Labour Amendment Act

UNPACKING THE 2023 AMENDMENTS TO THE LABOUR ACT IN
ZIMBABWE1
A publication of the Litigation, Banking & Financial Services Law Practice Group in the firm
Mushoriwa Pasi Corporate Attorneys
BACKGROUND
 Amendments to the Act were introduced through the Labour Amendment Bill, 2021
which went through various law-making processes where lots of proposed changes were
debated and fine-tuned resulting in the Labour Amendment Act No 11 of 2023 recently
assented to by the President.
 The Bill proclaimed the rationale for the amendments as being to align the Labour Act
with section 65 of the Constitution of Zimbabwe and the International Labour
Organisation (ILO) Conventions ratified by Zimbabwe.
 In order to align with section 65 of the Constitution, the Bill endeavoured to expound on
the rights to fair and safe labour practices and standards. It was also said that the Bill
sought to promote ease of doing business principles through streamlining and promoting
timely conclusion of processes, particularly the labour dispute settlement and
retrenchment processes. A further concern in the Bill was also to take care of emerging
issues in the world of work such as labour broking, violence and harassment at the work
place and emerging forms of employment relationships with a view to closing the lacuna
in the existing legislation thus entrenching fair labour standards contemplated in section
65 of the Constitution.
 The Bill was said to be a product of extensive consultations among representatives of

Government, Business and Labour within the auspices of the Tripartite Negotiating
1
Disclaimer: The information and opinions in this publication are provided for general information only, and are not intended to,
and do not constitute a substitute for legal or other professional advice. For specific advice, please contact your usual attorney or
our Litigation, Banking & Financial Services practice group, through Beatrice Moyo on beatrice@mushoriwapasi.co.zw © 2020.
All rights reserved. No part of the publication may be reproduced, stored in any electronic or digital retrieval system or transmitted
in any form or by any means without the prior permission in writing of Mushoriwa Pasi Corporate Attorneys or as expressly
permitted by law. Mushoriwa Pasi Corporate Attorneys is a top commercial law firm in Zimbabwe which provides quality legal
services within the jurisdiction and beyond and has offices at 37 Lawson Avenue, Corner Bates Street, Milton Park, Harare,
Zimbabwe. Contact numbers are +263 242 793322(3)
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Ronald Farai Mushoriwa LLB. (Hons), LLM (Oil, Gas & Mining Law); Mwanatsa Masona LLB. (Hons);
Itai Valerie Pasi B.Bus.Sci (Hons), LLB., MBA (Managing); Farai Chinyama LLB. (Hons);
Beatrice Moyo LLB. (Hons), LLM (Commercial Law Munashe Simango LLB. (Hons);
Forum (TNF). It therefore claimed to represent convergence of competing interests
among the tripartite constituents.
THE CHANGES
A number of clauses in the Act were reviewed on a variety of aspects of employment law as
follows
1. Workplace violence and harassment
 Previously the Act dealt with sexual harassment in s 8 (g) and (h) which were
introduced by an amendment to the Act in 2002. The two-section cover both the
‘quid pro quo’ sexual harassment ‘something for something’ and hostile
environment sexual harassment. The duty not to commit sexual harassment was
primarily directed at the employer as the duty bearer pursuant to which he could
be vicariously liable for the acts or omissions of sexual harassment by his
employees, especially managers.
 The quid pro quo harassment would occur where an employer, manager or other
relevant person would demand sexual favours from an employee or prospective
employee as a condition of any matter related to employment including
recruitment, creation, classification or abolition of jobs or posts, remuneration or
other conditions of employment, choice of persons for jobs, training, advancement,
transfer, promotion or retrenchment or the provision of facilities related to or
connected to employment.
 The second aspect of sexual harassment was that related to environmental sexual
harassment where an employer or its agent engages in unwelcome sexually-
determined behaviour towards any employee, whether verbal or otherwise, such
as making physical contact or advances, sexually coloured remarks, or displaying
pornographic materials in the workplace. Sexual harassment was not defined.
 These provisions are maintained in the Act and have not been repealed. In fact
they are now supplemented by the insertion of a new paragraph (i) under section
8 which deals with unfair labour practices by the employer and it prescribes as an
unfair labour practice any employer who engages in any of the actions prohibited
in a new provision inserted under section 6 as subsections (3), (4) and (5).
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 Section 6 of the Act generally deals with protection of employees’ rights to fair
labour standards such as right to a fair wage, fair working hours and conditions
as may be prescribed by agreement or the law and access to lawful proceedings for
protection of their rights. There has been added new subsections thereunder
dealing with workplace violence and harassment and places it along other
employee rights to fair labour standards. This is in alignment with the right to
“safe labour practices” under the Constitution. Workplaces in which violence and
harassment occur obviously infringe that right.
 new ss (3) is inserted which prohibits workplace violence and harassment and
makes it unlawful for any person to act whether directly or indirectly in a manner
that amounts to violence and harassment towards another person at the
workplace including any of the listed actions. Of importance is that the provision
covers employee to employee conduct as much as it does employer to employee
conduct, neither does it limit it towards fellow employees but any other person at
the workplace which may be a customer/client or visitor or stakeholder. Consider
the SAT v Maxmillan Mugabe case.
 Violence and harassment have been defined through a definition inserted by the
Amendment Act under section 2 to mean a range of unacceptable behaviors and
practices or threats whether once off or repeated that will likely result in physical,
psychological, sexual or economic harm. Violence and harassment as well as
sexual harassment in particular constitute what is known as ‘gender-based
violence and harassment’ defined in through another definition inserted under
section 2 by the Amendment Act to mean violence and harassment directed at
persons because of their sex or gender or affecting persons of a particular sex or
gender disproportionately, and includes sexual harassment.
 The new provision also extends the territory of work place and does not limit it to
the usual place of business or business premises. It includes harassment in public
and private spaces related to or associated with one’s employment with a
particular employer. It includes
 in places where the worker is paid, takes a rest break or a meal, or uses
sanitary, washing and changing facilities;
 during work-related trips, travel, training, events or workplace organized
social activities;
 through work-related communications, including those enabled by
information and communication technologies;
 in employer-provided accommodation; and
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 when commuting to and from work.
o Ss (4) which is added by the Amendment Act makes it a criminal offence to

contravene these provisions punishable by up to level 12 fine or 10 years
imprisonment or both such fine and imprisonment. On the other hand, ss (5)
prescribes such conduct as very serious misconduct punishable by dismissal
notwithstanding anything to the contrary in any employment code or conditions
of service for the perpetrator and regardless that the perpetrator may or may not
have been prosecuted for the conduct.
o The provisions introduced are consistent with legal developments elsewhere of

mainstreaming gender-based violence by making it a fair labour standard for the
workplace and contraventions thereof an unfair labour practice punishable by
both criminal and civil sanctions against the perpetrator. It has nonetheless been
criticized for falling short of imposing a duty on employers to stop workplace
violence or harassment enforceable by criminal sanctions. Suffice though that the
employer is not entirely free of civil duty towards victims if they do fail to stop or
redress workplace violence or harassment as they may have vicariously liability
in delict for wrongs committed or omissions by their employees in the course and
scope of their employment.
2. Forced Labour
 Section 4A of the Labour Act prohibits forced labour, but lists several exceptions,
i.e. types of compulsory labour or work that do not fall within the
prohibition. Clause 3 of the Amendment Act repeals subsections (2) and (3)
thereof and substitutes same with a provision that reenacts most of the same
exceptions in respect of types of compulsory labour or work that do not fall within
the prohibition with a few changes. The reenacted provisions are more elaborate
and notably they exclude labour required by way or parental discipline and adds
a further exception, taken from the ILO Forced Labour Convention 1930 (No. 29),
which will allow people to perform “minor communal services” which are
considered to be “normal civic obligations incumbent upon members of the
community”.
 The substituted ss (3) merely increases the penalty for making someone perform
forced labour to a fine of up to level 12 or 10 years’ imprisonment or both.
 The review of the provision seems to have been motivated largely by alignment
with ILO convention. The criticism against the amendments to the provision have
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been that the penalty seems excessive and the wording in the ILO convention with
respect to the added exception seems vague as to what minor communal services
are or what is normal civic obligations.
3. Equal Pay for Equal or Similar Work
 Section 5 of the Labour Act contains a provision obliging employers to pay male
and female employees equally for work of equal value. Clause 4 of the Amendment
Act replaces this with a new provision which is substantially the same save merely
in the way it is worded which is by way of positive rather than negative obligation,
and the emphasis it places on non-discrimination.
4. Child Labour
 Section 11 of the Labour Act mandates a fine of up to level 7 (currently Z$40 000)
or two years’ imprisonment for employing young persons (i.e. persons under the
age of 16). Clause 6 of the Amendment Act increases this to a fine of level 12 or
10 years’ imprisonment or both.
 This seems motivated by a desire to reflect protection of children from exploitative

labour practices in Sections 19 and 81 of the Constitution but the criticism is that
this seems excessive and unnecessary as illegal child labour will be mitigated more
by rigorous enforcement of the law rather than high penalties.
5. Termination on notice
 In clause 8 of the Amendment Act it repeals and substitutes subsection (4a) to

section 12 of the Labour Act. The repealed provision had been introduced by an
amendment to the Act in 2015 and it regulated the question of termination of
employment on notice. In broad terms it proscribed termination of employment on
notice unless it was in terms of one or more of the listed exceptions namely if it is
permitted by an employment code, if employer and employee mutually agree in
writing to termination of the contract, if the employee was engaged for a fixed
duration or performance of some specific service or if it is pursuant to
retrenchment.
 The substituted provision now says a contract of employment may be terminated

only on the part of an employee by his or her resignation or retirement, and on the
part of the employer by mutual agreement in writing or for breach of an express
or implied term of the contract after it has been verified by due inquiry under an
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applicable employment code or in any other manner agreed in advance by the
employer and employee in advance.
 The effect of this amendment is to effectively outlaw termination of employment

by notice in any circumstance which hitherto was permitted in prescribed
circumstances under the repealed subsection (4a). It allows an employee to
terminate employment by resignation or retirement and the employer can only do
so either if it is by mutual agreement or if the employee has breached an express
or implied term of the contract and has had a hearing for such breach. Put
differently it further restricts the methods of termination only to those listed and
renders nugatory provision of section 12 (4) as the employer cannot relate to it
because he cannot terminate on notice neither is the employee obliged to give
notice as prescribed if they decide to terminate the employment by resignation or
retirement. It however should not be read to mean that the employer cannot
dismiss an employee in terms of section 12B for reasons other than conduct or
omission inconsistent with the express or implied conditions of employment or
terminate the contract through retrenchment in terms of section 12C or for
incapacity where the employee has exhausted sick leave in terms of section 14 (4).
 What is however confusing is the effect of subsection (4b) which is not repealed
but was predicated on the old subsection (4a). It requires an employer to
compensate an employee in terms of section 12C where termination of employment
is by notice at the instance of the employer and in terms of section (4a). Arguably
the provision no longer applies and has been rendered redundant as it
inconceivable how it applies to where the employee is the one that has terminated
the employment by resignation or retirement which concepts have their own
treatment in terms of severance arrangements or how it applies where the
employer and employee mutually agree to termination in which event they
normally agree on a package or where the employer has terminated the contract
for breach after due inquiry which is equivalent to dismissal in terms of section
12B that does not entitle an employee to compensation in terms of section 12C.
 While review of section 12 (4a) was due because of its ambiguity and vagueness,
the substituted provision seems motivated more by the employees’ push for greater
job security and the avoidance of casualization of labour.
6. Retrenchment
 The Amendment Act repeals and substitutes in its entirety section 12C titled
‘Retrenchment and compensation for loss of employment on retrenchment’. The
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provision was a product of amendment Act no 5 of 2015 which overhauled the law
on retrenchment by introducing a more simplified retrenchment process that did
not require the approval by the retrenchment board it being required merely to
give notice of same and apply to it only where the employer could not pay the
minimum or agreed package immediately upon termination of employment in
terms thereof.
 The new section 12C builds on the 2015 amendment and seeks to enhance
protection of employees from unfair labour practice during retrenchment. It begins
by providing essential definitions of terms related to retrenchment such as
‘capacity to pay’; ‘employer’; retrench’. A glaring omission however which really is
a faux pas is the failure to define the term minimum package on which the whole
provision is structured as it is the basis for payment of retrenchment package
unless a better package is agreed.
 Suffice that the Act now 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. It
provides elaborate timeframes and process for timeous payment of the
retrenchment package to the employee which may be summarized as follows; -
o The procedure for retrenchment in 12C applies whether it be one or more

employees being retrenched.
o The employer may either begin by engaging the employee or employees
concerned or their representatives with a view either to negotiate and agree
on a retrenchment package or just offer them the minimum package which
in any case they may still offer failing agreement in negotiations for an
agreed package.
o Where the employees believe the employer has capacity to pay an enhanced
package than the minimum package if that is what has been offered, they
can approach the retrenchment board for determination of their allegation
to the effect and the provision stipulates a procedure for doing so. There is
confusing reference in ss (14), (15) and (16)to an employment council
determining the allegation suggesting that a claim for enhanced package
can be made to the employment council. The claim for an enhanced package
is to be made upon completion of the steps involved where a minimum
package has been offered which entail notifying the board and issuance of a
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notification certificate. The allegation that the employer can pay an
enhanced package must then be made in writing giving particulars of any
proof of the allegation and specifying the amount of the enhanced package
no later than 60 days from the date of issuance of a notification certificate.
Determination of the allegations is without prejudice to the payment of the
minimum package which will carry on regardless of the pending
determination of a claim for an enhanced package. In hearing an inquiry
into whether an employer can pay an enhanced package the board will call
on the employer to disclose its financial statements and require the
employer to respond by affidavit to any specific allegation concerning its
ability to pay an enhanced package. The power to subpoena the employer in
this regard is as that in judicial proceedings where its enforceable through
contempt proceedings. An appeal against the decision of the retrenchment
board or employment council with regard to an allegation of ability to pay
an enhanced package lies to the Labour Court.
o The package once agreed is payable no later than certain days which again
the provision does not stipulate, from the date when the retrenchment takes
effect unless the affected employees have agreed to a longer or shorter or
staggered period of payment of the package. If there has been a challenge
against the offered package which is determined by the board the package
falls due for payment with effect from notification of the board’s decision.
o Where the employer has negotiated with the employee/s concerned or their
representatives and agreed on a negotiated package, he will give 14 days’
written notice of intention to retrench
either to the works council for the undertaking concerned if there is

one or if there isn’t or should the majority of employees concerned so
agree, to the employment council relevant for the undertaking or
industry concerned, and
 to the retrenchment board
advising of the fact and particulars of any agreed retrenchment package
pursuant to which the Board will no later than 14 days from when it is
notified, issue to the employer a notification certificate to the effect that it
is satisfied that the agreed package is better than the minimum package.
o In the absence of an agreed retrenchment package notice of intention to
retrench is given to the employee or employees concerned and to the works
council or the employment council as the case may be and the retrenchment
board providing with details of every employee whom the employer wishes
to retrench and the reasons thereof. Again, the retrenchment board will no
later than 14 days from when the employer has notified the board issue the
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employer with a notification certificate to the effect that the minimum
package is being paid.
o If after notice of intention to retrench has been given and parties eventually
agree on a retrenchment package better than the minimum, payments
required to be made thereof will be made in terms of such agreement and a
signed copy of the agreement will be sent to the retrenchment board no later
than the end of the 14 days’ notice period so prescribed or seven days
thereafter.
o Where the employer fails to comply with the section by giving notice to the
board pursuant to a retrenchment, the full amount of monies and other
benefits pursuant to the agreed retrenchment package or minimum
retrenchment package as the case may be will become due on the 21 st day
after the employee/s concerned or any of them are first retrenched and they
can proceed to enforce as per the available procedure thereof.
o Where the retrenchment board issues a notification certificate it is required
to post a copy of it on an actual or virtual board of the retrenchment board
for a period of not less than 7 days
o If it is alleged by employees of their representatives that an agreed or
minimum package as the case may be has not been paid within the times
agreed or failing such agreement as required by law, such employees are
required to approach the Retrenchment board and satisfy it after it has
given the employer an opportunity to respond, of the fact that it has not
been paid despite it being due whereupon it will issue a non-compliance
certificate clearly setting forth the extent of non-compliance.
o The provision then goes on to set out an enforcement procedure that follows
issuance of a notification certificate by the retrenchment board where the
package has not been paid in accordance with its terms. The procedure
involves an application being made to the Labour Court enforcing the
package on the basis of a non-compliance certificate given by the
Retrenchment Board which document is treated as a liquid document and
determined by default judgement proceedings as they are commonly
understood in the civil courts. Once an order is secured a copy of it can be
submitted for registration to either the High Court or a magistrates court
with jurisdiction in the matter and once registered it will have effect for
enforcement purposes of a civil judgement of the appropriate court.
 Where an employer alleges lack of capacity to pay the minimum retrenchment

package there is a procedure by which they can seek relief from the requirement
to pay in accordance with the prescribed timeframes if they make application to
the retrenchment board within fourteen days of the retrenchment. They will be
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required to pay at least 25% of the amount and the board may after conducting a
hearing into the application determine how the employer shall be required to pay
in such circumstances. Such determination must be made within 30 days of receipt
of the application upon expiry of which an aggrieved party may appeal to the
Labour Court the same way as one who is aggrieved a the determination of the
Board on the matter.
 An employer who purports to retrench employees without giving notice to the

board in terms of the section is criminally liable for payment of a level 12 fine or
imprisonment if they fail to pay the fine within six months.
 Unlike the previous 12C which was unclear regarding its application to employees
on fixed terms contracts, the new 12C provides that an employer who employs the
majority of his or her employees on fixed term contracts must utilize retrenchment
provisions when the contracts are terminated.
 The Act is an attempt at stopping employers who deliberately escape the

obligation to pay full and better retrenchment packages to their employees.
 There is a new provision inserted as section 12CC dealing with non-payment of

retrenchment package due to fraudulent, reckless or grossly negligent conduct by
employer. The provision makes directors, owners and/or other persons who must
be named who were knowingly parties to the carrying on of business personally
liable if it is established in an inquiry in terms of section 12C (9) and (10) (which
deals with where an employer alleges lack of capacity to pay a retrenchment
package either in part or in full thereof) that the employer deliberately stripped
assets of the business or otherwise degraded it in contemplation of retrenchment
or that the business was being carried on recklessly or with gross negligence or
with intent to defraud or for a fraudulent purpose.
 An allegation to the effect would have been made in the course of such proceedings
and the Retrenchment Board or employment council as the case may after giving
opportunity to the employer to respond to such allegation, issue a provisional
statement to the effect setting forth its grounds for believing the business of the
employer was being carried out in the manner prescribed. The statement will be
served to both the employer and employee or employee representative. The
employee or employee representative concerned may act on such statement to
make application to the Labour Court for confirmation of the provisional
statement and seeking a declaration that persons concerned by held personally
responsible without limitation of liability either jointly or severally as the court
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may direct. The court may give consequential relief as it considers proper for
enforcing the liability including an order that a minimum retrenchment package
to every retrenched employee whether or not they are party to the application be
paid by the employer or any named persons. The order may be enforced as with
any order from the Labour Court through registration with the magistrates court
or High Court as the case may be having jurisdiction in the matter.
 The provision introduces a new basis for piercing the classical concept of corporate
personality in the protection of employees where businesses go bankrupt and
liquidate. It imposes on directors or other persons running the business a duty of
care to ensure the interests of retrenched employees are protected.
7. Maternity Leave
 The existing position with regards to maternity leave in terms of Section 18 of the
Labour Act had been that women employees have a right to be granted at least 98
days’ paid maternity leave, but limits the right to women who have been employed
for at least a year; the section also stated that women have a right to only three
periods of paid maternity leave while employed by any one employer. Neither of
these two limits or qualifications was consistent with section 65(7) of the
Constitution, which provides that women employees have a right to at least three
months’ fully paid maternity leave without qualification.
 Clause 11 of the Amendment Act has amended section 18 by removing the two
limits or qualifications. The clause has not altered section 18(8) of the Act, which
requires nursing mothers to be given at least two half-hour breaks a day to nurse
their children. This is as close as the Act gets to providing for the family care
mentioned in section 24 of the Constitution. The debate has been whether
Zimbabwe should join the trend in an increasing number of countries where the
law grants paternity leave to fathers in order to assist mothers care for their
newborn children though neither the Constitution nor the ILO mandate paternity
leave.
8. Labour Broking
 The Amendment Act inserts a new provision as section 18A dealing with the
increasing phenomenon of labor broking where persons are engaged on contracts
for hourly work and are paid only for the hours they have worked. The concerns
were the effect it may have on casualization of labour and it seeks to redress this
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by trying to ensure that there is equality in the workplace and that employees
engaged through a labour broker have the same benefits as other employees.
 The provision prohibits employers who engage employees on terms where they are
paid only for hours that such employee actually works on terms that amount to
restraint of trade baring them from doing work for themselves or for other persons
when they aren’t working for such employer, or if the effect of such contract will
result in the employee concerned earning less than the minimum remuneration or
fixed wage for the undertaking or industry for the grade and type of occupation
concerned in which case the employee can claim the difference, or if such contracts
are prohibited by an applicable CBA.
 Chances are that most employment councils will move to ban such contracts to
avoid casualization of labour.
9. Collective Labour Law
 There is a raft of changes on provisions governing collective labour.
 Clause 13 of the Amendment Act repeals and substitutes ss (2), (3) and (4) of
section 25 with a new ss (2) that makes Ministers responsible for a parastatal or
statutory corporation or state-owned entity party on equal footing with the
employer to negotiation of CBAs negotiated by a workers committee involving an
employer of that nature.
 Clause 14 inserts paid educational leave among matters concerning which a works
council should be consulted under s 25A of the Act.
 Clause 15 amends s 28 (2) of the Act by removing the powers of the Minister in
setting a maximum amount which may be raised in respect of membership fees by
a trade union before it is registered.
 Clause 16 amends s 33 dealing with applications for registration of trade unions,

in ss (2) by deletion of the requirement for persons who wish to make
representations concerning the registration of a trade union to state in
representations they lodge with the Registrar of they wish to appeal in support of
their representations at accreditation proceedings, and by insertion of a ss (4) that
obliges the Registrar to act in respect of an application received within 60 days
failing which one has an administrative right remedy to seek a mandamus in an
administrative court
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 Clause 17 amends s 34 of the Act dealing with requirements of an application for
registration of a trade union by insertion of two additional requirements which are
to state whether the trade union or employers organization has a head office at a
physical address and proof in the form of minutes and an attendance register
signed by participants thereof at a meeting of the leadership of the union or
employers organization.
 Clause 18 inserts a new provision imposing a duty on trade unions to provide

certain information to the Registrar thus enhancing the regulatory function of the
Registrar in relation to operations of a trade union.
 Clause 19 repeals and substitutes s 45 dealing with considerations relating to the

registration or variation, suspension or rescission of registration of trade unions
and employers organizations.
 Clause 20 amends s 51 by repeal and substitution of ss (1) with a provision that

removes the power of the Minister to cause supervision of elections of officers of a
trade union or employers organization and replacing it with one that only calls for
his involvement where there is a complaint of fraud, coercion or unfairness. It also
alters the role of the Minister in ss (2) by making him get involved only after
inquiry by the Registrar and on Registrar’s advice.
 Clause 21 amends s 54 by removing the powers of the Minister to interfere with

the collection of union dues. The same applies with clause 22 that repeals s 55
which gave powers to the Minister to regulate union fees.
 Clause 23 repeals and substitutes s 56 by a provision that seeks to ensure that all
employment councils are governed as statutory employment councils. It provides
for elaborate regulation of the voting arrangements of employment councils other
than statutory councils and remedies in the event of a dispute over the allocation
of votes between a trade union and employers organization. The emphasis is on
achieving parity of votes as between employer members and employee members.
 Clause 24 amends s 58 providing for what constitutions of employment councils

should provide for by adding a paragraph obliging it to make provision for
admission of new parties to the employment council.
 Clause 25 amends s 63 dealing with the appointment and jurisdiction of

designated agents to redress disputes or unfair labour practices arising within the
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purview of an industry or undertaking covered by an employment council. It
repeals and substitutes ss (3b) which provides for the exclusivity of the jurisdiction
of designated agents in matters falling within their authority by making it subject
to a condition that they must dispose of a matter within 30 days upon expiry of
which a labour officer may assume jurisdiction over the matter and exercise the
same powers which a DA would have exercised in relation to the matter. It further
adds another ss (3c) providing for the redress of complaints against a DA by either
an interested party or a labour officer which may result in the withdrawal of his
appointment on sufficient evidence of failure to exercise his mandate effectively or
to comply with the Act. If the complaint is that the DA is being unduly dilatory
the Registrar may direct that the employment council concerned to allocate it to a
different DA or refer it to a labour officer.
 Clause 26 amends s 74 dealing with the scope of a CBA by insertion in ss (3) of a

paragraph dealing with the negotiation of conditions for paid educational leave at
employment council among matters which a CBA may make provision for and in
ss (7) of a provision making a Minister responsible for a statutory corporation,
parastatal or entity which is an employer affected by a CBA being negotiated party
to such negotiations on equal footing with such employer.
 Clause 27 amends s 79 which deals with the submission of CBAs for approval or
registration by its repeal and substation thereof with a new provision that obliges
the Minister to specify reasons for directing the Registrar not to register a CBA
until it has been suitably amended. Previously the Minister could just refused
without stating reasons.
 Clause 28 amends s 81 that deals with the amendment of registered CBAs by the
Minister by the repeal and substitution of ss (1) thereof with a new provision that
make the only ground for a Minister to direct parties to negotiate a new CBA to
when it has become inconsistent with the Act or any other enactment.
 Clause 29 amends s 82 dealing with the binding nature of registered CBAs by the
insertion of a preliminary provision before ss (1) which entitles every employer,
employee, employers organization, trade union or federation thereof to engage in
collective bargaining by having opportunity whether directly or indirectly to
obtain representation in an employment council and that it shall not be a lawful
excuse for those who did not avail themselves of the opportunity to fail to abide by
or claim not to be bound by a CBA freely negotiated for their industry.
10. Dispute Resolution

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 Clause 30 of the Amendment Act repeals s 93 as it was amended in 2015 by
restoring the position previously obtaining prior to Act no 5 of 2015 where labour
officers merely conciliate a dispute that has been referred to them in terms of that
section and failing settlement referral of the dispute to compulsory arbitration in
terms of s 98 of the Act. This is a welcome provision as it simplifies dispute
resolution mechanisms and avoids the complicated role of labour officers some of
whom were inexperienced determining labour disputes and what role they could
exercise in relation to the dispute. It strengthens their conciliatory function
without fear of being conflicted in prejudging a dispute.
11. Employment Codes of Conduct
 Clause 31 amends section 101 in certain material respects.
 The first amendment is minor and it merely inserts in ss (1) a requirement to pay
a prescribed fee for registration of an employment code.
 The second amendment is in ss (5) which deals with the limitation of jurisdiction
of Labour Officers in respect of matters governed by an employment code and
enacts an appeal procedure to a labour officer within 30 days of conclusion of
proceedings in terms of an employment code whereupon such labour officer will
deal with the matter in terms of s 93. This effectively overrules Supreme Court
decisions and some employment codes that vested a direct right of appeal to the
Labour Court against decisions made in terms of employment codes. One must
now go through an appeal to a labour officer notwithstanding what the
employment code may say.
 The next amendment is by insertion of new subsections (11) and (12) which impose
a requirement to review an employment code every five years in which case the
provisions of the section will apply to the registration of the reviewed employment
code, and failing such review the employment code will be automatically deemed
deregistered. It is therefore important for employers and employment councils to
ensure that their codes a reviewed to avoid them lapsing in which event if they
use a lapsed code it will vitiate the entire proceedings.
12. Collective job action
 Clause 32 amends s 109 relating to liability of persons engaged in unlawful

collective job action by repeal and substitution of ss (1) and (2). The change in the
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Partners Associates
amendment is simply the alteration of criminal sanctions by differentiating
between a collective job action in respect of an essential service where the period
for imprisonment is up to 5 years while those not in the essential service is up to
one year. The amendment also does away with the reference to POSA in the test
applicable in determining whether the person whose conduct is in issue realized
that there was a real risk or possibility that their conduct may bring about the
collective job action in question.
 Clause 33 repeals s 111 that provided for the cessation of collective job action in
certain circumstances that render the collective job action untenable such as when
underlying cause is removed. The amendment is confusing as it was unnecessary.
 Clause 34 amends s 112 by the repeal and substitution thereof with a provision
that again differentiates between action relating to an essential service where the
fine has been raised to level 14 and period of imprisonment to 5 years while the
fine for non-essential service is equally raised to level 14 but the period of
imprisonment remains at one year
13. Investigation of trade unions and employers’ organizations
 Clause 35 amends s 120 in two ways, the first being in ss (7) by the removal of the
Minister making an application to confirm the appointment of an administrator it
being sufficient merely to apply for appointment of an administrator, and the
second being in the same ss (7) para (b) by imposing a requirement that the
Minister be satisfied that there is a real risk or possibility that unless he makes
an appointment of a provisional administrator there may be adverse
consequences.
14. Miscellaneous
 Clause 36 deals with transitional provisions and provides in respect of matters

which labour officers were seized with and had made a draft ruling under s 93
which was not registered with the Labour Court. It automatically becomes a final
ruling subject to appeal to the Labour Court within 30 days of notice of registration
with an appropriate court for execution and if not appealed it can be registered
with an appropriate court for execution purposes. Where it directs payment of
money such quantum shall be due in the currency it was made but payable in
ZWL.
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Partners Associates
 This implies that the procedure for determination of matters by draft rulings
immediately ceases and any pending matters are to be disposed in accordance with
the new provision under the amended Act.
 There is a schedule of minor amendments in clause 37 which really deals with

cosmetic changes to the Act mainly in regard to wording .
CONCLUSION
It is clear therefore that the Amendment Act does help to align the Labour Act with the
Constitution. It also makes some major amendments most of them unconnected with
constitutional alignment but which are otherwise very important, mainly affecting termination
on notice, retrenchments, maternity leave, registration and regulation of trade unions and
employer organizations, powers of designated agents and the intervention by labour officers in
uncompleted proceedings under authority of designated agents, dispute resolution mechanisms
through labour officers under section 93, use of employment codes of conduct and collective job
action.
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Partners Associates

Labour Amendment Act

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Labour Amendment Act

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UNPACKING THE 2023 AMENDMENTS TO THE LABOUR ACT IN

 The Bill was said to be a product of extensive consultations among representatives of

1. Workplace violence and harassment

o Ss (4) which is added by the Amendment Act makes it a criminal offence to

o The provisions introduced are consistent with legal developments elsewhere of

3. Equal Pay for Equal or Similar Work

 This seems motivated by a desire to reflect protection of children from exploitative

 In clause 8 of the Amendment Act it repeals and substitutes subsection (4a) to

 The substituted provision now says a contract of employment may be terminated

 The effect of this amendment is to effectively outlaw termination of employment

o The procedure for retrenchment in 12C applies whether it be one or more

either to the works council for the undertaking concerned if there is

 Where an employer alleges lack of capacity to pay the minimum retrenchment

 An employer who purports to retrench employees without giving notice to the

 The Act is an attempt at stopping employers who deliberately escape the

 There is a new provision inserted as section 12CC dealing with non-payment of

9. Collective Labour Law

 There is a raft of changes on provisions governing collective labour.

 Clause 16 amends s 33 dealing with applications for registration of trade unions,

 Clause 18 inserts a new provision imposing a duty on trade unions to provide

 Clause 19 repeals and substitutes s 45 dealing with considerations relating to the

 Clause 20 amends s 51 by repeal and substitution of ss (1) with a provision that

 Clause 21 amends s 54 by removing the powers of the Minister to interfere with

 Clause 24 amends s 58 providing for what constitutions of employment councils

 Clause 25 amends s 63 dealing with the appointment and jurisdiction of

 Clause 26 amends s 74 dealing with the scope of a CBA by insertion in ss (3) of a

10. Dispute Resolution

11. Employment Codes of Conduct

 Clause 31 amends section 101 in certain material respects.

12. Collective job action

 Clause 32 amends s 109 relating to liability of persons engaged in unlawful

13. Investigation of trade unions and employers’ organizations

 Clause 36 deals with transitional provisions and provides in respect of matters

 There is a schedule of minor amendments in clause 37 which really deals with

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