Labour laws: pro-employer or pro-employee?

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Labour institutions and regulations evoke passionate debate in Zimbabwe and opinions remain highly polarised.

The question that is constantly asked is whether labour laws in this country are skewed in favour of the worker or the employer.

Industry and Commerce Minister Welshman Ncube and Finance Minister Tendai Biti and Welshman are on record as having lamented the rigidity of labour market economics in Zimbabwe as the reason for poor productivity growth and lack of global competitiveness.

The sentiments expressed by the two ministers did not augur well with the labour movement, who accused the ministers of toeing a pro-employer stance.

Japhet Moyo, ZCTU Deputy Secretary-General is reported to have said, “We are beginning to see clearly who is pro-workers and who is not. The ZCTU is not taking lightly this matter and will soon be acting on it”.

At a conference held in Harare in September 2010, I presented a paper on the pitfalls facing the labour dispute resolution system in Zimbabwe.

ZCTU Secretary-General, Wellington Chibhebhe took it as an attack on arbitrators and immediately went into a frenzied tirade against me in a press article entitled “ZCTU says attack on arbitrators must stop”.

I was accused of taking a pro-employer slant in my presentation. How emotionally-charged this subject can be!

Those who subscribe to the pro-employee perspective argue that the pages of our labour laws are littered with provisions which favour the worker.

For instance, sections 4 to 7 of the Labour Act, Chapter 28:01 provide for the fundamental rights of employees which are employees’ entitlement to membership of trade unions and workers committees; prohibition of forced labour; protection of employees against discrimination; protection of employees’ right to fair labour standards and protection of employees’ right to democracy in the work place.

The contention is why there is no similar provision in the Act for employers. Do employers not have rights?

The South African Labour Relations Act of 1995, for instance, has sections 6 and 7 which provide for the fundamental rights of employers.

Another thorny issue on the employers’ sides is the cumbersome process involved in retrenchment. “It is not easy to retrench in this country”, complained David Murangari, Managing Director of Bindura Nickel Corporation when the Retrenchment Board came up with a $15 million retrenchment package for over 2000 of the company’s employees.

In countries like South Africa and the United Kingdom, the law on retrenchment is less stringent.

Over the past two years, companies like BNC, National Tyre Services and Air Zimbabwe have failed to retrench owing to the exorbitant costs of doing so.

The employer party also bemoans what it perceives as excessive leave provisions in the Labour Act.

The Act entitles employees to 180 days sick leave, 30 days vacation leave, 12 days special leave and 98 days maternity leave.

The argument is that an employee can be on paid leave for 320 days of the 365 days in a calendar year! Speaking at an Employment Law Conference in Harare on May 17, 2005, Economist John Robertson argues that, “. . . government has worked hard to ensure that workers share their view that employers are unscrupulous capitalist exploiters from whose despicable conduct the powerless workers need the state’s protection”.

He cites extravagant retrenchment packages and cumbersome and costly termination as cases in point.

From the point of view of employers, there is a tight plethora of restraints in our labour laws which they are compelled to deal with from day to day.

The pro-employer perspective view is held by individual workers and employee bodies such as the ZCTU who see some provisions of the Labour Act as being restrictive to their individual and collective freedoms.

The main bone of contention is on collective job action law. Section 104 of the Labour Act puts in place stringent requirements that make it virtually impossible for organised labour to lawfully withdraw its labour.

Workers view the right to withdraw labour as a neutralising force to the power of the capitalist employer.

Subject to the Act, 14 days’ written notice of intent to resort to collective job action must be given to the employer.

In South Africa and Namibia, for example, only 48 days notice is required.

No collective job action may be recommended or engaged in if the persons concerned are engaged in an “essential service”, whose definition is very broad. Section 109 says any person or persons who organises, engages in or incites an unlawful collective action faces criminal sanction.

The provisions of the Public Order and Security Act (Chapter 11:17) and the Criminal Procedure and Evidence Act (Chapter 9:07) can be invoked to deal with cases of collective job action.

Employees, workers’ committees and trade unions are liable to fines or imprisonment for up to five years or and can be sued for compensation by any person who suffers loss arising out of the illegal collective job action.

Another contentious area of labour law is the provision that an employer who has been found guilty by the courts of wrongfully dismissing an employee is given an option of either reinstating that employee or alternatively pay him or her separation damages.

Employee representative bodies believe that such a choice should be exercised by the “victim” and not by the perpetrator.

One of the proponents of the pro-employer perspective is former MDC MP, Munyaradzi Gwisai. In the preface of his book Labour and Employment Law in Zimbabwe:

Relations of Work under Neo-Colonial Capitalism Gwisai writes that, “. . . through the combined struggle of unions, socialists and progressive parliamentarians, we were able to drive many provisions in the Labour Act of 2002”.

Gwisai further asserts that workers have won “important victories” as shown in many provisions of the Labour Act such as the incorporation of the Export Processing Zones employees, strengthening the jurisdiction of the Labour Court, remedies available for unfair dismissal and improved maternity rights.