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Daniel Nemukuyu Harare Bureau
Workers who do not belong to the security and essential services sectors have a Constitutional right to go on strike without giving notice, top labour lawyers have revealed.

Defending the decision by 1,750 Mashonaland Tobacco Company workers to strike without giving a 14-day notice, Caleb Mucheche of Matsikidze and Mucheche law firm said the new Constitution gives the workers a right to strike without notice.

It is the workers’ argument that Section 104 of the Labour Act, which makes it a requirement for the workers to issue out a 14-day notice for strike, was unconstitutional.

In terms of Section 65 (3) of new Constitution the workers said employees were given unlimited freedom to participate in collective job action.

The section reads: “Except for members of the security services, every employee has the right to participate in a collective job action, including the right to strike, sit-in, withdraw their labour and to take other similar concerted action, but a law may restrict to exercise this right in order to maintain essential services.”

The lawyers argued that the business of Mashonaland Tobacco did not fall under essential or security services and that Section 104 of the Labour Act was not applicable under the circumstances.

The Labour Court last week heard arguments from lawyers for both the employer and the workers and reserved judgment on the legality of the strike.

It was argued that the right to strike by workers outside the security and essential services had no limitations.

“The right to strike is one of the dibble fruit in the orchard of bill of rights located in the Constitution of Zimbabwe with the only restrictions applicable to members of the security services and essential services,” read the workers’ heads of argument.

It was the workers’ argument that the Constitution was superior to all other enactments including the Labour Act, hence it takes precedence. “It is humbly submitted that the strike is lawful as it is provided for under the Constitution of Zimbabwe under Section 65 (3).

“The position of the law is clear that the Constitution is the supreme law and that it takes precedence over any other enactment inconsistent with it,” read the workers’ heads of argument.

As long as the Labour Act is not synchronised with the new Constitution, the lawyers said, Section 104 of the Labour Act remains invalid. “Before harmonisation of the Constitution of Zimbabwe with the Labour Act, the former reigns supreme as confirmed by the fact that the fundamental rights contained in the bill of rights, that includes the right to strike, became operative law with effect from May 22, 2013.

“Thus in terms of Section 65(3) of the Constitution of Zimbabwe, during this window period before the harmonisation of the Constitution of Zimbabwe and the Labour Act, every employee who is not a member of security or essential services acquired an unbridled constitutional right to strike in terms of a higher law, which supersedes the Labour Act, if there is any inconsistency as demonstrated above,” read the papers.

Mashonaland Tobacco argued that the workers downed tools on October 3 this year over unpaid transport and housing allowances without giving notice.

They embarked on a strike after the parties failed to agree on the payment of the allowances resulting in the employer applying for a show-cause order to the Minister of Public Service, Labour and Social Welfare.

The minister stopped the strike and referred the case to the Labour Court for the workers to justify the legality of their action.

According to the employer, Section 65 (3) of the Constitution does not nullify the procedure provided for in the Labour Act.

The company said the 14-day notice for strike was not given and secret ballot was not conducted.

It was the employer’s argument that there was no attempt by the workers to settle the matter through conciliation.

On that basis, the employer argued that the strike was unlawful.