Cas individuel (CAS) - Discussion : 2016, Publication : 105ème session CIT (2016)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Zimbabwe (Ratification: 1998)



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.