T Bhowa & 30 Others v Chloride Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/450/14
HELD AT HARARE 19TH JUNE 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/H/450/14

HELD AT HARARE 19TH JUNE 2014 			CASE NO LC/H/816/13

& 18TH JULY 2014

In the matter between:-

T BHOWA & 30 OTHERS				Appellants

And

CHLORIDE ZIMBABWE				Respondent

Before The Honourable E Muchawa, Judge

For Appellants		M Chimhuka (Trade Unionist)

For Respondent		N Madya (Legal Practitioner)

MUCHAWA, J:

This is an appeal against a decision made by the National Employment Council of the Battery Manufacturing Industry (hereafter  “NEC”).

The appellants were formerly employed by Fleximail until on or about August 2011 when they were transferred to Chloride Zimbabwe.  Fleximail is a division of Art Corporation, as is Chloride Zimbabwe whose proper citation is Art Corporation Limited t/a Chloride Zimbabwe.

Appellants were moved from one division of the same company to another division.  Noteworthy is that they moved from the paper industry to the battery industry.  They were placed into grades as close as possible to those they had occupied in the paper industry.  At the time of transfer, the appellants’ remuneration was above that in the battery industry.

Up until 2013, the salary increase proposed by the National Employment Council for the Battery Industry were based on achieving the minimum industry salaries but a 4.75% increase was proposed on actual salaries for 2013.

Respondent applied for an exemption from paying the 2013 proposed increase on actual wages of 4.75%  in terms of section 30 of the Collective Bargaining Agreement:  NEC for the Battery Manufacturing Industries.

The National Employment Council Exemptions Committee granted respondent the exemption not to pay the 2013 wage increase of 4.75% on those ex Fleximail employees whose 2012 wages were already above National Employment Council minimums for their respective grades.

This is the decision appealed against.

The grounds of appeal are;

The National Employment Council Exemption Committee erred at law in granting perpetual salary exception.

The exemptions committee misdirected itself in granting exemption with a retrospective effect.

The exemption committee erred at law in failing to hold that the respondent failed/refused to implement the Collective Bargaining Agreement.

The exemption committee erred at law in failing to hold that the respondent should have complied first with the Collective Bargaining Agreement the (sic) apply for exemption.

The exemption committee erred at law in failing to hold that the applicants were transferred in terms of section 16 of the Labour Act as such conditions applicable prior to transfer should be respected.

The exemptions committee erred at law in granting exemption when internal remedies were not exhausted.

The appeal is opposed.  A point in limine was raised that appellants have

no right to appeal to the Labour Court.  I intend to deal with this point first.

Do appellants have a right to appeal to the Labour Court?

The agreed starting point for this inquiry is section 30 of the Collective Bargaining Agreement for the National Employment Council for the Battery Manufacturing Industry S.I. 126/2012 as amended (hereafter referred to as the “CBA”)

That section provides for exemptions.  Parties are given the right to apply in writing for exemptions and the Council, at its discretion, and upon such terms and conditions, may grant such written exemptions.  In considering the application, Council considers the justification advanced for the exemptions.

Section 30 (4) of the Collective Bargaining Agreement gives Council the sole discretion to suspend, vary or withdraw any earlier exemption it may have granted in writing, clearly stating the justifications for same.

Section 30 (6) of the Collective Bargaining Agreement provides

“In the event of a party being aggrieved by the decision of Council, the party may seek recourse by exercising the right as provided for in the Act or by other available legal provisions.”

The next port of call is therefore the Labour Act [Chapter 28:01].  It is respondent’s argument that the Labour Act does not provide for a right of appeal against the decision of Council made in terms of section 30 of the Collective Bargaining Agreement.   Section 92 D of the Labour Act is said to merely deal with appeals not provided for elsewhere but confined to determinations made in terms of an employment code.

I was reminded that the Labour Court is a creature of statute and therefore can only exercise such jurisdiction as specifically provided to it in terms of the Labour Act [Chapter 28:01].  Reference was made to the case of National Railways of Zimbabwe v Zimbabwe Railways Artisans Union and Two Others SC 08/2005 for that assertion.

Further it was argued that appellants should have applied for review instead of appealing as that is the competent procedure in terms of the Labour Act.

The situation was likened to the lack of an appeal procedure in the Labour Court against the decision made by a Minister in respect to a retrenchment in terms of Section 12 C of the Labour Act.

Appellants’ position was that the position advanced by respondent is akin to saying the Exemptions Committee/Council has exclusive power like the Supreme Court.  It was argued that the National Employment Council is a creature of the Labour Act and is therefore governed by the Labour Act whose purpose is to promote justice in the work place.   In their opinion it would be absurd to say one has no recourse as the National Employment Council has refused to hear the appeal.  Further I was told that the Labour Court has inherent jurisdiction in any matters arising from any regulations emanating from the Labour Act and that an appeal lies in terms of section 92 D of the Labour Act.

I wish to start by saying that whereas the National Employment Council is a creature of the Labour Act, so is the Labour Court, which though now established in terms of the Constitution of Zimbabwe, has its powers spelt out in the Labour Act.  I agree with respondent that its powers are as spelt out in the Act.

Appellants are mistaken in arguing that if there is no right of appeal, then there would be no recourse as well as saying the Collective Bargaining Agreement gives the Exemptions Committee exclusive power.  There is a clear right to apply for review in terms of section 89 (d1) of the Act, to this court.

The determination before me is not a determination made in terms of an employment code but one made in terms of a Collective Bargaining Agreement.  Section 92 D clearly does not clothe me with jurisdiction to determine this matter.  An employment code is defined as one registered in terms of  a section 101 of the Act whereas a Collective Bargaining Agreement is dealt with from sections 74 to 82b and is registered in terms of section 79 of the Act.

I find too that the Labour Act is not a court of original jurisdiction like the High Court.  As a creature of statute it can only exercise the jurisdiction squarely set out in the Act.  Any decision or order made outside this jurisdiction is a legal nullity.

This matter is therefore improperly before me.  I believe there is a good reason why the Council/Exemptions Committee is given the sole discretion to suspend, vary or withdraw any exemption it may have granted.  This is because the question whether or not to grant, suspend, vary or withdraw any exemption, is fundamentally a matter of public policy which the committee is best placed to deal with as they belong to the industry in question.  (See Agricultural Labour Bureau & Anor v Zimbabwe Agro – Industry Workers Union 1998 (2) ZLR  196).

In any event the basis upon which a court can normally interfere with the exercise of the committee’s discretion would be to show that the discretion was not properly and judiciously exercised (See Johnsen v AFC 1995 (1) ZLR 65 at p 73;  Agricultural Labour Bureau  & Anor v Zimbabwe Agro – Industry Workers Union supra.)  It would be inappropriate for me to merely substitute my own discretion when the exemptions committee provided clearly set out reasons exempting respondent from paying the 2013 wages increase.  Consideration was given for the special circumstances of this case.  Even on the merits I believe the appeal has no chances of success.  I will however not deal with each ground of appeal as I have already found that the matter is improperly before me.

Consequently the appeal is dismissed with costs.

Wintertons, respondent’s legal practitioners