Acid test for rushed labour law

By Dumisani Ndlela

HARARE – Zimbabwe’s Labour Amendment Bill (LAB), (signed into law by President Robert Mugabe on Wednesday), could become the most disputed law after the Zimbabwe Congress of Trade Unions (ZCTU) said it was preparing to challenge it in court.

Its set to become the first law to attract multiple court challenges immediately after being promulgated, a situation that highlights government’s disregard of input from both labour and business during the law-making process.

Employers last week told the Financial Gazette that they were seeking legal counsel over potentially unconstitutional provisions in the proposed law they said could infringe on their rights and undermine their businesses.

Now, Japhet Moyo, the ZCTU secretary general, has told the Financial Gazette that they are contemplating challenging the law once it gets approval from President Mugabe.

“Yes, we are preparing to challenge it once it becomes law. We are also preparing a report to the International Labour Organisation (ILO)’s Committee on the Application of Standards. We have also made it very clear to government that the ZCTU is going to be demonstrating against that law every fortnight,” said Moyo.

The LAB was passed by Parliament last week without amendments. Moyo said in its current form, the LAB significantly weakened the trade union movement and undermined the workers’ right to freedom of association.

He said provisions granting the Minister of Public Service, Labour and Social Welfare power to veto collective bargaining agreements were fundamentally flawed.

“The collective bargaining agreement has to be registered with the minister who can decline to register the agreement in the public interest. There is no definition of public interest,” said Moyo.

He said the most contentious clause was that allowing the minister to interfere with the administration of trade unions.

“The Minister can get union executives out of office. The minister can also look into the books of the National Employment Councils to check how they are using membership funds. We also feel the proposed law does not align itself with the Constitution in terms of granting workers the right to strike. That right is explicit in the Constitution but is not granted by the proposed law,” said Moyo.

The LAB was rushed through Parliament to rescue workers sacked on notice following a Supreme Court judgement that upheld a common law position granting employers the same rights as workers in the termination of contracts.

So far, close to 25 000 workers have lost their jobs after employers said they were exercising their rights in terms of the common law and in line with the interpretation of the Supreme Court.

The Parliamentary Legal Committee (PLC) had issued an adverse report on the proposed law, particularly the provision granting compensation to sacked workers in retrospect.

It argued that this amounted to undermining the Supreme Court whose interpretation was based on the prevailing legislation.

The PLC said applying the law retrospectively in compensating fired workers “would be punitive on the employer and violates Section 56 of the Constitution relating to equal protection of the law”.

Employers have said they are preparing to challenge that clause in court.

But it would appear the proposed law could attract global interest should the ZCTU present its adverse report on the law to ILO’s Committee on the Application of Standards.

The move would increase the country’s investment risk profile, undermining current efforts to mobilise desperately needed foreign investment.

Should the ZCTU submit its report to the ILO, it will constitute an annual report of the Committee of Experts, usually adopted in December.

This report is submitted to the International Labour Conference the following June, where it is examined by the Conference Committee on the Application of Standards.

A standing committee of the Conference, the Conference Committee is made up of government, employer, and worker delegates. It examines the report in a tripartite setting and selects from it a number of observations for discussion.

The governments referred to in these comments are invited to respond before the Conference Committee and to provide information on the situation in question.

In many cases the Conference Committee draws up conclusions, recommending that governments take specific steps to remedy a problem or to invite ILO missions or technical assistance.

The discussions and conclusions of the situations examined by the Conference Committee are published in its report. Situations of special concern are highlighted in special paragraphs of its General Report. Financial Gazette