Comparative Labour Law Matrix The development of a comprehensive labour law publication.

Purpose of Presentation Present a high level overview of the Comparative Labour Law Matrix. Identify and outline comparative trends. Extend an invitation for participation.

Outline Requirements for Foreign Workers Labour Broking Terminations and Dismissals Working Standards Fixed Term Contracts Employer’s Information Restraint of Trade Agreements Employee’s Personal Information Notice Pay and Work Transfer of Business Unfair Discrimination Trade Union Rights

Question 1: Foreign Workers There is no legal obligation requiring foreign workers to be employed. Legal recognition of all foreign workers: use of permits. Some countries like Swaziland have strict requirements. Whilst countries such as Nigeria adopt a less stringent approach.

Question 2: Labour Broking Regulated in 6 countries. No specific regulation in Kenya and Mauritius. 3 countries are currently debating legislation. Seems like more discussions into the issues of job security, flexicurity and various productivity advantages would be positive developments. Though topical, legislative progress is positive.

Question 3: Terminations and Dismissals Common law contractual reasons acknowledged in all countries: Nigeria and Uganda. Furthermore, all countries have legislative requirements for terminations and dismissals. Legislated fairness: substantive and procedural requirements also regulate terminations and dismissals. Remedies available: reinstatement, compensation and damages. Lesotho “show cause” for imprisonment.

Question 4: Working Standards All the countries have specific legislation regarding conditions of service. Average working hours varies between 45-48hrs over a 6 day week. Most countries recognise the standard “leave days” such as sick, vacation and maternity. Uganda recognises paternity leave. Maternity leave varies: Kenya 3months and South Africa 4 months. Labour law regulations seem to override contractual agreements.

Question 5: HIV and AIDS Most countries do not have specific legislation addressing the issue of HIV/AIDS, Nigeria and Uganda are notable exceptions. Nevertheless, all countries have labour legislation that can be used to prevent the unfair discrimination of persons with HIV/AIDS. It can be noted that HIV/AIDS is a serious issue that is well acknowledged and there are attempts to regulate the forms discriminations that may result from the pandemic in the workplace and society.

Question 6: Fixed Term Contracts All countries regulate fixed contracts through the common law contract. Contract must specify time and performance Most countries have time bars for recognition of fixed term contracts: South Africa, Mauritius and Kenya: 3 months. Zimbabwe: 4 months

Question 7: Minimum Wage The issue of minimum wage is regulated in most countries, namely, Botswana, Gambia, Namibia and Nigeria. However, the determination of minimum wages seems to be as a result of collective agreements, wage councils and ministerial sectoral determinations. Nevertheless, it seems that wage negotiations remain within the realms of collective bargaining and sectoral determinations.

Question 8: Employer’s Information All the countries recognise the need to protect employers confidential information. However, most countries rely on the Common Law contractual principles and their respective Constitutional clauses on privacy. Kenya explicitly recognises the confidentiality of employer’s information, especially where the government is the employer.

Question 9: Restraint of Trade Agreements Restraints of trade agreements are regulated in most countries. It seems like in countries such as Lesotho and Mauritius, there is no regulation. Most countries regulate along common law principles and reasonableness. Kenya has a specific Restraint of Trade Act.

Question 10: Employee’s Personal Information Zimbabwe and Mauritius have specific legislation. Rest of the countries are considering legislative protection. Progressive development is expected.

Question 11: Notice Pay and Work Burkina Faso, Lesotho, Namibia, Uganda and Zimbabwe have specific legislation addressing this issue. The concept is recognised, but not legislated for in other countries. Uganda: no right to provide work. Zimbabwe: right to remuneration regardless of work. Nigeria: collective agreements that oblige an employer to provide suitable work. The employee and employer are can negotiate this aspect.

Question 12: Transfer of Business Majority of the countries seem not to regulate the transfer of businesses. South Africa, Uganda and Zimbabwe have dedicated legislative provisions. Notably Kenya and Mauritius do not seem to legislate transfers but they do maintain fairness as a criterion. Issues of social security of workers, pensions and other employment benefits needs more consideration.

Question 13: Unfair Discrimination All the countries legislate against unfair discrimination. The common legislated forms disability, race, ethnicity, religion, sex, HIV/AIDS and political opinions. South Africa has a more detailed specific legislation addressing unfair discrimination and affirmative action. Affirmative actions in most countries relate to areas of gender, disability and HIV/AIDS. Lesotho and Swaziland are yet to enact affirmative policies.

Question 14: Trade Union Rights The rights to freedom of association and collective bargaining are recognised by all the countries. However, the devil is in the detail. The effectiveness of the rights to strike, upholding of collective bargaining agreements and self determination require more analysis.

Question 15: Specialist Labour Courts All of the participating African jurisdictions seem to have specialist Labour Courts or Tribunals adjudicating over labour disputes. Furthermore, most jurisdictions have arbitration and mediation as part of their first step of dispute resolution notably Botswana, Lesotho, Swaziland and South Africa. It can be noted that all countries have appeal procedures and most have Labour Appeal Courts. The powers of review of these courts over arbitrated matters is a question worthy of consideration. The remedies legislated to these specialist institutions are very much similar

Question 16: Social Security Protection Most jurisdictions such as Kenya, Lesotho, Namibia and Nigeria seem not to have detailed social security protection legislation. Whereas countries such as Burkina Faso, Gambia, South Africa and Zimbabwe have dedicated legislative provisions addressing the social protection issues of workers. However, the extent and effectiveness of such social security legislation should be further investigated to ascertain the protected status of workers in such countries.

Conclusions Labour law in Africa is very much alive, but huge potential for improvement. There are notable similarities in certain labour aspects, but in respect of others, significant differences. One observable challenge noted is that labour laws on paper do not necessary translate the reality on the ground. This highlights the need for more depth with more inquisitive questions. There is room for expansion regarding topics and more countries. Need for technical and comparative assistance. Indebted to institutions such as the ILO.