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Monday, 18 January 2016

Labour law: Achieving social justice

January marks six months since some employers took advantage of a loophole in the labour legal framework and sent home thousands of employees on three-month notices.
Brenald Chinyowa 
The July 17, 2014 Supreme Court ruling on termination of employment contracts and the ensuing amendments to the Labour Act (Chapter 28:01) marked an overnight paradigm shift.
Almost everyone affected cried foul to being subjected to a shoddily drafted law that was fast-tracked to address the shortcomings of the principal 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 Government and workers criticised them as illegal and a misinterpretation of the principal Act.
It can be argued that Government rushed to come up with HB7/2015, the Labour Amendment Bill, which among other things has the retrospective effect where all workers who lost jobs from July 17, 2015 as a result on judgment No SC 43/15 (Don Nyamande & Kingston Donga v Zuva Petroleum) were entitled to compensation for sudden loss of employment.
One lawyer was reported saying “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 reorganise 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”.
The questions now are: Is this a bad law? Was it really fast-tracked? Did the amendment achieve a win-win situation?
Is there still balance of power between the parties? Is it really business friendly, and if so how did it achieve its purpose as an instrument that advances social justice? Do employees feel protected by the new law?
To answer the above, I will walk through the amendments and analyse what the new Act stipulates or is trying to address, and it’s likely aftermath.
The golden rule of statutory interpretation shall be applied; that is, to give the words of statutes their primary meaning.
A Bill was brought before and passed by Parliament before President Mugabe signed it to amend the Labour Act (Chapter 28:01).
Some people argue that the amendment was fast-tracked as Government panicked.
I beg to differ with that perspective because in my understanding the amendment was long overdue and there was need to realign it with the Constitution.
There was need to realign the Act with trending labour practices in the international community and to make it more business friendly.
The principal Act had a lot of gaps that needed addressing.
“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 new provision means the incessant renewal of contacts an unlimited number of times is no longer permissible.
The previous practice was that an employer would give an employee a contract ending after three months, and the employee would have to try and have it renewed upon expiry; or the employee was required to stay at home and come back after a certain period for re-engagement.
My interpretation and understanding is that the law took this as an abuse of fixed-term contracts, because fixed term contracts were made for projects or business ventures that end or cease operations within a specific time.
An example is a road construction project. It is not a continuing business. It will definitely end so it is not logical to employ a permanent employee for such a project.
But if it’s scheduled to be finished after, say, five years, then we have to draft fixed-term contracts of five years.
Recently, the Commercial Sectors of Zimbabwe Statutory Instrument 45 of 1993 was amended with effect from December 1, 2015 on the following provisions:
That 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 12 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 fixed-term contracts in the commercial sector can be renewed, but for not more than six times and the contract can be up to 12 months.
Therefore, we are looking at up to six years as the legal period or span were fixed-term contracts can be renewed when an employer gives 12-month contracts.
This should be welcome for the employers because they have up to six years to decide whether or not to give a permanent contract.
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.
Questions are then asked as to what happens if your contract is renewed five times then there is a break and you are offered another contract? Are you deemed to be on a contract of employment without limit of time? I feel that national employment councils should exercise caution on the provisions of that section so as achieve social justice and productivity.
Brenald Chinyowa will from this week contribute articles on labour issues on www.sundaymail.co.zw
◆ Feedback: chinyowab@gmail.com; profbrenald.blogspot.com or follow him on his Facebook page and that of Labour Matters Zim

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