The National Airways Workers’ Union (NAWU) has defended the recently ratified Labour Amendment Act 2015, saying President Robert Mugabe and Parliament who approved the changes were a true voice of the masses and any attempts by employers to nullify the decision were legally misconceived and futile.
The amendment provides, among other things, that employers must pay in retrospect two weeks’ salary for every year served to about 30,000 workers who were left jobless following a monumental Supreme Court judgment of July 17 this year.
NAWU, a workers’ union, said the lawmakers and President Mugabe were true representatives of the people of Zimbabwe and the Employers’ Confederation of Zimbabwe (Emcoz), being a minority group, was simply testing the waters through a challenge filed at the High Court last week.
Emcoz last week approached the High Court to challenge the constitutionality of amendments to the Labour Act by Parliament last month.
The Supreme Court judgment allowed companies to terminate employees’ contracts at anytime without paying them severance packages.
The government intervened and amended the labour law to ensure the fired workers get something.
NAWU, which was not cited in the High Court application, is seeking to be allowed to join the proceedings as a respondent for the purposes of protecting the interests of its membership that was also thrown into the streets.
In the application for joinder filed by the workers’ lawyer Caleb Mucheche on Friday, the workers said they were going to demonstrate in their heads of argument that Emcoz’s application was anti-majority and a futile exercise.
“In a constitutional democracy like Zimbabwe, both Parliament and the President of the Republic derive their primary mandate from the electorate who are the people of Zimbabwe and hence any decision taken by Parliament and the President of the Republic of Zimbabwe such as the express retrospective application of the Labour Amendment Act, 2015, such a decision is effectively a decision of the people of Zimbabwe.
“With due respect, the first respondent (Emcoz) is an unelected body, which represents the narrow subjective interests of its own group in contra-distinction to the broad-based Parliament and the President of the Republic of Zimbabwe, who represent the interests of all people in Zimbabwe, whether employers or employees.
“Challenging the constitutionality or legal validity of the Labour Amendment Act 2015, which was validly passed by Parliament and the President of Zimbabwe is legally misconceived, ill-fated and counter-majoritarian.
“Emcoz is merely trying to test the waters in its lawsuit but in reality, any challenge to the constitutionality of the labour Amendment Act, 2015 is merely fantasizing…,” read the papers.
The workers said the amendment was proper and does not infringe on any constitutional rights.
“The applicant (NAWU) will elaborately submit that the retrospective enactment of the Labour Amendment Act, 2015 is perfectly legal and same does not violate or impinge on any imagined or real constitutional rights of the first respondent (Emcoz) or its members as alleged or at all.
“With respect, any such violation of constitutional rights is illusionary and a product of a fertile imagination on the part of the Employers’ Confederation of Zimbabwe,” the workers argued.
The workers said Parliament and President Mugabe acted within the confines of the law describing the amendment as a commendable practical response to palpable injustice, unfairness and inequity occasioned by the old and moribund common law.
Emcoz, in its challenge, said sections of the new law infringe on the rights of employers as provided for by the landmark court ruling.
The employers contend that the infringement of employers’ rights was caused by a knee-jerk reaction by the State to what it perceived as a social ill.
“That the process of legislating the Amendment Act was reactionary is evidenced in the lack of thinking, consultation and research required to guide action and lawmaking,” said Emcoz executive director John White Mufukare in an affidavit accompanying the application.
“There’s little doubt that the Amendment Act will cause hardship to business in the country by further stifling economic growth and causing massive unemployment, the very antithesis of what the State seeks to achieve.”
He argued that by fixing a cost to hiring and relinquishing labour, the State had unwittingly diverted scarce resources away from productivity, which is the only guarantor of employment and job creation.
To support its case, Emcoz is prepared to bring to court statistics showing factors that it says have led to the closure of businesses, liquidation and insolvency, with labour relinquishment related costs.
Mufukare argued the curtailment of the employer’s right to terminate an employment contract on notice led to the viability challenges faced by many companies.
To this end, Emcoz wants Section 4(b) of the Amendment Act No 5 of 2015 to be declared unconstitutional and invalid as well as Section 5 of the same Act that created Section 12C (2) of the Labour Act nullified.
It also seeks to nullify Section 16 of the Labour Amendment Act no 5 of 2015, which amended Section 93 of the Labour Act and Section 18 of the amended Act.