Over the past decade, Zimbabwe’s Labour laws have been evolving in a bid to meet the changes in the modern economy. One of the major developments include the Labour amendment bill 2021 which has been of major interest among Zimbabweans. This article seeks to highlight key aspects that an employer might be interested to know.
Employment of young persons
1. With the growth of population and high demand of jobs by a learned population, the past decade has seen young persons below the age of 18 years being employed. Among the reasons for the employment of young persons, includes availability of cheap labour.
2. The new labour law on employment of young persons, seeks to curb this by increasing the penalty a person found guilty of conducting child labour. Currently in terms of section 11(5) of the Act a 2 year sentence is imposed against persons who employ young persons.
3. However, the labour bill seeks to change this position by that a person will be sentenced to to ten years with a view to providing a more deterrent sanction given the backdrop of increasing trade sanctions on goods produced in child labour prone markets.
Payment during maternity leave
4. Zimbabwe has experienced a wave on women empowerment in the past decade. This has greatly influenced the development of our laws, particularly in labour. In this case, women have always been perceived as subject to victimisation or somewhat discrimination when it comes to pregnancy during the course of employment contract.
5. Currently in terms of section 18 maternity leave is granted for a period of ninety-eight days on full pay to a female employee who has served for at least one year. A female employee enjoys a maximum of three periods of maternity leave with respect to her total service to any one employer.
6. In this case, the labour bill seeks to amends section 18 of the Labour Act to align it with section 65(7) of the Constitution. This is meant to ensure that women employees have the right to fully paid maternity leave for a period of 3 months by removing qualifying periods, prescribed intervals for maternity and a maximum number of times for enjoying the right to maternity leave under one employer as shown above.
7. There have been some ambiguities regarding Zimbabwe’s laws in retrenchment of employees. The new labour bill appears to be pro employee. It seeks to protect employees from unfair labour practice arising from retrenchment by employers. In terms of the current section 12C, an employer has an option not to pay the minimum retrenchment package provided that an application for exemption is made to the Retrenchment Board, which will consider same.
8. In terms of the bill, it attempts to cover the difference between employees on permanent contracts and fixed term contracts by providing that an employer who employs the majority of his or her employees on fixed term contracts will have make use of retrenchment provisions when the contracts are terminated. The current section 12C does not give a clarity on the application of retrenchment between employees on fixed term contracts and permanent employees.
9. The labour bill also seeks to reduce the probability of employers who deliberately escape the obligation to pay full and better retrenchment package to their employees. The main idea for this change is to promote a more favourable retrenchment package for employees in the event that an employer is capable of paying above and better.
10. The particular changes sort relates to section 12C which is amended to provide essential definitions related to retrenchment which are not in the current section including ‘capacity to pay’; ‘employer’; retrench’ and makes provisions to ensure that employer’s obligation to pay the retrenchment package to his or her employees is fulfilled, taking into account any employer that deliberately diminishes his or her capacity to pay the retrenchment package and also making sure that employees are free to make representations to the Retrenchment Board where they allege that an employer has the capacity to pay a better retrenchment package than that offered.
11. The bill also provides a process for effecting enforcement of non-payment of a retrenchment package through the Labour Court. This comes with the need to protect employees from underpayment and unfair labour practice. In this case, it will be prudent for employees to adhere to same in order avert being found guilty of unfair labour practice. Further, there is a new section to ensure that employees do not evade having to pay retrenchment packages to their employees by fraudulently or recklessly conducting their business in a manner that renders the employer unable to pay such retrenchment package. The minimum retrenchment package has been set payable for not more than 60 days from the date of retrenchment.
Fixed Term Contracts
12. The labour bill also seek to bring changes in the interpretation of fixed term contracts. In terms of section 12 of the Act, it appears that a fixed term contract can be for any period including less than 12 months.
13. In this regard, the new changes in the bill seeks to amend section 12 of the Labour Act to unambiguously deal with the issue of the common law practice of termination on notice and also deal with issues of casualization by making provision that a fixed term contract cannot be for a period that is less than 12 months, unless the employment is for seasonal or causal work or for the performance of a specific service.
14. The proposed changes in the bill also indicate that any fixed term contract that purports to be for a period off less than twelve months shall be deemed to be a contract for an indefinite period. The only issue that may arise to this proposed change relates to the practicability of this change to employers.
15. The bill also seeks to introduce a law that obligates an employer to pay retrenchment package to employees on fixed term whose employment has terminated by expiry of such term. This is made applicable to employers with a majority of employees on fixed term contracts.
Contracts for hourly work
16. The bill seeks to restrict employers from engaging employees on terms that the employee is be paid only for the hours that such employee actually works. In this case the following conditions are considered;
a. An employer is not allowed to engage an employee on hourly contracts if the terms that prohibit such employee from being employed by another employer or on his or her own account, during the hours when he or she is not working for the first mentioned employer;
b. An employer is not allowed to engage an employee on hourly contracts if the effect of such contract is that in any consecutive period of two months the employee earns less that the minimum remuneration or wage fixed in a collective bargaining agreement as the minimum rate of remuneration or minimum wage for the undertaking or industry, and grade and type of occupation governed by that collective bargaining agreement, in which event the employee concerned shall be entitled to be paid the difference between what he or she has earned in that period of two months and one month’s remuneration or wage;
c. An employer is not allowed to engage an employee on hourly contracts if such contracts are prohibited by the collective bargaining agreement governing the undertaking, industry and grade and type of occupation.