Labour Act: Emcoz blasts ‘unthinking’ government

via Labour Act: Emcoz blasts ‘unthinking’ government – NewsDay Zimbabwe October 2, 2015

The Employers’ Confederation of Zimbabwe (Emcoz) has come out guns blazing against the Labour Amendment Act blasting government for lack of “thinking” in the manner the law was crafted to counter the July 17 Supreme Court ruling, which left thousands of workers jobless.

BY CHARLES LAITON

In its application filed at the High Court on Wednesday this week, the employers’ representative said there were many areas in the Labour Amendment Act that needed to be revisited by the courts, taking into account the country’s Constitution.

“This is an application for a declaration of the constitutional invalidity of certain provisions of the Labour Amendment Act No 5 of 2015,” Emcoz executive director, John White Mufukare said in his founding affidavit.

“I am prepared to go further to aver that this limitation came about through an arbitrary process of legislating, a kneejerk reaction by the State to what it perceived as a social ill.

“That the process of legislating, the Amendment Act, was reactionary is evidenced in the lack of thinking, consultation and research required to guide government action and law making.”

He said there was no doubt the new Act would cause hardships to business in the country, by further stifling economic growth and causing massive unemployment, the very antithesis of what the State sought to achieve.

“All these problems arise due to the curtailment of the employer’s right to terminate an employment contract by notice. The Amendment Act, therefore, unnecessarily limits enjoyment of employer’s fundamental rights without reason, fairness or justification and should be declared unconstitutional and invalid,” the Emcoz boss said.

In the application, Emcoz said it is representing the interests of the Bankers’ Association of Zimbabwe, Chamber of Mines Zimbabwe, Commercial Farmers’ Union, Confederation of Zimbabwe Industries, Zimbabwe Council for Tourism, Zimbabwe Farmers’ Union and the Zimbabwe National Chamber of Commerce, while the respondent is cited as Public Service, Labour and Social Welfare minister Priscah Mupfumira.

The labour body said section 5 of the Amendment Act had created a new section 12C (2), which sets a minimum mandatory retrenchment cost for every employer, who retrenches one or more employees.

“This amount of money, to be paid by an employer to an employee upon the giving of notice, is arbitrary and without any basis. There is no reason, logic, no explanation and no justification of how the legislature came to fix this amount,” Mufukare said.

“This 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 homogenous. It does not consider size of business, or ability to pay and other critical yet varying factors.”

He argued that “the blanket fixing of a minimum retrenchment cost” was contrary to the rule of law principle as enshrined in the Constitution, which prohibits arbitrary laws and arbitrary lawmaking.

“For this reason section 12(C) (2) of the Amendment Act should be declared unconstitutional and invalid,” he said.

Commenting on arbitration procedures in the new Act, Mufukare saidsection 16 of the Labour Amendment Act, abolished the avenue of arbitration following conciliation with respect to disputes of right or unfair labour practices, and gave all adjudicating powers to the labour officer.

“In addition to giving the labour officer quasi-judicial powers to preside and determine remedy, the provision empowers the labour officer to proceed to enforce his ruling, now as a party, by way of applications to the Labour Court and any other court of competent jurisdiction.

“The labour officer sits as a mediator, arbitrator and protagonist in the same matter.” Mufukare said.

“There is no room for fairness and impartiality, and there is no right of appeal against a labour officer’s ‘ruling’. These provisions are clearly unreasonable and not justifiable in a democratic society.”

In its last argument, the employers’ body said section 18 of the Amendment Act, which retrospectively applied section 12 to July 17, 2015, was unconstitutional.

“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.

“This also means that all the employees who received notices, and payment in some respects for the notice periods, are still employed by the employers despite the lawful termination at the time,” Mufukare argued.

Emcoz also argued, among many other issues, by fixing a cost to hiring and relinquishing labour, the State had unwittingly diverted scarce resources away from productivity, which was the only guarantor of employment and job creation.

“Statics are readily available, and will be provided to this court, that clearly show a direct relationship between closure of many businesses, liquidations and insolvency, with labour relinquishment related costs,” Mufukare said while giving examples of NRZ, Air Zimbabwe, and ZBC among others, saying they faced viability challenges and turn around challenges precisely due to labour related costs.