NEC for Electronics, Communications, Radio, TV Manufacturing and Allied Industry v NEC for Communications and Allied Services & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/329/24
HARARE, 9 JULY 2024
CASE NO LC/H/370/24
07 AUGUST 2014
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 9 JULY 2024

07 AUGUST 2014

JUDGMENT NO LC/H/329/24 CASE NO LC/H/370/24

NEC FOR ELECTRONICS, COMMUNICATIONS,	APPLICANT RADIO, TV MANUFACTURING AND ALLIED

INDUSTRY

NEC FOR COMMUNICATIONS AND ALLIED	1st RESPONDENT SERVICES

REGISTRAR OF LABOUR N.O.	2nd RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant	-Mr R Matsikidze, Attorney

For 1st Respondent	- Ms F. Sibanda, Attorney Ms C. Makura, Attorney

MUSARIRI, J:

Applicant applied to this Court for “determination of extent or description of an undertaking of industry” in terms of Section 46 of the Labour Act Chapter 278:01 hereafter called the Act.  Respondent opposed the application.

The quintessence of applicant’s case is set out in its founding affidavit thus,

“3.3 The Applicant under its Collective Bargaining Agreement SI 247 of 2006 Section 2, its scope of coverage is provided as follows:

The industry in which employers and employees are associated together for the purpose of repairing, servicing, manufacturing, assembling, supplying, installing and providing services related: fixed or mobile communications and allied services, including transmission and infrastructure, computer networks and support products, internet and email services providers, electronic amusement, business equipment, radio and television:

3.4 The Respondent applied for variation of scope of registration to include the interests of “Cellular Communications, Computer Networks, Internet and Email Providers, Phone shops and Public Financial Services in the Communications and Allied Services Sector in Zimbabwe.” The application was notified as General Notice 106 of 2010 on 28 May 2010. The  Applicant objected.

2.5 During the accreditation proceedings, the Respondent removed the following interests from their original application;

Computer Networks

Broadcasting

Installation of cellular networks by independent contractors 4 Internet and Email Service providers

3.6 The Respondent’s scope of coverage is now provided for under section 2 of the Collective Bargaining Agreement: Communications and Allied Services Industry SI 1 of 2012 s follows This collective bargaining agreement shall apply to:

(a) All employers in the communications and allied services industry, ie telecommunications, courier services, phone shops and public financial services within the communications sector.

The Registrar in the accreditation proceedings made it clear that Internet and email service providers were not under the armpit of the Respondent and also the Respondent had agreed to remove from its application for variation of scope as they knew they were covered by Applicant.

The Respondent has been registering and or luring employers engaged in internet and email services such as Powertel Communications (Pvt) Ltd and Liquid Intelligent Technologies, which are covered by the Applicant.

3.12 The Respondent has no right at law to encroach into the Applicant’s scope of coverage

4. The Applicant therefore seeks this honourable court to confirm and determine that:

Respondent is encroaching into the scope of coverage of the applicant.

To order the Respondent to cease registering members of the Applicant who are operating within the internet and email service provision.

To order the Respondent to de-register the aforementioned companies (Liquid Technologies and Powertel Communications (Pvt) Ltd that are currently with it and refer them to their correct NEC, which is the applicant.”

1st Respondent in its heads of argument, countered in the main as follows;

“5.1. Further the interests registered for by the 1st respondent’s Annexure A are Postal Services and Fixed Telecommunications Network. And hence the companies the 1st respondent is registering fall under fixed telecommunications. A fixed telecommunications network, also known as a wired or landline network, refers to a system of infrastructure and technologies that enable the transmission of voice, data, and multimedia communications over physical lines or cables. This then goes to show that its scope of coverage covers the companies which deal with  internet and email service in one way or the other.

5.5 Furthermore, the applicant’s certificate of registration does not reflect the issue of internet and email services providers. The applicant is put to the strictest proof to show that there was a variation of scope after its change of name. The Statutory Instrument cannot be entirely used  as a benchmark of scope of coverage because it can be tailor made to suit what a particular

industry wants. The scope of coverage is also necessary to show the applicant’s scope of

coverage.

5.7 It is therefore clear that the conduct of the 1st Respondent is lawful. If the 1st respondent was acting outside its scope, the Registrar should have raised a red flag and in this case nothing of that sort happened.”

Applicant’s operations are governed by the Collective Bargaining Agreement (Electronic   Communications and Allied Industries) SI 247 of 2006. The CBA specifically extends its coverage to include “internet and email service providers.” It is disingenuous for 1st respondent to argue that a statutory instrument cannot be used as “a benchmark of scope of coverage.” Once a CBA has been incorporated as a statutory instrument (though subsidiary legislation) it becomes the law. The only way it can be impugned is by a proper application in the appropriate court for its nullification. This Court notes and is indeed obliged to give effect to the CBA unless and until it is repeated, nullified or amended.

1st respondent argued that its scope of coverage covers “the companies which deal with internet and email service in one way or the other.” Its operations are governed by the Collective  Bargaining Agreement: Communications and Allied Services Industry SI 01 of 2012. The scope of coverage in section 2(a) does not mention internet and email service providers. It is apposite to note that in 2010, 1st respondent applied to 2nd respondent (Registrar of Labour) for variation of its scope to include internet and email providers. Applicant objected. Then 1st respondent removed internet and email from its application. That tallies with its 2012 CBA which also excludes the 2 services. Therefore, its claim to cover the 2 is ungrounded and unlawful. Lastly whether Liquid Technologies and Powertell Communications are properly registered with 1st respondent cannot be determined without their joinder. In recognition of this point, applicant abandoned paragraph 4 of its draft order which references the 2 companies.

Wherefore it is ordered that

The application in terms of section 46 of the Labour Act (28:01) be and is hereby granted;

The  1st   respondent’s  scope  of  coverage  excludes  internet  and  email  service

providers;

The 1st respondent shall cease to register companies operating within the internet and email service provision sector; and

Each party shall bear its own costs.

J-U-D-G-E