Labour Amendment Bill: Other Important Provisions

Maternity Leave

Maternity leave provisions in the current Labour Act provide for a qualifying service before one can be entitled to maternity leave. The constitutionality of these provisions has been attacked in various forums. The legislature wishes to do away with the controversy and has decided to remove the qualifying service. This means every female employee will be able to enjoy maternity leave irrespective of the period of service to an employer.

Equal Pay for Work of Equal Value

The bill proposes the amendment of the non-discrimination provision (Section 5) to prevent employers from paying differentiated wages based on sex or gender for work of equal value.

Employment of young persons

The bill has increased the penalty for employing young persons in violation of the Labour Act. Imprisonment for such a violation is proposed to be 10 years up from the current 2 years whereas the fine is proposed to be level 12 from level 7. This shows the intolerance of the legislature regarding the employment of young persons.

684 Views

Labour Amendment Bill: Labour Brokerage Arrangements

Introduction

The Labour Act in its current form does not regulate labour broking. The legislature must have realised that labour broking is a reality in the economy and hence the need for its regulation. Labour broking involves three parties, there is the labour broker, who provides labour to a client and the labour. The labour then works for the client, but all conditions of services are managed by the labour broker. The labour has a contract of employment with the broker and not with the client. In the event of an employment dispute, it is the broker that is liable and not the client. The result is that all risk associated with the employment of an individual is borne by the broker and not the client. This triangular relationship often leads to disputes and without regulation employees and the client can become vulnerable.

Conditions of Service

The conditions of service for the labour provided by a labour broker are governed as follows:

“(2) Employees employed by virtue of a labour brokerage arrangement shall have conditions no less favourable than—

(a) other employees in that grade or occupation employed by the same employer; or

(b) the collective bargaining agreement for the undertaking or industry, where the third party only employs its employees in terms of a labour brokerage agreement.”

Here, the legislature is pushing for equality within the workplace. Labour supplied by a Broker should have the same conditions as other employees under the same employer. The conditions of service must also comply with the CBA of the industry. These are the only limitations to labour broking.

In South Africa, labour broking is highly regulated. Labour is only supplied for the client for 3 months and in substitution of an employee who is not around for a fleeting period of time.[1] If the labour is not provided under these circumstances, they become permanently employed for the client. We do not suggest that this is what is supposed to be implemented in Zimbabwe but leaving this arrangement open-ended like is being proposed can have profound consequences.

Joint and Several Liability

The legislature seeks to deal with damages emanating from a labour brokerage arrangement as follows:

“Unless the labour brokerage arrangement specifies unambiguously which of the parties to the arrangement is responsible for the payments or damages in question, the labour broker and the third party are jointly and severally liable for any payments”

The provision is clear-cut and serves to protect the employee in the event of damages arising from a contract of employment. The problem may arise when the broker does not have any assets as is usually the case as some of the brokers may just be using briefcase companies. What’s the employee’s recourse? This is where the legislature needs to protect employees by ensuring that labour brokers meet a certain criterion to allow employees to recover damages that may arise from an employment contract.

Conclusion

The amendment is proposing the regulation of labour broking in Zimbabwe. Unlike the South African arrangement, ours is an open-ended arrangement with not much restriction as to the period a labour broker can supply the labour. The bill posits that the conditions of service for the labour provided by a labour broker should be the same as other employees of the client as well as other conditions in the industry. The client and the broker are jointly and severally liable for the action arising from the labour supplied to the client, in the absence of an agreement clearly stating who is liable for such action.


[1]              See McGregor M (2014), Labour Law Rules, Siber Ink CC, South Africa.

1,542 Views

Labour Amendment Bill: Sexual Harassment and Violence

Introduction

Sexual harassment and violence in whatever form cannot be tolerated in a civilised society. The world over, courts are intolerant of perpetrators of violence in the workplace.

UASA obo Zulu v Transnet Pipelines[1] is an infamous South African case of a male employee who used to call a fellow female employee his wife and sexually harassed her. This happened for almost a year and in the process, the female employee would consistently condemn the unwelcome acts. The female employee eventually complained against the male employee after he attempted to have sex with her. In the hearing and at arbitration, the male employee maintained that his actions were part of his culture. His dismissal from employment was upheld.

The example above illustrates the kind of conduct the legislature has sought to seriously curtail in the workplace by coming up with the bill under discussion. The legislature was also aware that sexual harassment and violence may extend to other spheres of an employee’s life that are linked to the workplace.

The provision in the Bill is a very welcome development as it seeks to protect the employees. The provision also aligns our labour laws with international best practices in the field of robustly dealing with sexual harassment.

Under section 6 of the proposed Labour Act, a new subsection 3 that will deal with issues regarding violence and sexual harassment is being proposed. It is this section that will be the subject of discussion hereunder.

Definition of Violence and Sexual Harassment

Section 2 of the Labour Act is being amended to include the definitions of the words as follows:

 ““gender-based violence and harassment” means violence and harassment directed at persons because of their sex or gender, or affecting persons of a particular sex or gender disproportionately, and includes sexual harassment;

“violence and harassment” in the context of section 6(3) and section 8 refers to a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment;”

We note that the wording of this definition is borrowed from the International Labour Organisation as outlined in the Violence and Harassment Convention, 2019 (No. 190). In Zimbabwe, an international convention is not binding until it has been incorporated by an Act of Parliament[2] and by including the provisions of this convention into our law the country is complying with internationally accepted standards on violence in the workplace.

Prohibition of violence and harassment

The Bill prohibits violence in the following terms:

“(3) No person shall directly or indirectly act in a manner that amounts to violence and harassment towards another person at the workplace including any action in the course of, linked with or arising out of work—”[3]

The words highlighted in the provision are worth further discussion. The fact that the prohibited violence can be perpetrated “directly or indirectly” means that the source of the violence can be an employee or an employee working through another person who is a fellow employee or a non-employee. These words may also be interpreted to mean encouraging, inciting, recommending, advising, encouraging, threatening violence.

The words “linked with or arising out of work” are explained in the bill and these are the areas in which violence can occur:

“(a) in the workplace, including public and private spaces where they are a place of work;

(b) in places where the worker is paid, takes a rest break or a meal, or uses sanitary, washing and changing facilities;

(c) during work-related trips, travel, training, events or workplace organised social activities;

(d) through work-related communications, including those enabled by information and communication technologies;

(e) in employer-provided accommodation; and

(f) when commuting to and from work.”

Campbell Scientific Africa Ltd v Simmers and Others 2016 37 ILJ 116 (LAC), illustrates sexual harassment that happens in work-sponsored events. Here a male employee asked a female colleague if she wanted to be with him for the night. This resulted in the dismissal of the employee and subsequent upholding of the dismissal by the Labour Appeal Court of South Africa.

Gaga v Anglo Platinum Ltd and others [2012] 3 BLLR 285 (LAC) highlightsthe fact that the victim was enjoying the sexual harassment does not stop the harasser from being liable.

Consequences of Violence and Sexual Harassment

Criminal Sanction

The first consequence of violence and sexual harassment in the workplace is a criminal sanction. The bill is proposing a penalty in the following terms:

“Any person who contravenes subsection (3) shall be guilty of an offence and liable to a fine not exceeding level twelve or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment”.[4]

A person can be arrested for 10 years for violence or sexual harassment in the workplace. This is indeed a sign of how much violence and sexual harassment should not be tolerated in a civilised society.

Dismissal

The bill also prescribes dismissal as the appropriate penalty for anyone who is found to have caused Violence and Sexual Harassment. It says:

“Notwithstanding anything to the contrary in an employment code or the conditions of service for the employee concerned, any employee who is found after due enquiry by the employer to have engaged on a balance of probabilities in any of the acts for which the employee may be charged for an offence under subsection (5) shall be justifiable grounds for dismissal for that employee whether that employee has been prosecuted or not.”

 In this respect, even though the words “after due inquiry” are used in the section, this inquiry should always be in the form of a disciplinary hearing. We submit so because, even when one is accused of violence or sexual harassment, they are still entitled to the rules of natural justice. There is no other instrument that provides for these common-law rules other than the code of conduct. It is also the same instrument that ensures that the “balance of probabilities” is correctly assessed before a decision is made. We submit therefore that the wording of this section should not tempt persons to summarily dismiss an employee without following the code of conduct.

Liability of the Employer

Whilst we believe that the measures being taken in the bill are adequate to protect employees against violence, we suggest that a layer of further protection can be provided. The South African stance is perhaps ideal. In terms of South African law, an employer can be held liable for damages if he or she does not act to stop sexual harassment in the workplace. Such was the case in Ntsabo v Real Security CC (2003) 4 ILJ 2341 where the court noted that the company had not taken any action against a supervisor who sexually harassed an employee resulting in the employee finding the situation intolerable and resigned. The court ordered maximum compensation in terms of the South African laws because the employer had not acted to do something about the sexual harassment.

Conclusion

Violence in whatever form cannot be tolerated in a civilised society. The suggested provisions are welcome and introduce an era where female employees who are usually the victims of sexual violence feel safe in the work environment. By incorporating these amendments to the Labour Act the legislature is putting into effect the ILO Convention on Violence and Harassment Convention, 2019 (No. 190). This advances our labour laws to a stage where they comply with international best practices.


[1]              UASA obo Zulu v Transnet Pipelines (2008) 29 ILJ 1803.

[2]              Section 327 (2) of the Constitution of the Republic of Zimbabwe reads: “An international treaty which has been concluded or executed by the President or under the President’s authority— (a) does not bind Zimbabwe until it has been approved by Parliament; and (b) does not form part of the law of Zimbabwe unless it has been incorporated into the law through an Act of Parliament.

[3]              Proposed Section 6 (3) of the Labour Act.

[4]              Proposed Section 6(3)(4) of the Labour Act.

1,034 Views

Labour Amendment Bill: Retrenchment

Introduction

The legislature seeks to amend the whole of section 12C of the Act which provides for the retrenchment and compensation for loss of employment. A review of the provisions shows sweeping changes to the law on retrenchment in Zimbabwe. In summary, we note that the Bill is introducing a dispute resolution mechanism regarding non-payments of retrenchment packages, enforcement mechanism for the retrenchment package as well as personal liability for those who engage in fraudulent actions that have a bearing on the whole process, among other significant changes. The provisions and what they entail are discussed below.

Retrenchment Package

The Bill refers to two types of retrenchment packages, a minimum retrenchment package as per the 2015 amendments[1] as well as an enhanced retrenchment package[2], which is negotiated and agreed between an employer and employees.

Payment of the Package

The bill proposes that the retrenchment package should be paid within 60 days unless the affected employees agree otherwise.[3] For the minimum retrenchment package, the 60 days are calculated from the time the retrenchment takes effect (which is 14 days from the date of notification). However, if the employees satisfy the Retrenchment Board that the employer has the capacity to pay an enhanced package, the 60 days are computed from the time the Retrenchment Board advises the parties of its decision.[4]

Procedure for Retrenchment

The retrenchment procedure can be outlined as follows:

Notice of Retrenchment

The notice of retrenchment is 14 days, and this should be given to the Works Council or the NEC (in the absence of the Works Council) and the Retrenchment Board as well as the employee or employees affected by the exercise. [5]

The Bill further states that if the retrenchment agreement is not there, the works council, employment council and retrenchment board should be provided with the details of every employee to be retrenched and the reasons for the retrenchment.[6]

Negotiations for a Retrenchment Package

The bill provides:

“Where negotiations for a retrenchment package better than the minimum retrenchment package are undertaken after the notice given to the Retrenchment Board under subsection (3)(a)(ii) and an agreement is secured (including the date or dates when it shall be paid to the employees), any payments required to be made in terms of the retrenchment package must be made on the day or days so agreed and the signed retrenchment package shall be notified in writing in accordance with subsection (5)(a) to the Retrenchment Board no later than the end of the notice period or seven days thereafter”.

In our view, this provision which is meant to govern the negotiations for a retrenchment package is crafted in non-peremptory terms resulting in a situation where negotiations for a better retrenchment package are not obligatory. We believe that this is regrettable as in many of the times this leaves employees at the mercy of the minimum retrenchment package even in circumstances where the employer can afford an enhanced package.

Notice of the Actual Retrenchment

Once the employee is retrenched, there is an obligation on the employer to notify the Retrenchment Board once again. This notification will contain the fact that the individual or individuals have been retrenched as well as the details of the agreed package. The Retrenchment Board will issue a certificate called the “notification certificate” which will confirm that the retrenchment package is better than the minimum stipulated packages.[7]

When there is no agreed package, the board will also issue the same notification to the effect that the minimum package is being paid or it is to be paid.[8]

The retrenchment board is required to post such notice on a public notice board for a period of not less than seven consecutive days. The proposed law further provides that the certificate shall be prima facie proof of the notification made to the Retrenchment Board.

Enforcement of a Retrenchment Package

There Bill further proposes a dispute resolution mechanism in the event of non-payment of the retrenchment package within the period stipulated in the retrenchment agreement.[9]  The first stage in the dispute resolution is provided as follows:

“If it is alleged by any employee or employees or their representatives that any agreed retrenchment package or minimum retrenchment package has not been paid within the time or times stipulated or agreed, such employee, employees or their representatives must, before proceeding to enforce the package in terms of subsection (7), satisfy the Retrenchment Board to that effect in the form of an affidavit in which the extent of non-compliance shall be clearly set forth, whereupon the Retrenchment Board shall notify the employer of the allegation in writing and afford him or her an opportunity to make representations to the Board in writing in rebuttal of the allegation, and if no such representations are received or the Board is satisfied that compliance has not been made with the minimum or agreed package , the Board shall issue a certificate (hereinafter called a “non-compliance certificate”) to that effect in which the extent of non-compliance shall be clearly set forth”.

In modest terms, an allegation that there has been non-compliance with a retrenchment agreement is entertained by the Retrenchment Board first before approaching the Labour Court. The effect of the “non-compliance certificate” is that the retrenchment package agreed by the parties becomes binding. It’s only after the “non-compliance certificate” has been issued that a party can approach the Labour Court for the enforcement of the retrenchment package. The order given by the Labour Court will also have to be submitted for registration with a relevant Court.

We submit that the procedure being proposed is cumbersome. This is in consideration of the fact that the retrenchment package would have been agreed or the employer would have committed to pay the package the result of which would have resulted in a “notification certificate” from the retrenchment board. The fact that a notification certificate has been issued means the retrenchment package has been agreed upon and that it is binding. In any case, what’s more binding than the initial agreement to retrench? Requiring an aggrieved employee to get a non-compliance certificate in these circumstances is unjustified. It creates an unnecessary process in the enforcement of retrenchment packages.

Lack of capacity to pay the package

An employer has an option of applying to the retrenchment board or the employment council, notifying either of these bodies of the incapacity to pay the minimum retrenchment package. The retrenchment board or the employment council is required to call a hearing of the parties where this lack of capacity is dealt with.[10] If the retrenchment board or NEC does not deal with the issue within 30 days the employee can approach the Labour Court for a resolution.[11]

Allegation of capacity to pay an enhanced retrenchment package

The Bill provides that employees can allege and provide proof of the fact that the employer has the capacity to pay an enhanced retrenchment package. This should be done within 60 days of an employee’s receipt of the notice to retrench.  The employer is obliged to provide audited financial statements and to respond by way of an affidavit.[12]

The NEC or the retrenchment board will move to call parties to a hearing and seek to resolve the dispute within 30 days. If this does not happen, the aggrieved party may approach the Labour Court for a resolution of the dispute.[13]

Personal Liability for the Retrenchment Package

A new section 12CC is being proposed whose effect is to make an owner of a company, a director or a partner of a company personally liable for the payment of a minimum retrenchment package if it is proved that:

“(a) the employer deliberately stripped the assets of the business or otherwise degraded it in contemplation of retrenchment;

(b) the business of the employer was or is being carried on—

(i) recklessly; or

(ii) with gross negligence; or

(iii) with intent to defraud any person or for a fraudulent purpose;”[14]

The section provides for the procedure to be followed in the event of such an allegation. In summary, this involves the employment council or retrenchment board making such a finding which is then taken to the Labour Court. The entire process also involves giving all those involved the opportunity to be heard.

Conclusion

Some provisions in the Bill are progressive. However, we submit that a less cumbersome process for retrenchment dispute resolution is advisable. The Bill should also provide for a serious obligation on the part of the parties to negotiate a retrenchment package before the employer resorts to paying the minimum retrenchment package. The liability of persons who deliberately engage in fraudulent, reckless, or grossly negligent conduct in contemplation of retrenchment is a welcome development in our law. It seeks to protect employees who tend to be vulnerable in retrenchment processes.


[1]              Proposed Section 12C (1) of the Act.

[2]              Proposed Section 12C (1) of the Act.

[3]              Proposed Section 12C(2)(a) of the Act.

[4]              Proposed Section 12C(2)(b) of the Act.

[5]              Proposed Section 12C(3)(a) & (b) of the Act.

[6]              Proposed Section 12C (3) (b) of the Act.

[7]              Proposed Section 12C (5) (a) of the Act.

[8]              Proposed Section 12C (5) (b) of the Act.

[9]              Proposed Section 12C (6) of the Act.

[10]             Proposed Section 12C (9) (a) of the Act.

[11]             Proposed Section 12C (12) of the Act.

[12]             Proposed Sections 12C (13) – (16) of the Act.

[13]             Proposed Sections 12C (13) – (16) of the Act.

[14]             Proposed Section 12CC (1) of the Act

962 Views

Labour Amendment Bill: Powers of Labour Officers

Introduction

The Labour Amendment Bill is proposing changes to the powers of labour officers in resolving disputes and complaints of unfair labour practices. The 2015 amendments to the Labour Act brought about a system where all disputes before labour officers would go through conciliation whereupon if parties do not agree the Labour Officer would proceed to issue a draft ruling. The draft ruling would be of no force until confirmed by the Labour Court.[1] We believe this resulted in a situation where cases dealt with by Labour Officers clogged the Labour Courts through the confirmation proceedings. We trust, to deal with this situation the legislature is proposing the system that was there before the 2015 amendments. Since this is not a new system we shall not proceed in greater detail. This section will highlight the major points.

Conciliation

Conciliation as a dispute resolution mechanism was introduced by Act 7 of 2005. It survived the 2015 amendments. The Bill is proposing that conciliation remains in the dispute resolution process. It is the first method used to resolve labour disputes. One can go through Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa (CCZ 6 of 2020) and get a full appreciation of what this process entails. What is important to note is that conciliation produces either a certificate of settlement or a certificate of no settlement.

Certificate of settlement

When this is issued and signed by parties, it means the dispute has been resolved. Through this Bill, a layer of protection is being added to disputes resolved through conciliation. The Bill now provides:

“(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing, which shall be registrable with the relevant court for enforcement upon default. The certificate of settlement to enable enforcement shall be issued by the labour officer and it shall have the effect for purposes of enforcement, of a civil judgment of the appropriate court”.[2]

A certificate of settlement will be registrable with a relevant court depending on the monetary jurisdiction of the court and the monetary value of the settlement. This is a welcome development as it empowers Labour Officers to come up with binding settlements unlike the previous generation of laws that did not support the enforcement of a certificate of settlement. In our view, this encourages speedy resolution of labour disputes.

Certificate of No Settlement

The procedure here is that, if a dispute is conciliated for 30 days, a labour officer is compelled to issue a certificate of no settlement unless if the conciliation is extended. Once the labour officer issues a certificate of no settlement, the dispute will have to be referred for arbitration.[3] The Bill envisages two types of arbitration, compulsory arbitration which involves referring the dispute to an Arbitrator under the Ministry of Labour or the NEC, as the case may be, and also voluntary arbitration in which case parties choose the arbitrator they want to make use of.[4] Whichever form of arbitration the parties find themselves in, the effect at the end of the day is the same.

Arbitration and effect thereof

The major advantage of the proposed dispute resolution mechanism is the capacity to produce binding arbitral awards as compared to the draft rulings provided for under the amendments effected in 2015. An arbitral award can be registered with an appropriate court and can be enforced as an order of that court. This speeds up the resolution of disputes and relieves the Labour Courts as most cases may end up being resolved at the arbitration level.

Once a dispute has been referred for arbitration, the Arbitration Act (Chapter 7:15) kicks in.[5] Here, the process is more or less like a court process in that parties are allowed to make submissions whereupon the arbitrator can issue a binding determination.[6] The winning party can register the award for purposes of enforcement whereas the aggrieved party can appeal to the Labour Court. The arbitrator will have the same powers as the Labour Court in dealing with the matter.[7]

Further, once a dispute has been referred for compulsory arbitration, no person shall engage in collective job action in connection with such a dispute.

Costs associated with such arbitration will be shared between the parties and it is the role of the Labour Officer or the Labour Court to determine the costs to be borne by the disputants.

Appeals

A party aggrieved with an arbitral award can appeal to the Labour Court only on a question of law. What constitutes a question of law is now settled in this jurisdiction. The court in Hlahla v OK Zimbabwe (SC 64/2004) made use of the dictum in Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S) at 220 D-G where it was noted:

“the term question of law is used in three distinct though related senses. First, it means a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what is  considered to be the truth and justice of the matter. Second, it means a question as to what the law is. Thus, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter. And third, any question which is within the province of the judge instead of the jury is called a question of law. This division of judicial function arises in this country in a criminal trial presided over by a judge and assessors.”

The law is thus clear in terms of what constitutes a question of law when one is contemplating an appeal against an arbitral award. In the Hlahla matter pointed out above, the court reviewed the grounds of appeal lodged by the appellant and concluded that no question of law was raised and struck the matter off the roll with costs.

Conclusion

We note that the Bill is proposing a system of dispute resolution that existed before the amendments of 2015. We believe the system was more effective and will continue to work well in our jurisdiction. We applaud the legislature for ensuring that the certificate of settlement is enforceable in the same manner as arbitral awards. We believe the system will result in quicker resolution of disputes as there will be no need for further confirmation by the Labour Court.


[1]              See Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa (CCZ 6 of 2020) which argued “A “draft ruling” does not determine the dispute between the parties. Whether made against an employer or employee, it does not confer any right until it is confirmed by the Labour Court. It is not clear why a procedure providing access to the Labour Court should by construction be made available to one party in a dispute of right which has not been resolved and not to the other party”.

[2]              Proposed Section 93 (2) of the Labour Act

[3]              See proposed Section 93(3) to Section 93(7) of the Labour Act.

[4]              See proposed Section 93(3) to Section 93(7) of the Labour Act.

[5]              See proposed Section 98(1) to Section 98(8) of the Labour Act.

[6]              See proposed Section 98(1) to Section 98(8) of the Labour Act.

[7]              See proposed Section 98(1) to Section 98(8) of the Labour Act.

562 Views

Labour Amendment Bill: Designated Agents of Employment Councils

Designated agents (DAs) of Employment Councils play a key role in the resolution of disputes and unfair labour practices in the industries they belong. The Labour Act in its current form excludes Labour Officers from dealing with disputes that are within the authority of Designated Agents. The proposed bill shows a legislature that intends on further controlling DAs in the exercise of the section 63 powers. It also seeks to expand the authority of Labour Officers.

The proposed section 63 (3b) now provides for concurrent authority between Labour Officers and Designated Agents.[1] Where Labour Officers were previously precluded from entertaining disputes within the DAs authority, they can now deal with these provided this is done after the expiry of 30 days after the dispute arose and the matter has not been referred to a DA. The proposed provision reads:

“(3b) Subject to subsections (3c) and (3d) where a designated agent is authorised to redress any dispute or unfair labour practice in terms of subsection (3a), no labour officer shall have jurisdiction in the matter during the first thirty days after the date when the dispute or unfair labour practice arose, but a labour officer may assume such jurisdiction (and exercise in relation to that dispute or unfair labour practice the same powers that a designated agent has in terms of this section) after the expiry of that period if proceedings before a designated agent to determine that dispute or unfair labour practice have not earlier commenced.”[2]

Further, the proposed legislation empowers the Registrar to withdraw the appointment of a DA after an interested party or a labour officer has complained of the conduct of the DA. The grounds of such a withdrawal are crafted as “failure on the part of the designated agent to exercise his or her mandate effectively or to comply with the provisions of this Act”. The provisions also prescribe that if the complaint is because the DA is slow in acting, the Registrar may direct that the matter be heard by another Designated Agent or may refer it to a Labour Officer.[3]

We view these provisions as a serious attempt by the legislature to positively control the quality of dispute resolution outcomes as well as speedy resolution of labour disputes. The legislature should, perhaps, define terms such as failure to “exercise his or her mandate” and “unduly dilatory” to reduce interpretation problems at the point of implementing the respective provisions. The same provisions should also apply to labour officers and arbitrators in as far as they provide for a sanction for failure to adequately exercise a mandate as well as being unduly dilatory.


[1]              Proposed Section 63 (3b)

[2]              Proposed Section 63 (3b)

[3]              Proposed Section 63 (3c)

893 Views

Labour Amendment Bill: Codes of Conduct

Introduction

If you have been following the recent Supreme Court judgements that ruled on the jurisdiction of Labour Officers regarding completed disciplinary hearings, you would have anticipated some changes that would deal with this area of our labour law. For those who may not be aware, around three separate judgements issued by the Supreme Court announced that Labour Officers cannot hear appeal cases coming from completed disciplinary processes in terms of Statutory instrument 5 of 2006[1]. In one judgement, the Minister of Labour was directed to make amendments to the Labour Act to cure the lacuna. The bill indicates the changes that will address some of the concerns that were raised by the Supreme Court. It also comes up with other critical changes worth noting.  We believe that these are positive changes.

Jurisdiction of Labour Officers

We have already mentioned that the jurisdiction of Labour Officers to entertain disputes emanating from the disciplinary hearing processes was attacked in various judgements. In one of the judgements the Supreme Court ruled:

“It is inconceivable that a Labour Officer can assume jurisdiction over  a  completed  matter by  another  tribunal without  being  clothed  with appellate or review jurisdiction.  In the absence of specific statutory provisions, it is only appellate or review jurisdiction that authorizes higher court or tribunal to intervene in the conduct or verdict of a subordinate court or tribunal”.[2]

The Bill seeks to add the following proviso to section 101 (5) of the Act:

“Provided that at the conclusion of such proceedings and notwithstanding anything to the contrary in an employment code, at the instance of any party aggrieved by those proceedings may appeal to a labour officer within 30 days of the conclusion of the proceedings whereupon the labour officer shall attempt to conciliate the dispute in terms of section 93 or exercise any other power provided for in that section”[3]

The new provision is clearly meant to give labour officers jurisdiction to entertain appeals something that wasn’t provided for before. Further, we take particular note of the words “notwithstanding anything to the contrary in an employment code” used in this section. We submit that the legislature is doing away with other appeal structures that may be provided in a code of conduct. What we mean is that certain codes require one to appeal to the National Employment Council and others require one to approach the Labour Court directly. This will no longer be the case. Exclusive jurisdiction to hear appeals from completed disciplinary hearings now lies with the Labour Officers, whereupon anyone aggrieved by the decision of the Labour Officer will now appeal to the Labour Court.

The Bill further provides that when a Labour Officer is dealing with an appeal, he or she “shall attempt to conciliate the dispute in terms of section 93 or exercise any other power provided for in that section”. We note that the said Section 93 is being amended through the current Bill. In terms of these amendments’ disputes will be conciliated upon failure of which they will proceed to arbitration. This is a welcome development as it seeks to cure the shortcomings that came with the 2015 amendments. The current system results in draft rulings that are of no force until confirmed by the Labour Court[4]. In our view, by reverting to the old system, the legislature will deal with the current clogging of the Labour Court system through confirmation proceedings.

Expiry of codes of conduct

The Bill provides that a code of conduct expires after five years. The relevant section provides:

“If after the lapse of the five years a registered employment code of conduct has not been reviewed within three months of the lapse of the five-year period, the employment code of conduct shall be deemed deregistered.”[5]

There will now be an obligation on the part of every employer or NEC to review a code of conduct and to reregister it. This is a new development in our labour law and will ensure that codes of conduct conform to the changing times.

As clearly stated in the provision above, if a code of conduct is not reviewed within “three months of the lapse of the five-year period” is deemed to be deregistered. A deregistered code is void. This means an establishment will have to revert to the NEC code if one is available and if none exists the national code outlined in SI 15 of 2006 will have to be followed. We also note that the provision does not come with any retrospective application which also follows that the five years mentioned in the provision will be counted from the time the law comes into effect.

Conclusion

We summarise those important changes that are coming to the regulation of the code of conduct. The legislature has seized the moment and has started dealing with the concerns raised by the Supreme Court regarding appeals emanating from disciplinary proceedings. Labour Officers will now have the capacity to deal with appeals. This is a welcome development but those cases already being handled will not be protected by the new provision and will remain voidable at the instance of an aggrieved party. The compulsory review of codes of conduct also constitutes another important development in our view. Changing times require that this important instrument be reviewed to ensure that it is still complying with the intention of the drafters.


[1]              Tafadzwa M Sakarombe and Wonder Simuka v Montana Carswell Meats Private Limited (SC 44/20).

[2]              Misheck Mabeza v (1) Sandvik Mining (2) Construction (Private) Limited (SC 91/19).

[3]              Proposed subsection (5) of Section 101 of the Labour Act.

[4]              See Isoquant Investments Private Limited T/A ZIMOCO v Memory Darikwa (CCZ 6/20).

[5]              Proposed subsection 10 (12) of section 101.

493 Views

Labour Amendment Bill: Collective Job Action

Unlawful collective job action comes with consequences. The consequences range from dismissal, payment of damages, criminal prosecution which may lead to the payment of a fine and or imprisonment. The law in its current form provides that those found to have contravened lawful collective job action requirements “shall be guilty of an offence and liable to a fine not exceeding level fourteen or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment”.[1]

The proposed law now proposes different criminal sanctions for those who are criminally liable for unlawful job action. The distinction is whether the unlawful collective job action relates to the essential service industry or non-essential service industry. If the collective job action relates to an essential service “a fine not exceeding Level 14 or imprisonment for a period not exceeding five years or both such fine and imprisonment”.[2] In a non-essential service industry the fine does not exceed level fourteen or in the case of failure to pay the fine, “imprisonment for a period not exceeding one year”.

Clearly, the legislature intends to prevent and discourage strikes in essential service industries. Considering the damage that has been caused by strikes in the health sector, one would postulate that the legislature saw the need to curtail unlawful job action within the essential services sector.

We note that traditionally very few industries were declared essential services but since the onset of COVID-19 almost all industries have been declared essential services. Seemingly, engaging in unlawful collective job action in this COVID era would attract the maximum penalty proposed in the provisions above.

Lastly, we note that the sanctions discussed above, also apply to anyone who “recommends, advises, encourages, threatens, incites, commands, aids or procures any collective action which is prohibited in terms of section 104(3), with the intention or realising that there is risk or possibility of bringing about such collective action”.[3]


[1]              Section 109(1) of the Labour Act Chap 28.01.

[2]              Proposed 109(1) of the Labour Act Chap 28.01.

[3]              Proposed 109(2) of the Labour Act Chap 28.01.

745 Views

Labour Amendment Bill: Collective Labour Law

Introduction

The legislature saw the need to come up with a raft of changes to the collective bargaining landscape in Zimbabwe. Collective Labour Law is the law that’s created as a result of an agreement between employers and employees either at the company level or at the industry level. This is an area that has, in the past resulted, in disputes that have spilt to the Constitutional Court of Zimbabwe. One such dispute was NEC for the Communication and Allied Services Industry v Netone Cellular (Private) Limited and the Minister of Labour and Social Welfare (CCZ 17/19). In this dispute, Netone argued that it was not bound by a Collective Bargaining Agreement (CBA) whose negotiations it was not part of. The matter was initially heard by the High Court which declared certain parts of the CBA as unconstitutional in so far as they forced Netone to be part of the association against its will. The Bill addresses this issue beyond doubt.

Scope of CBAs

The Bill adds a new scope for the CBA. It says that in addition to the other elements of mutual interests that can be included in a CBA, parties can negotiate for conditions for paid educational leave at the employment council.[1] Paid educational leave is not provided anywhere else in the Labour Act and the legislature is giving parties to the employment relationship an opportunity to designate conditions within which one can be on paid educational leave. Presumably, this leave will apply to those employees who wish to further their studies. Currently, this area is regulated in company policies and those who do not have such policies may compel their employees to take vacation leave for educational purposes. We view this new change as a positive development in our law.

Under the scope of the CBA, the legislature has added a provision which states that if a CBA is negotiated by a statutory body or a state-controlled enterprise the Minister responsible for such an entity will be deemed to be part of the negotiations for the CBA. The Minister is also deemed to be on an equal footing with the employer. We do not fully appreciate why this has been inserted in the amendment. Perhaps the intention is to have a quasi-tripartite negotiating forum at the company level. We await to see how this will work in practice.

Registration of a CBA

It has always been a requirement for the Minister to stop the registration of a CBA that is contrary to the public interest or one which is inconsistent with the Act.[2] The Bill is proposing an additional layer to this requirement. The Minister will now be required to specify in writing the public interest issue at stake before directing the Registrar not to register a CBA until the parties have amended it. This will ensure that parties are fully aware of what they need to renegotiate on before resubmitting the CBA for registration.

Binding Nature of CBAs

The legislature is proposing provisions that give recognition to the constitutional right of every employee “to just, equitable and satisfactory conditions of work”.[3] In pushing for this right, the proposed law is buttressing the freedom of collective bargaining by persuading all interested persons, juristic or otherwise to obtain representation in the employment council. It is further provided:

“Accordingly, it shall not be a lawful excuse for those who did not avail themselves of the opportunity referred to in paragraph (b) to fail to abide by or claim not to be bound by a collective bargaining agreement freely negotiated for their industry.”[4]

Clearly, this provision is meant to deal with the excuse that was put forward in the Netone case discussed above. If this case had been a success, CBAs would have been rendered useless by the simple fact that a party that was not part of the negotiation is not bound by the CBA. To deal with this loophole, the legislature is making it clear that CBAs bind everyone in an industry whether they participated in the negotiations or not.

Conclusion

The legislature is proposing a legislation that will give effect to the labour rights enshrined in the Constitution as far as Collective Bargaining Agreements are concerned. The scope of CBAs has now been expanded to include negotiations around paid educational leave. We submit that this was in full recognition of the need for employees to self-develop. The binding nature of CBAs has also been made unambiguous. The fact that a person was not a party to the negotiations will not be a lawful excuse for refusing to abide by a CBA.


[1]              Proposed Section 74(3)(o).

[2]              Section 17(1) of the Labour Act 28.01.

[3]              Section 65(4) of the Constitution of the Republic of Zimbabwe.

[4]              Proposed Section 82(a1) (b).

489 Views

Labour Amendment Bill: Fixed Term Contracts

Introduction

A fixed-term contract of employment is a contract that has a start date and an end date. There was not much regulation to this type of contract. The major restriction has been that an employer cannot terminate a fixed-term contract and replace the employee. This would then constitute an unfair dismissal. Our perusal of the proposed Bill shows greater regulation for this type of contract. We believe the legislature wishes to deal with complaints of employees being put on perpetual fixed-term contracts. It also wants to restrict the termination of fixed-term contracts. This section looks at the provisions in the Bill and examines the consequences that will come with this amendment as far as fixed-term contracts are concerned.

The proposed amendment

The current Bill seeks to amend section 12 of the Act in respect to fixed terms contracts in the following manner;

“Section 12 (“Duration, particulars and termination of employment contract”) is amended—

(a) ………………..

(b) by the repeal of subsections (4a) and (4b) and the substitution of the following—

“(4a) A contract of employment may be terminated only, on the part of an employee, by his or her resignation or retirement, and in the following cases on the part of an employer—

(a) ……………………… or

(b) ……………………………………………………………

(c)  in the case of a fixed term contract, upon the expiry of the period of the contract without the need to give notice under subsection (4):

Provided that—

(i) notwithstanding anything in such contract to contrary no fixed term contract shall be for less than twelve months except—

A      in the case of employment that by its nature is casual or seasonal employment; or

B     the contract is for the performance of some specific service which may be completed before that time;

(ii) any fixed term contract that purports to be for a period off less than twelve months shall be deemed to be a contract for an indefinite period.

(iii) if the majority of employees engaged by the same employer are on fixed term contracts, and at any time when an employee’s employment is terminated on the expiry of his or her fixed term contract, then the provisions of sections 12C and 12D shall apply to such termination as if it was retrenchment.

(d)……………………………………………………………………………………

(e)  ………………………………………………………………………………..….

(f) for the breach of an express or implied term of contract, upon such breach being verified after due inquiry under an applicable employment code or in any other manner agreed in advance by the employer and employee concerned.”

The period of a fixed-term contract

The Bill provides that no fixed term contract shall be for less than twelve months. What this essentially means is that employers who had employees in contracts of less than twelve months will have to make the necessary changes on the expiry of the current contracts but before the Bill becomes an Act of parliament. The provision is not cast in stone as it unequivocally accepts that fixed-term contracts of less than 12 months are permissible in setups where the work is of a casual or seasonal nature as well as in situations where the work is of a specific service e.g. the agricultural sector. It follows that an employer who alleges that the work is seasonal or is for the performance of a specific service shall have the burden of proving the same.

The Deeming Provision

In addition to the restriction that’s coming with the period of a fixed-term contract, there is a deeming provision which provides that if an employee were to be on the contract of less than twelve months such an employee shall be deemed to be on a permanent contract. This section reads:

“(ii) any fixed term contract that purports to be for a period of less than twelve months shall be deemed to be a contract for an indefinite period.”

This stance is not surprising. Following the 2015 amendments to the Act, National Employment Councils have been capping the maximum number of times a fixed-term contract can be renewed. The following are examples:

  1. Commercial Sectors: 6 contracts
  2. Funeral Industry: 3 years
  3. Furniture Manufacturing Industry:  2 years
  4. Plastics Manufacturing Industry: 10 years

From 2015, there has been a shift towards the protection of employees on fixed-term contracts.

The proposed amendments will do away with most of these provisions in contracts and collective bargaining agreements. Every contract that is of a fixed term nature and is of less than twelve months shall be deemed to be permanent. When this happens, it means for example, in certain industries where employers are not obliged to pay pension for their fixed-term contractors, they will be obliged to pay such. For all intents and purposes, an employee who is on a contract of less than twelve months shall be deemed to be on a permanent contract at the time this law is put into effect. This is one of the intense consequences that’s going to flow from this provision. The provision does not allow a grace period to allow employers to restructure their establishments.

Termination at the expiry of the fixed-term contract

The law in its current form provides that an employee on a fixed-term contract gets nothing at the expiry of that contract. There is not even a need to give such an employee notice of the impending end to the employment relationship. Presumably, to offer some form of protection for workers and to ensure that they at least get terminal benefits at the expiry of the contract the following provision is being put in place in terms of the proposed amendments:

“iii. if the majority of employees engaged by the same employer are on fixed term contracts, and at any time when an employee’s employment is terminated on the expiry of his or her fixed term contract, then the provisions of sections 12C and 12D shall apply to such termination as if it was retrenchment”.[1]

The Bill provides that sections 12C and 12D shall apply when a fixed-term contract expires. The consequence is that a retrenchment package becomes payable to an employee. This retrenchment package can be a minimum or the negotiated retrenchment package, which is higher than the minimum, in terms of the proposed amendment.

This provision however does not apply to every employee. The provision applies if the majority of the employees of one employer are on fixed-term contracts. The Bill does not define what a majority entails, but one would postulate that this provision applies when more than 50% of the employees of one employer are on fixed-term contracts. The intention is clear, the legislature wants to do away with what others would term as casualisation of labour, a phenomenon where employees are perpetually on fixed-term contracts or where an employer deliberately puts employees on fixed-term contracts without any reasonable cause.

One thing that exercised our minds is that the provision is seemingly discriminatory. Employees who are employed in setups that do not have the majority of the employees on fixed-term contracts are not given the same benefit as those who belong to setups that have the majority on fixed-term contracts. Equally so, it punishes employers who employ more employees on fixed-term contracts even when the nature of business and the setup may not allow everyone to be on a permanent basis. This is not what the Constitution of the land intended when it provided that every person has the right to equality before the law. Every employee has the right to fair labour practices.  We respectfully submit that this provision may not survive constitutional scrutiny.

Furthermore, it is not clear how section 12 D of the Act will apply when a fixed-term contract is terminated. This is a source of controversy as section 12D provides for special measures to avoid retrenchment which measures are usually complied with before termination. The legislature needs to closely look at this provision in this regard.

Conclusion

In conclusion, the bottom line is that every employee, save for those on casual work or task contract, will, in the event that the Bill become law, be in a longer-term contract of at least twelve months. Fixed-term contracts of less than twelve months won’t exist when this law is passed. We are worried that the deeming provision does not allow employers to look into their systems and make the necessary changes before the provision comes into effect. By making everyone an employee on a permanent contract, employers may be prejudiced in situations where the work does not qualify as seasonal or task but at the same time, there is a need for flexibility in the management of contracts. We are also worried that the proposed Section 12 (4a) (c) (iii) is seemingly discriminatory as it affords more protection to employees who are employed by employers with many employees on fixed-term contracts compared to those employees employed by employers with fewer employees on fixed-term contracts.


[1]              Proposed Section 12 (4a) (c) (iii) of the Act.

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