Online Reporter
Fidelis Munyoro
Chief Court Reporter
A LANDMARK High Court ruling has ordered telecommunications giant, Econet Wireless Zimbabwe, to comply with statutory labour obligations and pay outstanding dues to the National Employment Council (NEC) for the Communications and Allied Services Industry.
The judgment is likely to have far-reaching implications for employers operating under industry-wide collective bargaining agreements.
Justice Joel Mambara granted a compelling order against Econet, directing the company to furnish payroll records for its non-managerial employees, pay arrear statutory dues dating back to July 14, 2023 and continue remitting the dues on a monthly basis in accordance with the Collective
Bargaining Agreement for the Communications and Allied Services Industry and the amended Labour Act.
The court found that Econet could not rely on its historical objections to the NEC structure or its level of participation in the bargaining framework as a lawful basis for refusing to comply with obligations imposed by law.
In a strongly worded judgment, Justice Mambara said Parliament had already answered the very arguments being advanced by the telecommunications company through amendments introduced by the Labour Amendment Act of 2023.
“That language is plain. Indeed, it could scarcely be plainer,” the judge said while interpreting section 82(a1) of the Labour Act. “Parliament anticipated the very complaint advanced by the respondent, namely, that it had not yet fully entered or shaped the bargaining structure and it expressly removed that complaint as a lawful excuse for non-compliance.”
The dispute has a lengthy history.
The parties have previously battled in the courts over the applicability of the NEC framework to Econet and the company’s obligations under the industry’s collective bargaining agreement.
Earlier litigation culminated in a Supreme Court decision affirming the principle that laws remain binding until they are properly set aside.
Justice Mambara noted that the respondent was no stranger to the legal terrain.
“The respondent’s present posture is not born of surprise but of persistence,” he observed.
At the centre of the dispute was Econet’s argument that its constitutional rights to freedom of association and collective bargaining under sections 58 and 65 of the Constitution meant it could not be compelled to comply with an industry-wide labour framework before obtaining satisfactory representation within it.
The court rejected that argument, ruling that constitutional rights do not entitle an employer to ignore a valid collective bargaining agreement that applies to its industry.
“Section 58 protects against being compelled to belong to an association,” the judge said. “What the Constitution does not protect is a supposed right to ignore a binding industry CBA while continuing to operate within the industry to which it applies.”
The court further found that amendments to the NEC constitution had already widened participation and representation opportunities, including admission provisions allowing employers’ organisations within the sector to join and obtain proportional representation.
Justice Mambara said the law now strikes a balance between participation and compliance.
“The statute thus chooses inclusion without paralysis, participation without unilateral veto and uniformity without abolishing voice,” he ruled.
The judgment repeatedly emphasised the importance of uniform labour standards across an industry.
Rejecting what he described as a posture of exceptionalism, the judge said no employer, regardless of size or market position could place itself above the common labour regime.
“A sectoral giant is not licensed to behave as though labour legislation binds only the smaller players and reaches the largest one only by invitation,” he said.
“The law does not recognise a hierarchy of obedience in which the biggest actor may wait upon bespoke comfort before entering the common regime.”
The court also dismissed Econet’s argument that the NEC’s claim amounted to debt collection disguised as a mandatory order.
Instead, Justice Mambara held that the company’s failure to remit dues constituted a continuing breach of a continuing legal duty.
He further rejected complaints that the precise amount owing had not been quantified, noting that the NEC had been unable to calculate the figures because Econet had allegedly refused to provide the necessary payroll information.
“A litigant cannot withhold the very data that would make a sum liquid and then complain that the claim is insufficiently quantified,” the judge said.
In ordering the company to comply, the court directed Econet to submit payroll schedules covering all non-managerial employees from July 2023, remit all arrear dues calculated under the collective bargaining agreement, and continue making monthly payments going forward.
Justice Mambara reserved some of his sharpest remarks for the conclusion of the judgment, finding that the company had continued to resist compliance despite previous litigation, statutory amendments and reforms to the NEC constitution.
Quoting an earlier judgment, he remarked: “The music has stopped” and the time had come “to pay the piper.”
He added: “For too long the respondent has danced around a legal duty plain enough to be read by candlelight. The era of splendid isolation is over. It is time the respondent came to the party and obeyed the law.”
The court ordered Econet to pay costs on the higher scale of legal practitioner and client.
The applicant, the National Employment Council for the Communications and Allied Services Industry, was represented by Mr Caleb Mucheche of Caleb Mucheche and Partners. The respondent, Econet Wireless (Private) Limited, was represented by Mr Mzokuthula Mbuyisa of Mtetwa and Nyambirai.
