Organisations have the obligation of developing a human resource policy that complies with the labour requirements in any Country. Having contracts with staff provides legal grounds and some safety nets for proper and responsible management association between the staff and the employer. However, most employees’ failure to read and understand contracts fully undermines the critical role that such contracts should play. That’s why a contract should also be verbally communicated to employees as part of their induction and continuous training.
Employees make up the foundation of any one organisation. For a typical operating strategy and service delivery system, internal service quality (in form of work design, employee selection, development and reward) ensures a satisfied employee, which results into employee retention and hence productivity. It is this excellent work performance which breeds into customer satisfaction, customer loyalty, revenue growth and hence profitability.
The organisation’s number one goal in designing and implementing work-related policies should be to avoid expenses and distractions of employee-related legal action. Protecting the organisation’s image from the media or unhappy clients should be critical and so is protecting it from its own employees.
The Regulatory framework
The following regulatory framework applies to labour relation in Uganda
• The 1995 Constitution of the Republic of Uganda
• The Employment Act, No. 6 of 2006,
• The Labour Unions Act No. 7 of 2006
• The Labour Disputes (Arbitrations and Settlement) Act No. 8 of 2006 which provides for the resolution of Labour disputes.
• The Occupational and Safety and Health Act replacing The Factories Act and providing for working conditions at work place
• The Workers’ Compensation Act which regulates compensation to workersfor diseases and injuries sustained in the course of employment,
• The National Social Security Fund Act, that obliges employers to deduct 5% of an employee’s salary and make a 10% contribution towards the Employee’s savings with NSSF;
• The Pensions Act that provides for Pension of civil servants,
• The Local Governments Act that provides for Pension of civil servants,
• The Public Service standing Orders,
• Whistle Blowers Protection Act, 2010
• The Minimum Wages Advisory Board and Wages Council Act, 1957
• Common Law and the doctrines of equity by virtue of Section 14 of the Judicature Act, e.t.c
The Employment Act, applies to all workers employed by an employer under a contract of service. However, it does not apply to:
(a) the Uganda Peoples’ Defense Forces other than their civilian employees and
(b) employers and their dependent relatives when dependant relatives are the only employees in a family undertaking where the total number of dependent relatives does not exceed five.
The Minister is mandated on consultation with the Labour Advisory Board to exclude from the application of all or part of this Act, limited categories of employed persons in respect of whom special problems of a substantial nature arise.
1.1 HISTORICAL ASPECTS OF LABOUR LAW;
Slave society.
The structure of society during slave trade was between master and servant. A master owned a salve, that is, ownership of a human being by another. During slave trade, a slave did not have rights and hence had no choice of employment. They lived a life of bondage. In slave societies, there were free men and unfree men. The freemen determined working conditions.
The feudal era between 800 and 1450 AD
In the feudal societies, there were risks of injury to both the state and the person. The roman law had a concept of delict (tort) but this law was class oriented. The transition from slave trade occurred during the collapse of the Roman Empire which was run by Bavarians and was largely dependent on slave production. Production based on slavery was no longer sustainable as a mode of production due to social pressure against slave trade. As trade evolved, it increasingly became important to reserve communities engaged in slavery and to leave them to be viable trade partners, so slavery ceased. There was also an issue of imbalance in the slave population. Slave society was predominantly male and therefore production was affected. The other characteristic of feudal era was that there were patrons in small units called coloni. These owned land and former slaves would live in these smaller units, most of which were agricultural production. They lived together and shared common facilities thus out of these new units, the feudal system developed. The new system was based on feudal land ownership (serfdom) with serfs as direct producers who were tied to the land. Land was mainly for agriculture and scattered domestic industry. Agriculture was carried out by use of the water wheel, harness and the plough. Serfs depended on their production capacities. There was scattered hand craft industry. It was a natural economy operating on use values for consumption as opposed to exchange values for market. The basic economic unit was the manor system (landlords regulating the conditions of serfs.) which developed from the colonii. Land was operated on a three piece system. The first land was allocated to the serfs for producing for their needs. The second owned by the land lords who would engage the surplus labor to gain for his own needs and the other piece was communal common land for grazing. Land lords exploited serfs by taking their surplus produce as rent for the land since land belonged to them. Rural towns known as guilds administered by guild masters developed later. Journeymen helped the guild masters alongside apprentices in administering the guilds. Guilds engaged in pottery, weaving and blacksmithing. In short guild masters were mostly craftsmen. In the deep countryside, the cottage industry did the same. There existed a feudal super structure dominated by the nobility and the church clergy. This class dominated other classes economically, socially and politically. The feudal state was a highly decentralized society with the king as the first among equals. There was also the hegemony of the church. The church owned the largest chunk of the land and had a lot of political power. The serfs though not slaves in the sense of being owned by landlords were tied to the land by law. Risks of injury in the process of production were largely limited to rural farming, and much attention was paid because the law was more concerned with property rights (ownership of land). The law also protected feudal nobility in terms of consumer of products of handicrafts and cottage industries. The law also protected civil and political rights. It was in the feudal era where the law developed writs. (1150 to 1250 AD). Writs were specific. This however changed in 1285 with the enactment of the statute of Westminster. This Act gave some limited powers to the courts to create new writs. This is how the law of trespass, detinue, action on the case, writ of debt, writ of account, false imprisonment, malicious prosecution, nuisance and defamation came to be.
Mercantile era (1500-1700 ad)
This period was marked by rise of capitalists. It was brought about by trade, that is, the idea of trading in a common place. The idea of organized trade was also beginning to grow. Trade includes and for specific items intensified the dispute. This idea was introduced by the Guilds and later societies. There was externalization of trade and it was in this era where the idea of trade fairs evolved. A trade fair is an occasional market. Trade was therefore largely occasional.
The industrial era.
For the first time, there was an agreed position that labour was to be paid for with money. There was competition. At this time also, there was technical conditions in the industrial market. It was also at this time when we experienced a lot of personal injuries arising from use of machines. The law in the industrial capitalism stage witnessed the establishment of three defenses; that is; Common employment, Contributory negligence and Voluntary assumption of risk. The doctrine of common employment was a defence available to an employer for a claim for damages by an employee for personal injuries suffered at the work place. The background to this defence is that at about the 19th Century, the law had developed a concept of vicarious liability where the employer was liable for the wrongs of employees. The doctrine of common employment was developed to deny workers the benefit of vicarious liability and was to the effect that an employer was not liable to his employee or workman for injuries caused to him by the actual negligence of a fellow employee in the course of his employment. This denied other workmates in the same place from claiming damages.
Cases; Priestly v Fowley Priestley v Fowler: [1837] EngR 202, (1837) 3 M & W 1, (1837) 150 ER 1030 Priestley was a butcher’s man who was injured when a van overloaded by fellow employees collapsed, injuring him. His lawsuit was founded on the principle of a master’s vicarious liability for his servant’s negligence. Held that “a master is not in general liable to one servant for damage resulting from the negligence of another.
The same was held in Farwell v.The Boston and Wooster Rail Road Company The plaintiff,an engineer in the employ of the defendant was injured through the negligence of a switch tender. He sued and obtained a verdict against the compahy who brought the case to the Supreme Court upon appeal. It was held that liable for his negligent acts, absent a showing that the master knew of such incompetency, and was negligent in continuing to employ him. A master is not liable for injuries to a servant, caused by the negligence of a fellow servant engaged in the same general business, where the master has furnished proper appliances, and has not been negligent in the selection of fellow employees.
Under the doctrine, there was an implied term in the contract of service, the effect of which was the employee or servants took the risk of injury or damage caused by fellow servant’s negligence. The employer was therefore absolved of any vicarious liability for a tort committed by a fellow worker against another. If the injury was caused by the employee of another employer, it was highly possible that the victim’s claim would be defeated by the defence of contributory negligence. It was a complete defence to a claim of damages.
The doctrine of common employment was abolished in 1948 by the Law Reform (Personal Injuries) Act 1948. At about the same time, contributory negligence was made a partial as opposed to a complete defence by the Law Reform (Contributory Negligence) Act. These developments made courts adopt a more strict approach against pro-employer defence thereby narrowing the scope of defences.
Volenti non fit injuria (voluntary assumption of risk). A workman assumed the risks when he assumed employment under this defence.
Halima Nantongo v Hival Mohammed A petrol tank fell into a ditch.; people were siphoning fuel and a cigarette was lit causing fire and claimed damages for injury but the judge dismissed the case citing volenti non fit injuria.
Capitalism;
Characteristics
Private ownership of resources including means of production. Free market economy where the forces of demand and supply stimulate production and consumption. Wage labour Egalitarian tendencies, that is, there is a presumption of equal bargaining power.
1.2 WHAT IS LABOUR LAW?
Refers to the field of law governing/regulating the relationship between employers (capital) and employees/workers (labour) mainly during the subsistence of the employment relationship, but also thereafter where applicable.
Labour law arose due the demands of workers for better conditions of work, the right to organize and simultaneous demands of employers to restrict the powers of workers organizations and to keep labour costs low.
There are two categories of labour Law
1.Individual labour law-concerns individual employees’ rights through the contract of employment, statutory provisions, common law etc…unlike in the past when trade unions were the custodians of workplace welfare, there has been a steady shift to give individuals more legal rights that they can enforce directly through courts. E.g. right to fair treatment, hours of labour and holiday.
2. Collective Labour law-relates to the tripartite relationship between employee, employer and labour union.
1.3 SOURCES OF LABOUR LAW
a)The Constitution of Uganda,1995 as amended
Article 29 (1) (a) that gives workers the freedom to form or join Labour unions, Article 40 that gives economic right of equal payment for equal work with our discrimination, a right to practice one’ profession and right to be accorded protection during and after pregnancy for the sake of the female employees.The constitution further bestows upon the parliament to legislate for all laws and subsidiary laws under Article 79(1). This gives legality to other subsidiary legislations.
b) Statutory law
such as Acts of Parliament like the employment Act, No 6 of 2006, labour unions Act, 2006.Under the Employment Act No. 6/2006, it consolidates the laws governing individual employment relationships (employer/employee). Section 2 fights against forced labour, section 6 fights against discrimination on all fronts and section 7 fights against sexual harassments.The labour Unions Act No 7/2006 and regulations SI 36/2006. concerns with the establishment, registration and management of labour unions. Section 4 provides for right of association of employees. Section 5 spells out offences that contravene the rights provided. Minimum Wages (advisory Boards and Councils) Act, Cap 221. Provides for the minimum wages advisory boards and wage councils. It further regulates remuneration and conditions of employment to employees. Section 14 lays down penalty for failing to pay minimum wage or comply with employment conditions.
c) Common law is applied through mostly case law. Decisions of courts of record/Employment tribunals.
d) International instruments on labour and Human rights that have been ratified such as the International labour organization (ILO) where Article 1(1) is to the effect that all nations that have ratified the convention should undertake to suppress the use of forced labour. Uganda ratified this convention and thus is bound to it. African Charter on human and people’s rights 1981, Articles 2,3,4,10,11,15 and 18
Organization on African union labour and social commission (Arusha April 1997)East African Common Markets Protocol Article 10 (1).
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