Ilunga and Ors v Council of the Copperbelt University (Appeal 79 of 1999) [2000] ZMSC 158 (1 June 2000)

IN THE SUPREME COURT OF ZAMBIA APPEAL No. 79/99 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: ALLAN ILUNGA AND 65 OTHERS Appellant AND COUNCIL OF THE COPPERBELT UNIVERSITY Respondent Coram: Ngulube CJ., Muzyamba and Chibesakunda JJs. On 10 February and 1st June 2000 For the appellants - Mr. S. S. Phiri, of S. S. Phiri and Company For the respondents - Mr. C. Chonta of Ellis and Company JUDGMENT Ngulube CJ. delivered the Judgment of the Court. For convenience, we shall refer to the appellants as the workers and to the respondents as the employers. The workers launched proceedings in the Industrial Relations Court complaining that the employers had refused or neglected to implement salaries negotiated for and approved for the year 1994 to date. They asked the Court to order that the employers do pay the workers the 85% salary increase as agreed with effect from January, 1994. The basic facts were common cause: The evidence established that all the relevant committees and organs of the Copperbelt University had agreed to a proposed award of 85% increase for the workers who belong to the Senior Administrative, Technical and Professional Staff. The workers who are represented on the various organs got wind of the proposed award and the fact that the proposal had received approval through the various stages right down to adoption by the employers. The workers had sight of the minutes and other documents to this effect and sued because the increase was not implemented. There was evidence that the employer relied on government funding and did not implement the increase because no money had been forthcoming to fund such an increase. This was apparently a case of the spirit being willing but the pocket was very weak. What happened instead, according to the record, was that there had been some adjustments in the interim but far below the anticipated increase. The workers took the view that as long as their employers had adopted the proposed increase, they were obliged to pay such increase and that the implementation did not have to await government funding. The employers resisted the claim arguing that the workers’ representatives had prematurely leaked confidential documents to their colleagues when implementation depended on government funding which, if made available, would have enabled the employers to sign an agreement with the workers’ union or Association, followed by individual letters to each employee. The Industrial Relations Court agreed with the position taken by the employers, holding that as a grant-aided institution, the increase was subject to government approving and funding such increase. The court disagreed with the contention on behalf of the workers that adoption of the proposal by the employers was enough to bring about a concluded and binding agreement with the workers. On the contrary, the Court accepted the contention on behalf of the employers that the Statute envisages the formal signing of an agreement with the Union or the Association before an agreement could be said to have been concluded. The appeal is from such determination below and we have been requested to agree with the workers’ view of the law and to reverse the lower court. The relevant law here is Section 40 of the then University Act, CAP 136 of the 1995 Edition of the Laws. The Section is worth quoting in full and it reads - “40. (1) There shall be a Salaries and Conditions of Service Committee which shall consist of- (a) one representative from the Ministry responsible for finance appointed by the Minister responsible for finance; (b) one representative from the Ministry responsible for education, appointed by the Minister; (c) one member of the Council, elected by the Council; (d) one person elected by the academic staff; (e) one person elected by the administrative staff; (f) one person elected by the other staff; and (g) one Member of Parliament appointed by the Speaker of the National Assembly. (2) The Salaries and Conditions of Service Committee shall review the salaries and Conditions of service for all public university staff annually. (3) The Salaries and Conditions of Service Committee shall, on completion of the review referred in subsection (2), refer its recommendations to Council for adoption. (4) The Salaries and Conditions of Service Committee shall regulate its own procedure and the conduct of its meetings. (5) An agreement on salaries and conditions of service shall be concluded by a Council with the appropriate union or association. " Mr. Phiri submitted that this quoted section provided a mechanism for negotiating salaries and conditions when it established the Committee which, by subsection (2) “shall review” as an obligation the salaries and conditions. It was pointed out that the Committee did so and resolved that there be an 85% increase for the year 1994; and that the recommendation was accepted by the Council. It was argued that the Council was the sole employer and that they could conclude an agreement with their workers in any manner, including by adoption of a recommendation received from a competent Committee and not just by signing an agreement. It was argued that there was no premature leakage of confidential documents as found below since the workers’ representatives had legitimate access to the documents. On the issue of government funding, it was submitted that the government was not the sole financier and that in any case the government was represented at all stages by an officer from the Ministry of Finance, which is the funding ministry, and by another from the Ministry of Education, which is the parent ministry. The point of law raised by the workers - upon which an appeal to this court can be entertained - was that the reference in subsection (5) of the section quoted to an agreement being “concluded” with the appropriate union or association did not require any signing; adoption by the Council was enough. On behalf of the employers, Mr. Chonta submitted and argued to the effect that the requirements of subsection (5) could only be met by an agreement actually being concluded and signed between the Parties. He argued that the subsection envisaged a collective agreement to be arrived at so that the employer alone could not simply adopt some recommendations made to them. Mr. Chonta relied on the principle for the interpretation of statutes which requires that Acts of Parliament be construed according to the intent of the Parliament which passed the Act, so that where the words are plain, precise and unambiguous, then they should be taken in their natural and ordinary sense. The question arises whether a one-sided process such as adoption by the employer alone can still amount to an agreement concluded with the appropriate Union or Association. It is obvious what the answer must be and it would not be tenable to suggest that the workers’ representatives who sat in their capacity as part of the Council thereby also played the dual role of concluding anything on behalf of the appropriate Union or Association. It is obvious that this necessary step under subsection (5) was not reached or undertaken and what had clearly been intended and desired by everyone concerned was not implemented. The industrial Relations Court was on very firm ground and did not misdirect itself in any way. The appeal is unsuccessful but since it raised a point of general interest on the then University Act, there will be no order as to costs. M. M. S. W. Ngulube CHIEF JUSTICE .............. ....................................... W. M. Muzyamba SUPREME COURT JUDGE L. P. Chibesakunda SUPREME COURT JUDGE