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Labour Matters Davis Ndumiso Sibanda
MANY employers have out of ignorance of the law, entertained litigation cases where the workers’ committee is the complainant, claimant or respondent when the law is clear that the workers’ committee is not a legal persona. In the matter CT Bolts vs Workers Committee SC16/12, Justice Garwe ruled that the workers committee is not a legal persona capable of being sued. The Supreme Court looked at provisions of Section 23 of the Labour Act subsection 1(a)(b)(c)(d) and said… “It is clear from the above provision that it is the function of the workers committee to represent 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 has not made provisions for the workers committee to Act as a legal persona. Had this been the intention, the Act would no doubt have said so”.

This position by the Supreme Court means that any proceedings where the workers are represented by the workers’ committee are a nullity and for example, in case of an arbitration award or Labour Court judgement where the workers were represented by the workers’ committee such awards and judgements are a nullity and cannot be enforced.

Simply put, the workers would have to be represented by a trade union or legal practitioner where they want to litigate against the employer as the union has been declared a legal persona in the Act.

This judgement has far reaching effects because it means that all court rulings in favour of the workers committee at arbitration before the Labour Court can be abandoned by the employers, however, the relief for the employer could be shortlived as if time is on its side, a union can still resuscitate a case lost on the workers’ committee representation technicality and succeed on merits of the case.

This means that employers still need to be fair when dealing with workers as there are ways round technicalities.
I am of the view that there are certain disputes especially disputes of certain rights which the workers’ committee is within its rights to take to the Labour Officer for determination as guided by Section 23(3) of the Labour Act. In short, the workers committee can still appear before the labour officer for conciliation and in terms of the cited section of the Labour Act by mutual agreement and matters involving disputes of right can be referred to arbitration and the workers’ committee will argue its case against the employer. It must be noted that the workers’ committee will be arguing over its rights not representing employees.

Workers need to note that issues of right that justify action given the above are only those covered in Section 23(2). This section must be read with Section 24 of the Act where the Supreme Court in the earlier cited judgement said that “On proper interpretation of Section 24 of the Act, it is clear that the workers committee exists to champion the interests and welfare of workers at the workplace”.

In conclusion, to avoid problems of having the workers’ committee overstepping their limits, employers have to ensure the workers’ committee members are trained. Avoiding training the workers’ committee usually costs more in mistakes they make and trouble they cause the employer than the cost of training. Unions must also educate their members or their rights and limits so as to remain relevant.

Davies Ndumiso Sibanda can be contacted on: email: [email protected] Or cell No: 0772 375 235