By Brenald Chinyowa
This month marks 7 months after the by then Labour Legal framework had a loop hole that saw thousands of employees loosing jobs and being send home empty handed. The July 17 Supreme Court ruling on termination of employment contracts and the ensuing amendments to the Labour Act [Chapter 28:01] changed the labour law paradigm overnight. Arguably, players are crying foul of having a shoddily drafted law in their hands that was fast tracked to address the shortcomings of the principle act whose effects were already haunting the country. Among others there was the issue of termination of employment contracts by notice, where employers justified the terminations as legal, but the government and workers criticised the terminations as illegal and misinterpretation of the principal act.
Analysts argue that the government then rushed to come up with the HB7/2015 Labour Amendment Bill which among other things has a retrospective effect, where all workers who lost jobs as from July 17 2015 as a result on the judgment No.SC 43/15 (On Don Nyamande & Kingston Donga vs Zuva Petroleum) were entitled to compensation for sudden loss of employment. A certain lawyer was quoted (name withheld), “it appears the government acted in a panic mode by rushing the process to save face from angry, disgruntled, poor and hopeless fired workers who had to adjust to their fate and reorganize their future. The Act did not cover all the essential elements for a win-win situation for both employers and employees. Both employers and workers are not happy with the Amendment”.
However the question now is, Is this a shod law? , was it really fast tracked? Did the Amendment of the Act (HB7/2015) archive a win-win situation, is there still balance of power between the parties, And was it really made business friendly and if so then how did it then archived its purpose as an instrument that advance social justice at the workplace. Are employees still feeling protected in the shadow in the new Law (Act)? To answer the above we are to walk through the amendments one by one and analyse what is exactly the act is saying or trying to address and its likely after math. Also in interpretation the golden rule of statutory interpretation shall be applied that is to give the words of statues their primary meaning shall guide us as we walk through the amendments.
The bill was enacted by the Parliament and the President of Zimbabwe to amend the Labour Act [Chapter 28:01]; and to provide for matters connected therewith or incidental thereto.
Section 2 Cap. 28:01(“Interpretation”) of the Labour Act [Chapter 28:0 1) (hereinafter called the principal Act) is amended by the insertion of the following definition of forced labour.
The definition for forced labour wasn’t incorporated in the principal Act therefore it left the general populace prone to abuse due to lack of a statutory definition of what is meant by forced labour. However in application, execution of corporal punishment to whoever should be undertaken taken with proper consultation to the related statues regulating corporal punishment.
As 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.
Section 12 of Cap. 28:01 is amended-
(a) by the insertion of 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 practice 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 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 CBA for the Commercial Sectors of Zimbabwe Statutory Instrument 45 of 1993 have been amended with effect from the 1st of December 2015 on the following provisions.
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 a welcome move for the employers i suppose 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 provisions of that section so as archive social justice and productivity.
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
Brenald Chinyowa writes on his own capacity, for comments inbox to firstname.lastname@example.org (0777 897 586) 0718 897 586. Blog: profbrenald.blogspot.com or follow him on Facebook: Brenald Chinyowa. Follow our Facebook Page Labour Matters Zim