Can a company withdraw from a National Employment Council?

What is a National Employment Council (NEC)

A National Employment Council is a bipartite labour relations body with a specific mandate to deal with labour issues in a particular industry or sector comprising an employers’ association on one hand and employee representative (Trade Unions) on the other.

NECs are created in terms of Sections 56 and 57 of the Labour Act [Chapter 28:01] Section 56 relates to voluntary employment councils whilst Section 57 provides for Statutory employment councils which are created by the Minister when it is considered to be in national interest to do so.

The rationale behind the creation of NECs is to create a labour dispute resolution mechanism to curtail tedious, lengthy and expensive litigation processes. NECs also provide for the establishment of minimum working conditions for their specific industry.

Following negotiations between the parties in an NEC, the agreed minimum conditions of employment (minimum wage, working hours and overtime pay, leave entitlements, disciplinary procedures and grievance mechanisms, etc) are registered and published in a Collective Bargaining Agreement which has the force of law in terms of Section 82 of the Labour Act.

Obligation to join an NEC

In terms of Section 58 (g) of the Labour Act, the constitution of an NEC must provide for the admission of new parties to the employment council. Therefore, a party can voluntarily elect to join an NEC. An employment council may also refuse membership to an organization as was determined by the Supreme Court in the case of National Employment Council for The Catering Industry V Catering & Hospitality Industry Workers’ Union of Zimbabwe SC 08/08.

By extension, an NEC constitution may provide for the deregistration from the NEC by a party. Such provisions would be in line with the right to freedom of association enshrined in Section 58 of the Constitution of Zimbabwe.

However, membership or lack thereof does not excuse the obligation to comply with registered Collective Bargaining Agreements. Section 82 (1) (a) of the Act provides that once a Collective Bargaining Agreement has been registered, it shall be binding on the parties to the agreement and all employers, contractors and their respective employees.

Therefore, even in a case where an employer exercises their freedom of association by electing to not join an NEC, they are by operation of the law obligated to comply with the provisions of the Collective Bargaining Agreement emanating from negotiations of the NEC for the industry to which they belong.

This position of the law has also found expression in case law. In National Employment Council for the Communications and Allied Services Industry v Netone Cellular (Private) Limited and The Minister of Labour and Social Welfare CCZ 17/19 the constitutional court confirmed Section 82 of the Labour Act as a valid legal basis for the enforcement of Collective Bargaining Agreements. This was also the ratio of the decision in National Employment Council for The Catering Industry v Harare Club HH 460/18.

Conclusion

The constitution of the specific industry in question determines whether a business can withdraw from a National Employment Council and, if so, under what conditions. However, whether a company is a registered member of an NEC or not, they are required by law to follow the terms outlined in the Collective Bargaining Agreement for that industry.