Introduction
The legislature saw the need to come up with a raft of changes to the collective bargaining landscape in Zimbabwe. Collective Labour Law is the law that’s created as a result of an agreement between employers and employees either at the company level or at the industry level. This is an area that has, in the past resulted, in disputes that have spilt to the Constitutional Court of Zimbabwe. One such dispute was NEC for the Communication and Allied Services Industry v Netone Cellular (Private) Limited and the Minister of Labour and Social Welfare (CCZ 17/19). In this dispute, Netone argued that it was not bound by a Collective Bargaining Agreement (CBA) whose negotiations it was not part of. The matter was initially heard by the High Court which declared certain parts of the CBA as unconstitutional in so far as they forced Netone to be part of the association against its will. The Bill addresses this issue beyond doubt.
Scope of CBAs
The Bill adds a new scope for the CBA. It says that in addition to the other elements of mutual interests that can be included in a CBA, parties can negotiate for conditions for paid educational leave at the employment council.[1] Paid educational leave is not provided anywhere else in the Labour Act and the legislature is giving parties to the employment relationship an opportunity to designate conditions within which one can be on paid educational leave. Presumably, this leave will apply to those employees who wish to further their studies. Currently, this area is regulated in company policies and those who do not have such policies may compel their employees to take vacation leave for educational purposes. We view this new change as a positive development in our law.
Under the scope of the CBA, the legislature has added a provision which states that if a CBA is negotiated by a statutory body or a state-controlled enterprise the Minister responsible for such an entity will be deemed to be part of the negotiations for the CBA. The Minister is also deemed to be on an equal footing with the employer. We do not fully appreciate why this has been inserted in the amendment. Perhaps the intention is to have a quasi-tripartite negotiating forum at the company level. We await to see how this will work in practice.
Registration of a CBA
It has always been a requirement for the Minister to stop the registration of a CBA that is contrary to the public interest or one which is inconsistent with the Act.[2] The Bill is proposing an additional layer to this requirement. The Minister will now be required to specify in writing the public interest issue at stake before directing the Registrar not to register a CBA until the parties have amended it. This will ensure that parties are fully aware of what they need to renegotiate on before resubmitting the CBA for registration.
Binding Nature of CBAs
The legislature is proposing provisions that give recognition to the constitutional right of every employee “to just, equitable and satisfactory conditions of work”.[3] In pushing for this right, the proposed law is buttressing the freedom of collective bargaining by persuading all interested persons, juristic or otherwise to obtain representation in the employment council. It is further provided:
“Accordingly, it shall not be a lawful excuse for those who did not avail themselves of the opportunity referred to in paragraph (b) to fail to abide by or claim not to be bound by a collective bargaining agreement freely negotiated for their industry.”[4]
Clearly, this provision is meant to deal with the excuse that was put forward in the Netone case discussed above. If this case had been a success, CBAs would have been rendered useless by the simple fact that a party that was not part of the negotiation is not bound by the CBA. To deal with this loophole, the legislature is making it clear that CBAs bind everyone in an industry whether they participated in the negotiations or not.
Conclusion
The legislature is proposing a legislation that will give effect to the labour rights enshrined in the Constitution as far as Collective Bargaining Agreements are concerned. The scope of CBAs has now been expanded to include negotiations around paid educational leave. We submit that this was in full recognition of the need for employees to self-develop. The binding nature of CBAs has also been made unambiguous. The fact that a person was not a party to the negotiations will not be a lawful excuse for refusing to abide by a CBA.
[1] Proposed Section 74(3)(o).
[2] Section 17(1) of the Labour Act 28.01.
[3] Section 65(4) of the Constitution of the Republic of Zimbabwe.
[4] Proposed Section 82(a1) (b).