Caso individual (CAS) - Discusión: 2004, Publicación: 92ª reunión CIT (2004)

Convenio sobre el derecho de sindicación y de negociación colectiva, 1949 (núm. 98) - Zimbabwe (Ratificación : 1998)

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.