Category: Freedom of Association

WORKERS COMMITTEES IN ZIMBABWE: A GENERAL GUIDE

1. Introduction

Every person has a right in terms of the Constitution of Zimbabwe to freely associate and assemble with others.[1] In this article, we will explore the right to freedom of association in the workplace with a focus on workers’ committees. We outline what we consider to be the most important and crucial provisions in the Labor Act, including the essential functions of every worker’s committee. We will also assess in part, the right to appear in courts as curtailed by the Supreme Court. At the end of the discussion, it is expected that one would be well versed with an important overview of the important provisions governing workers’ committees in Zimbabwe.

2.    The definition of a workers committee

In terms of the Labour Act, a workers committee means a committee appointed or elected in terms of Part VI of the Act. In terms of the relevant provisions, employees under a single employer are expected to form a workers committee to represent their interests.[2] Managerial employees are also allowed to form their own worker’s committee provided that it represents their interests only. The formation of workers committees is also entrenched in terms of section 4 of the Labour Act which precludes employers from coming up with terms of employment that compel employees to relinquish their trade union or workers committee membership or which prevent employees from taking part in the formation of such bodies. This protection entitles every employee, if he or so desires, to be part of a trade union or workers committee. The provisions, therefore, entrench the constitutional provisions already mentioned at the start of this discussion.

3.    Formation of workers committees

Employees in an establishment determine the structure as well as the procedure that the worker’s committee should adopt.[3] If more than 50% of the employees are represented by a specific trade union all members of the worker’s committee must be members of that trade union.[4] In the course of appointing a workers committee, the employees have to be assisted by a labour officer or a representative of an appropriate trade union. It is submitted that an appropriate trade union in terms of section 23 represents 50%, or above, of the employees. If an establishment has several trade unions all of which do not have 50% representation the best course of action is to make use of a labour officer because no union can claim major representation in such an instance.

In the course of appointing workers committee members, the employer must ensure that he or she provides the employees with facilities for such appointments.[5] This will also include providing a place for the employees to meet during working hours. This is only acceptable provided that the employer’s business is not disturbed.[6] The employer should also provide a list of names for all employees at an establishment.

A party aggrieved by the process or appointment of workers committee members has a recourse. The dispute should be referred to a labour officer who assisted in the appointment process or if the labour officer is not present such a dispute must be referred to another labour officer.[7] The determination of such a labour officer shall be final unless the parties agree to have the matter go through voluntary arbitration.

Though not provided for in the Act,during the formation phase of a workers committee, some institutions have found it good practise to allow members of the worker’s committee to go through training before they take up their appointments. Such training covers such areas as the general provisions of the Labour Act as they affect employee representation, the right of the committee to represent employees as well as the consequences that follow such representation.

4.    Functions of a workers committee

In terms of section 7(1) of the Labour Act, the formation and conduct of a workers committee is part of the employees right to democracy in the workplace. Its hindrance is explicitly precluded. In this section, we outline the major functions of a workers committee both within and without the entity, they fall under. These functions should be read together with some Supreme Court pronouncements which curtailed the functions of a workers committee especially with regards to the right to sue and be sued.

4.1.       Representing employees in an undertaking

The primary function of a workers committee is to represent employees in an establishment.[8] The representation concerns anything that is of interest to the employees’ rights and interests. It is because of this power to represent employees that workers committee members can act on behalf of employees in collective bargaining agreements as well as in disciplinary hearings. So critical is this function that that section 24(2) of the Labour Act prescribes:

 “where a workers committee has been appointed or elected to represent employees, no person other than such workers committee and the appropriate trade union, if any, may— (a) act or purport to act for the employees in negotiating any collective bargaining agreement; or (b) direct or recommend collective job action to the employees”.

Despite this function being broad as it is, in its role in representing employees, the worker’s committee is limited. It cannot sue or be sued.[9] Expressed differently, it is not a body corporate with the capacity to sue or be sued in its representative capacity.[10] The Supreme Court has highlighted that without this capacity, it becomes complicated if in litigation issues to do with costs were to arise because there will be no one to recovers the costs from since the Workers Committee is not a body corporate.[11]

In CT Bolts (Pvt) Ltd v Workers Committee[12] the court ruled that if the legislature intended to make a workers committee a legal persona it would have said so. It went further to ascertain that if a body has a constitution, it becomes a “Universitas”.[13] Under the common law, a Universitas is considered a body corporate capable of suing and being sued. On the face of it, one may argue that if a workers committee has a constitution it also retains the capacity to sue or be sued provided this capacity is retained in the constitution.[14]

Mindful of the common law position regarding “Universitas” the court in Gweru Water Workers Committee v City of Gweru[15] entertained the worker’s committee and awarded an order for leave to appeal and condonation for late noting of the appeal based on the fact the committee had a constitution. The constitution specifically provided for the right to sue and be sued. One might argue therefore that a workers committee with a constitution with similar provisions to the one found in the City of Gweru, can sue or be sued and will have locus standi to represent employees in a court of law. On the contrary, however, it should be noted that CT Bolts (Pvt) Ltd v Workers Committee[16] rejected that a workers committee can give itself more powers than those provided in the Labour Act. We submit that the position in CT Bolts is the correct position regarding the legal capacity of a workers committee to represent employees in court. A body cannot have more powers than those it can exercise in terms of its founding provisions. A workers committee cannot sue or be sued.

4.2.       Negotiating a Collective Bargaining Agreement (CBA)

Another important function carried out by a workers committee is the capacity to negotiate with an employer, a CBA governing the terms and conditions of employment of the employees.[17] Section 24(3) limits the rights of a workers committee to collectively bargain with an employer. In that section, it is prescribed that where a trade union is existent within an establishment such must authorise in writing and give permission to the worker’s committee to negotiate with the employer. We submit that the words “only to the extent that such negotiation is authorized in writing by the trade union” found in section 24 (3) (a) are peremptory and if a workers committee does negotiate a CBA without the authority of a trade union within its establishment such CBA can be rendered void.

The other limitation to negotiating a CBA provided under the said section 24(3) is that where a CBA is present, negotiations are only permitted within the confines of the CBA. Further, it is prescribed that a workers committee can also negotiate a CBA in circumstances where the Minister of labour endorses “in writing that an issue was omitted from or included in the principal collective bargaining agreement when it should not have been so omitted or included; and further that the parties to the principal collective bargaining agreement have failed or are not in a position to reach an agreement on such an issue.”

Whilst the worker’s committee is endowed with the powers to negotiate a CBA these powers are, because of what has been discussed above, limited.

Another key point to consider regarding the committee’s powers and capacity to negotiate a CBA with the employer is the limitations inherent in the process of negotiating. In defining “negotiating”, the court in T M Supermarket v TM National Workers’ Committee[18] held that negotiation does not necessarily mean than one party has to accede to the demands of the other party. It went further to point out that refusal to award that which is asked by another party is a sign that negotiations took place.[19]

4.3.       Collective Job Action

In terms of 24 (c) of the Act, a workers committee is entitled to recommend collective job action to the employees falling under its constituency. The Labour Act further entrenches this function as a right.[20] Under section 104, all employees, workers committees and trade unions have the right to resort to collective job action to resolve disputes of interest.[21] Reference to a dispute of interest in this section is of paramount importance. A dispute of interest does not involve a dispute that involves the rights of employees.[22] A dispute of interest entails the creation of new rights.

It is also important to note that the right to recommend a collective job action is not unfettered. Section 104 discussed above prescribes conditions under which a lawful collective job action can be recommended and executed. Among several safeguards, a workers committee should recommend a collective job action after giving the required 14 days’ notice and the dispute has been conciliated upon.[23]

Failure by a workers committee to adhere to the basic requirements for recommending a collective job action may make it liable for damages emanating from an unlawful strike. The Act also provides for circumstances where a workers committee can recommend or engage in a collective job action without having to go through the cumbersome procedure mentioned above.[24] Such circumstances include were a health and safety issue is present which causes an imminent danger to the employees or in instances where the committee seeks to defend “an immediate threat to the existence of a workers committee or a registered trade union”.[25]

4.4.       Role in the Works Council

Section 24 (d) of the Act provides that some members of a workers committee may be voted into a works council in establishments where a works council is present. To also entrench this right, the Act further prescribes it as a requirement that a works council is mandatory in all establishments where a works committee is present.[26]

A works council shall have an equal number of employer representatives and employee representatives. The major roles of the works council include the fostering of participation between management and employees, to encourage good relations between the employer and the employee as well as the promotion of general and common issues of “interest, including the health, safety and welfare of both the establishment and its workers”.

The presence of a works council in the workplace is not ceremonial. The Act designates certain acts that cannot be undertaken by the employer without consulting with the worker’s committee. The wording of the Act indicates that actions taken by an employer without the involvement of a workers committee. (arbitrary actions by an employer) maybe invalid and in this respect, Section 24A (5) of the Act reads:

“Without prejudice to the provisions of any collective bargaining agreement that may be applicable to the establishment concerned, a works council shall be entitled to be consulted by the employer about proposals relating to any of the following matters— (Own Emphasis)

The words, “shall be entitled to be consulted” imposes an obligation on the employer to consult with the works council. An employer is expected to allow members of a workers committee to make representations, and to put across alternative proposals on an issue, and to generally attempt to reach a consensus with the members of the worker’s committee before making a decision.

An outline of the issues that the works council must be consulted on are as follows[27]:

  • the restructuring of the workplace caused by the introduction of new technology and work methods;
  • product development plans, job grading and training and education schemes affecting employees;
  • partial or total plant closures and mergers and transfers of ownership;
  • the implementation of an employment code of conduct;
  • the criteria for merit increase or payment of discretionary bonuses;
  • the retrenchment of employees, whether voluntary or compulsory.

5.    Unfair Labour Practises Committed by a Workers Committee

Act 7 of 2005 introduced an important concept in our labour laws.[28] This is the designation of certain acts as unfair labour practises that can be committed by the worker’s committee. It is important for anyone involved in workers committee issues to be well versed with the concept of unfair labour practise as it applies to employees and their representation. Once an act has been designated as an unfair labour practise it has to go through the dispute resolution mechanism provided for under Section 93 of the Act.[29]

The list of unfair labour practises that can be committed by a workers committee include preventing an employee from exercising rights in terms of the Labour Act, failure to represent an employee’s interests in connection with issues arising from the Act as well as failure to comply with a CBA among other issues.

6.    Conclusion

The worker’s committee is a body of employee representatives endowed with the power to champion workers’ rights in the workplace. This is a critical role. It has been explained that the function of a workers committee does not extend to representing employees in courts. In exercising its role as representatives of employees the worker’s committee has the power to recommend collective job action and to engage in collective bargaining with the employer. All these functions are important in fostering industrial relations and the right to democracy in the workplace.

[1]           Section 58 (1) of the Constitution of Zimbabwe provide that “every person has the right to freedom of assembly and association, and the right not to assemble or associate with others”.

[2]           Section 23 of the Labour Act (Chapter 28:01).

[3]           Section 23 (1a) of the Labour Act (Chapter 28:01).

[4]           Section 23 (1b) of the Labour Act (Chapter 28:01).

[5]           Section 23 (2b) of the Labour Act (Chapter 28:01).

[6]           Section 23 (2c) of the Labour Act (Chapter 28:01).

[7]           Section 23 (2f) of the Labour Act (Chapter 28:01).

[8]           Section 24 (1) of the Labour Act (Chapter 28:01).

[9]           Cold Storage Company National Workers Committee v Cold Storage Company Limited HB 8/2002.

[10]          Cold Storage Company National Workers Committee v Cold Storage Company Limited HB 8/2002.

[11]          Cold Storage Company National Workers Committee v Cold Storage Company Limited HB 8/2002.

[12]          CT Bolts (Pvt) Ltd v Workers Committee SC 91/11.

[13]          CT Bolts (Pvt) Ltd v Workers Committee SC 91/11.

[14]          CT Bolts (Pvt) Ltd v Workers Committee SC 91/11.

[15]          SC59/13.

[16]          CT Bolts (Pvt) Ltd v Workers Committee SC 91/11.

[17]         Section 24 (1)(b) of the Labour Act (Chapter 28:01).

[18]          T M Supermarket v TM National Workers’ Committee SC 19/04.

[19]          T M Supermarket v TM National Workers’ Committee SC 19/04.

[20]          Section 104 of the Labour Act (Chapter 28:01).

[21]          Section 104 of the Labour Act (Chapter 28:01).

[22]          Section 2 of the Labour Act (Chapter 28:01).

[23]          Section 104 of the Labour Act (Chapter 28:01).

[24]          Section 104(4) of the Labour Act (Chapter 28:01).

[25]          Section 104(4)(b) of the Labour Act (Chapter 28:01).

[26]          Section 25A (1) of the Labour Act (Chapter 28:01).

[27]          Section 25A (5) (a) of the Labour Act (Chapter 28:01).

[28]          Section 25A (5) (a) of the Labour Act (Chapter 28:01).

[29]          Section 93 of the Act designates for the conciliation and arbitration of all disputes of interests.

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IMATU & Others v Rustenburg Transitional Council (2000) 21 ILJ 377 (LC)

“The senior employee who becomes a union leader must, in consequence, tread carefully, especially in his handling of confidential information. It is not enough simply to keep the information secret; he must recuse himself from every discussion within the union to which such information might be relevant either directly or indirectly lest he conveys, merely by his conduct or simply by silence, facts which the employer would prefer the union not to know. “

Introduction

In February 2019 the Zimbabwe media was inundated with a landmark ruling which granted senior managers the right to trade union membership. The matter was decided by the Supreme Court of Zimbabwe and in no doubt changed the concept of trade union membership which many regarded as a right for “junior” employees.

In this article, I will not be discussing the Zimbabwean case. I will discuss the matter between IMATU & Others v Rustenburg Transitional Council which was decided in the South African labour court in 1999. Yes, as far back as 1999 South Africa had such a landmark ruling. I believe that this case is important in broadening our understanding of the right to trade union membership as it applies to senior employees as well as the convolutions that come with such a relationship.

Summary of facts

The employer, in this case, passed a resolution which had the effect of prohibiting the participation of its senior managers in trade union activities as well as serving in executive positions in such unions. The employer contended that its senior managers could not lawfully partake in Trade Union activities as this would be contrary to their duty of fidelity towards the organisation they serve.

Reasons for the Judgement

The court acknowledged that the relationship between a trade union and an employer can be adversarial in nature. Conflict is inevitable. A Union is an organisation meant to further the interests of employees is bound to extract what it can from the employer either through negotiations or were possible using strike action.

An employee can commit a breach of fiduciary duty if he or she works against the interests of the employer. This may happen if the employee in question discloses private and confidential information pertaining to the employer.

The court noted that at common law an employee could be dismissed if he or she joined a union and participated in its lawful activities. Such participation would be deemed to be a breach of fidelity towards the employer. Whilst the common law could justify the dismissal of the employee for breach of fiduciary duty simply by participating in a trade union activity the constitution had amended this position. In terms of the Bill of Rights, the right to join a trade union is unfettered. Neither the drafters of the constitution nor the drafters of the Labour Relations Act intended to limit the right of Senior Employees in joining a trade and in participating in its lawful activities.

Noting that the senior employees can participate in the lawful activities of a trade union the court proceeded to warn such managers. Disclosure of private and confidential information to a Trade Union will constitute a dismissible offence. The court then decisively remarked as follows:

“The senior employee who becomes a union leader must, in consequence, tread carefully, especially in his handling of confidential information. It is not enough simply to keep the information secret; he must recuse himself from every discussion within the union to which such information might be relevant either directly or indirectly lest he convey, merely by his conduct or simply by silence, facts which the employer would prefer the union not to know. He can, I believe, participate in discussions on strategy to which information given to him in confidence is irrelevant, since this is implicit in his right to participate in trade union activities, but he must guard himself even from exercising a judgment on the basis of such information. The delicacy of discretion that this entails makes his position an unenviable one, but the Act gives him the right to enter this minefield if he wishes.”

Court Decision

The court set aside the resolution by the council thus allowing its senior employees to join a trade union of their choice and to participate in its lawful activities.

Own Comment

Senior managers contemplating joining a trade union should take heed of the need to tread with caution as warned by the court. The court did not mince its words. It’s a “minefield”. Balancing the relationship as a trade union official and as a senior manager is complex as noted above. It is thus advisable that senior managers recuse themselves from trade union membership.

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