A critical examination of the nature, scope and extent of the right to collective bargaining in the constitution of Zimbabwe.

Abstract

Zimbabwe’s legal system in all its forms is founded in the value of the supremacy of the Constitution. This means that whenever a legal norm or rule of decision which is established by the Constitution comes into practical conflict with a legal norm or rule of decision stipulated by non-constitutional law, the rule or norm that is contained in the Constitution is to be given precedence by anyone whose duty is to enforce the provisions of the Constitution. For the first time in the history of the existence of independent Zimbabwe, the right to collective bargaining is now enshrined under section 65 (5) (a) of the Constitution which provides that, ‘Except for members of the security services, every employee, employer, trade union and employee or employer’s organization has the right to collective bargaining.’ This provision is very important in our labour law jurisprudence considering the fact that the Constitution is the supreme law of the land. The concept of constitutional supremacy is enshrined on section 2 (1) of the Constitution of Zimbabwe. This section provides that ‘this Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of its inconsistency.’ This is a milestone achievement which deserves commendation especially if one compares the new Constitution and with the old Lancaster House Constitution (LHC) which is a mere dry letter without any explicit labour rights. This current Constitution is a transformative legal document that seeks to transform the lives and create better living conditions for Zimbabweans. The right to collective bargaining as enshrined in the Constitution forms the heart of Zimbabwe’s labour rights. This is so because the right assumes a willingness on each side to abandon fixed positions were possible in order to find common ground. The inclusion of the right to collective bargaining in the Constitution is a direct response to international norms, practices and developments in the area of labour law. A critical and legitimate question then follows; does the Constitution of Zimbabwe impose a judicially enforceable duty to bargain on the other party in an employment relationship? It is a question that has to be answered by the researcher as this research unfolds. However, the nature, scope and meaning of this right as provided in the Constitution directly respond to the unique circumstances underpinning Zimbabwe’s labour regime, and that constantly inform debates and discussions on the right to collective bargaining. The right to collective bargaining is of cardinal importance in any democratic society based on social justice and democracy in the workplace. Further, section 2 of the Labour Act defines a vii collective bargaining agreement as ‘…an agreement negotiated in accordance with the provisions of this Act which regulates the terms and conditions of employment of employees.’ This definition is very helpful. It unpacks the Labour Act’s contemplation of the process of collective bargaining as a negotiation process with a view to agreeing on the terms and conditions of employment. The law of collective bargaining in Zimbabwe is rooted on 2A (1) (c) of the Labour Act clearly provides that the purpose of the Act is to advance social justice and democracy at the workplace by providing a legal framework within which employees and employers can bargain effectively for the improvement of conditions of employment. This patently shows that the right to collective bargaining is clothed with the force of law. The Labour Act promotes the participation of employees in decisions affecting their interests at the workplace. This is in line with section 65 (5)(a) of the Constitution of Zimbabwe.