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Labour Act Amend Analysis

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Brenald-Chinyowa-FILE-326x242As many people argue that the Amendment of the Act was fast tracked and the government somehow acted in a panic mode, I beg to differ with that perspective because to my understanding the amendment of the Act was long overdue and there was need to realign it with the current Constitution of the country, there was need to realign the act with the trending labour practises in the international community and to make it more business friendly, also the principal act has a lot of gaps that were supposed to be addressed. So I can safely dismiss the argument that the process was fast tracked and the government was in a panic mode. But however I may like to question or to suggest the consideration of making The Tripartite Negotiation Forum (TNF) a regulatory body not just a platform for expression of interest but basically to be the custodian of the Labour Act responsible for its implementation, realignment from time to time depending with the trending conditions.

This week we are to go through the amendments of Section 12 (“Duration, particulars and termination of employment contract”) of the principal Act. The shortcoming of this section also among others caused labour disharmony in the industry.

  1. Amendment of section 12 of Cap. 28:01

is amended-

(a) by the insertion after subsection (3) of the following subsection-

“(3a) A contract of employment that specifies its duration or date of termination, including a contract for casual work or seasonal work or for the performance of some specific service, shall, despite such specification, be deemed to be a contract of employment without limitation of time upon the expiry of such period of continuous service as is-

(a) fixed by the appropriate employment council; or

(b) prescribed by the Minister, if there is no employment council for the undertaking concerned, or where the employment council fixes no such period; and thereupon the employee concerned shall be afforded the same benefits as are in this Act or any collective bargaining agreement provided for those employees who engaged without limit of time.”;

 

This is a new provision that was nonexistent in the principal Act and with the dawn of this it now means the incessant renewal of contacts for unlimited times is no longer permissible. The previous practise was that an employer can give an employee a contract ending after 3 months and the employee is required to renew the contract upon expiry or the employee was required to stay at home and come back after a certain period and to be reengaged.  My individual interpretation and understanding of the Act took this as an abuse of fixed term contracts, because I feel fixed term contracts were made for projects or business ventures that ends or cease operations within a specific period of time such as a Road construction project it is not a continual business but that will definitely end so it is not logical to employ an permanent employee for such a project but if its scheduled to be finished after 5 years, then we have to draft fixed term contracts of 5 years. However the number of times on many times to renew the fixed term contracts (contract of employment that specifies its duration or date of termination) shall be from time to time be defined of stipulated by the NEC of that industry that is through collective bargaining agreement or the minister if there is no NEC in that industry.

Like what happened recently the Collective Bargaining Agreement for the Commercial Sectors of Zimbabwe Statutory Instrument 45 of 1993 have been amended with effect from the 1st of December 2015.

Section 24 in Subsection (15) has been amended by the deletion of the whole subsection and the substitution of —-:

A contract of employment which is for a stipulated period which shall not be less than three months and flexible up to a maximum period of twelve months, shall specify the date of commencement and the date of termination thereof. The fixed term employment contract can be renewed for a maximum of six times and thereafter, an employee is deemed to have become an employee on a contract of employment without limit of time on the day the sixth fixed term employment contract expires.

This simply means that fixed term contracts in the commercial sector can be renewed but for not more than six times and the contract can vary up to 12 months, therefore we are looking up to 6 years as the legal period or span were fixed term contracts can be renewed given that the employer is giving 12 months contracts. Hence the Act has left a good loose end for employers and employees to agree on what best suit them and on this section there is a win-win situation. This is should be welcome move for the employers because they have up to six years with an employee before making him or her employee without limit of time. But to the employees in the commercial sector what it simply means is the employer will contract you for a maximum period of six times, thereafter your contract is not renewed. What is not clear is, what happens if your contract is renewed 5 times then there is a break & you are offered another contract are you deemed to be on a contract of employment without limit of time. I feel that NECs should exercise caution on the provision of that section so as archive social justice.

Join me next week as we continue unpacking the Amendment of section 12 of Cap. 28:01 of the Labour Act, for contributions on the commentary and interpretation feel free to contact me

Disclaimer: Use the above analysis and interpretation at your own discretion the columnist won’t be held apt to any legal insinuation arising as a result of the above

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