Peterhouse Group of Schools' Employees v Peterhouse Group of Schools & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/734/16
HELD AT HARARE 12 MAY 2016
CASE
JUDGMENT NO LC/H/734/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/734/16

HELD AT HARARE 12 MAY 2016				CASE LC/H/REV/45/15

& 18 NOVEMBER 2016

PETERHOUSE GROUP OF SCHOOLS’				Applicant

EMPLOYEES

PETERHOUSE GROUP OF SCHOOLS 				1st Respondent

NEC WELFARE & EDUCATIONAL INSTITUTIONS		2nd Respondent

Before The Honourable G Musariri, Judge

For Applicant		Ms S Chihombe, Unionist

For Respondents		G Makings, Attorney

MUSARIRI J:

Applicant applied for the review and reversal of 2nd respondent’s determination date-stamped 20 March 2015.  Respondent/s opposed the application.  The determination is filed of record.  In the main it endorsed the “exemption agreement” between the employer (Peterhouse) and 129 employees wherein the parties agreed to waive stipulated wages.

Four (4) grounds for review were listed.  The 4th ground complained about proceedings followed by the NEC.  The complaints were not specified in the application.  Neither were they specified, let alone pursued, in oral argument.  The 3rd ground attacked the way in which the exemption agreement came into being.  This occurred before referral to the NEC.  It does not deal with the conduct of or the determination by the NEC.  The 1st and 2nd grounds averred that the agreement violated provisions of the Labour Act [Chapter 28:01] (hereafter called the Act).

It was alleged that the agreement violated section 6 (1) (a) of the Act.  The section provides that,

“(1) No employer shall-

Pay any employee a wage which is lower than that to fair labour specified for such employee by law or by agreement under this Act,” [The underlining is for emphasis.]

The wages in question were set out under a Collective Bargaining Agreement

(CBA) S.I. 102/14.  Section 5 of the CBA empowers the NEC to exempt payment of prescribed wages upon application.   Apparently this is what happened in casu.  The employer and employees agreed on the exemption.  The employer applied to the NEC for exemption relying on the agreement.  The NEC granted the exemption.  Thus the exemption was granted in terms of the CBA.  That is consistent with the provision of the afore-quoted section 6 (1) (a) of the Act.

It was also argued that NEC ignored the binding nature of CBAs as per section 82 (1) (a) of the Act.

The section provides that,

“(1) Where a collective bargaining agreement has been registered it shall-

with effect from the date of its publication in terms of section eighty-five, …, be binding on the parties to the agreement, and all employer, contractors and their 	 respective employees in the undertaking or industry to which the agreement relates;”

This provision does not impugn the exemption agreement.  It underscores the

importance of the CBA.  However what respondent either ignored or underplayed is that it is their CBA itself which provides for the exemption.  If the employees were unhappy with the manner in which they agreed to the exemption, they should have challenged the agreement directly.  They could not smuggle their challenge in the review proceedings against the NEC.  All in all I consider that no valid grounds for review were substantiated.

Wherefore it is order that,

The application for review be and is hereby dismissed; and

Each party shall bear its own costs.

G MUSARIRI

J U D G E