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Daniel Nemukuyu Senior Court Reporter—
The Supreme Court yesterday ruled that payment of housing, educational and other allowances is not a right to workers and employers are not obliged to pay them unless there is an agreement binding on the parties to that effect. Justice Venanda Ziyambi, sitting with Justices Elizabeth Gwaunza and Antonia Guvava, delivered the unanimous decision in favour of the National Railways of Zimbabwe in a case where the company was contesting the Labour Court judgment compelling it to pay its workers outstanding housing and educational allowances.

The workers had won their case both before an arbitrator and the Labour Court with an order compelling NRZ to pay them some outstanding allowances despite the fact that the company had not agreed.

However, the Supreme Court allowed NRZ’s appeal and ruled that it was not the arbitrators or courts’ business to impose conditions not agreed or to craft employment contracts on behalf of the parties.

Advocate Thabani Mpofu instructed by Mr Alec Muchadehama of Mbidzo Muchadehama and Makoni represented the winning side, while Adv Thembinkosi Magwaliba acted for the workers.

Justice Ziyambi said the arbitrator and the Labour Court judge erred in elevating a negotiable benefit to be an imperative one.

“In my view both the Labour Court and the arbitrator ought to have found that the allowances, not having been negotiated by the parties and therefore not forming part of their collective bargaining agreement, were not a right or entitlement available for appropriation by the respondents.

“This is a matter for the parties to bargain and reach agreement on.

“It is not a matter where a court can intervene. A court can only intervene to enforce any agreement the parties will have concluded,” she said.

“The arbitrator could not therefore impose terms and conditions in the collective bargaining agreement.

“His finding that housing and school fees allowances ‘have to exist in one form or the other’ was misguided, devoid of any legal basis and irresponsible.

“So too was the subsequent award of the said allowances in percentages lacking evidential foundation and as submitted by the applicant ‘plucked out of the air’.”

The court held that the arbitrator acted outside his powers when he set the terms of the collective agreement between the parties.

The Supreme Court also rapped the Labour Court for erroneously upholding the arbitrator’s award.

Justice Ziyambi ruled that NRZ was right in indicating that it could only commit itself to paying the basic salary and not the allowances.

“The appellant (NRZ’s) position was ‘I will pay you the best salary that I can pay in the circumstances but I cannot to pay allowances’. There is nothing wrong with that approach.

“Each undertaking is beset with its own peculiar circumstances. “The fact that one employer considers it appropriate to pay allowances, puts no obligation on another employer to do the same . . .”

The dispute arose in 2007 when NRZ and its workers clashed on the payment of housing and educational allowances.

A Labour officer issued a certificate of no settlement after the parties failed to reach an agreement.

The case was then referred for arbitration where the workers got a favourable judgment for payment of the outstanding allowances.

NRZ unsuccessfully appealed to the Labour Court where the arbitral award was upheld.

The judgment becomes the second unfavourable Supreme Court ruling for the workers in Zimbabwe in the past two weeks after the same court allowed employers to terminate contract of employment at will at anytime without paying any damages.

Thousands of workers have so far been fired empty-handed following the Supreme Court judgment in the Zuva Petroleum case.