Unions welcome Labour Bill terms

via Unions welcome Labour Bill terms | The Herald August 17, 2015 by Farirai Machivenyika

WORKERS have welcomed proposals in the Labour Amendment Bill that seek to take away employers’ right to unilaterally dismiss them on three months’ notice without benefits and provide for benefits for all employees who lost their jobs on the basis of the common law position which the Bill seeks to repeal. Clause 5 of the Bill says those who lose jobs on contract termination are entitled to minimum retrenchment benefits that include one month’s salary for every two years of service.

This will apply to both retrenchees in general and workers whose contracts were terminated on or after July 17, with employers required to pay up “no later than the date when the notice of termination of employment takes effect”.

Clause 5 repeals parts of Section 12C of the Labour Act dealing with retrenchment procedures and creates the compensation provision in 12C(2) which reads: “Unless better terms are agreed between the employer and employees concerned or their representatives, a package (hereinafter called ‘the minimum retrenchment package’) of not less than one month’s salary or wages for every two years of service as an employee (or the equivalent lesser proportion of one month’s salary or wages for a lesser period of service) shall be paid by the employer as compensation for loss of employment (whether the loss of employment is occasioned by retrenchment or by virtue of termination of employment pursuant to Section 12(4a)(a), (b) or (c), no later than date when the notice of termination of employment takes effect.”

Section 12(4a) prohibits employers from terminating an employment contract on notice unless such termination is in terms of an employment or model code.

It also makes termination possible where both parties mutually agree in writing, or if the employee was engaged for a fixed period.

Workers with open-ended contracts and whose employment is terminated in terms of subsection 4(a) will be eligible for compensation.

Clause 18 reads, “Section 12 of this Act applies to every employee whose services were terminated on three months’ notice on or after the 17th July, 2015.”

The Labour Amendment Bill was gazetted on Friday and will be brought to parliament for debate tomorrow.

Zimbabwe Federation of Trade Unions (ZFTU) president Mr Alfred Makwarimba, welcomed the gazetting of the Bill saying it would go a long way in alleviating the plight of the dismissed workers.

“We are still going through it but we are happy that Government has decided to stop the unilateral dismissals that have been going on and has also provided for the workers that were dismissed because most of them had not been given anything despite working for some of the companies for a long time,” he said.

Zimbabwe Congress of Trade Unions (ZCTU) secretary general Mr Japhet Moyo, said the decision to remove the common law provisions was progressive as it would bring sanity on the labour market.

“The removal of the common law provisions is progressive and we are also happy that people will be compensated although we are not happy with the quantum that has been proposed,” he said.

Clause 5 of the Bill says those who lose jobs on contract termination are entitled to minimum retrenchment benefits that include one month’s salary for every two years of service and this will also apply for people who lost their jobs on or after July 17 when the Supreme Court made the ruling that triggered a spate of dismissals was made.

Today marks 30 days after the Justice Godfrey Chidyausiku rulling, which labour unions say triggered the dismisal of over 20 000 workers.

Legal experts, however, yesterday expressed varying views on the clause to operationalise the law retrospectively.

This follows concerns raised by the Confederation of Zimbabwe Industries (CZI) president, Mr Busisa Moyo, that they were looking at the possibility of business mounting a legal challenge against the operationalisation of the law in retrospect.

University of Zimbabwe law lecturer Professor Lovemore Madhuku said there was nothing illegal in the retrospective implementation of some of the clauses when the Bill is passed into law.

“The principle that an Act must not be retrospective is a presumption. It’s not rule of law. It depends on the subject matter and in this case there is no way we can proceed without being retrospective.

“They (Government) would have discriminated against the workers fired on or after July, 17 because before that no workers had been dismissed on notice and when the law is passed, no worker will be dismissed on notice.

“So it is these 20 000 or so workers that have been dismissed on notice that would not have received any benefits if it was not retrospective,” Prof Madhuku said.

He said there were instances in the past where laws have been passed in retrospect.

“We have examples of laws that have been passed in retrospect where there are social or political implications. An example is the land reform process where people who occupied farms in 2000 benefited from a law that was passed a year later,” he added.

Former Attorney General, Mr Sobusa Gula-Ndebele, concurred.

“The general rule in line with the rule of law is that no statute shall be construed to have a retrospective effect. However, this does not prevent parliament from enacting statutes with retrospective effect for as long as it is clear that is what it wants to do,” he said.

Constitution of Zimbabwe Amendment (No 16) Act of 2000 regularised the stay of new farmers who occupied land in 1999 before the law was passed.

Harare lawyer Mr Aston Musunga, however, said it was unusual to legislate retrospectively.

“It is very unusual for parliament to sit to rectify previous dealings. The correct position is that when an Act is passed in parliament, it starts to govern from the day it is gazetted.

“I think it will be challenged in the constitutional court if it is passed because the employers can also argue that their rights are being infringed on since they were acting within the confines of the law when they were dismissing those workers,” Mr Musunga said.

Another lawyer who spoke on condition of anonymity said international best practice did not allow for laws to be effected in restrospect.

“It is universally accepted that you cannot legislate in retrospect and those provisions in the Bill could be challenged as they may also be infringing on the rights of the employers,” the lawyer said.

COMMENTS

WORDPRESS: 3
  • comment-avatar
    R Judd 7 years ago

    This law is a guarantee that no meaningful number of new jobs will be created.

  • comment-avatar

    How can you write a law that criminalizes an action that was legal when the action was taken? That’s not fair, nor legal.

    However, let’s also focus on what is being proposed. It’s a horrible thing when employees lose their jobs because the company is no longer viable, but many companies cannot afford their present workforce. If those 20,000 employees were truly needed, do you think that they would have been retrenched since the July court ruling? No, because they are not needed! Their un-necessary upkeep is dragging their employers closer and closer to insolvency! That is the madness of Zimbabwe, that populism trumps basic economics. Those employees should accept their fate and find new livelihoods. Hanging the responsibility of caring for un-needed employees around the neck of the business owner is guaranteed to cause future investors to flee and current ones to look for the quickest exit door possible. If a company is no longer making a profit because of the economy, how are they supposed to exist if they still have to pay employees who are not needed? Oh, that’s right, just look at the government workforce and you will see an excellent example of that illogical thinking. Ghost workers perhaps?

  • comment-avatar

    I sense the hand of The Big Baboon in this – trying to be populist, as usual.

    And even MORE insane that usual. You cannot prevent employers letting go of excess staff and still expect them to be viable. That is more Socialist madness.