NECs, CBAs come under spotlight

Daniel Nemukuyu Harare Bureau
The constitutionality of National Employment Councils and the law compelling employers to subscribe to them and to be bound by their Collective Bargaining Agreements has been put under spotlight after the Supreme Court yesterday referred the dispute to the Constitutional Court for determination. Recently, the High Court ruled that companies are not obliged to register or pay levies to National Employment Councils, a development that is likely to leave firms with power to pay any amounts to their workers without any stipulated minimum wages or salaries.

The development is also likely to end the era of NECs and trade unionism in the country as the NECs, which heavily rely on funds from employers’ subscriptions, will be left without any funding. Justice Lavender Makoni made the ruling in a case involving NetOne Cellular (Private) Limited and the National Employment Council for Communications and Allied Services Industry. The NEC appealed to the Supreme Court against the judgment.

Yesterday, Advocate Lewis Uriri and Caleb Mucheche, who were representing the NEC, convinced the Supreme Court that the matter was a constitutional one and that the full bench should decide on the constitutionality of collecting money from employers as NEC subscriptions and compelling employers to abide by the CBAs even if they were not party to the negotiations. The Supreme Court then referred the case to the Constitutional Court for determination of constitutional issues.

In a judgment delivered in favour of NetOne Cellular Private Limited, Justice Makoni said the compulsory collection of funds from employers for the sustenance of NECs was unconstitutional.

NetOne took the NEC for the Communications and Allied Services Industry and the Ministry of Labour and Social Services to the High Court contesting the constitutionality of a collective bargaining agreement forcing the company to register with the NEC and to pay some dues.

The judge ruled that forcing employers to register with NECs was a violation of their right to freedom of association as enshrined in the Constitution of Zimbabwe.

“It is declared as follows: The imposition upon the applicant (NetOne) of the requirement to register with the second respondent (NEC for Communication and Allied Services) is a violation of the applicant’’s constitutional right to freedom of association.

“The Collective Bargaining Agreement for the Communications and Allied Services Industry (are in violation of Section 21 of the Constitution to the extent that they provide for the infringements declared in paragraphs of this order. It is ordered that Section 2(a), 33 and 36 of the Collective Bargaining Agreement for the Communications and Allied Services Industry (SI 1 of 2012) are struck down. There will be no order as to costs,” ruled Justice Makoni.

NEC for Communication and Allied Services Industry argued that the prima facie infringement of the applicant’’s right to freedom of association is a permissible derogation in terms of Section 23(3) (c) of the old Constitution.

It also argued that the obligation to pay levies was not a violation of the Constitution because it arose in terms of the law. “The court a quo erred and by declaring that sections 2(a), 33 and 36 of the Collective Bargaining Agreement for the Communications and Allied Services Industry SI 1 of 2012 are in violation of Section 21 of the Constitution and are struck down,” reads part of the notice of appeal. The NEC argued that the High Court, in terms of the former Constitution, had no jurisdiction to declare any legislation unconstitutional. But NetOne argued that it decided not to be part of the NEC and that the CBA compelling the company to pay dues and to register with the NEC was unconstitutional. “The right to freedom of association embraces the right to form and join associations, the right not to be compelled to belong to any association and the right not to admit persons to membership of an association.