National Employment Council for the Catering Industry v Catering & Hospitality Industry Workers' Union of Zimbabwe

The appellant (NEC) was a voluntary employment council formed in terms of section 56 of the Labour Act [Cap 28:01]. The respondent, a registered trade union registered on 29 December 2000, applied for admission to membership of the appellant. The appellant refused the application. The respondent sought assistance from the Registrar of Labour, who found that NEC did not have valid reasons for refusing admission and ordered that the respondent be given 2 seats in the council and that NEC's constitution be amended to include the respondent. NEC appealed unsuccessfully to the Labour Court, which also refused leave to appeal. The matter came before the Supreme Court with leave granted by a Judge of the Supreme Court in terms of section 92F(3) of the Act.

• Whether admission to membership of a voluntary employment council is as of right or depends on the discretion of the council
• Whether the word 'may' in clause 5:3 of the appellant's constitution is discretionary or mandatory
• Whether section 58 of the Labour Act imposes mandatory membership on voluntary employment councils
• Whether the Registrar had the power to impose the respondent as a member of the appellant council
• The interpretation of section 29(4)(f) and section 56 of the Labour Act in relation to the rights of trade unions to be represented on employment councils

The appeal was allowed with costs. The judgment of the Labour Court was set aside and substituted with an order allowing the appeal with costs.

The binding legal principles established are: (1) Voluntary employment councils formed under section 56 of the Labour Act are governed by common law principles applicable to voluntary associations, which includes the absolute discretion to admit or refuse members; (2) Section 58 of the Labour Act, which requires employment council constitutions to provide for admission of new parties, does not impose mandatory membership on voluntary employment councils; (3) The word 'may' in the context of admission provisions in a voluntary employment council's constitution is discretionary, not mandatory; (4) The legislature is presumed to be aware of the common law and any intention to depart from common law principles must be clearly and unambiguously stated in the statute; (5) Words in statutes and constitutions are to be given their ordinary meaning unless that meaning leads to a result which cannot reasonably have been intended by the legislature; (6) It is unlawful for the Registrar of Labour to impose membership of a trade union on a voluntary employment council against the council's discretion.

The Court noted that the legislature, in providing for two different categories of employment councils (voluntary and statutory), ensured that all unions and employers' organizations could be represented on an employment council. A trade union wishing to be part of an employment council may form one with any willing employer organization, or alternatively may seek recourse to the Minister who may exercise powers under section 57 to direct certain groups to form employment councils where deemed to be in the national interest. The Court observed that there is no disharmony between section 29(4)(f) (which provides that a registered trade union shall be entitled to form or be represented on any employment council) and section 56, and that reading these sections together does not reveal an intention by Parliament to impose any trade union or employer organization as a member of a voluntary employment council.

This case is significant in Zimbabwean labour law as it clarifies the fundamental distinction between voluntary and statutory employment councils under the Labour Act. It establishes important principles regarding freedom of association for voluntary employment councils and confirms that at common law, voluntary associations retain discretion over admission of members unless Parliament clearly and unambiguously legislates otherwise. The judgment is important for the interpretation of labour legislation and the rights of voluntary associations, reinforcing the principle that the legislature is presumed to be aware of common law principles and that any departure from common law must be expressly stated. It also provides guidance on statutory interpretation, particularly regarding when the word 'may' should be interpreted as discretionary versus mandatory.