Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Zimbabwe (Ratification: 1998)

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2014 and 1 September 2015, the observations of the Zimbabwe Congress of Trade Unions (ZCTU) received on 31 August 2015, as well as the Government’s comments on the ZCTU’s observations.

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 the Commission of Inquiry appointed under article 26 of the ILO Constitution to examine the observance by the Government of this Convention and the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), recommended that: the relevant legislative texts be brought into line with the Conventions; 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 (ONHR); 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 be reinforced; social dialogue be strengthened in recognition of its importance in the maintenance of democracy; and ILO technical assistance to the country be continued.

The Committee also notes the report of the high-level technical mission of the Office that took place in February 2014, following the conclusions of the 2013 Conference Committee on the Application of Standards regarding the application of the Convention by Zimbabwe.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee had requested the Government to provide statistical information on the number of complaints relating to anti-union discrimination lodged with the competent authorities, number of complaints examined, sample judicial decisions issued, average duration of procedures and sanctions applied. The Committee notes that the Government states that: (i) according to section 65 of the new Constitution that recognizes freedom of association, redress for anti-discrimination acts should be sought in courts; and (ii) because of the lack of a labour market information system, it is however impossible to obtain detailed statistics on anti-union discrimination cases. In addition, the Committee notes that: (i) the Government’s comments to the 2012 ITUC and ZCTU observations do not address the allegations of acts of anti-union discrimination contained in these communications; (ii) the 2014 and 2015 ITUC and ZCTU observations contain new allegations of specific acts of anti-union discrimination as well as the mention that there is no clear provision in the labour statute providing directly for the protection of trade union representatives; and (iii) in its reply to the 2015 ZCTU allegations of anti-union discrimination, the Government requests further information to be able to carry out further investigations. Observing with concern the absence of specific information regarding the protection granted in practice to workers subject to anti-union discrimination, the Committee requests the Government to make every effort to submit detailed elements in this respect and to reply to the ITUC and the ZCTU observations.

Article 4. Promotion of collective bargaining. Labour law reform and harmonization. Following the Commission of Inquiry recommendations, 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. In this respect, the Committee notes the Government’s following statements: (i) article 65 of the Constitution adopted in May 2013 guarantees collective bargaining rights to all workers; (ii) the Government and the social partners are engaged, through the Tripartite Negotiating Forum (TNF) in the harmonization of the labour legislation with the Convention and the Constitution; (iii) while Labour Amendment Act No. 5 was promulgated in August 2015, it has not exhausted the process of harmonization of the legislation that is still ongoing; and (iv) noting the concerns raised by the ZCTU, the Government will, in the broader framework of the labour law reform process, engage in dialogue with the social partners with respect to certain provisions of the Labour Amendment Act. The Committee requests the Government to inform on the further steps taken, in consultation with the social partners to advance the harmonization of the labour and public service legislation with the Convention.

Scope of collective bargaining. The Committee notes with interest the broad recognition of the right to collective bargaining by section 65 of the Constitution. At the same time, the Committee notes that the ITUC and the ZCTU allege that public servants still do not enjoy the right to collective bargaining despite the clear provisions of the Constitution. The Committee requests the Government to inform on the measures taken, both in law and practice, to ensure that the civil servants who are not engaged in the administration of the State effectively enjoy the right to collective bargaining. In this respect, the Committee recalls that the Government can avail itself of the technical assistance of the Office.

Prior approval of collective agreements by public authorities. The Committee recalls that both the Commission of Inquiry and the Committee have requested the Government to take the necessary measures to repeal the provisions of the Labour Act which subject collective agreements to ministerial approval on the ground that the agreement is or has become unreasonable or unfair, having regard to the respective rights of the parties. In this respect, the Committee notes that the ITUC and the ZCTU allege that: (i) the Labour Act still submits collective agreements to a prior approval by public authorities; and (ii) new section 79(2)(b) of the Act provides that public authorities may refuse to register a collective agreement if it is contrary to “public interest”. Noting with concern the adoption of new section 79(2)(b), the Committee recalls that the discretionary power of the authorities to approve collective agreements is contrary to the principle of voluntary bargaining enshrined in Article 4 of the Convention and that systems of prior approval are compatible with the Convention only where approval may be refused if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation. The Committee therefore requests the Government to take the necessary measures to repeal section 79(2)(b) and (c) of the Labour Act and to provide information in this respect.

[The Government is asked to reply in detail to the present comments in 2016.]