National Employment Council FOR THE Chemicals AND Fertiliser Manufacturing Industry V National Employment Council FOR THE Detergents, Edible OILS AND FATS Industry AND THE Registrar OF Labour

IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/294/16

HARARE, 14 MARCH 2016				     CASE NO. LC/H/APP/1267/15

AND 13 MAY 2016

In the matter between:-

NATIONAL EMPLOYMENT COUNCIL FOR			Applicant

THE CHEMICALS AND FERTILISER

MANUFACTURING INDUSTRY

And

NATIONAL EMPLOYMENT COUNCIL FOR			1st Respondent

THE DETERGENTS, EDIBLE OILS AND

FATS INDUSTRY

And

THE REGISTRAR OF LABOUR					2nd Respondent

Before The Honourable E. Muchawa, Judge

For Applicant	T. Pasirayi (Legal Practitioner)

For 1stRespondent	S. Chako (Legal Practitioner)

For 2nd Respondent	R. Chanduru (Civil Division)

MUCHAWA, J:

This is an application for stay of execution.  The Registrar of Labour handed down a determination on the 7th of September 2015 which found that there was an overlap in the scope of coverage between the applicant and the first respondent.  She went on to diminish the applicant's scope of coverage by excluding toilet preparations, detergents, soaps, candles, waxes and polishes.  It was directed that all companies which manufactured the aforementioned shall fall under the first respondent's industry and that administrative arrangements be put in place to secure employee benefits.

The applicant was dissatisfied and lodged an appeal in this court on the 6th of October 2015, after having received the Registrar's determination on or about the 17th of September 2015.

The grounds of appeal raised are;

The Registrar of Labour fundamentally misdirected himself and erred at law by varying the appellant's scope of coverage and ordering all companies affected by the variation to fall under the 2nd respondent in circumstances where this amounts to a contravention of section 65 (5) (c) of the Constitution which prescribes the right of employers and employees to form and join federations of such unions and organisations of their choice.

The Registrar of Labour fundamentally misdirected himself and erred at law by varying the appellant's scope of coverage and ordering all companies affected by the variation to fall under the 2nd respondent in circumstances where this amounts to a contravention of section 58 of the constitution which prescribes the freedom of assembly and association and prohibits compelling of any person to belong to an association.

The Registrar of Labour fundamentally misdirected himself and erred at law by varying the appellant's scope of coverage on the basis that it was not varied at the time that the 2nd respondent was registered in 1995 in circumstances where the evidence presented shows that it is actually the 2nd respondent that duplicated the applicant's scope of coverage which was formulated and in existence six years prior to the formation of the 2nd respondent.  Such a gross and unreasonable misdirection on the facts by the registrar was so gross as to amount to a misdirection at law.

The Registrar erred and misdirected himself at law by determining that there is no provision in the Labour Act that supports the coverage of the same scope by the two employment councils in circumstances where there is no provision in the Labour Act that prohibits two National Employment Councils with the same scope of coverage from co existing.

The Registrar of Labour fundamentally misdirected himself and erred at law by determining that the 2nd respondent must be composed of parties taken from the 1st respondent in circumstances where this effectively amounts to forcing parties who have not voluntarily joined 2nd respondent to do so in circumstances that affect their right to freedom of association.

It appears to me the applicant wrongly refers to the 1st respondent as 2nd respondent in his grounds of appeal and to itself as 1st respondent in ground 5 of appeal.

The law to be applied in an application for stay of execution is common cause.  The factors to be considered in favour of granting are that prospects of success on appeal are good, the possibility of irreparable harm exists if the application is not granted and the balance of convenience.  See Zimbabwe Open University v Gideon Magaramombe and Anor SC 20/12.

I turn to apply the law to the facts of this matter.

Prospects of Success

The applicant argues that it has good prospects of success on appeal.

It is argued that though grounds of appeal 1 and 2 are raising constitutional issues which were not put before the Registrar, a point of law can be raised at any time, even on appeal.  (See Austerlands (Pvt) Ltd v Trade and Investment Bank Ltd and ORS SC 92/05).

Grounds of appeal 3 and 4 are said to fall within the class of the principles stated in the cases of Agricultural Labour Bureau and Another v Zimbabwe Agro Industry Workers Union 1998 (2) ZLR 190 (S) at 201 and Robinson v Minister of Lands and Anor 1994 (2) ZLR 171 (S).  These cases state that the exercise of discretion by the Register can only be interfered with where the Registrar fails to conduct himself in accordance with the Labour Act or he improperly exercises his discretion.

An improper exercise of discretion would include where the decision is not based on reasonable grounds or where some wrong principle has been applied or where matters were considered which should or should not have been taken into account thus giving reasons that are bad at law.

The applicant argues that it has established prima facie that it has good prospects of success on appeal.

The respondent argues that the Registrar exercised her discretion properly in terms of section 61 of the Labour Act which empowers her to vary the registration of employment councils after satisfying herself on the need for this following representations from both parties.

It is argued too that the applicant cannot raise purely new issues on appeal as it has done through grounds 1, 2 and 5 and fault the registrar for not considering what was not before her.  For this reliance is placed on the case of Chikanda v UTC SC 7/99.

The approach taken of raising constitutional issues before this court is alleged to be erroneous and the applicant is urged to approach the proper forum for an appropriate remedy.

The remaining issues are said not to constitute a serious misdirection on the part of the Registrar.

It is trite that a point of law may be raised for the first time on appeal if its consideration involves no unfairness to the other party as stated in Muchakata v Netherburn Mine 1996 (1) ZLR 153 (SC).

The rationale for allowing issues of law to be raised at any time is to enable a court to have all the information, even at a very late stage so that it is enabled to make a proper decision.  (See Zimasco Pvt Ltd v Marikano SC 6/14).  It is for these reasons that I find that the appeal court should get an opportunity to consider grounds 1, 2 and 5 of appeal.

In ground 3 of appeal, the applicant seems to be alleging that some evidence placed before the Registrar was not properly considered and that reasons that a rebad at law were given in ground 4 of appeal.

For the purposes of this application, it is my view that the applicant has established, prima facie that it has good prospects of success on appeal.

Possibility of Irreparable harm and balance of convenience

The applicant explains that if the determination of the Registrar was to be enforced and it was to succeed on the appeal, it would be difficult to reverse the adverse effects of the enforcement.

The enforcement would totally dismantle the chemicals industry and cause an overhaul of the status quo thus affecting the income of the applicant whose membership would be seriously reduced.

I agree that there would be a serious financial and administrative cost to the applicant if enforcement would be done pending appeal.  The 1st respondent's averment that there will be no prejudice and that there are administrative remedies to address any ensuing prejudice was not well illustrated to me.

I therefore find that the possibility of irreparable harm on applicant's operations is real and the balance of convenience favours the stay of execution.

Accordingly the application for stay of execution is granted pending the hearing of the appeal in case No. LC/H/894/15.

Gill, Godlonton & Gerrans, applicant's legal practitioners

Mawire JT & Associates, 1st respondent's legal practitioners