Observation (CEACR) - adoptée 2010, publiée 100ème session 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 takes note of the conclusions and recommendations of the Commission of Inquiry established to examine the observance by the Government of Zimbabwe of Conventions Nos 87 and 98 and the Government’s reply thereon, as detailed in the comments on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

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 of the Commission so as to ensure full freedom of association in the country and the ensuing activities that have taken place, as well as the envisaged measures, as detailed in the comments on the application of Convention No. 87. The Committee requests the Government to provide in its next report detailed information on the outcome of the activities carried out under the ILO technical assistance package and on all other measures taken to implement the recommendations of the Commission of Inquiry.

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination. The Committee notes that, having examined numerous allegations of anti-union discrimination (dismissals, transfers and even eviction from their homes), the Commission of Inquiry concluded that there was no adequate protection against anti-union discrimination in the country. The Committee concurs with the Commission which recalled that, by virtue of its ratification of Convention, the Government is responsible for preventing all acts of anti-union discrimination and must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be expeditious – so that the necessary remedies can be really effective – inexpensive and fully impartial, and considered as such by the parties concerned. In other words, where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention. In this regard, the Commission stressed that the remedy of reinstatement should be available to those who are victims of anti-union discrimination and, if reinstatement is not possible, the Government should ensure that the workers concerned are paid adequate compensation which would represent a sufficiently dissuasive sanction for anti-trade union dismissals (see paragraph 586 of the Report of the Commission of Inquiry: Truth, reconciliation and justice in Zimbabwe). The Committee requests the Government to indicate specific measures taken or envisaged to ensure that the above principle is enshrined in the national legislation, and applied and respected in practice.

Article 4. Collective bargaining. The Committee recalls that in its previous comments, it had raised concern with regard to the following legislative provisions, also raised by the Commission of Inquiry in its report:

–      section 17 of the Labour Act, which empower the Minister to issue regulations on an extensive list of matters, including conditions of employment;

–      sections 78 and 79, which empower the Minister to direct the Registrar not to register an agreement “if any provision appears to the Minister to be inconsistent with legislation or unreasonable or unfair”;

–      sections 25 and 81, pursuant to which, the Minister can “direct the parties to negotiate an amendment” to a registered collective agreement if it contains a provision “that is, or that has become, inconsistent with legislation in force or is unreasonable or unfair”. The Minister may then amend the agreement in accordance with the proposed amendment, or “in such other manner that is consistent with the considerations of legislative consistency, reasonableness and fairness”; and

–      section 93(3-5), which provides that disputes of interest in the essential services that have not been settled within 30 days or such other period as agreed by the parties will be referred to compulsory arbitration.

Article 6. Collective bargaining in the public service. Noting that currently, public servants have no collective bargaining rights, the Committee, like the Commission of Inquiry, stresses that all workers, including public servants, should be entitled to bargain collectively to determine their conditions of work. Only public servants, who, by their functions, are directly engaged in the administration of the State (that is, civil servants employed in government ministries and other comparable bodies), as well as officials acting as supporting elements in these activities can be excluded from the protection of Convention.

Taking due note of the initiated labour law reform and harmonization process, the Committee expresses the firm hope that the relevant legislative texts, and in particular, the Labour Act and the Public Service Act, will be brought in line with the Convention, taking into account the recommendations of the Commission of Inquiry and the Committee’s comments above. The Committee requests the Government to provide detailed information in its next report on all measures taken or envisaged in this respect, as well as to transmit texts of any relevant draft or adopted legislation, so that it may examine its conformity with the provisions of the Convention.