Collective Bargaining Agreement between the Agricultural Industry and the General Agriculture and Plantation Workers’ Union of Zimbabwe (GAPWUZ) - November 2012

Collective Bargaining Agreement: Agricultural Industry

IT is hereby notified that the Collective Bargaining Agreement set out in the Schedule which replaces the agreement in Statutory Instrument 323 of 1993 has been registered in terms of section 79 of the Labour Act [Chapter 28:01]:—

SCHEDULE

NATIONAL EMPLOYEMENT COUNCIL FOR THE AGRICULTURAL INDUSTRY

COLLECTIVE BARGAINING AGREEMENT: AGRICULTURAL INDUSTRY

In accordance with the provisions of the Labour Act [Chapter 28:01], this agreement is made and entered into between Zimbabwe Agriculture Employers’ Organisation (ZAEO), Zimbabwe Farmers’ Union (ZFU), Zimbabwe Commercial Farmers’ Union (ZCFU), Kapenta Producers Association (KPA) and Indigenous Kapenta Producers Association (IKPA) (hereinafter referred to as “the employers” or “the employer’s organisation”), of the one part, and the General Agriculture and Plantation Workers’ Union of Zimbabwe (GAPWUZ), Horticultural General Agriculture and Plantation Workers’ Union (HGAPWUZ), Kapenta Workers Union of Zimbabwe (KWUZ) (hereinafter referred to as “the employees” or “the trade union”), of the other part, being parties to the National Employment Council for the Agricultural Industry.

The provisions of this agreement shall replace the whole of the provisions of the agreement published in Statutory 323 of 1993.

FIRST SCHEDULE: Grading and wages.

SECOND SCHEDULE: Allowances.

THIRD SCHEDULE: Gratuities.

FOURTH SCHEDULE: Council dues form.

FIFTH SCHEDULE: Trade union dues/Stop order form.

SIXTH SCHEDULE: Trade union dues/Remittance form.

SEVENTH SCHEDULE: Code of conduct and grievance procedure.

Scope and application of agreement

1. (1) In terms of the provisions of section 82 of Labour Act [Chapter 28.01], and its subsequent amendment-

(a) all employers in agricultural industry; and

(b) all employees in the agricultural industry engaged in any occupation listed in the First Schedule; in the area of Zimbabwe:

Provided that this agreement shall not apply to—

(i) special workers; or

(ii) managerial employees; or

(iii) independent contractors, except in so far as they may be employers or employees mentioned in paragraph (b) or refer to definitions.

(2) Each provision of this agreement shall create a right or obligation, as the case may be, independently of the existence of other provisions, and no employer or employee may waive such right or obligation. Nothing herein contained, however, shall preclude an employer from granting to his or her employees a right greater than that provided for in this agreement.

(3) In the event of any provision of this agreement being inoperative, or ultra vires, the powers of the parties, or the Act, or regulations made thereunder, either before or after registration of this agreement, this shall in no way affect the remainder of the agreement which shall, in that event, constitute the agreement.

Period of operation and amendment of agreement

2. This collective bargaining agreement shall come into operation on the date of its registration in terms of section 80 of the Labour Act [Chapter 28:01], and shall remain in force until further notice.

Interpretation of terms

3. Any expressions used in this agreement, which are defined in the Labour Act [Chapter 28:01], other than those defined in this section, shall have the same meaning as in the Act; further words importing masculine gender include feminine gender, unless inconsistent with the context—

“Act” means the Labour Act [Chapter 28:01] and amendments;

“agriculture industry” means the industry in which employers and employees are associated for the commercial production of crops, including forestry, livestock, poultry, fish, and their produce, and includes the complementary processing of agricultural products on the property of the employer where such livestock or crops are produced or on the property of any other agricultural employers, also including horticulture, bee keeping-honey, crocodile farming, farm prawn, game farming, lumbering, saw milling and kapenta;

“annual shut down” means a period, not less than twelve working days during which an establishment may suspend operations for vacation leave in terms of section 16;

“continuous service” means a contract of employment that does not specify its duration or date of termination other than a contract for work of seasonal/casual or for the performance of the same specific service shall be deemed to be the contract without limit of time provided that casual workers shall be deemed or have to become an employee on a contract of employment without limit of time on the day that his or her period of engagement with a particular employer exceed a total of six weeks in any four consecutive month;

“contractor” means a person providing his or her own labour force who contracts with an employer to undertake work the rates for which have been negotiated directly between an employer and the contractor registered with a local authority for the area he or she operates in, and an employer shall not be responsible for ensuring that the provisions of this agreement are applied to the contractor’s labour force;

“contract worker” means an employee who is employed on a specific task the rates for which have been directly negotiated with the employer;

“Council” means the National Employment Council for the Agricultural Industry of Zimbabwe;

“day off’ means Sunday or that day in the week in place of Sunday on which an employee is not normally required to work;

“emergency work” means work which, due to circumstances beyond the control of the employer, must be performed immediately in order to preventharm to crops, livestock or the employees, or to near-by persons or properties;

“employee” means any person who performs work or services for another person in the Agricultural Industry for remuneration or reward on such terms and conditions as agreed upon by the parties or as provided for in the Act—

(a) in circumstances where even if the person performing the work or services supplies his or her own tools or work under flexible conditions of service, the hirer provides the substantial investment in or assumes the substantial risk of the undertaking; or

(b) in any other circumstances that more closely resemble the relationship between an employee and employer than that between an independent contractor and hirer of services;

“employer” means any person whatsoever in the agricultural industry who employs or provides for another person and remunerates or expressly or tacitly undertakes to remunerate him or her, and includes—

(a) the manager, agent or representative of such person is in charge or control of the work upon which such other person is employed; and

(b) the judicial manager of such person appointed in terms of the Companies Act [Chapter 24:03]; and

(c) the liquidator or trustee of the insolvent estate of such person, if authorised to carry on the business of such person by—

(i) the creditors; or

(ii) in the absence of any instructions given by the creditor, the Master of the High Court;

and

(d) the executor of the deceased estate of such person, if authorised to carry on the business of such person by the Master of the High Court; and

(a) the curator of such person who is a patient as defined in the Mental Health Act [Chapter 15:12] (No. 15 of 1996), if authorised to carry on the business of such person in terms of section 88 of that Act;

“fixed term contract worker” means an employee whose contract of employment is for a stipulated period specifying the date of commencement and date of termination thereof and of which no further notice to terminate the contract on due date shall be required from either part;

“grade” means a grade prescribed in the First Schedule;

“industry” means the agricultural industry as defined above;

“industrial holiday” means any day declared as a public holiday in terms of the Public Holidays and Prohibition of Business Act [Chapter 10:21];

“medical practitioner” means any person who is registered in terms of the Health Profession Act [Chapter 29:19] and Zimbabwe Traditional Medical Practitioner Act [Chapter 27:14]’,

“managerial employees means an employee who by virtue of his or her contract of employment or of his or her seniority in an organisation, may be required or permitted to hire, transfer, promote, suspend, lay off, dismiss, reward, discipline or adjudge the grievances of other employees;

“Minister” means the Minister of Public Service, Labour and Social Welfare, or any other Minister to whom the President may from time to time assign the administration of the Labour Act;

“month” means a calendar month;

“overtime” means any time worked outside the ordinary hours of work as required in terms of section 7;

“permanent worker ’ ’ means an employee, other than a seasonal worker or contract worker, who is employed on a monthly or weekly basis, having first satisfactorily completed a month probation period on a daily notice basis;

“Registrar” means the Registrar of Labour as defined in the Act;

“seasonal worker” means an employee who is employed for a period not exceeding six months in any period of twelve months;

“Secretary” means the Chief Executive Officer of National Employment Council;

“special worker” means an employee who, because of physical or mental disability, such as old age, chronic sickness or infirmity, is capable of doing only part of the work required of an able-bodied employee;

“task-work” means an amount of work which an employer can expect to be completed by an average employee during the day;

“qualifying service” in relation to vacation leave accrued by an employee, means any period of employment following the completion of the employees first year of employment with an employer;

“wage” means the earnings of an employee, but does not include any payment in respect of overtime or any bonus or other like benefit;

“working day” means any day other than a day off or an industrial holiday as stipulated in section 17(1);

“groom (class 1)” means any employee who cleans stables, assists in feeding of horses and walks horses after training;

“groom (class 2)”means an employee who feeds, harnesses and grooms horses, and supervises grooms (class 1);

“groom (class 3) means an employee who harnesses, grooms and trains horses, under supervision, and supervises grooms (class 1 and 2).

“head groom (class 4)” means an employee who grooms and drives horses, repairs harnesses, supervises grooms (class 1, 2 and 3), and who is also a horse farrier.

Administration of agreement

4.(1) The Council shall be responsible for the administration of this agreement.

(2) The Council may delegate any of its duties or powers under this agreement to any persons as it deems fit.

(3) The Council may at any time vary or revoke any decision made in terms of this agreement by itself or die executive committee or committees appointed by the Council.

(4) Every employer and employee shall give every assistance to the Council’s agents in making such investigations as the Council may deem necessary into the operation of this agreement generally, and, in particular, to ascertain whether or not the provisions thereof are being complied with.

Grading and wages

(2) An employee who, at the date of commencement of current wage agreement, is in receipt of a higher wage for his or her particular occupation than the rate prescribed in the section, shall not, by reason of this agreement, suffer any reduction in his or her wage.

(3) An employee who is required to perform work in a lower grade than that in which he or she is normally employed shall be paid the wage applicable to the grade of work which he or she normally performs.

(4) Subject to the provisions of subsection (5), an employee who is required to perform relief work in a higher grade than that in which he or she is normally employed shall be paid the wage applicable to such higher grade immediately he or she commences working in that higher grade for as long as he or she is required to work in that grade.

(6) On promotion to a higher wage, an employee shall be paid—

(a) not less than the wage he or she last received prior to his or her promotion;

(b) not less than the minimum wage prescribed for such grade; whichever is the greater.

(7) No employer shall reduce the wage of an employee for any time not worked if the employee was able and willing to work and was present at his or her place of work but the employer was unable or unwilling to furnish him or her with work:

Provided that this subsection shall not apply to any time not worked during a period of short-time working.

(8) An employee who is paid for time not worked because of conditions beyond the control of the employer, including climatic conditions and power failure to make up such time not worked out¬side of normal working hours without any entitlements to further payment:

Provided that no employee will be required to work more than eleven hours in a day as a result of being required to make up any work.

(5) Where an operation performed by an employee is not specified in the First Schedule—

(a) the employer shall provisionally place the employee in a grade; and

(b) the employer or employee shall notify the CEO of the National Employment Council; and

(c) the CEO, after consultation with the Chairman of the National Employment Council, shall determine an interim classification of operation, which shall be subject to ratification by the National Employment Council at its next meeting:

Provided that, if the interim classification by the Secretary or the final classification by the National Employment Council places the employee in a grade—

(i) higher than the employee’s current grade, he or she shall be paid not less than the minimum wage prescribed for such higher grade, with effect from the date upon which he or she commenced performing the operation concerned; or

(ii) lower than the employee’s current grade, it shall be lawful to reduce his or her wage to not less than the minimum wage prescribed for such lower grade, with effect from the date upon which such classification is determined, unless the employee refuses to accept the lower wage, in which event—

A. he or she may be given relevant notice of termination of employment; and

B. during the period of such notice, he or she shall be paid the wage he or she was receiving prior to such determination.

Allowances

Hours of work

7.(1) The ordinary hours of work for herdsmen, watchmen, boilermen, firetower attendants, pump attendants, guards and caretakers shall not exceed two hundred and eighty hours per month.

(3) An employer may request, but shall not require an employee to work overtime, and shall, whenever possible, give twenty-four hours notice to such employee of such request:

Provided that employees needed to render emergency work shall not decline requests to work overtime without reasonable excuse.

(5) An employee shall not be required to work on his or her day off, except in cases of emergency work and when the conditions and failures referred to in section 5(8) of this agreement apply, but no employees shall be required to work on his or her days off in successive weeks.

(6) The ordinary hours of work for a task-worker shall not exceed the hours as laid down in sections 7(1) and (2).

Short-time working

8.(1) No employer shall place all or some of his or her employees on short-time working without the prior written approval of the National Employment Council, who may approve that the employees be placed on short-time working for a period, to be determined by them, if they are satisfied that—

(a) it is economically necessary for the establishment to work short-time; and

(a) the establishment will be able to resume normal working hours within the foreseeable future; and

(b) it would not be in the interests of the employees to be discharged.

(2) An employer shall give one month’s notice to each employee concerned of the requirement to work short-time, except in extreme circumstances when he or she can apply to the National Employment Council to commence short-time working within a shorter working period.

(3) Notwithstanding the provisions of section 19, the employee may, at any time during die month’s notice referred to in subsection (2), give his or her employer notice of termination of his or her contract of employment as from the time when short-time working is to start.

(4) During a period of short-time working an employee shall be paid for not less than the hours worked by him or her:

Provided that no employee shall receive less than sixty per centum of his or her current weekly wage.

(5) Written approval issued in terms of subsection (1) shall state—

(a) the name and address of the employer; and

(b) the grade or group of employees affected;

and the employer shall return such approval to the Secretary of the National Employment Council upon resumption of normal hours of work.

Conversion of rates

9. For the purpose of converting a monthly wage to—

(a) the weekly equivalent, the monthly wage shall be divided by four and one-third; or

(b) the daily equivalent, the monthly wage shall be divided by twenty-six; or

(c) the hourly equivalent, the monthly wage shall be divided by the ordinary hours normally worked in a month.

Payment for overtime

Deductions

11.(1) No deduction or set-off of any description shall be made or allowed from any remuneration, other than a bonus, due to an employee, except—

(a) where an employee is absent from work on days other than industrial holidays, sick-leave, or vacation leave, a pro rata amount of his or her wage only for the period of such absence; or

(b) amounts which an employer is compelled by law or legal process to pay on behalf of an employee; or

(e) by written consent of an employee, for repayment of money lent, including interest thereon, if any, by the employer on terms that have been mutual agreed to between the parties concerned;

(a) by mutual consent, in writing, in respect of any service provided by an employer to an employee; or

(b) deductions in terms of section 22.

(2) Upon termination of an employee’s service, an employer may deduct from the total remuneration due to the employee an amount equal to any balance which may be due to the employer in terms of this section.

Payment of wages

12.(1) Every employer shall pay wages, in cash, to each employee, weekly or monthly as the case may be, within—

(a) two days of the end of the week in the week in the case of weekly paid employees;

(b) four days of the end of the month in the case of monthly paid employees:

Provided that payments for overtime, bonuses and allowances shall be made to each employee, weekly or monthly, as the case may be, within six working days of due date.

(2) When the service of an employee is terminated, payment of all remuneration due shall be made within seventy-two hours of the termination of service.

(3) An employee shall provide his or her employee with written details regarding the make-up of his or her pay.

Task-work and work on a ticket system

13.(1) It shall be permissible to give out work to all employees on a task-work basis.

(2) An employee employed on a task-work basis may, with the consent of his or her employer, complete work over and above his or her basic task, for which he or she shall receive an incentive bonus.

(3) No employer shall give out, and no employee shall perform, work on a ticket system.

Incentive schemes

Special provisions: seasonal workers

15.(1) An employer may employ a seasonal worker on a daily notice basis within the first seven days, but on a weekly notice basis thereafter.

(2) If a seasonal worker is employed for more than six consecutive months in any period of twelve month, he or she shall be regarded as a permanent worker from the time when the six months are exceeded.

(3) An employer shall pay a seasonal worker not less than a minimum wage agreed for the occupation in which he or she is employed.

Vacation leave

Special leave

(f) on any justifiable compassionate ground;

Maternity leave

Public holidays

Benefits during sickness

20.(1) Unless more favourable conditions have been provided for in any employment contract or in any enactment, sick leave shall be granted in terms of this section to an employee who is prevented from attending his or her duties because he or she is ill or injured or undergoes medical treatment which was not occasioned by his or her failure to take reasonable precautions.

Contract of employment

Provided that—

(1) where month’s notice has been agreed to, it shall be taken to run from the first day of the month following the date on which such notice is given;

(ii) it shall not be necessary for an employee to give notice where he or she is unable to do so because of some personal emergency or compelling necessity whose authenticity has been approved in the presence of Workers’ Committee.

(2) Any contract of employment which is for a stipulated period shall specify the date of commencement and date of termination thereof, and no further notice to termination the contract on due date shall be required from either party.

(3)- (a)an employee who is summarily dismissed in terms of the code of conduct shall vacate the property of his or her employer immediately on payment of monies due to him or her from the employer to the employee within seventy-two hours of dismissal;

(b) an employee who is given notice of termination of his or her employment contract in terms of the code of conduct shall vacate the property of his or her employer immediately on the expiry of that notice period and on payment of all monies due to him or her from his or her employer;

(c) an employee who is paid in lieu of notice by his or her employer shall have a maximum of thirty days to vacate the property of his or her employer.

Continuous service

22. (1) Continuous service shall be deemed to be broken only by death, resignation, retirement, or discharge of the employee concerned.

(2) If, upon the change of ownership of an establishment, an employee enters the service of a new owner, or continues his or her employment in the establishment, his or her service with the previous owner shall reckoned as service with the new owner, and shall be deemed not to have broken by such change of ownership:

Provided that, if an employee is paid by the previous owner a gratuity in terms of section 25 in respect of his or her service with that owner, the gratuity payable by the new owner on the death, resignation, retirement or discharge of such employee may be reduced by the amount of gratuity paid by the previous owner.

Record of service

23. (1) An employee whose services are terminated, for any cause whatsoever, may request a record of service from his or her employer.

(2) The record of service supplied shall specify the period of service served and the occupation of the employee.

Health and Safety issues

Gratuity on termination of employment

25.(1) All gratuities shall be calculated from—

(a) the 1st January, 1978; or

(b) the date which the employee’s continuous service commenced;

whichever is the later.

(2) An employee who has completed five or more years of continuous service shall, on the termination of such employment, irrespective of the circumstances of such termination, be paid a gratuity of not less than the amount derived by multiplying the appropriate percentage of his or her current monthly wage on termination of employment by the number of completed years of continuous service, as set out in the Third Schedule.

(3) If an employee who has completed five or more years of continuous service dies before receiving a gratuity in terms of subsection (2), there shall be paid to his or her estate the sum which the employee would have received if his or her contract of employment had terminated on the day of his or her death.

(2) Notwithstanding the provisions of subsections (2) and (3), no gratuity shall be payable to employees who have been provided both with a Pension e.g. Old Mutual or NSSA (registered as a fund in terms of the Pension and Provident Funds Act [Chapter 24:09] (No. 20 of 1976) which provides benefits which are not less favourable than those prescribed in this section). However if the employer had not made provision for both Pension and NSSA the employee shall be paid gratuity.

(3) An employee who reaches the age of sixty years will be required to retire. Upon retirement, an employee shall be paid all wages, leave pay and gratuities due to him or her in terms of subsection (2). An employer may offer further employment but only as a special or contract worker.

(4) No employee shall be required to retire from employment for medical reasons unless a medical practitioner has diagnosed an illness or infirmity which prevents the employee from performing his or her normal work and from which the employee is not expected to recover.

Availability of agreement

26.(1) Every employer shall exhibit a copy of this agreement and all amendments thereto in a place easily accessible to every employee.

(2) No person shall without lawful cause, alter, deface or remove, or cause to be altered, defaced or removed, a copy of the agreement, save on the instruction of the employer when carrying out his or her responsibilities under subsection (1) refer to Criminal Law Act.

Code of conduct

27.(1) The Code of Conduct as registered in terms of section 101 of Labour Act [Chapter 28:01], shall be observed by all employers and employees in the industry:

Provided that if necessary an employer may, with the approval of the Council, adapt or simplify the Code in detail, but not in principle, to suit circumstances which are particular to his or her establishment.

(2) All disciplinary cases and dismissal shall be dealt with in accordance with the Code as set out in the Seventh Schedule, and any circumstances which are not covered by the Code shall be dealt with having due regard for the spirit and intention of the Code.

Council dues

28.(1) Council dues shall consist of contributions to the Council as approved by the Minister from time to time, and shall be made by every employer and employee in the industry for such purposes as are provided for in the Council’s Constitution.

(2) Every employer shall immediately complete and return the appropriate form as set out in the Fifth and Sixth Schedules together with the appropriate cheque to the Council which form shall be sent to the employer by the Council on an annual basis.

Exemptions

29.The Council may in its sole discretion and upon such terms and conditions as it may determine grant exemption, in writing, from any of the provisions of this agreement to any employer or employee. Such exemption may be revoked or amended by the Council, at its discretion.

Penalties

30.Attention is drawn to section 82(3) of the Labour Act [Chapter 25:07], which reads—

“(3) Any person who fails to comply with a collective bargaining agreement which is binding upon him or her shall, without derogation from any other remedies that may be available against him or her for its enforcement—

(a) commit an unfair labour practice for which redress may be sought in terms of Part XII; and

(b) be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.”.

Declaration

31.The employer’s organisation and trade union having arrived at the agreement set forth herein, the undersigned officers of the Council hereby declare that the foregoing is the agreement arrived at, and affix their signature, hereto.

Dated at NEC Agriculture Boardroom this 30th day of November, 2012.

- M. MUNYANYI, Chairman.

- D. N. CHIMB WANDA, Vice-Chairman.

- S. JERA, Chief Executive Officer

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Grade C2

Estate head clerk

Maintenance operative 5 or all trades tested (class 1)

Senior maintenance operative

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SECOND SCHEDULE {Section 6)

ALLOWANCES

AGRICULTURAL EMPLOYEES: MINIMUM MONTHLY

In addition to the basic wage earnings provided for in the First Schedule {Section 4), allowances shall be paid as follows:-

***Type of allowances

Accommodation

Transport

Light

Fuel

***Other allowances

Travel, subsistence and overtime

Paid time to construct own accommodation

Risk/Danger

Rotational shift work

Production

Professional allowances

Bicycle Dog handling Firearm

PLEASE NOTE: These allowances change in value as and when the negotiation decides to do so.

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THIRD SCHEDULE (Section 25)