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Labour Amendment Bill, 2005 [H.B.1, 2005]
March 11, 2005

Read Labour Amendment Act, 2005 (Act 7/2005)

This Bill was amended and passed by Parliament on 2nd November, 2005 - Click here for the amended Bill

Read Report of the Parliamentary Legal Committee on the Labour Amendment Bill, 2005 [H.B.1, 2005]
Read First report of the Portfolio Committee on the Labour Amendment Bill, 2005 [H.B.1, 2005]

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LABOUR AMENDMENT BILL, 2005

MEMORANDUM

The Bill will amend the Labour Act [Chapter 29:01] ("the principal Act") in the light of experience gained in implementing it since the last major amendments made to it by the Labour Relations Amendment Act, 2002 (Act No. 17 of 2002). In more detail the provisions of the Bill are as follows :

Clause 1
This clause sets out the Bill’s short title.

Clause 2
This clause will amend the interpretation section of the principal Act by redefining "employee" as the current definition unnecessarily makes "economic dependence" an essential element of an employment relationship. An employer/employee relationship can exist where the employee is not necessarily economically dependent on the employer. The clause further redefines "managerial employee" placing emphasis on the actual function of the employee rather than relate it to the contractual obligation.

The definition of "Minister" has been amended to avoid duplication with the provisions of section 83 of the principal Act.

A new definition of "legal practitioner" has also been inserted into the principal Act.
The clause also amends the definition of "works council" to make provision for the appointment of a chairperson thus clearing the current controversy in establishing functional councils.

Clause 3
The clause repeals section 2A(1)(b). It further repeals subsection (3) and substitutes a new subsection (3) which clearly declares that the Labour Act shall be supreme with respect to all labour relations.

Clause 4
This clause repeals section 3 of the principal Act and substitutes a new section 3 which excludes certain categories of employees from application of the Act.

Clause 5
This clause amends the penalty provision of section 11 of the principal Act by replacing a reference to a dollar amount of a fine with reference to a level of a fine.

Clause 6
This clause sets out clearly, the period of notice each party is to give in terminating a contract of employment where no notice period is given in the contract of employment. The period of notice varies with the duration of each contract as set out in the paragraphs (a) to (e).

Clause 7
This clause amends section 12B of the principal Act by the repeal in subsection (2) of paragraph (b) and substitutes a new paragraph (b).

Clause 8
This clause amends section 12C of the principal Act by the deletion of "two weeks" in subsections (8) and (9). It further repeals subsection (10).

Clause 9
This clause inserts a new subsection in section 13 of the principal Act which seeks to distinguish a retrenchment package from the benefits of an employee is entitled to in terms of this section.

Clause 10
This clause amends section 18 of the principal Act by increasing the period of maternity leave from ninety days to ninety-eight days. It further repeals subsection (4).

Clause 11
This clause provides for the appointment by the Minister of various advisory councils to advise on matters provided for in sections 17, 26, 98, 103 and 104A of the principal Act.

Clause 12
This clause repeals section 22 of the principal Act.

Clause 13
This clause makes the determination of the labour officer final unless the parties agree to refer to the matter to voluntary arbitration.

Clause 14
This clause is amending section 25 of the principal Act by inserting a new subsection creating a right to appeal to the Labour Court against any determination or decision made in terms of subsection (2) of the principal Act. It also repeals subsection (2)(b).

Clause 15
This clause provides that parties to a dispute may refer the dispute to a labour officer who shall deal with the matter in terms of section 93 of the principal Act.

The other amendments are minor and consequential to the amendments made by Act No. 17 of 2002.

Clause 16
This clause repeals section 30(3)(a) as there are no longer any Employment Boards provided for in the principal Act.

Clause 17
Certification of trade unions or employers’ organisation has been done away with and so is this clause is deleting certification or certified where it appears in the section. Subsection (2) has been repealed as it is now no longer necessary. This clause also provides for a right of appeal to the Labour Court against any determination or decision by the Registrar in terms of section 40.

Clause 18
This clause will amend section 45 of the principal Act by repealing subsection (1)(a)(i)B as the requirement to consult non-cooperating stakeholders has proven to be an administrative hurdle in practice.

Clause 19
This clause will reverse the current position in section 48(2) where the noting of an appeal suspended the operation of the decision appealed against.

Clause 20
This clause will amend section 51 of the principal Act by inserting a new subsection which creates the right of appeal to a labour court to any person who is aggrieved by any determination or direction in terms of subsection (2) or (4) of that section.

Clause 21
Designated agents should be able to deal with any dispute or unfair labour practice which has come to his attention or referred to him or her by the employment council in the industry or undertaking for which the employment council is registered.

Clause 22
This clause amends section 74 of the principal Act by inserting additional items to be provided for in collective bargaining agreements.

Clause 23
This clause makes the determination of the labour officer final unless the parties agree to refer the dispute to voluntary arbitration. The provision is doing away with the reference to senior labour officers as the principal Act no longer recognises such a functionary.

Clause 24
This clause repeals section 79(2)(b).

Clause 25
This clause creates the right of appeal to the Labour Court to any person aggrieved by any action taken by the Minister in terms of section 81 of the principal Act. It also repeals subsection (1)(b) of the same section.

Clause 26
This clause makes the Minister responsible for Justice responsible for the administration of Part XI of the principal Act. However, for purposes of section 89(1)(b) of the principal Act, the Minister refers to Minister of Labour and Social Welfare.

Clause 27
This clauses ties up the definition of responsible Minister in section 83 of the principal Act so that it is clear that it is the Minister of Justice, Legal and Parliamentary Affairs being referred to in the section.

Clause 28
This clause is creating an additional section 89(1) of the principal Act vesting review powers to the Labour Court in respect of labour matters. The other amendments relate to the awarding of damages as an alternate to reinstatement where the courts are being called to take into account the factors listed in the proviso in quantifying damages.

Clause 29
This clause will insert a new section 90A which will regulate the procedure and evidence in the Labour Court.

Clause 30
This clause amends the penalty provisions of section 92A of the principal Act replacing a reference to a dollar amount of a fine with a reference to a level of a fine.

Clause 31
This clause repeals section 92D of the principal Act and substitutes new sections 92D to 92F. Section 92D creates a right of appeal to the Labour Court to any person who is aggrieved by a determination made under an employment code.

Section 92E provides for appeals to the Labour Court generally. Unlike in the past, this clause clearly states that an appeal shall not suspend the determination or decision made by an inferior authority. However the Labour Court may make such interim determination as the justice of the case requires. In other words, on good cause shown, the Labour Court may make an order which avoids prejudice to either party pending the determination of the appeal.
Section 92F is allowing an appeal to the Supreme Court only on a question of Law.

Clause 32
The amendment being made by this clause is to make section 93 not only refer to disputes but also to unfair labour practices. Labour Officers should also deal with unfair labour practices. This conforms with other provisions in the principal Act which envisage unfair labour practices being dealt with under section 93 of the principal Act.

Clause 33
This clause repeals section 97 of the principal Act. In order to avoid any doubt as to what is appealable and to what is not appealable, provision creating a right to appeal has been made in various relevant sections of the Act.

Clause 34
This clause is amending section 98 of the principal Act by inserting a new subsection providing for the creation of a council of arbitrators to deal with, among other things, the setting up of conditions of service of arbitrators.

Clause 35
This clause amends section 106 of the principal Act by inserting a proviso which allows the Minister in certain cases to call parties should he or she seem it necessary before a show cause order is issued. Currently show cause orders are ex parte applications.

Clause 36
This clause will amend section 107 of the principal Act to permit the Labour Court to grant applicants power to take up disciplinary action against those who continue on an unlawful collective job action which has been declared unlawful by the Labour Court.

Clause 37
This clause amends the long title of the principal Act by declaring among other things that this Act will give effect to the international obligations of the Republic of Zimbabwe as a member state of the International Labour Organisation and as a member or party to any other international organisation and as a member or party to any other international organisation or agreement governing conditions of employment which Zimbabwe would have ratified.

Clause 38
This clause refers to the Schedule of minor amendments to the principal Act.

Clause 39
This clause repeals section 56 of Export Processing Zone Act [Chapter 14:07] which sought to exclude Export Processing Zones from the jurisdiction of the Labour Act. Employees and Employers operating in Export Processing Zones will now be bound by the provisions of the Labour Act.

Presented by the Minister of Public Service, Labour and Social Welfare

BILL

ENACTED by the President and Parliament of Zimbabwe.

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