DRAFT LABOUR LAW REFORM PRINCIPLES 2016
Streamlining Retrenchment Procedures
- The Labour Amendment Act No. 5 of 2015 currently poses challenges to the administration of the retrenchment process. The Labour Amendment Act section 5(3) (b) currently provides for automatic granting of exemption to an employer from paying the minimum retrenchment package, if the application for exemptions to the retrenchment Board is not heard within 14 days. This section is unfair to the employee(s) concerned as the exemption is granted without a fair hearing. More so the section seems to promote dereliction of duty on the part of the Retrenchment Board. It is therefore proposed as follows;
- To amend section 5 (3) (b) by deleting the words, “ (failing which response the application is deemed to have been granted).”
- The Labour Act No. 5, section 5 does not provide for equal protection for the workers as of the employers. While the section provides for exemption for companies who allege incapacity to pay the minimum retrenchment package, the section does not provide a recourse procedure for retrenched employee(s) who alleges the company concerned has the financial capacity to pay more than the minimum package. It is proposed to amend section 5 by adding a recourse procedure as follows;
- The parties shall negotiate the retrenchment package at enterprise and NEC level within 30 days. Failure to reach an agreement the employer shall pay the minimum package and the aggrieved retrenched employee(s) may appeal to the Retrenchment Board which shall make a determination within 30 days. The determination of the Retrenchment Board shall be final.
Right to Collective Bargaining
2.1 The Constitution of Zimbabwe section 65 (5) provides that every employee has the right to engage in collective bargaining as also enshrined in ILO Convention 98 on the Right to Collective Bargaining and Protection of the Right to Organise which the Government has ratified. Some sections of the Labour Act undermine the full exercise of this Constitutional right. Therefore the following amendments are proposed;
(i) To amend section 25, 79, 81 of the Labour Act as well as section 14 of the Labour Amendment Act No. 5 to ensure that collective agreements are not subjected to Ministerial approval on the grounds that the agreement is or has become “…unreasonable or unfair” or “contrary to public interest”.
2.2 The workers have proposed additional factors to also be considered in Collective Bargaining as contained in Convention 131 on Minimum Wage Fixing. These factors include the needs of workers and their families, the cost of living, social security benefits and the relative living standards of other social groups. There was no consensus on the inclusion of these factors.
Streamlining the Labour Dispute Settlement System
3.1 Currently there are two parallel dispute settlement systems provided for in the Labour Act and Labour Amendment Act No. 5. The new Labour Dispute Settlement System ushered in by the Labour Amendment Act No. 5 poses serious bottlenecks to the dispute settlement system to the extent that labour cases are piling up without resolution. For an efficient, easy and improved dispute settlement system the following amendments to the labour Act are proposed;
(i) To repeal section 16 of the Labour Amendment Act No. 5 which created the new dispute settlement system.
(ii) To review section 93 of the Labour to cover the following;
- (a) Powers, roles and jurisdiction of the conciliators. (Designated Agents and Labour officers). This will also include the provision to protect the independence of Conciliator Designated Agents.
- (b) Disputes and grievances to be subjected to
- (c) Registration of Settlements (proposal to make settlements be registrable and enforceable by the Labour Court).
- (d) There should be an outline of key stages of conciliation process
- (e) The automatic Referral process by the conciliator if there is no settlement.( voluntary arbitration if parties agree or compulsory arbitration if they don’t agree)
- (f) The defined timeframe of conciliation process.
- (g) The prescribed number of conciliators (Designated Agents) in Employment Councils
- (h) The minimum qualification of a Conciliator.
(iii)To amend section 98 of the Labour Act to cover matters related to arbitration as follows;
- powers of arbitrators
- Minimum qualifications of arbitrators
- Arbitration process
- Defined time frame to conclude the process
- Ethics in arbitrations
- Format of an award
- Representation at arbitration
- Rules of procedure.
- Minimum numbers of arbitrators per province.
- Compulsory continuous development programmes to enhance their capacity
(iv) It is proposed that the Centralization of arbitration process to be run by the Ministry of Public Service, Labour and Social Welfare.
Collective Job Action
4.1 The Constitution of Zimbabwe section 65(3) provides for the right to collective job action to every employee except members of the security forces.
This principle therefore seeks to amend:-
(i)To amend Section 104 of the Labour Act in order to streamline the procedures for declaring a strike under the Labour Act so that it is not restrictive to inadvertently constitute a denial of the right to collective job action. This includes the prescribed 14 day notice period and the voting process.
(ii)To amend Section 107, 109, 112 of the Labour Act to remove excessive penalties in the case of an unlawful collective job action also to decriminalize collective job actions.
Parties did not agree to the proposed amendments
Business’s position is that the provisions should not be amended, whilst Labour propose for amendments to the section as highlighted above.
Paid Educational Leave
5.1 Zimbabwe has ratified ILO Convention 140 on Paid Educational Leave. The Convention requires all member states that have ratified it to provide in their legislation the means by which the paid educational leave can be enjoyed by all workers. In this regard the following amendments are proposed:-
(i) To amend section 74(3) of the Labour Act to include paid educational leave on the list of areas for collective bargaining. This is in line with Article 5 of Convention 140 which states that “The means by which provision is made for the granting of paid educational leave may include national laws and regulations, collective agreements, arbitration awards, and such other means as may be consistent with national practice”.
Governance of Employment Councils
6.1 The Labour Amendment Act No.5 section 12 provides for a governance mechanism to Employment Councils by Government. In order to strike a balance between Governance oversight and non interference in internal administration of NECs by Government, the following amendments are proposed;
(i) To amend section 63A (3) of the Labour Act to allow any interested person to approach the Registrar or the courts to cause an investigation into the alleged maladministration of the NEC.
(ii) To amend section 63A (7) to remove the powers of the Registrar to appoint a provisional administrator.
Legal Status and Appointment of parties to the Employment Council
7.1This principle seeks to provide for statutory Employment Councils that will carry the functions of as provided for under section 62 of the Labour Act. This entailed the repeal of section 56 of the Labour Act which allowed for the establishment of voluntary Employment Councils resulting in the exclusion of other players in the industry. The voluntary Employment Councils were not consistent with the binding nature of collective bargaining agreements negotiated under the NECs for the entire sector.
7.2 To provide for the appointment of members to the NEC(s) Board, who are drawn from registered employers; and workers’ organizations through proportional representation of their membership.
Right to Organize
8.1 The amendments seek to provide specific grounds to be considered by the Registrar in registering a trade union, such as the existence of a constitution, existence of an executive board, fixed business address and membership register. This entails the amendment of provisions of the Labour Act which gives the Registrar excessive discretion to refuse registration of a trade union(s) or employers’ organization after receiving objections from existing organizations.
8.2 To provide a new section to prescribe a time frame within which the registrar is to register a union or employers’ organization after receiving an application meeting the requirements. This is to ensure that the period of registering an organization is reasonable.
8.3 To amend section 51 of the Labour Act which relates to supervision of election of officers of a trade union or employers’ organization by Labour Officers. The idea is to guarantee the right to organize without interference by Government.
8.4 To amend sections 28(2), 54(2) and (3), 55 and 120(2) of the Labour Act with a view to streamline the Minister’s powers to regulate administrative issues of trade unions and employers’ organizations.
Right to Maternity Protection
9.1 Section 65(7) of the Constitution provides that women employees have the right to fully paid maternity leave for a period of at least 3 months. This requires the amendment of section 18 of the Labour Act to remove qualifying period, prescribed intervals for maternity and a maximum number of times for enjoying maternity leave.
There was no agreement on this issue.
Labour is of the view that this right already exists in the Constitution therefore should be provided for in the labour Act without any conditions.
Employers’ position is that legislation of this right without first establishing the maternity scheme under NSSA will lead to an unsustainable financial burden on business.
Government’s position is that there is need for a balanced approach in order to avoid unintended effects such as discrimination against prospective female employees of child bearing age.
Fixed Term Contracts
10.1 The Labour Amendment Act No.5 now provides that a fixed tern contract shall be deemed to be a contract of employment without limit of time upon the expiry of such a period of continuous service to be fixed by respective Employment Councils or the Minister shall.
There is no agreement on this matter.
Business’s position is that this provision takes away the labour market flexibility which is necessary for competitiveness and sustainability. The provision also presents difficulties in managing employment contract in situations where the work is not of a permanent nature such as the construction, projects and Non-Governmental programmes.
Labour is in support of the current provisions in the Labour Amendment Act No. 5.
Clean up of the Labour Amendment Act No. 5 of 2015
This seeks to remove inconsistencies, repeated statements, typo errors and other related amendments such separation of retrenchment, disciplinary procedures in the Amendment Act.