Migration for Employment Convention (Revised), 1949 (No. 97) - Zambia (RATIFICATION: 1964)

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Article 6(1)(b) of the Convention. Equality of treatment in respect of social security. The Committee notes that, according to the Government, the National Pension Scheme Act does not exclude foreign workers from membership except for those employed by international organizations that enjoy diplomatic immunity, but that until March 2013 all foreigners were being excluded from membership due to a misinterpretation of the term “international organization” under section (d) of the second Schedule of the Act. The Committee notes that the National Pension Authority has since clarified the meaning of the term and membership for all eligible foreign workers is now being enforced. The Committee also notes, however, that according to the National Pension Authority, workers employed by Mopani and Konkola copper mines were, at the inception of the national pension scheme in 2000, exempted from membership as part of the pre-sale conditions to facilitate the sale of the state-owned copper mines. The authority indicates that the exemption in respect of Mopani was reversed in 2008 but enforcement still remains a challenge. The Committee requests the Government to indicate the measures taken to ensure the effective enforcement of the National Pension Scheme Act with respect to workers from the Mopani copper mine, on an equal footing with nationals, and to indicate the reasons for the continued exclusion of workers of Konkola from eligibility for membership in the national pension scheme. Noting that proposed amendments to the National Pension Act are with the legislative drafters in the Ministry of Justice, the Committee asks the Government to ensure that in revising the legislation due account will be taken of the principle of equality of treatment in social security, embodied in Article 6(1)(b) of the Convention, and to provide information on any developments in this respect.

Article 6(1)(a)(i). Equality of treatment with respect to terms and conditions, including remuneration. The Committee previously noted that the draft Employment Act (Amendment Bill) aimed to strengthen the “Zambianization” Committee under the Ministry of Labour and Social Security so as to ensure that foreign nationals were allowed to take up only jobs where suitable and qualified Zambians were not available. It had noted also that section 75 of the draft Employment Act (Amendment Bill) provides that every expatriate employee and Zambian professional with matching qualifications engaged to hold similar roles shall be remunerated “equitably”, and that this includes all other terms and conditions of service applicable to the two categories of employees. The Committee notes the Government’s statement that most of the migrant workers from neighbouring countries are low-skilled workers and therefore compete for jobs meant for Zambians. The Government also indicates that Zambian labour laws do not discriminate between nationals and migrant workers with respect to remuneration and conditions of employment; however, organizations have the right to determine conditions of employment for their local migrant workers. The Government indicates further that, in the context of the labour law reform process, it has been recommended that the Employment Act be amended to include a provision requiring employers to ensure equal remuneration for the same work, similar work or work of equal value, irrespective of origin, nationality, sex, age, race or disability of the employee or worker. The Committee asks the Government to take the necessary steps to ensure that, under the draft Employment Act (Amendment Bill), nationals and migrant workers lawfully in the country are treated on an equal footing with respect to remuneration and terms and conditions of employment, and to provide information on any further developments concerning the draft Employment Act (Amendment Bill). Please also provide information on the activities of the “Zambianization” Committee.

Article 8. Maintenance of residence in the event of incapacity for work. Considering the increased migration flows into the country, the Committee requests the Government to provide information on the application in practice of the maintenance of the right to residence in the event of the incapacity for work of migrant workers admitted on a permanent basis.

Statistics. The Committee notes the Government’s statement that statistics are not readily available. The Committee wishes to draw the Government’s attention to the importance of gathering relevant statistics on emigration and immigration flows, disaggregated by sex and nationality as well as sector of employment, in the context of effective labour migration laws and policies, and encourages the Government to take the necessary steps to collect, analyse and supply such data with its next report.

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Article 6(1)(b) of the Convention. Equality of treatment in respect of social security. The Committee had previously emphasized that, pursuant to Article 6(1)(b) of the Convention, equality of treatment with respect to social security should be ensured with regard to all foreign workers lawfully in the territory and not only to those permanently residing in the country. It had noted the Government’s indication that the National Pensions Scheme Act No. 60, 1996, has transformed the National Provident Fund into a national pension scheme, which became operational on 1 February 2000. The Committee notes that pursuant to section 13(2) of the Act, the Minister may, by statutory instrument, vary or add to the list of employees in the second schedule of the Act. The Committee notes the Government’s statement in a report submitted in 2009 that there is no exemption of other categories of employees from the application of the provisions of the Act. However, the Government also states that consultations are ongoing on proposed amendments to the Act. The Committee hopes that the Government, in revising the National Pensions Scheme Act No. 9, 2000, will take due account of the principle of equality of treatment in social security, embodied in Article 6(1)(b) of the Convention, and asks the Government to provide information on any further developments with respect to the revision of the Act. Please also continue to provide information on any statutory instruments that have been adopted exempting other categories of employees from the National Pensions Scheme Act No. 9 of 2000.

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

Article 1 of the Convention. Information on national policies, laws and regulations. The Committee notes the Government’s statement that Zambia’s attractive investment policies have resulted in an influx of foreign labour into the country in the past five years. This trend has prompted the Government to review its policy with respect to the issuing of work permits and requirements for foreign nationals who wish to be self-employed. The Government indicates that the draft Employment Act (Amendment Bill) particularly aims to strengthen the “Zambianization” Committee so as to ensure that foreign nationals are only allowed to take up jobs where suitable and qualified Zambians are not available. The Committee notes that the draft Employment Act (Amendment Bill) defines Zambianization as meaning the process of adequately preparing Zambian nationals with requisite qualifications and skills to take over jobs occupied by foreign nationals. The Committee asks the Government to continue to provide information on how the recent influx of foreign labour is having an impact on its migration laws and policies. Please provide copies of any new or amended legislation or policies implementing the provisions of the Convention.

Article 6)(1)(a)(i). Equality of treatment with respect to remuneration. The Committee notes that section 75 of the draft Employment Act (Amendment Bill) provides that every expatriate employee and a Zambian professional with matching qualifications engaged to hold similar roles shall be remunerated “equitably”, and that this includes all other terms and conditions of service applicable to the two categories of employees. The Committee is of the view that, in practice, providing “equitable remuneration”, may be narrower than ensuring equal remuneration between nationals and non-nationals in according with the Convention. The Committee, therefore, asks the Government to consider revising the amendment to ensure that nationals and migrant workers lawfully in the country are treated on equal footing with respect to remuneration and terms and conditions of employment.

Protection against discrimination. The Committee notes that the definition of discrimination in the draft Employment Act (Amendment Bill) does not include nationality among the prohibited grounds of discrimination. It recalls that under the terms of paragraph 1 of Article 6 of the Convention, each ratifying Government undertakes to apply, without discrimination in respect of nationality, race, religion or sex, treatment no less favourable than that which it applies to its own nationals in respect of conditions of work and life (e.g. remuneration, membership of trade unions and enjoyment of benefits of collective bargaining, accommodation), social security, employment taxes and access to justice. The Committee encourages the Government to take the opportunity of the revision of the Employment Act to include provisions explicitly protecting foreign workers against discrimination, in particular with respect to the matters covered by Article 6(1)(a)–(d) of the Convention.

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Recalling that under the terms of paragraph 1 of Article 6, each State which has ratified the Convention undertakes to apply, without discrimination in respect of nationality, race, religion or sex, treatment no less favourable than that which it applies to its own nationals in respect of the matters set out in points (a)–(d) of the Article, the Committee would be grateful if the Government would indicate the measures which have been taken or are envisaged to ensure that migrant women workers are treated on an equal footing with their male colleagues, whether or not they are foreign nationals, with regard to conditions of work and life, social security, employment taxes and access to justice, in view of the increasing feminization of the migrant workforce (see General Survey on migrant workers, 1999, paragraphs 22, 23 and 658).

Article 8. As this provision was one of those referred to most frequently by governments on the occasion of the General Survey as raising difficulties with regard to its application (see General Survey, 1999, paragraphs 600–608), the Committee would be grateful if the Government would provide information on the application in practice of the maintenance of the right to residence in the event of the incapacity for work of migrant workers admitted on a permanent basis.

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Article 1 of the Convention. Information on migration law and policies. The Committee notes the Government’s statement that Zambia’s attractive investment policies have resulted in an influx of foreign labour into the country in the past five years. This trend has prompted the Government to review its policy with respect to the issuing of work permits and requirements for foreign nationals who wish to be self-employed. The Government indicates that the draft Employment Act (Amendment Bill) particularly aims to strengthen the “Zambianization” Committee so as to ensure that foreign nationals are only allowed to take up jobs where suitable and qualified Zambians are not available. The Committee notes that the draft Employment Act (Amendment Bill) defines Zambianization as meaning the process of adequately preparing Zambian nationals with requisite qualifications and skills to take over jobs occupied by foreign nationals. The Committee asks the Government to continue to provide information on how the recent influx of foreign labour is having an impact on its migration laws and policies. Please provide copies of any new or amended legislation or policies implementing the provisions of the Convention.

Article 6)(1)(a)(i). Equality of treatment with respect to remuneration. The Committee notes that section 75 of the draft Employment Act (Amendment Bill) provides that every expatriate employee and a Zambian professional with matching qualifications engaged to hold similar roles shall be remunerated “equitably”, and that this includes all other terms and conditions of service applicable to the two categories of employees. The Committee is of the view that, in practice, providing “equitable remuneration”, may be narrower than ensuring equal remuneration between nationals and non-nationals in according with the Convention. The Committee, therefore, asks the Government to consider revising the amendment to ensure that nationals and migrant workers lawfully in the country are treated on equal footing with respect to remuneration and terms and conditions of employment.

Protection against discrimination. The Committee notes that the definition of discrimination in the draft Employment Act (Amendment Bill) does not include nationality among the prohibited grounds of discrimination. It recalls that under the terms of paragraph 1 of Article 6 of the Convention, each ratifying Government undertakes to apply, without discrimination in respect of nationality, race, religion or sex, treatment no less favourable than that which it applies to its own nationals in respect of conditions of work and life (e.g. remuneration, membership of trade unions and enjoyment of benefits of collective bargaining, accommodation), social security, employment taxes and access to justice. The Committee encourages the Government to take the opportunity of the revision of the Employment Act to include provisions explicitly protecting foreign workers against discrimination, in particular with respect to the matters covered by Article 6(1)(a)–(d) of the Convention.

The Committee notes that the Government’s report does not reply to any of the other points raised in its previous direct request which read as follows:

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Recalling that under the terms of paragraph 1 of Article 6, each State which has ratified the Convention undertakes to apply, without discrimination in respect of nationality, race, religion or sex, treatment no less favourable than that which it applies to its own nationals in respect of the matters set out in points (a)–(d) of the Article, the Committee would be grateful if the Government would indicate the measures which have been taken or are envisaged to ensure that migrant women workers are treated on an equal footing with their male colleagues, whether or not they are foreign nationals, with regard to conditions of work and life, social security, employment taxes and access to justice, in view of the increasing feminization of the migrant workforce (see paragraphs 22, 23 and 658 its 1999 General Survey on migrant workers).

Article 8. As this provision was one of those referred to most frequently by governments on the occasion of the General Survey as raising difficulties with regard to its application (see paragraphs 600–608 of the above General Survey), the Committee would be grateful if the Government would provide information on the application in practice of the maintenance of the right to residence in the event of the incapacity for work of migrant workers admitted on a permanent basis.

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In previous observations, the Committee had emphasized that, pursuant to Article 6(1)(b) of the Convention, equality of treatment with respect to social security should be ensured with regard to all foreign workers lawfully in the territory and not only to those permanently residing in the country. It had noted the Government’s indication that the National Pensions Scheme Act, No. 60, 1996, has transformed the National Provident Fund into a national pension scheme, which became operational on 1 February 2000. The Committee notes that the Second Schedule, section 10, of the National Pensions Scheme Act, No. 9, of 2000, which should be read together with the National Pensions Scheme Act, No. 60, 1996, exempts employees of international organizations and employees of foreign governments with diplomatic or equivalent status who are not citizens of Zambia. It also notes that, pursuant to section 13(2) of the Act, the Minister may, by statutory instrument, vary or add to the list of employees in the Second Schedule. However, the Government indicates that the Act is again under review. The Committee hopes that the Government, in revising the National Pensions Schemes Act, 2000, will take due account of the principle of equality of treatment in social security, embodied in Article 6(1) (b) of the Convention, and asks the Government to keep it informed of any further developments with respect to the revision of the Act.  Please also indicate whether any statutory instruments have been adopted exempting other categories of employees from the National Pensions Scheme Act, No. 9 of 2000.

The Committee is raising other points in a request addressed directly to the Government.

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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 matters raised in its previous direct request, which read as follows:

1. In its 1999 General Survey on migrant workers, the Committee noted that international labour migration had undergone deep-rooted changes since the adoption of the Convention in terms of its scope, its directions and its nature (see paragraphs 5–17 of the General Survey). The Committee would be grateful if the Government would indicate the manner in which current trends in migratory flows have had an impact on the content and implementation of its national policy and legislation respecting emigration and immigration and if it would provide a copy of any new laws or regulations which have been adopted, as well as up to date information in reply to the questions set out in the report form of the Convention.

2. The Committee draws the Government’s attention to Article 6 of the Convention in particular and requests it to provide information on the implementation of its policy of equality of treatment between national workers and migrant workers with regard to the matters set out in points (a), (b), (c) and (d) of this Article. Recalling that under the terms of paragraph 1 of this Article, each State which has ratified the Convention undertakes to apply, without discrimination in respect of nationality, race, religion or sex, treatment no less favourable than that which it applies to its own nationals in respect of the matters set out in points (a) to (d) of the Article, the Committee would be grateful if the Government would indicate the measures which have been taken or are envisaged to ensure that migrant women workers are treated on an equal footing with their male colleagues, whether or not they are foreign nationals, with regard to conditions of work and life, social security, employment taxes and access to justice, in view of the increasing feminization of the migrant workforce (see paragraphs 22–23 and 658 of the above General Survey).

3. Article 8. As this provision was one of those referred to most frequently by governments on the occasion of the General Survey as raising difficulties with regard to its application (see paragraphs 600–608 of the above General Survey), the Committee would be grateful if the Government would provide information on the application in practice of the maintenance of the right to residence in the event of the incapacity for work of migrant workers admitted on a permanent basis.

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The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

For several years, the Committee has been emphasizing the need to amend the Second Schedule to the Zambia National Provident Act in order to ensure to all foreign workers lawfully within the territory, and not only to those residing permanently, treatment that is no less favourable than that which is applied to its nationals in respect of social security, in accordance with Article 6, paragraph 1(b), of the Convention. The Committee notes the information that Act No. 40 of 1996 respecting the national pension scheme has transformed the National Provident Fund into a national pension scheme, which became operational on 1 February 2000. The Committee regrets that the Government has not indicated in its report whether or not this new Act has taken its comments into account and that it has not provided a copy of the above Act. The Committee also notes that the ILO technical assistance project in the field of social security has come to an end. The Committee would be grateful if the Government would provide a copy of Act No. 40 of 1996.

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

The Committee is addressing a request directly to the Government on other matters.

 

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1.  In its 1999 General Survey on migrant workers, the Committee noted that international labour migration had undergone deep-rooted changes since the adoption of the Convention in terms of its scope, its directions and its nature (see paragraphs 5-17 of the General Survey). It would be grateful if the Government would indicate the manner in which current trends in migratory flows have had an impact on the content and implementation of its national policy and legislation respecting emigration and immigration and if it would provide a copy of any new laws or regulations which have been adopted, as well as up-to-date information in reply to the questions set out in the report form of the Convention.

2.  The Committee draws the Government’s attention to Article 6 of the Convention in particular and requests it to provide information on the implementation of its policy of equality of treatment between national workers and migrant workers with regard to the matters set out in points (a), (b), (c) and (d) of this Article. Recalling that under the terms of paragraph 1 of this Article, each State which has ratified the Convention undertakes to apply, without discrimination in respect of nationality, race, religion or sex, treatment no less favourable than that which it applies to its own nationals in respect of the matters set out in points (a) to (d) of the Article, the Committee would be grateful if the Government would indicate the measures which have been taken or are envisaged to ensure that migrant women workers are treated on an equal footing with their male colleagues, whether or not they are foreign nationals, with regard to conditions of work and life, social security, employment taxes and access to justice, in view of the increasing feminization of the migrant workforce (see paragraphs 22-23 and 658 of the above General Survey).

3.  Article 8.  As this provision was one of those referred to most frequently by governments on the occasion of the General Survey as raising difficulties with regard to its application (see paragraphs 600-608 of the above General Survey), the Committee would be grateful if the Government would provide information on the application in practice of the maintenance of the right to residence in the event of the incapacity for work of migrant workers admitted on a permanent basis.

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1.  For several years, the Committee has been emphasizing the need to amend the Second Schedule to the Zambia National Provident Act in order to ensure to all foreign workers lawfully within the territory, and not only to those residing permanently, treatment that is no less favourable than that which is applied to its nationals in respect of social security, in accordance with Article 6, paragraph 1(b), of the Convention. The Committee notes the information that Act No. 40 of 1996 respecting the national pension scheme has transformed the National Provident Fund into a national pension scheme, which became operational on 1 February 2000. The Committee regrets that the Government has not indicated in its report whether or not this new Act has taken its comments into account and that it has not provided a copy of the above Act. The Committee also notes that the ILO technical assistance project in the field of social security has come to an end. The Committee would be grateful if the Government would provide a copy of Act No. 40 of 1996.

2.  The Committee is addressing a request directly to the Government on other matters.

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The Committee notes the information supplied by the Government in reply to its previous observation.

The Committee recalls that, in the comments that it has been making for many years, it has emphasized the need to amend the Second Schedule to the Zambia National Provident Act in order to ensure to foreign workers lawfully within the territory treatment no less favourable than that which it applies to its nationals in respect of social security, in accordance with Article 6, paragraph 1(b), of the Convention, and to restrict any exclusion from the Zambia National Provident Fund to foreign workers engaged on short-term contracts and under specific conditions of work who already benefit from more advantageous social security coverage in their country of origin. The Committee notes the Government's statement to the effect that the substantial delay encountered in the development of a new national social security scheme is due to logistical problems. The Government is requesting the technical assistance of the Office for this purpose.

The Committee notes that an ILO technical assistance project in the field of social security is being implemented in the country and that the Government can benefit from its assistance to resolve the above problems related to bringing the national provisions respecting the National Provident Fund into conformity with the provisions of Article 6, paragraph 1(b), of the Convention.

The Committee hopes that the Government will soon report the progress achieved in this respect.

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The Committee notes the information supplied in the Government's latest report.

In the comments that it has been making for many years, the Committee has emphasized the need to amend the Second Schedule to the Zambia National Provident Act in order to ensure treatment no less favourable than that which it applies to its nationals in respect of social security, in accordance with Article 6, paragraph 1(b), of the Convention, and to restrict any exclusion from the Zambia National Provident Fund to foreign workers engaged on short-term contracts and under specific conditions of work who already benefit from more advantageous social security coverage by their country of origin. The Committee notes with regret that no measure has been adopted for this purpose. The Committee notes that the Government once again states that a new national security scheme, which is being prepared, will respect the equality of treatment of foreign workers in this regard.

The Committee requests the Government to supply a copy of the provisions of the new social security legislation giving effect to Article 6, paragraph 1(b), of the Convention, as soon as it is adopted.

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In its comments made for a number of years, the Committee stressed the need to amend the Second Schedule to the Zambia National Provident Act in order to ensure equality of treatment in social security, in conformity with Article 6, paragraph 1(b), of the Convention, and to restrict any exclusion from the Zambia National Provident Fund to foreign workers engaged on short-term contracts and under specific conditions of works who already benefit from more advantageous social security coverage in their countries of origin. The Committee notes the Government's intention, expressed in its last report, to adopt a new social security legislation, including new schemes in which account will be taken of the Committee's comments. It also notes that the Government hopes to be able to report on the progress achieved in its next report.

The Committee requests the Government to provide any information on the measures taken to bring the legislation into conformity with the Convention on this point.

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Further to its earlier comments, the Committee notes from the Government's report that the proposed amendment to the Second Schedule to the Zambia National Provident Fund Act will be considered by the appropriate machinery, although the objective of the proposed amendment is already applied in practice. In addition, the Government indicates its intention to establish a comprehensive social security scheme. The Committee hopes that the revision of the legislation that has been announced will provide for equality of treatment in social security, in conformity with Article 6, paragraph 1(b), of the Convention, and that any exclusion from the Zambia National Provident Fund will only apply to foreign workers engaged on short-term contracts and specific conditions of work who already benefit from more advantageous social security coverage in their countries of origin.

The Committee hopes that the Government will make every effort to take the necessary action in the near future. It requests the Government to report any progress accomplished in this respect.

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Article 6, paragraph 1(b), of the Convention. In reply to the Committee's comments, the Government states that the workers excluded from the Zambia National Provident Fund, under paragraph 10 of the Second Schedule to the Zambia National Provident Fund Act, are engaged on short-term contracts of employment and on specific conditions and are already covered by more advantageous social security in their countries of origin. While noting these explanations, the Committee observes that paragraph 10 of the Second Schedule refers to "any person who is employed in Zambia under an employment permit ... under the provisions of the Immigration and Deportation Act", and that under this Act, and as stated in the Government's reports, no foreign national other than established residents is allowed to work without an employment permit, so that the exclusion in paragraph 10 of the Second Schedule covers all foreign workers other than established residents. The Committee hopes that the Government will take the necessary steps to amend paragraph 10 of the Second Schedule to the Zambia National Provident Fund Act so as to expressly provide that the exclusion from the Zambia National Provident Fund applies only to foreign workers engaged on short-term contracts amd specific conditions of work who already benefit from more advantageous social security coverage in their countries of origin.

The Committee requests the Government to indicate in its next report any progress made in this direction.