Gift Nyemba and William Brown v Enterprise Dog Handler Unit

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/288/2016
HARARE, 25 FEBRUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/288/2016

HARARE, 25 FEBRUARY 2016			     	    CASE NO. LC/H/522/15

AND 13 MAY 2016

In the matter between:-

GIFT NYEMBA							1st Appellant

And

WILLIAM BROWN							2nd Respondent

And

ENTERPRISE DOG HANDLER UNIT				Respondent

Before Honourable L. Hove, Judge

For Appellants	Ms M. Mukucha (Trade Unionist)

For Respondent	Mr L. Ruhwaya (Human Resources Manager)

HOVE, J:

The appellants were former employees of the respondent.  Their contracts were lawfully terminated.    After the termination of their contracts of employment, they raised against their former employer a claim for overtime worked.

They argue that they were entitled to be paid overtime as they worked for an average of 252 hours per month instead of the stipulated 208 hours per month.

The arbitrator who initially heard the matter took into account the fact that the parties had an agreement that allowed them to work these 252 hours and then the employees would be compensated by being given time off.  In other words the employees would work for 21 days and be entitled to 9 days off work.  This position had been debated in a works council meeting and adopted by the parties in a works council meeting were both employers and employees were represented.  This was on 2 February 2005.

There after the parties proceeded in terms of the agreement which both parties agreed was binding upon them.  It was agreed that overtime would not be claimed as the employees would be compensated by time off during working hours.  The arbitrator ruled in favour of the employer and dismissed the claim on the basis that the parties had agreed to compensate for overtime worked by allowing time off.  He reasoned as follows;

“Employees of respondent through a works council agreement agreed to compensate overtime with time off.  This is permitted in terms of section 7 (payment of overtime) 2 (b) of Statutory Instrument 45 of 1993, Collective Bargaining Agreement for the commercial Sector which reads:

‘… by mutual agreement be allowed time off by the employer during normal working hours …”

In other words, the arbitrator found that the works council agreement of 2005 was binding on the parties.

The employees were not happy with the award.  They appealed to this court.

They basically argue;

That the agreement ought not to have been held to be binding as the agreement violates section 6 (1) of the Labour Act [Chapter:01] (the act) which does not allow employers to require their employees to work more than the maximum hours permitted by law in this case being a maximum of 208 hours.

That the arbitrator gave a wrong interpretation to section 7 (2) (b) of the CBA of the commercial sectors (SI 45/95).

That the Arbitrator failed to appreciate that section 2 (2) of the Collective Bargaining Agreement of the Commercial Sectors SI has a non waiver clause, the workers could not waive their right to being paid for overtime worked.

The works council’s resolution ought to have been registered before it could be binding upon the parties.

The respondent argued in its defence that initially the Enterprise Dog Handers Unit (EDHU) was registered in terms of the Collective Bargaining Agreement for Agriculture Sector Statutory Instrument 323 of 1993 and employees worked 299 hours per month.  Sometime in February 2005, EDHU was moved from the Agriculture Sector and registered with the National Employment Council for the commercial sector which has a 208 hours working month.  An agreement was then entered between the parties in a works council meeting that the employees work a 252 hour month and be compensated by having 9 days off after each 21 days.

The respondent argues that this works council meeting was in terms of section 25A of the Labour Act and the courts have held that works council decisions are binding and such agreements are permitted in terms of section 7 (2) (b) of the relevant SI 45/93.  Finally it was submitted that the employees never complained throughout the years from 2005 when the agreement was entered into and decided to complain only after their contracts had been terminated.  In short the respondent urged the court to find that the works council agreement was binging between the parties.

I have looked at section 7 (1) and (2) of the CBA for the commercial sector SI 45/93.

It reads as follows;

7. (1)	An employer may request, but shall not require, an employee to work overtime, and shall, whenever possible, give 24 hours’ notice to such employee of such request:

Provided that an employee needed to render emergency work or stock-taking shall not decline such request without a reasonable excuse.

(2)	An employee shall –

(a)	be paid in terms of subsection (3) for all hours worked on overtime; or

(b)	by mutual agreement, be allowed time off by the employer during normal working hours, equivalent to ……………….

………….”

I’m unable to agree with the appellants that the arbitrator gave a wrong interpretation to section 7 (2) (b), it clearly provides that an employee and an employer can agree to either pay for overtime in terms of section 2 (a) or by mutual agreement the employee shall be allowed time off by the employer during normal working hours.

This is what transpired.  The employees were working overtime, instead of 208 hours they were working 252 hours.  The employer by mutual agreement was compensating for those extra 44 hours by 9 days.

There has not been any argument that the 9 days were outside normal working hours nor that they were inadequate in terms of that section.  I find that the arbitrator did not give a wrong interpretation to section 7 (2) (b).

The appellants also argued that the arbitrator failed to appreciate section 6 (1) of the Labour Act when he accepted that the works council agreement was a valid one.

The section provides in the relevant part as follows;

6 (1) No employer shall –

…..

require an employee to work more than the maximum hours permitted by law or by agreement made under this Act for such employee; or …

While in terms of the relevant CBA the employees were allowed a maximum of 208 hours per month, it was lawful in terms of that CBA for employees to work extra hours or overtime but be paid for such overtime or be allowed (if the parties agree) to be compensated for that overtime by being allowed time off during normal working hours.

The provisions of section 6 (1) (b) of the Labour Act were thus not violated as the maximum hours agreed were 252 inclusive of overtime and this was in terms of the works council mutual agreement which would allow 9 days off work.

The employees also argued that section 2 (2) of the relevant CBA had a non waiver clause in terms of which the employees could not waive their right to overtime payment.

The employees were not waiving any of their rights in terms of the relevant CBA.

They were agreeing to be compensated for overtime worked by taking 9 days off work every 21 days.  As the arbitrator observed, this was permissible in terms of section 7 of the same CBA which provided that the workers could be paid for overtime worked under 7 (2) (a) or by mutual agreement be allowed time off to compensate for the overtime.

Section 2 (2) of the CBA providing in part as follows;

“No employer or employee may waive any provision of this agreement, …”

As already stated, no provision of the CBA has been demonstrated to have been waived.

Finally the employees argue that the works council agreement ought to have been registered and it was wrong for the arbitrator to accept an unregistered works council resolution.

If there was that requirement, the employees knew that it had not been complied with and yet for several years they continued to accept the same agreement as binding and never once challenged its validity inspite of the fact that they could have raised a grievance in terms of the governing regulations.  It will be noted that the purpose of the Labour Act is to advance social justice in terms of section 2 A (f) by securing the just effective and expeditious resolution of disputes.

The court has to decide what would be just under the circumstances of this case, would it be ordering that the employees benefit twice by getting both time off under section 7 (b) of the CBA and payment under 7 (a) of CBA when the CBA provides for either or.  By their conduct the parties opted to allow time off instead of payment.  The court will enforce that agreement between the parties as doing otherwise would be unjust.

I find therefore that there was no misdirection on the part of the arbitrator and make the following order;

The appeal is dismissed with no order as to costs.