The Sunday Mail
Tapiwa Kasuso and Rumbidzai Ngwenya
ON March 11 2020, the World Health Organisation (WHO) declared Covid-19 a global pandemic and immediately urged members to take drastic measures to combat the disease.
In response to the call, Zimbabwe enacted the Public Health (Covid-19 Prevention, Containment and Treatment) (National Lockdown) Order, Statutory Instrument 83 of 2020 (SI 83 of 2020), which imposed a national lockdown for 21 days starting on March 30.
The lockdown was extended further to May 17 2020 by the Public Health (Covid-19 Prevention, Containment and Treatment) (National Lockdown) (Amendment) Order 2020 (No. 4) Statutory Instrument 94 of 2020 (SI 94 of 2020).
The national lockdown closed all business activities except for those engaged in essential services.
Essential services are defined in Section 102(a) of the Labour Act as “any services the interruption of which endangers immediately the life, personal safety or health of the whole or any part of the public”.
Examples of such services include health care services, designated transport services, supply and distribution of electricity, supply of water, sewerage and sanitary services, fire brigade, coal mining and distribution of fuel and food, among others.
SI 94 of 2020 broadened essential services to include mining and manufacturing sectors. Workers engaged in essential services continue reporting for duty despite the risk of Covid-19.
It is, therefore, necessary to consider the legal position of such employees’ right to safe and healthy working conditions, the legal obligations of employers towards employees rendering services in the wake of the Covid-19 pandemic, which has since been categorised by the International Labour Organisation (ILO) as an occupational disease.
The right of workers to safe and healthy conditions of work owes its origins to international law. Zimbabwe is a member of the ILO. In 2003 it ratified the ILO Occupational Safety and Health Convention 155 of 1981 (OSHC), whose provisions must be read with the Occupational Safety and Health Recommendation 164 of 1981 (Recommendation).
The OSHC and its accompanying Recommendation provide guidelines on how the right to safe and healthy working conditions can be regulated in national frameworks.
The right is rooted in the contract of employment and the employer’s liability arises in the context of an employment relationship.
It is based on the employer’s control of the workplace and activities conducted therein. The OSHC applies to all employers and employees, both in the private and public sector.
Furthermore, it creates several rights for employees and duties of employers in respect of occupational health and safety.
These include the following: employers must ensure that the workplace, machinery, equipment and processes are safe and without risk to health; employers must ensure that chemical, physical and biological substances and agents are without risk to health; employees must be provided with adequate protective clothing and protective equipment, and employers have a duty to provide adequate measures to deal with emergencies and accidents including first aid arrangements.
The OSHC creates other related rights. For instance, employees or their representatives have a right to information on measures taken by the employer to secure occupational safety and health, and the right to training in occupational health and safety.
The occupational health and safety measures in the OSHC are solely at the expense of the employer. In the event of breach of the duty to provide a safe and healthy working environment, Article 13 of the OSHC gives employees the right to withdraw their labour.
Other relevant international instruments on the right include, the United Nations Declaration of Human Rights; International Covenant on Economic, Social and Cultural Rights, and the SADC Charter on Fundamental Social Rights. Recently, the ILO issued the March 2020 Guidelines on Covid-19 to help employers strengthen occupational health and safety at the workplace.
Zimbabwe’s common law and statutory framework recognises workers’ rights to occupational health and safety. Section 65(1) of the Constitution entrenches the right to safe labour practices and standards. In addition, Section 65(4) of the Constitution provides that every employee is entitled to just, equitable and satisfactory conditions of work.
This includes the right to occupational health and safety. The Constitution does not define the right. Neither does it set out its content and scope. The Labour Act gives effect to the constitutional right to safe labour practices and standards. Specifically, Section 6(1) (d) of the Labour Act provides that, “no employer shall require any employee to work under any conditions or situations which are below those prescribed by law or by conventional practice of the occupation for the protection of such employee’s health or safety.”
Section 6(1) (d) of the Labour Act is couched in broad terms but does not give details of the right to safe and healthy labour practices like what the OSHC does. In its preamble the Labour Act states that one of its objectives is to give effect to the obligations of Zimbabwe as a member state of the ILO. Since Zimbabwe ratified the OSHC, the right to a healthy and safe workplace in Section 6(1)(d) of the Labour Act and Section 65(1) and (4) of the Constitution must be interpreted widely to include practices established in the OSHC.
Therefore, it can be implied that workers who are required to work during the pandemic are entitled to the following rights. Firstly, workers must be provided with adequate protective clothing and protective equipment. This includes the provision of the following personal protective equipment (PPEs): sanitisers, masks, surgical theatre gowns for health services, shoe covers, goggles, head caps and disposable plastic aprons and coats. Secondly, employers must enhance workplace safety management by reducing the number of employees at the workplace in any given period.
Social distancing at the workplace can be achieved lawfully through a shift system and short-time work. These measures are recognised in Section 12D (2) of the Labour Act. Where possible, workers can be required to work from home. The aim is to ensure that workplace gatherings do not exceed the permitted numbers.
Thirdly, employers must put in place screening and testing measures such as temperature checks before entry into the workplace.
This obligation can also be implied from the National Social Security Authority (Accident Prevention) (Workers Compensation Scheme) Notice No. 68 of 1990. This also requires that workplaces with high human contact and moving traffic are continuously disinfected, before, during and after work.
In addition, employees must be trained and educated on the Covid-19 virus. Suitable educational and awareness signs and posters must be displayed in critical areas. Lastly, workers have a right to information on the measures taken by the employer to secure occupational safety.
Thus, it is apparent that employers have the overall responsibility of ensuring that all practicable, preventive and protective measures are taken to minimise occupational risk of Covid-19.
On the other hand, workers are responsible for co-operating in the fulfilment by the employer of the occupational health and safety obligations placed on them, complying with prescribed safety measures, taking care for the safety of others — including avoiding exposing others to health and safety risks — and use safety devices and protective equipment correctly.
Breach of the workers’ rights to safe and healthy working conditions constitute an unfair labour practice as defined in the Labour Act. If employees reasonably believe that going to work puts them at serious risk and imminent danger due to Covid-19, including their commute, Section 104(2) of the Labour Act entitles such workers to summarily withdraw their labour.
This drastic action by workers is not breach of contract and the employees are not liable to discipline.
Furthermore, Section 6(2) of the Labour Act criminalises breach and imposes a punishment of a fine not exceeding level seven or imprisonment for a period not exceeding two years or both to such fine and imprisonment.
This shows the importance ascribed to the right by the legislature. Alternatively, an employee can sue for damages under the common law if he or she has suffered any loss or prejudice as a result of the employer’s breach.
Workers who are unfortunate to contract Covid-19 at the workplace can apply for sick leave in terms of Section 14 of the Labour Act. As for those who are required to be absent from duty on instructions from a medical practitioner because of contact with an infectious disease must utilise the special leave provision in Section 14B (a) of the Labour Act.
Employers must, therefore, complement Government efforts in fighting Covid-19 by ensuring that adequate measures are put in place to guarantee a workers rights to occupational health and safety.
Regrettably, Zimbabwean labour legislation is not flexible to deal with all issues associated with a global pandemic of this nature, thus putting essential services at risk. The nature and scope of the right is implied from the OSHC.
In 1998, in the wake of the HIV/Aids pandemic, the legislature saw it fit to enact the Labour Relations (HIV and AIDS) Regulations, 1998. These Regulations provided guidelines on rights of employees who had contracted HIV.
The Minister of Public Service, Labour and Social Welfare must exercise his/her powers in terms of Section 17 of the Labour Act and enact regulations which are tailor-made to deal with rights of employees and Covid-19 at the workplace. This would supplement the lack of detail in the Labour Act.
Tapiwa Kasuso is a legal practitioner and lecturer in the Faculty of Commerce and Law at the Zimbabwe Open University. Rumbidzai Ngwenya is a student in the Faculty of Social Sciences at the same university.
