The Law and Its Complexities

While universally it is recognised that people should be people of laws and governed by laws, and no man should be above the law, one would literally think these laws would be in black and white, simple to apply and easy to follow. Alas, that in some cases might be a far-fetched dream.

It is not uncommon to find people arguing passionately with tempers flying high on what they think is the correct interpretation of the provisions of the laws. A case in point is the issue of election of the President in 2016. Interpretation of the Constitution of Zambia (Amendment) No. 2 of 2016 was one of the hottest topics among people of all walks of life with certain individuals and institutions feeling strongly that their interpretations of Articles 101, 103, and 104 of the said Constitution was the most correct one.

Now, when it comes to the way the country wishes to protect the vital economic interests that its citizens derive from employment, one of the key things is to have labour legislation in place, and Zambia, is no exception.

The Laws for the Zambian Labour Market

While many employees when they feel victimised and abused may rush to proclaim to the whole world that in Zambia there are absolutely no laws to protect them and employers simply do whatever they fell like at any time, well, this might not be true. Actually, Zambia has so many laws that pertain to (employment. Among them include but not limited to the following:

(1). Republican Constitution, Cap 1 of the Laws of Zambia

This is the supreme law of the land that spells out the constitutional rights and freedoms that an employee as a human being and a citizen can enjoy. The following employees’ rights are protected under the Constitution:

1. Protection from forced labour (Article 14);
2. Protection from property being taken away (Article 16);
3. Protection of freedom of religion or belief. An employer is not allowed to discriminate against any worker (Article 19);
4. Protection of freedom of assembly and association (Article 21);
5. Protection from discrimination (Article 23);
6. Protection of young persons from discrimination (Article 24); and
7. Protection of accrued pension benefits (Article 124).

The Constitution of Zambia (Amendment) No. 2 of 2016 further provides for the employee’s right to a pension benefit (Articles 187-189).

(2). Employment Act, Cap 268 of the Laws of Zambia

This law regulates the relationship between Employees and Employers and all matters relating to employment of persons on contracts, enforcement of contracts, role of Labour Officers, and so on.

The Employment (Amendment) Act, 2015 should be read as one with the Employment Act. The amended Act provides for protection against casualization, employers being required to give a reason for termination of employment e.g. (i) employee performance, (ii) behaviour, or (iii) operational requirements of the business.

(3). Employment Act (Special Provisions), Cap 270 of the Laws of Zambia

An Act which makes special provision with respect to employment during any period when a declaration of war under section 29 of the Constitution is in force; and to provide for matters incidental thereto.

(4). Minimum Wages   and   Conditions   of   Employment   Act, Cap  

The   law   provides for the wages, terms, and conditions that an employee can enjoy. Further, the Minister of Labour   and   Social Security issues new statutory instruments (SI) for non-management non-unionised workers as follows: SI No. 1 of 2011 revised by SI No. 47 for Shop Workers; SI No.2 of 2011 revised by SI No. 46 of 2012 General Order; and SI No. 3 of 2011 revised by SI No. 45 of 2012 for Domestic Workers.

(5). Industrial & Labour Relations Act, Cap 269 of the Laws of Zambia

This law covers all matters relating to the formation and operations of Trade  Unions,  Zambia  Congress  of  Trade Unions, Employer’s Associations, Zambia  Federation  of  Employers, Tripartite Labour Consultative Council; the Industrial  Relations Court and for other related matters. Amendment ACT No 8  of  2008  requires employees  to belong to a  union  within a sector,  trade, or industry in  which  the  employee is engaged.

(6). The National Pension Scheme Act, Cap 256 of the Laws of Zambia

The Act provides for regulation of the mandatory social security scheme that provides retirement and other social security benefits to workers in the country. The Act stipulates the obligations of employers, members and NAPSA management. It equally spells out the benefits to members.

(7). Workers’ Compensation Act, Cap 509 of the Laws of Zambia

The Act provides for the: establishment and administration of the Fund for compensation of Workers disabled by occupational accidents or diseases;  payment of compensation to dependents of workers who die as a result of occupational accidents or diseases; and payment of contributions to the Fund by employers.

(8). The Personal Levy Act, Cap 329 of the Laws of Zambia

This Act provides for the imposition, assessment and collection of an annual personal levy; and to provide for matters incidental thereto or connected therewith. Employees get to pay personal levy to the Local Government Authority in the town of work.

(9). The Occupational Health and Safety Act No. 56 of 2010

An Act which provides for the health, safety and welfare of persons at work. The health and safety of the employee is important and should be safeguarded by the employer.

(10). Factories Act, Cap 441 of the Laws of Zambia

The Act provides for the regulation of conditions of employment in factories and other employment places as regards to safety, health and welfare of persons employed therein; to provide for safety, examination and inspection of plant and machinery etc.

(11). The Employment of Young Persons & Children Act, Cap 274

The Act seeks to regulate employment young persons and children taking into consideration their health and safety. The Act should be read together with amendments Act No 10 of 2004. The Act prohibits employment of persons under the age of 16. All child labour issues are regulated under this law coupled with ILO conventions.

(12). The Apprenticeship Act, Cap 275 of the Laws of Zambia

An Act that regulates the employment of apprentices in various trades. The minimum contractual age for the employment of minors under the Apprenticeship Act, is between 15 and 21 years.

(13). Income Tax, Cap 323 of the Laws of Zambia

An Act that provides for the taxation of incomes and matters connected therewith. The Zambia Revenue Authority (ZRA) Practice Note No.1/2016 is also helpful in knowing the tax treatment of the employees’ incomes. The said Practice Note describes the various changes introduced by the Income Tax (Amendment) Act No. 6 of 2015, and Income Tax (Amendment) Act No. 19 of 2015 among others.

(14). Public Holidays Act, CAP 272 of the Laws of Zambia

The Act provides for public holidays. The days mentioned in the Schedule shall be observed throughout Zambia as public holidays. As provided for in SI No. 2 of 2011, such declared holidays shall be paid public holidays with full pay for the employee.

Employer-Employee Binding Agreements

Apart from the many laws that govern the Zambian labour market, other provisions also are there to protect the employee.

(1). The Employment Contract

The individual contract of employment is one of the key ingredients in defining the employment relationship and spells out the terms and conditions of employment. Under contract law, the written employment contract, spells out the rights and duties of the two parties to the contract (employer and employee). No employment contract should be made which contravenes the provisions of the applicable labour laws.

(2). Collective Agreement

The unionised workers are given protection and their terms and conditions of employment are regulated through the Collective Agreement signed in accordance with the provisions of the earlier mentioned Industrial & Labour Relations Act, Cap 269 of the Laws of Zambia.

(3). Conditions of Service

The Conditions of Service (CoS) manual or handbook or booklet or whatever name it is referred to is another important document that spells out the conditions and benefits that will accrue to the employee.

(4). Disciplinary Code & Grievance Procedures

This document contains the disciplinary process that the employer shall follow to discipline an employee, and at the same time, the grievance procedure that an employee shall follow to air their formal complaints to the employer. It may look simple but in many instances, Court cases may be lost or won on the basis of this document.

With the foregoing, it can be seen that there are many laws that govern the Zambian labour market, what could be needed is just full enforcement of the same, as well as review of those that may need to be reviewed accordingly.

When it comes to labour law, many governments have to grapple with balancing the competing interests of providing an enabling environment for businesses to flourish and create the much needed employment opportunities on one side, with passing and enforcing laws that could lead to higher wages and better conditions of service for the employees on the other. The unfortunate reality is that, successful fulfilment of either will be at the expense of the other.

It can only be recommended that government prioritises national development with which it is expected that both the businesses and employees can benefit accordingly.

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The Author Owen K. Kabanda is a Zambian Business and HR Advisor. For more insight on Leadership, Business, and Human Resource Management related issues, visit his LinkedIn profile.

You can also read up on the previous articles: Zambia’s Elections: Impact on Employee Productivity; Election Job Losses: Zambian Labour Laws; Zambian Elections: End of Contract Performance Evaluation vs. Recruitment Tests; Employee or Agent? The Zambian Labour Confusion; Branding Yourself as Best Employee; You Think You Can Interview? 3 Job Interviewer Prerequisites;Employee’s File Gone Missing: 3 Steps to HR Document Control; Pay My Gratuity or I Kill You: 3 Things to Know About Gratuity; Court Summon Over a Simple Employee Issue? 5 Ways to Deal with Employee Grievances; This Employee Is A Criminal Who Should Be Caged! HR Why Are You Delaying to Dismiss?; What Salary Increment? Forget! 4 Ways to Deal with Remuneration Expectations; You are the Worst HR this Company Has Ever Had: 3 Proven Ways to Redeem Yourself; and The Excruciating Pain of Quantifying Your Contributions.