Industrial and labour

relations law
SESSION NINE
STATUTORY RIGHTS
 Logical rights based on laws

• Statutory rights are logical rights based on laws.

• Nearly all workers regardless of the number of hours they
work have certain legal rights.
• All have recourse to the law to ensure that their statutory
rights are observed and they receive compensation or
some other form of redress when they are not.
 Nature of statutory rights

• The common law of contract established that the parties to

a contract exercised free will and because they had
capacity, they could determine their own rules under the
contract.
• However, this freedom of contract was based on the
exchange of agents who were equally disposed in terms of
bargaining power.
 There were no statutory rights during
industrial revolution

• Human experience proved, especially during the industrial

revolution that the employment relationship bore no such
hallmarks as free agents.
• This marked the birth of statutory rights which are
essentially a state intervention into a purely private
relationship.
 Statutory law creates proprietary
interest

• Therefore, statutory law creates a proprietary interest in

the job of the employee by guaranteeing rights that were
on available at common law. E.g. unfair dismissal laws. The
nature and scope of these rights are subject to change with
time and evolve as social norms change.
• Source of Statutory rights
• Constitutional guarantees: in the pyramid of rights, certain
labour rights are protected by the supreme law of the land,
the constitution.
 There are statutory rights given by law in Zambia.

• These include the following:

• Guaranteed payments – the law protects wages and
salaries of employees against employer schemes designed
to deprive them of their hard earned money.
• The law regulates the dates and times within which
payments should be made and when due. In some cases,
the law establishes minimum wages and payments that the
employers are required to comply with.
 Statutory rights are not immutable

• Statutory rights are not immutable. They may change with

the regularity that social norms evolve. What was
acceptable yesterday may be considered a violation of the
law tomorrow.
• A student of labour law should therefore remain alive to
environmental changes and take note of emerging trends
and assess their impact on labour market regulation.
 Freedom of assembly

• These include the protection of the right to freedom of

assembly and association (Art 2), and the protection
against forced labour.
• Constitutional rights cannot be abrogated except in few
instances where the state is permitted to derogate from
them in pursuance of legitimate state interests such as
public safety, defence and security.
 Legislative enactments/positive law

• Legislative enactments/positive law: laws that are passed

by parliament create certain safeguards for employees
which employers are required to comply with.
• Examples of this are the employment code Act and the
industrial and labour relations act.
• Others are the Factories Act, the Minimum Wages and
Conditions of Employment (General) Order 2011 and the
Income Tax Act Cap 232 of the Laws of Zambia.
 Non-discrimination at undertaking

• 5. (1) An employer shall promote equal opportunity in

employment and eliminate discrimination in an undertaking.
• (a) on grounds of colour, nationality, tribe or place of origin,
language, race, social origin, religion, belief, conscience
political or other opinion, sex, gender, pregnancy, marital
status, ethnicity, family responsibility, disability, status,
health, culture or economic grounds; and
• (b) in respect of recruitment, training, promotion, terms and
conditions of employment, termination of employment or
other matters arising out of the employment.
 Persons with disabilities/Casualisation

• Protection of persons with disabilities - 6. An employer shall

comply with the provisions of the Persons with Disabilities
Act, 2012, and the Mental Health Act, 2019 in relation to
the employment of a person with a disability.
• Prohibition of Casualisation - 7. (1) An employer shall not
engage in casualisation.
 Forced labour

• Prohibition of forced labour - 8. (1) A person shall not

engage or subject another person to perform forced labour.
• Powers of Labour Commissioner – May enter premises,
interview or question any person on useful labour
information amongst other powers
• May require an employer or employment agency to collect
statistics including submitting returns
Contract not binding on family/probation

• Contract of employment not binding on family of employee -

contract of employment shall not bind the family of an employee
except where it makes a separate provision for a family member.
• Probation - An employee may be employed for a probationary
period, not exceeding three months, for the purpose of
determining that employee’s suitability for appointment.
• An employer shall not transfer any rights arising under a contract
of employment to another employer without the written consent
of the employee amongst other requirements
 Sick leave, medical discharge/
Compassionate leave

• Sick leave and medical discharge - An employee who is unable

to perform that employee’s normal duties due to illness or
injury not occasioned by the employee’s default shall notify the
employer of the illness or injury and proceed on sick leave on
production of a medical certificate from a health practitioner.
• Compassionate leave - An employee is entitled to
compassionate leave with full pay for a period of at least
twelve days in a calendar year where that employee has—
• (a) lost a spouse, parent, child or dependant; or
• (b) a justifiable compassionate ground.
 Family responsibility leave/ Maternity
leave

• Family responsibility leave - An employee who has worked

for a period of six months or more, shall be granted leave of
absence with pay for a period not exceeding seven days in a
calendar year to enable the employee to nurse a sick
spouse, child or dependant
• Employee to produce medical certificate showing that
special nursing or attention is required
• Maternity leave – female employees entitled to 14 weeks
leave with full pay
• Production of a medical certificate needed
 International law

• International law: international law is not directly applicable

to Zambia. Labour rights that are established under
international law through treaties and agreements cannot
confer the protections that they espouse until they are
domesticated by parliament.
• This statement was pronounced upon by the court in the
Zambia Sugar Plc v Fellow Nanzaluka (Appeal No. 82 of
2001).
 Minimum wages

• Minimum wages: An example of this is the minimum

wages and conditions of employment Act, empowers the
minister of labour to determine the minimum that should
be payable to the vulnerable employees who are not
represented or cannot favourably negotiate on their own.
 Maternity rights

• Maternity rights – the employment code Act provides statutory

protection against dismissal or disadvantage on grounds related
to pregnancy.
• It creates offences against employers who impose penalties or
disadvantage on women on grounds related to pregnancy.
• A female employee is entitled as a right to be granted three and
half months paid maternity leave provided she can produce a
medical certificate signed by a medical practitioner or medical
institution.
• She can have another two weeks added to her leave if she has
multiple births.
 Should have completed two years

• The medical institution need not be designated by the

employer.
• However, maternity leave is only granted to a female
employee who has completed two years’ continuous
service with the employer from the date of first
engagement or since the last maternity leave.
 Protection from dismissal

• Protection from dismissal – employees enjoy protection

from dismissal without cause of notice.
• Under common law, employers had discretion to terminate
the employment relationship at will.
• The law also enacts a second layer of protection which
inhibits termination of employment on grounds which
statutes prohibits such as discrimination based on age,
creed, political affiliation or tribal extraction.
 No forced labour

• Other protections include the constitutional guarantees

against forced labour and the prohibition of employment of
young persons and children provided under the
Employment Code Act No. 3 of 2019 and the
Apprenticeship Act Cap 275 which regulates the
employment of young persons for vocational purposes.
 Other rights

• Other rights are:

1. The right to written statement of terms of employment
within two months of starting work
2. The right to an itemised pay slip. This applies from the day
the employee starts work
3. The right to paid holiday. Full time employees are entitled
to at least 24 days a year.
Part time employees are entitled to a pro-rata amount.
 Time off for Trade Union activities

[Link] right to time off for trade union duties.

• The time off does not necessarily have to be paid.
Employees also have the right to be accompanied by a TU
representative disciplinary or grievance hearings. If an
employee takes part in official industrial action and is
dismissed, it will be unfair dismissal.
[Link] right to time off for study or training
6. The right not to be discriminated against
7. The right to carry on working until the retirement age
 Notice of dismissal needed

8. The right to notice of dismissal provided the employee has

worked for the employer for one calendar month
9. The right to written reasons for dismissal from the
employer provided the employee has worked for one year.
10. Women who are pregnant or on maternity leave are
entitled to written reasons without having to have worked for
any particular length of time.
 Right to claim compensation

11. Right to claim compensation if unfairly dismissed.

• In most cases for one to claim this compensation, they
should have worked for the employer for at least twelve
months.
• You cannot claim unfair dismissal if you have not worked for
12 months continuously.
12. Right to claim redundancy pay. In most cases, one has to
have worked for at least two years to claim redundancy pay
 Whistle blowing

13. The right not to suffer detriment or dismissal for ‘’whistle-

blowing” on matters of public concern (malpractice) at the work
place. Whistle blowing includes disclosing information regarding:
• A criminal offence
• A failure to comply with a legal obligation
• A miscarriage of justice
• A health and safety issue
• Damage to the environment
• Attempt to cover up any of the above.