The applicant approached this court seeking the following relief:“IT IS DECLARED AS FOLLOWS:1. The application to the Applicant of the provisions of a collective bargaining agreement born of a process to which the Applicant was not party is a violation of the Applicant's constitutional right to freedom of association.2. The ...
The applicant approached this court seeking the following relief:
“IT IS DECLARED AS FOLLOWS:
1. The application to the Applicant of the provisions of a collective bargaining agreement born of a process to which the Applicant was not party is a violation of the Applicant's constitutional right to freedom of association.
2. The imposition upon the Applicant of the requirement to register with the Second Respondent is a violation of the Applicant's constitutional right to freedom of association.
3. The mandatory payment of dues by the Applicant to the Second Respondent is a compulsory acquisition of the Applicant's property in violation of the Applicant's constitutional right to protection from the compulsory acquisition of property without compensation.
4. Section 82(1)(a) of the Labour Act [Chapter 28:01] and sections 2(a) and 36 of the Collective Bargaining Agreement for the Communications and Allied Services Industry (S.I.1 of 2012) are in violation of section 21 of the Constitution to the extent that they provide for the infringements declared in paragraphs A1 and A2 of this order.
5. Sections 33 of the Collective Bargaining Agreement for the Communications and Allied Services Industry (S.I.1 of 2012) is in violation of section 16 of the Constitution by reason of the infringement declared in paragraph A3 of this order.
IT IS ORDERED THAT:
1. Sections 2(a), 33 and 36 of the Collective Bargaining Agreement for the Communications and Allied Services Industry (S.I.1 of 2012) are struck down.
2. Section 82(1)(a) of the Labour Act [Chapter 28:01] is struck down to the extent of deleting the words “and all employers, contractors and their respective employees in the undertaking or industry to which the agreement relates.”
The background to the matter is that the applicant is in the business of providing cellular communications. The second respondent is a council established in terms of section 56 of the Labour Act for the communications services sector.
Sometime in 2010, the second respondent, after having followed the due process provided for in the Labour Act, varied its scope to include, inter alia, cellular communications.
In a letter dated 9 January 2012, the second respondent advised the applicant that a Collective Bargaining Agreement for the Communications and Allied Services Industry (the (CBA) had been published on 6 January 2012, in S.I.11 of 2012. It further invited the applicant to register with the second respondent and pay the dues as stipulated in the Collective Bargaining Agreement (CBA). The applicant objected and the second respondent threatened to have the applicant arrested.
The applicant then instituted the present proceedings.
The applicant avers that despite being the biggest employer in the communications industry, it was not aware of and did not participate in the creation of either the second respondent or the Collective Bargaining Agreement (CBA). It has no wish to be a member of the second respondent nor does it wish to pay dues to it. It has notified the second respondent, which has sought to compel the applicant to submit to membership and remit dues in terms of the provisions of the Collective Bargaining Agreement (CBA) and the Labour Act.
It further avers that section 82(1)(a) of the Labour Act makes Collective Bargaining Agreements (CBAs) apply to entire industries without regard to whether the participants have adopted the instrument. It is not a member of the employers association that is party to the Collective Bargaining Agreement (CBA) and is not aware whether any of its employees belong to a union party. Section 82(1)(a) of the Labour Act therefore violates its right to freedom of association and is therefore inconsistent with section 21 of the Constitution.
Sections 2(a) and (b) of the Collective Bargaining Agreement are unconstitutional for the same reasons.
The applicant further avers that section 33 and 36 of the Collective Bargaining Agreement (CBA) are unconstitutional. Section 33 effects a compulsory acquisition of the applicant's funds by requiring the applicant to pay dues to the second respondent. This violates section 16 of the Constitution. Section 36 compels the applicant to join the second respondent thereby violating the applicant's rights under section 21 of the Constitution. The second respondent went to the extent of violating the applicant's rights by making a report to the police and persuading the police to arrest officers of the applicant….,.
On the merits, the application is opposed on the basis that the applicant is bound by the Collective Bargaining Agreement (CBA) as it is registered with the respondent in terms of the law. The Collective Bargaining Agreement is registered to cover the entire communications industry. The applicant is bound by the Collective Bargaining Agreement as it is an employer in the Communication and Allied Services Industry. The publication of the Collective Bargaining Agreement as S.I.1 of 2012 was constructive notice to the applicant about its coming into being….,.
Violation of section 21(1) of the Constitution
Counsel for the applicant contended that the nub of the issue is that by compelling the applicant to register with the second respondent the Collective Bargaining Agreement (CBA) forces the applicant into a position where it is a member of the second respondent and deprives the applicant of its property. The applicant is being compelled to associate with the second respondent. Such conduct is a negation of the freedom that section 21 of the Constitution serves to uphold.
In addition to the forced association, section 33 of the Collective Bargaining Agreement (CBA), reinforced by section 2(a) of the Collective Bargaining Agreement and section 82(1)(a) of the Labour Act, compel the applicant to pay levies to the second respondent against its will.
Counsel for the applicant contended that voluntary participation in the process and conscious submission to agreed terms are essential elements of collective bargaining. This is confirmed by the fact that participation in collective bargaining is not made mandatory by section 74(2) of the Labour Act. It uses the permissive 'may' in relation to collective bargaining.
Counsel for the applicant further contended that levies being demanded by the second respondent do not constitute a rate or tax that is reasonably justifiable in a democratic society and therefore not a permissible derogation from section 16(1) of the Constitution.
Counsel for the second respondent submitted that the second respondent is a legal body set up in terms of section 56 of the Labour Act. It has authority to regulate conditions of employment in the communications industry. The fact that the applicant professes ignorance of its existence does not take away its legal authority.
He further contended that Collective Bargaining Agreements created minimum conditions of employment in an industry and are justified in a democratic society. They harmonise the interests of employers and employees. The applicant is bound by operation of the law as it is operating in that industry and cannot seek to escape the minimum conditions of that industry.
The applicant did not take advantage of the domestic remedies provided for in the Labour Act if it had any issues with the coming into being of the Collective Bargaining Agreement (CBA) that binds it.
The ILO Right To Organise and Collective Bargaining Convention (No.98) 1949 describes collective bargaining as:
“Voluntary negotiation between employees or employer's organisations and workers organisations, with a view to the regulation of terms and conditions of employment by collective agreement.”
Some of the essential features of collective bargaining are, viz:
“(i) It is a method used by trade unions to improve the terms and conditions of employment of their members.
(ii) It seeks to restore the unequal bargaining position between employer and employee.”
An agreement recorded as the outcome of a collective bargaining is binding on the parties to the agreement. Collective bargaining legislation imposes obligations on the parties to adhere to the terms of the agreement. See Collective Bargaining by Dr I. CHANETSA in Pe COP Journal of Social and Management Sciences…,.
In our jurisdiction, Collective Bargaining Agreements are entered into in terms of section 74(2) of the Labour Act which reads:
“(2) Subject to this Act and the competence and authority of the parties trade unions and employers or employees organisations may negotiate collective bargaining agreements as to any conditions of employment which are of mutual interest to the parties thereto…,.”
Section 79 of the Labour Act provides for the registration of the Collective Bargaining Agreement (CBA) by the Registrar of Labour.
In terms of section 80(1), the registration of the Collective Bargaining Agreement, the Minister of Labour shall publish the Agreement as a statutory instrument.
In terms of section 80(2) of the Labour Act:
“The terms and conditions of the collective bargaining agreement shall become effective and binding –
(a) From the date of publication of the agreement in terms of subsection (1); or
(b) From such other date as may be specified in the agreement.”
The impugned section 82(1)(a) of the Labour Act provides:
“82 Binding nature of registered collective bargaining agreements
(1) Where a collective bargaining agreement has been registered it shall –
(a) With effect from the date of its publication in terms of section eighty-five, or such other date as may be specified in the agreement, be binding on the parties to the agreement, including all the members of such parties and all employers, contractors and their respective employees in the undertaking or industry to which the agreement relates.”
Section 2(a) of the Collective Bargaining Agreement (CBA), S.I.1 of 2012, provides:
“This collective bargaining agreement shall apply to –
(a) All employers in the communication and allied services industry i.e telecommunications, postal services, cellular communications, courier services, phone shops and public financial series within the communications sector.
(b) All non-managerial employees (including contract or fixed period employees in the communications and allied services, in the area of Zimbabwe.”
What comes out from the definition of collective bargaining in the ILO Right To Organise and Collective Bargaining Convention (No.98) 1949 and from section 74(2) of the Labour Act is the voluntary element in collective bargaining. Voluntary participation in the process and conscious submission to the agreed terms are essential elements.
Section 82 of the Labour Act brings in the element of the binding nature of registered Collective Bargaining Agreements. It provides that a registered Collective Bargaining Agreement (CBA) shall be binding on the parties to the agreement including all the members of such parties, and all employers, contractors and their employees in the undertaking or industry to which the agreement relate.
As the applicant contends; who are the parties to the Collective Bargaining Agreement (CBA)?
The answer is to be found in section 2(a) of the Collective Bargaining Agreement which states that it applies to all employers in the communications and allied services industry. In other words, even if the applicant had no part, whether as principal or agent, in the agreement it is bound by the Collective Bargaining Agreement (CBA) by virtue of it being an employer in the communications industry.
The applicant complains that it is being compelled to register with the second respondent i.e. associate with the second respondent against its will.
It is not in dispute that the applicant is being compelled, against its will, to be bound by the provisions of the Collective Bargaining Agreement (CBA), and, as a consequence, register with the second respondent and pay dues due to the second respondent.
The applicant contends that section 21(3) of the Constitution recognises that the formation and activities of employers associations are an exercise of the freedom of association. The exercise is especially insulated from derogations that are permissible in the case of other associations of persons.
Counsel for the second respondent, on the other hand, contends that section 27(3) of the Constitution provides an exception or derogation to section 21(1) and that the registration of a Collective Bargaining Agreement (CBA) does not run foul to section 21(1) of the Constitution.
Section 21 of the Constitution provides:
“(1) Except with his own consent, or by way of parental discipline, no person shall be hindered in his freedom of assembly and association; that is to say, his right to assemble freely and associate with other persons, and, in particular, to form or belong to political parties or trade unions or other associations for the protection of his interests.
(2) The freedom referred to in subsection (1) shall include the right not to be compelled to belong to an association.
(3) Nothing contained in or done under the authority of any law shall be held to be in contravention of subsection (1) to the extent that the law in question makes provisions:-
(a)…,.
(b)…,.
(c) For the registration of companies, partnerships, societies or other associations of persons, other than political parties, trade unions or employers organisations; or
(d)…,.
except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.”
I find merit in the submissions by counsel for the applicant.
Section 21(3)(c) of the Constitution recognises that the formation and activities of employees associations are an exercise of the right of freedom of association. He concludes, on p 80 of the Heads of Argument, by saying:
“So special is that exercise, that it is specifically insulated from derogations that are permissible in the case of other associations of persons.”
In other words, there are derogations in respect of other associations but not in respect of trade unions or employer's associations.
As is clear from section 21 of the Constitution, the right to freedom of association embraces the right to form and join associations and the right not to be compelled to belong to any association.
National Constitutional Assembly v The President & Ors 2005 (2) ZLR 301 (H)…, reinforced the point when GUVAVA J stated:
“I know of no right in the Constitution which forces persons to associate against their will. Indeed, it would be a total negation of that very freedom which section 21 of the Constitution strives to uphold - particularly the freedom of association.”
I would agree with the applicant that section 36 of the Collective Bargaining Agreement violates the applicant's rights in so far as it compels the applicant to behave as though it was the second respondent's member by requiring it to register with it.
As regards section 82 of the Labour Act, my view is the issue for determination is whether the applicant can be bound by the provisions of the Collective Bargaining Agreement (CBA) in issue.
It is common cause that the applicant, as a principal or through an agent, did not participate in, neither did it sign the agreement.
I find merit in the submissions made by counsel for the second respondent that the whole fabric of the process of collective bargaining and enforceability is meant to protect the interests of those parties that are affected by it.
The law maker determined that the registration of the Collective Bargaining Agreements shall have the effect of binding all players in the industries to which they apply. Not to do so would defeat the objectives of collective bargaining some of which are to restore the unequal bargaining position between employers and employees and to peg minimum conditions of employment to ensure adequate protection of the weaker party to the employment contract i.e. the employee.
Statutory intervention is justified to deter some unscrupulous employers from abusing and trampling upon the rights of employees with impunity.
The whole essence of collective bargaining was aptly underscored by ARCHIBOLD COX, Labour Law, Cases and Materials, (Thirteenth Edition), 2001…, where he stated:
“Genuine collective bargaining is the only way to attain equality of bargaining power. The greatest obstacle to collective bargaining are employer-dominated unions, which have multiplied with amazing rapidity since Industry Recovery Act. Such a union makes a sham of equal bargaining power.
Only representatives who are not subservient to the employer with whom they deal can act presently in the interest of employees. For these reasons, the very first step towards genuine collective bargaining is the abolition of the employer dominated union as an agency for dealing with grievances, labour disputes, wages rated, or hours of employment.”
At page 289, the same learned author reinforces the importance of collective bargaining at industry level as follows;
“The perceived benefits of multi-employer bargaining are several. For both the employers and the union, it brings less expensive, less frequent and more informed negotiations than would obtain on an individual-employer basis. Workers desire industry–wide bargaining also because it may help the union insure gains which no one employer can grant for fear of competitive disadvantage.”
The fact that the applicant has a functional workers committee and has been working together with it on issues such as improvement of conditions of service is neither here nor there. The fact that the applicant pays wages higher than those set by the second respondent is to be commended but cannot detract from the fact that it has to so bound by the law governing the operations of its industry.
I do not see how the applicant's right to freedom of association is violated.
In any event, section 34 of the Collective Bargaining Agreement (CBA), S.I.1 of 2012, provides adequate remedies to address the peculiar circumstances of the applicant. In terms of section 34 of the Collective Bargaining Agreement (CBA), S.I.1 of 2012, the second respondent, may, in its sole discretion, grant exemptions.
In my view, it will not be necessary to determine the issue of the violation of section 16 of the Constitution in view of my finding that the applicant cannot be compelled to register with the second respondent. Registration would have entailed that the applicant pays dues to the second respondent….,.
In the result, I will make the following order;
A. IT IS DECLARED AS FOLLOWS:
1. The imposition upon the Applicant of the requirement to register with the Second Respondent is a violation of the applicant's Constitutional right to freedom of association.
2. The Collective Bargaining Agreement for the Communications and Allied Services Industry (S.I.1 of 2012) are in violation of section 21 of the Constitution to the extent that they provide for the infringements declared in paragraphs of this order.
B. IT IS ORDERED THAT:
3. Sections 2(a), 33 and 36 of the Collective Bargaining Agreement for the Communications and Allied Services Industry (S.I.1 of 2012) are struck down.
