Hilary Muza 
LABOUR broking is not exactly what you would call a mainstream business in Zimbabwe. It is shrouded in mystery and there is uncertainty as to whether it is legal or not.
Back in 2013, a local newspaper reported labour broking as being illegal. That same newspaper touted the benefits of labour broking three years later in a December 2016 article. I say this to demonstrate that it is not clear to the public how labour broking works and whether it is completely legal.
Ultimately, the issue is that the labour broking industry is either unregulated, underregulated or properly regulated but insufficiently communicated to the public. This article looks to clarify the position regarding the legality of labour broking in Zimbabwe.
What is labour broking?
Labour broking is where a third party provides workers to a company to render a service or perform work for a reward. It is a form of outsourcing where companies contract labour brokers to provide them with labour. The labour broker provides temporary recruitment services such as finding, deploying and supervising employees on behalf of companies. Also included in the role of a labour broker is overseeing payroll, employee benefits, attendance and even discipline.
This structure is designed for employers who do not seek to have a direct contractual relationship with their labour force. The reasons for this are numerous, for example, to avoid statutory obligations they would otherwise have if they engaged the employees directly, such as retrenchment, or that the employer does not have sufficient structures in place to administer a large work force and finds it more convenient to lean on the resources of a labour broker.
Whatever the reason may be, there is a large space in the market for labour broking if one can marry together a large potential workforce (there is a huge pool of skilled and unskilled workers on the market) with specific client needs (especially clients who do not have the time or skills to recruit for certain organisational functions). The overall objective is to formulate and implement strategic staffing solutions for clients and to ensure that recruited staff optimises business performance.
The problem with labour broking in Zimbabwe
The Labour Act does not specifically provide for or prohibits labour broking. This places the service in a grey area of the law where it is neither expressly allowed or disallowed. In such circumstances, parties are left to their own devices regarding what kind of contractual relationship they want to enter into.
The position of the law is that a contract can be invalidated if a statute explicitly disallows that type of contract. Where the relevant statute, in this case the Labour Act, is silent, then normal principles of law relating to contracts apply. Resultantly, a contract between a labour broker is ordinarily taken to be valid the same way the contract between an employee and the labour broker is. This is a time-honoured principle of contract called freedom of contract. Freedom of contract declares that individuals may legally enter into contracts. It is a legal notion that upholds contracts wilfully established by two parties and is founded on two similar but unique ideas.
Firstly, contracts are created when two parties agree to something. Secondly, contracts are created willingly and without any intervention from the government or court system. On this basis, labour brokering can be said to be a valid and lawful exercise. All the parties concerned enter into contracts freely and voluntarily and that is the first thing any court of law will look into should a dispute arise.
Other jurisdictions
The position is different in South Africa for example, where their Labour Relations Act specifically provides for labour brokers. Even further, the law provides for the rights of employees involved in labour brokering agreements. For example, labour broker staff that are employed for more than three months are deemed to be permanent staff. Also, both the employer and labour broker can be held jointly and severally liable for breaking any employment laws, meaning to say that the responsibility for the maltreatment of staff is shared between the two.
In Swaziland, labour broking is provided for in terms of section 110 of the Employment Act, which defines a Private Employment Agency as a business of providing services or information for the purpose of finding persons employment in Swaziland with employers in Swaziland or for supplying employers with persons for employment by them. Again, the legal relationships between the broker and employer and the broker and the employee are strictly regulated. This is done with a view to quell fear normally associated with labour broking agreements such as bad working conditions, poor remuneration and so on.
Locally, labour brokers will continue to operate from the shadows, as it were, until our legislations is developed and they are specifically regulated by the law. This will also not doubt boost the confidence of local and international employers seeking to tap into the convenience of labour broking agreements on a large scale.
Muza is a duly admitted lawyer with expertise in business law, labour law and commercial litigation. He writes in his personal capacity. For feedback, email him at hilarykmuza@gmail.com or call on +263719042628.
