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Fidelis Munyoro, Chief Court Reporter
The attempt by three teachers’ unions to invalidate the Public Service National Joint Negotiating Council (NJNC), arguing it deprived them of their right to form part of the bargaining process, failed after the High Court threw out their constitutional challenge for lacking a preliminary legal context, even before hearing the main arguments for and against.
The Zimbabwe Teachers’ Association, Progressive Teachers’ Union of Zimbabwe and Amalgamated Rural Teachers’ Union of Zimbabwe had collectively sued the Public Service Commission and Minister of Primary and Secondary Education, arguing that they did not enjoy practical effective bargaining.
They accused the Public Service Commission of unilaterally deciding their salaries without their input and still clinging on to Public Service labour regulations they described as “retrogressive” and which they claimed were violating their rights to collective bargaining.
They wanted an order declaring certain sections of the Public Service Act and the entire Public Service (Public Service Joint Negotiating Council) Regulations in SI 141/1997 unconstitutional.
However, Justice Lucy-Anne Mungwari upheld the preliminary points raised by the PSC and the Minister that the unions had no cause of action because there was no live dispute between the parties to trigger the application’s contention that the provisions were constitutionally invalid other than their mere opinions that was so.
“There is no live controversy that stands to be resolved by any order from this court,” said Justice Mungwari. “There is no background dispute against which the constitutionality invalidity of the impugned provisions is anchored.
“It is simply a case of, ‘because the Constitution provides for it, then the existing provisions of the Acts contested cannot give full meaning to the provisions of the constitution’. That cannot be enough.”
In her view that made the application purely academic and abstract hence the unions had no cause of action. So she accepted and upheld the preliminary point of the commission and the Minister.
The unions argued that the Constitution in Section 65, entrenched the right to collective bargaining and to organise, but the current regulations for the PSC allowing collective bargaining were a facade because at present there was just a consultative process based on the provisions of the repealed 1980 Constitution.
In addition, the unions sought to argue that the enshrinement of labour rights in the Constitution marked a departure from past practices regarding conditions of work, particularly in the Public Service where the right to collective bargaining, they argued, had been extended to all employees, employers and their trade unions and organisations save for the security services.
They pointed to section 203(1) (b) of the Public Service Act saying it was intentionally made subject to section 65(5) of the Constitution, which clearly indicates that the determination of conditions of service of the public service employees must be done through collective bargaining.
In their view, the enshrinement of the right to collective bargaining in the Constitution signified a departure from unilateralism.
They also argued that currently the Public Service Commission could impose conditions of service on public service employees without prior consultation or negotiations.
Despite the apparent absence of collective bargaining or consensus the conditions remain binding yet that was not the new constitutional dispensation.
But the PSC in their counter-argument submitted that the unions had failed to allege an infringement of any nature such as that their members were prohibited from engaging in collective bargaining and or prohibited from forming trade unions and employee organisations.
The unions, said PSC, did not allege that the commission had in any way barred them from exercising the rights conferred by the particular sections of the Constitution which they cited.
Thus, the PSC argued, the unions could not base their motion for the declaration of constitutional invalidity of the said sections on an academic apprehension.
And in her ruling, Justice Mungwari noted that the unions complained of the archaic way in which the commission had gone about attending to their labour rights, citing the disparity between the old constitution and the current one and the need to align the old law with the new so as to bring effect to the constitutional provisions around collective bargaining.
“The allegation, in my view, clearly betrays the indisputable fact that the declaration of invalidity is not predicated upon a live dispute between the parties.”
Justice Mungwari said the court had not been informed of what triggered the unions’ contention that the provisions are constitutionally invalid other than their mere opinions.
She said the unions needed to do more if they wanted this court to determine their matter.
“They ought to have created a live dispute between themselves and the respondents,” she said.
“They ought to have shown that they are embroiled in a wrangle with the respondents who have refused to abide by what they perceive as their constitutional rights.”
The collective bargaining agreement between an employer and a registered trade union contains terms and conditions of employment or any matter of mutual interest concluded between them.
The PSC established the NJNC through the Public Service Act with the responsibility of determining all Public Service salaries and working conditions, including those of teachers.
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