Mashonaland Tobacco Company v Workers Committee Chairman (P Svinurai) and 1750 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/756/2014
HARARE, 20 OCTOBER 2014
CASE NO. (value missing)
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/756/2014

HARARE, 20 OCTOBER 2014	             	   CASE NO. LC/APP/H/754/14

AND 07 NOVEMBER 2014

In the matter between:-

MASHONALAND TOBACCO COMPANY			Applicant

And

WORKERS COMMITTEE CHAIRMAN (P SVINURAI)	Respondents

AND 1750 OTHERS

Before Honourables E. Muchawa, J

F.C. Maxwell, J

For Applicant		Mr. G. Makings (Legal Practitioner)

For Respondents		Mr. C. Mucheche (Legal Practitioner)

MUCHAWA, J:

On the 22nd October 2014, this Court made a disposal order after hearing parties on the return day of a show cause order issued by the Minister.

In terms of the order made, the strike by respondents was declared unlawful and terminated forthwith.  Applicant was discharged from the liability to pay all or part of the wages or benefits due to all those engaged in the unlawful strike.  Further, applicant was allowed to take disciplinary action, in terms of the law against specified employees who participated in the unlawful strike.

It is common cause that the respondents engaged in a collective job action on the 3rd of October 2014 to date, despite the Minister’s show cause order which called the strike off immediately or in any event within 24 hours.

At the hearing we dismissed the point in limine raised by respondents which challenged the validity of the show cause order by questioning whether it was indeed signed by the Minister or was a mere document by one “Murenje”.  This was because respondents did not substantiate their claims and discharge the onus of proving their allegations.  In our opinion, the point in limine was a calculated move to delay the consideration of the matter at hand.

We reserved our reasons for the disposal order made and a request for referral to the Constitutional Court.  These are they.

The applicant’s position is that the strike action is unlawful as the procedures laid down in Section 104 of the Labour Act [Chapter 28:01] were not followed.  In particular, it is alleged that no notice of the strike was given, no secret ballot was undertaken and no attempt was done to settle the matter through conciliation.  Consequently, there was no certificate of no settlement issued.

Respondents argue that the strike action is lawful due to section 65 (3) of the Constitution of Zimbabwe.  This section provides as follows;

“Except for members of security services, every employee has the right to participate in collective job action, including the right to strike, sit in …... but a law may restrict the exercise of this right in order to maintain essential services.”

This section is said to give employees an unfettered right to strike which is only limited in respect to essential services.  Respondents are said not to fail into essential services.

Reference was also made to section 2 (1) of the Constitution of Zimbabwe which places the Constitution as the Supreme law of Zimbabwe and invalidates any law, practice, custom or conduct inconsistent with it.

Section 104 (2) and (3) of the Labour Act which lays out the procedures to be followed in resorting to a collective job action was argued to be inconsistent with the Constitution as it was said to place restrictions on the right to strike by requiring, among other things some of the following;

the giving of fourteen days notice.

an attempt at conciliation.

voting by secret ballot.

the restriction in 104 (1) regarding strikes only in respect to disputes of interest.

The invalidity is said to extend to the Labour (Settlement of Disputes) Regulations, 2003 Statutory Instrument 217 of 2003.

It was further argued that before the harmonization of the Constitution of Zimbabwe and the Labour Act, the Constitution reigns Supreme.  As the Constitution has not extended the limitations to include those in the Labour Act, they are said to be invalid in line with the maxim “expressio unius est exclusio alterius”.  (See Simbarashe v Zimbabwe Electoral Commission and Anor HH 45/08)

In interpreting this I was urged to consider that the Constitution is the latter enactment in 2013 whereas the Labour Act is a former enactment and that there is implied repeal of the Labour Act’s inconsistent provisions.  (See Tamanikwa and ORS v Zimbabwe Manpower Development Fund SC 33/14).

During this window period before the Labour Act is harmonized with the Constitution, I was urged to find section 104 as ultra vires the Constitution and set aside the show cause order.

The approach the court was urged to take in respect to the justiciable rights is to give a purposive interpretation which gives full effect to the rights and freedoms.  Reference was made to several authorities from various jurisdictions in this respect (See Ex-Parte Attorney General: In re Corporal Punishment by Organs of State 1991 NR 189, James v Commonwealth of Australia [1936] AC 578, Smith v Attorney General, Bophuthatswana 1984 (1) SA 196 and Attorney General for South Wales Brewery Employees Union of New South Wales v Brewery Employees Union of New South Wales (1908) 6 C.L.R 469 at 661-612).  The local case of Smyth v Ushewokunze and Anor 1997 (2) ZLR 544 (S) is further authority for the proposition not to strangulate the right that is being protected but to give a purposive interpretation.

Applicant counter argued by referring the Court to section 104 (1) of the Labour Act.  It reads;

“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.”

It was contended that there is no inconsistence or conflict between this section and section 65 (3) of the Constitution as both recognize the right to resort to collective job action.  The Labour Act is said to proceed to deal with the procedure.  The alleged limitations arising from such procedure are said to be in line with section 86 of the Constitution which sets out that the fundamental rights and freedoms must be exercised reasonably and with due regard for the rights and freedoms of other persons.  In the context of the workplace, it was argued that such limitations are fair, reasonable, necessary and justifiable.

I agree with applicant’s argument.  More than one thousand people are on strike, crippling the operations of the applicant who is an important player in the economy.  The dispute between the parties relates to a housing and transport allowance.  Applicant alleges that this is already covered under the relevant collective bargaining agreement.

I do not think for a moment that respondent’s argument is frivolous and vexatious.  He raises the important question of whether the procedural and substantive constraints on the right to strike introduced in the Labour Act, are contrary to the Constitutional right in section 65 (3).  In the light of the new constitutional dispensation, that is an important question best decided by the Constitutional Court.  This is why I am acceding to respondent’s request to refer the issue to the Constitutional Court for determination in terms of section 175 (4) of the Constitution.

Consequently the following order is made;

“The following question be and is hereby referred to the Constitutional Court for determination;

“Is the right to strike as provided for in section 65 (3) of the Constitution subject to restrictions under section 104 of the Labour Act [Chapter 28:01]

There is no order as to costs.

………………………………………

E MUCHAWA J

……………………………………… I agree

MAXWELL J

G. Makings, Applicant’s legal practitioners

MATSIKIDZE & MUCHECHE, Respondents’ legal practitioners