Detergent, Edible Oils & Fats Workers Union v National Employment Council for the Detergent, Edible Oils and Fats Industry and Olivine Industries (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/37/16
HELD AT HARARE ON 15 JANUARY 2015
CASE NO. LC/H/37/16
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IN THE LABOUR COURT OF ZIMBABWE  	       JUDGMENT NO LC/H/37/16

HELD AT HARARE ON 15 JANUARY 2015         CASE NO. LC/REV/H/128/12

AND 22ND JANUARY, 2016

In the matter between:-

DETERGENT, EDIBLE OILS & FATS WORKERS UNION              -APPLICANT

This is an application for review of the First Respondent’s decision to grant Second Respondent an exemption from paying gazetted wages for the period January – December 2010.

The material background facts which are common cause are as follows.

The parties in 2010 engaged in salary wages negotiations for the period January to June 2010. The parties deadlocked. The matter was referred to an Arbitrator. The Arbitrator granted an award for increment to cover the period January to June 2010. The employer organization was aggrieved and appealed against the award to the Labour Court. The Labour Court through a judgement handed down in 2012 dismissed the appeal and upheld the arbitration award. Thereafter the minimum wages were then gazetted in terms of Section 82 of the Labour Act [Cap 28:01].

The Second Respondent then applied to First Respondent for an exemption from paying the gazetted wage for the years 2010 and 2011. On the 29th August 2012 the First Respondent granted the application in respect of January to December 2011. In respect of 2010 the First Respondent dismissed the application on the basis that it could not consider the application for exemption for 2010 as the minimum wage had been fixed by a superior authority namely the Labour Court. The First Respondent was also of the view that the application should have been filed in respect of the period July – December 2010 and not for the whole period i.e. January to December, 2010.

On the 31st of August 2012 the Second Respondent through its Industrial Relations Manager wrote a letter to the Designated Agent seeking what it referred to as a revisit and review of the Committee decision. The First Respondent then sat on the 14th of September 2012. The Committee thereafter granted the application for exemption from paying gazetted wages for 2010.

The Applicant, following this decision, filed the present application. The application is for review of the First Respondent’s decision granted on the 20th of September 2012. The Applicant initially cited the National Employment Council for the Detergent, Edible Oils and Fats Industry as the only Respondent in the application. Olivine Industries (Private) Limited however through an application for joinder which was duly granted by the Court was joined as the Second Respondent.

The Applicant in its Notice of Application submitted that the First Respondent erred in re-considering its decision as this is contrary to the industry Constitution which states

“The exemption application, accompanied by the necessary supporting detail, shall be heard by the Committee which shall come up with a determination and that the determination shall be final”

A preliminary observation ought to be made at this juncture. The application filed by the Applicant is not based on the normal grounds for review as outlined in the Labour Act [Cap 28:01]. Prior to its amendment by Labour Amendment Act, 2015 Section 89 (1)(d1) of the Labour Act [Cap 28:01] provided that the Labour Court had the same powers of review as the High Court. This essentially meant that in applications for review an applicant would need to raise the same grounds of review as could be raised before the High Court. See Zimasco (Private) Limited vs Maynard Farai Marikano SC 6/2014. The grounds which are outlined in Section 27 of the High Court Act [Cap 7:06] are as follows;

“27 Grounds for review

(1) Subject to this Act and any other law, the grounds on which any proceedings or decisions may be brought on review before the High Court shall be –

(a) Absence of jurisdiction on the part of the court, tribunal or authority concerned;

(b) Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be;

(c) Gross irregularity in the proceedings or the decision.

(2) Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals or authorities.”

It is common cause that through the Labour Amendment Act, 2015 the grounds of review before the Labour Court have been clarified and amplified for the ease of the litigants and the court. This matter is however not concerned with the fresh grounds as outlined in the Labour Amendment Act, 2015. The Applicant in casu needed to at the time of filing rely on either of the grounds for review as outlined in Section 27 of the High Court Act [Cap 7:06 ] referred to supra. The application however is not premised on any of those grounds. The court however considering that the Applicant is a trade union represented by a non-lawyer is inclined to overlook the error. It is also patently clear from its papers that what the Applicant is claiming is that there was a gross irregularity emanating from the First Respondent’s decision to reconsider its initial decision and that this is reviewable. In my view the ground is a valid ground for review that this court can proceed to determine. I turn to determine the ground.

The Applicant submission before the court was as follows; That the First Respondent is duly established by the Constitution of the National Employment Council for the Detergents, Edible Oils and Fats Industry; the Committee is made up of both parties i.e. trade union and employers organisation; the mandate of the Committee is as outlined in Section 11 of the Constitution; the Second Respondent having approached the First Respondent with its initial application for exemption for periods January – December 2010 and January to December 2011 the Committee then granted exemption in respect of January – December 2011. The Committee had declined the application in respect of the period July to December 2010 and the reasons were furnished. The decision was made in terms of Section 11 (c) (2) of the NEC Constitution. In terms of Section 11(c) (2) the decision is a final decision and is not appealable. The Second Respondent however made a fresh application before the same body resulting in the First Respondent granting the application for exemption. It was Applicant’s submission that it was grossly irregular for the First Respondent to have sat to review its own decision and then granted the application essentially giving two determination in the same matter. There was no provision in the Constitution allowing for such powers of review of its own decision. On that basis it was the Applicant’s submission the decision by the First Respondent was consequently null and void and ought to be set aside.

The First Respondent submission was, contrary to the submissions made by the Applicant, the First Respondent when it initially sat to determine the application did not hand down a determination in respect of the application for exemption for the January – December 2010. The Committee was constrained to determine the point in that the Committee considered that it could not temper with a decision of a superior authority, being the Labour Court which had pegged the minimum wages through its determination in the appeal case. It was after the Second Respondent had approached the Committee the second time and pointed at the error in the Committee assuming that it could not deal with the aspect of the 2010 wages, that the Committee had then dealt with the application and handed down its determination. In First Respondent’s view the first time it dealt with the matter the Committee refused/declined to determine the matter. There was consequently no determination issued then. The only determination the Committee had made which was final was when the Committee was approached by the Second Respondent the second time around. The Committee had sat on the 14th of September, 2012 and then handed down its determination granting an exemption for 2010. According to the First Respondent no gross irregularity had been committed in the circumstances.

The Second Respondent submission through Counsel was that First Respondent did not deal with the application for exemption for 2010 when it was initially referred by Second Respondent. The First Respondent had declined to deal with the matter on the basis of a wrong premise that it would amount to tempering with the decision of the Labour Court. The Second Respondent however having then requested in the later application for the First Respondent to reconsider its position considering Firstly, that the minimum wage was determined by the Arbitrator and not the Labour Court and Secondly that once the minimum wage had been determined and gazetted then First Respondent could entertain any application for exemption placed before it the First Respondent had duly granted the Second Respondent application. It was Second Respondent further submission that against that background there were no two determinations by the First Respondent. There was initially a refusal to deal with the application and once the legal point had been clarified the committee then handed its determination. It was also important to note there was no bar in the Constitution against the First Respondent entertaining an application for exemption after the minimum wages had been gazetted. It was Second Respondent submission that no gross irregularity had thus been committed by the First Respondent.

The only issue that is before the court in my view is whether the First Respondent committed a gross irregularity when it re-sat on the 14th of September 2012 to consider the application for exemption for the period January – December 2010.

The first port of call is the powers of the Exemption Committee. The Committee is indeed set up under the NEC Constitution. Its powers as outlined in the Constitution including receiving and determining applications for exemption from organisation covered by the Collective Bargaining Agreement. The constitution in Paragraph 11 (C) 2 clearly provides that upon consideration of an exemption application the Committee shall hand down a determination which determination shall be final and not appealable. Paragraph 11 (c) 2 in particular reads;

“2.	 The exemption application, accompanied by the necessary supporting detail, shall be heard by the Committee which shall come up with a determination and that determination shall be final and not appealable”

It is clear that the Committee once it has sat to determine an application has to hand down a determination. The determination is final and not appealable. The facts in casu clearly disclose that the Second Respondent referred an application on the 23rd July 2012. The Committee then sat on the 29th of August, 2012. It handed down a determination which was communicated through a letter by the NEC Chairman dated 29th of August 2012. The determination reads;

“The Exemptions and Variations Committee at the meeting held on the 29th of August 2012 agreed on the following:

That exemption from paying NEC minimum wages be denied for January to December 2010 for the reason that the increase for this period was awarded by the Labour Court which is a higher authority than the Exemption and Variations Committee. The Exemption and Variations Committee cannot therefore tamper with a decision made by a higher authority. It felt strongly that the application for the said period should have been limited to July – December and not to cover the whole period.

That exemption from paying NEC minimum wages and allowances be granted for the period January to December 2011.” (my own underlining)

It is clear upon perusal of the letter by the Chairman that the Committee did consider the application and dismissed the application in respect of January to December 2010 whilst allowing exemption for January to December, 2011. The First and Second Respondent have both argued that the Committee did not determine the First issue, that the Committee refused or declined to address the application. With respect the submissions by both Respondents are not borne by the letter. The letter clearly shows that the Committee made a determination to decline the award of an exemption in respect of January to December 2010. They then elaborated on the reasons for denial. That was clearly a determination on the application referred to them on the 23rd July 2012.

Whether they made that decision based on the wrong reasons is clearly neither here nor there. The bottom line is they did make a determination on the 29th of August, 2012. That determination in terms of Paragraph 11 (c) 2 of the relevant Constitution was final and not appealable.

The argument has been tendered by Second Respondent that it approached the First Respondent with a view to revisiting the correct position. The First and Second Respondent in their oral submission were both striving to avoid the use of the word ‘review’ but in essence what the Second Respondent was indeed seeking was a review of the initial determination by the First Respondent. The approach by the Second Respondent that it was only seeking a reconsideration of the position adopted is belied by the papers filed by the First Respondent. The papers clearly reveal that the Second Respondent was seeking a review of the First Respondent initial determination. The minutes of the First Respondent which are dated 14th September 2012 also clearly indicate that they are ‘minutes of the review of Olivine’s application for exemption’ held on the 14th of September, 2012’. Inside the body of the minutes it shows that Olivine HR Director thanked the Committee for granting them an opportunity to review their application for exemption. Finally the letter containing the second determination by the NEC Chairman dated the 14th September 2012 is also clearly titled ‘Review of the Exemption Committee Decision-Exemption for 2010.

The question that arises then is whether the First Respondent had the powers to review an earlier decision made in respect of the same matter. Clearly it did not. A perusal of the Constitution shows that the Constitution has no such provision for a review by the Exemption Committee of its own decision. The Constitution instead clearly provides in Section 11 (c) 2 that the Committee once it has reached a determination that determination is final and not appealable. It was open to the Second Respondent to if it was aggrieved by the decision to seek a review of the determination in the Labour Court or even appeal if it was so inclined.

The First and Second Respondent in both their submissions stressed the point the first decision by that the First Respondent was reached as an error at law. The First Respondent had declined to address the application as it erroneously believed if it were to deal with application would amount to it tempering with the decision by the Labour Court. The Second Respondent submission was that it was therefore entitled in those circumstances to approach the First Respondent to clarify the correct legal position. Whether the First Respondent was correct or wrong in their determination to decline to address the application for exemption of 2010 wages is clearly neither here or there. The issue is whether the First Respondent had the powers to review its first decision taken on the 29th August, 2012. It clearly did not have such powers.

In the result I make the following order:

The application for review succeeds.

The proceedings of the First Respondent on the 14th of September 2012  and the determination be and are hereby set aside.

The First and Second Respondent shall jointly and severally the one paying the other to be absolved pay the applicant’s costs.

Coglan, Welsh & Guest, 2nd respondent’s legal practitioners