WE continue discussing the basic nuts and bolts of employment law. We discussed employment contracts and their various types, the changing trends in employment, casualisation of labour and the legal implications and remedies of non-payment of wages.
YOUR RIGHTS WITH MIRIAM TOSE MAJOME
People spend at least more than half of their lives at work in employment either as employees or as employers. Disputes are bound to happen out of the relationship and are indeed very common as evidenced by the plethora of case law.
There was need to establish a Labour Court to adjudicate labour disputes exclusively, as the High Court could not cope with the huge number of labour cases.
Labour disputes happen when an employment contract is deemed to have been breached or when certain sections of the Labour Act have been contravened.
We shall look at some of the issues that lead to labour disputes. For employees they mostly centre around allegations of unfair labour practices committed by the employer.
Unfair labour practices are set out in Section 8 of the Labour Act and shall be compressed in this article.
Contravening any single one of them may result in a labour dispute and litigation against an employer.
Generally speaking employers commit unfair practices if they prevent, hinder or obstruct employees from enjoying and exercising any of the rights they are accorded, as employees in the Labour Act and its various amendments.
Labour legislation in this country is the result of seeking to correct the imbalances inherited from the exploitative employment practices and culture of the colonial system before 1980.
The legislation also seeks to conform to international labour guidelines, best practices and statutes like the various International Labour Organisation protocols of which Zimbabwe is signatory.
The Labour Act is protectionist and regarded as pro-socialist legislation cited as one of the reasons potential investors and employers shy away from investing in the country.
It does, however, contain provisions for protecting both employers and employees in varying degrees.
Employee rights are clearly more defined and hence the reason most of the labour disputes tend to be for alleged unfair labour practices committed by employers.
Employee rights- Trade Unionism
Employers can be charged with any number of unfair labour practices, as stated in the Act.
Barring employees from joining trade unions and or workers’ committees is an unfair labour practice.
Trade unions are established for the purpose of protecting and advancing employee rights and welfare in the workplace.
Employees have a right to join and participate in the lawful activities of trade unions of their choice within their relevant industry or trade. They also have a right to take up positions in trade unions or workers’ committees.
They cannot also be barred from participating in trade union and associated activities. It is unlawful for employers to discriminate or victimise members of trade unions or works councils on the basis of their membership.
There is an ever present fear that members of workers’ committees, especially their leaders are more prone to victimisation, because they interface more with employers, particularly, in times of industrial strife or difficult negotiations for better pay and working conditions.
If employers do anything to hinder the membership or participation of employees in trade union activities they will be committing unlawful and unfair labour practices.
This right follows after the constitutional right of freedom of association.
If any employer is convicted of breaching this right and infringing the rights of employees they will be liable for damages for any loss or prospective loss caused whether directly or indirectly, as a result of the infringement or threatened infringement.
Freedom from forced labour
Forced labour is slavery and slavery is manifestly illegal and constitutes a gross unfair labour practice.
All labour is to be engaged in freely and unless it is performed voluntarily it should be in exchange for some agreed benefit.
Slavery is very much a present day phenomenon against which world countries are fighting through various anti trafficking laws. It is called modern or contemporary slavery and estimations are that there are at least 30 million people working as slaves throughout the world.
Millions of people are still sold into slavery in covert complex human trafficking operations. Poor people are usually tricked into general or sex slavery by human traffickers.
The Trafficking in Persons Act (Chapter 9:44) needs to be amended to be updated with international law. There have been a significant number of prosecutions under the Act in Zimbabwe from 2016.
Discrimination for any reason, whatsoever, constitutes an unfair labour practice.
Section 5 prohibits employers from practising any form of discrimination against employees. No employer shall discriminate against any employee or prospective employee on grounds of race, tribe, place of origin, political opinion, colour, creed, gender, pregnancy, HIV/AIDS status or disability outside the allowable variation criteria.
It is prohibited to be discriminatory in job advertisements, recruitment, creation, classification or allocation of wages, salaries, pension, accommodation, leave or other such benefits, training, advancement, apprenticeships, transfer, promotion or retrenchment.
It is an unfair and unlawful practice to pay men and women differently for work of equal value.
However, this is a common trend worldwide against which gender activists have been campaigning with some success.
Conviction for an act of discrimination carries a possible prison sentence of two years or a fine or both. The employer is also liable to paying damages for any loss incurred by the employee or prospective employee.
Universal fair labour standards
There are universally agreed minimum standards of treating and administering the welfare of employees.
Employees are to always be paid at least the stipulated minimum wage for the sector. Underpaying employees or not paying them at all is illegal and an unfair labour practice.
It is also unlawful and unfair to compel employees to work more than the stipulated maximum number of hours. Rest breaks such as meal times are compulsory for all employees.
The generally gazetted standard with health regulations is 15 minutes for every 3 or 4 hours worked and a lunch break of at least 30 minutes to an hour depending on the industry.
It is also unfair and illegal for employers to fail to provide the stipulated conditions of service which ensure the safety and security of employees. This relates to the provision of equipment and safety wear and tools.
Lastly it is illegal to hinder, obstruct or prevent or penalise employees for seeking access to lawful proceedings against the employer. Employees cannot be prevented from seeking legal representation if they seek to advance or protect their own rights and interests.
Employees have a right to be represented by lawyers at whatever proceedings they may be party to pertaining the employment contract and relations such as grievance submissions or disciplinary hearings.