FAIR LABOUR STANDARDS ELEVATED TO CONSTITUTIONAL RIGHTS:  A NEW APPROACH IN ZIMBABWEAN LABOUR MATTERS.

Rodgers Matsikidze

Introduction

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.

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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