ZIMBABWE BANKING & ALLIED WORKERS UNION & ANOR v BEVERLEY BUILDING SOCIETY & ORS 2007 (2) ZLR 117 (H)

Flynote

Banking — bank — distinction from building society — whether building society can be regarded as a bank

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights — s 21 (freedom of association) — right to join trade union — effect of such right — limitations on right — does not oblige employer to pay union fees to unregistered trade union

Employment — trade union — trade union registered for particular sector — whether employees entitled to join another trade union — whether employer obliged to deduct union dues for union not registered for that sector

Headnote

The first applicant trade union was originally registered in February 1991 to cover banking institutions. In April 1992, its scope of coverage was varied to cover financial institutions. Until December 2004, all the employees of the respondent building society were members of another trade union, but then many of those employees resigned from the other union and opted to join the first applicant. Nevertheless, the respondent continued to deduct union dues from all of its employees in favour of the other union. The respondent considered that it was bound to do so in terms of ss 52, 53 and 54 of the Labour Act [Chapter 28:01], as read with the Collective Bargaining Agreement: Commercial Sectors (SI 45 of 1993) which applies to all commercial entities, including building societies. The first applicant contended that the respondent was a financial institution within the scope of the Collective Bargaining Agreement: Banking Undertaking (SI 273 of 2000). The applicants sought a declaratur that SI 45 of 1993, did not apply to the first applicant's members, coupled with an order compelling the respondent to deduct and forward to the first applicant the union dues of such of its employees as were members of the first applicant. The first respondent argued that the applicant was not a party to SI 45 of 1993 and was not duly registered to claim union dues from the respondent's employees. Moreover, it argued that it was regulated by the Building Societies Act [Chapter 24:02] and was not a financial institution within the first applicant's scope of coverage. It argued that ss 52, 53 and 54 of the Labour Act were designed to curb the mischief of multiplicity of union representation in order to achieve uniformity and equity in the collective bargaining process.

Held, that in terms of s 2(1) of the commercial sectors agreement, the agreement applies to all employers and employees in the "commercial sectors of Zimbabwe", which in terms of s 3, as read with the First Schedule, includes "building societies". It also includes "financial institutions excluding commercial banks, merchant banks (accepting houses) and discount houses". The banking undertaking agreement, on the other hand, was stated to apply inter alia to registered commercial banks, registered accepting houses (merchant banks), registered discount houses and financial institutions. Although General Notice 101 of 2005, promulgated in terms of s 3(3) of the Banking Act [Chapter 24:20], applied a significant number of the provisions of the Banking Act to every building society regulated by the Building Societies Act [Chapter 24:02], it did not operate to obliterate the difference between banks and building societies to such a degree that both entities must now be regarded without distinction as financial institutions. Although banks and building societies are both subsumed under the general rubric of "financial institution", the distinction between them remains legally and practically intact. The Banking Act and the Building Societies Act constitute quite separate regimes, which apply to distinct financial entities, but with overlapping regulatory effect whenever this is deemed expedient by the regulating authority. The distinction between the banking sector and the building society sector is explicitly and rigidly maintained by the two separate regimes embodied in the two agreements. A building society, stricto sensu, is governed exclusively by the Commercial Sectors Agreement and falls outside the ambit of the Banking Undertaking Agreement.

Held, further, that analysis of ss 4(2), 30(3), 50(1), 52(2), 53 and 54 of the Act shows that a trade union's right to collect union dues from its members is confined to those of its members who are employed or engaged in the undertaking or industry for which it is registered. A trade union is not entitled, as of right, to collect union dues from its members employed in an industry or undertaking for which it is not registered. The employer's obligation to collect union dues, by means of a check-off scheme or in any other agreed manner or pursuant to a written authorisation, and to transfer such dues to the trade union concerned must be restricted to a trade union registered in the industry or undertaking in which its members are employed. Such trade union, in effect, constitutes "the trade union concerned" for the purposes of levying union dues. To interpret these provisions otherwise would mean that an employer would be obliged to collect and transfer union dues to a trade union with no capacity to represent the interests of the employees from whom those dues are levied. That would negate the very purpose of collecting union dues from employees, viz. effective trade union representation of those employees in the industry or undertaking in which they are employed. There is nothing in law to stop an employee from joining and paying subscriptions to a trade union which does not represent his industry or undertaking but that does not oblige his employer to collect and transfer union dues to that trade union in accordance with ss 52 and 54 of the Labour Act.

Held, further, that the ILO Freedom of Association and Protection of the Right to Organise Convention, No. 87 of 1948, prescribes the rights of workers and employers to establish and join organisations of their own choosing for furthering and defending their respective interests. Section 21 of the Constitution of Zimbabwe guarantees the right of every person to form or belong to any association for the protection of his interests. However, this freedom of association does not per se include the right to pursue the objects, purposes and activities of a given association. If there is any such right, it certainly is not one that is constitutionally recognised and any claim to it must be established aliunde, viz. by statute or the common law. Sections 52 and 54 of the Labour Act cannot be said to impede or circumscribe the freedom of association of those members or of the trade union as guaranteed by s 21 of the Constitution and by art 2 of the Convention. The limitations envisaged by the statutory provisions do not bear on the right to form or belong to any trade union. Conversely, a trade union's claim to collect union dues in a manner not sanctioned by statute cannot properly be conceived to form part of the freedom of association. The fact that a particular trade union is not entitled to levy union dues in a given industry through a check-off scheme may, in practice, militate against the desirability of joining or belonging to it, but the legal right to form or belong to the union remains intact and unimpaired.