EMPLOYMENT CODE ACT

to regulate the employment of persons; prohibit discrimination at an undertaking; constitute the Skills and Labour Advisory Committees and provide for their functions; provide for the engagement of persons on contracts of employment and provide for the form and enforcement of the contracts of employment; provide for employment entitlements and other benefits; provide for the protection of wages of employees; provide for the registration of employment agencies; regulate the employment of children and young persons; provide for the welfare of employees at an undertaking; provide for employment policies, procedures and codes in an undertaking; repeal and replace the Employment Act, 1965, the Employment (Special Provisions) Act, 1966, the Employment of Young Persons and Children Act, 1933 and the Minimum Wages and Conditions of Employment Act, 1982; and provide for matters connected with, or incidental to, the foregoing.

[10th May, 2019]

Act 3 of 2019,

SI 29 of 2019.

PART I
PRELIMINARY PROVISIONS

1. Short title

This Act may be cited as the Employment Code Act.

2. Application

(1) This Act does not apply to—

(a) persons in the Defence Force, except locally engaged civilian employees;

(b) members of the Zambia Police Service;

(d) persons in the Zambia Security Intelligence Service.

(2) The Minister may, after consultation with the Tripartite Consultative Labour Council, by statutory instrument, exempt any person or class of persons or any trade, industry or undertaking from any of the provisions of this Act.

3. Interpretation

In this Act, unless the context otherwise requires—

"AIDS" has the meaning assigned to the acronym under the National HIV/AIDS/STI/TB Council Act 2002;

"authorised officer" means the Labour Commissioner or a labour officer;

"basic pay" means the standard rate of pay before additional payments such as allowances and bonuses for a period not exceeding one month;

"casual employee" means a person employed to perform casual work and whose terms of engagement provide for payment at an hourly rate, including casual loading, payable at the end of each day and is not engaged for a period exceeding 24 hours at a time;

"casual loading" means the additional hourly pay at a rate of 25 per cent of an hourly rate;

"casual work" means work that—

(a) is not permanent in nature; or

(b) is capable of being carried out in a period of less than six months;

"child" has the meaning assigned to the word in the Constitution;

"citizen" has the meaning assigned to the word in the Constitution;

"court" means a court of competent jurisdiction;

"collective agreement" has the meaning assigned to the words under the Industrial and Labour Relations Act;

"contract of employment" means an agreement establishing an employment relationship between an employer and an employee, whether express or implied, and if express, whether oral or in writing;

"employee" means a person who, in return for wages, or commission, enters into a contract of employment and includes a casual employee and a person employed under a contract of apprenticeship made in accordance with the Apprenticeship Act, but does not include an independent contractor or a person engaged to perform piece work;

"employer" means a person who, in return for service enters into a contract of employment and includes an agent, representative, foreman or manager of the person, who is placed in authority over the person employed;

"employment agency" means a person providing market services including—

(a) matching offers of, and applications for, employment without the employment agency becoming a party to the employment relationship which may arise;

(b) employing persons with a view to making them available to a third party, who may be a natural or legal person that assigns their tasks and supervises the execution of these tasks; or

(c) services relating to job seeking as may be prescribed by the Minister, in consultation with the Tripartite Consultative Labour Council, in accordance with the Industrial and Labour Relations Act;

"employment relationship" means a relationship between employer and employee where work is carried out in accordance with instructions and under the control of an employer and may include—

(a) the integration of the employee in the organisation of the undertaking where the work is—

(i) performed solely or mainly for the benefit of an employer; and

(ii) carried out personally by the employee; or

(b) work—

(i) carried out within specific working hours or at an undertaking specified by the employer;

(ii) which is of a particular duration and has a certain permanency;

(iii) that requires the employee’s availability;

(iv) which requires the provision of tools, materials and machinery by the employer; and

(v) that is remunerated and constitutes the employee’s sole or principal source of income;

"flexibalisation" means an employment practice characterised by different aspects of human resource management, such as—

(a) pay flexibility, which is focused on performance related pay and pay bargaining;

(b) contractual flexibility, which includes non-permanent contracts of service, sub-contracting and outsourcing;

(d) working hours flexibility, which focuses on part-time working, job sharing and flexihours of work;

"full pay" means basic pay, allowances and the cash equivalent of any allowances in kind applicable for a period not exceeding one month, but does not include payments in respect of any bonus;

"full-time" means employment under a contract of employment that requires work to be done for the maximum hours per week, not exceeding a total of 48 hours, stipulated by an employer;

"gratuity" means a payment made to an employee in respect of a person’s service on the expiry of a long-term contract of employment based on basic pay earnings that have accrued to the employee during the term of service;

"immediate family" means a spouse, child, parent, guardian, sibling, grandchild, grandparent or dependant of an employee;

"HIV" has the meaning assigned to the acronym in the National HIV/AIDS/STI/TB Council Act, 2002;

"hourly rate" means the applicable rate of pay per hour as stipulated by an employer for regular employment, except that such rate shall not be less than a rate prescribed under section 75 on minimum wages;

"justifiable reason" includes—

(a) seniority, experience or length of service;

(b) merit;

(d) other criteria of a similar nature;

"Labour Advisory Committee" means the Committee constituted under section 99;

"Labour Commissioner" means the person appointed as Labour Commissioner under section 9;

"labour inspector" means a person appointed as a labour inspector under section 123;

"labour officer" means a person appointed as labour officer under section 9;

"long-term contract" means a contract of service for—

(a) a period exceeding 12 months, renewable for a further term; or

(b) the performance of a specific task or project to be undertaken over a specified period of time, and whose termination is fixed in advance by both parties;

"management" has the meaning assigned to the word under the Industrial and Labour Relations Act;

"night" means the period between 18:00 hours in the evening and 06:00 hours in the morning;

"part-time" means employment under a contract of employment that stipulates fewer working hours per week than those stipulated for full-time by an employer;

"permanent contract" means a contract of employment, if not terminated in accordance with this Act, expires on the employee’s attainment of the retirement age specified under a written law;

"permit" means an employment agency permit issued under section 109;

"permit holder" means a person issued with a permit under section 109;

"permissible reason" means—

(a) engagement under a contract of apprenticeship;

(b) engagement for a probationary period;

(d) seasonal employment;

(e) flexibilisation;

(f) employment due to a temporary increase in the volumes of work which is expected to last for less than 12 months;

(g) employment of a person who is not a citizen and is to work, subject to a work permit for a defined period;

(h) the position of the employee is funded by an external source for a limited period;

(i) the employee is retained by the employer past the normal or agreed retirement age;

(j) the terms of employment of the employee are regulated by a written law or public policy; or

(k) engagement of a management employee, with the consent of that employee;

"person" has the meaning assigned to the word in the Constitution;

"piece work" means any work the pay for which is estimated by the amount of work performed irrespective of the time occupied in its performance;

"public holiday" means a day declared as a public holiday in accordance with the Public Holidays Act;

"public officer" has the meaning assigned to the words in the Constitution;

"redundancy" means the termination of a contract of employment in accordance with section 55;

"redundancy payment" means the sum that an employee, whose employment has been terminated due to redundancy, is entitled to receive from the employer and any applicable third party scheme;

"regular" means employment of an employee on an on-going basis under a permanent or long-term contract;

"repealed Acts" means the Employment Act, 1965, the Employment (Special Provisions) Act, 1966, the Employment of Young Persons and Children Act, 1933, and the Minimum Wages and Conditions of Employment Act, 1982;

"seasonal employment" means employment under contract of employment where the timing and duration of the contract is influenced by seasonal factors including climate, agricultural or business peak cycle;

"severance pay" means the wages and benefits paid to an employee whose contract of employment is terminated in accordance with section 54;

"short-term" means a period not exceeding 12 months;

"Skills Advisory Committee" means the Committee constituted under section 63;

"temporary employment" means employment under a contract of employment where a person is engaged to do relief work in the absence of a substantive employee;

"third party scheme" includes any arrangement whereby an agreement between an employer and a third party, or operation of law, a sum due to an employee becomes payable on the occurrence of a determined event;

"trade union" has the meaning assigned to the words under the Industrial and Labour Relations Act;

"Tripartite Consultative Labour Council" means the Tripartite Consultative Labour Council established under the Industrial and Labour Relations Act;

"undertaking" means a company, firm, trade, business, an industry or any other kind of enterprise, a statutory body or corporation or a local or public authority or a branch or division of the local or public authority; and

"wage" means the pay, remuneration or earnings, however designated or calculated, capable of being expressed in terms of money and fixed by a contract of employment which are payable by an employer to an employee for work done or to be done or for services rendered or to be rendered.

4. Compliance with other laws

Subject to the other provisions of this Act, this Act shall not—

(a) relieve an employer or employee of any duty or liability imposed on the employer or employee by any other written law; or

(b) limit any powers conferred on a public officer by any written law.

5. Non-discrimination at undertaking

(1) An employer shall promote equal opportunity in employment and eliminate discrimination in an undertaking.

(2) An employer shall not, in any employment policy or practice discriminate, directly or indirectly, against an employee or a prospective employee—

(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.

(3) For the purposes of this Act, it is not discrimination to—

(a) take affirmative action measures consistent with the promotion of equality or the elimination of discrimination in an undertaking;

(b) distinguish, exclude or prefer any person on the basis of an inherent requirement of a job;

(d) restrict access to limited categories of employment where it is necessary in the interest of State security.

(4) An employer shall pay an employee equal wages for work of equal value.

(5) A person who contravenes this section commits an offence and is liable, on conviction, to a fine not exceeding two hundred thousand penalty units.

6. Protection of persons with disabilities

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.

7. Prohibition of casualisation

(1) An employer shall not engage in casualisation.

(2) An employer who contravenes sub-section (1), commits an offence and is liable, on conviction, to a fine not exceeding four hundred thousand penalty units.

(3) In addition to the penalty under sub-section (2), an employer shall pay an employee any accrued benefits attaching to the employment status of the employee as determined by an authorised officer.

(4) An authorised officer shall, in determining the employment status of, and accrued benefits due to, an employee under sub-section (3), consider the following—

(a) the number of hours worked each week by that employee;

(b) whether a roster system is published in advance;

(d) whether a mutual expectation of continuity of employment exists;

(e) whether the employer requires notice before that employee is absent or on leave;

(f) whether the employee has a reasonable expectation that work will be available;

(g) whether that employee works according to consistent starting and finishing times; and

(h) any other relevant facts necessary to determine the status of the employment relationship.

(5) Where an employer fails to pay the accrued benefits due to an employee as determined by the authorised officer, the accrued benefits shall be a debt due to the employee and shall summarily be recoverable as a civil debt.

(6) In this section—

"casualisation" means an employment practice where an employer, without permissible reason, engages or re-engages an employee on a temporary or fixed basis, to perform work which is permanent in nature—

(a) that results, without justifiable reason, in the different treatment of an employee compared to a full-time or other category of employee of the employer; or

(b) which has the effect of enabling the employer to avoid any obligations, or depriving an employee of any rights under this Act;

"permanent in nature" means—

(a) work that is not short-term, has regular or systematic hours of work, and has an expectation of continuing; or

(b) a position in an undertaking that is necessary for the continued or sustainable operation of the undertaking or is core to the objectives of the undertaking.

8. Prohibition of forced labour

(1) A person shall not engage or subject another person to perform forced labour.

(2) A person who contravenes sub-section (1) commits an offence and is liable, on conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a term not exceeding two years, or to both.

PART II
THE LABOUR COMMISSIONER

9. Labour Commissioner and other staff

(1) The President shall, on the recommendation of the Civil Service Commission, appoint as a public officer, the Labour Commissioner, who is responsible for the administration of the provisions of this Act.

(2) The Civil Service Commission shall appoint assistant labour commissioners, labour officers and other officers that are necessary for the administration of this Act.

(3) The Labour Commissioner may, subject to this Act, and the general or special directions of the Minister, delegate any of the Labour Commissioner’s functions to a labour officer, labour inspector or any person as may be necessary for the administration of this Act.

10. Powers of Labour Commissioner

(1) The Labour Commissioner may—

(a) enter freely at any reasonable time, whether by day or by night to inspect, any premises or conveyance where the Labour Commissioner reasonably believes persons are employed;

(b) enter by day any premises in order to carry out any examination, test or inquiry that the Labour Commissioner considers necessary in order to determine if the provisions of this Act are being complied with;

(c) interview, whether alone or in the presence of a witness, an employer or employee on any matter concerning the application of a provision of this Act;

(d) question a person who the Labour Commissioner considers has useful information, except that the person shall not be required to answer any question that may tend to prejudice or incriminate that person;

(e) require the production for examination of any book, register, account or other document, the keeping of which is prescribed by this Act;

(f) make copies of documents or to take extracts of documents that the Labour Commissioner may consider necessary;

(g) remove a book, register, account or other document that the Labour Commissioner may consider necessary; and

(h) enforce the posting of notices in a place and manner that may be prescribed.

(2) The power under sub-section (1)(a) shall, in relation to a private dwelling house or any land or building occupied as a private dwelling, be exercised during the day with a warrant.

(3) Where the Labour Commissioner removes a book, register, account or other document under sub-section (1)(g), the Labour Commissioner shall give a receipt in respect of the book, register, account or other document to the employer or the employer’s representative and return the book, register, account or other document as soon as is practicable after achieving the purpose for which it was removed.

(4) The Labour Commissioner shall, on the occasion of an inspection or visit, notify the employer or the employer’s representative of the Labour Commissioner’s presence, unless the Labour Commissioner considers that the notification may be prejudicial to the performance of the Labour Commissioner’s duties.

(5) Where the Labour Commissioner has reason to believe that a provision of this Act is likely to be or has been contravened, the Labour Commissioner may—

(a) issue a written notice specifying the contravention and the preventative or remedial measure to be undertaken within a specified period; and

(b) if necessary, order suspension of further work, except that an employee shall be on full pay, until the preventive or remedial measure referred to in paragraph (a) is undertaken and approved by the Labour Commissioner.

(6) An employer who is directed to prevent or rectify a contravention under sub-section (5) may—

(a) where the period within which the preventative or remedial measure is to be carried out is specified, appeal to the Minister against the direction, within seven days before the expiry of the period specified in the notice; or

(b) where no period is specified, appeal to the Minister no later than seven days from the receipt of the direction.

(7) The Minister shall, determine an appeal lodged under sub-section (6) within 30 days.

(8) An employer who fails to comply with a directive of the Labour Commissioner under sub-section (5) commits an offence and is liable, on conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a term not exceeding two years, or to both.

(9) An employer who is aggrieved with the decision of the Minister under this section may, appeal to the High Court.

(10) The powers conferred or imposed on the Labour Commissioner in this section are in addition to any other powers conferred or imposed on the Labour Commissioner by or under any other written law.

(11) The powers conferred on the Labour Commissioner under this section may be exercised by a labour officer or labour inspector.

11. Certificate of appointment

(1) The Labour Commissioner shall provide a labour officer with a certificate of appointment in the prescribed form, which is prima facie evidence of the labour officer’s appointment.

(2) A labour officer shall, in performing any function under this Act—

(a) be in possession of the certificate of appointment referred to in sub-section (1); and

(b) show the certificate of appointment to any person who requests to see the certificate or is subject to an inspection under this Act.

(3) A person who forges or unlawfully alters a certificate of appointment referred to in sub-section (1), commits an offence and is liable, on conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a term not exceeding two years, or to both.

12. Power to require returns

(1) Subject to the Statistics Act, 2018, the Labour Commissioner may require an employer or employment agency to collect statistics that the Labour Commissioner may reasonably consider necessary in respect of any employees or persons engaged through an employment agency.

(2) The Labour Commissioner may require an employer or employment agency to submit returns, in the prescribed manner and form, based on statistics, and at intervals that the Labour Commissioner may consider necessary.

(3) A person who fails to comply with a requirement of the Labour Commissioner under this section commits an offence and is liable, on conviction, to a fine not exceeding two hundred thousand penalty units.

13. Duties of public officer

(1) A public officer who discharges a duty of a public nature under the provisions of this Act shall not have any pecuniary interest, directly or indirectly, in any undertaking under that public officer’s supervision.

(2) A person who, in the exercise of the powers or in the performance of the person’s duties under this Act, acquires information relating to the financial affairs, or the secret processes, or the plant or equipment of a person, firm or business, shall not, except for the purposes of legal proceedings under this Act, disclose that information to another person.

(3) The duty not to disclose confidential information under sub-section (2), does not apply where the information is required by—

(a) a court of law or any person who, by law, is vested with the power to compel the disclosure of the information; or

(b) the Labour Commissioner or any person acting for the purposes of performing the Labour Commissioner’s or person’s functions under this Act.

(4) A person who contravenes this section commits an offence and is liable, on conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a term not exceeding two years, or to both.

PART III
EMPLOYMENT RELATIONSHIP

Division 3.1
Contract of Employment

14. Prioritisation of employment for citizen

Subject to the other provisions of this Act relating to the employment of an expatriate, an employer shall, in filling an employment vacancy, employ a citizen except where a citizen does not possess the skills required for that job or a citizen does not apply for that job.

15. Governing law of contract of employment

A person shall not be employed under a contract of employment, except in accordance with the provisions of this Act.

16. Minimum contractual age

(1) Subject to sub-section (3), a person shall not, except under prescribed conditions, employ or cause to be employed, a person under the age of 15 years.

(2) A person who contravenes sub-section (1), commits an offence and is liable, on conviction, to a fine not exceeding five hundred thousand penalty units or to imprisonment for a term not exceeding five years, or to both.

This section of the article is only available for our subscribers. Please click here to subscribe to a subscription plan to view this part of the article.

{{{_source.title}}} {{#_source.showPrice}} {{{_source.displayPrice}}} {{/_source.showPrice}}