BILL WATCH 33/2015
[24th August 2015]
Labour Amendment Bill Fast-Tracked through Parliament
The Supreme Court Judgment of 17th July 2015
On 17th July the Supreme Court handed down its decision upholding an employer’s common law contractual right to terminate employment by three months’ notice, in the case of Don Nyamande and Kingstone Donga v Zuva Petroleum (Private) Limited. Since then there has been a massive lay-off of workers both from government, parastatals and in private companies, by giving them three months’ notice of termination of service. [The Supreme Court judgment is available from Veritas at the addresses given at the end of this bulletin]
Executive’s Response
The Labour Amendment Bill was gazetted on 14th August[Bill available from Veritas at the addresses given at the end of this bulletin]. Stakeholders from all sides – employers and unions have complained that they were not properly consulted.
Parliament Recalled
President Mugabe called Parliament back from its August recess to deal with the Bill. The National Assembly sat on 18th August and the Senate on 20th.
Proceedings in the National Assembly
Fast-tracking approved
The Minister of Public Service, Labour and Social Services, Hon Mupfumira, requested and was granted leave by the House to propose a motion that would permit the “fast-tracking” of the Bill through all it stage in one day by suspending the normally applicable Standing Orders laying down that:
· at least 14 days must elapse between a Bill’s gazetting and its introduction [S.O. 134];
· the Parliamentary Legal Committee has 26 “business days” after a Bill’s introduction within which to make its report on the Bill’s constitutionality [S.O. 32(5)];
· the relevant Portfolio Committee has 14 business days, excluding Fridays, within which to make its report on the Bill [S.O. 135(1)];
· the successive stages of a Bill must be taken through the House on separate days [S.O. 139];
· the House must adjourn no later than 7 pm [S.O. 51].
The motion was approved without debate or opposition.
The Bill was immediately introduced, given its First Reading – no more than a formal reading of its title – and then immediately referred to the Parliamentary Legal Committee [PLC]. The House took a twenty-minute break to await the PLC’s report.
Adverse PLC Report
The PLC gave the Bill an adverse report [available from Veritas at the addresses given at the end of this bulletin]. This meant that the House could not proceed to discuss the merits of the Bill until it had first considered the adverse report and decided whether or not to agree with it.
The Hon Fortune Chasi, chairperson of the PLC told the House that, by a 4-0 unanimous vote, the PLC had concluded that clause 18 of the Bill would, if enacted, provide for the retrospective application of termination procedures and benefits to every employee whose services were terminated on three months’ notice on or after the Supreme Court Judgment of 17th July. Hon Chasi explained that in the PLC’s view retrospective application by clause 18 to terminations that had already taken place would violate two constitutional provisions:
· section 3(2)(e) of the Constitution, which lists “observance of the principle of separation of powers” as one of the principles of good governance which bind the State and all institutions and agencies of government at every level [clause 18 would mean Parliament nullifying a judicial decision by the Judiciary in cases in which the decision had already been acted on];
· section 56 of the Constitution relating to the equal protection of the law, since clause 18 would be punitive on employers who had lawfully exercised the vested right granted to them by the Zuva Petroleum decision in the period between the decision and the gazetting of the Bill as an Act.
Vice-President Mnangagwa, who was present in the House, effectively put an end to the MPs discussion on the correctness or otherwise of the adverse report, with an emphatic pronouncement that the report contradicted itself and should be overturned.
The National Assembly followed this lead and Hon Chasi’s motion for the acceptance of the PLC report was rejected. This cleared the way for the Second Reading Stage.
Note: Once the Bill is gazetted as an Act, those believing the backdating provision to be inconsistent with the Constitution will be able to ask the Constitutional Court to invalidate the provision, despite the National Assembly’s rejection of the PLC’s adverse report..
Second Reading
The Minister of Public Service Labour and Social Services, explained the Bill’s purpose and outlined the contents.
The chairperson of the Portfolio Committee on Public Service, Labour and Social Welfare, Hon Chikwama, then presented the committee’s report on the Bill and said that the urgency of the labour situation had made it impracticable for the committee to undertake consultations with the public and key stakeholders.
[Note: the Constitution enjoins Parliament to ensure that interested parties are consulted about Bills “unless such consultation is inappropriate or impracticable” – section 141(b)].
There must have been prior arrangements made for the Portfolio Committee to have their report ready for fast–tracking as the House voted only that afternoon to waive the Portfolio Committee’s usual 14 days to consider the Bill.
The committee recommended several changes to the Bill, including that the proposed minimum compensation package on termination on notice or retrenchment be made more generous and that clause 18 [the backdating on benefits provision that had bothered the PLC] be even further extended to cover all workers whose services had been terminated on notice since February.
Individual MPs also made suggestions for changes to the Bill. In her reply the Minister said, in essence, that all suggestions made by MPs would be carefully considered, because the Government would constantly review and amend the labour law, but that the Bill must be passed because employers were still firing people.
The Bill was then approved in principle and the House proceeded immediately to the Committee Stage after the Speaker turned down MDC-T chief whip Hon Gonese’s request for that stage to be delayed until the following day, Wednesday.
Committee Stage
This stage is meant to give MPs an opportunity to deal with a Bill clause by clause, and to propose amendments if they so wish. It is not chaired by the Speaker. The deputy chairperson of committees was chairing and set a brisk pace – so brisk that MDC-T MPs claimed they had been left behind and were not able to propose any amendments. Protests about the speed and requests to backtrack so that amendments could be proposed were rejected.
Third Reading
The Speaker returned to the chair and MDC-T whip Hon Gonese pleaded for the reopening of the Committee Stage as it had been too hasty. This was turned down by the Speaker. The Speaker pointed out that the MDC-T could still propose amendments to the clauses they wanted changed, either to the Minister or when the Bill reached the Senate on the 20th August, and said he had been assured by the Minister that “those [amendments] will be taken care of as proposed”.
The Bill was then approved and received its Third Reading before being transmitted to the Senate. The National Assembly adjourned at 8.20 pm, until Tuesday 25th August.
Thursday 20th August – in the Senate
The Senate met on Thursday 20th August, and at the commencement of proceedings approved the Minister’s motion to allow fast-tracking of the Bill. In her speech explaining the Bill and the need for its urgent enactment into law, the Minister acknowledged that the National Assembly had not passed any amendments in spite of the valuable submissions and proposals that had been made during its passage through that House. She insisted that the Government wanted the Bill approved forthwith, without changes, in order to provide “immediate relief … to the masses of employees who were laid-off with nothing”. Other concerns, she said, would be addressed “in due course”, and her Ministry was, she said, “amenable to refining the Bill and conduct further consultations beyond this expeditious process”. This put paid to hopes that amendments that MPs wanted might be entertained in the Senate.
In their contributions to the debate Senators generally supported remedial action to counter the Zuva Petroleum decision, with MDC-T Senators calling for changes to the Bill to enhance benefits on termination and the position of workers and trade unions, and some protesting against the retrospective clause 18. In reply, the Minister repeated her assurances to take all points raised in the Parliamentary debates to the Tripartite Negotiating Forum for consideration of further amendments to the labour law at some future time. Senators then approved the Second Reading.
Given the stand of the Government, it was no surprise that during the ensuing Committee Stage all MDC-T attempts to have amendments made to several clauses of the Bill [specifically, clauses 4, 5, 10, 13 and 14], and a new clause 19 inserted [on maternity leave for women workers], were defeated. MDC-T Senators walked out in protest, and the Bill then had its Third Reading and was passed without amendments.
If there had been any amendments the Bill would have had to go back to the PLC for another report on the amendments, then back to the Senate for final approval and ultimately to the National Assembly for it to approve or reject the amendments.
The Senate sitting was over by 5.15 pm.
Imminent Gazetting as an Act
All that remained was for the Bill to be gazetted as an Act once the President had given his assent. It was sent to the President’s Office for President Mugabe’s assent during the afternoon of 21st August, and is expected to be gazetted as the Labour Amendment Act shortly. [Bill available from Veritas at the addresses given at the end of this bulletin]
No other Parliamentary business was conducted last week
Comment on Fast Tracking: Parliaments in the past have been made to fast-track Bills other than emergency Bills by the Executive, but it is a practice that is generally deplored. It was hoped that the present Parliament, with the extra muscle given to it by the present Constitution, would have taken a stand against this practice.
Comment on Separation of Powers: The Constitution now provides for a firmer separation of powers – the passage of this Bill has raised questions about whether Judicial powers were usurped and Parliamentary powers “unduly influenced” by a dominant Executive.
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