adminLabour Matters Davies Ndumiso Sibanda
The decision by the Supreme Courts in the matter CT Bolts Private Limited vs Workers Committee SC16/12 that the workers committee is not a legal persona and another decision by the Supreme Court, Gweru Workers Committee vs City of Gweru SC236/13 where the Supreme Court accepted the workers committee as a legal persona has created confusion as to where the workers committee stands when it comes to dispute resolution with employers.
The two cases are not on all fours with each other as, in the CT Bolts case the court decided the case as guided by the Labour Act provisions which dismissed the workers committee as a legal persona because its role is express in terms of section 24 of the Act although the judgment leaves a few question marks where it states “There is no provision in the Act requiring the workers committee to adopt a constitution”. If we look at section 9(b) and 25(1)(a) it is evident that the Act provides for the crafting of a workers committee constitution.
The CT Bolts case further looks at important issues related to whether the workers committee is a legal persona and clearly states that the legislator wanted workers committees to be a legal persona, it would have done so as it did in section 29 of the Act as regards the Act.
However, in the Gweru Workers Committee vs City of Gweru case, the workers used a statement in the CT Bolts case that a workers committee should have a constitution and approach the court arguing that the workers committee that was before the court was not established in terms of the Act but was a creature of its own institution. It would seem this is the argument that convinced the Supreme Court to grant the workers committee an ear and declare it a legal persona by virtue of its constitution.
I am of the view that the Gweru workers committee judgment creates a lot of labour relations challenges in that it allows for the workers committee that work outside the Labour Act and if that is so, the employer is not obligated to deal with them. Further, it opens such workers committees to litigation which could result in the workers committee being ordered to pay huge amounts of money and further, the workers committee might not have the financial stamina to meet all legal obligations.
It is also interesting to imagine what the Supreme Court will say where a party approaches it and argues that while the law provides for theworkers committee to have a constitution, this was purely to allow for orderly administration for workers matters as demonstrated by Statutory 372 of 1985 which can easily pass for a constitution but does not go as far as making the workers committee a legal persona.
More so, in the light of the CT Bolts judgment where the Supreme Court aptly put it that if the legislature wanted the workers committee to be a legal persona, it would have done so.
The Gweru Workers Committee judgment, I can foresee many workers crafting constitutions from a common law perspective in order to qualify as a legal persona and that employers are likely to resist that approach and conflict could arise. Further, where an employer is faced with such a situation from the workers committee, he could still approach the Supreme Court and challenge the legal persona status of the workers committee by arguing that the workers committee despite having a constitution is a creature of statutes and as such it is not empowered by the Labour Act to become a legal persona.
In conclusion, there are many other arguments that could be raised and I believe we are likely to see a lot of cases going to Supreme Court over whether the workers committee is a legal persona and until a conclusive position is taken by the Supreme Court, the area will remain problematic.
Davies Ndumiso Sibanda can be contacted on: email:[email protected] or cell No: 0772 375 235
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