Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's first report, including the Industrial and Labour Relations (Amendment) Act, 1997 attached thereto. The Committee also takes note of the comments of the Zambia Congress of Trade Unions and the Government's response to these comments.

Article 2. The Committee notes that freedom of association, including the right to form or belong to any trade union, is guaranteed under articles 11 and 21 of the Constitution of Zambia Act, 1991. Section 5 of the Industrial and Labour Relations Act, 1993, as amended by the Industrial and Labour Relations (Amendment) Act, 1997, ("the Act"), also sets out the right of every employee to take part in the formation of a trade union and to be a member of a trade union of that employee's choice. A similar right for employers is established under section 37. Pursuant to section 2 of the Act, the following workers are not covered by the Act, and according to the report of the Government, are not otherwise provided with the right to form and join trade unions: the defence force, the police force, the prison service, the security intelligence service, judges and registrars of the court, magistrates and local court justices; the Minister also has discretion to exclude other persons from the scope of the Act. Recalling that pursuant to Article 2 of the Convention, workers and employers, without distinction whatsoever, are to have the right to form and join organizations of their own choosing, with the only possible exception being the police and armed forces (Article 9 of the Convention), the Committee requests the Government to specify in its next report whether those excluded from the scope of the Act can otherwise associate to protect and defend their interests. Regarding the general discretionary power of the Minister to exclude employees from the scope of the Act, the Committee requests the Government to specify on what basis this discretion is to be exercised, and again recalls the broad application of the Convention and the need to ensure that this discretion is not exercised in such a way as to deny workers the rights guaranteed under the Convention.

Article 3 (Right to elect their representatives freely). Regarding the right of workers' and employers' organizations to elect their representatives in full freedom, the Committee notes that pursuant to sections 18(1)(b) and 43(1)(a) of the Act, a person is disqualified from being an officer of a trade union or employers' organization if, having been an officer of such an organization whose certificate of registration has been cancelled, the person fails to satisfy the Commissioner that he did not contribute to the circumstances leading to such cancellation. In the view of the Committee, such criteria for disqualification is vague and the reason for cancellation does not seem to be given, nor is a time-limit set for the disqualification. The Committee recalls that having committed an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office. The Committee requests the Government to provide more information in its next report regarding the scope and interpretation of the provisions, and to consider amending them to ensure that workers are able to elect their representatives in full freedom, without undue interference from the public authorities.

Articles 3 and 10 (Right of organizations to organize activities to further and defend the interests of their members). The Committee recalls that the right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests. The Committee further recalls that this right can only be limited or restricted in specified circumstances, namely in the case of an acute national crisis or in essential services, namely those services, the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee notes that certain provisions limit or restrict strikes in circumstances that do not fall within these categories, in particular under section 78(6) to (8), a strike can be discontinued if it is found by the court not to be "in the public interest", and section 100 refers to exposing property to injury. In addition, section 107(10) defines essential services broadly, in that it includes any service for the maintenance of not only safe but also sound conditions in mines, and the sewage service. The Minister, in consultation with the Tripartite Consultative Labour Council, is also empowered to add any other service to the list of essential services. The Committee requests the Government to ensure that these provisions are applied in a manner that fully conforms with the Convention. The Committee draws to the Government's attention the concept of minimum negotiated services, which it may wish to substitute for the legislated restrictions that go beyond those permitted under the Convention. Such a service should be limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear, and the trade unions concerned should be able to participate in defining such services.

The Committee notes that where a person is believed to be striking in an essential service, a police officer may arrest that person without a warrant, and the person may then be liable to a fine and up to six months' imprisonment (section 107). Similar sanctions are set out for a violation of section 100. As sanctions for strikes should not be disproportionate to the seriousness of the violation, the Committee requests the Government to amend these provisions to bring them into fuller conformity with the Convention, in particular by removing the sanction of imprisonment.

Regarding the conciliation procedure that must be undertaken pursuant to section 76 of the Act before a strike can take place, the Committee requests the Government to indicate in its next report whether there exists any time-limit for the completion of the conciliation process, and if there is any means of determining when conciliation is deemed to have failed. The Committee recalls the importance of ensuring that the procedures that are to be exhausted before a strike may be called must not be so slow or complex that a lawful strike becomes impossible in practice or loses its effectiveness. The Committee further requests the Government to provide it with information as to the interpretation of section 78(1), in particular specifying whether the parties to a collective dispute need to refer the matter to the court jointly, or whether each party can act independently in this regard. The Committee recalls that permitting one party to refer an interest dispute to adjudication is a violation of the Convention, except in the case of an essential service. Regarding section 78(3), providing for balloting in the case of a strike, the Committee requests further information as to the scope of this provision, in particular clarification as to which group of employees is to participate in the ballot.

The Committee notes that according to the Zambia Congress of Trade Unions, section 101(2), which provides that no employee may take part in a strike that is not in contemplation or furtherance of a collective dispute to which the employee or the trade union is a party, prohibits sympathy action. The Committee recalls that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action provided the initial strike which they are supporting is itself lawful. Noting further the comments of the Zambia Congress of Trade Unions concerning threats of deregistration due to a protest strike and the Government's reply thereto, the Committee reminds the Government that workers and trade unions should not be sanctioned for organizing or taking part in protest action in defence of workers' social, economic and occupational interests.

Regarding the provision requiring every employee to "promote, maintain and cooperate with the management of the undertaking in which the employee is employed in the interests of industrial peace, greater efficiency and productivity" (section 6), the Committee requests the Government to explain the meaning of this provision and in particular to indicate whether it in any way limits the right to strike set out elsewhere in the Act. In addition, with respect to the protection provided to striking workers, and noting that some protection is found in sections 78(11), 98 and 99, the Committee requests the Government to specify whether striking workers are fully protected from dismissal and other prejudice in employment.

The Committee requests the Government in its next report to supply the information referred to above and to indicate any measures taken or contemplated to bring the legislation into closer conformity with the Convention.