LABOUR FORUM JUNE 2017

o

LABOUR L A B O U R FORUM INDABA presents

se r ve

www.ncs.co.zw/labourforum facebook.com/ncslabour

DEBUT ISSUE

JUNE 2017

30 JUNE 2017 8a.m -1 p.m

NEWS

05

DELIBERATION Dealing with salary arrears & late payments of wages and allowances

Can an employer vary conditions of an employment contract entered into prior to dollarisation, particularly withdrawal of benefits

Cresta Churchill

09

CURRENT RETRENCHMENT PROCEDURES &SHORTTIME WORKING IN TERMS OF LABOUR RELATIONS AND AMENDMENT ACT 5 OF 2015

EVENTS Termination on 3 month’s notice Can employers still do that ?

What can employers do if an employee does not concede to have T&C’s of an employment contract varied.

FEATURE

PULSE 12

?? ??

UNDERSTANDING PARTIES TO AN EMPLOYMENT CONTRACT FOR BOOKINGS / MORE INFORMATION

NCS LABOUR RELATIONS 142002000937 MBCA Belmont NCS LABOUR RELATIONS 004215282101 Agribank

CONTACT Gladys or Lucia on (029) 77405 / 75237 or Cell: 0712 617 383 / 0712 717 708

07

(For cash payments) Unit 8 Aida Court, Windsor Park, Famona Bulawayo

June 2017. LABOUR FORUM.

Page 2

EDITORIAL DEBUT ISSUE: JUNE 2017 CONTENTS Editorial ....................... Page 2

Mrs Gladys Mpemba is excited to announce that NCS Labour and Training Consultants have decided to up the ante in serving you. Find out how.

News ............................ Page 4

Updates from National Employment Councils and Industry Confederations around Zimbabwe.

Trending Issue ............ Page 5

We give you expert insight into issues affecting employers today

Labour Law ............... Page 7

We decipher the laws of the Republic to save you the trouble of unwittingly breaking them.

Policy ............................ Page 8

We give you expert analysis on National Employment policies so that you understand their implications on your business.

Events ....................... Page 9

Conferences and networking meetings that could advance your business acumen

FAQ’s .......................... Page 11 We answer your questions, free of charge!

The Pulse .................. Page 12

Catch testimonials from our clients and share yours too.

PUBLISHERS NCS LABOUR & TRAINING CONSULTANTS +263 71 261 7383 / +263 712 717 708 Unit 8 Aida Court, Windsor Park, Famona, Bulawayo. @ncslive (Facebook, Twitter, Wordpress) Editor Gladys Mpemba Non-Executive Directors Shepherd Mpemba Chido Mpemba Contributor Peter Ngorima Administrator

INTRODUCING LABOUR FORUM!

W

To cap it off, The Pulse will indulge you into experiences that our valued clients have had with us. This testimonials section is poised to be a worthy walk down the memory lane of NCS’s 18 years of existence. Feel free to share We are very proud and pleased that yours too via email, or simply upload you elected to sign up and subscribe However, our main article in the cen- them through the contact form on our to receive the newsletter which NCS ter spread seeks to improve your un- new blog and website.

Labour Consultants will be offering as derstanding of employement contracts a free service to all interested clients. and expectations from each of the Happy Reading.

We will use our newsletter to inform signatories. you our readers about labour matters and keep you posted on labour rela- It is my hope that this publication will tions news and updates in various in- increase your understanding of NCS Gladys Mpemba. dustries. The objective is to offer tid- Consultancy. Be sure to read a pro- Editor bits of information on labour matters. file of ‘our principal consultant’ and informercials that we have scattered The goal of NCS starting up this through-out this publication. monthly newsletter is to provide our established and prospective clients with news and information on labour matters,programs and events.

Please note that we will also have special editions throughout the year.

Your feedback to the newsletter articles and any questions on specific topics are most welcome. We also encourage you to share any of our newsletters with any interested parties but not for sale.

It is hoped that the newsletter will be of inestimable value to you our clients. e are very excited to introduce the first issue of our newsletter on Labour Matters.

is loaded with news , trending issues, policy, labour law , events, a frequently asked questions section and testimonials from individuals and companies that have done business with NCS Labour Relations and Consultants.

The debut edition of Labour Forum

GET YOURSELF AHEAD

WITH NCS LABOUR RELATIONS PUBLICATIONS

Lucia Murumbi Design & Layout Tam’sanqa Mhepoh (+1-402-304-6540 / +263-71-292-3105) mhepoh@gmail.com Images and Illustrations Tamsanqa Mhepoh DISCLAIMER Labour Forum is not meant to be an exhaustive legal reference or a substitute of the statutes .It is among others, an explanatory guide to those parts of labour relations and human resources that directly affect the employment relationship.

The information, opinions and views set out in this publication are those of the author(s) and do not necessarily reflect the official opinion of NCS, executive members nor any of their partners.Neither NCS Labour Consultants nor any person acting on their behalf may be held responsible for the use which may be made of the information contained therein. Rights to the photographs and articles remain with the photographers and with the authors respectively. Contact NCS Labour for reproduction. While all care has been taken during editing, errors and omissions may slip through and we sincerely apologise for these.

Disciplinary Procedures & Guiding Court Cases.

(Standard Procedures Applicable to All Codes) $30.00.

Retrenchment Procedures Handbook.

(A practical guide) $45.00.

DIY – Contracts of employment.

(Drafting of contract documents and job descriptions) $30.00.

Interested? Contact Gladys or Lucia on +263 (9) 77405/75237or0712 617 383/0712 717 708 e- mail: ncslabour@comone.co.zw or ncslabour@gmail.com

ONUS – He who alleges must prove.

(A guide to proving 26 serious offences) $30.00.

Labour Act (Chapter 28:01).

Updated to incorporate all amendments as at 2nd March 2007. $25.00.

NCS Labour Relations & Training Consultants Unit 8 Aida Court, Windsor Park, 16th Avenue, Famona, P.O. Box 215, BULAWAYO.

Page 3.

ABOUT NCS

LABOUR FORUM. June 2017

June 2017. LABOUR FORUM.

Page 4

NEWS ENGINEERING & IRON AND STEEL INDUSTRY NEC SETS NEW GUIDELINES FOR FIXED TERM CONTRACTS AND RATES FOR GRATUITIES According to a circular published by the Council, “Any fixed term employee who has been employed for a period of up to three (3) years counting from the initial date of employment shall be deemed to be a permanent employee effective from 12 May 2016.”

The Council also advised that with effect from 13 September 2016, gratuity rates will be as follows: Length of Service in Years

Percentage of monthly wage on termination of employment

3 4 5

12 13 14

The circular overrides all previously circulated communications on the issue of gratuities.

NEC TRANSPORT - COLLECTIVE BARGAINING AGREEMENT TO AFFECT DISCIPLINARY PROCEDURES AND CONDIITONS OF SERVICE Statutory Instrument 26 of 2017 also known as the Collective Bargaining Agreement for the Transport Operating Industry replaced Statutory Instrument 67 of 2012. Below are the most notable changes: (a) Section 13 on Incentive Production Schemes. (b) Clause D.6 in S.I. 67 of 2012 under the Code of Conduct which allowed the Disciplinary Committee to refer a deadlock to the Chief Executive Officer was taken out and the C.E.O will now only deal with appeals if he/she was not part of the Disciplinary Committee.

N.B. Copies of S.I. 26/2017 are available at NEC Offices at a cost of $5.

WAGE INCREASE FOR TOURISM INDUSTRY APPROVED WITH EFFECT FROM MARCH 2017 TO 28 FEBRUARY 2018 Wage increase for period 1 March 2017 to 28 February 2018.

Sector I and 1b $6 across all grades, sector II $15 across all grades.Allowances for all sectors remain unchanged.

Agreement published on 24 May 2017 and the new minimum rates have been submitted to the Ministry of Labour, Public Service and Social Welfare for registration and publication. Effective date of implementation of the new minimum rates of pay is 1 March 2017 meaning there is backpay.

Labour Forum is NCS’s first electronic newsletter. The goal of our newsletter is to provide our established and prospective clients with news and info about human resources programs and events.

The newsletter is a free service emailed on a monthly basis with special editions throughout the year.

The purpose of this newsletter is to provide our valued clients with a better understanding of the issues that have an impact on employers and employees alike.

NCS Labour and Training Consultants is now live on social media. Follow us on Facebook, Twitter, Issuu, Eventbrite and Wordpress using @NCSlive.

N.B. Anyone willing to get the full agreement can contact Gladys or Lucia at ncslabour@gmail.com.

NEC MINING INDUSTRY RAISES MINIMUN WAGE EARNIINGS BY 2% New minimum rates of pay for grades 1 – 13 were agreed upon by the Associated Mine Workers Union of Zimbabwe and the Chamber of Mines of Zimbabwe on 14th March 2017. (i) Rates of pay Effective January to December 2017 as hereunder:

(i) Service Increments The basic minimum earnings, prescribed in (i) shall be increased as hereunder in respect of employees whose total length of service with the same employer amounts to two or more years.

Service years

Percentage increase

Accumulated percentage increase

After 2 years

2%

2%

After 3 years

1%

3%

After 4 years

1%

4%

After 10 years

2%

6%

After 15 years

2%

8%

After 20 years

2%

10%

After 25 years

2%

12%

Note: Employers are to ensure that the following deductions are implemented and shortfalls back-dated to January 2017.

Grade

Minimum per month (31/12/16)

New minimum per month (01/01/17)

New minimum per shift

Dollar value increase

1

249.24

252.98

9.73

3.74

2

251.23

255.00

9.81

3.77

3

252.26

256.04

9.85

3.78

4

256.69

260.54

10.02

3.85

5

264.35

268.32

10.32

3.97

6

276.76

280.91

10.80

4.15

7

288.10

292.42

11.25

4.32

8

313.78

318.49

12.25

4.71

9

380.64

386.35

14.76

5.71

10

426.75

433.15

16.66

6.40

11

499.98

507.48

19.52

7.50

12

542.31

550.44

21.17

8.13

13

578.09

586.76

22.57

8.67

Our social media accounts are a handy tool for quick updates on labour laws in Zimbabwe, Events, Trainings and information on human resources.

MEET OUR TEAM

Shepherd and Chido Mpemba (Non Executive Directors)

Gladys Mpemba (Principal Consultant)

Lucia Murumbi (Administrator)

Godfrey Makasva (Office Assistant)

Page 5.

LABOUR FORUM. June 2017

T REN DING IS SU E

PAYMENT OF RETRENCHMENT PACKAGES IN RETROSPECT UNCONSTITUTIONAL Amendment Act No. 5 of 2015 provided for companies to pay dismissed employees retrenchment packages in retrospect. High Court Judge, Justice Loice Matanda-Moyo ruled that the law takes away the employer’s rights to terminate contracts of workers on notice, making it unconstitutional in a democratic society.

by Gladys Mpemba

ZIMIND PUBLISHERS (PVT) LTD VS 75 EMPLOYEES.

O

n the 16th March 2017, the media reported that the High Court had ruled that employees whose contracts of employment were terminated on 3 months notice should not be paid retrenchment packages in retrospect.

Amendment Act No. 5 of 2015 Section 12C (2) as read with Clause 18 provided for companies to pay dismissed employees retrenchment packages in retrospect.

Zimind Publishers (Pvt) which fired 75 employees on 20th August 2015 following the Supreme Court Zuva Judgment approached the High Court challenging the constitutionality of amendments to the Labour Act particularly the provision that companies pay dismissed employees in retrospect.

The publishing firm Zimind wanted the High Court to strike down Section 18 of the Labour Amendment Act No. 5 of 2015. The section had the effect of declaring all terminations that occurred after the Zuva Judgment illegal, unless a minimum retrenchment package was paid by the employer.

In the High Court landmark judgment of 15th March 2017, Justice Loice Matanda-Moyo ruled that section 18 takes away the employer’s vested

“Legislation is crafted to deal with future events and circumstances, not past demeanours,” rights to terminate contracts of workers on notice, making it unconstitutional in a democratic society.

She said “I am of the view that taking away vested rights to terminate contracts of workers is contrary to the Constitution. It is also not in conformity with the principle of the rule of law to prescribe a law expost fact. Accordingly, it is declared that Section 18 of the Labour Act Number 6 of 2015 is inconsistent with section 3 (2) (k), 56 (1) and Section 86 of the Constitution of Zimbabwe and is therefore invalid.”

The matter will now be referred to the Constitu

tional Court for determination in terms of section 167 (3) of the Constitution.

Arguing for the Zimind Publishing (Pvt) Ltd, Advocate Tawanda Zhuwarara said the amendment had the effect of imposing financial obligations on the employer. This, he argued, forcibly deprived the employer of money to the benefit of the third parties who were never entitled to such money at the time of termination.

“Information which punishes certain conduct must be available before the conduct” argued Advocate Zhuwarara. “If a conduct is lawful then, one acts in terms of the law, such conduct cannot be in future be impugned”. Advocate Zhuwarara also argued that the amendment was not justified in a democratic society. The lawyer further argued that creativity legislation with retrospective effect was a hallmark of tyranny as such laws placed citizens at the mercy of Government.

“The ordinary supposition is that legislation is crafted to deal with future events and circumstances, and had never been designed to deal with past demeanours,” argued Adv Zhuwarara.

Related to the above, Gweru based Bata Shoe Com

pany and Netpack (Private Limited) also have pending cases at the Constitutional Court on the same issue of retrenchment packages for dismissed employees. Many employers feel discriminated by Amendment Act No. 5 of 2015 and want certain sections of the amended Labour Act declared unconstitutional. Greatermens Stores is also arguing that Section 18 of the Amendment Act is inconsistent with the Constitution of Zimbabwe. EMCOZ is seeking a similar relief on behalf of their members. It contends that the infringement of employers’ rights was caused by a knee-jerk reaction by the State to what it perceived as a social ill. “That the process of legislating the amendment act was reactionary is evidenced in the lack of thinking, consultation and research required to guide action and lawmaking,” said EMCOZ Executive Director Mr. John White Mufukare in an affidavit accompanying the application to Court. Mr. Mufukare argued the curtailment of the employers’ right to terminate an employment contract on notice led to the viability challenges faced by many companies.

June 2017. LABOUR FORUM.

Page 6

FEATURE

UNDERSTANDING PARTIES TO AN EMPLOYMENT CONTRACT

T

he first question to be asked when seeking to resolve any labour law problem is whether the parties are indeed employees and employer within the meaning of the applicable statutes and or the common law.

In most cases, it is not difficult to identify persons as employers or employees.

However, there are fringe cases in which it may not be immediately apparent whether the parties have entered into the contract of employment (locatio conductio operarum) or contract of work (locatio conductio operis). Although the locatio conductio operis entails the provision of work or services, it is not a contract of employment.

The independent contractor of the common law is not an employee or take other examples of partners or agents even though one of the parties may work for the other.

The distinction between the locatio conductio operarum and other contracts, the performance of which entails the rendering of work is critically important because different legal consequences flow from the various forms of contract.

The Labour Act defines an employee as any per-

son who performs work or services for another person for remuneration or reward on such terms and conditions as agreed upon by the parties or as provided for in this Act, and includes a person performing work or services for another person – (a) In circumstances where, even if the person performing the work or services supplies his own tools or works under flexible conditions of service, the hirer provides the substantial investment in or assumes the substantial risk of the undertaking or (b) In any other circumstances that more closely resemble the relationship between an employee and employer than that between an independent contractor and hirer of services.

The term employer refers to any person whatsoever who employs or provides work for another person and remunerates or expressly or tacitly undertakes to remunerate him, and includes (a) The manager, agent or representative of such person who is in charge or control of the work upon which such other person is employed; and (b) the judicial manager of such person appointed in terms of the Companies Act (Chapter 24:03); (c) the liquidator or trustee of the insolvent estate of such person, if authorized to

carry on the business of such person by – (i)the creditors; or (ii) in the absence of any instruction given by the creditors, the Master of the High Court; (d) the executor of the deceased estate of such person, if authorized to carry on the business of such person by the Master of the High Court; (e) the curator of such person who is a patient as defined in the Mental Health Act (Chapter 15:12) (No. 15 of 1996), if authorized to carry on the business of such person in terms of Section 88 of that Act.

Essential elements of a contract of employment: • • • • • • •

It is a voluntary agreement.

There are two legal parties.

The employee agrees to perform certain specified and or implied duties for the employer.

There is an indefinite or specified period.

The employer agrees to pay a fixed or ascertainable remuneration to the employee.

The employer gains a (qualified) right to command the employee as to the manner in which he or she carries his or her duties.

The contract of employment may not contain unlawful provisions.

“there are fringe cases in which it may not be immediately apparent whether the parties have entered into the contract of employment (locatio conductio operarum) or contract of work (locatio

conductio operis).”

Main differences between contract of employment and contract of work CONTRACT OF EMPLOYMENT (LOCATIO CONDUCTIO OPERARUM) Object is the rendering of personal services between employer and employee Employee renders service at the behest of employer.

Employer may decide whether it wishes to have employee render service.

Employee is obliged to obey lawful reasonable instructions regarding work to be done and manner in which it is to be done.

Terminates on completion of the agreed period.

CONTRACT OF WORK (LOCATIO CONDUCTIO OPERIS) Object is the production of a certain specified service or the production of a certain specified result.

Independent contractor is not obliged to perform work personally unless otherwise agreed.

Independent contractor is bound to perform specified result within a specified or reasonable time.

Independent contractor is not obliged to obey instructions regarding manner in which task is to be performed.

Terminates on completion of the specified

Page 7.

LABOUR FORUM. June 2017

L AB OU R L AW

SUPREME COURT GIVES EMPLOYERS POWER TO CHOOSE DISCIPLINARY AUTHORITY A court case between the National Engineering Worker’s Union and an employee fired for misconduct, clarified who exactly can chair disciplinary hearings.

by Peter Ngorima

A

N EMPLOYER HAS THE DISCRETION TO CHOOSE WHO SHOULD CHAIR DISCIPLINARY HEARINGS UNDER S.I 15 OF 2006.(National Code of Conduct) Case: National Engineering Worker’s Union (NEWU) v Ntombizodwa Dube SC-01/16 published in February 2016.

See also: Crispen Mandizvidza v ZFC Limited and Anor SC-73-2015 This case clarifies and puts to rest the argument on who can chair disciplinary hearings under S.I 15 of 2006 (The National Code of Conduct).

Brief Facts of the case Ntombizodwa was charged by her employer (NEWU) under the National Code. Six counts of misconducts were proffered against her. The “Disciplinary Authority” who heard the matter found her guilty of four charges and she was consequently dismissed. She appealed to a labour officer and the matter was eventually heard by an Arbitrator. The Arbitrator set aside the dismissal.

An order of reinstatement or damages was made.

NEWU appealed to the Labour Court. The Labour Court dismissed the appeal on the basis that the Disciplinary Committee had been improperly constituted and ordered that Ntombizodwa be paid damages calculated from the date of dismissal to the date she found alternative employment. NEWU filed an appeal with the Supreme Court. Three issues were raised in the appeal but for the purpose of our article only two are relevant: a) Whether on the facts of the matter the disciplinary hearing was conducted by a Disciplinary Authority or by a Disciplinary Committee; b) Whether the adjudicating authority was properly constituted.

Findings of the Court: 1} Firstly, there are two definitions of disciplinary committee under the Code. There is the definition in Section 2 of the Code which defines a disciplinary committee as: “disciplinary committee” means a committee set up at a workplace/establishment composed of employer and employees representatives, to preside over and decide over disciplinary cases and/or worker g r i e v a n c e s ; This the Court called the “stand alone definition.”

The other definition refers to the disciplinary authority as: “disciplinary authority” means a person or authority or such disciplinary committee dealing with disciplinary matters in an establishment or at a workplace; (Emphasis is mine) This definition includes the disciplinary committee as one of the bodies that may constitute a disciplinary authority.

Secondly, and notably, while the Code has two definitions, only “disciplinary authority” is referred to in the body of the Code. Section 6(1)(4)(b) reads: 4) At a hearing in terms of subsection (2), an employee shall have the right to— (a)…; (b) appear in person before the employer or the em-

ployer’s representative or disciplinary authority as the case may be and be represented by either a fellow employee, worker’s committee member, trade union official/officer or a legal practitioner; (Emphasis provided).

As such the Code confers the powers to conduct a disciplinary hearing on the disciplinary authority. There is no provision in the Code that confers similar powers on the disciplinary committee. As such there is no provision in the code for an employee to appear before a disciplinary committee unless such committee is constituted as part of a disciplinary authority.

The Court did not however make a finding on whether this was the intention of the legislature.

2} The Court concluded that based on the evidence before it, Ntombizodwa had appeared before a disciplinary authority and was represented during the proceedings. The employer was also represented during the hearing. As such the composition of the hearing was in accordance with Section 6(4)(1)(b).

Most importantly, the Court held that: “…it becomes evident that the appellant consciously set out to constitute a disciplinary authority (as opposed to a disciplinary committee), and properly exercised its discretion in choosing the size of and specific people to sit on, such disciplinary authority. It is pertinent to note in this respect that no limitation is imposed by the Code as to the number of persons who should constitute a disciplinary authority. Nor is the designation of such persons stipulated. It is all left to the employer’s discretion. In the proceedings in question and in compliance with s 6(1)(4)(b) of the Code, the respondent was allowed to bring, and be represented by, her legal practitioner (Emphasis is mine).

Based on the above, the Court made the finding that the disciplinary authority that conducted the hearing against Ntombizodwa was a Disciplinary Authority as defined in the Code, and that it was properly constituted.

The appeal was granted and the matter referred back to the Labour Court for determination on the merits .

Take away: Based on the above it is important for employers who commence hearings using S.I 15 of 2006 (National Code of Conduct) to clearly state that the hearing is to be chaired by a Disciplinary Authority. It is also incumbent on the Disciplinary Authority to put it on record that he/she is conducting the hearing under section 6(4) which empowers him/her to conduct such hearing.

Article written by Peter Ngorima, an Assoicate Consultant of NCS Labour Relations and Consultants.

June 2017. LABOUR FORUM.

Page 8

POLICY

Z I M BABW E NEEDS URGENT LABOUR LAW REFORMS

S

ubsequent to the promulgation of Amendment Act No. 5 of 2015, both labour and business have not been happy with certain sections contained therein resulting in dialogue to amend the Amendment Act. Below are some of the sections that trade unions (labour) and business (employers) have been discussing in a bid to agree on changes.

PRINCIPLE 1 Streamlining Retrenchment Procedures 1.1 The Labour Amendment Act No. 5 of 2015 currently poses challenges to the administration of the retrenchment process. The Labour Amendment Act section 5(3) (b) currently provides for automatic granting of exemption to an employer from paying the minimum retrenchment package, if the application for exemptions to the retrenchment Board is not heard within 14 days.

This section is unfair to the employee(s) concerned as the exemption is granted without a fair hearing. More so the section seems to promote dereliction of duty on the part of the Retrenchment Board. It is therefore proposed as follows; (i) To amend section 5 (3) (b) by deleting the words, “ (failing which response the ap-

plication is deemed to have been granted).”

Labour agrees with the proposal to delete the clause because it is a violation of the right to a fair hearing in accordance with section 69 of the Constitution.

Business does not agree with the proposal to delete the clause because prolonging an exemption case would be financially unsustainable for an enterprise which is even struggling to pay the minimum package (ii) To amend section 5 by insertion of a clause that will provide for fair representation by employer and workers as well in an exemption hearing.

Parties agreed to the proposed amendment 1.2 The Amendment Act No. 5, section 5 does not provide for equal protection for the workers as of the employers. While the section provides for exemption for companies who allege incapacity to pay the minimum retrenchment package, the section does not provide a recourse procedure for retrenched employee(s) who alleges the company concerned has the financial capacity to pay more than the minimum package. It is proposed to amend section 5 by adding a recourse procedure as follows; (i) The parties shall negotiate the retrenchment package at enterprise or NEC level within 30 days.

Failure to reach an agreement the employer shall pay

the minimum package and the aggrieved retrenched employee(s) may appeal to the Retrenchment Board which shall make a determination within 30 days.

Business’s position is that failure to reach an agreement at enterprise and NEC, the employer shall pay the minimum package and the aggrieved retrenched

“Amendment Act No. 5, does not provide for equal protection for workers and employers.” employee(s) may appeal to the Retrenchment Board.

Labour’s position is that retrenchment is not a misconduct procedure hence it would only be fair for the employee to remain employed until the matter is finalized by the Retrenchment Board.

There was no agreement.

Parties did not agree on whether upon failure to agree the worker shall remain employed until the case is finalized or that upon failure to agree the employer pays the minimum package, thus terminating the contract whilst the matter is referred to the Board for a determination.

PRINCIPLE 2 Right to Collective Bargaining 2.1 The Constitution of Zimbabwe section 65 (5) provides that every employee has the right to engage in collective bargaining as also enshrined in ILO Convention 98 on the Right to Collective Bargaining and Protection of the Right to Organise which the Government has ratified.

Some sections of the Labour Act undermine the full exercise of this Constitutional right. Therefore the following amendments are proposed; (i) To amend section 25, 79, 81 of the Labour Act as well as section 14 of the Labour Amendment Act No. 5 to ensure that collective agreements are not subjected to Ministerial approval on the grounds that the agreement is or has become “…unreasonable or unfair” or “contrary to public interest”.

2.2 It is proposed to include other factors to also be considered in Collective Bargaining as contained in the ILO Convention 131 on Minimum Wage Fixing and in line with the Constitution.

Parties agreed to the principle Please note that there are 13 principles and therefore we will be tackling more in subsequent newsletters.

Page 9.

LABOUR FORUM. June 2017

EVENTS

EVENTS TO LOOK FORWARD TO THIS WINTER 1. HALF A DAY LABOUR INDABA FACILITATED BY NCS LABOUR CONSULTANTS TO DISCUSS:

# Q u o t e s 4 S u c c c e s s

(1) Dealing with salary arrears and late payment of wages and allowances (2) Can an employer vary conditions of an employment contract entered into prior to dollarisation (3) Current retrenchment procedures and shorttime working conditions in terms of

the Labour Relations and Amendment Act 5 of 2015 (4) Termination on 3 months notice, can employers still do that?

(5) What can employers do, if an employee does not conceed to have condiitons of an

employment contract varied?

On 30th June 2017 @ Cresta Churchill Hotel Bulawayo @ 8.30 to 1 pm. Cost $60.00 per delegate to cover teas, lunch and soft copy notes.To register call Lucia on (029) 77405/75237 or cell 0712 717 708 or Gladys on 0712 617 383. Directions below.

i n spi r e d

to

presents

se r ve

LABOUR INDABA 30 JUNE 2017 8a.m -1 p.m

Customers do not measure you on how hard you tried. They measure you on what you deliver – Steve Jobs.

Cresta Churchill TOPICS FOR DELIBERATION

$$

Dealing with salary arrears & late payments of wages and allowances

$$

Can an employer vary conditions of an employment contract entered into prior to dollarisation, particularly withdrawal of benefits

CURRENT RETRENCHMENT PROCEDURES &SHORTTIME WORKING IN TERMS OF LABOUR RELATIONS AND AMENDMENT ACT 5 OF 2015

Termination on 3 month’s notice Can employers still do that ?

What can employers do if an employee does not concede to have T&C’s of an employment contract varied.

Treat your employees right so that they won’t use your internet to look for new jobs – Mark Zuckerberg.

?? ??

A wise man will take stock of his life once in a while asking “what am I doing to help people? What will I be remembered for? Am I making a difference by making lives others better, richer or happier? -Maria Fontaine

FOR BOOKINGS / MORE INFORMATION

INVESTMENT

$60 ACC Name: ACC Number: Bank: Branch:

NCS LABOUR RELATIONS 142002000937 MBCA Belmont

ACC Name: ACC Number: Bank: Branch:

NCS LABOUR RELATIONS 004215282101 Agribank Inala

CONTACT Gladys or Lucia on (029) 77405 / 75237 or Cell: 0712 617 383 / 0712 717 708 (For cash payments) Unit 8 Aida Court, Windsor Park, Famona Bulawayo

2. IPMZ ANNUAL CONVENTION AND EXHIBITION Theme: HR WINNING THE RACE ON THE MARKET. On 26 -29 July 2017 @Elephant Hills Hotel – Vic Falls Bookings - email: information @ipmz.co.zw Telephone: + 263 4 700712/20.

Directions to the venue on the map below.

IPMZ ANNUAL CONVENTION AND EXHIBITION 2017 THEME:

HR Winning The Race On The Market

TOPICS AND SPEAKERS .

1. The dynamics of managing HR in Zimbabwe today amid cash crisis, liquidity challenges, unavailability of jobs, shrinking economy -TBA

The wise person questions himself, the fool others - Heny Arnold.

Our greatest glory is not in never failing, but in rising up everytime we fail- Ralph Waldo Emmerson

2. Optimizing your brain power to increase your personal brand's impact- TBA Topic- Topic` 3. Data driven decision making; how Data & HR analytics are changing the game in HR - TBA 4. Linking employee engagement to productivity– TBA 5. The implications of the Zero draft Labour bill & Constitutional Amendment 1 of 2017 on business -TBA 6. Becoming a Talent Magnet: How To Overcome The Talent Scarcity Issue And Become The Employer That Top Professionals Seek To Work For? - TBA 7. Keynote address and official opening – Extra ordinary leadership for extra ordinary results -TBA BREAKAWAY SESSIONS 1. The contemporary model for providing Affordable housing to employees for long term retentionCase study 2. Social Branding; How HR can help to build organisation’s reputation with social media– Case study(Own Transport)- $1 200.00, Non Member (Own Transport)- $1 400.00 3. Workplace bullying; Stress management and Wellness at work- Case study

Cost: Member (Including Airfare) - $1 700.00, Non Member (Including Airfare) - $1 900.00

WHO SHOULD ATTEND? HR Practitioners, Labour Practitioners, CEOs, HR Consultants, NEC’s, and all Key Decision Makers are Welcome!

DATES:

26-29 July 2017;

INVESTMENT: Member

$1075 (own transport); $1305

Member (full package+ conference gadgets)

Non-Member

$1250 (own transport);

Non Member (full package+ conference gadgets) $1480

Venue: Elephant Hills -Victoria Falls $1425 (Charter Flight) $1655

$1600 (Charter Flight) $1830

Contact us on+263 4 700712/14/20 or E-MAIL to information@ipmz.co.zw/marketing@ipmz.co.zw/training2@ipmz.co.zw

“The Value of Membership is Priceless”

3. IODZ PROFESSIONAL DIRECTOR DEVELOPMENT WORKSHOP ON BUSINESS ETHICS Business ethics: beyond compliance, towards competitive advantage On 14 June 2017 @Monomotapa Hotel – Harare Time: 8.30 - 16.00hrs Investment: Members- US$150 / Non-members - US$170 Bookings - email: admin@iodz.co.zw Telephone: + 263 4 332442 Directions to the venue on the map below.

Register and pay to attend upcoming events from the comfort of your office or mobile phone. Simply visit the NCS Events page online. www.ncslive.wordpress.com

The Shellgas centre, situated at the corner of 10th avenue \ Fife street, Bulawayo.Behind the Zb bank:

The original retailer of LPG gas, in Bulawayo.

Competitive prices. Vast experience in the gas delivery sales and service of all gas appliances in school labs, residential and business cookers and burners and valves. Also supplies of all gas appliances accessories, i.e, cooker tops, regulators, lamps, tubing, glasses, valves, jets, gas cylinders. We refill all sizes of gas cylinders and free delivery for orders from 48kgs.

Call Joe or Judy on 0772269609/0774098101 for a personalized attention!

June 2017. LABOUR FORUM.

Page 10

PROFILE

Gladys Mpemba, upclose and personal

A

In 2002 she became the first woman in Matabeleland to be appointed as an Independent Arbitrator by the Government.

steep climb up the stair case of one of the buildings in an Office park along 16th Avenue in Famona leads into NCS Labour Relations and Training Consultants.

Bhekinkosi Ndlovu, a Manufacturing Manager at Auto Tyres Zimbabwe (formerly Dunlop Tyres) whose company avoided litigation thanks to Mrs Gladys Mpemba’s advice, would “glady jump at the opportunity to use her services again.”

Peter Evans, General Manager at Mary Ellen Farm considers himself “ fortunate to be able to call on the wise counsel of Mrs Gladys Mpemba, the Principal Consultant at NCS Labour Relations.

Over the past 32 years, some of Zimbabwe’s best managers and businessman have had to occassionally engage Gladys when adversity with employees strikes. For the 56 year old, dealing with labour issues still elicits the sort of excitement that she felt on the 2nd of May 1985.

For the 56 year old, dealing with labour issues still elicits the sort of excitement that she felt when she was 24 That is the day when she assumed the post of Labour Officer in the Ministry of Labour in Chinhoyi.

“It was so exciting, I felt like a mini-magistrate, having the power to decide whether or not an employer was right or wrong,” recalled Gladys.

As a very young woman in her mid 20’s, she remembers how ambitious she was.

“I was very hardworking, and it did not take me six months to rise to the post of Hearing Officer.”

Gladys grew passionate about her work and was transfered to an even bigger town, Gweru.

“Gweru was more challenging than Chinhoyi, Gladys said reminiscently. There were industries there whereas Chinhoyi mostly had farms. The nature of labour matters varied, from unfair dismisals to non-payment of wages and terminal benefits.”

It took another six years to be elevated again.

Gladys was promoted to the post of Senior Labour officer now reporting to the Provincial Labour Officer.

The fact that she was specialising in labour law served as a consolation.

She had wanted to study law but could not because that program was mainly reserved for the white population at the University of Zimbabwe at that time.

She took a Bachelors Degree in Politcs and Administration instead.

1985 had been golden year for Gladys. She did not only land the right job but also married the right man. Shepherd.

Shepherd and Gladys welcomed their first born daughter Nyasha in August 1985. Little did the young Mpembas know that they had also ‘made’ the ‘N’ in NCS. Unlike most men in patricarchal Zimbabwe in the 90’s, Shepherd proved to be different, probably a little ahead of time.

“Shepherd started encoouraging me to start my own practice, seeing the progress I had made in my career, said Gladys with a smile on her face.” “I

was reluctant, I felt like starting a business was a mamoth task, but then he started buying furniture and even looking around for an office. ” Gladys had practiced as a Regional hearing officer and was subsequently appointed to the post of Senior labour officer in Gweru, a position that she held until she was transfered to Bulawayo in 1994.

She was among the pioneers to work at Mhlahlandlela government complex when it was opened in 1995, but resigned early in 1999 at the brinx of a promotion to the post of Principal Labour Officer in the Ministry.

“A South African company in conjuction with a One Up Business Trust subsidised a ten day training for aspring entrepreneures in Bulawayo, said Gladys.” “I was one of the two women in attendance.”

“I felt challenged by the initiative that some of the youngsters attending the training had,” recalled Gladys. “They were less educated than I was, and had far less work experience. However, they were already running their own businesses...”

“I immediately realised that I could also set up my own practice, added Gladys. “Afterall , there was an opportunity for private para-legal representatives in the market.”

On January 18 1999, a day after the training, Gladys handed in a notice of resignation. She never looked back.

On the 3rd of May 1999 she started her new job as her own boss at NCS Labour Relations and Consultants motivated by the prospect of more fincancial freedom, diversity and the opportunity to learn something new, the latter a motto that Gladys lives by.

Going up the ladder did not stop there for Gladys.

In 2002 she became the first woman in Matabele-

She did not only land the right job but also married the right man. land to be appointed as an Independent arbitrator by the government.

Fast-foward to 2017, Peter Evans doesn’t believe any large employer of labour can do without being able to call on the services of a labour consultant.

In fact he says that “the advice and help that he has had from Gladys has been second to none.”

Mini Bio & Profile

Interests : Travelling, Reading, Cooking Current Read: Starting with Why (Simon Sinek) Leaders Eat Last (Simon Sinek)

conciliation, mediation and arbitration skills.

Sits on the Girls College, Dominican Convent Schools and King George VI Board of Governors.

Is currently the Chairperson of the Grain Marketing Board National Employment Council.

A Consultant specialising in Labour Relations, Human Resources and Organisational Development.

Is contracted to a number of establishments nationwide on a retainer basis.

Holds a BSc. Degree in Politics and Administration, Diplomas in Personnel Management and Training Management with the Institute of Personnel Management (IPMZ).

Crafts staff conditions, codes of conduct, policies and procedures.

Has attained several certificates in Industrial Relations, Para-Legal Training and Training of Trainers.

Has conducted worker education programs in Malawi, Botswana, Lesotho, Swaziland and Uganda.

Has attended The Chartered Institute of Arbitrators International Entry Course thus she possesses

Top: Gladys Mpemba in her Office at Windsor Park in Famona. Top center: Gladys at Colbro Transport during a courtesy visit. Top Right: Gladys as presiding officer at the Railway Association of Engineman (RAE) 13th Congress on the 13th and 14th of May 2017. Bottom Right: Potrait of Gladys. Bottom Center: Gladys as a student at the University of Zimbabwe 1981. Top left: Wedding day 27 October 1990. Bottom left: Training Victoria Falls Management in June 2000.

Acts as a disciplinary authority chairing disciplinary hearings.

Is self motivated, creative, adaptable and has an eye for detail.

Has management, communication and problem solving skills.

Page 11.

LABOUR FORUM. June 2017

FAQ S

Welcome to the Frequently Asked Questions section or FAQ! In this section we hope to post brief Articles describing many of the issues that most frequently affect NCS clients. We will also include full manuals and information on trainings that we can provide on an as-needed basis.

We have done our best to provide detailed information that you will likely need to use in your endeavour to achieve good relations with employees in your organisation. However, contact us for assistantance implementing the recommendations in this section.

We will continue to develop this section as new questions and/or solutions arise. You may want to bookmark this page and check back whenever you run into problems.

H

ow do we calculate gratuity that has been delayed to be paid? Do we pay on current rates of pay or on the rate of pay at the time of termination?

In most collective bargaining agreements, there is a section on gratuities and the way it is calculated. Generally, gratuity is calculated at the rate of pay at the time of termination because that is when it is applicable. Should there be an oversight to pay it at the time of termination, the employer would still have to pay at the rate applicable at the time of termination with interest to make up for the delay in payment unless if the other party negotiates for a better rate to be used for the delayed calculation or where the collective bargaining agreement specifically relates to calculation at current rates.

H

ow do you charge an employee who has committed a serious act of misconduct which is not listed in a Code of Conduct or is not in section 4 of the National Code of Conduct?

It is impossible for the employer when drafting the Code, to anticipate and cater for all the offences that might be committed and thus the employer would still have a discretion in instances where a disciplinary Code does not specifically provide for a specific offence. Nevertheless where possible, identify a charge in the Code closest to the offence committed and the penalty imposed must still be a fair one under the circumstances.

Section 4 of S.I. 15/2006 and many Codes of Conduct provide that an employer can dismiss an employee where the employer “has good cause to believe that the employee is guilty of any act, conduct or omission inconsistent with the fulfillment of the express or implied conditions of his contract.

Where an employer administers the National Code of Conduct, section 4 (a) which reads “any act of conduct or omission inconsistent with the fulfillment of the express or implied conditions of his or her contract” would apply as it is all encompassing.

Refer: Mvere vs. Tanganda Tea SC 130/2004.

W

here an old aged employee about to retire commits an act of misconduct, and is unlawfully terminated, can he be expected to secure alternative employment to mitigate losses pending finalization of his case?

In the matter between Midsec and S. Gwafa, the Honourable Acting Chairman of the then Labour Relations Tribunal held that having regard to his advanced age, employee’s chances of finding alternative employment were virtually nil.

He went further to state that the job market is flooded with able bodied literate men and thus the chances of securing alternative employment for employees nearing retirement are slim. Thus, an old aged employee would be back paid all his dues if the Court finds that he had been unlawfully terminated. Should he have been procedurally discharged, the dismissal would stand.

Refer: Midsec vs. S. Gwafa Labour Court Judgement No. LRT/H/19/2000 Case No LRT/H/51/1995.

I

f employees engage in an unlawful job action, can you single out some of them for discipline?

You do not have to fire an entire workforce that goes on an illegal strike but those you single out, you must have good justification so that victimization is not alleged. Some rational basis that can be used is that the singled out ones could have been the main organizers of the strike or that they sabotaged business operations.

CODE OF BUSINESS CONDUCT AND ETHICS Businesses are expected to be committed to a policy of openness, integrity and accountability in the conduct of their business. This commitment is based on the belief that business should be conducted honestly, fairly and legally. To this end, businesses are encouraged to adopt a Code of Business Conduct and Ethics. Employees are required to maintain the highest ethical standards in ensuring that business practices are conducted in a manner which in all reasonable circumstances is beyond reproach.

The development of Best Practice Principles, a code of ethical behavior and principles, the commitment to world class health and safety and environment management standards and the continued adherence to corporate governance best practice principles, are the visible components of an organisation’s commitment to highest ethical standards.

Felt challenged? Come up with one or let us do it for you.

Contact Gladys or Lucia on +263 (9) 77405/75237 or 0712 617 383/0712 717 708 e- mail: ncslabour@gmail.com

Refer: Lancashire Steel vs. Zvidzai and others SC 29/1995.

GET YOURSELF AHEAD

WITH NCS LABOUR RELATIONS PUBLICATIONS

Frequently Asked Questions & Answers with decided cases (FAQ) (Very Handy and a Must to Have) $50.00.

Consolidated Labour Act (Chapter 28:01) including various fundamental statutory instruments (A must have). $60.00.

Amendment Act No. 5 of 2015. $10.00.

Order Now! Contact Gladys or Lucia on +263 (9) 77405/75237or0712 617 383/0712 717 708 e- mail: ncslabour@gmail.com NCS Labour Relations & Training Consultants Unit 8 Aida Court, Windsor Park, 16th Avenue, Famona, P.O. Box 215, BULAWAYO.

You can ask NCS Labour Consultants a question using the contact form on the home page of our website.

Alternatively, head to our Facebook / Twitter account and send us a message directly. Better yet, you can ask your question using the form on this newsletter We will treat all issues and your identity with due confidence.

Let’s go...

send message

June 2017. LABOUR FORUM.

Page 12

THE PULSE

Your Story Matters ...

At NCS Labour Relations and Training Consultants, clients are our number one priority. We are proud to work with some of Zimbabwe’s best known brands. Have a look at some of the organisations we work with and hear what they have to say about our services.

M

ary Ellen is a row crop farm. We have 365 ha under pivot irrigation.

We grow maize, seed maize and soya beans in the summer and wheat in the winter.

Because of ongoing development and the approx 100ha of seed maize that we grow annually we have a labour force of up to 240 at peak periods.

Labour requirements fluctuate depending

“Labour regulations are short sighted and actually don’t encourage employers to employ.” on the time of year. This means that the bulk of our labour is either seasonal or fixed term contract employees. This creates a problem in the amount of records that have to be kept and monitored regularly to see who contract is expiring and who needs to have a new contract. Mistakes and oversights are inevitable.

Labour regulations are not employer friendly. They have been crafted by employees (Gvt employees who are protecting their own jobs) for employees though in many case they are short sighted and actually don’t encourage employers to employ.

The regulations are complex and sometimes ambiguous and open to misinterpretation, especially by labour unions.

Many employers find reading, understanding and implementing the regs onerous, time consuming and stressful. As a result many employees are employed in a misguided fashion without a clear understanding of what the employer and employee are entitled to.

Employers tend to let sleeping dogs lie until the time that the relationship turns sour. That is when the problems start.

Most employers find dealing with (sometimes militant) labour union officials stressful.

Especially when the employer has unwittingly broken the law in terms of the labour act.

It is at times like this that one needs to turn to the expert. The people who are well versed in the law and are used to resolving what is often a conflictual situation.

Enter NCS. I have been fortunate to have engaged the services of Gladys Mpemba on quite a few occasions to resolve labour matters. One case in particular involved the Ministry of labour (who gave an incorrect ruling that would have cost me a lot of money), Gladys took the matter to the Labour court and had the ruling overturned.

“...NCS overturned the ruling that would have cost me a lot of money...”

Labour today are very aware of their rights, and so are the Unions who either, are not fully conversant with labour law, or prepared to “push the boundaries” in order to settle on behalf of the employee thereby ensuring a generous portion of the settlement themselves.

I don’t believe any large employer of labour can do with out being able to call on the services of a labour consultant today.

The advice and help that I have had from NCS has been second to none and I consider myself fortunate to be able to call on their service.

Consultants like NCS aren’t cheap, but what price does one put on relieving the stressful nature of labour conflict?

Peter Evans, General Manager,

Mary

Ellen

farm

I enlisted the services of Gladys Mpemba and she represented me at the Labour Office and because of her skills, we were able to get a Certificate of Settlement and my issue was resolved.

Gladys knows her stuff and is very diplomatic in her approach to labour matters. I was very happy with her entire service and would use her again if need be.

Timothy Sameke - (ex ZBC Manager).

Thank you, Gladys! Your years of experience, your diplomacy and your wise advice are very much appreciated- Richard Peek (StoneHills Safaris) Thank you for the special consideration you have given to us which, like everything you have done over the years, will always be sincerely appreciatedAustin Sibanda- Senior Partner (Joel Pincus, Konson & Wolhutter Legal Practitioners) click here to see more

If you haven’t put it good word for us, please head to our webiste www.ncslabour.co.zw and share your testimonial with everyone. | It’ simple, once you land on our home page, scroll down to the bottom of the site and fill in the form there. We will share your testimonial on the Pulse page in our newssletter everymonth and also on our social media accounts.