National Engineering Workers Union v Progressive Engineering Metal Trades and Allied Workers Union & 3 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/21/24
HARARE, 25 SEPTEMBER, 2023 & 30 JANUARY 2024
CASE NO. LC/H/39/18
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 25 SEPTEMBER, 2023 & 30

JANUARY 2024

JUDGMENT NO. LC/H/21/24 CASE NO. LC/H/39/18

NATIONAL ENGINEERING WORKERS UNION	APPELLANT

Versus

PROGRESSIVE ENGINEERING METAL TRADES AND

ALLIED WORKERS UNION	1st RESPONDENT

GENERAL ENGINEERING METAL, IRON, STEEL AND

ALLIED WORKERS UNION	2nd RESPONDENT

THE REGISTRAR OF LABOUR	3rd RESPONDENT MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL

WELFARE	4th RESPONDENT

Before the Honourable Kudya J;

For the Appellant	- B. Makururu, (Legal Practitioner) For the 1st Respondent	- B. Maponga, (Legal Practitioner)

KUDYA J:

This is an appeal against the determination of the Registrar of Labour where he allowed the registration of the Progressive Engineering, Metal Trades and Allied Workers Union (PEMTAWU) in the face of opposition by General Engineering, Metal, Iron, Steel and Allied

Workers Union (GEMISAWU), National Engineering Workers Union (NEWU) and Automative and Allied Workers Union of Zimbabwe (AAWUZ). Background to the matter is that PEMTAWU applied for registration as a trade union in terms of section 33 of the Labour Act. Such registration was challenged by GEMISAWU, NEWU and AAWUZ. After hearing oral submissions and looking at documentary evidence tendered by the parties at registration the Registrar concluded that PEMTAWU had made a good case for registration.

In the result he went on to register PEMTAWU despite the other unions’ protestations. Irked by the registration NEWU appealed to this court in terms of Section 47 of the Labour Act. In this appeal it seeks that this court sets aside the registration of PEMTAWU as it is of the view that such registration is not in sync with the law. It is this appeal which is the subject of this judgment.

NEWU advances the following appeal grounds:-

Registrar erred at law to hold that PEMTAWU had complied with constitutional requirements yet mandatory provisions regarding discrimination and amendment were not provided for in PEMTAWU constitution.

Registrar erred in law in failing to note that a right to form a trade union in section 65 of the constitution can be limited by a law of general application.

Registrar erred in holding that NEWU was seeking to block out competition when in fact it was exercising its right to protect employees from trade union proliferation and fragmentation.

Registrar erred to proceed to register PEMTAWU without considering the requirements set out in Section 45 of the Labour Act.

In the result NEWU prayed that the appeal succeeds and that the Registrar’s decision to register PEMTAWU be set aside and substituted with an order dismissing the registration of PEMTAWU. In response to the appeal PEMTAWU maintained that;

Ground 1

1. Registrar correctly held that PEMTAWU had complied with constitutional requirements. There was substantial compliance with the requirement. NEWU does not suffer any prejudice arising from PEMTAWU constitution as the constitution is not binding on it.

Grounds 2 and 3

Registrar properly balanced the provisions of Section 65 and the general law. NEWU has no basis to block the registration of PEMTAWU.

Ground 4

The appeal ground is vague and incomplete. In essence there is no ground for appeal. In any event registration of a trade union is a matter for the Registrar’s discretion and in this case the discretion was properly exercised. In the result PEMTAWU prayed that the appeal be dismissed with costs and that its registration be made to stand.

It is worth noting that in its oral address to the court the appellant sought to conglomerate its appeal grounds into a single ground that the Registrar did no take into account all the factors to be considered for registration. In its view therefore the Registrar did not exercise his discretion properly. A reading of Section 45 of the Labour Act setting out what the Registrar has to consider when deciding upon the registration of a trade union demonstrates that indeed the Registrar needs to take into account the undesirability of a proliferation of trade unions’. That being as it is one needs to look at the factual conspectus of the facts of the registration of PEMTAWU.

It is on record that NEWU despite its long existence has only managed to attract a paltry 5000 membership of the possible 50 000 possible membership in the industry. It is thus the court’s view that given the stated figures there cannot be any argument about proliferation of trade unions. It is patently clear that NEWU has failed to attract the majority membership hence it cannot cry foul and argue that PEMTAWU should not be registered.

As PEMTAWU argues its trade unionism is a guaranteed constitutional right which NEWU has not demonstrated why such should be abrogated by denying PEMTAWU registration. The court is indeed alive to the quoted case of Rhodesia Railways Ltd v Amalgamated Engineering Union 1946 SR 155 that there is need for reasonable membership to allow registration. The figures presented by PEMTAWU demonstrate to an extent that there are members who are willing to be part of it and such should not be denied such rights.

The law is clear that there has to be demonstrable gross unreasonableness in the decision to register the Union. See Automotive and Allied Workers Union v Motor Trade Workers Union SC-18-06. In the case at hand there is no evidence of such gross unreasonableness to the extent that this court finds no basis of interfering with the Registrar’s decision. As PEMTAWU submits its constitution demonstrates clearly that there is substantial compliance with the constitution requirements of its registration.

This court is therefore not persuaded that NEWU has made out a good case of appeal. There is no cogent basis advanced at all calling for this court to ask that the registration of PEMTAWU be vacated. In the ultimate the court is satisfied that no good case for appeal has been made out by NEWU.

The appeal should consequently fail.

IT IS ORDERED THAT

Appeal being without merit in its entirety it be and is hereby dismissed with costs.

Makururu and Partners, Appellant’s Legal Practitioners

Shambamuto Law Chambers, 1st Respondent’s Legal Practitioners