opinionBy Wenceslaus Murape
The Ministry of Justice and Legal Affairs co-administers the Labour Act together with the Ministry of Labour and Social Services. The former is assigned only Part XI of the Act headed "Labour Court," whilst the remainder of the Act is assigned to the Ministry of Labour and Social Services.
Part XI provides for the establishment of the Labour Court, the appointment of its presidents, the functions, powers and jurisdiction of the Labour Court and appeals against its decisions.
Most of the Act, which comprises the essence of employment relations covering such areas as conditions of employment, trade unions, workers committees, Collective Bargaining Agreements and collective job actions, all fall under the Ministry of Labour and Social Services.
In order to appreciate the role that the Labour Court plays in employment relations, one needs to understand the history of employment relations in the country. The law and principles pertaining to employee/employer relations has undergone significant changes over the past years. The country has witnessed a dramatic shift from the repressive legislation of the colonial era to the present day anti-discriminatory legal framework.
These changes have been ushered through the intervention of the Government in labour relations through the enactment of appropriate legislation. The courts have played their part to discard the fallacious common law notion, which viewed a contract of employment as that of a master and his servant.
Frantic and strenuous efforts to liberalise the labour relations in the post colonial period have been made. For the benefit of those who were born free, in the colonial days there was what was called the Master and Servant Act. Half of the Act contained penal provisions which, even at that time, were in conflict with ILO standards. An employee was guilty of a criminal offense and liable to a fine of US$8 or, in default of payment, to imprisonment with or without spare diet, for a period of a month.
This was for absenting himself from the workplace without the permission of the employer, without leave or permission of the employer, or if he was abusive or insulting in language to his employer, his employer"s wife or children. A worker could also be jailed for failing to report to his master, if he was a herdsman, at the earliest opportunity, the death of animals.
Offenses under the Act did not have the effect of terminating the contract. The employee was bound to return to his employment after complying with the terms of the punishment to serve out the unexpired period of service. In addition, after having been imprisoned, the employee was obliged to work for his employer for a period equal to the period of imprisonment. On a second conviction, the employee was liable to imprisonment for a period of two months in solitary confinement with or without spare diet.
The inequality of the bargaining process was cemented in a provision of the Act, which made it an offense for any person to persuade or endeavour to persuade any servant to depart from his service or work, or to return his work to his master before the same is finished.
So repugnant was the system that as late as 1975, a High Court judge remarked the following. "The procedure and punishment and even the fact that a servant, as defined, renders himself liable to prosecution at all, places this Act into the category of drastic or archaic legislation."
The judge quoted a magistrate as reporting the following. "A perusal of the record held revealed that in 1974, prosecution in terms of the Master and Servant Act accounted for approximately one-tenth of the cases heard at Karoi alone and that 90 percent of those convicted were first offenders unable to pay the fines imposed, and as a result were committed to goal."
The legislation was tailored in such a manner that instead of championing the protection of employee's rights, especially over unfair and arbitrary dismissal, it created a system where the voice of employees was not heard in the decision making or in the determination of contractual terms and conditions. When Zimbabwe attained its hard won independence in 1980 after a long protracted struggle, the Government had to make swift efforts to address those colonial imbalances inherited from the colonial era. Oppressive laws had to be replaced by a system seeking to give both capital and labour equal strength in the management of labour relations.
Early legislative intervention to address the anomalies of the past included the Minimum Wage Act, 1980 (No. 4) and the Employment Act, 1980 (No. 13). The Employment Act repealed the Master and Servant Act, the African Labour Relations Act, the African Juveniles Employment Act and the Foreign Migratory Labour Act.
The core provisions of the Minimum Wages Act and Employment Act were subsequently incorporated into the Labour Relations Act of 1985 some of whose objectives was to declare and define the fundamental rights of workers and provide for the prevention of unfair labour practices.
The other objectives were to provide for the formation of trade unions and employment councils, regulate the negotiation, scope and enforcement of Collective Bargaining Agreements, and establish the Labour Relations Board and the Labour Relations Tribunal.
Discrimination based on race, tribe and sex among others was prohibited. Rights of female workers to equal pay and paid maternity leave were recognised.
Fair labour standards were introduced and encompassed minimum wages and maximum number of hours to be worked. Labour Relations officers were given access to the workplace. The concept of unfair labour practices sought top rotect worker's rights. The role of workers committees in encouraging the settlement of disputes and promoting productivity by generating a stable climate was more clearly defined.
Show cause and disposal orders were also introduced to create room for reflection. Machinery for the settlement of disputes included hearing officers and labour relations officers under the Ministry of Labour.
Institutions which would adjudicate on labour cases in terms of the Labour Relations Act, were the employment boards, the Labour Relations Board and the Labour Relations Tribunal.
The Labour Relations Board heard appeals against determinations of the regional hearing officers. Appeals against the Board's decisions were heard by the Labour Relations Tribunal.
From the Tribunal, appeals were heard by the Supreme Court. The Tribunal's composition was a Chairperson and deputy, both of whom were to be qualified judges of the High Court and not less than two or more than four other members.
Decisions of the Tribunal were made by the majority of members. In addition to hearing appeals from decisions of the Board, the Tribunal also heard appeals from decisions of the Minister of Labour concerning the registration of unions.
A 1992 amendment to the Labour Relations Act abolished the Labour Relations Board. Appeals against decisions of the registrar concerning the registration of unions and employment organisations, decisions of senior hearing officers and against show cause orders now fell under the Tribunal.
The amendment restricted appeals to the Supreme Court against decisions of the Tribunal to points of law only. By 2002, it was clear that the reform of the Labour Relations Act was necessary in order to take into account the gains that had been made and further to reduce the influence of the Government appointed labour officers.
The Labour Relations Tribunal was also inundated with numerous appeals from decisions of hearing officers. It was also necessary to harmonise our labour laws with international best practices.
The Labour Relations Amendment Act, 2002 (No. 17) abolished the Labour Relations Tribunal and established the Labour Court. To avoid forum shopping, the Act stipulated that no other court was to have jurisdiction in the first instance to hear any application over which the Labour Court had jurisdiction.
The authority of labour officers was reduced to the conciliation of disputes. A Retrenchment Board was established to protect the rights of employees where an employer is seeking to retrench employees.
More importantly, the amendment introduced a new system of dispute resolution through the use of Arbitrators dealing with cases that labour officers failed to conciliate.