ZIMBABWE GRAPHICAL WORKERS UNION v FEDERATION OF MASTER PRINTERS OF ZIMBABWE & ANOR 2007 (2) ZLR 103 (S)

Flynote

Employment — collective job action — lawfulness of — dispute of interest and dispute of right — distinction between

Employment — collective job action — right to resort to collective job action — matter not settled within 14 days of notice of collective action being given — no requirement for fresh notice to be given if certificate of no settlement issued after expiry of 14 day period — collective job action lawful if resorted to within a reasonable time

Employment — collective job action — show cause order by Minister — not open to Minister to issue second show cause order in respect of same matter — correct course for parties to follow in event of no settlement being reached

Headnote

In labour matters, broadly speaking, disputes of right concern the infringement, application or interpretation of existing rights embodied in a contract of employment, collective agreement or statute, while disputes of interest (or economic disputes) concern the creation of fresh rights, such as higher wages, modification of existing collective agreements et cetera. Collective bargaining, mediation and, as a last resort, peaceful industrial action are generally regarded as the most appropriate avenues for the settlement of conflicts of interest, while adjudication is normally regarded as an appropriate method for resolving disputes of right.

The appellant union represented employees in the printing, packaging and newspaper industry. It had been engaged in a protracted dispute with the first respondent, a federation representing the employers in that industry. Eventually a deadlock was reached between them and the appellant

served notice upon first respondent of its intention to resort to collective job action. Five days later the latter applied to the second respondent, the Minister of Public Service, Labour and Social Welfare, for a show cause order. This order was duly issued by the Minister in terms of s 106(1) of the Labour Act [Chapter 28:01] and the parties to the dispute were directed to appear before the Labour Court to show cause why the dispute should not be disposed of in terms of s 107 of the Act. The parties duly appeared before the court and a disposal order was issued. The matter was referred to a labour officer for conciliation. In the meantime, the projected collective job action was prohibited. The parties appeared before the labour officer for conciliation. It was unsuccessful and he issued a certificate of no settlement. A week later, the appellant resorted to collective job action and on the same day, the first respondent applied to the Minister for another show cause order, notwithstanding the fact that there was nothing in the Act to authorize such a step. The labour officer compiled a report, which recommended that the Minister should not issue this second show cause order as he believed that collective job action was now lawful. Nonetheless, the Minister did issue a second show cause order, directing that the appellant should appear before the Labour Court to show cause why the collective job action commenced should not be disposed of in terms of s 107 of the Act. The parties duly appeared before the Labour Court, which, after several other appearances before it by the parties, held that the collective job action was unlawful. It reasoned that the notice given by the appellant to the first respondent had expired and the appellant had lost the right to such action. Fresh notice should have been given to the first respondent before embarking upon the collective job action. On appeal to the Supreme Court: Held, that the Minister did not have the power to issue the second show cause order. There was nothing in the Act which permitted him, after issuing the first show cause order, to issue another such order in the same matter and in respect of the same dispute, directing the parties, for the second time, to appear before the Labour Court to show cause why another disposal order should not be made in terms of s 107 of the Act.

Held, further, that instead of applying to the Minister for the second show cause order, the first respondent should have followed the procedure set out in subss (5) and (7) of s 93 of the Act after the certificate of no settlement had been issued by the labour officer.

Held, further, that the appellant did not acquire the right to resort to collective job action on the expiry of the 14 day period because, in terms of s 104(2)(b) of Act, no attempt had been made to conciliate the dispute and no certificate of no settlement had been issued in terms of s 93. The appellant only acquired such a right after a certificate of no settlement had been issued to the parties.

Held, further, that the right to collective job action, once acquired, must be exercised within a reasonable time. In determining what period of time is reasonable or unreasonable in any given case, all the circumstances relative to the delay must be taken into account, including the explanation given for the delay (dicta per Hefer J in Free State Consolidated Gold Mines Operations Ltd v National Union of Mineworkers & Ors 1988 (2) SA 425 (O) at 429 followed).

Held, further, that although the appellant only embarked on the collective job action four days after it acquired the right to do so, the delay was not unreasonable, bearing in mind that it had to organize the collective job action and the need to inform its members throughout the country of its decision to do so.