adminMatthias Ruziwa HR Issues
Worker rights are essential to development of the economy if they are well linked to productivity improvement and international competitiveness. It is more likely that in recent times employers have come under increased pressure to undermine labour rights that are believed to raise production costs largely due to increased international competition.
The legislative framework provided in Section 93 of the Labour Amendment Act, 2015, (“Powers of labour officers”) will definitely bring a paradigm shift to the resolution of disputes concerning rights of employees. In view of this new development, this article seeks to guide employers on what exactly are employee rights and their major sources.
An employee right is a term that is used in different ways. In some cases it is viewed to mean a claim deriving from a rule of law which can be enforced in the courts. In other situations, others equate it with legitimate claim based on moral grounds. In general, the term actually blends the legal and moral elements. In this article, employee rights are rights or privileges that a person may claim as a consequence of his or her legal employment and these are classified as disputes of right and disputes of interest.
Most labour dispute resolutions in the SADC region provide for referral of both disputes of right and disputes of interest to a consensus based process in the first instance. If the process (usually conciliation or mediation) fails, the dispute is then referred either to a rights based process or a power based process. In simple terms, disputes of right are disputes over existing rights e.g. an unfair labour practice and disputes of interest are disputes over an attempt to create a fresh right e.g. a wage dispute.
According to the Labour Act Amendment, 2015,Section 93 (“Powers of labour officers”) (2) of the principal Act is amended by the insertion of the following paragraph-
“(5) After a labour officer has issued a certificate of no settlement, the labour officer, upon consulting any labour officer who is senior to him or her and to whom he or she is responsible in the area in which he or she attempted to settle the dispute or unfair labour practice –
(a) shall refer the dispute to compulsory arbitration if the dispute is a dispute of interest and the parties are engaged in an essential service, and the provisions of section 98 shall apply to such reference to compulsory arbitration; or
(b) may, with the agreement of the parties, refer the dispute or unfair labour practice to voluntary arbitration if the dispute is a dispute of interest; or
(c) may if the dispute or unfair labour practice is a dispute of right: make a ruling that, upon a finding on a balance of probabilities that-
(i) the employer or other person is guilty of an unfair labour practice; or
(ii) the dispute of right or unfair labour practice must be resolved against any employer or other person in a specific manner by an order-·
directing the employer or other party concerned to cease or rectify the infringement or threatened infringement, as the case may be, including the payment of moneys where appropriate:
for damages for any loss or prospective loss caused either directly or indirectly, as a result of the infringement or threatened infringement, as the case may be;”
It is clear from a close reading of the new Section 93(5) (c) of the Labour Amendment Act, 2015 that labour officers are now empowered to make a ruling on disputes of right. The same powers will also be vested on employment council designated agents who enjoy the same powers of labour officers under section 63 of the Labour Act Cap 28:01. In this regard, the disputes of right which they may determine revolve around the following;
Statutory Rights
Statutory rights include only those rights which have been given legal force by the state. The state does place legal constraints on the employment relationship in order to protect its economic system and the needs of individual employees. Enforcement mechanisms designed to regulate aspects of employment such as minimum wages, maximum hours of work, provision of protective clothing etc. are collective bargaining agreements, the Labour Act, Factories and Works Act where fixed standards are established and their infringement can easily be detected.
Contractual Rights
These are employee rights gained through the employment contract based on individual bargaining or perhaps a collective agreement. From my experience, the contract generates rights only if its provisions are enforceable. A contract of employment is an agreement between an employer and employee which is legally binding.
It usually provides for issues such as particulars of the employee’s remuneration, its manner of calculation and the intervals at which it will be paid; particulars of the benefits receivable in the event of sickness or pregnancy; hours of work; particulars of any bonus or incentive production scheme; particulars of vacation leave and vacation pay; particulars of any other benefits provided under the contract of employment.
Once a contract of employment is signed by the parties, it becomes legally binding and deviation will result in claims relating to disputes of right.
At a time when the labour laws have been amended to strike a balance between industrial competitiveness and protection of labour rights, it is my humble view that the amendments to section 93 of the Labour Act will strengthen the dispute settlement mechanism.
Expeditious resolution of disputes of right is justified. It is only the version of free market economics in some countries which stresses non — intervention by governments in resolving employment disputes.
Worker rights are essential to development of the economy if they are well linked to productivity improvement and international competitiveness.
Matthias Ruziwa is an experienced and progressing Strategic Human Resource Practitioner. He is also an independent arbitrator practicing in the Midlands Province, City of Kwekwe. You can contact Matthias at the following email address: [email protected] <mailto:[email protected]> /whatsapp 0773 470 368
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