LAST week, I discussed the situation at Luanshya Copper Mines (LCM) where 1, 640 employees were beefing about being sent on forced leave.
This followed a decision by the mine management to place Baluba Shaft on care and maintenance in the face of the dwindled copper prices, power deficits, and depreciation of the Kwacha.
The management informed the workers that during the period when operations will remain downscaled, they will receive K900 instead of the K2, 800 monthly salaries for the least paid workers.
This did not sit well with the miners who demanded to be paid their full salaries. The workers also wanted management to maintain their full pension, besides being informed when they would resume their duties.
My discussion prompted a reaction from Mr Voece Mukabila, who is the human resources and administration manager at Zambezi Portland Cement in Ndola.
Mr Mukabila wrote: “Dear Mr Charles Simengwa, I have just been reading your article on Labour and Employment in the Thursday edition of the Times of Zambia dated 5th November, 2015 on the subject of redundancy.
You endeavoured to assist the readers with the legal position on the subject in reference to the Luanshya Copper Mines (LCM).  I wish to make two observations:
1.    You did not tell the reader the exact offence that LCM committed.  Some of us who have had no opportunity or privilege of reading the written conditions of service signed between LCM and its employees are still left in some doubts as to what provisions of the conditions of service were abrogated.
2.    Your general interpretation on the procedure of effecting a redundancy exercise still left [out] some most important elements.  The process you outlined in the article seemed to suggest that all employers are bound to follow it, and probably you relied so much on section 26B of the Employment Act, Cap 268.
You needed to inform the readers that section 26B of the Employment Act does not apply to employees with written conditions of service BUT is only applicable to employees on oral contracts (i.e. protected workers).
A careful study of the Employment Act and the content and location of section 26B is clear that section 26B falls under Part IV of the Act.  As the title of this part and section 16 unequivocally state, the provisions under Part IV apply only to oral contracts of employment.
Referring to the comments by some officials opposed to the action taken by LCM, one may be inclined to believe that the employees have a collective Agreement.  As anyone may observe, collective agreements are indeed written in nature. They are hence excluded from all the application of Part IV, including section 26B.
This interpretation of section 26B has been upheld several times by the Supreme Court for Zambia in, among others, the following judgments:
*         Barclays Bank v Zambia Union of Financial Institutions and Allied Workers (2007);
*         Chilanga Cement Plc. v Kasote Singogo (2009).
The principle repeated throughout all the judgments is stated in the Chilanga Cement case, as follows:
“S. 26 B of the Employment Act, dealing with termination of employment by way of redundancy, does not apply to written contracts. In enacting this provision, Parliament intended to safeguard the interests of employees who are employed on oral contracts of service, which by nature would not have any provision for termination by way of redundancy”.
The court went on to hold that due to the inapplicability of section 26B to the employee in question (who had written conditions of service), the only authority for the correct procedure to follow was the employee’s conditions of service.
In my understanding, only the relevant conditions of service apply to employees on the subject of ‘redundancy’. For the unionised employees, those conditions of service are laid down in the Collective Agreement.
The only way in which the provisions of section 26B may be applicable to the employees on written conditions of service will be where the clause has been imputed into a written contract by expressly stating that the section will apply or by copying and pasting its contents or implicit inclusion of section 26B or its contents into the written conditions of service.”
I would like to thank you Mr Mukabila for your insightful sharing on redundancies, and the references you made with regard to the Employment Act.
I am further delighted that you took interest to read my column and digest the issues I raised over LCM, which also affect other mining companies in Zambia.
You articulated your points well, more so that you even cited some court cases to support your argument.
I may not have had the privilege of seeing the contracts at LCM, but I would like to inform you that the workers who were sent on forced leave included senior staff on one to three-year contracts, pensionable employees, and others who are above 55 years and are currently on renewable contracts.
This, therefore, makes the applicability of your points difficult.
Apart from that, while you dwelt on the subject of oral and written contracts, and how it relates to redundancies, you did not mention what the Employment Act states in Part VII, which covers the protection of wages.
Section 45 outlines the conditions under which authorised deductions may be effected, while section 47 deals with unauthorised deductions.
It may be necessary to exploit these clauses since one of the contentious issues at LCM involved the cutting down of salaries.
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The factory accident in Pakistan in which 18 people recently died is still lingering on my mind.
At least 18 people were killed and up to 150 trapped when a factory collapsed near the eastern Pakistani city of Lahore, officials said, adding to a number of industrial disasters to hit the South Asian nation.
According to Reuters, Pakistan’s construction sector suffers from poor oversight and developers frequently flout building codes.
In September 2012, 289 people burned to death in a fire at a garment factory in the southern city of Karachi. On the same day, a fire at a shoe factory in Lahore killed 25.
To avoid such occurrences, Zambia has taken precautions by cementing the legislation on the setting up and maintenance of factories.
Below are the circumstances that may compel the Department of Occupational Health and Safety Services to commence legal action against a factory owner in the courts of law.
*Where inspectors have been intentionally obstructed in the lawful execution of their duties;
*Upon establishing that false information has been supplied willfully with the intention to deceive in a matter that gives rise to significant risk;
*Failure to comply with suspension of work or closure of a factory as instructed by the chief inspector of factories;
*Work carried out without a certificate of registration of a factory;
*Operating pressure vessels and lifting machinery without appropriate certification;
*Failure to report occupational accidents and diseases;
*Failure to comply with the recommendations of an inspector’s report that was subject to a formal warning; and
*Death resulting from the breach of the Factories Act.
What would lead to issuance of notice to close a factory or suspend works?
The chief inspector of factories has powers to close a factory or suspend work if he/she is of the opinion that any building, machine, or practice in a factory is dangerous or destructive so as to constitute a threat to the safety or health of any worker.
Next week I will discuss the written notices which must be submitted to the Department of Occupational Health and Safety Services.
Dear readers, let us keep this link open as we share matters on labour and employment.
For comments or questions: niza12001@yahoo.com