On July the 3rd 2020 the NEC for the Brickmaking & Clay Products Industry’s Collective Bargaining Agreement which also entails the Employment Code of Conduct & Grievance Procedure was promulgated in the Government Gazette as Statutory Instrument 152 of 2020. The coming into force of the new NEC Code of Conduct has implications on whether companies such as Beta Holdings, Red Castables and Clay Products (Pvt) Ltd among others which already have home-grown employment codes can continue to use them. Apparently works council codes have been subsequently superseded by the NEC’s Code by implication of Section 101 (1b) of the Labour Act [Chapter 28:01] which reads;
Section 101 (1b) of the Labour Act [Chapter 28:01]
“Where a code is registered by a works council in respect of any industry, undertaking or workplace represented by an employment council and the employment council subsequently registers its own code, the code registered by the employment council shall supersede that of the works council, unless the works council refers it to the employment council for approval”
This legislative position was reaffirmed and fortified by judicial pronouncements in the cases of Roni Masekesa v Kingdom Bank LC/H/149/2005, and very recently by Uchena JA in Albert Javangwe v Vortigen Investments t/a CPL SC 49/2020 where it was said:
The effect of s 101 (1) (b) of the Labour Act is that where the NEC registers a code for the industry, its Code will supersede any works council code unless the works council code would have been submitted to the NEC for approval. In this case the respondent’s employment code was superseded by the Employment Council’s code under S.I. 148/09. After that supersession the respondent submitted its code to the NEC for approval, which approval was granted. Section 101 (1) (b) was therefore complied with at that stage.
In Masekesa supra the court made similar remarks in that regard when it said
“In view of the above and taking into account the provision of Section 101 (1b) of the Act, I do not think the parties have a choice in the matter.…There is nothing in the Act to show that such an enabling power exists…The effect of the amendment was that where Employment Council Codes of Conduct were subsequently registered, all existing Employer Codes were superseded – unless approval was obtained from the Employment Council.”
It is thus a fact that an Employment Council Code of Conduct takes precedence over a works council code. In such a circumstance the works council cannot apply for the registration of code without approval from the NEC. The same goes for companies who would want to continue using their registered company codes after registration of an NEC code.
In the event that for some reason the NEC refuses to give such approval, section 101 (1c) of the Act allows the works council to refer the matter to a Labour Officer, (and not a Designated Agent) whose determination shall be final. The Labour Officer’s decision in the matter can only be undone if the parties agree to go for voluntary arbitration for resolution of the impasse, after which provisions of the Arbitration Act [Chapter 7:15] shall apply. It must be also noted that the ‘Works Council’ and not the ‘Employer’ shall have the responsibility to note the appeal to the Labour Officer. So suppose members from the workers’ committee constituting the works council are not in agreement with such an appeal, the NEC Code will remain binding until such a time when the Works Council has the resolution to proceed with the appeal.
The only exception was companies may be exempted from seeking NEC approval and re-registration of their codes is when there is an exemption clause or a blanket approval within the particular NEC Code or CBA as was the case in the Javangwe case supra. In that case, the employee (Javangwe) challenged his dismissal on the basis that the company code that the employer had used to dismiss him was not ratified by the NEC who had just repealed its code and substituted it with a new one. However Javangwe’s claim failed on the grounds that the NEC cognisant of the previous approval and registration of the respondent’s and other codes had exempted the respondent and others in similar circumstances from having to resubmit their codes for approval and re-registration through section 4.1 of S.I. 175/12 which provides as follows:
“The code shall not apply to employees with registered company codes of conduct already in use at the time of registration of the industry code of conduct.”
The court, therefore, found that it was lawful for the NEC to consider the pre-existing copy and approve it through the inbuilt provision. There was therefore no need for the re-registration of the respondent’s code. In our case, however, there is no such exemption and companies will have to walk the legal line as required by section 101(1b) of the Labour Act
So while some Practitioners and Works Councils will be making frantic efforts to seek approval from the NEC in order to revert back to using or registering their own codes (which would normally be more customized to organizational circumstances than the NEC’s industry-wide codes) practitioners will do themselves a big favor by familiarising with the substantive requirements and the procedural dynamics entailed in the NEC Code of Conduct. This would ensure that in the meanwhile any disciplinary cases which may be initiated will meet the requirements of procedural fairness and that cases that go on appeal or review are decided on merit rather than on technicalities. Failure to take heed of this change may come back to haunt employers in the not so distant future should a disciplinary matter end up at the NEC or the Labour Court.