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.

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