Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Zimbabwe (Ratification: 1998)

Other comments on C098

Observation

Direct Request

2000

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The Committee notes the observations of the Zimbabwe Congress of Trade Unions (ZCTU) and the International Trade Union Confederation (ITUC), received on 31 August and 1 September 2018, respectively, as well as the Government’s reply to the ZCTU observations. The Committee also notes the observations of Education International (EI) and the Zimbabwe Teacher’s Association (ZIMTA), received on 1 October 2018, referring to the issues raised by the Committee below.

The Committee takes note of the report of the high-level mission of the Office that took place in February 2017, following the conclusions of the 105th Session of the Committee on the Application of Standards of the International Labour Conference with respect to the application by Zimbabwe of the Convention and the implementation of the 2009 Commission of Inquiry’s recommendations.

Follow-up to the recommendations of the Commission of Inquiry (complaint made under article 26 of the Constitution of the ILO)

Labour law reform and harmonization

The Committee had previously requested the Government to provide information on the progress achieved in bringing the labour and public service legislation into conformity with the national Constitution and the Convention.

Labour Act. In its previous comment, the Committee had noted that the Government, in agreement with the social partners, had initiated the amendment of the Labour Act through principles that were adopted by the Tripartite Negotiating Forum (TNF) on 1 September 2016, seeking to harmonize the Act with the Constitution and the Convention on the basis of the ILO supervisory bodies’ comments and to address concerns raised by the ZCTU and the ITUC in 2014 and 2015 regarding anti-union discrimination in the country.

The Committee recalls, in particular, the following principles adopted by the TNF:

-Principle 2 (collective bargaining) provides for the amendment of sections 25, 79 and 81 of the Labour Act, as well as section 14 of the Labour Amendment Act No. 5, to ensure that collective agreements are not subject to ministerial approval on the grounds that the agreement is or has become “… unreasonable or unfair” or “contrary to public interest”.
-Principle 4 (collective job action) refers, among others, to the need for clear laws for the protection of workers and their representatives against anti-union discrimination.

The Committee notes the Government’s indication that following the adoption of the Labour Law Reform Principles by the Cabinet, in December 2016, the Government agreed with the social partners to engage a consultant to expedite the drafting of the bill. However, upon completion of work by the consultant, the draft was not accepted by the tripartite constituents. Subsequently, after a number of consultative meetings held in 2017 and 2018 with a view to discuss the drafts of the bill submitted by the Attorney General, the final draft of the Labour Amendment Bill is now finalized and will be tabled before Cabinet and then Parliament. The Committee notes with concern the ZCTU’s allegation that: (i) the draft of the Labour Amendment Bill produced by the Attorney General’s Office deliberately ignored the Committee’s observations despite reminders by the ZCTU and the need to give effect to agreed principles; and (ii) the draft does not include any provision setting clearly the protection of workers and their representatives against anti-union discrimination.

Public Service Act. In its previous comments, the Committee had requested the Government to provide information on the progress achieved in bringing the labour and public service legislation into conformity with the Constitution and the Convention. The Committee had previously noted with concern that according to the ZCTU, the process of harmonization of the Public Service Act did not include the social partners represented in the TNF. The Committee observes that in their latest observations, the ZCTU, EI and ZIMTA affirm that the Government continues to snub the social partners with regard to the amendment of the Public Service Act and that the failure to make legislative changes disadvantages public service employees as both the Public Service Act and the Health Services Act do not recognize the right to collective bargaining, save for consultations in which the employer has an upper hand in decision-making. The Committee notes the Government’s indication that the principles to amend the Public Service Act were approved by the TNF at Pandari in 2014 and further consultations were undertaken within the National Joint Negotiation Council (NJNC). The Government indicates that the Attorney General’s Office is in the process of drafting the bill and that it is envisaged that the social partners will be consulted once the Attorney General has produced the first draft.

While noting the Government’s statement that it appreciates the concern over the delay in the finalization of the labour law reform and harmonization and that the final draft of the Labour Amendment Bill has been finalized taking into consideration all the comments and recommendations of the ILO supervisory bodies, the Committee notes with concern that, despite its numerous requests, some of which predate the 2009 Commission of Inquiry, there is no concrete progress in amending both the Labour Act and the Public Service Act so as to bring them into conformity with the Convention. In this respect, the Committee observes that the high-level mission noted in its report that the social partners were concerned that the legislative reform was slow and haphazard, leading to the perception of a lack of political will to carry it out. In light of the above, the Committee requests the Government to devote all the necessary efforts to ensure that the process of reviewing the labour and public service legislation with a view to ensuring its conformity with the Convention will both be conducted in full consultation with the social partners and move forward without further delay. The Committee requests the Government to provide information on any progress in this regard.

Article 4 of the Convention. Promotion of collective bargaining. The Committee notes with concern the ZCTU’s indication that section 56(2) of the recently promulgated Special Economic Zones Act does not recognize the right to collective bargaining and gives power to the Special Economic Zones Authority and the Minister to determine conditions of work. In this respect, the Committee notes that the high-level mission had concluded in its report that the Special Economic Zones Act continued to refer to conditions of employment as determined by the Ministry and the Authority, without mentioning the social partners’ input or collective bargaining (section 56 of the Act). The Committee therefore requests the Government to take the necessary measures to amend the abovementioned legislation, in consultation with the social partners, so as to bring it into conformity with the Convention and to provide information on any developments in this regard.

Application of the Convention in practice

Article 1. Adequate protection against acts of anti-union discrimination. The Committee had requested the Government to provide detailed information on its engagement with the ZCTU regarding cases of alleged anti-union discrimination as compiled by the ZCTU. The Committee notes the Government’s indication that it engaged with the ZCTU in December 2016, which subsequently lead to the resolution of most of them. Some of the cases could not be traced due to insufficient information. The Government further indicates that with the assistance of the ILO, it is in the process of coming up with an electronic case management system, which will assist in tracking labour dispute cases, particularly those relating to anti-union discrimination. The Committee requests the Government to provide detailed information on any developments on this subject.

The Committee notes with concern the ITUC’s allegation of a widespread anti-union discrimination in the construction sector, in which several Zimbabwe Construction and Allied Trade Workers’ Union (ZCATWU) members would have been victims of assault and harassment because of their trade union membership, mainly in multinationals and foreign-owned companies, and ZCATWU representatives being denied access to companies’ premises. The Committee requests the Government to provide its comments thereon and hopes that these serious allegations will be the subject of appropriate investigations and vigorously pursued.

[The Government is asked to reply in full to the present comments in 2019.]