By 
By Kwanele Dhladhla
Good news is on the horizon for employees in Eswatini, courtesy of sweeping changes and improvements contained in the Employment Bill of 2024, which seeks to promote decent working conditions for workers.
The bill, tabled by Minister of Labour and Social Security Phila Buthelezi on Monday in Parliament, addresses the issue of casual labourers who were in the past exploited by their employers.
The proposed legislation provides some regulations to prevent the abuse of employing people as perpetual or permanent casuals. Section 29 (2) reads, “A person may not be engaged as a casual employee where the nature of the work for which the employee is to be employed is full-time and permanent.”
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It was explained that a casual employee should not work for more than 24 hours a week. The bill also provides some restrictions to avoid employing people on perpetual short fixed-term contracts.
Section 27 states that a fixed-term contract should clearly state its purpose. Further, it has been stipulated that the number of times for renewal of fixed-term contracts for the different sectors shall be determined by the Minister through regulations.
Parliament Approval
The legislation, which awaits Parliament’s approval, provides some regulation to ensure that part-time workers become entitled to the same protection and rights enjoyed by comparable full-time employees, including protection against discrimination in employment and occupation.
Part-time workers, as per the legislation, could soon reserve the right to occupational safety and health, the right to bargain collectively and proportionately receive the benefits of social security schemes or any other similar benefits, as near as possible to comparable full-time employees.
The conditions of employment according to the legislation should be equivalent, regarding the part-time status of an employee, to those of comparable full-time employees, concerning issues of maternity protection, termination of employment, paid annual leave, paid public holidays, and sick leave, among others.
On seasonal employees, the bill defines a returning seasonal employee, a seasonal employee, and a seasonal worker.
“The effort here is to recognise the service of a seasonal employee who has worked for the same employer for a consecutive period of more than four seasons, and to improve the social security benefits to be accorded such a seasonal worker so that she/he cannot rank the same as one who has worked for one season,” explained Principal Secretary Makhosini Mndawe.
Labour broking or the so-called ‘triangular forms of employment’ was defined in the bill as: “any form employment relationship in which an employer uses the services rendered by any person procured or provided by a private employment agent, intermediary or a third party and where the wages are paid through the agent, intermediary or a third party as opposed to being paid directly to such person.”
Outsourcing
The bill prohibits this triangular form of employment in section 129.
“This prohibition should not be mistaken to mean prohibition or outlawing the existence of private employment agencies. Private employment agencies are still allowed by the bill,” Mndawe clarified.
The PS mentioned that as a precautionary measure to ensure that triangular forms of employment were not returned through outsourcing and sub-contracting, the bill then introduced some restrictive provisions for outsourcing and sub-contracting, by saying that an employer shall not outsource or subcontract the whole or any part of that employer’s core business to third parties. However, it was explained that an employer could outsource or subcontract work that was temporary or intermittent, of a specialised nature, or for which the company lacks skill.
The PS stated that the challenge with this clause was defining ‘core business’, hence the ministry was flexible to forgo this provision in its entirety during the legislative process.
Mndawe said a special provision had been incorporated into the bill to strengthen the protection of the rights and social security measures of migrant workers. The PS pointed out that the regulation of working time was not there in the current Employment Act of 1980.
He said the bill provides regulation of what was considered to be normal hours of work, overtime and compensation for paid public holidays, pay for work on Sundays, night work and limits on night work and special provisions for domestic workers, such as not working for more than eight hours in a day.
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The bill contains new provisions on what constitutes an unfair labour practice, something that was not there in the current Employment Act. It stresses the protection of fundamental rights at work, prohibition against forced labour, unfair discrimination, equality at work, violence and harassment.
Protection
“The Bill has strengthened the protection afforded to employees against victimisation, violence and harassment in the world of work, and discrimination, amongst other things,” said Mndawe.
The PS mentioned that the bill cures the gap that was opened consequent to some judgments of the Industrial Court where the court ruled that severance allowance should not be payable to employees on retirement because retirement was not an act of severing the employment contract at the fault of the employer but was termination of the employment contract because it has fully run its agreed course or tenure.
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Section 81(1) of the bill now introduces payment of service benefits on retirement to differentiate from the severance allowance.
Mndawe explained that the methods of computing service benefit would remain the same as those of computing severance allowance.
This provision is intended to provide some form of social security measure to many employees, especially in the private sector, who do not have any pension scheme except for the Eswatini National Provident Fund (ENPF).
“In the absence of a mandatory national pension scheme in the country for now, the payment of severance allowance and service benefit remains a necessity. This excludes the public service for permanent and pensionable civil servants,” added Mndawe.
