eBusiness Weekly
Arthur Marara
This week we continue looking at the 2023 Labour Amendment Act. The amendment has brought in a raft of changes to the law.
In the previous article we look at two sections of the Amendment Act. We will continue this week to look at some of the change that the Act has brought and the implications for business.
Section 8: Duration, particulars and termination of employment contract
This section repeals Section 12 (4a) of the Labour Act. The old provision provided that;
“(4a) No employer shall terminate a contract of employment on notice unless —
(a) the termination is in terms of an employment code or, in the absence of an employment code, in terms of the model code made under section 101(9); or
(b) the employer and employee mutually agree in writing to the termination of the contract; or
(c) the employee was engaged for a period of fixed duration or for the performance of some specific service; or
(d) pursuant to retrenchment, in accordance with section 12C.”
The repealed Subsection was inserted by section 4 of Act 5 of 2015. The Amendment Act provides that a contract of employment may be terminated only, on the part of an employee, by his or her resignation or retirement.
In the case of an employer the termination of contract can be done by mutual agreement in writing, or for breach of express or implied conditions of service after a due process (procedural fairness) in line with applicable and established code of conduct or agreed disciplinary procedure, and mutual termination.
The inserted subsection does not bring any material change to the law it confirms existing forms of termination of contracts. Section 12B of the Labour Act already provides for protection of employees from Unfair Dismissal by imposing an obligation on an employer to ensure that the dismissal of an employee is in accordance with an employment code or national code. This presupposes the conducting of disciplinary hearings.
The Bill had been couched in a wider way which was meant to deal with termination of contracts of notice, casualisation of labour. The proposed amendment had sought to unambiguously deal with the issue of the common law practice of termination on notice and also deal with issues of casualisation by making provision that a fixed term contract cannot be for a period that was less than 12 months, unless the employment was for seasonal or causal work or for the performance of a specific service.
Clause 9: Retrenchment and compensation for loss of employment
This clause replaces section 12C to provide essential definitions related to retrenchment.
Makes provisions to ensure that employer’s obligation to pay the retrenchment package to his or her employees is fulfilled, taking into account any employer that deliberately diminishes his or her capacity to pay the retrenchment package and also making sure that employees are free to make representations to the Retrenchment Board where they allege that an employer has the capacity to pay a better retrenchment package than that offered. This clause further provides a process for effecting enforcement of non-payment of a retrenchment package through the Labour Court.
Clause 10:
This clause inserts a new section to ensure that employees do not evade having to pay retrenchment packages to their employees by fraudulently or recklessly conducting their business in a manner that renders the employer unable to pay such retrenchment package.
Clause 11: Maternity
This clause amends section 18 to align the Labour Act to section 65(7) of the Constitution to ensure that women employees have the right to fully paid maternity leave for a period of 3 months by removing qualifying periods, prescribed intervals for maternity and a maximum number of times for enjoying the right to maternity leave under one employer.
This will protect women from discrimination as well on the grounds of pregnancy. Many employers tend to shy away from hiring pregnant women. Women are also now free to have as many babies as they want if the Act goes through.
Clause 12: Zero-Hour Contracts
This clause inserts a new section that makes provision for the manner in which an employer can engage employees on contracts for hourly work against the back drop of new forms of contracts called “zero hour contracts” wherein workers are only paid for actual hours worked in the event of work stoppage not caused by the employee.
These contracts may not prohibit employees from seeking other work. This section clause also mandates the employer to pay up the difference of what the employees earn and the minimum wage where employees do not earn the minimum wage for a period of two months.
Clause 12: Labour Brokage
This clause further provides for fair labour practices in labour brokerage arrangements in that, it affords protection for employees in such arrangements by making the labour broker and employer both liable to the employee. This deals with mischief that comes with triangular employment relationships which circumvent employer obligations and responsibilities including fair remuneration of workers.
Clause 13: Collective
Bargaining Agreements
This clause provides for the Minister to be a party to a collective bargaining agreement where statutory bodies or entities controlled by the State are parties to a collective bargaining agreement to cure the mischief of unsustainable employments costs being agreed upon by parties to a CBA in statutory bodies or entities controlled by the state.
Clause 17: Trade Unions
This clause makes addition to the requirements for application for registration of a trade union, employers organisations or federation, namely the requirement to specify the physical head office of the organisation and submission of the minutes of the meeting of the organisation. This is meant to deal with mushrooming of brief case unions seeking registration without known offices or proven membership.
Clause 25: Dispute resolution
This clause amends section 63 of the existing Act in order to ensure that the matter of dispute or unfair labour practice are redressed by allowing a labour officer to assume jurisdiction over such matters where they have not been attended to by a designated agent within a period of 30 days. This allows for access to justice to concerned parties in places where there are no Designated Agents of the National Employment Councils(NECS) and in situations of inordinate delays by NECs.
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a practising Attorney./Bestselling Author./Human Capital Trainer./Business Speaker ./Thought Leader./ Law Lecturer./ Consultant./ Coach./ Legal Proctor (UZ). He has vast experience in employment law and has worked with several corporates, and organisations. He is also a notary public and conveyancer. He is passionate about promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]
