MALABA DCJ: At the end of the hearing, the Court
dismissed the appeal with costs having determined that it was without
merit. It was indicated that the reasons
would follow in due course. These are
they.
The appeal is from the decision of
the Labour Court holding that the appellant had no locus standi in the proceedings before it. The question for determination
is whether a universitas personarum
at common law can substitute itself
for a workers committee created by statute and enforce its statutory rights
which can only be enforced by a workers committee in terms of the Labour Act.
The facts are common cause. The appellant is a voluntary association of
former members of the Zimbabwe National Water Authority (ZINWA). On 29 January 2009, while presenting the
National Budget for the Year 2009, the acting Minister of Finance announced the
Government's decision to decentralise the management of the use of water to
local authorities with effect from 1 February 2009. As a result of the decision, management of
the use of water in Gweru was transferred to the respondent together with the
employment of the appellant's members in the undertaking in terms of s 16(1) of
the Labour Act (“the Act”). The
respondent engaged the appellant's members on terms and conditions inferior to
what they enjoyed at ZINWA immediately prior to the transfer. The appellant took up a complaint of an unfair
labour practice with a labour officer alleging that the respondent's conduct
was in breach of s 16(1) of the Act. A
certificate of no settlement was issued and the matter was referred to
compulsory arbitration. The appellant
did not act to represent the case of the employees but acted in their place as
the possessor of the rights it sought to vindicate. In other words it sued in its name.
On 14 January 2010, the appellant
obtained an arbitral award in its favour as against the respondent. The parties
approached the arbitrator for the quantification of the award. A hearing was
conducted on 7 April 2010 and the arbitrator issued an arbitral award on 30
April to the effect that the award of 14 January 2010 was to be enforced
in terms of a table from ZINWA showing the wages and salary rates that the appellant's
members enjoyed as at the date of transfer from ZINWA to the Gweru City
Council. On 26 May 2010 and 27 July 2010, the arbitrator issued further awards
dealing with the implementation of the original award of 14 January 2010. A
deadlock ensued between the parties and the arbitrator on the meaning of the
awards. On 30 August 2010 the arbitrator
issued what he termed an “interpretation award”.
The appellant appealed against the 'interpretation
award'. The respondent raised as a preliminary point
the question whether the appellant had locus
standi to sue or be sued. At the commencement of the hearing Mr Mutseyekwa for the respondent submitted
that the respondent was no longer challenging the appellant's locus standi. The appeal in that matter
was allowed by the Labour Court under judgment no. LC/MD/26/11. Subsequently,
the award of 14 January 2010 was quantified by the arbitrator on 9 August 2012.
On 22 August 2012, the respondent appealed to the Labour Court seeking an order
setting aside the quantification award, on the ground that it was a nullity as
the appellant was not a legal entity capable of suing and being sued in its own
name.
The appellant argued that the Labour Court was functus officio in relation to the locus standi issue. It further argued
that the respondent had waived its right to challenge the locus standi of the appellant when it made the concession on the
issue at the hearing of the appeal on 14 September 2011. On 20 April 2013, under judgment No. LC/MD/43/13,
the Labour Court found that it was not bound by the concession which was
wrongly made. It found that its earlier decision was void as the appellant had
no locus standi. On this basis, the
Labour Court set aside the quantification proceedings. The appellant was aggrieved
by that decision and noted the appeal to the Supreme Court.
The
dispute arose from the enforcement of the rights of workers arising from the
transfer of an undertaking provided for under s 16 of the Labour Act. The appellant is a universitas personarum, created in terms of its own constitution,
capable of suing and being sued in its own name. The question is whether a universitas personarum can sue in its
own name for the rights of employees provided for under s 16 of the Act.
A workers committee is defined in s 2 of the Act to
mean a workers committee appointed or elected in terms of Part VI. The formation of a workers committee in terms
of the Act is provided for under s 23.
Its functions are provided for under s 24. Section 23 provides:
“PART VI
WORKERS
COMMITTEES: FORMATION AND FUNCTIONS
23
Formation of workers committees
(1) Subject to this Act and any regulations, employees employed by
any one employer may appoint or elect a workers committee to represent their
interests:
Provided that no managerial employee shall be appointed or elected
to a workers committee, nor shall a workers committee represent the interests
of managerial employees, unless such workers committee is composed solely of
managerial employees appointed or elected to represent their interests.
(1a) Subject to subsection (1b), the composition and procedure of
a workers committee shall be as
determined
by the employees at the workplace concerned.
[Subsection inserted by
section 14 of Act 17 of 2002]
(1b) Notwithstanding subsection (1a), if a trade union is
registered to represent the interests of not less than fiftyper centum
of the employees at the workplace where a workers committee is to be
established, every member of the workers committee shall be a member of the
trade union concerned.
(2) For the purposes of
appointing or electing a workers committee, employees shall be entitled to—
(a) be assisted by
a labour officer or a representative of the appropriate trade union; and
(b) reasonable
facilities to communicate with each other and meet together during working
hours at their place of work; and
(c) be provided by
their employer with the names and relevant particulars of all employees
employed by him; so however, that the ordinary conduct of the employer's
business is not unduly interfered with.
(3) In the event of any
dispute arising in relation to the exercise of any right referred to in
subsection (2) either party to the dispute may refer it to the labour officer
mentioned in paragraph (a) of
that subsection, or, in the absence of such labour officer, any other labour
officer, and the determination of the labour officer on the dispute shall be
final unless the parties agree to refer it to voluntary arbitration.”
Section 24 provides:
“24
Functions of workers committees
(1)
A workers committee shall—
(a) subject to
this Act, represent the employees concerned in any matter affecting their
rights and interests;
and
(b) subject to
subsection (3), be entitled to negotiate with the employer concerned a collective
bargaining
agreement relating to the terms and conditions of employment of
the employees concerned; and
(c) subject to
Part XIII, be entitled to recommend collective job action to the employees
concerned; and
(d) where a works
council is or is to be constituted at any workplace, elect some of its members
to represent
employees
on the works council.
(2) Subject to subsection (3), where a workers committee has been
appointed or elected to represent
employees, no person other than such workers committee and the
appropriate trade union, if any, may—
(a) act or purport
to act for the employees in negotiating any collective bargaining agreement; or
(b) direct or
recommend collective job action to the employees.
(3) Where an appropriate trade union exists for any employees, a
workers committee of those employees may
negotiate a collective bargaining agreement with an employer—
(a) in the case
where the trade union has no collective bargaining agreement with the employer
concerned,
only to the extent that such negotiation is authorized in writing
by the trade union concerned; or
(b) in the case
where there is a collective bargaining agreement, only to the extent permitted
by such collective bargaining agreement; or
(c) where the Minister certifies in writing
that—
(i) the issue in question was omitted from or included in the principal
collective bargaining agreement when it should not have been so omitted or
included; and
(ii) the parties to the principal collective bargaining agreement
have failed or are not in a position to
reach an
agreement on such an issue.”
A workers committee is a committee
formed on the authority given under s 23(1) of the Act composed of employees
appointed or elected at a workplace by other employees employed by one employer
to represent the category of employees who appointed or elected its members on
matters affecting their rights and interests.
It does not share these features with any other body of people. In that regard a workers committee is a sui generis institution, the formation,
rights and obligations of which are matters exclusively governed by specific
provisions of a statute concerned with labour matters. It enjoys no rights and bears no obligations
of bodies constituted in terms of the law of voluntary associations.
Mr Mugandiwa
argued that the appellant was a common law universitas
personarum. What is clear from s 16 of the Act is that the rights provided for
accrue to the employees themselves. The section relates to the terms and
conditions of the contract of employment. In that regard, anyone wishing to
assist employees to vindicate their rights in a court of law can only do so in
a representative capacity.
The
definition of a workers committee in s 2 is very clear. A workers committee can
only be formed in terms of s 23 (1) of the Act for it to perform the functions set
out under s 24. There is no other
provision by which authority is granted for the formation of a committee known
as a workers committee with the powers listed under s 24 of the statute. There can be no workers committee outside the
confines of the Act. The fact that workers committees are specific statutory
creations is further established by the provisions of s 26 of the Act which give
the Minister of Public Service, Labour and Social Welfare or any other Minister
to whom the President may, from time to time assign the administration of the
Act, powers to make regulations governing the procedures to be followed by employees
at workplaces when forming workers committees, the tenure of office of members
and the operation, management and conduct of their affairs. A workplace is a place at which an employee
must attend at specific times of the day to provide services to the employer in
accordance with the terms and conditions of a contract of employment between
the parties.
Unlike a common law universitas personarum, the functions of which are defined by its written
Constitution, the procedures for the formation of workers committees, the
nature and scope of their functions, are provided for by statute.
Section 26 provides:
“26
Minister may make regulations relating to workers committees
(1)
The Minister may, after consultation with the appropriate advisory council, if
any, appointed in terms of Section nineteen,
make such regulations as he considers necessary for the control of workers
committees and
works
councils and, without derogation from the generality of his power in this
regard, such regulations may
provide for—
(a) the methods or procedures to be
followed for the formation of workers committees;
(b) the tenure of office of members of
workers committees;
(c) the operation, management and
conduct of the affairs of workers committees and works councils;
(2) Regulations made in terms of subsection
(1) may provide penalties for any contravention thereof:
Provided that no such penalty shall
exceed the penalties referred to in section one hundred and twenty-eight.”
A workers committee cannot
sue for any rights in a court of law because if it did, it would be acting
without any authority. Any organisation performing
the functions listed in s 24 of the Act cannot act outside the scope of those
functions and contrary to what the regulations made by the Minister under s 26
have prescribed. Workers committees have
no right to represent employees in litigation. Cold Storage Co National Workers Committee v
Cold Storage Co Ltd 2002(1) ZLR 141(H).
The appellant sought to
enforce the rights of the employees provided for and protected under s 16 of
the Act. Enforcement of these rights would fall within the contents of the
functions of a workers committee as defined by the Act. Except where expressly provided the functions
of a workers committee are inextricably linked to a workers committee and only that
body would be entitled to exercise them in the manner prescribed by the
employees at the workplace who appoint or elect its members or under the
regulations made by the Minister in terms of s 26(1) of the Act. In other words it is the employees who decide
whether a workers committee should be established at a particular workplace and
it is they who, in the absence of regulations made by the Minister, determine the
composition and procedure of the workers committee. The functions can only be exercised on behalf
of employees who appointed or elected the workers committee at a specific
workplace. A common law universitas
personarum cannot arrogate to itself functions specifically reserved for a
workers committee by a statute.
Unlike workers
committees, trade unions, employers' organisations and employment councils are
required to be set up in terms of written constitutions. Trade unions so set up
become bodies corporate when registered. The relevant sections provide as
follows:
“28 Requirements for formation of trade unions and employers
organizations
(1) Every trade union, employers organization or federation shall—
(a) subject to
subsection (2), before it raises funds from any source; and
(b) within six months of its formation;
adopt a written constitution
which shall provide for—
…
29 Registration of trade unions and employers organizations and
privileges thereof
(1) Subject to this Act, any trade union, employers organization
or federation may, if it so desires, apply for registration.
(2) Every trade union, employers' organization or federation
shall, upon registration, become a body
corporate and shall in its corporate name be capable of suing and
being sued, of purchasing or otherwise acquiring, holding or alienating
property, movable or immovable, and of doing any other act or thing which its constitution
requires or permits it to do, or which a body corporate may, by law, do.”
Section 60 of the Act provides that
every employment council shall upon registration in terms of the Act, become a
body corporate and in its corporate name be capable of suing and being sued. It is also capable of doing any other act
which its constitution requires or permits it to do, or which a body corporate
may by law do. A workers committee which
has to be formed in terms of s 23 of the Act for the purposes of performing the
functions specified under s 24 is not required to adopt a written constitution
because it is not intended to become a
legal entity with its own existence and rights independent of the members
appointed or elected by the employees at the workplace.
The legislature was conscious of the
fact that employees at workplaces may need to be represented in matters
affecting their rights and interests. The legislature provided for the creation
of workers committees to fulfil this function. The workers committee so created,
has the right to represent the employees concerned in any matter affecting their
rights and interests at the workplace level.
It has no right to sue and be sued because it is not a corporate body
distinct from the members who constitute it.
A body which claims a right to institute proceedings in a court of law
claiming rights of employees under s 16 of the Act cannot be a “workers committee”.
A universitas
is an aggregate of natural persons or individuals forming a legal persona or entity, with separate
existence from them and having the capacity of acquiring rights and incurring
obligations. It also enjoys the right of
perpetual succession. See Voet
1.8.28; 3.4.1, 3.4.2, Webb and Co v
Northern Rifles 1908 TS 464. The Law
of Partnership and Voluntary Association in South Africa by Bamford, 3rd
ed, p 126.
JTR Gibson (ed) Wille's Principles of
South African Law, 7th ed. p 156-157.
A workers committee set up in terms of s 23 of the
Act cannot set up a written constitution in order to imbue itself with the
capacity to sue which it does not have under the statute in terms of which it
is formed. In CT Bolts v Workers
Committee SC-16-12 GARWE JA said:
“Under the common
law, an unincorporated association, not being a legal persona, cannot as a
general rule, sue or be sued in its name apart from the individual members,
whose names have to be cited in the summons.
A universitas on the other
hand has the capacity, apart from the rights of the individuals forming it, to
acquire rights and incur obligations.
The position is also established that a body that has no constitution is
not a universitas for it is the
constitution that determines whether an association is or is not a universitas. On a proper interpretation
of s 24 of the Act, it is clear that a workers committee exists to safeguard
and champion the interests and welfare of the workers at the work place. It has no other function. There is no provision in the Act requiring a
workers committee to adopt a constitution.
There is also no requirement for a workers committee to acquire rights
apart from the rights of the individuals forming it and the employees they
represent. There is also no provision
for a workers committee to acquire assets in its own name.”(my
emphasis)
If a workers committee was endowed with
the power of a voluntary association established in terms of a written
constitution with the capacity to sue and be sued in a court of law, there
would be no need of making provision for separate workers committees for
non-managerial employees and for managerial employees. Provision for separate workers committees
underscores the fact that the interests of non-managerial employees at
workplaces are different from those of managerial employees. Each category of employees needs its own
workers committee to effectively articulate and protect its interests at the
workplace.
Mr Mugandiwa
argued that the title 'Gweru Water Workers Committee' should not mislead the
court into thinking that the entity is a workers committee. He argued that the entity
is a universitas personarum, created
in terms of its constitution. It has the
capacity to sue and be sued.
There is no doubt that the appellant can
be sued and sue in its name for rights of its members not specifically provided
for in their capacity as employees under the Act. The question is whether the
entity can specifically act on behalf of the employees and perform the functions
specifically reserved for a workers committee under the Act. A workers committee has the power to represent
the employees at a particular workplace in any matter affecting their rights
and interests. Only a trade union can
represent its members before a determining authority or in the Labour
Court. It cannot arrogate to itself, as
was done by the “Gweru Water Workers Committee”, the cause of action of the
employees and sue on their behalf. It is
clear that the rights provided for under s 16 of the Act accrued to the
employees concerned in their individual capacities.
The appellant claimed on behalf of the
employees. A workers committee can only represent the interests of the employees
who appointed or elected it at the workplace.
It cannot substitute itself for the employees and claim their rights in
litigation. The right to sue accrues to the employees and the employees in
their individual capacities can enforce the rights. The employees would be
claiming rights under contracts of employment with their employer. A universitas
personarum would not have a right to sue for those rights when it is not
privy to any of the contracts of employment.
Representation in the context of s 24(1) of the Act does not mean that a
person or body would have the right to substitute itself in place of the
employees as a party to proceedings.
Mr Mugandiwa
sought to meet the challenge by saying that the claimants in the dispute with the City of Gweru have always been the
former ZINWA employees now employed by the City of Gweru. He argued that the
respondent would not suffer any prejudice should the employees be substituted
for the universitas personarum. The
argument concedes the fact that the rights sought to be enforced by the universitas personarum belong to the
employees in terms of their contracts of employment with the respondent. The employees had the right to sue for their
rights in a court of law.
The objects of the appellant are provided as
follows:
1.
To promote the
interests of its members in so far as their employment with the City of Gweru
is concerned;
2.
To represent members in
any matters and/or disputes concerning their employment with the City of Gweru.
3.
To undertake any
activities that may be lawfully taken by any organisation such as this as per
the provisions of the Labour Act (Chapter 28:01) and the Regulations made
thereunder in terms of any other laws relevant to employment in Zimbabwe.
The objects of the appellant are the same as those a
workers committee would be seeking to achieve by the performance of the
functions listed under s 24 of the Act. The legislature did not intend that a body,
acting in terms of s 24 should have capacity to sue and be sued.
For the above reasons, we were of the unanimous view
that the appeal had no merit. We
accordingly dismissed it with costs.
GARWE JA: I agree
HLATSHWAYO JA: I agree
Wintertons,
appellant's legal practitioners
Danziger and Partners, respondent's legal
practitioners
