Labour Law in Zimbabwe
labour law refers to the collection of legal rules which govern the employment relationship. In a broad sense, labour law covers not only the rules which govern the employment relationship but also embraces the rules regulating the existence and operation of all the institutions of the labour market, such as trade unions, employers’ organizations, the State in its dual capacity as employer and regulator and the labour dispute resolution entities.
Labour law is concerned with ‘labour or work’ which is done in a position of subordination, that is, when an employee works under the command, the authority and the control of an employer, when the work is not carried out in a position of subordination, as in the case of self-employment, labour law does not apply. If work is done in such a position, the employee enjoys the full protection of labour law and of social security... Labour law can thus be described as the body of rules which governs the relationship between employers and employees who carry out their labour or work in a subordinate position.
Labour Act [Chapter28:01]
Labour law is derived from the labour act [chapter: 20,08] an ACT to declare and define the fundamental rights of employees.
Objectives of the act
- To define unfair labour practices
- To regulate conditions of employment and other related matters
- To provide for the control of wages and salaries
- To provide for the appointment and functions of workers committees; to provide for the formation, registration, and functions of trade unions employers organizations, and employment councils
- To regulate the negotiation, scope, and enforcement of collective bargaining agreements
- To provide for the establishment and functions of the Labour Court
- To provide for the prevention of trade disputes, and unfair labour practices
- To regulate and control collective job action
- To regulate and control employment agencies, and to provide for matters connected with or incidental to the foregoing.
labour law vs collective labour law
Their is a difference between individual labour law and collective labour law.Labour law deals with the law regulating the individual relationship between the employer and employee, while collective labour covers the law regulating the collective relations in the labour market, such as that between an employer and a trade union or a group of workers or that between a group of employers (or employers’ organization) and a trade union.
Purposes of Labour Law
Labour law has two main purposes:
- To perform the social function of protecting employees from the full operation of market forces through creating a minimum floor of rights for employees, such as maximum hours of work, protection from unfair dismissals and minimum wages. This is a social justice purpose.
- To balance the inequality of bargaining power inherent in the employment relationship by facilitating the operation of organized labour as a countervailing force to capital. In this regard, labour law facilitates the operation of workers organizations, sets out the framework for collective bargaining and creates a platform for the withdrawal of labour as a countervailing tool in the hands of organized labour.
Sources of Labour Law
labour law is found in four main sources, namely
- legislation (statutes),
- common law,
- authoritative texts.
History of labour law
The history of labour law in Zimbabwe effectively begins with the colonial occupation of the territory. Before colonialism, the feudal economy of the various kingdoms and territories that constituted what is now Zimbabwe, had no wage labourers so there could be no law regulating the rendering of services in return for wages. It has been said that: The contract of employment moved towards the centre of the legal stage only with the advent of capital and large scale employment in factories.
In February 1888, Lobengula signed the Moffat Treaty, in which he is said to have agreed that ‘he would refrain from entering into any correspondence or treaty with any foreign State without the previous knowledge or sanction of Her Majesty’s Commissioner of South Africa’. The importance of this Treaty was that it provided a shaky ‘legal basis’ for British penetration of Zimbabwe. Later, Lobengula sealed this ‘legal basis’by signing the Rudd Concession where he is said to have agreed to grant Cecil Rhodes and his people ‘the exclusive charge over all metals and minerals situated and contained in my Kingdom and principalities. Together with full power to do all things they may deem necessary to win and procure the same’. This last phrase was taken to give Rhodes some power to exercise Governmental control. By necessary implication, the ‘full power to do all things … necessary to win and procure’ minerals included the power to promulgate labour laws for the regulation of working conditions in mines. In October 1889, the British Government granted a Royal Charter to Rhodes’ Company, the British South African Company (BSAC). Armed with the Charter, the BSAC occupied Zimbabwe in September 1890.
The Charter gave the Company the power to administer the territory and establish Governmental power. Under the scheme of the Charter, laws were to be made in two main ways:
- By Ordinances promulgated by the Secretary of State in Britain on the advice of the Board of directors of the BSAC. Effectively these Ordinances were initiated by the Company.
- By Proclamations issued by the High Commissioner at the Cape.
After the defeat of Lobengula in 1894, a third mechanism of lawmaking was added, namely the making of Regulations by the Administrator.
First Component of Labour Law
Proclamation of 10 June 1891
On 10 June 1891, the first important instrument relevant to labour was promulgated.This was a Proclamation by the High Commissioner at the Cape which provided that the law to apply in Zimbabwe was to be the law applying at the Cape of Good Hope as at that date. The main significance of the Proclamation was that it introduced the common law applying at the Cape as the common law of Zimbabwe. That common law was largely Roman-Dutch but it also had English law elements. This meant that the courts were empowered to refer to Roman-Dutch Law and to some aspects of the English common law.
The Proclamation also meant that Cape statutes in existence on 10 June 1891 automatically became part of the law in Zimbabwe.
Second Component of Labour Law
Hut Tax Ordinance of 1894
The next set of law was concerned with ensuring that Africans would 13 have no option but to seek wage employment. The Hut Tax Ordinance of 1894 (Ordinance No 5 of 1894) imposed a hut tax on African residences on what was termed Crown land. As noted by the Colonial Office: The usual inclination is to kill two birds with one stone, … to appropriate land with a view to starving the natives into working for the white expropriators. The idea was to force Africans to seek wage employment. Although the Ordinance was opposed by some sections of the Colonial Office, it became operational at the end of 1894. There was heavy resistance by Africans leading to the First Chimurenga of 1896-97.
Third Component of Labour Law
Public Service Regulations, 1898
With the growth of the Governmental apparatus after the defeat of Africans in 1897 and the enactment of the Southern Rhodesia Order in Council of 1898, a civil service of some sort emerged. It was, therefore, necessary to regulate work in the civil service and this was done through the Civil Service of Rhodesia Regulations, 1898.
The Contract of Employment
The contract of employment is the basis of labour law.
It can be traced to the Roman concept of the locatio conductio, i.e. the letting and hiring of services. There were three types of locatio conductio:
- locatio conductio rei – letting and hiring of a specified item in return for money payment;
- locatio conductio operis – letting and hiring of services by an independent contractor;
- locatio conductio operarum – letting and hiring of personal services in return for money. It is the last category that forms the basis of the modern contract of employment.
It is therefore important to determine whether or not an employment relationship (locatio conductio operarum) exists, as distinct from a relationship of an independent contractor (locatio conductio operis ).
The duties and rights of employers and employees only arise if an employment relationship exists. Defining an employment relationship It is not always easy to say whether or not an employment relationship exists. The Labour Act defines ‘employee’ as ‘any person who performs work or services for another person for remuneration or reward and conditions as agreed upon by the parties or as provided for in this Act, and includes
- in circumstances where, even if the person performing the work or services supplies his own tools or works under flexible conditions of service, the hirer provides the substantial investment in or assumes the substantial risk of the undertaking; or
- in any other circumstances that more closely resemble the relationship between an employee and employer than that between an independent contractor and a hirer of services. This definition sheds little light on what it is that separates the contract of employment from that of an independent contractor. Reference must therefore be made to the guidance developed by the courts. Five tests have been used:
- the control test;
- the organization/integration test;
- the economic reality test;
- the mutuality of obligation test;
- the multiple or dominant impression test.
Contract of Employment: Rights and Obligations of the Parties
The employee is obliged to make his or her service available to the employer.
- This duty is so important that entitlement to remuneration is dependent on the employee making available his or her services. It must be emphasized that the duty does not entail that the employee actually renders service, but merely that he or she is available to render services.
- In any event, the employer is not obliged to provide the employee with work except in special cases.
- The employee’s duty to make services available is a continuing obligationwhich exists until the termination of the contract or some authorized absence.
- The general rule under the common law is that absence from work constitutes a breach of contract in that the employee has failed to make service available. Even unpunctuality is a breach because there is no service rendered when the employee is late for work. The issue is always one of determining whether the absence or unpunctuality is a serious or fundamental breach of the contract
Termination of Employment: (i) General
- Termination under the common law This section of the common law must be considered with some caution in view of the inherent power of the Constitutional Court, Supreme Court and High Court to develop the common law. Some rules of the common law may give way to new concepts derived from the interests of justice and the spirit of the Constitution.
- The agreement need not be in writing. However, where an employee agrees to termination as a response to intolerable pressure by the employer, this may be regarded as ‘constructive dismissal’ and not termination by mutual agreement. Effluxion of time Contracts for a fixed duration terminate automatically on the expiry of the specified period.
- Completion of specified task Where the contract of employment is for the performance of a specified task, the contract terminates automatically on the completion of that task.
- Supervening impossibility of performance The general rule of the law of contract is that where performance has become impossible due to a vis major or casus fortuitus, the contract is terminated.
- Instances of supervening impossibility of performance in employment contracts are as follows: Illness Although absence due to illness is a form of casus fortuitus, it does not automatically lead to termination of employment.
- However, if the absence becomes unreasonably long, the employer is entitled to terminate the contract by merely electing to cancel it and treating it as at an end; no notice is required except that the employee should be informed of the election
Termination of Employment (ii) Termination Under the Model Code
It has already been noted that in terms of section 12B(2) of the Labour Act, it is an automatically unfair dismissal if, ‘in the absence of an employment code’, an employer fails to comply with the Model Code made in terms of section 101(9). In the absence of an employment code, compliance with the Model Code is therefore mandatory in all cases involving misconduct to avoid a dismissal being characterized as automatically unfair. However, it must be borne in mind that there are exceptional cases where compliance with the Model Code may not be sufficient to make a dismissal fair.
Termination of Employment (iii). Termination under code of conduct
Termination under code of conduct Introduction One of the far-reaching changes made to Zimbabwe’s labour law system as a direct result of the 1990 economic structural adjustment programme (ESAP) was the introduction of workplace codes of conduct. Before 1990, termination of employment under the then Labour Relations Act was almost exclusively governed by Ministerial regulations promulgated in 1985.1 In terms of those regulations, dismissal on notice was abolished and, save for cases where the employee consented to termination, no employment could be terminated without Ministerial approval.
Termination of Employment (iv) Retrenchment
Retrenchments belong to the class of termination of employment commonly described as ‘economic dismissals.’ This class is distinctive in that on the one hand, workers lose their jobs without any fault (such as misconduct) or other reason (such as through the operation of the contract of employment) attributable to them, while on the other hand, the employer may be compelled by unavoidable economic considerations to terminate the services of some workers.
Termination of Employment - Remedies for Unlawful Termination
There are three main remedies for an unlawful termination: reinstatement , re-employment and damages. Reinstatement under the common law Under the influence of the English common law, the old approach by South African courts to reinstatement as a remedy in cases of unlawful dismissal was uncompromising: reinstatement was taken as an order for specific performance, which was said to be unavailable in employment contracts.
Freedom of Association and the Right to Organize
General Aspects Freedom of association has two main aspects. The first is that it protects the freedom of the individual to form, join or participate in the activities of an association. It is well established that this does not mean the freedom to associate with a particular association: that is to say it is not a right to become a member of a particular association.
- What has been less obvious is whether or not the negative freedom not to associate is necessarily covered by the freedom itself. Among the major international human rights instruments, only the Universal Declaration of Human Rights and the African Charter on Human and People’s Rights specifically protect the freedom not to associate.
- In national constitutions, most countries in southern Africa do not enshrine a negative freedom to associate.
This is an agreement negotiated in accordance with the provisions of this Act which regulates the terms and conditions of employment of employees. This definition unlocks the Act’s contemplation of the process of collective bargaining as a negotiation process with a view to agreeing on terms and conditions of employment. In this respect, collective bargaining in Zimbabwe is understood in the same way as it is conceived by the ILO Convention No.154: Collective bargaining extends to all negotiations which take place between an employer, a group of employers or one or more employers’ organizations, on the one hand, and one or more workers’ organizations on the other, for: (a) determining working conditions and terms of employment; and/or (b) regulating relations between employers and workers ; and/or (c) regulating relations between employers or their organizations and a workers’ organization or workers ’ organizations. The key issue in collective bargaining is the drive to reach an agreement, even though it may not be reached in a given case.
Dispute Settlement Conciliation and Arbitration
A dispute is ‘individual’ if it ‘involves a single worker or a number of workers in their individual capacities or in relation to their individual contracts of employment’, while a dispute is collective if it involves a number of workers collectively’.2 The definition of ‘dispute’in the Act does not distinguish between ‘individual ’ and ‘collective’ disputes. This means that it covers both types of dispute. The second classification is of ‘disputes of right’ and ‘disputes of interest ’. Before the Labour Relations Amendment Act, 2002, the Act did not make a distinction between these two forms of disputes.
Conciliation is an alternative out-of-court dispute resolution instrument.Like mediation, conciliation is a voluntary, flexible, confidential, and interest-based process. The parties seek to reach an amicable dispute settlement with the assistance of the conciliator, who acts as a neutral third party.
Arbitration is a dispute resolution process in which the disputing parties present their case to a third party intermediary (or a panel of arbitrators) who examine all the evidence and then make a decision for the parties. This decision is usually binding. Like court-based adjudication, arbitration is adversarial. The presentations are made to prove one side right, the other wrong. Thus the parties assume they are working against each other, not cooperatively. Arbitration is generally not as formal as court adjudication, however, and the rules can be altered to some extent to meet the parties’ needs.