Introduction
The Labour Amendment Act No. 11 of 2023, which came into effect on 14 July 2023, was promulgated to align the Labour Act (Chapter 28:01) with the Constitution of Zimbabwe and the international labour standards duly ratified by Zimbabwe. This article provides a brief overview of the provisions of the Labour Amendment Act.
Protection from violence and harassment in the world of work
Prior to the Labour Amendment Act, the Labour Act did not provide definitions of the words “violence” and “harassment”. The Labour Amendment Act broadens definitions and protection of employees against sexual harassment and gender-based violence, and the scope of coverage extends to the world of work, which includes violence that occurs beyond the workplace. The Labour Amendment Act also criminalises sexual harassment and violence in the workplace. A person can now be imprisoned for 10 years for sexual harassment and violence in the workplace. This sanction applies to any person, which means that non-employees can face criminal prosecution for sexual harassment and violence that occurs in the workplace, if such acts are committed against an employee. The Labour Amendment Act further prescribes dismissal as an appropriate penalty for an employee who is found to have committed sexual harassment and violence.
The provisions dealing with sexual harassment and violence in the workplace are a welcome development due to the protection the legislation provides to employees. The provisions also bring Zimbabwe’s labour laws in line with international best practices for effectively addressing and combating sexual harassment and violence.
Forced labour prohibition
Forced labour refers to any work or services which an individual is required to perform against their will under the threat of some form of punishment. Prior to the Amendment, the Labour Act stated that no person shall be required to perform forced labour. The Labour Amendment Act introduces an amendment relating to forced labour and makes a clear distinction on what does not constitute forced labour. According to the Act, forced labour does not include any work for compulsory military service, any work forming part of normal civic obligations, any work done in fulfilment of a Court arising from a conviction provided that is supervised by Zimbabwe Correctional Services (community service), and any work done by a public service during an emergency such as war, pandemics and natural disasters.
Prohibition of discrimination in employment and occupation
Previously, the Labour Act stated that no employer should fail to pay equal remuneration to male and female employees for work of equal value. The Labour Amendment Act specifies equal remuneration for male and female workers and prohibits employers from paying differentiated wages based on sex or gender for work of equal value. This means that if two workers perform work that is of equal value for their employer, they should receive the same pay, regardless of any differences in their gender or sex. Employers must take proactive steps to ensure that their pay practices are fair and equitable as the Labour Amendment Act outlaws discrimination based on sex or gender.
Changes to the law on termination of employment
The Labour Amendment Act No. Act 5 of 2015 explicitly prohibited the termination of permanent employers on notice. Section 12 of the Act is amended and provides for termination of employment at the instance of an employee only on retirement or resignation. Termination of employment at the instance of the employer shall only be where the employee has breached an express or implied term of the contract of the employment. Such breach should be followed by a disciplinary process in terms of a code of conduct or in such other manner that may have been agreed to by employer and employee prior to the breach. Although this seems to insinuate that the employer can end an employment contract only through either a mutual separation agreement, or through the code of conduct, the Labour Act provides for other methods such as the employer ending a contract of employment after an employee exhausts his sick-leave days (Section 14) and termination of employment through a retrenchment exercise (Section 12C of the Labour Act, as amended).
Changes to the retrenchment law
The Labour Amendment Act sets out the retrenchment procedure to be followed by an employer who wishes to retrench any one or more employees. It places an obligation on the employer to pay a retrenchment package, upon retrenchment and that such obligation is fulfilled. Employees will also have the right to make representations to the Retrenchment Board in circumstances where they allege that the employer has capacity to pay a higher package, i.e., appeal against minimum retrenchment package. The provision however does not provide a timeframe within which the retrenchment package should be paid. Guidance is also not provided on how the minimum retrenchment package is calculated, unlike the previous section 12C, which provided that the minimum retrenchment package was calculated as 2 weeks salary for each year served.
Maternity Leave
One of the drastic changes that brought about by Labour Amendment Act is the regulation of maternity leave. Prior to the amendment, the sections regulating maternity leave provided for a qualifying service before one would be entitled to go on maternity leave, that is, a female employee was required to serve an employer for at least one year before qualifying for maternity leave. The Labour Amendment Act has done away with this requirement. This means that every female employee will be able to enjoy 98 days of paid maternity leave, irrespective of the period of service to an employer.
The removal of the qualifying service also means that employees in fixed-term contracts are entitled to enjoy the maternity leave benefit in the same manner as permanent employees.
The Amendment also removes the maximum number of times for taking maternity leave. Before the amendment, a female employee could only enjoy maternity leave on full pay for a maximum of three periods of maternity leave with one employer. Number of maternity leaves accorded is now unlimited.
Contracts for Hourly Work
This is a new provision which gives flexibility for employees on hourly work and prohibits the employer from denying an employee an opportunity to work elsewhere to cover the hours not contracted for. If an employee is employed hourly for more than two months then they must be paid an equivalent of the minimum wage. The Labour Amendment Act assumes that if a person is tied on an hourly contract for that long, they are restricted from looking for alternative permanent employment and their income earning capacity is diminished. Employers are prohibited from employing employees on an hourly rate if a collective bargaining agreement prohibits such. This provision protects employees and ensures that those on hourly work contracts are not exploited.
Paid Educational Leave
Previously, this area was regulated by company policies and companies that did not have such policies would compel their employees to take vacation leave for educational purposes. The Labour Amendment Act adds a new scope for the processes of a Collective Bargaining Agreement (CBA). It stipulates that in addition to the other elements of mutual interest that can be included in a CBA, parties can negotiate conditions for paid educational leave at the employment council. This is a positive change that promotes the professional development of employees.
Dispute Resolution
Powers of labour officers have now been restored and they have the jurisdiction over labour disputes and any party aggrieved can approach a labour officer. There is room for reference to compulsory arbitration where there is a dispute of interest or a case of unfair labour practice, with the rules of arbitration under section 98 applying thereafter. Labour officers now have an overriding jurisdiction where if a Designated Agent is given a dispute and does not act within 30 days, the labour officer takes over. This fosters access to justice where there are no designated agents for the National Employment Council (NEC), as well as situations of inordinate delay. Where a labour dispute is referred to a labour officer and the same is not settled within 30 days, the labour officer shall be required to issue a certificate of no settlement. A certificate of settlement can now be registered for enforcement as a civil judgment.
Employment Codes of Conduct
The Labour Amendment Act provides that every registered employment code of conduct shall be reviewed after every five years. The provision introduces a deeming provision to the effect that a registered code of conduct that is not reviewed within three months from expiration shall be deemed to be deregistered. There is therefore an obligation on the part of every employer and employee or the NEC to review a code of conduct and to register it. A deregistered code is void. It is important to note that this provision does not apply retrospectively, as such it started to apply from 14 July 2023, going forward. So, it is on 13 July 2028, that most codes of conduct will need to be reviewed.
An establishment whose registered code of conduct has expired will have to revert to the NEC code if one is available and if none exists, the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 will have to be followed until a new code of conduct is bargained and registered.
The new provision of codes of conduct safeguards employees from being terminated under unfair and outdated codes of conduct, which do not consider the changes in national and international labour standards.
Employment of Young Persons
The minimum age for apprenticeship and for other employment in Zimbabwe is 16 years. The Labour Amendment Act has increased the penalty for employing young persons in violation of the Labour Act. Imprisonment for such a violation is to be ten years up from the previous provisions that stipulated two years whereas the fine is to be level 12 from level 7.
Conclusion
The Labour Amendment Act No. 11 of 2023 has afforded some protection to employees against unfair labour practices such as forced labour, violence and harassment and unfair retrenchments. It is essential that organisations understand and comply with it in order to operate ethically, protect employees’ rights, maintain a positive work environment, and mitigate legal and reputational risks. It is advisable for organisations to regularly review labour laws, seek legal counsel where necessary, and implement policies and procedures that align with the labour laws. Organisations ought to be mindful of the Labour Amendment Act to ensure that they comply with legal regulations such as the provisions relating to violence, harassment and gender anti-discrimination and equal pay for equal value. When organisations provide a safe and fair working environment, employees are more likely to be motivated, engaged, and loyal.
