Torondor Irrigation (PVT) LTD v L CHINEMBIRI & 26 OTHERS & NATIONAL ENGINEERING WORKERS UNION

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO
LC/H/219/2014
HARARE, 25 JULY 2013 & 11 APRIL 2014
CASE
NO
JUDGMENT NO LC/H/219/2014
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/219/2014

HARARE, 25 JULY 2013	& 11 APRIL 2014	CASE NO LC/H/219/2013

TORONDOR IRRIGATION (PVT) LTD			APPELLANT

L CHINEMBIRI & 26 OTHERS					1st RESPONDENT

NATIONAL ENGINEERING WORKERS			2nd RESPONDENT

UNION

Before the Honourable G Musariri, Judge:

For Applicants		Mr N Tshabangu, Secretary

For Respondent		Mr B Makururu, Attorney

MUSARIRI, G:

On 7th March 2013 the Honourable M. Dangarembizi made an arbitration award. In terms thereof he ordered Appellant to pay 2nd Respondent an amount of $14,706.04 in respect of union dues collected from 1st Respondent. Appellant then appealed to this Court against the award. Respondents opposed the appeal.

The matter raised two (2) issues, namely:

Whether the matter is prescribed? and

Whether Appellant is obligedto pay union dues to the 2nd Respondent in the amount awarded?

Prescription

This matter initiated by a written complaint addressed to the Principal Labour Officer.It is date-stamped 9th July 2012. A copy is filed of record. It was signed on behalf of both the employees and their union. The critical part read as follows,

“Torondor Irrigation (Pvt) Ltd has been duly deducting from our salaries trade union dues but has failed, refused or neglected to remit the same to the National Engineering Workers Union. In so doing we are now at risk of losing our membership to the trade union and it is our firm belief that our employer is thus interfering with our right to trade union membership. In other words, our employer is committing an unfair labour practice.”

The complaint did not specify the period or amounts involved. The applicable statute is the Labour Act Chapter 28:01 (hereafter called “the Act”). Section 94 (1) of the Act empowers a Labour Officer to deal with a dispute:

“within two years from the date the dispute or unfair labour practice first arose.”

The effect is that union dues allegedly due prior to 9th July 2010 are effectively prescribed. Yet according to the award, Respondents claimed

“$19,167.00 from May 2009 to July 2012.”

The arbitrator made a globular award of $14,706.04. He did not specify the period in respect of which the amount was due. On that account the award is untenable.

Whether payment due?

Section 54 (1) of the Act provides that:

“Union dues shall be collected by an employer from his employees and transferred to the trade union concerned-

By means of a check-off scheme or in any other manner agreed between the trade union and the employees and the employer or employers’ organisation concerned, or

Failing such agreement as referred to in paragraph (a), by authorisation in writing of an employee who is a member of the trade union concerned.”

The provision compels an employer to pay union dues to his employees’ union in terms of an agreement. Such agreement may be between the employer and the employee/s. it may be between the employers’ organisation and the union.  Documentary evidence was produced in casu. It showed payslips with deductions for union dues. These deductions were being made as late as 30th June 2012 (for B. Nyamasoka). Also filed of record is a stop-order by Nyamasoka. It is on the union’s (2nd Respondent) letterhead. It instructed Appellant to deduct 1% of his wage apparently as union dues. It was to remain in force until the union informed Appellant of its cancellation. Nyamasoka’s payslips on record consistently show a deduction of 1% of his wages as union dues. In the circumstances I am satisfied that there was an agreement for collection of union dues.

However, the arbitrator failed to do the necessary. He was required to identify each employee concerned and itemise his union dues for the period from 9th July 2010 to 31st July 2012. The totals of all the relevant employees would then constitute the amount payable by Appellant to 2nd Respondent. I shall therefore remit the matter to the arbitrator for him to do the necessary calculations and issue an appropriate award.

Wherefore it is ordered that:

The arbitration award by the Honourable M. Dangarembizi dated 7th March 2013 is hereby set aside; and

The matter is remitted to the arbitrator to calculate the amount payable by Appellant to 2nd Respondent and make an appropriate award, as directed in the last paragraph of the above judgment.

G MUSARIRI

J-U-D-G-E