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Matthias Ruziwa and Alyson Martens
On March 5th 2015, The Herald reported that the High Court of Zimbabwe had made a ruling that companies are not obliged to register or pay levies to National Employment Councils, a legal development that the senior court reporter said is likely to leave the National Employment Councils without money to fund their operations.

In this article, the writers will analyse what National Employment Councils are all about, how they came into being, what their purpose is and whether or not National Employment Councils are still important in the Zimbabwean industrial relations system.

In Zimbabwe, the provision for National Employment Councils has been there since 1980. National Employment Councils, once known as Industrial Councils, have been in existence since 1934 in some cases they were named Bargaining Councils.

In simple terms, National Employment Councils are representative bodies of employer and employee organisations. The National Employment Council is ordinarily made up of structures namely: Council, the Executive Committee, Negotiating Committee and a Local Joint Committee.

However, certain Collective Bargaining Agreements for specific sectors have developed structures that include Exemptions Committees, Job Evaluation Committees, etc. Key to these structures are Designated Agents (DA) who may be conciliators and arbitrators responsible for resolving disputes in their particular industry in terms of provisions envisaged in Sections 63 and 98 of the Labour Act (Cap 28:01).

During the 1980s, the industrial relations system in Zimbabwe envisaged Employment Boards, which were under the supervision of Minister of Public Service, Labour and Social Welfare. During this period, the minister by way Statutory Instruments, used to gazette minimum wage notices in respect of any class of employees in any class or industry and would prohibit the payment of any wage less than such specified minimum wages, benefits or increments to such class of employees. This later changed during the 1990s when Employment Boards were turned into Employment Councils, the main reason being that the Ministry of Labour deemed it expedient to devolve powers on collective bargaining to specific constituencies. Ideally, the main objective was to empower Zimbabwean employer organisations and trade unions to manage their own affairs, which brought about consistency between the Zimbabwe Labour Act and International Labour Conventions (ILO), which Zimbabwe ratified. To date, there are 48 National Employment Councils in Zimbabwe. Section 65 (5) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 stipulates that: “Except for members of the security services, every employee, employer, trade union and employee or employer’s organisation has the right to engage in Collective Bargaining”.

The scope of collective bargaining agreements negotiated by registered trade unions, employers or registered federations is specified in Section 74 of the Labour Act, Chapter 28:01. In most cases, Collective Bargaining Agreements which are administered by National Employment Councils make provision for the following:

Rates of remuneration and minimum wages for different grades and types of occupations

Benefits for employees

Deductions which an employer may make from employees’ wages, including deductions for membership fees and union dues, and deductions which an employer may be required or permitted by law or by order of any competent court to make

Methods of calculating, or factors for adjusting rates of pay, and the dates, times and modes of payment

All issues pertaining to overtime, piece-work, periods of vacation and vacation pay and constraints thereon

The demarcation of the appropriate categories and classes of employment and their respective functions

The conditions of employment for apprentices

The number of hours of work and the times of work with respect to all or some of the employees

The requirements of occupational safety

The maintenance of, and access by the parties to, records of employment and pay

Procedure for dealing with disputes within an undertaking or industry

Housing and transport facilities or in their absence, an allowance for the same

Measures to combat workplace violence and handling its aftermath.

The Labour Act Chapter 28:01 makes provision for Voluntary Employment Councils and Statutory Employment Councils under Sections 56 and 57 respectively. In the former, any employer, registered employer’s organisation or federation of such organisations and registered trade union or federation of such trade unions may at any time form an employment council by signing a constitution agreed to by them for the governance of the council, and by applying for its registration in terms of Section 59 of the Act. Under the latter, the Minister of Public Service, Labour and Social Welfare may whenever the national interest so demands, request any registered employers’ organisation or federation of such organisations and registered trade union to form an employment council and apply for its registration in terms of Section 59 of the Labour Act.

Once an employment council is formed, the law requires the employment council to have a constitution which provides for among other things, a statement of the aims and objectives of the council and that the registered trade union concerned or federation of such trade unions to appoint 50 percent of the members of the employment council and the employers’ organisation concerned or federation of such organisations to appoint the remaining members. The constitution should also provide for dues which are payable to the employment council thereof and the administration of the funds of the employment council. Section 62 of the Labour Act Chapter 28:01 states the duties of the employment councils as follows:

a. Assist its members in the conclusion of collective bargaining agreements or otherwise prevent disputes from arising, or settle disputes that have arisen or may arise between employers and employers’ organisations on one hand or employees, workers committees or trade unions on the other and shall take such steps as it may concede expedient to bring about regulation or settlement of matters of mutual interest to such persons or bodies.

b. Take such steps as it may consider expedient to ensure that any collective bargaining and any regulations pertaining to an undertaking or industry with which it is concerned is being observed.

Lessons from the recent High

Court Judgment

In the High Court judgment HH211/ 2015, delivered in favour of NetOne Cellular (Pvt) Ltd, it was stated that compulsory collection of funds from employers in the favour of National Employment Councils was unconstitutional. The Judge ruled that forcing employers to register with National Employment Councils was a violation of their right to freedom of association as enshrined in the Constitution of Zimbabwe. “It is declared as follows: The imposition upon the applicant (NetOne) of the requirement to register with the second respondent ((NEC for Communication and Allied Services) is a violation of the applicant’s constitutional right to freedom of association.

“The Collective Bargaining Agreement for the Communications and Allied Services industry is in violation of Section 21 of the Constitution to the extent that they provide for the infringements declared in paragraphs of this order. It is ordered that Sections 2(a), 33 and 36 of the Collective Bargaining Agreement for the Communications and Allied Services industry (SI 1 of 2012) are struck down. There will be no order as to costs” ruled Justice Makoni.

National Employment Council for Communications and Allied Services also argued that the obligation to pay levies was not a violation of the Constitution but arose in terms of the law. But NetOne argued that it decided not to be part of the National Employment Council and the Collective Bargaining Agreement compelling the company to pay dues and to register with the National Employment Council as it was unconstitutional. It is important to note here that parties went to court in February 2013 and the matter took two years to be concluded from the first day it was argued on February 28, 2013. This judgement was also based on the old Constitution. In our opinion the following are some of the lessons from the High Court Judgement;

It is more likely that stakeholders within the industrial relations system were caught unaware by this High Court Judgement and questions have been asked with respect to what extent the verdict is binding under the new Constitution as well as judicial precedence.

In Zimbabwe, the High Court, Supreme Court and Constitutional Courts are called superior courts and they create precedence.

NB: The Labour Court can create precedence for arbitrators. It is also important to note that none of the courts is bound by its previous decisions, in other words, previous decisions can be disregarded in future but binds lower courts.

The High Court does not bind the Supreme and Constitutional Courts but lower courts must follow the decision of the higher court.

You can only act on a judgment with certainty when a decision has been made by superior courts, e.g. The High Court, Supreme Court and Constitutional Court.

The Supreme Court is the highest court except on Constitutional matters, where with the Constitutional Court; you must cause your issue to be constitutional.

The legal system does not allow a single judge to make decisions on constitutional issues and the old Constitution is no longer law, i.e. there must be a judgement based on the new Constitution.

The Constitution provides for freedom of association and limitation of rights (see Section 86 of the Constitution) hence all rights in the Constitution are subject to limitations.

Therefore, taking away of freedom of association is then looked at as whether it is unreasonable or is that infringement unreasonable?

According to The Herald edition of March 5, 2015, the senior court reporter stated that most employment councils rely on funding from employers and the recent judgement may result in the death of National Employment Councils in Zimbabwe.

On the other hand, the High Court judgement ruled that forcing employers to register with National Employment Councils was a violation of their right to freedom of association. However, the Court held that if National Employment Councils come up with minimum conditions of service, employers will be bound to comply despite the fact that they do not subscribe or pay anything to it. Our humble opinion in this respect is that National Employment Councils have played an important role in maintaining the orderly conduct of labour relations and social justice in Zimbabwe.

National Employment Councils have social benefits that help the society and our view is that employers must help in funding the running of National Employment Councils and their resources.

In conclusion, there are more societal advantages connected with the running of National Employment Councils as compared to disadvantages.

Matthias Ruziwa and Alyson Martens are experienced and growing strategic human resource practitioners. Both are practising in the Midlands Province, City of Kwekwe. You can contact either Matthias or Alyson at the following email addresses: [email protected]/WhatsApp 0773 470 368, [email protected]