A COMMENTARY ON THE CHANGES BROUGHT ABOUT BY AMENDMENT ACT No 11 OF 2023
The Labour Amendment Number 11 of 2023 brought several changes to the previously existing legal regime. Some of the changes include impact on what maternity leave can accrue to an employee as well as the introduction of education leave. Notable changes have also been introduced to the laws governing retrenchment and termination of employment in general.
Also of interest are the far-reaching provisions which impute liability on directors for conducting the affairs of a retrenching business in a reckless, negligent, or fraudulent manner. The new Act also introduces some changes to the labour dispute resolution mechanism. We interrogate some of the changes in detail below.
New definition of gender-based violence and harassment
The Amendment has introduced, in section, the definition of “gender-based violence” as:
“…violence and harassment directed at persons because of their sex or gender or affecting persons because of their sex or affecting persons of a particular sex or gender disproportionately and includes sexual harassment.”
Under the Act, sections 6 and 8 already prohibited a few practices which are deemed unfair labour practices. However, there is a new section 6(3) of LA which adds violence and harassment as forms of unfair labour practice. Under the section, “violence and harassment” refers to:
“a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment.”
Employment of young persons
A child is defined as any individual under the age of eighteen (18) in terms of section 81 of Zimbabwe’s Constitution. Thus, for the purposes of the Labour Act, anyone under the age of 18 is considered a young person, and employing such a person is illegal.
Child labour now carries a stiffer penalty. A 2-year penalty was previously issued against employers who hired young persons in terms of section 11(5) of the Act.
However, latest amendment has changed this position by stating that a person will be sentenced to ten (10) years which is a harsher penalty compared to the previous position.
Changes in the definition of “forced labour”.
Section 4A (2)(3) of Act is repealed and replaced by new sections (2) and (3) of the New Act. Section 2 sets the list of ‘forced work’ that is deemed to be not forced labour. Under the previous regime, “labour required by way of parental discipline” was not forced labour.
Further, there would be no forced labour if the “labour [was] required by virtue of an enactment during a period of public emergency or in the event of any other emergency or disaster that threatens the life or well-being of the community, to the extent that the requiring of such labour is reasonably justifiable in the circumstances of any situation arising or existing during that period or as a result of that other emergency or disaster, for the purpose of dealing with that situation”.
The amendment is meant to align our labour laws with the ILO Convention on Forced Labour.
Obligation on the employer to pay equal salaries to employees regardless of gender.
A minor change is brought to section 5 of the Act. Previously, section 5 (2a) stated that,
“No employer shall fail to pay equal remuneration to male and female employees for work of equal value.”
The new section 2A places a positive obligation on the employers that:
“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”
CHANGES TO THE LAW ON TERMINATION OF EMPLOYMENT
The old section 12 (4a) of the Labour Act is repealed and substituted by a new section. Under the new section 12 (4a) of the LA, a contract of employment may be terminated only on the part of the employee by his or her resignation or retirement.
The employer can terminate only an employment contract by:
(a) By mutual agreement,
(b) for breach of an express or implied term of the contract upon such breach being verified after a due inquiry under an applicable code of conduct or
(c) in any other manner agreed in advance by the employer and employee concerned. This means that the parties may agree on the manner of termination of employment at the time of signing the contract.
CHANGES TO THE RETRENCHMENT LAW
Various sweeping changes are brought by the Act to the retrenchment laws. Under section 3(a) of Act, an employer who intends to retrench one or more employees or has negotiated with his or her employees a retrenchment package better than minimum retrenchment package is required to do the following under the new retrenchment laws:
- Give 14 days’ written notice to the Works Council and to the NEC if most employees agree or if there is no Works Council.
- The notice or agreed retrenchment package must also be served to the Retrenchment Board.
- In addition, in the absence of an agreed retrenchment package, together with the notice of intention to retrench, the employer will be required to provide the works council or employment council and the Retrenchment Board, the employer must provide details of every employee intended to be retrenched and the reasons for the proposed retrenchment.
- Within 14 days from the date of the retrenchment, the employer is required to notify the retrenchment board of the following:
- The retrenchment and the particulars of any agreed retrenchment package.
- The retrenchment board must issue a notification certificate, which signifies its satisfaction that the agreed package is better than the minimum retrenchment package, within 14 days from the date when the employer notifies it (the retrenchment board) of its intention to retrench. New retrenchment laws Section 12C
- The employer and employee/s, after the notice to retrench, may discuss a package better than the minimum package. If an agreement for an agreed package is made, it must be signed for. If an agreement is secured, including the date or dates when the agreed package is to be paid to the employees, the agreed retrenchment package is supposed to be paid to the employees on the agreed day or days. The agreed package must be notified to the retrenchment board no later than the end of the notice period or within seven days after the expiry of the notice.
- If the employer and employees do not agree on an agreed retrenchment package, the employer must inform the retrenchment board within 14 days from the date when the employee/s is retrenched of the fact that the minimum retrenchment package is being or is to be paid and the details of every retrenched employee. Within those 14 days of being notified of the retrenchment, the Retrenchment Board is required to issue a notification certificate (i.e. a certificate to the effect that the Board is satisfied that the agreed package is better than the minimum retrenchment package). It is now a requirement for the retrenchment board to issue a certificate of notification on its retrenchment notice board or virtually for seven consecutive days.
- Further, if there is a question in any judicial or other proceedings whether the Retrenchment Board issued a notification certificate to the employer, an affidavit by the employer to the effect that he or she notified the retrenchment board shall be a prima facie proof of such.
- If the employer fails to notify the retrenchment board of the minimum or agreed package on the 21st day after the employee or employees are retrenched, the employees or their representative may enforce payment of their package as per provisions of s12C (6 and (7) of Act. We shall summarise below the procedure provided for in terms of section 12C (6) and (7) of the Act.
- The employer will be given an opportunity to be heard before the retrenchment board. If no representations are received, or the retrenchment board is satisfied that compliance has not been made, the Retrenchment board must issue a certificate of non-compliance and state the extent of non-compliance. This is important in that it allows the employees to proceed with the enforcement of the retrenchment package.
Enforcement of the retrenchment package
This procedure is provided for in terms of section 12C (6) and (7) of the Act. The procedure can be summarised as follows:
- Once a notification certificate is issued, the retrenchment package to which the certificate relates, shall be binding on the employer and the employees. If the employer fails to pay the package and a notification certificate and a non-compliance certificate have been issued, the employee or employees or their representative shall apply to the Labour Court for an order enforcing the package based on a non-compliance certificate (liquid document).
- The application for registration or enforcement is dealt with in the way default judgment applications are dealt with, and the same procedure for liquid claims in the Magistrates Court or High Court is used.
- Upon obtaining such an order of registration, apply for registration again, depending on monetary jurisdiction, to the Magistrate Court or the High Court. Once the retrenchment decision is registered, it becomes a civil judgment and enforceable like any normal civil judgment.
- If an employer alleges incapacity to pay, it must, within 14 days of retrenchment of the employee, notify the retrenchment board of the amount it is able to pay, which must not be less than 25% of the total package. Failure to pay the 25% plus as certified in the notification certificate by the retrenchment board will result in the employee being entitled to invoke the procedure for enforcement of the retrenchment procedure in respect of the portion they agreed or mandated to pay.
Applications for exemption where there is no capacity to pay minimum retrenchment package.
Where there is incapacity on the part of the employer, it must apply to the employment council or retrenchment board for exemption of the portion of the retrenchment package it cannot pay within fourteen days of the retrenchment. There must be documentary evidence of incapacity to pay. The employment council or retrenchment board has the power to request additional information in determining the incapacity. The application for exemption, together with its supporting documents, must be served on employees or employees.
Determination of the application for exemption by the employment council or retrenchment board.
- There will be an oral hearing, which is preceded by the written submissions filed by the parties. The application for exemption must be disposed of within 30 days of the date of receipt of the application.
- A party aggrieved by the failure of the retrenchment board or employment council to issue a determination shall within thirty days may appeal to the Labour Court. After the expiry of thirty days, if no determination is made, an appeal shall be made within 21 days to the Labour Court.
- An employer who purports to retrench any employee without giving notice of the retrenchment board is guilty of an offence and liable to a level 12 fine or if failed to pay a fine within six months, to be imprisoned. Any member of the governing body of a corporate employer can be imprisoned for this offence.
Determination of appeal for the enhanced package by the employment council or retrenchment board.
The employment council or retrenchment board is mandated to make its decision within thirty days of receipt of the application for exemption. The employment council or the retrenchment board is required to call for a hearing. The employer is required to disclose its audited financial statements. The Retrenchment Board may call the employer to answer for specific allegation concerning its ability to pay an enhanced retrenchment package made by any employee or group of employees or representative.
Appeal against minimum retrenchment package.
If the employer indicates that they intend to pay a minimum package or a portion of one to the employees or any trade union representing retrenched employees or employee or employees being retrenched, write to the retrenchment board claiming that the employer has the capacity to pay an enhanced retrenchment package, providing details of any proof to that effect, and specifying the amount.
Contempt of Court for failure to comply with the determination of the employment council or retrenchment board.
- Any employer may be found guilty of contempt of court if they do not disclose audited financial statements or fail to respond to specific allegation concerning their ability to pay an enhanced retrenchment package.
- If an employer alleges partial or total incapacity to pay minimum retrenchment and it emerges that there are indications prompting a reasonable suspicion that the employer deliberately stripped the assets of the business or otherwise degraded it in contemplation of retrenchment, or that the business of the employer was or is being carried on recklessly or with gross negligence or with intent to defraud any person or a fraudulent purpose; the retrenchment board or employment council has powers to commence an inquiry.
- The employer is required by affidavit to answer such allegations. The Employment Council or Retrenchment Board can issue a provisional statement setting forth its grounds for believing that the employer’s business was being done in contravention of section 12C (1) of the Act. Such a provisional statement must be served on the employee and employer concerned. After receiving the statement, a trade union representing retrenched employees with written authority or any of the retrenched employees may on notice, the employer applies to the Labour Court.
Personal liability of the directors for reckless conduct in relation to a company which retrenches its employees.
- This is governed under a new section 12CC of the Act.
- Firstly, there must be indications (at the instance of the employee or a trade union) before the Retrenchment Board which prompt a reasonable suspicion that the business of the employer was or is being carried on recklessly, with gross negligence or with intent to defraud any person or for a fraudulent purpose.
- The Retrenchment Board will invite the employee to respond to the allegations by way of affidavit.
- The Retrenchment Board or Employment Council, it satisfied; may then issue a provisional statement setting forth the grounds on which it believes that the business of the employer was being carried on recklessly or negligently or with intent to defraud any person.
- Upon receipt of the provisional statement, the trade union or the retrenched employee is supposed to file an application to the Labour Court to seek confirmation of the statement and to seek a declaration the named person is liable to pay the total amount of the minimum retrenchment package.
- The whole purpose of naming persons in the declaration is to ensure that the persons so named must be personally responsible, without limitation of liability for the total amount of the minimum retrenchment package on the basis of joint or several liabilities, or as the court may direct and the court may give such further orders as it considers proper for the purpose of giving effect to the declaration and enforcing liability including an order.
- The person named in the declaration application must be afforded an opportunity by the Labour Court to rebut any allegations against him or her on a balance of probabilities.
- If the application is confirmed, the Labour Court may order payment of the minimum retrenchment package to every retrenched employee and for the payments of the application by the employer or any named person. The order granted by the Labour Court may, depending on the monetary jurisdiction, be registered by the Magistrate Court or High Court.
There is no requirement for a qualifying service anymore. One year is no longer there. There is no longer a requirement for a two-year interval and a maximum of three pregnancies while employed by one employer. The challenge is that the Labour Act does not put then mechanisms to protect the young-bearing women from apparent likely discrimination emanating from the above provisions.
CONTRACTS FOR HOURLY WORK
- This a new provision, section 18A of the LA. The employer can now employ an employee to work for specific hours and have the same employee working for another on unpaid hours. If the employee is only employed by a single employer and is being paid hourly rates, their remuneration in two consecutive months must not be less than the minimum wage or remuneration as fixed in a CBA for the undertaking.
- Employers are prohibited from employing employees on an hourly rate if a collective bargaining agreement prohibits such. The good part of these provisions is that employers who require less hourly input from certain employees may share the burden with the other employer. However, the limitation is that if that employee is not taken on board by another employer, the employer who has the employee on an hourly rate bears the burden to pay the differences.
CHANGES TO THE CONCILIATION PROCESS AS A DISPUTE RESOLUTION MECHANISM
- The old section 93 is back with some changes. The labour officer can conciliate a dispute or unfair labour practice and if agreed by the parties, refer the same to arbitration. If the dispute is settled through conciliation, the labour officer must record the settlement.
- A certificate of settlement can now be registered for enforcement as a civil judgment. Certificate of no settlement and referral to arbitration. If there is no settlement within 30 days after the Labour Officer has begun to attempt to settle a dispute of an unfair labour practice, he/she shall issue a certificate of no settlement to the parties. However, parties to dispute may agree to extend the conciliation period.
- After issuance of a certificate of no settlement, the labour officer is required to consult any senior labour officer who is senior to them and who is responsible for the area, and may do the following:
- Refer the dispute to compulsory arbitration if the dispute is a dispute of interest, and the parties are engaged in essential services.
- With the agreement of the parties, refer the dispute or unfair labour practice to voluntary arbitration.
- refer the dispute or unfair labour practice to compulsory arbitration if the dispute or unfair labour practice is a dispute of right.
The arbitration procedure set under section 98 of the Act applies to compulsory arbitration, while the Arbitration Act [Chapter 7:15] applies to voluntary arbitration.
Parties can now negotiate for paid education leave at the employment council or works council. See section 74(3) (o) of the Labour Act and s26 (a) of the new LA. The legislature left this for parties to agree but the bottom line is it is a negotiable variable.
EMPLOYMENT CODES OF CONDUCT – REVIEW AND DEREGISTRATION THEREOF
There is an automatic right to appeal now for any proceedings under an employment code to a labour officer within 30 days of the conclusion of the proceedings, whereupon the labour officer shall attempt to conciliate the dispute or refer it to arbitration as per section 93 of the new Act. All registered codes are now reviewable every five years. In review, the code must comply with the requirement of section 101 of the LA.
After the expiry of the five years, a registered employment code of conduct which has not been reviewed within three months from the date of expiry is deemed deregistered.