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Enshrined labour rights under s 65(1) of the 2013

Constitution of Zimbabwe: the right to fair and safe
labour practices and standards and the right to a fair
and reasonable wage
By Munyaradzi Gwisai*

INTRODUCTION

Pluralist scholars argue strongly that common law is heavily stacked against employees,
by its placing a premium on the contract of employment. According to iconic labour law
jurist, Otto Kahn-Freund, in doing so, common law inappropriately presumes an equality
of power between the employer and employee. Whereas the reality is that, “… the
relation between an employer and an isolated employee or worker is typically a relation
1
between a bearer of power and one who is not a bearer of power…”
Common law frowns on collective bargaining and imposes strenuous duties on the
employee and relatively light obligations on the employer. In real life the liberty of
2
contract it presumes becomes merely illusory. This was aptly recognized in S v Collet,
where the court rejected the employer’s defence that he had inflicted corporal punishment
on his employee for misconduct in terms of the contract of employment. The court held:
In the relationship of master and servant the role of the master is, of course the dominant
one and that of the servant is a subservient one. Even in the field of contract, it has long
been recognized that public policy requires that he be protected from the disadvantageous
consequences of agreements he may have felt obliged to enter into with his master, the
reason being that as a servant he is not conducting on equal terms with his master.

Working struggles over the years have sought to place restraint on the arbitrary powers of
the employers and infuse in the employment relationship, values based on notions of
fairness, equity and social justice, including the right to fair labour practices and
standards. For the first time in the history of labour relations in Zimbabwe, the right to
fair labour standards and practices has become enshrined in the Declaration of Rights as a
basic human right. Section 65 (1) of the Constitution provides:

“(1) Every person has the right to fair and safe labour practices and standards and to be
paid a fair and reasonable wage.”

* Munyaradzi Gwisai lectures in Labour Law and Labour Relations at the University of Zimbabwe
and Briggs Zano Working Peoples College and is a practicing legal practitioner.
1
Cited in A Rycroft & B Jordaan, A Guide to South African Labour Law 2nd ed (Juta, 1992) 19
2
1978 (1) RLR 205 AD at 212D-E. For similar sentiments see also - Nyambirai v NSSA & Anor 1995 (2)
ZLR 1 (S); Highlands Football Club v Viljoen & Anor 1978 (3) SA 191 (W) at 198E-H; and R. Pound,
“Liberty of Contract” 18 Yale L.J. 454 (1909)

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This section provides probably the most significant labour rights under the new
Constitution. This is because of its all-encompassing nature covering the right to fair
labour practices and standards, the right to safe labour standards and the right to a fair
and reasonable wage. It has the potential for the dramatic overhaul of labour
jurisprudence in the country by the incorporation of advances made by the working class
3
regionally and internationally.
In this article we analyse the extent of the rights provided under section 65 (1) and the
potential impact on labour jurisprudence in Zimbabwe.

RIGHT TO FAIR LABOUR PRACTICES AND STANDARDS

The first labour right enshrined under s 65(1) is the right to fair labour practices and
standards.” The Constitution does not define the terms “fair labour practices and
standards.” This has given rise in conservative and unitarist quarters that there is
therefore no exhaustive definition of the term “fair labour standards” and that the
concrete parameters of its content has to wait for elaboration by judicial practice.

However, it is our contention that there are basic guidelines, which must guide the courts.
The concepts are in fact entrenched in Zimbabwean and international labour
jurisprudence, which must provide the basis on which judicial practice must be based.

Whilst the detailed content of what constitutes “fair” and “reasonable” in the
Zimbabwean context will ultimately be shaped through judicial practice, cognisance must
remain that the new Constitution is based on a substantive vision of equality as opposed
to a vision of formal equality. As has been aptly put, the formal equality vision is based
on the Aristotelian concept of equality in which all persons are equal bearers of rights - in
which like is to be treated alike. It is blind to social and economic differences between
4
groups and individuals.

On the other hand, the concept of substantive fairness that underlies the Constitution “is
sensitive to entrenched structural inequality, focussing on the results or effects of a
5
particular rule rather than the form it takes.”

It has been recognised that, unlike classical western constitutions like that of the USA,
new constitutions like those of Zimbabwe, South Africa and Kenya, mark a radical and
decisive departure from a “disgracefully racist, authoritarian” past, and instead have “a
vigorous identification of and commitment to a democratic, universalistic, caring and
6
aspirationally egalitarian ethos.”
3
For similar views on an equivalent provision in the Constitution of South Africa, see – J.
th
Grogan, Workplace Law, 10 ed, (Juta, 2009) at 6
4
O Dupper, “The current legislative framework”, in E M L Strydom (ed), Essential
Employment Discrimination Law (Juta, 2004) 17
5
ibid
6
State v Makwanyame 1995 93) SA 391 (CC). in S v Sithole 1996 (2) ZLR 575 (H), DEVITTE
J, eloquently put it thus: “The present Constitution... is a radical departure from an authoritarian past in

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The new Constitution of Zimbabwe is clearly based on the vision of substantive equality
7
as opposed to that of formal equality. The concept of fairness should be interpreted by
reference to the norm or standard referred to in s 56 (5) of the Constitution by which
conduct is judged as fair or unfair. Conduct can only be deemed as fair if it is justifiable
under the norms of “... a democratic society based on openness, justice, human dignity,
equality and freedom.”

Section 65 (1) of the Constitution should therefore be interpreted using a robust and
8
purposive approach that ensures the realisation of substantive justice.

What is called for is not to create the wheel afresh. The values of “a democratic society
based on openness, justice, human dignity, equality and freedom”, are already firmly
entrenched in the core international human rights documents and core international
labour law instruments, which Zimbabwe has ratified.

Fair labour standards under domestic law

A starting point perhaps is to take the labour standards specified in section 65 itself as
examples of fair labour standards. Firstly, these include the right to safe labour standards
and to fair and reasonable wages under s 65 (1). Further are the various standards and
practices specified in s 65 such as respect of organisational, associational and collective
bargaining rights, the right to collective job action, the right to just, equitable and
satisfactory conditions of work, the right to equal remuneration for similar work between
men and women and the right to fully paid maternity leave.

Beyond this is to look at how the concept is treated in domestic and international law.
The concept was already developed under the Labour Act. Part II of the Act provides
under s 6 (1) for the right to fair labour standards as a fundamental right of employees.
9
One of the purposes of the Act is to promote fair labour standards. Under section 6(1),
no employer shall: pay any employee a wage which is lower than to fair labour specified
for such employee by law; require any employee to work more than the maximum hours

which scant regard was paid to the rights of the individual and the role of the courts as guardians of the
rights of the individual was marginalized. Our constitutional history enlightens us to the values on which
the present constitution is premised – but more important, it should alert us to the dangers of retaining
the authoritarian traditions of the past.”
7
See for instance s 46 (1) (a) and (b) of the Constitution compelling the purposive model of interpretation
in order to give “full effect to the rights” enshrined in the Declarati0on of Rights and to promote the
values and principles that underlie a democratic society. Section 85, providing that courts must not be
“unreasonably restricted by procedural technicalities” and providing a broad based locus standi of persons
who may bring action before the courts; sections 68 and 69 providing for the rights to administrative justice
and the right to a fair hearing. Section 56 (6) and s 17 (2) compelling the State to take positive measures to
promote the achievement of equality and advance people who have been disadvantaged by unfair
discrimination.
8
National Coalition for Gay & Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) (per Ackerman
J). Also - City Council of Pretoria v Walker 1998 (2) SA 363 (CC). See also - S v Sithole 1996 (2) ZLR
575 (H)
9
Section 2A (1) (d) of the Act

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permitted by law or by agreement made under the Act; or fail to produce such conditions
of employment as are specified by law or as may be specified by agreement made under
the Act; or require any employee to work under any conditions or situations which are
below those prescribed by law or by the conventional practice of the occupation of such
employee’s health or safety; or hinder, or prevent any employee from or penalizing her /
him for seeking access to any lawful proceedings in order to advance or protect her / his
rights.

It is our contention that the concept of “fair labour practices and standards” under s 65 (1)
of the Constitution, should, in the least, be held to include the above five specified labour
standards under s 6 (1) of the Act. This is because these have been recognised under
Zimbabwean labour jurisprudence as fundamental rights of employees for a considerable
10
historical time, starting with the Labour Relations Act, 1985. Further virtually all of
them, with the possible exception of the one on working hours, are already provided for
in s 65 (1) of the Constitution.

There is a difference however, in how the Act and the Constitution treat the concepts.
The Act provides an explicit list of fair labour standards to be recognised. This has not
11
changed from the pioneering Labour Relations Act. Similarly and based on the old Act,
12
the Labour Act defines the term “unfair labour practice” in an explicit manner. An
unfair labour practice:
“.. means an unfair labour practice specified in Part III, or declared to be so in terms of
any other provision of this Act.”

Part III provides a list of unfair labour practices that may be committed by employers,
13
trade unions or workers committees. The Minister may prescribe further acts as unfair
14
labour practices. The courts have held this list to be exhaustive - Olivine Industries
15
(Pvt) Ltd v Jack & Ors. Note that unlike its South African equivalent, the
Zimbabwean Act does not provide a substantive definition of unfair labour practice in
16
relation to acts or omissions that arise between the individual employer and employee.
This is a major weakness in the Act.

The legislative approach hitherto had been a cautious one, whereby the terms “fair labour
standards” and “unfair labour practices” were narrowly defined.

Section 65 (1) of the Constitution marks a radical departure from this in favour of a
broader encompassing approach. The right under s 65 (1) is broadly worded. This enables

10
See s 2 as read with Part II of the Labour Relations Act, 1985, No. 16 of 1985. This defines the term
“unfair labour practice” as – “.. an unfair labour practice specified in Part III, or declared to be so in terms
of any other provision of this Act.”
11
Section 6 (1), Labour Relations Act, 1985
12
Section 2 of the Act. See s 2 Labour Relations Act, 1985
13
Sections 8 and 9 respectively
14
Section 10 of the Act
15
2005 (1) ZLR 356 (S) at 358C. Also - Muwenga v PTC 1997 (2) ZLR 483 (S)
16
See definition under s 186 (2) of the Labour Relations Act, 1995 (SA)

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the development of the right by the courts taking into account its domestic historical
evolution as well as incorporating such standards that have assumed the status of basic
labour standards under regional and international law, using the broad interpretation tools
17
provided by the Constitution. Grogan, thus asserts that other forms of “unfair labour
practices” may be recognised under the broader constitutional guarantee of fair labour
practices and standards than those under the Act.18

Fair labour standards and practices under international law

A perusal of international law demonstrates that certain labour standards have indeed
assumed the status of basic fair labour standards and practices which must inform the
Zimbabwean courts in their interpretation of s 65(1) of the Constitution.

Certain instruments stand out in this regard. Firstly the standards and practices that are
reflected in the Constitution of the ILO and core ILO conventions. These bind Zimbabwe
as a Member State of the ILO. Secondly and inter-linked to this are the fair labour
standards and practices recognised in the Charter of Fundamental Social Rights in SADC,
2003 [‘SADC Charter’].

The SADC Charter embodies those labour rights drawn from appropriate international
law instruments, in particular those of the ILO, that have been recognised as basic human
rights by governments, employers and workers in the SADC region. It provides:

Article 3
Basic Human Rights and Organisational Rights

1. This Charter embodies the recognition by governments, employers

and workers in the Region of the universality and indivisibility of basic
human rights proclaimed in instruments such as the United Nations
Universal Declaration of Human Rights, the African Charter on Human
and Peoples Rights, the Constitution of the ILO, the Philadelphia
Declaration and other relevant international instruments.

2. Member States undertake to observe the basic rights referred to in

this Charter.

17
Section 46 (1) (c ) and (e) of the Constitution which compel courts to use as interpretative guides, inter
alia, international law and all treaties and conventions to which Zimbabwe is a party as well as relevant
international law
18 th
J Grogan 10 ed (2009) 87 citing: Simelela & ors v MEC for Education, Province of the Eastern Cape
& Ors (2001) 22 ILJ 1688 (LC); National Entitled Workers Union v CCMA & Ors (2003) 24 ILJ 2335
(LC). But Grogan proceeds to state that the South African Constitutional Court has also held that if certain
forms of unfair practices are not covered by the legislation, parties cannot directly rely on the Constitution
without at the same time successfully challenging the constitutional deficiency of the statute in question –
SA National Defence Union v Minister of Defence & ors (2007) 28 ILJ 1909 (CC) at para [51]

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The SADC Charter therefore gives a useful summary of the basic fair labour standards
and practices recognised under international human rights instruments and ILO
conventions, and which are so accepted by the three key players in industrial relations,
labour, capital and the State.

The principal fair labour standards recognised under international law, with particular
19
reference to the SADC Charter are:
20 21
The equality and fair treatment principle, and non-discriminatory practices. The
gender equality principle and equal work opportunities between men and women
standard. The inherent human dignity standard including freedom from slavery, forced
labour and the right to just, favourable and safe conditions of employment – decent work
22
standards; decent remuneration; safe and healthy working conditions.
Associational, organisational and collective bargaining rights including the right to strike.
Rights to industrial and workplace democracy including the rights to information,
consultation and participation and to worker education and training. Basic fair labour
standards and practices in relation to the disabled, children, elderly persons and social
protection.

The right to fair labour standards and practices thus potentially involves the incorporation
into Zimbabwean labour jurisprudence of those standards already recognised under
domestic jurisprudence and under regional and international law, as basic labour
standards.

Equality and fair - non discriminatory treatment standard

At the onset, s 65 (1) of the Constitution compels fair labour standards and practices. This
means that employers should treat employees fairly. This also invokes the equality
principle under s 56 of the Constitution, which although not amongst the enumerated
labour rights but is of direct relevance.

The right to fair labour standards means an employer has a duty to treat its employees
23
fairly in the employment relationship. The right to fairness connotes objectiveness and
rationality, both substantively and procedurally. It therefore encompasses substantive and

19
See in general M Gwisai et al, “An outline of fundamental labour rights under international
laws, national constitutions and Zimbabwean constitutional norms” (2009) 2 KMLJ 71
20
Arts. 7 and 10 United Nations Universal Declaration of Human Rights, 1948 [UDHR]; Art. 14 United
Nations International Covenant on Civil and Political Rights, 1966 [ICCPR], and Art. 3 African (Banjul)
Charter on Human and People’s Rights, [ACHPR],
21
Art. 2 UDHR; Art. 2(1) ICCPR, Art. 2 ACHPR, and Art. 6 SADC Charter
22
Generally see Arts. 23, 24 and 25 UDHR; Arts. 6, 7 and 11 ICESCR; Art. 15 ACHPR and Art. 10
CEDAW
23 th
J. Grogan 10 ed (2009) 6; Murray v Minister of Defence (2008) 29 ILJ 1369 (SCA)

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procedural fairness as recognised under the right to administrative justice in s 68 (1) of

the Constitution.

Substantive fairness connotes objectiveness and rationality. On the other hand procedural
fairness connotes objectiveness and impartiality. It includes but goes beyond the
administrative law maxim, audi alteram partem. Section 68 (1) of the Constitution refers
to the right to “lawful, efficient, reasonable,... impartial” administrative conduct and to be
promptly given reasons for a decision. Section 69 of the Constitution refers to the right to
“a fair, speedy, and public hearing within a reasonable time before an independent and
impartial court, tribunal” and the right to be represented by a legal practitioner before
such court or tribunal.

This standard is echoed in s 2A (1)(f) of the Labour Act which provides that as one of the
objectives of the Labour Act as –
securing the just, effective and expeditious resolution of disputes and unfair labour
practices.

The above has particular significance in dismissal law concerning the right of employees
to be protected from unfair dismissal. Dismissal should be substantively and procedurally
fair. Some recent decisions of the Supreme Court have taken such approach, correctly in
24
our view. These include the decision in Sagandira v Makoni RDC, and ZIMASCO
25
(Pvt) Ltd v Marikano.
A contrary, and in our view incorrect approach, was that adopted by the Labour Court in
holding that an employer can terminate on notice or at will, an employee’s contract of
26
employment. Such decision allows for dismissal without any reason whatsoever, in
complete violation of the principle of substantive fairness, which require that termination
of employment at the initiative of the employer be based on a valid reason pertaining to
the conduct or capacity of the employee or operational reasons of the undertaking.

The equality principle is a basic human right recognised under the Zimbabwean
Constitution and most international human rights instruments and in terms of which all
persons are equal before the law and have the right to equal protection and benefit of the
27
law. The right to equal protection of the law is central to the concept of an open,
28
democratic and law-governed society.
The right is also already provided for under s 6 (1) (e) of the Act, as a fundamental right
of employees.

This provides that no employer shall:

24
S-70-14 [Garwe JA], reversing a punitive transfer as unfair
25
S-6-14, imposing a duty to consult before dismissal of an employee who has exhausted her / his sick
leave days
26
Zuva Petroleum (Pvt) Ltd v Nyamande & Anor LC/H/195/2014
27
Section 56 (1) Constitution.
28
Mike Campbell (Pvt) Ltd & Anor v Minister of National Security Responsible for Land Reform
& Resettlement & Anor 2008 (2) ZLR 343 (SADC)

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hinder, obstruct or prevent any employee from, or penalise him for seeking access to any
lawful proceedings that may be available to him to enable him lawfully to advance or
protect his rights or interests as an employee.

The right must be read in conjunction with the employees’ right to democracy in the
workplace under s 7 of the Act which entitles employees to have access to trade unions
and workers committees for the purposes of protecting their rights and advancing their
interests.

Non discriminatory principle

The non-discriminatory standard means that every person has the right not to be treated in
“an unfairly discriminatory manner” on the prohibited grounds other than in
circumstances of special measures to achieve equality or advance people or groups who
29
have been disadvantaged by unfair discrimination.
30 31
The standard is provided for in the SADC Charter, core ILO conventions and other
32
international human rights instruments.
The Constitution provides a very comprehensive list of prohibited grounds of unfair
discrimination. Section 56 (3) provides:
Every person has the right not to be treated in an unfairly discriminatory manner on such
grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language,
class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status,
age, pregnancy, disability or economic or social status, or whether they were born in or out of
wedlock.

The non-discriminatory right is also already provided as a fundamental right of employees under
s 5 (1) of the Labour Act. This provides:
No employer shall discriminate against any employee or prospective employee on grounds of
race, tribe, place of origin, political opinion, colour, creed, gender, pregnancy, HIV/AIDS status
or subject to the Disabled Persons Act [Chapter 17:01] any disability referred to in the definition
of ‘disabled person’ in that Act...

It will be noted that s 56 of the Constitution provides a wider and non-exhaustive list of
prohibited grounds. The prohibited grounds are expressed as “.. on such grounds as ...”, meaning
they could be broader. Additional grounds are added namely: “class, marital status, culture,
custom, economic or social status or whether they were born in or out of wedlock.”

Most of the extra grounds pertain to discrimination against women, showing the elevated status of
women labour rights under the 2013 Constitution.

29
Section 56 (3) and (6) Constitution
30
Articles 5 and 6, SADC Charter
31
Discrimination (Employment and Occupation) Convention, 1958 (C 111); Equal Remuneration
Convention, 1951 (C 100)
32
See footnote 22, supra

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However, the Constitution has not included the ground of ‘HIV/AIDS status” which is in the Act
33
and regulations. This is an important omission given the prevalence of AIDS/HIV
stigmatisation in society. The ground is still not entirely excluded given the broad wording of s 56
(3) of the Constitution.

Another important difference is that s 56 (6) of the Constitution makes it mandatory for the State
- “to take reasonable legislative and other measures to promote the achievement of equality and to
protect or advance people or classes of people who have been disadvantaged by unfair
discrimination.” On the other hand under the Labour Act, such special measures are permitted
34
only in relation to grounds of race, gender and disability, but are not mandatory on employers.

In relation to civil servants the equality and non-discriminatory principles are provided under the
Public Service Act and Public Service Regulations. The Commission is required to have regard to
these principles, including the merit principle, in the recruitment and promotion of employees,
35
under section 18 of the Public Service Act:
18 Appointments and promotions
When considering candidates for appointment to or promotion within the Public Service, the Commission
shall—
(a) have regard to the merit principle, that is, the principle that preference should be given to the person
who, in the Commission’s opinion, is the most efficient and suitable for appointment to the office, post or
grade concerned; and
(b) ensure that there is no discrimination on the ground of race, tribe, place of origin, political opinions,
colour, creed, gender or physical disability.

As with the Labour Act, the prohibited grounds of discrimination are not as wide as under s 56
(3) of the Constitution and must be read with the necessary modification to ensure constitutional
compliance.

Right to safe labour practices and standards

The second labour right enshrined under s 65 (1) of the Constitution is the right of every person to
“fair and safe labour practices and standards...” Common law already recognises the employee’s
right to safe and healthy working conditions - Mpande v Forbes and Thompson (Bulawayo)
36
(Pvt) Ltd & Anor. The definition of the right is not provided in the Constitution. Useful
reference may be made to the Labour Act and international law treaties as well as common law.

The Labour Act recognises the right as one of the fundamental fair labour rights of employees.
Section 6 (1) (d) of the Act provides that no employer shall –
... require any employee to work under any conditions or situations which are below those
prescribed by law or by conventional practice of the occupation for the protection of such
employee’s health or safety.

33
The Labour Relations (HIV & AIDS) Regulations, S.I. 2002 of 1998 prohibit discrimination on the
grounds of AIDS / HIV and require protective clothing and other safety measures to prevent the spread of
HIV / AIDS at the workplace
34
Section 5 (7) (c ) (d) of the Labour Act.
35
See also s 3 (2) of the Public Service Regulations providing: “The recruitment, advancement,
promotion or grading of members shall be on the basis of merit.”
36
1980 ZLR 302

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37
Currently, there are various workplace safety laws that employers must comply with. Harmful
child labour and the employment of “any person under the age of eighteen years to perform any
work which is likely to jeopardize that person’s health, safety or morals” are prohibited under s
38
11(4) of the Act and international law.

The ILO has several applicable conventions, although the most important one is the Occupational
39
Health and Safety Convention.

The SADC Charter provides that Member States should endeavour to provide basic occupational
40
health and safety standards as set out in ILO Convention No. 155. Article 12 (a) of the Charter
states that every worker in the Region has the right to health and safety at work and to a healthy
and safe environment that sustains human health. It lays out various aspects of the right, which
Member States should endeavour to establish, including:

The organisation of occupational health and safety shall be on the basis of bipartite and tripartite
co-operation and full participation of all parties; Workers have a right to information on
workplace hazards and the procedures being taken to address them, and to appropriate health
and safety training in paid working time.

Workers have the right to stop work that they reasonably believe poses an immediate and serious
risk to their health, safety or physical well-being according to ILO Convention No. 155;

Workers have the right to services that provide for the prevention, recognition, detection and
compensation of work related illness or injury, including emergency care, with rehabilitation and
reasonable job security after illness and adequate inflation adjusted compensation;Employers
control and are liable for work related environmental risks according to the “polluter pays”
principle;

Workplace based health service for workers is accessible, affordable and equitable, and is
provided on a professional ethical basis; and
Economic and investment measures take into consideration health, safety and environmental
standards.

37
Some of the important ones include: the National Social Security Authority (Accident Prevention)
(Workers Compensation Scheme) Notice, No. 68 of 1990; Factories and Works Act [Chapter 14:08];
Hazardous Substances and Articles Act [Chapter 15:05]; Smoking (Public Health) (Control of Tobacco)
Regulations, S.I. 264 of 2002; and the Labour Relations (HIV & AIDS) Regulations, S.I. 2002 of 1998
38
See the Labour Relations (Employment of Children and Young Persons) Regulations, S.I. 72 of 1997.
Also see: Worst Forms of Child Labour Convention (C 182); the African Charter on the Rights and
Welfare of the Child (1990), Art. XV and the Convention on the Rights of the Child, Art. 32
39
Occupational Safety and Health Convention, 1981 (C 155). Other conventions ratified by Zimbabwe include:
Prevention of Major Industrial Accidents Convention, 1993 (C 174); Safety and Health in Mines Convention,
1995 (C 176); Asbestos Convention, 1986 (C 162); Chemicals Convention, 1990 (C 170); Equality of Treatment
(Accident Compensation) Convention, 1925 (C 19) and the Underground Work (Women) Convention, 1935 (C
45). Not yet ratified but important is the Maternity Protection (Revised) Convention, 2000 (C 183) which has
provisions for the protection of pregnant women and un-born children
40
Article 12 (c ) SADC Charter

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The SADC Charter sets out the right as an aspirational right but nonetheless provides a very
useful guide to the legislature and courts in developing the substantive aspects of the right under s
65 (1) of the Constitution.

At a minimum though, the constitutional enshrinement of the right gives it a higher status as a
basic human right. This has implications on common law. Precedents that provide a light duty on
employers must be read restrictively. An appropriate example is the volenti non fit injuria
doctrine, whereby employees in dangerous jobs are presumed to have voluntarily assumed risk of
41
reasonably foreseen dangers that may befall them - Kwaramba v Bain Industries (Pvt) Ltd.

Further common law does not make an explicit distinction between illness that may arise naturally
42
and that which is work-related, but the s 65 (1) standard potentially may require such a distinction.
Dismissal for incapacity due to illness or injury arising from the workplace is only considered “fair
43
dismissal” if it complies with the requirements of substantive and procedural fairness. Substantive
fairness imposes a duty of reasonable accommodation on the employer, before dismissing the
employee, with the burden being more onerous where the injury has resulted from the employer’s
breach of the duty of safety. This may be for instance by giving the employee alternative
44 45
employment, or granting them longer sick leave days than those specified in the Act.

Procedural fairness obliges the employer to carry out an investigation or inquiry as to the nature and
extent of the incapacity of the worker and to consult the employee on the possibility of reasonable
46
accommodation and the possibility of dismissal if these are not be found.

The constitutional standard can also be read to now generalise to all employees, the right to
withdraw labour in the face of an immediate occupational hazard which is provided under s 104
(4) of the Labour Act.

RIGHT TO A FAIR AND REASONABLE WAGE

The third and final labour right enshrined under s 65(1) of the Constitution is the right of
every person with the right to be paid a fair and reasonable wage. It reads:
65 Labour rights

Every person has the right to fair and safe labour practices and standards and to be paid
a fair and reasonable wage. (emphasis added).
47
This provision marks a milestone in the Zimbabwean labour law regime. Hitherto
neither statutes nor common law had prescribed the quantum of wages payable to
employees, let alone “a fair and reasonable wage.”

41
S-39-01. See also - SARH v Cruywagen 1938 CPD 219
42
Kwaramba v Bain Industries (Pvt) Ltd S-39-01
43
Rycroft and Jordaan (1992) 214 – 15; Le Roux and Van Nierkerk, The South African Law of Unfair
Dismissal, (Juta, 1994) 230 – 32; FWC v SA Breweries Ltd (1992) 13 ILJ 204 (IC); Merseyside and North
Wales Electricity Board v Taylor (1975) IRLR 60
44
Carr v Fisons Pharmaceuticals (1995) 16 ILJ 179 (IC)
45
ZIMASCO (Pvt) Ltd v Marikano S-6-14
46
NUM & Anor v Libanon Gold Mining Co Ltd NH 11 / 2 / 8332 (LAC).

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The Constitution does not define the terms “a fair and reasonable wage.” To unravel the
meaning of the term some reference will be made to common law, in particular public
policy considerations as well as domestic legislation. The concept, however, has its
origins in international law, and it is this, which provides the most useful guideline.
Under common law, the quantum of wages is in terms of the contract of employment
48
between the parties. What the employer pays for is the availability of the employee’s
49
services and not the value of the product produced by the employee. Increments are at
50
the discretion of the employer. Considerations of equity, fairness or reasonableness are
51
not relevant.
The Public Service Act does not provide for the right of employees to “a fair and
52
reasonable wage” but only an enforceable right to remuneration. Unlike common law
and the Labour Act, there is though a requirement of objectivity and rationality in the
setting of salaries for public servants. The employer cannot just arbitrarily set the
remuneration levels but is required to do so by reference to, “academic, professional or
technical qualifications or the attributes necessary for the efficient and effective
53
execution of the tasks attached to the post.”

This may be a useful reference point that can be used in assisting determining the
meaning of “fair and reasonable wage” under s 65 (1) of the Constitution, especially for
employees earning above the basic minimum rates.

Under the Labour Act, s 6 (1) establishes a fundamental right of employees to the fair
labour standard of not being paid a salary which is lower than the prescribed levels. It
reads:
“No employer shall pay any employee a wage which is lower than that to (sic) fair labour
standard specified for such employee by law or by agreement.”

But the section does not expressly compel payment of “fair and reasonable wages,” nor
does it se an objective standard by which remuneration should be set as is done in the
Public Service.

47
M Gwisai, R Matsikidze & C Mucheche, “Labour Rights under Zimbabwe’s new Constitution: The
right to be paid a fair and reasonable wage” (2014, Unpublished, Harare) 1
48
National Railways of Zimbabwe v National Railways Contributory Fund 1985 (1) ZLR 16 (S);Gladstone
v Thornton’s Garage 1929 TPD 116
49
Commercial Careers College (1980) (Pvt) Ltd v Jarvis 1989 (1) ZLR 344; Belmore v Minister of Finance
1948 (2) SA 852 (SR)
50
Chiremba (duly authorized Chairman of Workers Committee) and Ors v RBZ 2000 (2) ZLR 370
(S); Chubb Union Zimbabwe (Pvt) Ltd v Chubb Union Workers Committee S-01-01. Also: Nare v
National Foods Ltd LRT/MT/38/02
51 th
R H Christie The Law of Contract in South Africa 5 ed (2009) 14
52
Section 22, Public Service Act
53
Section 20 (2) Public Service Regulations, SI 1/2000

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Neither of these requirements are set in the provisions of the Act providing for the
54
establishment of statutory minimum wages or in collective bargaining. In relation to
collective bargaining though, the Act provides the Minister of Labour with authority to
decline to register a collective bargaining agreement and order its renegotiation by the
55
parties, if the Minister feels the collective agreement is or has become:
“(c ) unreasonable or unfair, having regard to the respective rights of the parties.”

The Act, however, does not define what is meant by “unreasonable or unfair,” but leaves
the discretion with the Minister.

The closest that domestic courts have dealt with the concept of “a reasonable wage” has
been appeals to the Labour Court in compulsory arbitration matters or applications to set
aside a wage increment award to the High Court in voluntary arbitration matters. In both
situations, the aggrieved parties attacked the award as against public policy on the ground
of gross unreasonableness.

Prior to section 65 (1) of the Constitution two approaches were evident from courts and
arbitrators. In both approaches, there was a relative balancing of factors; business and
economic on the one hand, and on the other, the human need factor of a dignified and
poverty-free life for workers. The crucial difference was which of these was to be the
“first and dominant” factor.

The first and preponderant approach took the employer’s business interests and general
economic factors as the first and dominant factor - Tel-One (Pvt) Ltd v
56
Communications & Allied Services Workers Union of Zimbabwe.
This approach held that “reasonable” wage increments are those: which do not threaten
57
the survival or sustainability of the business; are within the capacity of the employer to
58 59
pay; or are consistent with the prevailing rate of inflation. In the Tel-One (Pvt) Ltd
case, the locus classicus for this approach, the court reversed a 266% wage increment by
60
an arbitrator as grossly unreasonable, after the employer had demonstrated that such an

54
Such as s 17 (3) (a) and s 20 (1) of the Act on statutory minimum wages and s 74 (3) and s 81 (1)
on collective bargaining.
55
Section 81 (1) Labour Act
56
2007 (2) ZLR 262 (H)
57
Zimbabwe Posts (Pvt) Ltd v Communication and Allied Services Workers Union of Zimbabwe
HH-60-14 [Mutema J] involving the reversal of a nominal $25-00 increment because the employer
had demonstrated that staff costs were already consuming 67% of company revenue.
58
In Detergent, Edible Oils & Fats Industry Employers Association v Detergent, Edible Oils & Fats
Industry Trade Union, the Labour Court reduced the award of 10% made by the arbitrator down to 2.5%,
which the employer party had offered in the first place. In the Baking Industry Workers’ Union v
National Bakers’ Association of Zimbabwe[2014] matter the arbitrator awarded a 2% increase of the
basic minimum wage and refused to make an increase of the allowances.
59
Chamber of Mines v Associated Mineworkers Union of Zimbabwe LC/H/250/2012, reversing a 20%
increment award to the prevailing inflation level rate of 5%, because the “…inflation level … should
provide an essential guide for salary negotiations.”
60
In terms of article 34 (2) (b) (ii), Arbitration Act [Chapter 7:15]

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increment would result in 130% of its overall income going to wages. In setting aside the
61
award, HUNGWE J, ruled:
There is no doubt in my mind that the spirit of collective bargaining between employer and
employee is to arrive by consensus or, if that fails, by arbitration, at what a fair wage is. The idea
is to preserve the employer-employee relationship. The employee makes his labour available for a
fair fee. The employer engages the employee on acceptable terms and conditions. The employer
employs his resources to ensure that the goose that lays the eggs for their mutual benefit
continues to do so. Society expects these mutually beneficial outcomes. The economy thrives and
so does the community generally and its members in particular. An award that plunges the apple-
cart over the cliff in my view could not be said to be in the best interest of the general good of
Zimbabwe...

The court proceeded to place at the pinnacle of considerations to be made when

determining whether a wage increment was reasonable, the ability of the employer to
pay:
In all work situations, salaries and wages are limited by an employer’s ability to pay. The courts
and indeed all tribunals delegated with decisions of a financial nature would be failing in their
duty if they were to will-nilly give awards whose effect would be to drive corporations into
insolvency thereby destroying the economic fabric of the nation. Such awards would defeat the
very purpose they are meant to serve. As such they are liable to be set aside as being in conflict
with the public policy of Zimbabwe...

The potential harsh effect of this approach is shown in the decisions holding that increments must
be held to the levels of the prevailing rate of inflation - Chamber of Mines v Associated
62
Mineworkers Union of Zimbabwe. This has meant that where inflation is less than 0%, some
arbitrators have awarded increments of 0% or even reduced prevailing minimum wages, even
63
though such wages were less than 50% of the PDL.

The second approach took the human needs of the worker or a living wage as the first and
dominant factor that could only be overcome if the employer provided concrete evidence
64
why it cannot pay this - City of Harare v Harare Municipal Workers Union.
Workers had demanded a 330% increment in order to attain a living wage arguing that
the employer could afford this as it was paying senior management astronomical salaries.

The employer offered 0% and refused to disclose the executive pay-roll arguing that it
was irrelevant to look at what senior management earned. The arbitrator made an award
of 120%. In upholding the award CHITAKUNYE J, held:

61
At p 266A-C
62
LC/H/250/2012
63
Such 0% increments have indeed been awarded in the following cases: Sweets & Confectionary
Workers’ Union v The Sweets & Confectionary Employers’ Association [2014]. In the Clothing Sector
award [2014], an increment of 0% on basic wages for all employees was awarded, and minus 20% for
newly engaged employees.
64
2006 (1) ZLR 491 (H). Applied in the Arbitral Award for the Brewing Distillers National Employment
Council of the Brewing Distillers Industry (2014), where the arbitrators awarded a 6% increment on
basic wages where the employer was offering a 0 per centum offer.

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The arbitrator carefully considered the interests of both parties as portrayed by the
parties before him. The applicant’s argument of inability to pay was well considered…
The substantive effect of the award was simply to awaken the applicant to the realities of
today’s economy…Applicants argued that respondents should not concern themselves
with what is being awarded to other employees…of the applicant. But surely, the
respondents are entitled to point out that those categories of employees … are getting
astronomical salaries which may in fact be eating more into the applicant’s revenue than
the paltry salaries … the lowly paid workers are getting… surely if you have an entity
that pays astronomical salaries to its top heavy management.. but …is reluctant to pay its
lowly paid workers a living wage, can such an entity sincerely cry bankruptcy if ordered
to pay its lowly graded workers a meaningful salary? At 494D-F

We submit that the second approach comes closest to the meaning of “a fair and
reasonable wage” under s 65 (1) of the Constitution. It is consistent with international
law, where the concept originates, and which should be considered under sections 46 (1)
and 327 (6) of the Constitution.

The first approach is too narrow in its focus on the business interest factor. Further it is
distinguishable because the courts were not strictly dealing with the concept of “a fair and
reasonable wage” per se, but gross unreasonableness. The constitutional standard
involves considerations that go beyond reasonableness and address fairness and equity
65
considerations which ordinarily do not concern civil courts.
66
Dealing with a similar provision the Industrial Court of Kenya held that:
The terms fair and reasonable are to be interpreted in the context of the standards at a
particular work place, the national labour standards and with due regard to
international labour standards.

The standard of a fair wage is well established under international law. Essentially, it
means that the lowest-paid employees get a minimum wage that gives the employees and
their family a dignified and poverty-free life worth of a human being in a civilized
society, but subject to the prevailing enterprise and national economic and social
considerations.
67
Thus the SADC Charter provides that: :
Member States shall create an enabling environment so that:
(b)Workers are provided with fair opportunities to receive wages, which provide for a
decent standard of living; …
68
The same is provided in other international instruments, including the Universal
69
Declaration of Human Rights. The later provides that:

65
As recognized in Madhatter Mining Co v Tapfuma S-51-14
66
VMK v CUEA [2013] eKLR in interpreting s 41 (2) (a), Constitution of Kenya, 2010, which provides:
“Every worker has the right – (a) to fair remuneration”
67
Article 14 (b) SADC Charter

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Everyone who works has the right to just and favourable remuneration ensuring for
himself and herself existence worthy of human dignity…

ILO instruments provide the most comprehensive guidelines on the factors to be taken in
fixing minimum wages that accord with a fair and just remuneration. The most relevant
70 71
are the provisions of ILO Convention No. 131 and ILO Recommendation No. 135
which set out the purpose and considerations in minimum wage-fixing. Although not
ratified, the instruments are significant because they were made “with Special Reference
to Developing Countries.”

As regards the purpose of minimum wage-fixing laws, Article 1 of Recommendation No.

135 states this to be:
1. Minimum wage fixing should constitute one element in a policy designed to overcome
poverty and to ensure the satisfaction of the needs of all workers and their families.
2. The fundamental purpose of minimum wage fixing should be to give wage earners
necessary social protection as regards minimum permissible levels of wages.

Convention No. 131 sets out the specific elements to be considered when determining
72
wages:
The elements to be taken into consideration in determining the level of
minimum wages shall, so far as possible and appropriate in relation
to national practice and conditions, include –

The needs of workers and their families, taking into account the general
level of wages in the country, the cost of living, social security benefits,
and the relative living standards of other social groups;

Economic factors, including the requirements of economic

development, levels of productivity and the desirability of attaining and
maintaining a high level of employment.

Three considerations are therefore important under the ILO instruments. Firstly, the
needs of the workers and their families so that they do not live in poverty, taking into
account factors like general levels of wages, the cost of living and relative living
standards of other social groups. This is called the “human factor”, hence the term “living
73
wage.” The Poverty Datum Line is the most scientific way of measuring poverty.
68
See article 11 (1) of the International Covenant of Economic, Social and Cultural Rights providing:
Everyone has a right to a standard of living adequate for the health and well-being of himself or herself
and his or her family including food, clothing, housing, medical care and necessary social services…
69
Article 23 (3) Universal Declaration Rights, 1948
70
ILO Convention No. 131: Minimum Wage-Fixing (1970)
71
ILO Recommendation No. 135: Minimum Wage-Fixing (1970)
72
Article 3, Minimum Wage-Fixing Convention; article II (3) Minimum Wage-Fixing Recommendation
73
ZimStat, “Poverty Analysis: Summary of International Labour Organisation (ILO) position on
Poverty Datum Line in relation to wages and salaries” (2013)

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Secondly, the human factor must be balanced against the business, economic and social
factors like enterprise productivity, economic development and the need to maintain a
high level of employment. Thirdly, is reference to prevailing “national practice and
conditions,” in particular to wage levels achieved in sectors where there is effective
74
collective bargaining and where workers are adequately organized.

Whilst the above shows that the “fair and reasonable wage” standard requires a balancing
of factors, human and economic and social, the human factor takes primacy because of
the overall purpose of avoiding poverty and that the worker lives a decent life worth of a
human being.

This was aptly captured in by Higgins J, in interpreting the meaning of the term “fair and
reasonable wage” in an Australian statute, which made granting of discounted tariffs
75
subject to payment of “fair and reasonable wages. He held that the “first and dominant
factor” in ascertaining a “fair and reasonable” wage for an unskilled employee are the
“normal needs of the average employee, regarded as a human being living in a civilized
community.” A wage cannot be regarded as fair and reasonable –

if it does not carry a wage sufficient to insure the workman food,

shelter, clothing, frugal comfort, provision for evil days, etc as well as
76
reward for the special skill of an artisan if he is one.

The standard is objective and not dependant on the profitability of the business per se:

… If the profits are nil, the fair and reasonable remuneration must be
paid; and if the profits are 100 per cent, it must be paid. There is far
more ground for the view that, under this section, the fair and
reasonable remuneration has to be paid before profits are ascertained
– that it stands on the same level as the cost of the raw material of the
manufacture.

The above interpretation means that s 65 (1) of the Constitution has now set a general
standard of remuneration, which for the lowest paid employees means a living wage. But
which like all general rules, is subject to excerptions in appropriate circumstances.

Employees still have the onus to establish a prima facie case for what they consider to be
“a fair and reasonable wage.” For the lowest paid employees this may be by reference to
the PDL levels; cost of living and inflation; to past practice of the employer or industry;
comparative sectoral, industrial and national wage increments and levels; the distribution

74
Article 3 of the ILO Recommendation No. 30: Minimum Wage – Fixing Machinery as read with ILO
Convention No. 26: Minimum Wage-Fixing Machinery
75
Ex Parte H.V. Mckay 1907 at p 4
76
Ibid., at 4

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77
of the pay-roll between senior management and lower-paid employees; and the
standard of living of other groups in society. A useful reference point is the practice of
the State, which is the largest employer in the country. For instance in 2014 wage
negotiations resulted in a 26% increment to give a minimum wage of $375-00 a month,
set at a level of three quarters of a PDL of $505.

Where workers have established a prima facie case, the onus shifts to the employer to
give its defence, including what it considers fair and reasonable.

Because the right to a fair wage is now an enshrined fundamental constitutional right of
employees, the burden on the employer who seeks to pay a minimum wage which is less
than a living wage, is a heavy and onerous one. If the employer is pleading a threat of
insolvency, un-sustainability, or incapacity to pay, then it must make full disclosure and
provide evidence to sustain that defence. Disclosure may require availing things like
financial statements, pay-roll documents; benefits to senior management; and
performance projections. Evidence may be led from individual employers or an agreed
representative sample of employers in the industry with sufficient measures taken to
safeguard confidentiality of information provided as is normally done in applications for
exemptions to pay National Employment Council minimum wages.

Sections 75 and 76 of the Labour Act on the duty of full financial disclosure where a
party pleads incapacity to pay during collective bargaining is a useful but not mandatory
reference point. In the above-cited High Court precedents, the court only reversed the
awards as grossly unreasonable after employers had provided concrete evidence on their
financial position, including the disproportionate effect of the increments on the overall
finances of the business. Where an employer fails to provide such evidence, it risks
having an adverse inference being drawn against it that it can pay the prima facie
established wage, as was done in City of Harare v Harare Municipal Workers Union,
supra.

Thus in determining “a fair and reasonable wage” there is a decided bias towards the
needs of the worker and his or her family to live a poverty-free life with the PDL a
crucial reference point, but within the context of prevailing “national practice and
conditions” and other relevant economic factors, including the capacity of the employer
to pay and the extra reward for a skilled worker.

This should guide collective bargaining parties, arbitrators and courts, that the essential
guideline is not the rate of inflation, but increments that progressively move the lowest
paid minimum wages to a PDL-linked living wage for the lowest paid employees.

77
See for surveys of senior management salaries and benefits in Gwisai et all (2014), supra at 16-17

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In current conditions where most employers are paying net remuneration of less than
50% of the PDL, this will mean minimum wage increments that are significantly above
the prevailing inflation rates. Given the high levels of unemployment in Zimbabwe and
the meager earnings of the informal sector, the earnings of the formally employed partner
remain the biggest contributor to the family income. The argument that PDL calculations
assume two adult earners is therefore of little relevance. The same applies to the
argument that s 74 (4) of the Labour Act requires amendment of collective bargaining
agreements where there have been changed circumstances. The enactment of the right to
“a fair and reasonable wage” as a basic human right amounts to such circumstances for
now, as long as wages remain considerably below PDL levels.
A survey of negotiated collective bargaining agreements in most industries in the period
post-dollarisation, 2009 reveals cummulative wage increments well above the applicable
inflation rates. The same applies to the 2014 public sector 26% salary increments by the
State.
78
Several arbitration awards in 2014 - 2015 have taken a similar approach, correctly in
our view, but await testing before the Constitutional Court as a number have been
challenged.

Political economy of wages

In conclusion the enshrinement of the right to “fair and reasonable wage” is an important
reform of bourgeois labour law. However, it is the not the ideal end. It does not free
workers from the exploitation which is inherent in the wages system as argued by
classical Marxist theories.

Engels argues that wages do not express a proportionate share of the wealth or surplus
value created by workers in the process of production, but are payment for the cost of
79
labour power as determined by the labour market. But in the labour market as also
recognized by HIGGINS J in Ex Parte H.V. McKay, supra, the contest between labour
and capital is an unequal one because the former is always under “the pressure for bread.”

Or as Engels puts it, “the workman has no fair start. He is fearfully handicapped by
hunger.” With wages at most being an amount equivalent to the average human needs of
a worker and their family and not the surplus value created, for Engels the result is “that
the produce of the labour of those who work, gets unavoidably accumulated in the hands

78
Award in the Breweries and Distillers Industry (2014) – 6%; Award in the Soft Drinks Industry –
10% (2014); Award in the Millers Industry – 5% (2014).
79
“Now what does political economy call a fair day’s wages and a fair day’s work? Simply the rate of
wages and the length and intensity of a day’s work which are determined by competition of employer and
employed in the open market. And what are they, when thus determined? …. A fair day’s wages, under
normal conditions, is the sum required to procure to the labourer the means of existence necessary,
according to the standard of life in his station and country, to keep himself in working order and to
propagate his race. The actual rate of wages, with the fluctuations of trade, may be sometimes below this
rate; but, under fair conditions that rate ought to be the average of all oscillations - F Engels F “A Fair
Day’s Wages for a Fair Day’s Work,” The Labour Standard 7 May 1881 in Inqaba ya Basebenzi 2 (Aug-
Oct 1983) 7

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of those that do not work, and becomes in their hands the most powerful means to enslave
the very men who produced it.”

It is these unequal and exploitative relations of production reflected in the wages system
that lay the foundations for an equally unjust, unequal and oppressive social
superstructure of society at large in politics, law, culture, gender relations and the
intellectual spheres. Unjust against the majority that labours and in favour of a tiny
minority that does not work but controls the means of livelihood.

Working class emancipation can only occur when the working class overthrows the
wages-system that lies at the heart of capitalism and takes political control of society in a
world-wide socialist revolution.

CONCLUSION
In the above analysis we have endeavored to demonstrate that s 65 (1) is the pivot of the
labour rights entrenched under the 2013 Constitution. It has the potential to provide the basis
for a dramatic overhaul of labour jurisprudence in the country by relegation of common law to the
periphery as a source of labour law and for the incorporation of advances made by the working
class internationally.

The need to uphold and promote these rights must of essence push further into the back-
ground the previous eminent importance of common law as a source of labour law, given
its hostility to a normative social-justice based labour framework. GUBBAY CJ aptly
80
referred to this in Delta Corporation v Gwashu wherein he took a strict approach
from any deviations from provisions of registered employment codes, holding:

… departures from these codes only serve to undermine the labour

standards agreed by employees and employers and risk reviving the
old master and servant laws of the common law. As the common law
was tilted in favour of the employer, continued reliance thereon in
labour matters is, in my view, retrogressive.

Grogan summarises well the potential implication of the constitutionalisation of the right
81
to fair labour standards in the following salutary words with which we end this essay:
The general guarantee of fair labour practices has far-reaching effects on the civil
courts’ approach to the interpretation of the rights of parties to employment contracts. …
The entrenchment of labour rights in general terms raises the prospect of a constitutional
jurisprudence being developed by the civil courts and the Constitutional Court that may
have far-reaching effect on the way the contract of employment and the employment

80
S-96-00
81
J Grogan op cite at 6

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relationship are approached in future. This could lead to a cross-fertilisation of the

principles of labour law, the common law and public law.