LABOUR RIGHTS UNDER ZIMBABWE’S NEW CONSTITUTION: THE RIGHT TO BE PAID A FAIR AND REASONABLE WAGE
BY MUNYARADZI GWISAI1, RODGERS MATSIKIDZE1 & CALEB MUCHECHE1
A fundamental change introduced under s 65 (1) of the new Constitution of Zimbabwe2 is the enshrinement of the right of employees to be paid a fair and reasonable wage. It reads:
65 Labour rights
(1) Every person has the right to fair and safe labour practices
and standards and to be paid a fair and reasonable wage.
This provision marks a milestone in the labour law regime of Zimbabwe.
It brings Zimbabwean law in closer conformity with relevant regional and international instruments.
Although the philosophical basis of the Labour Act3 is pluralist, with the Act providing that its “purpose is to advance social justice and democracy in the workplace,”4 the regime covering wages has been decidedly unitarist. Hitherto neither statutes nor common law had prescribed the quantum of wages payable to employees. This, despite perhaps one of the most rallying demands of labour in the last two decades being the demand for a Poverty Datum Line-linked living wage. This is understandable, when one considers that by 2011, nearly 93 per cent of formal sector employees were earning wages less than the Total Consumption Poverty Line (TCPL), the generally accepted measurement of poverty.5 Thus, for most workers, a living wage remains a mirage. They are mired in dire and debilitating poverty.
The demand for a living wage, not surprisingly, has found echo in popular musical hits such as Chinyemu by Leornard Dembo and Mugove by Leornard Zhakata. Indeed, for a nation largely turned Christian, a demand with Biblical foundations.6
The conflicts over a living wage, became particularly intense in the post-dollarisation era after March 2009. On the one hand, labour felt it deserved a dividend for the immense sacrifices it made in the preceding period of economic collapse and hyper-inflation running into billions, which virtually wiped out wages. Employers on the other hand argue for wage restraints to ensure sustainable economic recovery. Unreasonable wage increments will kill the goose that lays the golden eggs, they argue.
This conflict spilled into the courts where differing positions emerged. One line of cases, starting from the premises of the interests of the business, took the approach that increments above the prevailing inflation rate, were grossly unreasonable and against public policy as in the Tel-One (Pvt) Ltd v Communications & Allied Services Workers Union of Zimbabwe decision.7 The other line, started off from the premises of the workers’ right to a living wage, and rejected the approach that saw such increments as unreasonable per se, as in City of Harare v Harare Municipal Workers Union.8
The new Constitution radically changed the situation by, for the first time in Zimbabwean constitutional history, explicitly providing for the right to “a fair and reasonable wage.” In this essay we dissect the implications of this new constitutional right on the law of remuneration, in the context of international human rights and labour law and contrasting philosophical and jurisprudential worldviews.
1. Munyaradzi Gwisai lectures in Labour Law and Labour Relations, Faculty of Law, University of Zimbabwe, and Briggs Zano Working Peoples College. Rodgers Matsikidze, LLBS Hons (UZ), MPhil (UZ) is the Chairman of the Department of
Procedural Law, UZ, and a registered legal practitioner. Caleb Mucheche, LLBS Hons (UZ), LLM (UNISA), LLM (UNILUS), is former Dean, Faculty of Law, ZEGU and a registered legal practitioner.
2. Introduced by Constitution of Zimbabwe Amendment (No. 20) Act 2013 (1/ 2013).
3. [Chapter 28:01].
4. Section 2A (1) of the Act.
5. ZimStat 2011 Labour Force Survey (Zimstat, Harare, 2012) 53.
6. “Masters, give unto your servants that which is just and equal; knowing that you also have a Master in Heaven.” “Colossians 4 vs 1” in Holy Bible, King James version (Christian Art Publishers, 2012). Similar values are stated in “James 5 vs 4” in Holy Bible King (2012) “Behold, the hire of the labourers which have reaped down your fields, which is of you kept back by fraud crieth: and the cries of them which have reaped are entered into the ears of the Lord of Sabbath.”
7. 2007 (2) ZLR 262 (H); and Chamber of Mines v Associated Mineworkers Union of Zimbabwe LC/H/250/2012.
8. 2006 (1) ZLR 491 (H).