did not seek an order for costs against the respondents. It
has succeeded in part. The respondent sought costs on a higher scale.
It raised points in
limine
which unnecessarily detained the court. Taking into account that the
issue that was raised by the applicant was important I will not make
an order of costs against either party. See Nyambirai
v
NSSA
1995
(2) ZLR 1 (S) at 16B.
In
the result I will make the following order;
A.
IT IS DECLARED AS FOLLOWS:
1.
The imposition upon the Applicant of the requirement to register with
the Second Respondent is a violation of the Applicant's
constitutional right to freedom of association.
2.
The Collective Bargaining Agreement for the Communications and Allied
Services Industry (S.I.1 of 2012) are in violation of section 21 of
the Constitution to the extent that they provide for the
infringements declared in paragraphs of this order.
B.
IT IS ORDERED THAT:
3.
Sections 2(a), 33 and 36 of the Collective Bargaining Agreement for
the Communications and Allied Services Industry (S.I.1 of 2012) are
struck down.
4.
There will be no order as to costs.
Coghlan
Welsh & Guest,
applicant's legal practitioners
Civil
Division of the Attorney General's Office,
1st
respondent's legal practitioners
Matsikidze
& Mucheche,
2nd
respondent's legal practitioners
