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Dean Munemo, Labour Matters

WORKER’S committees and works council are very important institutions of job regulation in the system of industrial relations. Worker’s committee can be defined as a group of employees chosen or elected from among the workers to represent the interests of all other workers at the particular workplace. 

In Zimbabwe worker’s committees derive their powers from section 23 of the Labour Act Chapter 28:01. On the other hand, works council is a combination of worker’s representatives from worker’s committee and management representatives chosen or appointed by the employer. This group is entrusted with deliberations over issues of interests to both employer and workers.

In terms of section 25A (2) of the Labour Act, works council should be composed of equal number of members from either employees or employer’s side. 

There are several issues that may result in fatal mistakes being made in the conduction of worker’s committee or works council business in the workplaces. The election of worker’s committee members is the first stage which sets the tone of relations between management and workers in terms of their relationship at the workplace. 

Before I delve into areas where mistakes are made in the conduction of workers’ committee and works councils at workplaces, it is important to emphasise that the ideal situation for all employers and workers is to have some paradise alike harmony at the workplace which fosters a harmonious working environment, productivity, shared mutual interests and goals.

Section 23 of the labour Act prohibits managerial employees from being involved in worker’s committee or being elected into worker’s committee. Failure to adhere to such clear provision creates an illegality that is so fatal to render such worker’s committee a nullity at law. 

The case of Ngulube vs Zimbabwe Electricity Supply Authority and another SC 52/2002 holds authority on this matter. The Supreme Court held that section 23 of the Labour Act creates a demarcation between managerial and non-managerial workers so as to allow each category of employees to represent their interest which are different. 

The Supreme Court observed that this categorisation is meant to create orderliness in the running of business and workers’ committees. The same reasoning was supported in Almini Metal Industries v Chinowaita SC 8/2003, where the Supreme Court held that a code of conduct which covers non-managerial employees should not be mistaken to cover managerial employees.

Section 23 of the Labour Act entrusts decisions to do with procedure and composition of a worker’s committee in the workers at the workplace concerned. Managers are not expected to impose any ideas concerning who can be elected into the worker’s committee because doing so will be interference and serious violation of the Law. 

In some cases, you hear of managers who harass members of worker’s committee to the extent that workers may dissolve worker’s committee for fear of victimisation. Such behaviour is uncalled for as it flies in the face of section 23 of the Labour Act.

Such cat and mouse games with worker’s committee members at the work place may lead to an undesirable working environment that turns to create problems for employers. In Unifreight Limited v Madembo SC 6/2018, the Supreme Court upheld the decision of the Labour Court to have the matter heard afresh over non-inclusion of the worker’s committee members in the disciplinary committee.

The employee had challenged the decision of a disciplinary committee on the understanding that it was improperly constituted by failure to include worker representatives in the disciplinary committee. 

On the other hand, the employer argued that the employee representatives from the worker’s committee had boycotted the proceedings although no such proof was availed by the employer. However, it is important to note that it is not always the case that procedural irregularities can vitiate proceedings.

Supreme Court case of Nyahuma v Barclays Bank of Zimbabwe SC 67/ 2005 held that there is need to demonstrate that an appellant party suffered a prejudice from the procedural irregularity. Another contentious issue is the issue of worker’s committees conducting their business at the employer’s premises. 

Section 23 (2) of the Labour Act entitles employees who wish to elect a worker’s committee to be assisted by the employer by being provided with the reasonable facilities for communicating and meeting with each other during working hours at the workplace.

The right to do so should not be mistaken for a right to do so without the knowledge of the employer. The obligation placed on the employer to provide names of employees employed by the organisation and facilities for purposes of election of worker’s committee creates an equal obligation on the employees to advise the employer in time as provided for in section 23 (2)(c) of the of the Act which puts a provision that entitlements of the employees should be exercised in a manner that does not affect the normal smooth flow of the employer’s business.

It is therefore important for employees and employers alike to understand that exercise of rights of employees to elect a worker’s committee are not in any way a challenge on the employers right to manage. 

In some cases, employees and managers are tempted to have their egos get in the way and engage in unnecessary power tussles which result in endless litigations that cost the employer. Being an effective worker’s committee member or manager does not take being unnecessarily difficult to work with where the business of worker’s committees or works council is concerned.

In fact, effectiveness should be measured by the ability to identify issues, interests, problems and address them in a manner that encourages harmony and productivity at the workplace. It is also equally important for worker’s committees to be trained and have an understanding that labour relations are not about war between employers and employees. 

Worker’s committees should understand that the right to represent other employees doesn’t put them on a level where they are untouchable when it comes to administration of discipline at the workplace. The Supreme Court case of Zesa v Mare SC 43/ 2005 laid bare this notion by observing that worker’s committees are not supposed to act like they are law unto themselves. 

The court emphasised that rather worker’s committees should conduct themselves in a manner that observes due processes at the workplace.

The court underscored the employers right to investigate and discipline employees and pointed out that the worker’s committee should not be a hindrance to such lawful process. Turning to works councils, it is of paramount importance to acknowledge the fact that the importance of works councils can never and should never be underestimated in the industrial relations system. 

Personally, I would equate the works council to dare remusha as we call our crucial family meetings in family set ups. In that comparison it suffices to say the works council is equally there to solve family issues at workplace level with the employer and his employees being the equal of a family.

The Labour Act under section 25A generally entrusts issues to do with promotion of good relations, promotion of best interest of employer and employees, understanding problems and solving them, participation of employees in issues pertaining to the organisation and promotion of mutual cooperation in the hands of the works council.

The Act under section 25A subsection 5 goes on to specifically pick issues for the attention of the works council mentioning such issues as restructuring, product development plans, job grading, training and education, partial or total plant closures, implementation of code of conduct, determining criteria for bonus payments and retrenchments. The Labour Court case of Mungofa and others v ZB Bank LC/H/26/2010 underscored the importance of involving employees in deliberations concerning their retrenchment. The court ordered reinstatement of the employees and ordered he employer to restart the retrenchment proceedings where the works council failed to consult the affected employees. In my view the failure to involve the affected employees was a vilation of section 25A(4d) which seeks promotion of participation of employees in decisions that affect them. It is important to note that in this case while the works council was consulted, it failed on its functions as it shut out the employees concerned in the deliberations. 

So, while the worker’s committee members that constituted the works council were clothed with the powers to represent the employees, they failed to consult the employees affected in their course of representing them. 

It can thus be noted that anything done by a works council in furtherance of its mandate in terms of section 25 A of the Labour Act should not fall short of the standards which every works council should promote at the work place as outlined under section 25A subsection (4) items a to d. Any such shortcoming risks the decisions of the works council being invalidated in Court like was the case in Mungofa and others v ZB Bank.

In conclusion, it is important for employers and employees to understand the functions of worker’s committees and works councils and their limits at law. Such understanding will go a long way in fostering a harmonious work environment that is free from unnecessary litigations which costs both parties in terms of resources.

Disclaimer: Dean Munemo is a Human Resources and Labour Relations Practitioner who writes in his own capacity and nothing contained in this article substitutes legal advice and should not be used as such.

He can be contacted on 0771 149 175 for WhatsApp and 0715 822 124 for calls