Baking and Allied Workers Union and Others v National Employment Council for Food and Allied Industries and Others

The applicants (five trade unions) and the second to eighth respondents (also trade unions) constituted the full composition of the first respondent, the National Employment Council for Food and Allied Industries. In 2021, the first respondent's constitution was amended, particularly Section 5.1 relating to the composition of the sub-sector council. The amendments were registered on 23 November 2021. Following the amendments, the first respondent gave notice for restructuring of the sub-sector council, which would replace council members appointed in December 2020 before their two-year term expired. On 10 December 2021, a meeting resolved to reconstitute the council, and on 23 December 2021, new sub-sector council members (the second to eighth respondents) were appointed. The applicants walked out of the 23 December meeting and objected to the restructuring, arguing it was premature and inconsistent with the constitution. They then filed an urgent application seeking a declaratory order that the constitutional amendment did not require removal of representatives before their term ended, and seeking to nullify the new appointments.

• Whether the High Court has jurisdiction to hear the matter or whether it is a labour dispute falling under the Labour Court's jurisdiction
• Whether the deponents to the opposing affidavits had authority to represent the respondents
• Whether the application was properly brought as an urgent court application for a declaratory order under Section 14 of the High Court Act
• Whether there were material disputes of fact preventing resolution on the papers
• Whether the matter satisfied the urgency requirements
• Whether the interpretation sought by the applicants could properly be granted by way of declaratory order

The application was dismissed with costs on an ordinary scale against the applicants.

The binding legal principles established are: (1) The High Court lacks jurisdiction over disputes that are essentially employment or labour matters, even when couched as applications for declaratory orders - the substance and effect of the relief sought determines jurisdiction, not the formal characterization of the application; (2) Where parties to an employment council have agreed in their constitution to resolve disputes under the Labour Act, courts must respect that arrangement and decline jurisdiction; (3) Section 35(a)(v) of the Labour Act empowers federations of trade unions to represent their member unions in matters of considerable significance without requiring a specific resolution for each case; (4) The General Secretary of an employment council has authority under a constitution provision authorizing him to 'sign all documents' to depose to opposing affidavits and notices of opposition on behalf of the council; (5) The test in Johnson v AFC for declaratory orders has two stages: first, the applicant must be an 'interested person' with direct and substantial interest; second, the court must determine whether the case is proper for exercise of its discretion under Section 14 of the High Court Act.

The court observed that by voluntarily walking out of the properly constituted meeting of 23 December 2021, the applicants lost their right to contest the lawfulness of that meeting's outcome, and challenging it would be a 'flagrant affront' to the rights of those who attended. The court also noted that given the infrequent meeting schedule of employment councils (at least twice annually under the constitution), it is imperative for such organizations to authorize officials to make decisions on their behalf, as waiting for meetings to authorize representation could paralyze the organization and lead to default judgments, particularly in urgent matters. The court commented that costs on an ordinary scale were 'just and fair' in the circumstances, rejecting the respondents' request for costs on a higher scale, noting that costs ordinarily follow the outcome and ordinary costs were reasonably sufficient.

This case reinforces important principles in Zimbabwean labour law regarding the jurisdictional divide between the High Court and specialized labour tribunals. It affirms that courts must look to the substance and effect of relief sought rather than how an application is formally characterized. Even when framed as an application for a declaratory order under Section 14 of the High Court Act, if the true nature of the dispute is an employment matter, it falls outside the High Court's jurisdiction and must be resolved through labour law mechanisms. The judgment also clarifies the authority of officials of employment councils and trade union federations to represent their organizations and members in legal proceedings, interpreting Sections 21, 27, and 35 of the Labour Act. It demonstrates judicial respect for the internal dispute resolution mechanisms agreed upon by parties in their constitutions.