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Davies Ndumiso Sibanda, Labour matters
THE generally held view among workers that the right to engage in collective job action becomes unregulated and an absolute right was dismissed by the Labour Court in the matter Nust vs Nust Educators’ Association Judgment LC/MT/38/18.

To my knowledge, this is one judgement that interrogates the right of employees to engage in collective job action in detail. In this case, workers went on collective job action and argued that they had an unregulated right to engage in collective job action.

The workers argued that section 104 of the Labour Act Chapter 28:01, which provides for procedures to be followed in engaging in collective job action was unconstitutional.

The Labour Court ruled that the provisions of section 104 of the Labour Act chapter 28:01 do not interfere with the right to collective job action but that the provisions are express in that they provide for the right to resort to collective job action. The court highlighted provisions of section 104(1), which reads:

“Subject to this Act, all employees, workers committees and trade unions shall have the right to resort to collective job action to resolve disputes of interest”.

The court ruled that provisions of Section 104 of the Labour Act Chapter 28:01 provide also what section 65(3) of the Constitution thus there was no contradiction between the two. Justice Moya-Matshanga ruled that section 104 gives right to strike and the right is protected.

The Labour Court said the only difference between section 65(3) of the Constitution and section 104 of the Labour Act is that the latter gives the right to collective job action in broader and specific sense.

The court further ruled that section 65 of the Constitution is subject to limitations provided for in section 86 of the Constitution and that the right to collective job action is not an absolute right.

The judge looked at persuasive cases and other related expert literature including John Gragon’s book “Collective labour law where Gragon says “Because of the peculiar nature of the right to strike, any law governing its exercise must establish a balance between the interests it seeks to promote and the interests it exercise may threaten.

The balance between the various interests at stake is not the kind of area into which the law and courts customarily intrude. This is understandable because a strike by its definition in an exercise of social power designed to induce agreement by means other than litigation.

However given the potentially destructive nature of strike action… it must be regulated in such a manner as to ensure as far as possible that it is not resorted to prematurely, gratuitously or for illegitimate purpose.”

In short, the judge highlighted the position that the right to collective job action has to be regulated because it affects rights of others. In conclusion, the judge dismissed with costs the argument by the union that they had an unregulated right to resort to collective job action as frivolous and vexatious.

The long and short of this judgement is that in the event workers decide to go on collective job action they must follow procedures set out in section 104 of the Labour Act Chapter 28:01.

*Davies NdumisoSibanda can be contacted on: Email: stratwaysmail@yahoo.