Wednesday 13th May 2020, Lusaka
PRESS STATEMENT BY THE HONOURABLE MINISTER OF LABOUR AND SOCIAL SECURITY MRS JOYCE NONDE SIMUKOKO DURING A PRESS BRIEFING HOSTED BY THE HONOURABLE MINISTER OF INFORMATION AND BROADCASTING SERVICES, CHIEF GOVERNMENT SPOKES PERSON MS DORA SILIYA ON WEDNESDAY 13TH MAY,2020 AT 14:00HRS
The employment and labour sector like many other sectors of the Zambian economy has not been spared by the negative impact of COVID-19 pandemic. Limited movements into the country has seen a reduction in business activities especially, in the tourism and hospitality industry.
The Office of the Labour Commissioner has received several complaints relating to illegal job dismissals, non-payment of salaries, and illegal sending of employees on forced leave since the outbreak of COVID-19 pandemic. I am cautioning employers engaging in such vices to start observing the requirements of the law or else the law will visit them.
My Ministry has been making consultations with social partners on how best employment and labour market relationships can be regulated amidst the COVID-19 pandemic.
On 26th March 2020, I convened a special Tripartite Consultative Labour Council meeting to look at possible strategies on how activities in the employment and labour market can be handled during this period. After discussions, the TCLC resolved that the following measures be effected: placement of employees on paid annual leave, limiting forced leave to employers in the tourism and hospitality industry and avoiding undertaking redundancy exercises.
On Thursday, 7th May, 2020 another special TCLC meeting to review these measures was convened. Following discussions with the tripartite social partners, consensus was reached and it was agreed that an additional measure be made.
This measure allows me as Minister of Labour to exercise my powers, by Statutory Instrument, to exempt any person or class of persons or any trade, industry or undertaking from any of the provisions of The Employment Code Act Number 3 of 2019. Based on this, the following forms of exemption were agreed upon:
1. To exempt all employees/ employers from the provisions of Section 36 which deals with annual leave mainly because this section does not take into account the alternative of carrying forward leave days;
2. To exempt all employees/ employers from the provisions of section 37 which deals with the calculations of annual leave benefits. This is because the annual leave benefits formula as it is reflected in the Act now, contains a fundamental error which can only be rectified when the Act is amended and that the formula in question was intended for commutation of leave days only;
3. To exempt a financially incapacitated employer from the provisions of section 48 which stipulates that “an employer shall where the employer sends an employee on forced leave, pay the employee basic pay during the period of the forced leave.”
However, the employer can only be exempted from this provision upon applying to the Office of the Labour Commissioner, by following the criteria below:
a) The employer must submit for review, the current quarterly tax returns so that the extent of reduction in turnover is compared to the last return. All amended returns done to ZRA taking into consideration projected reduction in turnover shall be checked.
b) The employer must submit for review, documentary evidence relating to the suspension or reduction of business including the effect on the turnover.
c) The employer must submit for review the current cash flow projections in order to verify the cash stress or financial constraints on companies.
d) The employer must submit for review the last audited financial statements in order to check the profitability and any reserves from previous years.
e) The employer must submit for review the staff payroll for purposes of comparing the staff costs with the current projected income;
4. To exempt an employer from complying with the redundancy notice period set out in section 55 (2), where the employer proves that is faced with financial incapacity to the Labour Commissioner and demonstrates the extreme urgency of undertaking the redundancy exercise immediately in line with the criteria in Resolution number (3) above. The employer may be granted a waiver relating to the notice period provided that the employees are paid in lieu of notice;
5. Gratuity payment as provided for under sections 54 (1) (b) and (c) and 73 shall not be paid to Expatriates, Domestic sector, Agricultural sector, Apprentice and Senior Management employees. However, payments will be done if the contracts of employment contain a provision for gratuity; and
6. To exempt Expatriates and Management employees from the provisions of Section 75 which deals with overtime.
In line with these provisions, I would like to inform the nation that the Statutory Instrument which I signed on Friday 8th May 2020 to bring into effect the resolutions of the TCLC has been gazetted.
May I conclude by assuring the nation that Government will continue monitoring developments on the labour market during this crisis period so as to maintain harmony and productivity in this important sector of the economy. The Ministry will also ensure that the provisions of the New Employment Code Act no. 3 of 2019 and other employment regulations are observed during the COVID-19 pandemic.
I thank you.
Joyce Nonde Simukoko M.P
MINISTER OF LABOUR AND SOCIAL SECURITY