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

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

The Committee notes the Government’s reply to the observations of the International Trade Union Confederation (ITUC) received in July 2012 concerning allegations of threats and intimidation of strikers in the mining sector. The Committee notes that the Government indicates that protests and strikes are allowed as long as they adhere to the Provisions of the Industrial and Labour Relations Act. The Committee also takes note of the ITUC’s observations received on 1 September 2015, which concern allegations of dismissals of workers in the mining sector on grounds of participation in strikes. The Committee requests the Government to provide further information on the specific allegations of the ITUC, including on the results of any investigations and judicial proceedings undertaken in relation to such matters. The Committee also takes note of the observations of the International Organisation of Employers (IOE) received on 1 September 2015, which are of a general nature.

Revision of the Industrial and Labour Relations Act (as amended by the Industrial and Labour Relations (Amendment) Act, 2008). In its previous comments, the Committee had noted that the Industrial and Labour Relations (Amendment) Act No. 8 of 2008 (ILRA) had been adopted, but that most of the amendments previously proposed by the Committee had not been taken into account when reviewing the law. The Committee takes note that the Government indicates that it is currently reviewing all labour laws and that the Committee’s comments regarding the ILRA will be taken into account in this review. The Committee also notes the Government’s indication that an issue previously raised by the ITUC, namely 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), will also be addressed in the ongoing review of the labour laws.

The Committee once again recalls 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) which 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 authorization.

Article 3

Section 7(3) which 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 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) and (6) which confers on 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 firmly hopes that the comments that it has been making for several years will be taken into account in the current review of the labour laws and that amendments 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 on any progress made in this respect and hopes that the amendments to the Act will be in full conformity with the provisions of the Convention. The Committee also hopes that the issue of the recognition of the ZUFIAW by the ZRA will be effectively addressed in the ongoing review of the labour laws.