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

Individual Case (CAS) - Discussion: 2016, Publication: 105th ILC session (2016)



The Government has provided the following written information:

In 2010, the Government of Zimbabwe unequivocally accepted all the recommendations of the ILO Commission of Inquiry and proceeded to devote a lot of effort to full implementation of the same, on a wholly tripartite basis. In its last deliberations on Zimbabwe in 2013 vis-à-vis the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Conference Committee noted the progress that had been achieved in the implementation of the recommendations and encouraged the Government to continue making progress. Since that time even greater strides have been made, both in law and in practice, to fully implement Conventions Nos 87 and 98. The basis of much of the progress has been the adoption of Constitutional Amendment No. 20 of 2013 which fully domesticated the principles and provisions of Conventions Nos 87 and 98 by expressly guaranteeing the rights to freedom of association, to collective bargaining and to organize, including the right to collective job action, in section 65 of the Bill of Rights. The remaining elements of the ongoing reforms include harmonization of the various labour statutes to the new Constitution for easier legal interpretation so as to effectively guarantee the rights in the two ratified Conventions. Considerable progress has been made to date to finalize the Labour Law reform exercise to take into account outstanding comments of the ILO supervisory bodies. A duly appointed Tripartite Labour Law Reform Advisory Council, working under the oversight of the Tripartite Negotiating Forum completed the redrafting of the Principles for the Amendment of the Labour Act during the period February to April 2016. On 22 May 2016, the Principals of the Tripartite Negotiating Forum, that is, the Minister of Public Service, Labour and Social Welfare and presidents from both Business and Labour organizations, commenced deliberations on the Council’s recommendations and agreed to finalize the discussions by 31 August 2016 to pave way for the drafting of a labour amendment bill.

More specifically on Convention No. 98, the latest report of the Committee of Experts notes the extensive progress so far realized, but goes on to express a few concerns on Articles 1 and 4 only, for which the Government of Zimbabwe is happy to share the following clarifications and information: with respect to protection against anti-union discrimination in practice, sections 4 and 7 of the Labour Act already provide for protection against acts of anti-union discrimination by providing for penal sanctions against employers that violate “employees’ entitlement to membership of trade unions and workers committees” and “employees’ right to democracy in the work place”, including custodial sentences for periods of up to two years. Section 89(2)(c) of the Labour Act further legislates for reinstatement or employment for anyone unlawfully dismissed, including the awarding of punitive damages where reinstatement is deemed no longer possible. Furthermore, article 65(2) of the Constitution of Zimbabwe states that “except for members of the security services, every person has the right to form and join trade unions and employee or employers’ organisations of their choice, and to participate in the lawful activities of those unions and organisations”. The challenge in practice may therefore be, generally, inadequate capacity on the part of trade union members to sufficiently assert the existing rights in courts of law. In order to address the issues at stake, from 31 August to 3 September 2015 the Government engaged all Labour Court judges in training sessions facilitated by ILO specialists from the Decent Work Team in Pretoria, South Africa, to sensitize them on how to better protect workers in cases of anti-union discrimination, among other issues. Going forward, the Government is also committed to discussing with the social partners ways to undertake legal and practical reforms to make protection against anti-union discrimination more user-friendly and accessible. The Government is indeed confident that these efforts will lead to better application of Convention No. 98; with respect to the scope of collective bargaining, as the Committee of Experts notes (with interest), the Constitution of Zimbabwe has extended collective bargaining to public servants. In order to fully guarantee the constitutional right to collective bargaining, the Public Service Act is already at an advanced stage of being harmonized with the Constitution in line with principles agreed to by workers’ representatives in the public service. While these amendments are being processed, workers in the public service are now able to collectively bargain within the National Joint Negotiation Council; with respect to prior approval of collective bargaining agreements, the Government of Zimbabwe and the social partners, through the tripartite Labour Law Advisory Council, have agreed on amendments to the Labour Act to incorporate the recommendations of the Committee of Experts by amending section 79 to limit the requirements for registration of collective bargaining agreements to “procedural flaws and representations made by the parties themselves” as recommended by the Committee of Experts.

It is pertinent to report that in the context of Convention No. 87, the Government of Zimbabwe has recently complied with the recommendations of the Committee on Freedom of Association of March 2016 to register two workers’ organizations whose registration had previously been turned down. The Government of Zimbabwe is therefore committed to continue working with the social partners in fulfilling its international obligations with respect to ratified Conventions.

In addition, before the Committee, a Government representative referred to the information supplied in writing to the Conference Committee. In addition, she stated that the High-level Technical Mission to Zimbabwe, requested by the Conference Committee in 2013 to assess progress in implementing the recommendations of the 2009 Commission of Inquiry, had been well received by both the Government and the social partners in February 2014. Various activities had been undertaken and were still being pursued by the Government and the social partners to give effect to the recommendations of the Commission of Inquiry: labour law review, capacity building of state actors and judicial officials, as well as the development of a customized user-friendly handbook on international labour standards to be used for the training of law enforcement agencies and other state actors. She recalled that since the Conference Committee’s conclusions in 2013, the Committee of Experts had noted with interest progress made on a number of issues, including on full domestication of the principles and provisions of Conventions Nos 87 and 98. She further specified that the withdrawal of a number of cases involving trade unionists that had been pending before the courts had greatly improved the scope of trade unionists to freely enjoy their fundamental rights, especially the right to organize. Moreover, numerous knowledge-sharing seminars on international labour standards for diverse state actors, including the police, prosecutors, magistrates and judges of the Supreme Court, High Court and Labour Court organized from 2011 to 2015 had resulted in a remarkable decline in the number of incidences of clashes between trade unionists and law enforcement agencies.

Recalling the most recent observations of the Committee of Experts and its points of concern, she indicated that progress had been made with regard to the harmonization of labour laws. The review of the Public Service Act to ensure that it gave effect to the principles enshrined in Convention No. 98 was based on principles agreed upon at a Tripartite Negotiating Forum meeting held on 4 August 2014 in Harare, and the Government intended to convene a National Joint Negotiating Council meeting to consider the draft Amendment Bill no later than September 2016 to give public service workers an opportunity to contribute to the law development process. With regard to the Labour Act, the new set of Principles for the Amendment of the Labour Act, agreed to in the Tripartite Labour Law Reform Advisory Council in 2016, addressed, among other aspects, the revision of the entire section 79 of the Labour Act cited in the 2016 report of the Committee of Experts in order to rationalize the powers of the Minister with respect to the registration of collective bargaining agreements. Some sections of the Labour Act which were directly or indirectly linked to collective bargaining were also to be amended: (1) sections 14, 25 and 81, so as to ensure that collective agreements were not subjected to Ministerial approval on the grounds that the agreement was or had become “… unreasonable or unfair” or “contrary to public interest”; (2) section 63A(7), so as to remove the powers of the Minister to appoint a provisional administrator and to give the power to the Labour Court to appoint the administrator having given the parties concerned the right to be heard in compliance with article 69(2) of the Constitution; (3) section 104, so as to streamline procedures for declaring a strike; and (4) sections 107, 109 and 112, so as to remove excessive penalties and to decriminalize collective job actions and ensure protection against anti-union discrimination. Other principles not necessarily relating to freedom of association and collective bargaining should be agreed upon by 30 June 2016, in order for the drafting of the Amendment Bill to commence. She expressed the belief that the Worker and Employer members from Zimbabwe could corroborate the Government’s submission to the Conference Committee and emphasized that her Government cherished social dialogue that was at the heart of labour market governance. Apart from addressing the concerns of the Committee of Experts under Convention No. 98, the Government and the social partners had also made progress in a number of areas related to labour market governance, including the strengthening of social dialogue by negotiating and agreeing on a chamber for social dialogue; to that end the Attorney-General’s Office was working on the second draft of the Tripartite Negotiating Forum Bill, which sought to incorporate the comments and recommendations of the social partners on a first draft bill published in November 2015. Moreover, in August 2015, the Government had acted swiftly by amending the Labour Act in order to halt massive lay-offs following a Supreme Court ruling that stated that, in law, employers in Zimbabwe had the right to terminate contracts of employment on notice based on common law. To conclude, the Government representative indicated that her delegation was looking forward to a constructive engagement and dialogue with other Governments and the representatives of the workers’ and employers’ organizations in the Conference Committee.

The Employer members recalled that the examination of the application of Convention No. 98 by the ILO supervisory bodies had a long history: it had been the subject of 11 observations of the Committee of Experts since 2002; a Commission of Inquiry had been set up in 2009 in accordance with article 26 of the ILO Constitution; the present Committee had discussed the case four times, in 2002, 2003, 2004 and 2005; a complaint had been made before the Committee on Freedom of Association (Case No. 3128); and a High-level Technical Mission of the Office had taken place in February 2014. Most of the recommendations made had been carried out, as explained by the Government representative, but the Committee of Experts had identified some outstanding issues of concern in its latest observation. The first was about protection against anti-union discrimination. Following allegations of anti-union acts by the Government, including the arrest and harassment of trade unionists and trade union leaders, made by the trade union movement in Zimbabwe and the International Trade Union Confederation (ITUC), the Committee of Experts had requested the Government to provide statistical information on the number of complaints of anti-union discrimination lodged and examined, sample judicial decisions issued, the average duration of procedures, and sanctions applied. The Government had responded that, due to the lack of a proper labour market information system, it was not possible to provide such statistical information. As the ITUC and the Zimbabwe Congress of Trade Unions (ZCTU) had made more allegations of anti-union activities in 2015, the response of the Government had been that it was for the trade unions to submit more details to enable an investigation. In this context, the Committee of Experts noted with concern the absence of specific information regarding the protection granted in practice to victims of anti-union discrimination, and requested the Government to make every effort to submit detailed elements in this respect and to reply to the observations of the ITUC and the ZCTU. The additional information submitted in writing by the Government showed the progress made to ensure that labour laws complied with Article 1 of the Convention: sections 4 and 7 of the Labour Act provided for penal sanctions for violation of workers’ rights to join trade unions and workers’ committees and to democracy in the workplace. The initiative of the Government to train, with the assistance from the ILO, all Labour Court judges on better protection of workers against anti-union discrimination was welcomed. Its commitment to engage with social partners to consider legal and practical reforms to make protection against anti-union discrimination a reality was also to be commended. Concerning the Government’s response to the request for statistical information about complaints, the Employer members observed that such information already existed, although not structured; the Government was encouraged to consider gathering that information for submission to the Office, and to explore the possibility of developing a labour market information system or to implement alternative measures allowing the tracking, monitoring and reporting of incidents of non-compliance, with the support of technical or other assistance from the ILO, if needed.

The second issue raised by the Committee of Experts related to the promotion of collective bargaining. It noted the Government’s efforts to harmonize its labour and public service legislation with the Convention, as well as the adoption of a new Constitution in 2013, which guaranteed collective bargaining rights to all workers, negotiations with the social partners in the Tripartite Negotiating Forum, the passing of Labour Amendment Act No. 5 in August 2015, and the ongoing labour law reform process. The Employer members welcomed the progress made to date and urged the Government to continue consultations with the social partners to complete the harmonization process. Concerning the right to collective bargaining of civil servants, the Committee of Experts had noted with interest that the new Constitution guaranteed that right to all workers, but remained concerned that it was not enjoyed by all public servants. It encouraged the Government to seek technical assistance from the Office to ensure that public servants not engaged in the administration of the State effectively enjoyed the right to collective bargaining. According to the information submitted by the Government to the present Committee, the process of amending the Public Service Act to put it in line with the Constitution was at an advanced stage. The information supplied by the Government made clear that the right to collective bargaining of all public servants, with the exception of “members of the security services”, was protected by the Constitution. In the view of the Employer members, this was laudable progress. They urged the Government to finalize the last legislative amendments needed to ensure the full harmonization of public service laws with the Convention.

The final concern of the Committee of Experts was that, by giving to the authorities the right to approve or reject collective agreements based on considerations such as the agreement having become unreasonable or unfair, section 79 of the Labour Act was contrary to the principle of voluntary bargaining protected by the Convention. It requested the Government to repeal the offending provisions. The information provided by the Government showed progress in that respect: section 79 of the Labour Act had been amended, by agreement with the social partners and on the advice of the Tripartite Labour Law Reform Advisory Council, to limit the grounds for refusing registration of collective agreements to “procedural flaws and representations made by the parties themselves”. The Employer members were pleased to note progress on this aspect, and believed that the amendment enhanced compliance with the Convention. In conclusion, the Employer members believed that notable progress had been made to comply with the Convention and, given the history of the case, commended the Government for that. While accepting that the process to harmonize national laws with the Convention was not yet completed, they considered that much had been done, and they urged the Government to cooperate with the social partners and to avail itself of technical assistance from the Office to complete the harmonization process.

The Worker members observed that eight years had passed since the present Committee had discussed Zimbabwe’s flagrant disregard for the most basic freedom of association rights and recommended the establishment of a Commission of Inquiry. In March 2010, the Commission of Inquiry had concluded that there were systemic violations of Conventions Nos 87 and 98 in the country, with a clear pattern of arrests, detentions, violence and torture of trade union leaders and members by the security forces, in a calculated attempt to intimidate and threaten members of the ZCTU, and had expressed particular concern over the routine use of the police and army against strikes, widespread interference in trade union affairs, and failure to guarantee judicial independence and the rule of law. The Government had repeatedly expressed its commitment to give effect to the recommendations of the Commission of Inquiry, including during a High-level Technical Mission to the country in February 2014. The Worker members were not only deeply disappointed at the absence of progress despite the promises made, but also alarmed about regressive measures and steps recently undertaken. Although the right to collective bargaining was recognized as a fundamental right by article 65 of the Constitution of 2013, labour laws did not give it effect in practice. Indeed, none of the shortcomings raised by the Committee of Experts for the past 15 years had been effectively addressed. Under section 17 of the Labour Act, the Minister of Labour continued to maintain their prerogative to issue regulations on an extensive list of matters, including conditions of employment, while denial of registration of collective agreements considered “unreasonable or unfair” continued to be allowed by sections 78 and 79. These provisions were clearly contrary to the principle of voluntary bargaining protected by Article 4 of Convention No. 98. Nevertheless, the Government had reinforced its discretionary powers with the adoption of the Labour Amendment Act of 2015 which provided that collective agreements had to include measures to “promote high levels of productivity” and “economic competitiveness”. In addition, section 19(1) of the Public Service Act continued to deny public employees the right to collective bargaining.

The Government continued to blatantly violate Article 1 of the Convention, which required that workers enjoy adequate protection against acts of anti-union discrimination. The Commission of Inquiry had concluded that there was no such adequate protection in the country. Not only had there been no progress in this regard, but workers were increasingly victimized for their trade union activity without access to effective remedies. Among many examples, Ms Mutsambirwa, a union leader in the banking sector, had first been transferred and then dismissed in 2015 on accusations of inciting to strike, although she had successfully challenged her transfer in the Labour Court. Mr Katsande, President of the Zimbabwe Banks and Allied Workers’ Union, who had been suspended from his position in his employment bank, had his case heard in June 2014 by the Constitutional Court, which had yet to deliver its judgment. Another worrying development was the Special Economic Zones Bill, which sought to exempt from the application of the Labour Act investors operating in those zones. Instead of the Labour Act, the Minister would provide rules for conditions of service, termination, dismissal and disciplinary procedures to apply in the zones. This meant that workers in these zones would be excluded from the right to collective bargaining and subject only to regulations unilaterally made by the Special Economic Zones Authority, which might consult with the Labour Minister but not with Worker representatives. Since the Bill vested the Special Economic Zones Authority with the power to declare any area or premise a special economic zone, the impact on workers could be devastating. The right to collective bargaining was inextricably linked to the right to freedom of association and the right of workers and employers to establish organizations of their own choosing. The Commission of Inquiry and the Committee of Experts had found provisions of the Labour Act and the Public Order and Security Act contrary to the right to freedom of association with respect to issues such as registration of trade unions, supervision of the elections of trade union officers or regulation of trade union dues. The Labour Amendment Act of 2015 only made the situation worse by empowering, under section 120, the Government to appoint an administrator to run the affairs of a trade union it believed was mismanaged. This provision contravened Article 3 of Convention No. 87 which protected the right of trade unions to administer their activities without interference by the public authorities.

In addition, there had been a serious clampdown on public protests. Workers who had taken to the streets to hold the Government accountable to promises made during the elections faced arrests and intimidation by the police. On 11 April 2015, the police made a public announcement stating that demonstrations called by the ZCTU against a wage freeze announced by the Government would be banned – it was disavowed by the High Court which issued an order allowing the protest action. Moreover, more than 100 riot policemen turned up at the ZCTU’s office and blocked its entrance from 8 to 15 August 2015, when a national protest action was due to take place following the Supreme Court’s decision to allow employers to terminate employment contracts without a valid reason. ZCTU leaders George Nkiwane and Japhet Moyo were arrested, together with Runesu Dzimiri (General Secretary of the Food Workers), Ian Makoshori (General Secretary of the Young Workers) and Sekai Manyau (member of the Women’s Advisory Council). Finally, the non-remittance of union dues by employers had become a widespread practice that had brought unions into serious financial difficulties. The Labour Act prescribed that employers violating agreements with unions for the collection and transfer of union dues were liable to a fine or imprisonment of up to two years. However, the Zimbabwe Construction and Allied Trades Workers Union was still owed US$485,000 by various employers in the construction industry, the Ceramics and Associated Products Workers Union US$15,700 by various employers in the ceramic industry, and the National Mine Workers Union of Zimbabwe US$39,360 by employers in the mining industry, with devastating consequences for the unions affected. Zimbabwe was facing an acute jobs crisis and the workers of the country were bearing the brunt of repeated failed economic policies of the Government. Most workers earned salaries far below the poverty level, and many workers went for months without receiving their wages. Repression had never helped any government in tackling economic crises while collective bargaining and social dialogue had proven to be effective tools against job losses. The Government was therefore called to bring its laws and practices in line with the Convention as a matter of urgency.

The Employer member of Zimbabwe stated that in the past the extremely adverse situation prevailing in the country had affected both workers and employers. Both suffered at the hand of law enforcement authorities. Employers were not spared as they were arrested for breaking price control regulations which led to the appointment of a Commission of Inquiry. He explained that progress had been made and that it ought to be commended; for instance, improvements had been made in the manner in which employers and the Government interacted. He supported the statement made by the Employer members which posed a very pertinent question concerning cases of anti-union discrimination which had been reported to the Government. In particular, he agreed that in that state of affairs, an additional request for information from the Government would seem unreasonable; considering that had it taken the responsibility for investigating the allegation, the information would have been readily available. However, the Government had to be congratulated for setting up the Tripartite Labour Law Reform Advisory Council which had agreed to the 13 principles which would inform the labour law reform in the country. The said principles had been crafted in a tripartite manner; for instance, cases where there had been excessive ministerial power had been looked at, and it had been agreed that those powers would be curtailed. Although employers had been let down before they were still prepared to give the Government and workers another chance.

The Worker member of Zimbabwe indicated that five-and-a-half years had elapsed since the Commission of Inquiry had formulated its recommendations. Despite the Government’s promise to bring all the pertinent labour laws into conformity with Conventions Nos 87 and 98, little progress had been made, with the exception of the 2013 Constitution. In August 2014, principles to align national laws with international labour standards were agreed upon in a tripartite manner. In 2015, the Government had promulgated Labour Amendment Act No. 5, ignoring the agreed principles. Labour Amendment Act No. 5 specified that a freely concluded collective bargaining agreement would not be registered if “contrary to public interest”. Furthermore, the said Act imposed a minimum retrenchment package. Moreover, the Act permitted ministerial interference in the administration of national employment councils. The speaker was of the view that the principles discussed on 22 May 2016 had been merely agreed upon for the purpose of reporting progress to the present Committee. Also, in May 2016, the Special Economic Zones Bill had been discussed and passed by the lower house of Parliament, without consultations being held. The Bill sought to exempt Special Economic Zones from the application of the Labour Act. The speaker stated that acts of anti-union discrimination were widespread, trade union members were being dismissed, as was the case of the President of the Railways Association of Enginemen, Mr Honest Mudzete, the President of the Zimbabwe Catering and Hotel workers Union, Mr Muzvidziwa, and the union’s national executive member, Ms Sophia Bwera. Selective dismissals of workers were taking place during strikes, especially in the case of trade union officials and worker representatives. Moreover, the Constitutional Court had yet to determine the constitutionality of section 104 of the Labour Act that restricted the right to strike. He denounced late payments of wages and the difficulty for workers to dispose of their wages, due to limited availability of money in banks. As workers’ wages had not been paid, trade union dues had not been remitted, thereby crippling unions’ operations. The speaker called on the Committee to insist, with stronger measures, on the effective implementation of the Convention.

The Government member of Botswana, speaking on behalf of the Member States of the Southern African Development Community (SADC), noted the progress made by the Government in addressing the issues raised, in particular in relation to the recommendations of the Commission of Inquiry. He noted the constitutional amendments adopted in 2013 which formed a good basis for addressing the concerns raised by the Commission of Inquiry regarding compliance with the Convention. He also noted the tripartite agreement on principles which formed the basis for the amendment of the Labour Act and the Public Service Act, in the context of the labour law reform. Progress was also noted concerning the capacity building of the stakeholders. The speaker stressed the necessity to rapidly harmonize various statutes with the new Constitution. While some outstanding issues still needed to be addressed expeditiously to fully comply with the Convention, he trusted that the regular review and monitoring of the implementation of regional instruments on employment and labour, such as the SADC Decent Work Programme 2013–19, would help the Government in this regard. The continued technical assistance provided by the Office to the Government and the social partners would also facilitate compliance with the Convention.

The Employer member of Malawi expressed his solidarity with the Government on behalf of the SADC Private Sector Forum (SPSF). There was a conducive space for reforms in Zimbabwe and the employers were contributing to the current changes. The SPSF, the subregional body representing the private sector, approached tripartite consultations and social dialogue with objectivity. The interventions made by the Employer member of Zimbabwe demonstrated such commitment. The employer representatives had agreed in the context of the national social dialogue platform to repeal section 79(2)(b) and (c) of the Labour Act. When instances of non-compliance with fundamental Conventions were reported, it was crucial that the situation be addressed first at the national level, and if these institutions had failed, at the subregional level, in order to ensure that existing structures with competent authority were given an opportunity to understand the reasons for the problems. In that regard, it was encouraging that the Employers Federation of Zimbabwe (EMCOZ) was using the national platforms to raise its concerns regarding the Labour Amendment Act No. 5 of 2015. The EMCOZ had not brought these concerns to the attention of the relevant subregional or international structures. National structures had to be taken advantage of, especially where governments, with the technical assistance of the ILO, had demonstrated their willingness to address concerns raised by the Conference Committee. The request made by the employers to the Government was legitimate and demonstrated the employers’ objective approach towards social dialogue. To conclude, the speaker acknowledged the positive spirit of the Government in facilitating progresses to address the concerns raised by the Committee and was convinced that the Government and the social partners would continue the positive developments.

The Worker member of Botswana recalled that Zimbabwe had been a recurrent case before this Committee due to gross breaches of the provisions of Conventions Nos 87 and 98. The severity of these breaches, notably the serial and brazen physical and psychological attacks on workers and their trade union leaders, had led to the appointment of a Commission of Inquiry to investigate and make recommendations. However, the Conference Committee was familiar with the fact that these recommendations had been poorly implemented. The situation had not changed substantially as harassment and intimidation were still waged against workers and trade unions and had impacted the process of collective bargaining. On 8 August 2015, the police had prevented the ZCTU from demonstrating against the increase in job losses. Prior to the planned demonstration, the police had raided the ZCTU offices in Harare and had detained seven union leaders, including the President and the Secretary-General of the ZCTU, and several journalists. Those arrested had later been released and were intimidated physically and psychologically by police officers patrolling in the Harare’s Central Business District with anti-riot equipment. On 11 April 2015, the ZCTU had obtained permission to demonstrate in six cities to denounce a range of practices contrary to the existing collective bargaining agreements, including wage freezes and cuts, the unilateral labour market flexibility, the non-and late payment of salaries, and the failure to remit trade union membership dues to the unions. To conclude, the speaker stressed that the Government had failed to align its laws and practices with the requirements of the Convention.

The Government member of Malawi expressed his satisfaction concerning the progress made by the Government in the implementation of the recommendations made by the Commission of Inquiry in 2010. Employers, workers and the Government had to work together for the country to move forward economically and socially. The establishment of a Tripartite Negotiating Forum, responsible for overseeing the improvement and implementation of labour laws and other instruments was welcomed. This forum created an auspicious climate for the social partners to work together in designing a greater country to live and do business in. The commitment and progress made by the Government to improve the implementation of the Convention was commendable and should be encouraged. The measures taken by the Government to amend its Constitution was also a step in the right direction. Government, workers, and employers were to be encouraged to work together to ensure that the issues raised by the Commission of Inquiry were addressed in earnest. To conclude, the speaker encouraged the ILO to continue to provide technical assistance in the ongoing reforms to enable the Government to achieve economic growth through the development of a good, sustainable and sound social dialogue.

The Government member of Swaziland supported the statement made by the SADC Member States and congratulated the Government for the great strides made in implementing the recommendations of the Commission of Inquiry. The Government had made considerable progress, in consultation with the social partners, to ensure compliance with the Convention, in law and in practice, through the amendments of the Constitution and the legislative framework, as well as through the training of Labour Court judges. The Government had demonstrated its commitment to the promotion and protection of workers’ rights. The speaker recommended that the ILO continue to provide technical assistance in order to support the measures taken to implement the recommendations of the Commission of Inquiry.

The Employer member of Swaziland, speaking on behalf of the Federation of Swaziland Employers and Chamber of Commerce (FSECC), indicated that the case was a case of progress and that it was important to acknowledge the efforts of the social partners. The labour law reforms undertaken by the social partners through the Tripartite Negotiating Forum had to be commended. Some reforms had been concluded and others were still in progress. The Government was committed to further engage with the social partners to address the concerns raised by the ZCTU. The ILO promoted the spirit of dialogue and encouraged social partners to resolve their difficulties. It was essential to deliberate these issues nationally and regionally, through existing tripartite structures. The ILO had to be used as the ultimate escalation forum. Workers and employers could do more to ensure that Zimbabwe complied with the requests of the Committee of Experts regarding anti-union discrimination. To conclude, the speaker urged the Conference Committee to commend the progress made and called on the social partners to work together in resolving their points of disagreement. The ILO should continue to provide technical assistance in this regard.

The Worker member of Swaziland expressed solidarity with the workers of Zimbabwe whose challenges were similar to the ones faced by workers in Swaziland. It was unfortunate that Zimbabwe had appeared on recurrent occasions before the Committee. When Zimbabwe had signed the 2011 Charter of Fundamental Social Rights in the SADC, it had been assumed that it had done so with a view to achieve uniformity in respect for human and workers’ rights throughout the region. However, instances where deductions had not been remitted to the unions to whom they were due, continued to happen. These practices were intended to frustrate, cripple and undermine the trade unions’ capacity to defend and advance their members’ rights and interests. The speaker called on the Government to fulfil its commitment to respect the Convention and the Charter of Fundamental Social Rights in the SADC and to protect the rights of the trade unions. Governments should assist the Government of Zimbabwe to comply with the obligations agreed upon, within the context of the ILO, but also in the regional and other international contexts. The workers of Zimbabwe were entitled to enjoy their rights. It was clear that no progress had been made by Zimbabwe regarding the implementation of the Convention and the conclusions should urge the Government to take action.

The Government member of the United Republic of Tanzania associated herself with the statement made on behalf of the SADC Member States and welcomed the efforts made by the Government of Zimbabwe and the social partners aimed at addressing the pending issues. These efforts had led to the adoption, in 2013, of the Constitutional Amendment; to the formulation of the Tripartite Negotiation Forum; and to the appointment of a Tripartite Labour Law Reform Advisory Council which would pave the way for the drafting of a Labour Amendment Bill. The Government and all the parties concerned should be encouraged to intensify their efforts to achieve sustained and harmonious industrial relations. The speaker called on the ILO to continue providing the necessary assistance to the Government and the social partners in this regard.

The Worker member of the Republic of Korea recalled that the Committee of Experts had reminded the Government of the need to effectively reform its labour laws to promote genuine and acceptable collective bargaining practices in full collaboration with the social partners. The Government had continued to poorly implement the requests of the Committee of Experts. Furthermore, the Government had unilaterally changed the principles that had been agreed upon by the social partners. Specifically, in August 2014, the tripartite partners had adopted, in the context of the Tripartite Negotiating Forum, 13 principles to guide the reform process. These principles had been accepted by the Cabinet in December 2014 without any changes. The Labour Amendment, which later became law in August 2015, had made significant unilateral changes to the agreed principles. The Act included provisions on the creation of a new bipartite worker–employer structure, on inspection and examination, and on the administration of the employment councils. These provisions had never been discussed nor agreed upon with the social partners. The provisions undermined the Convention and reversed the progress achieved through past national reforms, as they increased the powers of the Registrar of Unions and allowed the Minister to take control over the employment councils. Collective bargaining could not take place under the new law, which was intended to intimidate the social partners. The patience of this Committee should not be taken as a pretext to delay the implementation of the Convention.

The Government member of China emphasized that the Government had implemented the recommendations of the Commission of Inquiry, in particular by adopting amendments to the Constitution and revising the labour legislation. This progress should be welcomed, since it enabled the protection of the social partners’ rights and the promotion of collective bargaining. The member States needed to shoulder the responsibilities that arose from the Conventions which they had ratified and, to do that, they needed time and also technical assistance from the ILO. In conclusion, the speaker supported the efforts of the Government and expressed the hope that the assistance provided would continue.

The Worker member of the United Kingdom recalled that the Convention should be applied both in law and in practice. The right to collective bargaining was protected under article 65 of the Constitution adopted in 2013. However, when the labour law reform was discussed, the situation did not reflect the promising disposition of the Constitution. Those who had attended the tripartite discussions had not been able to recognize the legislation that was supposed to have emerged from the tripartite process. The section agreed upon by the social partners had already been highly criticized, including by the Commission of Inquiry and the Committee of Experts for interfering with collective bargaining through requiring the approval by the Minister of the collective agreements before they could be registered. Instead of bringing the law into compliance, the Government had inserted a new section that had compounded the infringement of core rights. The Minister had been given even more discretion and the power to choose when an agreement was or was not in “the public interest” before deciding whether to register it. Thus, the section gave the Ministry full discretion in granting prior approval, which was a very clear violation of the principle of autonomy of the parties. In relation to public-sector bargaining, Government agencies were able to take over employment councils. These examples showed a tightening grasp of control by the Government over what should have been a negotiated process between the social partners. The same had happened regarding retrenchment or redundancy payments, and the fixing of public sector terms and conditions. Despite the inclusion of article 65 in the 2013 Constitution, collective bargaining free of government control was not a reality in Zimbabwe.

The Government member of Namibia associated himself with the statement made on behalf of the SADC Member States and commended the Government for the adoption of the Constitutional Amendment, which gave effect to both Conventions Nos 87 and 98. This showed the commitment of the Government to implement the recommendations of the Commission of Inquiry. Moreover, the registration of two workers’ organizations in 2016, demonstrated that the principles of the Convention were applied in practice. She called on the ILO to continue to provide technical assistance to the Government in its labour law reform process.

The Government member of Cuba warmly welcomed the Committee of Expert’s recognition in its report of the legislative progress made, particularly with respect to the amendment of the Constitution that provided fully for the right to collective bargaining, and the process of harmonizing labour law with the Convention. In light of the will expressed by the Government to continue moving towards the fulfilment of commitments made, she called for the spirit of cooperation to prevail and the necessary technical assistance to be provided to the Government.

The Worker member of South Africa expressed solidarity with the workers of Zimbabwe and recalled that the Committee had, on many occasions, discussed on the abuse, deprivation and denial of fundamental rights of workers in export processing zones (EPZs), which in turn undermined and eroded the spaces and latitude for collective bargaining. The Special Economic Zones Bill had been discussed in the Parliament of Zimbabwe in May 2016. Section 56 of the Bill provided for the removal of the application of the Labour Act in special economic zones. The effect of this provision would be that collective bargaining, as provided for in the Labour Act, would be made impossible, giving employers and the authorities the power to determine conditions of work in these zones. Workers would be subjected to regulations unilaterally made by the special economic zones authority without consultation or negotiation with worker representatives. Moreover, recalling that the Special Economic Zones Bill, once adopted, would be administered by the Minister of Finance and the Minister of Public Service, the speaker feared that inputs from the Ministry of Labour and Social Welfare on the adoption of regulations would only be possible when the authority decided to consult it. He requested the Committee to call upon the Government to accept a high-level mission to assess progress and to assist with proposals to make rapid and lasting changes to collective bargaining laws and practices.

The Government member of Kenya noted with appreciation the various measures taken by the Government to fulfil its obligations under the Convention and address the issues raised, including with regard to the scope of collective bargaining and the protection against anti-union discrimination. There also had been significant progress and commitment by the Government to address and finalize the outstanding issues, including those concerning amendments to the Labour Act, which had been discussed by the Tripartite Negotiating Forum and the Tripartite Labour Law Reform Advisory Council. In conclusion, she welcomed that the ILO had supported the tripartite parties through technical cooperation and called on the Office to continue supporting the Government in its efforts.

The Government member of India expressed appreciation at the various measures initiated by the Government to harmonize its legislation with the provisions of the Convention. She was pleased to note that the Tripartite Negotiating Forum had agreed to finalize the discussions on the Labour Amendment Bill by the end of August 2016. Furthermore, the Government had already taken actions to implement most of the recommendations of the Commission of Inquiry, including those related to protection against anti-union discrimination, the extension of the scope of collective bargaining, and the registration of collective bargaining agreements. The Government had also shown its willingness to engage in discussions with the social partners and had benefited from ILO technical assistance in the area of training and sensitization. The Committee should take into account the progress made and the commitment expressed by the Government to pursue its efforts with a view to ensure full compliance of its labour laws with the Convention.

The Government member of Ghana acknowledged the actions taken by the Government to address, through tripartite consultation, the issues raised by the Commission of Inquiry, in particular the ongoing labour law reform which was an important step towards compliance with the Convention. The speaker urged the Government to expedite those actions in order to achieve a harmonious industrial climate and respect of workers’ rights.

The Government representative indicated that some of the issues discussed had not been raised by the Committee of Experts. Firstly, legislative issues should be discussed in the Tripartite Negotiating Forum and other national social dialogue structures and the Government was committed to address those issues with the social partners at the national level. Secondly, the overall economic performance of the country had to be taken into account. Thirdly, incidences of clashes between the law enforcement agencies and trade unions had been reduced and the Government had continued to work towards the improvement of working relations between state actors and trade unionists. The Government had always been ready to engage in dialogue with a view to finding mutually acceptable solutions to the issues discussed by the Committee. Challenges had been encountered in the labour law reform. The Supreme Court ruling of July 2015 had exposed loopholes in the existing laws giving employers the right to terminate employment contracts without notice. Since this ruling had resulted in unprecedented massive job losses, the Government had taken measures to expedite the enactment of labour legislation to stop those dismissals. The Labour Amendment Act No. 5 of 2015 prohibited the termination of employment without notice and retroactively entitling dismissed workers to compensation. While considerable progress had been realized since June 2015 with the agreement of the tripartite partners on the labour law reform based on all the comments of the ILO supervisory bodies, the need for urgent labour law amendments had meant that the reforms that had been agreed upon had to be temporarily set aside. However, this decision had been made in good faith and with the intention to benefit workers. As soon as the labour amendments had been passed, tripartite engagement had been resumed. The discussions, which had been initiated within the Tripartite Negotiating Forum, had been finalized by the Tripartite Labour Law Reform Advisory Council. The objective was to finalize the consultations by the end of June 2016 to pave the way for the drafting of a Labour Amendment Bill. The socio-economic challenges faced by the country had been exacerbated by the El Niño induced drought. In this context, some employers had been failing to fully comply with collective bargaining agreements, especially with respect to minimum wages. This had also led to delays in the payment of wages, and to delays in the remittance of trade union dues and medical aid contributions. The Government had repeatedly intervened to encourage the parties to reach agreements on how the collective bargaining agreements could be respected, notwithstanding the economic challenges at stake. The Special Economic Zones Bill that was being discussed in Parliament could not undermine the fundamental rights of workers, especially those relating to Conventions Nos 87 and 98, as the Constitution of the country already guaranteed these rights (except for the security services). Moreover, it was the Government’s intention to convene a tripartite seminar to build greater consensus on how the industrial relations framework for special economic zones was to be configured. In conclusion, she emphasized that the Government had demonstrated full respect towards the comments of the ILO supervisory bodies, as well as towards the diverse opinions of the social partners. The socio-economic challenges faced by the country required nothing short of social dialogue and inclusive participation. All efforts would be taken, in law and practice, to ensure that international labour standards were part of the country’s development plan. The good record that had been achieved since the adoption of the recommendations of the Commission of Inquiry was remarkable.

The Worker members declared that collective bargaining was essential to safeguard jobs during crisis. While the Government had committed itself to guaranteeing the right to collective bargaining by ratifying the Convention, it failed to comply with its obligations by resorting to violence and repression against those who were the most affected by the economic crisis. The Worker members trusted that the discussion clarified the need for the Government to hold, without delay, genuine consultations with the social partners in relation to the recommendations of the Commission of Inquiry with respect to the amendment of the Labour Act, the Public Service Act and the Public Order and Security Act. The Government was seeking to weaken the right to collective bargaining with the Special Economic Zones Bill, while there was no justifiable ground for denying the right to collective bargaining to workers in EPZs. The Government should be reminded that failure to implement a collective agreement, even on a temporary basis, infringed the right to collective bargaining and the principle of good faith, and therefore employers who refused to remit union dues in violation of existing collective agreements should be sanctioned. Moreover, the Government should ensure that dissuasive sanctions were imposed on employers engaging in anti-union discrimination and that all workers who had been targeted for discrimination had access to effective remedies. Recalling that the right to collective bargaining could not be exercised in a meaningful way without independent and representative workers’ organizations, the Worker members called upon the Government to refrain from interfering in public protests by arresting and intimidating trade union members and leaders. Past incidents should be fully investigated and those who were found to be responsible should be held accountable. The Worker members recalled that the last time the Committee had called for a Commission of Inquiry with the agreement of the three groups was in 2008 concerning Zimbabwe, including on the application of the Convention. The case being once again discussed this year, the Committee had to follow up on the recommendations already made and should call upon the Government to accept a high-level mission and to take all the necessary measures to allow the mission to note improvements before the next Conference.

The Employer members indicated that the discussion had shown that there remained challenges which affected workers and employers. However, those challenges should not detract from the fact that progress had been made towards compliance with the Convention. This progress had been recognized by all social partners in Zimbabwe as well as by the Committee of Experts. The Conference Committee should encourage member States to resolve their labour problems through social dialogue at the national level. The Government and the national social partners had established tripartite structures to review labour law reforms. Agreements had already been reached at the tripartite level including with regard to the amendment of the labour laws, which had resulted in the amendment of the Labour Act which provided, among other things, for criminal sanctions in the event of trade union violations. This progress should be commended. The Employer members believed that the tripartite structure of social dialogue would contribute to the finalization of the process for the harmonization of the national legislation with the Convention in the near future. The parties should work together to ensure compliance and enforcement of the laws that had already been enacted, especially those offering protection to workers. To build on the momentum of progress, the Employer members encouraged the Government to: (i) continue to work with the national social partners to finalize the outstanding legislative amendments to ensure full compliance with the Convention; (ii) explore all reasonable measures to track, monitor and report on incidents of anti-union discrimination; and (iii) avail itself of any technical assistance it may require from the ILO to achieve full compliance with the Convention, both in law and practice.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed on issues raised by the Committee of Experts.

The Committee welcomed the Government’s indication that steps were being taken to harmonize the labour and public service legislation with Articles 1 and 4 of Convention No. 98, including effected and proposed amendments to the Labour Act, the adoption of the 2013 Constitution and the Public Service Act.

The Committee noted with disappointment the Government’s failure to provide statistical information on cases of anti-union discrimination as requested by the Committee of Experts in its 2016 observation.

Taking into account the discussion of the case, the Committee urged the Government to:

• - hold meaningful consultations with social partners in order to fully and effectively implement the Commission of Inquiry recommendations with respect to the amendment of the Labour Act, the Public Service Act and the Public Order and Security Act;
• - ensure that dissuasive sanctions are imposed on those engaging in anti-union discrimination and that all workers who have been targeted for discrimination have access to effective remedies;
• - collate and submit to the Office all statistical information about cases of anti-union discrimination, as requested by the Committee of Experts;
• - provide detailed information on the current situation of collective bargaining in the export processing zones and on the concrete measures to promote it in those zones;
• - ensure that collective bargaining can be exercised in a climate of dialogue and mutual understanding;
• - enhance the capacity of the social partners to fulfil obligations under existing collective agreements; and
• - avail itself of ILO technical assistance to ensure full compliance with Convention No. 98.

The Government should accept a high-level ILO mission before the next International Labour Conference in order to assess progress towards compliance with these conclusions.

The Government representative thanked the Committee for its deliberations and for the conclusions and assured the Committee that the Government would continue to work with the social partners to implement the programmes outlined in the conclusions.

Individual Case (CAS) - Discussion: 2005, Publication: 93rd ILC session (2005)

The Government communicated the following written information:

1.1. The Government of Zimbabwe confirms that it commenced a review of its labour legislation and that the Bill has since been approved by Cabinet and published as H.B. 1/2005. It will be tabled for debate before Parliament, during the 1st Session of the 6th Parliament of Zimbabwe, which resumes in June 2005.

1.2. The Government confirms further that all legislative amendments it undertook to include at the 92nd Session of the Conference have been incorporated into the Bill. These in particular are:

(i) Repeal of section 22 of the Labour Act, Chapter 28.01, which permitted the fixing of maximum wages by the Minister or at all.

(ii) The repeal of sections 25(2)(b), 79(2)(b) and 81(1)(b) of the Labour Act, Chapter 28.01, which permitted the authorities not to register collective bargaining agreements which were deemed not to be equitable to consumers and the public generally.

1.3. The Government confirms that it is up to date with all correspondence relating to the reports by the International Confederation of Free Trade Unions.

2. The Government notes that the Committee of Experts also suggests that sections 25(2)(c), 79(2)(c) and 81(1)(c) of the Labour Act, Chapter 28.01, which permits the authorities not to register a collective bargaining agreement "which has become unreasonable or unfair having regard to the respective rights of the parties ...", be repealed for want of compliance with Convention No. 98.

It is noted that the Convention specifically recognizes two grounds by the authorities for declining to register collective bargaining agreements, viz.:

(i) a procedural flaw in the collective bargaining agreement; or

(ii) inconsistency with general labour legislation minimum standards.

Stricto senso there may be no room for declining to register on grounds of unfairness or reasonableness with respect to the rights of the parties.

The Convention being supreme and binding, Zimbabwe has no hesitation in amending its laws accordingly so as to be in keeping with the wording of the Convention.

3. The Government also notes that the Committee of Experts is not comfortable with section 25(1) of the Labour Act, which generally provides that an agreement reached by more than 50 per cent of the employees at a workplace is binding regardless of the position of the other unionized employees.

It is felt that this section does not recognize the provisions of Article 4 of the Convention which requires "measures ... to encourage and promote the full development and utilization of machinery for voluntary negotiations between employers or employers' organizations and workers' organizations ...".

Section 25(1) of the Labour Act ensures majority rule at the workplace. It is a cornerstone of democracy in all practice that the voice of the majority prevails. The proposal by the Committee of Experts implies that the concept of majority rule does not apply in collective bargaining. The Government is of the strong view that section 25(1) is consistent with universal democratic practice, which Convention No. 98 recognizes.

In the circumstances, Zimbabwe stands further guided by the Committee of Experts on the point in the light of this explanation.

4. Finally, the Government appreciates the Committee of Experts' observation that the issue of prison staff is a constitutional question as explained by the Government at the 92nd Session of the Conference.

5. The Government observes with deep concern that, notwithstanding substantial compliance with Convention No. 98, it continues to be listed with respect to the same Convention. It has appeared before this Committee consecutively since 2002 in circumstances which do not meet the selection criteria for listing Members before this Committee.

At all previous Zimbabwe appearances, discussions have degenerated into political discourse. Convention No. 98 is used as a smokescreen to demonize Zimbabwe because of the unpopularity of Zimbabwe's domestic policies in the circles of some former colonial powers.

6. Zimbabwe also does not lose sight of the Nicodemus circum-stances under which it was eventually listed through the agency of errant and dubious unionists at this 93rd Session and warns the ILO against the inevitable impairment of its credibility as a transparent and objective international organization.

In view of the foregoing and given the known selection criteria for listing Members, Zimbabwe urges Officers of the Committee to objectively consider its case.

In addition, before the Committee, a Government representative stated that his Government had prepared and made available its response to the observations of the Committee of Experts. He reiterated that Zimbabwe had fully undertaken the process of implementation of all commitments it had made at the previous session of the Conference Committee. It had tabled a Bill amending the Labour Relations Act with a view to repealing sections 22, 25(2)(b), 79(2)(b) and 81(1)(b). This Bill was due for debate in Parliament this June. All social partners had participated in drafting the Bill and the draft was made public. Furthermore, to implement the observations of the Committee of Experts, the Government had now agreed to repeal sections 25(2)(c), 79(2)(c) and 81(1)(c) of the Labour Relations Act, which subjected collective agreements to ministerial approval on the grounds that the agreement was deemed unreasonable or unfair with regard to the rights of the parties. As the Bill was still before Parliament, it was not too late to include these amendments.

With regard to section 25(1) of the Labour Relations Act, which provided for the binding nature of collective agreements approved by more than 50 per cent of employees at a workplace regardless of the views of a unionized minority, and with regard to the statement made by the Government last year before the Conference Committee to the effect that employment council codes took precedence over workers' council codes and hence gave precedence to unionized agreements, the Committee of Experts had correctly pointed out that codes of conduct did not regulate all issues covered by collective agreements. Although his Government questioned whether by disregarding the views of the majority at the workplace, shop-floor democracy was not discarded, it nevertheless would abide by the decision of the Committee of Experts.

With regard to the request of the Committee of Experts to reply to the ICFTU comments, the Government representative indicated that his Government did not deal directly with the ICFTU as the latter was not an ILO body. As for the specific alleged violations of the freedom of association brought by individuals or the ICFTU, the Government had provided its response. These matters were for the Committee on Freedom of Association to examine and not the Conference Committee.

On the issue of prison staff, the speaker explained that any guarantee of the exercise of the rights afforded by the Convention was premised upon the prison service being deemed not to be a military force under the Constitution. But until the Constitution was amended, this situation would remain unchanged. Social partners were very aware of this fact.

The Government representative expressed his bewilderment at the fact that Zimbabwe had to appear before the Conference Committee for the fourth time as the questions at issue were of a legislative nature and mostly related to the interpretation of several provisions, and no problems with the practical application of the Convention were raised. There were no discernible criteria to justify the discussions of Zimbabwe before the Conference Committee for over four years. In his Government's opinion, his country was called before the Conference Committee at the demand of some former colonial powers who were openly agitating for regime change in the country following a successful land reform programme. But there could be other appropriate forums to talk of other concerns, which were not covered by Convention No. 98. The Conference Committee should focus on the issues raised by the Committee of Experts. His Government once again called for a review of the working methods of the Conference Committee.

The Employer members thanked the Government for the information provided and assured the Government that the case had not been selected on the basis of any political consideration. This was rather a case involving tangible progress, which was one of the criteria for selection provided for under the Committee's methods of work. Zimbabwe had recently ratified the Convention and the Committee of Experts had already noted some legislative reforms with satisfaction. Nevertheless, some problems remained. Sections 25, 79 and 81 of the Labour Code needed to be amended and, according to the Government, such amendments were under way. While the Bill concerned was already finalized, there was still time to include amendments to common subsection (c) of these sections, as requested by the Committee of Experts. The requirement to submit collective bargaining agreements to the Ministry for approval was an interference with the ability of workers and employers to determine the conditions of employment independently from the Government. The Government did not provide information on section 22 which constituted a serious constraint on the subject matter and scope of collective bargaining and, therefore, needed to be removed. Regarding section 25(1), the Government should clarify whether a union was required to cover a certain percentage of the employees in order to be able to bargain collectively. In conclusion, the Government had already addressed a number of problems, but it was crucial that the remaining points would be properly addressed. The Government should supply a comprehensive report to the Committee of Experts on all the outstanding issues and should take advantage of technical assistance provided by the ILO in order to remove all legislative provisions that interfered with collective bargaining in accordance with the Convention.

The Worker members noted that the application of the Convention in Zimbabwe had been under discussion by the Conference Committee, the Committee on Freedom of Association and the Committee of Experts for several years. In 2003, the Conference had asked the Government to accept a direct contacts mission and to inform the Committee of Experts. In 2004, the Conference had revealed that the Government had not accepted this direct contacts mission, invoking the fact that such a move could not be undertaken for strictly legal reasons, while in its 2003 conclusions the Conference had referred to violations of the Convention in practice and in law. The Worker members considered that the attitude of the Government demonstrated clearly that it did not wish to give up interfering with collective negotiations, and that it sought to retain the possibility of signing direct agreements with workers, even where unions existed. The Government had declared that it had decided to repeal the ministerial approval as a prerequisite to collective agreements and the setting of minimum wages. In doing so, it nevertheless revealed that this reform had been decided by itself alone, without discussion between the social partners and that in addition it reserved the right to put the matter before Parliament. But, in a truly democratic state, aware of its credibility, a draft law had to be submitted to Parliament and run the risk of being opposed. The Government had not taken the opportunity offered to it to take up social dialogue again. At present, it was happy to repeat its promises of 2003 and 2004, without even mentioning a timetable for these reforms. The Government admitted that the Convention took priority over domestic law and announced that it would modify sections 25(2)(b), 79(2)(b) and 81(1)(b) of the Labour Relations Act, without any concrete measure actually backing up these declarations, and it had still not modified section 22 of the Labour Relations Act in order to ensure that a trade union could undertake collective bargaining, even if it represented less than 50 per cent of wage earners. For the Worker members such an obstacle clearly showed the Government's intention of continuing to exercise control over collective bargaining and, more generally, to deny the fundamental principles of freedom of association.

A Worker member of Zimbabwe stated that it was sad to note that the Zimbabwe Congress of Trade Unions (ZCTU) had come back with the same concerns that it had raised at last year's session of the Committee. The Government's continued anti-trade union attitude was evident in the fact that provisions of the Labour Relations Act requiring collective bargaining agreements to be submitted for ministerial approval and to be published as statutory instruments in order for them to be in force, as well as provisions fixing maximum wages were still in force. The Government had stated in 2004 that it would address these issues by reforming legislation in consultation with the social partners. In fact, the Government had published Labour Act Amendment Bill H.B. 1 of 2005 without consulting the social partners on its substance. The Bill did not address some of the abovementioned issues of concern to the ZCTU, nor did it address the use of the Public Order and Security Act (POSA) by police and security agencies to arrest trade unionists because of their trade union activities. Furthermore, public service employees were removed from the ambit of the Labour Relations Act and were placed under the scope of the Public Service Act, which did not allow public service employees to join trade unions or to collectively bargain. At the last session of the Committee, the ZCTU had also raised the issue of prison service employees, who did not enjoy the right to collective bargaining. The Government had indicated that it would rectify this through a constitutional amendment, yet the amendment pending before the current Parliament did not address this concern. Tripartism was not implemented seriously in the country. While the Government had asked the social partners for submissions on the amendment of the Labour Relations Act, the submissions of the workers had just been shelved. The tripartite system lacked a governing statute and relied on the will of the Government to be convened. The speaker concluded by pointing to further problems in the application of the Convention. He noted that a tripartite event to mark the World Health and Safety Day, attended by government officials, employers, ILO representatives and national social security authority officials, had been disrupted by the police, who had arrested only ZCTU members. Furthermore, the POSA had been used to attack the informal economy, which had been developed by trade unions as a poverty-reduction strategy. The POSA and the Access to Information and Protection of Privacy Act (No. 5 of 2002) were also used to attack trade unions. He urged the Government to commit itself to respecting the Convention.

Another Worker member of Zimbabwe stated that he was the Third Vice-President of the Zimbabwe Congress of Trade Unions (ZCTU). He could confirm that the Government had tabled the Labour Act Amendment Bill H.B. 1 which addressed the concerns raised during last year's session of this Committee. In this regard, he found the listing of Zimbabwe in the individual cases before this Committee counterproductive. He wished to state for the record that the case had not been put on the list by the ZCTU or any regional trade union association, but rather by persons with ulterior political motives. It was not appropriate for this Committee to address political developments in Zimbabwe, as this was better left for the persons directly involved. He stated that the ZCTU was pleased with the legislative progress that had been made in this case, and felt that these developments should be applauded. He was of the view that this forum was not the place to address internal disputes within the ZCTU or to resolve issues of persons who had fallen out of favour with the ZCTU.

The Employer member of Zimbabwe recalled that last year the employers had urged the Committee to give the Government time to address the issues that had been raised. He wished to report, from the employers' perspective, on the progress that had been made over the past 12 months. The speaker noted with satisfaction the positive tenor of the Committee of Experts' report and expressed surprise that the Conference Committee had included Zimbabwe again in the list of individual cases. He recalled the steps that had been taken previously to promote the concept of social dialogue by ensuring maximum participation by employers in the process of law reform and acknowledged the assistance Zimbabwe had received from the ILO through the ILO/SWISS Project, which continued to bring the social partners together in spite of the differences that existed. The employers' efforts undertaken on the bipartite and tripartite level had contributed to the publication by the Government, in January 2005, of the Labour Act Amendment Bill H.B. 1 of 2005, which sought to address most of the points raised by this Committee in 2004. The Bill proposed to repeal section 22 of the Labour Relations Act, which permitted the fixing of maximum wages by the minister, as well as sections 25(2)(b), 79(2)(b) and 81(l)(b), which permitted the authorities not to register collective agreements which were deemed not to be equitable to consumers and the public generally. These provisions of the Bill seemed to respond to the Committee of Experts' concerns with a view to ensuring compliance with the Convention. However, as regards section 25(1) of the Labour Relations Act, while having noted the Committee's concern that where a union had not managed to recruit 50 per cent of the workers at a workplace, representatives of non-unionized workers would be able to negotiate directly with the employer, even if a trade union existed at the enterprise, the speaker believed that this section promoted the concept of majority rule at the workplace. He therefore considered that workers were sufficiently protected. The speaker recalled that Zimbabwe had been appearing before this Committee on allegations of failure to comply with the Convention for the fourth consecutive year. Although it had been a learning experience, which had resulted in significant improvements to the labour legislation, each appearance had generated the kind of publicity that the country could well do without. He called on the Committee to give Zimbabwe and its social partners a chance to make progress on the case.

The Government member of Malawi stated that it had not been appropriate to put Zimbabwe on the list of individual cases. He had heard allegations that it originally had not been on the list, but had somehow been placed there at the last minute. He stated that this Committee's credibility rested on its objectivity and fairness. He noted from the Committee of Experts' report that Zimbabwe was cooperating with the ILO. This development needed to be encouraged instead of condemned. Social dialogue, especially as set out in Convention No. 144, could play an important role. He suggested that before a case went before this Committee, it should first be discussed in a tripartite setting at the national and regional levels. It was not clear whether this case had ever been discussed at these levels. He concluded by stating that it was important to promote the application of Convention No. 98. It was also important for this Committee to act openly and objectively.

The Government member of China stated that he had listened carefully to the response by the Government and to the discussion. It was clear from the Committee of Experts' report that Zimbabwe was amending the laws which had been the subject of concern. The Government representative had mentioned further actions which would be taken in this regard. The Government appeared to be making progress and needed more time. His delegation supported the efforts of the Zimbabwe Government and he urged the ILO to provide relevant technical cooperation.

The Government member of Canada expressed his concern regarding the fact that the Government had failed to follow up its stated intentions to adopt legislation in response to the questions raised by the Committee of Experts. Even though the legal framework had evolved, it was regrettable that the exercise of the right to collective bargaining, which included the right of workers to freely choose their representatives and the right of those representatives to perform their duties without interference, had become increasingly difficult. Moreover, those rights could not be fully exercised without respect for human rights, and there was reason to be deeply concerned by the recent upsurge in human rights violations in Zimbabwe. The speaker encouraged the Government of Zimbabwe to take the necessary steps to guarantee the right to collective bargaining of workers' organizations.

The Government member of Kenya stated that his Government had carefully studied the Committee of Experts' report and the response by the Government regarding conformity with the Convention. He noted that, during the last four years, Zimbabwe had been appearing before this Committee to provide information on the progress made with regard to issues raised by the ZCTU. In its reply, the Government had indicated efforts undertaken to redress the situation by carrying out legislative reform: a Bill had been brought before the Cabinet committee and would be promulgated in June 2005. The speaker wished to commend the Government for this legislative reform, which proved its willingness to cooperate with the ILO in addressing the concerns raised, and expressed the view that the Committee of Experts should allow the Government to complete this reform, in order to guarantee full compliance with the Convention. He also suggested that, taking into account the country's circumstances, the ILO should consider and offer technical assistance to Zimbabwe, in order to enable it to complete the review process and to bring legislation into line with the principles of the Convention.

The Government member of Cuba stated that, after having studied the most recent report of the Committee of Experts, he had been able to note that, in the case of Zimbabwe, there had been recognition of progress made in the reform of labour legislation. The speaker therefore wondered why Zimbabwe had been included in the list. He felt that it was not technically relevant to discuss such a case in the present Committee. The report of the Committee of Experts was not unfavourable towards Zimbabwe and had taken note of the progress made in a process in which perfection could not be aspired to over night. The issue in question and the request for the improvement of certain aspects of the country's labour legislation and its practical application could have been addressed in the next reporting cycle. The speaker indicated that the logical conclusion to all the above was that the inclusion of Zimbabwe in the list of countries appearing before the present Committee could be attributed to the same political reasons that had been repeatedly referred to as a negative element affecting the credibility of the Committee. He wished to express his firm belief that singling out Zimbabwe in the present Committee would not help the country to improve social dialogue. Finally, he expressed his hope that the conclusions would contain an offer of ILO technical assistance, which would contribute and be an effective support to the improvement of the reform process currently under way in Zimbabwe with the support of its Government.

The Government member of Nigeria stated that there was an evident need to talk about transparency in the establishment of the list of individual cases before this Committee. She recalled that her Government had stated last year before this Committee that it believed that the aim of the individual cases was not punitive, but rather to ensure that the social partners coexisted in a harmonious industrial relations environment and that ratified ILO standards were enshrined in national legislation. All the parties concerned should be encouraged to engage in social dialogue to resolve the issues at hand, and this Committee must be seen to be supporting this. The speaker pointed out that, during the last year, the Government of Zimbabwe had made remarkable progress in regard to the Committee of Experts' concerns and had responded positively by elaborating the Labour Act Amendment Bill H.B. 1 of 2005. The Government had indicated its willingness to amend the law with a view to bringing it into conformity with the Convention, and therefore should be collectively encouraged to do more, especially through ILO technical assistance, and to continue along this progressive path.

The Government member of Luxembourg, speaking on behalf of Governments of the Member States of the European Union, as well as of Bosnia and Herzegovina, Bulgaria, Croatia, The former Yugoslav Republic of Macedonia, Norway, Romania, Serbia and Montenegro, Switzerland, Turkey, Ukraine and the United States stated that the European Union was alarmed at the situation in Zimbabwe, given the news on constant politically motivated violence, restrictions on the freedom of opinion, expression, association and assembly. Independent trade unions were an important element of civil society, and in this context the European Union expressed its concern at the inability of independent organizations in Zimbabwe to operate without fear of harassment or intimidation. The speaker recalled that this case had been the subject of comments by the Committee of Experts for many years, and in recent years it had also been before this Committee. The European Union shared the regret of the Committee of Experts that the Government had not made sufficient efforts to amend the Labour Relations Act in order to meet the requirements of the Convention. However, it noted that the Government would table new legislation, which might aim at resolving some of the issues previously raised. The speaker urged the Government to bring the legislation into conformity with the Convention and to create an environment in which the right to collective bargaining could be assured.

The Government member of South Africa noted that the first paragraph of the Committee of Experts' observation on this case indicated that the Government of Zimbabwe was engaged in a process to respond to the issues that had been raised in this Committee the previous year. From what he had noted in the case, he was happy with the progress made. This raised the question of why Zimbabwe had nonetheless been selected for the list of individual cases, which appeared to be almost exclusively composed of developing countries. Where clear criteria did not exist, it was inevitable that those affected would question the method of selecting cases. The case was a clear example of the lack of transparency in the working methods of the Committee. He further noted that without social dialogue, the problems in this case would not be easy to solve. He called on the Committee to assist Zimbabwe's efforts in this case and to take every opportunity to promote relevant social dialogue.

During the speaker's intervention, the Chairperson recalled that statements should focus on the case at hand, and not on the working methods of the Committee, which had been the subject of a previous debate.

The Government member of Namibia expressed his surprise at the inclusion of Zimbabwe on the list of individual cases, as his Government had done the previous year, and stated that this fact raised serious questions about the working methods of the Committee. It was clear from the Committee of Experts' report that the Government of Zimbabwe was in the process of adopting legislative amendments in order to ensure conformity with the Convention. The speaker considered that the Government had been making progress and wished to congratulate it for its sustained efforts, positive actions and concrete steps to address the Committee of Experts' concerns. He stated that the Government must be given appropriate time to conclude the adoption of amendments.

The Government representative thanked the governments that had taken the floor in his country's support. With regard to the issues raised by the Worker members, he indicated that he had responded to them in his written reply to the Committee. The Worker members had also questioned the political will of the Government to resolve this case. He took great exception to this statement, and recalled that Zimbabwe had joined the ILO and had ratified ILO Conventions voluntarily. There could be no question about the political will of his Government to engage with the ILO. With regard to the question of the participation of the social partners in the drafting of the Labour Act Amendment Bill, he pointed out that the employers in Zimbabwe had participated in consultations, but the trade unions had refused, based on the advice of their foreign handlers who did not want to support the ZANU-PF Government. He recalled that this Bill, which addressed the problems raised by the Committee, was already on the Parliament's agenda and would most likely be debated in a few days. The speaker appealed to Zimbabwean workers to address any problems they had directly to the Government, and not seek international forums to do so. With regard to the intervention of the Government member of Canada, he questioned his capacity to provide solutions in this matter, given his distance from the country.

With regard to comments on Zimbabwe's informal economy, he stated that trade union claims of having established a flourishing informal economy were not true. The Government had allowed the informal economy to develop in the 1990s following an economic adjustment programme. While it had brought some economic relief, the informal economy had also allowed illegal activities to flourish, and its massive size was now causing serious infrastructure and public health problems. For these reasons, the recent police actions were necessary. Now the Government was building a new infrastructure to support the informal economy and people were returning to their activities. The support for the Government was clear from every election.

The Employer members expressed their appreciation for the information provided by the Government representative, which mentioned draft legislation that would soon be debated by Parliament. The Government should supply copies of these texts to the ILO. Turning to the question of the transparency in the process of selecting individual cases for this Committee, which had been raised by numerous delegations, the Employer members noted that the selection of a particular case was often due to a lack of certainty by members as to what was really happening in the country concerned. The Committee had always been ruled by a double credo: to trust, but also to verify. When the Committee selected an individual case for examination, it was often done to seek and verify information about what was happening on the ground. The best way to respond to a case was to provide complete and accurate information on the situation in question; if this was done, the case might disappear from the list. In this respect, they urged the Government to consider accepting a direct contacts mission to verify that the legislative measures under way in Zimbabwe indeed furthered the application of the Convention.

The Worker members regretted having to make the following statement prior to the drawing of conclusions on the case. They distanced themselves from the comments made by a Worker member of Zimbabwe, the Third Vice-President of the Zimbabwe Congress of Trade Unions (ZCTU), which was a purely honorific title. The ZCTU was represented at that meeting by its General Secretary, and its Chairperson. The latter was present as a member of the ICFTU, since the Government had refused to appoint him as a worker representative, which undermined the principles defended by the ILO. In that regard, the status of the above mentioned Worker member was the subject of a complaint pending before the Credentials Committee. The Committee should also know that Government representatives of Zimbabwe had, on this very day, both inside and outside the meeting room, exerted unacceptable pressure on the workers of Zimbabwe. Finally, the Worker members wished to highlight that they were aware that violations to the Convention existed in every country, as demonstrated by the examination of Australia's application of the Convention this year.

With regard to the case under examination, the Worker members emphasized the continuous lack of will shown by the Government, which would not take constructive steps to align its legislation with the Convention. In its 2003 conclusions, the present Committee had been accommodating and had proposed a direct contacts mission with a view to following in situ the planned legislative revision process. The Government had rejected that mission, which it considered as interference. The Worker members wondered what the new legislative changes were worth in a climate of permanent intimidation, and thus proposed a new direct contacts mission with a view to ensuring that the envisaged changes would comply with the Convention, both in law and practice.

The Worker members wished to point out that, for the sake of the serenity of the discussion, they had limited the number of their statements. That had not been case as far as the Government representatives were concerned. The discussion had therefore been imbalanced and that was regrettable.

The Government representative indicated that this was not the first occasion on which the present case had been discussed by the Committee and the Government wished to reaffirm its position, as stated previously, that it was not prepared to accept a direct contacts mission now.

The Worker members emphasized that the statement by the Government representative was regrettable as they had made every possible effort to approach the case in a positive manner and to demonstrate that a direct contacts mission was necessary. However, in view of the Government's attitude and its refusal to cooperate, the Worker members requested the inclusion of a special paragraph in the report of the Committee.

The Employer members noted that the Government representative had indicated that his country was not prepared to receive a direct contacts mission for now. As they believed that this was an indication that the Government representative did not have the authority to accept such a mission at this moment, and since the most important consideration was the ability to verify the situation at the national level and the action that was being taken, they proposed that consideration could also be given to the sending of a high-level ILO technical assistance mission to the country as an alternative. That would give the Government the opportunity before the Committee next met to accept one of these two alternatives as a means of demonstrating its good faith and willingness to participate in the verification process. The Employer members could not therefore at this stage support the proposal made by the Worker members for the Committee's conclusions on this case to be placed in a special paragraph of its report. However, they urged the Government to give serious consideration to agreeing to some type of meaningful verification arrangement involving the ILO.

The Committee took note of the written statement made by the Government and the oral information provided by the Government representative, the Minister of Public Service, Labour and Social Welfare, and of the debate that followed. The Committee noted with concern that the problems raised by the Committee of Experts referred to: the legal requirement that collective agreements be submitted for ministerial approval in order to guarantee that said provisions were equitable to consumers, to the general public or to any party to the collective agreement; the Minister's power to f ix a maximum wage and the maximum amount that may be payable by way of benefits, allowances, bonuses or increments by statutory instrument prevailing over any collective agreement; the legal provisions under which, if workers' committees (including non-unionized workers) concluded a collective agreement with the employer, that agreement must be approved by the trade union and more than 50 per cent of the workers; and the constitutional provisions depriving prison staff of the rights guaranteed by the Convention. The Committee also noted that the International Confederation of Free Trade Unions (ICFTU) had submitted comments to the Committee of Experts and that two cases concerning Zimbabwe were currently pending before the Committee on Freedom of Association.

The Committee noted that the Government had informed the Committee of Experts that the provisions concerning the ministerial approval of collective agreements would be amended, although not in all cases provided for in the legislation, and that measures were being taken to repeal the provision giving the Minister the power to fix a maximum wage and the maximum amount that may be payable by way of certain benefits. The Committee noted the statement by the Government representative that, in keeping with this undertaking, the Bill to amend sections 22, 25(2)(b), 79(2)(b) and 81(1)(b) was due to be debated in Parliament this month. Consideration would also be given to amending other provisions mentioned by the Committee of Experts.

The Committee recalled the importance that it attached to the principle that the rights guaranteed by the Convention be applied in national law and practice and emphasized the importance of full social dialogue, as well as extensive consultation with employers' and workers' organizations on all legislation affecting them. Effective guarantees for this principle implied full respect for the independence of employers' and workers' organizations.

The Committee urged the Government to take all necessary measures to bring the law and practice into full conformity with the Convention, and expressed its hope that, in the very near future, it would be in a position to note concrete progress in connection with all the pending issues. The Committee requested the Government to submit a clear and comprehensive report to the Committee of Experts, with information on all the problems mentioned, a copy of the draft or the legislation adopted, and a full reply to the comments made by the ICFTU on the application of the Convention.

Taking into account the statement made by the Government representative to the effect that there was a certain degree of misunderstanding in the Committee with respect to the situation in the country, the Committee, in a fully constructive spirit, felt that a direct contacts mission could provide greater clarity on the situation, in particular on the ongoing legislative process.

The Government representative indicated that this was not the first occasion on which the present case had been discussed by the Committee and the Government wished to reaffirm its position, as stated previously, that it was not prepared to accept a direct contacts mission now.

The Worker members emphasized that the statement by the Government representative was regrettable as they had made every possible effort to approach the case in a positive manner and to demonstrate that a direct contacts mission was necessary. However, in view of the Government's attitude and its refusal to cooperate, the Worker members requested the inclusion of a special paragraph in the report of the Committee.

The Employer members noted that the Government representative had indicated that his country was not prepared to receive a direct contacts mission for now. As they believed that this was an indication that the Government representative did not have the authority to accept such a mission at this moment, and since the most important consideration was the ability to verify the situation at the national level and the action that was being taken, they proposed that consideration could also be given to the sending of a high-level ILO technical assistance mission to the country as an alternative. That would give the Government the opportunity before the Committee next met to accept one of these two alternatives as a means of demonstrating its good faith and willingness to participate in the verification process. The Employer members could not therefore at this stage support the proposal made by the Worker members for the Committee's conclusions on this case to be placed in a special paragraph of its report. However, they urged the Government to give serious consideration to agreeing to some type of meaningful verification arrangement involving the ILO.

Individual Case (CAS) - Discussion: 2004, Publication: 92nd ILC session (2004)

The Government communicated the following written information.

1. Non-reply to the request concerning an ILO direct contacts mission.When Zimbabwe appeared before the Conference Committee on the Application of Standards in June 2003 it unequivocally declined an ILO direct contacts mission. Zimbabwe's position is clearly captured in a summary of the Minister of Labour's speech during the hearing which read:

The Government representative emphasized that cooperation at the political level with a view to addressing the problems faced by his country was under way with the participation of such eminent persons as the Presidents of Nigeria, South Africa and Malawi. He therefore expressed the view that those who were trying to participate in the political process in his country were failing to respect the fact that African countries were capable of resolving their problems on their own. Moreover, the ILO technical cooperation project funded by Switzerland constituted a sufficient basis for making progress, whereas a direct contacts mission would be more political in nature and its aims were already covered by the presidential cooperation to which he had already referred.

It was therefore clear that Zimbabwe was not accepting a direct contacts mission and at no time did Zimbabwe undertake to furnish any reply after the Conference. Instead Zimbabwe at the plenary session was joined by a host of countries, including the Non-Aligned Movement in questioning the working methods of the Conference Committee on the Application of Standards. Zimbabwe did not accept the direct contacts mission because the issues for which Zimbabwe appeared, being of a legal nature, were supposed to be considered by the Committee of Experts not the Conference Committee. This position was also supported by the majority of countries which made contributions during the hearing. As such there was no basis for accepting a direct contacts mission at that stage. Nor did Zimbabwe undertake to consider the possibility of accepting a direct contacts mission.

2. Recent legislative reform. Zimbabwe is most indebted to the Committee of Experts for recognizing the enactment of Statutory Instrument 131/2003 which prohibits acts of interference between employers' and workers' organizations and also for observing that section 93(5) of the Labour Act has done away with compulsory arbitration unless with the consent of the litigants. Further the Zimbabwe Government takes note of the Committee's acknowledgement of the full import of section 2A(3) which makes the Labour Act the supreme law in Zimbabwe with regard to labour issues.

3. Collective bargaining agreements in the public service. Zimbabwe is further indebted to the Committee of Experts for its recognition that there is indeed collective bargaining in the civil service.

4. Perceived serious infringements of Convention No. 98. The concerns of the Committee of Experts on outstanding issues are to be addressed during the review process which has since been initiated by the Government. Social parties have been consulted and some have since submitted their comments. In the meantime, the Government has examined the outstanding aspects with a view to revisiting the provisions in question.

4.1. Sections 25(2), 79(2) and 81(1) of the Labour Act. The concern of the Committee is that these sections make provision for the subjection of collective bargaining agreements to ministerial approval on three grounds, namely if the agreement has become: (a) inconsistent with this Act or any other enactment; or (b) inequitable to consumers or to members of the public generally or to any party to the collective bargaining agreement; or (c) unreasonable or unfair, having regard to the respective rights of the parties. It is the Committee's position that "the power of the authorities to approve the collective bargaining agreements is compatible with the Convention, provided that the approval may be refused only if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation ...".

Zimbabwe observes that paragraphs (a) and (c) of the cited sections are consistent with this position. Upon careful reflection paragraph (b) may be violating the grounds of approval as recognized by the Convention. Accordingly Zimbabwe is agreeable to repealing paragraphs 25(2)(b), 79(2)(b) and 81(1)(b) of the Labour Act, Chapter 28.01. Steps have already been taken to effect the necessary amendments, among others.

4.2. Section 25(1) of the Labour Act. The Committee is of the view that Article 4 of Convention No. 98 is not being given effect to in section 25(1) of the Labour Act as "negotiations through direct settlement or agreements signed between an employer and the representative of a group of non-unionized workers, when a union exists in the undertaking, do not promote collective bargaining as envisaged in Article 4 of the Convention".

Indeed, in June 2003 Zimbabwe made reference to amendments to section 23 which the Committee acknowledges goes some way towards addressing the concern. However, it could be pointed out that Amendment No. 17/2002 went further in recognizing and promoting collective bargaining agreements entered into by and between organized labour and business.

Contrary to the old Labour Relations Act, section 101 of the new Labour Act prescribes that employment council codes take precedence over works council codes. In other words, agreements negotiated by organizations of workers and employers are more supreme and binding than agreements made at shop-floor level, whether by workers' committees and the employer or by individual employees and the employer. Under the old law, section 101(1)(i) and (ii), works council codes prevailed over employment council codes.

Article 4 of Convention No. 98 exhorts members to take measures where necessary, "to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers' organizations and workers' organizations ...". Zimbabwe is of the view that section 101 of its Labour Act engenders that recognition, hence Article 4 of the Convention is given effect to.

4.3. Sections 17(2) and 22 of the Labour Act

4.3.1. On further reflection it may not be desirable for the Minister to fix maximum wages and accordingly steps are being taken to repeal section 22 in toto.

4.3.2. With respect to section 17(2) of the Labour Act it may be highlighted that, in coming up with the regulations, the Minister is enjoined to consult an advisory council which is constituted of social partners. As such it may not be appropriate to say that these measures will have been taken "unilaterally". Zimbabwe is of the view that section 17(2) is quite consistent with Convention No. 98 as much as it recognizes the Convention on tripartite consultations viz. the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).

5. Prison staff. The Committee of Experts is concerned that prison staff in Zimbabwe do not enjoy the benefits afforded by Convention No. 98. The Committee accordingly requests the Government to amend its legislation so as to ensure that prison workers enjoy the right to organize and to collectively bargain. In the context of Zimbabwe, prison staff, just like the army and the police, is part of the disciplined force. This is provided for in the Constitution of Zimbabwe. The Labour Act in Zimbabwe does not cover the disciplined forces. To the extent that the Constitution defines prison staff as a disciplined force it is improper and irregular to seek to amend the Constitution by an Act of Parliament. It needs constitutional amendment. The process is beyond the Ministry of Labour and the social partners alone. It will have to involve Government at large and indeed the legislature.

In addition, before the Committee, a Government representative stated that the object of the discussion of this case should focus on matters raised by the Committee of Experts and not about the political situation in Zimbabwe, which was not the mandate of this Committee or the ILO. He also stated that issues regarding freedom of association were the mandate of the Committee on Freedom of Association and not the Conference Committee.

Turning to the points raised by the Committee of Experts, he reported that his delegation had submitted a detailed response in writing. He appreciated that the Committee of Experts had noted with satisfaction that the Government had promulgated subsidiary legislation to provide adequate protection against interference in workers' and employers' organizations and new provisions regarding compulsory arbitration, and that it had expanded the scope of workers covered by the Labour Relations Act. He recalled that direct contacts missions had been declined both in 2002 and 2003 on the grounds that the comments of the Committee of Experts related to legislation which was under discussion by the Parliament, and that the mission could not deal with matters not raised by the Committee of Experts, including political issues raised by the Worker members that were not of any concern to the ILO. Turning to other points raised by the Committee of Experts, he reported that concerns regarding the requirement for collective agreements to be submitted for ministerial approval were being addressed through the amendment of sections 25(2), 79 and 81 of the Labour Relations Act. Similarly, section 25(1), regarding agreements between employers and non-unionized workers, was adequately addressed by section 101 of the Labour Act, as explained in the written information which had been provided by the Government. Section 22, regarding the fixing of maximum wages, would also be repealed. With respect to section 17(2) of the Labour Act, the Minister was obliged to consult a Tripartite Advisory Council established in terms of section 19 of the Act. With regard to the Committee of Experts' view that prison staff should be allowed to form trade unions and participate in collective bargaining, he recalled that the Constitution considered prison staff as a disciplined force which was not covered by the Labour Relations Act. Prison staff carried firearms and had the responsibility of guarding dangerous prisoners. Strikes by prison staff would therefore pose a serious security threat. Furthermore, a constitutional amendment would be required to change their status, which went beyond the powers of the Ministry and the social partners. He concluded by pointing out that a process of further reviewing the Labour Relations Act was under way. In March 2004, workers' and employers' organizations were requested to submit to the Ministry of Public Service, Labour and Social Welfare their views on issues which they felt needed to be reviewed. This process would take due account of the concerns of the Committee of Experts.

The Worker members thanked the Government for the information it provided in writing. They pointed out that, in the previous year, the case of Zimbabwe was included in a special paragraph due to the Government's refusal of a direct contacts mission, which it viewed as being contradictory to the ILO's objective. In the current year, the Committee of Experts noted with satisfaction that some progress had been made. It was hoped that the legislative and regulatory reforms would take place and bring improvements in practice. While noting the Government's information on the process of legislative changes, the Worker members regretted that the list of serious violations of the Convention remained lengthy and hoped that the Government would double its efforts to rectify the situation. The violations referred to were the following: the obligation to submit collective bargaining agreements to ministerial approval; non-respect of the promotion of collective bargaining negotiations; the unilateral decision to establish maximum wages and to decide on working decisions; and non-respect of the rights of those employed in the prison service, provided for by the Convention. In the preceding year, the Government refused a direct contacts mission on the grounds that the issues under consideration were of a legal nature and, as such, were to be examined by the Commission of Experts and not by the Conference Committee. This implied that the Conference Committee was a political body and the Worker members rejected such a contention. Under article 7 of the Standing Orders of the Conference, the Committee on the Application of Standards was mandated to analyse all the measures taken by governments to implement the Conventions to which they were parties. The analysis of the Committee on the Application of Standards was made on the basis of impartial, technical and legal reports prepared by the Committee of Experts. The Government was reminded of the necessity of respecting the Committee of Experts' tasks and the key role that Committee played in the efficient functioning of the supervisory mechanism. In this regard, the Worker members expressed their concern at the Government's view vis-à-vis the tasks of the Conference Committee.

The Employer members noted that the Conference Committee had examined the case in 2002 and 2003, and the recent legislative reforms which the Committee of Experts had noted with satisfaction. They also noted that workers employed in the public service, such as teachers, nurses and other civil servants not directly engaged in the state administration could negotiate collective agreements and that the number of collective agreements had increased in that sector. Turning to the requirement for collective agreements to be submitted for ministerial approval in order to ensure that their provisions were not inconsistent with national laws or inequitable to consumers, the Employer members believed that such government conduct would lead to a permanent control over collective bargaining activities. These measures were excessive. There existed other measures to prevent inequitable collective agreements, such as adopting regulations voiding collective agreements which violated certain laws. On the basis of such regulations, courts could check the content of collective agreements and determine if they were in conformity with the law. With regard to the requirement under the Labour Relations Act for collective agreements to be approved by the trade union and by more than 50 per cent of the employees, the Committee of Experts had noted certain progress, but had called for further measures. The Employer members wondered whether the promotion of collective bargaining, as set out in Article 4 of the Convention, could be determined by a figure established by law indicating the required percentage rate of approval of a collective agreement. Turning to the provisions of the Labour Relations Act which empowered the Minister to fix a maximum wage and other conditions of employment by statutory instrument prevailing over any agreement or arrangement, they associated themselves with the Committee of Experts which had stated that this was a clear violation of the Convention. With regard to the exclusion of prison staff from the scope of the Public Service Act, they emphasized that the possibility to conduct collective bargaining was not the same as conducting a strike.

In conclusion, the Employer members stressed that more changes in legislation were required. They believed that the Government attempted to control the whole economy through certain measures which had been criticized by the Committee of Experts, and that the Government was not very much in favour of tripartite dialogue. They warned that such a conduct would have detrimental consequences for a market-oriented economy. Therefore, the Government was requested to change its present attitude and behaviour.

The Worker member of Zimbabwe recalled the report submitted by the Zimbabwe Congress of Trade Unions (ZCTU) to the 2003 International Labour Conference. As the report indicated, the Labour Relations Act empowered the Minister to register a duly concluded collective agreement. This was still the case. He also noted that collective agreements were required to be published as statutory instruments, which the Government had lately asked the negotiating parties to finance. As printing costs were high, some of these agreements were not published, and some employers therefore simply refused to implement them. The situation called for urgent repeal of sections 79 and 81 of the Labour Relations Act. He also called on the Government to ensure that public servants not engaged in state administration, such as prison services staff, enjoyed the right to collective bargaining. The speaker also reported that the ZCTU continued to suffer abuse, either by the Government directly or by third parties over which the Government had control. For example, the entire ZCTU leadership was arrested in September and November of 2003 while peacefully demonstrating against high taxation and the cost of living. These abuses were possible through the Public Order and Security Act. Finally, he also noted efforts under an ILO/Swiss project to facilitate the Tripartite Negotiation Forum (TNF). While some progress had been made in this regard, the TNF required an agreement on procedures, rules, guidelines and other issues to regulate the conduct of its meetings and allow it to move forward.

The Employer member of Zimbabwe noted with satisfaction the positive tenor of the observation of the Committee of Experts and expressed his surprise that this case had once again been included on the list of individual cases. He recalled that Zimbabwean employers had taken internal steps to ensure maximum participation in the process of law reform and compliance with international labour standards. This had been done through a special budget for outreach to stakeholders. He also reported that tripartite consultations on the revision of labour law, facilitated by an ILO/Swiss project, were making progress. He stated that the social partners were actively addressing possible reforms to the Labour Relations Act (Chapter 28:01) and that a number of issues raised by the Committee of Experts would therefore be laid to rest. Turning to the issue of the ministerial approval of collective agreements, he stated that he shared the concerns of the Committee of Experts and was pleased that the Government had indicated it would be agreeable to repealing the relevant provisions of the Labour Relations Act. Collective agreements should be left to the two parties concerned as provided for under the national employment framework. With regard to the possibility of non-unionized workers being able to negotiate directly with an employer, thereby bypassing trade unions, he noted that the Labour Relations Amendment Act (No. 17 of 2002) had sufficiently addressed the problem. Concerning ministerial powers to make regulations, he noted that section 17(2) of the Labour Relations Act required the Minister to consult a tripartite advisory council. These councils had not yet been constituted, but he was confident that the Government would do so soon. Turning to the question of ministerial powers to set maximum wages, the speaker stressed that the market should determine wages and salaries and that the Government should repeal the relevant provisions, as it appeared it had agreed to do. Finally, he noted that, in order to address the question of freedom of association among prison staff, a constitutional amendment would be needed. He concluded by encouraging the social partners to improve the relevant labour legislation and to once again take up social dialogue so as to comply with the Convention.

The Government member of Cuba stated that, after having analysed the contents of the Committee of Experts' report, a question arose why Zimbabwe had been included again on the list of cases this year, since it was clearly recognized that, in virtue of the new legislation, the questions that used to be the subject of concern in this country had been resolved. As regards other questions of concern that appeared, the Government of Zimbabwe was not only very much responsive to them, having adopted measures and undertaken actions with a view to seeking rapid solutions, but had also very clearly defined its position and made concrete steps in order to advance in finding solutions to the problems susceptible to being resolved. The country's achievements recognized in the report were clear proof of the political will of the Government, which reiterated its commitment, having invited the interested parties, including the ZCTU, to continue its work on the revision of the legislation, with a view to improving the provisions which were the subject of concern. The speaker pointed out that, on earlier occasions, many delegations, including also countries of the Non-Aligned Movement, had reiterated the need to avoid the involvement of the ILO supervisory mechanisms in political issues. In his view, the inclusion of Zimbabwe on the list of cases had a clear political motivation, which was why his Government opposed the use of the ILO supervisory mechanisms for questioning or debating an internal political situation in a given country, since it went beyond this Committee's mandate.

The Worker member of South Africa welcomed the positive aspects of the comments made by the Committee of Experts, as well as the information provided by the Government in writing. The recent reform of the labour legislation in 2002 and Statutory Instrument 131/2003 had addressed some of the problems which had been raised by the Committee of Experts. However, the ZCTU had requested certain other changes to bring the labour legislation into line with the Convention. The problematic areas included the subjection of collective bargaining agreements to ministerial approval, which made collective bargaining toothless, and the placing of the threshold for trade union membership at too high a level, which was a barrier to collective bargaining. He therefore appealed to the Government to reactivate the Tripartite Negotiation Forum (TNF) and to engage in consultations with the social partners without the interference of the state machinery. He further called for social dialogue at the enterprise, sectoral and national levels to be more visible so that it could achieve positive results. The ILO technical cooperation project funded by Switzerland and other forms of ILO assistance should be made use of to achieve results in this field. Turning to the issue of the prohibition of collective bargaining by prison staff, in accordance with the terms of the Constitution, he said that it was necessary to consider amending the Constitution so that prison staff could benefit from the rights set out in the Convention. He called upon the Government to accept the advice of the Committee of Experts with a view to improving the situation of workers' and employers' organizations and society in general.

The Government member of Mozambique emphasized that the Government of Zimbabwe had with tenacity and humility committed itself to respecting ILO standards. It was, therefore, essential that the Committee noted the huge progress made by the Government since 2003. Under the circumstances, his Government was convinced that the efforts undertaken by the Government of Zimbabwe led to the conclusion that the latter had fully addressed all the concerns raised and, hence, there was no further reason for the Committee to include Zimbabwe in the list of individual cases.

The Government member of Namibia took note of the information supplied by the Government representative and recognized the steps taken to amend national legislation and the subsequent adoption of the Labour Relations Amendment Act. She also noted the Government's willingness to amend certain provisions of their Labour Act to give effect to the Convention. Finally, she stressed that there was a need to review the working methods of this Committee, in particular, the method of establishing the list of individual cases and drafting, and adopting its conclusions.

The Worker member of Swaziland recalled, in the first place, that although ratification was voluntary, any member State which ratified a Convention automatically opened itself to scrutiny whenever a violation was reported to the ILO. Moreover, the effect of a Convention could only be enjoyed when it was applied in practice. Unfortunately, in the present situation, the workers of Zimbabwe were not enjoying the benefits of measures that looked good on paper because, in practice, the Government blatantly disregarded its own statutes. The fact that the Minister could set a maximum ceiling for issues under negotiation meant that collective bargaining could not in any way be free in the country. Moreover, the freedom of collective bargaining was further undermined by requiring the parties to submit their agreements to the Ministry for approval. For as long as workers, such as prison staff, were prohibited to exercise the right of collective bargaining, the Government would continue to be in violation of the Convention. He recalled that the rights conferred upon workers' and employers' organizations had to be based on the civil liberties set forth in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The absence of these civil liberties in Zimbabwe removed all meaning from the concept of trade union rights in the country. The Government continued to violate the Convention in both law and practice by requiring prior authorization for workers to meet and to proceed to a peaceful demonstration and by undermining worker rights through the use of other legislation, including the Public Order and Security Act and the Miscellaneous Offences Act, to subvert the rights set out in the labour legislation. It also continued to arrest and detain trade unionists and trade union leaders, including Mr. Matombo, the President of the ZCTU, who had been subjected to victimization of the highest order. It was vital that the Committee took full account of the issue of the acts of violence and the atrocities to which workers and trade unionists were subjected in the country. The Committee should urge the Government to stop using other draconian legislation, such as the Public Order and Security Act and the Miscellaneous Offences Act, to undermine the rights set out in labour law and guaranteed by the Convention, and to stop detaining, arresting and fining trade union leaders and workers.

The Government member of Ireland, also speaking on behalf of the Government members of the Member States of the European Union, the candidate countries Bulgaria, Romania and Turkey, the countries of the stabilization and association process (SAP), Albania, Bosnia and Herzegovina, Croatia, The Former Yugoslav Republic of Macedonia, Serbia and Montenegro and Switzerland, thanked the Government representative for the information provided. He recalled that the European Union had, in other forums, expressed deep concern at the continuing violations of human rights in Zimbabwe. The situation with regard to politically motivated violence and restrictions on freedom of opinion, expression, association and assembly all gave cause for concern. The European Union had also expressed concern at the inability of independent civil society in Zimbabwe to operate without fear of harassment or intimidation. He emphasized in this regard that independent trade unions were an important element of civil society. He further recalled that the present case had been the subject of comments by the Committee of Experts for many years and had been before the Conference Committee in recent years. He noted that the Government had introduced new legislation and that the Committee of Experts had considered that the legislation resolved some of the issues that it had raised previously, but it was disappointing to note that the Government had not further amended its Labour Relations Act to resolve a number of issues relating to serious and continuing infringements of the Convention. The European Union supported the Committee of Experts' view that the Government should amend the relevant sections of the legislation so as to ensure conformity with the Convention. In conclusion, he said that the European Union would comment on the working methods of the Conference Committee and the procedures for the selection of individual cases when the Committee's report was adopted by the Conference in plenary.

The Government member of Nigeria expressed encouragement that the worker members of Zimbabwe had acknowledged the progress made by the Government in addressing the issues raised by the Committee of Experts. The employer members of Zimbabwe had also recognized the progress made and the positive steps taken with regard to the reform of the labour legislation. Indeed, the Government representative had indicated that the review process was continuing, as shown by the written information which had been provided. He recalled that it was the aim of the Conference Committee to encourage member States to provide a peaceful and conducive environment within which employers and workers could operate without undue interference from the Government. However, he shared the belief that agreements signed between an employer and representatives of a group of non-unionized workers did not promote collective bargaining and could weaken the negotiating strength of the group. He therefore appreciated the fact that the Government had amended the parts of the law which appeared to be inconsistent with ILO standards. He also noted that the Government was committed to repealing section 22 of the Labour Relations Act, under the terms of which the Minister could fix maximum wages, which was an obstacle to free collective bargaining. In view of the progress that had already been made in resolving discrepancies between the national law and the Convention, the Government should be encouraged to view the comments of the Committee of Experts in a positive light as a means of providing a peaceful environment for the social partners. The Conference Committee should also appreciate the efforts made by the Government to bring its legislation into compliance with ILO standards.

The Worker member of Norway welcomed the fact that some of the issues raised previously by the Committee of Experts had been resolved, even though certain provisions of the Labour Relations Act, including sections 17 and 22, had still not been repealed. Nevertheless, it was disturbing that the Government was still refusing to receive a direct contacts mission, as had been proposed by the Conference Committee last year, to discuss and provide guidance on the reform of the labour legislation. Although the labour legislation was now in greater compliance with the Convention than before, it was still necessary to examine the very important question of whether labour legislation was being subverted by the use of legislation in other areas. On paper, the conditions for trade unionists might look better than they had for a long time, but she emphasized that there had not been any correspondence between law and practice since the case was last discussed. Instead, the Government had continued to arrest, intimidate and harass trade union members and leaders. In peaceful demonstrations the previous year against the high cost of living and high rates of taxation, over 200 trade unionists and officials had been arrested, followed by the arrest of over 60 ZCTU members, including the Secretary-General and President of the ZCTU. Their so-called "criminal" activity, according to the Government, was to participate in a legitimate trade union activity. Other acts of interference by the Government included the attempted participation by the intelligence services in a ZCTU collective bargaining workshop and the dismissal of the ZCTU President, Mr. Matombo, from a state-owned company for having attended a trade union congress outside the country, allegedly without following the normal procedures for requesting leave of absence, although she believed that in practice these procedures had been followed. She urged the Government to take the necessary steps for his reinstatement. Those present at the ILO Conference advocated social dialogue as a means of increasing productivity, achieving a more equal distribution of wealth and creating a healthy working environment. It was therefore extremely regrettable that the Government had the opposite point of view and saw trade unionists as opponents, rather than partners. Although the labour legislation was now fairly satisfactory, the Government would only show its credibility to the outside world if there was sufficient correspondence between law and practice.

The Worker member of India regretted that the Government had not accepted the proposal by the Conference Committee the previous year to send a direct contacts mission to the country on the grounds that effective amendments had already been made to the labour legislation. He also noted that the Government representative, in line with several other Government members, appeared to feel that the issues under discussion, being of a legal nature, were more properly within the competence of the Committee of Experts than the Conference Committee. While the issues could certainly be referred to the Committee of Experts, he urged the Government, as a member State, not to question the working of the Conference Committee and he hoped that the present discussions would go a long way in ascertaining the facts of the situation. He warned that, if pursued only out of self-interest without a focus on the broader social situation, collective bargaining would ultimately be reduced to a naked trial of strength in which the strong might gain victory over the weak, but this would also be the wrong prevailing over the right. Where the employers and workers in any industry so conspired, they could harm the broader interests of the people. He therefore called upon the Government to reconsider the amendment without delay of those sections of the Labour Relations Act which infringed the right of workers to organize and to collective bargaining.

The Government member of Switzerland, after supporting the statement made on behalf of the European Union, indicated that she hoped that in the context of the ILO technical cooperation project funded by her own Government, and to which reference had been made on numerous occasions, further progress could be made, especially with regard to the main objective of the project, namely the promotion of social dialogue including all the partners of the project.

The Worker member of Brazil indicated that the discussions held last year on this case had shown clearly that there were signs that the technical debate on Zimbabwe's legislation would turn into a partisan political discussion. She considered that the recent legislative amendments, concerning which the Committee of Experts had expressed its satisfaction, and the reports of the debates that were being held in Congress and with workers and employers, showed the efforts made by the Government to promote and stimulate an extensive social dialogue. She recalled that, in 2004, Zimbabwe had completed 24 years of independence, ending one of the harshest colonial regimes, which had exploited and subjected its people to apartheid. She added that, under the independence agreements, the United Kingdom had promised to compensate the victims of the war, which it had never done. When the Government of Zimbabwe had started to demand the implementation of the agreement for the return of the lands confiscated during the colonial period, sanctions had begun and, making use of the international mass media, a campaign had been launched to discredit and demonize the country in the eyes of the world and distorting the situation. She concluded by stating that Zimbabwe was continuing to fight for genuine independence and that the ILO should stop letting itself be used by those who had promoted apartheid and who were now resisting the return of land to its true owners and who were endeavouring to manipulate the facts. Instead of including Zimbabwe on the list of cases, the ILO should support the decision by the Government to return the land to its legitimate owners.

The Government member of South Africa pointed out that the information provided by the Government addressed each observation of the Committee of Experts fully and the substantive content of the information provided was indicative of the Government's cooperation and its commitment to bringing its legislation into line with the Convention. With regard to recent legislative reform, the Committee of Experts had already noted the following: (i) the enactment of Statutory Instrument 131/2003 that prohibited acts of interference in employers' and workers' organizations; (ii) that in terms of section 93(5) of the Labour Relations Act, compulsory arbitration was now only possible with the consent of the parties; (iii) that section 2A(3) gave the Labour Relations Act supremacy over any other labour legislation; and (iv) that there was collective bargaining in the public sector. Where the Committee of Experts had drawn attention to the legislative provisions that appeared to be inconsistent with the Convention, the Government, on reflection, had informed that it was agreeable to repealing those sections, namely sections 22, 25(2)(b), 79(2)(b) and 81(1)(b) of the Labour Relations Act. It had also substantiated as to why sections 25(1) and 17(2) of the Labour Relations Act were not in contravention of the Convention.

The Government had informed this Committee that, in order for the Labour Relations Act to cover prison staff, an amendment to the Constitution, a process that involved the Government at large and the legislature, was first necessary. The speaker was of the view that the Government would address this concern through the necessary process. The information put forward to the Committee showed that the Government had been in a process of labour law reform and it had taken constructive measures to address what had been construed as infringements of the Convention. These measures had to be acknowledged and welcomed. It also evidenced that recently there had been no substantial infringement of the Convention by the Government making its listing unjustified. He welcomed the desire expressed by the ZCTU and the Zimbabwean Government about the importance of restarting the mechanism and process of social dialogue, and the invitation extended by the Minister of Labour from Zimbabwe to the ZCTU to submit to him a list of all the issues they were unhappy with for discussion and resolution. He believed that direct contact between the Government and its social partners should be paramount and should be enhanced and encouraged. He did not believe that a direct contacts mission of the ILO was necessary and the South African Government delegation was therefore opposed to it. He believed that there was a basis for the Zimbabwean workers and Government to take the process of social dialogue forward and both sides had expressed their commitment to do so. Conclusions in this Committee should therefore be supportive and encouraging of such a process.

The Government member of Malawi indicated that, in the same way as in 2003, it had not been necessary to include Zimbabwe in the list of individual cases, as the Government was clearly cooperating in its compliance with the requirements of the ILO in general and the Committee of Experts in particular. He said that the request by the Committee of Experts that Zimbabwe should amend its legislation so that prison staff would enjoy the right to organize and collective bargaining was not only unnecessary but contradicted the ILO's values of promoting peace and economic prosperity everywhere. Although the Committee of Experts had indicated that prison staff, who formed part of the disciplined and uniformed services in Zimbabwe, were excluded from the scope of the Public Service Act and the Labour Relations Act, the ILO had not received any complaints from the personnel concerned that they had no alternative mechanisms for negotiating their terms and conditions of employment. If no complaint had been received, why was it making a demand which would only endanger the lives of innocent people through increased insecurity? He added that there was no specific mention of prison staff in the Convention and that many of the countries which had ratified the Convention were unaware that it required the right to organize and collective bargaining for prison staff.

The Employer member of South Africa, also speaking on behalf of the Employer member of Swaziland, made a number of additional points of broader application based on her experience that the rights guaranteed by the core Conventions flourished best in a democratic environment in which conflict could be addressed and resolved through meaningful and results-oriented social dialogue. The transgression of human and fundamental labour rights was never conducive to economic stability or the creation of an environment in which employment could be created and poverty alleviated. She therefore called upon the Government to pursue dialogue with the social partners with a view to resolving the current areas of conflict in the country. Such dialogue should be directed at the re-establishment of fundamental rights and the means by which the Government could comply with its international obligations. It was necessary to do so in order to restore stability and cooperation in the southern African region and to create the preconditions for economic and social progress. She said that the employers in South Africa and Swaziland were willing to play any supportive role to achieve these ends.

The Government member of Canada welcomed the report of the Committee of Experts and noted with concern that, despite the introduction of legislative amendments which resolved several of the points raised in previous reports, the Government had given effect to the recommendations of the Committee of Experts to amend the Labour Relations Act which could resolve many problems related to serious and continued violations of the Convention. In Canada's view, the right of workers to negotiate collective agreements, as guaranteed by the Convention, should also include the right to choose their representatives and the right of these representatives to carry out the functions for which they had been elected, without legal or other forms of harassment by their employer or government. Even where they were fully recognized in law, the rights guaranteed by the Convention could not be exercised in full unless other national and international human rights instruments were respected in their entirety. The right to representation in collective bargaining was an important principle which had to be recognized in the same way as all other civil, political, economic and social rights, rights which Canada had urged the Government to respect on other occasions. Canada expressed its deep concern with respect to the continuous violations of human rights in Zimbabwe. The right to collective bargaining was limited by the lack of respect for freedom of expression, freedom of association, freedom of assembly and freedom of opinion. Canada urged the Government to ensure that workers' organizations and civil society organizations could organize and operate without fear of threats or harassment. Canada further expressed its concern with regard to the arbitrary arrests, restrictions on judicial independence, the obstacles to the freedom of the press and the limitations on the exercise of workers' fundamental rights in Zimbabwe.

The Government member of Finland, also speaking on behalf of the Government members of Denmark, Iceland, Norway and Sweden, recalled the request made the previous year for the Government to ensure that the Zimbabwean legislation be amended according to the Convention. She therefore welcomed the information, contained in the report of the Committee of Experts, on the amendments of the Labour Relations Act, as well as the written information provided by the Government relating to its intention to address the remaining inconsistencies of the Act. However, despite this good news, she expressed great concern about other legislative acts, for instance the Public Order and Security Act and the Miscellaneous Offences Act, which could be used to prevent the implementation of the Convention in practice. Recalling the news in November 2003 of trade union intimidation, which had resulted in hundreds of arrests across the country, she urged the Government to ensure that these acts were not used to restrict trade union activities, but to guarantee that the right to organize and collective bargaining could be freely exercised. She also reminded the Government of the fact that Zimbabwe, by virtue of its membership of the ILO, was bound by the ILO Declaration on Fundamental Principles and Rights at Work, which was based on the ILO's core Conventions. These included both Conventions Nos. 98 and 87, of which the latter had been ratified in 2003. The obligation to establish a climate in which the rights afforded by these Conventions could truly be observed rested on the Government. She therefore strongly recommended that the Government reconsiders the proposal made the previous year of an ILO direct contacts mission, which could help the Government to meet its obligations under the Convention.

The Government representative thanked all the speakers and urged the Committee to remain focused on the technical matters which were before it, rather than engaging in a wide range of political discussions. He recalled in this respect that political matters relating to his country were not covered by the Convention or by the Conference. He therefore greatly regretted that the European Union and many other countries had seized upon this opportunity to further their aims of promoting dislocation and disturbance in this country as part of a constant campaign to malign and denigrate his Government. The inclusion of his country on the list of individual cases for examination by the Conference Committee showed that it was the victim of discrimination and political moves. His country was constantly being placed in the spotlight because of its differences with its former colonial power which, regrettably, made use of international labour bodies to champion political issues. It was for this reason that his and other developing countries were agitating for a change in the working methods of the Conference Committee so that the ILO's procedures could be based on social justice, rather than political allegations.

With reference to the case of Mr. Matombo, President of the ZCTU, he said that it was a clear illustration of the manner in which trade union leaders misled the international community to further their own agenda. Mr. Matombo, who had been an employee in a company in which the Government was the major shareholder, had left the country to attend a meeting without seeking permission to do so in accordance with the code of conduct to which he was a signatory and which he had been instrumental in negotiating. His case had, in the first place, followed the internal disciplinary procedures within the company, and had then been referred to the Ministry of Labour for conciliation. He reaffirmed that this was an impartial procedure in which he was unable to interfere. He called upon the Conference Committee to acknowledge that this case was undergoing due legal process and that commenting upon it therefore risked undermining the due process of law. The fact that Mr. Matombo was the President of the ZCTU was no reason for deviating from due process. This was an internal matter which should be settled entirely at the national level. He also bitterly refuted the claims that had been made that trade union leaders had been subject to arrests and torture and said that no trade union leader was currently in prison in his country. Nevertheless, he emphasized that trade union leaders, like normal citizens, had to respect the laws and, for example, if they wished to organize a public demonstration, as opposed to a labour meeting, they were under the obligation to give notice to the police. He therefore urged trade union leaders to ensure that they were in compliance with national legislation, rather than complaining to international bodies. He also objected to having to defend his country from false allegations, which were related to the attempts that were being made by outside powers to destroy his country, for example through the imposition of trade sanctions to harm its economy. He indicated that he had made many attempts to bring trade union leaders to the negotiating table, but that they had rejected his initiatives and pulled out of the proposed discussions. This was largely due to the fact that the ZCTU was connected to an opposition party which wished to remove his Government from power. He therefore called upon the Committee to make a clear distinction between legal and political issues. Furthermore, he saw no need for a direct contacts mission, since his country was well aware of the action that needed to be taken in order to pursue its firm objective of bringing its labour legislation more fully into harmony with the requirements of the Convention.

The Worker members expressed their profound regret with regard to the insults made by the Government representative and stated that they would not tolerate the insults against the trade unionists of Zimbabwe, who currently had brought a complaint before the Committee on Freedom of Association, or against the Worker member of Norway, representing LO-Norway.

The Worker member of Zimbabwe, exercising the right of reply, wished to put the record straight. The allegations made against the ZCTU were unfounded. In particular, he took great exception to the description of this organization as a "puppet" organization. The ZCTU was not influenced by anyone, nor was it a political party. With regard to the remarks made by the Government representative concerning social dialogue, he recalled that the Tripartite Negotiation Forum (TNF) had originally been initiated by the ZCTU, which certainly wished to promote social dialogue. Discussions had been held within the context of the ILO/Swiss-funded project to promote social dialogue and it had been agreed by all the parties concerned that a tripartite committee would be set up to investigate why previous attempts to activate the forum had collapsed. It was the position of the ZCTU that the tripartite committee needed to look into all the issues concerned so as to lay the ground for making progress in future. He added that, at the instigation of the Government of South Africa, a meeting had been held between the workers and the Government of Zimbabwe during the International Labour Conference with a view to resolving the current tensions. His organization fully accepted the need to discuss issues and to promote social dialogue. However, he and his colleagues had once again been subject to threats and intimidation. He warned the Government representative that social dialogue could not take place under such circumstances.

The Worker members said that this case was once again under examination by the Conference Committee because the Government had refused to accept the direct contacts mission proposed by the Committee last year. In the circumstances, the Committee had included the case in a special paragraph, which resulted in an automatic re-examination of the case. The Worker members said that they had expected a more positive attitude from the Government. They recognized that the Committee of Experts had expressed satisfaction at certain legislative amendments and that there were indeed some positive developments, but that much more progress was still required in practice. The Worker members said that it was therefore necessary to remain vigilant to ensure that these amendments were effectively implemented in practice. However, several obstacles to the application of the Convention persisted. The Worker members emphasized that the comments of the Committee of Experts had dealt with the application of the Convention in Zimbabwe for three years now and that this was the third time that the Conference Committee had discussed this case. While acknowledging the improvements, they hoped that the Government would amend its laws more quickly. In this regard, they stressed that legislative amendments were still required with respect to four outstanding issues: (1) the requirement of ministerial approval for collective agreements; (2) the failure to promote collective bargaining in accordance with Article 4 of the Convention; (3) the unilateral setting of maximum wages and working conditions; and (4) the exclusion of prison staff from the application of the Convention. The Worker members also expressed their great concern at the threatening climate which currently existed and which was liable to prevent the application in practice of the right to organize and to free and voluntary collective bargaining guaranteed by the Convention. They urged the Government to respect the ILO's supervisory machinery and, in particular, the unique role of the Conference Committee. This Committee was responsible for examining the measures taken by the Government to give effect to the provisions of Conventions. The Worker members regretted that the Government had once again refused an offer to cooperate with a direct contacts mission or any technical assistance from the ILO and, as a result, declared that they reserved the right to come back to the problems relating to freedom of association and collective bargaining in Zimbabwe at the next session of the Conference Committee.

The Employer members pointed out in the first place that the discussion of this case concerned Convention No. 98, even though some interventions had appeared to be dealing mainly with Convention No. 87. Although the two instruments were closely linked, there were good reasons for the Committee of Experts to examine their application separately. The comments made during the discussion had to a certain extent gone beyond issues related to the application of the Convention. This was also true of the comments made by the Government representative. It was the role of the present discussion to deal specifically with matters relating to the application of Convention No. 98 in law and practice. It was clear in this respect that the Government would have to adopt further measures to bring its law and practice fully in conformity with the Convention, which had been ratified fairly recently, in 1998. Although it might appear at first that the issues dealt with were of a technical nature, they had an important impact on the social life of the country. The Employer members had gained the impression that the Government was reluctant to allow sufficient liberty for a market economy and for the social partners to engage in social dialogue, both with the Government and in bilateral negotiations between the two parties directly. To ensure the success of social dialogue, the Government needed to give sufficient room to the social partners. In the initial stages, this required a sufficient level of trust to be accorded to the social partners. The problem was that the correct attitudes needed to be established in the first place. The Employer members also called for good relations to be developed between the Government and the ILO supervisory machinery. They indicated that there was nothing shameful in accepting the technical assistance of the ILO. Finally, they expressed the hope that the Conference Committee would express its concern at the issues raised with regard to the application of the Convention in an accurate manner.

The Worker members expressed their regret at the incidents which had occurred during the discussion and hoped that the work of the Committee would take place in the greatest respect for everyone in the future.

The Government representative thanked the Committee for its valued and objective conclusions and undertook to take action to give effect to them.

The Committee noted the written information provided by the Government, the oral statement made by the Government representative and the debate that followed. The Committee recognized that various issues raised by the Committee of Experts in its previous observations had been resolved through the adoption of new legislative provisions and regulations. However, the Committee expressed concern at the persistence of serious problems of application of the Convention, especially the intervention of the public authorities in the collective bargaining process and the possibility of concluding direct accords with workers, even where trade unions existed. The Committee observed that the Government was prepared to amend a number of provisions mentioned by the Committee of Experts which were contrary to the Convention, and that it envisaged the adoption of measures with respect to the question of ministerial approval of collective agreements and the setting of maximum wages. Although the Committee noted the Government's willingness to resolve a number of points, it regretted that the Government had not accepted the direct contacts mission which had been proposed the previous year. The Committee expressed its firm hope that the Government would continue to take measures in the very near future for the full application of the Convention in law and practice and that the rights set forth in the Convention would be respected in a climate of full freedom and security. The Committee requested the Government to provide all the necessary information so that the Committee of Experts could once again undertake an exhaustive examination of the situation at its forthcoming session. The Committee emphasized the importance of social dialogue and indicated to the Government that such dialogue required full respect of the independence of workers' and employers' organizations and of the principles and procedures of the International Labour Organization.

The Worker members expressed their regret at the incidents which had occurred during the discussion and hoped that the work of the Committee would take place in the greatest respect for everyone in the future.

The Government representative thanked the Committee for its valued and objective conclusions and undertook to take action to give effect to them.

Individual Case (CAS) - Discussion: 2003, Publication: 91st ILC session (2003)

The Government supplied the following information.

As the Zimbabwe Government is appearing for the second time before the Committee on the Application of Standards in relation to Convention No. 98, it is critical to point out at the outset that the concerns relate to legislative issues which have since been addressed through the passage of the Labour Relations Amendment Bill on 19 December 2002.

The Committee will recall that at the last session on 12 June 2002 Zimbabwe did indicate that the issues were being taken care of by legislative process. The same point was included in the report submitted in terms of article 22 of the ILO Constitution on Convention No. 98, in July 2002.

As soon as the Labour Relations Amendment Bill was passed by Parliament, copies were duly served to the ILO via ILO/SAMAT and ILO/SWISS Project on Social Dialogue and Dispute Settlement in Southern Africa on 15 January 2003, even before the official promulgation of the Bill on 7 March 2003. This demonstrates the Government's commitment to undertakings made at the previous session of the Conference Committee in relation to submission of legislative changes to the ILO once adopted. Therefore it cannot be an issue that Zimbabwe did not submit its Bill before the Committee of Experts sat, since the amendments were still being considered by the competent authority and the ILO was kept informed at all material times.

1. Protection of workers' organizations against acts of interference of employers' organizations and vice versa

As one of the outputs of the labour law reform, labour regulations to cover acts of interference were promulgated as Statutory Instrument 131/2003 - in line with Article 2 of Convention No. 98.

2. Compulsory arbitration in the context of collective bargaining agreement imposed by the authorities at their own initiative

With the coming of the Labour Relations Amendment Act 17/2002, sections 98, 99 and 100 were all repealed and sections 106 and 107 were amended. Under section 106 "show cause" orders could be applied now only to unprocedural collective job action, and, under section 107 disposal orders could be issued by the Labour Court instead of the Labour Officer. The Labour Relations Amendment Act introduced a new dispute settlement mechanism which had not been envisaged at the June 2002 Conference.

The new mechanism categorically distinguishes between disputes of right and disputes of interest. With respect to disputes of right one cannot go on collective job action but to adjudication as it is merely a question of enforcing existing rights. As regards disputes of interest, parties have the right to resort to collective job action. However, parties in an essential service cannot resort to collective job action, but are referred to compulsory arbitration. Generally, parties are referred to compulsory arbitration whether it is a dispute of right or a dispute of interest with their consent. Moreover, the new section 82 under Act 17/2002 states that: "If a registered collective bargaining agreement provides procedure for the conciliation and arbitration of any category of dispute, that procedure is the exclusive procedure for the determination of disputes within that category." This gives effect to Article 4 of the Convention.

3. Other limitations to the right to collective bargaining

(a) Ministerial powers to fix maximum wages. Whereas under section 22, which has not been repealed or amended by Act 17/2002, the Minister may make regulations specifying maximum wages, there is provision under section 22(2) for application for exemption from the application of a maximum wage notice. The power to fix maximum wages is therefore not absolute. The request to repeal this section may not be appropriate given the level of our economic development. Some agreements can cause distortions in the economy.

(b) Approval of collective bargaining agreements. Sections 25(2), 79 and 81 of the Act remain intact. The duty of the Minister under these sections will be solely to ensure compliance with national laws.

Our position is that it is in the national interest to protect consumers and the general public given the level of our economic development.

Section 25(1), in the view of the Committee, dilutes the functions of trade unions vis-à-vis collective bargaining. This was addressed by the amendment of section 23 which now links workers' committees to trade unions.

(c) Prison staff - the Public Service Act and collective bargaining. In accordance with section 2A(3) the Labour Act now has supremacy over any other enactment which is inconsistent with it. To the extent that the Public Service Act, especially section 14, is inconsistent with the Labour Act in excluding certain categories of state employees from its ambit, the Labour Act prevails. The Public Service Act and the Labour Act agree that the prison service be excluded from being employees of the State, being a disciplined force. The prison service is therefore appropriately excluded.

With regards to the rest of the services of employees mentioned in section 14, those who are employees of the State and have not been designated by the President in terms of section 3(2)(b) of the Labour Act, continue to be governed by the Labour Act and they can now rightly organize. So those in the state lotteries and other instances cited under section 14(c) or (h) are now governed by the Labour Act unless they are found to be involved in the administration of the State. So, prima facie, such employees have been endowed with the right to organize as embodied in law and in Convention No. 98.

(d) With respect to the question concerning teachers, nurses and other civil servants not directly engaged in the administration of the State, it should be confirmed that they negotiate collective bargaining agreements. In accordance with new labour legislation, they can form employment councils in terms of section 56 or section 57 of the Labour Act. The duties of employment councils, as outlined in section 62 of the Act, are to conclude agreements in the industry, as well as to resolve disputes between the unions and the employer (Public Service Commission). As from year 2000, several such agreements were concluded relating to the State Pensions Act and the cost-of-living adjustment, which covered 167,890 civil servants.

4. Conclusion

Zimbabwe submits that its listing in respect of Convention No. 98 was uncalled for and unnecessary given the Labour Law reform processes which commenced immediately after the 90th Session of the ILC (June 2002). Such processes involved all social partners in Zimbabwe and some of the structures of the Office. This is known by Workers and Employers from Zimbabwe.

A Government representative (Minister of Public Service, Labour, and Social Welfare) contended that the legislative issues leading up to his country's second appearance before the Committee had been adequately addressed by the Labour Relations Amendment Act (No. 17), 2002, a copy of which had been sent to the Office in January 2003, after the session of the Committee of Experts. He added that the Act was an output of the labour law reform process commenced in 1993. He also indicated that a number of draft texts leading up to the Bill had been sent to the Committee of Experts for examination with a view to receiving guidance, but not to make a case against his country. It had been for this reason that his Government had declined the direct contacts mission proposed the previous year, since the concerns raised were about to be addressed by the ongoing labour law reform process. Moreover, and in addition to the involvement of organized labour and business, this process was receiving technical assistance from the ILO/Swiss project on social dialogue and dispute settlement in southern Africa.

With regard to the protection of workers' organizations against acts of interference by employers' organizations, and vice versa, he noted that special regulations had been adopted which were in conformity with Article 2 of the Convention. A copy of these regulations had been submitted to the Office. In relation to the concern expressed by the Committee of Experts regarding compulsory arbitration in the context of collective bargaining, he said that this had been addressed by the new dispute settlement mechanism that had been established. An important feature of this mechanism was the separation of disputes of rights from disputes of interest. As a result of the repeal of sections 98, 99 and 100 of the Labour Relations Act, and the amendment of sections 106 and 107, compulsory arbitration was now by consent and was only applied in respect of disputes of right and with respect to disputes of interest where conciliation had failed in essential services only.

With regard to the powers of the Minister to fix maximum wages in consultation with a tripartite advisory council, he indicated that this power was not absolute and that a concerned party could apply for exemption. The same applied to minimum wages. Noting that Article 4 of the Convention allowed for "measures appropriate to national conditions" to be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers and employers' organizations and workers' organizations, he said that it was within the ambit of these terms that measures were taken, in light of national conditions, to fix both minimum and maximum wages. He added that it was common practice to set a minimum level for the price of labour taking into account economic trends, the cost of living and the bargaining strength or weakness of labour. Similar considerations applied with regard to the approval of collective bargaining agreements, with a view to the protection of consumers and the general public, given the level of economic development of the country. In this sense, the law was not in violation of Article 4 of the Convention. Moreover, ministerial approval was given with a view to ensuring that agreements were within the confines of national law. He therefore concluded that the right to bargain collectively was not absolute under Article 4 of the Convention, although he would be guided by the interpretation of the Committee of Experts on this matter.

With reference to the concern expressed by the Committee of Experts with regard to section 25(1) of the Act, he said that this issue had been addressed by the amendment of section 23, which now linked workers' committees to trade unions. The purpose of the amendment was to ensure that the members of the workers' committee in an enterprise in which no fewer than 50 per cent of the workers belonged to the trade union operating in the sector were in fact members of that trade union. This meant that collective bargaining at the enterprise level was undertaken with the blessing of the trade union concerned.

With regard to the comments of the Committee of Experts regarding collective bargaining by prison staff and in the public service, he cited the information provided in document D.10. In conclusion, he submitted that the Committee should take note of these legislative changes and allow the Committee of Experts to examine them at its next session. The issues raised by the Committee of Experts were of a legalistic nature and the Conference Committee would need to take into account the views of the Committee of Experts in order to hold an informed technical discussion. He said that his country had benefited immensely from the comments made by the Committee of Experts, but hoped that the present Committee would not politicize a discussion which should be confined to technical issues. Finally, he said that the one remaining issue concerned the legislation on export processing zones, which provided that the Labour Relations Act did not apply in such zones, but which had inexplicably been left out of the labour law reform process up to now.

The Worker members expressed their gratitude to the Government for information provided and recalled that this case had been discussed the previous year. They regretted that the Government had not accepted the ILO mission proposed by the Committee last year, and that it had not transmitted to the Committee of Experts before January 2003 the draft amendments to the Labour Relations Act. This delay had interfered with the smooth functioning of the Committee of Experts. They stated that they had not been convinced that the draft law responded to the recommendations of the Committee of Experts, and that the analysis of the draft by the Committee of Experts still remained necessary.

The Worker members noted that section 22 of the Labour Relations Act, which authorized the Minister to fix, by statutory instrument, the maximum wage had not been repealed. They asked the Government to clarify its statement that the Minister did not have absolute competence in this regard. They recalled that the Committee of Experts in its latest report had asked the Government to take the necessary measures to amend or repeal section 17 of the Labour Relations Act, which provided that regulations made by the Minister prevailed over any agreement or arrangement. They regretted that the Government had not provided information in this regard.

The Worker members expressed their concern with respect to the human rights situation in Zimbabwe. They referred to cases of arbitrary arrest, torture and violations of the freedom of expression. They indicated, by way of illustration, that last April the Zimbabwe Congress of Trade Unions (ZCTU) had organized a demonstration to protest against the rise in oil prices and that on that occasion 20 members of the Confederation had been imprisoned. They also referred to Case No. 2184 of the Committee on Freedom of Association, concerning allegations that police officers had forcefully entered the premises of the ZCTU. In this case, the Committee on Freedom of Association had recalled that the entry by police into trade union premises without a judicial warrant constitutes a serious and unjustifiable interference in trade union activities. The Committee on Freedom of Association had requested the Government to ensure that the principles of non-interference by the authorities in the meetings and internal affairs of trade unions were respected and to implement the order of the High Court of Zimbabwe to prevent police intervention in the meetings of trade unions in future.

Finally, the Worker members requested the Government to accept a direct contacts mission. They indicated that if it refused, they would be obliged to demand that the conclusions of the Committee on this case be placed in a special paragraph of its report.

The Employer members, noting that this was not the first time that the case had been examined by the Committee, regretted that the Government had not accepted the proposed direct contacts mission the previous year, which would have been useful in overcoming the difficulties relating to the application of the Convention. The main concerns of the Committee of Experts related to the lack of overall protection against interference in the internal affairs of employers' and workers' organizations, although the Employer members indicated that Article 2 of the Convention did not appear to contain specific provisions on the protection required in this respect. The Employer members noted the indication by the Government representative that proposals had been requested from employers' and workers' organizations before the new legislation had been considered. They called for full information on this matter to be provided in the Government's report.

With regard to compulsory arbitration and the amendments to the Labour Relations Act, they said that further detailed information would be required to obtain an overall picture of the situation with regard to the new legislation. In this respect, they emphasized that the imposition of compulsory arbitration should be an exception to the general principle of free collective bargaining. Without wishing to enter into abstract arguments about where the limits of compulsory arbitration lay, they advocated a step-by-step approach so as to develop conditions adapted to the specific situation. Nevertheless, they expressed doubt that these conditions should be set as high as suggested by the Committee of Experts, which called for them to be limited to an acute national crisis. On the other hand, the determination of such conditions should not be left to the discretion of the public authorities. The issue was therefore complex and needed to be weighed carefully, taking into account all the related aspects.

On the subject of section 17(2) of the Act, which provided that regulations made by the Minister prevailed over any agreement and arrangement reached by the social partners, they noted that this provision appeared to provide the Minister with broad discretion to influence very substantially collective agreements, particularly in the very important area of remuneration. Moreover, section 22 of the Act, by giving the Minister the authority to fix a maximum wage, constituted clear interference in the freedom of collective bargaining where such agreements had already fixed the level of wages. They added that the requirements set out in sections 25(2), 79 and 81 of the Act relating to ministerial approval of collective agreements constituted a clear violation of the right to collective bargaining and they noted an increase in national regulation and control in this area.

The Employer members observed, however, that the requirement set out in section 25(1) of the Act, under which an agreement reached between workers' committees and the employer had to be approved by the trade union and by more than 50 per cent of the employees was a more complex issue. It would be necessary to return to this matter and its compliance with Article 4 of the Convention once further information had been supplied. Nevertheless, they noted that all the measures adopted to control collective bargaining were enforceable by sanctions, including up to one year of imprisonment, which clearly showed the will of the Government to exercise strong control over the collective bargaining process. They further noted that the section of the Act relating to remuneration was entitled "wages and salary control", which clearly indicated the purpose of the Act. The Employer members had gained the clear impression that the Government was endeavouring to obtain complete control over the private economy, in violation of the general principles of a free market economy and free collective bargaining.

In conclusion, they said that it was essential for the Government to submit a full new report on the current situation as soon as possible. They added that a direct contacts mission would be useful in finding solutions to the existing problems, since several doubts remained concerning the compatibility of the new legislation with the Convention.

The Worker member of Zimbabwe recalled that the previous year his Government had been requested to transmit the Labour Relations Amendment Bill to the Committee of Experts for its comments to see if the amendments proposed had eliminated all the remaining obstacles to the right to free collective bargaining in law and in practice. Although the Bill had finally been adopted in December 2002, it was disturbing that there remained provisions which empowered the Minister to refuse to register a duly concluded agreement and to force the parties to renegotiate if he deemed it fit. This had occurred in practice when the Minister had refused to recognize an agreement duly concluded by the Employers' Organization for Farmers and the General Agriculture and Plantation Workers' Union. It appeared likely that this section would continue to be used by the Government.

With regard to protection against acts of interference and the scope of application of the Convention, the Government had been requested to take the necessary measures urgently, in full consultation with the social partners concerned, to ensure that workers' and employers' organizations were effectively protected against acts of interference and so that public servants not engaged in the administration of the State enjoyed the right to collective bargaining. He deeply regretted that the Government had deliberately decided to ignore this recommendation and had instead embarked on a path of intimidation, demonization and the crippling of the ZCTU. He emphasized that protection against acts of interference should not only be binding upon employers and trade unions, but that Governments should also refrain from interfering in the activities of the social partners. He therefore regretted to report that the ZCTU had suffered a series of abuses of human and trade union rights. Workers had been arrested, beaten and tortured and militias had been trained to create no-go areas for trade unions. Among the many victims, the General Secretary of the ZCTU had been arrested and beaten by the police. Information on the various acts of violence committed had been included in a database which was available for public examination. The interference by the Government had had the effect of curtailing the major functions and even the existence of the ZCTU and the task of organizing of trade unions in Zimbabwe had become a dangerous and risky occupation. Pressure was being placed on workers to join the ZCTU, which was being promoted by the Government as the only central trade union organization with which it wished to deal. When independent trade union leaders were arrested, they were normally charged with treason and were therefore liable for the death penalty. Nevertheless, in an effort to stabilize the environment in his country, the ZFTV had persuaded the Government to engage in a tripartite negotiating forum, which it had accepted in December 2002. Unfortunately, it had only accepted this tripartite process for its own advantage. The purpose of the process had been to develop a prices and wages stabilization protocol as a basis for a focused economic strategy. However, the process had been undermined when the Government had unilaterally increased fuel prices by over 250 per cent. He therefore appealed for the Committee to examine closely the manner in which the Government continued to violate the fundamental rights set out in the Convention.

The Employer member of Zimbabwe noted with pleasure the progress made in compliance with the Convention over the past 12 months. He indicated that the employers in Zimbabwe had contributed to the process leading up to the adoption of the legislative amendments adopted by organizing the maximum level of participation of employers in the process of labour reform. Although satisfied that there was adequate tripartite involvement in the development of the new provisions, employers in Zimbabwe felt that the amendments were more pro-worker than the original Act. They believed that this was at the expense of potential new investment in the country and that the alliance which appeared to be emerging between the Government and the workers' movement had resulted in a significant increase in the costs of doing business in the country through higher social benefit costs.

He indicated that the social partners had agreed, through the Tripartite Negotiating Forum, on an overall prices and incomes stabilization framework within which collective bargaining agreements for 2003 could be situated. Within the scheduled deadline of June 2003, all the collective agreements had been successfully concluded and no interference had been reported. He noted in this respect that the national employment councils were free to negotiate their own agreements, which were then registered under the law, and that in only one case had registration been withheld by the Government up to now. However, he noted that no dispute had been reported in this connection and that the employers in Zimbabwe were satisfied that market forces were effectively at work. In the sector concerned, namely agriculture, they noted that the fundamental structural changes had materially affected the employer base in the industry and that new employers therefore needed to become involved so as to develop an informed agreement. He added that, as requested by the Committee, the issue of the protection of workers' organizations against acts of interference by employers' organizations, and vice versa, had been addressed by Statutory Instrument No. 131/2003.

With regard to the imposition of compulsory arbitration in the context of collective bargaining, he expressed the belief that the amendment to sections 106 and 107 had simplified procedures. This was good for business, which required a predictable operating environment, which had sometimes suffered from the propensity of workers to resort to unprocedural industrial action. The new measure of direct referral to the courts, instead of labour officers, would make the process more expeditive. Furthermore, the innovative distinction of disputes into two categories, namely those respecting rights and those relating to interests, would be helpful in isolating remedies where parties engaged in essential services were in dispute, while leaving the normal procedures set out in collective bargaining agreements unaffected.

With regard to other limitations on the right to collective bargaining, he expressed concern about the powers vested in the Minister to set maximum wages. While appreciating the need to narrow income disparities, he believed that the market should be the standard upon which wages and salaries were determined. If such powers were exercised in an arbitrary manner by the Minister, in addition to being in contravention of the Convention, this would be detrimental to the proper functioning of the labour market. However, he noted that although the provision had been in existence since 1985, it had never been applied by the Government. Even though the Committee might believe that this provision was in violation of the Convention, he preferred to take a more pragmatic approach based on historical practice, while at the same time endeavouring to convince the other social partners that it was unnecessary and should therefore be removed from the statutes. The role of Government should be merely to register, and not to approve collective bargaining agreements, which should be left to the two parties. In conclusion, he reaffirmed that the new law, although it could clearly be improved, was substantially in compliance with the Convention.

The Government member of the Seychelles said that it appeared that the Government of Zimbabwe was committed to bringing its legislation into line with the Convention and emphasized that it should be assisted and encouraged in this process. The Government's desire to cooperate had resulted the previous year in the adoption of the Labour Relations Amendment Bill. Recalling that in Africa and other developing countries, the people were still walking the walk to freedom, he emphasized that what was important was that they were more committed than ever to improving the lives of working men and women. The focus was the achievement of sustainable development through good industrial relations and he trusted that Zimbabwe subscribed to this principle.

The Government member of Mozambique welcomed the great commitment shown by the Government of Zimbabwe. He believed that recent amendments to the Labour Relations Act, adopted with the assistance of the ILO, was proof of that commitment. He emphasized the need for all forces of good will to help Zimbabwe. The social partners had to unite in order to participate in the application of standards and the ILO should continue its efforts to achieve this goal.

The Government member of Malawi expressed the opinion that, in view of the information provided by the Government of Zimbabwe, it was not necessary for the Conference Committee to examine this case. The Government was doing its best to cooperate and comply within the shortest possible time with the recommendations made by the Committee the previous year and it was an old legal tradition that a fair court did not punish a person twice for the same offence. The Conference Committee was renowned for its high integrity and fairness and should take care not to lose these traditional qualities. In view of the good will shown by the Government, it was therefore, now, the time more than ever before, to encourage it to continue its progress with ILO assistance and in collaboration with workers, employers and other interested parties.

The Government member of the Libyan Arab Jamahiriya after recalling that Convention No. 98 was a fundamental Convention, welcomed the new information provided by the Government, and particularly the adoption of legislative amendments following consultations with all the parties concerned. It appeared that the amendments took fully into account the principles of the Convention. All of the new information provided should be forwarded to the Committee of Experts for review. Finally, he said that the provision of technical assistance on a tripartite basis would be an excellent means of helping the country make further progress.

The Employer member of South Africa recalled that the previous year Zimbabwe had been found by the Committee to be in breach of Convention No. 98, but that the Government of Zimbabwe had not agreed to accept a direct contacts mission to help improve the situation. Nevertheless, the country was receiving assistance under the ILO/Swiss project on social dialogue and dispute settlement in southern Africa. The social partners had contributed through the Tripartite Negotiating Forum to the development of legislation which had reduced the areas that were in conflict with the Convention. But this process had left unattended significant problems commented upon by the Committee of Experts. One of these concerned the authority given to the Minister to fix maximum wages, after consultation with the Minister of Finance. Employers were required to comply with the wage levels established, under threat of a fine or imprisonment of up to one year. The law also required the approval of collective agreements by the Minister in order to ensure that their provisions were in accordance with national laws and were not inequitable to consumers, members of the public or any other party to the agreement. The Minister could direct the parties to amend such agreements. If they did not do so, the Minister was empowered to amend the agreement directly as necessitated by the national interest.

He recalled that international Conventions existed to create a better life for the population. Although the Government endeavoured to justify its position on the grounds of national interest, he recalled that recent years had seen a major decline in the economy of Zimbabwe, with rampant inflation and a rapid fall in real GDP. Clearly its policies were not working and economic activity was in sharp decline. The present Committee could be of great assistance to the people of Zimbabwe in this regard by calling upon the Government to adopt sound policies based on tripartite agreement. The case should be examined by the Committee once again next year to ensure that the necessary changes had been made.

The Worker member of Nigeria stated that, despite the recent steps taken by the Government and the discussion which had taken place in this Committee the previous year, the amended law continued to contain elements that were in breach of the Convention. In particular, the Government still had the power to prescribe maximum wages and the new Act gave the Minister veto power, by allowing him to refuse to recognize a collective agreement freely and duly negotiated and signed by the social partners. He therefore expressed the view that the achievement of progress should not be assumed just because of the enactment of a law when this law continued to be in violation of the Convention. On the contrary, the fact that the Government maintained such violations in disregard of previous criticisms showed that it did not have any real intention of changing its practices. The Government representative had made an attempt to justify the continuing restrictions placed on collective bargaining and to lecture the Committee on the reasons why the Government should maintain control over the economy. He rejected this approach, which assumed that the Government had exclusive competence over economic matters and was in possession of the monopoly of knowledge, and that no benefit could be drawn from the participation of the social partners in the economic life of the country. This stance explained the country's current socio-economic crisis. National economic conditions could not be invoked to justify violations of Article 4 of the Convention. The Convention applied to all countries regardless of their level of development and its provisions were not based on the condition that only flourishing economies should be under an obligation to respect them. He associated himself with the statement by the Worker member of Zimbabwe, who had explained how the Government had rendered the exercise of freedom of association impossible by criminalizing trade unionists for organizing, engaging in collective bargaining and staging strikes. In particular, the police were allowed to stop trade union meetings and armed thugs were used to attack and assault trade union leaders. Foreign trade unionists were not spared such intimidation. The Director of the Commonwealth Trade Union Congress had visited the country at the invitation of the workers and the Ministry of Labour and had almost been deported without having committed any offence. The next day, a trade unionist working on child labour had been denied entry into the country. The right to collective bargaining could not flourish under such conditions. He urged the Conference Committee to send a clear signal to the Government that trade union freedoms and the right to collective bargaining should be fully respected in accordance with the Convention.

The Worker member of Norway, speaking on behalf of the Worker members of the Nordic countries, noted that the Government had now provided its reply to the observations made by the Committee of Experts and had adopted amendments to the Labour Relations Act. The amended Act seemed to be more in compliance with the Convention than the former labour laws, although some serious limitations remained, especially concerning the right to strike. She emphasized that the reason why the workers were not applauding this new law, although conditions for trade unionists might now look better on paper than they did a year ago, was that there had not been any signs that the law was being implemented in practice. Instead, there had been too many violations of workers' and other civilians' rights over the past year: trade unionists were prevented from holding ordinary meetings and organizing activities; strikes and rallies were forbidden by the authorities; union leaders were being arrested, intimidated and tortured; and trade union colleagues from other countries were being denied entry to the country in many instances. She emphasized that the core of the matter was the lack of any correspondence between, on the one hand, the content of ratified ILO Conventions and labour laws and, on the other, actual practice. The numerous incidents referred to during the discussion had demonstrated that the new labour law and the Convention were not being implemented in practice. One of the reasons for this was the adoption of the draconian Public Order and Security Act, which sidelined international conventions, as well as the new labour law and had been actively used to obstruct trade union activities and to allow the harassment, intimidation and even murder of workers. She observed the paradox which existed between the fact that Zimbabwe now had better legislation than before, while at the same time workers' rights were being violated more than ever before in the history of the country. This case clearly illustrated the large gap which existed between the adoption of laws and the ratification of Conventions and their implementation in practice. She emphasized that what really mattered was the way in which workers and their families were treated. The practices followed in Zimbabwe today were intolerable and certainly not in compliance with the Convention. Nordic workers were following this situation very closely and welcomed the fact that the Government had expressed its belief in tripartism and social dialogue. But experience showed that good dialogue could only take place in an appropriate context, with mutual respect for the views of each party. This was unfortunately not the situation in Zimbabwe today. She therefore requested that the conclusions on this case be included in a special paragraph of the Committee's report.

The Worker member of Brazil expressed her interest in the information provided and efforts made by the Government of Zimbabwe. She indicated that this country had been a victim of colonialism and apartheid for decades, and that no one had spoken of freedom of association and collective bargaining for all those years. She expressed her surprise that at a time when the Government had started to require the implementation of the agreement on the distribution of land signed 20 years ago, allegations had started to be made of non-compliance with the Convention. She emphasized that Zimbabwe and most of Africa wished to overcome their difficult economic situation, and that it was necessary to offer them support and solidarity. If this Committee and the ILO continued to discriminate against the poor and independent countries, they would have to denounce many of the ILO's Conventions, which would be regrettable.

The Government member of Cuba indicated that the comments of the Committee of Experts related to the draft of amendments to the Labour Relations Act which, according to the statement by the Government representative, had already been adopted by Parliament in December 2002, after the meeting of the Committee of Experts, and contained a number of changes related to the application of Convention No. 98. She also noted that special regulations related to the application of Article 2 of the Convention had been adopted, which was also related in a number of ways to the application of the Labour Relations Act. She indicated that this was a complex subject and that it was premature to make a judgement on the oral information received recently. The legal analysis of the new legislative provisions and their conformity with the Convention lay within the competence of the Committee of Experts, and the Conference Committee should therefore confine itself to taking note of the Government's explanations and transmitting the information to the Committee of Experts. She stated that it was unacceptable to include matters in the debates which had not been addressed in the report of the Committee of Experts and that certain members exerted pressure and threats against governments to make them accept what was proposed. It would be more fruitful if the Committee took note and expressed its gratitude for the information provided by the Government, and she asked the Committee to transmit the information and the new texts to the Committee of Experts so that they could be examined. Finally, she indicated that the technical assistance of the ILO could be beneficial for the Government and the social partners.

The Government member of Namibia stated that after reading the Government's report to the Committee of Experts and listening to the explanations provided to the Conference Committee, his delegation had three points to make. First, he observed that the concerns expressed by the Committee of Experts had been addressed through the adoption of the Labour Relations Amendment Bill in December 2002. The legislative text had since been communicated to the Committee of Experts. Second, he took note of the fact that the Government representative had expressed the wish for the Committee of Experts to be given the opportunity to examine the new legislation before any conclusions could be drawn. Third, he noted that a legislative reform process was under way with the participation of all the social partners and with technical assistance from the ILO in the framework of the ILO/Swiss project on social dialogue and dispute settlement in southern Africa. He therefore concluded that this Committee should allow sufficient time for the Committee of Experts to examine the legislation transmitted by the Government and assess whether it was in conformity with the Convention.

The Government member of Finland, also speaking on behalf of the Government members of Denmark, Iceland, Norway and Sweden, noted the information provided by the Government, both orally and in writing, on the adoption of the new Labour Relations Amendment Bill. She also noted that the conformity of this legislation with the requirements of the Convention still needed to be assessed by the Committee of Experts. She requested the Government to ensure that other legislative provisions which might affect the application of the Convention be amended accordingly so that the Convention could be fully implemented in practice. She therefore urged the Government to do its utmost to ensure that the fundamental rights enshrined in the Convention could be exercised in an environment that guaranteed peace, democracy, social justice, respect for human rights and the rule of law. She encouraged the Government to accept technical assistance from the ILO in order to promote the implementation of the Convention and to hold consultations with the social partners on measures needed for the achievement and maintenance of peace and social justice.

The Government representative thanked the members of the Committee for the debate which had taken place. He repeated that his Government had submitted information in writing on the measures taken since the last meeting of the Committee in response to the comments made by the Committee of Experts. The Government, in collaboration with the social partners and on the basis of social dialogue, had developed new legislation, which had been presented to the Committee of Experts. It was now up to the Committee of Experts to review the conformity of the new law with the Convention and pronounce itself on any remaining discrepancies. He emphasized that legislative reform had taken place with the support of ILO experts and the ILO/Swiss project, with a view to complying with ILO Conventions. He wished to place on record that his Government was still reviewing the matter and would comply with any observation which was in the interests of the social partners.

With regard to the issues raised by several members, he wished to emphasize that the Government had the will to govern the country and would continue to do so based on the electoral mandate it had received. However, he noted that the Government was being accused of violations by organizations based outside the country and which were intent on funding acts of violence in the country. However, such organizations did not take into account the victims of the illegal acts committed by those whom they sponsored. He expressed concern at the fact that, as soon as such persons were arrested for having committed illegal acts, they claimed the right to protection as trade unionists, even though their acts, such as the destruction of a public bus full of workers at 4 a.m., showed no respect for workers. Such persons nevertheless claimed that they should not be punished for such acts due to their trade union status. He emphasized that the rule of law should apply equally to all citizens, and especially to those who had committed illegal acts aimed at overthrowing a legitimately elected government. The Conference Committee was being subjected to misinformation in this respect. The Government took great care to distinguish genuine trade union activities from such illegal activities. His Government had respect for workers and acknowledged that they should not be victimized for carrying out genuine trade union activities.

He reported that the previous year, a high-level mission of trade unionists from African countries had visited the country, invited by workers' organizations, and had held a long meeting with the President. The mission had gone on to verify the situation on the ground. They had seen for themselves that the alleged violations were not true. He emphasized that Zimbabwe did not have the power in the international media to defend itself against the defamation being levelled at it. The situation in the country was very different from the one depicted to the outside world. The country was being penalized for attempting to take back its land from a former colonial power. At the same time, however, such countries were never criticized for refusing entry to persons coming from their former colonies. He emphasized that the international community should no longer allow such double standards to be maintained.

He expressed confidence that the Committee of Experts, as a principled body, would examine the conformity of the legislation submitted with regard to the provisions of the Convention. However, he believed that the real issue before the Committee was the need to allow a developing country to chart its own process of development in a tripartite manner. He recalled, in response to the suggestions made that a tripartite forum should be set up in the country, that a Tripartite Negotiating Forum had been established and had been functioning since 1998, leading in 2003 to the conclusion of agreements with the social partners, which were implemented at the national and workplace levels. In reference to the work of the Parliament Portfolio Committee on Labour, he noted that this Committee had been heavily involved in the labour reform process since 2000. This Committee had received written submissions from the social partners and civil society and had convened a public hearing on the draft labour legislation. The recently adopted Act had therefore been the subject of public debate on the basis of the comments made by the Committee of Experts and with the participation of the social partners and civil society. He added that labour law reform was a continuous process. Any comments made by the Committee of Experts, after it had examined the new legislation, could therefore be taken on board by the Portfolio Committee.

The Worker members requested the Government as a matter of urgency to provide the information requested by the Committee of Experts in its annual report. Noting the Government's lack of good will and its refusal to accept a direct contacts mission, they asked for the conclusions of the Committee on this case to be placed in a special paragraph of its report.

The Employer members associated themselves with the statement made by the Worker members.

The Government representative emphasized that cooperation at the political level with a view to addressing the problems faced by his country was under way with the participation of such eminent persons as the Presidents of Nigeria, South Africa and Malawi. He therefore expressed the view that those who were trying to participate in the political process in his country were failing to respect the fact that African countries were capable of resolving their problems on their own. Moreover, the ILO technical cooperation project funded by Switzerland constituted a sufficient basis for making progress, whereas a direct contacts mission would be more political in nature and its aims were already covered by the presidential cooperation to which he had already referred.

The Committee took note of the written information submitted by the Government, the oral statement made by the Government representative and the ensuing discussion. The Committee noted once again that the comments of the Committee of Experts dealt with problems relating to the application of Article 2 (protection against acts of interference), Article 4 (promotion of collective bargaining) and Article 6 (scope of application) of the Convention.

The Committee noted the Government's statement that in the context of the ongoing reform of the labour legislation, the amendments to the Labour Relations Act adopted on 7 March 2003 and that the statutory instrument on the protection of workers' organizations against acts of interference by employers' organizations and vice versa had been adopted in 2003. Noting that the Committee of Experts had made certain comments on the provisions of the draft amendments transmitted with the Government's report, the Committee considered that it would be appropriate for the Committee of Experts to examine the conformity of the amended legislation with the provisions of the Convention.

The Committee nevertheless noted with concern the allegations made concerning the persistent violations of the Convention in law and in practice. The Committee expressed firm hope that in the very near future the necessary measures would be adopted to guarantee that the rights set out in the Convention were effectively applied to all workers and employers, and to their organizations. The Committee requested the Government to provide detailed information in this regard in its next report so that it could be examined by the Committee of Experts.

The Committee noted that the Government was willing to accept technical assistance and requested it to accept a direct contacts mission to examine the whole situation in situ and to inform the Committee of Experts on legislative developments and on the outstanding issues. The Committee decided to include its conclusions on this case in a special paragraph of its report.

The Government representative emphasized that cooperation at the political level with a view to addressing the problems faced by his country was under way with the participation of such eminent persons as the Presidents of Nigeria, South Africa and Malawi. He therefore expressed the view that those who were trying to participate in the political process in his country were failing to respect the fact that African countries were capable of resolving their problems on their own. Moreover, the ILO technical cooperation project funded by Switzerland constituted a sufficient basis for making progress, whereas a direct contacts mission would be more political in nature and its aims were already covered by the presidential cooperation to which he had already referred.

Individual Case (CAS) - Discussion: 2002, Publication: 90th ILC session (2002)

The Government has supplied the following information.

The major observation is that the Government's report has not been received by the Committee. Information is being requested in respect of the Committee's previous comments; it is contended, however, that the information has long been submitted. In the event that it was not received, herewith the Government's formal response.

1. Article 2 of the Convention

The concern of the Committee is that over and above sections 7, 8 and 9 of the Labour Relations Act, which guarantee protection against interference of or by and between unions, there is an undertaking under section 10 that the Minister may prescribe by notice acts/conduct which may be deemed to erode the right to organize and bargain collectively. The observation is that there has been no such notice by the Minister. The position, however, could well be that other than those instances mentioned in section 7 or those deemed to be unfair labour practices under sections 8 and 9, there have been no instances warranting publication of a notice prescribing certain conduct to be an unfair labour practice. It may perhaps be appropriate to provide for the unions or any other person to bring to the consideration of the Minister or Board issues or instances which they may wish the Minister to prescribe as unfair labour practices or instances of interference.

2. Article 4 of the Convention

(a) The Committee is concerned about sections 98, 99, 100, 106 and 107 of the Labour Relations Act which empower labour authorities to refer disputes to compulsory arbitration. It is the Committee's view that dispute settlement should not be curtailed or abruptly cut by reference to arbitration. The Committee suggests that measures should be taken to "encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employer organizations and workers' organizations by means of collective agreements ..." per Article 4. In our proposed amendment Bill, HB 19, which is currently before Parliament, sections 98, 99 and 100, which specifically relate to referrals to arbitration, and not 102 and 106, are being sought to be repealed. In the current Act under section 98, the Labour Relations Officer simply formed an opinion that a matter required arbitration and referred it to arbitration. However, under the amendment "Before referring a dispute to compulsory arbitration, the Labour Officer shall afford the parties a reasonable opportunity of making representations on the matter ...". Thus, the parties will be heard, they may consent (i.e. voluntary) or dispute and a determination will be made. This amendment should indeed address the issue of voluntariness provided for in Article 4. The issue raised in comment No. 2 is being redressed.

(b) Section 17(2) and Section 22 of the Labour Relations Act

(1) The Committee is concerned that section 17(2) of the Labour Relations Act provides that regulations made by the Minister in terms of section 17(1) to regulate "the development, improvement, protection, regulation and control of employment conditions and conditions of employment" supersede any other statutory instrument, agreement, or arrangement whatsoever, is too restrictive, and amounts to interference of the right to organize and collective bargaining. The suggestion is that any agreement however between parties to collective bargaining should be paramount. The same concern is raised with section 22 which empowers the Minister to fix a maximum wage and benefits, allowances, bonuses or increments. It is said these restrictions only apply in exceptional circumstances. It would be appropriate to note also that under Article 4 the measures which are to be taken to ensure exercise of that right are "appropriate to national conditions ...". In a sense the right is not absolute.

However, and most importantly, with regard to section 17(2), and the supremacy of ministerial regulations over agreements, it is observed that in terms of the new amendment HB 19 the power of the Minister to make the regulations is to be exercised "in consultation with the appropriate advisory council, if any, appointed in terms of section 19".

In the current Act, the Minister simply made regulations. With the amendment coming into force, any semblance of arbitrariness has been removed, and the regulations which the Minister makes will be informed, practical, and borne out of consultation and hence appropriate to national conditions, in keeping with Article 4. These advisory boards are appointed on a tripartite forum (see section 19).

Section 17(2) itself is being amended so as to ensure that the regulations would not derogate from any rights or better conditions that a party had prior to the regulations. As such the regulations would not supersede any agreements/arguments hitherto existing, nor do they bar the award of greater benefits than those provided for. In other words the regulations would provide for a basic minimum. The new section 17(2) will definitely be in accord with Article 4 of Convention No. 98.

(2) Section 22

In light of amendments to section 17(2), the current section 22 may no longer be valid, for section 22 provides for ceilings to maximum wages and benefits. However, should it be deemed valid, to an extent it takes into account "national conditions" as the Minister consults with the Minister of Finance before he fixes the maximum wages, which is not inconsistent with the conditions envisaged under Article 4.

(3) In sections 25, 79 and 81 vis-à-vis Article 4 the Committee is concerned that collective bargaining agreements are made subject to approval by the Minister as to whether they are consistent with national laws, and international labour laws and their inequitability or otherwise to consumers or the public and any party to a collective agreement. The Committee expresses the view that this power of approval under the Convention may only be exercised to determine whether there are no procedural flaws in the collective bargaining agreement or it does not conform to minimum standards laid by labour legislation. This may well be covered by section 17(2) which provides for basic minimums in agreements.

Article 4 of Convention No. 98, unless otherwise specifically repealed/amended, does not seem to provide for intervention where only procedural flaws in the bargaining process exist, or where there is only need to check for conformity with minimum standards. Quoting it in extenso it reads "Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations, with a view to the regulation of terms and conditions of employment, by means of collective bargaining ...".

The new section 25(A) also gives recognition and weight to collective bargaining agreements negotiated by works councils at establishments. This should minimize interference by the authorities as long as the agreements are consistent with national laws. It will be observed that Article 4 itself recognizes the authority of national conditions by promoting the taking of measures "appropriate to national conditions ..." which should include national laws. The current position has the effect of avoiding unlawful agreement in the national context or those inconsistent with international labour laws to the prejudice of one or other of the parties. It is a system of checks and balances which is being provided for.

3. Article 6 of the Convention

The concern of the Committee touches on section 20 of the Public Service Act (Chapter 16:04) which provides for consultation between the Public Service Commission and "recognized associations and organizations in regard to the conditions of service of members of the Public Service who are represented by recognized associations/organizations concerned ...". The concern also further touches on S.I. 141/97 which provides for a Public Service Joint Negotiating Council, whose objective shall be to engage in mutual consultations upon and negotiate salaries, allowances and conditions of service in the Public Service (section 3(1)).

The actual concern of the Committee is that this set-up may be contrary to the provisions of the Convention's Article 6 which provides "This Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way". The question of the Committee is "whether public servants not engaged in the administration of the State negotiate collective agreements as well as participate in consultation discussions ...".

The current position is that under section 14 of the Public Service Act certain categories of employees are excluded from the Public Service Act. As such, section 20 would not apply to them, nor would S.I. 141/97. This category of persons includes:

(a) Judges

(b) Members of the Commission

(c) Members of a corporate body established under an Act of Parliament

(d) Defence forces

(e) Members of organization responsible for security in the President's office

(f) DDF trustee employees

(g) Director of state lotteries

(h) Anyone declared not to be part of public service

In fact these employees do not have recognized organizations or associations representing them, or any at all, for instance:

(1) Conditions of service of judges are provided for under the Constitution and the Judicial Service Commission.

(2) Those of the army, police and prisons fall under their own Act of Parliament and/or their respective commissions.

(3) The rest who are excluded are governed by the various acts which create them.

The reason for exclusion of all or most of these is not necessarily that they are working in an essential service for, in the strict sense of the term, it means "those services the interruption of which would endanger the life, personal safety and health of the whole or part of the population, and in case of acute national crisis".

In direct answer to the Committee's question, there is no current law providing for the right to organize and to collective bargaining of the workers excluded from the Public Service Act.

In addition, before the Conference Committee, a Government representative referred to the written information submitted by his Government. This same report had originally been sent to the Office well before the last session of the Committee of Experts, even though the Committee had indicated that it had not been received. He therefore raised the question as to whether the case should now be under examination by the Committee, since his Government had complied with its reporting obligations.

He added that the issues raised with regard to protection against interference in the activities of trade unions were being addressed in the Bill which was being prepared to amend the legislation. On the subject of the need for approval by the Minister for collective bargaining agreements, he said that this process was merely required to prevent procedural flaws and to ensure that the agreements were in accordance with the law. With regard to the right of negotiation of employees covered by the Public Service Act, he emphasized that the agreements reached in the Joint Negotiating Council also benefited any employees who were excluded from the Act, such as judges and members of the police force. He hoped that these clarifications of the written information supplied were helpful.

The Worker members considered that the date on which the Government had submitted its report was a matter to be determined by the Committee of Experts. They recalled that this case concerned one of the most fundamental rights of workers, which could be best exercised within an environment that guaranteed peace, democracy, social justice, respect for human rights and the rule of law. Unfortunately, the latter had become rare in Zimbabwe in recent times. The right to organize and collective bargaining was enshrined in the ILO Constitution, the Declaration of Philadelphia and the Declaration on Fundamental Principles and Rights at Work. Indeed, the Committee on Freedom of Association had emphasized that, by virtue of its Constitution, the ILO was established in particular to improve working conditions and to promote freedom of association in the various countries. As a consequence, the matters dealt with by the ILO in this connection no longer fell within the exclusive sphere of states and the action taken by the ILO in this respect could not be considered interference in internal affairs, as they fell within the terms of reference received by the ILO from its members with a view to attaining its aims. As a result, the Government could not hide behind the fact that it had not yet ratified Convention No. 87, which was one of the Conventions whose principles had to be respected by virtue of being a member of the ILO. Accordingly, if the Worker members touched on the issues that impeded the exercise of free collective bargaining rights and workers' rights in general, this would not constitute a deviation from the main subject under discussion.

The Worker members emphasized that the freedoms of workers were systematically violated in the country and that interference in their affairs was sponsored. Over and above the legislative deficiencies cited by the Committee of Experts, acts of violence were organized by government-supported groups and individuals, who invaded employers' premises and demanded that recognition of legitimate unions be ended in their favour. The Worker members called upon the Government to fulfil its duty to ensure that jungle justice did not find its way into the workplace. The above practices, in addition to undermining collective bargaining rights, also caused job losses, company closures and economic problems. The ratification of a Convention by any government was a voluntary exercise of its sovereignty, but involved a commitment that effect would be given to the Convention in both law and practice. In the present case, the Government was in clear violation of both Articles 1 and 2, of the Convention. The Worker members therefore believed that it would be in the interests of peace and social justice for the ILO to send a direct contacts mission to the country with a view to contributing to the resolution of the problems of application of the Convention. A tripartite mission should also be organized to assess the situation in the country and advise the social partners accordingly on the measures to be taken for the achievement and maintenance of peace and social justice.

The Employer members recalled that, as the application of the Convention by Zimbabwe had not been referred to in the report of the Committee of Experts for the past two years, the Conference Committee had had no basis for discussing it. However, when adopting the list of cases the previous year, they had already announced the need to examine the case. The fact that the Government had neither submitted its reports nor replied to the comments of the Committee of Experts demonstrated its lack of collaboration. This had been underlined by the fact that the statement of the Government representative had been devoted in large part to putting forward reasons why this case should not be examined by the present Committee. The information submitted by the Government had replied to a number of issues raised by the Committee of Experts. It would therefore be appropriate to wait until the Committee of Experts had analysed this information. This was not because the Conference Committee doubted its capacity to analyse the case correctly, but because it was not possible for it to verify the legislation referred to, or to examine whether there were any further issues raised by the provisions not cited by the Government.

The Committee of Experts had raised several points, the first of which concerned the protection of workers' and employers' organizations against acts of interference by the State in matters pertaining to the internal affairs of the organizations. However, the Employer members considered that the criteria for the interference by the minister were not clear.

The next point raised by the Committee of Experts concerned the issue of compulsory arbitration which could be imposed by the labour authorities whenever they considered it appropriate. The Employer members agreed with the Committee of Experts that compulsory arbitration should only be imposed under certain conditions. However, the issue was rendered more difficult by the fact that collective agreements had a different legal nature in different countries. They could constitute statutory and therefore binding provisions, or simple recommendations, or that could be made binding by an act of authority, depending on the country. The legal nature of collective agreements therefore had to be determined before addressing the issue of compulsory arbitration. Moreover, compulsory arbitration itself was subject to differing interpretations, depending on whether the obligation related to the need to submit a dispute to arbitration or to the binding nature of the arbitration findings.

With regard to the provisions in the Labour Relations Act empowering the minister to set a minimum wage and maximum amounts of benefits, allowances, bonuses or increments, which were interpreted by the Worker members as limiting the right to collective bargaining, the Employer members recalled that trade unions were sometimes very much in favour of public authorities determining these amounts. They nevertheless agreed that these provisions did indeed constitute a limitation of the right of the social partners to engage in collective bargaining, the promotion of which was the objective of the Convention.

On the subject of the Public Service Act of 1996, which only provided for consultation with associations and organizations of public servants, the Employer members welcomed the approach adopted by the Committee of Experts of first requesting the Government to indicate the various groups of workers in the public service. They recalled in this respect that the right to collective bargaining also applied to public servants other than those engaged in the administration of the state.

In conclusion, the Employer members observed that there was a considerable lack of cooperation by the Government, not only with the ILO, but also with the social partners at the national level. They urged the Government to take into account the progress that needed to be made in the country through collaboration with the social partners. Moreover, they called upon the Government representative to indicate clearly whether he considered that a direct contacts mission to his country would be helpful and whether his Government would welcome such a mission.

The Worker member of Zimbabwe welcomed the comments of the Committee of Experts concerning the deficiencies in the Labour Relations Act, and particularly with regard to the right to organize and the need for free collective bargaining without external interference. He recalled that the Act was in the process of being amended and that this process had started in 1993. In this context, he referred to the cases of workers who were being dismissed because they belonged to a particular union as a result of activities by members of the Zimbabwe Federation of Trade Unions (ZFTU). He expressed concern that the Government was taking no action to prevent these unlawful activities by the ZFTU. He added that the ZFTU had been given the freedom to organize by coercive means, intimidation and unlawful behaviour. When the ZFTU turned its attention to a company, it would coerce workers to join its labour centre under the threat of being labelled opposition supporters. Where workers resisted, the ZFTU endeavoured to intimidate the employer. In some cases, employers were so frightened that they succumbed to the intimidation. He emphasized that the ZFTU had no negotiating structure. In contrast, the Zimbabwe Congress of Trade Unions (ZCTU) insisted on complying with the labour legislation in the country in its organization, recruitment and negotiation practices. Unfortunately, the Government did not appear to appreciate this approach to industrial relations.

He expressed the firm hope that at some stage the Government would realize that this situation was not good for the country. If Convention No. 98 was to be complied with, interference from undemocratic trade union organizations needed to be discouraged. Much progress needed to be made in the labour relations situation in his country, which was no longer subject to democratic process. He therefore called for a direct contacts mission to bring his country back to a more democratic industrial relations system.

The Worker member of Norway, speaking on behalf of the Nordic Workers' group, praised the brave fight and opposition of Zimbabwean workers over recent years against the grave violations committed by the Government. She said that there had been moments when she and her colleagues had been unsure whether they would see them safe and alive again. The violations of fundamental human and trade union rights in the country were so grave, that those currently under discussion constituted a mere fraction of the many attacks by the Government on the ZCTU. In recent times, the national authorities had shown no respect for ordinary labour laws. ZCTU meetings had been cancelled by the authorities and permission had even been refused to hold the annual commemoration of the death of over 400 workers in 1972 at the Hwange coal mine. Peaceful demonstrations had been declared illegal and trade union activists had been threatened, abducted and beaten. Visits by trade unionists from other countries had been prevented. Moreover, the establishment of another trade union central organization by the Government had not been carried out in good faith, but with a view to stifling the voices of workers and of the ZCTU.

The comments of the Committee of Experts showed that the Labour Relations Act and the Public Service Act were not in compliance with Article 2 of the Convention, which provided protection against Government interference. The imposition of compulsory arbitration whenever the labour authorities wished was also in violation of the Convention. Moreover, under the Labour Relations Act, collective agreements had to be approved by the authorities, in clear breach of the Convention. For many years, the authorities had refused to allow public servants not engaged in the administration of the state to negotiate collective agreements. Further restrictions were also being imposed through labour legislation. The spirit of collective bargaining, freedom of association and the right of workers to join a trade union of their own free will seemed to have been replaced by coercion, threats and intimidation. The ZCTU faced a threat to its very existence following the adoption of the Public Order and Security Act. Recourse through the courts was to no avail, as court rulings were flouted by the authorities. Action was required to improve matters on all of these questions and there was undoubtedly a need for a direct contacts mission to help the authorities rewrite the labour laws in accordance with the Convention.

The Worker member of Malawi noted with concern the interference by the Government in the activities of the ZCTU, in violation of the principles of freedom of association. It was clear from the report of the Committee of Experts that workers' rights in the country were being undermined. In the same way as any other citizen in Zimbabwe, workers had the constitutional right to express their views freely. Yet, the authorities had interfered with trade union meetings under the pretext of the public interest. This was particularly hard to understand in view of the Government's earlier support for the interests of workers. He feared that this situation might have the effect of jeopardizing workers' rights in neighbouring countries. In view of the essential nature of the contribution of workers to development, it was vital that measures be taken to resolve these issues rapidly. He called upon the Committee of Experts and the present Committee to take up the issue and urged the Government to take action as soon as possible so that justice could prevail in the country.

The Worker member of South Africa expressed deep concern at the violation of human and trade union rights and the breakdown of the rule of law in Zimbabwe, which were of serious concern to all the social partners in South Africa. He recalled that the case had been under examination since 1993 and that the Government had undertaken to draft a bill that would be in conformity with the provisions of the Convention. Nevertheless, legislation had still not been adopted ten years later. What was at issue was not only the Labour Relations Act and the Public Service Act, but also the security legislation, which affected the operations of the ZCTU, and the government-backed violence and intimidation against the ZCTU's members and leadership. The labour legislation placed limitations on collective bargaining and encouraged employers to set up workers' committees to undermine the regular trade unions. The Public Service Act denied the right of public servants to join unions. Moreover, the legislation contained a long and cumbersome procedure to be followed before workers went on strike. The definition of essential services in which strikes were prohibited was also too wide. In essence, all strikes were illegal. Moreover, export processing zones were exempt from the provisions of the labour legislation and workers in the zones were denied legal representation and the right to strike. The situation had been aggravated over the past two years by the systematic violence and intimidation against trade union leaders. He therefore called upon the Government to accept a direct contacts mission to resolve these issues.

The Employer member of Norway expressed deep concern at developments in Zimbabwe and urged the Government to take all the necessary action to comply with the Convention, based on the comments of the Committee of Experts. However, he made a legal remark concerning the conclusions of the Committee of Experts in paragraph 2 of its observation concerning compulsory arbitration. The statement concerning the criteria to be used in order to refer a conflict to compulsory arbitration was, in his view, too narrow and was not supported by the text of the Convention, nor the circumstances or intentions. He recalled that the legal basis for this opinion was comprehensively set out in the Employers' handbook on ILO standards-related activities, published by the ILO in 2001. In his opinion, a country which recognized the full right to strike and had, as a national assembly or parliament which supervised the government, the right under ILO Conventions to refer a strike to compulsory arbitration in exceptional cases, also had the right to refer a strike to compulsory arbitration when it affected the economy of the country and third parties in a serious way. Nevertheless, the parties should be afforded every opportunity to negotiate and no dispute should be referred to compulsory arbitration until it was clear that a strike would take place, and normally not until its effects could be monitored and evaluated. In the present case, it was clear that the powers vested in the authorities to refer a conflict to compulsory arbitration in Zimbabwe were far too extensive. He therefore urged the Government to make the necessary amendments to its legislation.

The Government member of Finland, also speaking on behalf of the Government members of Denmark, Iceland, Norway and Sweden, said that the situation in Zimbabwe gave rise to concern. She noted the information provided by the Government representative on the Bill to amend the Labour Relations Act. However, it appeared that the Bill did not adequately address the discrepancies between the requirements of the Convention and the national legislation. According to the information provided, the Government still appeared to be able to use its authority to decide the extent to which the Convention was applied in practice. She therefore urged the Government to ensure that the Committee of Experts received its report and a copy of the new Bill without delay so that it could assess whether the amendments complied with the provisions of the Convention. She also urged the Government to take the necessary measures to ensure that workers who were excluded from the Public Service Act enjoyed the right to organize and collective bargaining.

The Worker member of Greece supported the statements made by the Worker members and expressed his solidarity with the workers of Zimbabwe. The written response of the Government, was not plausible and was far from being satisfactory. Article 4 of the Convention, which provided that measures appropriate to national conditions should be taken, where necessary, to encourage and promote the utilization of machinery for voluntary negotiation of collective agreements, should not be interpreted in a manner which disregarded the reasons why the Convention had been adopted. The Convention provided that the law had to guarantee the right to free collective bargaining. Citizens had the duty to obey the law, but only when it was a product of democratic process and was in conformity with the Constitution of the country. Furthermore, national law had to respect international conventions signed by the country. Serious allegations had been made and they had to be mentioned in the conclusions. A direct contacts mission should also be sent to Zimbabwe, as requested by the Employer and Worker members, to ensure that the Convention was applied and that workers and citizens had the right to freedom of association, and to freedom in general.

The Employer member of Zimbabwe recalled that the information received from the Government needed to be analysed by the Committee of Experts before the present Committee could examine the case or propose a direct contacts mission. While a discussion of the information provided by the Government was acceptable in the present Committee, its members should refrain from discussing general issues concerning Zimbabwe. In particular, any reference to what he called pseudo-unions was entirely judgemental. He indicated that employers in the country were not in a position to judge whether an organization was good or bad, but that they merely had to deal with the organizations that their workers joined. However, he said that the ZCTU gave rise to problems because it was an organization that was of a political nature. It had founded a political party and withheld recognition of the Government. It was extremely difficult to enter into constructive social dialogue with an organization of that nature. He indicated that many individual workers complained that the union was taking an overly political stance in many of its activities. He emphasized that the right to freedom of association did not prevent the existence of more than one trade union central organization. In conclusion, he urged the Committee to follow the proper procedure and not to propose measures such as a direct contacts mission until it had had the opportunity to review the analysis of the case by the Committee of Experts, based on the information provided by the Government.

A Government representative (Minister of Public Service, Labour and Social Welfare) thanked the speakers for their comments. He recalled that the Government, far from opposing trade unions and political parties, had fought for their inclusion in society when they had been severely weakened by the previous regime. It was not possible for the Government to ban a trade union or employers' organization, even though the situation in his country was somewhat volatile as a result of the economic conditions, which affected the livelihood of both employers and workers. The measures that were currently being taken were designed to empower the people through the redistribution of land and the development of industry. He reaffirmed that it was the role of the Government to be extremely sensitive to developments at the workplace and recalled that collective bargaining had been practised for many years. Workers in an economy with a surplus of labour were subject to an unequal playing field and it was therefore beneficial to determine minimum and maximum wages with a view to improving their situation. He recalled that the minimum wage had been negotiated by the social partners, including the ZCTU, which had been considered the most representative workers' organization at that time. He denied that the Government interfered in collective bargaining and explained that the role of the Ministry was to put the terms of collective agreements into law through enabling measures, without altering what had been agreed to. He also indicated that, although the amendments to the labour legislation had been slow, the Labour Relations Act would be amended later in the year.

He recalled that this information had been provided to the Committee of Experts in the Government's report the previous year. His Government was fully aware of its responsibilities and would provide any other information required by the Committee of Experts. He added that the analysis of the Public Service Act by the Committee of Experts had not been correct. Although certain categories of public servants were excluded from collective bargaining, such as judges and the defence forces, their conditions were subject to negotiation in the respective commissions.

He regretted that the comments by certain speakers had gone beyond the matters raised in the observation of the Committee of Experts. He took exception to the inference that the rule of law was not observed in his country and to any allegation that his Government was responsible for the harassment of workers. While the authorities were required to use violence to deal with individuals who resorted to violence, certain of the comments made had constituted propaganda against his country. The ILO should be used as a forum to improve the labour market, not for propaganda purposes. Although his Government was pleased to receive assistance from the ILO, he believed that a direct contacts mission would be premature. The correct procedure should be followed, with the matter first being dealt with by the Committee of Experts, which should request further information on any issues that were not clear. He recalled that negotiations were still under way on amendments to the labour legislation. When the Bill had been adopted, the new legislation would be sent to the Committee of Experts for its examination.

The Employer members urged the Government to encourage the participation of the social partners in improving the situation and in preparing new labour legislation. They regretted that the Government had not submitted reports to the Committee of Experts in recent years and that this year's report had not arrived in time. They also regretted the refusal by the Government representative to accept a direct contacts mission and called upon the Government to provide a full report to the Committee of Experts as soon as possible, with full accompanying documentation. Based on the analysis of this report by the Committee of Experts, the Conference Committee would decide next year whether its conclusions on the case should be placed in a special paragraph of its report.

The Worker members objected to a number of derogatory comments that had been made during the discussion which had called into question democratically elected workers' leaders and their right to participate in international organizations. They recalled the need for the members of the Committee to observe moderation in their language and expressed the belief that the comments made by the Employer member of Zimbabwe were not endorsed by the Employer members as a whole. Turning to the issues under discussion, they emphasized that the fundamental right to collective bargaining could only be given full effect in the absence of interference by other parties. This right was not observed in practice when the results of collective bargaining, namely collective agreements, had to be approved by a third party. The Worker members were not opposed to a multiplicity of organizations, provided that all of the organizations were genuine and complied with the law, and were not imposed by the use of force. They recalled that the Government had a duty to protect both workers and employers from thugs who hijacked collective bargaining rights at the shop-floor level. In this respect, they regretted that the Government was not prepared to receive an ILO direct contacts mission, which could be instrumental in preparing amendments to bring the labour legislation into conformity with the Convention and to improve the general situation with regard to freedom of association and trade union rights. The Worker members looked forward to examining the case once again next year. If no progress had been made and the Government demonstrated a similar attitude on that occasion, the Committee's conclusions should be set out in a special paragraph of its report.

The Worker members stated that if the arrogant attitude demonstrated by the Government were to continue, they would have to recommend a special paragraph the next time the application of this Convention by Zimbabwe was examined.

The Committee took note of the written information submitted by the Government, of the statement made by the Government representative and of the ensuing discussion. The Committee noted that the comments of the Committee of Experts dealt with problems in respect of the application of Article 2 of the Convention (protection against acts of interference), Article 4 (promotion of collective bargaining) and Article 6 (scope of application). The Committee noted that the amendments made to the legislation on collective bargaining were currently before Parliament. It expressed the firm hope that such amendments would eliminate all remaining obstacles to the right to free collective bargaining in law and practice. It requested the Government to transmit the Bill to the Committee of Experts. On the other points raised in the comments of the Committee of Experts (protection against acts of interference and scope of application of the Convention), the Committee requested the Government to take the necessary measures urgently, in full consultation with the social partners concerned, to ensure that workers' and employers' organizations were effectively protected against acts of interference, and so that public servants not engaged in the administration of the State enjoyed the right to collective bargaining. The Committee suggested that the Government should have recourse to an ILO mission to contribute to the resolution of the problems of application of the Convention. In the event that the Government did not accept such a mission, the Committee would take the appropriate measures in this respect next year. The Committee finally requested the Government to provide detailed information in this regard to the Committee of Experts so that the Conference Committee could examine this case next year.

The Worker members stated that if the arrogant attitude demonstrated by the Government were to continue, they would have to recommend a special paragraph the next time the application of this Convention by Zimbabwe was examined.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the observations submitted by the Zimbabwe Congress of Trade Unions (ZCTU) and by the International Trade Union Confederation (ITUC), both received on 1 September 2022, which refer to issues addressed by the Committee in the comment below.

Collective bargaining and the COVID-19 pandemic. The Committee previously requested the Government to provide its comments on the allegations of the ZCTU and the ITUC pertaining to: (i) the serious decrease of collective bargaining during the COVID-19; (ii) the lack of discussion before the Tripartite Negotiating Forum (TNF) of issues relating to the protective measures against COVID-19; and (iii) the rendering of the Bipartite Negotiating Panel for the health sector useless by the Government.

The Committee notes the Government’s indications that, whilst the COVID-19 pandemic impacted the labour market, there were minimal effects on the collective bargaining processes. In sectors affected by lock-down measures, innovations such as virtual and digital platforms were embraced with a view to ensuring continued negotiations and collective bargaining. The Government indicates that 56, 64 and 72 collective bargaining agreements have been registered in 2019, 2021 and 2022, respectively. The Government further indicates that, along with social partners under the auspices of the TNF, it agreed to a national minimum wage in 2020 to prop up negotiations across various sectors in light of challenges brought by COVID-19. The TNF held discussions on the management of the pandemic and containment measures, resulting in proposals that were adopted by the Government. The Government points out that collective bargaining in the health sector was never suspended, as there have been eight reviews on the conditions of service of the health sector during the pandemic period which saw frontline and essential workers getting improvements in their sector specific allowances. Consequently, the Government indicates that the Bipartite Negotiating Panel in the health sector was functional during the COVID-19 pandemic.

Follow-up to the 2009 recommendations of the Commission of Inquiry appointed under article 26 of the Constitution of the ILO

Legislative developments

The Committee had previously noted with concern that, despite its numerous requests, some of which predate the 2009 Commission of Inquiry, there was no concrete progress in amending both the Labour Act and the Public Service Act so as to bring them into conformity with the Convention. The Committee expected that the labour and public service legislation would be brought into conformity with the Convention without further delay in full consultation with the social partners and requested the Government to provide information on all progress made in this regard.

Labour Act. In its previous comment, the Committee had noted the Government’s indication that the outcome of the tripartite consultations on the draft of the Labour Amendment Bill had been consolidated and integrated into the Bill. The Committee notes that the Bill is now before the Parliament. The Committee notes with concern that according to the most recent ZCTU’s observations, several sections of the Labour Amendment Bill go against the agreed Principles and the legislative changes previously requested by the supervisory bodies of the ILO. In this respect, the Committee notes the Government’s indication that the Bill might further be amended during the parliamentary discussions so as to take into account technical comments of the ILO. The Government expects the Bill to be adopted in the near future. The Committee expects that the Labour Amendment Bill will be brought into full conformity with the Convention without further delay. The Committee requests the Government to provide information on all progress made in this respect.

Public Service Act and the Health Services Act. The Committee notes the Government’s indication that a consultative workshop to discuss the Public Service Amendment Bill was held in March 2022 where all stakeholders, including the social partners and the TNF, were invited to partake in. The Bill went through peer review a month later and its drafting was concluded by the Attorney General’s Office before being submitted to the Public Service Commission and the Ministry. The Bill has been submitted to the Cabinet Committee on Legislation, which, the Government expects, will consider the Bill before the end of October 2022. Regarding the Health Service Act, the Government indicates the first reading of the Health Service Amendment Bill was carried out in June 2022 and the Parliamentary Portfolio Committee on Health has concluded public hearings and consultations. The Committee expects that the health and public service legislation will be adopted without further delay and requests the Government to provide information on all progress made in this respect.

Article 4 of the Convention. Promotion of collective bargaining. The Committee had previously requested the Government to provide information on the application of the Convention in practice in the special economic zones and to indicate the number of collective agreements in force for such zones. The Committee notes the Government’s indication that the Labour Act is the principal act that governs the employment issues, including collective bargaining in the special economic zones. Therefore, no separate collective agreements were concluded or gazetted under the Zimbabwe Investment Development Agency Act, as all collective bargaining agreements are still guided by the Labour Act. Establishments in special economic zones are covered by their respective collective bargaining agreement relating to the classification of their undertakings. The Committee requests the Government to provide information on the number of collective agreements concluded and in force, the sectors concerned, and the number of workers covered by these agreements.

Application of the Convention in practice

Article 1. Adequate protection against acts of anti-union discrimination. The Committee notes with concern the ZCTU’s numerous allegations of acts of anti-union discrimination. The ZCTU refers, in particular, to the following alleged instances: (i) the President of the Zimbabwe Petroleum and Allied Workers Union (ZIPAWU) was suspended from employment after addressing a press conference in his capacity as a trade union president condemning corruption in the company; (ii) four trade union leaders were dismissed as they were preparing to participate, on behalf of the National Railways Union, in a conciliation meeting over the 2022 wage dispute in March 2022; (iii) an enterprise whose employers are protected under the Look East Agreement unlawfully dismissed an employee, disregarded a ruling by the National Employment Council for Textile Industry and ignored appeals by the trade union; and (iv) anti-union discrimination in the mining sector, where some companies have not complied to the conditions and terms prevailing in the collective bargaining agreements. With reference to its previous request to continue engaging with the social partners on all issues of application of the Convention in practice and to ensure that all allegations of violation are promptly investigated, the Committee requests the Government to provide its comments on these serious allegations of anti-union discrimination and to continue to provide information an all measures taken in consultation with the social partners to prevent cases of anti-union discrimination in practice.

The Committee had previously requested the Government to provide information on any developments regarding an electronic case management system, which would assist in tracking labour dispute cases, particularly those relating to anti-union discrimination. The Committee notes the Government’s indication that the procurement process of the hardware equipment is underway, and the Harare Institute of Technology innovation hub, which has been engaged by the Ministry of Public Service Labour and Social Welfare, is in the process of finalizing the development of the system. The Committee requests the Government to provide information on any further developments in this respect.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the observations submitted by the International Trade Union Confederation (ITUC) and the Zimbabwe Congress of Trade Unions (ZCTU), received on 16 and 29 September 2020, respectively, which refer to the issues addressed by the Committee in the present comment. The Committee further notes that the ZCTU also alleges that collective bargaining rights have been seriously diminished during the COVID-19 era as some employers have taken advantage of the pandemic and ignored the call for negotiations to alleviate the plight of workers. Finally, the ZCTU indicates that it brought some of the issues relating to the protective measures against COVID-19 to the Tripartite Negotiating Forum (TNF) but no discussions have taken place. The Committee notes that, similarly, the ITUC alleges that the Government has unilaterally declared that it would not be engaging in any form of collective bargaining in the health sector, thereby rendering the Bipartite Negotiating Panel for the health sector useless. The Committee requests the Government to provide its comments thereon.

Follow-up to the 2009 recommendations of the Commission of Inquiry appointed under article 26 of the Constitution of the ILO

Labour law reform and harmonization

The Committee had previously noted with concern that, despite its numerous requests, some of which predate the 2009 Commission of Inquiry, there was no concrete progress in amending both the Labour Act and the Public Service Act so as to bring them into conformity with the Convention. It had therefore urged the Government to make all necessary efforts to ensure that the process of reviewing the labour and public service legislation with a view to ensuring its conformity with the Convention would move forward without further delay and in full consultation with the social partners.

Labour Act. In its previous comment, the Committee had noted the Government’s indication that following the adoption of the Labour Law Reform Principles by the Cabinet, in December 2016, and a number of consultative meetings held in 2017 and 2018, the final draft of the Labour Amendment Bill was finalized and ready to be tabled before Cabinet and then Parliament. The Committee had, however, noted with concern the ZCTU’s allegation that the draft of the Labour Amendment Bill deliberately ignored the Committee’s observations and did not include any provision setting clearly the protection of workers and their representatives against anti-union discrimination.

The Committee notes the Government’s indication that the draft Bill had been thoroughly examined by the Government and the social partners at a stakeholders’ meeting convened from 30 September to 1 October 2019 and that amendments were made taking into considerations the proposals by the social partners. An agreement was reached with the social partners to allow the drafters to polish the Bill in line with the outcomes of the meeting. The revised Bill was submitted to social partners for their comments. The Government points out that while the employers’ side consented to the revised Bill and proposed that the Bill be processed, the labour side submitted new requests for amendments that had not been discussed in previous meetings. These and subsequent requests were submitted to the Attorney General’s Office with the view to finalize the draft Bill. The Government indicates that there has been an agreement to fast track the Bill in its current form to ensure that it is tabled before the 9th Parliament of Zimbabwe as soon as possible.

Public Service Act and the Health Services Act. The Committee had previously noted the Government’s indication that the principles to amend the Public Service Act were approved by the TNF and further consultations were undertaken within the National Joint Negotiation Council (NJNC). The Government had further indicated that the Attorney General’s Office was in the process of drafting the bill and that the social partners would be consulted on the draft.

The Committee notes the Government’s indication that the amendment of the Public Service Act is with the Attorney General’s Office, waiting for necessary constitutional amendments that have a bearing on the Act and that the Constitutional Amendment Bill is currently under Parliamentary public consultations. Regarding the Health Services Act, the Government informs that it is currently embarking on a re-organization exercise of the health sector to address the challenges including those faced during the COVID-19 period. It indicates that there is a commitment for a holistic review of the enabling legislation and that this will also be brought to the TNF for consideration.

The Committee notes with  concern  that according to the most recent ZCTU’s observations, there has been no progress with respect to the legislative changes requested by the ILO supervisory bodies and that the process of the tripartite dialogue on the labour law reform remains uncompleted. The Committee further notes the concerns expressed by both the ZCTU and the ITUC regarding the functioning of the social dialogue institutions, the TNF and the Bipartite Negotiating Panel in the health sector. While noting the information provided by the Government, the Committee expects that the labour and public service legislation will be brought into conformity with the Convention without further delay in full consultation with the social partners and requests the Government to provide information on all progress made in this regard.

Article 4 of the Convention. Promotion of collective bargaining. The Committee had previously noted that section 56(2) of the Special Economic Zones Act (2016) did not recognize the right to collective bargaining and gave the power to determine conditions of work to the Special Economic Zones Authority and the Minister. It had therefore requested the Government to take the necessary measures to amend the Act, in consultation with the social partners, so as to bring it into conformity with the Convention and to provide information on any developments in this regard. 

The Committee notes with interest the Government’s indication that the Special Economic Zones Act was repealed and replaced by the Zimbabwe Investment Development Agency Act (ZIDA). The Committee notes the Government’s indication that pursuant to section 11 of the ZIDA, the Labour Act supersedes any law when it comes to employment issues and that the ZIDA Act has also established a One-Stop Investment Services Centre, which consists of representatives from several government ministries/departments including the Ministry of Labour, who have a mandate to assist and advise investors. The Committee requests the Government to provide information on the application of the Convention in practice in the special economic zones and to indicate the number of collective agreements in force for such zones.

Application of the Convention in practice

Article 1. Adequate protection against acts of anti-union discrimination. The Committee recalls that it had previously urged the Government to take all the necessary measures, without delay, to ensure effective protection against acts of anti-union discrimination in practice. In this respect, it had also requested the Government to provide detailed information on any developments regarding an electronic case management system, which would assist in tracking labour dispute cases, particularly those relating to anti-union discrimination the Government was in the process of developing with the assistance of the ILO.

The Committee notes the Government’s indication that it has developed a concept note, which was shared with social partners and the ILO, leading to the engagement of a consultant in 2019 to develop the Software Requirements Specifications (SRS) of the electronic case management system. The SRS document was submitted to the ILO in May 2020 for standard check. Resources are being mobilized for the procurement of hardware equipment to operationalize the system. The Committee requests the Government to provide information on the developments in this regard.

The Committee recalls that it had also requested the Government to provide its comments on the ZCTU’s allegation of a widespread anti-union discrimination in the construction sector (where several members of the Zimbabwe Construction and Allied Trade Workers’ Union would have been victims of assault and harassment, mainly in multinationals and foreign-owned companies, and their representatives denied access to companies’ premises) as well as on other cases of anti-union discrimination.

The Committee notes that the Government disputes that there is a wide spread anti-union discrimination in the construction sector. It further notes the Government’s indication that all alleged cases were investigated, that it has conducted joint inspections in areas alleged to have anti-union discrimination and has encouraged trade unions to report all such cases. The Committee encourages the Government to continue engaging with the social partners on all issues of application of the Convention in practice and to ensure that all allegations of violation are promptly investigated.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Follow-up to the 2009 recommendations of the Commission of Inquiry appointed under article 26 of the Constitution of the ILO

The Committee notes the observations of the Zimbabwe Congress of Trade Unions (ZCTU), received on 30 August 2019, raising issues addressed by the Committee below.

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments regarding the following issues.

Labour law reform and harmonization

The Committee had previously noted with concern that, despite its numerous requests, some of which predate the 2009 Commission of Inquiry, there was no concrete progress in amending both the Labour Act and the Public Service Act so as to bring them into conformity with the Convention. It had therefore once again requested the Government to provide information on the progress achieved in bringing the labour and public service legislation into conformity with the national Constitution and the Convention.

Labour Act. In its previous comment, the Committee had noted the Government’s indication that following the adoption of the Labour Law Reform Principles by the Cabinet, in December 2016, and a number of consultative meetings held in 2017 and 2018, the final draft of the Labour Amendment Bill was finalized and ready to be tabled before Cabinet and then Parliament. The Committee had, however, noted with concern the ZCTU’s allegation that the draft of the Labour Amendment Bill deliberately ignored the Committee’s observations and did not include any provision setting clearly the protection of workers and their representatives against anti-union discrimination.

Public Service Act and the Health Services Act. The Committee had previously noted the Government’s indication that the principles to amend the Public Service Act were approved by the Tripartite Negotiating Forum and further consultations were undertaken within the National Joint Negotiation Council (NJNC). The Government had further indicated that the Attorney General’s Office was in the process of drafting the bill and that the social partners would be consulted on the draft.

The Committee notes with concern that according to the most recent ZCTU’s observations, the Labour Act, Public Service Act and the Health Services Act have not been amended so as to be harmonized with the Constitution and the Convention. The Committee urges the Government to make all necessary efforts to ensure that the process of reviewing the labour and public service legislation with a view to ensuring its conformity with the Convention will move forward without further delay and in full consultation with the social partners. The Committee requests the Government to provide information on all progress made in this regard.

Article 4 of the Convention. Promotion of collective bargaining. The Committee had previously noted that section 56(2) of the Special Economic Zones Act (2016) did not recognize the right to collective bargaining and gave the power to determine conditions of work to the Special Economic Zones Authority and the Minister. It had therefore requested the Government to take the necessary measures to amend the Act, in consultation with the social partners, so as to bring it into conformity with the Convention and to provide information on any developments in this regard. Noting with concern that according to the ZCTU, there have been no attempts to address this issue, the Committee is bound to reiterate its request and asks the Government to provide information on all progress made in this regard.

Application of the Convention in practice

Article 1. Adequate protection against acts of anti-union discrimination. The Committee had previously requested the Government to provide detailed information on its engagement with the ZCTU regarding cases of alleged anti-union discrimination as compiled by the ZCTU. The Committee had noted the Government’s indication that it had engaged with the ZCTU in December 2016, which led to the resolution of most of the cases, although some could not be traced due to insufficient information. The Government had further indicated that with the assistance of the ILO, it was in the process of coming up with an electronic case management system, which would assist in tracking labour dispute cases, particularly those relating to anti-union discrimination. The Committee had requested the Government to provide detailed information on any developments on this subject. The Committee had also requested the Government to provide its comments on the ZCTU’s allegation of a widespread anti-union discrimination in the construction sector (where several members of the Zimbabwe Construction and Allied Trade Workers’ Union would have been victims of assault and harassment, mainly in multinationals and foreign-owned companies, and their representatives denied access to companies’ premises). The Committee notes with concern the ZCTU’s most recent submission that this issue remains unaddressed and its reference to new cases of anti-union discrimination. The Committee urges the Government to take all the necessary measures, without delay, to ensure effective protection against acts of anti-union discrimination in practice and to submit, in its next report, a detailed reply on the Committee’s previous request and on the ZCTU observations.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the observations of the Zimbabwe Congress of Trade Unions (ZCTU) and the International Trade Union Confederation (ITUC), received on 31 August and 1 September 2018, respectively, as well as the Government’s reply to the ZCTU observations. The Committee also notes the observations of Education International (EI) and the Zimbabwe Teacher’s Association (ZIMTA), received on 1 October 2018, referring to the issues raised by the Committee below.

The Committee takes note of the report of the high-level mission of the Office that took place in February 2017, following the conclusions of the 105th Session of the Committee on the Application of Standards of the International Labour Conference with respect to the application by Zimbabwe of the Convention and the implementation of the 2009 Commission of Inquiry’s recommendations.

Follow-up to the recommendations of the Commission of Inquiry (complaint made under article 26 of the Constitution of the ILO)

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 national Constitution and the Convention.

Labour Act. In its previous comment, the Committee had noted that the Government, in agreement with the social partners, had initiated the amendment of the Labour Act through principles that were adopted by the Tripartite Negotiating Forum (TNF) on 1 September 2016, seeking to harmonize the Act with the Constitution and the Convention on the basis of the ILO supervisory bodies’ comments and to address concerns raised by the ZCTU and the ITUC in 2014 and 2015 regarding anti-union discrimination in the country.

The Committee recalls, in particular, the following principles adopted by the TNF:

• -Principle 2 (collective bargaining) provides for the amendment of sections 25, 79 and 81 of the Labour Act, as well as section 14 of the Labour Amendment Act No. 5, to ensure that collective agreements are not subject to ministerial approval on the grounds that the agreement is or has become “… unreasonable or unfair” or “contrary to public interest”.
• -Principle 4 (collective job action) refers, among others, to the need for clear laws for the protection of workers and their representatives against anti-union discrimination.

The Committee notes the Government’s indication that following the adoption of the Labour Law Reform Principles by the Cabinet, in December 2016, the Government agreed with the social partners to engage a consultant to expedite the drafting of the bill. However, upon completion of work by the consultant, the draft was not accepted by the tripartite constituents. Subsequently, after a number of consultative meetings held in 2017 and 2018 with a view to discuss the drafts of the bill submitted by the Attorney General, the final draft of the Labour Amendment Bill is now finalized and will be tabled before Cabinet and then Parliament. The Committee notes with concern the ZCTU’s allegation that: (i) the draft of the Labour Amendment Bill produced by the Attorney General’s Office deliberately ignored the Committee’s observations despite reminders by the ZCTU and the need to give effect to agreed principles; and (ii) the draft does not include any provision setting clearly the protection of workers and their representatives against anti-union discrimination.

Public Service Act. In its previous comments, 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 Constitution and the Convention. The Committee had previously noted 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 observes that in their latest observations, the ZCTU, EI and ZIMTA affirm that the Government continues to snub the social partners with regard to the amendment of the Public Service Act and that the failure to make legislative changes disadvantages public service employees as both the Public Service Act and the Health Services Act do not recognize the right to collective bargaining, save for consultations in which the employer has an upper hand in decision-making. The Committee notes the Government’s indication that the principles to amend the Public Service Act were approved by the TNF at Pandari in 2014 and further consultations were undertaken within the National Joint Negotiation Council (NJNC). The Government indicates that the Attorney General’s Office is in the process of drafting the bill and that it is envisaged that the social partners will be consulted once the Attorney General has produced the first draft.

While noting the Government’s statement that it appreciates the concern over the delay in the finalization of the labour law reform and harmonization and that the final draft of the Labour Amendment Bill has been finalized taking into consideration all the comments and recommendations of the ILO supervisory bodies, the Committee notes with concern that, despite its numerous requests, some of which predate the 2009 Commission of Inquiry, there is no concrete progress in amending both the Labour Act and the Public Service Act so as to bring them into conformity with the Convention. In this respect, the Committee observes that the high-level mission noted in its report that the social partners were concerned that the legislative reform was slow and haphazard, leading to the perception of a lack of political will to carry it out. In light of the above, the Committee requests the Government to devote all the necessary efforts to ensure that the process of reviewing the labour and public service legislation with a view to ensuring its conformity with the Convention will both be conducted in full consultation with the social partners and move forward without further delay. The Committee requests the Government to provide information on any progress in this regard.

Article 4 of the Convention. Promotion of collective bargaining. The Committee notes with concern the ZCTU’s indication that section 56(2) of the recently promulgated Special Economic Zones Act does not recognize the right to collective bargaining and gives power to the Special Economic Zones Authority and the Minister to determine conditions of work. In this respect, the Committee notes that the high-level mission had concluded in its report that the Special Economic Zones Act continued to refer to conditions of employment as determined by the Ministry and the Authority, without mentioning the social partners’ input or collective bargaining (section 56 of the Act). The Committee therefore requests the Government to take the necessary measures to amend the abovementioned legislation, in consultation with the social partners, so as to bring it into conformity with the Convention and to provide information on any developments in this regard.

Application of the Convention in practice

Article 1. Adequate protection against acts of anti-union discrimination. The Committee had requested the Government to provide detailed information on its engagement with the ZCTU regarding cases of alleged anti-union discrimination as compiled by the ZCTU. The Committee notes the Government’s indication that it engaged with the ZCTU in December 2016, which subsequently lead to the resolution of most of them. Some of the cases could not be traced due to insufficient information. The Government further indicates that with the assistance of the ILO, it is in the process of coming up with an electronic case management system, which will assist in tracking labour dispute cases, particularly those relating to anti-union discrimination. The Committee requests the Government to provide detailed information on any developments on this subject.

The Committee notes with concern the ITUC’s allegation of a widespread anti-union discrimination in the construction sector, in which several Zimbabwe Construction and Allied Trade Workers’ Union (ZCATWU) members would have been victims of assault and harassment because of their trade union membership, mainly in multinationals and foreign-owned companies, and ZCATWU representatives being denied access to companies’ premises. The Committee requests the Government to provide its comments thereon and hopes that these serious allegations will be the subject of appropriate investigations and vigorously pursued.

[The Government is asked to reply in full to the present comments in 2019.]

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

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 concerning the points addressed by the Committee below.

Follow-up to the recommendations of the Commission of Inquiry (complaint made under article 26 of the Constitution of the ILO)

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 105th Session, May–June 2016)

The Committee notes the information provided by the Government and the discussion that took place in the Conference Committee on the Application of Standards (hereinafter the Conference Committee) in June 2016. It notes, in particular, that the Conference Committee urged the Government to: (i) hold meaningful consultations with the social partners in order to fully and effectively implement the Commission of Inquiry’s recommendations with respect to the amendment of the Labour Act, the Public Service Act and the Public Order and Security Act; (ii) ensure that dissuasive sanctions are imposed on those engaging in anti-union discrimination and that all workers who have been targeted for discrimination have access to effective remedies; (iii) submit to the Office all statistical information about cases of anti-union discrimination; (iv) provide detailed information on the current situation of collective bargaining in the export processing zones and on the concrete measures to promote it in those zones; (v) ensure that collective bargaining can be exercised in a climate of dialogue and mutual understanding; (vi) enhance the capacity of the social partners to fulfil obligations under existing collective agreements; and (vii) avail itself of the technical assistance of the Office to ensure full compliance with the Convention. The Conference Committee further considered that the Government should accept a high-level ILO mission before the next International Labour Conference in order to assess progress towards compliance with these conclusions.

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 national Constitution and the Convention.

Labour Act. 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 Government points out that the agreed Principles seek to harmonize the Act with the Constitution and the Convention on the basis of comments of the ILO supervisory bodies and address concerns raised by the ZCTU and the ITUC in 2014 and 2015 with regard to anti-union discrimination in the country. The Committee notes, in particular, the following Principles:

• -Principle 2 (Collective Bargaining) provides for the amendment of sections 25, 79 and 81 of the Labour Act, as well as section 14 of the Labour Amendment Act No. 5 to ensure that collective agreements are not subject to Ministerial approval on the grounds that the agreement is or has become “… unreasonable or unfair” or “contrary to public interest”.
• -Principle 4 (Collective Job Action) refers, among others, to the need for clear laws for the protection of workers and their representatives against anti-union discrimination.

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.

Public Service Act. The Committee notes the Government’s indication that the Principles for the Amendment of the Public Service Act include the aspect of ensuring that civil servants enjoy the right to collective bargaining. The modalities for the enjoyment of this right by those not engaged in the administration of the State will be articulated in the amendment Bill, in consultation with the social partners, after Cabinet’s approval of the Principles. 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 trusts that the labour and public service legislation will be brought into conformity with the national Constitution and the Convention, in consultation with the social partners, in the near future. Recalling that the Government may continue to avail itself of the technical assistance of the Office, the Committee requests it to report on the progress made in this respect.

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 the Government’s indication that it is making arrangements to engage with the ZCTU in November 2016 on the basis of the information regarding cases of alleged anti-union discrimination compiled by the ZCTU to further verify the status of these cases and to facilitate dialogue on how to best address them. The Committee requests the Government to provide detailed information on developments in this regard.

Article 4. Promotion of collective bargaining. The Committee welcomes the information provided by the Government on various tripartite activities it had conducted with the support of the Office. The Committee notes that these included a TNF technical committee symposium to facilitate dialogue on how the process of collective bargaining can be strengthened as a medium for economic stabilization. Among other conclusions, the participants noted the need for continued capacity building as concerns collective bargaining in order to enhance dialogue and mutual understanding of mutual gains for industrial harmony. It was also agreed that the existing institutions for collective bargaining must be preserved, including through the envisaged measures in the ongoing labour law reform to make employment councils statutory entities. Furthermore, a similar workshop for the members of the civil service National Joint Negotiating Council was convened to establish mutual understanding among the parties of the collective bargaining environment in Zimbabwe. A key outcome of the workshop was the agreement that continuous dialogue was needed to cultivate mutual trust and confidence in the negotiation process. National Joint Negotiating Council members are scheduled to participate at a training-of-trainers workshop on collective bargaining to be held in November 2016. The Government indicates that these activities respond to the conclusions of the Conference Committee requiring the Government to ensure that collective bargaining takes place in a climate of dialogue and mutual understanding.

The Committee welcomes the acceptance by the Government of a high-level ILO mission requested by the Conference Committee in June 2016, which will take place in February 2017, as suggested by the Office.

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

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.]

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

Follow-up of the recommendations of the Commission of Inquiry (complaint made under article 26 of the ILO Constitution)

The Committee recalls the recommendations of the Commission of Inquiry established to examine the observance by the Government of Zimbabwe of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and Convention No. 98, as detailed in the comments on the application of Convention No. 87. The Committee notes that the ILO technical assistance to support the Government and the social partners in implementing these recommendations continued throughout the reporting period. It recalls in this respect that it had requested the Government to provide detailed information on the outcome of the activities carried out under the ILO technical assistance package and on all other measures taken to implement the recommendations of the Commission of Inquiry. The Committee notes the information provided by the Government in this regard, as reflected in the 2011 and 2012 comments on the application of Convention No. 87 and further below. It further notes the comments made by the International Trade Union Confederation (ITUC) and the Zimbabwe Congress of Trade Unions (ZCTU) on the application of the Convention in their communications dated 4 August 2011, 31 July and 29 August 2012, respectively. It requests the Government to provide its observations thereon.

The Committee recalls that in its previous comments it had taken note of the initiated labour law reform and harmonization process, and expressed the firm hope that the relevant legislative texts, and in particular, the Labour Act and the Public Service Act, would be brought in line with the Convention. More specifically, the Committee had requested the Government to take the necessary measures to ensure that an adequate protection against acts of anti-union discrimination is enshrined in the national legislation, and applied and respected in practice; that restrictions on collective bargaining rights are lifted; and that public servants, with the only possible exception of those who, by their functions, are directly engaged in the administration of the State, are also granted collective bargaining rights. The Committee recalls that in its 2011 comments on the application of Convention No. 87 it had taken due note of a copy of the draft Principles for the Harmonization and Review of Labour Laws in Zimbabwe and the information provided by the Government on the specific sections of the labour law which it intended to amend in the framework of the reform. On that occasion, the Committee noted with interest that the revision of the labour legislation envisaged taking into account its comments and welcomed the fact that this process involved all social partners. The Committee notes that in its 2012 report, the Government indicates that, together with the social partners, it had finalized the development of principles for harmonization and review of labour laws, and had submitted them to Cabinet for consideration. The Government reiterates that the thrust of the harmonization and reform process is essentially to give effect to the comments and recommendations of the Committee. The Government adds that it is anticipated that Cabinet would approve the principles by the end of December 2012. After the approval, the Government intends to hold a consensus-building workshop towards the drafting of the labour law reform bill. The Government indicates that it has submitted the concept note to the ILO country office in Harare, and calls for ILO support during the workshop, in order to have the confidence of the social partners. The Government anticipates that Parliament will enact the new labour law by the third quarter of 2013. The Committee requests the Government to provide information on all developments and progress made in this respect and hopes that the ILO will continue to support this process.

On the issue of protection against acts of anti-union discrimination, the Government refers to section 89 of the Labour Act, which empowers the Labour Court and arbitrators to order reinstatement in a job or payment of damages, including punitive damages to an employee who has been wrongfully dismissed. It is the Government’s view that this section provides for sufficiently dissuasive sanctions in cases of anti-union discrimination. The Government further indicates that it will continue to encourage the application of this provision in practice, as requested by the Commission of Inquiry and the Committee. While taking due note of this information, the Committee observes allegations of anti-union discrimination as outlined in the ITUC and ZCTU communications, which involve cases of suspension and dismissals for protesting against poor working conditions and low monthly wages. The Committee requests the Government to provide its observations thereon, as well as 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.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Follow-up to the recommendations of the Commission of Inquiry
(complaint made under article 26 of the Constitution of the ILO)

The Committee takes note of the conclusions and recommendations of the Commission of Inquiry established to examine the observance by the Government of Zimbabwe of Conventions Nos 87 and 98 and the Government’s reply thereon, as detailed in the comments on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

The Committee notes with interest the launch, on 27 August 2010, of the ILO technical assistance package, which aims to support the Government and the social partners in implementing the recommendations of the Commission so as to ensure full freedom of association in the country and the ensuing activities that have taken place, as well as the envisaged measures, as detailed in the comments on the application of Convention No. 87. The Committee requests the Government to provide in its next report detailed information on the outcome of the activities carried out under the ILO technical assistance package and on all other measures taken to implement the recommendations of the Commission of Inquiry.

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination. The Committee notes that, having examined numerous allegations of anti-union discrimination (dismissals, transfers and even eviction from their homes), the Commission of Inquiry concluded that there was no adequate protection against anti-union discrimination in the country. The Committee concurs with the Commission which recalled that, by virtue of its ratification of Convention, the Government is responsible for preventing all acts of anti-union discrimination and must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be expeditious – so that the necessary remedies can be really effective – inexpensive and fully impartial, and considered as such by the parties concerned. In other words, where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention. In this regard, the Commission stressed that the remedy of reinstatement should be available to those who are victims of anti-union discrimination and, if reinstatement is not possible, the Government should ensure that the workers concerned are paid adequate compensation which would represent a sufficiently dissuasive sanction for anti-trade union dismissals (see paragraph 586 of the Report of the Commission of Inquiry: Truth, reconciliation and justice in Zimbabwe). The Committee requests the Government to indicate specific measures taken or envisaged to ensure that the above principle is enshrined in the national legislation, and applied and respected in practice.

Article 4. Collective bargaining. The Committee recalls that in its previous comments, it had raised concern with regard to the following legislative provisions, also raised by the Commission of Inquiry in its report:

–      section 17 of the Labour Act, which empower the Minister to issue regulations on an extensive list of matters, including conditions of employment;

–      sections 78 and 79, which empower the Minister to direct the Registrar not to register an agreement “if any provision appears to the Minister to be inconsistent with legislation or unreasonable or unfair”;

–      sections 25 and 81, pursuant to which, the Minister can “direct the parties to negotiate an amendment” to a registered collective agreement if it contains a provision “that is, or that has become, inconsistent with legislation in force or is unreasonable or unfair”. The Minister may then amend the agreement in accordance with the proposed amendment, or “in such other manner that is consistent with the considerations of legislative consistency, reasonableness and fairness”; and

–      section 93(3-5), which provides that disputes of interest in the essential services that have not been settled within 30 days or such other period as agreed by the parties will be referred to compulsory arbitration.

Article 6. Collective bargaining in the public service. Noting that currently, public servants have no collective bargaining rights, the Committee, like the Commission of Inquiry, stresses that all workers, including public servants, should be entitled to bargain collectively to determine their conditions of work. Only public servants, who, by their functions, are directly engaged in the administration of the State (that is, civil servants employed in government ministries and other comparable bodies), as well as officials acting as supporting elements in these activities can be excluded from the protection of Convention.

Taking due note of the initiated labour law reform and harmonization process, the Committee expresses the firm hope that the relevant legislative texts, and in particular, the Labour Act and the Public Service Act, will be brought in line with the Convention, taking into account the recommendations of the Commission of Inquiry and the Committee’s comments above. The Committee requests the Government to provide detailed information in its next report on all measures taken or envisaged in this respect, as well as to transmit texts of any relevant draft or adopted legislation, so that it may examine its conformity with the provisions of the Convention.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

See the observation concerning the application of Convention No. 87.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s reply to the comments of the Zimbabwe Congress of Trade Unions (ZCTU) dated 1 September 2006. With regard to the ZCTU comment that collective agreements are subject to governmental approval and need to be published as a prerequisite for enforcement, the Government refers to its previous report in which it had indicated that it would initiate consideration of the Committee’s comments in respect of the relevant sections of the Labour Act in the context of the ongoing labour law reform. The Government further indicates that collective agreements are published to ensure that they become legally enforceable as statutory instruments so as to protect the interests of the parties to the collective agreement.

With regard to the ZCTU allegation that civil servants continue to be denied the right to bargain collectively, the Government reaffirms its previous position that the Public Service Act is being amended to ensure that it complies with the international labour standards and provisions of the Labour Act. However, civil servants are currently enjoying collective bargaining within the auspices of the civil service Joint Negotiating Council. It was through the deliberations of this council that civil servants were recently awarded an increase in transport and housing allowances.

With regard to the alleged interference by the Minister in the collective bargaining process by refusing to approve collective agreements, particularly in the agricultural sector where, the Minister, who is a new farmer and an interested party, considered that the agreed salaries were beyond the reach of the new farmers, the Government indicates that the real reason for refusing to register the collective agreement in question is its flaws both in content and process. The Government explains that the agreement was negotiated for certain categories of workers in the sector, leaving out other workers covered by the National Employment Council. Furthermore, the negotiating process has excluded a significant percentage of the employers in the sector, i.e. black indigenous farmers who now constitute the majority. Accordingly, the Minister referred the agreement to the parties for renegotiation with a view to ensuring total coverage of all workers in the sector and ensuring inclusion of the majority of the employers in the sector. The Committee requests the Government to provide detailed information in this respect in its next report, as well as a copy of the collective agreements in question.

The Committee notes that by its communication dated 28 August 2007, the International Trade Union Confederation (ITUC) submitted further comments, which refer to the issues of law and practice pertaining to the Convention which the Committee is already examining. The Committee requests the Government to provide its observations thereon.

The Committee requests the Government to provide its comments on all issues relating to the legislation and application of the Convention in practice raised in its previous observation (see 2006 observation, 77th Session), which it will examine in 2008, in the context of the regular reporting cycle.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report.

1. The comments submitted by the International Confederation of Free Trade Unions (ICFTU) and the Zimbabwe Congress of Trade Unions (ZCTU). The Committee notes the Government’s reply to the comments made by the ICFTU and the ZCTU in a communication dated 6 September 2005, in which the Government submits that the cases referred to by both organizations are related to political activities, in which trade union leaders engage using trade union platforms. With regard to the numerous allegations of dismissals, the Committee notes the Government’s statement that it had provided the relevant information to the Committee on Freedom of Association. As regards, more particularly, the case of dismissal of Mr. Matombo, president of the ZCTU, the Government indicates that this case between the dismissed person and a private company is being handled in terms of the established dispute resolution system. The Committee notes the conclusions of the Committee on Freedom of Association in Cases Nos. 2328 and 2365 concerning the allegations of anti-union dismissals and transfers, requesting information on the measures taken to implement its recommendations with regard to the dismissed or transferred workers. In this respect, the Committee regrets that, in practice, trade union rights continue to be impaired. It therefore requests the Government to take the necessary measures to ensure appropriate conditions for free exercise of trade union rights in practice within the meaning of Convention No. 98 and to ensure fair and rapid means of redress for all acts of anti-union discrimination and interference.

With regard to the ICFTU comment that collective agreements are subject to governmental approval and that collective bargaining is not the exclusive prerogative of trade unions and can also be carried out by workers’ committees, the Committee notes the Government’s statement that the provisions of the Labour Relations Act providing for workers’ committees were meant to give more leeway to workers to exercise their right to negotiate above what would have been agreed to at the National Employment Council level.

The Committee notes that, by their communications dated 12 July 2006 and 1 September 2006, respectively, the ICFTU and the ZCTU submitted further comments concerning the legislative issues which are also a subject of concern to the Committee and which are raised below. The Committee requests the Government to provide its comments thereon.

2. Previously raised legislative issues. The Committee notes with interest that the following provisions of the Labour Relations Act were repealed by the Labour Amendment Bill, 2005: paragraph (b) common to sections 25(2), 79(2) and 81(1), containing a requirement for collective agreements to be submitted for ministerial approval in order to ensure that their provisions are equitable to consumers, to members of the public generally or to any other party to the collective bargaining agreement; and section 22, concerning the right of the Minister to fix a maximum wage and the maximum amount that may be payable by way of benefits, allowances, bonuses or increments by statutory instrument prevailing over any agreement or arrangement.

The Committee recalls, however, that it also had requested the Government to repeal paragraph (c) common to the same sections, which subjected 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. The Committee notes the Government’s indication that it will initiate consideration of the Committee’s concern in the context of ongoing labour law reform. The Committee therefore requests the Government to take the necessary measures in order to amend sections 25(2)(c), 79(2)(c) and 81(1)(c) during the present legislative revision so as to ensure the full application of the Convention and, more particularly, to ensure that no interference of the authorities in the collective bargaining process is possible.

In its previous observations, the Committee also requested the Government to amend section 25(1) of the Labour Relations Act, according to which, if a workers’ committee (committee of representatives elected by workers to represent their interests) concludes a collective agreement with the employer, it must be approved by the trade union and by more than 50 per cent of the employees. The Committee notes the Government’s statement that it will initiate consideration of the Committee’s concern in the context of ongoing labour law reform. The Committee recalls once again that negotiations, through direct settlement of agreements signed between an employer and the representatives of a group of non-unionized workers, when a union exists in the undertaking, do not promote collective bargaining as set out in Article 4 of the Convention. The Committee requests the Government to take the necessary measures in order to amend section 25(1) of the Act during the present legislative revision so as to ensure that when a union exists in the undertaking, even if it represents less than 50 per cent of the employees at the workplace and even if a workers’ committee exists in the undertaking or the related industry, bargaining rights are guaranteed to the union.

Regretting that no information was provided by the Government with regard to prison staff, the Committee once again reiterates its previous request to the Government to take appropriate measures in order to ensure that prison workers enjoy the rights afforded to them under the Convention.

Article 6. The Committee requests the Government to send its observations on the ZCTU’s comments, according to which civil servants continue to be denied the right to collective bargaining.

3. While noting that an official visit of the Director of the International Labour Standards Department at the invitation of the Government of Zimbabwe took place in August 2006, the Committee regrets that the Government has not yet accepted the suggestion by the Conference Committee in June 2005 for a direct contacts mission. The Committee expresses the hope that the Government will give a positive response to this suggestion in the very near future.

The Committee considers that violations of trade union rights in law and practice are a symptom of deficiency of social dialogue in the country. While noting certain progress in respect of the legislative amendments, and the tripartite Kadoma Declaration “Towards a shared national economic and social vision” (adopted by the tripartite constituents in 2001 but still not signed), the Committee notes from the report of the mission undertaken by the Director of the International Labour Standards Department that “there was a deep-rooted distrust among the tripartite constituents today in Zimbabwe and that although each constituent should engage in rebuilding that trust, the Government had an important role to play to encourage and promote social dialogue as a facilitator”. The Committee expresses the hope that the Government will take all necessary measures to strengthen social dialogue in the country by involving the most representative trade unions without exception, in order to bring the law and practice into full conformity with the Convention and to ensure that trade unions can carry out their activities and exercise their rights guaranteed under the Convention without interference. The Committee requests the Government to keep it informed of the concrete steps taken in this regard.

The Committee requests the Government to keep it informed of the measures taken or envisaged in respect of the abovementioned points.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes note of the discussion that took place at the Conference Committee in June 2005 and notes that in its conclusions the Conference Committee “in a fully constructive spirit, felt that a direct contacts mission could provide greater clarity on the situation, in particular on the ongoing legislative process”. The Committee takes also note of the comments on the application of the Convention presented by the International Confederation of Free Trade Unions (ICFTU) and requests the Government to provide its observations thereon.

Taking into account the concerns raised by the problems at issue, the Committee regrets that the Government has not yet accepted the suggested direct contacts mission. The Committee expresses the hope that the Government will give a positive response to this suggestion in the very near future. Furthermore, noting that it will examine the pending problems next year in the framework of the regular reporting cycle, the Committee expresses the hope that the Government will send a comprehensive report so as to enable it to fully assess the situation regarding the application of the Convention in law and in practice in the light also of the findings of the mission.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report. The Committee further notes the discussions in the Conference Committee on the Application of Standards in June 2004. It notes the Government’s statement to the effect that the Ministry of Labour commenced a review of the labour legislation and that the Bill to amend the Labour Act is currently due for consideration by the Cabinet Committee on legislation to redress the issues raised by the Committee. The Government further indicates that the new legislation will be promulgated by June 2005.

The Committee notes the comments made by the International Confederation of Free Trade Unions (ICFTU) and requests the Government to reply to these comments.

As concerns sections 25(2)(b), 79(2)(b) and 81(1)(b) of the Labour Relations Act containing a requirement for collective agreements to be submitted for ministerial approval in order to ensure that their provisions are equitable to consumers, to members of the public generally or to any other party to the collective bargaining agreement, the Committee notes that in its report, the Government indicates that these sections will be amended. However, the Committee notes that the Government indicates that it has no intention to repeal paragraphs 25(2)(c), 79(2)(c) and 81(1)(c), as it considers them to be consistent with the Convention. The Committee points out that paragraph (c), common to these sections, subjects 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. The Committee considers that this paragraph infringes the principle of autonomy of the parties. The Committee therefore requests the Government to take the necessary measures in order to amend sections 25(2)(c), 79(2)(c) and 81(1)(c) during the present legislative revision so as to ensure the full application of the Convention.

As concerns section 22 of the Labour Relations Act, concerning the right of the Minister to fix a maximum wage and the maximum amount that may be payable by way of benefits, allowances, bonuses or increments by statutory instrument prevailing over any agreement or arrangement, the Committee notes the Government’s indication that steps are being taken to repeal section 22.

In its previous observations, the Committee also requested the Government to amend section 25(1) of the Labour Relations Act, according to which if a workers’ committee (committee of representatives elected by workers to represent their interests) concludes a collective agreement with the employer, it must be approved by the trade union and by more than 50 per cent of the employees, as this provision authorized representatives of non-unionized workers to bargain collectively through workers’ committees even if a trade union existed at the enterprise. The Committee notes that the Government reiterates its previous indication to the effect that it has amended section 23 of the Act so as to further recognize and promote collective agreements. The Committee notes that this section provides that "if a trade union is registered to represent the interests of not less than 50 per cent of the employees at the workplace where a workers’ committee is to be established, every member of the workers’ committee shall be a member of the trade union concerned". Furthermore, the Government indicates that section 101, as amended, gives effect to Article 4 of the Convention. In this respect, the Committee notes the Government’s explanations during discussion in the Conference Committee to the effect that new section 101 prescribes that employment council codes take precedence over works council codes. The Committee points out that section 101 of the Act concerns employment codes of conduct and not collective agreements, which regulate the terms and conditions of employment. The Committee recalls that negotiations, through direct settlement of agreements signed between an employer and the representatives of a group of non-unionized workers, when a union exists in the undertaking, do not promote collective bargaining as set out in Article 4 of the Convention, which refers to the development of negotiations between employers or their organizations and workers’ organizations. The Committee requests the Government to amend the Act so as to ensure that when a union exists in the undertaking, even if it represents less than 50 per cent of the employees at the workplace and even if a workers’ committee exists in the undertaking or the related industry, bargaining rights are guaranteed to the union.

Finally, as concerns prison staff, the Committee notes the Government’s indication to the effect that the Constitution of Zimbabwe defines prison staff as a disciplinary force and that it is therefore improper and irregular to seek to amend the Constitution by an Act of Parliament. The Government states that a constitutional amendment is a process beyond the control of the Ministry of Labour and the social partners and has to involve the Government at large and the Legislature. The Committee hopes that the Government will be in a position to fully guarantee the application of the Convention and will take appropriate measures in order to ensure that prison workers enjoy the rights afforded to them under the Convention.

The Committee requests the Government to keep it informed of the measures taken or envisaged in respect of the abovementioned points.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s reports and the discussions in the Conference Committee on the Application of Standards in June 2003. The Committee notes that the Government has not yet replied to the request of the Conference Committee on the Application of Standards concerning an ILO direct contacts mission. The Committee notes the adoption of the Labour Relations Amendment Act No. 17/2002 and the Statutory Instrument 131/2003.

1. Recent legislative reform. The Committee notes with satisfaction that the following previously raised issues have been resolved under the new legislation:

-  Protection of workers’ organizations against acts of interference of employers’ organizations (or their agents) and vice versa is ensured by the Statutory Instrument 131/2003, which prohibits these acts and provides for sanctions such as fines and/or imprisonment in cases of infringement.

-  According to the new section 93(5) of the Labour Relations Act, compulsory arbitration is possible only with the agreement of the parties concerned or when conciliation procedures have failed in the essential services.

-  According to section 2A(3) of the Labour Relations Act, the Act prevails over any legislation. Therefore, as indicated by the Government, workers engaged in the framework of the Lotteries Act and others, as mentioned in section 14(c) and (h) of the Public Service Act (with the exception of those employed in the prison service) are now governed by the Labour Act and enjoy the rights provided for in the Convention.

2. Collective bargaining in the public service. The Committee notes that in reply to the previous request of the Committee, the Government states that teachers, nurses and other civil servants not directly engaged in the administration of the State negotiate collective agreements. It further notes the information sent by the Government concerning the number of collective agreements covering these categories of workers as well as the number of workers covered by such agreements.

3. Previously commented serious infringements of the Convention. Noting that the Government repeats the same arguments as in its previous reports, the Committee once again requests the Government to amend the following sections:

-  Sections 25(2), 79 and 81 of the Labour Relations Act providing for a requirement for collective agreements to be submitted for ministerial approval in order to ensure that their provisions are not inconsistent with the national laws and that they are not inequitable to consumers, to members of the public generally or to any other party to the collective bargaining agreement. The Committee notes the Government’s statement in this respect that it is in the national interest to protect consumers and the general public, given the level of the economic development of the country. The Committee once again recalls that the power of the authorities to approve collective agreements is compatible with the Convention, provided that the approval may be refused only if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 251).

-  Section 25(1) of the Labour Relations Act, according to which if workers’ committees reach an agreement with the employer, it must be approved by the trade union and by more than 50 per cent of the employees. The Committee notes the Government’s indication to the effect that this issue was addressed by the amendment of section 23, which ensures that if a trade union is registered to represent the interests of not less than 50 per cent of the employees at the workplace, every member of the workers’ committee shall be a member of the trade union concerned. While recognizing that certain progress was made in this respect, the Committee underlines that when the indicated percentage is not reached, representatives of non-unionized workers can negotiate even if a trade union exists at the enterprise. The Committee recalls that negotiations, through direct settlement or agreements signed between an employer and the representatives of a group of non-unionized workers, when a union exists in the undertaking, do not promote collective bargaining as set out in Article 4 of the Convention, which refers to the development of negotiations between employers or their organizations and workers’ organizations.

-  Sections 17(2) and 22 of the Labour Relations Act, concerning the right of the Minister to fix a maximum wage and other conditions of employment by statutory instrument prevailing over any agreement or arrangement. Noting the Government’s statements to the effect that it is in the national interest to protect consumers and the general public and that therefore it considers that these sections are not contrary to Article 4 of the Convention, the Committee once again recalls that measures taken unilaterally by the authorities to fix the conditions of employment and therefore restrict the scope of negotiated issues are incompatible with the Convention.

-  As concerns the prison staff, the Committee notes that according to the Government, the prison staff, being a disciplined force, is excluded from the scope of the Public Service Act. The Committee further notes section 3(2)(b) and 3(5)(a) of the Labour Relations Act, which excludes members of a disciplined force from the application of the Act. The Committee concludes that this category of workers does not enjoy the rights afforded by the Convention and therefore requests the Government to amend its legislation so as to ensure that prison workers enjoy the right to organize and to collective bargaining.

The Committee requests the Government to keep it informed of the measures taken or envisaged in respect of the abovementioned points.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s reports and the discussions in the Conference Committee on the Application of Standards in June 2002. The Committee regrets that the Government did not accept an ILO mission suggested by the Conference Committee on the Application of Standards and that it has not sent the Bill amending certain provisions of the Labour Relations Act. The Committee recalls that its previous comments concerned the following points which involved serious infringements of the Convention.

1. Protection of workers’ organizations against acts of interference of employers’ organizations and vice versa. The Committee previously noted that sections 7, 8 and 9 of the Labour Relations Act do not ensure comprehensive and specific protection against acts of interference. In order to guarantee the application of Article 2 of the Convention, the Committee invited the Government to enact section 10(1) of the Act, which provides for a power of the Minister to prescribe by statutory instruments, the acts or omissions constituting unfair labour practices. The Committee notes that, in its first of the three reports, the Government indicates that it may perhaps be appropriate for the trade unions or any other person to bring to the consideration of the Minister or board the issues or instances which they may wish the Minister to proscribe (prohibit) as unfair labour practices or instances of interference. The Committee further notes the Government’s statement in its second report that the Labour Relations Amendment Bill, which is currently pending before Parliament and expected to be adopted later in the year, would address the Committee’s concerns on this issue. In its third report, the Government indicates that during the discussion of the Labour Relations Amendment Bill, the issue of comprehensive and specific protection will be considered. The Committee expresses its hope that the Labour Relations Amendment Bill will in fact provide for the comprehensive and specific protection against acts of interference and requests the Government to keep it informed in this regard.

2. Compulsory arbitration in the context of collective bargaining imposed by the authorities at their own initiative. The Committee had previously requested to amend sections 98, 99, 100, 106 and 107 of the Labour Relations Act. The Committee notes that, in the first of its three reports, the Government indicates that in the proposed Amendment Bill, sections 98, 99 and 100, and not section 106, are being sought to be repealed. Moreover, as concerns section 98, the Government indicates that under the amendment, this section will provide that before referring a dispute to compulsory arbitration, the labour relations officer shall afford the parties a reasonable opportunity to make representations on the matter. The Committee also notes that in its two last reports, the Government indicates that the new Amendment Bill will address the issues raised by the Committee under Article 4 of the Convention. Noting the information given by the Government in the first of its reports, the Committee regrets that the amendment of section 106 is not envisaged. In this respect, the Committee once again recalls that compulsory arbitration may only be imposed with respect to public servants engaged in the administration of the State and in case of acute national crisis. As for the proposed amendment of section 98, the Committee notes that the new wording does not change the legal effect of the current section 98, as the labour relations officer will continue to have a discretionary power to refer the parties to compulsory arbitration. Therefore, the Committee once again requests that the Government take the necessary measures in order to amend or repeal sections 98, 99, 100, 106 and 107 so as to bring its legislation into conformity with the principles of voluntary collective bargaining.

3. Other limitations to the right to collective bargaining. The Committee had previously considered that section 17(2) of the Labour Relations Act, which provides that regulations made by the Minister prevail over any agreement or arrangement, as well as section 22 of the Act which states that the Minister may, by statutory instrument, fix a maximum wage and the maximum amount that may be payable by way of benefits, allowances, bonuses or increments, limited the parties’ right to collective bargaining and had asked the Government to take measures to amend them. The Committee notes that, in the first of its three reports, the Government indicates that according to the amended section 17(2) of the Bill, the power of the Minister to make regulations which take precedence over any agreement is maintained and will be exercised "in consultations with the appropriate council, if any, appointed in terms of section 19". The Committee notes also that according to section 19, the advisory board "may be constituted on the Minister’s own initiative and may consist of any persons that he may deem fit". In these circumstances, the Committee requests the Government to take the necessary measures to amend or repeal section 17(2). As concerns section 22, it is rather unclear from the Government’s report, whether the current section 22 will remain. The Committee considers that section 22 of the Act should be amended or repealed.

The Committee regrets that the Government is at least partly disagreeing with the Committee’s request to amend sections 25(2), 79 and 81 of the Act providing for a requirement for collective agreements to be submitted for ministerial approval in order to ensure that their provisions are not inconsistent with the national laws and the international labour laws and that they are not inequitable to consumers, to members of the public generally or to any other party to the collective bargaining agreement. The Committee recalls in this respect that the power of the authorities to approve collective agreements is compatible with the Convention provided that the approval may be refused only if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 251). The Committee further notes that according to the Government, the new section 25(A) of the Amendment Bill would minimize interference by the authorities as long as the agreements are consistent with national laws by giving a recognition and weight to collective bargaining agreements negotiated by work councils at establishments. The Committee points out that the explanation of the Government on this section does not seem to respond neither to the principle above nor to the previous requests of the Committee. The Committee hopes that serious attention will be given to amending the mentioned provisions and that the new Amendment Bill will limit the powers of the authorities in accordance with the criteria laid down. It furthermore requests the Government to provide the text of the Amendment Bill.

As for section 25(1) of the Act, according to which if workers’ committees reach an agreement with the employer, it must be approved by the trade union and by more than 50 per cent of the employees, the Committee notes the Government’s indication that this condition does not apply to arrangements reached between employers and trade unions. The Committee underlines that collective bargaining, through direct settlement or agreements signed between an employer and the representatives of a group of non-unionized workers, when a union exists in the undertaking, does not promote collective bargaining as set out in Article 4 of the Convention, which refers to the development of negotiations between employers or their organizations and workers’ organizations. The Committee requests the Government to amend section 25(1) in order to bring the legislation into conformity with the abovementioned principle.

As concerns the workers excluded from the Public Service Act, the Committee notes that some of the workers excluded by section 14 of the Act cannot be considered as workers engaged in the administration of the State (prison staff and employees engaged in the framework of the Lotteries Act); moreover, certain groups of workers are broadly defined and may potentially include workers not engaged in the administration of the State (section 14(c), (h)). The Committee notes the indication of the Government that these categories of workers do not have recognized organizations or associations representing them and that there are no current laws providing for their right to organize and to collective bargaining. In this respect, the Committee recalls that while Article 6 of the Convention allows public servants engaged in the administration of the State to be excluded from its scope, other categories should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment (see General Survey, op. cit., paragraph 262). The Committee requests the Government to take the necessary legislative measures in order to ensure that the right to collective bargaining is granted to all public servants, with the sole possible exception of those engaged in the administration of the State. It further requests the Government to keep it informed in this respect.

The Committee also notes the Government’s statement that teachers, nurses and other civil servants not directly engaged in the administration of the State negotiate collective agreements and participate in consultations. The Committee asks the Government to indicate the number of collective agreements covering these categories of workers as well as the number of workers covered by such agreements.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous comments, which read as follows:

1. Article 2 of the Convention. The Committee notes that, according to the Government, protection of workers’ and employers’ organizations against acts of interference is covered by sections 7, 8 and 9 of the Labour Relations Act. However, the Committee observes that these three sections do not ensure comprehensive and specific protection against acts of interference. Nevertheless, section 10(1) of the Act provides that "the Minister may, after consultation with the Board, from time to time, prescribe by statutory instruments acts or omissions which constitute unfair labour practices, whether by employers, employees, workers committees or trade unions or otherwise and may from time to time vary, amend or repeal such notice". The Committee invites the Government, if it has not yet done so, to enact this provision in order to ensure comprehensive and specific protection against acts of interference, as provided in Article 2.

2. Article 4. The Committee notes that sections 98, 99, 100, 106 and 107 of the Labour Relations Act grant the labour authorities the power to refer disputes in the context of collective bargaining to compulsory arbitration whenever they consider it appropriate. The Committee recalls that compulsory arbitration may only be imposed with respect to public servants engaged in the administration of the State and to those working in an essential service in the strict sense of the term, meaning those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population, and in case of acute national crisis. Therefore, the Committee requests that the Government take the necessary measures to amend its legislation in order to bring it into conformity with the principles of voluntary collective bargaining.

The Committee notes that section 17(2) of the Labour Relations Act, which provides that regulations made by the Minister prevail over any agreement or arrangement, as well as section 22 of the Act which states that the Minister may, by statutory instrument, fix a maximum wage and the maximum amount that may be payable by way of benefits, allowances, bonuses or increments. The Committee deems these provisions limit the parties’ right to collective bargaining and asks the Government to take measures to amend them. These restrictions would only be admissible in exceptional circumstances (see General Survey on freedom of association and collective bargaining, 1994, paragraph 260).

The Committee also notes that, according to sections 25, 79 and 81 of the Labour Relations Act, collective agreements are required to be submitted for ministerial approval in order to ensure that their provisions are not inconsistent with the national laws and the international labour laws and that they are not inequitable to consumers, to members of the public generally or to any other party to the collective bargaining agreement. The Committee recalls that the power of the authorities to approve collective agreements is compatible with the Convention provided that the approval may be refused only if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation. Therefore, the Committee requests that the Government take the necessary measures to amend its legislation in order to restrict the power of the authorities in accordance with the criteria laid down.

The Committee notes that, according to section 25(1) of the Labour Relations Act, if workers’ committees reach an agreement with the employer, it must be approved by the trade union and by more than 50 per cent of the employees. The Committee asks the Government if the same condition of approval by 50 per cent of employees applies to arrangements reached between employers and trade unions.

3. Article 6. The Committee notes that the Public Service Act of 1996 provides only for consultation with associations and organizations of public servants regarding the conditions of service of the members of the public service (section 20).

However, the Committee takes note of the Civil Service Joint Negotiating Council, Statutory Instrument 141, 1997, which provides that "there shall be a Public Service Joint Negotiating Council whose objective shall be to engage in mutual consultations upon and negotiate salaries, allowances and conditions of service in the Public Service" (section 3(1)).

The Committee recalls that the right to collective bargaining enshrined in the Convention applies to public servants other than those engaged in the administration of the State. The Committee requests that the Government indicate whether public servants not engaged in the administration of the State negotiate collective agreements as well as participate in consultation discussions.

Finally the Committee notes that the Public Service Act excludes from the application of the Act different groups of workers (section 14). The Committee asks the Government to provide information regarding the right to organize and to collective bargaining of the workers excluded from the Public Service Act and requests a copy of the legislation applicable to them on this matter.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee takes note of the information contained in the Government’s first report.

1.  Article 2 of the Convention.  The Committee notes that, according to the Government, protection of workers’ and employers’ organizations against acts of interference is covered by sections 7, 8 and 9 of the Labour Relations Act. However, the Committee observes that these three sections do not ensure comprehensive and specific protection against acts of interference. Nevertheless, section 10(1) of the Act provides that "the Minister may, after consultation with the Board, from time to time, prescribe by statutory instruments acts or omissions which constitute unfair labour practices, whether by employers, employees, workers committees or trade unions or otherwise and may from time to time vary, amend or repeal such notice". The Committee invites the Government, if it has not yet done so, to enact this provision in order to ensure comprehensive and specific protection against acts of interference, as provided in Article 2.

2.  Article 4.  The Committee notes that sections 98, 99, 100, 106 and 107 of the Labour Relations Act grant the labour authorities the power to refer disputes in the context of collective bargaining to compulsory arbitration whenever they consider it appropriate. The Committee recalls that compulsory arbitration may only be imposed with respect to public servants engaged in the administration of the State and to those working in an essential service in the strict sense of the term, meaning those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population, and in case of acute national crisis. Therefore, the Committee requests that the Government take the necessary measures to amend its legislation in order to bring it into conformity with the principles of voluntary collective bargaining.

The Committee notes that section 17(2) of the Labour Relations Act, which provides that regulations made by the Minister prevail over any agreement or arrangement, as well as section 22 of the Act which states that the Minister may, by statutory instrument, fix a maximum wage and the maximum amount that may be payable by way of benefits, allowances, bonuses or increments. The Committee deems these provisions limit the parties’ right to collective bargaining and asks the Government to take measures to amend them. These restrictions would only be admissible in exceptional circumstances (see General Survey on freedom of association and collective bargaining, 1994, paragraph 260).

The Committee also notes that, according to sections 25, 79 and 81 of the Labour Relations Act, collective agreements are required to be submitted for ministerial approval in order to ensure that their provisions are not inconsistent with the national laws and the international labour laws and that they are not inequitable to consumers, to members of the public generally or to any other party to the collective bargaining agreement. The Committee recalls that the power of the authorities to approve collective agreements is compatible with the Convention provided that the approval may be refused only if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation. Therefore, the Committee requests that the Government take the necessary measures to amend its legislation in order to restrict the power of the authorities in accordance with the criteria laid down.

The Committee notes that, according to section 25(1) of the Labour Relations Act, if workers’ committees reach an agreement with the employer, it must be approved by the trade union and by more than 50 per cent of the employees. The Committee asks the Government if the same condition of approval by 50 per cent of employees applies to arrangements reached between employers and trade unions.

3.  Article 6.  The Committee notes that the Public Service Act of 1996 provides only for consultation with associations and organizations of public servants regarding the conditions of service of the members of the public service (section 20).

However, the Committee takes note of the Civil Service Joint Negotiating Council, Statutory Instrument 141, 1997, which provides that "there shall be a Public Service Joint Negotiating Council whose objective shall be to engage in mutual consultations upon and negotiate salaries, allowances and conditions of service in the Public Service" (section 3(1)).

The Committee recalls that the right to collective bargaining enshrined in the Convention applies to public servants other than those engaged in the administration of the State. The Committee requests that the Government indicate whether public servants not engaged in the administration of the State negotiate collective agreements as well as participate in consultation discussions.

Finally the Committee notes that the Public Service Act excludes from the application of the Act different groups of workers (section 14). The Committee asks the Government to provide information regarding the right to organize and to collective bargaining of the workers excluded from the Public Service Act and requests a copy of the legislation applicable to them on this matter.