Industrial And Labour Relations Act Cap 269 Of The Laws Of Zambia Pdf

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Jul 24, 2024, 9:11:41 PM7/24/24

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Zambia is a multi-party democracy that has been a beacon of peace and stability in Sub-Saharan Africa since its independence. Generally, those setting up businesses in Zambia are assured of a stable and conducive environment, virtually free of political risk.

industrial and labour relations act cap 269 of the laws of zambia pdf

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Employers have one year from 10 May 2019 to comply with the Employment Code. Any contracts of employment that are negotiated and executed after this date will have to be compliant with the provisions of the code. It is therefore crucial for persons intending to set up businesses in Zambia to seek expert legal advice in order to ensure compliance with the new law.

The Employment Code covers all categories of employee, but expressly excludes independent contractors. In order to qualify as an employment relationship, the code emphasises the need for employer control and for work to be carried out personally by the employee, for the benefit of the employer and within specific working hours. Additionally, the Zambian judicial system relies heavily on common law principles in drawing a distinction between employees and independent contractors.

In addition to statutory implied terms, a number of common law implied terms may also be implied into contracts of employment, depending on the nature of the contract. One such term is the implied term of mutual trust and confidence between the employer and employee (see Standard Chartered Bank Plc v Nair [Appeal 14/2019], unreported).

Mandatory arbitration/dispute resolution agreements in employment contracts are enforceable under the Arbitration Act 19/ 2000 (see Mbazima v TAZ [2015/HP/ARB/009, unreported]). The courts also encourage out-of-court settlement agreements in order to save parties costs and time, as held by the Supreme Court in Finance Bank v Simataa [SCJ 21 of 2017] (unreported).

A distinction is drawn between expatriate/foreign employees and citizens/local employees in terms of recruitment. When filling a vacancy, an employer must prioritise a citizen over an expatriate, unless the Zambian citizen does not possess the requisite skills for the job or a Zambian citizen has not applied for the job.

There are no requirements relating to advertising. In terms of recruitment, however, the law prohibits the employer from discriminating against prospective employees on several grounds including colour, nationality and health.

All employees, except temporary or casual employees, contracted to work for 12 months or more are entitled to annual paid leave calculated at a rate of two days per month or 24 days per year. Despite the leave days accruing from the first day of employment, leave can be taken only after 12 months of continuous employment.

The general rule is that restrictive covenants are unenforceable. However, they may be enforceable if they are reasonable and seek to protect a legitimate interest (see Patel v Patel (1985) ZMSC 22).

There are no rules under the labour laws for any specific class of employees. Generally, non-compete clauses will be enforceable only if they are reasonable and seek to protect trade secrets or connections that are genuinely threatened (see Patel v Patel (1985) ZM.)

A trade union must be registered with the Labour Commissioner and must possess a valid certificate of registration, in accordance with the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia.

Once an employer and a trade union have negotiated and agreed on a collective agreement (CA), the CA must be lodged with the Labour Commissioner within 14 days of signing. The Labour Commissioner must submit the CA to the Minister of Labour (MoL) for approval, within 14 days of the date of its receipt. The CA comes into force upon approval by the MoL and is then registered by the Labour Commissioner.

The employee must be accorded an opportunity to be heard and the rules of natural justice must be observed throughout the disciplinary process (See Vekhnik v Casa Dei Bambini Montessori Zambia Limited). Furthermore, the Employment Code prescribes specific instances/circumstances for summary dismissal and requires the employer to pay an employee who has been summarily dismissed wages and other accrued benefits up to the date of dismissal. The code also requires the employer to submit to a labour officer (within four days of the dismissal) a report of the circumstances/reasons leading to the dismissal.

The High Court has jurisdiction to hear industrial and labour complaints. The complaint may be filed either with the Industrial Relations Division or the Principal Registry of the High Court. Depending on the nature of the claim, the complaint may be lodged with the subordinate courts (See Zambia national Commercial Bank PLC v Musonda (2018) ZMCC 14, unreported).

A dispute will normally be instituted by a writ of summons and statement of claim at the Principal Registry of the High Court. Alternatively, it may be instituted by way of a notice of complaint accompanied by an affidavit in support in the Industrial Relations Division of the High Court, provided the notice of complaint is lodged within 90 days of the incident giving rise to the compliant. The 90-day period does not apply to cases lodged in the Principal Registry. In either case, matters will be determined within months or years depending on, among other things, the nature of the matter, the reliefs sought and the interests of the parties involved.

A party aggrieved by a decision of the Labour Commissioner may appeal to the Minister of Labour and Social Security (MoLSS) within 30 days of receipt of the decision. If dissatisfied with the decision of the MoLSS, such party may then appeal to the High Court. An appeal from the High Court lies with the Court of Appeal. Further appeals lie with the Supreme Court, but only in limited circumstances.

There is a proud mining culture in the country, where coppermining extends back generations in families, and many miners attend tradeschools to learn the mining craft. There is also a strong union tradition, withthe Mineworkers Union of Zambia (MUZ) and the National Union of Miners andAllied Workers (NUMAW) representing more than 50,000 miners throughout theindustry. Finally, there is a detailed and robust set of mining regulations,safety standards, and labor laws that, at least on paper, control every aspectof the industry and generally conform to International Labor Organizationstandards.

Since 2003, CNMC has opened three mining operations inZambia in addition to NFCA: Sino Metals Leach Zambia (Sino Metals), a copperprocessing plant; Chambishi Copper Smelter (CCS), a copper smelting plant; andChina Luanshya Mine (CLM), an underground and open-cast mining operation. Thefour employers currently provide around 6,000 jobs and are undertakingsubstantial expansion, with several thousand more jobs expected to be filled inthe next few years. Mine shafts have been upgraded with modern equipment, thesmelter is deemed state-of the-art, and computers have replaced pencils inplanning.

Miners at several Chinese-run companies told Human RightsWatch that they often risk their health working under demanding conditions forlengths of time that extend beyond what is permissible under Zambian law, orrisk being fired. Some reported spending virtually an entire week handling acidand inhaling noxious fumes and dust. Most miners at Sino Metals and CCSreportedly work 12-hour shifts, compared to the eight-hour shifts outlined inZambian law and standard in every other copper mining and processing operationin the country. Miners in certain departments at Sino Metals work 78-hour weekswithout sufficient overtime, while those in other departments work 365 days ayear, or have pay docked from already low salaries.

At its most extreme, a 2005 explosion at a Chinese-ownedexplosives manufacturing plant in Chambishi killed 46 Zambian workers; thefollowing year, riots in Chambishi over work conditions culminated in theshooting of at least five miners, allegedly by a Chinese manager.

However, on certain issues in recent years, the practices ofChinese-run copper mining companies have improved. Personal protectiveequipment is now provided to almost all employees working in these mines,though several Chinese-run copper mines continue to not promptly replace itwhen damaged. Physical abuse by Chinese supervisors appears to have decreasedsubstantially, and is now rare at NFCA and mostly obsolete at other Chinese-runcopper operations. Unions are now accepted as a permanent feature of theenterprise. These improvements show the Chinese companies can and do respond tothe local environments in which they operate, but it takes committed actionfrom the host government.

To improve adherence to safety regulations, Human RightsWatch also calls on the government to increase fines and other penalties thatthe MSD can impose, which currently provide no deterrent effect onmultinational corporations. The government should likewise consider criminalprosecutions against supervisors who force workers to work in unsafe areas thatthreaten health and safety.

For its part, the Chinese government through its control ofthe Non-Ferrous Metals Mining Corporation, as well as the companies themselves,should ensure their operations meet Zambian and international labor standards.This should include authorizing company safety officers to halt dangerousactivities and rewarding, rather than punishing, workers who act to promotesafety. Meeting international standards for health, safety, and the right toorganize is not only legally required for Chinese copper mining companies inZambia, it is good business for Chinese investment and enterprises throughoutAfrica.

Most of the copper miners were interviewed individually,though a few were interviewed in small groups based on their request.Interviews were conducted away from the mining sites in order to protect theworkers from reprisals by management. The interviews were conducted primarilyin English, though in a few cases were conducted in a local language andtranslated into English by an interpreter.