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

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Zimbabwe (Ratification: 2003)

Other comments on C087

Observation

Direct Request

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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, referring to the issues raised by the Committee below.

The Committee takes note of the report of the high-level mission of the Office which visited the country in February 2017, following the conclusions of the Committee on the Application of Standards (CAS), of the 105th Session of the International Labour Conference, with respect to the application by Zimbabwe of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the implementation of the 2009 Commission of Inquiry’s recommendations.

Follow-up to the recommendations of the Commission of Inquiry appointed under article 26 of the Constitution of the ILO

Trade union rights and civil liberties. In its previous observations, the Committee had requested the Government to provide detailed information on the implementation of the conclusions of the training-of-trainers workshop for members of the Zimbabwe Republic Police (ZRP), conducted by the Government with the technical assistance of the Office in November 2016. The Committee notes with interest the Government’s indication in its report that following the workshop, a training curriculum was developed and disseminated to all professional updating centres (training centres) of the ZRP. The Government indicates that the training curriculum is now part of the material taught to all members of the ZRP during induction and refresher courses. The ZRP has developed a course the main aim of which is to equip officers with competency skills and a good attitude in the management of labour related cases. During the course, police officers are introduced to the structure and functioning of the ILO, national labour laws and the role of police and other key state actors. The Committee notes with interest a copy of the curriculum annexed to the Government’s report.

While noting the ZCTU’s indication that all members of the Zimbabwe Banks and Allied Workers Union (ZIBAWU) who were arrested on 20 July 2016 for protesting against non-payment of employees’ terminal benefits after termination of their employment contracts were subsequently released, the Committee notes with concern the allegations submitted by the ITUC and the ZCTU regarding: (i) the injuries suffered by the ZCTU personnel when the union’s office came under attack by soldiers during the demonstrations on 1 August 2018; (ii) cases of strike action being banned and criminalized; and (iii) denial or delay of trade unions registration. The Committee requests the Government to provide its comments thereon and firmly hopes that these serious allegations will be the subject of appropriate investigations that are vigorously pursued.

Public Order and Security Act (POSA). The Committee notes that according to the report of the high-level mission, divergences in the understanding of the scope of the POSA among the Public Prosecutor’s Office, the police, and legal officers of the ZRP lead to lack of legal certainty, and that this perception appeared to be reinforced by the continued allegations of the POSA being used to ban protest actions. In light of the above, the mission suggested to review the application of the POSA in the Tripartite Negotiating Forum (TNF) with a view to making proposals to ensure with greater clarity that trade union activities are outside its scope. The Committee takes note of the ZCTU’s indication that no legislative changes have been made to align the POSA with the Constitution and the Convention. The Committee therefore once again requests the Government to review the application of POSA, in consultation with the social partners.

Labour law reform and harmonization. Labour 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 Convention. The Committee notes the detailed information provided by the Government in this respect and notes, in particular, that following the approval by the Cabinet of the principles for the amendment of the Labour Act, in December 2016, the Government engaged a consultant to expedite the drafting of the bill. However, the consultant’s draft was not accepted by the tripartite constituents. Subsequently, the Government and the social partners agreed to engage the Attorney General in drafting the bill, in consultation with the social partners. The final draft was submitted to Cabinet and will be tabled before Parliament when it resumes its sitting. The Committee notes that, according to the ZCTU, although the social partners had discussed this Attorney General’s draft of the amendment of the Labour Act, the principles agreed upon were not reflected in the draft produced by the Attorney General’s Office nor in the second draft produced by the Government. Another tripartite meeting was held in December 2017 during which consensus was reached with the Government on how to improve the draft. However, according to ZCTU, the Government failed on its promise to share with it a new version of the draft. The Committee urges the Government to share the latest version of the revised draft to amend the Labour Act with the social partners without further delay. 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 the Labour Act so as to bring it into conformity with the Convention. Noting from the high-level mission 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, the Committee expects that the labour law review will be concluded in full consultation with the social partners, without further delay.

Public Service Act. The Committee notes the Government’s indication that the Attorney General is currently drafting a Public Service Amendment Bill on the basis of principles previously agreed on by the Cabinet. The Committee recalls in this respect that it had previously noted that according to Principle 4.4 of the Public Service Act, staff of the Civil Service Commission shall not have the right to organize and had requested the Government to take the necessary measures to ensure that under the new provisions of the Public Service Act, the staff of the Civil Service Commission enjoys the rights enshrined in the Convention. The Committee notes the Government’s indication that the Secretariat to the Public Service Commission in Zimbabwe is peculiar in nature and is responsible not only for the entire public service but also for the uniformed forces, in accordance with the country’s Constitution. The Committee reiterates that the Convention does not contain a provision excluding from its scope certain categories of public servants. Accordingly, the right to establish and join occupational organizations should be guaranteed to all public servants and officials, irrespective of whether they are engaged in the state administration or are officials of bodies which provide important public services. The Committee therefore reiterates its previous request and hopes that the Government will take the necessary measures to ensure that the staff of the Civil Service Commission enjoy the rights established in the Convention.

The Committee had also noted that pursuant to Principle 9.2, the registration of public service associations and trade unions shall be done on the advice of the Civil Service Commission and had requested the Government to take the necessary measures to ensure that legislative provisions adopted on the basis of this Principle do not impose in practice a requirement of “previous authorization”, in violation of Article 2 of the Convention, or give the authorities discretionary power to refuse the establishment of an organization. The Committee notes the Government’s indication that the phrase “on the advice of” means that the Commission will have an administrative function in the processing of applications for registration, without discretionary power to deny registration. The Committee expects that the legislative provisions dealing with the registration of organizations of public servants will be sufficiently clear so as to not to give rise to possible interpretation of the law as giving discretionary power to the authorities to refuse the registration of an organization.

Regarding Principle 11.3, which provides for the definition of essential services to include services the interruption of which “would endanger … all rights enshrined in the Constitution”, the Committee had observed that such broad limitation on the right to strike could be used in a manner so as to restrict the legitimate exercise of the right to strike and had requested the Government to take the necessary measures to ensure that the relevant legislative provision does not contain the excessively broad reference to “all right enshrined in the Constitution” in the definition of essential services so as to ensure that workers fully enjoy the rights guaranteed by the Convention. The Committee notes the Government’s indication that the definition of essential services in the Amendment Act will be in line with the Convention and the Constitution of Zimbabwe.

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 its latest observation, the ZCTU alleges that the Government continues to snub the social partners with regards to the amendment of the Public Service Act. The Committee notes the Government’s indication that consultations took place in a tripartite meeting, which the ZCTU attended in Pandhari in 2014, and that further consultations were undertaken within the National Joint Negotiating Council (NJNC) in 2017. The Government furthermore assures that tripartite consultations will continue once the Attorney General has produced the first draft bill. The Committee expects that the process of reviewing the public service legislation will be conducted in full consultation with the social partners.

Health Services Act. The Committee notes the ZCTU’s indication that the Health Services Act requires reforms as it mostly duplicates the Public Service Act, in particular regarding freedom of association and collective bargaining rights and that, between 2010 and 2014, the TNF has agreed on the need to align the provisions of the Act with the Conventions and the Constitution. Noting the ZCTU’s allegation that the social partners have been alienated in the process, the Committee requests the Government to provide detailed information on steps undertaken or contemplated to consult with the social partners regarding the Health Service Act.

[The Committee requests the Government to reply in full to the present comments in 2019.]