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Daniel Nemukuyu Senior Reporter
A case in which workers who do not fall under the security and essential services category are seeking a declaration legalising industrial action without giving notice to the employer has been referred to the Constitutional Court.

Labour lawyer, Mr Caleb Mucheche of Matsikidze and Mucheche Legal Practitioners, raised the constitutional issues in a case in which 1 750 Mashonaland Tobacco workers are defending their action to embark on a strike over unpaid housing and transport allowances without giving 14 days notice as required by the Labour Act.

Mr Mucheche argued before the Labour Court that the new Constitution gives the workers a right to strike without notice.

It is the workers’ argument that Section 104 of the Labour Act, which makes it a requirement for the workers to issue out a 14-day notice for strike, was unconstitutional.

In terms of Section 65 (3) of the new Constitution, the workers said, employees were given unlimited freedom to participate in collective job action.

The section reads: “Except for members of the security services, every employee has the right to participate in a collective job action, including the right to strike, sit-in, withdraw their labour and to take other similar concerted action, but a law may restrict to exercise this right in order to maintain essential services.”

Mr Mucheche argued the business of Mashonaland Tobacco did not fall under essential or security services and that Section 104 of the Labour Act was not applicable under the circumstances.

After hearing the argument, Labour Court judges Emilia Muchawa and Fatima Maxwell, referred the case to the Constitutional Court for determination of the constitutional issues.

“The respondent (workers’ lawyer) raises the important question of whether the procedural and substantive constraints on the right to strike introduced in the Labour Act, are contrary to the Constitutional right in Section 65(3).

“In light of the new constitutional dispensation, that is an important question best decided by the Constitutional Court.

“This is why I am acceding to respondent’s request to refer the issue to the Constitutional Court for determination in terms of Section 175 (4) of the Constitution.

“The question is hereby referred to the Constitutional Court for determination . . .” ruled the court.

It was argued that the right to strike by workers outside the security and essential services had no limitations.

Workers argued that the Constitution was superior to all other enactments including the Labour Act, hence it takes precedence.

“It is humbly submitted that the strike is lawful as it is provided for under the Constitution of Zimbabwe under Section 65 (3).

“The position of the law is clear that the Constitution is the supreme law and that it takes precedence over any other enactment inconsistent with it,” read the workers’ heads of argument.

Mr Mucheche said as long as the Labour Act was not synchronised with the new Constitution,Section 104 of the Labour Act remains invalid

Mashonaland Tobacco argued that the workers downed tools on October 3 this year over unpaid transport and housing allowances without giving notice.

They embarked on a strike after the parties failed to agree on the payment of the allowances, resulting in the employer applying for a show-cause order to the Minister of Public Service, Labour and Social Welfare.

The minister stopped the strike and referred the case to the Labour Court for the workers to justify the legality of their action.

According to the employer, Section 65 (3) of the Constitution does not nullify the procedure provided for in the Labour Act.

The company said the 14-day notice for strike was not given and secret ballot was not conducted.

It was the employer’s argument that there was no attempt by the workers to settle the matter through conciliation.