COMMENTARY ON THE ZIMBABWE LABOUR BILL 2021

AMENDMENT

ZCTU COMMENTS

Clause 3 Amendment of section 4A of Cap 28:01

Section 4 A (“Prohibition of forced labour”) of the principal Act amended by the repeal of subsections (2) and (3) and the substitution by Sub -Sections 2 (a-f ) and 3

The amendment repealed subsections 2 and 3 but reproduced forced labour under subsection 2 (f) (i) (ii). The grounds stated herein that a person may be required to work against his will for the mere reason that he is lawfully detained without a court sentence amount to forced labour and the requirement that such work is permitted by other enactment which is unknown is too wide and subject to abuse.

Only a court of law as per article 2 (2) (c) of C29 can determine the lawfulness of a detained person and convict. 

Subsection 2 (f) and (ii) should be repealed to comply with C29. See CEACR comment, 2004, para   stated as follows ‘ It refers to the explanations in paragraphs 90 and 94 of its 1979 General Survey on the abolition of forced labour, in which it pointed out that persons awaiting trial or detained without trial should not be obliged to perform labour (as distinct from certain limited obligations intended merely to ensure cleanliness), and that compulsory labour imposed by administrative or other non-judicial bodies or authorities is not compatible with the Convention. The Committee requests the Government to supply a copy of any enactment referred to in the above section 4A (2) (b)(ii), under which the exaction of compulsory labour from detainees may be required, and to provide information on measures taken or envisaged to ensure the observance of the Convention on this point’ available. https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:2236475

Clause 4 Amendment of section 5 of Cap of 28:01

Section 5 (“Protection of employees against discrimination”) is amended by the repeal of subsection (2a) and the substitution of

“(2a) Every employer shall pay equal remuneration to male and female em­ployees for work to which equal value is attributed without discrimination on the grounds of sex or gender.”

While the amendment is welcome , we propose expansion of the grounds of discrimination on s5 to broaden and include social origin, national extraction, direct and indirect discrimination

We further propose Repeal 5 (7) (b) as it allows discrimination on political grounds in conflict with section 56(3) of the Constitution and government commitment to  CEACR 2015 Observation on Convention 111.

CEACR stated as follows:-

   “Noting the Government’s indication that the prohibited grounds of discrimination will be discussed in national consultations as part of the amendment process of the Labour Act, the Committee hopes the Government will take this opportunity to ensure that the Labour Act will prohibit direct and indirect discrimination on at least all of the grounds enumerated in Article 1(1)(a) of the Convention and article 56 of the new Constitution, including national extraction, and social origin, for all workers and with respect to all aspects of employment’.

Clauses 2 and 5 to 8

Agreed and we welcome the commitment by the legislature to strengthen the sections of the LAW that prohibit discrimination, unfair labour practices, Casualisation, Child labour as well as Sexual Harassment. We applaud the legislature for adopting definitions and provisions from the ILO Instruments to protect workers from violence and harassment and to punish perpetrators.

Clause 9 Retrenchment and compensation for loss of employment

Subsection 2(a) payment of packages

We are concerned by the retaining of the minimum package as prescribed by the 2015 Amendment 5. “Minimum retrenchment package” means one months’ wages for every two years served (and the proportionate amount for every part of a year served). The minimum package was imposed in 2015 and is retained without any justification and due to continuous erosion of wages.

*We propose that parties should agree on a realistic Minimum Package other than this plucked figure. We believe that this is regrettable as in many of the times this leaves employees at the mercy of the minimum retrenchment package even in circumstances where the employer can afford an enhanced package.

*We also propose that instead of 60 days the period by which a retrenchment package should have been paid be reduced to 30 days and there should be No Exemptions on payment of retrenchment packages.

11 Amendment of section 18 of Cap. 28:01

Section 18 (“Maternity Leave”) of the principal Act is amended by the—

(a) deletion in subsection (1) of “who has served for at least one year.”; and

(b) Repeal of subsection (3).

We propose deletion of subsection 5 – and also propose addition of a clause to address the possibility of complications and ill health after one has exhausted Paid Maternity Leave. We propose there be a provision to allow the affected woman to access extension of leave by one month to allow the person to recuperate provided there is a letter from a certified medical practitioner.

Clause 12  - addition of a new section

S18A – Contracts for Hourly Work

S18B – Labour Broking

LABOUR BROKING: We appreciate that the Legislature is trying to ensure there is equality in the workplace and that employees engaged through a labour broker should have same benefits and conditions as the other employees. However the regulations of such a relationship have been left open ended with no time restrictions.

In South Africa, labour broking is highly regulated. Labour is only supplied for the client for 3 months and in substitution of an employee who is not around for a fleeting period of time. If the labour is not provided under these circumstances, they become permanently employed for the client. We do not suggest that this is what is supposed to be implemented in Zimbabwe but leaving this arrangement open-ended like is being proposed can have profound consequences.

On payment of damages - The problem may arise when the broker does not have any assets, as is usually the case as some of the brokers may just be using briefcase companies. What is the employee’s recourse?

We propose that:  the Legislature should protect employees by ensuring that labour brokers meet a certain criterion to allow employees to recover damages that may arise from an employment contract.

Clauses 13 to 16

Agreed

17 Amendment of section 34 of Cap. 28:01 – Requirements for application for registration of Trade Union or Employers’ Organisation.

Agreed But We Propose to add para (h) to read ‘The name of the applicant or its shortened form may not so closely resemble the name or shortened form of an already registered and existing trade union or employer’s organisation.’

Clause 18 Duty to provide information to Registrar

We Disagree with the section as it provides with too much interference on trade union or employer organisations operations by the Minister in violation of C087 on Freedom of Association and the Right to Organise.

Clause 19 Amendment of section 45:- Variations, suspension or rescission of registration of trade unions and employers organization

The repeal and insertion only removed the word ‘registration’ but does not   cure the mischief of infringement of a trade union or employers’ organisation’s right to freedom of association. The requirement to consider the representations of multiple stakeholders like any member of the public is too wide and may results in infringement. See ILO CFA ‘The Committee further considers that section 45 of the Labour Act will appear to hinder the registration of a new organization if another registered organization already exists in a specific enterprise or occupation. It recalls in this respect that a provision authorizing the refusal of an application for registration if another union, already registered, is sufficiently representative of the interests which the union seeking registration proposes to defend, means that, in certain cases, workers may be denied the right to join the organization of their own choosing, contrary to the principles of freedom of association [see Digest, op. cit., para. 328]. See  ILO case No 3128-2015 available at

https://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:3278022

Clause 20 Amendment of section 51 of Cap. 28:01

Section 51 (“Supervision of election of officers”) of the principal Act is amended

(a) By the repeal of subsection (1) and the substitution ………..

Subsection (1) gives right to any person directly involved in a trade union or employer’s organisation’s election to complain to the Minister about the conduct of the election on grounds of fraud coercion or unfairness.

Subjecting trade union or employers’ organisations election disputes to the Minister and Registrar is a serious interference in the affairs of a trade union and a violation of article 3 of C87. see ILO Freedom of Association Compilation of Decisions of the Committee on Freedom of Association 6^th edition, 2018, para 563, provides ‘legislative provisions which regulate in detail the internal functioning of workers and employers’ organisations pose a serious risk of interference by the public authorities. Where such provisions are deemed necessary by the public authorities, they should simply establish an overall framework in which the greatest possible autonomy is left to the organisations in their functioning and administration’ see CEACR observations at:  https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:2332402

For years government has been making commitments in its reports to the CEACR that the provision will be repealed.

Furthermore, during tripartite negotiations, under principle No.8, it was agreed that s51 will be repealed.  The ZCTU wonders why government is choosing to disrespect the ILO and the agreed position during several TNF meetings backdating to 2016.  We appeal to the Legislature to consider Honouring Zimbabwe’s International obligations and commitments.

Clause 21 Amendment of section 54 of Cap. 28:01

 Section 54 (“Collection of union dues”) of the principal Act is amended by the repeal of subsections (2), (3), (4) and (5a).  

The amendment repeals subsections (2) (3) (4) (5a) and that is welcome. However, We also propose the repeal subsection (5) as it is an appeal against the Minister’s decision arising from the repealed s (4).

Also repeal subsection (3) that gives the Minister power to appoint members of an employment council if the parties fail to do so within 3 months.

Our view is that collective bargaining and institutions for bargaining should remain voluntary in nature. Act of compulsion is against the principles of free collective bargaining. (ILO C98 art 4)

Clause  22  Regulation of union dues  and Clause  23 Formation of NECs

AGREED

Clause 24 Amendment of section 58 of Cap. 28:01

Section 58 (“Constitution of employment councils”) of the principal Act is amended by the repeal of paragraph (g) and substitution …….

The amendment seeks to repeal para (g) that provides for the admission of new parties to the employment council. If this is removed, a gap will be created as the council will not be able to set the required threshold for allocation of seats to new entrants. For a union or employers’ organisation to be admitted it must meet a certain threshold or if it fails it may be granted observer status. (see new section 56 (5) (b) (i) (ii)

 Therefore, paragraph (g) should be repealed and substituted by ‘The NEC Board shall determine the minimum threshold for admission into the NEC. This is intended to curtail briefcase unions and multiplicity of unions which employers can negotiate with’. (see agreed principle 7.3)

26 Amendment of section 74 Cap. 28:01 (“Scope of collective bargaining agreements”) of the principal Act is amended—

(a) in subsection (3) by the insertion of the following paragraph after paragraph (n)

The amendment inserts a new paragraph (0) that provides for negotiation of paid educational leave at employment council. There is partial compliance with the agreed principle NO.5 that broadened the negotiation of paid educational leave at the employment council level and the inclusion of the Minister in public enterprises negotiations.

However, some agreed elements in princi0ple No. 2 (Right to Collective bargaining) were deliberately omitted. Principle 2.2 provides ‘It is proposed to include other factors to be considered in collective bargaining as contained in the ILO Convention 131 on Minimum Wage Fixing and in line with the Constitution’. The elements to be taken into consideration in determining the level of minimum wages shall take into account—

(i)      the needs of workers and their families;

(ii)     the general level of wages in the country;

1. the cost of living and changes therein;
2. social security benefits;
3. the relative living standards of other social groups;

(vi)    economic factors, including economic development,

7. Levels of productivity and the desirability of attaining and maintaining a high level of employment;”.

Clause 27 Amendment of section 79 Cap. 28:01 (“Submission of collective bargaining agreements for approval or registration”) of the principal Act is repealed and substituted with the following section— ………..

The repeal of this section and its substitution, which in most respect is just a repetition of the same does not address the mischief save for the proviso  requiring the Minister to specify the public interest concerned that would have  caused  the refusal to  register  a collective bargaining agreement. The mischief is in s79 (2) (a) inconsistent with this Act or any other enactment; or

(b) contrary to public interest; (c) unreasonable or unfair, having regard to the respective rights of the parties; These provisions interfere with the rights of parties to free collective bargaining.

The agreed principle No. 2 on collective bargaining provides; ‘To amend section 25, 79, 81 of the Labour Act as well as section 14 of the Labour Amendment Act No. 5 to ensure that collective agreements are not subjected to Ministerial approval on the grounds that the agreement is or has become “…unreasonable or unfair” or “contrary to public interest”. 

See ILO, CEACR Observations;  Noting with concern the adoption of new section 79(2)(b), the Committee recalls that the discretionary power of the authorities to approve collective agreements is contrary to the principle of voluntary bargaining enshrined in Article 4 of the Convention and that systems of prior approval are compatible with the Convention only where approval may be refused if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation. The Committee therefore requests the Government to take the necessary measures to repeal section 79(2)(b) and (c) of the Labour Act and to provide information in this respect. Available at https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3255914

As a result, delete the phrase ‘or any other enactment in 79 (2) (a) and repeal para 79 (2) (b) and 79(2) (c)  as well.

28 Amendment of section 81 Cap. 28:01

Section 81 (“Amendment of registered collective bargaining agreements by Minister”) (1) of the principal Act is repealed and substituted with the following subsection— ………

This section is repealed and substituted by giving Minister the power to direct the parties to an agreement to amend an agreement that has become inconsistent with this Act or any other enactment. This phrase ‘any other enactment’ should be repealed.  Amendments should be in line with the Labour Act.

29 Amendment of section 82 of Cap. 28:01

Section 82 (“Binding nature of registered collective bargaining agreements”) of the principal Act is amended by the insertion of a binding declaration that includes parties who are not members of the employment council. (See Net One Cellular v Minister of Labour & anor. HH-211-15. This is welcome.

This section   may be improved further by inserting (c) that provides ‘Any portion of a collective bargaining agreement which has been ratified by the parties thereto shall be binding on the parties notwithstanding that any other portion of the agreement has not been ratified.”

31 Amendment of section 98 of Cap. 28:01

Section 98 (“Effect of reference to compulsory arbitration under Parts XI and XII”) of the principal Act is repealed and the following is substituted

S98 Effect of reference to compulsory arbitration under Parts XI and XII

This section was just repealed and reproduced.  There is non-compliance with the elements of the agreed principle No.  3 (Streamlining the Labour dispute settlement system) in which it was agreed as follows: (iv) It is proposed to review section 89 and 98 of the Labour Act to strengthen the Powers of the Labour Court. Amendments to these sections will include;

1. Functions, powers and jurisdiction of the Labour Court to give the Labour Court jurisdiction over all labour matters.
2. Enforcements of decisions by the Labour Court.

The proposed subsections 13 and 14 still recognize the Magistrate’s Court and the High Court in enforcement of Labour Court and arbitrator’s decisions. This poses serious difficulties to workers in trying to enforce a decision of the Labour Court in a common law administered  courts, prolongs the dispute resolution process  and cause congestion in other courts. If a small claims court can enforce its decision, what more, the Labour Court which is constitutionally recognized.

Subsection 13 should be improved as follows:

 In subsection 13 repeal the phrase ‘court of any magistrate which would have had jurisdiction to make an order corresponding to the award had the matter been determined by it, or, if the arbitral award exceeds the jurisdiction of any Magistrates Court, the High Court’ and substitute by the Labour Court.

In subsection 14 repeal ‘appropriate court’ and substitute by ‘Labour Court’

33 Amendment of section 109 Cap. 28:01

Section 109 (“Liability of persons engaged in unlawful collective action”) of the principal Act is amended by the repeal of subsections (1) and (2)

This section is about criminal penalties to those who cause or embark on an unlawful collective job action. The repealed provisions were reproduced and merely made a distinction of a penalty in an essential service and other services. For those in an essential service, the penalty is a level 14 (Z$500 000.00  or 5 years in prison or both whereas for  those in other  services,  the penalty is level 14 or 1 year imprisonment for failure to pay the fine.

The amendment does not address the real problem of decriminalising legitimate strikes. The amendment does not give effect to agreed principle No. 4 which provides as follows:

Collective Job Action

4.1 The Constitution of Zimbabwe section 65(3) provides for the right to collective job action to every employee except members of the security forces.

This principle therefore seeks to amend: -

(i)To amend Section 104 of the Labour Act in order to streamline the procedures for declaring a strike under the Labour Act by reducing the notice period

(ii)To provide for a transparent democratic voting process by the workers to mandate a strike.

(ii)To amend Section 107, 109, 112 of the Labour Act to remove excessive penalties in the case of an unlawful collective job action also to decriminalize collective job actions.

(iii)Under the same principle there is need for very clear laws for the protection of workers and their representatives against anti -union discrimination.

This provision does not give effect to the right to the right to engage in collective job action provided in section 65 of the Constitution and in effect, it’s a deterrent to the enjoyment of the right to freedom of association, the new section in not in line with the agreed principle.  The ILO Commission of Inquiry of 2009, para 575 observed that ‘the right to strike is not fully guaranteed in law or practice. In particular, the Commission is concerned that the legislation includes disproportionate sanctions for the exercise of the right to strike and an excessively large definition of essential services; and that in practice the procedure for the declaration of strikes is problematic and that it appears that the security forces often intervene in strikes in Zimbabwe. The Commission wishes to confirm that the right to strike is an intrinsic corollary of the right to organize protected by Convention No. 87.

See also ILO Freedom of See also ILO C105 art 1, ‘Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress and not to make use of any form of forced or compulsory labour-- (d) as a punishment for having participated in strikes.

Association: Compilation of the decisions of the Committee on Freedom of Association, 6^th ed, Geneva, 2018, para 951. ‘Imposing sanctions on unions for leading a legitimate strike is a grave violation of the principles of freedom of association’, para 953. No one should be penalized for carrying out or attempting to carry out a legitimate strike. para 954. Penal sanctions should not be imposed on any worker for participating in a peaceful strike, para 955.

Penal sanctions should only be imposed if, in the framework of a strike, violence against persons and property or other serious violations of the ordinary criminal law are committed, and this, on the basis of the laws and regulations punishing such acts and para   956. Legislative provisions which impose sanctions in relation to the threat of strike are contrary to freedom of expression and principles of freedom of association.

Section 112 must be repealed.

36 Amendment of section 120 Cap. 28:01

Section 120 (“Investigation of trade unions and employers’ organizations”) of the principle Act is amended-

The section provides for Ministerial powers to cause investigations in the affairs of trade unions and employers’ organisations. The amendment is giving the Minister the power to appoint a provisional administrator to administer the trade union or employers’ organisation concerned pending the approval by a substantive administrator by the Labour Court.

The amendment is a breach of Principle No.8 agreed by the parties which provides in 8.4 To amend sections 28(2), 54(2) and (3), 55 and 120(2) of the Labour Act and section 120 (7) (8) of the amendment Act No. 5 of 2015 with a view to streamline the Minister’s powers to regulate administrative issues of trade unions and employers’ organizations.

Furthermore, the ILO CEACR observations, 2015 available remarked as follows;

‘With respect to the investigation powers granted to the Ministry of Labour by the new section….. 120(2) of the Labour Act (applicable to workers’ and employers’ organizations) the Committee recalls that: (i) it had highlighted in its previous comments that the discretionary right of the authorities to carry out inspections and request information at any time entails a danger of interference in the internal administration of the trade union; and (ii) on that basis, both the Commission of Inquiry and the Committee had requested the Government to take the necessary measures to amend section 120(2) of the Labour Act. …….. the Committee requests the Government to take the necessary measures to amend both section.. 120(2) of the Labour Act so as to ensure that the autonomy of employers’ and workers’ organizations is fully respected. See https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3255910

‘In addition, the Committee observes that both the new section 63(A) of the Labour Act (applicable to employment councils) and the revised section 120 of the Labour Act (applicable to employers’ and workers’ organizations) provide that “pending determination by the Labour Court of an application to appoint an administrator, the Minister may appoint a provisional administrator who shall exercise all the powers of a substantive administrator until the provisional administrator’s appointment is confirmed by the Labour Court”. Recalling that, by virtue of Article 3 of the Convention, public authorities shall refrain from any interference which would restrict the right of workers’ and employers’ organizations to organize their administration, the Committee points out that outside control of workers’ and employers’ organizations should only take place in exceptional cases, as a result of a judicial decision and should be carried out by a person appointed by the judicial authorities. The Committee therefore requests the Government to take the necessary steps to amend sections 63(A) and 120 of the Labour Act accordingly and to inform of any progress in this respect’.

•  (see Zimbabwe, ILO Case No 2081/ 30 March 2000) “The Committee considers, consequently, that the powers of supervision contained in paragraph (c) of subsection (2) are not limited to exceptional cases; rather this provision gives excessive powers of inquiry to the administrative authorities into the financial management of trade unions, thereby violating the right of workers' (and employers') organizations to organize their administration without interference by the public authorities. The Committee requests the Government to take the necessary measures to ensure that section 120(2) of the Labour Relations Act of 1985 is amended in line with freedom of association principles, including those enunciated in its conclusions. The Committee further requests the Government to keep it informed of any progress made in this regard’. 

In order to comply with the above observations, we propose the repeal of subsections (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) and substitute with the following;

(2) The Minister may in exceptional circumstances apply to the Labour Court to appoint an investigator’.

(4) Such application shall be served to the trade union or employers’ organisation concerned to enable it to respond within the prescribed time frames.

(5) The Labour Court shall determine the matter and make an appropriate decision that safeguards the trade union or employers’ organisation concerned.

(6) If the Labour Court approves the appointment of an investigator, such investigator upon completion of investigations, shall submit his or her findings to the Labour Court and to the trade union or employers’ organisation concerned to enable it to respond to the findings.

(7) The Labour Court may grant or dismiss the relief sought by the Minister

(8) A party aggrieved by the decision of the Labour Court may appeal to the Supreme Court within the prescribed period as set out in the rules of that court.

Omissions in the draft As previously negotiated at TNF

a) Amendment of section 57 (statutory employment councils)

Section 57 obliges the Minister to request parties to form a statutory employment council in the national interest.  This section should be repealed as a statutory employment council is an act of compulsion and violates the right to free collective bargaining.

b) Amendment of section 63A Audit of accounts of employment councils

There is non- compliance with agreed principle No. 6 which states ‘(ii) To amend section 63A (7) to remove the powers of the Minister to appoint a provisional administrator and give power to the Labour Court the power to appoint the provincial administrator having given the parties concerned the right to be heard in compliance with section 69 (2) of the constitution’. Furthermore, your attention is drawn to CEACR observation 2015 published 105^th session 2016 in which government is requested to repeal the offending provisions.

CEACR observed that;‘With respect to the investigation powers granted to the Ministry of Labour by the new section 63(A) (applicable to bipartite employment councils) and section 120(2) of the Labour Act (applicable to workers’ and employers’ organizations) the Committee recalls that: (i) it had highlighted in its previous comments that the discretionary right of the authorities to carry out inspections and request information at any time entails a danger of interference in the internal administration of the trade union; and (ii) on that basis, both the Commission of Inquiry and the Committee had requested the Government to take the necessary measures to amend section 120(2) of the Labour Act. Observing that new section 63(A) grants similar powers to the authorities with respect to the bipartite employment councils, the Committee requests the Government to take the necessary measures to amend both sections 63(A) and 120(2) of the Labour Act so as to ensure that the autonomy of employers’ and workers’ organizations is fully respected.

‘In addition, the Committee observes that both the new section 63(A) of the Labour Act (applicable to employment councils) and the revised section 120 of the Labour Act (applicable to employers’ and workers’ organizations) provide that “pending determination by the Labour Court of an application to appoint an administrator, the Minister may appoint a provisional administrator who shall exercise all the powers of a substantive administrator until the provisional administrator’s appointment is confirmed by the Labour Court”. Recalling that, by virtue of Article 3 of the Convention, public authorities shall refrain from any interference which would restrict the right of workers’ and employers’ organizations to organize their administration, the Committee points out that outside control of workers’ and employers’ organizations should only take place in exceptional cases, as a result of a judicial decision and should be carried out by a person appointed by the judicial authorities. The Committee therefore requests the Government to take the necessary steps to amend sections 63(A) and 120 of the Labour Act accordingly and to inform of any progress in this respect’. See comment available at:

https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3255910

In order to comply with the above observations, we propose the repeal of subsections (4) (5) (6) (7) (8) (9) (10) (11) (12) and substitute with the following;

In subsection (3) delete the phrase ‘may investigate or order that such employment council be investigated in accordance with subsection (4). And substitute by ‘Minister may apply to the Labour Court to appoint an investigator’.

(4) Such application shall be served to the employment council concerned to respond within the prescribed time frame.

(5) The Labour Court shall determine the matter and make an appropriate decision that safeguards the employment council concerned.

(6) A party aggrieved by the decision of the Labour Court may appeal to the Supreme Court within the prescribed time as set out in the rules of that court.

(c) Amendment of section 89 Cap 28:01

Functions, powers, and jurisdiction of Labour Court

Agreed principle No.3 (Streamline the Labour Dispute Settlement System) that seeks to strengthen the powers of the Labour Court has not been effected. It states (iv) It is proposed to review section 89 and 98 of the Labour Act to strengthen the Powers of the Labour Court. Amendments to these sections will include;

1. Functions, powers and jurisdiction of the Labour Court to give the Labour Court jurisdiction over all labour matters.
2. Enforcements of decisions by the Labour Court.

Note Section 172 (2) of the Constitution of Zimbabwe provides that ‘The Labour Court has such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament.

Therefore, The Labour Court is established in terms of the Labour Act and it is this Act that can give it power in labour and employment matters in the same way the High Court has been given power in section 13 by the legislature. It is within the powers of the legislature to confer such powers.

In this respect we propose the following:

Section 89 (Functions, powers and jurisdiction of Labour Court) of the principal Act is amended by the repeal of subsections (1) and (2) and the substitution of‑‑

(1)     Except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters of labour and employment.

(2)     In the exercise of its jurisdiction, the Labour Court may‑‑

(a)     make any appropriate order, including‑‑

(i)      the grant of urgent interim relief;

(ii)     grant an interdict;

2. an order directing the performance of any act which order, when implemented, will remedy a wrong and give effect to the objects of this Act;

(iv)    a declaratory order;

5. an award of compensation in any circumstances contemplated by this Act;
6. an award of damages in any circumstances contemplated by this Act;
7. in the case of an appeal—

1. conduct a hearing into the matter or decide it on the record;
2. confirm, vary, reverse or set aside the decision, order or action appealed against or substitute its own decision or order; and

(viii)  make an order for costs;

(b)     order compliance with any provision of this Act;

(c)     make any arbitration award or any settlement agreement an order of the court;

(d)     determine a dispute between employers and employees’ organisations and any one of the members concerning any alleged non-compliance with the constitution of that trade union or employers' organisation, as the case may be;

(e)  Determine any dispute concerning the collection of union dues or employers’ organisation dues and their remittance to the respective party or organisations.

(f) Review any decisions made in terms of an employment code and arbitrator’s decision

(g)     review the performance or purported performance of any function provided for in this Act on any grounds that are permissible at law;

(h)    Determine Actual claims arising from employment whether the relationship is subsisting or has been terminated including recovery of an employer or employee’s property or ejectment of employees from employer’s accommodation or premises;

(i)      Deal with all matters necessary or incidental to performing its functions in terms of this Act or any other law.

(j) in the case of an unlawful dismissal or termination of a contract of employment, order reinstatement as a primary remedy and in the event of a refusal by an employer to reinstate the employee for whatever reasons, order payment of punitive damages which include payment of back pay from the date of such unlawful dismissal or termination to the date of the order of the court in addition to damages that may be assessed by the Court. In assessing damages, no employee shall be compelled to mitigate his loss. An employee who refuses reinstatement for whatever reasons shall be entitled to back pay and damages and the court shall consider the reasons of such refusal in assessing damages.

   (see art 10 of the ILO   Convention on Termination of employment 158, (1982) , that require Payment of adequate compensation to an employee whose contract is terminated]

(2a)   If at any stage after a dispute has been referred to the Labour Court, it becomes apparent that the dispute ought to have been referred to arbitration, the Court may‑‑

(a)     stay the proceedings and refer the dispute to arbitration; or

(b)     With the consent of the parties and if it is expedient to do so, continue with the proceedings before the Court.

(d) Amendment of section 92B of Cap 28:01

Section 92B (Effective date and enforcement of decisions of Labour Court) of the principal Act is amended—

1. by the repeal of subsections (3) and substitute by —

“(3)   Any decision, order or determination of the Labour Court shall be enforced by the Labour Court itself like any civil judgment of any appropriate court.”

e) Amendment of section  102 of Cap,28:01

102 Interpretation in Part XIII

This section provides for wide powers of the Minister to declare any service to be an essential services as follows’ “essential service” means any service— (a) ------(b) that is declared by notice in the Gazette made by the Minister, after consultation with the appropriate advisory council, if any, appointed in terms of section nineteen, to be an essential service;

Although the provision provides for some consultations, this is not adequate as to consult is a mere process of seeking of one’s view and the consultant can still proceed without the agreement of the other party. Furthermore, the phrase ‘advisory council if any’ implies that where there is no such advisory council in place, the Minister can still declare any service essential. 

The ILO CEACR, 2010 observation stated as follows;  ……’the need to effectively guarantee the right to strike through, among other measures: (i) simplifying the procedure for declaring a strike; (ii) amending section 102 of the Labour Act providing for the right of the minister to declare any service essential; (iii) ensuring that a strike can be restricted or banned only in essential services in the strict sense of the term, that is those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population, so as to effectively ensure workers’ right to strike; available at https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:2332402

The best practice is that of South Africa. Section 70 of the Labour Relations Act, 1995 provides for the establishment of an essential service committee with members who are persons who have knowledge and experience of labour law and labour relations.

f) Amendment of section 2A of Cap 28:01

Section 2A (Purpose of Act) of the principal Act is amended—

1. In subsection (2) by the insertion after “subsection (1)” of “taking into account any international treaty to which Zimbabwe is a party”.
2. In subsection (3), by the deletion of “This” and the substitution of “Subject to section 3, this”.

g) Section 107 Disposal orders

This section has excessive penalties to workers who engaged in unlawful strike (see CEACR 2005 observations published  95^th ILC session, 2006  ‘further concerning  the sanctions of dismissal and dissolution the committee recalls that  no one should be penalised  for carrying out or attempting to carry out a legitimate strike and that, in any case, the sanctions imposed should not be disproportionate to the seriousness of the violations’

Therefore, we propose that Section 107 (Disposal orders) of the principal Act is amended in subsection (3) by the repeal of subparagraph (i) (ii) (iii) (iv) (v) (vi) (vii) and substitution of

 (a) The Labour Court shall make a determination in accordance with the justice of the matter taking into consideration all factors causing the unlawful strike including the contribution of each party to the escalation of the dispute and may order cessation of the unlawful collective job action.

h) Amendment of section 108 of Cap 28:01

We propose Amendment as follows:- The principal Act is amended by the insertion of subsection 6, 7 and 8 as follows;

 6.  Except for essential services, for the duration of the period of the lawful collective action, an employer shall not employ any other employee or person be it natural or juristic to render any employment services in place of striking employees.

7. In the case of essential services, an employer may only temporarily hire the services of another employee or person for the period of the collective action pending resolution of the dispute.

8.  No State security forces or officers   shall take any view or decide the merits of the disputes giving rise to a collective job action or disrupts or threaten to disrupt a collective job action. Security forces may only intervene where there is riotous behaviour to maintain law and order.

 (see ILO Commission of Inquiry, 2009, para 575…..it appears that the security forces often intervene in strikes in Zimbabwe. The Commission wishes to confirm that the right to strike is an intrinsic corollary of the right to organize protected by Convention No. 87.

-Under the same principle, we agreed to regulate acts of anti-union discrimination. (see ILO Committee on the Application of Standards  (CAS) 2016 Report on Zimbabwe) The Right to Organise and Collective Bargaining convention, 1949 (No.98)  and CEACR observations 2016 available at https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3297214

The ILO Commission of Inquiry 2009, para 585 remarked as follows ‘The Commission concludes that there is no adequate protection against anti-union discrimination in Zimbabwe. The Commission emphasizes that no one should be subjected to discrimination or prejudice because of legitimate trade union activities or membership. With reference to the mass dismissals of strikers in Zimbabwe, the Commission considers that these involve a serious risk of abuse and place freedom of association in grave jeopardy. In this regard, the Commission stresses that the remedy of reinstatement should be available to those who are victims of anti-union discrimination and, if reinstatement is not possible, the Government should ensure that the workers concerned are paid adequate compensation which would represent a sufficiently dissuasive sanction for anti-trade union dismissals (para 586) available at http://www.oit.org/wcmsp5/groups/public/---africa/---ro-abidjan/---sro-harare/documents/publication/wcms_227749.pdf

The following is also proposed;

(h) Insertion of new section 108A in Cap 28:01 Protection Against anti-union discrimination

  The principal Act is amended by the insertion of section 108A after section 108   as follows:

(1)  Every employee shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.

2). Such protection shall apply more particularly in respect of acts calculated to--

(a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;

(b) Cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities which includes strikes, transfer, selective dismissal   or such other concerted action.

3) Any employer who contravenes subsection 1 and 2 shall be guilt of an offence and liable to a fine under level 14 or to imprisonment for a period of 5 years or to both such fine and imprisonment.  In addition, the Labour Court shall order payment of adequate compensation to an employee affected by acts of anti-union discrimination.