Sunday, 14 August 2016

NEW LAW ON STRIKES

Workers could soon have shorter periods to inform employers of planned strikes, get softer penalties for illegal job actions, and go on maternity leave without restrictions. Labour dispute settlements could also be streamlined and registered with the Labour Court, with collective job actions decriminalised. These proposals will be incorporated into the Labour Act if Cabinet and Parliament approve them in coming weeks.


 Cabinet will also consider a question on whether or not some employers should be exempted from paying retrenchment packages for workers dismissed on notice, as business and labour representatives continue to bicker over the highly contentious matter.

In July 2015, the Supreme Court ruled that the common law position placing employees and employers at par was operational when deciding on a case in which two former Zuva Petroleum managers were challenging termination of their contracts on notice.
Many private and State-linked firms proceeded to dismiss thousands of employees on the strength of that judgment, prompting Government to step in with amendments to the Labour Act.

Talks between the three social partners brought up further amendments, culminating in the Tripartite Negotiating Forum technical committee meeting in Harare last Thursday agreeing on changes to 13 areas, among them, maternity leave, the Labour Court’s powers and collective bargaining rights.

The Act presently requires workers to give two weeks’ strike notice and makes illegal job actions a dismissable offence. It presently allows women only three maternity leave periods under a single employer.

A team of human resources experts is fine-tuning the draft principles, with Public Service, Labour and Social Welfare Minister Prisca Mupfumira thereafter expected to steer them through Cabinet and Parliament.

Minutes of last Thursday’s meeting read, “The Constitution of Zimbabwe, Section 65(3), provides for the right to collective job action to every employee except members of the security forces. This principle, therefore, seeks to: – “(i) To amend Section 104 of the Labour Act in order to streamline the procedures for declaring a strike under the Labour Act by reducing the notice period

“(ii) To provide for a transparent democratic voting process by the workers to mandate a strike. (ii) To amend Section 107, 109, 112 of the Labour Act to remove excessive penalties in the case of an unlawful collective job action also to decriminalise collective job actions.
“(iii) Under the same principle, there is need for very clear laws for the protection of workers and their representatives against anti union discrimination. Parties agreed that Government should regulate this principle as it deems best, considering regional and international best practices.”

Section 5(3)(b) of the Labour Act permits an employer to apply to the Retrenchment Board to be exempted from paying retrenchment packages if he/she “has no capacity to pay”.
Employers should pay retrenchees at least two weeks’ salary for every year served, but exemption will be granted if their application is not heard within 14 days.

The minutes read, “Streamlining Retrenchment Procedures: The Labour Amendment Act No 5 of 2015 currently poses challenges to the administration of the retrenchment process. The Labour Amendment Act, Section 5(3) (b), currently provides for automatic granting of exemption to an employer from paying the minimum retrenchment package, if the application for exemption to the Retrenchment Board is not heard within 14 days.


“This section is unfair to the employee(s) concerned as the exemption is granted without a fair hearing. Moreso, the Section seems to promote dereliction of duty on the part of the Retrenchment Board. It is, therefore, proposed as follows;


(i) To amend Section 5 (3) (b) by deleting the words ‘failing which response the application is deemed to have been granted’.


“Labour agrees with the proposal to delete the clause because it is a violation of the right to a fair hearing in accordance with Section 69 of the Constitution. Business does not agree with the proposal to delete the clause because prolonging an exemption case would be financially unsustainable for an enterprise which is even struggling to pay the minimum package.”


Section 63A(3) of the Labour Act will be amended to allow any interested person to approach the Registrar of Trade Unions or the courts to cause an investigation into the alleged maladministration of a national employment council.


The Labour Minister, the meeting agreed, will cede his/her power to appoint a national employment council provisional administrator to the Labour Court, while the Labour Dispute Settlement System will be streamlined to give the Labour Court jurisdiction to register and enforce settlements.


Another portion of the minutes reads, “The new Labour Dispute Settlement System ushered in by the Labour Amendment Act No 5 poses serious bottlenecks to the dispute settlement system to the extent that labour cases are piling up without resolution. “For an efficient, easy and improved dispute settlement system, the following amendments to the Labour Act are proposed:


(i) To repeal Section 16 of the Labour Amendment Act No. 5 which created the new dispute settlement system and revert back to the old dispute resolution system. (ii) To review Section 93 of the Labour Act to cover the following: (a) Powers, roles and jurisdiction of the conciliators (Designated Agents and Labour officers). This will also include the provision to protect the independence of conciliator designated agents.


(b) Registration of Settlements. It is proposed that settlements should be registrable and enforceable by the Labour Court.” Section 98 of the Act will also be amended to define precise timelines within which arbitration should be concluded and spell out the powers of an arbitrator.


Further, Sections 89 and 98 will be tweaked to “strengthen the Labour Court”.sunday mail

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