24 December 2012

Zambia: Revised Labour Laws to Stimulate Production

THE Zambian labour market has faced a lot of challenges, dating back to the liberalisation of Zambia's economy from the early 1990s.

Since then, there has been a steady growth in the use of casual labour, fixed term contracts, and workers engaged through private employment agencies.

The influx of foreign expatriates doing jobs that can be executed by local people has been a source of concern to Government and other stakeholders.

Abuse of workers by the employers has been the order of the day.

It is against this back-drop that Government has started reviewing labour laws to make them more effective.

However, in the recent years, revising labour laws has been largely slow, and in some cases did not represent Government policy or labour market players.

This time around, Government's goal is to construct a legal framework that will play a positive role in protecting fundamental human rights at work, in promoting employment and economic growth, and also improving labour market performance.

The Government wants to particularly address the adverse effects of changes in the labour market on the lives of all those in formal employement.

At the same time, the Government is mindful of the role of labour laws and labour market institutions in promoting economic growth, particularly among micro and small enterprises in the social and economic development of Zambia.

To begin the process, Government sought a national consultant to work with Zambia's Ministry of Information, Broadcasting and Labour, with the International Labour Office (ILO) to prepare an Issues Paper based on a comprehensive review of labour legislation in Zambia.

Besides engaging a consultant, Government held a consultative forum where various submissions were made.

Professor Evance Kalula was contracted to draft the Issues Paper on Labour Law review.

Prof Kalula was born in Zambia on March 25 1952.

He has a PhD in Law, from the University of Warwick, UK.

He is professor of law, employment law and social security, deputy dean postgraduate studies and director of the Institute of Development and Labour Law at the Faculty of Law of the University of Cape Town.

He is chairperson of the South African Employment Conditions Commission.

Prof Kalula's academic and research interests are in international and comparative labour law, social security and occupational health and safety.

However, the Issues Paper which has been widely accepted by unions in Zambia, analyses critical issues, gaps, implementation challenges and recommendations on necessary reforms of the current labour laws.

The paper also looks on how issues may be devised and implemented in a timely way as well as how they may be developed coherently with other relevant policy initiatives.

This article, however, only looks at the critical issues, gaps and recommendations on necessary reforms in regards to the Employment Act CAP 268, Minimum Wage, and condition of employment Act CAP 276, Occupation Health and Social Security

Employment Act

The Employment Act is being reviewed to consider how it may be modified to deal effectively with changing trends of employment relationships. Particular phenomena are that Government wants to address casualisation, the use of fixed term contracts, and the use of private employment agencies sometimes referred to as labour brokers, and/or as triangular employment relationships.

However, some of the key recommendations in Issues Paper are that the test for an employee be broadened to cover a wider range of criteria and that a presumption of employment be established as provided for in the ILO recommendations on the Employment Relationship of 2006.

The definition of an employee should be amended to include casual employees and that the scope of specific provisions should be allowed to exclude casual employees where necessary and appropriate.

The distinction between an oral and written contract should be abolished for a unitary concept of a contract of employment.

The requirement for the attestation of the contract of employment should be reconsidered in order to access the process of establishing an employment relationship.

The Employment Act should recognise the role played by temporary employment agencies (labour brokers) and subcontractors in providing labour to clients on an on-going basis by Zambia ratifying to ILO Convention 181 which governs private employment agencies include labour brokers.

The Act should make provisions for family responsibility leave for male and female workers and that the provision of the Act in this regards should be aligned to the provision of both present and future, in the statutory instruments issued in terms of the minimum wage and condition of Employment Act.

A comprehensive review of the retirement age be undertaken to establish the optimum minimum wage taking into account the challenges the youths unemployment and competing interests such as the need for older members of society to remain independent and provide themselves and the economy's need to maximise the benefits of their skills and experience.

A greater clarity should be provided on the procedure to be followed by the Zambianisation committee and the criteria in making a decision on the employment of an expatriate.

This is where some foreigners in the name of expatriates have come to do domestic jobs at the expense of the local people.

The fragmentation of the provision on termination of employment should be addressed by bringing the dismissal provisions together under a single chapter or part of the Employment Act and provide for all matters relating to dismissal more coherently and comprehensive.

The provision should apply to all categories of workers with exclusive from specific provisions being made where necessary and appropriate.

On the change of retirement age from 55 to 65, a number of competing interests need to be balanced in order to determine the optimal retirement age, for instance, the need to maximise the utilisation of skills and experience from older employees and the need to generate employment and create greater opportunities for the youth.

Research is needed to be undertaken before arriving at a conclusion on this matter.

Minimum wage and condition of employment

Under the current legal framework, the minister is empowered to set wage levels by subordinate legislative instrument, with or without consultation with the social partners but Government wants to receive advice on alternative models that can ensure both adequate minimum wage levels, and effective participation by the social partners in the process.

In light of the aforegoing, the minimum wage and condition of Employment Act should be amended to create statutory body to advise the ministry on the establishment of minimum wages and condition of employment.

The provision relating to maternity and sick leave, repatriation allowances set out in the Statutory Instrument should be realised with those set out in the Employment Act to ensure that a minimum floor of rights apply to all workers regardless of the sector.

There is need for a provision of regular up-dating of minimum wages taking into account the rate of the inflation prevailing.

Provision should be made to progressively reduce the maximum working hours from 48 or 45 towards 40 hours per week as it is necessary to place limitations on the amount of overtime that an employer may be allowed to work per given period.

The provisions relating to family responsibility leave should be relaxed to allow for taking care of the children who are not admitted to the hospital.

Greater clarity should be provided on the number of days allowed for this type of leave and it should be extended to provide an equal amount of family responsibility for male employees as well.

Occupational safety and health

Occupational safety and health is important in the development of a sound workforce and working environment.

However, the biggest challenge to maintain safe environment is due to inadequacies of the institution tasked to enforce the regulations.

To improve the situation, various pieces of legislation dealing with occupational safety and health should be harmonised in order to provide clear guidelines and avoid ambiguity.

The scope of such legislation dealing with occupational safety and health should be wider to include all workers and employers specifically those in agriculture, forestry and fisheries as well as those in the informal sector.

There is need for national institutions dealing with occupational safety and health issues to engage employers and workers' representative organisation in policy formulation.

The occupational safety and health institutions should demonstrate their relevance and importance of the service they offer to raise their profiles and attract the needed resources for their operations.

Special consideration should be made towards domesticating and complying with ratified ILO conventions.

Measures should be taken to ensure that statutes Governing safety and health reflect the modern systemic approach to occupational safety and health.

The legislation governing occupational health and safety should include preventive and protective measures.

Social security

Social security system in the country is predominantly of social insurance limited to the provision of protection in the event of income loss due to old age or retirement, disability or loss of bread winner.

The system is made up of four schemes, three of which are pension, providing income security in case of retirement, disability and loss of bread winner.

The fourth scheme provides protection in the event of industrial injuries and occupational disease.

There are also social assistance schemes such as the Public Welfare Association System, Social Cash Transfer Scheme, Food Security Pack, the School Feeding Programme and the Urban Self- Help Programme.

These are relatively new and jointly funded by Government and developing partners. The focus is to provide universal and affording social protection to most vulnerable.

However, they are few in numbers limited in terms of coverage and inadequately funded.

Social security, although provided for in the Constitution, is not recognised as a human right and cannot be enforced in the courts.

Labour laws and social security should be rigorously enforced. Provisions obliging defaulting employers to pay interests and penalties should be enforced and where possible the interest rate payable should be hiked.

Good governance of social security institutions and well designed social security policies has a potential of attracting more people to join the social security schemes.

Provisions should be put in place to compel the scheme to pay subscribed amount of interest on delayed benefits and other inefficiency.

Social security schemes should also aim at adopting prudent investment policies so as to protect the fund of their respective scheme.

The reforms process should consider amendments of the section 10 and second schedule to the NPS Act so as to remove the exemption of non nationals.

Health Workers Union of Zambia general secretary Lewis Mukosha said the labour movement is impressed with the Prof Kalula's Issues Paper on Labour Law reforms but called on Government to expedite the adoption of the document.

Mr Mukosha said the recommendations are also international standards and viable.

"We agree with the document, it is viable, but we are urging Government to expedite the adoption process," Mr Mukosha said.

Zambia Congress of Trade Unions (ZCTU )secretary general Roy Mwaba said the document is good but proposed an amendment of labour laws to empower the Labour Commissioner to effectively control union registration in the country.

Mr Mwaba said members have continued to abuse the freedom of association clause in the Republican Constitution by forming splinter unions which has weakened the bargaining power of the labour movement.

"Having a strong labour movement in the country will significantly contribute to the social and economic development of the country," Mr Mwaba said.

Mineworkers Union of Zambia president Nkole Chishimba said the union is impressed with the process because Government has widely involved all stakeholders reviewing the labour laws.

Mr Chishimba, however, said Government should adopt the Issues Paper because it included MUZ's aspirations.

He said it was the first time that Government has involved stakeholders.

"What we want to see is Government retaining all the submissions we gave so that the laws are all inclusive," Mr Chishimba said.

It is therefore expected that once the labour laws are reviewed, the labour market will be more appealing and competitive thus stimulate mass production.

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