Gokwe North Rural District Council v Zimbabwe Rural District Council Workers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/417/16
HELD AT HARARE 24 MAY 2016
CASE NO
JUDGMENT NO LC/H/417/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/417/16

HELD AT HARARE 24 MAY 2016				CASE NO LC/H/875/15

& 22 JULY 2016

In the matter between:

GOKWE NORTH RURAL DISTRICT COUNCIL				Appellant

And

ZIMBABWE RURAL DISTRICT COUNCIL WORKERS UNION		Respondent

Before The Honourable E Muchawa, Judge

For Appellant			T Mberi (Legal Practitioner)

For Respondent		J B Chaka (Trade Unionist)

MUCHAWA, J:

This is an appeal against an arbitral award.

The respondent is a registered trade union in terms of the Labour Act [Chapter 28:01].  It represents employees in the rural district councils of Zimbabwe.  The appellant is a rural district council incorporated in terms of the Rural District Council Act [Chapter 29:13].

The claim brought by the respondent before the arbitrator was for union dues arrears for the period July 2014 to April 2015 together with 15% interest on all dues paid after the 5th day of the ensuing month.

The arbitrator found for the respondent and ordered that the appellant should remit union dues amounting to $7 335.32 inclusive of 15% interest in terms of a payment plan to be agreed between the parties.

Aggrieved, the appellant has noted this appeal on these grounds;

The honourable arbitrator erred at law in awarding payment of the amount of seven thousand three hundred and thirty five dollars and thirty two cents (US$7 335.32) when the evidence before him established that there were no arrears due to the respondent.  The arbitrator failed to consider the overwhelming evidence that had been placed before him which clearly showed that the appellant was not indebted to the respondent in the amount claimed or any amount whatsoever.  In doing so, the arbitrator made a gross misdirection on the facts amounting to an error at law.

The honourable arbitrator at law (sic) in ordering that interest be charged at 15% interest when in fact if ought to have been 5% as prescribed at law.  He relied and wrongfully so, on a Collective Bargaining Agreement that had not been published as a statutory instrument.  Although submissions were made regarding the validity of the Collective Bargaining Agreement, he chose not to consider them or even address the issue and in so doing, fell into error.

At the hearing I allowed an amendment to ground 1 of appeal wherein the last

sentence was incorporated.

As a further preliminary issue, this court dismissed the respondent’s application that the matter proceed in terms of Rule 19 (3) (b) as heads of argument were properly filed in terms of the Rules.

The Court proceeded with the matter after the respondent had withdrawn the process filed on its behalf by Lawman Chimuriwo Attorneys at law being;

the Notice of Response filed on 9 October 2015

the Notice of Opposition to Amendment filed on 29 March 2016

heads of argument filed on 24 November 2015

Such documents were accordingly struck off the record.

The matter then proceeded on the basis of the Notice of Opposition filed by respondent on 16 October 2015, on its own behalf.

I proceed to deal with the appeal grounds hereunder.

Ground 1 – Propriety of award of US$7 335.32 in light of evidence presented

The appellant argues that the arbitrator erred in awarding the sum of $7 335.32 when the evidence presented to him showed contrary facts.

It is claimed that the appellant presented bank statements to confirm proof of payment, deposit slips to confirm that the money had been paid into respondent’s accounts as well as audited financial statements.

The respondent disputes that the appellant availed the evidence claimed.  I was referred to the appellant’s response before the arbitrator on page 40 of the record paragraph 2 (d).  Therein the appellant made reference to only one document produced before the arbitrator titled “Annexure A” being a schedule tabulating the appellant’s contributions per employee from January 2014 to April 2015 and the amounts paid and the date of payment.

I was further referred to page 25 of record wherein the respondent acknowledged in its replication, the contents in Annexure A but qualified them as relating to arrear union dues prior to the claim in question being for November 2013 to June 2014.  In support of this assertion I was referred to record page 37 being a tabulation of union dues for each employee, total owing, less payments owing and reflecting a credit balance of $1 165.01.

Record page 38 then reflects a tabulation of union dues for July 2014 to April 2015, the period in issue in this matter.  It reflects total unions dues of $11 000.33 less payments of $2500.00, less the credit balance of $1165.01.  This leaves a balance owing of $7 335.32.

The statement of claim on record page 43 at paragraph 2 shows that the initial claim by the respondent was $7 971.27.  This was adjusted to $7 335.32 following the appellant’s response on page 40 para 2 (c) pointing to a duplication of the name of E Mubhedha.  In its replication, the respondent conceded to this on page 27 of record.

Though the appellant claimed to have submitted bank statements, the record before me does not show this save for the schedules I have explained above.  There is no evidence of any audited statements having been submitted and ignored.  Despite an undertaking by the appellant to avail a certified copy of the arbitrator’s record containing such evidence, by 3 June 2016, such a record was not availed to the court by 6 June 2016.

Accordingly, in the circumstances, I find that the arbitrator properly considered the evidence before him and correctly awarded the amount of $7 335.32.

Ground 2 – Interest charged

The respondent’s claim for interest at the rate of 15% is based on a collective bargaining agreement which was registered by the Registrar of Labour on 14 April 2010.  This Collective Bargaining Agreement is between the Association of Rural District Councils (ARDC) as the employer’s organisation and the Zimbabwe Rural District Councils Workers Union (ZRDCWU), the employees’ organisation.

The Collective Bargaining Agreement amends Statutory Instrument 144 of 2007 in clause 12 as follows

“Any employer who fails to remit the monthly dues or 25% service charges quarterly to the Employment Council, the Employers Organisation and the Employees Organisation as the case may be, by the 5th of the ensuing month shall be charged interest at 15%, or monthly dues or service charges at the prevailing rate whichever is greater.”

It is common cause however that such collective bargaining agreement was not subsequently gazetted as advised by the registering authority.

The appellant contends that it was erroneous for the arbitrator to rely on an unregistered collective bargaining agreement.  It was further argued that the binding nature of a collective bargaining agreement depends on it being registered and then published as a statutory instrument.  In the hearing, it was conceded that the collective bargaining agreement in question was registered but not gazetted as a statutory instrument.

This calls on me to interpret section 82 of the Labour Act.  This section provides as follows

“82 Binding nature of registered collective bargaining agreements

Where a collective bargaining agreement has been registered it shall –

With effect from the date of its publication in terms of section eighty five, or such other date as may be specified in the agreement, be binding on the parties to the agreement, including all the members of such parties, and all employers, contractors and their respective employees in the undertaking or industry to which the agreement relates

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This section shall apply  mutatis mutandis in respect of any part of a collective bargaining agreement.

My reading of this section is that once a collective bargaining agreement is

registered, it is binding on the parties stated in paragraph (a) of section 82.  What differs and is provided for differently is the effective date which may be that of its publication or that specified in the agreement.

Section 80 of the Labour Act fortifies my grammatical and literal interpretation of this section.  It provides

“80 Publication of collective bargaining agreements

Upon registration of a collective bargaining agreement the Minister shall publish the agreement as a statutory instrument.

The terms and conditions of a registered collective bargaining agreement shall become effective and binding-

from the date of publication of the agreement in terms of subsection (1); or (my emphasis)

from such other date as may be specified in the agreement.

The collective bargaining agreement in casu was duly registered and an effective date of 1 April 2010 was given.  The terms and conditions of the agreement became effective and binding from that date which was specified in the agreement.

There was therefore no error on the part of the arbitrator.

Accordingly the appeal is dismissed with costs for lack of merit.

Mberi Chimwamurombe Legal Practice, appellant’s legal practitioners