What Is Labour Law? by N. Gawa

Transcription

1 Dr. L. Madhuku generally says law refers to rules/regulations which govern human conduct or other societal relations and is enforceable by the state. He emphasizes that it is the quality of enforceability by the state which distinguishes law from other rules such as morality, religion, etc. Law may be fair or unfair, just or unjust, effective or ineffective, acceptable or unacceptable law is law regardless of all these features as long as it is enforceable by the state. The central idea here is that law as it is (what the law is) is not the same with law as it ought to be (a concern for law reform). Simply put, labour law then can be regarded as those regulations enforceable by the state to govern employment relations. A distinction must be made between individual and collective labour law. Individual labour law focuses squarely on the relationship between the individual employee and the employer comprising aspects such as hours of work, leave, wage/salary, conditions of employment, etc whereas collective labour law embodies the relationship between a group of employees and the employer or a group of employers through to trade unions, collective bargaining and the right to strike. The critical and relevant point of departure is to ascertain which rules the state enforces in labour and employment relations. For any rule to be enforceable by the state it must be drawn from a recognized source of labour law. For a rule to be a rule of law, it must originate from a recognized source of labour law namely: legislation and its subdivisions, i.e. the Constitution, principal and subordinate/subsidiary legislation (inclusive collective bargaining agreements in the case of labour), international treaties and conventions; common law (inclusive of the contract of employment in the case of labour)/judicial precedents; customs and trade usage and authoritative texts/legal writings. Legislation/Statute 1 / 7

2 Simply put, this refers to those enacted by the legislative authority of Zimbabwe, made up of the Parliament and President. The laws passed by Parliament are fashioned, Acts of Parliament. Generally, they are coded statutory law. Parliament may delegate the law making powers conferred upon it to Ministers or the President. The laws they so make are styled, Statutory Instruments. Nevertheless, there is a supreme law to all these, which is the Constitution of Zimbabwe which takes precedence, overriding the other laws once there is inconsistency with its provisions rendering the subject of inconsistency null and void and that law is said to be ultra vires. Statutes such as the Labour Act, must comply with the Constitution while Statutory Instruments, must comply with both the Constitution and the Principal legislation/parent Act whereas, a Statutory Instrument contrary to the Labour Act; for instance, is null and void. However, the current Lancaster House Constitution has very few provisions that are relevant to labour law, save for section 21 which subtly deals with the Freedom of Association. There are several statutory instruments which are made under the Labour Act. Common Law This is law made by Judges in the course of determining a matter in a court of law. A determination in a case transcends to a source of law in a future case. This becomes judicial precedence, a main element of common law. Be that as it may, not every decision makes a source of law but, only those made by superior court, which binds all the other lower courts. What then is taken from a determination for the purpose of binding future cases is the principle of law upon which such decision is made. In a judgment there may be other statements of law which may not be relevant for a decision (obiter dicta), they are said in passing and are not binding in future cases. The Supreme Court binds all the lower courts whether or not their decisions are right. It is not bound by its own previous decisions although it normally would not follow them. 2 / 7

3 The basis upon which the Common Law is premised in Zimbabwe is the Roman Dutch Law, which in itself is a fusion of the Roman Law and the Dutch Customary Law which took place in Holland in the seventh century, later brought to South Africa by the Dutch in 1652 and was imported into Zimbabwe in Our Judges develop Common Law by applying the principles of the Roman Dutch Law. Authoritative Texts This refers to published legal opinions of authors in textbooks and such other related publications. The opinions are not binding but, are a source of law due to the persuasive value endowed in them. They become a source of persuasive authority where neither legislation nor common law is in point. Customs This does not have much direct relevance to labour law but, the customary practices at the workplace may be referred to in the interpretation of the contract of employment or a collective bargaining agreement. 3 / 7

4 Labour law refers to those rules which regulate the employment relationship and other aspects of the work-space which are enforceable by the state. However, it is acceptable that one or more sources of law are applied harmoniously. There are also situations where sources of law disagree, the Constitution and/or the Labour Act (Chapter 28:01) takes precedence over any other source inconsistent with it, section 2A (3) of the Labour Act stipulates: This Act shall prevail over any other enactment inconsistent with it. Where a labour dispute arises, concerned parties ought to consult the contract of employment to check whether or not the dispute falls within the ambit of the contract of employment. Further, the parties need to establish whether or not there are statutory requirements which vary or nullify the contract of employment based on the legislative provisions of the relevant subordinate legislation, i.e. registered collective bargaining agreements (CBA). The CBA, however, prevails over the contract of employment and common law where there is variance. Common law then plays second fiddle to the legislative provisions there are. Still more, section 17 of the Labour Act stipulates: 17 Regulatory powers of Minister 4 / 7

5 (1) Subject to this Act, the Minister, after consultation with the appropriate advisory council, if any, appointed in terms of section nineteen, may make regulations providing for the development, improvement, protection, regulation and control of employment and conditions of employment. (2) Where the Minister has made regulations in terms of subsection (1), every contract, agreement, arrangement of any kind whatsoever, determination or regulation made in terms of any enactment which related to the employment of an employee to whom such regulations relate and which provides terms or conditions less favourable to the employee than those specified in the regulations, shall be construed with such modifications, qualifications, adaptations and exceptions as may be necessary to bring it into conformity with such regulations. Section 17 confers the Minister with power and authority to prevail over any inconsistency emanating from the various opinions as provided by various other enactments other than the Labour Act. [1] 5 / 7

6 Labour law is part of the law. It refers to those rules which regulate the employment relationship and other aspects of work and are enforceable by the state. This therefore makes labour law different from the concept of labour relations. The latter is a broad term covering the relationship existing among key players in the field of employment, i.e. trade unions and employer organizations, government, etc. Some aspects of labour relations are governed by labour and employment law whereas others are not so governed. Labour law is therefore merely a component of labour relations. In Zimbabwe s legal system, labour law is regarded as part of a specialized system of law. This arises from specialized treatment in the Labour Act where a separate court structure is created for labour disputes; this led to the creation of the Labour Court. However, apart from this specialized court structure, other aspects of labour law are dealt with like any other aspects of law. Legal system refers to the sum total of law in respect of how it is made, how it is enforced and the institutions involved. The importance of labour law is that it establishes a floor of rights for both the employees and the employers going as far as possible balancing this floor of rights with political and civil liberties as provided in other branches which it works hand-in-hand with. Labour law also regulates the existence and operations of representative organizations and individual players. Labour and employment also props up desired socio-economic philosophies there are, should the state be an active participant in the labour market. Given that usually, labour capital interface is a caricature of two contrasting opposites, indicative of an inequality of balance of power (bargaining power), labour law provides a countervailing force to avoid excessive exploitation and arbitrary application of force on any party involved in an employment 6 / 7

7 relationship or during collective bargaining. Basically, it strives to guarantee undisturbed flow of work and institutionalizing the dispute resolution mechanisms. In Zimbabwe, the efforts of Dr. L. Madhuku, Mr Gwisai, Mr. R. Matsikidze, Mr. J. L. Mawire among others, have collectively and individually helped to coin labour law in the context in which it is applied, in terms of practice and analysis. *The authors are Mr. N. Gawa founder and Director of Real Labour Solutions (Pvt) Ltd (a Labour Relations Consultancy) he can be contacted at and Mr. S. Gabriel an Assistant Consultant at Real Labour Solutions he can be contacted at [1] Masasi v PTC 1991 (2) ZLR 403 (H) & Gumbo v Norton Selous Rural Council 1992 (2) ZLR 403 (S) 7 / 7