Section 65(2) of the Constitution of Zimbabwe recognizes the right of every person, save for members of the security forces, to form and join trade unions and employee organizations of their choice. This means that employees enjoy the right to belong to a trade union or shop floor worker institutions like works councils and workers’ committees of their choice. The question which arises is whether managerial employees who occupy the middle and upper echelons of employers’ decision-making machinery have the legal right to form, join, and be represented by trade unions of their choice.
The Labour Relations Act 1985 prohibited a trade union from representing managerial employees. It defined;
‘managerial employee’ as an employee, the nature of whose employment involves him in a confidential relationship with his employer in relation to matters affecting the rights and interests of other employees’
This definition was repealed in 1992 and replaced with the following;
‘managerial employee means an employee whose contract of employment requires or permits him to hire, transfer, promote, suspend, lay off, dismiss, reward, discipline or adjudge the grievances of other employees or to make recommendations on these matters to his employer’
This definition captured a substantially wider group of employees and adopted an omnibus approach by including employees without a real managerial function and were also denied the right to belong to a trade union. This was repealed in 2002.
Some scholars argue that the distinction between managerial and non-managerial employees is sound in principle as it ensures that workers at senior levels of management do not, through conflict of interest, undermine the interests of other workers at the lower level.
The Supreme Court was called upon to decide on whether managerial employees enjoy the right to register and join a trade union. The case pitted the Bankers Association of Zimbabwe (BAZ) vs. Banking and Finance Managers Union of Zimbabwe (BAFMUZ) (SC 15/2019). The Bankers Association of Zimbabwe challenged the registration of a bank managers’ union, arguing that managers cannot be union members because they represent employer’s interests. The Supreme Court dismissed the appeal, ruling that managerial employees remain employees and are fully entitled to all rights correlative to that status. Patel JA (as he then was) affirmed that there is nothing legally sinister about managers forming or joining a trade union to promote and further their specific interests.
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