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FACULTY OF SOCIAL SCIENCES

DEPARTMENT OF HUMAN RESOURCE MANAGEMENT

HRM 241- LABOUR LAW

MODULE OUTLINE

Lecturer: Ndhlovu, P ([email protected] ) +263 773 039 773

OVERALL GOAL OF THE MODULE

The module is predicated on the Labour Act (Chapter 28:01) and associated pieces of legislation,
which aim to advance social justice and democracy in the workplace. At the end of this module,
a student must be legally conversant with the interpretation of this specific law.

SPECIFIC MODULE AIMS

The purpose of this module is to enable the students to comprehend basic expressions. Upon the
completion of the semester, students should be able to understand various concepts regarding the
country’s labour laws.

Objectives:

 To familiarize the students with various aspects of Industrial Relations in Zimbabwe

 To have a thorough knowledge of Labour Laws prevalent in Zimbabwe

 To develop an understanding of the implications of Zimbabwe’s Labour Laws on Industrial

relations

To achieve these aims, a student shall be required to have a copy of the Labour Act (Chapter
28:01) and relevant delegated laws.

LEARNING INSTRUCTION
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Teaching and Learning shall proceed by way of lectures, discussions, assignments, handouts, in-
class tests and tutorials. Students are strongly encouraged to utilise the electronic library facility,
read the press, and access ILO material and labour cases to enhance their understanding of labour
law.

MODULE CONTENT

1. INTRODUCTION TO LABOUR LAW

- Definition/purpose/sources/ theories/history/sources

2. HISTORY OF LABOUR LAW IN ZIMBABWE

- Theories/ pre-and post-independence developments in labour law/ Labour Act

3. THE CONTRACT OF EMPLOYMENT (Formation and Operation)

- Employment relationship/ role of parties/ essential elements/ categories of employees/

sources of terms and conditions of employment (including probation and notice
periods, promotions, transfers)

4. OBLIGATIONS IN THE EMPLOYMENT RELATIONSHIP

- Obligations of the employer/ responsibilities of the employee/ fundamental rights/

unfair labour practices (including labour casualisation)/ remedies on unfair labour
practices.

5. FUNDAMENTAL RIGHTS OF EMPLOYEES

- Statutory Rights/ unfair labour practice/unilateral variation/vicarious liability

6. STATUTORY LEAVE PROVISIONS

- Sick / vacation/special/ maternity

7. FREEDOM OF ASSOCIATION AND THE RIGHT TO ORGANISE

- Provisions of the ILO and legislation in Zimbabwe
- Workers committee and the works council
- Trade unions and employers’ organisations
- Employment councils (NECs)

8. COLLECTIVE BARGAINING
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- Definition/ parties involved/ aims and levels of collective bargaining

- Duties in collective bargaining/ Scope for collective bargaining/ interpretation of

collective bargaining agreements and deadlocks/ the role of the Minister

- ILO provisions/trends in collective bargaining

9. COLLECTIVE JOB ACTION

- Definitions/ forms of CJA (includes strike, picketing, lockouts)

- The Right to Strike (ILO)

- The Right to Strike in Zimbabwe (requirements for a lawful strike &exceptions/

responsible & protected persons/ cessation and appeals
10. TERMINATION OF EMPLOYMENT

- Common law/ constructive dismissal/ summary dismissal/ termination on notice/

unilateral resignation/ termination of probationary contract/ wrongful dismissal

- Termination under statute/ retrenchment/termination under the model code/

termination under a registered code of conduct/ Statutory Instrument 5 of 2015

- Remedies for unlawful termination/ terminal benefits.

11. LAW OF DISPUTE SETTLEMENT

- Nature and Classification of labour disputes

- Methods of dispute resolution

12. LABOUR COURT

- Functions/powers/jurisdiction/representation/ determination

- Powers of labour officers/ Appeals from the Labour Court (to superior courts)

13. MINISTERIAL POWERS – as provided for in the Act

Continuous Assessment (40%)

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Assignment 1 (Individual Assignment)

Assignment 2 (Tutorial and Presentations)
Examination (60%)

INDIVIDUAL ASSIGNMENT QUESTION

Discuss the following issues from the Labour Act
a) Jurisdiction of Designated Agents and Labour Officers
b) Enforcement of labour rights
c) Section 56(5) (votes) (20 marks)

DUE DATE: 21/09/2023

TUTORIAL QUESTIONS

1. To what extent does the Labour Act advance social justice and democracy?

2. There are debates and controversies on the use of codes of conduct. Discuss this with
reference to the model code (S.I. 15 of 2006)

3. Explore at least eight scenarios where a contract of employment can be lawfully

terminated by the employer and employee.

4. To what extent has the Act promoted the participation of employees in the decisions
affecting their interests at the industry and enterprise level?

5. To what extent has the current amendment of the Labour Act addressed the critical issues
that govern dispute resolution in Zimbabwe?

6. Analyse the key issues raised by the new amendment of the Labour Act on retrenchment.
What challenges are likely going to be experienced by employers and employees?
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7. “The most difficult law that we have in this country is the labour law” (Employers
Confederation of Zimbabwe, The Herald 8 June 2016). Why is the labour law difficult?

8. Outline and explain key tenets of the audi alteram partem rule. In what ways are the
Labour Act’s provisions consistent with this rule?
9. There can never be equality in the employment relationship. Examine this assertion citing
relevant sections from the Labour Act.

10. How effective is the Labour Court in advancing just, effective and expeditious resolution
of disputes and unfair labour standards on employment relations issues?

11. Assess how the Labour Act enhances the regulatory powers of the Minister of Labour.

12. Analyse the effectiveness of the works committees as conduits for advancing workplace
democracy.

13. Interpret and critique the following provisions of the Labour Act (Chapter 28:01)

a) Section 12(3a) (contract of employment)

b) section 23(1b) (workers committee)

c) section 82(a1) (collective bargaining agreement)

d) section 12(4a)(b) (termination of employment)

14. The development of labour law and the development of dispute resolution are strikingly
similar in many ways. Discuss.

15. Critically examine how the Labour Act protects employees against unlawful termination
and unfair dismissal.

16. With reference to the Labour Act and case laws, examine and critique the leave
provisions

17. With reference to the labour act and case laws examine the following: tacit relocation,
legitimate expectation, casual work and contract without limit of time
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18. Discuss why maternity leave has been classified among the unfair labour practice by the
employer
19. Explore the challenges likely to arise in national employment councils due to the current
amendment of the Labour Act
20. With reference to the case of ST. GILES MEDICAL REHABILITATION
CENTRE v LAMBERT PATSANZA SC59/18, which lessons can be drawn

READING LIST

Bratton J & Gold J (2007) Human Resource Management- Theory and Practice, 4th
Ed, MacMillan, Palgrave

Gwisai M (2006) Labour and Employment Law in Zimbabwe, 1st Ed, Zimbabwe
Labour Centre, Harare

Gaymer J (2001) The Employment Relationship, Sweet & Maxwell Publishers, London

Jain JN and Bhola A (2009) Modern Industrial Relations and Labour Laws,
Principles and Techniques, Regal Publications, New Delhi

Labour Act (Chapter 28:01), Printflow, Harare.

Lloyd Patrick (2006) Labour Legislation in Zimbabwe, 2nd Ed, Legal Resources
Foundation, Harare

Machingambi I (2007) A Guide to Labour Law in Zimbabwe, 1st Ed, Machingambi

Publications, Harare

Madhuku, L. (2015). Labour Law in Zimbabwe, The Friedrich Ebert Stiftung, Harare.

Madhuku L (1996) Article on Worker Participation in a developing country: The case

of Zimbabwe, Comparative Labour Law and Policy Journal

Makings G (2016) Commentary on the Labour Act, 6th Ed, Aquamor, Harare

Makings G (2016) Employment of contract and casual workers, 2nd Ed, Aquamor,
Harare

Makings G (2010) Employment Handbook, 5th Ed, Aquamor, Harare

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Maphosa GJ (1991) Industrial Democracy in Zimbabwe, Zambezia, Ziscosteel,

Redcliff

Matsikidze R (2013) Alternative dispute Resolution in Zimbabwe, A practical

approach to Arbitration, Mediation and Negotiations, 1st Ed, Molhurst Publishers,
Harare

Raftopoulos B & Sachikonye L (2001) Striking Back- The Labour Movement and The
Post Colonial State in Zimbabwe 1980-2000, Weaver Press, Harare

Sibanda A and Nyamukapa D (2000) Industrial Relations and Structural Adjustment

programmes in Africa, Zimbabwe Industrial Relations Association, Harare

Tustin C and Geldenhuys D (2000) Labour Relations, The Psychology of Conflict and
Negotiation, 2nd Ed, Oxford Southern Africa, Cape Town

INTRODUCTION

Johannes Schregle and C. Wilfred Jenks (2022) Labour law has won
recognition as a distinctive branch of the law within the academic legal
community, but the extent to which it is recognized as a separate branch of
legal practice varies widely depending partly on the extent to which there is
a labour code or other distinctive body of labour legislation in the country
concerned, partly on the extent to which there are separate labour courts or
tribunals, and partly on the extent to which an influential group within the
legal profession practice specifically as labour lawyers.

To appreciate various labour legislation, it is necessary to know the

philosophy of Labour Laws. Over the years labour laws have changed
concerning the object and scope. Early labour legislation was enacted to
safeguard the interests of employers. Modern labour legislation on the
other hand aims at protecting workers against exploitation by employers. It
is based on the notion of progressive social philosophy which has rendered
the old doctrine obsolete. The theory of “hire and fire” as well as the theory
of “supply and demand” which found free scope under the old doctrine no
longer holds good.
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Labour Law initiates a sound understanding of the basic principles of labour

law and instils a practical approach to work-related issues. Labour law
seeks to regulate the relations between an employer or a class of employers
and their employees. The access to this law is the widest, in that it touches
the lives of far more people, indeed millions of men and women as
compared to any other branch of law and this is the aspect that makes it the
most fascinating of all branches of law and the study of this subject is of
enormous dimension and ever-changing facets.

Labour law aims to correct the imbalance of power between the worker and
the employer; to prevent the employer from dismissing the worker without
good cause; to set up and preserve the processes by which workers are
recognized as 'equal' partners in negotiations about their working
conditions etc. They ensure that employer-employee relations are
monitored, allowing both parties to be held accountable for their actions.

Labour law also regulates the labour market: a country may choose to put
legislation in place setting maximum or minimum limits on wages or
working hours, either nationally or in particular sectors or industries.

Labour laws are crucial for the smooth operation of businesses. It clarifies
and stipulates the business obligation to the employees. There has been a
long history of labour laws advocating for the full protection of a worker's
rights. To some business owners, the laws could be seen as bureaucratic
but are meant to keep employees safe and protect the work environment.

An unjust law is a human law that is not rooted in eternal law and natural
law. Any law that uplifts human personality is just. Any law that degrades
human personality is unjust. Dr. Martin Luther King Jr.

An employment contract or contract of employment is a kind of contract

used in labour law to attribute rights and responsibilities between parties to
a bargain. The contract is between an "employee" and an "employer".

Although labour law seeks to create high minimum standards of

employment, the choice of the legislature in seeking to achieve the objective
is not unqualified. Minimum standard legislation is subject to various
limitations. To begin with, to guarantee fundamental rights, the
Constitution imposes certain limitations on the legislation of the legislature
and the executive. To the extent it is inconsistent with or derogatory to a
fundamental right, the legislation is void.
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Labour law can be a tricky area to navigate. If you get it wrong it can be
extremely costly to your organisation. Labour Law is complex and highly
technical. It can be daunting for the inexperienced, and mistakes may have
long-term implications. It is almost impossible for an employer who lacks
knowledge of labour law to remove any workman for his inefficiency. Our
Labour Laws generally negate change and progress rather than facilitate
and enable them to happen. Our labour laws are mostly to fight the fire
when it has broken out. They are more reactive than proactive in
orientation. Our Labour Laws are mostly fragmented, ad hoc and piecemeal.
Sometimes, they contradict each other. They create more confusion, at
times than giving clear solutions. Our Labour Laws have mostly become
outdated, obsolete and irrelevant. They were framed at one point in time
with specific problems in view. Times have changed and so have the
problems. They should change accordingly to cater to the needs of time.
They should be dynamic ones. However, they have remained static and
rigid, which is against the spirit of HRM. Governments are often troubled
when unions enjoy significant bargaining leverage given their position in
economic and public structures. They are rarely troubled when employers
have significant bargaining leverage. The asymmetry is stark.

Human resource management is about managing people so that businesses

are competitive and successful. To do this in a fast-changing global
economy, HRM and IR professionals keep up with issues and trends that
affect employment relationships - the labour market and economics, the
product or service market, the political environment, environmental
concerns, technological change, employment regulations, organisational
psychology and social trends. HRM practitioners also keep up-to-date with
legislation and analyse contemporary employment issues

BASIS OF LABOUR LAW

Labour law arose due to the demands of workers for better conditions, the
right to organize, and the simultaneous demands of employers to restrict
the powers of workers in many organizations and to keep labour costs low.
Employers’ costs can increase due to workers organizing to win higher
wages, or by-laws imposing costly requirements, such as health and safety
or equal opportunities conditions. Workers’ organizations, such as trade
unions, can also transcend purely industrial disputes, and gain political
power - which some employers may oppose. The state of labour law at any
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one time is therefore both the product of and a component of, struggles
between different interests in society.

Otto Kahn-Freund in his book on Labour and the Law makes the following
points:

(i) The system of collective bargaining rests on a balance of the collective

forces of management and organised labour. The courts' contribution
to the orderly development of collective labour relations has been
infinitesimal. Collective bargaining is a process by which the terms of
employment and conditions of service are determined by agreement
between management and the union. In effect, “It is a business deal
(which) determines the price of labour services and terms and
conditions of labour’s employment.”
(ii) The Law governing labour relations is one of the central branches of
the law on which the very large majority of people earn their living.
Nonetheless, law is a secondary force in human relations and
especially in labour relations.
(iii) Law is a technique for the regulation of social power. This is true of
labour law as it is of other aspects of any legal system. Labour Law
also seeks to lay down a minimum standard of employment. It lays
down norms by which basic conditions of labour are fulfilled such as
maximum working hours, minimum safety conditions, minimum
provisions for holidays and leave protection for women and children
from arduous labour, prohibition of children below a certain age from
employment and provision for minimum standards of separation
benefits and certain provision for old age.
PURPOSE OF LABOUR LEGISLATION

Law is a dynamic concept. It comes into existence to cater to the growing

needs of society, which may be caused by technological, economic, political
and social changes. Life and laws have moved together in history and it
must do so in future also. Every society revises, reviews, invents and
reinvents better systems and governance. Labour laws came into being to
take care of certain aberrations created by the Industrial Revolution. Now,
we have entered the gig economy. Hence our laws should come out of
Industrial Revolution mode and be progressive in their outlook.

The desirable orientations of labour laws can be that they have to be

enablers and facilitators rather than controllers of industrial relations. They
have to be proactive, positive and progressive and encourage individual
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development, group cohesiveness and organisational well-being rather than

combating and fighting, building a culture of trust and goodwill rather than
creating mistrust and hatred in the industry. There should be a few labour
legislation -setting the guidelines and providing the road maps for working
together rather than a number of them encouraging litigations. Labour
legislation that is adapted to the economic and social challenges of the
modern world of work fulfils three crucial roles:

(i) It establishes a legal system that facilitates productive individual and

collective employment relationships, and therefore a productive
economy;
(ii) By providing a framework within which employers, workers and their
representatives can interact concerning work-related issues, it serves
as an important vehicle for achieving harmonious industrial relations
based on workplace democracy;
(iii) It provides a clear and constant reminder and guarantee of
fundamental principles and rights at work that have received broad
social acceptance and establishes the processes through which these
principles and rights can be implemented and enforced.
Experience shows that labour legislation can only fulfil these functions
effectively if it is responsive to the conditions of the labour market and the
needs of the parties involved. The most efficient way of ensuring that these
conditions and needs are taken fully into account is if those concerned are
closely involved in the formulation of the legislation through processes of
social dialogue. The involvement of stakeholders in this way is of great
importance in developing a broad basis of support for labour legislation and
in facilitating its application within and beyond the formally structured
sectors of the economy.

SOCIAL JUSTICE

The fundamental principles of labour law are the principles of social justice
and democracy in the workplace. Other principles of labour law only flow
from this basic principle. Social Justice connotes the balance of adjustments
of the various interests concerned in the social and economic structure of
society. It aims to promote harmony in Industrial relations upon an ethical
and economic basis, and its ultimate objective of peace in Industry. Thus,
social justice is an objective of peace in industry. Social Justice recognised
that workers are in a weak bargaining position vis-a-vis the employer, and it
seeks to remedy this situation.
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The development of industrial law and several decisions of the courts in

dealing with industrial matters have emphasized the relevance, validity and
significance of the doctrine of social justice. The concept of social justice is
not narrow one-sided or pedantic. Its sweep is comprehensive. It is founded
on the basic ideal of socio-economic equality and it aims to assist the
removal of socio-economic disparities. Nevertheless, in dealing with
industrial matters it does not adopt a doctrinaire approach and refuses to
yield blindly to abstract notions, but adopts a realistic and pragmatic
approach. It therefore endeavours to resolve the competing claims of
employees by finding a solution that is just and fair to both parties with the
object of establishing harmony between labour and capital, and a good
relationship. The ultimate object of industrial adjudication is to help the
growth and progress of the national economy, and it is with that ultimate
object in view that industrial disputes are settled by industrial
adjudication.”

Social justice is not based on contract. It is an abridgement of the freedom

of contract. The days of hire and fire are gone and the tribunals and Courts
have the power to intervene if there is a dispute unlawful dismissal or unfair
labour practice in the interests of social justice. Thus, social justice requires
the Courts to strike a balance between the conflicting claims of employer
and worker. While the employer has a fundamental right to run his
business, his right has to be adjusted with the employees’ right to social
justice. The former pertains to the realm of fundamental rights in our
Constitution, the latter to the realm of the Directive Principles. The
Ultimate aim is to have peace in industry so that production may increase
and the national economy may grow.

DISCIPLINARY ISSUES

Disciplinary hearings are an important aspect of Labour Law. It is the

cornerstone of a misconduct process. Disciplining an employee is one of the
key methods of curtailing disputes among them and achieving maximum
productivity. Individual grievance handling falls within the ambit of both
discipline and dispute resolution