No. SC 19/04
Appeal No. 370/01
SUPERMARKET v T.M. NATIONAL WORKERS COMMITTEE
COURT OF ZIMBABWE
CHEDA JA & GWAUNZA JA
JANUARY 29 & MAY 10, 2004
Biti, for the
Mazonde, for the
JA: The appellant is a company which owns a chain of stores
scattered all over Zimbabwe, which are known as TM Supermarkets.
respondent is the national workers committee of the appellant.
The respondent filed a complaint with the Ministry of Public
Labour and Social Welfare against their employer, the appellant,
concerning the awarding of salary increments.
matter was heard before a labour relations officer, who determined
the matter in their favour. She made a finding that awarding
employees and leaving out one hundred and eighty-two employees was
discrimination against them and that this amounted to an
labour practice. She ordered the appellant to pay the one hundred
and eighty-two employees their wages/salary increases
as of 30 June
1995 as per Statutory Instrument 208 of 1995 and back payment for the
months of October and November 1997.
matter was referred to a senior labour relations officer. The
senior labour relations officer found that the provisions of
SI 208/1995 had been implemented long before the labour
relations officers order. She found that there was no
against the one hundred and eighty-two employees.
She reversed the decision of the labour relations officer and the
appeal by the
respondent then noted an appeal to the Labour Relations Tribunal (now
the Labour Court). The grounds of appeal were as follows:
1. The senior labour relations
officer seriously erred and misdirected herself in arriving at the
decision she did for the following
1.1 That the respondent in
casu (now the
appellant) had fully complied with the provisions of Statutory
Instrument (SI) 208/1995.
there was no discrimination by the respondent (now the appellant)
when it made salary adjustments in each grade.
1.3 That the provisions of
s 5(1)(d) of the Labour Relations Act [Chapter 28:01]
does not apply in casu.
the respondent (now the appellant) had not contravened s 8(1)
(a) to (f) of the Labour Relations Act aforesaid in that
it had not
committed an unfair labour practice.
Labour Relations Tribunal held that the appellant did not
discriminate against the one hundred and eighty-two employees on the
basis of race, colour, place of origin or any of the other grounds
listed in s 5 of the Labour Relations Act (the Act).
held also that the appellant had refused to negotiate with the
respondent and that such refusal amounted to an unfair labour
practice, thus breaching the provisions of ss 8 and 24 of the Act.
The Labour Relations Tribunal reversed the decision of the senior
labour relations officer and upheld that of the labour officer.
appellant has now appealed to this Court on the following grounds:
1. The Labour Court erred in
holding that the employer in this matter had in fact refused to
differently, the fact that the employer, the appellant herein,
provided reasons for its refusal to make an additional salary
increase to the affected members of the respondent, did not mean that
there had been no negotiations. Put simply, even if it was
that the appellant had an obligation to negotiate an additional
salary increase that does not mean or imply that there has to
increase any time that there is a negotiation.
the hearing of the matter before the Labour Relations Tribunal it
became clear that the alleged discrimination was not based
on any of
the grounds referred to in s 5(1) of the Act. It was also
established that what the respondent was complaining of
raising of minimum wages for certain low grades.
dispute was therefore based on the following two points
(a) whether the employer refused
to negotiate with the workers committee; and
(b) the interpretation of
Statutory Instrument 185 of 1985.
what the respondent says, the appellant would not agree to award them
what it had just awarded the lower grades in order to
minimum wages. The question perhaps is What is meant by
negotiation?. I would take it to mean a discussion between
parties leading towards a conclusion on a certain issue. I do not
consider that negotiation necessarily means a discussion
in which one
party gives in to the demands of the other.
fact that the appellant refused to award what the respondent asked
for suggests that the issue was discussed. The respondent
be of the view that because the appellant did not agree there was no
negotiation. I do not agree. There is a difference
refusing to negotiate and refusing to grant an increase. The
appellant, it seems from the papers, explained why it had
the one hundred and eighty-two workers, and that they had been
awarded increases granted to all the other workers in terms
Collective Bargaining Agreement contained in Statutory Instrument 208
parties also argued about the provisions of Statutory Instrument 185
respondents representative said it provides in s 5(1)(i)
an employer decide to give any increases above the maximum stipulated
by the Statutory Instrument, and if there happens to
be any complain
from any source then a formula referred to as A x B x C over D
should then be employed.
explanation was not clear because he then sought to repeat the same
explanation but put it in this way:
particular Statutory Instrument says if you should decide then to
increase above the minimum, because that is set by a given
Instrument at a given date, should you decide to give above that,
then you should apply the same formula.
is clear that he has given his own version of the section. I do not
believe that the provisions of the Statutory Instrument in
can be interpreted the way he put it.
while the Statutory Instrument was not provided, the appellants
representative, who had it at the hearing, pointed out
respondents representative was not reading it correctly as he left
out the last part.
section in question reads as follows:
5 (1) Subject
to this section, if an employer, on or after the fixed date,
increases the income of any employee otherwise than
in terms of
subsection (4) of section 4 he shall, at the same time
increase the income of every other employee who
is earning less than the first mentioned employee
by the amount obtained by applying the formula
x B x C
x 100. (emphasis added)
represents the actual percentage increase applied to the income of
the first-mentioned employee;
represents the appropriate maximum rate of increase set out in the
Second Schedule and applicable to the employee who is earning
than the first-mentioned employee;
represents the actual income of the employee who is earning less than
the first-mentioned employee; and
represents the appropriate maximum rate of increase set out in the
Second Schedule and applicable to the first-mentioned employee.
provisions of this section shall not apply so as to require an
additional increase for those employees who were employed on
fixed date and whose wages have been increased by virtue of the
Minimum Wages (Specification of Minimum Wages) Notice, 1985.
two sections clearly show that the respondents members were not
entitled to another increment as their wages were more
minimum referred to.
the threatened job action was not proper in view of s 10(2) of
Statutory Instrument 185 of 1985, which reads as follows:
10 (2) No
employee or organisation of employees shall strike or threaten to
strike or take other industrial action on the grounds
that the lower
paid employees in their industry, place of work or who are employed
by the same employer have received an increase
of income while they
have not received the same increase or proportional increase or any
conclusion, I am satisfied that there was no unfair labour practice;
there was no discrimination; and the workers committee
right to demand an additional increment.
the appeal is allowed with costs. The judgment of the Labour
Relations Tribunal is set aside, and substituted by
appeal is dismissed.
(2) The appellant in this appeal
will pay the costs of this appeal.
JA: I agree.
Honey & Blanckenberg,
appellant's legal practitioners
Welsh & Guest,
respondent's legal practitioners