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Legal Matters with Arthur Marara
The laws on employment are constantly changing, and it is important to be aware of the implications of the same on your business and organisation.
The Labour Amendment Bill needs every employer to thoroughly understand. I have done presentations on it before, but had never actually done a written memorandum on it. In this article I am going to focus on the key provisions. There are several areas that the Labour Act will be changed if the Bill goes through so I will just take you through some pertinent ones so that you can also see how best you can align your affairs as an organisation.
The objective of the amendment
The amendments are being made to align the Labour Act with section 65 of the Constitution of Zimbabwe and the International Labour Organisation (ILO) Conventions ratified by Zimbabwe. International conventions have to be domesticated in order for them to be biding. They do not automatically become part of our law. In order to align with section 65 of the Constitution, this Bill will expound on the rights to fair and safe labour practices and standards.
The review also seeks to promote ease of doing business principles through streamlining and promoting timely conclusion of processes, particularly the labour dispute settlement and retrenchment processes.
Every investor has a keen interest in knowing the employment laws in order for them to make a decision on whether or not to invest in a particular economy. The Bill also takes care of emerging issues in the world of work such as labour broking, violence and harassment at the work place and emerging forms of employment relationships with a view to closing the lacuna in the existing legislation thus entrenching fair labour standards contemplated in section 65 of the Constitution.
Clause 4: Equal pay
This clause will place an obligation on employers to pay male and female employees equally for work of the same value. The new provision broadens the scope of the principle of equal pay for work of equal value to tackle occupational sex segregation in the labour market.
Clause 8: Termination on notice
This remains a topical issue. This clause amends section 12 to unambiguously deal with the issue of the common law practice of termination on notice. Remember the Zuva Judgment, the Bill seeks to deal with the issue of termination on notice in order to enhance protection to the employees.
The Bill also deals with issues of casualisation by making provision that a fixed term contract cannot be for a period that is less than 12 months, unless the employment is for seasonal or causal work or for the performance of a specific service. The casulisation of labour had been argued in the Magodora v Care International SC91/13 but was not successful.
The Bill seeks to deal with the issue now. This clause further provides that an employer who employs the majority of his or her employees on fixed term contracts will have make use of retrenchment provisions when the contracts are terminated.
This clause further provides for termination of contracts for breach of express or implied conditions of service after a due process (procedural fairness) in line with applicable and established code of conduct or agreed disciplinary procedure.
Clause 9: Retrenchment and compensation for loss of employment
This clause replaces section 12C to provide essential definitions related to retrenchment. Makes provisions to ensure that employer’s obligation to pay the retrenchment package to his or her employees is fulfilled, taking into account any employer that deliberately diminishes his or her capacity to pay the retrenchment package and also making sure that employees are free to make representations to the Retrenchment Board where they allege that an employer has the capacity to pay a better retrenchment package than that offered. This clause further provides a process for effecting enforcement of non-payment of a retrenchment package through the Labour Court.
Clause 10:
This clause inserts a new section to ensure that employees do not evade having to pay retrenchment packages to their employees by fraudulently or recklessly conducting their business in a manner that renders the employer unable to pay such retrenchment package.
Clause 11: Maternity
This clause amends section 18 to align the Labour Act to section 65(7) of the Constitution to ensure that women employees have the right to fully paid maternity leave for a period of 3 months by removing qualifying periods, prescribed intervals for maternity and a maximum number of times for enjoying the right to maternity leave under one employer. This will protect women from discrimination as well on the grounds of pregnancy. Many employers tend to shy away from hiring pregnant women. Women are also now free to have as many babies as they want if the Bill goes through.
Clause 12: Zero-Hour Contracts
This clause inserts a new section that makes provision for the manner in which an employer can engage employees on contracts for hourly work against the back drop of new forms of contracts called “zero hour contracts” wherein workers are only paid for actual hours worked in the event of work stoppage not caused by the employee. These contracts may not prohibit employees from seeking other work. This section clause also mandates the employer to pay up the difference of what the employees earn and the minimum wage where employees do not earn the minimum wage for a period of two months.
Clause 12: Labour Brokage
This clause further provides for fair labour practices in labour brokerage arrangements in that, it affords protection for employees in such arrangements by making the labour broker and employer both liable to the employee. This deals with mischief that comes with triangular employment relationships which circumvent employer obligations and responsibilities including fair remuneration of workers.
Clause 13: Collective
Bargaining Agreements
This clause provides for the Minister to be a party to a collective bargaining agreement where statutory bodies or entities controlled by the State are parties to a collective bargaining agreement to cure the mischief of unsustainable employments costs being agreed upon by parties to a CBA in statutory bodies or entities controlled by the state.
Clause 17: Trade Unions
This clause makes addition to the requirements for application for registration of a trade union, employers organisations or federation, namely the requirement to specify the physical head office of the organisation and submission of the minutes of the meeting of the organisation. This is meant to deal with mushrooming of brief case unions seeking registration without known offices or proven membership.
Clause 25: Dispute resolution
This clause amends section 63 of the existing Act in order to ensure that the matter of dispute or unfair labour practice are redressed by allowing a labour officer to assume jurisdiction over such matters where they have not been attended to by a designated agent within a period of 30 days.
This allows for access to justice to concerned parties in places where there are no Designated Agents of the National Employment Councils(NECS) and in situations of inordinate delays by NECs.
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, commercial law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]
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