Rapport intérimaire - Rapport No. 318, Novembre 1999

1. 596. In a communication dated 17 July 1998, the Congress of Trade Unions (ZCTU) presented a complaint of violations of freedom of association against the Government of Zambia.
2. 597. The Government furnished its observations in a communication of May 1999.
3. 598. Zambia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 599. In its complaint dated 17 July 1998, the ZCTU asserts that the Government imposed a wage freeze on all workers in the Zambian public service and in government-aided institutions for the whole of 1998. In addition, there was a failure by local authorities to pay salaries/wages to workers for periods ranging from two to 19 months.
2. 600. More specifically, the ZCTU alleges that in late November 1997, the Government, through the Ministry of Labour and Social Security, announced that there would be a wage freeze for all workers in the public service and all workers in all government-aided institutions for the whole of 1998. The wage freeze was imposed without consulting the workers involved through their trade unions or the ZCTU. A meeting of the Tripartite Consultative Labour Council was held in September 1997 during which no mention was made about the impending wage freeze. The ZCTU points out that efforts by the trade unions to engage the Government in effective dialogue on the matter have failed as the Government has refused to meet and discuss the matter with the ZCTU. The ZCTU explains that the wage freeze has affected all workers in the public service and in all government-aided institutions like hospitals, universities, etc. The total number of affected workers who have suffered untold hardships is well over 150,000 and this translates into more than 600,000 persons when families and dependants of workers are taken into account. The ZCTU contends that the imposition by the Government of the wage freeze is a violation of ILO Conventions Nos. 98, 144 and 151, all of which have been ratified by Zambia.
3. 601. The ZCTU then asserts that since 1992, the Government has failed to pay workers in most local authorities for periods varying between two and 19 months causing the workers, their families and dependants to become destitutes and beggars. Those workers who have tried to protest against this state of affairs have been disciplined including being dismissed from employment. The situation is chaotic and deplorable. According to the ZCTU, close to 10,000 workers are victims of this government failure. When families and other dependants are included, close to 100,000 people are affected by the Government's actions.
4. 602. The ZCTU concludes by stressing that this violation of international labour standards and trade union rights is continuing unabated and without a solution in sight. Many meetings have been held with government authorities including the Ministry of Labour and Social Security without any positive results.

B. The Government's reply

1. 603. In its reply of May 1999, the Government refers to the ZCTU's allegations that its efforts and those of its affiliates operating in the public service to engage the Government in effective dialogue on the matter were unsuccessful and that the imposition of a wage freeze was a violation of ILO Conventions Nos. 98, 144 and 151, all ratified by Zambia.
2. 604. First of all, the Government points out that it is committed to promoting collective bargaining in all sectors of the economy. This commitment is illustrated through the enactment of the Industrial and Labour Relations Act in 1993 as amended by Act No. 30 of 1997, in particular parts VII and VIII thereof designed to promote collective bargaining. The Government explains that the action taken to install a wage freeze was not a negation of the principle of collective bargaining. The action was a temporary measure to facilitate the implementation of the public service reform programme. The Government has embarked on a public service reform programme with the objective of achieving efficiency and cost effectiveness in the delivery of quality service to the people of Zambia by creating a small, well-remunerated and motivated public service.
3. 605. According to the Government, one of the important components of the reform programme is the restructuring of the public service with a view to facilitating the realization of the above objective. The programme focuses, among others, on (a) reduction of the number of employees in the public service from 136,000 to 80,000 civil servants and from 28,000 to 13,500 classified employees, through staff recruitment freeze, redundancies and voluntary separation; (b) restructuring of ministries, provinces and other government institutions; (c) implementing an effective establishment and pay control system; (d) a wage freeze for all public service staff during the period 1 January 1998 to 31 December 1998; and (e) an increase in the wages and salaries of the remaining public service workers to levels comparable to those in the private sector.
4. 606. The Government stresses that the Civil Servants' Union of Zambia and the National Union of Public Service Workers which cater for public service employees are intimately involved in the implementation of the reform programme and were fully informed of the need to restrain wages in 1998 as part of the reform programme. The Government further stresses that, in spite of the wage freeze, collective bargaining in the public service continued. The two trade unions undertook bargaining with the Government. The negotiations were however deadlocked and the matter proceeded to conciliation and ultimately to the Industrial Relations Court in terms of the dispute settlement procedures. As a measure of good faith and sincerity on the part of the Government, in September 1998 the Government announced that the wage freeze would come to a close at the end of December 1998 and invited trade unions operating in the public service to immediately commence negotiations on wages and salaries for implementation in 1999. The Government does not therefore view its action as a negation of collective bargaining.
5. 607. As regards the alleged violation of Convention No. 98, the Government points out that it has put in place legal provisions in the Industrial and Labour Relations Act designed to promote trade unionism and collective bargaining with a view to regulate terms and conditions of employment by means of collective agreements. These measures are provided in sections 5, 63, 65, 69 and 70-73 of the Act. It should be noted from section 69 of the Act that the onus to commence negotiations for the purpose of concluding a collective agreement is placed on the bargaining unit comprising the management of an undertaking and the trade union representing the employees thereof. In this particular case, the Government and the Civil Servants' Union of Zambia/National Union of Public Service Workers commenced negotiations but an agreement was not reached because the Government was not in a position to make any monetary concessions on certain terms and conditions of employment for the reasons previously advanced. The resulting dispute is currently in the Industrial Relations Court.
6. 608. With regard to the alleged violation of Convention No. 144 concerning tripartite consultations, the Government asserts that it is committed to the promotion of tripartite consultation in the field of labour and employment. In this regard provisions exist in part X of the Industrial and Labour Relations Act, as amended by Act No. 30 of 1997, establishing the Tripartite Consultative Labour Council. Since the establishment of the council, the ZCTU has participated in the council meetings effectively. However, it is the view of the Government that there is a distinction between tripartite consultations and collective bargaining. Whereas tripartite consultations result in a consensus of approach and application of policy issues on labour and employment, collective bargaining on the other hand produces binding agreements on the parties concerned who are usually two. According to the Government therefore, negotiable matters on terms and conditions of employment cannot be subjected to tripartite consultations as these are best resolved by parties to the negotiation process and, in the event of disagreement, the national procedures for the settlement of disputes are invoked. This is actually what happened in the situation at hand.
7. 609. Regarding the allegation that there was an infringement of Convention No. 151, the Government emphasizes that public service workers like all other workers in the private and parastatal undertakings enjoy freedom of association, the right to organize and collective bargaining. This is illustrated by the Civil Servants' Union of Zambia and the National Union of Public Service Workers declaring a dispute with the Government of Zambia over failure to agree on terms and conditions of employment. This dispute then proceeded to conciliation and thereafter to arbitration in the Industrial Relations Court whose decision is awaited. Furthermore, and in the Government's view, a disagreement in the process of negotiations cannot be defined as a negation of the provisions of this Convention. It would have been a reasonable allegation had the Government deliberately and without any justified reason refused to meet the public service workers' organizations, but in this case meetings and negotiations were held which resulted in a deadlock. The allegation therefore is not justified given the facts and circumstances of the issue at hand.
8. 610. Finally, turning to the allegation that the Government failed to pay workers in most local authorities for periods ranging between two and 19 months, and that when these workers complained, they were threatened with dismissal, the Government points out that workers in the local authorities are not employed by the Government of the Republic of Zambia. They are employed by individual district local councils. Local councils manage their own operations including recruiting workers, taking disciplinary action and paying wages and salaries without interference from the Government. Therefore, the responsibility of payment of wages and salaries is on each individual local council and not the Government. The Government concludes by pointing out that the Zambia United Local Authorities Workers' Union has taken some of these local councils to courts of law in an effort to secure payment of outstanding salaries quickly.

C. The Committee's conclusions

1. 611. The Committee notes that the allegations in this case concern the imposition of a wage freeze in the public service prior to which no consultations were held with the unions concerned, as well as the failure to pay wages to workers in certain local authorities.
2. 612. The complainant (ZCTU) contends that the wage freeze was imposed for the whole of 1998 without consulting the workers involved through their trade unions or the ZCTU. The Government maintains that it is committed to the promotion of tripartite consultations in the field of labour and employment and that the ZCTU has participated fully in the meetings of the Tripartite Consultative Labour Council since its establishment. The Committee notes nevertheless that the Government does not refute the ZCTU's allegation that no mention was made about the impending wage freeze during a meeting of the Tripartite Consultative Labour Council held in September 1997. The Committee further observes the Government's statement that the Civil Servants' Union of Zambia and the National Union of Public Service Workers were fully informed of the need to restrain wages in 1998 as part of the public service reform programme. In the Committee's view, this would appear to somewhat confirm the ZCTU's assertion that in late November 1997, the Government, through the Ministry of Labour and Social Security, announced that there would be a wage freeze for all workers in the public service and in government-aided institutions for the whole of 1998 without consulting the workers involved through their trade unions or the ZCTU. Moreover, although the Government indicates that it had commenced negotiations with the public service unions but that these negotiations were deadlocked and the matter proceeded to conciliation and ultimately to the Industrial Relations Court in terms of the dispute settlement procedures, the Committee notes that these negotiations were initiated -- while the wage freeze was ongoing in 1998 -- to settle the terms and conditions of employment of public service workers for 1999.
3. 613. In these circumstances, the Committee is bound to conclude that no negotiations or consultations were in effect held between the Government and the trade unions concerned prior to the Government's decision to impose a wage freeze for all workers in the public service and in government-aided institutions for 1998. In this respect, the Committee would stress that, where a government seeks to alter bargaining structures in which it acts actually or indirectly as employer, it is particularly important to follow an adequate consultation process, whereby all objectives perceived as being in the overall national interest can be discussed by all parties concerned, in keeping with the principles established in the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113). Such consultations imply, in particular, that they be undertaken in good faith and that both partners have all the information necessary to make an informed decision (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 856 and 941). The Committee expects that in future the Government will follow an adequate consultation procedure when it seeks to alter bargaining structures in which it acts actually or indirectly as employer.
4. 614. With regard to the compatibility of the wage restraint measure itself with collective bargaining principles, the Committee has acknowledged that where, for compelling reasons of national economic interest and as part of its stabilization policy, a government considers that it is not possible for wage rates to be fixed freely through collective bargaining, any restrictions should be imposed as a exceptional measure and only to the extent that is necessary without exceeding a reasonable period, and should be accompanied by adequate safeguards to protect workers' living standards. (Digest, op. cit., para. 883.) The Committee of Experts has adopted a similar approach on this issue (General Survey on freedom of association and collective bargaining, 1994, para. 260).
5. 615. As regards the particulars of this case, the Committee notes that the wage freeze was one of several measures which, according to the Government, it had taken to facilitate the implementation of a public service reform programme. The Committee further notes that the wage freeze was imposed for a 12-month period pursuant to which collective bargaining resumed in the public service, even if negotiations were subsequently deadlocked and the resulting dispute proceeded to conciliation and ultimately to the Industrial Relations Court in terms of the dispute settlement procedures provided for in the Industrial and Labour Relations Act. Hence, in the Committee's view, the wage freeze appears to be an exceptional measure which was temporary in nature. However, the Committee notes that this wage freeze was not accompanied by adequate safeguards to protect workers' living standards, especially those with a low income. In effect, the ZCTU alleges that a sizeable number of persons have suffered untold hardships as a result of this wage freeze. The Government does not contest this argument but points out that this measure, amongst others, was necessary in the context of the public service reform programme.
6. 616. In view of the foregoing, the Committee regrets that the Government did not give priority to collective bargaining as a means of determining the employment conditions of its public servants, but rather that it felt compelled to unilaterally, without consulting the trade unions concerned, freeze public service wages. The Committee notes, however, that the wage restraint measure was limited to a 12-month period, and that free collective bargaining resumed thereafter. The Committee trusts that the Government will refrain from taking such measures in the future. Furthermore, in the absence of adequate information from the Government on compelling reasons for adopting this wage freeze, the Committee requests it to provide information in this regard.
7. 617. With regard to the allegation that the Government failed to pay workers in most local authorities for periods ranging from two to 19 months, the Committee would recall that its mandate consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions (see Digest, op. cit., para. 6). In the concrete case at hand, inasmuch as all the workers employed by the local authorities concerned were not paid their wages, the Committee considers that the issue before it, serious as it may be, does not pertain to the freedom of association Conventions but rather the Protection of Wages Convention, 1949 (No. 95), ratified by Zambia in 1979. The Committee therefore concludes that this aspect of the case does not call for further examination.