LABOUR RIGHTS UNDER ZIMBABWE’S NEW CONSTITUTION:

THE RIGHT TO BE PAID A FAIR AND REASONABLE WAGE

BY MUNYARADZI GWISAI , RODGERS MATSIKIDZE & CALEB MUCHECHE
1 1 1

INTRODUCTION
A fundamental change introduced under s 65 (1) of the new
Constitution of Zimbabwe is the enshrinement of the right of
2

employees to be paid a fair and reasonable wage. It reads:

65 Labour rights
(1) Every person has the right to fair and safe labour practices
and standards and to be paid a fair and reasonable wage.
This provision marks a milestone in the labour law regime of Zimbabwe.
It brings Zimbabwean law in closer conformity with relevant regional
and international instruments.
Although the philosophical basis of the Labour Act is pluralist, with
3

the Act providing that its “purpose is to advance social justice and
democracy in the workplace,” the regime covering wages has been
4

decidedly unitarist. Hitherto neither statutes nor common law had

prescribed the quantum of wages payable to employees. This,
despite perhaps one of the most rallying demands of labour in the
last two decades being the demand for a Poverty Datum Line-
linked living wage. This is understandable, when one considers that
by 2011, nearly 93 per cent of formal sector employees were
earning wages less than the Total Consumption Poverty Line (TCPL),
the generally accepted measurement of poverty. Thus, for most
5

workers, a living wage remains a mirage. They are mired in dire

and debilitating poverty.

1.
Munyaradzi Gwisai lectures in Labour Law and Labour Relations, Faculty of
Law, University of Zimbabwe, and Briggs Zano Working Peoples College.
Rodgers
Matsikidze, LLBS Hons (UZ), MPhil (UZ) is the Chairman of the Department of
Procedural Law, UZ, and a registered legal practitioner. Caleb Mucheche, LLBS

Hons (UZ), LLM (UNISA), LLM (UNILUS), is former Dean, Faculty of Law, ZEGU
and a registered legal practitioner.
2.
Introduced by Constitution of Zimbabwe Amendment (No. 20) Act 2013 (1/
2013).
3.
[Chapter 28:01].
4.
Section 2A (1) of the Act.
5.
ZimStat 2011 Labour Force Survey (Zimstat, Harare, 2012) 53.
204
UZLJ Right to be Paid a Fair and Reasonable Wage 205

The demand for a living wage, not surprisingly, has found echo in
popular musical hits such as Chinyemu by Leornard Dembo and
Mugove by Leornard Zhakata. Indeed, for a nation largely turned
Christian, a demand with Biblical foundations. 6

The conflicts over a living wage, became particularly intense in the

post-dollarisation era after March 2009. On the one hand, labour felt
it deserved a dividend for the immense sacrifices it made in the
preceding period of economic collapse and hyper-inflation running
into billions, which virtually wiped out wages. Employers on the
other hand argue for wage restraints to ensure sustainable
economic recovery. Unreasonable wage increments will kill the
goose that lays the golden eggs, they argue.
This conflict spilled into the courts where differing positions
emerged. One line of cases, starting from the premises of the
interests of the business, took the approach that increments above
the prevailing inflation rate, were grossly unreasonable and against
public policy as in the Tel-One (Pvt) Ltd v Communications & Allied
Services Workers Union of Zimbabwe decision. The other line,7

started off from the premises of the workers’ right to a living

wage, and rejected the approach that saw such increments as
unreasonable per se, as in City of Harare v Harare Municipal Workers
Union. 8

The new Constitution radically changed the situation by, for the first
time in Zimbabwean constitutional history, explicitly providing for
the right to “a fair and reasonable wage.” In this essay we dissect
the implications of this new constitutional right on the law of
remuneration, in the context of international human rights and
labour law and contrasting philosophical and jurisprudential
worldviews.

6.
“Masters, give unto your servants that which is just and equal; knowing that
you also have a Master in Heaven.” “Colossians 4 vs 1” in Holy Bible, King
James version (Christian Art Publishers, 2012). Similar values are stated in
“James 5 vs 4” in Holy Bible King (2012) “Behold, the hire of the labourers
which have reaped down your fields, which is of you kept back by fraud crieth:

and the cries of them which have reaped are entered into the ears of the Lord
of Sabbath.”
7.
2007 (2) ZLR 262 (H); and Chamber of Mines v Associated Mineworkers Union
 of Zimbabwe LC/H/250/2012.
8.
2006 (1) ZLR 491 (H).
206 University of Zimbabwe Law Journal 2019

THE LEGAL FRAMEWORK BEFORE ACT NO. 20 OF 2013

Prior to the new constitutional dispensation the principal methods
for the determination of wages were under common law and
relevant labour statutes.
Under the common law, the amount of wages to be paid is in terms
of the agreement made by the parties under the contract of
employment. What the employer pays for is the availability of the
9

employee’s services and not the value of the product of the actual
work done by the employee. Increments are at the discretion of
10

the employer. Considerations of equity, fairness or reasonableness

11

do not enter into the picture per se. Renowned author RH Christie
puts it thus: 12

The starting point of the common law is that the courts will not
interfere with a contract on the ground that it is unreasonable.
In Burger v Central African Railways 1903 TS 571 Innes CJ said
that:
‘Our law does not recognize the right of a court to release a
contracting party from the consequences of an agreement duly
entered into him merely because that agreement appears to be
unreasonable.’
What is paramount is what the parties themselves see as reasonable
as reflected in the terms of their contract of employment. The main
responsibility of the courts is to enforce this contractual will of the
parties and not seek to second-guess adult free persons. The 13

emphasis is on the market as the principal and most fair manner of

determining a reasonable wage. Hepple B captures it well:
The freedom of the employer and worker from the interference
of the state in the labour market, the freedom of the contracting

9.
National Railways of Zimbabwe v National Railways Contributory Fund 1985
(1) ZLR 16 (S);Gladstone v Thornton’s Garage 1929 TPD 116; A Rycroft and B
Jordaan A Guide to South African Labour Law 2 ed (Juta, 1992) 67.
nd

10.
Commercial Careers College (1980) (Pvt) Ltd v Jarvis 1989 (1) ZLR 344;
Belmore
v Minister of Finance 1948 (2) SA 852 (SR).
11.
Chiremba (duly authorized Chairman of Workers Committee) and Ors v RBZ
2000 (2) ZLR 370 (S); Chubb Union Zimbabwe (Pvt) Ltd v Chubb Union Workers
Committee S 01/01. Also: Nare v National Foods Ltd LRT/MT/38/02.
12.
R H Christie The Law of Contract in South Africa 5 th ed (LexisNexis, 2009) 14.
13.
As put by INNES CJ in Wells v South African Alumenite Company 1927 AD 69 at
73: “No doubt the condition is hard and onerous; but if people sign conditions
they must, in the absence of fraud, be held to them. Public policy so
demands.
UZLJ Right to be Paid a Fair and Reasonable Wage 207

parties and the freedom of private will to determine the content

of the contract. 14

The legal philosophy underpinning common law is clearly utilitarian

and reflected in the theory of labour relations of unitarism. The
individual parties, meeting in the free market, are the ones who
know what is best for themselves. Allowing such individual parties
maximum contractual freedom will derive not only maximum
benefit for the parties but society at large. Unitarism is a theory
15

that places a premium on the unity of interests and goals between

labour and capital in the employment relationship, but within a
framework in which capital enjoys undoubted superior status. 16

Conflict is unnatural and dysfunctional.

This free market based conception underlies the decision in Tel-One
(Pvt) Ltd v Communications & Allied Services Workers Union of
Zimbabwe, supra. In such case, the arbitrator had awarded a 266%
wage increment across the board. The employer made an
application to the High Court to set aside the award on the ground
that it was in violation of Zimbabwe’s public policy. It argued that
17

it was grossly unreasonable as it would result in over 130% of its

overall income going to wages. In setting aside the award,
HUNGWE J, at 266A-C, ruled:
There is no doubt in my mind that the spirit of collective
bargaining between employer and employee is to arrive by
consensus or, if that fails, by arbitration, at what a fair wage is.
The idea is to preserve the employer-employee relationship.
The employee makes his labour available for a fair fee. The

‘If there is one thing which more than another public policy requires, it is that
men of full age and competent understanding shall have the utmost liberty of
contracting, and that their contracts when entered into freely and voluntarily
shall be held scared and shall be enforced by courts of justice. Therefore, you
have this paramount public policy to consider – that you are not lightly to
interfere with this freedom of contract.’ (per JESSEL M.R. in Printing and
Numerical Registering Co. v Sampson [1875]LR 19 Eq. 462 at 465).” See also: R
Epstein, “In defence of the contract at will” 51 Chi. L. Rev. (1984) 947; A
Rycroft and B Jordaan op cite 10 – 17.
14.
B Hepple (ed) The making of labour law in Europe (Mansell, 1986).
15.
J S Mill, “On Liberty”in John Stuart Mill: A Selection of His Works J M Robson
(ed) (Macmillan, 1966) 13 – 19.
16.
M Finnemore Introduction to Labour Relations in South Africa 10th (ed)
(LexisNexis) 2009) 6.
17.
Under art 34 (2) (b) (ii) of the Arbitration Act [Chapter 7:15].
208 University of Zimbabwe Law Journal 2019

employer engages the employee on acceptable terms and

conditions. The employer employs his resources to ensure that
the goose that lays the eggs for their mutual benefit continues
to do so. Society expects these mutually beneficial outcomes.
The economy thrives and so does the community generally and
its members in particular. An award that plunges the apple-cart
over the cliff in my view could not be said to be in the best
interest of the general good of Zimbabwe...
The court proceeded to place at the pinnacle of considerations to be
made when determining whether a wage increment was reasonable,
the ability of the employer to pay:
In all work situations salaries and wages are limited by an
employer’s ability to pay. The courts and indeed all tribunals
delegated with decisions of a financial nature would be failing in
their duty if they were to will-nilly give awards whose effect
would be to drive corporations into insolvency thereby destroying
the economic fabric of the nation. Such awards would defeat the
very purpose they are meant to serve. As such they are liable to be
set aside as being in conflict with the public policy of Zimbabwe...
The Labour Court went further in Chamber of Mines v Associated
Mineworkers Union of Zimbabwe. In that case the trade union had
18

made a demand of 55% wages increment whilst the employer offered

5%, roughly the prevailing inflation rate. The Labour Court set aside
the 20% increment by the arbitrator, as being outrageous. The court
observed:
Thus it is high time the labour advocacy institutions migrate
from the hang-over of the hyper-inflationary environment to
the current multi-currency stable environment. This will ensure
sustainability of the workers’ welfare and also ensure economic
development… The inflation level obtaining in the country is at
about 5% which should provide an essential guide for salary
negotiations…
Whilst workers should be remunerated fairly, l do not believe it
is reasonable to do so at the expense of the sustainability of the
companies which pay them… I am satisfied that the Chamber
has justified the setting aside of the arbitral award. Whilst it is
necessary to raise the workers’ salaries, the raise should be in
tandem with the inflationary levels, production levels, and other

18.
LC/H/ 250/2012.
UZLJ Right to be Paid a Fair and Reasonable Wage 209

costs. I am satisfied that a blanket raise by 20% is outrageous. A

5 % raise meets the justice of the case.
In neither of the above cases did the court seek to balance or place
in context the economic factor of the employer’s business interest
with the other factors that are accepted under appropriate
international labour standards. These factors include economic –
19

social factors such as productivity, standards of living in the country

and the average wages in the country as well as the needs of the
worker and their family and the specified purposes of the Labour
Act.
Given that Zimbabwe has ratified some of the important ILO
instruments on wage-fixing, these should have been of high
persuasive authority to the courts in determining what a grossly
unreasonable wage increment was. It would have required a
20

contextual and balanced approach, weighing the factors based on

the interests of the business such as ability to pay and profitability
and those in favour of the needs of the worker and their family such
as the bread basket and PDL. In doing so the courts would have been
guided by the fact that the specified objective of the Labour Act is
to advance social justice in the workplace and that Zimbabwe has
ratified regional and international instruments that provide for the
employee’s right to

19.
Zimbabwe has ratified important ILO conventions dealing with wages
including:
ILO 026 Convention: Minimum Wage Fixing Machinery (Manufacturing,
Commerce, Domestic Sectors) (1928); ILO 099 Convention: Minimum Wage
Fixing
Machinery (Agriculture) (1951). There are also other relevant ILO instruments,
which Zimbabwe has not ratified such as: ILO 131 Convention: Minimum Wage-
Fixing (1970); ILO 135 Recommendation: Minimum Wage Fixing
Recommendation
(1970).
20.
The Long Title of the Labour Act stipulates that one of the objectives of the
Act is “to give effect to the international obligations of the Republic of
Zimbabwe as a member state of the international Labour OrganisationÉ” The
Labour Court has in other instances, correctly in our view, used relevant ILO
conventions to help interpret provisions of the Labour Act as was done in:
Mavisa v Clan Transport LC/H/199/2009 applying ILO 135 Convention: Workers
Representatives Convention (1971); ILO 087 Convention: Freedom of
Association
and Protection of the Right to Organise (1948) to help interpret the provisions
of s 14B( C ) and s 29 (4a) of the Act; and Chamwaita v Charhons (Pvt) Ltd LC/
H/215/2009 applying provisions of the Termination of Employment
Convention,
1982 (C 158). Generally on the appropriateness of using principles under
relevant
international treaties – see section 15B of the Interpretation Act [Chapter
1:01]
and Kachingwe, Chibebe and ZLHR v Minister of Home Affairs and
Commissioner
of Police 2005 (2) ZLR 12 (S) and S v Moyo & Ors 2008 (2) ZLR 338 (H) at 341E-
F
210 University of Zimbabwe Law Journal 2019

“just and favourable remuneration.” In any case the courts should

21

have been bound by the principle that the grounds on which an

arbitral award can be set aside for contravention of public policy in
particular unreasonableness, are of a very limited nature. The 22

courts were clearly guided by a unitarist approach to labour

relations yet one which is inconsistent with the specified objectives
of the Act. This was obviously in tandem with the dominant
ideological thrust during the Government of National Unity, which
tended to emphasize free- market values. This was aptly captured in
the 2010 Budget Statement of the then Minister of Finance, T Biti,
wherein he stated: 23

The review of the role of arbitrators in awarding wage

adjustments that bear no relationship to the competitiveness
of most industries and indeed the entire economy, is unavoidable.
Failure to nip in the bud unsustainable wage awards will be
swiftly punished in the global village as our products price
themselves out of the market, both locally and in the export
markets.

REGULATION OF WAGES UNDER THE LABOUR ACT AND PUBLIC SERVICE ACT
The regulation of wages under statutes had not gone too far beyond
the common law. In the public sector wages and related benefits
were set by the Public Service Commission with the concurrence
of the minister responsible for finance. The Commission was
24

required to consult the recognized public sector associations and

organizations before setting the terms and conditions including
remuneration, but failure to consult or to reach agreement with the
associations did not invalidate any wage regulations so made. The 25

Public Service Act does not provide for the right of employees to “a
fair and reasonable wage” but only provides public sector employees
to an enforceable

21.
Article 23 (3) Universal Declaration of Rights; art. 14 (b) Charter of
Fundamental
Social Rights in SADC.
22.
Discussed in detail, infra 7.
23.
Cited in: 25 Labour Relations Information Service 3 (June – August 2012) 2.
The Finance Minister repeated the same sentiments in the November 2011
Budget Statement stating: “Stakeholder submissions by industry as well as the
labour movement acknowledge rising incidences of wage demands divorced
from productivity by workers unions and arbitration awards that fail to take
into account affordability at company levels.”
24.
Section 19 (1) as read with s 8 (1) of the Public Service Act [Chapter 16:01]. 25.
See section 20 (1) and (2) of the Public Service Act as read with s 73 (2)
Constitution of Zimbabwe 1979 (SI 1979/1600 of the United Kingdom).
UZLJ Right to be Paid a Fair and Reasonable Wage 211
right to remuneration. The only major modification to common law
26

is the requirement that salaries be fixed to by reference to,

“academic, professional or technical qualifications or the
attributes necessary for the efficient and effective execution of the
tasks attached to the post.” 27

The above provision is important in so far as it limits the arbitrary

discretion of the employer to differentiate between wages of
employees in different grades as would otherwise be allowed under
the common law. Nonetheless, it does not advance the employee’s
cause for a fair and reasonable wage.
The employment relationship in the private sector is generally
covered by the provisions of the Labour Act [Chapter 28:01]. The
situation was only marginally different from that under common law.
The Act does not specifically provide for a right to “a fair and
reasonable wage,” whether as a fundamental right, a specified fair
labour practice or under its mandatory minimum wages regime.
Under Part 2, the Act provides for various fundamental rights of
employees, including the right to fair labour standards. Section 6 (1)
creates a fundamental duty of the employer to pay the prescribed
remuneration, but the section does not expressly provide for a fair
labour standard of fair and reasonable wages. It merely compels the
employer not to pay a wage which is lower than that specified by
law or agreement:
No employer shall pay any employee a wage which is lower than
that to (sic) fair labour standard specified for such employee by
law or by agreement.
Mandatory minimum wages may be set in terms of sections 17and 20
of the Act. Under section 17 (3) as read with section 17 (1)the
Minister of Labour may, after consultation with the Wages Advisory
Council, make regulations providing for, inter alia:
17 (3) (a) the rights of employees, including minimum wages,
benefits, social security, retirement, and superannuation benefits
and other benefits of employment;

26.
Section 22, Public Service Act.
27.
Section 20 (2) Public Service Regulation 2000 (SI 1/2000).
212 University of Zimbabwe Law Journal 2019

Section 20 further provides, inter alia, that:

20(1) The Minister may, by statutory instrument –
(a) In respect of any class of employees in any
undertaking or industry –
(i) specify the minimum wage and benefits in
respect of such grade of employees;
(ii) require employers to grant or negotiate
increments on annual income of such minimum
amount or percentage as he may specify;
and prohibit the payment of less than such specified
minimum wage and benefits or increments to such
class of employees;
(b) …
(c) …
(d) give such other directions or make such other
provision as he may deem necessary or desirable to
ensure the payment of a minimum wage or benefits
to any class of employees;
(e) provide for exemptions from paragraphs (a), (b), (c)
and (d).
Where a minimum wage notice is issued in terms of these provisions
every contract of employment or collective bargaining agreement
has to be modified or adapted to the extent necessary to bring it
into conformity with the minimum wages regulations. However, it is28

again noted that there are no specific minimum standards by

which the Minister sets the minimum wages, including that the
minimum wages be “fair and reasonable wage” or guarantee the
employees “a decent standard of living.”
Another platform for regulation of wages under the Labour Act
relates to statutory collective bargaining agreements made in terms
of Part VIII and Part V of the Act. These may be industry-wide
agreements made under a National Employment Council or a
workplace agreement made under a Works Council. However, as
with the ministerial wage regulations, there are also no prescribed
minimum standards by which the agreements must adhere. Thus 29

the parties are free to negotiate

28.
Section 17 (3) of the Act.
29.
See the bargaining agenda set in s 74 (3) of the Act which includes: “Érates of
remuneration and minimum wages for different grades and types of
occupation...”
UZLJ Right to be Paid a Fair and Reasonable Wage 213
what they deem fit as a fair or reasonable wage. The parties though,
do not have absolute freedom. Firstly, reflecting the state
corporatist origins of the Act, the Minister of Labour has residual
power to direct the renegotiation of an agreement which the Minister
feels has become:
(a) inconsistent with this Act or any other enactment or –
(b) ….
(c) unreasonable or unfair, having regard to the respective
rights of the parties. 30

The Act does not define the phrase “unreasonable or unfair.” The
discretion is left with the Minister. It may be argued though that the
Minister may generally be guided by the objects of the Act specified
in section 2A (1). The later though, can only take the argument so
far, because neither s 2A (1) nor the Act in general provides for an
explicit fair labour standard of a right to a fair and reasonable wage.
Secondly, a party aggrieved by an award made under compulsory
arbitration can appeal to the Labour Court on a question of law, or 31

if made through voluntary arbitration, make an application to the

High Court to set it aside as being, inter alia, in contravention of the
public policy of Zimbabwe. It has been held that an appropriate
32

ground on which an award may be held to be in contravention of the

public policy of Zimbabwe, is where the award is deemed grossly
unreasonable. But the courts have generally held that the ground
33

of “unreasonableness” is of very limited use in such applications or

appeals and the party who seeks to establish this bears “a
formidable onus” to show that the award made is “so outrageous in
34

defiance of common sense and logic.” This is why the bar set in
35

Chamber of Mines v Associated Mineworkers Union of Zimbabwe,

supra, of using the inflation rate as the essential basis of judging
reasonability or

30.
Section 81 (1).
31.
Section 98 (10). See Chamber of Mines v Associated Mineworkers Union of
Zimbabwe, supra n. 7.
32.
Article 34 (2) (b) (ii), Arbitration Act [Chapter 7:15]. Tel-One (Pvt) Ltd v
Communications & Allied Services Workers Union of Zimbabwe 2007 (2) ZLR
262 (H).
33.
Tel-One (Pvt) Ltd v Communications & Allied Services Workers Union of
Zimbabwe ibid; and Chamber of Mines v Associated Mineworkers Union of
Zimbabwe, op cite n 7.
34.
Cargo Carriers (Pvt) Ltd v Zambezi & Ors 1996 (1) ZLR 613 (S).
35.
Chinyange v Jaggers Wholesalers SC 24/03; Beazley NO v Kabel & Anor SC/22/
03; ZESA v Maposa 1999 (2) ZLR 452 (S).
214 University of Zimbabwe Law Journal 2019

otherwise of an award without regard to the specified objectives of

the Labour Act and considering all other relevant factors such as the
needs of the worker, was too low and inconsistent with case
authority.
From the above it becomes clear that the Labour Act does not
compel the employer to pay “a fair and reasonable wage,” let alone
a living wage. At most s 2A(1), may be used as an interpretation
tool to determine what is a fair and reasonable wage in relation to
minimum wages notices decreed by the Minister, or directions by the
Minister for renegotiations of collective bargaining agreements or in
relation to wage awards made by arbitrators. However, the
36

absence of an explicit inclusion in the Act of the employees’ right

to a fair and reasonable wage whether as a fundamental right of
employees or as a fair labour standard, makes the potential use of s
2A (1) as a basis for such right tenuous and unlikely. This is moreso
in view of the already declared skepticism of the Supreme Court on
the generalized use of this section. 37

RIGHT TO FAIR AND REASONABLE WAGE AND APPROPRIATE INTERPRETATION MODEL

The preceding survey of the legal framework prevailing prior to Act
No. 20/2013 shows that Zimbabwean law did not provide for a fair
and reasonable wage or a living wage. Not surprisingly the demand
for the right to a fair and reasonable wage or a living wage was one
of the primary demands of workers and trade unions in relation not
only to labour law reform but constitutional reform as well.
This was aptly captured in the National Constitution Assembly Draft
Constitution. 38

This demand is manifest in s 65 (1) of the new Constitution.

Although this section is clearly inspired by s 28 (1) of the NCA Draft
Constitution
36.
By reliance on s 2A (2) of the Act providing that the Act “ ... shall be
construed
in such manner as best ensures the attainment of its purpose referred to in
subsection (1).”
37.
In United Bottlers v Kaduya 2006 (2) ZLR 150 (S) at 155B-C, CHIDYAUSIKU CJ
observed in relation to s 2A says“The section is not a wholesale amendment of
the common law. The common law can only be ousted by an explicit provision
of the Labour Act.”
38.
Section 28 (1), NCA Draft Constitution (2001), s 28 (1) providing: “Every worker

has the right to fair and safe labour practices and standards and to be paid at
least a living wage consistent with the poverty datum line.”See generally, M
Gwisai The Zimbabwe COPAC Draft Constitution and what it means for Working

People and Democracy (ZLC, 2012) 54.

UZLJ Right to be Paid a Fair and Reasonable Wage 215
but not going as far as the later in providing for a living wage
consistent with the poverty datum line, the enshrinement of the
right to a fair and reasonable is still of profound significance. It has
provided what has so far been the critical missing link in the legal
framework, and which allowed the common law and unitarist based
approach to reign with impunity.
For the first time in Zimbabwean labour history, statute law now
provides for the regulation of wages based on normative values of
fairness and reasonableness, something which is alien to common
law and was omitted in the statutory framework. This is even done
at the highest possible level, namely as an enshrined fundamental
right under the Declaration of Rights. What had been missing as a
directly specified fair labour standard in the purposes of the Labour
Act under s 2A (1) is now provided for, but now as a constitutional
right.

THE TEST FOR “A FAIR AND REASONABLE WAGE” UNDER INTERNATIONAL LAW
Although the Constitution does not directly define the phrase “a fair
and reasonable wage,” it provides clear guidelines to be used in
interpreting the phrase. In the first instance in interpreting the
Declaration of Rights, one is required to give full effect to rights
provided in the Constitution and to promote the values that underlie
a democratic society based on inter alia justice and human dignity. 39

This is strengthened by s 46 (2) of the Constitution which requires

that when any court or tribunal is interpreting an enactment and
when developing the common law, it must promote and be guided
by the spirit and objectives of the Declaration of Rights. 40

Critically further, the courts and tribunals are required to “take into
account international law and all treaties and conventions to which
Zimbabwe is a party.” Of particular further importance are the
41

provisions of s 327 (6) of the Constitution. This provides:

When interpreting legislation, every court and tribunal must
adopt any reasonable interpretation that is consistent with any
international convention, treaty or agreement which is binding
on Zimbabwe, in preference to an alternative interpretation
inconsistent with that convention, treaty or agreement.

39.
Section 46 (1) (a) (b) of the Constitution.
40.
Which is also reinforced in s 176 of the Constitution.
41.
Section 46 (1) ( c ) of the Constitution.
216 University of Zimbabwe Law Journal 2019

The phrase “a fair and reasonable wage” is in fact derived from

international law instruments, most of which Zimbabwe has ratified.
These must provide guidance on how it is interpreted by virtue of s
46 and s 327 (6) of the Constitution.
Firstly art. 14 (b) of the Charter of Fundamental Social Rights in
SADC 2003, provides:
(b) Workers are (to be) provided with fair opportunities to
receive wages, which provide for a decent standard of
living; … (emphasis added).
Zimbabwe is also party to the Universal Declaration of Human Rights
1948, whose art.23 (3) provides:
Everyone who works has the right to just and favourable
remuneration ensuring for himself and herself existence worthy
of human dignity…
Zimbabwe has also ratified the International Covenant of Economic,
Social and Cultural Rights 1966 whose article 11 (1) provides:
Everyone has a right to a standard of living adequate for the
health and well-being of himself or herself and his or her family
including food, clothing, housing, medical care and necessary
social services…
The International Labour Organisation has several instruments
dealing with minimum-wage fixing. Perhaps the most relevant are
42

ILO 131 Convention: Minimum Wage-Fixing (1970) and ILO 135

Recommendation: Minimum Wage-Fixing (1970). In terms of article 1
of ILO R135, one of the key factors to be considered in wage fixing is
the need to “… to overcome poverty and to ensure the satisfaction
of the needs of all workers and their families…”
In terms of the specific elements to be considered when determining
an appropriate minimum wage that realizes the above purposes,
article 3 of ILO C131 states these as, subject to national practice
and conditions:... 43

42.
See for instance: ILO 026 Convention: Minimum Wage-Fixing Machinery; ILO
030 Recommendation: Minimum Wage – Fixing Machinery; ILO 099 Convention:
Minimum Wage-Fixing Machinery (Agriculture) (1951).
43.
ZimStat, “Appendix: Summary of International Labour Organisation (ILO)
position
on Poverty Datum Line in relation to wages and salaries” (ZimStat, 2013).
UZLJ Right to be Paid a Fair and Reasonable Wage 217

(a) The needs of workers and their families, taking into account
the general level of wages in the country, the cost of living,
social security benefits, and the relative living standards
of other social groups;
(b) Economic factors, including the requirements of economic
development, levels of productivity and the desirability
of attaining and maintaining a high level of employment.
Therefore under ILO instruments the decided bias in the fixing of
minimum wages is the “human factor”, that is the needs of the
worker and their family to live a poverty-free life but this done
within prevailing “national practice and conditions” including
economic and social considerations.
The influence on the above ILO conventions is a pluralist conception,
at the centre of which is poverty reduction and collective bargaining
as key factors. The instruments provide for two broad considerations
to be made, encompassing both worker friendly and employer
friendly factors, but with the specified fundamental purpose being
poverty reduction and ensuring the satisfaction of the needs of the
worker and their family. This frame-work allows flexibility in the
determination of what is fair and reasonable wage, taking into
account the concrete realities in each given country, with effective
collective bargaining providing the yard-stick of what is appropriate
national practice. The underlying theoretical basis is pluralism,
especially the adversarial version. This has been defined as a theory
of labour relations in which employers accept the inevitability and
need for collective regulation of the employment relationship, in
particular through collective bargaining. 44

Following on the above international instruments, the concept of a

just or fair remuneration has had major influence in recent
constitutional reform on the continent and globally including,
Kenya, Malawi and Mozambique. Perhaps the fullest expression is
45 46 47

to be found in article 91 of the Constitution of Venezuela, which

provides:
44.
M Finnemore op cite 144-145.
45.
The Constitution of Kenya, 2010 provides in s 41 (2) (a): “(1) Every person has
the right to fair labour practices. (2) Every worker has the right – (a) to fair
remunerationÉ..”
46.
See s 31 (1), Constitution of Malawi, providing: “31 (1) Every person shall have
the right to fair and safe labour practices and to fair remuneration.”
47.
Article 89 (1) of the Constitution of Mozambique provides: “Labour shall be
protected and dignified ... the State shall promote the just distribution of
the proceeds of labour.”
218 University of Zimbabwe Law Journal 2019

Every worker has the right to a salary sufficient to enable him

or her to live with dignity and cover basic material, social and
intellectual needs for himself or herself and his or her family.
The payment for equal salary for equal work is guaranteed, and
the share of the profits of a business enterprise to which workers
are entitled shall be determined… The State guarantees workers
in both the public and private sector a vital minimum salary
which shall be adjusted each year, taking as one of the references
the cost of a basic market.
The Australian case of Ex Parte H.V. McKay 1907 provides perhaps
the most elaborate statement of the test for a “fair and reasonable
wage.” In that case the court had to determine what was meant by
the phrase “fair and reasonable wages” in an enactment which
provided duty exemption for Australian manufacturers paying such
wages. The court held:
The provision for fair and reasonable remuneration is obviously
designed for the benefit of the employees in the industry; and
it must be meant to secure to them something which they cannot
get by the ordinary system of individual bargaining with
employers. The standard of ‘fair and reasonable’ must,
therefore, be something else; and l cannot think of any other
standard appropriate than the normal needs of the average
employee, regarded as a human being living in a civilized
community…
The court went on to state that whilst there is need to balance the
different factors, the “first and dominant factor” in ascertaining a
“fair and reasonable” wage for an unskilled employee are the
“normal needs of the average employee, regarded as a human being
living in a civilized community.” And that a wage cannot be regarded
as fair and reasonable, “ if it does not carry a wage sufficient to
insure the workman food, shelter, clothing, frugal comfort,
provision for evil days, etc as well as reward for the special skill of
an artisan if he is one.”
The Court stated that the standard is an objective one, which is not
dependant on the profitability of the business, but rather the needs
of the employee:
… the remuneration of the employee is not made to depend on
the profits of the employer. If the profits are nil, the fair and
reasonable remuneration must be paid; and if the profits are
100 per cent, it must be paid. There is far more ground for the
UZLJ Right to be Paid a Fair and Reasonable Wage 219

view that, under this section, the fair and reasonable

remuneration has to be paid before profits are ascertained –
that it stands on the same level as the cost of the raw material
of the manufacture.
The same conclusion was reached in the American case of Morehead
v New York ex rel. Tipaldo. Dealing with a similar provision the
48

Industrial Court of Kenya held that: 49

The terms fair and reasonable are to be interpreted in the

context of the standards at a particular work place, the national
labour standards and with due regard to international labour
standards.
The concept of “a fair and reasonable wage” therefore encapsulates
the concept of the bread-basket or a living wage that ensures a
dignified or decent standard of living, as the starting and primary
point. The most scientific method of measuring standards of living is
the Poverty Datum Line (PDL). The PDL is a general measurement of
standards of living and poverty. It represents “the cost of a given
standard of living that must be attained if a person is deemed not to
be poor.” 50

To measure standards of living, two measures are generally used,

namely the Food Poverty Line (FPL) and the Total Consumption
Poverty Line (TCPL). The FPL “represents the minimum
consumption expenditure necessary to ensure that each individual
can, (if all expenditures were devoted to food), consume a
minimum food basket representing 2 100 kilo calories.” An
individual whose total consumption expenditure does not exceed
the food poverty line is deemed to be very poor.
On the other hand the TCPL is derived “by computing the non-food
consumption expenditure of poor households whose consumption
expenditure is just equal to the FPL. This amount is added to the
FPL.” An individual whose total consumption expenditure does not
51

exceed the total consumption poverty line is deemed to be poor.

Therefore the human factor, in particular the need to prevent
poverty is the key determinant of a ‘fair and reasonable wage.” This
generally
48.
298 US. 587 (1936).
49.
VMK v CUEA [2013] KLR in interpreting s 41 (2) (a), Constitution of Kenya,
2010, which provides: “Every worker has the right – (a) to fair remuneration”
50.
ZimStat (2012) 53.
51.
ibid.
220 University of Zimbabwe Law Journal 2019

would be PDL-Linked. This is the ‘first and dominant factor.”

Employers
who seek to pay less than this wage, therefore have the onus to
establish compelling reasons why this should be so, by for instance
reference to the other factors such as economic and financial. But
the burden is onerous and heavy because of the primacy of the
human factor. Where incapacity is raised, there must be full
financial disclosure by the employer. In Ex Parte H.V. McKay,
supra, it was held that there is no general obligation on an employer
to give full financial disclosure on its finances, but only if the
employer is paying a fair and reasonable wage, otherwise it would
have such duty.
The above conception of a “fair wage” is also aptly captured in the
Marxist theory of labour relations as expressed by F. Engels.
According to him a fair wage is one consistent with what he terms
the Law of Wages, namely: 52

Now what does political economy call a fair day’s wages and a
fair day’s work? Simply the rate of wages and the length and
intensity of a day’s work which are determined by competition
of employer and employed in the open market. And what are
they, when thus determined? …. A fair day’s wages, under normal
conditions, is the sum required to procure to the labourer the
means of existence necessary, according to the standard of life
in his station and country, to keep himself in working order and
to propagate his race. The actual rate of wages, with the
fluctuations of trade, may be sometimes below this rate; but,
under fair conditions that rate ought to be the average of all
oscillations.
IMPLICATIONS OF INTERNATIONAL LAW ON ZIMBABWEAN LAW
The thrust of the above on the position in Zimbabwean law is
profound. By virtue of sections 46 and 327 (6) of the Constitution,
the phrase “fair and reasonable wage” in s 65 (1) must therefore be
interpreted consistent with the above international law
instruments which Zimbabwe has ratified and which give primacy to
the human factor.
In other words, by enshrinement of the right to a fair and reasonable
wage in the Declaration of Rights there is a nod towards minimum
wages being at least those that provide adequate food, clothing,
shelter, healthcare, education of children, frugal comfort and social
security taking into account the general standard of living and cost
of living in the country by reference to the PDL.
52.
F Engels, “A Fair Day’s Wages for a Fair Day’s Work,” The Labour Standard 7
May 1881 in Inqaba ya Basebenzi 2 (Aug-Oct 1983) 7.
UZLJ Right to be Paid a Fair and Reasonable Wage 221
The above means the approach followed in the Chamber of Mines
case, supra, is decidedly no longer good or binding authority under
the new constitutional dispensation. Such decision, which was based
on the sole consideration of the inflation rate and interests of the
business, cannot clearly stand in view of s 65 (1) of the new
Constitution. In terms of the later, considerations of fairness require
balancing both the business factors and the human factor but with
first priority being given to the human factor.

ONUS AND EVIDENTIARY BURDEN

The above interpretation means that s 65 (1) of the Constitution has
now set a general standard of remuneration by which all employees
should be paid, but like all general rules, excerptions are applicable
in appropriate circumstances. The onus though, lying on the party
seeking to resile from the general rule to show compelling reasons
why it should not.
This means in effect that the Constitution shifts the onus to the
party who says it cannot comply with such standard to provide
adequate reasons why it cannot. This means that where an employer
seeks to pay less than a PDL-linked wage, the employer has the onus
to prove compelling reasons why this should be so. If the
employer pleads financial incapacity to pay fair wages, then it
follows that the onus shifts to the employer to establish this and
generally the burden is high because this is a justiciable right
provided in the Declaration of Rights.
The employer has a duty of full disclosure. This may pertain to areas
such as the overall pay-roll, in particular the distribution of salaries
between the highest paid categories and the lowest paid ones, as
was held required in the case of City of Harare v Harare Municipal
Workers Union. Additional details of this duty are provided in
53

Sections 75 and 76 of the Labour Act. Section 75 establishes a duty

to negotiate in good faith whereby all parties to the negotiation of
a collective bargaining agreement are required to disclose “all
information relevant to the negotiation including information
contained in records, papers, books and other documents.” Section
76 establishes a duty of full financial disclosure where financial
incapacity is alleged. It reads:
(1) When any party to the negotiation of a collective bargaining
agreement alleges financial incapacity as a ground for his

53.
2006 (1) ZLR 491 (H).
222 University of Zimbabwe Law Journal 2019

inability to agree to any terms or conditions, or to any

alteration of any terms or conditions thereof, it shall be
the duty of such party to make full disclosure of his
financial position, duly supported by all relevant
accounting papers and documents to the other party.
In terms of the above, especially where there are allegations of
astronomical salaries and benefits being paid to top management,
the employers would have a duty to disclose details such as housing
allowances; education allowances for managers’ dependants; vehicle
and fuel benefits; club subscriptions and so forth. Similarly is the
duty to disclose details of capital investment plans in the last few
years and projections in the near future, details of the profits or
otherwise made by the company; the dividend attributed to the
owners or share-holders and so forth. This duty of full financial
disclosure is already widely practiced in industry in relation to
applications for exemptions, including with appropriate measures
to protect confidentiality.
Alternatively or additionally, the employer may need to provide
mitigatory measures, such as an increment for a shorter duration;
subsequent cost of living adjustments; special bonuses on increased
production or employee share ownership or profit-sharing schemes.
Failure to fulfill the above, means the employer would have failed
to discharge the onus on it, and therefore must pay the PDL-linked
living wage as was done in City of Harare v Harare Municipal Workers
Union, supra, where CHITAKUNYE J upheld an award of 120% by an
arbitrator and held:
The arbitrator carefully considered the interests of both parties
as portrayed by the parties before him. The applicant’s argument
of inability to pay was well considered… The substantive effect
of the award was simply to awaken the applicant to the realities
of today’s economy…Applicant argued that respondents should
not concern themselves with what is being awarded to other
employees or officers of the applicant. But surely, the
respondents are entitled to point out that those categories of
employees or officials are getting astronomical salaries which
may in fact be eating more into the applicant’s revenue than
the paltry salaries and allowances the lowly paid workers are
getting. The applicant appeared not to be comfortable to deal
with this and appeared content to brush it aside. But surely if
you have an entity that pays astronomical salaries to its top
heavy management and officers but that same entity is reluctant
UZLJ Right to be Paid a Fair and Reasonable Wage 223

to pay its lowly paid workers a living wage, can such an entity
sincerely cry bankruptcy if ordered to pay its lowly graded
workers a meaningful salary? There was simply nothing to fault
the arbitrator in arriving at the decision he gave on what was
placed before him. At 494D-F

CONCRETE IMPLICATIONS ON CURRENT REVIEW OF WAGES

At this stage in Zimbabwe’s history it cannot be sufficient to only
consider the inflation rate, when the prevailing minimum wages are
still less than half of the PDL and in fact where only 6 percent of
paid employees in 2011 were receiving an income above the TCPL as
shown in Table 1. 54

Table 1: Percent Paid Employees Aged 15 Years and Above Paid Cash Only or Both in
Cash and in Kind by Type of Employment and Cash Received in the Month Preceding
the Survey, 2011 LFCLS 55

Cash Received Informal Employment Formal Employment Total

Male Female Total Male Female Total Male Female Total

US$100 and below 46.3 64.0 52.5 4.9 6.3 5.3 27.7 41.5 32.2

$101-$200 31.9 20.1 27.8 25.2 19.7 23.6 28.9 19.9 26.0

$201-$300 14.5 10.5 13.1 43.6 50.1 45.5 27.6 25.9 27.1

$301-$400 2.9 2.7 2.8 11.6 7.9 10.5 6.8 4.7 6.1

$401-$500 1.6 0.8 1.3 5.0 4.1 4.8 3.1 2.1 2.8

$501-$1000 1.5 1.0 1.3 5.6 8.9 6.6 3.3 4.1 3.6

$1001-$3000 0.7 0.5 0.6 2.8 2.3 2.6 1.6 1.2 1.5

$3001 and above 0.3 0.2 0.2 0.9 0.2 0.7 0.5 0.2 0.4

Not Stated 0.4 0.2 0.3 0.4 0.6 0.4 0.4 0.3 0.4

Total Percent 100 100 100 100 100 100 100 100 100

Total Number 712 815 538 611 100 100 100 1251 426

Nor can arguments of wage restraints hold water when employers

54.
The estimated TCPL for May 2011 was US$497.84 for a family of five. ZimStat
(2012) 53.
55.
Zimstat (2012) 123.
224 University of Zimbabwe Law Journal 2019

and senior management are paying themselves astronomical salaries

way disproportionate to the starvation wages the lowest employees
are receiving as was recognized in the City of Harare case. This was
also dramatically revealed in the “Salarygate Scandal” showing the
astronomical salaries being earned by top executives in state owned
or state supported companies and local authorities, with the Premier
Service Medical Society (PSMAS) taking top prize. Further details 56

are provided in Tables 1, 2 and 3.

Table 2: Sector Comparison of Total Monthly Cash by IPC Level 57

Quasi-
IPC Manufac- Hospita- Govern- Tele-
Level turing Banking Insurance lity ment Mining coms

1 $10 842 $6 653 $9 185 $11 800 $8 436 $18 523 $10 586

2 $7 028 $4 772 $6 606 $4 916 $4 916 $12 867 $6 826

3 $3 073 $2 667 $2 969 $3 771 $3 451 $4 840 $4 919

4 $2 479 $1 331 $3 214 $2 924 $3 005 $3 633 $4 508

5 $2 008 $1 707 $2 161 $1 546 $2 322 $3 705 $2 893

6 $1 356 $2 062 $1 990 $1 196 $2 237 $2 259 $3 709

7 $1 483 $1 612 $1 063 $730 $1 319 $1 839 $2 334

8 $856 $849 $791 $573 $1 363 $1 234 $1 830

Table 2:(cont)

56.
For instance at Premier Service Medical Aid Society (PSMAS), in 2012 of the
total wage bill of US$33 413 373 – 00, almost half was paid to the top 14
managers compared to over 700 other employees. Of these the Chief
Executive
Officer, Mr C Dube, earned a basic monthly salary of $230 000 – 00, (rising to
$530 000-00 with allowances), followed by the Group Finance Manager at
$200 000 – 00 a month and the Group Operations Executive at $122 000 – 00, a
month. See P Chipunza “PSMAS shock salary schedule” The Herald 23 January
2014 p 1. Other top earners were the 19 top executives of the City of Harare
who “earned” a total of $500 000 every month, led by the Town Clerk, Dr T
Mahachi at $37 642 – 00 a month followed by directors at $36 999 – 00 a
month.
See I Ruwende “19 City Council executives gobble US$500 000 every month”
The Herald 28 January 2014. On the other hand the CEO of ZBC Holdings was
reported to earn $40 000-00 a month and the General Manager of NSSSA was at

$20 886.78 a month. “How they spend mega salaries” The Herald 5 April 2014.
57.
Industrial Psychology Consultants (Pvt) Ltd (2011).
UZLJ Right to be Paid a Fair and Reasonable Wage 225

Quasi-
IPC Manufac- Hospita- Govern- Tele-
Level turing Banking Insurance lity ment Mining coms

9 $738 $555 $588 $312 $594 $927 $1 575

10 $757 $652 $616 $356 $837 $717 $1 129

11 $668 $644 - $724 $765 $425 $874

12 $539 $413 $364 $434 $1 060 $484 $1 458

13 - $725 $357 - $676 $516 -

14 $526 $500 $417 $253 $634 $567 $774

15-16 $318 $496 $451 $191 $455 $279 $636

The above figures have in fact recently been revealed to be an

understatement by the Salary-Gate Scandal.

Table 3a: Salaries and Benefits of Executives in Parastatals and Local authorities

Benefits Comments

Fuel 250 litres to 350 litres per month for the CEO; 150 litres to 300
litres per month for Executives below the CEO

Cell phone allowance $250 to $935 per month for the MD, $100 to $250 per month for
the Executives below the MD

Medical Aid 100 per cent for all Executives ($450)

Pension 100 per cent for all Executives ($2 379)

Vehicle The type of cars include Mercedes Benz, Jeep for the MD. For
the positions below MD the following cars apply, Isuzu KB, Mazda
BT50

School fees per term For the CEO, some companies pay between $1 500 and $2 500
per child per term for two or three children. Some companies
pay 100 per cent fees for Executives including University fees
both locally and abroad. For line managers, some companies pay
a certain percentage of total fees incurred. This percentage
ranges between 50 per cent and 90 per cent of the invoice.

Housing Allowance This ranges between $300 and $2 500 per month

Table 3a: (cont)

226 University of Zimbabwe Law Journal 2019

Benefits Comments

Entertainment Some companies are offering entertainment allowances as per

Executive’s request. Some companies offer a flat fee of between
$100 and $120 per month for entertainment
Lunch allowance of 441 on average
Other allowances amount to 41 691 on average

Bonus Most companies offer bonuses equivalent to monthly basic salary.

However, some companies use an option of profit sharing for
Executives.

Source: ZCTU 18 December 2013 Daily News 26

The enshrinement of the right to a fair and reasonable wage,

compels the awarding of wage increments that move wages towards
the PDL within the shortest possible time. By 2011 this would have
meant on average net wages of at least $400.00 taking into account
a maximum 20 percent contribution by a spouse working in the
informal sector. The figure would have been higher in 2013,
probably in excess of $450.00, given the increase in PDL and TCPL
figures. In March 2013 the ZimStat PDL monthly figure was $541,
based on a family of five, whilst that of the Consumer Council of
Zimbabwe, based on a family of six, was $564.73 in June 2013.58
Given that about 87 percent of employees in the formal sector were,
in 2011, being paid less than this, it means that increments merely
based on the inflation rates would never achieve a PDL-linked wage.
Such increments would merely freeze the very inadequate present. It
being borne in mind that despite the real increases in wages since
2009, average wages as of March 2013 remained less than 45
percent of the PDL of US$541.00.
Section 46 (1) (b) of the Constitution states that interpretation of
statutes must be such that inter- alia, it promotes justice and
human dignity. Any interpretation that moves wages towards the
PDL or a living wage cannot be said to be grossly unreasonable, even
if it is above the prevailing inflation rate, for it gives the workers an
income that helps them live a dignified life. If anything special
reasons have to be shown by any employer wishing to pay wages less
than the PDL why this should be so. Reference may also be had to
section 24 of the Constitution, which states as one of the desired
national objectives as “… to provide everyone with an opportunity to
work in a freely chosen activity, in order to secure a decent living
for themselves and their families.”

58.
See ZimStat (2013) supra; Consumer Council of Zimbabwe (2013).
UZLJ Right to be Paid a Fair and Reasonable Wage 227
It is an accepted reality that workers suffered the most in the hyper-
inflation years, were the purchasing value of wages for ordinary
workers who were chained by practice and law to the increasingly
useless local dollar, was virtually wiped out.59 The performance of
the economy improved considerably in the post-dollarisation period,
and it is only fair that the benefits of such improvement be shared
equitably, including through granting of PDL linked living wages. See
Table 4.
Table 4: Economic overview since dollarisation

Revised
forecast (Mar
Indicator /Year 2009 2010 2011 2012 2013 2014 forecast 2014 World
(Dec-2013) Bank)

GDP growth rate 5.7% 5.4% 9.3% 4.4% 5.5% 5.43 3%

GDP absolute
(US$bn) 5.220 5.502 5.916 6.517 6.892 5.02

Inflation
(annual ave.0 -7-7% 4.5% 4.9% 3.9% 3.9% -2.47

Interest rates 30% 21- 10% 10% 10% 10%

24%

Source: Old Mutual Investment, December 2013 and March 2014

TWO EARNERS ARGUMENT AND THE CHINA-FACTOR

Neither will the expressed constitutional purpose of fairness be
realized by an argument that the PDL includes the income of two
spouses and therefore the wage of the individual employee cannot
be equivalent to that. In a situation where only 16 percent of the
working population is in paid-permanent employment, and 75 per
cent in “vulnerable employment” in the informal sector and
communal, resettlement farming, most persons are earning a
pittance. Estimates show that a good 64.0% of women in paid
60

employment in the informal sector

59.
Under the Exchange Control (Payment of Salaries by Exporters in Foreign
Currency for Critical Skills Retention) Order 2008 (SI 127/2008) only those
highly
skilled employees and senior management could be paid in foreign currency on

approval by the Reserve Bank of Zimbabwe, thereby protecting them from the
ravages of hyper-inflation. For all other workers payment of wages in foreign
currency was an illegal act. See section 4 Exchange Control Regulations 1996
(SI 109/1996), Matsika v Jumvea & Anor 2003 (1) ZLR 71 (H).
60.
ZimStat (2011) 51.
228 University of Zimbabwe Law Journal 2019

earned $100 and below in 2011. This means that on average the
61

contribution of a spouse employed in the informal sector was at

most around 20 percent to the TCPL. In 2011 wages in the formal
sector had to be at least a net of $400.00 to amount to a living wage
consistent with the TCPL as provided by the national authorities.
However, that figure is in fact an understatement given the high
levels of unemployment and cultural factors. The employee in
formal employment in reality not only looks after his or her nuclei
family as provided under the Western-influenced nuclei family of
five used to calculate the TCPL by ZimStat, but has a very large
extended family responsibility.
Therefore into the foreseeable future, the wage of the earner in
formal employment will provide the bulk of the earnings of the
family, and thus minimum wages should be as close as possible to
the PDL.
Equally unconvincing are employer arguments of competiveness,
especially the so-called China-factor, the foci must remain
Zimbabwe. Comparative regional and international wage
comparatives are varied. Moreover, nominal wage figures may be
misleading in so far as they do not take into account varied cost of
living indexes from country to country. This is why the ILO
instruments place focus on “national practice and conditions” as
well as “the general levels of wages in the country.” 62

In any case, from a public policy perspective, the above employer

arguments are self-defeating in the long-term. Having wages so far
below the PDL, means depressed demand for the products of
industry and the likely continuation of debilitating labour migration.
It is submitted that in the current scenario, section 65 (1) of the
Constitution compels arbitrators and courts to grant increments
above the inflation rate in order to move to “fair and reasonable
wages.” Whilst the actual rates of increment should take into
account the specific circumstances of the given industry including,
the economic and financial condition of the employers, the rate of
inflation and comparative wages in other industries, the primary
and dominant consideration must be the obligation to ensure that
the lowest paid workers earn a wage as close as possible to the
PDL, as described above. Increments for employees earning above
this must be sufficient enough to reward the employees for their
extra skills, including by

61.
Ibid 123.
62.
Article 3 ILO 131 Convention: Minimum Wage Fixing.
UZLJ Right to be Paid a Fair and Reasonable Wage 229
comparison to other industries, productivity etc as was done in the
Ex parte H.V. McKay case, supra.
Evidence from the ground indicate the recognition that increments
cannot be constrained solely by the rate of inflation, with
increments agreed or granted by arbitrators in 2013 generally being
above the inflation rate. 63

Where an employer is unwilling to pay a PDL-linked living wage and

is also unwilling or unable to effect mitigatory and compensatory
special measures, then such employer has no right to be in business,
if all it can offer are wages that amount to semi-slavery. As noted by
HIGGINS J, in Ex Parte H.V. McKay, supra, the payment of fair and
reasonable wages, “stands on the same level as the cost of the raw
material of the manufacture.” Without raw materials there can be
no production or business. Even in the darkest ages of colonial
primitive accumulation, there was a bar beyond which even the
colonial courts were not prepared to go under. Thus for an employer
who pleaded inability to pay wages because of the difficulties it was
facing in its business, the court, in R v Millin SR 171, declared: “No
one has the right to exploit natives on a gambling venture of this
kind.”

LEGAL REFORM
The above described new constitutional regime also has significant
implications on labour law reform, in particular in reference to the
Labour Act and Public Service Act. These two principal labour
statutes will need to be amended to bring them into conformity with
the new constitutional standards.
In relation to the public sector, there is need to insert a proviso in
the provisions dealing with salaries subjecting the Civil Service
Commission’s power to set salaries not only to the collective
bargaining process but also the employees’ right to a fair and
reasonable wage. 64

The same would apply in relation to the Labour Act. A modest start
was made under section 13 of the Labour Amendment Act, 2015,65
63.
Whilst in 2013 the annual inflation rate is less than 2%, several negotiated
wage increments or arbitral awards have been significantly above this,
including:
10.5% in the NEC for the Commercial Sector; and 6% for the Collective
Bargaining
Agreement for the National Employment Council for the Printing, Packaging
and Newspaper Industry, SI 69/2006 as amended.
64.
Such as in s 22 of the Public Service Act and s 20 (2) of the Public Service
Regulations, 2000.
230 University of Zimbabwe Law Journal 2019

which expands the subjects of scope of collective bargaining under

section 74 of the Act to include measures “to mitigate the cost of
living.” But the general thrust of the amended section is focus are
“measures to foster the viability of undertakings and high levels of
employment.” More is required to ensure the Labour Act is
constitutionally compliant. A starting point could be the insertion of
the right to a fair and reasonable wage as a fundamental right of
employees under Part 2 of the Act, possibly under section 6.
Similarly the sections dealing with wage-fixing such as by the
Minister under sections 17 and 20 or through collective bargaining
under Parts VIII and Part V, must have amendments specifying
that the minimum thresholds of wages is that which ensures the
employees’ rights to a fair and reasonable wage. There can be
further elaboration under both Acts of the factors to be considered
as done in article 91 of the Constitution of Venezuela or in the ILO
conventions and international human rights instruments with primacy
given to the needs of the worker and their family to live a decent life
worthy of human dignity.

CONCLUSION
The recent constitutional reform enshrining the employees’ right to
a fair and reasonable remuneration is an important step forward in
the march towards a fair and just society. However, even if that is
achieved, it can only be the first step forward, for there can never
be real social justice in work relations under a system based on
wages and salaries alone, or ultimately industrial peace and political
stability.
More enlightened bourgeois theories of labour relations have come
around to this conclusion, in particular that of consultative pluralism
and radical nationalist theories, whereby employees are entitled not
only to fair wages but also a share of the company profits. 66

Examples of the later include, previously under the Zimbabwean

Indigenization and Economic Empowerment legislation wherein
employees may be entitled up to 28% share-ownership of
indigenized foreign firms. 67

65.
Act No. 5 of 2015.
66.
M Finnemore op cite 145.
67.
See the Indigenisation and Economic Empowerment Act [Chapter 14:33]; the
Indigenisation and Economic Empowerment (General) Regulations, 2010 (SI 21/

2010) as amended by the Indigenisation and Economic Empowerment

(Amendment) Regulations, 2010 (No. 2) (SI 116/2010) and the Indigenisation
and Economic Empowerment (General) (Amendment) Regulations, 2011 (No.
3) 2011 (SI 34/2011).
UZLJ Right to be Paid a Fair and Reasonable Wage 231
This echoes the ZCTU Model Collective Bargaining Agreement
proving that the “employer shall be required to allocate at least 20%
of net profit at the end of each financial year to employees as a
share of profits…” 68
Similarly under the Kadoma Declaration
reached by representatives of business, labour and the state,
profit-sharing is declared to be one of the goals of Zimbabwean
industrial relations.
Similarly South Africa has also provided for similar under its Black
Economic Empowerment legislation. In advanced countries, such as
69

the UK and Australia, many large corporations have since the early
1980s, been providing for broad-based employee profit sharing
schemes, with some estimates putting the figure at 62 percent of all
the large public companies.
The above reflects the recognition by liberal political science that
sustainable liberal democracy is not possible where workers lack
corresponding social justice and democracy in the workplace.
Industrial democracy is a necessary condition for political
democracy.
Even more fundamental is the position of the classical Marxist theory
that the wage system, even where “fair and reasonable wages” are
paid, is inherently unjust and exploitative. This is because wages do
not express a proportionate share of the wealth or surplus value
created by the worker, but are payment for the cost of labour power
as determined by the labour market. As recognized by HIGGINS J in
70

Ex Parte H.V. McKay, supra, the contest between labour and capital
is an unequal one because the former is always under “the pressure
for bread.” Or as Engels puts it, “the workman has no fair start. He
is fearfully handicapped by hunger.” 71

With wages at most being an amount equivalent to the average

human needs of a worker and their family and not the surplus value
created, it means, according to Engels, “that the produce of the
labour of those who work, gets unavoidably accumulated in the
hands of those that do not work, and becomes in their hands the
most powerful means to enslave the very men who produced it.” In
other words, the wages system is inherently exploitative against
workers and in favour of the employer – capitalist class. Further that
such unequal and exploitative
68.
Clause 43 (1) ZCTU Model CBA.
69.
See s 9 (1) Broad-Based Black Economic Empowerment Act No. 53/2003, whereby
employee-share ownership is granted a weight of 20 points out of a 100
credits. 70. Engels F, (1881) supra.
71.
Ibid.