‘Firms not obliged to register with NECs’

via ‘Firms not obliged to register with NECs’ | The Herald March 5, 2015 by Daniel Nemukuyu

The High Court has ruled that companies are not obliged to register or pay levies to National Employment Councils, a development that is likely to leave the councils without money to fund their operations.

Most employment councils rely on funding from employers and the recent judgment may result in the death of NECs in Zimbabwe.

In a judgment delivered in favour of NetOne Cellular Private Limited last week, Justice Lavender Makoni said the compulsory collection of funds from employers for the sustenance of NECs was unconstitutional.

NetOne took the NEC for the Communications and Allied Services Industry and the Ministry of Labour and Social Services to the High Court contesting the constitutionality of a collective bargaining agreement forcing the company to register with the NEC and to pay some dues.

The judge ruled that forcing employers to register with NECs was a violation of their right to freedom of association as enshrined in the Constitution of Zimbabwe.

“It is declared as follows: The imposition upon the applicant (NetOne) of the requirement to register with the second respondent (NEC for Communication and Allied Services) is a violation of the applicant’s constitutional right to freedom of association.

“The Collective Bargaining Agreement for the Communications and Allied Services Industry (are in violation of Section 21 of the Constitution to the extent that they provide for the infringements declared in paragraphs of this order.

“It is ordered that Section 2(a), 33 and 36 of the Collective Bargaining Agreement for the Communications and Allied Services Industry (SI 1 of 2012) are struck down. There will be no order as to costs,” ruled Justice Makoni.

However, the court held that if the NECs come up with minimum conditions of service, employers are bound to comply despite the fact that they do not subscribe or pay anything to it.

NEC for Communication and Allied Services Industry argued that the prima facie infringement of the applicant’s right to freedom of association is a permissible derogation in terms of Section 23(3) (c) of the old Constitution.

It also argued that the obligation to pay levies was not a violation of the Constitution because it arose in terms of the law.

But NetOne argued that it decided not to be part of the NEC and that the CBA compelling the company to pay dues and to register with the NEC was unconstitutional.

“The applicant has no wish to be a member of the second respondent nor does it wish to pay dues to the second respondent. It has notified the second respondent accordingly, but the second respondent has still sought to compel the applicant to submit to membership and remit dues relying upon the provisions of CBA and the Labour Act,” reads part of NetOne’s court application.