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MOMENT M. BHEBHE
Email:
Tele: 0777 051 817 / MSU ext 266
Office: NSB 24
DEPARTMENT OF HUMAN RESOURCE MANAGEMENT
“Training varies in the degree of motivation possessed/esteem levels of trainees. Those with low motivation or self esteem will normally take longer to complete a training programme than well motivated trainees”
MODULE OBJECTIVE
-At the end of this module, a student must be legally conversant with the interpretation and application of the Labour Laws of Zimbabwe in achieving social justice and democracy at the workplace.
-a student shall among other legal instruments, possess a copy of the Labour Act (Chapter 28:01) of Zimbabwe and amendments numbers 17 of 2002 and 7 of 2005.
MODULE OUTLINE
1. INTRODUCTION TO LABOUR LAW
- importance/functions/theories/history/sources/Labour Act
2. CONTRACT OF EMPLOYMENT (s12)
- definition/features/formation/content/forms/probation and notice periods
3. RIGHTS AND DUTIES IN EMPLOYMENT RELATIONSHIP (s4-s12)
- Duties of employer and responsibilities of employee/ fundamental rights/ unfair labour practices/ remedies on unfair labour practices
4. TERMINATION OF EMPLOYMENT (s12)
- All forms including those prescribed in the model code SI 15 of 2006
5. LEAVE PROVISIONS (s14)
- Sick/vacation/special/maternity
6. COLLECTIVISM (s23-27 et al)
- Workers committee/works council/trade union/employer organisation
- Employment councils/designated agents/agent unions
7. COLLECTIVE BARGAINING (s74)
- Scope /obligations/representation/ratification
8. COLLECTIVE JOB ACTION (s102)
- issues/right to strike/ lockout/ picketing/ other forms of CJA
- show cause order/disposal order/ protected persons engaged in lawful CJA/liability for persons engaged in unlawful CJA/appeals/ cessation of CJA
9. CODE OF CONDUCT (S101)
- Provisions and common pitfalls.
- The class will study and examine a code of conduct of an organisation
10. LABOUR COURT (s83)
- Functions/powers/jurisdiction/representation/appeals etc
11. LAW OF DISPUTE SETTLEMENT (s98)
-disputes of right and interest / conciliation &arbitration mechanisms/appeals
12. MINISTERIAL POWERS (s17)
NB: The class will critique the Labour Act and analyse suggested amendments as put forward by key employment parties’ representatives (refer to social partners position paper)
-Tutorial attendance is non- negotiable and active participation is encouraged.
-The Labour Act, textbooks (library and other), the PRESS, labour court offices and materials including internet research will go a long way in building a practical appreciation of the legal world of labour relations.
Module Evaluation
Assignment 1 (In-class test) 15%
Assignment 2 (In-class assignment) 15%
Assignment 3 (group presentation) 10%
Assignment 4 (Semester Examination) 60%
Individual Assignment
Either 1.“One of the cornerstones of the law of contract is the freedom to contract. This fundamental principle of freedom to contract is now more fictional than reality due to over regulation through the Labour Act”. Is this a correct reflection of labour law? Is the current state justified?
OR 2. Account for the development of Labour Law in Zimbabwe since 1980, in advancing social justice and democracy at the workplace.
OR 3. “If there is one thing which more than another, that public policy requires, is that persons of full contractual capacity should be allowed to enter into their contracts freely and voluntarily. Their contracts once so entered into, should be held sacrosanct”. Discuss.
TUTORIAL QUESTIONS
1. Discuss the extent to which the Labour Act has addressed the welfare of the working class? TUT 10
2. What do you understand by the expression legal framework for Collective Bargaining? How does collective bargaining harmonise the relationship between employees and management?
3. Critically analyse the statutory provision of strike action in Zimbabwe, giving examples.
4. The Labour Act provides for the setting up and general running of the workers committees. Using the legislation as a guide, in a clear and simple manner, set out a draft constitution for a workers committee at your organisation.
5. Labour law seeks to “counterset the inequality of bargaining power inherent in the employment relationship”. Discuss with specific reference to the Labour Act Amendment No. 17.
6. Make a critical analysis of the Labour Act as far as advancing social justice and democracy at the workplace is concerned. In your opinion, does it really advance this cause? With the use of relevant examples, do you think that the social justice and democracy issues addressed therein are being put into practice by firms?
7. Discuss giving practical examples, what in terms of Zimbabwe’s legislation constitutes:
a) Unfair labour practices by an employer
b) Unfair labour practices by a trade union or worker’s committee.
8. “The freedom of association regime enshrined in the Labour Act (Chapter 28:01) is in need of serious revision”. Do you agree? Discuss the assertion with specific reference to registration and organisational rights of trade unions and employer’s organisations.
9. Strikes have been viewed by many as the only tool of creating equilibrium between capital and labour. Using appropriate sources of law critically explain the procedures/ steps to be taken to engage in a lawful strike. To what extent is this equilibrium maintained.
10. Other than the provisions of SI 15/2006 (acts of misconduct), citing relevant case laws, analyse ways under which a contract of employment may be terminated in Zimbabwe. Make ref to LA (Chapter 28:01)
11. Under Section 12A (6) Labour Act, it is provided that “No deduction or set –off of any description shall be made from any remuneration except in the defined circumstances”. Clearly explain the circumstances where these deductions can be made.
12. “If there is one thing which more than another, that public policy requires, is that persons of full contractual capacity should be allowed to enter into their contracts freely and voluntarily. Their contracts once so entered into, should be held sacrosanct”. Discuss. TUT 01
13. There can be no equilibrium in IR without a freedom to strike. In protecting that freedom, the law protects the legitimate expectation of the workers ‘that they can make use of their collective power....’. Discuss this statement and give specific examples from the Zimbabwe labour relations.
14. One of the principal purposes of the labour act is to combat industrial unrest. On what ways are the provisions of the Act consistent with this objective? TUT 09
15. Critically analyse the role of the state in the employment relationship. Also make reference to the Labour Act. TUT 03
16. “....the main objective of labour law then becomes to act as a counterveiling force to counteract the inequality of bargaining power, which inherently pervades the employment relationship”. Discuss this statement in relation to the development of labour law in Zimbabwe since 1980. TUT 02
17. Discuss the view that collective job action seeks to correct the inequality inherent in an employment relationship.
18. “One of the cornerstones of the law of contract is the freedom to contract. This fundamental principle of freedom to contract is now more fictional than reality due to over regulation through the Labour Act”. Is this a correct reflection of labour law? Is the current state justified?
19. Critically analyse the legal framework on the promotion of participation by employees in the decisions affecting their interests at enterprise level.
20. With reference to case law, explore the duties and responsibilities of the employer and employee respectively, in the operation of the employment contract.
November 2010 Labour Law Exam Questions
1. “This Act up to now does not give workers their full rights and has so many obstacles that take away their rights”, (The Standard, 2 May 2009). Comment on this statement with regards to the right to strike as promulgated in the Labour Act (Chapter 28:01) TUT 06
2. Discuss the extent to which the Labour Act has advanced the goal of achieving social justice and democracy at the workplace. TUT 11
3. With supporting examples, critically examine the statutory provisions for sick and maternity leave in Zimbabwe. TUT 04
4. a. Critically explore the legal requirements for retrenchments in Zim.
b. What alternative measures exist for organisations that do not retrenchment? TUT 05
5. a) Giving practical examples, discuss the Constitution and International Law as sources of Labour Law in Zimbabwe.
b) With reference to settled cases, explore remedies available to the employer on a breach of the employment contract by employees.
May 2011 Labour Law Exam Questions
1. Make a critical analysis of the Labour Act (Chapter 28:01) in advancing social justice and democracy at the workplace. Make recommendations on the way forward. TUT 12
2. Citing relevant case law, discuss ways in which a contract of employment may be terminated under Statutory Instrument 15 of 2006 (acts of misconduct).
3. Discuss the relevance of the Labour Court in securing the just, effective and expeditious resolution of disputes and unfair labour practices. Make reference to conciliation and arbitration. TUT 08
4. Assess the significance of the legal framework for Collective Bargaining in Zimbabwe in the dollarized era and its impact on the employment relationship. TUT 07
5. With reference to legal provisions of the Labour Act, discuss any five of the following terms;
a) Designated agents
b) Agent union
c) Employment councils
d) Works council
e) Lock out
f) Show cause and disposal orders.
November 2011 Labour Law Exam Questions
1. CASE STUDY
2. “The key underlying factors behind the development of labour law are the balance of force of the opposing classes...” Discuss the extent to which the labour laws in Zimbabwe have attained this balance.
3. Critically analyse the legal framework on the promotion of participation by employees in the decisions affecting their interests at enterprise level.
4. a. Distinguish a dispute of right from a dispute of interest.
b. Identify and discuss mechanisms for the resolution of disputes in an employment relationship.
5. a. Discuss the contribution of the Constitution of Zimbabwe, as a source of labour law.
b. In terms of the Labour Act, explain the issues that an employer should consider before terminating an employment contract for a fixed term contract worker.
c. Explain the extent to which a resignation letter submitted by an employee may be rescinded.
REFERENCE LIST
Bratton J & Gold J (2007) Human Resource Management- Theory and Practice, 4th Ed, MacMillan, Palgrave
Blyton P & Turnbull P (1994) Employee Relations, Palgrave Macmillan, London
Gwisai M (2006) Labour and Employment Law in Zimbabwe, 1st Ed, Zimbabwe Labour Centre, Harare
Labour Act (Chapter 28:01)
Lloyd Patrick (2006) Labour Legislation in Zimbabwe, 2nd Ed, Legal Resources Foundation, Harare
Machingambi I (2007) A Guide to Labour Law in Zimbabwe, 1st Ed, Machingambi Publications, Harare
Madhuku L (1996) Article on Worker Participation in a developing country: The case of Zimbabwe, Comparative Labour Law and Policy Journal
Makings G (2006) Commentary on the Labour Act, 5th Ed, Aquamor, Harare
Makings G (2010) Employment Handbook, 5th Ed, Aquamor, Harare
Maphosa GJ (1991) Industrial Democracy in Zimbabwe, Zambezia, Ziscosteel, Redcliff
Raftopoulos B & Sachikonye L (2001) Striking Back- The Labour Movement and The Post Colonial State in Zimbabwe 1980-2000, Weaver Press, Harare
Sibanda A and Nyamukapa D (2000) Industrial Relations and Structural Adjustment programmes in Africa, Zimbabwe Industrial Relations Association, Harare
ELEMENTS OF LABOUR LAW –HRM 203
TOPIC ONE – INTRODUCTION TO LABOUR LAW (L L)
A Elements of labour law
- LL is a system of rules that regulates an employment r/shp and whose enforcement is guaranteed by the state as law.
- It developed as a reflection of the struggles of workers to gain a fair and dignified existence at the workplace.
- It saw the employment r/shp as a social r/shp, hence the need to counter inequality between the individual employee and the employer. (the relationship’s main foundation is the Contract of Employment)
B Importance and functions of Labour Law
- It is the principal means by which society regulates the r/shps arising out of the process of work.
- Its study helps us understand the dynamics of the economic relations of society, which determine the character of the process of work in any society.
- It thus regulates, supports and restrains the power of mgt and that of organised labour.
- To act as a counterveiling force to counteract the inequality of bargaining power as guided by public policy.
- To ensure the undisturbed continuation of the process of work.
- To promote methods of dispute resolution that are least harmful to productivity enhancement.
- To create a win-win situation in the emplt r/shp by giving the employer the right to manage business without undermining on the rights and well-being of labour, in that relationship.
C Theories of Labour Relations
1. Unitarism
-It developed from the free market economic theory of Adam Smith and positivist legal theories of John Mill et al.
-It is of the notion that employers and employees share the same values and goals in the process of work. Conflict is unnatural and dysfunctional; Collective Bargaining, strikes and TUs are undesirable (an interference).
-A good LL system is one that guarantees; “freedom of the employer and employee from the interference of the state in the labour market, the freedom of choice of the contracting parties and the freedom of private will to determine the contents of the contract.”
2 Pluralism
-Propounded by German philosopher Max Weber et al.
-Is identifiable with mixed economy.
-Conflict is natural at the workplace, TU seen as the legitimate org,
CB a voluntary, dynamic, democratic process for expressing and
controlling conflict.
-Otto Kahn- Freund a pluralist scholar described the CoE as;
“a relation between a bearer of power and one who is not a
bearer of power. In its inception, it is an act of submission, in its
operation it is a condition of subordination, however much the subordination may be concealed by that indispensable figment of the legal mind known as “CoE.”
D History of Labour Law in Zimbabwe
-4 distinct phases in its dvt;
1. Primitive accumulation (1890-1930s) - led to the establishment of the capitalist mode of production. The central coercive legislation of this period was the Master and Servants Ordinance/1901 and Natives Pass Ordinance /1902. (designed to fast track the establishment of racist capitalist system on the back of cheap and forced black labour)