Workers’ committee very important

authority to sue or be sued? The People’s Own Saving Bank was involved in a dispute with its workers which later spilled into the Labour Court after an appeal by the POSB workers’ committee.
POSB submitted that the legislature did not empower the workers’ committee with the necessary authority to sue or be sued. It was argued that the legislature also created employment councils and, in terms of Section 60 of the Labour Act, clothed them with the authority to sue and be sued as body corporates.
Because there is no corresponding section in relation to workers’ committees, it was argued that the legislature’s intention was not to clothe the workers’ committees with authority to sue and be sued. The legislature in Part VI of the Act provides for the formation and functions of workers’ committees. In terms of Section 23 (1) and paragraph 1(a), workers employed by the same employer may appoint a workers’ committee to represent their interests.
The workers themselves shall determine the composition and procedures of the workers’ committee. Section 24 provides for the functions and in terms of that Section, workers’ committees shall perform the following:
l They shall represent the employees concerned in any matter affecting their rights and interests.
l The workers’ committee shall negotiate with the employer concerning a Collective Bargaining Agreement relating to the terms and conditions of employment.
l It shall recommend a collective job action to its constituency, while its members can elect to the workers’ council to represent the employees’ interests in the works council. Where workers’ committee has been appointed to represent employees, no person other than such workers’ committee and the appropriate trade union may act for the employees.
This is when it comes to negotiating a CBA or direct or recommend collective job action of the workers.
The legislature did not specifically provide the right to be a body corporate capable of being sued or suing.
The legislature did not also specifically deny the workers’ committees such power. The Act is silent on this issue. There is a gap in the statute.
The custom of our courts has been to treat workers’ committees as bodies corporate, capable of suing and being sued. The court — while noting that “custom” does not dictate absolutely the construction of statutes also accepts the following:
“Where a statute may fairly be interpreted in either of two ways, custom may well be invoked to tip the balance.”
Unless the legislature had expressly denied the workers’ committees this authority, it would be unfair to decide the POSB case on the basis that workers’ committees lack the capacity to sue or be sued.
The Labour Court is enjoined to ensure fair, just and equitable resolution of disputes. One would be thus inclined to go with custom to ensure fairness in resolving the dispute between the parties. It has become trite that labour disputes should be decided on the basis of their merits and not on the basis of technicalities. “A person guilty of misconduct should not escape the consequences of his misdeeds simply because of failure to conduct disciplinary proceedings properly. He should escape such consequences because he is innocent . . . ” (Air Zimbabwe vs Chike Mensa SC 89/04). An employer, too (in labour disputes), can not escape the consequences of its misdeeds simply because the workers have challenged it under the umbrella body (workers’ committee). It should escape such consequences because it acted lawfully. Procedural considerations should not be allowed to vitiate proceedings unless it can be shown that the other party would suffer prejudice. No prejudice had been suffered by POSB in this case, and none had been alleged.
For this reason, the High Court — which is a court that will not wink on legal technicalities and formalities — can be distinguished from the Labour Court.
Proceedings before the High Court differ in this regard from proceedings before the Labour Court.
In any event, the then Appellant Division in the case of LeGrand vs Carmelu (Pvt) Ltd 1988 (2) RLR 40 held in a case where a technical issue was raised that the point raised was in the circumstances wholly technical and academic. The court a quo had correctly paid no regard to it and adjusted on the real issues between the parties. The court had the following to say in its judgment. “The civil courts in common with criminal courts exist to do justice and not to provide some practitioners with a forum in which, relying upon technical and wholly academic points, attempt to prevent a court adjudicating upon the real issues.
“It was said with commendable clarity in Rex vs Hepworth, 1928 AD at 277: ‘A criminal trial is not a game where one side is entitled to claim the benefits of any omission or mistake made, by the other side. A judge’s position in a criminal trial is not merely that of an umpire to see that both sides observe the rules of the game. A judge is an administrator of justice, not merely a figurehead. He has not only to direct and control the proceedings according to recognised rules of procedure but to see that justice is done.’
“It must with equal force and truth be said that a civil trial is not to be allowed by the presiding judicial officer to degenerate into a contest on technical and wholly academic points which obscure and even frustrate a trial on the real issues.” The corporate status of a body is not only acquired through legislative provisions. The workers’ committees were created by the Act, but the scope and parameters of their activities is decided by the employees who are required to have constitution which govern how they function. In view of the foregoing, in this case the workers’ committee has the requisite capacity. It is fair and just that the dispute between the parties be resolved on the basis of merits and not on a point which is wholly technical and academic. That is the circumstances of this case, technical and academic arguments are not allowed to obscure or frustrate the trial on the real issues.
Accordingly, Labour Court president Ms Lilian Hove dismissed the point raised in limine and directed that the Registrar — on notice to both sides — set the matter down for continuation on the merits.