National Association of School Development Associations and Committees (NASDAC) v National Employment Council for ZSDAC and Registrar of Labour N.O.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/113/2025
HARARE, 11 MARCH, 2025 AND
14 MARCH 2025
CASE NO LC/H/03/25
---------


IN THE LABOUR COURT OF ZIMBABWE       JUDGMENT NO LC/H/113/2025 HARARE, 11 MARCH, 2025 AND

14 MARCH 2025	CASE NO LC/H/03/25

NATIONAL ASSOCIATION OF SCHOOL DEVELOPMENT

ASSOCIATIONS and COMMITTEES (NASDAC)	APPLICANT

NATIONAL EMPLOYMENT COUNCIL FOR ZSDAC	1ST RESPONDENT

REGISTRAR OF LABOUR N.O.	2ND RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant	- J. Kadoko, Attorney

For 1st Respondent	- C. Mucheche, Attorney

For 2nd Respondent	- No Appearance

MUSARIRI, J:

Applicant applied to this Court for “a review of the decision/action of the 1st Respondent” regarding the negotiation process of the Collective Bargaining Agreement (CBA). The application

1

was made in terms of Section 89(1) 1d of the Labour Act Chapter 28:01. 1st Respondent opposed the application whilst 2nd Respondent did not file any response.

The pertinent part of applicant’s founding affidavit stated that;

“12. The Applicant is registered in the undertaking or industry governed by the 1st Respondent. This grants them a direct and substantial interest in ensuring that the 1st Respondent adheres to its constitutional duty of neutrality and transparency without discrimination.

15. The Applicant contends that the 1st Respondent has a legal duty to invite it for Collective Bargaining Agreements and accommodate it as a member, to ensure that their rights to benefits from NEC dues are preserved and to facilitate equitable coverage of all stakeholders in the industry.

20. The 1st Respondent is legally compelled under the new Section 56 and Section 58(g) of the Labour Amendment Act number 11 of 2023 (CAH 28:01) to admit new members into its constitution. The repeated denial of the Applicant’s membership is in direct violation of this provision, suggesting that the 1st Respondent has exercised its discretion to exclude the Applicant capriciously.

Despite repeated requests since 2017, the 1st Respondent has unjustifiably delayed or denied the Applicant’s involvement in its activities. This exclusion prevents the Applicant’s members from accessing their rights to participate in NEC hearings and other essential functions.”

Applicant then prayed for an order as amended, which reads, “1. The application be and is hereby granted.

The 1st Respondent must accommodate the Applicant as a party to its proceedings without any conditions.

The Collective Bargaining Agreement (CBA) recently negotiated and currently in

circulation, which is awaiting gazetting, be and is hereby set aside.”

In its opposing affidavit, 1st respondent countered in the main that,

“9. … The 1st respondent is not in any way discriminating the applicant because it has no right to participate as it is not part of the 1st Respondent. The right exists only to admitted parties.

11. The Applicant is not part of the 1st Respondent because upon the inception of the Labour Amendment Act 11 of 2023 the 1st Respondent went on to amend its constitution in order to align with the law. It is only after the 2nd Respondent approves that the applicant can be part of the 1st Respondent. At the moment the status remains the same.

14. The applicant has not been systematically excluded from participating in NEC activities since all their cases from their members and grievances are being attended to by the 1st Respondent’s designated agents save for the Collective Bargaining processes.

17. The only exclusion the Applicant faces is on collective bargaining because it is not yet a party and in terms of Section 5 of the applicant’s constitution there are only two recognized parties.”

1st Respondent prayed that the application for review be dismissed.

Analysis

Applicant relied mostly on Section 29(5) of the Act which provides that,

“Subject to this Act, a registered employers organization shall be entitled-

to form or be represented on any employment council; and

to exercise any other right or privilege conferred by this Act on registered employers organisations.” Underlined for emphasis.

1st Respondent relied on Section 58 of the Act which provides

“The constitution of every employment council formed in terms of this Part shall provide for-

the admission of new parties to the employment council;”

The major bone of contention is the negotiations leading to the Collective Bargaining Agreement CBA dated 25 November 2024. Applicant states that they were legally entitled to participate in the negotiations but 1st Respondent excluded them. The 1st Respondent counters that Applicant is not yet their member and so could not participate in the negotiations. Section 29(5) of the Act gives applicants as a registered employers organization an unfettered right to be represented in 1st Respondent. Apparently 1st Respondent has moved to amend its constitution to include new members but says the amendment awaits 2nd Respondent’s approval in order to take effect. However 1st Respondent has not cited the basis upon which its constitution can override the statutory provisions of S. 29(5). Neither did it provide the authority which states that they require the 2nd Respondent’s approval in order to comply with S. 29(5). The Section 58(g) relied on by 1st Respondent does justify the delay in admitting a new member as required. It only ensures that new parties are properly admitted in terms of an employment council’s constitution.

Conclusion

The aforegoing analysis shows that applicant’s case abounds with merit. However this Court is unable to nullify the said CBA because it involves 1st Respondent and a third party the Zimbabwe Schools Development Associations and Committees (ZSDAC) which was not cited as a party to these proceedings. The third party’s rights under the CBA cannot be nullified without affording them a hearing. The application will therefore be granted with appropriate relief.

Wherefore it is ordered that,

The application for review be and is hereby granted;

The 1st Respondent shall accommodate Applicant as a party to its collective bargaining processes and negotiations; and

Each party shall bear its own costs.

G. MUSARIRI J-U-D-G-E