THE ZIMBABWE BATA SHOE COMPANY LIMITED
(1) THE CHAIRMAN, NEC FOR THE LEATHER INDUSTRY
(2) ZIMBABWE LEATHER AND ALLIED WORKERS UNION
SUPREME COURT OF ZIMBABWE
GWAUNZA JA, GUVAVA JA & MAVANGIRA AJA
HARARE, FEBRUARY 16, 2015
R Goba, for the appellant
M Nkomo, for the first respondent
T Mpofu, for the second respondent
GWAUNZA JA: At the close of argument in this matter, it was the unanimous view of the court that the appeal lacked merit and we dismissed the application with costs. We indicated that the full reasons for the judgment would follow, and these are they.
This is an appeal against the whole judgment of the Labour Court dismissing an application for review of a decision of the National Employment Council for the Leather Industry (“NEC”). The NEC declined to hear the appellant’s application for an exemption from the terms of an arbitral award in favour of the second respondent, on the basis that it lacked jurisdiction.
The facts of this matter are largely common cause. The employers in the tanners and shoe manufacturing industry - of which the appellant was a member - had a wage dispute with employees in the industry who are affiliated to the second respondent. The dispute related to the wages for the period 1 July to 31 December 2010. The conditions of employment for the employees were governed by the Collective Bargaining Agreement: Leather and Shoe, Sports Equipment, Animal Skin Processing and Taxidemy, Leather Goods, Travel and Canvas Goods Manufacturing Industries, SI 246/1993 (“CBA”). Collective bargaining negotiations were held under the chairmanship of the first respondent, NEC, and ended in a deadlock. The result was that NEC, following an agreement jointly signed by and on behalf of the employers’ and employees’ representative associations, referred the matter for voluntary arbitration. A panel of two arbitrators, one appointed by the employers’ association and the other by the second respondent, duly heard the matter and made an award in terms of which they ordered the employers to effect a 9.1 per cent wage increase across the board in respect of their employees for the relevant period. Pursuant to this award NEC issued a wage increase notice for the said period, which was to be observed by all employers.
On 11 November 2010 the appellant purported to file a written application with the NEC, in terms of s 2 of the CBA, seeking exemption from implementing the stipulated wage increase. The basis of the application was given as the lack of financial capacity to comply with the award. Proof of such incapacity was furnished together with the application.