Peterhouse Group of Schools v E Five and Another

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/125/2016
HARARE, 26 JANUARY 2016
CASE NO.
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THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO. LC/H/125/2016

HARARE, 26 JANUARY 2016    		         	CASE NO. LC/H/558/14

AND 4 MARCH 2016

In the matter between:-

PETERHOUSE GROUP OF SCHOOLS				Appellant

And

E. FIVE AND ANOTHER						Respondents

Before Honourable P. Muzofa, Judge

For Appellant		G. Makings	(Legal Practitioner)

For Respondents		Ms Chihombe (ZESSCWU)

MUZOFA, J:

This appeal raises one issue, whether an application for exemption made in terms of Statutory Instrument 102 of 2014, The Collective Bargaining Agreement: Welfare and Educational Institutions, suspends the obligation to pay the promulgated salaries and benefits

The background to this case is not in dispute.  Statutory Instrument 57 of 2013 Collective Bargaining Agreement: Welfare and Educational Institutions was promulgated gazetting the applicable minimum wages for the period 1 May to 31 August 2009.  The appellant had not effected any increments for respondents together with the other employees.  It was not in dispute that the employees were entitled to backpays for that period.  The two respondents’ contracts were terminated.  A dispute arose as to whether they should be paid their backpay in terms of Statutory Instrument 57 of 2013.

Appellant refused to pay the backpay on the basis that it had applied for an exemption.  It was not disputed that the application for exemption was made after the respondent’s contracts had been terminated.  The matter was referred to a Labour Officer and subsequently the parties appeared before an arbitrator.

The arbitrator made a finding in respondent’s favour and ordered appellant to pay the outstanding backpay in the sum of $3 194.75.

The appellant has appealed against the decision.  As indicated before this matter raises one issue on the application for exemption.

According to the appellant the arbitrator erred in that the respondents were entitled to their backpays whereas there was a pending application for exemption.  Secondly it was submitted that the arbitrator erred in finding that the application for exemption was not applicable to the respondents since they had left employment.

In response it was submitted for the respondents that the application for exemption was made after the respondent’s contracts of employment were terminated.  To that extent the application did not affect them.  Respondents also relied on section 13 of the Labour Act [Chapter 28:01] which sets out the wages and benefits upon termination of employment.

Part X of the Act deals with Collective Bargaining Agreements negotiated by Trade Unions and Employers Organizations.  Section 82 deals with the binding nature of a registered collective bargaining agreement and it provides:

“1.	Where a collective bargaining agreement has been registered it shall –

With effect from the date of its publication ... or such other date as may be specified in the agreement, be binding on the parties to the agreement ...

...

Remain binding until –

it is replaced by a substitute agreement, notwithstanding any provision therein contained that it shall expire by lapse of time;

it is terminated by the mutual agreement of the parties thereto.”

In casu parties were in agreement that the collective bargaining agreement was binding.  Appellants did not even attempt to satisfy the provisions of either Section 82 (i) (c) (i) or (ii) of the Act in order to make the agreement not binding.

The appellant failed to even produce the application for exemption for the court to have sight of it.  It remained a bare assertion.  It is the Court’s view that the applicable collective agreement remained extant, setting out the respondent’s salaries.  The appellant was under an obligation to pay.  In the absence of anything suspending the obligation to pay the court’s hands remain restricted.

Appellant is allowed by the law not to apply the agreed terms where there is an exemption order section 5 of the Collective Bargaining Agreement: Welfare and Educational Institutions Statutory Instrument 102 of 2014 provides for exemptions in the following terms.

“The Council may at its sole discretion upon application by an employer registered with Council or employees grant exemption with respect to any of the provisions of this agreement:”

A reading of that section needs no further interpretation.  An application for exemption does not, to my mind suspend the obligation to effect the wage increases, it is only the exemption that suspends the obligation.

The wording of that section shows that Council has the sole discretion which it exercises upon receipt of an application taking into consideration the factors in documents set out in the relevant section.

The appellant cannot rely on an application for exemption to suspend payment to the respondents.  The application process is independent of the respondent’s claim especially considering that the application for exemption was made after the termination of the respondent’s contract.

I am unable to agree with the appellant.  An application for exemption is what says to be.  It goes as far as that.  What suspends an obligation according to a collective bargaining agreement is an order of exemption.  In casu no order of exemption was produced.  Therefore so far the appellant’s obligation cannot be suspended.

I therefore make the following order.

The appeal be and is hereby dismissed.

The appellant is ordered to pay the respondents as follows:

E Five $1 344.28

D Zambezi $1 850.47.

G. Makings, appellant’s legal practitioners