| Issue |
What's
in it for the worker |
| Horizontal
Application of the Constitution and the Bill of Rights |
Clause
4.1 provides that the State and every person, including juristic
persons must respect, protect, promote and fulfil the rights
and freedoms set out in the Bill of Rights. Clause 4.2(2) also
states that the Bill of Rights binds natural and juristic persons
to the extent that it is applicable to them, taking into account
the nature of the right or freedom concerned and any duty imposed
by it. Clause 2(2) provides that the obligations imposed by
the Constitution
are binding on every person, natural or juristic, including
the State and its agencies and must be fulfilled by them.
The collective
effect of these clauses is that the Constitution and the Bill
of Rights specifically apply both to the State and to natural
and juristic persons. In the context of workers' rights,
it means that both the State as a public employer and private
employers in the form of natural persons and companies or
organisations are bound by the Constitution and the Bill of
Rights. Therefore workers can sue the State and any private
employers for violating any rights or failing to honour any
obligations that they are required to observe under the Constitution.
|
| Right
to fair labour practices and standards |
Constitutional
recognition of the right to fair labour practices and standards.
This means if practices and standards at the workplace are not
fair, their constitutionality can be challenged. |
| Right
to safe labour practices and standards |
Health
and safety standards are critical in the life of a worker. Employers
must ensure that they have proper and adequate health and safety
standards to protect workers from harm.
Similarly, the
state must revise all laws on health and safety at the workplace
to ensure that they meet the new constitutional standards.
The state must also raise its law enforcement standards to
ensure that employers abide by the raised health and safety
standards.
|
| Right
to be paid a fair and reasonable wage |
This provides
constitutional recognition and protection of the right to receive
a fair and reasonable wage. Workers can challenge an employer
for not paying a fair and reasonable wage but what this constitutes
will be for the courts to decide. However, it also calls upon
the state to set a clear policy on the minimum wage which must
meet the standards of fairness and reasonableness. |
| Right to
just, equitable and satisfactory conditions of work |
The content
of this will be determined by the courts but overall it means
that working must be fair, reasonable and satisfactory. |
| Right to
form and join trade unions and employee organisations of their
choice, and to participate in the lawful activities of those
unions and organisations |
This
essentially recognises the right to free of association among
workers; that they can freely form and join trade unions and
employee organisations (and to take part in their lawful activities,
which include collective bargaining, strikes, demonstrations,
etc). |
| Freedom
of Assembly & Association |
Every person
has the right to freedom of assembly and association -
under which the above right to join unions or employee organisations
falls. This also includes the right not to assemble or associate
with others and no person may be compelled to belong to an association
or to attend a meeting or gathering. These rights are important
in the workplace as it protects those workers who may be in
the minority from the tyranny of the majority. They cannot be
forced by others to join unions or to attend a meeting or to
participate in a strike. |
| Right to
participate in collective job action, including the right to
strike, sit in, withdraw their labour and to take other similar
concerted action
Freedom to demonstrate
and present petitions
|
Constitutional
recognition of the right to strike, to stage a sit-in, withdraw
their labour and indeed other concerted action. There can be
no doubt whatsoever that these rights are constitutionally provided
for.
These rights must
also be read alongside the freedom to demonstrate and to present
petitions.
|
| Equality
and non-discrimination |
The right
to equality and non-discrimination which can be interpreted
widely to safeguard the rights of workers regardless of their
status. |
| Equal
Opportunities |
Constitutional
protection of the right to equal opportunities between men and
women. |
| Freedom
of Profession, Trade or Occupation |
Every person
has the right to choose and carry on any profession, trade or
occupation, although the practice of a profession, trade or
occupation may be regulated by law. For example the practice
of law, medicine, dentistry, nursing, may quite rightly be regulated
by law. The implication of this right is that every person can
choose to pursue a career that suits them and for example women
cannot be discriminated from a job on account of the belief
that it is only suitable for men. |
| Right to
equal pay between men and women for similar work |
Eliminates
gender discrimination in the workplace by ensuring that there
a right to equal wages for men and women for similar work. |
| Right to
fully paid maternity leave for a period of at least three months |
Women
employees have a clear constitutional right to be paid in full
at least three months' wages during maternity leave. |
| Right to
fully paid maternity leave for a period of at least three months |
Women
employees have a clear constitutional right to be paid in full
at least three months' wages during maternity leave. |
Freedom
of Movement and Residence:
- The
right to move freely within Zimbabwe
- The
right to reside in any part of Zimbabwe, and
leave Zimbabwe
|
This means
any worker is entitled to change work stations freely within
Zimbabwe and to live in any part of the country. Every citizen
also has the right to enter and leave Zimbabwe freely, which
is useful to those who obtain employment outside the country
or those who wish to return to Zimbabwe.
The rights to move
freely within, to reside anywhere and to leave Zimbabwe are
also available to any person regardless of their citizenship,
who is legally in Zimbabwe. This protects the rights of foreign
and expatriate workers.
|
| Right
of access to information |
Workers
benefit from the right of access to information held by all
the State or any person in so far as the information is required
for the exercise or protection of a right. If for example workers
wish to demand fairness in the workplace, they can demand access
to information on pay structures held by the employer, whether
it is the state or private employers. In addition, if an employer
writes a bad reference for an ex-employee out of vindictiveness,
the affected ex-employee has the right to demand access to this
information for example he wishes to take legal action against
the employer. |
| Data
Protection |
Like every
other person workers have the right to ensure that information
about them which is incorrect is corrected. They also have the
right to demand the deletion of untrue, erroneous or misleading
information, which is held by the State or any person (including
employers), and which relates to that person. This means every
employee whose personal data is held by an employer -
including appraisals, references, health condition, etc has
the right to demand access to it and to get it corrected or
deleted if it is incorrect, untrue, erroneous and misleading. |
| Freedom
of Conscience (incorporating religion) |
In the
employment arena, this means no employee can be discriminated
against on the basis of their religion, beliefs, opinions or
thoughts. It also means workers cannot be discriminated against
on the basis of their political or other opinions. |
| Right to
privacy: the right not to have their health condition disclosed |
Workers
are particularly vulnerable to potential disclosures of their
health condition by employers. Such conduct would be a violation
of the right to privacy |
| Right
to privacy: the right not to have their home, premises or property
entered without their permission. |
This means
no one, including the state or the employer may enter a worker's
home, premises or property without the worker's permission.
The only other option would be to seek a warrant of entry from
the courts. Therefore, a dominant employer cannot just force
his or her way into his employer's home or premises without
permission. |
| Right
to privacy: the right not to have their person, home, premises
or property searched |
Some employers
are notorious for implementing search policies on employers'
bodies. Such practices may be challenged for violating a worker's
privacy unless it can be shown that the searches are fair, reasonable
and justifiable in an open, just and democratic society. |
| Right
to privacy: the right not to have the privacy of their communications
infringed |
In the
context of employment, this recognises that workers also have
private lives and their private communications must not be infringed
by employers. This right will have implications on the monitoring
f electronic and telephone communications of workers in an employment
setting. Any employer's actions in relation to workers'
private communications will have to be judged on whether they
are fair, reasonable and justifiable in an open, just and democratic
society. |
| Affirmative
action (4.13(6)) |
Persons
or classes of persons who have previously been disadvantaged
by unfair discrimination can be allowed to benefit from affirmative
action measures to achieve equality as long as the measures
redress circumstances of genuine need. This could assist women
as they seek access to professions or stages in the workplace
that have previously been the preserve of men. It could also
assist persons from certain regions of the country who may have
been previously disadvantaged in certain areas of employment. |
| Freedom
from forced or compulsory labour (4.12) |
A worker
may be made to perform forced or compulsory labour. A contract
of employment has to be by agreement and a worker cannot be
forced to perform labour that is not in his or her contract. |
| Freedom
from Slavery or Servitude (4.11) |
A reaffirmation
that slavery or servitude a strictly prohibited. There are no
exceptions whatsoever to this rule. |
| Freedom
from torture or cruel, inhuman or degrading treatment or punishment
(4.10) |
Although
this is often seen in a political context between the state
and the individual, it is also relevant in the employment context
where an employer holds a position of power over his employees.
Employees must therefore not be treated inhumanely, cruelly
nor must they be subjected to degrading treatment or punishment.
In recent years, there have been reported cases of cruel and
degrading treatment of workers in mining areas and this protection
for workers will be particularly pertinent. This also includes
the right of the protection of every person's dignity
(4.9). |
| Right
to Personal Security (4.9) |
This right
ensures that every person, including workers at the workplace,
has a right to bodily and psychological integrity, which includes
the freedom from all forms of violence from public or private
sources. In the employment context, public sources include the
State or state-related bodies while private sources would also
cover private sector employers. Cases of employees being subjected
to violent conduct from their employers, including sexual harassment
would also fall under this protection. |
| Political
Rights |
Every person,
including workers, is entitled to political rights. This means
that subject to the constitution, workers are also entitled
to make their political choices freely, to join and to participate
in the activities of a political party or organisation of their
choice; to campaign freely and peacefully for a political party
or cause; to participate in peaceful political activity. Teachers
and other public sector workers have borne the brunt of political
violence and intimidation in recent elections. This clause guarantees
their rights but its effectiveness will of course depend on
enforcement. |
| Right
to a Fair Hearing and Right to Administrative Justice |
The protection
of the right to a fair hearing and the right to administrative
justice are critical in the employment sector.
Administrative
Justice
-
Workers are entitled to administrative conduct that is "lawful,
prompt, efficient, reasonable, proportionate, impartial
and both substantively and procedurally fair".
-
The Constitution not only safeguards rights and freedoms
but also interests or legitimate expectations and where
these have been adversely affected by administrative conduct
the worker has the "right to be given promptly and
in writing the reasons for the conduct".
-
The Constitution enjoins the state to ensure that there
are efficient mechanisms for reviews of administrative conduct.
The dismissal or suspension of a worker may for example
constitute "administrative conduct" that is
covered by this article.
-
It is important to note that while the scope of "administrative
conduct" traditionally refers to acts or omissions
of a public officer, in the draft Constitution it is defined
widely to cover any decision, act or omission of a person
performing a function of a public nature, and a failure
or refusal of such a person to reach such a decision or
to perform such an act. This means private actors otherwise
carrying on functions of a public nature can be held accountable
under this provision for example a Church-run school may
be a private institution but because it is carrying on a
function of a public nature, employees such as teachers
at that school may be entitled to rely on the right to administrative
conduct under this clause.
Fair Hearing
The right to a
fair hearing includes:
-
The right to a fair, speedy and public hearing within a
reasonable time before an independent and impartial court,
tribunal or other forum established by law.
-
The right of access to the courts, or to some other tribunal
or forum established by law for the resolution of any dispute.
-
The right to choose and be represented by a legal practitioner
before any court, tribunal or forum.
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