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

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Zambia (Ratification: 1996)

The Committee notes that the Government’s report has not been received. It further notes the observations made by the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention and requests the Government to transmit its observations thereon. It must repeat its previous observation which read as follows:

The Committee recalls that its previous comments concerned the following discrepancies between the Labour Relations (Amendment) Act, 1997, and the provisions of the Convention:

­-  the discretionary power of the Minister to exclude workers from the scope of the Act;

­-  the limitations of the right to strike.

1. Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations. As regards the general discretionary power of the Minister to exclude employees from the scope of the Act (section 2(2)), the Committee had noted the information provided by the Government in its last report that this power had not been used at all. However, considering that pursuant to Article 2 of the Convention, workers and employers, without distinction whatsoever, are to have the right to form and join organizations of their own choosing, with the only possible exception being the police and armed forces (Article 9 of the Convention), the Committee recalls that the discretionary power of the Minister should not be exercised in such a way as to deny workers the rights guaranteed under the Convention. It therefore asks the Government to amend this provision to bring it into full conformity with the Convention and to inform it in its next report of all measures taken in this regard.

2. Articles 3 and 10 of the Convention. Right of organizations to organize activities to further and defend the interest of their members. The Committee recalls that the right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests. The Committee further recalls that this right can only be limited or restricted in specified circumstances, namely in the case of an acute national crisis or in essential services in the strict sense of the term, namely those services, the interruption of which would endanger the life, personal safety or health of the whole or part of the population. If the right to strike is subject to such restrictions or prohibition, workers should be afforded compensatory guarantees, for example conciliation and mediation procedures leading, in the event of a deadlock, to arbitration machinery seen to be reliable by the parties concerned.

The Committee notes once again that certain provisions in the Labour Relations Act, 1997, limit or restrict strikes in circumstances that go beyond those permitted under the Convention, in particular under section 78(6) to (8), a strike can be discontinued if it is found by the court not to be "in the public interest", and section 100 refers to exposing property to injury. In addition, section 107 prohibits strikes in essential services and section 107(10)(f) defines essential services broadly, in that it includes any service for the maintenance of not only safe but also sound conditions in mines, and the sewage services. The Minister, in consultation with the Tripartite Consultative Labour Council, is also empowered to add any other service to the list of essential services (section 107(10)(g)) where strikes are prohibited. In its previous comments, the Committee had noted the Government’s statement that during the revision of the Industrial and Labour Relations Act, it will take into consideration the previous indication made by the Committee; that is to say that the Government might substitute for the legislated restrictions that go beyond those permitted under the Convention the concept of minimum negotiated services, which should be limited to the operations that are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear. The Committee asks the Government to inform it in its next report of any progress made in this area.

With reference to its previous comments regarding the conciliation procedure that must be undertaken pursuant to section 76 of the Act before a strike can take place, the Committee noted the information supplied by the Government in its last report to the effect that there was no time frame provided in which conciliation should end; the conciliator terminates the conciliation effort when he or she is convinced that the continued effort will not result in a positive development. The Committee recalls the importance of ensuring that the procedures that are to be exhausted before a strike may be called must not be so slow or complex that a lawful strike becomes impossible in practice or loses its effectiveness. Furthermore, as regards the interpretation of section 78(1), the Committee noted that a recent decision of the Industrial Relations Court ruled that either party may now take the matter to court, and that this decision will be incorporated into law in due course. Recalling that recourse to arbitration should be at the request of both parties or eventually of one party in the case of strikes occurring in essential services in the strict sense of the term or in case of an acute national crisis, the Committee asks the Government to forward a copy of the decision of the Industrial Relations Court to enable it to examine its compatibility with the principles of freedom of association.

With reference to its previous comments as regards the possibility for a police officer to arrest without a warrant a person who is believed to be striking in an essential service or who is violating section 100 and the fact that this person is then liable to a fine and up to six months’ imprisonment (section 107), the Committee noted the information supplied by the Government in its last report that no worker or workers have been arrested and imprisoned when the workers in an essential service resorted to industrial action and, often times, the issue of imprisonment has never been considered. However, fines have been imposed on workers who, in furtherance of their industrial action, resort to violence and their action threatens state security. The Government also stated that the action usually ended at police stations after the admission of guilt and the payment of fines. Nevertheless, as sanctions for strikes should not be disproportionate to the seriousness of the violation, the Committee requests once again the Government to amend these provisions to bring them into full conformity with the principles of freedom of association, in particular by removing the sanction of imprisonment for strikes other than those in essential services in the strict sense of the term or in case of an acute national crisis.

Concerning the measures taken or contemplated to bring the legislation into closer conformity with the Convention, the Committee noted that the Government would take its concerns into consideration when the revision took place. It firmly hopes that all the necessary measures will be taken in the near future to bring the national legislation into full conformity with the Convention and it requests the Government in its next report to indicate any progress made in this area.