Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Zambia (Ratification: 1996)

In its previous comments, the Committee had noted that Industrial and Labour Relations (Amendment) Act No. 8 of 2008 (ILRA) had been adopted. The Committee, however, noted that most of the issues raised in its previous comments still remain unattended to and were not taken into account during the process of the labour law review. The Committee notes that the Government indicates in its report that: (1) the moratorium on the discussion of the ILRA has been lifted as the matters before the courts of law arising from a petition by the Federation of Free Trade Unions of Zambia (FFTUZ) have been withdrawn; (2) it is willing to consider the Committee’s concerns and has engaged the social partners through the tripartite structures; and (3) it has engaged a consultant who will aid the Government in conducting a comprehensive labour review. The Committee hopes that this labour review will take into account its comments and recalls in particular that measures should be taken to bring the following provisions of the ILRA into conformity with the Convention:

Article 2 of the Convention.

• -Section 2(e), which excludes from the scope of the Act, and therefore from the guarantees afforded by the Convention, workers in the prison service, judges, registrars of the court, magistrates and local court justices, and section 2(2), which accords the Minister discretional power to exclude certain categories of workers from the scope of the Act.
• -Section 5(b) that provides that an employee can only become a member of “a trade union within the sector, trade, undertaking, establishment or industry in which the employee is engaged” since it limits trade union membership to workers in the same occupation or branch of activity. In this respect, the Committee recalls that such conditions may be applied to first-level organizations, on condition that these organizations are free to establish inter-professional organizations, and to join federations and confederations in the form and manner deemed most appropriate by the workers concerned.
• -Section 9(3) in order to shorten the period of registration of a trade union which is currently at a maximum of six months, constituting a serious obstacle to the establishment of organizations and amounting to denial of the right of workers to establish organizations without previous authorizations.

Article 3.

• -Section 7(3) that allows a labour commissioner to prohibit a trade union officer from holding office in any trade union for a period of one year if, following the commissioner’s refusal to register the union, this union is not dissolved within six months. In this respect, 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.
• -Section 21(5)(6) which confers to the Commissioner the power to suspend and appoint an interim executive board of a trade union, as well as to dissolve the board and call for a fresh election.
• -Sections 18(1)(b) and 43(1)(a), under which a person, having been an officer of an employers’ or workers’ organization whose certificate of registration has been cancelled, may be disqualified from being an officer of a trade union if that person fails to satisfy the commissioner that she or he did not contribute to the circumstances leading to such cancellation.
• -Section 78(4), which limits the maximum duration of a strike to 14 days, after which, if the dispute remains unsolved, it is referred to the court; section 78(6)–(8), under which a strike can be discontinued if it is found by the court not to be “in the public interest”; section 78(1), under which, as interpreted by a decision of the industrial relations court, either party may take an industrial dispute to court; section 107, which prohibits strikes in essential services, defined too broadly, and empowers the Minister to add other services to the list of essential services, in consultation with the tripartite consultative labour council; and which empowers a police officer to arrest, without any possibility of bail, a person who is believed to be striking in an essential service and which imposes a fine and up to six months’ imprisonment.

The Committee hopes that the future amendments will take into account the comments that it has been making for many years and that they will be adopted in the very near future following full and frank consultations with the social partners. The Committee requests the Government to provide information in its next report on any progress achieved in this respect and hopes that the amendments to the Act will be in full conformity with the provisions of the Convention.

Workers’ and employers’ organizations comments. The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 31 July 2012 alleging that protests are not tolerated in the mining sector and that strikers suffer retaliation as well as threats and intimidation. The Committee requests the Government to provide its observations on these comments.

The Committee notes the Government’s observations on the 2010 ITUC comments: (1) concerning the allegation that the Zambia Revenue Authority (ZRA) has consistently used delaying tactics to effectively deny recognition to the Zambia Union of Financial Institutions and Allied Workers (ZUFIAW), the Government indicates that the enabling legislation may need to be reviewed in order for the ZUFIAW to be recognized by the ZRA; and (2) concerning the allegation of intimidation of strikers through police intervention, the Government indicates that it has not used the police to intimidate striking workers but that the police may be called upon to maintain law and order to secure the property of the organization and the lives of employees and employers. The Committee requests the Government to indicate the measures it will take to amend the legislation in order for the ZUFIAW to be recognized by the ZRA.

The Committee notes the comments made by the International Organisation of Employers (IOE) on the right to strike, in a communication dated 29 August 2012, which are dealt with in the General Report of the Committee.