The Zambian Employment Code Act N. 3 of 2019 entered into force on 12^th May 2019, with one-year grace period for certain specific provisions to be complied with by the employers. This Code compiled and harmonised different pieces of legislation on employment rights and benefits, termination of employment, the minimum wages and conditions of employment and the prohibition of employment of young persons and children.

After operating for almost a year, it was clear from an employers’ perspective that the Code “is not an enabler for sustainable enterprise and therefore, does not create an environment for decent employment creation in the Country”. When Covid-19 hit, upon suggestion of the Zambia Federation of Employers (ZFE) to the social partners, the Government of Zambia, together with the social partners, decided to invoke article 2 of the Code, which provides that: “the Minister may, after consultation with the Tripartite Consultative Labour Council, by statutory instrument, exempt any person or class of persons or any trade, industry or undertaking from any of the provisions of this Act”. This provision is not open, since it “permits ‘exemption’, that is to say, to make certain provisions or parts of the Act inapplicable to a certain class of employees”, or trade, industry or undertaking.

The social partners then met through the Tripartite Consultative Labour Council (TCLC) and also bilaterally to agree on implementing exemptions to the Employment Code.

These exemptions included “dispensing with the need for an employer to give notice in redundancy cases” where the employer is in financial distress and “suspending the need for the employer to pay lump sum redundancy benefits upon termination of the contract of employment so as to allow for the employer to work out a flexible payment plan”.

The exemptions to the Employment Code Act only apply to a special category of employers and upon strict control of the Ministry of Labour and Social Security. For instance, the TCLC decision refers to:

• Section 48 on basic pay provides that “Employers who have been severely hit by the coronavirus and are not able to keep employers on forced leave and pay them basic pay as provided for under section 48 of the Employment Code Act No. 3 of 2019 can now apply to the Ministry to receive exemptions from the requirement to pay basic pay but instead simply place employees on unpaid leave”.
• Section 55 (2) on Notice of Redundancy allows “Exemption toan employer fromthe requirement of giving notice of not less than Sixty (60) days’notice to anauthorized officer of the impending termination by reason of redundancyif anemployer can prove financial incapacity to the Labour Commissioner and theextremeurgency accompanying the termination”.
• Section 75 on overtime states that “The ECA currently provides for overtime to be paid to anemployee who on agreement with employers works for more than 48 hours in a week.A Manager is covered in the definition of an employee. Agreement was reached toexempt expatriates, and management employees from the application of over time”.

Another key section of the Employment Code Act No. 3 of 2019, which received exemptions is section 36 on Annual Leave days that prohibited the carrying forward of accrued leave days from one financial year to another. The Act had required that all leave days accrued in a year must either be taken as leave by the employee during the financial year or be commuted (paid off) at the end of each financial year.

Based on the tripartite consensus reached within the TCLC, the above-mentioned exemptions became permanent amendments to the law.

The Zambian Employers were very pleased with the exemptions. Mr. Harrington Chibanda, Executive Director of the ZFE commented this process as “a very good example of what can be achieved through social dialogue” and also “the demonstration that when a regulation has such a clear impact on increasing the cost of business and hindering the creation of employment, any improvement to such a regulation would benefits to the entire society. This is what we hope for our country”.