THE Zimbabwe Congress of Trade Unions (ZCTU) is preparing to challenge an appeal by the Employers’ Confederation of Zimbabwe (EMCOZ) against some clauses in the recently amended Labour Act.
While both labour and business have come out strongly against the amended Act, it is their incompatible class interests that have set the stage for a bruising battle that will see workers uncharacteristically fighting in the corner of government, at least for now.
The employers, under the EMCOZ umbrella, are not happy with the provisions that compel them to pay redundant workers at least two weeks’ salary for every year served and also pay compensation to workers who would have been fired for whatever reason.
Section 12 C (2) of the amended Act states: “Unless better terms are agreed between the employer and employees concerned or their representatives, a package (hereinafter called ‘the minimum retrenchment package’) of not less than one month’s salary or wages for every two years of service as an employee (or the equivalent lesser proportion of one month’s salary or wages for a lesser period of service) shall be paid by the employer as compensation for loss of employment (whether the loss of employment is occasioned by retrenchment or by virtue of termination of employment…”
While employers want this clause removed, the workers argue that this is one of the only few instances where the amended Act protects the workers by affording them some form of compensation, albeit not enough.
ZCTU secretary-general, Japhet Moyo, confirmed that the labour umbrella body, through its lawyer, Jeremiah Bamu, was preparing an application to counter EMCOZ’s application in the High Court.
“The law requires that an interested party to a legal process can apply to be enjoined, so one can apply to a court of law (saying) that the issue before the court is going to affect me in one way or the other, I have got interests in the issue, can I therefore, be considered either as a defendant or as an applicant because it is going to affect me. Therefore the application by the employers is going to affect the ZCTU because it’s going to affect members of the ZCTU who are our affiliate members, so we become very, very interested,” he said.
Moyo said the issues being raised by employers in their court application were the same issues that they had been discussing at the Tripartite Negotiating Forum (TNF), which made labour even the more interested in the court case.
He said employers should have taken their case to the forum or the Constitutional Court.
“By approaching the High Court and not the Constitutional Court, EMCOZ has clearly indicated that this is nothing more than a political application that is meant only to cause confusion and uncertainty. If they were really serious they would have approached the Constitutional Court for an authoritative remedy to the matter. We will meet them in court. It is a reckless and cruel application,” charged Moyo.
The ZCTU, Moyo said, was however, cautious in dealing with its partners and would not leave anything to chance in their quest for a pro-worker labour legislation; he noted that the majority in Cabinet and those in the political hierarchy of the ruling ZANU-PF party were now business people and would therefore want a law favouring employers.
There are concerns among those in labour that the employers could have gone to court knowing that those in government would put up a very weak defence as they stood to benefit from the removal of those provisions and that the judiciary would rule in their favour.
“So with a judiciary which has clearly become biased, especially on this issue, it doesn’t surprise us (if the courts rule in favour of the employers). It is a coordinated move, what the employers are doing is being blessed by the government, because government does not want to be the one in the forefront of exploiting workers. So those who believe that there is an act of connivance between business and the government have got a legitimate view,” Moyo said.
The fears by labour could have been vindicated by sentiments made by Industry and Commerce Minister, Mike Bimha, in a long article in a State-controlled daily in which he celebrated the Supreme Court judgment. Pronouncements by government officials before the judgment also clearly indicated that the employers stood to benefit from the judgment.
“Therefore, if the legislation came out to do away with their interests, they will still encourage employers to go to court hoping they will say as government we abide by the law, because government would go along with what the courts have ruled because they have to prove to the international community that there is rule of law in Zimbabwe,” Moyo said.
However, despite their fears, labour still hopes that a tripartite discussion opened by government on the issue would serve as another window for them to argue their case.
“It is another window for labour to strongly thwart the move by business or by government in the disguise of business, which is the second front available to us beside the application to defend this issue. The first is to apply to be enjoined, while the second is going to the TNF to say no to the removal of the provisions because in our view, what is before the courts now and what the position of the employers is at the TNF is literally reversing those provisions; they still want to enjoy the common law to terminate on notice,” noted the trade unionist.
EMCOZ executive director, John Mufukare, filed the High Court application last week through lawyers Lunga Gonese Attorneys, saying the amendments violated the Constitution.