Society for the Prevention of Cruelty to Animals (SPCA) v SPCA Employees

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO LC/H/453/13
HELD AT HARARE 12TH SEPTEMBER 2013
CASE NO
JUDGEMENT NO LC/H/453/13
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGEMENT NO LC/H/453/13

HELD AT HARARE 12TH SEPTEMBER 2013	      CASE NO LC/H/03/13

AND 11TH OCTOBER 2013

SOCIETY FOR THE PREVENTION				Appellant

CRUELTY TO ANIMALS (SPCA)

SPCA EMPLOYEES						Respondents

Before The Honourable G Musariri, Judge

For Appellant			Mr M Chihuri

For Respondent			Ms S Chihombe

MUSARIRI, G:

On 23rd October 2012 the Honourable Y Malama made an arbitration award.  In terms thereof she ordered Appellant to pay salary shortfalls for Respondents amounting to a total sum of US$10 408.51.  Appellant then appealed to this Court against the award.

A bit of the background to the case begs recitation.  Applicant’s operations fall under the purview of the NEC Welfare & Educational Institutions.  In July 2011 the NEC set increases for the employees within their sectors.  The increases were back-dated to 1st January 2011.  Appellant was comfortable with the increases as from July going forward.  However it was unhappy with the

back-dated portion of the increases.  On 25th September 2011 it applied to the NEC for an exemption from the retroactive portion of the increases.  The application remains undetermined up to date.  Respondentonourable Honourable G Mus, naturally, filed a complaint of an unfair labour practice in respect of the unpaid portion of the wage increases.  In due course the matter came before the arbitrator who then made the award in favour of Respondents.

Appellant’s case is captured in its Heads of Argument as follows,

“(1)	In terms of section 5 of the Collective Bargaining Agreement for the Welfare & Educational Institutions there is a provision for an employer to seek from the NEC an exemption from any of the clauses of the Collective Bargaining Agreement.  In pursuance of this right the SPCA applied to the NEC for an exemption from the payment of back pay for the period January 2011 to July 2011 based on their inability to fund this back payment without putting their operations at risk.  This application was made on the 25th of September 2012 and since that time various on going requests for further information have been made to the SPCA which they have done their best to comply with but as yet the application has not been heard.”

The arbitrator disposed of this argument thus,

“The   application for exemption which they made has not been granted implying that they are under obligation to comply with the minimum wages.  It is critical to note that the collective bargaining agreements are binding on both parties and that failure to comply is unfair labour practice.  It  ismy humble observation that the employer is in breach of the provisions of the law.”

I respectfully agree with the arbitrator. She was not sitting to hear the application for exemption.  She sat to determine the rights of the Respondents who complained of wrongful non-payment of wage shortfalls.  It is common cause that the shortfalls have not been paid.  Thus the arbitrator had no option but to order payment of the shortfalls.  That the NEC has not determined Appellant’s application for exemption is another matter.  Furthermore, as pointed out by Respondents, the situation has since changed to detriment of Appellant’s position.   Respondents referred to the publication of the Collective Bargaining Agreement Welfare and Educational Institutions S.I. 14/12 (hereafter called the CBA) on 10th February 2012. The CBA formalised the retroactive increases with effect from 1st January 2011.  It does not provide for exemption of any employer from compliance.

The CBA overrides any prior agreement inconsistent with its terms.  Thus the arbitrator rightly found that Appellant should pay the shortfalls.

Wherefore it is ordered,

That the appeal is hereby dismissed.

G MUSARIRI

JUDGE