NEC Brickmaking and Clay Products v NEC Construction Industry

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/249/2023
HARARE 8 JUNE 2023
CASE NO LC/H/119/23
31 AUGUST 2023
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IN THE LABOUR COURT OF ZIMBABWE

HARARE 8 JUNE  2023

31 AUGUST 2023

JUDGMENT NO LC/H/249/2023 CASE NO LC/H/119/23

NEC BRICKMAKING AND CLAY PRODUCTS	APPELLANT

NEC CONSTRUCTION INDUSTRY	RESPONDENT

Before the Honourable G. Musariri Judge:

For Appellant	Mr T. Kabuya, Attorney	-

For Respondent	Mr K. Kadzere. Attorney

MUSARIRI, J:

On the 23rd January 2023 at Harare, the Registrar of Labour issued a determination which ruled as follows,

“1. The concrete products fall under CBA for Construction Industry as they have been dealing with concrete products.

The National Employment Council for Brick Making and Clay Products Manufacturing Industry continue operating but exclude all concrete products.

Both NEC to co-exist as primary and ancillary functions accordingly in terms of their scope of coverage.

I so determine.”

Then appellant appealed the ruling to this Court in terms of section 46 of the Labour Act Chapter 28:01  hereafter called the Act.

The grounds of appeal are three-fold thus,

“The Registrar grossly erred and misdirected himself factually and at law and in holding that the cement bricks are not covered under the Appellant’s scope when in actual fact their scope covers all bricks made from all materials and there is no exception.

The Registrar grossly misdirected herself a misdirection that amounts to a point of law, in that by registering an employment council to cover brick making industry, that legally excludes other employment council from covering the same scope.

Put differently, once there is an employment council for brickmaking the Registrar is compelled at law to vary scope of any employment council that covers brick making and clay products to the exclusiveness of the appellant.”

2

LC/H/249/2023 LC/H/119/23

Respondent opposed the appeal. It argued that the Registrar correctly varied the Appellant’s scope of coverage, especially considering the fact that Appellant’s coverage did not explicitly cover concrete products whilst the Respondent’s CBA, which was registered before Appellant’s CBA specifically includes concrete products in its scope of coverage. (Ref Para 4 of Respondent’s heads of argument.)

Appellant bolstered it appeal by reliance on section 1 of its CBA which provides that

“This agreement shall apply to-

All employers in the brickmaking, clay and tile, refractories, earthware, castables, crucible, monoliths and cement bricks and other basic material based bricks…”

Paragraph 2 of the Registrar’s ruling excluded all concrete products from appellant’s coverage. The real issue between the parties were whether cement bricks are concrete products. It is common cause that cement is a key ingredient in the manufacture of concrete. Thus the distinction between the two is rather academic where it comes to cement/concrete bricks. I am persuaded by appellant’s argument that the Registrar failed to purposively interpret the parties’ respective CBAs. Once appellant was registered with a mandate to cover brickmaking it followed that any other contrary CBA was effectively amended accordingly. The Registrar sought to justify her ruling on the basis that respondent dealt with concrete products prior to the registration of appellant. That does not justify denying appellant coverage of industries for which it was registered. It was argued by respondent that the dispute arises from employers who wish to jump their ship to join appellant because of respondent/s high wage rates. That argument is really a red herring as it has no bearing on the legal issues raised by the dispute. Lastly I consider that respondent’s complaint if merited, should have been raised during the registration of appellant to cover the brickmaking industry.

The Registrar was petitioned by respondent to deal with “encroachment” by appellant. As indicated above the complaint of encroachment cannot be sustained. The Registrar should have dismissed the complaint.

3

LC/H//2023 LC/H/119/23

Wherefore it is ordered that;

The appeal be and is hereby allowed;

The determination by the Registrar of Labour dated 23rd January 2023 is set aside and substituted as follows

“The NEC Construction Industry’s complaint of encroachment by NEC Brickmaking and Clay Products is dismissed.”; and

Each party shall bear its own costs.

G MUSARIRI J-U-D-G-E