Labour Act Chapter 28:01 - Marume & Furidzo Legal Practitioners http://www.marumeandfuridzo.com/tag/labour-act-chapter-2801/ Attorneys, Notaries & Conveyancers Sat, 06 Jan 2024 08:46:59 +0000 en-US hourly 1 https://wordpress.org/?v=6.5.2 http://www.marumeandfuridzo.com/wp-content/uploads/2023/12/favicon.png Labour Act Chapter 28:01 - Marume & Furidzo Legal Practitioners http://www.marumeandfuridzo.com/tag/labour-act-chapter-2801/ 32 32 The Right To Strike In Zimbabwe http://www.marumeandfuridzo.com/the-right-to-strike-in-zimbabwe/ http://www.marumeandfuridzo.com/the-right-to-strike-in-zimbabwe/#comments Wed, 06 Oct 2021 11:34:34 +0000 http://www.marumeandfuridzo.com/?p=993 A collective job action, commonly referred to as a ‘strike’ is a concerted industrial action resulting in cessation of work calculated to persuade or cause a party […]

The post The Right To Strike In Zimbabwe appeared first on Marume & Furidzo Legal Practitioners.

]]>
A collective job action, commonly referred to as a ‘strike’ is a concerted industrial action resulting in cessation of work calculated to persuade or cause a party to an employment relationship to accede to a demand related to employment and it includes a strike, work boycott, lock out, sit in or sit out or any other concerted action. At common law strikes constitute a breach of contract entitling employers to summarily terminate the contract but now strike is seen as a necessary adjunct to collective bargaining and is now constitutionally entrenched. However, like all rights, the right to strike is not absolute, it is limited in the interests of other values and interests.

Section 65(3) of the Constitution of Zimbabwe entrenches the right to engage in collective job action for every employee, serve for members of the security services. It provides as follows;

“Except for members of the security services, every employee has the right to participate in collective job action, including the right to strike, sit in, withdraw their labour and to take other similar concerted action but a law may restrict the exercise of this right in order to maintain essential services.”

Employees, workers committees and trade unions have the right to resort to collective job action to resolve disputes of interest as opposed to disputes of right. In the case of a dispute of right, the basis for the claim is vested in a legal or contractual right, on the other hand a dispute of interest is not based on any existing right but rather seeks to establish a new right like a wage increase.

To acquire protection granted under the Labour Act Chapter 28:01, employees contemplating strike action must follow the prescribed statutory procedure for it to be certified a lawful collective job action. Section 104 of the Labour Act lays down the steps to be observed in convening a lawful strike. As a first step, the employees should give fourteen (14) days written notice of intention to resort to strike specifying grounds for the intended action. The notice has to be given to the party against whom the action is to be taken among other interested parties. The requirement to give such a long notice, it is submitted, is meant to deflect and deflate the potential strike as it is hoped that parties would resolve their issues before expiry of the notice period. Naturally tempers tend to die down due to lapse of time. In comparison, in South Africa the notice period is shorter as it is fixed at forty eighty (48) hours.

The second requirement is that the parties should attempt to conciliate the dispute before a Labour Officer/Designated Agent in terms of s 93 of the Labour Act. A certificate of no settlement should be issued to the parties in terms of s104(2)(b).

The third requirement, assuming the above requirements are met, is that the employees concerned should conduct a secret ballot whereby employees vote for or against engaging in a strike. The secret ballot should be superintended by a Labour Officer/Designated Agent who shall count and record the results of the secret ballot. The strike action can only proceed by agreement of the majority of employees voting by secret ballot. These should all be done within the 14 day period.

The aforementioned statutory requirements among other requirements are meant to curtail or minimise strike action, it being the common cause that strikes by their nature are disruptive and may cause heavy losses on employers.

In very limited circumstances, the law allows the employees to dispense with the need to follow the procedure stated above before resorting to strike. This applies to emergency situations listed in s104(4) as follows;

(a) in order to avoid any occupational hazard which is reasonably feared to pose an immediate threat to the health or safety of the persons concerned:

Provided that—

(i) the occupational hazard has not been deliberately caused by the persons resorting to

the collective job action;

(ii) the collective job action resorted to shall remain proportional in scope and locality to

the occupational hazard in question;

(iii) the collective job action shall diminish in proportion as such occupational hazard

diminishes;

(b) in defence of an immediate threat to the existence of a workers committee or a registered trade union.”

There are severe heavy sanctions against those who engage in unlawful strikes whilst those who engage in lawful strikes are protected and enjoy several protections and privileges. In terms of s 108(1-3) of the Labour Act employees who engage in a lawful collective job action enjoy immunity from dismissal or any delict arising from the strike action. It must be stated however that the protection granted is limited. An employer is not obliged to remunerate an employee for services that the employee does not render during a lawful strike except where the employee’s remuneration includes payment in kind by way of accommodation, the provision of food and other basic amenities of life. The employer is even at large to recover the monetary value of such remuneration in kind through court action. (s 108(4)).

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

Copyright © Marume & Furidzo Legal Practitioners 2021

The post The Right To Strike In Zimbabwe appeared first on Marume & Furidzo Legal Practitioners.

]]>
http://www.marumeandfuridzo.com/the-right-to-strike-in-zimbabwe/feed/ 3
Unfair Labour Practices http://www.marumeandfuridzo.com/unfair-labour-practices/ http://www.marumeandfuridzo.com/unfair-labour-practices/#respond Fri, 23 Jul 2021 13:25:20 +0000 http://www.marumeandfuridzo.com/?p=981 The purpose of the Labour Act Chapter 28:01 is to advance social justice and democracy at the workplace by seeking to promote fair labour standards among other […]

The post Unfair Labour Practices appeared first on Marume & Furidzo Legal Practitioners.

]]>
The purpose of the Labour Act Chapter 28:01 is to advance social justice and democracy at the workplace by seeking to promote fair labour standards among other things.(S 2A (1)(d). In line with this purpose, the Act defines certain acts or omissions which constitute ‘unfair labour practices by employer’.

The Act provides that an employer or any other person commits an unfair labour practice if, by act or omission, it;

  • prevents, hinders or obstructs any employee in the exercise of any right conferred upon him in terms of Part II of the Act. The aforesaid rights in Part II include the right to membership to a trade union and workers committee, protection against forced labour, protection against discrimination etc.
  • contravenes any provision of Part II or of section eighteen;
  • refuses to negotiate in good faith with a workers committee or a trade union which has been duly formed and which is authorized in terms of this Act to represent any of his employees in relation to such negotiation;
  • refuses to co-operate in good faith with an employment council on which the interests of any of his employees are represented;
  • fails to comply with or to implement a collective bargaining agreement, a decision,finding,direction or determination which is binding upon it in terms of this Act;
  • bargains collectively or otherwise deals with another trade union, where a registered trade union representing his employees exists;
  • demands from any employee or prospective employee any sexual favour as a condition for recruitment for employment, the creation, classification or abolition of jobs or posts; or the improvement of the remuneration or other conditions of employment of the employee; or the choice of persons for jobs or posts, training, advancement, apprenticeships, transfer, promotion or retrenchment; or the provision of facilities related to or connected with employment; or any other matter related to employment;
  • engages in unwelcome sexually-determined behaviour towards any employee, whether verbal or otherwise, such as making physical contact or advances, sexually coloured remarks, or displaying pornographic materials in the workplace.

The question which arises is who constitutes the ‘employer’ given that employers can be juristic persons who for example cannot be said to demand sexual favours as a condition for employment. The Act defines the employer as any person whatsoever who employs or provides work for another person and remunerates or expressly or tacitly undertakes to remunerate him, and includes the manager, agent or representative of such person who is in charge or control of the work upon which such other person is employed;

These means that any acts or omissions by the any representative of the employer as defined above may be attributable to the employer which entitles an employee to seek redress against the employer in a court of law or any competent tribunal constituted in terms of the Labour Act or its subsidiary legislation.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

Copyright © Marume & Furidzo Legal Practitioners 2021

The post Unfair Labour Practices appeared first on Marume & Furidzo Legal Practitioners.

]]>
http://www.marumeandfuridzo.com/unfair-labour-practices/feed/ 0
Employer’s Right To Restructure And Reorganize At The Workplace http://www.marumeandfuridzo.com/employers-right-to-restructure-and-reorganize-at-the-workplace/ http://www.marumeandfuridzo.com/employers-right-to-restructure-and-reorganize-at-the-workplace/#respond Wed, 17 Feb 2021 10:54:05 +0000 http://www.marumeandfuridzo.com/?p=940 The law permits an employer to restructure and reorganise its operations at the workplace subject to s 25A (5) (a) of the Labour Act [Chapter 28:01]. The […]

The post Employer’s Right To Restructure And Reorganize At The Workplace appeared first on Marume & Furidzo Legal Practitioners.

]]>
The law permits an employer to restructure and reorganise its operations at the workplace subject to s 25A (5) (a) of the Labour Act [Chapter 28:01]. The section requires an employer to consult the Works Council before implementing a restructuring exercise. In the ordinary course of business, change is inevitable. Things cannot remain the same forever. In Chirasasa & Ors v Nhamo NO 2003 (2) ZLR 206 at 220 (SC) Malaba JA (as he then was) drove the point home when he said that:

“The appellants perhaps failed to appreciate that a contract of employment cannot remain static throughout the whole of its existence regardless of the changes in the fortunes of the business. Refusal to accept a change in the terms and conditions of employment necessitated by the commercial interests of a business may be a good enough reason for terminating a contract of employment on notice.”

It is idle and folly for employees to resist change or restructuring in an organization for purely personal reasons at any level, be it at management or shop floor level. Change may be driven by a shift in business strategy or technological development. Resistance to change may have severe consequences for employees as it turned out in the case of  Montclair Hotel and Casino v Laurence Dube SC 68/18. The salient facts of the matter were as follows;

Laurence Dube, the employee was employed by Montclair Hotel and Casino as an accountant reporting to the General Manager in terms of his job description dated 10 December 2008. Sometime in 2011 the employer embarked on a restructuring exercise which introduced a new management system called HALA. The implementation of the HALA system of administration had the effect of promoting the Finance Manager over the employee and generally reorganising the management structures much to the chagrin of the employee. He protested that the HALA system of management breached his original contract of employment in that it subordinated him to the Finance Manager who hitherto was his subordinate. In protest he wilfully disobeyed the employer’s orders given through the Finance Manager arguing that the unilateral alteration of his contract of employment was unlawful.

The new management structure was implemented after consultation with management and the entire staff, the employee included. The employee complained that the taking over of his core business by the Finance Manager amounted to constructive dismissal. He raised a formal written grievance addressed to the General Manager against the implementation of the HALA system. The grievance was referred to the employer’s board which could not uphold the grievance citing that the implementation of the new system was procedural. The board gave the employee the option to negotiate a mutual separation package with the employer if he felt that he could not continue under the new system. The parties engaged in negotiation for a package but could not agree. Meanwhile the employee flatly refused to submit to the Finance Manager as per new system. As a result he was charged for misconduct of wilful disobedience to a lawful order. His defence was basically that he could not obey his employer’s orders before his grievances had been resolved, because until then he still considered the Finance Manager his junior. When ordered by the Finance Manager to conduct a handover takeover with the bookkeeper he refused saying that he knew his duties. When ordered to relocate to the bookkeeper’s office he refused saying that he was not going to change offices before the resolution of his grievances. Thus according to his defence, he wilfully disobeyed the Finance Manager’s orders as being tainted with illegality. On that score, he was adamant that he was not obliged to obey his employer’s orders given through the Finance Manager.

As a result he was found guilty and dismissed after a fully-fledged disciplinary hearing. He appealed to the Labour Court which upheld his appeal and set aside his dismissal. On appeal the Supreme Court overturned the decision of the Labour Court and held as follows among other things;

The court a quo was equally oblivious of the fact that most of the disputed orders originated from the General Manager to whom the applicant was supposed to report in terms of his original contract of employment. The Finance manager was more of a conduit for conveying the General Manager’s orders. While the respondent might have had genuine lawful grievances, his woes do not arise from raising those grievances. His dismissal had nothing to do with the grievances. This is because he was charged and dismissed from employment on charges of wilful refusal to obey lawful orders. Although on the facts it is clear that the appellant was keen on getting rid of the respondent for raising the grievances, it did not dismiss him for lawfully raising grievances in terms of its registered code of conduct. It dismissed him for wilful disobedience to lawful orders thus notwithstanding the acrimony between the parties, the merits and demerits of the respondent’s grievances are irrelevant. The crisp issue for determination is whether or not the respondent disobeyed a lawful order given by his employer which disobedience goes to the root of his contract of employment. This is so because the raising of grievances does not suspend an employee’s fundamental obligation to obey his employer’s lawful orders. The facts giving rise to the alleged disobedience to lawful orders are by and large common cause. It is common cause that on diver’s occasions following the implementation of the restructuring exercise, the respondent was given numerous orders by the employer through the Finance Manager which he wilfully disobeyed. These include orders:1.To relocate to the bookkeeper’s office to make way for the Finance Manager.2.To share the appellant‘s laptop with the bookkeeper.3.To carry out a handover-takeover with the Finance Manager.4.To report to the Finance Manager.5.To follow the new company structures in discharging his duties. It is not in dispute that the respondent disobeyed all the above 5 orders given by his employer through the Finance Manager to whom he was now supposed to report in accordance with the newly introduced HALA system of administration…The respondent’s response to the orders clearly shows that he understood them but deliberately disobeyed the orders believing them to be unlawful and in breach of his contract of employment. His attitude to his employer’s orders is captured in his lawyer’s submission at pages 149 of the record of proceedings where he says: “The accused (respondent) wants justice. He is not submitting to the current authority that erodes the current benefits that he has. If the company doesn’t want him why shouldn’t they give him an exit package? Why shouldn’t the employer divorce him from the position he is at? He can be retrenched”. The above statement evinces a wilful and deliberate set mind to disobey his employer’s orders. It is plain from the record of proceedings that the respondent disobeyed the Finance Manager‘s orders simply because he detested them and was therefore resisting the HALA system that rendered him subordinate to the Finance Manager who was previously his junior. In resisting change both the respondent and his lawyer were oblivious to the fact that in the ordinary run of things change is inevitable.

The respondent’s adherence to the old system of administration would have caused untold havoc at the work place thereby rendering the HALA system virtually chaotic and ineffectual to the detriment of the entire enterprise. Although the respondent’s complaints are premised on demotion, the facts prove otherwise. He was employed as an accountant. He continued to earn his salary in terms of his contract of employment. His only objection was that the Finance Manager had been promoted above him. His contract of employment however gives him no entitlement to promotion nor does it inhibit the promotion of any employee over him. While the Finance Manager may have been his junior prior to the implementation of the HALA system of administration, he ceased to be his junior and became his senior with effect from 28 September 2011 when the HALA system was implemented. From henceforth onwards the respondent was obliged to take instructions from the Finance Manager. The respondent’s refusal to obey the Finance Manager’s orders on account that he was previously his subordinate has no basis in law because promotion is at the discretion of the employer.”

 With these words, the employee’s fate was sealed.

It is important for an employer to consult its employees before engaging in any form of restructuring as statutorily required by s25A (5) (a) of the Labour Act. Where there is no Works Council in place, the employer can resort to consulting employees individually to avoid the decision being challenged on the ground of being unilateral. Any restructuring should not have the effect of lowering employees’ earnings, otherwise it will be tantamount to unilateral downgrading which is unlawful. On the other hand, employees are duty bound to submit and obey to the new structure even after raising grievances, lest they will be charged of wilful disobedience of a lawful order.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

Copyright © Marume & Furidzo Legal Practitioners 2021

The post Employer’s Right To Restructure And Reorganize At The Workplace appeared first on Marume & Furidzo Legal Practitioners.

]]>
http://www.marumeandfuridzo.com/employers-right-to-restructure-and-reorganize-at-the-workplace/feed/ 0
Applicability Of The National Employment Code http://www.marumeandfuridzo.com/applicability-of-the-national-employment-code/ http://www.marumeandfuridzo.com/applicability-of-the-national-employment-code/#respond Fri, 25 Sep 2020 17:17:24 +0000 http://www.marumeandfuridzo.com/?p=908 Section 12B(2)(a) and(b) of the Labour Act Chapter 28:01 provides that an employee is unfairly dismissed if the employer fails to show that it dismissed the employee […]

The post Applicability Of The National Employment Code appeared first on Marume & Furidzo Legal Practitioners.

]]>
Section 12B(2)(a) and(b) of the Labour Act Chapter 28:01 provides that an employee is unfairly dismissed if the employer fails to show that it dismissed the employee in terms of an employment code or in the absence of an employment code, the employer shall comply with the model code made in terms of section 101(9).” (Underlining is for emphasis).

The Labour (National Employment Code of Conduct) Regulations S.I 15 of 2006 is the model code envisaged in s 12B(2)(b) above. It is meant to provide a platform for settling labour disputes where there is no internal or domestic disciplinary code of conduct at the workplace.

In Chikomba Rural District Council v Pasipanodya 2012 (1) ZLR 577 (SC) the Supreme Court had this to say about applicability of the model code;

“There can be no doubt, regard being had to the provisions in the Act and the Regulations to which reference has been made, that the submission by the appellant that it was entitled to use either the Act or the Regulations or both is not tenable.  Both the Act and the Regulations are clear that the National Employment Code of conduct contained in those regulations can only be invoked where there is no registered code of conduct.  Since it is common cause that the appellant does have a registered code of conduct, the termination of a contract of employment of any of its employees had to be in terms of its code of conduct and not the National Employment Code of Conduct.  The appellant therefore erred in terminating the respondent’s employment in terms of the National Employment Code of Conduct.

The submission that the appellant was entitled to use the National Employment Code of Conduct because the parties had agreed that the code could be used is equally without merit.  Clearly any agreement entered into between the parties had to comply with the specific provisions of both the Act and Regulations.  Any agreement to the contrary would be against the law and a termination of employment based on such agreement would be null and void.  That statutory provisions override the common law goes without saying”

The Supreme Court as per Chikomba Rural District Council v Pasipanodya cited above adopted a restrictive and straight jacket approach and held that the model code could only be invoked where there is no registered code and that even an agreement to resort to the model code was a nullity at law. In the result it set aside proceedings which had been carried out by the employer in terms of the model code where there was a domestic code.

The paradigm shifted in City of Harare v Masinire SC 56/18 where the Supreme Court adopted a more liberal approach. It stated that;

“According to Professor Lovemore Madhuku both section 12B (2) of the Labour Act and section 5 (b) of SI 15 of 2006 compel the use of SI 15 of 2006 in the absence of a registered code of conduct. The expression, ‘in the absence of’ must be interpreted purposefully. The mere existence of a registered code of conduct is not sufficient to oust resort to SI 15 of 2006. There must be a registered code of conduct applicable to the case in question. Where there is a registered code of conduct which is inapplicable to the circumstances of the case, there is, ‘the absence of an employment code’ for purposes of section 12B of the Labour Act and section 5 (b) of SI 15 of 2006… One cannot apply a metal straight jacket and conclude that in every situation where an employment code of conduct exists, it automatically follows that such a code of conduct should solely be used to the exclusion of the National code of conduct. This is the sort of case which the learned author had in mind when he made the above remarks. The domestic code of conduct being inapplicable to the case at hand, ways had to be found of resolving the labour dispute confronting the parties.”

The court went further and held that;

“I consider that s 12B (2) (b) should be given a broad purposeful interpretation to include circumstances where an existing internal code of conduct or dispute resolution mechanism cannot for justifiable reasons apply to a particular case. It therefore appears to me that the legislator intended the model code of conduct to be a fall-back labour dispute resolution mechanism where it is impossible or inappropriate for good reason to apply any other dispute resolution mode. To that extent it is a universal disciplinary code of conduct fitting all circumstances according to the exigencies of each case within the confines of the Labour Act.”

It is submitted that the approach adopted by the Supreme Court in City of Gweru v Masinire, which is more purposeful than restrictive is progressive and accords with the intention of the legislature in formulating S.I 15 of 2006.Going by this latest judgment, the applicability of S.I 15 of 2006 is not limited to scenarios where the employer has no domestic code, but even where the domestic code is available but cannot for justifiable reasons apply to a particular case. Without being exhaustive, justifiable reasons may include where the employer is unable to constitute a quorum at law in terms of the domestic code. The jury remains out as regards what constitute justifiable reasons for resorting to the model code where there is a domestic code of conduct in place.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

Copyright © Marume&Furidzo Legal Practitioners 2020

 

 

The post Applicability Of The National Employment Code appeared first on Marume & Furidzo Legal Practitioners.

]]>
http://www.marumeandfuridzo.com/applicability-of-the-national-employment-code/feed/ 0
Legal Workplace Measures to Cope with Covid-19 Induced Lockdown in Zimbabwe http://www.marumeandfuridzo.com/legal-workplace-measures-to-cope-with-covid-19-induced-lockdown-in-zimbabwe/ http://www.marumeandfuridzo.com/legal-workplace-measures-to-cope-with-covid-19-induced-lockdown-in-zimbabwe/#respond Thu, 11 Jun 2020 14:58:30 +0000 http://www.marumeandfuridzo.com/?p=881 The COVID-19 global pandemic has almost brought the world to a halt. Employers and the employees world over have been hit harder by this untimely disaster. In […]

The post Legal Workplace Measures to Cope with Covid-19 Induced Lockdown in Zimbabwe appeared first on Marume & Furidzo Legal Practitioners.

]]>
The COVID-19 global pandemic has almost brought the world to a halt. Employers and the employees world over have been hit harder by this untimely disaster. In Zimbabwe, on the 27th of March 2020, President Mnangagwa announced that the country would be on lock down for 21 days starting from Monday 30 March 2020. This essentially meant that all citizens were required to stay at home except, for when there is need to make essential movements such as to buy food, for health emergencies or for other vital movements. This meant that all workers, save for those who are engaged in essential services, were not able to render services to the employers as required in terms of their contracts of employment especially were the employee’s service requires that they be physically at the workplace. This scenario brings with it legal headaches on how to handle the employee’s salaries and leave days.

It must be stated that the Labour Act (Chapter 28:01) does not specifically deal with a situation where an a employee fails to tender services because of a vis major, simply put an act of God which is beyond anyone’s control like in the case the coronavirus.

Usually under common law the “no work, no pay” principle applies where an employee is absent from work other than on public holidays or lawful leave. This means that an employee who does not render any service to the employer is not entitled to receive any remuneration for the respective period of absence. See Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1988 (1) ZLR 143 (S). It submitted that the “no work no pay principle” does not apply in the coronavirus induced absence because the failure to render services is not the employee’s fault. To hold otherwise would be contrary to the objectives of the Labour Act which is to advance social justice and democracy in the workplace by the promotion of fair labour standards. (Section 2A (d).)

Most employers, as a cost cutting measure, have resorted to sending their employees on forced unpaid leave. Regrettably our law does not recognize forced unpaid leave at the instance of the employer. In terms of Section 14A(5) of the Labour Act the employer may grant vacation leave without pay where an employee has no vacation leave accrued but wants to go on leave. Hence unpaid leave can only be granted at the instance of the employee not vice versa.

As a lawful measure to cut costs, the employer can ask employees who have accrued vacation leave days to proceed on leave and exhaust leave days as provided in terms of Section 14A(2) of the Labour Act. It must be emphasized that the employer has discretion to determine when the employee shall proceed on vacation leave hence, it is submitted that employees have no legal basis to resist an order that they proceed on vacation leave during the COVID-19 lockdown. In this instance the employee on vacation leave will be entitled to receive their remuneration in full.

In the instance where the employer cannot afford to pay its wage bill due to the COVID-19 induced effects, the employer can make use of Part X of the Labour Act which deals with Collective Bargaining Agreements (CBAs) negotiated by and between employers and employees. Collective Bargaining Agreement (CBA) refers to a written contract negotiated through collective bargaining for employees by one or more trade unions or workers’ committee with the management of a company or employers organization in a particular industry, that regulates the terms and conditions of employees at work. A CBA may  lawfully make provision for the affordable rates of remuneration during the lockdown period. They may agree to forego certain benefits or agree to defer payments until production resumesn. It should be stated that this route may not be easy to follow due to bickering between parties because of competing interests and they may be need for a neutral arbiter which brings us to the next option.

Another viable option is for the employer to apply for an exemption (total or partial) from paying wages for a particular period. The application is addressed to the National Employment Council (NEC) in the industry’s respective sector. The NECs are established in terms of Part VIII of the Labour Act. In terms of Section 62(1) (a) of the Labour Act, an employment council is charged with the duty to assist its members in the conclusion of CBAs or prevent disputes from arising and to settle disputes that may have arisen between employers or employers’ organizations on the one hand and employees, workers committee or trade unions on the other hand.

It is submitted that works councils and the national employment councils (NEC) remain effective engagement platforms for workers and employers to engage and agree on measures that take into consideration respective peculiarities of establishments to craft workplace measures to mitigate the effects of COVID-19.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

Copyright © Marume & Furidzo Legal Practitioners 2020

The post Legal Workplace Measures to Cope with Covid-19 Induced Lockdown in Zimbabwe appeared first on Marume & Furidzo Legal Practitioners.

]]>
http://www.marumeandfuridzo.com/legal-workplace-measures-to-cope-with-covid-19-induced-lockdown-in-zimbabwe/feed/ 0
Collective Bargaining Agreements http://www.marumeandfuridzo.com/collective-bargaining-agreements/ http://www.marumeandfuridzo.com/collective-bargaining-agreements/#respond Fri, 24 Jan 2020 14:21:16 +0000 http://www.marumeandfuridzo.com/?p=861 Collective Bargaining Agreement (CBA) refers to a written contract negotiated through collective bargaining for employees by one or more trade unions or workers’ committee with the management […]

The post Collective Bargaining Agreements appeared first on Marume & Furidzo Legal Practitioners.

]]>
Collective Bargaining Agreement (CBA) refers to a written contract negotiated through collective bargaining for employees by one or more trade unions or workers’ committee with the management of a company or employers organization in a particular industry, that regulates the terms and conditions of employees at work.

The Labour Act Chapter 28:01 recognizes CBAs negotiated between trade unions (registered or unregistered) and employers’ organizations in a particular industry. (See Part X of the Act.)

A collective bargaining agreement may make provision for the following among other things;

  • rates of remuneration and minimum wages for different grades and types of occupations;
  • benefits for employees;
  • deductions which an employer may make from employees’ wages, including deductions for membership fees and union dues, and deductions which an employer may be required or permitted by law or by order of any competent court to make;
  • methods of calculating, or factors for adjusting rates of pay, and the dates, times and modes of payment;
  • all issues pertaining to overtime, piece-work, periods of vacation and vacation pay and constraints thereon;
  • the demarcation of the appropriate categories and classes of employment and their respective functions;
  • the conditions of employment for apprentices;
  • the number of hours of work and the times of work with respect to all or some of the employees.
  • the requirements of occupational safety;
  • housing and transport facilities or in their absence, an allowance for the same;

 The law further provides that a CBA shall not contain any provision which is inconsistent with the Labour Act or any other enactment, and any CBA which contains any such provision shall, to the extent of such inconsistency, be construed with such modifications, qualifications, adaptations and exceptions as may be necessary to bring it into conformity with the Act or such other enactment.

The law also recognizes the right of the employer and his employees to agree on the introduction of rates of pay which are higher than those stipulated in the CBA in a particular industry. Put differently, a CBA is used as the minimum benchmark.

After negotiation, a CBA shall be submitted to the Registrar of Labour for approval and registration. Upon registration of a CBA the Minister shall publish the agreement as a statutory instrument. The terms and conditions of a registered CBA shall be binding and effective upon the date of such publication and/or any date specified in the agreement.

It is important to point out that failure to observe the terms and conditions stated in a CBA is an unfair labour practice which can result in the employer facing litigation.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

Copyright © Marume & Furidzo Legal Practitioners 2020

The post Collective Bargaining Agreements appeared first on Marume & Furidzo Legal Practitioners.

]]>
http://www.marumeandfuridzo.com/collective-bargaining-agreements/feed/ 0
Prescription Of Labour Disputes In Zimbabwe http://www.marumeandfuridzo.com/prescription-of-labour-disputes-in-zimbabwe/ http://www.marumeandfuridzo.com/prescription-of-labour-disputes-in-zimbabwe/#respond Fri, 29 Nov 2019 12:13:59 +0000 http://www.marumeandfuridzo.com/?p=851 One of the objectives of the Labour Act (Chapter 28:01) is to advance social justice and democracy in the workplace by securing the just, effective and expeditious […]

The post Prescription Of Labour Disputes In Zimbabwe appeared first on Marume & Furidzo Legal Practitioners.

]]>
One of the objectives of the Labour Act (Chapter 28:01) is to advance social justice and democracy in the workplace by securing the just, effective and expeditious resolution of disputes and unfair labour practices.(Section 2A(1)(f).

In line with this objective, the Act frowns upon litigants who sit on their disputes or unfair labour practices in perpetuity without it being brought before dispute adjudicators.

Section 94(1) of the Act deals with that aspect. It provides as follows;

Prescription of disputes

(1) (1) Subject to subsection (2), no labour officer shall entertain any dispute or unfair labour practice unless—

  • it is referred to him; or
  • has otherwise come to his attention; within two years from the date when the dispute or unfair labour practice first arose.

(2) Subsection (1) shall not apply to an unfair labour practice which is continuing at the time it is referred to or comes to the attention of a labour officer.”

The statutory provision is very categorical that the Labour Officer (Designated Agent) shall not entertain a dispute or an unfair labour practice unless if it is referred to him within two years when the dispute or unfair labour practice first arose.

The question is when a dispute is said to have arisen?

The Labour Act states as follows in Section 93 (3);

For the purpose of subsection (1), a dispute or unfair labour practice shall be deemed to have first arisen on the date when— the acts or omissions forming the subject of the dispute or unfair labour practice first occurred; or

(b) the party wishing to refer the dispute or unfair labour practice to the labour officer first became aware of the acts or omissions referred to in paragraph (a), if such party cannot reasonably be expected to have known of such acts or omissions at the date when they first occurred

 It is submitted that in crafting Section 94(2) of the Labour Act, the legislature acknowledges that there are instances where a party cannot  reasonably be expected to have known of such an act or omission on the date when it first occurred thus the date to be considered will be when the party got to know about the act or omission even when the date is outside the two year prescription.

It is paramount that litigants who intend to prosecute labour disputes or unfair labour practices raise them as soon as they are arise or at least before expiry of two years, otherwise the disputes will suffer a technical knockout as the respondent will be entitled to raise the plea of prescription when faced with a prescribed claim of unfair labour practice.

In City of Gweru v Munyari SC 15/05 the Supreme Court frowned upon a claim which had been brought outside the prescribed period in terms of Section 94(1) of the Labour Act.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

Copyright © Marume & Furidzo Legal Practitioners 2019

The post Prescription Of Labour Disputes In Zimbabwe appeared first on Marume & Furidzo Legal Practitioners.

]]>
http://www.marumeandfuridzo.com/prescription-of-labour-disputes-in-zimbabwe/feed/ 0
Leave Days at The Workplace in Zimbabwe http://www.marumeandfuridzo.com/leave-days-at-the-workplace-in-zimbabwe/ http://www.marumeandfuridzo.com/leave-days-at-the-workplace-in-zimbabwe/#comments Thu, 07 Jun 2018 13:23:41 +0000 http://www.marumeandfuridzo.com/?p=166 Leave refers to the amount of hours or days an employee of an organization is permitted to be away from their employment position within a year’s time […]

The post Leave Days at The Workplace in Zimbabwe appeared first on Marume & Furidzo Legal Practitioners.

]]>
Leave refers to the amount of hours or days an employee of an organization is permitted to be away from their employment position within a year’s time without consequences. The Labour Act Chapter 28:01 and partly the Constitution of Zimbabwe deals with various types of leave in Zimbabwe. In this article we explore the various types of leave in Zimbabwe.

  1. Annual/Vacation Leave

In terms of Section 14A of the Labour Act Chapter 28:01 the leave may be accrued to a maximum of  (90) ninety days paid vacation leave unless the employee can prove that he/she was declined to take leave for operational reasons.

So what it means is that if the employee continues to work without proceeding on vacation leave say for five years which would translate the leave days to 100 days (22 multiply by 5 years, the employee’s leave days will cease to accrue at 90 days then the counting of leave days will restart at zero.

The employer has discretion to determine when the employee shall proceed on leave.

All Saturdays Sundays and public holidays falling within the period of the vacation leave shall be counted as part of the vacation leave.

An employee who becomes ill or is injured during a period of vacation leave may cancel the vacation and apply for sick leave.

  1. Unpaid leave

There is no obligation on the employer to grant unpaid leave however in terms of Section 14A (5) of the Labour Act the employer may grant vacation leave without pay where an employee has no vacation leave accrued but wants to go on leave.

  1. Sick leave

In terms of Section 14 of the Labour Act, the employee is entitled to

  • 90 days in one calendar year with full pay of sick leave which is supported by registered medical practitioner.
  • If the fully paid 90 days are exhausted in one calendar month, the employer shall grant a further period of up to 90 days sick leave on half pay where in the opinion of the a medical doctor the employee will be able to resume duty after such period of sick leave.

If the period of 180 days granted in both (a) and (b) are granted and the employee has still not recovered, the employer may terminate the employment.

  1. Compassionate/Special Leave

In terms of Section 14B of the Labour Act, an employee is entitled to a maximum of twelve (12) days in a calendar year on compassionate grounds which are justifiable.

  1. Maternity leave

In terms of Section 18 of the Labour Act as read with Section 65 (7) of the Constitution of Zimbabwe women have a right to a fully paid maternity leave for at least three months if they have served for at least one year.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

Copyright © Marume & Furidzo Legal Practitioners 2018

The post Leave Days at The Workplace in Zimbabwe appeared first on Marume & Furidzo Legal Practitioners.

]]>
http://www.marumeandfuridzo.com/leave-days-at-the-workplace-in-zimbabwe/feed/ 17