National Employment Council for the Catering Industry of Zimbabwe v Mucheni (Private) Limited t/a Cerruti Lodges & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/276/2014
HARARE, 15 OCTOBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/276/2014

HARARE, 15 OCTOBER 2013    		      CASE NO. LC/ORD/H/18/13

AND 23rd MAY, 2014

In the matter between:-

NATIONAL EMPLOYMENT COUNCIL FOR THE			Applicant

CATERING INDUSTRY OF ZIMBABWE

And

MUCHENI (PRIVATE) LIMITED					1st Respondent

t/a CERRUTI LODGES

And

NATIONAL EMPLOYMENT COUNCIL FOR THE		          2nd Respondent

COMMERCIAL SECTORS OF ZIMBABWE

Before Honourables Makamure     J

Kabasa          J

Manyangadze J

For Applicant 		-	Mr. G. Machingambi (Legal Practitioner)

For 1st  Respondent	-	Mr. A. Cerruti (Director)

For 2nd Respondent	-	No appearance

MANYANGADZE J:

This is an application in terms of Section 46 (a) of the Labour Act, [Chapter 28:01], wherein it is sought that the Court determines under which employment council the business operations of the first respondent fall.

The Applicant is an Employment Council registered in terms of the Labour Act.  It is responsible for regulating the Catering Industry in terms of the Collective Bargaining Agreement: Catering Industry (General Conditions) Statutory Instrument 167 of 1991.

The First Respondent is a business incorporated under the laws of Zimbabwe as Mucheni (Private) Limited.  It trades under the name Cerruti Lodges and operates the business of self – catering lodges.

The Second Respondent is an Employment Council registered under the Labour Act, and is responsible for businesses and industries falling under the commercial sector.

The dispute between the parties is whether or not the First Respondent falls under the catering industry, as defined in the applicable Collective Bargaining Agreement.  The First Respondent is currently registered with the Second Respondent.  It is the Applicant’s contention that First Respondent should be registered with it and not the Second Respondent.

The basis of Applicant’s contention, as submitted in its heads of argument, is that First Respondent’s business falls within the scope and definition of catering industry in the Collective Bargaining Agreement, S.I. 167 of 1991.

Once it is established that First Respondent falls within the scope of S.I. 167 of 1991, it has no option but to be registered under the catering industry.  The provisions of S.I. 167 of 1991 are mandatory, and are applicable to all employers who fall under the catering industry, as defined in the statutory instrument.

The Applicant argues that the determining factor is the statutory definition, and not other considerations such as the ordinary dictionary meaning of catering, or the core business of the First Respondent.  In this regard, Applicant cites clause 1 (1) of S.I. 167 of 1992, which provides that its provisions

“shall be observed by all employers falling within the terms of the definition of catering industry’….”

Applicant further contends that the definition of catering industry includes the provision of accommodation.  Applicant is relying on clause 3 of S.I. 167 which classifies lodges as a hotel or boarding house if it provides accommodation to more than five members of the public.

On the other hand, First Respondent contends that it should be registered under the NEC for the Commercial Sector.  The basis of its contention is that the purpose of any Collective Bargaining Agreement is to govern the core business of the industries falling under it.  Thus, the NEC for the catering industry should be concerned with industries whose core business is the provision of catering services.  It is such industries which should register with the Applicant.  The First Respondent does not provide that sort of service, and should therefore not be classified as a catering industry.  First Respondent argues that the definition of catering industry should be considered within the broader context of the purpose of the industry intended to be governed.

This case largely, if not solely, turns on an interpretation of the applicable legislation.  One must turn to the definition of catering industry, to determine whether or not the First Respondent falls within its ambit.

The Applicant has basically urged a strict interpretation of the legislation.  That legislation must therefore be carefully looked at, to establish whether it accords with the interpretation urged by the Applicant.

The relevant provisions are in section 3 of the Collective Bargaining Agreement: Catering Industry (General Conditions) Statutory Instrument 167 of 1991.  The section is quite extensive.  It reads:

“Catering industry” “or industry” means, without in any way limiting the ordinary meaning of the expression, the industry in which employers and employees are associated together for the purpose of:-

Carrying on an activity on any premises other than premises operated as a club or beer hall by an employer in the Mining Industry for the benefit of his employees and which are situated on a mining location or special grant as defined in the Mines and Minerals Act [Chapter 165], for which an employer is required to hold –

One or more of the following licences in terms of the Liquor Act (No. 9 of 1984): Airport Liquor Licence, Bar Liquor licence, Beer Hall Liquor Licence, Hotel Liquor Licence, Passenger Vessel Liquor Licence, Night Club Liquor Licence, Park and Game Liquor Licence, Theatre Club  Licence, Camp and Caravan Liquor Licence, Restaurant (Ordinary) Liquor Licence, Club Liquor Licence, Restaurant (Special) Liquor Licence;

A permit in terms of section 85 of the Liquor Act (No. 9 of 1984) in respect of the operation of any canteen or mess of the Air force, the Army, the Police or the Prisons.

A licence in terms of the Casino Act [Chapter 77]

Providing accommodation and or refreshments and or meals and or take away foods in hotels, boarding houses, restaurant, cafes, takeaway establishments, canteens and messes not required to be licensed in terms of the Liquor Act No. 9 of the 1984) or the Casino Act [Chapter 77] but does not include the undertakings of the National Railways of Zimbabwe.

For the purpose of paragraph (a) of this definition-

“hotels and boarding houses” means premises not required to be licenced in terms of the Liquor Act (No. 9 of the 1984) or the Casino Act [Chapter77], wherein provision is made for sleeping accommodation for not fewer than five persons (excluding members of the family and employees of the employer who occupies the premises; ……………….”

The extensive definition has (3) three paragraphs, each of which needs to be examined to determine whether the Applicant is covered within its terms.

Paragraph (a) covers premises in respect of which certain licences and permits are required.  These are specifically mentioned in sub-paragraphs (i), (ii) and (iii).  They include, inter alia, Bar Liquor licence, Beer Hall Liquor licence, Hotel Liquor licence, and Restaurant Liquor Licence.

So if an employer operates a business for which any of the listed licences or permits are required, such business falls under the catering industry.  The Applicant would regulate the business.

The First Respondent is not required to obtain any of the licences mentioned in paragraph (a), sub-paragraphs (i) to (iii).  It therefore does not fall within the ambit of paragraph (a).

Paragraph (b) covers premises in respect of which the licences mentioned in paragraph (a) are not required.  These include hotels, boarding houses, restaurants, cafes, takeaway establishments, canteens and messes.

The premises mentioned in paragraph (b) must be for the purpose of;

“Providing accommodation and or refreshments and or meals and or take away foods.”

Paragraph (c) goes on to define “hotels and boarding houses”.

They include premises on which “provision is made for sleeping accommodation for not fewer than five persons (excluding members of the family and employees of the employer who occupies the premises”

The self-catering lodges that the First Respondent operates clearly provide accommodation for more than (5) five persons.  It is a complex of (5) five double story lodges with several bedrooms.

This is where the problem with the interpretation of the statutory provisions arises.  In particular, the problem arises from the use of both the conjunctive and disjunctive words “and” “or” in paragraph (b) of the definition section. If there had been only the use of the conjunctive “and”, it would clearly mean the accommodation facility must also provide the catering services mentioned i.e. refreshments, meals, take away foods.  Since the First Respondent does not provide these, but only accommodation, it would obviously have been excluded.

With the use of the disjunctive “or”, accommodation and catering are then delinked.  It means the provision of accommodation as a stand-alone facility, or catering as a stand-alone facility, brings the business operation within the ambit of the statutory provision.  This is the meaning that is clearly coming out of this paragraph, when the disjunctive “or” is used.

The First Respondent is urging a broader, purposive interpretation of the statutory instrument.  Its contention is that it is the core business  that is decisive.  Its core business is not catering but tourism, which it facilitates through the provision of accommodation to those who visit Kariba on fishing expeditions.

One must be wary of importing words into a statute, which words do not exist in the statute itself.  Even the intended purpose of the statute must be read from the statute itself.  This is the situation the court looked at in KDB Holdings (Pvt) Ltd v Medicines Control Authority of Zimbabwe SC 25/11.

The Court considered the question of whether the Medicines Control Authority had power to order the destruction of faulty gloves which KDB had imported.  After looking at the wording of the statute concerned, the Court concluded that it provided no such power.  There was no basis for even inferring that the Authority could exercise this power.  The intention of the legislature was clear from a reading of the statutory provisions. OMERJEE A J.A. (as he then was) stated:

“A reading of this provision reveals that it was never the intention of the legislature to confer upon the respondent the power to order destruction.  The courts generally try to give effect to legislative intention.  The regulations simply empower the respondent to prescribe a procedure for the withdrawal of the gloves from the market for the protection of the public.  The court aquo misinterpreted the provision by holding that the power to destroy faulty gloves could be inferred from the regulations”.

The power to order destruction ought not to be lightly inferred from the regulations.  This principle was affirmed by BEADLE CJ in Van Heerden v Queen’s Hotel (Pty) Ltd 1973 (2) SA 14 (RAD) at p. 26 where he said:

“Courts are extremely loath to read into an Act words which are not there.  They will only do so, when not to do so, will lead to an absurdity so glaring, that it could never have been contemplated by the legislature.”

The learned judge then concluded that;

“It is clear from the language used that the purpose of this provision is to provide measures to regulate and preserve the existence of the gloves and not their destruction.”

The language of the statute was therefore decisive.

A case with a subject matter similar to the present one is that of Zimbabwe Banking and Allied Workers Union & Others v Beverly Building Society & Others, HH 63/07.  The question before PATEL J, (as he then was) among other issues, was whether a building society formed part of the banking undertaking.

In order to answer this question, the judge looked at the Collective Bargaining Agreements for the banking sector and the commercial sector, which are the statutory instruments regulating the sectors.

In terms of section 2 (1) of the Collective Bargaining Agreement: Commercial Sectors, Statutory Instrument 45 of 1993, the Agreement applies to all employers and employees in the commercial sectors of Zimbabwe.  Section 3, as read with the First Schedule thereof, includes “building societies”.  It also includes “financial institutions”, but specifically excludes commercial banks, merchant banks and discount houses.

The Collective Bargaining Agreement: Banking Undertaking, Statutory Instrument 273 of 2000, applies to the banking sector.  Section 3 thereof defines banking undertaking as;

“The business of a registered commercial bank, registered accepting house, or a registered discount house, financial institutions …. where such business is carried out by a registered bank itself or by a subsidiary of such bank.”

After looking at the scope of application of the two Collective Bargaining Agreements, as shown above, the Judge concluded:

“Turning to the specific sphere of labour relations, it is clear that the Commercial Sectors Agreement undoubtedly applies to all building societies.  Its scope of coverage also extends to other financial institutions, but with the express exclusion of commercial banks, merchant banks and discount houses.  Conversely, the Banking Undertaking Agreement applies to the business of a commercial bank, merchant bank and discount house as well as the business of a financial institution, but only to the extent that such later business is carried out by a registered bank itself or by its subsidiary.  In my view, the distinction between the banking sector on the one hand and the building society sector on the other is explicitly and rigidly maintained by the two separate regimes embodied in SI 45 of 1993 and SI 273 of 2000, respectively, insofar as concerns the regulation of labour relations in these two sectors.  I therefore conclude that a building society, stricto sensu, is governed exclusively by the Commercial Sectors Agreement and falls outside the ambit of the Banking Undertaking Agreement.  It follows that BBS itself is not subject to or bound by the provisions of the latter Agreement.”

It is clear the Court satisfied itself that S.I. 45 of 1993 included building societies and excluded commercial banks.  It also satisfied itself that S.I. 273 of 2000 includes commercial banks and other financial institutions but does not include building societies. It is only after examining the clear provisions of the statutes, especially the scope and definition sections, that the court concluded that Beverly Building Society was not subject to or bound by the provisions of S.I. 273 of 2000, which regulated the banking industry.

My reading and understanding of that case is that the court found the provisions of the two statutes clear and unambiguous, on the question as to which employment council Beverly Building Society belonged.

In my view, there should be the same approach in casu.  It seems to me, the wording of section 3, which defines the scope and application of the statute, is clear and unambiguous.  As already indicated, the use of the disjunctive “or” in paragraph (b) as read with the definition of hotels and boarding houses in paragraph (c) has the effect of including the First Respondent within the ambit of the Collective Bargaining Agreement.

The emphasis by the First Respondent, throughout the proceedings, has been that the provision of catering services is not its core business, and it should therefore be excluded from the application of S.I. 167 of 1991, which regulates the Catering Industry.  This argument, though appealing, cannot be sustained in the light of the provisions looked at.  The court can only uphold it at the risk of disregarding the clear provisions of the Statutory Instrument.  If players in the industry affected are particularly concerned about the provisions, they may consider pushing for amendments through appropriate fora. For as long as the provisions exist in their present form, they apply to them.

There are two other issues the First Respondent raised, which need to be disposed of.

First Respondent is claiming an amount of US$790,00, as damages, emanating from its travelling expenses to  Kariba to attend a criminal trial.  The First Respondent was arrested, at the instance of the Applicant, on allegations of contravening section 82 of the Labour Act.  It was acquitted.

Although First Respondent has not specifically said so, what it is claiming is in the nature of damages for unlawful arrest and prosecution.  This court has no jurisdiction to entertain such a claim.  The Court’s powers and functions, as circumscribed by section 89 of the Labour Act, do not include the determination of the sort of damages sought by the First respondent.  This is a claim the First Respondent should file in the civil section of the Magistrate’s Court, if it feels it is entitled to such damages.

The other issue First Respondent has raised is that it is of the view that it belongs to the Tourism Industry, and should be governed by the Collective Bargaining Agreement for the Tourism Industry.  In this regard it produced an Operator’s Licence granted to it in terms of the Tourism Act, [Chapter 14:20], and a Certificate of Registration as a Designated Tourist Facility, issued by the Zimbabwe Tourism Authority. Both the licence and certificate of registration are valid up to the first of June 2014.

In view of this, it seems neither the NEC Catering nor the NEC Commercial are appropriate regulatory authorities for the First Respondent, whose operations are fundamentally tourist.  The predicament faced by the First Respondent however, as pointed out  at the time of the hearing, was that the Collective Bargaining for the Tourism Industry, had not yet been promulgated.  It was, at the time of the proceedings, not yet operational.  If and when the Collective Bargaining Agreement becomes operational, it is open to the First Respondent to seek registration there under.

The First Respondent wanted the NEC for Tourism to be joined as a party to these proceedings.  The court cannot properly order such joinder where no application has been formally brought before it for the joinder, in terms of Rule 27 (2) (3) of the Labour Court Rules.  It is up to the interested parties to formally bring the application for determination by the court.

As matters currently stand, the operative Collective Bargaining Agreement is the one for the Catering Industry, as defined in Section 3 of S.I. 167 of 1991.  In the result;

1.	It is determined, in terms of Section 46 (a) of the Labour Act [Chapter 28:01], that the First Respondent falls under the Collective Bargaining Agreement for the Catering Industry, Statutory Instrument 167 of 1991.

2. 	Each party shall bear its own costs.

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MANYANGADZE J

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MAKAMURE J, I agree

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KABASA J, I agree