Court name
Supreme Court of Zimbabwe
Case number
SC 77 of 2002
Civil Appeal 263 of 1999

Thomas Meikle Centre (Pvt) Ltd. v National Workers' Committee and Others (263/99) (SC 77 of 2002, Civil Appeal 263 of 1999) [2002] ZWSC 77 (20 October 2002);

Law report citations
Media neutral citation
[2002] ZWSC 77







REPORTABLE
(73)


Judgment
No. SC 77/02


Civil
Appeal No. 263/99








THOMAS
MEIKLE CENTRE (PRIVATE) LIMITED v





(1) TM
NATIONAL WORKERS’ COMMITTEE


(2) D
MVUDUDU NO


(3) THE
MINISTER OF THE PUBLIC SERVICE, LABOUR
AND SOCIAL WELFARE








SUPREME
COURT OF ZIMBABWE


CHEDA
JA, MALABA JA & GWAUNZA AJA


HARARE,
JUNE 20 & OCTOBER 21, 2002








T
Biti
,
for the appellant





W
Ncube
,
for the first respondent





No
appearance for the second and third respondents





GWAUNZA
AJA: In the High Court the appellant made an application in which
it sought a review of the decision of a labour relations
officer,
which was to the effect that the appellant should, within fourteen
days, enter into negotiations with the first respondent.
The main
ground for the review sought was given as:





“gross
irregularities in (the) first respondent’s decision in that she
erred as a matter of law in making the ruling that s 74(6)
of
the (Labour Relations) Act (formerly s 79(6) of the Labour
Relations Act (16/85)
)
obliged the applicant to enter into negotiations with its employees
represented by the first respondent when a Collective Bargaining
Agreement had been concluded and existed”.





The
court
a quo
dismissed the application with costs, after finding that the second
respondent had not only been properly seized with the matter
but had
also not erred as a matter of law in making the decision in question.





The
appellant now appeals against this decision.





It
is not in dispute that there indeed existed a Collective Bargaining
Agreement between the parties. In terms of such agreement,
negotiated through the National Employment Council for the Commercial
Sector of Zimbabwe (“NECCS”) of which the appellant was
a member
and published as Statutory Instrument 248/96, the statutory wage
increase to be awarded to employees in the sector to which
the first
respondent’s members belonged was to be 22%. It is common cause
that over and above this increase the appellant arbitrarily
awarded a
further 3% increase to the employees concerned. The appellant
thereafter refused to accede to a demand by the first respondent
for
negotiations on the 3% wage increase. The first respondent then
filed a complaint with the third respondent, of an unfair labour
practice. The latter assigned the second respondent to deal with
the matter in terms of s 93 of the Labour Relations Act
[
Chapter 28:01]
(“the Act”). The result was the decision alluded to above.





Before
considering the grounds of appeal, I should note that I agree with
the finding of the court
a quo
that the decision of the labour relations officer was not based on an
error of law. To the extent that the refusal by the appellant
to
enter into negotiations with the respondent over wages constituted a
dispute (defined in the Act as “a dispute relating to any
matter
concerning employment, which is governed by this Act”), I find that
the labour relations officer had the requisite authority
to deal with
the matter. Such authority, it is correctly contended for the
respondent, is contained in s 93(1)(b) of the Act,
which reads
as follows:





“93 (1) A
labour relations officer, upon reference to him by any person of a
dispute … -





(a) …






(b) after giving both parties an
opportunity to submit representations orally or in writing, may make
such determination in regard
to the dispute or unfair labour practice
as may be just in the circumstances.”





The
labour relations officer did just that. She or he heard both
parties’ oral representations and made the determination in
question.
The determination related to a matter of employment
governed by s 74(6). There was, therefore, no question of an
error in
law.





I
will now turn to the main grounds of appeal, which are that the court
a quo
erred –






(i) in holding that the appellant
and the first respondent were not bound by the Constitution of the TM
National Workers’ Committee;
and







(ii) in not holding that s 74(6)
of the Act does not oblige the appellant to negotiate with the first
respondent the variation
of the Collective Bargaining Agreement.





It
is common cause that there exists within the appellant a council
called the TM National Works Council. This Council has a
constitution
wherein, in addition to other matters ordinarily
contained in any constitution of this nature, it is provided as
follows in s 4(1):





“The
Council may consist of five TM employee management representatives
and five TM employees elected from chairpersons of TM Branch
workers
committees.”





Even
though it is noted on behalf of the first respondent that there are
two different versions of s 3(1) of this constitution,
it is not
in dispute that the version placed before the court
a quo
reads as follows:






“(3)(b) The Council shall be
competent to discuss and make recommendations on the following
matters –






(i) General working conditions of
employment, excluding wages and all other matters covered by the
Collective Bargaining Agreement
of (the) National Employment Council
for Commercial Sectors of Zimbabwe. …”





The
appellant contends that both it and the first respondent are bound by
the provisions of this constitution. This is because,
it is
contended for the appellant, the Council (i) was created by both the
appellant and the respondent and was therefore owned and
controlled
by same and (ii) was the only negotiating forum between the parties.
Mr 
Biti
contends further that, since the parties have contractually agreed
that they will not enter into negotiations on wages which are
covered
by the Collective Bargaining Agreement, then that is the end of the
matter.





The
court
a quo
disagreed, it being its finding that neither of the parties
in
casu
was a member of
the NECCS, given its composition. The learned judge observed as
follows in this respect:





“It
is apparent
ex facie
the constitution of the TM National Workers’ Council that it is
composed of five members of the TM Management employees
representatives
and five TM employees elected from chairpersons of TM
Workers Committees. It is the Works Council made up as above that
is prohibited
from discussing or negotiating wages. Both the
applicant and the first respondent are not members of the TM National
Works Council
(and) therefore cannot be bound by the provisions of a
constitution of a body of which they are not members. On this basis
the
provisions of the constitution of the TM National Works Council
are irrelevant and this ground of challenge must fail.”





I
agree with this finding. There is nothing in the constitution in
question to suggest that the Council is the only negotiating
forum
between the appellant and the respondent. Nor, I find, is it
necessary that whoever creates an entity, which then assumes
an
identity of its own, “shall own and control it”. In any case,
to own and control an entity is not to say that the entity’s
constitution will, by that fact, bind the operations of those who
created it. There cannot be any dispute that the appellant, the
first respondent and the National Works Council are three separate
and distinct entities. The latter two each have a constitution
from
which they derive their existence and mandate. That one may have
been established at the instance, or through the agency,
of the other
does not, in my view, affect their autonomy. The constitution of
the Works Council does not allow it to discuss or
make
recommendations on matters to do with employees’ wages. That does
not mean that the same limitation extends to the appellant
and the
first respondent. I am therefore not persuaded by the argument
advanced on behalf of the appellant that the application
of the
constitution of the TM National Works Council extends beyond the
Council to cover entities that are independently constituted,
as are
the appellant and the first respondent.





In
this respect, I find merit in Mr 
Ncube’s
submission that the TM National Works constitution binds only the
Works Council created by it and not the first respondent. I am
also
persuaded by the further submission that in any case the Works
Council established by the constitution in question was not intended
as a negotiating forum, since its power is limited to “discussing”
and making recommendations on any issue that it considers.
As a
result, the TM Works Council constitution cannot be read to take away
the power and/or right of the employer and employees
to negotiate and
agree on wages. Such an interpretation, it is correctly submitted
for the first respondent, would be inconsistent
with s 24(1) of
the Act which specifically gives workers committees the right and
power to negotiate terms and conditions of
employment at the
workplace.





If,
as I have found, the parties
in
casu
are not bound by
the provisions of the TM National Works Council, it follows that they
could not, and have not, “contractually
agreed” that they would
not enter into negotiations concerning employees’ wages.





I
am accordingly satisfied that the decision of the court
a quo
that there was no impediment to the parties’ entering into
negotiations on wages was correct.





I
will now turn to the second ground of appeal, which is that the court
a quo
misinterpreted s 74(6) of the Act.





Section 74(6)
of the Act reads as follows:





“(6) The
existence of a Collective Bargaining Agreement shall not preclude an
employer and his employees from agreeing to the introduction
of
higher rates of pay or other more favourable conditions of employment
before the expiry of such Collective Bargaining Agreement,
so however
that the rights and interests of the employees are not thereby
diminished or adversely affected.”





It
is contended for the appellant that this section does not place an
obligation on the employer, that is, the appellant, to enter
into
negotiations with the employees, and that therefore the question of
an employer negotiating or not is a dispute of interest,
not an
enforceable dispute of right.





It
is contended further that, even conceding that the learned judge
a quo
was correct in finding that s 74(6)
allowed
employers and employees to negotiate terms which are more favourable
than those contained in the Collective Bargaining Agreement,
this was
not to be understood to be synonymous with
obliging
the employer to negotiate.





Mr Biti,
for the appellant, contended further that s 74(6) must be read
with s 74(4), which, he submits, creates a positive right
for
both employer and employee to renegotiate or amend a Collective
Bargaining Agreement after twelve months. He adds that the
non-imposition of a positive right on either party to seek to
renegotiate or amend a Collective Bargaining Agreement before twelve
months have elapsed, by s 74(6), is not a
casus
omissus
but
recognition that the section imposes no right or obligation as
s 74(4) does.





The
learned judge
a quo
was not persuaded by this argument. He observed as follows at p 4
of the cyclostyled judgment:





“As
Professor Ncube correctly pointed out in his submission, s 74(4)
is irrelevant to this matter. That subsection
merely makes it clear
that a Collective Bargaining Agreement can and may be renegotiated by
the parties after twelve months so as
to take account of changed
circumstances. This subsection is about renegotiation of the
Collective Bargaining Agreement by the
parties who make it which is
not the case
in casu.
The first respondent is not seeking to renegotiate the Collective
Bargaining Agreement but to negotiate wages and salaries in
the light
of that agreement. I am not persuaded by the submission that the
language used in subs (4) creates a legal obligation
to
negotiate while the language in subs (6) does not. I am
inclined to agree with Mr Ncube’s submission that the wording
in s 74(6) by necessary implication allows employers and
employees to negotiate terms which are more favourable than those
contained
in the commercial Collective Bargaining Agreement. In my
view, the agreement referred to in this subsection is the tail end or
result of negotiations between the applicant and the first
respondent.”





I
am in full agreement with these sentiments. To the extent that
s 74(4) is irrelevant to the matter at hand, it is not necessary
for the Court to make a determination on whether or not the section
creates an obligation for the parties to negotiate, nor whether,
by
comparison, s 74(6) does or does not do the same.





In
relation to s 74(6), Mr 
Ncube,
in my view correctly, submits that the first respondent neither
contended, nor did the High Court find, that it creates an obligation
to negotiate. I am persuaded by his submission that s 74(6)
envisages a situation where employers and employees, whose wages
may
be or are in fact regulated by a Collective Bargaining Agreement
applicable to that industry or sector, engage in further negotiations
during the currency of that Collective Bargaining Agreement so as to
create better terms and conditions for the employees.





In
this case the employees’ wages were regulated by a Collective
Bargaining Agreement which at that time had been in operation
for
less than twelve months. The appellant, as the employer, without
consulting the employees concerned, awarded an increase of
3% over
and above what was contained in the Collective Bargaining Agreement.
Had the employees concerned accepted this increase,
that would have
been the end of the matter and s 74(6) would have been complied
with. This, however, did not happen. The
employees were therefore
simply asking that the appellant complies with s 74(6) by
engaging in negotiations with them with a
view to reaching agreement
on a mutually acceptable higher rate of pay. Mr 
Biti
contends that, under s 74(6), the mere fact that parties may
reach an agreement does not in fact empower either of the parties
to
demand re-negotiation “at every turn”. I am not persuaded this
is what happened
in
casu
. The first
respondent did not demand re-negotiation “at every turn”. Its
demand followed the action taken by the appellant
to unilaterally
award a wage increase in contravention of s 74(6), which
requires that such an increase be negotiated and agreed
between the
parties. It is possible that they would not have made the demand
had the appellant not taken that unilateral action.





The
appellant, it is evident, has taken the attitude that as long as it
was prepared to award its employees a higher rate of pay than
that
specified in the Collective Bargaining Agreement, the determination
of such rate was in its sole discretion, with the employees
free to
either take it or leave it. That is clearly contrary to the spirit
of s 74(6) and is also liable to cause labour unrest.

Section 74(6) seeks to minimise the possibility of tension
between the employer and the employees, by emphasising that such
matters be negotiated and agreed. For one party to unilaterally
decide on a rate and impose it on the other party is to make nonsense
of s 74(6). The same applies to the refusal by that party,
where the other party does not accept the imposition of such a
rate,
to negotiate.




There
is no doubt that a higher rate of pay than that stipulated in a
Collective Bargaining Agreement, whatever its extent, does
not
per
se
diminish or
adversely affect the interests of the employees. However, if, as
was the first respondent’s suspicion, the rate is
not uniformly
applied, the potential for an adverse effect on the interests of some
of the employees cannot be discounted. To the
extent that the
negotiations sought by the first respondent are permissible under
s 74(6) and in addition may clarify issues
between the parties,
thereby preventing any adverse effect on the interests of the
employees, the latter, i.e. the first respondent,
were perfectly
within their rights to seek such negotiations.





It
should be noted that the first respondent is merely seeking to
negotiate a higher rate in circumstances where the appellant is
not
averse to giving one. They are not seeking an order to compel the
appellant to award a specific higher rate. It may be that
after
these negotiations, the employees will agree to the 3% wage
increases. I do not see that the appellant has anything to lose
by
entering into the negotiations requested. To the contrary, the
appellant stands to benefit from the elimination of unrest within
the
employees that is likely to be the consequence of the negotiations.





In
all the circumstances, therefore, I find that the decision of the
court
a quo
was correct in all respects.





The
appeal is accordingly dismissed with costs.





CHEDA
JA: I agree.


MALABA
JA: I agree.


Honey
& Blanckenberg
,
appellant's legal practitioners


Coghlan,
Welsh & Guest
,
first respondent's legal practitioners