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COMMENTARY ON THE ZIMBABWE LABOUR

BILL 2021

COMMENTARY ON THE ZIMBABWE LABOUR BILL 2021

INTRODUCTION:

The Labour Amendment draft bill seeks to align the Labour Act Chapter 28:01 with the Zimbabwe
Constitution and international labour standards duly ratified by Zimbabwe. The benchmarks used in
this analysis are the principles to amend the Labour Act adopted by the social partners in the Tripartite
Negotiating Forum (TNF) between 2016 and 2019 and the International Labour Organisation (ILO)’s
conventions and recommendations together with the ILO supervisory bodies’ comments in respect of
Zimbabwe’s compliance with its international obligations.

This commentary noted some progressive provisions in the current draft of 2021 and commend
government for taking such steps to respect the TNF decisions. These includes the protection of
employees against gender-based violence, protection of employees from termination under common
law (notice) protection of employees during retrenchment save for the minimum package, protection
:
of casual employees against indefinite Casualisation, labour broking, Maternity protection etc.

However, the analysis notes with grave concern the serious failure to comply with ILO Conventions 87
and C98. Of concern is the criminalisation of the right to strike and Ministerial powers that interfere
with trade unions and employers’ organisations’ rights despite parties having agreed to streamline
such powers to comply with relevant conventions. Convention 87 and 98 have been of great concern
for decades culminating to the investigation of Zimbabwe by the ILO Commission of Inquiry in 2009.
Most recommendations of the Commission of Inquiry have not been given e"ect in this draft. The
2019 draft attempted to address the concerns but noted a shift away from compliance. The Labour
Court continue to be undermined by denied the power to enforce its decisions.

This commentary provides for areas that require improvements to make Zimbabwe a
shining example in the global village with good labour practices.

AMENDMENT ZCTU COMMENTS

The amendment repealed subsections 2 and 3 but reproduced

forced labour under subsection 2 (f) (i) (ii). The grounds stated
herein that a person may be required to work against his will for
the mere reason that he is lawfully detained without a court
sentence amount to forced labour and the requirement that
such work is permitted by other enactment which is unknown is
too wide and subject to abuse.

Clause 3 Amendment Only a court of law as per article 2 (2) (c) of C29 can determine the
of section 4A of Cap lawfulness of a detained person and convict.
28:01
Subsection 2 (f) and (ii) should be repealed to comply with C29.
Section 4 A (“Prohibition See CEACR comment, 2004, para stated as follows ‘ It refers to the
of forced labour”) of the explanations in paragraphs 90 and 94 of its 1979 General Survey on the
principal Act amended abolition of forced labour, in which it pointed out that persons awaiting
by the repeal of trial or detained without trial should not be obliged to perform labour (as
subsections (2) and (3) distinct from certain limited obligations intended merely to ensure
and the substitution by cleanliness), and that compulsory labour imposed by administrative or
Sub -Sections 2 (a-f ) and other non-judicial bodies or authorities is not compatible with the
3 Convention. The Committee requests the Government to supply a copy of
any enactment referred to in the above section 4A (2) (b)(ii), under which
the exaction of compulsory labour from detainees may be required, and to
provide information on measures taken or envisaged to ensure the
observance of the Convention on this point’ available.
https://www.ilo.org/dyn/normlex/en/f?
p=1000:13100:0::NO:13100:P13100_COMMENT_ID:2236475
:
 While the amendment is welcome , we propose expansion of the
grounds of discrimination on s5 to broaden and include social
origin, national extraction, direct and indirect discrimination
Clause 4 Amendment
of section 5 of Cap of
28:01

We further propose R Repeal

epeal 5 (7) (b) as it allows discrimination on
Section 5 (“Protection of
political grounds in conflict with section 56(3) of the Constitution
employees against
and government commitment to CEACR 2015 Observation on
discrimination”) is
Convention 111.
amended by the repeal
of subsection (2a) and
CEACR stated as follows:-
the substitution of

“Noting the Government’s indication that the prohibited

“(2a) Every employer
grounds of discrimination will be discussed in national
shall pay equal
consultations as part of the amendment process of the Labour
remuneration to male
Act, the Committee hopes the Government will take this
and female employees
opportunity to ensure that the Labour Act will prohibit direct
for work to which equal
and indirect discrimination on at least all of the grounds
value is attributed
enumerated in Article 1(1)(a) of the Convention and article 56 of
without discrimination
the new Constitution, including national extraction, and social
on the grounds of sex or
origin, for all workers and with respect to all aspects of
gender.”
employment’.

Agreed and we welcome the commitment by the legislature to

strengthen the sections of the LAW that prohibit discrimination,
Clauses 2 and 5 to 8 unfair labour practices, Casualisation, Child labour as well as
Sexual Harassment. We applaud the legislature for adopting
definitions and provisions from the ILO Instruments to protect
workers from violence and harassment and to punish
perpetrators.

We are concerned by the retaining of the minimum package as

prescribed by the 2015 Amendment 5 5.. “Minimum retrenchment
package” means one months’ wages for every two years served
(and the proportionate amount for every part of a year served).
The minimum package was imposed in 2015 and is retained
without any justification and due to continuous erosion of
wages.
Clause 9
:
Retrenchment and
compensation for
loss of employment *We propose that parties should agree on a realistic Minimum
Package other than this plucked figure. We believe that this is
regrettable as in many of the times this leaves employees at the
mercy of the minimum retrenchment package even in
Subsection 2(a) circumstances where the employer can a"ord an enhanced
payment of packages package.

*We also propose that instead of 60 days the period by which a

retrenchment package should have been paid be reduced to 30
days and there should be No Exemptions on payment of
retrenchment packages.

11 Amendment
of section 18 of
Cap. 28:01

Section 18 (“Maternity
Leave”) of the principal
Act is amended by the— We propose deletion of subsection 5 – and also propose addition
of a clause to address the possibility of complications and ill
(a) health after one has exhausted Paid Maternity Leave. We
deletion in propose there be a provision to allow the a"ected woman to
subsection access extension of leave by one month to allow the person to
(1) of “who recuperate provided there is a letter from a certified medical
has served practitioner.
for at least
one year.”;
and

(b) Repeal of subsection

(3).

LABOUR BROKING: We appreciate that the Legislature is trying to

ensure there is equality in the workplace and that employees
engaged through a labour broker should have same benefits and
conditions as the other employees. However the regulations of
such a relationship have been left open ended with no time
restrictions.
Clause 12 -
addition of a new In South Africa, labour broking is highly regulated
regulated. Labour is only
section supplied for the client for 3 months and in substitution of an employee
:
 who is not around for a fleeting period of time. If the labour is not
provided under these circumstances, they become permanently employed
S18A – Contracts for for the client. We do not suggest that this is what is supposed to
Hourly Work be implemented in Zimbabwe but leaving this arrangement
open-ended like is being proposed can have profound
S18B – Labour consequences.
Broking
On payment of damages - The problem may arise when the
broker does not have any assets, as is usually the case as some
of the brokers may just be using briefcase companies. What is
the employee’s recourse?

We propose that
that:: the Legislature should protect employees by
ensuring that labour brokers meet a certain criterion to allow
employees to recover damages that may arise from an
employment contract.

Clauses 13 to 16 Agreed

17 Amendment of
section 34 of Cap.
28:01 –
Requirements for Agreed But We Propose to add para (h) to read ‘The name of the
application for applicant or its shortened form may not so closely resemble the
registration of Trade name or shortened form of an already registered and existing
Union or Employers’ trade union or employer’s organisation.’
Organisation.

We Disagree with the section as it provides with too much

interference on trade union or employer organisations
Clause 18 Duty to
operations by the Minister in violation of C087 on Freedom of
provide information
Association and the Right to Organise.
to Registrar

The repeal and insertion only removed the word ‘registration’

but does not cure the mischief of infringement of a trade union
or employers’ organisation’s right to freedom of association. The
requirement to consider the representations of multiple stakeholders like
any member of the public is too wide and may results in infringement. See
Clause 19 ILO CFA ‘The Committee further considers that section 45 of the Labour
Amendment of Act will appear to hinder the registration of a new organization if another
section 45:
45:- Variations, registered organization already exists in a specific enterprise or
suspension or rescission occupation. It recalls in this respect that a provision authorizing the refusal
:
of registration of trade of an application for registration if another union, already registered, is
unions and employers su#ciently representative of the interests which the union seeking
organization registration proposes to defend, means that, in certain cases, workers may
be denied the right to join the organization of their own choosing, contrary
to the principles of freedom of association [see Digest, op. cit., para. 328].
See ILO case No 3128-2015 available at

https://www.ilo.org/dyn/normlex/en/f?
p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:3278022

Subsection (1) gives right to any person directly involved in a

trade union or employer’s organisation’s election to complain to
the Minister about the conduct of the election on grounds of
fraud coercion or unfairness.

Subjecting trade union or employers’ organisations election

disputes to the Minister and Registrar is a serious interference
in the a"airs of a trade union and a violation of article 3 of C87.
Clause 20
see ILO Freedom of Association Compilation of Decisions of the
Amendment of
Committee on Freedom of Association 6th edition, 2018, para 563,
section 51 of Cap.
provides ‘legislative provisions which regulate in detail the internal
28:01
functioning of workers and employers’ organisations pose a serious risk of
interference by the public authorities. Where such provisions are deemed
Section 51 (“Supervision
necessary by the public authorities, they should simply establish an overall
of election of o#cers”)
framework in which the greatest possible autonomy is left to the
of the principal Act is
organisations in their functioning and administration’ see CEACR
amended
observations at: https://www.ilo.org/dyn/normlex/en/f?
p=1000:13100:0::NO:13100:P13100_COMMENT_ID:2332402
(a) By the repeal of
subsection (1) and the
substitution ………..

For years government has been making commitments in its

reports to the CEACR that the provision will be repealed.

Furthermore, during tripartite negotiations, under principle

No.8, it was agreed that s51 will be repealed. The ZCTU wonders
why government is choosing to disrespect the ILO and the
agreed position during several TNF meetings backdating to
2016. We appeal to the Legislature to consider Honouring
Zimbabwe’s International obligations and commitments.

The amendment repeals subsections (2) (3) (4) (5a) and that is
Clause 21
welcome
welcome.. However, We also propose the repeal subsection (5) as
Amendment of
it is an appeal against the Minister’s decision arising from the
section 54 of Cap.
:
28:01 repealed s (4).

Section 54 Also repeal subsection (3) that gives the Minister power to
(“Collection of union appoint members of an employment council if the parties fail to
dues”) of the principal do so within 3 months.
Act is amended by the
repeal of subsections Our view is that collective bargaining and institutions for
(2), (3), (4) and (5a). bargaining should remain voluntary in nature. Act of compulsion
is against the principles of free collective bargaining. (ILO C98
art 4)

Clause 22 Regulation
of union dues and
AGREED
Clause 23 Formation
of NECs

Clause 24
The amendment seeks to repeal para (g) that provides for the
Amendment of
admission of new parties to the employment council. If this is
section 58 of Cap.
removed, a gap will be created as the council will not be able to
28:01
set the required threshold for allocation of seats to new
entrants. For a union or employers’ organisation to be admitted
Section 58 (“Constitution
it must meet a certain threshold or if it fails it may be granted
of employment
observer status. (see new section 56 (5) (b) (i) (ii)
councils”) of the
principal Act is amended
Therefore, paragraph (g) should be repealed and substituted by
by the repeal of
‘ The NEC Board shall determine the minimum threshold for
paragraph (g) and
admission into the NEC. This is intended to curtail briefcase
substitution …….
unions and multiplicity of unions which employers can negotiate
with’. ( see agreed principle 7.3 )

The amendment inserts a new paragraph (0) that provides for negotiation
of paid educational leave at employment council. There is partial
compliance with the agreed principle NO.5 that broadened the negotiation
of paid educational leave at the employment council level and the
inclusion of the Minister in public enterprises negotiations.

However, some agreed elements in princi0ple No. 2 (Right to

26 Amendment of Collective bargaining) were deliberately omitted. Principle 2.2
section 74 Cap. 28:01 provides ‘It is proposed to include other factors to be considered in
(“Scope of collective collective bargaining as contained in the ILO Convention 131 on Minimum
bargaining Wage Fixing and in line with the Constitution’. The elements to be
agreements”) of the taken into consideration in determining the level of minimum
principal Act is wages shall take into account—
amended—
(i) the needs of workers and their families;
(a) in subsection (3) by
:
the insertion of the (ii) the general level of wages in the country;
following paragraph
after paragraph (n) i. the cost of living and changes therein;
ii. social security benefits;
iii. the relative living standards of other social groups;

(vi) economic factors, including economic development,

vii. Levels of productivity and the desirability of attaining and maintaining

a high level of employment;”.

The repeal of this section and its substitution

substitution,, which in most
respect is just a repetition of the same does not address the
mischief save for the proviso requiring the Minister to specify
the public interest concerned that would have caused the
refusal to register a collective bargaining agreement. The
mischief is in s79 (2) ( a ) inconsistent with this Act or any other
enactment; or

( b ) contrary to public interest; ( c ) unreasonable or unfair, having

regard to the respective rights of the parties; These provisions
interfere with the rights of parties to free collective bargaining.

Clause 27
Amendment of
The agreed principle No. 2 on collective bargaining provides; ‘To
section 79 Cap. 28:01
amend section 25, 79, 81 of the Labour Act as well as section 14 of the
(“Submission of
Labour Amendment Act No. 5 to ensure that collective agreements are not
collective bargaining
subjected to Ministerial approval on the grounds that the agreement is or
agreements for
has become “…unreasonable or unfair” or “contrary to public interest”.
approval or
registration”) of the
See ILO, CEACR Observations; Noting with concern the adoption of
principal Act is repealed
new section 79(2)(b), the Committee recalls that the discretionary power of
and substituted with the
the authorities to approve collective agreements is contrary to the
following section—
principle of voluntary bargaining enshrined in Article 4 of the Convention
………..
and that systems of prior approval are compatible with the Convention
only where approval may be refused if the collective agreement has a
procedural flaw or does not conform to the minimum standards laid down
by general labour legislation. The Committee therefore requests the
Government to take the necessary measures to repeal section
79(2)(b) and (c) of the Labour Act and to provide information in
this respect. Available at https://www.ilo.org/dyn/normlex/en/f?
p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3255914
:
 As a result, delete the phrase ‘or any other enactment in 79 (2)
(a) and repeal para 79 (2) (b) and 79(2) (c) as well.

28 Amendment of
section 81 Cap. 28:01

Section 81
(“Amendment of This section is repealed and substituted by giving Minister the
registered collective power to direct the parties to an agreement to amend an
bargaining agreement that has become inconsistent with this Act or any
agreements by other enactment . This phrase ‘any other enactment’ should be
Minister”) (1) of the repealed. Amendments should be in line with the Labour Act.
principal Act is repealed
and substituted with the
following subsection—
………

Section 82 (“Binding nature of registered collective bargaining

agreements”) of the principal Act is amended by the insertion of
a binding declaration that includes parties who are not members
29 Amendment of of the employment council. (See Net One Cellular v Minister of
section 82 of Cap. Labour & anor. HH-211-15. This is welcome
welcome..
28:01
This section may be improved further by inserting (c) that
provides ‘ Any portion of a collective bargaining agreement which
has been ratified by the parties thereto shall be binding on the
parties notwithstanding that any other portion of the agreement
has not been ratified.”

S98 E"ect of reference to compulsory arbitration under Parts XI

and XII

This section was just repealed and reproduced. There is non-

compliance with the elements of the agreed principle No. 3
(Streamlining the Labour dispute settlement system) in which it
was agreed as follows: (iv) It is proposed to review section 89
and 98 of the Labour Act to strengthen the Powers of the Labour
Court. Amendments to these sections will include;

a. Functions, powers and jurisdiction of the Labour Court to

31 Amendment of give the Labour Court jurisdiction over all labour matters.
section 98 of Cap. b. Enforcements of decisions by the Labour Court.
:
28:01 The proposed subsections 13 and 14 still recognize the
Magistrate’s Court and the High Court in enforcement of Labour
Section 98 (“E"ect of Court and arbitrator’s decisions. This poses serious di#culties to
reference to compulsory workers in trying to enforce a decision of the Labour Court in a
arbitration under Parts common law administered courts, prolongs the dispute
XI and XII”) of the resolution process and cause congestion in other courts. If a
principal Act is repealed small claims court can enforce its decision, what more, the
and the following is Labour Court which is constitutionally recognized.
substituted
Subsection 13 should be improved as follows
follows:

In subsection 13 repeal the phrase ‘court of any magistrate

which would have had jurisdiction to make an order
corresponding to the award had the matter been determined by
it, or, if the arbitral award exceeds the jurisdiction of any
Magistrates Court, the High Court’ and substitute by the Labour
Court.

In subsection 14 repeal ‘appropriate court’ and substitute by

‘Labour Court’

This section is about criminal penalties to those who cause or

embark on an unlawful collective job action. The repealed
provisions were reproduced and merely made a distinction of a
penalty in an essential service and other services. For those in
an essential service, the penalty is a level 14 (Z$500 000.00 or 5
years in prison or both whereas for those in other services, the
penalty is level 14 or 1 year imprisonment for failure to pay the
fine.

The amendment does not address the real problem of

decriminalising legitimate strikes. The amendment does not give
e"ect to agreed principle No. 4 which provides as follows:

Collective Job Action

4.1 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 amend: -
(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
33 Amendment of
the case of an unlawful
section 109 Cap.
collective job action also to
28:01
decriminalize collective job
Section 109 (“Liability of
actions.
persons engaged in
(iii)Under the same principle
unlawful collective
there is need for very clear
action”)) of the principal
laws for the protection of
Act is amended by the
workers and their
repeal of subsections (1)
representatives against anti -
and (2)
union discrimination.
This provision does not give e"ect to the right to the right to
engage in collective job action provided in section 65 of the
Constitution and in e"ect, it’s a deterrent to the enjoyment of
the right to freedom of association, the new section in not in line
with the agreed principle. The ILO Commission of Inquiry of
2009, para 575 observed that ‘‘the
the right to strike is not fully
guaranteed in law or practice. In particular, the Commission is
concerned that the legislation includes disproportionate
sanctions for the exercise of the right to strike and an
excessively large definition of essential services; and that in
practice the procedure for the declaration of strikes is
problematic and that it appears that the security forces often
intervene in strikes in Zimbabwe. The Commission wishes to
confirm that the right to strike is an intrinsic corollary of the
right to organize protected by Convention No. 87.

See also ILO Freedom of See also ILO C105 art 1, ‘Each Member
of the International Labour Organisation which ratifies this
Convention undertakes to suppress and not to make use of any
form of forced or compulsory labour-- (d) as a punishment for
having participated in strikes.
:
 Association: Compilation of the decisions of the Committee on
Freedom of Association, 6 6th
th ed, Geneva, 2018, para 951.
‘Imposing sanctions on unions for leading a legitimate strike is a
grave violation of the principles of freedom of association’, para
953. No one should be penalized for carrying out or attempting
to carry out a legitimate strike. para 954. Penal sanctions should
not be imposed on any worker for participating in a peaceful
strike, para 955.

Penal sanctions should only be imposed if if,, in the framework of a

strike, violence against persons and property or other serious
violations of the ordinary criminal law are committed, and this,
on the basis of the laws and regulations punishing such acts and
para 956. Legislative provisions which impose sanctions in
relation to the threat of strike are contrary to freedom of
expression and principles of freedom of association.

Section 112 must be repealed.

The section provides for Ministerial powers to cause investigations in the

a"airs of trade unions and employers’ organisations. The amendment is
giving the Minister the power to appoint a provisional administrator to
administer the trade union or employers’ organisation concerned pending
the approval by a substantive administrator by the Labour Court.

The amendment is a breach of Principle No.8 agreed by the

parties which provides in 8.4 To amend sections 28(2), 54(2) and
(3), 55 and 120(2) of the Labour Act and section 120 (7) (8) of the
amendment Act No. 5 of 2015 with a view to streamline the
Minister’s powers to regulate administrative issues of trade
unions and employers’ organizations.

Furthermore, the ILO CEACR observations, 2015 available

remarked as follows;

‘With respect to the investigation powers granted to the Ministry of Labour

by the new section….. 120(2) of the Labour Act (applicable to workers’ and
employers’ organizations) the Committee recalls that: (i) it had highlighted
in its previous comments that the discretionary right of the authorities to
carry out inspections and request information at any time entails a danger
of interference in the internal administration of the trade union; and (ii) on
that basis, both the Commission of Inquiry and the Committee had
requested the Government to take the necessary measures to amend
section 120(2) of the Labour Act. …….. the Committee requests the
Government to take the necessary measures to amend both
:
 section.. 120(2) of the Labour Act so as to ensure that the
autonomy of employers’ and workers’ organizations is fully
respected. See https://www.ilo.org/dyn/normlex/en/f?
p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3255910

‘In addition, the Committee observes that both the new section 63(A) of
the Labour Act (applicable to employment councils) and the revised
section 120 of the Labour Act (applicable to employers’ and workers’
organizations) provide that “pending determination by the Labour Court of
an application to appoint an administrator, the Minister may appoint a
provisional administrator who shall exercise all the powers of a
substantive administrator until the provisional administrator’s
appointment is confirmed by the Labour Court”. Recalling that, by virtue of
Article 3 of the Convention, public authorities shall refrain from any
interference which would restrict the right of workers’ and employers’
organizations to organize their administration, the Committee points
out that outside control of workers’ and employers’
36 Amendment of organizations should only take place in exceptional cases, as a
section 120 Cap. result of a judicial decision and should be carried out by a
28:01 person appointed by the judicial authorities. The Committee
therefore requests the Government to take the necessary steps
Section 120 to amend sections 63(A) and 120 of the Labour Act accordingly
(“Investigation of trade and to inform of any progress in this respect’.
unions and employers’
organizations”) of the
principle Act is
amended- (see Zimbabwe, ILO Case No 2081/ 30 March 2000) “The
Committee considers, consequently, that the powers of supervision
contained in paragraph (c) of subsection (2) are not limited to
exceptional cases; rather this provision gives excessive powers of
inquiry to the administrative authorities into the financial
management of trade unions, thereby violating the right of workers'
(and employers') organizations to organize their administration
without interference by the public authorities. The Committee
requests the Government to take the necessary measures to ensure
that section 120(2) of the Labour Relations Act of 1985 is amended in
line with freedom of association principles, including those enunciated
in its conclusions. The Committee further requests the Government to
keep it informed of any progress made in this regard’.

In order to comply with the above observations, we propose the

repeal of subsections (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) and
substitute with the following;
:
 (2)
2) The Minister may in exceptional circumstances apply to the
Labour Court to appoint an investigator’.

(4) Such application shall be served to the trade union or

employers’ organisation concerned to enable it to respond
within the prescribed time frames.

(5) The Labour Court shall determine the matter and make an
appropriate decision that safeguards the trade union or
employers’ organisation concerned.

(6) If the Labour Court approves the appointment of an

investigator, such investigator upon completion of
investigations, shall submit his or her findings to the Labour
Court and to the trade union or employers’ organisation
concerned to enable it to respond to the findings.

(7) The Labour Court may grant or dismiss the relief sought by
the Minister

(8) A party aggrieved by the decision of the Labour Court may

appeal to the Supreme Court within the prescribed period as set
out in the rules of that court.

Omissions in the draft As previously negotiated at TNF

Section 57 obliges the Minister to request parties to form a

a) Amendment of
statutory employment council in the national interest. This
section 57 (statutory
section should be repealed as a statutory employment council is
employment
an act of compulsion and violates the right to free collective
councils)
bargaining.

There is non- compliance with agreed principle No. 6 which

states ‘ (ii) To amend section 63A (7) to remove the powers of the
Minister to appoint a provisional administrator and give power
to the Labour Court the power to appoint the provincial
administrator having given the parties concerned the right to be
heard in compliance with section 69 (2) of the constitution’.
Furthermore, your attention is drawn to CEACR observation 2015
published 105 105th
th session 2016 in which government is requested
:
 to repeal the o"ending provisions.

CEACR observed that; that;‘With respect to the investigation powers granted

to the Ministry of Labour by the new section 63(A) (applicable to bipartite
employment councils) and section 120(2) of the Labour Act (applicable to
workers’ and employers’ organizations) the Committee recalls that: (i) it
had highlighted in its previous comments that the discretionary right of
the authorities to carry out inspections and request information at any
time entails a danger of interference in the internal administration of the
trade union; and (ii) on that basis, both the Commission of Inquiry and the
Committee had requested the Government to take the necessary
measures to amend section 120(2) of the Labour Act. Observing that
new section 63(A) grants similar powers to the authorities with
respect to the bipartite employment councils, the Committee
requests the Government to take the necessary measures to
amend both sections 63(A) and 120(2) of the Labour Act so as to
ensure that the autonomy of employers’ and workers’
organizations is fully respected.

‘In
In addition, the Committee observes that both the new section 63(A)
of the Labour Act (applicable to employment councils) and the revised
section 120 of the Labour Act (applicable to employers’ and workers’
organizations) provide that “pending determination by the Labour Court of
an application to appoint an administrator, the Minister may appoint a
provisional administrator who shall exercise all the powers of a
substantive administrator until the provisional administrator’s
b) Amendment of
appointment is confirmed by the Labour Court”. Recalling that, by virtue of
section 63A Audit of
Article 3 of the Convention, public authorities shall refrain from any
accounts of
interference which would restrict the right of workers’ and employers’
employment councils
organizations to organize their administration, the Committee points out
that outside control of workers’ and employers’ organizations should
only take place in exceptional cases, as a result of a judicial
decision and should be carried out by a person appointed by the
judicial authorities. The Committee therefore requests the
Government to take the necessary steps to amend sections 63(A)
and 120 of the Labour Act accordingly and to inform of any
progress in this respect’. See comment available at:

https://www.ilo.org/dyn/normlex/en/f?
p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3255910

In order to comply with the above observations, we propose the

repeal of subsections (4) (5) (6) (7) (8) (9) (10) (11) (12) and
substitute with the following;
:
 In subsection (3) delete the phrase ‘may investigate or order that
such employment council be investigated in accordance with
subsection (4). And substitute by ‘Minister may apply to the
Labour Court to appoint an investigator’.

(4) Such application shall be served to the employment council

concerned to respond within the prescribed time frame.

(5) The Labour Court shall determine the matter and make an
appropriate decision that safeguards the employment council
concerned.

(6) A party aggrieved by the decision of the Labour Court may

appeal to the Supreme Court within the prescribed time as set
out in the rules of that court.

Agreed principle No.3 (Streamline the Labour Dispute Settlement

System) that seeks to strengthen the powers of the Labour Court has not
been e"ected. It states (iv) It is proposed to review section 89 and 98 of the
Labour Act to strengthen the Powers of the Labour Court. Amendments to
these sections will include;

a. Functions, powers and jurisdiction of the Labour Court to give the

Labour Court jurisdiction over all labour matters.
b. Enforcements of decisions by the Labour Court.

Note Section 172 (2) of the Constitution of Zimbabwe provides

that ‘The Labour Court has such jurisdiction over matters of
labour and employment as may be conferred upon it by an Act of
Parliament.

Therefore, The Labour Court is established in terms of the

Labour Act and it is this Act that can give it power in labour and
employment matters in the same way the High Court has been
given power in section 13 by the legislature. It is within the
powers of the legislature to confer such powers.

In this respect we propose the following:

:
 Section 89 (Functions, powers and jurisdiction of Labour Court)
of the principal Act is amended by the repeal of subsections (1)
and (2) and the substitution of--

(1) Except where this Act provides otherwise, the Labour Court
has exclusive jurisdiction in respect of all matters of labour and
employment.

(2) In the exercise of its jurisdiction, the Labour Court may--

(a) make any appropriate order, including--

(i) the grant of urgent interim relief;

(ii) grant an interdict;

ii. an order directing the performance of any act which order, when
implemented, will remedy a wrong and give e"ect to the objects of
this Act;

(iv) a declaratory order;

v. an award of compensation in any circumstances contemplated by this

Act;
vi. an award of damages in any circumstances contemplated by this Act;
vii. in the case of an appeal—

( c) Amendment of
A. conduct a hearing into the matter or decide it on the record;
section 89 Cap 28:01
B. confirm, vary, reverse or set aside the decision, order or action
appealed against or substitute its own decision or order; and
Functions, powers, and
jurisdiction of Labour
(viii) make an order for costs;
Court

(b) order compliance with any provision of this Act;

(c) make any arbitration award or any settlement agreement an order

of the court;

(d) determine a dispute between employers and

employees’ organisations and any one of the members
concerning any alleged non-compliance with the
constitution of that trade union or employers' organisation,
as the case may be;

(e) Determine any dispute concerning the collection of

union dues or employers’ organisation dues and their
remittance to the respective party or organisations.
:
 (f) Review any decisions made in terms of an employment
code and arbitrator’s decision

(g) review the performance or purported performance of

any function provided for in this Act on any grounds that
are permissible at law;

(h) Determine Actual claims arising from employment

whether the relationship is subsisting or has been
terminated including recovery of an employer or
employee’s property or ejectment of employees from
employer’s accommodation or premises;

(i) Deal with all matters necessary or incidental to

performing its functions in terms of this Act or any other
law.

(j) in the case of an unlawful dismissal or termination of a contract of

employment, order reinstatement as a primary remedy and in the event of
a refusal by an employer to reinstate the employee for whatever reasons,
order payment of punitive damages which include payment of back pay
from the date of such unlawful dismissal or termination to the date of the
order of the court in addition to damages that may be assessed by the
Court. In assessing damages, no employee shall be compelled to mitigate
his loss. An employee who refuses reinstatement for whatever reasons
shall be entitled to back pay and damages and the court shall consider the
reasons of such refusal in assessing damages.

(see art 10 of the ILO Convention on Termination of

employment 158, (1982) , that require Payment of adequate
compensation to an employee whose contract is terminated]

(2a) If at any stage after a dispute has been referred to the Labour
Court, it becomes apparent that the dispute ought to have been
referred to arbitration, the Court may--

(a) stay the proceedings and refer the dispute to arbitration; or

(b) With the consent of the parties and if it is expedient to

do so, continue with the proceedings before the Court.

Section 92B (E"ective date and enforcement of decisions of

Labour Court) of the principal Act is amended—

( d) Amendment of
a. by the repeal of subsections (3) and substitute by —
section 92B of Cap
:
28:01 “(3) Any decision, order or determination of the Labour
Court shall be enforced by the Labour Court itself like
any civil judgment of any appropriate court.”

This section provides for wide powers of the Minister to declare any
service to be an essential services as follows’ “essential service” means any
service— (a) ------(b) that is declared by notice in the Gazette made by the
Minister, after consultation with the appropriate advisory council, if any,
appointed in terms of section nineteen, to be an essential service;

Although the provision provides for some consultations, this is

not adequate as to consult is a mere process of seeking of one’s
view and the consultant can still proceed without the agreement
of the other party. Furthermore, the phrase ‘advisory council if
any’ implies that where there is no such advisory council in
place, the Minister can still declare any service essential.
e) Amendment of
section 102 of The ILO CEACR, 2010 observation stated as follows; ……’the need
Cap,28:01 to e"ectively guarantee the right to strike through, among other
measures: (i) simplifying the procedure for declaring a strike; (ii) amending
102 Interpretation in section 102 of the Labour Act providing for the right of the minister to
Part XIII declare any service essential; (iii) ensuring that a strike can be restricted or
banned only in essential services in the strict sense of the term, that is
those services the interruption of which would endanger the life, personal
safety or health of the whole or part of the population, so as to e"ectively
ensure workers’ right to strike; available at
https://www.ilo.org/dyn/normlex/en/f?
p=1000:13100:0::NO:13100:P13100_COMMENT_ID:2332402

The best practice is that of South Africa. Section 70 of the

Labour Relations Act, 1995 provides for the establishment of an
essential service committee with members who are persons who
have knowledge and experience of labour law and labour
relations.

Section 2A (Purpose of Act) of the principal Act is amended—

f) Amendment of a. In subsection (2) by the insertion after “subsection (1)” of

section 2A of Cap “taking into account any international treaty to which
28:01 Zimbabwe is a party”.
b. In subsection (3), by the deletion of “This” and the
substitution of “Subject to section 3, this”.
:
 This section has excessive penalties to workers who engaged
in unlawful strike (see CEACR 2005 observations published
95
95th
th ILC session, 2006 ‘further concerning the sanctions of
dismissal and dissolution the committee recalls that no one
should be penalised for carrying out or attempting to carry
out a legitimate strike and that, in any case, the sanctions
imposed should not be disproportionate to the seriousness
of the violations’
g) Section 107
Disposal orders Therefore, we propose that Section 107 (Disposal orders) of the
principal Act is amended in subsection (3) by the repeal of
subparagraph (i) (ii) (iii) (iv) (v) (vi) (vii) and substitution of

(a) The Labour Court shall make a determination in accordance

with the justice of the matter taking into consideration all
factors causing the unlawful strike including the contribution of
each party to the escalation of the dispute and may order
cessation of the unlawful collective job action.

We propose Amendment as follows:- The principal Act is

amended by the insertion of subsection 6, 7 and 8 as follows;

6. Except for essential services, for the duration of the period

of the lawful collective action, an employer shall not employ any
other employee or person be it natural or juristic to render any
employment services in place of striking employees.

7. In the case of essential services, an employer may only

temporarily hire the services of another employee or person for
the period of the collective action pending resolution of the
dispute.

8. No State security forces or o#cers shall take any view or

decide the merits of the disputes giving rise to a collective job
action or disrupts or threaten to disrupt a collective job action.
Security forces may only intervene where there is riotous
behaviour to maintain law and order.

(see ILO Commission of Inquiry, 2009, para 575 …..it appears

that the security forces often intervene in strikes in Zimbabwe.
The Commission wishes to confirm that the right to strike is an
intrinsic corollary of the right to organize protected by
:
 Convention No. 87.

-Under the same principle, we agreed to regulate acts of anti-

union discrimination. (see ILO Committee on the Application of
Standards (CAS) 2016 Report on Zimbabwe) The Right to
Organise and Collective Bargaining convention, 1949 (No.98)
and CEACR observations 2016 available at
https://www.ilo.org/dyn/normlex/en/f?
p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3297214

The ILO Commission of Inquiry 2009, para 585 remarked as

follows ‘The Commission concludes that there is no adequate
protection against anti-union discrimination in Zimbabwe. The
Commission emphasizes that no one should be subjected to
discrimination or prejudice because of legitimate trade union
h) Amendment of activities or membership. With reference to the mass dismissals
section 108 of Cap of strikers in Zimbabwe, the Commission considers that these
28:01 involve a serious risk of abuse and place freedom of association
in grave jeopardy. In this regard, the Commission stresses that
the remedy of reinstatement should be available to those who
are victims of anti-union discrimination and, if reinstatement is
not possible, the Government should ensure that the workers
concerned are paid adequate compensation which would
represent a su#ciently dissuasive sanction for anti-trade union
dismissals (para 586) available at
http://www.oit.org/wcmsp5/groups/public/---africa/---ro-
abidjan/---sro-harare/documents/publication/wcms_227749.pdf

The following is also proposed;

(h) Insertion of new section 108A in Cap 28:01 Protection Against

anti-union discrimination

The principal Act is amended by the insertion of section 108A

after section 108 as follows:

(1) Every employee shall enjoy adequate protection against acts

of anti-union discrimination in respect of their employment.

2). Such protection shall apply more particularly in respect of

acts calculated to--

(a) make the employment of a worker subject to the condition

that he shall not join a union or shall relinquish trade union
membership;

(b) Cause the dismissal of or otherwise prejudice a worker by

reason of union membership or because of participation in
:
 union activities which includes strikes, transfer, selective
dismissal or such other concerted action.

3) Any employer who contravenes subsection 1 and 2 shall be

guilt of an o"ence and liable to a fine under level 14 or to
imprisonment for a period of 5 years or to both such fine and
imprisonment. In addition, the Labour Court shall order
payment of adequate compensation to an employee a"ected by
acts of anti-union discrimination.

THE END

BY ZCTU LEGAL DEPARTMENT:

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