INTRODUCTION
Teddy Musonda & Ruth Okaikor Anyetei
In Zambia, employment relations
are primarily governed by the Employment
Code Act[1],
while in Ghana the Labour Act[2]
is the primary legislation that governs all employment relations. An employment
relationship is that which exists between an employer and employee. Like most
relationships, the power dynamic in the employment relationship is not even,
with the employer termed as the boss and the employee the worker. Therefore,
because the employer seemingly is in a higher position of authority than the
employee, legislation to govern the employment sector is key in order to
provide for duties and rights of each party in the employment relationship.
Zambia and Ghana has several legislations that provide for the rights of
employees and safeguards to protect employees’ rights. In spite of this, some
unfair practices are employed by some employers that violate the rights of employees.
In this writing, we explore common unfair practices in the employment sector in
both Zambia and Ghana that affect employees’ rights in the respective
countries.
UNFAIR PRACTICES IN ZAMBIA
Unequal Pay for equal work value
The principle of equal pay for
equal work value is actually a Human Right protected by the African Charter on Human and Peoples’
Rights – which Zambia is a signatory. Article 15 of the Charter stipulates
that “every individual shall have the right to work under an equitable and satisfactory
conditions, and shall receive equal pay for
equal work” (emphasis is ours).
This right is also protected by
Zambia’s Employment Code Act, Section
5(4) provides for the principle of equal pay for equal work value which
dictates that employees at an undertaking shall be paid equally for similar
work. In essence, employees at a workplace who are employed to do the same job
must be paid the wages and provided with the same benefits. It follows that it
is discriminatory for an employer to pay an employee less than that paid to
another employee engaged to do the same work.
In Zambia, some employers tend to
rely on the doctrine of freedom to contract which is an instrument that enables the
discrepancies in salary scales between employees.For instance, in Mulungushi
Investment Limited v Rhodah Wendy Kazhama Zuze[3],
the respondent Rhodah employed as a secretary at the Appellant Company, was
paid a lower salary compared to the salaries given to other secretaries. The
High Court found in favour of the Rhodah having held that Appellant was duty
bound to ensure that people who were doing the same work received equal pay, on
appeal the Supreme Court upheld the decision. Additionally, in Mayumbelo Kangumu & Gilbert Munyama v
Zambeef Products plc[4],
Mayumbelo and Gilbert were both employed as poultrymen before being
promoted to supervisors. Upon promotion the pair each received lower salaries
compared to another supervisor (Evans Nshimbi) who received a much higher
salary in spite of the fact that the pair and Evans Nshimbi were doing the same
work.
The High Court found in favour of the pair holding that the right to
equal pay for equal work values is anchored on the notion of equality of all
persons before the law.
Paying employees who are engaged
to do the same work differently is flouting the law and a direct violation of
an employees’ right to equal pay as provided by the African Charter on Human and Peoples’ Rights and the Employment Code as it is discriminatory
in nature and promotes inequality.
Unlawful wages
In Zambia, certain employees have
been identified as vulnerable to exploitation, thus, laws have been promulgated
to provide for the minimum and basic condition of service that ought to apply
to their employment contract. These laws take the form of ministerial orders
which are statutory instruments promulgated by the Ministry of Labour and
Social Security namely: (i) the minimum
wages and conditions of Employment (General) order (ii) the minimum wages and
conditions of Employment (Shop Keepers) Order, (iii) the minimum wages
(domestic workers), and the (iv) Minimum wages (truck and bus drivers) order.
These orders provide for a minimum wage that every employee encapsulated under
each order is to receive together with other basic conditions of service.
It is thus, unlawful
for an employer to pay an employee covered by the a specific order a lower salary than
that provided by the that order. Sadly, the practice of paying employees who are
identified as vulnerable employees and thus protected by the orders, lower
salaries than that provided by the orders is common in Zambia. For instance, in
a recent High Court case of John Banda v
John London Cars (Import & Export Limited)[5],
the complainant was employed by the respondent as a cleaner, and according
to the minimum wages and conditions of Employment (General) order the
complainant was entitled to minimum basic pay of K1,050.00 per month. However,
during his employment, the complainant received K800.00. The Court therefore,
upheld the complainant’s claim for underpayment and ordered the employer to pay
the complainant
K23,363.60 which included the
complainant’s house allowance, transport allowance and lunch allowance.
The above shows how some if not
most employers violate the right to a minimum wage of vulnerable employees.
Additionally, in another recent High Court decision of Mike Clement Kunda Chikwanda and 23 Others
V R.P Africa Fleet Services Ltd[6],
the Court found that Mulele Malambo (one of the complainants) who was employed
as a truck driver by the employer was underpaid. According to the Minimum Wages (Truck and Bus Drivers) Order
before the recent amendment, Mulele Malambi was entitled to a minimum wage of
K3,000.00. but Mulele Malambo received a lower wage.
Vulnerable employees protected by
the Ministerial Orders have the right to inter
alia a minimum wage. However, as exemplified above, some employees pay
their employees who are covered by the ministerial orders a lower salary than
that prescribed. This practice is common in the employment sector in Zambia.
Employers in Zambia are advised to read through the Ministerial Orders and
ensure that they pay their employees who are protected by the Ministerial
orders the minimum wage provided or higher. Additionally, the employer is
required by law to pay the employee all underpayment they received
previously.
Casualization
Casualization in Zambia is
illegal. Section (7) of the Employment
Code Act prohibits the practice of casualization and Section 7(2) and (3)
provides a penalty against an employer who engages in casualization. The
Employment Code Act provides for the meaning of casualisation, Section (7) (6)
stipulates:
(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”
The Section further defines what
‘permanent in nature’ means:
“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.”
To provide further context to the discussion, it is vital to understand what casual work is. Section 3 of the Employment Code Act is instructive in that regard as it defines ‘casual work’ to mean work that (a) is not permanent in nature; or (b) is capable of being carried out in a period of less than six months.
In essence, what these provisions
collectively mean is that an employer is allowed to engage an employee to do
casual work – work that is short term, work that is not dependant on a fixed
hourly requirement but dependant on the availability of tasks to be done, and
which can be completed within 6 months. However, it is prohibited for an
employer to engage a worker as a casual employee when the work they have been
engaged to does not constitute casual work.
A casual employee is engaged on a
daily basis and paid at the end of the day, a casual employee does not enjoy
certain benefits as other employees. For instance, a casual employee is not
entitled to a severance package (Section
54(3) of the Employment Code Act), leave days, etc. on account of this,
some employers, in order to avoid obligations or to deprive an employee of
their rights, would engage an employee as a casual employee. An example of
casualization is where a company employs several bricklayers and carpenters to
construct a building which is scheduled to be done within 2 years, but the
bricklayers and carpenters are given daily contracts, thus, the bricklayers and
carpenters are expected to sign the contracts each day for 2 years. This
practice denies the bricklayers and carpenters several employment benefits
which demonstrates the unfairness of the practice. Casualization is a form of exploitation.
UNFAIR PRACTICES IN GHANA
Forced Labor and Exploitation
Forced labor is when individuals are compelled to work
against their will, often under harsh and unjust conditions. This scenario can
be likened to being trapped in a job without the freedom to choose, where fair
compensation and respect are absent. Coercion may manifest through threats,
violence, or the fear of termination, leading to employees being forced to work
additional hours without appropriate compensation, which constitutes a
significant form of exploitation.
In Ghana, Section 35 of the Labour Act specifically addresses overtime requirements. According to this legislation, employees cannot be mandated to work overtime unless the employer has established rates for overtime pay. Furthermore, overtime work may only be required in specific circumstances, such as when the nature of the job necessitates it for operational viability (e.g., in healthcare or transportation) or during emergencies that pose risks to life or property (e.g., natural disasters or accidents).[7] Additionally, Section 36 stipulates that workers may be employed in shifts; however, the average number of hours worked over four weeks or less must not exceed eight hours per day or forty hours per week, provided there is a predetermined timetable for the shifts. This legal framework is designed to safeguard workers from exploitation and ensure equitable treatment within the workplace.[8] Forced labour significantly impacts human rights by violating fundamental principles of freedom, dignity, and respect. When individuals are coerced into working against their will, their autonomy is stripped away, undermining their right to make choices about their own lives. This situation often leads to severe psychological and physical harm, as workers may endure harsh conditions, abuse, and exploitation without recourse to justice.
Additionally, forced labor can
perpetuate cycles of poverty and inequality, as individuals trapped in such
situations often lack access to education, healthcare, and fair wages. This
systemic exploitation not only affects the individuals involved but also has
broader implications for society, as it undermines social justice and economic
development. Human rights frameworks emphasize the importance of protecting
individuals from such abuses, advocating for fair labour practices, and
ensuring that all workers are treated with dignity and respect. By addressing
forced labour, we can work towards a more just and equitable society where
everyone's rights are upheld.
Health and safety violations
Health and safety violations in the workplace directly
infringe upon the human rights of employees, primarily their right to life,
health, and security. When employers fail to provide a safe and healthy work
environment, they expose workers to hazards that can lead to injury, illness,
or even death. This neglect not only compromises physical well-being but also
affects mental health, as employees may experience anxiety and stress due to
unsafe conditions.
Moreover, the right to a safe workplace is recognized in
various international human rights frameworks, including the International Labour Organization (ILO)
conventions. These frameworks emphasize that every worker deserves to work
in an environment that prioritizes their health and safety. When employers
disregard these obligations, they violate the fundamental rights of their
employees, leading to a culture of fear and insecurity. This situation can also
result in broader societal consequences, as unsafe working conditions can lead
to increased healthcare costs and decreased productivity, ultimately affecting
the economy as a whole. Article 36(10)
of the 1992 Constitution of Ghana[9] underscores the state's responsibility
to protect the health, safety, and welfare of all individuals in employment.
This provision highlights the government's role in ensuring that workplaces are
safe and conducive to the well-being of employees. When health and safety
violations occur, they not only breach this constitutional mandate but also
infringe upon the fundamental human rights of workers.
By failing to safeguard these rights, the state neglects its
duty to promote a work environment that allows individuals to thrive and
unleash their creative potential. Such violations can lead to a workforce that
is not only physically compromised but also demotivated, ultimately stifling
innovation and productivity. Thus, health and safety regulations are crucial
for upholding the rights outlined in the constitution and fostering a robust
and dynamic labor force in Ghana.
Discrimination
Article 17(2) of the
1992 Constitution of Ghana prohibits discrimination against individuals
based on gender, race, color, ethnic origin, religion, creed, or social and
economic status. This provision is fundamental in promoting equality and
protecting the rights of all citizens, ensuring that everyone has the
opportunity to participate fully in society without facing bias or prejudice[10].
According to Article 17(3) of the 1992 Constitution of Ghana,
“discriminate” means to give different treatment to different persons
attributable only or mainly to their respective descriptions by race, place of
origin, political opinions, color, gender, occupation, religion or creed,
whereby persons of one description are subjected to disabilities or
restrictions to which persons of another description are not made subject or
are granted privileges or advantages which are not granted to persons of
another description.[11]
By establishing such safeguards, the Constitution aims to
create a fair and just environment where individuals are judged by their
abilities and character rather than their background or identity. Upholding
this principle is essential for fostering social cohesion and advancing the
rights of marginalized groups, ultimately contributing to a more inclusive
society.
Such practices create a hostile work environment and can lead to psychological harm, affecting employees' mental health and overall job satisfaction. Moreover, discrimination perpetuates systemic inequalities within society, as marginalized groups may find it increasingly difficult to secure stable employment or achieve economic independence. Upholding the rights of all employees to work in an environment free from discrimination is essential for fostering a diverse and inclusive workplace, which ultimately benefits both individuals and the organization
CONCLUSION
The unfair practices
highlighted in this writing that affect employees’ rights in Zambia and those
that affect employees’ rights in Ghana are similar. Generally, the practices
discussed by their nature violate employees’ right against discrimination and
against exploitation. The Ministries in Zambia and Ghana are urged to
investigate the unfair practices discussed in writing and hold the employers
found in violation accountable. Additionally, sensitisation is necessary to
ensure that employers are informed about the rights and protections they ought
to safeguard and provide to their employees, employees equally must be informed
about their rights and entitlements.
[1]
Act No. 3 of 2019
[2]
(2003) Act 651.
[3] (2001) SCZ No. 84
[4]
(2021) ZMHC 114
[5] (2024) ZMHC
[6]
(2024) ZMHC 99
[7]
(2003) Act 651.
[8]
(2003) Act 651.
[9]
(1992) Constitution
[10]
(1992) Constitution
[11]
(1992) Constitution
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