Labour Law Module - PAM 2022.pdf

PAM 2022: LABOUR LAW MODULE BY MICHELO HANG’ANDU and RICHARD SILILO LECTURER DEPARTMENT OF GOVERNMENT AND MANAGEMENT STUDIES...

PAM 2022: LABOUR LAW MODULE BY MICHELO HANG’ANDU and RICHARD SILILO LECTURER DEPARTMENT OF GOVERNMENT AND MANAGEMENT STUDIES CONTACT Cell 0977157171 Email:[email protected] [email protected] The University of Zambia P.o Box 32379 Lusaka 2024 1|Page Labour Law PAM 2022 Course Outline Course Aims This course aims to assess the nature, objectives and operations of Labour laws processes and procedures Objectives On completion of the course, students should be able to: 1) To show an understanding and importance of labour laws in the organization. 2) Possess the necessary skills and techniques of managing labour laws attracting in the organization in the context of the competitive and ever changing socio economic, political and cultural environment. Course Content 1. Introduction; Work and Law:  Origins, nature and historical evolution;  protective function;  Labour Law sources’ hierarchy;  International Labour Organization 2. Labour Law: General principles of Labour Law;  Need for labour laws;  Principles of Labour Legislation;  Labour Law Reforms; Arguments against Reforms;  Arguments for Reforms  Work Relations & the Limits of Contract:  Individual employment contracts;  the dependence aspect; distinction from other legal relationships;  prerequisites regarding validity of the contract and void contract 3. Rights & Responsibilities under the Contract of Employment:  Forms of dependent employment relationships;  fixed-duration and permanent employment relationships;  apprentice contracts; stand-by duties; labour lending;  special employment contracts; minors; disabled; managing directors and foreign workers 4. General Protections & Equality at Work:  Personal autonomy and labour relations;  limitations regarding employment contracts;  limitations regarding the content of the contract; 2|Page   limitations regarding termination of contract;  flexible forms of work; temporary agency work, telecommuting, organization of working time – part-time arrangements;  Security at Work 5. The legal system;  Equal Pay for Equal Work Regardless of Sex;  Equal Pay for Jobs of Comparable Worth;  Equal Employment Opportunity;  Non-discrimination on the Basis of Race, Colour, Religion, Sex, or National Origin;  Apprenticeship Programs, Retaliation, and Employment Advertising;  Boni Fide Occupational Qualification; Preferential Treatment; National Security 6. The Zambian Regulatory Framework:  Employment Act, Employment (Special Provisions) Act;  Industrial and Labour Relations Act;  Industrial and Labour Relations (Amendments) Act;  Minimum Wages and Conditions of Services Act National Pensions (NAPSA) Act;  Statutory Instrument 46 of 2012 General Order; Statutory Instrument No 2 of 2011 Minimum Wages;  Statutory Instrument No 2 of 2002 Minimum Wages 7. Case studies of incidences in labour law  Wrongful dismissal cases  Unfair dismissal  Human Rights Cases  Breach of contract cases  Discrimination cases  Harassment  Eversion of privacy Contact Hours Three one hour lectures per week One hour tutorial per week Assessment Continuous Assessment = 50% Final Examination = 50% Continuous Assessment will comprise: One essay = 20% Two tests = 30% 3|Page Prescribed Readings Banki, I.S, (1981) Dictionary of Administration and Management, New York, Systems Research Institute Cameroon Journal on Democracy and Human Rights: Challenges of Administrative Reforms and Public Service Accountability in Africa: The Case of Cameroon, CJDHR Vol. 3No.1- 2009 Cloete,J.J.N. (1981). Introduction to Public Administration, Pretoria, J,L. Van Schaik Khan, M.M “Administrative Accountability and Performance in Bangladesh”, The Indian Journal of Public Administration, Vol. XXIX, No.3, 1983. Reid,G.S. “Responsible Government and Ministerial Responsibility”, Australian Journal of Public Administration, Vol.XXXIX, No.1, March 1980 Robbins, S.P. (1980) The Administrative Process, Second Edition, Englewood Cliffs, New Jersey, Prentice-Hall Inc.. Recommended Readings Guest, D E and Conway, N (1997) Employee Motivation and the Psychological Contract. London: Institute of Personnel and Development. Brewster, C. (2001). HRM: The comparative dimension. In J. Storey (ed.), Human resource management: A critical text (pp. 255–71). London: Thompson Learning. Clark, T., Grant, D. & Heijltjes, M.(2000). Researching comparative and international human resource management. International Studies of Management, 29(4), 6–23. Scullion, H.(2001). International human resource management. In J. Storey (ed.), Human resource management: A critical text (pp. 288–313). London: Thompson Learning. Harrison, R (2000) Employee Development, 2nd edn.London: IPM. Hawkins, K A (1979) A Handbook of Industrial Relations Practice. London: Kogan Page 4|Page UNIT 1: INTRODUCTION TO LABOUR LAW Learning outcomes By the end of this unit you should be able to  Define the idea of labour and labour law  Understand the Origins, nature and historical evolution of labour law;  Identify and describe the types Labour Law sources’ hierarchy;  Understand the International Labour Organization  Understand General principles of Labour Law;  Need for labour laws;  Labour Law Reforms; Arguments against Reforms;  Arguments for Reforms 1.1 Definition of Labour Labour may be defined as the sum total of physical and mental effort used in the production of goods and services.iThis labour may be paid for or utilized for free. The focus of labour law is the study of the law that regulates labour that is employed in those transactions involving the exchange of mental and physical effort in exchange for a wage or salary. The parties to this relationship are an employer and a worker. 1.2 Definition of Law Law is a system of norms which are used by a group of people or society to establish order. This system sets standards and rules of human behavior. In other words, humans in any society are guided by these norms in the way they behave or do things. If these rules have to be obeyed, there has to be sanctions on those who break them. 5|Page  Without this, a law will be of no value as no one will obey it. It can also be stated that rules constitute what we can safely say is law. Rules tell us what do and what not to do. Hart (1961), a philosopher analyzed law as a system of rules which are statements of accepted standard behavior. He stated that law is made up of primary and secondary rules. Primary rules impose duties whereas secondary rules confer power. Primary rules exist in a community devoid of legislature restricting violence or protection of property in the absence of proper law. Hart called this a pre-legal system. These rules are: i. Rules of recognition, ii. Rules of change, and iii. Rules of adjudication. Firstly, according to Hart, the rule of recognition, set the criteria by which it can be accorded legal validity. For a rule to be obeyed, it must be recognized by those it is meant for. This means that people must recognize this rule as valid and legally imposed on them to be obeyed. Secondly, Hart stated there are rules of change. These rules include those which govern legislative bodies and specify which officers can amend them. Here he was referring to legislative bodies and those officers in legislative bodies mandated to make these rules. For these rules to be obeyed, the people for which the rules are made together with the legislative bodies must be accepted by the people. Without this, people will not obey these rules or laws. Thirdly, he stated that there are rules of adjudication. These rules according to Hart give certain officials authority and power to determine which rule has been broken. Here he was referring to courts of law. The Jurisdiction of the court will fall in this category Law can also refer to habits and customs. Essentially custom is conduct and a habit is a pattern. Generally speaking, a habit and a custom cannot be sanctioned by courts. This is because these do not extend to legal rules. In Zambia for instance, a woman is expected to wear a chitenge cloth or material when attending a funeral. In a situation 6|Page  where a woman fails to wear a chitenge material at a funeral, no one can take her to court for wrong doing because this is a custom. Equally, there are habits which have developed in different people over time. Failure to act as per habit has no effect on the judicial system. In short, habit and custom are non-litigious – hence are not law per se. Additionally, morals have nothing to do with law as they only guide people in the way they should behave and these differ from place to place or tribe to tribe. Another philosopher by the name of John Austin (1885), defined law as “a rule laid down for the guidance of an intelligent being by an intelligent being having power over him”. He postulated that laws are made by intelligent beings in order to control other intelligent beings. Roscoe Pound (2003), another philosopher defined law as “social control through the organized application of the forces of politically organized society” and Elias (1956), defined law as “a body of rules of a given community which is recognized as obligatory by its members”. Having looked at all these definitions, one can conclude that “law is any rule of human conduct which is recognized by members of any given society as being obligatory and which therefore society can force us to obey by external compulsion”. We see from this definition that the final definition of law has incorporated various aspects which were postulated by various philosophers. These are ‘human conduct’, ‘recognition’, ‘obligatory’, ‘obey’ and external compulsion’. 1.3 Definition of Labour Law  Labor law, is the body of law applied to such matters as employment, remuneration, conditions of work, trade unions, and industrial relations.  Labour laws are those that mediate the relationship between workers, employing entities, trade unions, and the government.  Labour laws can be defined as regulations that are put in place by the federal government which dictate the rights of employees and their relationship to employers. Since our main subject is Labour law, it can be seen that law provides guidance or norms on how labour relations are to be observed. In labour relations, law is required by all players or stakeholders to maintain law and order in how the relationships between employers and employees are to be conducted. How employees are to relate to trade unions and how employers’ organizations are to relate to employee 7|Page  organizations. Labour law also guides how different labour organizations will relate to government. Without this interplay, there would be chaos in this field. In short, law provides “dos and don’ts” in labour relations. Labour law is mainly concerned with the regulation of the employment relationship between an employer and employee. You should appreciate from the outset that the employer/employee relationship is just one among many other relationships that involves the exchange of labour for economic benefit. 1.4 Understand the Origins, nature and historical evolution of labour law; The history of labour law concerns the development of labour law as a way of regulating and improving the life of people at workplaces. In the civilizations of antiquity, the use of slave labour was widespread. This was because there was no rules or regulations to guide people on how to conduct themselves in labour relations. Employees were basically exploited because of this. In fact, most of them were not even employees, but slaves. As England was the first country to industrialize, it was also the first to face the often- appalling consequences of capitalist exploitation in a totally unregulated and laissez- faire economic framework. Over the course of the late 18th and early to mid-19th centuries, the foundation for modern labour law was slowly laid. Things started changing in England when a serious outbreak of fever in 1784 in cotton mills near Manchester drew widespread public opinion against the use of children in dangerous conditions. A local inquiry was instituted by the justices of the peace for Lancashire, and the resulting report recommended the limitation of children's working hours. In 1802, the first major piece of labour legislation was passed; the Health and Morals of Apprentices Act. This was the first step towards the protection of labour. The Factory Act of 1819 was the outcome of the efforts of the industrialist Robert Owen and prohibited child labour under nine years of age and limited the working day to twelve hours. The early efforts were principally aimed at limiting child labour. From the mid-19th century, attention was first paid to the plight of working conditions for the workforce in general in 1842, the first Mines and Collieries Act excluded women and girls from underground working, and limited the employment of boys under the age of ten. 8|Page  In 1872, an Act was passed which included the first comprehensive code of regulation to govern legal safeguards for health, life and limb. By the end of the century, a comprehensive set of regulations had been put in place in England. Although the law would undergo further refinement over the following century, its basic contours were already discernible. As other countries industrialized in the late 19th century, they too adopted a similar legal system to prevent and mitigate large scale abuse in industry. In France, the working day was first limited in factories for adults in 1848, to 12 hours. The workplaces covered by this law was clarified in 1885 to include industrial establishments with motor power or continual furnaces, or workshops employing over 20 workers. In 1851, exceptions were made to the general limitation, in favor of certain industries or processes, among others for letterpress and lithographic printing, engineering works, work at furnaces and in heating workshops, manufacture of projectiles of war, and any work for the government in the interests of national defense or security. General sanitation in industrial establishments was provided for in a law of 1893 and was supplemented by administrative regulations for special risks due to poisons, dust, explosive substances, gases, and fumes. As regards shops and offices, the labour laws were enacted to protect apprentices against overwork (law of 22 February 1851). One requiring that seats shall be provided for women and girls employed in retail sale of articles in 1900 and a decree of the 28th of July 1904 defining in detail conditions of hygiene in dormitories for workmen and shop assistants. The law relating to seats is enforced 1.5 History of Employment Law in Zambia. Note: the following passage is gotten from Publication titled ‘Labour Law in Zambia An Introduction’ by Chanda Chungu) and Ernest Beele Zambia is a common-law jurisdiction, meaning that the foundation of the country’ legal system can be traced back to the laws of the United Kingdom during the colonial period. The foundation of the country’s labour laws was constructed when the United Kingdom was pursuing a policy of voluntarism in industrial relations. This policy translated into the practice where individual and collective bargaining by trade unions largely determined issues such as wages and conditions of service (Chungu and Beele,2020). 9|Page  To the extent that the UK policy of voluntarism depended on the country’s early industrialisation and a strong trade union movement supported by the economies of the colonies, voluntarism meant little in Northern Rhodesia (Zambia’s previous name before its independence from the United Kingdom), where illiterate workers were driven from villages to growing urban centres by poll-tax policies. In a situation where workers were too vulnerable and unions unknown until much later in the colonial period, it is not surprising that paternalistic regulations were issued very early to regulate the payment of wages and conditions of service. The master-and servant laws which first appeared in the early 20th century in Northern Rhodesia were continually revised until the dawn of independence in 1964. At independence, the government’s policies on industrial relations were driven by two identifiable strands. The first strand was intended to reverse the policies of discrimination which had been rife during the colonial period. The Employment Act 1965 contained provisions that offered protection to workers by prescribing standards to which contracts of employment had to conform (ibid). The second strand of policies was the control of trade unions, either to align their activities with development policies or to prevent them from being springboards for wrestling political power. The Trade Unions and Trade Disputes Act 1965 belonged to the latter strand The Industrial and Labour Relations Act (ILRA) 1971 formalised government policies on labour. The One Union One Industry policy was expressed in the law by making the Zambia Congress of Trade Unions (ZCTU) and the Zambia Federation of Employers (ZFE) the umbrella organisations for labour unions and employers’ associations respectively. The freedom to organise and to engage in free collective bargaining was also strengthened by the ILRA 1971. The results of collective bargaining became legally binding agreements, subject to their registration in terms of the new Industrial Relations Court, which th same Act established. The industrial policy of worker participation was also provided for in the law, with workers being given rights in decision-making through the instrument of works councils. In the context of a functioning copper economy amid the euphoria of nationalisation measures, Zambian workers appeared to enjoy both job and legal protection. 10 | P a g e  The decline of the Zambian economy in the late 1970s and early 1980s saw renewed agitation for meaningful collective bargaining and further protection from exploitation. Consequently, a new Minimum Wages and Conditions of Employment Act was put in place in 1982, replacing the Minimum Wages, Wages Council and Conditions of Employment Act. Multi-partyism and the liberalisation policies of the 1990s gave way to a different wave of labour legislation, confirming the view that labour laws are a product of each country’s social, economic and political developments. Therefore, this history has shaped Zambia’s current labour relations landscape (0pcit). 1.5 Sources of Labour Law Labour law can be obtained from many sources. These include the Constitution, legislation i.e. Acts of parliament, Judicial precedents, custom and written works by eminent writers. 1.5.1 The Constitution Under the Constitution, labour rights provisions are in Part III of the constitution. Part III contains the following as regards labour law:  Fundamental rights and freedoms Article16,  Right to a fair hearing Article 18(1) and Article 19,  Protection of freedom of expression Article 20,  Protection of freedom of assembly and association Article 21, and  Protection against forced labour. 1.5.2 Acts of parliament Under Acts of parliament, labour law can be found in the Employment Act, the Industrial and Labour Relations Act, the Factories Act, the Occupational Health and Safety Act, the Apprenticeship Act, the National Pensions and Social Security Act, the Workman's Compensation Act, and Employment of Young Persons and Children Act. 1.5.3 Judicial precedents Labour law can also be found in Judicial precedents. These are court rulings made in the past. Judicial precedents make law uniform and predictable. Under common law, 11 | P a g e  the doctrine of stare decisis is followed. This simply means that the precedents are authoritative and binding and must be followed. The doctrine of ratio decidendi i.e. the legal reason (or ground) for a judicial decision is followed. It is this in a case which will be binding on later courts under the system of judicial precedent. 1.5.4 International law in Zambia International law in Zambia is also a source of labour law. However, it is not directly applicable if it comes from international treaties and agreements. International law cannot confer the protections that they espouse until they are domesticated by the National Assembly. This statement of the law was pronounced upon by the court in Zambia Sugar Plc V Fellow Nanzaluka. 1.5.5 written works. Labour law can also be found in written works. This work must be of eminent authors who are prominent authorities in law. Works of eminent writers is of great importance in cases where there is no precedent. Judges use these works to make a decision. 1.6 Understand the International Labour Organization 1.6.1 International Labour Organization (ILO) Was formed in 1919 as a specialized agency of the United Nations and was formed to develop and promote labour standards. The ILO has over the years evolved into the international flagship organization in the internationalization of labour law and 12 | P a g e  standards (ILO,2023 Accessed on 8th July,2023 at https://www.ilo.org/global/lang-- en/index.htm). The International Labour Organization (ILO) is devoted to promoting social justice and internationally recognized human and labour rights, pursuing its founding mission that social justice is essential to universal and lasting peace. Only tripartite U.N. agency, the ILO brings together governments, employers and workers representatives of 187 member States, to set labour standards, develop policies and devise programmes promoting decent work for all women and men. Today, the ILO's Decent Work agenda helps advance the economic and working conditions that give all workers, employers and governments a stake in lasting peace, prosperity and progress. Four strategic objectives at the heart of the Decent Work agenda 1. Set and promote standards and fundamental principles and rights at work 2. Create greater opportunities for women and men to decent employment and income 3. Enhance the coverage and effectiveness of social protection for all 4. Strengthen tripartism and social dialogue  The broad principles if ILO seek to promote lasting world peace and harmony by realizing regulation of,  hours of work,  prevention of unemployment,  provision of adequate living wage,  protection against sickness, disease and injury,  protection of foreign workers,  recognition of the principle of equal remuneration for work of value,  recognition of the principle of the principle of freedom of association. 1.6.2 Membership of the ILO Membership of the ILO is open to all nations which are members of the of United Nations Membership. 1.6.3. ILO Organs 13 | P a g e  Organs of ILO are created by virtue of the provisions of Article 2 of the ILO Constitution which provides for the following: (a) A General Conference of representatives of the Members. (b) A Governing Body. (c) An International Labour Office controlled by the Governing Body. 1.6.4. General Conference The General Conference is modeled on the tri-partite framework with membership drawn from government, workers’ representatives and representatives of employers. ii Delegates to the General Conference, held at least once each year, iiihave voting rights. 1.6.5 Governing Body The Governing Body consists of 28 Representatives of Governments, 14 of employers and 14 of workers elected from among the members of the General Conference. 1.6.6 International Labour Office Is established in accordance with the Constitution and managed by a Director- General appointed by the Governing Body. 1.6.7 Functions of the International Labour Office The functions of the International Labour Office are provided for in the ILO Constitution and include:  Collection and distribution of information on all subjects relating to the international adjustment of conditions of industrial life and labour  To facilitate conclusion of International Conventions, and  Conduct of investigations as may be ordered by the Conference or by the Governing Body. 14 | P a g e  1.7 Labour Legislation Labour legislation regulates both individual employment relationship and collective labour relations; it protects basic freedoms and rights at work; ensures minimum labour standards leaving the rest for social partners to define through collective bargaining and defines the contractual status (individual and collective) of employers and workers, including their mutual rights and responsibilities as well as dispute resolution machinery. Convention No.150 on labour administration lays down the responsibility of labour administration with regards to national labour policy, specifying in particular that competent bodies within the system of labour administration shall be the instrument for preparation and implementation of labour policy. This relates also to labour legislation. Article 6 paragraph 1 of the convention provides that the competent bodies within the system of labour administration will prepare and implement laws. ILO Recommendation No 158 on Labour Administration refers to labour laws as the first area in which the functions of a system of labour administration should be exercised. 1.7.1 Importance of labour Legislations 1) Labour legislation regulates both individual employment relationship and collective labour relations; it protects basic freedoms and rights at work; ensures minimum labour standards leaving the rest for social partners to 15 | P a g e  define through collective bargaining and defines the contractual status (individual and collective) of employers and workers, including their mutual rights and responsibilities as well as dispute resolution machinery. Convention No.150 on labour administration lays down the responsibility of labour administration with regards to national labour policy, specifying in particular that competent bodies within the system of labour administration shall be the instrument for preparation and implementation of labour policy. This relates also to labour legislation. 2) The adoption of labour laws and regulations is an excellent means of implementing ILO standards, promoting the ILO Declaration and the Fundamental Principles and Rights at Work, and putting the concept of Decent Work into practice. Under the ILO Constitution, the International Labour Office is committed to assisting its member States. In doing so, it adopts the basic approach that where labour legislation is appropriately developed, with the support of the parties involved, it not only promotes social justice throughout society, but also has a positive effect on economic performance and contributes to social stability and the reduction of social conflict. 3) Today labour legislation is widely used to both regulate individual employment relationships and to establish the framework within which workers and employers can determine their own relations on a collective basis. A good example is of course through collective bargaining between trade unions and employers or employers' organizations or through mechanisms of worker participation in the enterprise. 4) The legislative regulation of the individual employment relationship typically entails the enactment of provisions governing the formation and termination of the relationship (that is, the conclusion of contracts of employment, their suspension and termination) and the rights and obligations relating to the different aspects of the relationship (such as the minimum age for admission to employment of work, the protection of young workers, equality at work, hours of work, paid holidays, the payment of wages, occupational safety and 16 | P a g e  health and maternity protection). Provision also has to be made for enforcement procedures and supporting. 5) Regulation of the collective relations of workers and employers typically includes laying down legal guarantees of the right of workers and employers to organize in occupational organizations, to bargain collectively and the right to strike, as well as mechanisms for worker participation at the enterprise level. Self-assessment Questions 1. “Employee” as an idea is a contested concept owing to its roots in the Common Law. Do the notions of ‘Master’ and ‘Servant’ have any relevance in today’s employment relationship? Discuss. 2. Discuss various sources of labour law in Zambia 3. What role is the ILO playing in labour issues in Zambia. 4. What is the role of labour law in society? REFERENCES Benjamin, P. (2005).A review of labour markets in South Africa: Labour market regulation: International and South African perspectives. Human Sciences Research Council. Cape Town, South Africa Benjamin, P. (2005).A review of labour markets in South Africa: Labour market regulation: International and South African perspectives.pp.3-8. Chicha, M.T. (2007) , A Comparative Analysis of Promoting Pay Equity: Models and Impacts, ILO. Edward,K. and Robinson,S (2012).Labor and Employment Law: A career guide. Bernard Koteen Office of Public Interest Advising Harvard Law School. Cambridge Massachusetts. 17 | P a g e Howe,J.(2010).The broad idea of labour law: Industrial policy, labour market regulation and decent work. Centre for Employment and Labour Relations Law, University of Melbourne. Australia. ILO (2007), Equality at work: Tackling the challenges, ILO Global Report, May 2007 Koteen,B.(2012). Labor and Employment Law: A career guide.p.4 Simamba,B.H.(1989).The International Labour Organisation and the right to collective bargaining :An African perspective.106.S.African.L.J. 517,1989. Chungu) and Beele (2020) ‘Labour Law in Zambia An Introduction’ second edition. Claremont 7708: Juta and Company (Pty) Ltd UNIT 2: WORK RELATIONS & THE LIMITS OF CONTRACT Learning outcomes By the end of this unit, you should be able to  Explain individual employment contracts;  Understand the dependence aspect and distinguish it from other legal relationships;  Understand the prerequisites regarding validity of the contract and void contract.  Distinguish a contract of service from a contract for service 2.1 Nature of Contract of Employment A contract of employment is one that creates the relationship of employer and employee. The law in Zambia recognizes express, implied, oral and written contracts of employment. This means that a contract of employment can be formed whether the employer and employee have a written document or none. Thus Zambian Law allows the creation of written and oral contracts of employment. The specific conditions that apply to an oral contract are stated in Part IV of the Employment Act while requirements for a written contract of employment are specified in Part V. The contract of employment is strictly regulated and you should ensure that you understand the minimum requirements that should apply to oral and written contracts of employment. 18 | P a g e  ‘Conditions of service’ refer to terms provided by the employer and agreed to by the employee as part of a package of terms inducing the employee to work for a particular employer. Conditions of service include matters such as:  rate of pay and intervals of payment  hours of work with or without overtime  holiday entitlements  pension arrangement  repatriation rights  conditions relating to sickness  payment of bonuses  and many other things, depending on the nature of the employment 2.2 The prerequisites regarding validity of the contract The requirements of a contract are consideration, offer and acceptance, legal purpose, capable parties, and mutual assent. When any of the required elements is lacking, vitiated, or irregular, the contract may become void, voidable, or unenforceable. a) Consideration Consideration is the value that convinces the parties to engage in a contract. Each party agrees to furnish an item of value to the other party in a contract. An example of consideration is when you are selling a boat. You want the buyer to pay you a certain amount, and then you, as the seller, will give the buyer the boat. Time considerations, payment terms, and any other expectations are factors that are associated with consideration. A contract will only be valid if both parties involved have clear consideration. b) Offer and Acceptance A contract needs to have a valid, understandable, and specific offer, and there must be acceptance of the offer. Both the offer and acceptance of offer must be brief but clear enough so there will be no room for error. Acceptance can be oral, written, or by way of conduct. In some instances, an exchange of words such as, "Would you take $100 for this boat?" and "Yes", is enough to constitute offer and acceptance. 19 | P a g e  c) Legal Purpose A contract must have a legal purpose that does not break any law. For example, it is not legal to hire someone to break into a building and steal something. If you get into an agreement to commit an illegal act, this would not represent a legal contract. The contract must meet the requirement of both implied and express statutory legality and of common law legality. In many cases, state and federal authorities may demand that more conditions be met. d) Capable Parties One must know or comprehend what one is doing to be considered "capable" of making a contract. Minors and individuals who have been proven insane are usually classified as not capable of entering into an agreement because they do not know what they are doing. Additionally, persons under the influence of drugs or alcohol can't enter into any binding contract. Both parties must enter into the contract willingly and not be forced to do so. e) Mutual Assent Each party in a contract has to agree on the meaningful terms and to be bound by the contract. Simply put, the parties must see eye-to-eye regarding the nature of the agreement and the contract specifics. In conclusion, for a contract to be valid and able to be enforced the above-mentioned elements need to put in to consideration. 2.3 Forms of the employment contract The law requires that oral and written contracts of employment comply with the following: 2.3.1 Oral contracts The Oral contract of employment must be evidenced in writing. The Employment Act requires that a record of the oral contract of employment is kept by the employer and a copy given to the employee. The minimum content of the contract as required is to be stated in the record of the oral contract of employment. The Employer has the 20 | P a g e  obligation to ensure compliance with these provisions. This legal burden ensures that the employer acts with fairness in the relationship. The record, which should be guided by the First Schedule to the Employment Code Act, must contain the following details:  the name, sex and nationality of the employee and the nationality of the employer;  the name, address and occupation of the employer;  the date of engagement and capacity in which the employee is employed;  the type of contract; the place of engagement;  the rate of wages and any additional payments in kind;  the intervals of the payment of wages;  any other prescribed particulars Whereas it may seem a bit odd that an employer must keep a record of an oral contract, it is submitted that this requirement is in place to protect the employee. In the event of a dispute, the record kept by the employer is available as evidence of the contract and some of the terms, especially those relating to wages. Section 20 of the Employment Code Act provides: In the absence of any agreement to the contrary, an oral contract of employment shall be a contract for the period by reference to which wages are calculated, except that where wages are calculated by reference to any period of less than a day, then, in the absence of any agreement to the contrary, the oral contract shall be a daily contract. In the absence of the record and in the event of a dispute concerning the terms and conditions of employment, the courts will rely on the employee’s version of events or statement, unless the employer proves the contrary Furthermore, section 21 of the Employment Code Act makes it clear that a party to an oral contract of employment for a period not exceeding one month must, where that person continues in employment after the expiry of the term of the contract, be presumed to have entered into a new oral contract for a further period of one month and be subject to the same. 2.3.2 Written contracts 21 | P a g e  A contract of employment that must be in writing is one that is for a period of six months or more, a contract of foreign service or one in which the employee is required personally to perform some specific work that cannot be completed under six months. Section 22(1) of the Employment Code Act provides that where an employer engages an employee for a period of six months or more, or for a number of working days equivalent to six months or more within a year, the contract of employment must be in writing. In addition, section 23(1) of the Employment Code Act provides: An employer shall prepare a written contract of employment specifying the rights and obligations of the parties to the contract and include the minimum particulars of the contract as set out in the Second Schedule. According to the Second Schedule, a written contract of employment must include the following: ‘ the name of the employer; the name of the undertaking in which the employee is to be employed; the official address of the employer; the nature of the business conducted by the employer; the name, age and sex of the employee; the permanent address of the employee; the nationality of the employee; the identity and social security numbers of the employee; the place of engagement of the employee; any other particulars necessary for the employee’s identification; the date of commencement, form and duration of the contract of employment; the date on which the employee’s period of service began, taking into account any employment with a previous employer that may count towards that period; the place at which, or the geographical limits within which, any work under the contract is to be performed; the ordinary working hours and days; the wages to be paid and the scale or rate of wages, the method of calculating the wages and details of any other benefits; the details of any cash payments, payments in kind or any other benefits; the intervals of payment of the wages of the employee, monthly or at a shorter period, as the case may be; if applicable, the particulars of any food to be provided under the contract or of any cash equivalent of the food; the deductions to be made from an employee’s wages; the nature of the employment and tasks, where applicable and practical, and the general operations involved and such 22 | P a g e  additional details as may be necessary to clarify the nature of the work for which the employee has been contracted; and any other prescribed particulars. 2.3.4 Attestation of a written contract of employment. Apart from the other contents that must be in a written contract of employment, the law requires that a written contract of employment is attested. This means that the contract must be certified compliant with the law by the Ministry of Labour. However, this requirement does not apply to employees who are literate. Where the parties are literate it is presumed that absent fraud and caprice the parties entered into the contract willingly. 2.4. Individual employment Contracts Just as in personal relationships, there is a need for clarity in professional associations. These are brought about by employment contracts, of which there are two types; individual and collective employment agreements. Every legally employed employee should have such an agreement before accepting a role with an employer, company, or organization A personal contract is where terms and conditions of employment, especially pay, are individually agreed without being collectively negotiated. The contract can be tailored by the employer so that employees have different terms of employment, benefits or pay arrangements to their colleagues. An Individual Employment contracts is a written contract between an employer and employee specifying the legal terms of their working relationship. Such agreements come into play when employees do not have a collective employment agreement or are not part of the relevant union represented in such an agreement. (Kathapal, 2022). Individual employment agreement refers to a document contracted between employer and employee setting and describing their legal relationship. This agreement is legally binding for both parties. Individual employment agreements are written to reduce the risk of misunderstandings by reminding parties about their rights and obligations. 2.4.1 Content of an individual contract 23 | P a g e  1. Names: of both employer/organization and employee 2. Job description: a detailed description of the work an employee would be doing, the roles they would be performing, and the job title they would be holding, among others 3. Nature of the agreement: whether or not it is an at-will employment contract. 4. Duration of employment: the employment agreement should indicate whether the employment is ongoing or has a set duration after which a new deal could be renegotiated. 5. Working hours: the number of days employees are required to work per week and the hours they should log. 6. Pay and payment structure: the agreement should detail remuneration for an employee. This could be in the form of wages/salary/commission and bonuses. The remuneration system should also be agreed upon along with potential compensation for overtime. 7. Clauses: this also includes the type of clauses present in an employment agreement, such as a non-compete. A non-compete clause prevents employees from leaving their job for a position in another company that would put them in competition with their employer. Another popular clause-like provision is confidentiality agreements. 8. Benefits: such as health insurance, retirement plans, leave duration, holidays, etc. 2.5 Void Contract In ordinary usage, the word "void" means a lack of existence, a nullity. It is not a terribly troublesome concept in the abstract, and its meaning has remained remarkably consistent over time.' It is, however, a very powerful word. It contemplates an absolute. Since "void" leaves so little room for nuance, the law has been compelled to recognize slightly more tempered states of nonexistence (Schaefer,2010). A contract may be deemed void if the agreement is not enforceable as it was originally written. In such instances, void contracts (also referred to as "void agreements"), 24 | P a g e  involve agreements that are either illegal in nature or in violation of fairness or public policy. Void contracts can occur when one of the involved parties is incapable of fully comprehending the implications of the agreement. For example, a mentally impaired individual or an inebriated person may not be coherent enough to adequately grasp the parameters of the agreement, rendering it void. Furthermore, agreements entered into by minors may be considered void; however, some contracts involving minors that have acquired the consent of a parent or guardian may be enforceable (Andrew,2022). Any contract agreement created between two parties for illegal actions is also considered a void contract. For example, a contract between an illegal drug supplier and a drug dealer is unenforceable from the onset due to the illegal nature of the agreed-upon activity (ibid). Voidable Contract vs. Void Contract The difference between void and voidable contracts Is that a void contract is illegal and unenforceable while a voidable contract is legal and the parties can enforce it. A void contract is invalid or entirely against the law, so no one involved can say it's enforceable under the law. Contracts that are voidable are valid and legally enforceable. DIFFERENCE BETWEEN VOID CONTRACT AND VOIDABLE CONTRACT Basis Void Contract Voidable contract Meaning A void contract means a Voidable contract means contract which cease to be a contract enforceable by forcible law by one or more parties Reason A contract may be void A contract is said to be due to change in law or voidable contract when circumstances consent of a party to the 25 | P a g e  contract is not obtained freely Legality A void contract is without Avoidable contract can any legal be enforced by the party Effect and hence cannot at whose option it is be enforced voidable By either party Compensation The question of Under a voidable contract compensation in the Event any person who has of nonperformance of received any benefit must avoid Agreement does not compensate or restore it arise as it is to other party Unenforceable from the very beginning Effect on If a contract is void on Voidable contract does Collateral account of its not affect the collateral transaction Object or consideration agreements. being illegal or Unlawful the Collateral agreement will Also become void Source (https://www.tezpuronline.co.in/attendence/classnotes/files/1600326747.pdf) In conclusion, the main difference between a void contract and a voidable contract is that the former is illegal and invalid from its inception, while the latter is a lawful contract but may become invalid if one of the parties decides to terminate or terminate the contract. 26 | P a g e 2.6 Contract of service vs Contract for service A contract of employment not usually defined to mean the same as a "contract of service". A contract of service has historically been distinguished from a "contract for services", the expression altered to imply the dividing line between a person who is "employed" and someone who is "self-employed". The purpose of the dividing line is to attribute rights to some kinds of people who work from others. This could be the right to a minimum wage, holiday pay, sick leave, fair dismissal, a written statement of the contract, the right to organize in a union, and so on. The assumption is that genuinely self-employed people should be able to look after their own affairs, and therefore work they do for others should not carry with it an obligation to look after these rights. 2.6.1 Contract of service The Contract of Employment is a ‘contract of service’, which must be distinguished from a ‘contract for service’. The difference between the two terms is important because a contract of service is used when an employer wishes to engage someone an employee. The Zambian Employment Act CAP 268 defines an employer as: 27 | P a g e  “any person, or any firm, corporation or company, public authority or body of persons who or which has entered into a contract of service to employ any person, and includes any agent, representative, foreman or manager of such person, firm, corporation, company, public authority or body of persons who is placed in authority over such person employed” The contract of service is defined as one in which one person works under the complete direction and control of another. It creates the status of employee. Statute does not define “contract of service” and only defines “employee.” The understanding of the meaning of ‘employee’ is important in Labour Law because ; (1) certain legal protection are only given to employees ;(2)statutes only give general definitions of concepts which have to be interpreted by the courts; (3) which working groups should be protected if there is a difference in their status? 2.6.2 Contract for service A contract for service differs from a contract of service in that the former is an independent contractor. It is common in some sectors such as mining for a company to have some people working for it under a contract of service and outsourcing other activities under a contract for service. The key factors influencing whether an organization will decide to engage labor through a contract for service is: i. It’s a project with a specific life period. ii. It makes business sense i.e. it’s more cost effective iii. There is need to ensure continuity of services iv. The outsourced function is not a core or key function in the organization. E.g. cleaning services A contract for services is one where the person employed works independently, that is, on his own account. The person who works under a contract for services is self-employed. The independent contractor works on his/her own account. The distinction between a contract of service and a contract for services establishes status as a source of employment rights. In this event you should understand that in a dispute involving an employer and employee the 28 | P a g e starting point for the court is to determine the status of the parties. This is important because the relation of employer/employee is subject to specific rights and obligations which do not apply to an independent contractor. The courts have evolved “tests” for distinguishing between an employee and an independent contractor. You should take note of the fact that the ‘tests’ used by the courts are not exhaustive and mainly provide a guide within which disputes can be resolved. Most of the regulation of the employment relationship today is subject to legislative control. SELF ASSESSMENT QUESTIONS 1. Explain the distinction between a written and oral contract of employment. 2. The Common Law recognizes a number of implied terms or duties. Discuss these terms and explain their legal significance in the regulation of the employment relationship. 3. Distinguish contract for serve from contract of service 4. Discuss the distinction between the two forms of confidentiality recognized at common law. Are they a justifiable incident of the employment relationship? REFERENCES Kathapal, A (2022) What is Individual employment agreement? Accessed on 4th June 2022 at https://longlist.io/hr-terms/individual-employment-agreement. 29 | P a g e  Schaefer, A (2010) Beyond a Definition: Understanding the Nature of Void and Voidable Contracts. Accessed on 9th July,2023 at https://core.ac.uk/download/pdf/232783427.pdf Andrew, A. (2022) Void Contract Definition and What Happens. Accessed on 9th July 2022 at https://www.investopedia.com/terms/v/void- contract.asp#:~:text=Key%20Takeaways- ,A%20void%20contract%20is%20a%20formal%20agreement%20that%20is%20eff ectively,as%20it%20was%20originally%20written. UNIT 3: RIGHTS & RESPONSIBILITIES UNDER THE CONTRACT OF EMPLOYMENT Learning outcomes By the end of this unit, you should be able to  Understand the Forms of dependent employment relationships;  Explain fixed-duration and permanent employment relationships;  Understand the apprentice contracts; stand-by duties; labour lending;  Distinguish special employment contracts; minors; disabled; managing directors and foreign worker. 3.1. Understand the Forms of dependent employment relationships Whether you are classified as an employee or not can have a significant impact on your benefits and entitlements. Therefore, it is essential to have a sound understanding of the types of employment relationships and the differences between them. Misclassification of an employee is a common issue that often arises in the termination of an employee’s employment and can lead to claims against an employer for wrongful dismissal, unpaid wages, overtime or vacation pay, or otherwise (Sultan Lawyers, 2022). 30 | P a g e  Zambian law regulates employment relationships of varying types. The employer/employee relationship is the dominant type regulated by the bulk of labour law. Other forms of labour are normally referred to as atypical, irregular or precarious employment relationships Casual workers: Casual workers are defined as persons employed under a contract that is daily but does not exceed six months. This category of workers is employed on daily contracts and do not enjoy statutory rights that are extended to employees. The contract for a casual worker comes to an end at the end of the day. This is irrespective of the intervals at which the wages are paid. Part-time workers: Part time workers are normally employed on short term contracts to perform work of a non-continuous nature. These individuals do not benefit from some of the statutory protection and rights that apply to employees. This category of employed persons may qualify for a limited number of rights but because of the nature of their work find themselves outside the law’s protection. This may occur because most employers are most likely to avoid registering such workers because of administrative costs that may be involved in recognizing them as regular employees. Domestic workers: Domestic workers are employed in domestic settings and are normally employed under an informal contract. Domestic workers are currently given limited protection under statutory law. The Statutory Order for Domestic Workers seeks to provide some measure of protection such as creating a minimum wage for domestic workers. Challenges that may be presented in the implementation of this law may arise in the area of enforcement or administration of the statutory provisions. Workers on fixed term contracts: Fixed term contract workers may enjoy a significant number of statutory rights that apply to employees. In typical arrangements they enjoy the same rights as employees except such benefits as gratuity which individual workers have to negotiate with their employers. Workers employed under triangular relationships: Triangular employment contracts are those in which the worker is ‘employed’ by an agency or similar entity 31 | P a g e  on behalf of a ‘user’ of labour. In this case, therefore, three parties are in place, that is, (1) a user of labour who gets (2) labour from a (3) supplier of labour called an agency or a broker. The user of the labour whilst being the employer in reality has no legal obligations to the worker. This places the worker in a difficult situation when it comes to asserting rights and seeking redress for injury to vested rights that should exist in an employment relationship. Worker User of labour Agency 3.2 Fixed-duration and permanent employment relationships Various types of written contract exist for different employment relationships, namely, those for temporary employment, short-term, long term (previously called ‘fixed-term contracts’), seasonal and permanent contracts. 3.2.1 Temporary employment Temporary employment occurs when a person is engaged to do relief work under a contract of employment in the absence of a regular employee; it may include employment that is part-time but does not include a person who is engaged on a short- term contract. With part-time employment, the working hours are at least one-fifth of those under the Minimum Wages and Conditions of Employment Act or Ministerial Orders (depending on the type of employee) or in accordance with a collective agreement. 3.2.2 Short-term contract A short-term contract is an employment contract of at least six months but not exceeding 12 months’ duration. Where an employee who is engaged on a short-term 32 | P a g e  contract continues to be employed after the expiration of the short-term contract, the short-term contract must be deemed to be a fixedterm contract. 3.2.3 Long-term contract A long-term contract employment covers employees who are engaged for a period exceeding 12 months; it is renewable for a further term or for the performance of a specific task or project that is to be undertaken over a specified period of time and whose termination is agreed to and fixed by the employer and the employee. The contract of employment must specify the number of times the contract may be renewed. Where an employee who is engaged on a fixed-term contract continues in employment with the same employer after the expiration of the prescribed cumulative period, the contract must be deemed to be a permanent contract. 3.2.4. Seasonal employment Seasonal employment refers to employment under a contract of employment where the timing and duration of the contract are influenced by seasonal factors such as climate, or an agricultural or a business peak cycle. This differs from employment which is permanent in nature, where the employment period exceeds six months and the position is necessary for the sustainable operation of the employer’s business. 3.2.5 Permanent employment Finally, employment is permanent in nature if it exceeds six months, is not regarded as casual work and is commenced and regulated under a written contract of service. Permanent employment is also employment that is necessary for the continued or sustainable operation of the undertaking or that is core to the objectives of the undertaking. 3.3 Apprentice contracts; stand-by duties; labour lending 3.3.1 Apprentice contracts The apprenticeship contract is an employment contract between an employer and a young person aged 16 to 29 who has completed his/her compulsory schooling 33 | P a g e  (derogations are possible). The duration of the contract varies from 6 months to 3 years, depending on the occupation and qualification. Pay varies according to the apprentices' ages and their tenures in training. The employer’s benefit from public subsidies. The controller of Apprentices has to grant written permission to employ a minor who is eligible for service as an apprentice for period longer than 6 months Any person who has the necessary qualifications and has obtained a certificate of physical fitness appropriate to the needs of the designated trade; has attained the prescribed age and is not required by law to attend school, may bind himself as an apprentice. A minor must be assisted by his guardian to bind himself as an apprentice. If the person is not a minor, he may not bind himself except with the consent of the controller. The controller has the discretion to refuse to register a contract of apprenticeship if in his opinion it is not in the interest of the apprentice to enter into such contract. The employer may suspend an apprentice if his is satisfied that the apprentice has committed a serious breach in the terms of his contract but any employer who does this must report the matter to the employer within seven days of the suspension. Any person who employs a minor contrary to the provisions of the Act or fails to lodge a contract within the times prescribed in the Act is guilty of an offence and is liable on conviction to a fine or imprisonment, According to the Apprenticeship Act, Cap 275, Laws of Zambia, a minor is defined as any person below the age of 21 years. The Act does not apply to students at university, university college, technical college or school who work in designated trades during vacation to obtain experience. Also does not apply to work performed in or in connection with educational institution approved by the minister as part of training having obtained a diploma or degree of a university, university college, technical college. The Act also does not apply to a person who works in a designated trade in order to obtain practical experience or any person working in a designated trade as part of his training as a pupil engineer. 3.3.2 Stand-by duties 34 | P a g e  Standby duty is defined as a scheduled duty status that confines an employee to an employer-designated duty location for longer than ordinary periods of time and requires the employee to remain in a constant state of readiness to perform work during such time. Employees meeting these criteria are entitled to overtime pay for standby duty (DCPS,2022) The main issue in determining whether an employee is entitled to overtime pay for standby duty is the nature of restrictions placed on the employee by the authorizing official. Time spent on standby duty is hours of work if, for work-related reasons, the employee is restricted by official order to a designated post of duty and is assigned to be in a state of readiness to perform work with limitations on the employee’s activities so substantial that the employee cannot use the time effectively for his or her own purposes. A finding that an employee’s activities are substantially limited may not be based on the fact that an employee is subject to restrictions necessary to ensure that the employee will be able to perform his or her duties and responsibilities, such as restrictions on alcohol consumption or use of certain medications (ibid). An employee is not considered restricted for “work-related reasons” if, for example, the employee remains at the post of duty voluntarily, or if the restriction is a natural result of geographic isolation or the fact that the employee resides on the agency’s premises. For example, in the case of an employee assigned to work in a remote wildland area or on a ship, the fact that the employee has limited mobility when relieved from duty would not be a basis for finding that the employee is restricted for work related reasons 3.3.3 Labour lending According to the Job concepts (2023) labour lending refers to an activity where Lessor (JobConcept) leases the Staff employed by him for the purpose of labour lending to Borrower (the Partner) to perform a job, in return for a fee. Lessor: an employer (Job Concept), who leases the Staff employed by him for the purpose of labour lending to Borrower to perform a job, and where he exercises his employer's rights and meets his employer's obligations as divided up between him and Borrower. Borrower: an employer (a Partner), who gives a job to the staff transferred to him in the frame of the lease, and who exercises his employer's rights and meets his 35 | P a g e  employer's obligations as divided up between him and Lessor. Any employer can be a borrower employer. There following are the advantage of labour lending 1. A leased employer shall not be calculated in the statistical number of staff of the Partner. This advantage is mostly important for multinational companies, as it is there that in most cases staff number limits are imposed by Headquarters for specific work areas. Labour lending offers room for expansion by abiding by the rules, while respecting the set performance provisions! 2. It can offer fast solution to meet increased quantities of orders placed, to handle situations of paid-leave, sick-leave, seasonal work. In addition to its cost- effectiveness, it also allows for flexibility and fast reaction to the challenges of the market. 3. Most of the work hours and costs spent on recruitment and selection of staff can be saved, as well as the administrative burden of wage accounting. Resources so liberated can be re-affected to other purposes 4. The negative impact of paid-leaves and sick-leaves can be reduced. 3.4 Special Employment Contracts 3.4.1 Employment of disabled people According to the National Policy on Disability, a disability is defined as “Any restriction resulting from an impairment or inability to perform any activity in the manner or within the range considered normal for a human being and would or would not entail the use of supportive or therapeutic devices and auxiliary aids, interpreters, white canes, reading assistants, hearing aids, guide dogs or any other animal trained for that purpose.” (2013, National Policy on Disability). Similarly, the World Health Organisation (WHO) defines the term disability as “an umbrella term covering impairments, activity limitations, and participation restrictions.” An impairment is defined as a problem in body function structure; an activity limitation is a difficulty encountered by an individual in executing tasks or actions; while a participation restriction is a problem experienced by an individual in involvement in life situations1 (WHO, 2018). Although previously viewed as a health challenge, disability is now 36 | P a g e  widely viewed and identified as a complex phenomenon relating to the interaction between features of the human body. It is illegal to discriminate any employee based on their physical disability. The law eliminates any form of discrimination against those who have disabilities but are able to carry out their duties without hindrance. Zambian law prohibits discrimination based on physical or mental disability unless such an employee is certified unfit for duty by a qualified medical practitionerr. The Zambian persons with disability Act promotes the participation of persons with disabilities with equal opportunities in the civil, political, economic, social and cultural spheres; provide for mainstreaming of disability issues as an integral part of national policies and strategies of sustainable development; incorporate a gender perspective in the promotion of the full enjoyment of human rights and fundamental freedoms by persons with disabilities; ensure accessibility by persons with disabilities to the physical, social, economic and cultural environment, and to health, education, information, communication and technology; provide for the regulation and registration of institutions that provide services to persons with disabilities and organisations of, and for, persons with disabilities. 3.4.2 Employment of young persons and children The employment of young persons and children is under careful control by the government. This is because there is bound to be abuse by employers as regards use of this category of these persons. Further, government has put in place a number of measures through legislation to control the situation. The legal background and the relevant law applicable: Many children of Zambia need protection from the risk and harm that threatens their rights and wellbeing. Exposure to poverty and deprivation is wide spread. Many children are exposed to violence, abuse and exploitation through illegal employment practices. It is estimated that there are 13000 street children and 20000 child headed household (UNICEF, 2008). Most of these children are between ages 7 and 14 therefore a range of social protection programmes is required. Under the ministry of gender and child development, the government is establishing social assistance programmes. 37 | P a g e  Child labour is widespread in Zambia. In 1999 it was estimated at 600,000. By 2008 the number was 900,000 according to Labour Force Survey. By now the number could be close to 2,000,000 following this trend. Majority work done by children is meant to supplement family income. This takes place at the expense of the children’s’ education. Child Labour and Conventions The government has recognized the dangers of child labour and its off shoots of abuse, exploitation and deprivation of education of school opportunities. The government has also realized the impact of HIV/AIDs on the children as it leads to an increase of orphans. When children lose one parent or both, they are forced to abandon school as no one can support them financially. Some of these children are “adopted” by relatives or well-wishers but some are not looked after well. They end up being “workers” for these people. To control some of the effects of this development, Zambia has ratified some Conventions to help out. One such convention is the Convention On the Rights ofthe Child (CRC) of 1989. The government has also ratified the African Charter On the Rights and Welfare of the Child of 1990 and the Worst Forms of Child Labour Convention of 1999. Zambia is obliged to take measures to prohibit and eliminate worst forms of child labour. Article 3 of the CRC requires members to prevent employment of children less than 15 years. Art 32 of the same convention provides that every child has the right to protection from economic exploitation and hazardous work or work likely to interfere with the child’s education or be harmful to the child’s health or physical, mental, spiritual or social development. Child rights: These are rights of the child which include prevention of physical abuse, sexual abuse, neglect, and mental abuse amongst others. What does the law say about these rights? These rights are found in different pieces of legislation of the laws of Zambia. A child is entitled to the following civil and political rights: Name and nationality (Convention of the Rights of the Child). Not to be subjected to corporal punishment Others rights are that: The child has equal rights before the law 38 | P a g e  All decisions regarding the child, consideration should be for the best interest of the child A child should be protected in times of armed conflict A child should not to take part in armed conflict A child should not to be discriminated, neglected or abused A Child is entitled to parental care A Child is entitled to free primary and secondary education The Government should protect a child with special needs and a child who I is orphaned States should protect children with special needs, an orphan or a child whose parents or guardians are in prison or unfit to look after the child. The state should also protect the child with a disability or a child who is a refugee and a child who is homeless or lives or spends time on the street. Rights of Youths and Young Persons : These include the following: Right to personal development Right to participate in governance Right to have access to gainful employment A young person should not be engaged in employment which will affect the young person’s health or education. Should not be employed in work affecting his mental or moral development A young person may be employed for a wage as prescribed Child abuse and exploitation are a continual problem in Zambia. There are high levels of defilement, child marriage, teenage pregnancies, school drop outs, child labour, street children and child prostitution in Zambia. It has been established by legal researchers that this has been exacerbated by an ineffective legal framework for child protection. There is also lack of coordination between government and civil society who deliver services for children. There are also some inconsistencies in the definition of ‘child’ in different pieces of legislation. It is estimated that there are about 26 pieces of legislation which provide for and regulates the rights of children. The terms ‘young person’, ‘infant’, ‘minor’, or ‘juvenile’ and child’ are all used all of which have a different age category. Other Statutes aimed at curbing child labour 39 | P a g e  Three statutes stand out as meriting special attention because they adequately cover the issue of employment and young children. These are the Employment Act, Minimum Wages and Conditions of Employment (Domestics Workers) Order, the Employment of Young persons and Children Act and the Apprenticeship Act. 1. Employment Act Cap 268 Employment Act does not define child. In the Act “Young person” defined as person who has not attained the age of 15 years (s 12). Young people cannot be employed except in certain circumstances. Exception is when young person is employed during school vacation, or a young person cannot secure admission to a suitable school or enrolment has been cancelled. A proper officer must approve this to take place 2. Minimum Wages and Conditions of Employment (Domestic Workers) Order 2011 Clause 14 of this Act prohibits the employment of a child as a domestic worker. ‘Domestic worker’ is defined as a person employed to perform any domestic chores in a household. A person who takes care of a child, an aged person, a frail person or a person with a disability within the household or gardens. A child is defined as a person under the age of fifteen years. 3. Employment of Young Persons and Children Act No. 10 of 2004 The purpose of this Act is to regulate Employment of Young Persons and Children. The Act defines “child” as being under 15 years. A “Young person” is defined as person who has ceased to be child but is under 18 years. Children are prohibited from employment in industrial undertakings. These include mines, quarries and places where minerals are extracted from the earth. Prohibition includes places where demolition of buildings takes place, preparations of laying of foundations, transport on road or railway, etc. These include commercial, agricultural or domestic worksite. A child can however be employed if the work constitutes artistic performances allowed by Statutory Instrument produced by the Minister. A child can also be allowed to work if work is part of education approved by Permanent Secretary. 40 | P a g e  Children may also not be employed in covered worksites. S3 (b) of the Act further prohibits employment or work which by its nature constitutes a worst form of child labour. Worst form of labour includes all forms of slavery and all practices similar to slavery, use procuring or offering of a child for prostitution or production of pornographic films. It also includes engaging a child in work that is by its nature or the circumstances in which it is carried out is likely to harm the health, safety and morals of children or young persons. Section 3 (b) of the convention No. 182 includes: All forms of slavery Use, procuring or offering a child or young person for prostitution, pornography, etc. Use or procuring a child for illicit activities such trafficking of drugs, etc. Work likely to harm a child or young person’s health, safety or morals Contravention of these provisions attract sanctions. This may be a fine of not less than 200,000 penalty units or imprisonment of not less than 5 years. This is as a requirement because Zambia has signed the Convention on Worst Forms of Labour. In Zambia, we often see a high number of children involved in child labour on farms and on road sides selling merchandise. We also see a large number breaking stones for sale. Obviously, this kind of work endangers the young person’s and children’s and health and safety. This should by no means be allowed to occur. 3.4.3 Employment of foreigners It is demand that that An Employment Permit is issued to a foreigner who enters the country to take up employment for a period exceeding six (06) months. It can be extended for periods up to a maximum of 10 years. It is issued to a foreigner who is: 1) Employed by the Government of Zambia or a statutory body; 2) Employed by the private sector, Non-Governmental Organisations (including a person employed as a volunteer) or a religious organization; and 41 | P a g e  3) The spouse and children, over twenty-one years, of a foreigner may be issued with Employment Permits if they are to be employed in the family business. The permit authorises the holder to enter and re-enter into and to remain within Zambia until the permit expires. However, if it is a first-time application and the successful applicant requires a visa to enter Zambia, such a person is still required to apply for a visa to enter the country to collect the permit. Obligations of Employer: An employer shall make effort in good faith to ascertain that no illegal immigrant is employed or to ascertain the status or citizenship of those employed by the employer. Obligations of Holder: The holder of an Employment Permit shall comply with the conditions specified in the permit and shall not engage, for gain, in any activity, business, trade, employment, profession, study or any other thing not specified in the permit. Note: Only an Employer, a Practicing Lawyer and an Immigration Consult can apply for Employment Permits on behalf of a prospective expatriate. The individual expatriate cannot do this on their own. 3.5. Implied Terms in the Contract of Employment The law of contract is founded on the assumption that the parties to a contract exercise free will to decide their own terms to regulate the contract. However, the courts have tended to read into contracts terms which the parties did not specifically include. Courts have implied terms into contracts based on surrounding facts, necessity or implied terms 42 | P a g e  by lawiv : Liverpool City Council v Irwin. The implication of terms is meant to give effect to the unexpressed wishes of the parties looking at the common intentions of the parties, actual or imputed. Secondly, courts will imply terms in contracts by law into contracts of a particular type, that is, irrespective of the intentions of the parties.v This is done on the footing that absent the implication the contract would be impossible to perform. The contract of employment as a contract sui generis has terms implied into it by the courts. These terms are commonly referred to as implied duties and are discussed below. 3.5 Implied Duties of the Employer 3.5.1 Duty to provide work The Common Law does not, as a general rule, recognize a duty to provide work but to pay the employee wages due under the contract. The statement of this position was aptly made in Collier v. Sunday Referee Publishing Co.Ltdvi wherein the Court stated that an employee who is paid his/her wages cannot complain if no work is provided as long as the employer paid the agreed wages. This position of the law seems to stem from the ‘master’ and ‘servant era where the employer as master determined and controlled every aspect of the work to be performed by the employee. The second view is a modification of the general rule and states that in some cases the employer has an obligation to not only pay a wage but also to provide work to the employee. These cases include instances where it is required to maintain the employee’s publicity and reputation:vii Herbert Clayton & Jack Waller Ltd. v Oliver, to enable the employee to earn the wage: Turner v Sawdonviii or to enable the employee to develop or maintain his skills:Langston v Amalgamated Union of Engineering Workers.ix 3.5.2 Duty to Pay Wages The employer is under an obligation to pay the employee a wage and commits a fundamental breach if he fails in this duty: Duckworth v P.F Farnish Ltdx.The employee can bring an action on a quantum meruit where no wage was fixed at the time of entering into the contract. An action for repudiatory breach arises where the employer fails to pay wages. 43 | P a g e 3.5.3 Duty to take reasonable care and provide a safe system of work The Common Law rules of negligence apply to the employment relationship as well. This means that the employer is obligated to ensure that the work environment is safe and not likely to cause injury. The duty of care implicit in this obligation exposes the employer to an action for damages for failure to prevent injury. Critical aspects of this duty require that the employer puts in place safe work practices, safety equipment and training, supervision, adequate personnel and takes corrective measures to prevent future accidents. Like in the law of negligence the employer’s duty extends only to liability that is reasonably foreseeable. He is only liable for failure to take ‘reasonable care.’ The relevant tests to determine whether or not the employer has discharged his obligation include the following: 3.5.3.1 Likelihood of injury An employer who is aware of the likelihood of injury from past experience fails in the duty if he does not take steps to correct the situation: Hudson v Ridge Manufacturing Ltd.xi In this case the employer failed to stop a practical joker in the workplace who caused injury to other employees and was held liable for breach of the duty. 3.5.3.2 Nature of the risk and the probable consequences The employer who has done his part in making the work environment safe will not be held liable if the employee does not comply with the safety scheme in place. For example, if the employer provides safety wear and the employee neglects, fails or ignores to use it the employer will not be held liable: Qualcast (Wolverhampton)Ltd v Haynes.xii Would you agree that this takes care also of the requirement of reasonableness and foreseeability? 3.5.3.3 Known characteristics of the employee. An employer who is aware of some pre-existing risk or predisposition to injury fails in the duty if he does not take steps to reduce likelihood of injury: Paris v Stepney 44 | P a g e  Borough Council.xiii Paris had only one eye and the employer who rarely gave protective goggles failed in the duty because he did not provide him with some when it was known loss of his one eye would be fatal. 3.5.3.4 The cost of prevention The employer is not expected to do the impossible. The duty as already stated is limited to foreseeability and reasonableness. It does not extend to cases where the cost of prevention would far outweigh the benefit of safety measures. Thus in Latimer v AECxiv the employer put saw dust in many places to make flooded work places safe. An employee who suffered injury failed in an action for damages when the court held that the employer had put in place sufficient controls to prevent injury and therefore was not liable. The court did not expect the employer to close his factory. 3.5.4 Duty of Mutual Trust and Confidence The duty of mutual trust and confidence means that the employer must not work in a manner that is calculated or is likely to destroy the mutual trust and confidence between the parties. This formulation was affirmed in the leading case of Malik v Bank of Credit xv and Commerce International. This duty is based on fairness as an integral and necessary requirement of a contract of employment. In Malik the plaintiff Bank in liquidation was found liable for stigma damages for having run a fraudulent banking operation. The court supported the argument that the bank’s actions had rendered the plaintiffs unemployable through their association with the defendant bank and awarded damages. An employer’s acts that are calculated or likely to injure the reputation of the employee fall under this general common law duty. 3.5.5 Duty to indemnify the employee against liabilities and losses An employee on duty does so for the benefit of the employer. Any expenses, losses or liabilities that the employee suffers are chargeable to the employer: Re Famatima Development Corporation Ltd. xviThe employer is merely restoring the employee to his/her original position. The employee would not have incurred or suffered loss but for the employer’s business. The duty is capped by the requirement of expenses reasonably incurred on behalf of the employer. Egregious or extravagant spending would not qualify for indemnity. 45 | P a g e 3.5.6 Testimonials and references An employer is under no obligation to provide testimonials or references to employees. An employer who issues a testimonial or reference is subject to the rules of negligence. He owes a duty of care to the former employee and potential employer not to cause injury to them. The future employer who suffers loss may sue for reliance loss: Hedley Byrne v Heller and Partnersxviiand the former employee can sue for injury to reputation if he can show malice on the part of the employer. For example in Spring v Guardian Insurancexviii the employer used unflattering language to describe the employee in a reference. It was held that even if he honestly held the negative view of the employee he had been negligent and had breached the duty of care that by law he was under. 3.6 Implied Duties of the Employee The Common Law looks at the contract of employment as one founded on faithful service and loyalty. This is evidenced in the implied terms of; personal service, obedience, reasonable care and skill, and good faith and loyalty. 3.6.1 Duty of Personal Service The employment contract requires personal service: Ilkiw v Samuels.xix This means that an employee cannot substitute him/herself like in the case of a contract for services. The contract of employment is personal. Recall that the contract is founded on the master and servant principle.(Read the case of Express and Echo Publications Limited v Ernest Tanton (1999) EWCA Civ.949, IRLR 367, ICR 693) 3.6.2 Duty to obey reasonable and lawful instructions The employee is under an obligation to carry out all reasonable and lawful instructions of the employer. A moody, sulky or grumpy employee is validly dismissed for breach of this duty : Pepper v Webbxx 46 | P a g e  The duty of obedience is, however, not absolute. It is subject to exceptions. Instructions that are outside the scope of the contractxxi, are illegalxxii or which expose the employee to unjustifiable riskxxiii cannot bind the employee. 3.6.3 Duty to exercise reasonable care and skill The contract of employment assumes that the employee possesses the necessary skill, capacity and competence to perform the work for which he is employed. This duty is subject to the nature of the work to be done, skills, and qualifications. Thus an accountant who failed to do basic bookkeeping was held to have been validly dismissed for breach of this duty:Agholor v Cheseborough Ponds (Z) Ltd.xxiv 3.6.4 Duty of good faith and loyalty Employees are expected to be faithful and loyal. The employment relationship is founded on trust that may include the following situations: 3.6.4.1 Conflict of interest The employee must not put himself in a situation where his interests and those of the employer conflict. (See Woodpecker Inn v Stockdalexxv). An employee whose interests conflict with that of the employer will be presumed to favour personal interest and acts in breach if he does not declare interest but proceeds to act in a matter. 3.6.4.2 Solicitation of customers A former employee can be restrained from soliciting clients of the former employer after the employee has left employment: Robb v Greenxxvi. 3.6.4.3 Confidentiality During the course of employment the employee comes across so much information which may include trade secrets and special methods of doing business. Courts have distinguished between two types of confidential information being information of a proprietary nature (trade secrets) and confidential information of a non-proprietary nature. The later type is not protected while the formal enjoys legal protection: Faccenda Chicken Ltd v Fowlerxxvii.He is under a duty not to disclose such 47 | P a g e  information even after leaving employment: Nordenfelt v Maxim Nordenfeltxxviii.This duty is not absolute and is subject to limitations established by the courts. It must not be too wide or unenforceable and it must not be contrary to public interest. It must only protect a legitimate proprietary interest and not be used as a way of avoiding competition (See also J. K. Rambai Patel v Mukesh Kumar Patel). 3.6.4.4 Du