BILL WATCH 36/2022
[10th August 2022]
The Labour Amendment Bill : Part 1
The Labour Amendment Bill was published in the Gazette on the 19th November last year and can be accessed on the Veritas website [link]. It is currently undergoing its second reading in the National Assembly, and the parliamentary portfolio committee on Public Service, Labour and Social Welfare has presented a report on it which can also be accessed on the Veritas website [link].
According to its long and informative memorandum, the Bill proposes to bring the Labour Act into conformity with the Constitution and with various conventions drawn up by the International Labour Organisation [ILO]. The Bill will also attempt to streamline the resolution of labour disputes and deal with issues such as labour broking and work-place violence and harassment. The Bill’s memorandum says the Bill is the product of extensive consultation with representatives of Government, business and labour: this is a welcome change from Government’s more usual practice of legislating without consulting interested parties.
In this, the first of two bulletins on the Bill, we shall look at the amendments designed to bring the Labour Act into line with the Constitution. In the next, Part 2, we shall examine other amendments the Bill will make to the Act.
The Constitution and Labour
We shall begin with what the Constitution says about labour matters and then see how far the Bill will go in aligning the Labour Act with the Constitution. The Constitution deals with labour and employment in several sections:
Section 24 in broad terms encourages all institutions of government to work towards:
· securing full employment,
· removing unnecessary restrictions that discourage employment,
· providing vocational guidance and training, and
· implementing measures such as family care that enable women to work.
Section 55 states that no one may be made to perform forced or compulsory labour.
Section 65 guarantees labour rights, including:
· The right to fair and safe labour practices and standards and to be paid a fair and reasonable wage,
· The right to form and join trade unions and employers’ organisations of choice and to participate in their lawful activities,
· The right to participate in collective job action, i.e. the right to strike, sit in and withdraw labour; a law may however restrict this right to maintain essential services,
· The right to equal remuneration for men and women who perform similar work, and
· For women, the right to at least three months’ fully paid maternity leave.
Sections 19 and 81 protect children from exploitative labour practices.
How far will the Bill go to implement these provisions?
Equal Pay for Equal or Similar Work
Section 5 of the Labour Act contains a provision obliging employers to pay male and female employees equally for work of equal value. Clause 4 of the Bill will replace this with a new provision which is substantially the same.
Comment: It is not clear what real difference the new provision will make to the existing law. It should be noted that it will not be a criminal offence for employers to discriminate between men and women employees in regard to pay. This looks like an inadvertent omission which perhaps should be rectified when the Bill undergoes its committee stage in the National Assembly.
Section 4A of the Labour Act prohibits forced labour, but lists several exceptions, i.e. types of compulsory labour or work that do not fall within the prohibition. Clause 3 of the Bill will add a further exception, taken from the ILO Forced Labour Convention 1930 (No. 29), which will allow people to perform “minor communal services” which are considered to be “normal civic obligations incumbent upon members of the community”.
Comment: The wording is taken from the ILO Convention, and it is not quite clear what it means.
The clause will also increase the penalty for making someone perform forced labour to a fine of up to level 12 (currently Z$200 000) or 10 years’ imprisonment or both.
Comment: It seems excessive: the current penalty (a fine of level 7 – currently ZS40 000 – or two years’ imprisonment) is quite enough.
Workplace Violence and Harassment
The Constitution guarantees the right to “safe labour practices”. Workplaces in which violence and harassment occur obviously infringe that right. Clause 5 of the Bill seeks to prohibit violence and harassment by making it a criminal offence, punishable by up to 10 years in prison, to “directly or indirectly act in a manner that amounts to violence and harassment towards another person at the workplace”. This is very vague and it is made even vaguer by the definition of “violence and harassment” which clause 2 will insert in the Labour Act:
“violence and harassment” … refers to a range of unacceptable behaviours and practices, or threats thereof, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm …”
Comment: The rule of law dictates that criminal offences must be clearly defined so that people know exactly what they can and cannot do. This offence certainly doesn’t meet that test. A further point is that the Bill does not impose criminal liability on an employer who does nothing to stop violence or harassment taking place. Employers should have a duty to stop it, and the duty should be enforced by a criminal sanction.
Clause 6 of the Bill will make workplace violence or harassment an unfair labour practice, but again it will not apply to employers who fail to stop violence or harassment.
Section 11 of the Labour Act mandates a fine of up to level 7 (currently Z$40 000) or two years’ imprisonment for employing young persons (i.e. persons under the age of 16). Clause 6 of the Bill proposes to increase this to a fine of level 12 (currently Z$200 000) or 10 years’ imprisonment or both.
Comment: Like the other penalties proposed by the Bill, it seems excessive. Illegal child labour will be stopped by rigorous enforcement of the law, not by high penalties.
Section 18 of the Labour Act states that women employees have a right to be granted at least 98 days’ paid maternity leave, but limits the right to women who have been employed for at least a year; the section also states that women have a right to only three periods of paid maternity leave while employed by any one employer. Neither of these two limits or qualifications is consistent with section 65(7) of the Constitution, which provides that women employees have a right to at least three months’ fully paid maternity leave without qualification.
Clause 11 of the Bill will amend section 18 of the Act by removing the two limits or qualifications.
Comment: The clause will not alter section 18(8) of the Act, which requires nursing mothers to be given at least two half-hour breaks a day to nurse their children. This is as close as the Act gets to providing for the family care mentioned in section 24 of the Constitution.
Although neither the Constitution nor the ILO mandate paternity leave – i.e. the grant of leave to fathers in order to assist mothers care for their newborn children. An increasing number of countries mandate such leave. Perhaps Zimbabwe should join the trend.
From what we have said in this bulletin, it is clear that the Bill will help to align the Labour Act with the Constitution. If most of the amendments we have outlined do not seem to be very major – apart, that is, from the amendments affecting maternity leave – that is probably because the Act is already largely compatible with the Constitution.
In Part 2 of this bulletin we shall deal with other amendments the Bill will make, some of them very important, which are unconnected with constitutional alignment.