Understanding Workers’ Committee

0ONE of the things that employers need to do is to deliberately invest in the training of their workers committees. For a long period of time militant approaches have been taught when it comes to the role of the workers’ committee. I believe this is actually a wrong approach altogether. Workers Committee serve a very important role in an organisation as we will discuss in this article. Many organisations have seen new workers’ committee members being elected this year or the preceding ones. Consequently, it becomes very important to acquaint the new members on their rights duties in terms of the law, and most importantly what the laws says about them. The majority of the conflicts that arise at the work place are caused by two things; ignorance and arrogance.

Ignorance of the law is deadly. It is even more serious when it is coupled with arrogance. It is often said that zeal without knowledge is deadly. There is also arrogance that arises when a party is fully aware of what the law says, but simply decides to do the opposite. This week I am going to start a conversation that is meant to assist employers, and employee representatives who will be in Workers Committees on what the laws says about them. I will not be able to exhaust everything in this instalment, so I will do Part II next week.

Freedom of Association

The history of Labour Law in Zimbabwe is quite extensive, and I will never be to cover it in these articles, but I need to make a point that the majority of things that are being taken for granted now did not exist at the workplace one of them is freedom of association. The pre-colonial legislation had no scope for collective bargaining for the Africans. The constitution of Zimbabwe is a perfect starting point when we are having this conversation on Workers Committees. Section 58 (1) of the Constitution of Zimbabwe provides that “every person has the right to freedom of assembly and association, and the right not to assemble or associate with others”. There is a right to associate and disassociate that is guaranteed in terms of the Constitution. This means an employee cannot be compelled to be part of a workers committee or even a trade union. It is a voluntary arrangement.

What is a Workers Committee?

Section 2 of the Labour Act does not offer a clear definition of what a workers committee is. It defines a “workers’ committee” as a workers committee appointed or elected in terms of Part VI of the Labour Act. What this means is you actually need to need to go to Part VI which starts with Section 23 to have an understanding of what you are being pointed to. Section 23(1) of the Labour Act provides that, “…employees employed by any one employer may appoint or elect a workers’ committee to represent their interests.” The word “interests” is interesting. It speaks to legal interests. A workers’ committee can only advance interests that are defined and guaranteed in terms of the law. There is therefore need to avoid generalizations of what the interests are.There are two things that arise from Section 2 as read with Section 23(1) of the Labour Act which defines a workers’ committee. A workers’ committee can be appointed or elected by the employees. A workers’ committee is created in terms of the Labour Act as read with SI 372/1985, consequently its powers are also defined in terms of the same

Act.

Legal Status of a Workers

Committee?

This is one area that had not been attended to for long until the Supreme Court cleared the issue in CT BOLTS (PVT) LTD v WORKERS COMMITTEE SC 16/12. There are several cases in the past such as Thomas Meikles Centre (Pvt) Ltd v (1) TM National Workers Committee (2) D Mvududu N.O. (3) The Minister of Public Service, Labour and Social Welfare SC 77/02 and Olivine Industries (Pvt) Ltd v Olivine Workers Committee 2000(2) ZLR 200(S) where the Supreme Court proceeded on the basis that the workers committee cited in the appeal proceedings was properly before it. The issue of the legal status of the workers committee had not, however, been raised and consequently a determination of the legal status of the workers committee never became necessary. At the hearing of the matter, in CT BOLTS (PVT) LTD v WORKERS COMMITTEE SC 16/12 it appeared to the Court that the Respondent, simply cited as “Workers Committee”, was not a legal persona, capable of being sued. The Court accordingly both counsel for the parties were asked to address the Court on the matter. There was consensus between the parties that a workers committee appointed by workers of the company was not a legal persona and cannot therefore be sued.

The Court further ruled that the function of the workers committee is to represent the employees in any matter affecting their rights and interests and to negotiate with the employer a collective bargaining relating to the terms and conditions of the employees concerned. The Act however has not made provision for the workers committee to operate as a legal persona. Had this been the intention, the Act would no doubt have said so. There are several statutes that clear create legal personalities for entities.

The issue of the legal status assumes greater significance in cases where there could be issues of costs involved. Under the common law, an unincorporated association, not being a legal persona, cannot as a general rule, sue or be sued in its name apart from the individual members, whose names have to be cited in the summons. A universitas on the other hand has the capacity, apart from the rights of the individuals forming it, to acquire rights and incur obligaposition tions. The is also established that a body that has no constitution is not a universitas for it is the constitution that determines whether an association is or is not a universitas. A workers committee exists to safeguard and champion the interests and welfare of the workers at the work place (Section 24). It has no other function. There is no provision in the Act placing an obligation on a workers committee to adopt a constitution. There is also no requirement for a workers committee to acquire rights apart from the rights of the individuals forming it and the employees they represent.

There is also no provision for a workers committee to acquire assets in its own name. On the other hand, s 29 of the Act has provided that upon registration, every trade union, employers’ organisation or federation shall become a body corporate and in its corporate name shall be capable of suing and being sued. Such bodies are required by s 28 to adopt a written constitution. Had the intention of Parliament been to clothe a workers committee with some legal status, the Act would no doubt have said so. The fact that it did not do so suggests that the intention was not to give the committee any other additional rights.

In Cold Storage Company National Workers Committee v Cold Storage Company Limited HB-8-02, however, the legal capacity of the workers committee to institute the proceedings in that matter was raised. In dismissing the application, the court remarked at p 2 of the cyclostyled judgment:

“The legislature did not give the workers’ committee the right to sue and to be sued like it did to the employment council. In s 60 of the Act, employment councils were made bodies corporate, capable of suing and being sued. It seems to me that if the intention of the legislature was to make workers committee legal personae it would have said so.

The applicant, however, argued that it derived its authority from the provisions of the Act quoted supra. It seems to me that the argument ignores the fact that in the event of the case going in favour of the other party with costs such party would have no one to recover its costs from, as the applicant is not capable of suing and being sued. There would also be no one to execute the order against.”

The Supreme Court in the CT Bolts case agreed with the remarks. The CT Bolts case saw many cases involving Workers Committees struck off the roll.

◆ LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis.

◆ They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, commercial law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email attorneyarthurmarara@gmail.com.