National Railways of Zimbabwe v (1) Zimbabwe Railways Artisans Union (2) Railway Association of Yard Operating (3) Railway Association of Engimen (4) Zimbabwe Amalgamated Railwaymen Union

The respondent unions referred a dispute to conciliation concerning housing allowance and educational assistance for railway employees. On 19 July 2007, the parties appeared before a conciliator who issued a certificate of no settlement and, by agreement with the parties, referred the matter to an arbitrator for compulsory arbitration. The terms of reference included whether the respondents were entitled to housing allowance and education allowance. The appellant's position was that it had not refused to negotiate but preferred negotiations to center on basic pay rather than allowances. The Arbitrator found that the dispute was a 'dispute of interest' because section 74(3) of the Labour Act provided that such matters were negotiable. Despite this finding, the Arbitrator awarded school fees and housing allowances totaling 55 percent of employees' basic salary without providing reasons. The appellant appealed to the Labour Court, which dismissed the appeal. The appellant then appealed to the Supreme Court.

• Whether an Arbitrator can, in a compulsory arbitration, dictate the terms of a collective bargaining agreement between the parties
• Whether the Arbitrator could properly impose upon the parties the terms of a collective bargaining agreement
• Whether the allowances sought constituted a right or entitlement or merely matters for negotiation
• Whether the referral to arbitration before attempting conciliation was a nullity
• Whether the Labour Court erred in upholding the Arbitrator's award

The appeal was allowed with costs. The order of the Labour Court was set aside and substituted with an order allowing the appeal with costs and setting aside the Arbitrator's decision.

An arbitrator cannot impose or dictate the terms of a collective bargaining agreement between parties. Collective bargaining agreements are contracts that can only be set by agreement between the parties themselves. The matters listed in section 74(3) of the Labour Act are discretionary matters which parties 'may' elect to include in their agreements - they do not constitute rights or entitlements that can be imposed by an arbitrator or court. Benefits to be included in a collective bargaining agreement must be agreed by the parties and cannot be imposed by an Arbitrator or any court, in the same way that a court cannot write a contract for parties. Where a dispute concerns matters of interest (negotiable matters) rather than rights (legal entitlements), an arbitrator's proper role is conciliatory - to urge parties to negotiate further - not to create contractual terms for the parties.

The Court observed that while section 93(1) of the Labour Act provides no bar to referral to arbitration by agreement, the Labour Officer ought to have attempted to settle the dispute through conciliation before referring the matter to arbitration, particularly where the dispute was one of interest only. The Court noted that each undertaking faces its own peculiar circumstances, and the fact that one employer pays allowances puts no obligation on another employer to do the same. The Court commented that the Labour Officer's role in conciliating matters and assisting parties to reach agreement is invaluable, and that referring the matter to the Arbitrator merely shifted the responsibility to conciliate. The Court also noted that both the Labour Officer and the Arbitrator misconstrued their respective roles in the matter.

This case establishes important principles in Zimbabwean labour law concerning the limits of arbitral power in collective bargaining disputes. It clarifies that arbitrators and courts cannot impose terms on collective bargaining agreements - these must be negotiated by the parties themselves. The judgment distinguishes between disputes of 'interest' (concerning matters to be negotiated) and disputes of 'right' (concerning legal entitlements), and confirms that arbitrators have no power to create contractual obligations where parties have not agreed. The case reinforces the principle of contractual freedom in labour relations and the importance of genuine negotiation in collective bargaining processes. It serves as a significant precedent limiting judicial and arbitral intervention in the substantive terms of collective agreements, while emphasizing the proper role of conciliation and arbitration as facilitative rather than imposing processes.