Chronicle EditorDavies Ndumiso Sibanda, Labour Matters
MANY workers have run into legal problems for engaging in collective job action thinking the collective job action is legal only to find themselves out of employment.
The law does not give employees the right to engage in legal collective job action after giving 14 days’ notice.
Collective job action can only be engaged upon only after provisions of the Labour Act Chapter 28:01 section 104 2(b), which reads: “An attempt has been made to conciliate the dispute and a certificate of no settlement has been issued in terms of section ninety-three has been satisfied”.
Section 93 of the Labour Act Chapter 28:01 allows the Labour Officer up to 30 days to conciliate the matter before issuing a Certificate of No Settlement meaning that collective job action cannot take place before a Certificate of No Settlement has been issued.
The Act goes further to say, in the event the Certificate of No Settlement is issued together with a Certificate of Reference of Matter to arbitration then the window for collective job action is closed as the workers or the employer’s relief from the arbitration award lies in an appeal to the Labour Court.
Some workers have argued that the provisions of Section 104 of the Labour Act Chapter 28:01 are not consistent with the Constitution of Zimbabwe.
That thinking has been rejected to Labour Court in the matter Nust vs NUSTEDA LC/MT38/18 where the Labour Court ruled that provisions of Section 104 were not at variance with the Constitution but provided for regulation of rights when parties engage in collective job action as the right to collective job action is not absolute.
Where workers proceed and engage in illegal collective job action, the principle of no work no pay becomes applicable, meaning that the workers are not to be paid for the period they were not at work.
The employer, depending on the circumstances of each case can either discipline the workers individually using the Code of Conduct for engaging in illegal collective job action or absence from work without a reasonable excuse and depending on number of days of absence could lead to dismissal.
The employer has better control of collective job action in cases where he can use Statutory Instrument 15 of 2006 (The National Code of Conduct as the workers have no say who constitute the disciplinary authority.
Where there is an in-house Code of Conduct or Nec Code of Conduct, it could be paralysed then the employer can use the show cause route again, the employer is at an advantage in that once a show cause order declaring the collective job action illegal, then workers will be at the mercy of the employer as the employer can choose to dismiss all who participated in the collective job action or pick ring leaders.
As the law stands, workers who engage in collective job action must accept the related risks as the law is on the side of the employer making it extremely difficult to legally defend workers who engage in collective job action.
The position with the public sector collective job action that has taken place without employees losing jobs, is different, as the Labour Act Chapter 28:01 has been dwarfed by the strikes and the act of disciplining large numbers of employees in critical national jobs could be disastrous for the country.
However, it is a difficult story for private sector employees. In conclusion, until the Labour Act Chapter 28:01 is amended, engaging in the collective job action will remain risky for most employees.
– Davies Ndumiso Sibanda can be contacted on: Email: [email protected]
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