NATIONAL EMPLOYMENT COUNCIL FOR THE
COMMUNICATIONS AND ALLIED SERVICES INDUSTRY
(1) NETONE CELLULAR (PRIVATE) LIMITED (2) THE MINISTER OF LABOUR AND SOCIAL WELFARE
CONSTITUTIONAL COURT OF ZIMBABWE
GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JC
JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC & HARARE: 14 MARCH, 2018 & 9 OCTOBER, 2019
C. Mucheche, for the applicant
D. Ochieng, for the first respondent
O. Zvedi, for the second respondent
[I] At the hearing of the appeal against the decision of the High Court, Harare, declaring as invalid, and consequently striking down, the provisions of ss 2(a), 33 and 36 ofthe Collective Bargaining Agreement for the Communications and Allied Services Industry, Statutory Instrument 1/12, the parties, by consent, requested the Supreme Court to refer for determination certain constitutional questions to this Court in terms of s 175(4) of the Constitution of Zimbabwe. The Supreme Court consequently referred the following question for adjudication and determination by this Court:-
"Whether section 82(1) (a) of the Labour Act, Chapter 28:01 and sections 2(a), 33 and 36 of the Collective Bargaining Agreement for the Communications and Allied Services Industry (S.I. 1/2012) violate section 21 of the former Constitution, alternatively s 58 of the Constitution of Zimbabwe, 2013 or alternatively, either section 16(1) of the former or section 71 of the Constitution of Zimbabwe."
- The record of the proceedings before the Supreme Court reflecting the respective submissions of the parties and the determination by that court that the request was not frivolous or vexatious was not attached. The parties are however agreed in their heads of argument that they requested, and that the Supreme Court consequently referred by consent "the matter" for determination by this Court.
- Having gone through the record of the proceedings, as well as submissions by counsel, both before the High Court and Supreme court as well as this Court, I am of the firm view that the matter was not properly referred and that therefore the matter ought to be struck off the roll of this Court.
- The first respondent ("NetOne") is a member of the Telecommunications Operators Association of Zimbabwe. On 9 January 2012, it received a letter from the applicant advising that a Collective Bargaining Agreement for the Communications and Allied Services Industry had been published as Statutory Instrument 1/2012 ("the CBA"). The CBA made it clear that it was binding on all employers in the communications services industry and that such employers were required to register with and pay ceftain dues to the applicant.
- Neither having been aware of, nor having participated in the creation of either the applicant or the CBA, NetOne formed the impression that it was being forced to submit to the membership of the applicant and to pay dues to it, regard being had to the fact that the Labour Act ("the Act") makes it a criminal offence not to comply with the provisions of the CBA that are binding upon any person. It was of the view that s 82 of the Act violated its right to freedom of assembly and association enshrined in s 21 of the former Constitution as the section made the CBA apply to entire industries without regard to which participants in the industry would have adopted the instrument. It also formed the view that s 33 ofthe CBA was unconstitutional in so far as the section required it to pay dues to the applicant
Constitution. Lastly, it was of the view that s 36 of the CBA was it compelled the first respondent to join the applicant.
- NetOne consequently filed a court application in the High Court seeking a declaration that s 82 of the Act and the impugned provisions of the CBA violated its constitutional rights to freedom of association and to the protection of its property from compulsory acquisition without compensation. In the event of such declaration, it also sought an order (a) striking down s 82 of the Act to the extent that it provides for the CBA to apply to all employers; contractors and respective employees in the undertaking or industry to which the agreement related and (b) striking down ss 2(a), 33 and 36 of the CBA.
- The Minister, as first respondent in the High Court proceedings, opposed the He averred that NetOne was not a party to the agreement because participation in collective bargaining is limited to employers' organizations and not individual employers. There were also remedies provided for in the Act, including the right of an appeal to the Labour Court against the decision of the Registrar of Labour to register the CBA. Finally, the Minister submitted that the first respondent was not obliged to join the applicant but was obliged to comply with its provisions by operation of the law.
- The applicant, as second respondent in the High Court proceedings, also opposed the application on two preliminary grounds. First, that as the cause of action emanated from the Act, the High Court did not have jurisdiction to deal with the matter in the first instance.
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