| dc.description.abstract | 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 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 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:
“Every person has the right to fair and safe labour practices and standards and to be paid a fair and reasonable wage.”
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 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. | en_US |
