Source: ZCTU challenges Labour Amendment Act | The Financial Gazette June 29, 2017
By Alois Vinga
THE Zimbabwe Congress of Trade Unions (ZCTU) has filed an application at the High Court challenging the constitutionality of two sections of the country’s amended labour law.
The ZCTU is challenging sections 12(c) 3 and 93 (5a) of Labour Amendment Act 5 of 2015, which it says violate workers’ rights to be heard and to fair treatment.
ZCTU’s High Court application could effectively derail current efforts to harmonise the country’s labour laws with the Constitution.
In its submissions, the ZCTU criticised Section 12 of the Act for granting automatic permission to employers to retrench if the Retrenchment Board does not respond within 14 days to an application for retrenchment made to the board.
The ZCTU further argues that section 93 of the law gives labour officers, answerable to the Public Service, Labour and Social Welfare Minister, the authority to register their decisions on disputes, at the Labour Court, without involving the employees whose interests would have been affected.
The labour union, represented in the case by Lovemore Madhuku, said the two clauses did not give employees an opportunity to be heard in matters that affected them.
The ZCTU’s court challenge comes after months of haggling between government and the labour body over the State’s unilateral decision to handpick labour lawyer, Rodgers Matsikidze, to draft amendments to the Labour Amendment Act.
Although the ZCTU last month gave in to government’s choice of Matsikidze, the union now wants the Act to be revisited.
The two sections were introduced following the July 17, 2015 Supreme Court ruling in the Nyamande versus Zuva Petroleum case that gave employers the right to fire workers on three months’ notice.
The ruling resulted in over 20 000 workers losing their jobs before Parliament amended the labour law, which introduced the new contentious sections.
“An employee who has been retrenched is entitled to a minimum retrenchment package. Notwithstanding the centrality of a retrenchment to a person who has lost a job, the person may lose the enjoyment of a statutory right at the instance of mere committee called a ‘Retrenchment Board’. A statutory right is therefore lost at the instance of a body that is not a court?” reads the ZCTU’s court submission.
The ZCTU is seeking to have the sections nullified because affected employees neither have the right to be heard by the Retrenchment Board nor the right to appeal against the organ’s verdicts.
The court papers state that an employee with a ruling in his or her favour automatically loses the initiative thereafter as he or she does not have the right to be informed of confirmation proceedings in the Labour Court relating to a ruling in his or her favour. If the confirmation is being opposed, he or she has no automatic right to be heard.
The ZCTU argues that Section 12 C (3) violates the workers’ right to protection under Section 56 of the Constitution, which provides for equality before the law.
“A statutory right cannot be lost at the whims of a statutory body that has no judicial authority. No other groups of persons lose statutory rights in this manner. Section12C (3), therefore, makes workers less equal than other persons,” the ZCTU argues.
The section has also been condemned for violating Section 69 (2) and (3) of the Constitution, which requires the determination of issues to do with civil rights to be heard by an independent and impartial court, tribunal or other institution established by law, of which the Retrenchment Board does not meet the stipulated criteria.
The Labour Amendment Act has been a source of disagreements since October 2015 when the Employers’ Confederation of Zimbabwe (EMCOZ) approached the courts disputing the minimum mandatory retrenchment cost for retrenched workers, which was pegged at three months’ notice and two weeks’ salary for every year served by the Labour Act.
EMCOZ said the ability of employers to pay, among other factors, should have been considered.
In December of the same year, the ZCTU made a counter application at the High Court seeking to be enjoined with government to oppose the EMCOZ application. That application was granted in early 2016 by High Court Judge Justice Foroma, under case HC/11669/15.
EMCOZ and the Public Service, Labour and Social Welfare Ministry’s lawyers have tentatively agreed to wait for a Constitutional Court ruling in another similar case in which Greatermans, a subsidiary of Thomas Meikles Stores, is seeking a similar relief after challenging payment of employees in retrospect.
The case was heard last year and judgment was reserved.