The sole issue for determination in this case is whether the first respondent is an employer within the energy industry and is thereby bound by the Collective Bargaining Agreement: Zimbabwe Energy Industry, Statutory Instrument 50 of 2012, S.I.50/2012 (“the CBA”).The issue was placed before the Labour Court for determination and ...
The sole issue for determination in this case is whether the first respondent is an employer within the energy industry and is thereby bound by the Collective Bargaining Agreement: Zimbabwe Energy Industry, Statutory Instrument 50 of 2012, S.I.50/2012 (“the CBA”).
The issue was placed before the Labour Court for determination and it found that the first respondent is not an employer in the energy industry and is thus not bound by the requisite Collective Bargaining Agreement: Zimbabwe Energy Industry, Statutory Instrument 50 of 2012, S.I.50 of 2012 (CBA).
This is an appeal against that decision.
The factual and legal basis upon which the appeal is founded is as follows:
The first to tenth appellants are members of the eleventh appellant (Zimbabwe Energy Workers Union), a worker's union which is a party to the Collective Bargaining Agreement. The first respondent is a statutory body established in terms of section 3 of the Energy Regulatory Act [Chapter 13:23] (“the Act”) The functions of the first respondent are spelt out in section 4 of the Energy Regulatory Act, and, in short, the first respondent's mandate is to regulate the energy industry.
The phrase "energy industry” is defined, in section 2 of the Energy Regulatory Act, as follows:-
“'energy industry' means the persons in Zimbabwe who, in the private or public sphere are concerned with the generation, procurement, distribution, transportation, transmission and production of energy to consumers thereof.”
On 27 January 2012, a Collective Bargaining Agreement was reached between the Zimbabwe Energy Industry Employers' Association, Zimbabwe Energy Workers Union (the eleventh appellant) and the ZESA Technical Employees' Association, for the period 1 January 2012 to 31 December 2012. The salary scales flowing from the Collective Bargaining Agreement were produced on 27 February 2012 and they were circulated to all employers, including the first respondent, for implementation. The first respondent communicated to the eleventh appellant (Zimbabwe Energy Workers Union) that it had fully complied with the Collective Bargaining Agreement in August 2012.
However, the first respondent later reneged from such compliance arguing that it did not belong to the energy industry and thus it could not be bound by the energy industry Collective Bargaining Agreement.
The first respondent's refusal to implement the Collective Bargaining Agreement ignited a dispute between the parties, which dispute was referred to conciliation. No settlement was reached and the matter was referred for arbitration.
The arbitrator found that the first respondent was bound by the Collective Bargaining Agreement. The first responded appealed against that decision on the ground that the arbitrator dealt with a dispute which fell under the exclusive jurisdiction of the Labour Court by virtue of section 46(a) of the Labour Act [Chapter 28:01] which provides that any dispute as to the extent or description of any undertaking or industry shall be referred to the Labour Court for determination.
The appeal was allowed and the arbitral award was set aside.
The appellants then made an application in term of section 46 of the Labour Act for the determination of whether the first respondent falls within the energy industry. The application was dismissed after the court had found that the first respondent does not fall within the energy industry and is not bound by the Collective Bargaining Agreement.
The present appeal was noted against the decision of the court a quo.
