Minister defends NECs

Daniel Nemukuyu Senior Court Reporter
NATIONAL employment councils (NECs) serve national interests by ensuring uniform conditions of service in all sectors to maintain public order and avert labour unrest, Government has said.

Responding to a case in which NetOne Cellular (Pvt) Ltd is contesting the legality of the law compelling employers to pay subscriptions to NECs, Minister of Labour and Social Welfare Petronella Kagonye said the removal of the councils will plunge the nation into chaos.

NECs rely on subscriptions from employees and employers for funding of its operations.

Minister Kagonye, through the Attorney-General’s Office, also defended the laws compelling employers to comply with collective bargaining agreements (CBAs) although they were not party to them.

“It is therefore, respectively submitted that to exonerate the first respondent from complying with the requirements of the collective bargaining agreement of the industry to which it belongs, would otherwise plunge the labour market into confusion. This would amount to the nation allowing promulgation of different conditions of service by different employers in the same industry.

“NECs are statutorily created to ensure that conditions of service are regulated uniformly in any sector. Allowing different conditions of service by different employers in the same industry would lead to labour unrest and chaos,” reads the minister’s response,” she said in court papers.

The minister said the law compelling employers to pay subscriptions to NEC was proper and justified in a democratic society. NECs, the minister said, administer delegated functions of her ministry and they must be funded to ensure a continued service.

“Looking back to the history of collective bargaining agreements, the minister used to announce wages of different sectors of industry on May Day, but the minister later delegated the role to NECs so that people who know the performance of their industries would negotiate for a fair wage in the particular industry.

“The functions performed by NECs therefore, serve the national interests of maintaining peace, tranquillity and order on the labour market by ensuring that sectoral minimum standards of employment are set to guarantee public order and avoid labour unrest,” reads the court papers.

NetOne Cellular Private Limited successfully challenged paying of subscriptions to the NEC for Communications and Allied Services Industry at the High Court. The judge declared as unconstitutional, Statutory Instrument 1 of 2012, which compels employers in the communications sector to pay dues to the relevant NEC. The SI also compels employers to register with the NECs. In terms of the High Court judgment, companies should not be forced to fund the operations of NECs, neither should they be bound by collective bargaining agreements thereof. The NEC for Communications and Allied Service Industry appealed to the Supreme Court.

Judges of the Supreme Court referred the matter to a full bench of the Constitutional Court by consent of the parties involved. The parties agreed that the matter had important constitutional issues that required ventilation by a nine-member bench.

The Constitutional Court is yet to rule on the legality of the laws.

Labour lawyer Mr Caleb Mucheche, for the NEC, argued that the councils played an important role in protecting the rights of workers. Workers are regarded as a weaker party in labour relations.

Mr Mucheche argued that the requirement was not peculiar to Zimbabwe.

“The binding nature of collective bargaining agreements to all employers and employees in a given undertaking or industry is not unique to Zimbabwe only, but is a very prominent feature, which looms large under international labour law as set out by the International Labour Organisation principles concerning collective bargaining agreements.”

NetOne argues that such compulsions infringe on its constitutional rights to property and freedom of association.

The mobile network operator argued that collective bargaining agreements were voluntary and that only parties should be bound by them.