Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Zambia (RATIFICATION: 1996)

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Legislative developments. The Committee notes that the Government: (i) acknowledges that the last review of the Industrial Labour Relations Act (ILRA) that took place in 2017 did not address the substantive issues raised by the Committee in its previous comments; and (ii) informs of the decision of the Tripartite Consultative Labour Council (TCLC) to proceed with a comprehensive review of the Act, so as to bring it in conformity with the Convention.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee requested the Government to take measures to shorten the maximum period (one year) within which a court should consider the disputes between an employer and an employee, as well as the matters affecting trade unions and collective bargaining rights and issue its ruling (section 85(3)(b)(ii) of the ILRA). The Committee notes the Government’s indication that when a matter is not concluded within a year, the presiding judge loses jurisdiction to handle the matter and the latter must be reallocated to another judge who then hears it de novo, passing the ruling much later than the intended one-year mark. In those circumstances, the Government believes that amending section 85(3)(b)(ii) to shorten the maximum period would further disadvantage the complainant. The Committee takes note that the Committee on Legal Affairs, Human Rights and Governance has made recommendations to alleviate this issue, notably through a proviso stating that a matter should be disposed of within twelve months, following the expiration of the statutory period of one year. The Committee also notes that further methods to address the congestion and delays in the justice system concerning labour matters are being considered by the Government, such as the employment of more judges, the increased number of courtrooms, and broader scope of jurisdiction from subordinate courts. The Committee takes due note of the statement of the Government concerning section 85(3)(b)(ii) of the ILRA and the actions envisaged to address the congestion of the labour justice system. The Committee requests the Government to take all the necessary measures, including of a legislative nature in the context of the review of the ILRA, to ensure that anti-union discrimination cases are dealt with through effective and expeditious legal proceedings. The Committee requests the Government to provide information in this respect and recalls that it can avail itself of the technical assistance of the Office.

Article 4.Free and voluntary collective bargaining. Compulsory arbitration. The Committee requested the Government to take the necessary measures to amend section 78(1)(a) and (c) and section 78(4) of the ILRA, which allow, in certain cases, either party to refer the dispute to a court or arbitration. The Committee notes the Government’s indication that it has not encountered any challenges in the administration of collective dispute resolution arising from provision 78 of the ILRA, as it sits currently but that in light of the decision of the TCLC to amend the Act, the proposed amendment of section 78 of the Act may be a matter for consideration. The Committee recalls that, in accordance with the principle of voluntary negotiation of collective agreements, arbitration imposed by legislation, or at the request of just one party is only acceptable in certain specific circumstances: namely: (i) in essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population; (ii) in the case of disputes in the public service involving public servants engaged in the administration of the State; (iii) when, after protracted and fruitless negotiations, it becomes obvious that the deadlock will not be broken without some initiative by the authorities; or (iv) in the event of an acute crisis (2012 General Survey on the fundamental Conventions, paragraph 247).

The Committee trusts that as a result of the comprehensive review of the ILRA, the above provisions will be amended so as to ensure that arbitration in situations other than those mentioned above can take place only at the request of both parties involved in the dispute. The Committee requests the Government to provide information in this respect.

Article 4. Collective bargaining in practice. The Committee notes that the Government informs that there are 197 collective agreements in force in the country which cover 490,159 workers. The Committee invites the Government to inform on the measures taken to promote collective bargaining and to continue providing information on the collective agreements concluded and in force, the sectors concerned, and the number of workers covered.

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The Committee notes the Government’s reply on the observations of the International Trade Union Confederation (ITUC) of 2017 and the Government’s expression of its commitment to comply with the Conventions it has ratified.

Articles 1–4 of the Convention. Adequate protection against acts of anti union discrimination and promotion of free and voluntary collective bargaining. On several occasions, the Committee had requested the Government to give consideration to amending the following provisions of the Industrial and Labour Relations Act (ILRA), so as to bring the Act into full conformity with the provisions of the Convention:

• -Section 85(3) of the ILRA, which provides that the court shall dispose of the matter before it (including disputes between an employer and an employee, as well as the matters affecting trade unions and collective bargaining rights) within a period of one year from the day on which the complaint or application is presented to it. The Committee previously recalled that when allegations of violations of trade union rights are concerned, both the administrative bodies and the competent judges should be empowered to give a ruling rapidly. While noting the Government’s indication that the revitalization of an Alternative dispute resolution (ADR) mechanism could help in reducing the backlog of the cases faced by the judiciary, the Committee once again requests the Government to take measures to shorten the maximum period within which a court should consider the matter and issue its ruling thereon. The Committee requests the Government to provide information on any progress in this respect.
• -Section 78(1)(a) and (c) and section 78(4) of the ILRA, which allow, in certain cases, either party to refer the dispute to a court or arbitration. While taking note of the Government’s indication that, although the ILRA may present deficiencies in the processes and procedures of collective dispute resolution and that other pieces of legislation, such as the Arbitration Act No. 19 of 2000, can be referred to, the Committee wishes to reiterate that its comments refer specifically to the fact that both parties involved in the dispute need to accept the arbitration proceedings, for the latter to be voluntary. The Committee therefore cannot but recall that, in accordance with the principle of voluntary negotiation of collective agreements, arbitration imposed by legislation at the request of just one party is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term and acute national crisis. The Committee once again requests the Government to give consideration to amending the above provisions so as to ensure that arbitration in situations other than those mentioned above can take place only at the request of both parties involved in the dispute.

Noting with regret that the last review of the ILRA (Act No 19 of 22 December 2017) failed to address the substantive issues it has been pointing out for a number of years, the Committee firmly hopes that the necessary amendments to bring the Act into full conformity with the provisions of the Convention will be adopted in the very near future. Recalling that it can avail itself of the technical assistance of the Office, the Committee requests the Government to provide information on any progress achieved in this respect.

Article 4. Collective bargaining in practice. The Committee requests the Government to provide information on the number of collective agreements signed and in force in the country, indicating the sectors and the number of workers covered.

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The Committee notes the Government’s reply in relation to the observations of the International Trade Union Confederation (ITUC) of 2012 concerning the dismissal of protesting miners and the decision of the High Court of 30 March 2011 (2006/HK/385) ruling in favour of the dismissed workers. The Committee notes the observations of the ITUC, received on 1 September 2017, concerning legislative matters and new allegations of anti-union dismissals in the mining industry as well as harassment of unionized university staff members. Recalling that acts of harassment and intimidation carried out against workers or their dismissal by reason of trade union membership or legitimate trade union activities seriously violate the principles of freedom of association enshrined in the Convention, the Committee requests the Government to provide its comments in this regard.

Articles 1–4 of the Convention. Adequate protection against acts of anti union discrimination and promotion of free and voluntary collective bargaining. In its previous comments, the Committee had noted the adoption of Industrial and Labour Relations (Amendment) Act No. 8 of 2008 (ILRA) but that most of its comments had not been taken into account when reviewing the law and that they would be considered under the next review. However, the Committee notes that the Government in its last report failed to offer further information in this respect. The Committee thus recalls its previous comments on the following provisions of the ILRA:

• -Section 85(3) of the ILRA provides that the court shall dispose of the matter before it (including disputes between an employer and an employee, as well as the matters affecting trade unions and collective bargaining rights) within a period of one year from the day on which the complaint or application is presented to it. The Committee had recalled that when allegations of violations of trade union rights are concerned, both the administrative bodies and the competent judges should be empowered to give a ruling rapidly. While noting from the Government’s report the attempts of the judiciary to reduce the backlog of cases within the one-year time frame, the Committee requests the Government to endeavour to take the necessary measures to shorten the maximum period within which a court should consider the matter and issue its ruling thereon.
• -Section 78(1)(a) and (c) and section 78(4) of the ILRA allow, in certain cases, either party to refer the dispute to a court or arbitration. In its previous comments the Committee had noted from the Government’s report that the ILRA provisions relating to arbitration cater for the involvement of both parties. While taking note of the point of the Government that arbitration is by nature voluntary and consensual, the Committee wishes to reiterate that its comments refer specifically to the fact that both parties involved in the dispute need to accept the arbitration proceedings, for the latter to be voluntary. The Committee therefore cannot but recall that, in accordance with the principle of voluntary negotiation of collective agreements, arbitration imposed by legislation at the request of just one party is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term and acute national crises. The Committee once again requests the Government to give consideration to amending the above provisions so as to ensure that arbitration in situations other than those mentioned above can take place only at the request of both parties involved in the dispute.

The Committee firmly hopes that the necessary amendments to bring the Act into full conformity with the provisions of the Convention will be adopted in the very near future. Recalling that it can avail itself of the technical assistance of the Office, the Committee requests the Government to provide information on any progress achieved in this respect.

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The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 31 August 2016, concerning legislative matters and allegations of anti-union dismissals. The Committee requests the Government to provide its comments in this regard.

The Committee notes that the Government’s report contains no reply to its previous comments. It is therefore bound to repeat its previous comments.

The Committee notes the Government’s reply to the observations of the International Trade Union Confederation (ITUC) received in July 2012 concerning allegations of anti-union intimidation and harassment of workers, retaliation towards union representatives and anti-union dismissals. The Committee takes note that the Government indicates that anti-union harassment and intimidation of workers as well as retaliation towards union representatives are prohibited. The Committee also takes note of the ITUC’s observations received on 1 September 2015, which also concern allegations of acts of anti-union discrimination, including harassment, intimidation and dismissal on grounds of trade union membership and participation in strikes. The Committee recalls that acts of harassment and intimidation carried out against workers or their dismissal by reason of trade union membership or legitimate trade union activities seriously violate the principles of freedom of association enshrined in the Convention. The Committee trusts that the Government will take any necessary measures to ensure the respect of these principles, and requests it to provide further information on the matters raised by the ITUC, including on the results of any investigations and judicial proceedings undertaken.

Articles 1–4 of the Convention. Protection against anti-union acts and promotion of free and voluntary collective bargaining. In its previous observations, the Committee had noted that the Industrial and Labour Relations (Amendment) Act No. 8 of 2008 (ILRA) had been adopted, but that most of its comments had not been taken into account when reviewing the law. The Committee notes that the Government indicates that it is currently reviewing all labour laws and that the amendments proposed by the Committee will be taken into account in this review. The Committee recalls its previous comments on the following provisions of the ILRA:

• – Section 85(3) of the ILRA provides that the court shall dispose of the matter before it (including disputes between an employer and an employee, as well as the matters affecting trade unions and collective bargaining rights) within a period of one year from the day on which the complaint or application is presented to it. The Committee understands that, under section 85, the court has jurisdiction over the complaints of anti-union discrimination and trade union interference and recalls that when allegations of violations of trade union rights are concerned, both the administrative bodies and the competent judges should be empowered to give a ruling rapidly. The Committee therefore requests the Government to take the necessary measures to shorten the maximum period within which a court should consider the matter and issue its ruling thereon.
• – Section 78(1)(a) and (c) and section 78(4) of the ILRA allow, in certain cases, either party to refer the dispute to a court or arbitration. The Committee notes that, in its report, the Government indicates that the ILRA provisions relating to arbitration cater for the involvement of both parties. While taking note of the point made by the Government, the Committee wishes to point out that its comments refer specifically to the fact that both parties involved in the dispute need to request the arbitration proceedings, for the latter to be voluntary. The Committee recalls that, in accordance with the principle of voluntary negotiation of collective agreements, arbitration imposed by legislation, or at the request of just one party is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term and acute national crises. The Committee therefore requests the Government to give consideration to amending the above provisions so as to ensure that arbitration in situations other than those mentioned above, can take place only at the request of both parties involved in the dispute.

The Committee firmly hopes that the comments that it has been making for several years will be taken into account in the current review of the labour laws and that the necessary amendments will be adopted in the very near future following full and frank consultations with the social partners. The Committee requests the Government to provide information on any progress achieved in this respect and hopes that the amendments to the Act will be in full conformity with the provisions of the Convention.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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The Committee notes the Government’s reply to the observations of the International Trade Union Confederation (ITUC) received in July 2012 concerning allegations of anti-union intimidation and harassment of workers, retaliation towards union representatives and anti-union dismissals. The Committee takes note that the Government indicates that anti-union harassment and intimidation of workers as well as retaliation towards union representatives are prohibited. The Committee also takes note of the ITUC’s observations received on 1 September 2015, which also concern allegations of acts of anti-union discrimination, including harassment, intimidation and dismissal on grounds of trade union membership and participation in strikes. The Committee recalls that acts of harassment and intimidation carried out against workers or their dismissal by reason of trade union membership or legitimate trade union activities seriously violate the principles of freedom of association enshrined in the Convention. The Committee trusts that the Government will take any necessary measures to ensure the respect of these principles, and requests it to provide further information on the matters raised by the ITUC, including on the results of any investigations and judicial proceedings undertaken.

Articles 1–4 of the Convention. Protection against anti-union acts and promotion of free and voluntary collective bargaining. In its previous observations, the Committee had noted that the Industrial and Labour Relations (Amendment) Act No. 8 of 2008 (ILRA) had been adopted, but that most of its comments had not been taken into account when reviewing the law. The Committee notes that the Government indicates that it is currently reviewing all labour laws and that the amendments proposed by the Committee will be taken into account in this review. The Committee recalls its previous comments on the following provisions of the ILRA:

• -Section 85(3) of the ILRA provides that the court shall dispose of the matter before it (including disputes between an employer and an employee, as well as the matters affecting trade unions and collective bargaining rights) within a period of one year from the day on which the complaint or application is presented to it. The Committee understands that, under section 85, the court has jurisdiction over the complaints of anti-union discrimination and trade union interference and recalls that when allegations of violations of trade union rights are concerned, both the administrative bodies and the competent judges should be empowered to give a ruling rapidly. The Committee therefore requests the Government to take the necessary measures to shorten the maximum period within which a court should consider the matter and issue its ruling thereon.
• -Section 78(1)(a) and (c) and section 78(4) of the ILRA allow, in certain cases, either party to refer the dispute to a court or arbitration. The Committee notes that, in its report, the Government indicates that the ILRA provisions relating to arbitration cater for the involvement of both parties. While taking note of the point made by the Government, the Committee wishes to point out that its comments refer specifically to the fact that both parties involved in the dispute need to request the arbitration proceedings, for the latter to be voluntary. The Committee recalls that, in accordance with the principle of voluntary negotiation of collective agreements, arbitration imposed by legislation, or at the request of just one party is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term and acute national crises. The Committee therefore requests the Government to give consideration to amending the above provisions so as to ensure that arbitration in situations other than those mentioned above, can take place only at the request of both parties involved in the dispute.

The Committee firmly hopes that the comments that it has been making for several years will be taken into account in the current review of the labour laws and that the necessary amendments will be adopted in the very near future following full and frank consultations with the social partners. The Committee requests the Government to provide information on any progress achieved in this respect and hopes that the amendments to the Act will be in full conformity with the provisions of the Convention.

[The Government is asked to reply in detail to the present comments in 2016.]

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Situation of the revision of the Industrial and Labour Relations Act (as amended by the Industrial and Labour Relations (Amendment) Act, 2008) (ILRA). In its previous comments, the Committee noted that the Industrial and Labour Relations (Amendment) Act No. 8 of 2008 had been adopted. The Committee, however, noted that according to the Government’s report, most of the amendments it has previously proposed, still remain unattended to, and were not taken into account during the process of the labour law review. The Committee further noted that according to the Government’s report, the concerns expressed by trade unions and employers’ associations, some of which were presented before the Parliamentary Committee on Economic, Social and Labour Affairs, had been referred to the Government for consideration, although since 1997, the said provisions have not been used against workers or employers. The Committee noted the Government’s indication that the moratorium on the discussion of the ILRA has been lifted as the matter before the courts of law arising from a judicial petition by the Federation of Free Trade Unions of Zambia (FFTUZ) has been withdrawn. The Committee further notes that the Government indicates that it will consider the Committee’s observations, has engaged the social partners through the tripartite structures and has engaged a consultant who will aid the Government in conducting a comprehensive labour review. In addition, the Government and its social partners will undertake a study tour of the Labour Courts within the region to learn from their legal practices. The Committee hopes this labour review will take into account its comments, and recalls in particular that measures should be taken to bring the following provisions of the ILRA into conformity with the Convention, in full consultation with the social partners.

Articles 1–4 of the Convention. Protection against anti-union acts and promotion of free and voluntary collective bargaining. The Committee recalls that its previous comments concerning the ILRA were the following:

• -Section 85(3) of the ILRA provides that the court shall dispose of the matter before it (including disputes between an employer and an employee, as well as the matters affecting trade unions and collective bargaining rights) within a period of one year from the day on which the complaint or application is presented to it. The Committee understands that, under section 85, the court has jurisdiction over the complaints of anti-union discrimination and trade union interference and recalls that when allegations of violations of trade union rights are concerned, both the administrative bodies and the competent judges should be empowered to give a ruling rapidly. The Committee therefore requests the Government to take the necessary measures to shorten the maximum period within which a court should consider the matter and issue its ruling thereon.
• -Section 78(1)(a) and (c) and section 78(4) of the ILRA allows, in certain cases, either party to refer the dispute to a court or arbitration. The Committee recalls that arbitration imposed by legislation, or at the request of one party in the services which are neither essential in the strict sense of term, nor involving civil servants exercising authority in the name of the State, is contrary to the principle of the voluntary negotiation of collective agreements. The Committee therefore requests the Government to give consideration to amending the above provisions so as to ensure that arbitration in services other than those mentioned above, can take place only at the request of both parties involved in the dispute.

Comments of the International Trade Union Confederation (ITUC). Finally, the Committee notes the comments made by the ITUC in a communication dated 31 July 2012, alleging anti-union intimidation and harassment of workers as well as retaliation towards union representatives. The Committee requests the Government to provide its observations on these comments.

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The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 4 August 2011.

Situation of the revision of the Industrial and Labour Relations Act (as amended by the Industrial and Labour Relations (Amendment) Act, 2008) (ILRA). In its previous comments, the Committee noted that the Industrial and Labour Relations (Amendment) Act No. 8 of 2008 (ILRA) had been adopted. The Committee, however, noted that according to the Government’s report, most of the amendments it has previously proposed, still remain unattended to, and were not taken into account during the process of the labour law review. The Committee further noted that according to the Government’s report, the concerns expressed by trade unions and employers’ associations, some of which were presented before the Parliamentary Committee on Economic, Social and Labour Affairs, had been referred to the Government for consideration, although since 1997, the said provisions have not been used against workers or employers. The Committee noted the Government’s indication that its previous comments have been noted and would be taken into account in the future review of the Industrial and Labour Relations Act. The Committee notes that the Government indicates in its report that there is a moratorium on the discussion of the Industrial and Labour Relations Act (as amended by the Industrial and Labour Relations (Amendment) Act, 2008) (ILRA), as there are matters before the courts of law arising from a petition by the Federation of Free Trade Unions of Zambia (FFTUZ). The Committee welcomes the Government’s commitment and hopes that the revision will be in full conformity with the Convention, according to this commitment.

Articles 1–4 of the Convention. The Committee recalls that its previous comments concerning the Industrial and Labour Relations Act (as amended by the Industrial and Labour Relations (Amendment) Act, 2008) (ILRA), were the following:

• – Section 78(1)(a) and (c) and (4) of the ILRA, as amended, allows, in certain cases, either party to refer the dispute to a court or arbitration. The Committee recalls that arbitration imposed by the legislation, or at the request of one party in the services which are neither essential in the strict sense of term, nor involving civil servants engaged in the administration of the State, is contrary to the principle of the voluntary negotiation of collective agreements. The Committee therefore requests the Government to give consideration to amending the above provisions so as to ensure that arbitration in services other than those mentioned above, can take place only at the request of both parties involved in the dispute.
• – Section 85(3) of the ILRA, as amended, provides that the court shall dispose of the matter before it (including disputes between an employer and an employee, as well as the matters affecting trade unions and collective bargaining rights) within a period of one year from the day on which the complaint or application is presented to it. The Committee understands that, under section 85, the court has jurisdiction over the complaints of anti-union discrimination and trade union interference and recalls that when allegations of violations of trade union rights are concerned, both the administrative bodies and the competent judges should be empowered to give a ruling rapidly. The Committee therefore requests the Government to shorten the maximum period within which a court should consider the matter and issue its ruling thereon.

The Committee once again emphasizes the importance that should be attached to full and frank consultations taking place on any questions or proposed legislation affecting trade union rights. The Committee hopes that the envisaged amendments will be adopted in the very near future following full and frank consultations with the social partners. It requests the Government to provide information in its next report on any progress achieved in this respect and once again hopes that the amendments to the Act will be in full conformity with the provisions of the Convention and its comments above.

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Articles 1–4 of the Convention. The Committee had previously noted that a labour law review was on the agenda of the tripartite Consultative Labour Council. The Committee notes that the Industrial and Labour Relations (Amendment) Act No. 8 of 2008 has been adopted. The Committee however notes that according to the Government’s report, most of the amendments it has previously proposed, still remain unattended to, and were not taken into account during the process of the labour law review. The Committee further notes that according to the Government’s report, the concerns expressed by trade unions and employers’ associations, some of which were presented before the Parliamentary Committee on Economic, Social and Labour Affairs, have been referred to the Government for consideration, although since 1997, the said provisions have not been used against workers or employers. Finally, the Committee notes the Government’s indication that its previous comments have been noted and will be taken into account in the future review of the Industrial and Labour Relations Act.

In these circumstances, the Committee must recall its comments concerning the Industrial and Labour Relations Act (as amended by the Industrial and Labour Relations (Amendment) Act, 2008) (ILRA), which read as follow:

–      Section 78(1)(a) and (c) and (4) of the ILRA, as amended, allows, in certain cases, either party to refer the dispute to a court or arbitration. The Committee recalls that arbitration imposed by the legislation, or at the request of one party in the services which are neither essential in the strict sense of term, nor involving civil servants exercising authority in the name of the State, is contrary to the principle of the voluntary negotiation of collective agreements. The Committee therefore requests the Government to give consideration to redrafting the above provisions so as to ensure that arbitration in services other than those mentioned above, can take place only at the request of both parties involved in the dispute.

–      Section 85(3) of the ILRA, as amended, provides that the Court shall dispose of the matter before it (including disputes between an employer and an employee, as well as the matters affecting trade unions and collective bargaining rights) within a period of one year from the day on which the complaint or application is presented to it. The Committee understands that, under section 85, the Court has jurisdiction over the complaints of anti-union discrimination and trade union interference and recalls that when allegations of violation of trade union rights are concerned, both the administrative bodies and the competent judges should be empowered to give a ruling rapidly. The Committee therefore requests the Government to shorten the maximum period within which a court should consider the matter and issue its ruling thereon.

The Committee once again emphasizes the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights. The Committee hopes that the envisaged amendments will be adopted in the very near future following full and frank consultations with the social partners. It requests the Government to provide information in its next report on any progress achieved in this respect and once again hopes that the amendments to the Act will be in full conformity with the provisions of the Convention and its comments above.

International Trade Union Confederation (ITUC) comments. The Committee notes the comments made by ITUC in communications dated 29 August 2008 and 24 August 2010, stating that trade union rights are widely flouted, particularly in the mining sector, which is dominated by foreign owners who are often accused of intimidating behaviour. ITUC further indicates that the increasing number of sub-contractors in the mining industry makes it harder to organize, and when trade unions do succeed, they are faced with obstacles to bargain collectively. The Committee requests the Government to provide its observations thereon.

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The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 29 August 2008, which are being translated and will be examined in the framework of the next reporting cycle.

1. Article 4 of the Convention. The Committee recalls that it had previously requested the Government to confirm that collective bargaining was possible in the framework of essential services and to provide examples of collective agreements concluded in such services. The Committee notes the examples of collective agreements concluded in the water and sewage services mentioned in the Government’s report.

2. Articles 1, 2, 3 and 4. The Committee had previously noted that a labour law review was on the agenda of the tripartite Consultative Labour Council. The Committee notes the comments made by the Federation of Free Trade Unions of Zambia (FFTUZ) in a communication dated 16 June 2008, alleging that the new draft amendments to the Industrial and Labour Relations Act (ILRA) (Bill No. 6 of 2008) contain provisions, which, if adopted, would violate workers’ rights under the Convention and which were drafted without any consultation with the social partners. The Committee raises the following points in this respect:

–      Section 78(1)(a) and (c) and (4) of the ILRA, as amended, would allow, in certain cases, either party to refer the dispute to a court or arbitration. The Committee recalls that arbitration imposed by the legislation, or at the request of one party in the services which are neither essential in the strict sense of term, nor involving civil servants exercising authority in the name of the State, is contrary to the principle of the voluntary negotiation of collective agreements. The Committee therefore requests the Government to give consideration to redrafting the above provisions so as to ensure that arbitration in services other than those mentioned above, can take place only at the request of both parties involved in the dispute.

–      Section 85(3) of the ILRA would be amended so as to provide that the Court shall dispose of the matter before it (including disputes between an employer and an employee, as well as the matters affecting trade unions and collective bargaining rights) within a period of one year from the day on which the complaint or application is presented to it. The Committee understands that, under section 85, the Court has jurisdiction over the complaints of anti-union discrimination and trade union interference and recalls that when allegations of violation of trade union rights are concerned, both the administrative bodies and the competent judges should be empowered to give a ruling rapidly. The Committee therefore requests the Government to consider shortening the maximum period within which a court should consider the matter and issue its ruling thereon.

The Committee emphasizes the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights. The Committee hopes that the envisaged amendments will be adopted in the near future following full and frank consultations with the social partners. It requests the Government to provide information in its next report on any progress achieved in this respect and hopes that the amendments to the Act will be in full conformity with the provisions of the Convention and its comments above.

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The Committee takes note of the Government’s reports.

The Committee also notes the comments made by the International Confederation of Free Trade Unions (ICFTU) dated 10 August 2006 concerning the inefficiency of legal measures in cases of anti-union discrimination, including dismissals, particularly in the public sector; threats of dismissal in multinationals if workers do not give up trade union affiliation; and the increasing reluctance to bargain by national and municipal authorities. In its observations to these comments, the Government states, regarding the prevalence of anti-union discrimination, that it has experienced several illegal strikes in the local government where the Ministry of Labour and Social Security has intervened to resolve the matters and no cases of dismissal have been reported. The Government refutes the ICFTU’s claim that there is increasing reluctance to bargain, stating that the problem is that collective bargaining is being carried out centrally with the Local Government Association of Zambia instead of individual councils as employers.

Collective bargaining in the essential services. In its previous comments, the Committee had noted the Government’s statement to the effect that sections 75 and 76 of the Industrial Relations Act relate to the declaration of a collective dispute, and its reference to either conciliation or to the court. The Government had stated that the time frame stipulated in these sections promoted prompt interaction between the parties in the interest of collective bargaining. However, the Committee had pointed out that section 76 establishes that, where a collective dispute arises and any parties to it are engaged in an essential service, the parties to the dispute shall refer the dispute to the court. In its report, the Government indicates that collective bargaining in the framework of essential services is permissible only up to the point where a dispute is declared and that parties have to then refer the matter to the court. The Committee once again asks the Government to confirm that collective bargaining is possible in the framework of essential services, as well as to give examples of such collective bargaining indicating the period of time employed by the parties to negotiate.

The Committee notes that in its report, the Government indicates that consultations are taking place through the tripartite Consultative Labour Council under the Agenda of Review of Labour Laws. The Committee requests that the Government keep it informed of any developments in this regard.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matter raised in its previous direct request.

The Committee also notes the comments made by the International Confederation of Free Trade Unions (ICFTU) dated 23 October 2002 and 31 August 2005 concerning anti-union dismissals particularly in the public sector, and the threats of dismissal in multinationals if workers do not give up trade union affiliation. The Committee requests the Government to send its observations thereon.

Collective bargaining in the essential services. The Committee had noted the Government’s statement to the effect that sections 75 and 76 of the Industrial Relations Act relate to the declaration of a collective dispute, and its reference to either conciliation or to the court. The Committee had also noted that, according to the Government, the time frame stipulated in these sections promotes prompt interaction between the parties in the interest of collective bargaining. However, the Committee had pointed out that section 76 establishes that, where a collective dispute arises and any parties to it are engaged in an essential service, the parties to the dispute shall refer the dispute to the court. The Committee once again asks the Government to confirm that collective bargaining is possible in the framework of essential services.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matter raised in its previous direct request:

Collective bargaining in the essential services. The Committee notes the Government’s statement to the effect that sections 75 and 76 of the Industrial Relations Act relate to the declaration of a collective dispute, and its reference to either conciliation or to the court. The Committee also takes note that according to the Government, the time frame stipulated in these sections promotes prompt interaction between the parties in the interest of collective bargaining. However, the Committee points out that section 76 establishes that where a collective dispute arises and any parties to it are engaged in an essential service, the parties to the dispute shall refer the dispute to the court. The Committee asks the Government to clarify if collective bargaining is possible in the framework of essential services or if disputes are referred to the court directly without prior negotiation.

Furthermore, the Committee notes the comments made by the International Confederation of Free Trade Unions (ICFTU) and requests the Government to send its observations thereon.

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The Committee takes note of the information provided by the Government in its report, and of the statements formulated by the Industrial Relations Court according to which provisions of the Labour Relations Act do not include the unilateral imposition of wage freezes either on the part of the Government or indeed any other employer.

Article 4 of the Convention. The right of federations and confederations to bargain collectively. In its previous request the Committee had asked the Government to adopt measures to ensure that legislation guaranteed federations and confederations the right to bargain collectively. In its report the Government reiterates that these bodies are empowered by their registered rules to participate in bargaining at both enterprise and industry level, and that federation representatives may be co-opted into the bargaining unit. The Committee takes note of this information.

Collective bargaining in the essential services. The Committee notes the Government’s statement to the effect that sections 75 and 76 of the Industrial Relations Act relate to the declaration of a collective dispute, and its reference to either conciliation or to the court. The Committee also takes note that according to the Government, the time frame stipulated in these sections promotes prompt interaction between the parties in the interest of collective bargaining. However, the Committee points out that section 76 establishes that where a collective dispute arises and any parties to it are engaged in an essential service, the parties to the dispute shall refer the dispute to the court. The Committee asks the Government to clarify if collective bargaining is possible in the framework of essential services or if disputes are referred to the court directly without prior negotiation.

Articles 5 and 6. The Committee takes notes of the Government’s statement to the effect that the Zambia Prison Service is part of the security forces, and thus its exemption from the Industrial Relations Act is justified.

The Committee also notes that it is registrars of the court, and not clerks of the court, that are excluded from the scope of the Act.

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The Committee notes the Government's report and its response to the comments formulated by the Zambian Congress of Trade Unions.

Article 1 of the Convention. Sanctions in the event of anti-union discrimination. The Committee notes the Government's statement to the effect that section 30(5) of Act No. 30 of 1997 lays down that a court examining a case of anti-union discrimination can impose financial redress in the form of damages or compensation, reinstatement or any other decision which it considers appropriate.

Article 4. The right of federations and confederations to bargain collectively. The Government indicates in its response that federations and confederations may provide support to their affiliates during the collective bargaining process. The Committee points out that federations and confederations should enjoy the right to collective bargaining and requests the Government to adopt measures to ensure that legislation guarantees this right.

The power to refuse registration of collective agreements under section 71(2) of Act No. 27 of 1993. The Committee notes the Government's statement to the effect that registration of collective agreements has never been denied and that, in practice, the parties concerned are advised to amend only those clauses of their collective agreements which contravene national legislation or ratified Conventions or where wages are below the legal minimum wage.

Collective agreements in the essential services. The Committee notes the Government's response with regard to section 107(10) of Act No. 27 of 1993. The Committee notes that the list of essential services concerns services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee notes that under sections 75 and 76 of the above Act collective agreements in essential services are submitted to the tribunal 14 days following the filing of a complaint. This extremely short timescale does not promote voluntary collective bargaining. The Committee requests the Government to take the necessary measures to extend the prescribed time period beyond 14 days.

Articles 5 and 6. The application of Acts Nos. 27 of 1993 and 30 of 1997 to public officials and servants. The Committee notes that those employed in the Zambian defence forces, the police force, the penitentiary and intelligence services as well as judges, clerks of the court, magistrates and judges sitting in magistrates courts are excluded from the field of application of the above Acts. The Committee considers that employees of the penitentiary services and clerks of the court should enjoy the right to collective bargaining and requests the Government to take measures to amend national legislation to that effect.

The exclusion of classes of persons, professions, activities or enterprises from the field of application of legislation through a ministerial decision under section 2(2) of Act No. 27 of 1993. The Committee notes with interest the Government's response which refutes that a ministerial decision which excludes a class of worker, trade union or industry has been taken.

In response to the comments formulated by the Zambian Congress of Trade Unions on the unilateral freeze of salaries in the public sector, the Government refutes any infringement of the right to collective bargaining and explains that it is engaged in a vigorous reform programme to decentralize the public sector and improve its effectiveness. Moreover, in September 1998 the Government announced that the wage freeze would come to an end on 31 December 1998 and that wage negotiations would commence.

The Committee recalls that measures to establish unilateral wage rates should be of an exceptional character, should not exceed a reasonable period and should be accompanied by adequate safeguards to protect those workers most affected (see the 1994 General Survey on the freedom of association and the right to organize, paragraph 260). Moreover, prior to adopting such measures, the Government should consult with trade union organizations.

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The Committee notes the first report supplied by the Government.

The Committee notes the observations on the application of the Convention by the Zambia Congress of Trade Unions and asks the Government to make its comments thereon.

The Committee requests the Government to provide information on the following points.

Article 1 of the Convention. The Committee asks the Government to indicate what types of sanctions, for example fines, may be imposed in cases where acts of anti-union discrimination are committed.

Article 4. The Committee asks the Government:

-- to indicate whether or not federations and confederations have the right to bargain collectively;

-- to provide information on the application in practice of section 71(2) of Act No. 27 of 1993, in particular regarding cases in which the registration of collective agreements has been denied;

-- to provide information on the definition of essential services (including the list of them) where collective disputes shall refer to the Court by the parties (section 76(6) of Act No. 27 of 1993); and

-- to give some examples of relevant collective agreements concluded under the new Act.

Article 6. The Committee asks the Government to indicate:

-- whether or not Laws Nos. 27 of 1993 and 30 of 1997 apply to civil servants and public employees; and

-- if any class of persons, trade, industries or undertaking has been excluded from the scope of the laws through a ministerial decision, with respect to section 2(2) of Act No. 27 of 1993.