Abstract
The 2013 Constitution of Zimbabwe entrenches the broad right to fair labour practices. The right is given effect to in Part III of the Labour Act (Chapter 28:01), which provides an exhaustive list of unfair labour practices which can be committed by employers, trade unions, workers' committees, and other persons. The Labour Act predates the 2013 Constitution. The constitutionalisation of the right to fair labour practices necessarily carries with it the attendant difficulties of reconciling the new rights and the pre-existing regulatory framework. This article seeks to contribute towards a practical understanding of the Zimbabwean unfair labour practice concept in the light of the constitutionalisation of the right to fair labour practices. It explores the nature and scope of the concept of unfair labour practice and examines its relationship with the constitutional right. Further, the contribution critiques the formalistic and conservative approach adopted by the Constitutional Court in explaining this relationship. The article commences with a brief discussion of the origins of the concept and its reception in Zimbabwean labour law. Following from this, the contribution critically analyses the unfair labour practice concept from statutory and constitutional perspectives. It argues for an expanded paradigm of the concept. This can be achieved if the judiciary moves away from pedantic approaches to the interpretation of labour rights. Therefore, the clarion call is for a purposive and expansive interpretation of the right to fair labour practices, which promotes constitutionalism. In addition, the contribution calls upon the legislature to reconsider the viability of the exhaustive list of unfair labour practices in Part III of the Labour Act, given the constitutionalisation of the broad right to fair labour practices.
Highlights
The Constitutional Court of Zimbabwe laid down the requirements that must be satisfied before conduct, positive or otherwise, can be described as an unfair labour practice.1 Further, for the first time the court gave meaning to the constitutional right to fair labour practices and explained its relationship with the statutory concept of unfair labour practice
In explaining the term fairness in the context of section 23(1) of the Constitution of the Republic of South Africa, 1996, it was held that the focus of the right to fair labour practices is, broadly speaking, ʺthe relationship between the worker and the employer and the continuation of that relationship on terms that are fair to both."93 While the Constitutional Court of South Africa found that fairness depends on the circumstances of a particular case and involves a value judgment, it held that the fairness required by the right to fair labour practices demands striking a balance between the competing interests of employers, employees, and the public
These principles are designed to prevent the development of two streams of jurisprudence.101. This contribution has unpacked the scope and nature of the concept of unfair labour practice in the Zimbabwean context. It has evaluated the relationship between the statutory concept of unfair labour practice and the constitutional right to fair labour practices based on the Greatermans case
Summary
The Constitutional Court of Zimbabwe laid down the requirements that must be satisfied before conduct, positive or otherwise, can be described as an unfair labour practice. Further, for the first time the court gave meaning to the constitutional right to fair labour practices and explained its relationship with the statutory concept of unfair labour practice. The contribution commences with an overview of the origins of the concept and its reception in Zimbabwean labour law, to put the discussion in context. This is followed by a critical examination of the statutory concept of unfair labour practice. The analysis considers the approach of Zimbabwean courts in interpreting unfair labour practices before the enactment of the 2013 Constitution. The contribution considers whether the concept of unfair labour practice in the LA is a limitation of the constitutional right to fair labour practices, and if so, whether the limitation is reasonable and justifiable in a democratic society
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