Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s reply to its earlier comments, as well as the legislation annexed to the report. It notes the Government’s indication that the Criminal Law Amendment Act and the Miscellaneous Offences Act have been repealed and replaced by the Criminal Law (Codification and Reform) Act (Cap. 9:23). The Committee would be grateful if the Government would communicate a copy of this Act, which has been referred to by the Government as attached to the report, but has not been received in the ILO.

Article 1(d) of the Convention. Penal sanctions for participation in strikes. In its earlier comments, the Committee noted certain provisions of the Labour Relations Act punishing persons engaged in an unlawful collective action with sanctions of imprisonment, which may involve prison labour in virtue of section 76(1) of the Prisons Act (Cap. 7:11) and section 66(1) of the Prisons (General) Regulations, 1996. The Committee noted, in particular, that section 104(3) of the Labour Relations Act, as amended, not only prohibits collective job action in essential services, and in case of the agreement of the parties to refer the dispute to arbitration, but also provides for other restrictions on the right to collective job action related to procedural requirements, which are equally enforceable with sanctions of imprisonment (involving prison labour), under sections 109(1) and 112(1) of the Act.

The Committee referred to the explanations in paragraphs 123-132 of its General Survey of 1979 on the abolition of forced labour, in which it pointed out that it is not incompatible with the Convention to impose penalties (even involving an obligation to perform labour) for participation in strikes in essential services in the strict sense of the term (that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population), or for participation in strikes in breach of freely concluded collective agreements, or in the situations of force majeure. However, the Committee observed that the Labour Relations Act, as amended, imposes such penalties in a wider range of circumstances, which is not in conformity with the Convention. Besides, the wording of section 102 of the Act allows the Minister to declare essential any service, other than that interruption of which would endanger the life, personal safety or health of the whole or part of the population.

Since the Government’s report contains no new information on this issue, the Committee reiterates its hope, referring also to its comments made under Convention No. 87, likewise ratified by Zimbabwe, that measures will be taken to ensure that the above provisions of the Labour Relations Act imposing restrictions on the right to strike enforceable with sanctions involving compulsory prison labour are limited in scope to essential services in the strict sense of the term, or to the cases of force majeure, or to the situations where the parties concerned agreed to refer the dispute to arbitration, and that no such sanctions can be imposed for participation in peaceful strikes in other services. It requests the Government to provide, in its next report, information on the progress made in this regard.

Article 1(a). The Committee previously noted that penalties of imprisonment (involving compulsory prison labour) may be imposed under various provisions of national legislation in circumstances falling within Article 1(a) of the Convention, namely: (a) sections 15, 16, 19(1)(b) and (c) and 24-27 of the Public Order and Security Act (Cap. 11:17) (publishing or communicating false statements prejudicial to the State; making any false statement about or concerning the President; performing any action, uttering any words or distributing or displaying any writing, sign or other visible representation that is obscene, threatening, abusive or insulting, intending thereby to provoke a breach of peace; failure to notify the authority of the intention to hold a public gathering, violation of the prohibition of public gatherings or public demonstrations, etc.); (b) sections 64(1)(c) and (d), 72(1)(2) and 80 of the Access to Information and Protection of Privacy Act (Cap. 10:27) (abuse of freedom of expression; operating a mass media service without a registration certificate, falsification or fabrication of information or contravention of any other provision of the Act).

The Committee pointed out, referring to the explanations contained in paragraphs 133-140 of its General Survey of 1979 on the abolition of forced labour, that the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence or incite to the use of violence, armed resistance or an uprising. But sanctions involving compulsory labour are incompatible with the Convention where they enforce a prohibition of the peaceful expression of non-violent views that are critical of government policy and the established political system.

The Committee observed that the above provisions of national law provide for penal sanctions involving compulsory labour in circumstances defined in terms which are wide enough to give rise to questions about their application in practice.

While taking note of the Government’s view expressed in the report that labour performed pursuant to a conviction in a court of law cannot be deemed inconsistent with the Convention, the Committee draws the Government’s attention to the explanations contained in paragraphs 104 and 105 of its General Survey of 1979 on the abolition of forced labour, in which it has considered that the exclusion of prison labour under Convention No. 29 does not automatically apply to Convention No. 105. The Committee pointed out that, in most cases, labour imposed on persons as a consequence of a conviction in a court of law will have no relevance to the application of Convention No. 105 but, if a person is in any way forced to work because he holds or has expressed certain political views, has committed a breach of labour discipline or has participated in a strike, such situations are covered by the Convention.

The Committee therefore requests the Government once again to supply copies of the court decisions which could define or illustrate the scope of the above provisions, so as to enable the Committee to ascertain whether they are applied in a manner compatible with the Convention, as well as information on measures taken or contemplated in order to ensure the observance of the Convention in this regard.