Godfrey Chapeta & 11 Others v Enterprise Dog Handler Unit

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/172/2016
HARARE 4 MARCH 2016
CASE NO. LC/H/06/13
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/172/2016

HARARE 4 MARCH 2016				       CASE NO. LC/H/06/13

AND 18 MARCH 2016

GODFREY CHAPETA & 11 OTHERS					Appellants

ENTERPRISE DOG HANDLER UNIT					Respondent

Before The Honourable G. Musariri, Judge:

For Appellants 		Ms M. Mukucha, Unionist

For Respondent		Mr T. Tanyanyiwa, Attorney

MUSARIRI, J:

On 13th December 2012 at Harare, Arbitrator D. Mudzengi issued an arbitration award.  In terms thereof he dismissed Appellants’ complaint against Respondent for failure to pay them for overtime worked.  Appellants then appealed to this Court against the award.  Respondent opposed the appeal.

Working hours and payment therefor in the sector Respondent operates in are governed by a CBA called Collective Bargaining Agreement: Commercial Sectors S.I. 45/93.  It is common cause that Appellants worked more hours than the stipulated hours.  However Respondent argued that it compensated for the overtime by giving Appellants 9 days-off every month.  This was per minutes of a Works Council (WC) meeting held on 2nd February 2005.  A copy of the minutes is filed of record.  The relevant portion reads as follows,

“3. …

It was unanimously resolved that the Enterprise Dog Handler Unit be registered with the NEC Commercial and that by virtue of this Resolution authority be granted for Dog Handlers to work 21 days (12 hour shifts) followed by 9 days off-duty.”

Appellants argued that despite the WC agreement they were entitled to payment for the overtime.  They further argued that the parties could not waive application of provisions in the CBA.  They relied on section 2 (2) of the CBA which provides that,

“No employer or employee may waive any provision of this agreement, whether or not the said provision creates a benefit to or an obligation on the employer or employee concerned.  …”

On the other hand, Respondent relied on section 7 (2) of the CBA which reads thus,

“(2) An employee shall –

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

by mutual agreement, be allowed time off by the employer during normal working hours, equivalent to – “

(The underlining is for emphasis.)

In other words the employer can either pay for overtime in cash or by giving increased time-off for employee/s.  In casu the parties entered a mutual agreement whereby overtime was paid for by increased time-off.  That was permitted by the CBA.  Therefore there is no question of waiving any provision of the CBA.  On that basis, Appellants’ appeal lacks merit and needs be dismissed.

Wherefore it is ordered that,

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G.  MUSARIRI

J-U-D-G-E.