Court name
Supreme Court of Zimbabwe
Case number
SC 25 of 2007
Civil Appeal 8 of 2006

Zimbabwe Graphical Workers Union v Federation of Master Printers of Zimbabwe and Another (8/06) (SC 25 of 2007, Civil Appeal 8 of 2006) [2007] ZWSC 25 (13 September 2007);

Law report citations
Media neutral citation
[2007] ZWSC 25













REPORTABLE (21)


Judgment
No. SC 25/07


Civil
Appeal No. 8/06








ZIMBABWE
GRAPHICAL WORKERS UNION v





(1)
FEDERATION OF MASTER PRINTERS OF ZIMBABWE


(2)
MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL
WELFARE








SUPREME COURT OF
ZIMBABWE


SANDURA JA, GWAUNZA
JA & GARWE JA


HARARE, JANUARY 15 &
SEPTEMBER 14, 2007








P Machaya, for
the appellant





S Sadomba, for
the first respondent





No appearance for the
second respondent






SANDURA JA: This appeal arises out of a labour dispute which was
decided in favour of the respondents by the Labour Court.







In a judgment handed down on 3 January 2006 the Labour Court
declared that the collective job action embarked upon by the
appellant
on 25 July 2005 and terminated on 3 August 2005
was unlawful.







The background facts in the matter may be tabulated conveniently as
follows –






1. The appellant (“the Union”) consists of the employees in the
printing, packaging and newspaper industry, and the first respondent
(“the Federation”) is an amalgamation of the employers in that
industry.







2. During the first half of 2005 the Union commenced negotiating with
the Federation a cost of living adjustment of the salaries
and
allowances payable to its members during the last quarter of 2005.
The Union proposed a salary increase of 220% and the introduction
of
a housing allowance of $1 500 000.00 and a transport
allowance of $300 000.00 per month, but the Federation rejected
the proposals and, instead, offered an increase of 40% of the current
salaries and allowances.







3. After three rounds of negotiations, the parties reached a
deadlock, and thereafter the Union began preparing for a lawful
collective
job action, which was approved by an overwhelming majority
of its members voting by secret ballot.







4. On 15 June 2005 the Union gave the Federation notice of its
members’ intention to resort to collective job action. The
notice, in relevant part, reads as follows:







“MEMORANDUM







To: Federation of Master Printers of Zimbabwe







From: Zimbabwe Graphical Workers Union







Date: 15 June 2005







Ref: Notice of Intention to go on an Industrial Collective Job
Action







The above refers:







In terms of Part XIII section 104(2)(a) of the Labour Act,
we are hereby giving you fourteen (14) days to redress our
grievances.
The grievances are outlined below –







(1) We want wage/salary increase of 220%.







(2) We want housing and transport allowances of $1.5 million and
$300 000.00 respectively.…”







5. On 20 June 2005 the Federation applied to the second
respondent (“the Minister”) for a show cause order.







6. On 4 July 2005 the Minister, acting in terms of s 106(1)
of the Labour Act [Chapter 28:01] (“the Act”), issued
a show cause order directing the Union to appear before the Labour
Court on 7 July 2005 at 11 am
to show cause why the
threatened collective job action should not be disposed of in terms
of s 107 of the Act.







7. On 7 July 2005 the parties appeared before the Labour Court,
and a disposal order was issued by that court with the consent
of the
parties. It reads as follows:







“Whereupon, after reading documents filed of record and hearing
both parties’ representatives, it is by consent hereby ordered
that
a disposal order be issued on the following terms:







1. That the salaries dispute between the parties be and is hereby
referred to a labour officer for conciliation.







2. That pending the outcome of the conciliation mentioned in
paragraph 1 above, the respondents are prohibited from embarking
on the threatened collective job action.”







8. On 18 July 2005 the parties appeared before a labour officer
for conciliation. That exercise lasted until 20 July
2005 and,
as the dispute was not settled, the labour officer issued a
certificate of no settlement to the parties on 21 July
2005.







9. On 25 July 2005 the Union resorted to collective job action.
On the same day, the Federation applied to the Minister for
another
show cause order.








  1. On 28 July 2005 the parties appeared before a labour officer
    and made their submissions on the Federation’s application
    for the
    second show cause order. However, the circumstances in which the
    application, which had been submitted to the Minister,
    was placed
    before the labour officer were not clear. Presumably, the Minister
    wanted the labour officer to look into the matter
    and compile a
    report thereon for his consideration. Nevertheless, after
    considering the submissions made by the parties, the
    labour officer
    compiled a report in which he recommended that the Minister should
    not issue the show cause order sought because,
    in his view, the
    collective job action was lawful. That recommendation was
    subsequently supported by the provincial labour officer
    for the
    Harare region.







11. Nevertheless, on 1 August 2005 the Minister issued the
second show cause order, directing the Union to appear before the
Labour Court on 3 August 2005 at 10 am to show cause why
the collective job action commenced on 25 July 2005 should
not
be disposed of in terms of s 107 of the Act. In addition, the
Minister directed that, pending the determination of the
matter by
the Labour Court, the collective job action should be terminated
immediately or, in any case, within twenty-four hours
of receipt of
the show cause order.







12. On 3 August 2005 the parties appeared before the Labour
Court. It appears from the record that the parties did not complete
their submissions on that day, but had to appear again on two or
three other occasions, before the Labour Court reserved its judgment.







13. On 3 January 2006 the Labour Court handed down its judgment.
It declared that the collective job action embarked upon
by the
Union on 25 July 2005 and terminated on 3 August 2005 was
unlawful.






Aggrieved by that decision, the Union appealed to this Court.







The Labour Court found that when the notice given by the Union on
15 June 2005 expired on 29 June 2005, and the Union
did not
immediately thereafter embark upon the collective job action it had
threatened, it lost the right to resort to such action
on the basis
of the notice given on 15 June 2005, and that a fresh notice
should, therefore, have been given before the Union
embarked upon the
collective job action on 25 July 2005. As no such notice had
been given, the Labour Court concluded that
the collective job action
was unlawful.







The correctness of that finding has been challenged in this appeal.







Subsections (1) and (2) of s 104 of the Act read as follows:






“(1) Subject to this Act, all employees, workers committees and
trade unions shall have the right to resort to collective job
action
to resolve disputes of interest.







(2) Subject to subsection (4) (which is not relevant in the
present case), no employees, workers committee, trade union,
employer,
employers organisation or federation shall resort to
collective job action unless -







(a) fourteen days written notice of intent to resort to such action,
specifying the grounds for the intended action, has been given
-







(i) to the party against whom the action is to be taken; and







(ii) to the appropriate employment council; and







(iii) to the appropriate trade union or employers organisation or
federation in the case of members of a trade union or employers
organisation or federation partaking in a collective job action where
the trade union or employers organisation or federation is
not itself
resorting to such action; and







(b) an attempt has been made to conciliate the dispute and a
certificate of no settlement has been issued in terms of section
ninety-three.”







There are three issues for determination in this appeal. The
first is whether the dispute between the parties was a dispute of
interest or a dispute of right. The second is whether the Minister
had the power in terms of the Act to issue the second show cause
order. And the third is whether the Union lost the right to resort
to collective job action, on the basis of the notice given on
15 June
2005, when it did not embark upon such action immediately after the
expiration of the notice on 29 June 2005. I shall
deal with
these issues in turn.






WAS IT A DISPUTE OF INTEREST OR A DISPUTE OF RIGHT?






This issue is important because if the dispute between the parties
was a dispute of right, the Union had no right to resort to
collective job action to resolve the dispute. I say so for two
reasons.







The first reason is that the right given by s 104(1) of the
Act to employees, workers committees and trade unions to resort
to
collective job action is in respect of the resolution of disputes of
interest and does not cover disputes of right. Section 104(1)
states that:






“… all employees, workers committees and trade unions shall have
the right to resort to collective job action to resolve disputes
of interest
.” (emphasis added)







And the second reason is that in terms of s 104(3)(a)(ii) of
the Act employees, workers committees, etcetera, cannot resort
to
collective job action if the issue in dispute is a dispute of right.
Section 104(3)(a)(ii) reads as follows:






“(3) Subject to subsection (4) (which is not relevant to the
present case), no collective job action may be recommended or engaged
in by –







(a) any employees, workers committee, trade union, employer,
employers organisation or federation -







(i) … ; or







(ii) if the issue in dispute is a dispute of right;”.











The terms “dispute of interest” and “dispute of right” are
defined in s 2 of the Act as follows:






“’dispute of interest’ means any dispute other than a dispute
of right.







‘dispute of right’ means any dispute involving legal rights and
obligations, including any dispute occasioned by an actual or
alleged
unfair labour practice, a breach or alleged breach of this Act or of
any regulations made under this Act, or a breach or
alleged breach of
any of the terms of a collective bargaining agreement or contract of
employment.”







Thus, a dispute of right would be a dispute concerning, for
example, the infringement or interpretation of an existing legal
right
embodied in a statute or contract of employment. On the other
hand, a dispute of interest would be a dispute concerning, for
example,
the creation of new legal rights for the workers, such as
higher salaries and allowances.







The learned authors, Alan Rycroft and Barney Jordaan, in their book
A Guide to South African Labour Law 2 ed, have this to
say on disputes of interest and disputes of right at p 169:






“Broadly speaking, disputes of right concern the infringement,
application or interpretation of existing rights embodied in a
contract
of employment, collective agreement or statute, while
disputes of interest (or ‘economic disputes’) concern the
creation of fresh
rights, such as higher wages, modification of
existing collective agreements etcetera. Collective bargaining,
mediation and, as
a last resort, peaceful industrial action, are
generally regarded as the most appropriate avenues for the settlement
of conflicts
of interest, while adjudication is normally regarded as
an appropriate method for resolving disputes of right.”







I entirely agree with those observations, which accord with the
definitions of “dispute of right” and “dispute of interest”
set out in s 2 of the Act.







In the circumstances, there can be no doubt that the issue which
was in dispute between the parties in this case was a dispute
of
interest, involving the creation of fresh legal rights in the form of
higher salaries and allowances.






DID THE MINISTER HAVE THE POWER IN TERMS OF THE ACT TO ISSUE
THE SECOND SHOW CAUSE ORDER?






I do not think he had. However, before I give my reasons for that
conclusion, I wish to set out the relevant provisions in ss
106 and
107 of the Act.







Section 106, in relevant part, reads as follows:






“106 Show Cause orders







(1) Whenever a workers committee, trade union, employers
organisation or federation of registered trade unions or employers
organisations
… threatens, recommends, encourages, incites,
organises or engages in any collective action … the Minister,
acting on his own
initiative or upon the application of any person
affected or likely to be affected by the unlawful collective action,
may issue an
order calling upon the responsible person to show cause
why a disposal order should not be made in relation thereto.







Provided that the Minister may call both parties to appear before
him or her for submissions before he or she issues a show cause
order
if he or she deems it necessary that they appear.







(2) A show cause order -







(a) shall specify -







(i) the date, time and place at which the responsible person must
appear before the Labour Court to show cause why a disposal order
should not be made; and







(ii) the order or action desired or proposed;







(b) may direct that pending the issuance of a disposal order, the
unlawful collective action concerned be terminated, postponed or
suspended.”







And s 107, in relevant part, reads as follows:






“107 Disposal orders







(1) On the return day of a show cause order the Labour Court shall …
inquire into the matter and shall afford the parties concerned
an
opportunity of making representations in the matter.







(2) After conducting an inquiry in terms of subsection (1), the
Labour Court may issue a disposal order directing that –







(a) the unlawful collective action be terminated, postponed or
suspended; or







(b) the issue giving rise to the unlawful collective action concerned
be referred to another authority to be dealt with in terms
of
Part XII and that, pending the determination of the issue in
terms of that Part, the unlawful collective action concerned
be
terminated, postponed or suspended.”







In my view, the Minister did not have the power to issue the second
show cause order. I say so because there is no provision
in the Act
in terms of which the Minister, after issuing a show cause order
directing the parties to appear before the Labour Court,
to show
cause why a disposal order should not be made in terms of s 107,
could issue another show cause order in the same matter,
and in
respect of the same dispute, directing the parties for the second
time to appear before the Labour Court to show cause why
another
disposal order should not be made in terms of s 107.







In addition, subss (5) and (7) of s 93 of the Act set out the
procedure to be followed by the parties after a certificate
of no
settlement has been issued by a labour officer. Instead of applying
to the Minister for the second show cause order, the
Federation
should have followed that procedure to resolve the dispute.







Subsection (5) of s 93 of the Act, in relevant part,
reads as follows:






“After a labour officer has issued a certificate of no settlement,
the labour officer, upon consulting any labour officer who
is senior
to him and to whom he is responsible in the area in which he
attempted to settle the dispute or unfair labour practice
–







(a) … ;







(b) may, with the agreement of the parties, refer the dispute or
unfair labour practice to compulsory arbitration; or







(c) … .”







However, as the Union did not want the dispute referred to
compulsory arbitration, the labour officer could not act in terms of
s 93(5)(b). He could only have done so with the agreement of
both parties, but the parties disagreed on that course of action.







Nevertheless, that was not the end of the matter, because the
Federation should have acted in terms of subs (7) of s 93
which, in relevant part, reads as follows:






“(7) If, in relation to any dispute or unfair labour practice –







(a) after a labour officer has issued a certificate of no settlement
in relation to the dispute or unfair labour practice, it is
not
possible for any reason to refer the dispute or unfair labour
practice to compulsory arbitration as provided in subsection (5);
or







(b) …;







any party to the dispute or unfair labour practice may, in the time
and manner prescribed, apply to the Labour Court –







(i) for the dispute or unfair labour practice to be disposed of in
accordance with paragraph (b) of subsection (2) of section
eighty-nine, in the case of a dispute of interest; or







(ii) … .”







And s 89(2)(b), mentioned above, reads as follows:






"89 Functions, powers and jurisdiction of Labour Court







(1) …







(2) In the exercise of its functions, the Labour Court may –







(a) …







(b) in the case of an application made in terms of subparagraph (i)
of subsection (7) of section ninety-three, remit it
to the same
or a different labour officer with instructions directing that
officer to attempt to resolve it in accordance with such
guidelines
as it may specify;”.









In the circumstances, it is clear beyond doubt that after issuing
the first show cause order the Minister had no further role to
play
in the matter. The second show cause order was, therefore, null and
void. The same applies to the second disposal order
issued, because
the matter was not properly before the Labour Court.







Although that effectively disposes of this appeal, I shall deal
with the third issue because I consider it important, as it formed
the basis on which the matter was determined by the court a quo.






DID THE UNION LOSE THE RIGHT TO RESORT TO COLLECTIVE JOB ACTION
WHEN IT DID NOT RESORT TO SUCH ACTION IMMEDIATELY AFTER THE NOTICE
GIVEN ON 15 JUNE 2005 EXPIRED ON 29 JUNE 2005?






I do not think it did. I say so because when the fourteen days
expired on 29 June 2005, the Union could not immediately
thereafter lawfully resort to collective job action. In fact, the
Union did not have the right to resort to collective job action
at
that stage because, in terms of s 104(2)(b), the Union could not
resort to such action unless an attempt had been made to
conciliate
the dispute and a certificate of no settlement had been issued in
terms of s 93 of the Act.







It was common cause that the Labour Court referred the dispute to a
labour officer for conciliation on 7 July 2005. The
conciliation exercise subsequently commenced on 18 July 2005 and
ended on 20 July 2005. The exercise was not successful,
and a
certificate of no settlement was issued to the parties on 21 July
2005.







In my view, it was only on 21 July 2005, after a certificate
of no settlement had been issued to the parties, that the Union
acquired the right to resort to collective job action. Four days
later, on 25 July 2005, the Union embarked on the collective
job
action.







It seems to me that the delay of four days in commencing the
collective job action was not unreasonable, bearing in mind the fact
that the Union had to organise the collective job action and inform
its members throughout the country about the decision to resort
to
such action after the certificate of no settlement had been issued.






In submitting that the Union should have given a fresh notice in
respect of the collective job action embarked upon on 25 July
2005, counsel for the Federation relied upon what this Court said in
Moyo and Ors v Central African Batteries (Pvt) Ltd 2002 (1)
ZLR 615 (S). At 620 C-D GWAUNZA AJA (as she then was)
said:






“There is no evidence on record to show the nature of the grievance
that led to the strike of December 1997. However, even if
the
grievance had been the same – for instance, because the respondent
had not complied with whatever determination was made in
October 1997
– as long as the original notice period had expired, there would
still have been need to issue a fresh notice of the
intended strike
in accordance with s 104(2) of the Act.”







In that case, the respondent’s employees wrote to the
member-in-charge at Norton Police Station on 26 August 1997,
stating
their intention to resort to collective job action fourteen
days later. The letter was copied to the Ministry of Labour and to
the relevant trade union. The employees did not notify their
employer about the proposed action, but the employer later became
aware of it from some other source.







When the fourteen days expired, the employees did not immediately
embark on the proposed collective job action, but did so subsequently
on 3 December 1997, relying upon the notice given in August
1997. This Court held that a fresh notice in respect of the
collective
job action of 3 December 1997 should have been given.







However, Moyo’s case supra is distinguishable from
the present case. The main distinction is that Moyo’s case
supra was decided in terms of s 104(2) of the Act before
it was amended by s 37 of the Labour Relations Amendment Act
No. 17
of 2002, which came into force on 7 March 2003.







The amendment introduced an additional requirement which had to be
met by the employees intending to embark upon collective job
action,
i.e. they could not embark upon such action unless an attempt had
been made to conciliate the dispute and a certificate of
no
settlement had been issued in terms of s 93 of the Act.







Thus, whereas before the amendment, and assuming that all the other
requirements set out in s 104(2) were met, employees intending
to embark on collective job action acquired the right to embark upon
such action immediately after the expiration of the fourteen
days
notice, after the amendment that right was acquired by the employees
only after an attempt had been made to conciliate the dispute
and a
certificate of no settlement had been issued in terms of s 93.







Once acquired, the right could only be lost if it was not exercised
within a reasonable time, and no reasonable explanation for
the delay
in exercising the right was given.







Thus, in Free State Consolidated Gold Mines (Operations) Ltd v
National Union of Mineworkers and Ors
1988 (2) SA 425 (OPD),
HEFER J said the following at 429 C-E, whilst considering
an issue similar to the one in this case:






“While the remarks of HOEXTER JA lend support to the
contention that a right to strike acquired in terms of s 65 must
be exercised within a reasonable time, the premise that a right must
be asserted within a reasonable time after its acquisition does
not
warrant the conclusion that the failure to do so results ipso iure
in its loss. This latter point emerges clearly from the judgment of
HEFER JA in Mahabeer v Sharma NO and Anor 1985 (3) SA 729
(A) at 736 E-I.”







And at 430 A-B the learned Judge continued:



“In determining what is a reasonable time or an unreasonable delay
in any given case, all the circumstances relative to the delay
must
be taken into account, including the explanation given for the delay.
(See Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale
Vervoerkommissie, en ‘n Ander
1986 (2) SA 57 (A) at 86I-87A.)”







I entirely agree with the learned Judge. It is incumbent upon the
employees who have delayed in embarking on collective job action
to
give a reasonable explanation for that delay.







In Moyo’s case supra it does not appear from the
judgment that the employees gave a reasonable explanation for the
delay in embarking on the collective
job action.







However, in the present case the Union gave a reasonable
explanation for not embarking on such action immediately after the
end
of the fourteen days notice on 29 June 2005, i.e. that an
attempt to conciliate the dispute had not yet been made, and a
certificate
of no settlement had not yet been issued, matters over
which the Union had no control. In fact, as already stated, the
Union could
not have lawfully resorted to collective job action
before 21 July 2005, when the certificate of no settlement was
issued in
terms of s 93.







Finally, when the parties appeared before the Labour Court on
7 July 2005, in response to the first show cause order, which
was issued on 4 July 2005, it must have been common cause that
the Union had not lost the right to resort to collective job
action
on the basis of the notice given on 15 June 2005. I say so
because of the wording of the disposal order, which was
issued by the
Labour Court with the consent of the parties. It reads as follows:






“1. That the salaries dispute between the parties be and is hereby
referred to a labour officer for conciliation.







2. That pending the outcome of the conciliation mentioned in
paragraph 1 above, the respondents are prohibited from
embarking on the threatened collective job action
.” (emphasis
added)







The Union was, therefore, prohibited from embarking on the
threatened collective job action “pending the outcome of the
conciliation”,
which must mean that if the conciliation exercise
was not successful the Union was at liberty to resort to collective
job action.







The conciliation exercise commenced on 18 July 2005 and ended
on 20 July 2005. The exercise was not successful, and
a
certificate of no settlement was issued on 21 July 2005.







In the circumstances, the collective job action embarked upon by
the Union on 25 July 2005 and terminated on 3 August
2005
was lawful.







Consequently, the following order is made –






1. The appeal is allowed with costs.







2. The order of the court a quo is set aside and the
following is substituted –



“It is declared that the collective job action embarked upon by the
respondent and its members on 25 July 2005 and terminated
on
3 August 2005 was lawful.”







GWAUNZA  JA: I agree







GARWE  JA: I agree







Mbidzo, Muchadehama & Makoni, appellant's legal
practitioners



Gill, Godlonton & Gerrans, first respondent's legal
practitioners