Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Zimbabwe (Ratification: 2003)

The Committee notes the observations of the International Trade Union Confederation (ITUC) on the application of the Convention, received on 1 September 2016, and the Government’s reply thereon. The Committee further notes the observations of the Zimbabwe Congress of Trade Unions (ZCTU) received on 1 September 2016. The Committee also notes the observations of the International Organisation of Employers (IOE) received on 1 September 2016, which are of a general nature.

The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 3128 (see 377th Report, paragraphs 462–476).

Follow-up to the recommendations of the Commission of Inquiry appointed under article 26 of the Constitution of the ILO

Trade union rights and civil liberties. The Committee recalls that it had previously asked the Government to provide detailed information on the activities of the Zimbabwe Human Rights Commission (ZHRC) related to trade union rights. The Committee welcomes the detailed information provided by the Government. It notes, in particular, that the ZHRC Education, Promotion and Research Unit conducts awareness campaigns to educate the general public on labour rights, as well as principles of trade unionism; its Complaints Handling and Investigations (CHI) Unit is responsible for receiving complaints regarding alleged violations of trade union rights and carrying out investigations, as appropriate; its Monitoring and Inspections Unit monitors the human rights situation in the country, assesses the country’s observance of human rights and freedoms and undertakes media monitoring, law development monitoring and monitoring of judicial decisions which have a bearing on trade union rights. The ZHRC is currently setting up a thematic working group (TWG) on economic, social and cultural rights for the advancement of socio-economic rights, which include labour and trade union rights. The ZHRC recognizes that it has an important role to play as regards the advancement of trade union rights. According to the Government, with the operationalization of the new TWG, the visibility of the ZHRC in the promotion, protection and enforcement of trade union rights will be further enhanced.

In its previous comments, in view of the persisting allegations that trade union activities were being disrupted by the police, and recalling that permission to hold public meetings and demonstrations should not be arbitrarily refused, the Committee urged the Government to take the necessary steps to finalize and adopt a draft handbook on freedom of association and civil liberties and the role of the law enforcement agencies, as well as a draft code of conduct for the state actors in the world of work. The Committee welcomes the Government’s indication that with the technical assistance of the Office it has conducted a training-of-trainers workshop in November 2016 for members of the Zimbabwe Republic Police (ZRP). Apart from the adoption of the handbook and the code of conduct, the activity included capacity building on training methodologies suitable for dissemination of international labour standards within the ZRP. The Government informs that the workshop participants adopted specific conclusions aimed at ensuring: (i) greater compliance with the ratified conventions by mainstreaming training on international labour standards within the ZRP training curricula; (ii) that training courses for the police to be conducted in 2017 include international labour standards compliance issues; (iii) the use and application of the handbook and code of conduct; and (iv) that ZRP officials take part in future activities to promote the implementation of international labour standards, including closer partnership with the social partners, as well as the Office. The Committee requests the Government to provide information on the implementation of the above conclusions.

The Committee notes with concern the allegations submitted by the ZCTU regarding the ban imposed by the ZRP in March and April 2016 on protest actions by the Zimbabwe Banks and Allied Workers Union and the arrest, on 20 July 2016, of nine members of that union for protesting against non-payment of employees’ terminal benefits after termination of their employment contracts. While noting that according to the ZCTU their case is pending in the criminal court, the Committee notes the Government’s indication that although the unionists in question were briefly detained and questioned by the police in connection with the protest action, no criminal charges were raised against them, and therefore, no such case is pending before the courts. The Committee further notes the Government’s indication that the dispute in question is being addressed by the Ministry of Public Service, Labour and Social Welfare, that the hearing on the dispute was held on 24 November 2016 and that the ruling on the matter is expected to be made in 30 days. The Committee requests the Government to provide information on the outcome of this matter.

With respect to the Commission of Inquiry’s recommendation that steps be taken by the authorities to bring to an end all outstanding cases of trade unionists arrested under the Public Order and Security Act, the Committee notes the Government’s indication that with the exception of two cases for which the ZCTU must facilitate closure, all cases noted by the Commission of Inquiry have been closed and no charges are pending before the courts. In this respect, the Committee also notes the ZCTU’s indication that previously reported pending cases were closed, save for one case in respect of which the ZCTU will engage with the Government for the matter to be withdrawn.

Labour law reform and harmonization. The Committee had previously requested the Government to provide information on the progress achieved in bringing the labour and public service legislation into conformity with the Constitution and the Convention.

Labour Act. The Committee recalls that it had referred to the following issues: discretionary power of the Registrar to deny registration of trade unions (section 45); extensive powers of the Minister to regulate trade union dues (sections 55, 28(2), 54(2) and (3)); broad powers conferred on the Registrar and the Minister to investigate and to take over the direction of an employment council (a bipartite body) if there is a belief of mismanagement (section 63A); and powers conferred on the Ministry to investigate trade union organizations and to appoint provisional administrators to manage trade union affairs (section 120).

The Committee notes the Government’s indication that, in agreement with the social partners, it has initiated the amendment of the Labour Act through Principles that were adopted by the Tripartite Negotiating Forum (TNF) on 1 September 2016. The agreed Principles seek to harmonize the Act with the Constitution and the Convention on the basis of comments of the ILO supervisory bodies. The Committee notes, in particular, the following Principles:

• -Principle 6 (Governance of Employment Councils) provides for the amendment of section 63A(7) to remove the powers of the Minister to appoint a provisional administrator and gives the Labour Court the power to appoint the provincial administrator having given the parties concerned the right to be heard in compliance with section 69(2) of the Constitution.
• -Principle 8 (Right to Organize) provides for: (i) the amendment of section 45 to provide for specific criteria to be considered by the Registrar in registering a trade union (such as the existence of a constitution, existence of an executive board, fixed business address and membership register); (ii) time frames within which the Registrar shall consider applications and register an organization; (iii) the amendment of provisions which give the Registrar excessive discretion to refuse registration of a trade union or employers’ organization after receiving objections from the existing organizations; (iv) the amendment of section 51 in relation to the supervision of election of officers of a trade union or employers’ organization; and (v) the amendment of sections 28(2), 54(2) and (3), 55 and 120(2) of the Labour Act and section 120(7) and (8) of Act No. 5 of 2015 with a view to streamlining the Minister’s powers to regulate administrative issues of trade unions and employers’ organizations.

In addition, the Committee notes that Principle 4 (Collective Job Action) provides for the amendment of sections 107, 109 and 112 to remove excessive penalties in case of an unlawful collective industrial action and to decriminalize such actions.

The Government informs that these Principles are currently before the Cabinet. Once approved, the Attorney-General will draft the amendment Bill in consultation with the social partners. The Government also indicates that pending the coming into effect of the proposed changes, it has taken administrative measures to ease the registration process in line with the proposed Principles, including by setting up a time frame of 30 days.

Public Service Act. The Committee notes a copy of the Principles for the amendment of the Public Service Act, which, according to the Government, have been submitted to Cabinet for approval to facilitate the drafting of the amendment Bill. The Committee notes, that according to Principle 4.4, staff of the Civil Service Commission shall not have the right to organize. The Committee recalls that the Convention does not contain a provision excluding from its scope certain categories of public servants. Accordingly, the right to establish and join occupational organizations should be guaranteed to all public servants and officials, irrespective of whether they are engaged in the state administration or are officials of bodies which provide important public services. The Committee, therefore, requests the Government to take the necessary measures in order to ensure that under the new provisions of the Public Service Act, the staff of the Civil Service Commission will enjoy the rights enshrined in the Convention.

The Committee further notes that pursuant to Principle 9.2, the registration of public service associations and trade unions shall be done on the advice of the Civil Service Commission. The Committee requests the Government to take the necessary measures in order to ensure that legislative provisions adopted on the basis of this Principle do not in practice impose a requirement of “previous authorization”, in violation of Article 2 of the Convention, or give the authorities discretionary power to refuse the establishment of an organization.

The Committee also notes Principle 11.3, which provides for the definition of essential services to include services the interruption of which “would endanger … all rights enshrined in the Constitution”. The Committee considers that such a broad limitation on the right to strike could be used in a manner so as to restrict the legitimate exercise of the right to strike. The Committee requests the Government to take the necessary measures to ensure that the relevant legislative provision does not contain the excessively broad reference to “all rights enshrined in the Constitution” in the definition of essential services so as to ensure that workers fully enjoy the rights guaranteed by the Convention.

The Committee notes with concern that according to the ZCTU, the process of harmonization of the Public Service Act did not include the social partners represented in the TNF. The Committee hopes that the labour and public service legislation will be brought into conformity with the Constitution and the Convention, in consultation with the social partners, in the near future. Recalling that the Government may avail itself of the technical assistance of the Office, the Committee requests it to report on the progress made in this respect.

Prison and correctional service. In its previous comments, the Committee had requested the Government to take the necessary measures so as to ensure that prison and correctional service employees enjoy the right to organize enshrined in the Convention. The Committee notes that the Government indicates that in Zimbabwe, the Prisons and Correctional Service, referred to in article 207 of the national Constitution, is composed of workers, who by their duties, are armed forces in the strictest sense of the term, and that civilian personnel in the correctional services have the right to organize.

The Committee welcomes the Government’s indication that while all of the activities under the Office’s Technical Assistance Package for the implementation of the Recommendations of the Commission of Inquiry, launched in August 2010, had been carried out, it commits to continue working with all stakeholders, particularly the social partners, to ensure that the progress and achievements realized so far are consolidated upon.