Storm over Labour Bill

By Shame Makoshori

Plans to reform the Labour Act through the Tripartite Negotiating Forum (TNF) are tottering on the brink of collapse after the Zimbabwe Congress of Trade Unions (ZCTU), one of the three parties to the TNF, rejected a government-sponsored draft released over a fortnight ago, saying the State had acted unilaterally.

The largest union in Zimbabwe which represents over 50 affiliates is now sponsoring a parallel initiative to draft a counter Bill using some of the country’s top legal minds in labour-related issues to be presented before the TNF.

But there is no guarantee though that this route will get the support of the other two partners — government and employers — which could trigger another crisis and delay the enactment of a reformed labour regime acceptable to all.

ZCTU president, Peter Mutasa, said his constituency rejects the State-sanctioned draft in toto on the basis that the route it has taken to reform the labour law was defective because it violated the TNF pact, which compels all parties to make full consultations and disclosures on decisions.

“The rights that we won as workers in 1980 are now under threat. We are better off defending what we have. From our point of view, the first issue is that of processes. Tripartism and social dialogue means business, labour and government must all participate in key decisions,” he said.

Mutasa told the Financial Gazette that they were against government’s big brother attitude, while also condemning the International Labour Organisation (ILO)’s Harare office for being complicit in the appointment of consultants that produced the draft without their input.

He accused the ILO and government of deviating from the 13 principles they had agreed on as a compass to guide drafters in coming up with a document that would be acceptable to the three parties following the July 2015 Supreme Court ruling that empowered employers to fire workers on three months’ notice.

What followed were widespread dismissals across industries, as companies that had been coasting from one crisis to another capitalised on the ruling to trim excess staff in order to cut costs.

“We agreed on the 13 principles, but … government and the ILO’s Harare office went on to appoint a consultant without our input. Our issue is not about the product it is about how the product came into being,” said Mutasa.

“We are reviewing the whole document so that we come up with a comprehensive response. It appears the drafters moved away from the 13 principles. They went out of bounds. For instance, under the collective agreement clause they pushed the business agenda. It favours a particular social partner,” he added.

Asked if the ZCTU was not wasting resources by expending cash on a new draft, Mutasa said “it is better to do it properly than to come up with a document that is worse than what we already have”.

He was referring to the Labour Act, and the Labour Amendment Number 5 of 2015, which the parties have agreed to review.

ZCTU insiders said top trade unionists were particularly unhappy with the appointment of consultant, Rodgers Matsikidze of Matsikidze & Mucheche Legal Practitioners, to come up with the draft Bill.

The law firm was said to have previously represented a ZCTU opponent in a protracted case two years ago that left a sour taste in the union’s mouth although both Matsikidze and Mutasa could not be drawn into commenting on the alleged tiff.

In the past few weeks, the consultants and Public Service, Labour and Social Welfare Minister, Prisca Mupfumira, have come under heavy criticism from labour, which has hit out at Matsikidze & Mucheche for their “lack of knowledge” of workers’ rights.

Ironically, Matsikidze & Mucheche are renowned labour lawyers who have represented workers in numerous cases.

Pressure was also being brought to bear on Mupfumira to drop the draft Bill and give in to labour’s demands for a fresh blueprint.

Should Mupfumira accede to the demands, it would be the second time in two years that government would have succumbed to pressure from labour after agreeing to draft the “poorly drafted” Labour Amendment No 5 of 2015.

Part of the draft bill proposes “to amend Section 5 (of the Labour Act) by insertion of a clause that will provide for fair representation by employer and workers in an exemption hearing”.

It also proposes to amend Section 5 so that parties negotiate the retrenchment package at enterprise or National Employment Council (NEC) level within 30 days.

Failure to reach an agreement, the draft proposes, would result in the matter being referred to the retrenchment board, which would make a determination within 30 days.

“The worker shall remain employed (during that period). The Constitution of Zimbabwe provides that every employee has the right to engage in collective bargaining. Some sections of the Labour Act undermine the full exercise of this constitutional right,” said the draft.

It proposes an amendment of the Labour Act and Labour Amendment Act No. 5 to ensure that collective agreements are not subjected to ministerial approval.

“For an efficient, easy and improved dispute settlement system… repeal the Labour Amendment Act No. 5 which created the new dispute settlement system and revert back to the old dispute resolution system. It is proposed that the centralisation of arbitration process to be run by the Ministry of Public Service, Labour and Social Welfare,” the draft says.

“The Constitution of Zimbabwe provides for the right to collective job action to every employee except members of the security forces… amend …the Labour Act in order to streamline the procedures for declaring a strike by reviewing the current notice period of 14 days considering regional and international best practices. To provide for a transparent democratic voting process by the workers to mandate a strike, amend the Labour Act to remove excessive penalties in the case of an unlawful collective job action (and) decriminalise collective job actions… There is need for very clear laws for the protection of workers and their representatives against anti-union discrimination,” said the draft.

The scope of proposals revolves around the 13 principles, which meant that it had to come up with at least 13 points for reforms.

It reduces largely draconian provisions in Amendment No 5, including decriminalisation and liberalisation of the employees’ right to strike, incorporation of labour rights in terms of the Constitution, abolishing termination of an employment contract on notice and protecting job security by stipulating lawful termination of employment.

It also protects women against sexual harassment, and pregnant women from arbitrary dismissals linked to pregnancy, among other proposals that were to be interrogated by the parties.

But another party to the TNF, the Employers’ Confederation of Zimbabwe (EMCOZ), is confident that it would use the three-legged platform to push for amendments to the State-sanctioned draft and come up with a compromise document acceptable to all parties.

While expressing reservation on some sections of the draft Bill, minutes of an EMCOZ meeting held on March 21, 2017 reveals that employers have agreed to work within the confines of TNF to refine the draft and produce a compromise product.

“Instead of preparing an employer’s draft Labour Bill, the participants resolved to utilise the zero draft tabled by government and to make input on the sections of the government’s zero draft which they want modified,” reads internal EMCOZ documents in part.

“Zimbabwe appears locked in a vicious cycle. Our colleagues in labour claim that the nation cannot afford to liberalise the labour market because (the) government has not put in place the safety nets so that the employer has to provide the social protection. This labour market rigidity puts unsustainable pressure on companies. The labour law regime in Zimbabwe is widely credited with the negative perception of the country by investors, both foreign and domestic.

“The government is stuck in a rut where it wants expression of its Marxist Leninist philosophy, which results in populist over emphasis on the rights of workers in an economy that is uncompetitive and underperforming. Conventional wisdom has always been that liberal markets attract investment and business has consistently urged (the) government to liberalise the labour code in line with the rest of the SADC (Southern African Development Community) region to create a level playing field for Zimbabwean business. Up to now, government has steadfastly resisted these calls,” the EMCOZ members said.

EMCOZ director, John Mufukare, is said to have requested for clear guidance on employers’ reaction should labour insist that they were not going to engage on the revised zero draft presented.

The consensus, according to details obtained by the Financial Gazette, was that the authorship of the zero draft was irrelevant as the critical issue was its “degree of fit” to the 13 principles agreed at TNF, minutes of the EMCOZ meeting said.

There are fears that the direction the labour law reform process has taken could throw workers into quandary at a time when reports indicated that the majority of employees outside the public sector were toiling for months on end without pay. Financial Gazette