Observación (CEACR) - Adopción: 2010, Publicación: 100ª reunión CIT (2011)

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

The Committee recalls that a Commission of Inquiry was established at the 303rd Session of the Governing Body (November 2008) to examine a complaint presented under article 26 of the ILO Constitution alleging the failure of the Government to observe Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Committee observes that the Commission of Inquiry completed its work in December 2009 and that its report was submitted to the Governing Body at its 307th Session (March 2010).

The Committee takes note of the reply of the Government to the report of the Commission of Inquiry by virtue of article 29 of the ILO Constitution, which was noted by the Governing Body at its 308th Session (GB.308/6/2). The Government has indicated that the recommendations of the Commission of Inquiry will be implemented in the context of its current legislative and institutional reform programme and welcomed the guidance and support of the ILO in their implementation.

The Committee recalls that in commenting on the observance of the Convention by the Government, it has been raising many of the same points examined by the Commission of Inquiry. It notes that the Commission has confirmed and expanded upon the concerns that this Committee, as well as the Conference Committee on the Application of Standards, have been raising as to the application of this fundamental Convention.

The Committee notes, in particular, that the Commission recommended that: the relevant legislative texts be brought in line with Conventions Nos 87 and 98; all anti-union practices – arrests, detentions, violence, torture, intimidation and harassment, interference and anti-union discrimination – cease with immediate effect; national institutions continue the process the Commission had started whereby people can be heard, in particular referring to the Human Rights Commission and the Organ for National Healing and Reconciliation; training on freedom of association and collective bargaining, civil liberties and human rights be given to key personnel in the country; the rule of law and the role of the courts reinforced; social dialogue strengthened in recognition of its importance in the maintenance of democracy; and ILO technical assistance to the country continued.

The Committee notes the comments made by the International Confederation of Free Trade Unions (ITUC) and the Zimbabwe Congress of Trade Unions (ZCTU) on the application of the Convention in their communications dated 24 August 2010 and 27 September 2010, respectively. The Committee notes that the allegations submitted by the ZCTU relate to the forced exile of the General Secretary of the General Agriculture and Plantation Workers Union of Zimbabwe (GAPWUZ) and instances of banning of trade union activities (workshop, commemoration events, processions and May Day celebration). The Committee requests the Government to provide its observations on those serious allegations.

The Committee notes with interest the launch, on 27 August 2010, of the ILO technical assistance package, which aims to support the Government and the social partners in implementing the recommendations so as to ensure full freedom of association in the country. The Committee further notes with interest the strong commitment expressed on that occasion by all stakeholders to implement the recommendations. The Committee further notes that in order to give practical effect to this commitment, the tripartite constituents identified seven priority activities to be carried out in the period from September to December 2010 aimed, among others, at: finalizing a set of principles for the harmonization of labour laws and the amendment of the Labour Act; identifying and attempting to resolve outstanding cases of trade unionists arrested under the Public Order and Security Act (POSA); capacity building for provincial police, security forces, prosecutors and magistrates in relation to trade union rights; capacity building for judiciary, labour officers, conciliators and arbitrators in relation to trade union rights; and strengthening interface between social partners and national human rights institutions. Further activities to be carried out in 2011 are in the process of being developed in consultation with the social partners.

The Committee notes that the following activities have taken place already: (i) a seminar for government officials on international labour standards, human rights and social dialogue in the world of work; (ii) the launch of the Kadoma Declaration “Towards a shared economic and social vision” concluded by the Government and the social partners under the auspices of the Tripartite Negotiating Forum (TNF) in 2009; and (iii) an activity on the finalization of the principles of harmonization of labour laws and the amendment of the Labour Act.

The Committee notes the Government’s report on the outcome of the latter activity. The Government explains that the objective of this activity was to facilitate the amendment of the relevant legislation, and thereby give effect to the legislative recommendations of the Commission of Inquiry. The set of principles was to be finalized and adopted at a workshop involving the key actors: members of the Tripartite Advisory Council, the principals of labour and business, the Public Service Commission, the Health Service Board, and with the participation of the ministers of labour and public service. The Government regrets that due to the absence at the meeting of ZCTU representatives, the desired outcome was not achieved. Nevertheless, the meeting allowed discussion of some urgent issues and consolidation of the principles which will now be reconsidered by the Tripartite Advisory Council.

The Committee understands that outstanding cases of trade unionists arrested under POSA have been identified. The Committee requests the Government to indicate in its next report the steps taken to ensure that these cases are withdrawn.

The Committee further requests the Government to provide in its next report detailed information on the outcome of the activities carried out under the technical assistance package and on all other measures taken to implement the recommendations of the Commission of Inquiry.  

Taking due note of the initiated labour law reform and harmonization process, the Committee expresses the firm hope that the relevant legislative texts will be brought in line with the Convention and recalls that the ILO supervisory bodies stressed the need to amend, in particular, the Labour Act and the Public Service Act, so as to ensure compliance with the following Articles of the Convention.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations without previous authorization

–      the need to ensure the right to establish and join trade unions of members of the public service and prison staff; and

–      the need to ensure the right to organize of managers (currently, under section 2 of the Labour Act, managers are considered to be employers).

Article 3. Right of workers’ organizations to elect their representatives in full freedom, organize their administration, and to formulate their programmes

–      the need to amend section 51 of the Labour Act, which concerns the supervision of election of officers of a trade union or employers’ organization so as to guarantee the right of employers’ and workers’ organizations to elect their representatives in full freedom and without interference from the authorities;

–      the need to amend sections 28(2), 54(2) and (3) and 55 of the Labour Act which confers on the minister extensive powers to regulate trade union dues as well as to regulate such matters as staff that may be employed by trade unions, their salaries and allowances, as well as the equipment and property that may be purchased by trade unions, so as to ensure that freedom of employers’ and workers’ organizations to organize their administration and dispose of all their fixed and movable assets unhindered;

–      the need to amend section 120(2) of the Labour Act, which confers on the minister the right to appoint an investigator who shall at all reasonable times and without prior notice, enter any premises (paragraph (a)); question any person employed on the premises (paragraph (b)); and inspect and make copies of and take extracts from any books, records or other documents on the premises (paragraph (c)), so as to ensure the right of the inviolability of trade union premises and to avoid any danger of excessive intervention in the internal administration of trade unions; and

–      the need to effectively guarantee the right to strike through, among other measures: (i) simplifying the procedure for declaring a strike; (ii) amending section 102 of the Labour Act providing for the right of the minister to declare any service essential; (iii) ensuring that a strike can be restricted or banned only in essential services in the strict sense of the term, that is those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population, so as to effectively ensure workers’ right to strike; and (iv) amending sections 107, 109 and 112 of the Labour Act providing for excessive sanctions in cases of unlawful collective action being organized.

Furthermore, referring to the conclusions of the Commission of Inquiry (paragraphs 558–562 of the report) and noting with concern the abovementioned recent ZCTU allegations, the Committee urges the Government to take the necessary measures in order to ensure, in law and in practice, the right of trade unions to organize and carry out meetings, assemblies, demonstrations and pickets without interference by the police and security forces. In particular, it urges the Government to take the necessary measures to ensure that the POSA is not used to infringe upon legitimate trade union rights, including the right of workers’ organizations to express their views on the Government’s economic and social policy.

Noting the commitment of the Government to identify and attempt to resolve outstanding cases of trade unionists arrested under the POSA, the Committee urges the Government to intensify its efforts in this respect and to provide information in this regard in its next report. The Committee expresses the firm hope that it will be in the position to note that no charges are pending against trade unionists under the POSA when it examines next the application of the Convention in Zimbabwe.