The Sunday Mail
President Mnangagwa has declared “Zimbabwe is open for business”.
But as the nation shares this mantra, it is also important to look at our current legal labour framework and ask if it is not archaic and anti-business.
It is an indisputable fact that our labour laws are skewed in favour of the employees and do not take cognisance of productivity and the capacity of companies to pay in the event of a worker winning a labour dispute.
The Labour Act (Chapter 24:01) that we have was a result of painstaking work to sanitise and humanise the blatantly racial Rhodesian labour laws.
In 1980, the Government intervened adopted a number of policies to promote and protect the workers who had been subject to ill-treatment and exploitation by the white.
It enacted the Labour Relations Act No. 16 of 1985, which protected workers.
The process of the enactment of the Labour Relations Act is christened as redress of the wounds of colonialism.
We had the Master and Servant Ordinance Act of 1901 and later the Native Pass Act that was there to suppress the employees.
Therefore, the triumph of majority black rule in 1980 led to the formation and empowerment of the Zimbabwe Congress of Trade Unions, a labour body whose mandate was to fulfil the Zanu-PF war wishes of empowering the workers.
It successfully managed to drive pro-employee legislation but on the unfortunate position that the employer was a marauding predatory capitalist bent on abusing and exploit the employee.
This was evidenced by the concerns and calls from Bretton Woods institutions to neo-liberalise the Zimbabwean labour market in early 1990s.
The Bretton Woods institutions argued that Zimbabwean labour laws were rigid; and hindered productivity and company competitiveness.
To that end, they prescribed the introduction of the Economic Structural Adjustment Programme (ESAP).
In spite of the Government and the world conceding that the Zimbabwean labour law was anti-business, by his own admission, former president Mr Robert Mugabe at the burial of the late Vice- President Dr Joshua Nkomo, said: “The concoction (ESAP) has not worked and Government was deceived.”
Therefore, the whole process to neo-liberalise the Act was reversed.
Since 1985 all the subsequent amendments 12/1992, 20/1994, 22/2001, 17/2002 and 5/2015 of the Acts over-protected the employee.
Gone were the days when employers abused employees.
But it is prudent, in the wake of opening the country to business, we consider that those who are bringing their investments also need a fair labour market.
To modernise the laws, there is need to neo-liberalise the labour market and protect the employers as well.
I will pick a few pointers in the current Labour Act that I have seen to need refining as we lay the ground for our investors.
The Labour Act, Sections 4 to 7 Chapter 28:01, provides for the fundamental rights of employees which are employees’ entitlement to membership of trade unions and workers’ committees; prohibition of forced labour; protection of employees against discrimination; protection of employees’ right to fair labour standards and protection of employees’ right to democracy in the workplace.
The contention is why there is no similar provision in the Act for employers. Do employers not have rights?
The South African Labour Relations Act of 1995, for instance, has Sections 6 and 7, which provide for the fundamental rights of employers. Employers also bemoan what they perceive as excessive leave day provisions in the Labour Act.
The Act allows employees 180 days as sick leave, 30 days’ vacation leave, 12 days special leave and 98 days maternity leave.
The argument is that an employee can be on paid leave for 320 days of the 365 days in a calendar year. An employee works 264 days per year assuming he or she is working on public holidays.
The enactment of the HB7 of 2017 was clearly an indication that the law is just against the employer after it advocated retrospective application of the law, which simply means compensation of employees whose contracts were terminated after Zuva Petroleum vs Kingston Donga and Another judgment.
There was a curtailment of the employer’s right to terminate an employment contract by notice.
The Amendment Act, therefore, unnecessarily limits enjoyment of an employer’s fundamental rights without reason, fairness or justification.
The effect of this section, therefore, is that all the notices that were given by employers to employees after July 17 2015, which notices at the time were legal, are now illegal by retrospective application.
Section 5 of the Amendment Act No.5 of 2015 created a new Section 12C (2), which sets a minimum mandatory retrenchment cost for every employer, who retrenches one or more employees.
The blanket fixing of a “minimum mandatory retrenchment cost” is contrary to the rule of law principle as enshrined in the Constitution, which prohibits arbitrary laws and arbitrary law making.
Fixed minimum retrenchment package is unreasonable. It does not take into account different businesses operating in different sectors of the economy and treats every business as homogeneous.
It does not consider size of business, or ability to pay and other critical yet varying factors. There is no reason to pay retrenchment packages since employees were already entitled to other benefits.
Besides the process itself being cumbersome business struggles in understanding the rationale behind a retrenchment package. The business is saying I am no longer able to pay my employee because the company is struggling, but then the law comes in and say give a package.
A retrenchment payment should be laid down by law as it is in South Africa where employers pay for no more than two weeks’ salary.
Thus, our investors are already contributing and putting figures aside for your retirement and even if you choose to leave employment today, your pension leaves with you.
The minimum notice period of three months for permanent employees seeking to terminate their contract of employment should be reduced to about one month.
Longer notice periods should be by agreement because it defies logic to keep paying a person who is no longer interested to be at that company.
Chances are that such persons will not commit themselves fully to duty and in most cases take the remainder of their leave days and get paid for doing nothing.
Also why are probationary periods fixed? This probation is skewed in favour of the employer, so why not allow the employer to determine the length of probation period, which period should by agreement be extendable for a further three months.
Why should an employer be stuck with an employee for three months when that worker has shown in the first months to be unable to match the required skills.
Employees are, thus, forced to continue paying a person who is underperforming and only get a chance to get rid of the worker after three months.
The issue of sick leave should be reduced from the current excessive level of 90 days on full pay and 90 days on half pay to a more manageable level of about 30 days per annum.
It must be noted that the employer exists to make a profit and to survive.
Therefore, it does not make any sense to pay someone for 180 days whilst that person is not productive.
There is also no any justification why a company has to pay full salary to any employee on maternity leave.
It should be the duty of the social security companies to cater for the cost.
If vacation leave is to be addressed at all, it should merely be moved from 30 calendar days to the equivalent number of working days in a month – 22 for a five-day week and 26 for a six-day week.
The Act should be amended to allow an appeal to suspend the determination being appealed against which is the common law practice.
There should only be one employer representative organisation and one union registered for each sector or sub-sector.
Two or more bodies representing the same interests is a recipe for disaster.
In conclusion, one of the proponents of the pro-employer perspective is Munyaradzi Gwisai. In the preface of his book “Labour and Employment Law in Zimbabwe: Relations of Work under Neo-Colonial Capitalism”, Gwisai writes that “…through the combined struggle of unions, socialists and progressive parliamentarians, we were able to drive many provisions in the Labour Act of 2002”.
This means, yes, it is clear that the labour law is anti-business and favours the employees.
Gwisai further asserts that workers have won “important victories” as shown in many provisions of the Labour Act such as the incorporation of the Export Processing Zones employees, strengthening the jurisdiction of the Labour Court, remedies available for unfair dismissal and improved maternity rights.
Brenald Chinyowa is a human resources practitioner. He wrote this article for The Sunday Mail. Feedback [email protected]