ZCTU, EMCOZ in labour act challenge

The High Court of Zimbabwe.

The High Court of Zimbabwe.

THE country’s largest labour umbrella body, the Zimbabwe Congress of Trade Unions (ZCTU) has applied to the High Court seeking to be joined as a party in the case in which the Employers’ Confederation of Zimbabwe (EMCOZ) is challenging the constitutionality of some sections of the Labour Amendment Act.
EMCOZ, which filed its application in the High Court in September this year, and the Minister of Public Service, Labour and Social Welfare, Prisca Mupfumira, are being cited as first and second respondents.
In his founding affidavit, ZCTU secretary general, Japhet Moyo, said the declaratur being sought by EMCOZ, to have sections 4 (b), 12 C (2), 16 and 18 of the Labour Amendment Act No 5 of 2015 declared unconstitutional and invalid directly affected their members as they were the ones whose contracts were terminated in terms of the common law provisions.
Moyo noted that the common law position which EMCOZ relied upon constituted an infringement on the fundamental rights of ZCTU members in the manner in which it was implemented, particularly that the notices of termination did not specify reasons for the termination of the contracts, other than citing the common law right.
He said should ZCTU be joined as a party, it would pray for the dismissal of the application in case No HC 9271/15, saying it was defective as it did not cite the affected workers who were given notices of termination of contracts under the common law and whose interests are protected by the disputed provisions.
“The impugned provisions do not seek to take away the substantive or vested rights of first respondent’s members in retrospect. First respondent’s members are still entitled to the substantive recourse of termination of employment.
“What the impugned provisions seek to do is to prescribe the procedures which first respondent’s members may employ in effecting the terminations of employment. As far as (the) applicant is concerned, the procedural aspects of the law can be lawfully made to apply in retrospect and it does not affect the substantive right of the first respondent’s members,” Moyo said.
He argued that substantial rights related to the issue of termination and how it was effected; adding that whether it was through resignations, retrenchments, or dismissal was a matter of procedure which could be lawfully regulated in retrospect.
Moyo said despite the clear interest that the ZCTU had in the matter, EMCOZ had not seen it fit to cite the labour body or its members to the application, adding that the fact that the confederation had pointed out in its application that employee organisations had made a huge outcry (after the July 17 Supreme Court ruling) was self-evident that the ZCTU had vested interests in the matter and ought to have been joined as a party from the onset. -Christopher Mahove

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