EMPLOYERS’ CONFEDERATION OF ZIMBABWE
(EMCOZ)
SOCIAL PARTNERS’ PROPOSALS ON AMENDING THE LABOUR ACT
SECTIONS / EMCOZ / ZCTU / HEALTH APEXWORKERS / ZFTU / GVT- MOL & HEALTH SERVICES /
2 INTERPRETATION / The Labour Act shall have precedence over all statutory instruments, CBAs or Conventions except where the said Statutory Instrument, CBA or convention provide for more favourable conditions, rights or benefits .
2A PURPOSE OF THE ACT / Add “productivity” to read:
The purpose of the Act should be “ to advance social justice, democracy and productivity in the workplace by / (1) The purpose of the Act is to advance social justice and democracy in the workplace by-
(b) giving effect to the international obligations of the Republic of Zimbabwe as a member state of the International Labour Organisation and as a member of or party to any other international organisation or agreement governing conditions of employment.
Insert section 2(a) after subsection 2 to read:-
This Act is the primary legislation governing labour matters and the standards laid down in the Act are the minimum obligatory standards and are without prejudice to the right of workers individually and collectively to request, to bargain for and to contract for higher standards, which in turn become the minimum standards applicable to those workers.
Insert section 2(a) after subsection 2 to read:-
Insert proviso after clause (f) to read;Provided that s 2(A) (1) of the Act is mandatory and should be read in conjunction with the principles of common law and the contract of employment, but where the two are in conflict, the principles of s 2A (1) shall prevail and the common law principles ousted or modified to the extent necessary.
3 APPLICATION OF THE ACT / delete “Public Service Act (Chapter 16:04)” and insert “Labour Act (Chapter 28:01)” in subsection (2).
Repeal section 3(3) (c) and substitute with ‘such other employees of the state as the Tripartite Labour Advisory Council may designate’.
PART 11: FUNDAMENTAL RIGHTS OF EMPLOYEES
4 EMPLOYEE’S ENTITLEMENT TO MEMBERSHIP OF TU AND WORKERS COMMITTEE / Insert subsection 4(1)(e-k) after subsection 4(1)(d) to provide for individual fundamental rights as follows;
4(1)(e) The right to remuneration
4(1)(f) The right to collective job action
4(1)(g) The right not to be sexually harassed
4(1)(h) The right to decent, safe and healthy
working environment
4(1)(i) The right to paid maternity and paternity
leave and child care facilities
4(1)(j) The right of women to equal and effective
access to employment opportunities.
4(1)(k) The right of women to equal and effective
participation in bodies established under
the Act, or other enactments dealing
with establishment of terms and
conditions of employment, dispute
resolution and labour matters generally,
including the courts and tribunals,
employment councils, trade union and
workers committee structures, company
boards.
Insert section 4A with a heading “Trade Union and Workers Committee Fundamental Rights” to read:
4.1 Every trade union and a workers committee shall have the following fundamental rights;
a) The right of workers to establish or join organizations in full freedom without prior authorization.
b) The right of workers organizations to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities.
c) The right of workers’ organizations not to be liable to be dissolved or suspended by administrative authority.
d) The right of workers organizations to acquire legal personality without such right being made subject to conditions of such character as to restrict the application of the organisation’s rights.
e) The right of members and representatives of organizations not to be liable to discrimination and victimisation on the basis of their membership or participation in workers organisations activities.
f) The right of workers organizations to be protected from acts of interference by employers, employers’ organizations or the state by financial, coercive, discriminatory or other means with the object of placing such organizations under the control or influence of employers, employers’ organizations or the state.
g) The right to full collective bargaining in all matters relating to work
h) The right of workers and workers organizations to strike, picket and protest action, individually or in association with others, in defence of the labour and socio-economic-political interests of its members.
i) The right of workers and workers organizations to: be consulted by the employer, be provided with a reasonable opportunity to make representations and advance alternative proposals and to approve where mandated by the majority of employees in the appropriate bargaining unit, before implementation by an employer of any of the following:
k) The restructuring of the workplace, plant closures, mergers or transfer of ownership.
l) Product development plans, job grading, training or education schemes and the criteria for merit increases or payment of discretionary bonuses.
m) Establishment and implementation of employment codes and retrenchment.
n) The right to be joined in any action, to represent members and to sue on behalf of its members in any labour disputes before any hearing, tribunal or court – civil or criminal, dealing with disputes concerning itself or its members.
o) The right to levy a service charge on non-members who benefit, directly or indirectly from the service, representation or actions of trade unions or workers committees.
2) Any person whose fundamental right has been breached may make an urgent chamber application to the Labour Court for redress.
3) In relation to remedies available, whereby in cases of violation of fundamental rights, the most favourable remedy to the employee shall be applied or the most deterrent to the employer shall be applied.
4) In cases of unfair dismissal violating a fundamental right, reinstatement shall be the automatic remedy at the option of the employee, together with payment of punitive damages.
5) In the case of any other breach of a fundamental right, the Labour Court must order the offending party to cease the unfair labour practice and order payment of punitive damages and compensation for loss suffered as a result of such contravention.
Repeal section 4A (2) (b) and (c) / (f) Delete the word registered
4A PROHIBITION OF FORCED LABOUR / Section 4A renumbered to be 4B prohibits forced labour but goes on to sanction forced labour under sub section 2 (b) which provides the following as not constituting forced labour “labour required of any person while he is lawfully detained which though not required in consequence of the sentence or order of a court (i) is reasonably necessary in the interest of hygiene or for the maintenance or management of the place where he is detained”.
Repeal section 4A (2) (b) and (c / Insert Section 4B Prohibition of Slavery or Slavery Conditions Akin to Slavery
5 PROTECTION OF EMPLOYEE AGAINST DISCRIMINATION / Insert in section 5 (1) and (2) after the phrases, HIV/AIDS status, ‘social or economic status, marital status, sex, religion ,national extraction, trade union membership, maternity, family responsibility, sexual orientation, trade union and workers committee activity or other form of discrimination whether direct or indirect.
Amend section 5 (4) as follows;
Any person who is aggrieved by any act or omission of an employer in contravention of subsection 1 and 2 shall be entitled to make an urgent chamber application to the Labour Court for redress.
c) In cases of unfair dismissal violating a fundamental right, reinstatement shall be the automatic remedy at the option of the employee, together with payment of punitive damages.
d) In the case of any other breach of a fundamental right, the Labour Court must order the offending party to cease the unfair labour practice and order payment of punitive damages.
Insert subsection 6(b) after subsection 6(a) to
provide for proof and burden when adducing
evidence as follows;
5(6)(b) A complainant may establish a prima facie case of unfair discrimination where she or he shows that the alleged conduct disproportionately impacts on the protected group in comparison with general demographic or population statistics and need not show specific linkage between the alleged conduct and the disproportionate impact.
5 (6)(c) Where a complainant has established a prima facie case the burden of rebuttal shifts to the employer to show that that the disproportionate impact is not unfair or unlawful and that there are no other alternatives to the offending conduct.
Insert subsection 9 to broaden the scope of special measures to include other vulnerable groups other than women as follows;
9) Special and favourable measures may be provided to meet the particular requirements of persons, who for reasons such as sex, gender, age, disablement, family responsibility or social or cultural status are generally recognized to require special protection or assistance provided that the special measures shall in no way entail as a consequence the maintenance of unequal or separate standards. (Derived from Art 5 ILO C111 and Art 4 CEDAW) / Insert 5 (1) and (2) after the phrae HIV/AIDS status, “Social or economic status, marital status, sex, religion.. National extraction, TU membership or other forms of discrimination whether direct or indirect.
6 PROTECTION OF EMPLOYEE RIGHTS TO FAIR LABOUR STANDARDS / We propose to amend section (6) (1) by adding the following clause;
6(1)(a)(i) Pay an employee a wage which is below the poverty datum line which wage must be just and favourable, ensuring for the employee and his family an existence worth of human dignity. (Adopted Art 23 (3) UDHR; Art 7 ICESCR)
6(1)(a)(ii) Fail to allocate 20 per centum of net profit at the end of each financial year to employees as a share of profit. (Derived from Cl 43 (1) ZCTU Model CBA)
Repeal section 6 (1) (b) and substitute with;
‘Require an employee not to work for more than 40 hours per week’.
Insert clause 6(1)(d)(i) after 6(1)(d) to read, “Fail to provide adequate sanitary ware for female employees at the place of work”.
Insert 6(1)(d)(ii) Compel young children and pregnant employees to undertake any tasks that are hazardous to their health or that of the child. / Require an employee not to work for more than 40 hours per week
7 PROTECTION OF EMPLOYEE’S RIGHTS TO DEMOCRACY IN THE WORK PLACE / We propose the insertion of clause 2 (d) to read.
‘Any office bearer or official of a representative trade union is entitled to enter the employer’s premises in order to recruit members or communicate with members, investigate a contravention of the Act or otherwise serve members interests’.
Insert clause (2) (e) to read: ‘an employer must provide the office bearer or official of a representative trade union upon request access to records or documents that is directly relevant to the suspected contravention of this Act.
Repeal subsection (4) / (2) Disputes to be referred to appropriate labour officer
PART 111 : UNFAIR LABOUR PRACTICES
8 UNFAIR LABOUR PRACTICE BY EMPLOYER / Insert in section (8) subparagraph (i) to read as “Commits any other unfair labour practices not mentioned herein”.
10 MINISTER MAY PRESCRIBE FURTHER UNFAIR LABOUR PRACTICES / We propose to delete the word ‘Labour Court’ in section 10 (1) and substitute it with ‘Tripartite Labour Advisory Council’
PART 1V : GENERAL CONDITIONS OF EMPLOYMENT
12 DURATION, PARTICULARS AND TERMINATION OF EMPLOYMENT CONTRACT / Notice of the termination of the contract of employment to be given by either party should be:
i) One month in the case of contracts of one year or more
ii) One week in the case of contracts of more than one month and less than one year
iii) Nothing in the case of casual labour.
An employee provided with accommodation by his employer should vacate it at the end of the notice period / The following is proposed;
In Section (12), insert subsection (3)(a) to read, “No employer shall engage an employee on a fixed term contract for a job that is permanent in nature”.
In Section 12 (4) (e) - delete the notice period of ‘one day’ and substitute with ‘One week’.
Insert subsection (8) to read ‘it shall not be necessary for an employee to give notice where he is unable to do so due to any emergency or personal compelling necessity’ (adopted from Labour Relations (Domestic Workers Regulations SI377/92 s16 (2) (ii)
The failure by an employee to give notice has no much effect to an employer. It is only an inconvenience (ILO, Termination of Employment) / Not more than 9 Hours and for more than 47 hours in 6 days week
Paid overtime
No overtime work except in case of emergency work and at least 24 hours notice be given
12A REMUNERATION AND DEDUCTIONS FROM REMUNERATION / Paragraph 7 should read “ The aggregate amount of permissible non - statutory deductions that may be made from the remuneration of any employee in any pay interval shall not exceed 25% of the employee’s gross remuneration for that interval. / Repeal section 12A (3) and substitute with -
Subject to any collective bargaining agreement, wages shall be paid on or before the due date on working days at or near the workplace, failure to pay interest shall accrue at the prevailing bank lending rate from the due date up to the date of full payment.