FAIR LABOUR STANDARDS ELEVATED TO CONSTITUTIONAL RIGHTS: A NEW APPROACH IN ZIMBABWEAN LABOUR MATTERS.
Labour rights, like any other socio-economic rights, have been statutory rights since the enactment of the Labour Relations Act of 1985. The Constitution of Zimbabwe 2013 brought in another dimension that incorporates the second and third generation rights into the Bill of Rights. This paper seeks to argue that s 65 (1) of the Constitution of Zimbabwe introduces a new approach in determination of labour matters as it entitles direct access to the Constitutional Court through which alleged violations of labour standards may be addressed and, secondly, fairness is the central factor in determination of alleged violations and practices. This paper concludes by arguing that the Supreme Court decision in the case of Nyamande & Another v Zuva Petroleum (Pvt) Ltd2 (the Zuva case), among others, is incorrect as it exalts common law over clear constitutional rights. It further concludes that the Supreme Court leapt to the protection of the employer when that protection could still have been attained without the court entangling itself in judicial activism.
The meaning of section 65(1) of the Constitution of Zimbabwe
Section 65(1) of the Constitution of Zimbabwe provides as follows:
“Every person has the right to fair and safe labour practices and standards and to be paid a fair and reasonable wage”.
This section is basically three in one. The section may be expanded as follows:
a. right to fair labour practices and standards, b. right to safe practices and standards,
c. right to be paid a fair and reasonable wage.
This paper will focus on part (a): the right to fair labour practices and standards. What is clear and apparent is that the right does not define fair labour practices and standards. The right is pluralistic in nature; it appears one right yet is a convolution of rights. The concept of fair labour practice is alien to common law but is an invention of the International Labour Organization (ILO).3 There are a number of ILO Conventions that set out various labour standards and minimum practices that are acceptable under the ILO family.4 International labour standards are legal instruments drawn up by the ILO’s constituents, setting out basic principles and rights at work.5 The international labour standards are therefore either conventions, which are legally binding international treaties that may be ratified by member states, or recommendations that are non-binding agreements.6 What is apparent from this definition is that standards are a creation of ILO.7 Hence the referral to standards under municipal law should derive its definition from the ILO definitions.
1 Rodgers Matsikidze teaches civil procedure and labour law at the University of Zimbabwe and is the Director of Legal Aid Clinic and Attachment Office. He is the Managing Partner at Matsikidze and Mucheche Legal Practitioners in Zimbabwe. He is the author of ADR in Zimbabwe and holds several positions on various boards in the private and public sectors.
2 Nyamande and Another v Zuva Petroleum (Pvt) Ltd SC -43-15