adminBulawayo Labour Court president Mrs Moya-Matshanga ordered Rubber Products to pay the costs of the suit.
The company and its employees had reached a stalemate and they approached an arbitrator who ruled that there was no binding agreement reached between the parties.
In October 2009, the works council of the enterprise to which the employer and employees belong entered into negotiations for salary increments for all the employees and also to determine the basic salary to be paid after the negotiations.
They also negotiated the need to pay a certain percentage over and above the salary in order to cushion the employees against the rampant cross rates used in retail shops.
They agreed to peg the basic salary at $120 and an additional 25 percent of that basic salary would go towards cushioning the workers since the rand at the time of negotiations firmed over the US dollar.
Rubber Products had been sold by Dunlop in February 2009 and about 50 workers went with it with a promise in writing by both Dunlop and Rubber Products that those employees’ conditions of service would not be varied.
However, in December 2009, Rubber Products arbitrarily varied some of the conditions of some of the workers. They terminated the funeral policies they had maintained with Nyaradzo Funeral Services and deducted pension contributions for the workers but did not remit to the pension fund.
They also deducted money for medical aid but did not remit the money to the medical societies until the matter went to arbitration.
The arbitrator considered submissions made by both parties and ruled in favour of the employees on the conditions of service aspect but felt that there had been no agreement to increase the basic salary by adding a 25 percent allowance to cushion them.
The arbitrator found that the 25 percent allowance had already been incorporated in their salaries and that it was the brainchild of management.
He further pointed out that it could not be said that management agreed to workers’ demands because it did not have the mandate of the chief executive officer and the board.
The employees then approached the Labour Court to appeal against the arbitrator’s decision.
In her ruling Mrs Moya-Matshanga said: “On 27 October 2009, the two parties met again for further discussions. The first item discussed was the acceptance by workers of a basic salary of $120 and an additional cushion allowance of 25 percent of the basic salary. No comment was made on the issue by the management team but it is pertinent to note that whatever would be agreed upon was subject to approval by the CEO and board.”
Mr Jonathan Moyo, of Calderwood, Bryce Hendrie and Partners, for Rubber Products raised a point in limine mainly that the offer of a wage increase to $120 plus 25 percent for cushioning the workers made on 26 October 2009 and the acceptance of the offer on 27 October the same year by the workers did not constitute an agreement since it was subject to approval by the CEO and the Board.
Mr Moyo conceded that the arbitrator was correct in criticising the management representatives for coming in without the necessary instructions.
He further argued that in the law of contract an offer should be without any conditions and that due to the fact that it was subject to approval by higher authorities it therefore ceased to be an offer.
Mrs Moya-Matshanga noted that the employer sent workers who had no mandate, adding that Section 75 (2) of the Labour Act, Chapter 28:01 makes it an unfair labour practice to fail to negotiate in absolute good faith or in anyway to bring about a situation that undermines the basis of negotiating in absolute good faith.
“I am of the opinion that it was not proper for the employer then to say the agreement was subject to approval by the CEO. The Labour Act leaves the issue of approval to the registrar. The employers then made an offer which was genuinely accepted and an agreement reached.
“The ‘subject to approval by the CEO’ means that he would unilaterally alter the provisions of the agreement as he deemed fit or order a renegotiation resulting in more delays. This would be illegal as it is against the principles of collective bargaining and is not accepted. The point in limine therefore falls away,” she said.
Online Reporter