THE Zimbabwe Domestic and Allied Workers’ Union has sued Public Service, Labour and Social Welfare minister July Moyo and some arms of government over a provision in the Labour Act that precludes domestic workers from compensation if injured or harmed in the line of duty.
BRENNA MATENDERE
The National Social Security Authority (Nssa) is cited as the second respondent and the Zimbabwe Gender Commission as third respondent.
Toendei Dhure, the general secretary of the union, is the applicant.
In his founding affidavit, Dhure says his union’s primary objective is to protect the interests of domestic workers as defined by section 3 (e) of its constitution which entitles it to promote, support or oppose through lawful methods any proposed legislative or other measures affecting the interests of its members.
The union operates in seven provinces of Zimbabwe and has a wide membership constituting a total of 6 814 members as at July 2023.
As minister of Public Service, Labour and Social Welfare, Moyo, who is the first respondent, is responsible for administering the Labour Act [Chapter 28:01] and for establishing social security schemes in terms of section 3 of the National Social Security Authority Act [Chapter 17:04]. The union said many of its members have sustained injuries, some of which are permanent.
For the purposes of the court application, the applicant detailed the lived experiences of domestic workers, namely Lorene Makarutse, Loriat Mungwere and Sofia Bweya, who suffered substantial injuries in the course of their employment for which they received no compensation by virtue of being domestic workers.
Domestic workers are deemed employees by the Labour Act and the Domestic Workers’ Employment Regulations Statutory Instrument 377 of (1992).
The legislative framework considers domestic workers to be employees.
This definition is also consistent with the definition of employees in the parent act, the National Social Security Act [Chapter 17:04] which was created to benefit employees.
Domestic workers carry out duties similar to those in non-household employment by providing work in corporate environments but still remain excluded in the Labour Act.
“I aver that the statutory right to compensation afforded to other workers and non-household domestic workers is a legal benefit that is not afforded to domestic workers and arbitrarily excluding one class of workers or category of workers is an affront to this particular right,” Dhure said.
“I further aver that distinction is in direct violation of these individuals’ workers’ rights to benefit from a social security scheme. I further aver that the deprivation of this statutory right does not serve a legitimate government purpose thus making the deprivation irrational and in violation of section 56 (1) of the constitution of Zimbabwe. I further aver that the provision is discriminatory and such discrimination is multifaceted.
“I aver that there is indirect discrimination based on gender and social status contrary to section 56 (3) of the constitution of Zimbabwe. Domestic workers in private households are generally predominantly women.”
He further argues that domestic work in private households is generally undervalued due to the patronising attitudes of a historically patriarchal society.
“I therefore submit that section 4 (3) (e) of the notice indirectly discriminates against women and as such must be severed down as it is inconsistent with section 56 (3) of the constitution of Zimbabwe. I aver the discrimination on gender is not fair because it deprives women carrying out domestic work the right to benefit from the statutory right to receive compensation when injured in the workplace, which right every other worker is afforded.
“Such unfair discrimination is unreasonable and unjustifiable in a democratic society based on openness, justice, human dignity, equality and freedom especially when such unfair discrimination is a remnant of the colonial era.”
Accordingly, Dhure wants section 4 (3) (e) of the National Social Security Authority Accident Prevention and Workers’ Compensation Scheme (Statutory Instrument 68 of 1990) declared constitutionally invalid as it violates section 56 (1), (3) of the constitution of Zimbabwe.
He also wants Moyo ordered to amend the Accident Prevention and Workers’ Compensation Scheme, particularly section 4 (3) (e), by completely severing the whole provision as is.
In addition, he wants Moyo to file with the court the amended version of the statutory instrument reflecting the demanded changes within three months from the date of the order.
