THE Supreme Court of Zimbabwe has made another shocking landmark labour ruling giving employers the right to withdraw employees’ allowances, saying these were not a right or entitlement.
BY CHARLES LAITON/SILENCE CHARUMBIRA
This comes barely 14 days after the same court gave the employer the right to unilaterally terminate workers’ contracts and offload them on three months’ notice without having to pay retrenchment packages.
In a judgment delivered at the Supreme Court on Monday, in a matter involving the National Railways of Zimbabwe (NRZ) against all its employees’ associations who were demanding payment of housing and education allowances, the court said the parastatal had no obligation to pay such allowances since issues of allowances were based on collective bargaining agreements.
“The appellant’s (NRZ) position at all times was that it preferred to negotiate on basic salaries and not allowances. In my view, both the Labour Court and the arbitrator ought to have found that the allowances, not having been negotiated by the parties and therefore not forming part of their collective bargaining agreement, were not a right or entitlement for appropriation by the respondents,” Justice Vernanda Ziyambi said with the concurrence of other judges.
“They (allowances) cannot be imposed by the arbitrator, or indeed any court, in the same way that a court cannot write a contract for the parties. What occurred in this case was totally improper. The labour officer, the arbitrator and the Labour Court all missed the point.”
The Zimbabwe Railways Artisans’ Union, Railway Association of Yard Operators, Railway Association of Enginemen and the Zimbabwe Amalgamated Railwaymen Union had in 2007 taken NRZ to court over the latter’s refusal to pay them housing and education allowances.
When the matter was initially heard before an arbitrator (identified in court papers as Chinjekure), the latter ruled in the employees’ favour and ordered NRZ to include the allowances on its employees’ payslips, a ruling which was later confirmed by the Labour Court.
But, unsatisfied by the Labour Court’s ruling, NRZ then approached the Supreme Court for recourse and the appeal was upheld.
The matter was handled by Justices Ziyambi, Elizabeth Gwaunza and Antonia Guvava while Advocate Thabani Mpofu represented NRZ and Advocate Thembinkosi Magwaliba the NRZ unions.
In her judgment, Justice Ziyambi said: “The point being made is that the statute does not confer a right on any of the parties, without agreement of the others, to have included in their collective bargaining agreement, any of the subjects on the list.
“This is understandable since a collective bargaining agreement is a contract between the parties to it and only they can set the terms by which they will be bound. It follows that any benefits to be included in the collective bargaining agreement must be agreed by the parties.”
She added: “Accordingly, the appellant’s (NRZ) refusal to accede to a request to negotiate on the allowances did not indicate bad faith on its part. However, in the event that the arbitrator came to the conclusion that the appellant had refused to negotiate, the most he could do was to order the parties to negotiate. He could not impose ‘unagreed’ terms and conditions on the parties. In that submission the appellant was correct.”
The court further said although the arbitrator appeared to have accepted the point that allowances were issues of collective bargaining, he apparently later abandoned that line of reasoning.
“. . . He then went on to find: ‘however, allowances such as housing and school fees, have to exist in one form or the other’ and awarded, without giving reasons for so doing,” the court said.
“As already stated above, the matters listed in Section 74(3) of the (Labour) Act are matters which parties may, at their discretion, decide to include in their collective bargaining agreement,” Justice Ziyambi said.
“This is a matter for the parties to bargain and reach agreement on. It is not a matter where a court can intervene. A court can only intervene to enforce any agreement the parties will have concluded.
“The appellants’ position was ‘I will pay you the best salary that I can in the circumstances, but I would rather not commit to pay allowances’. There is nothing wrong with that approach. Each undertaking is beset with its own peculiar circumstances. The fact that one employer considers it appropriate to pay allowances puts no obligation on another employer to do the same.”
Yesterday, platinum producer Zimplats reportedly pulled out of retrenchment negotiations and dismissed about 15 managers using the earlier Supreme Court ruling.
Meanwhile, the Congress of Zimbabwe Trade Unions (Cozitu) will today convene a meeting of all trade unions to come up with a consolidated course of action regarding the Supreme Court ruling that has left over 6 000 workers jobless. In a statement yesterday, Cozitu said the shock ruling was a tragedy and a serious threat to job security and democracy in the country.
“Surely that judgment is the darkest day for labour in independent Zimbabwe. The ruling takes us 100 years back to the master and servant ordinance. It is surely anti-people, anti-workers; anti-poor; anti-ZimAsset and colonial,” Cozitu acting president Angeline Chitando said.
“The judgment has serious negative implications as it now exposes and leaves workers at the mercy of capitalist employers who have been longing to lay off their workers. We are fully aware of the real forces behind this judgment and we are more than ready to take them head-on and expose them for what they are and who they represent.”