Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Zimbabwe (Ratification: 2003)

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2014 and 1 September 2015, the observations of the Zimbabwe Congress of Trade Unions (ZCTU) received on 31 August 2015, as well as the Government’s reply to the ZCTU observations. The Committee also notes the observations of the International Organisation of Employers (IOE) received on 1 September 2015, which are of a general nature.

Follow-up to the recommendations of the Commission of Inquiry (complaint made under article 26 of the Constitution of the ILO)

The Committee recalls that the Commission of Inquiry appointed under article 26 of the ILO Constitution to examine the observance by the Government of this Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), recommended that: the relevant legislative texts be brought into line with the Convention and Convention No. 98; all anti-union practices – arrests, detentions, violence, torture, intimidation and harassment, interference and anti-union discrimination – cease with immediate effect; national institutions continue the process the Commission had started whereby people can be heard, in particular referring to the Human Rights Commission and the Organ for National Healing and Reconciliation (ONHR); training on freedom of association and collective bargaining, civil liberties and human rights be given to key personnel in the country; the rule of law and the role of the courts be reinforced; social dialogue be strengthened in recognition of its importance in the maintenance of democracy; and ILO technical assistance to the country be continued.

The Committee also notes the report of the high-level technical mission of the Office that took place in February 2014, following the conclusions of the 2013 Conference Committee on the Application of Standards regarding the application of the Convention by Zimbabwe.

Trade union rights and civil liberties. The Committee recalls that it had previously asked the Government to keep providing information on the steps taken to ensure that the Zimbabwe Human Rights Commission and the ONHR would adequately contribute to the defence of trade union rights and human rights. The Committee notes that the Government indicates that the Zimbabwe Human Rights Commission is now fully established and operational in terms of article 242 of the Constitution. The Committee requests the Government to provide detailed information on the Zimbabwe Human Rights Commission activities related to trade union rights.

Regarding the request to the Government to indicate all measures taken to ensure the safety of Ms Hambira, General Secretary of the General Agriculture and Plantation Workers’ Union of Zimbabwe (GAPWUZ), allegedly forced into exile following threats received for reporting violations of farm workers’ rights, should she decide to return to the country. The Committee notes that the Government states that it has reiterated its assurances concerning the safety of Ms Hambira to the satisfaction of the ZCTU. The Committee further notes that the ITUC and the ZCTU last observations do not contain new allegations regarding the situation of Ms Hambira.

In its previous comments, the Committee had noted with concern the allegations submitted by the ITUC referring to incidents of obstruction of trade union activities by the police. While noting the Government’s replies highlighting that the ZCTU was able to freely carry out its activities in 2014 and 2015, the Committee observes with concern that the ITUC and the ZCTU once again allege serious disruptions of trade union activities by the Government through the Zimbabwe Republic Police. The trade union organizations specifically refer to: (i) the ban of three ZCTU regional marches on 11 April 2015; (ii) the ban of a march organized on 8 August 2015 to protest against the dismissal of 20,000 workers as a result of a Supreme Court ruling; (iii) the disruption by the Police of the mentioned protest, leading to the arrest of seven people, including the ZCTU President Mr George Nkiwane and the Secretary-General Mr Japhet Moyo, each of them being then released the same day outside the city centre; (iv) the presence of police vehicles at the ZCTU offices from 8 to 13 August 2015 preventing union members from accessing the building; and (v) a new ban by the police on 22 August 2015 of a new protest against the mass dismissals mentioned above, leading to the presentation of a petition to the High Court which ordered the police not to interfere with the demonstration. In this respect, the Committee notes that the Government states that: (i) the ZCTU was able to carry out its demonstrations of 11 April 2015 as planned and the police withdrew its initial refusal with respect to demonstrations in two provinces; (ii) the proposed protest actions on 8 and 22 August 2015 coincided with events of high national significance, meaning that it was impractical for the police to provide the necessary support to the ZCTU; and (iii) in future, it may be more practical, without prejudicing the right of trade unions to determine their activities with reasonable freedom, if the ZCTU could agree with the police on possible dates for protest action.

The Committee recalls additionally that it had previously requested the Government to intensify its efforts in ensuring that the Public Order and Security Act (POSA) was not used to infringe upon legitimate trade union rights, including the right of workers’ organizations to express their views on the Government’s economic and social policy. The Committee had welcomed the preparation of a draft handbook on freedom of association and civil liberties and the role of the law enforcement agencies, as well as a draft code of conduct for the state actors in the world of work and had requested to be informed on the validation and adoption of the two instruments. The Committee notes the Government’s indication that the draft handbook is scheduled to be finalized and adopted at a forthcoming training of trainers activity for police officers on International Labour Standards. In view of the persisting allegations that trade union activities have been disrupted by the police, and recalling that permission to hold public meetings and demonstrations, which is an important trade union right guaranteed by the Convention, should not be arbitrarily refused, the Committee urges the Government to take the necessary steps for the early adoption and effective implementation of the mentioned handbook and code of conduct, ensuring that the police and security forces follow clear lines of conduct with regard to human rights and trade union rights. The Committee requests the Government to provide information in this respect.

With respect to the Commission of Inquiry’s recommendation that steps be taken by the authorities to bring to an end all outstanding cases of trade unionists arrested under the POSA, the Committee notes the Government’s indication that two cases remain unclosed because, in spite of the Government’s suggestions, the ZCTU did not withdraw its constitutional applications. The Committee trusts that no further charges are pending against the trade unionists and requests the Government to provide information on the outcome of the judicial proceedings.

Labour law reform and harmonization. Following the Commission of Inquiry’s recommendations, the Committee had requested the Government to provide information on the progress achieved in bringing the labour and public service legislation into conformity with the new Constitution and the Convention. In this respect, the Committee notes that the Government informs that: (i) the Labour Amendment Act No. 5 was promulgated in August 2015; (ii) the Labour Amendment Act repeals section 55(e) and (f) which placed limitations on the internal administration of trade unions; (iii) the main objective of the Act was essentially to deal with urgent issues following a Supreme Court judgment that legitimized termination of employment on notice; (iv) the Government and the social partners thus continue, through the Tripartite Negotiating Forum (TNF), to engage towards the finalization of the labour legislation harmonization process; and (v) in the case of the amendments of the Public Service Act, the Attorney General is in the process of producing the draft bill. The Committee also notes that the ITUC and ZCTU denounce that: (i) the Labour Amendment Act does not respect the 13 principles agreed by the tripartite partners in 2014 in order to guide the harmonization process of labour legislation; (ii) the Government has not aligned sections 51, 55, 104, 106, 107, 109, 110, 112 and 127 of the Labour Act to the Constitution and the Convention defying the recommendations of the Commission of Inquiry; (iii) several provisions of the Labour Amendment Act violate the rights enshrined in the Convention; and (iv) the other pieces of legislation, including the POSA have still not been aligned to the Constitution and the Convention despite agreement in the TNF to expedite the process of legislative harmonization. While noting the Government’s reply to the ZCTU observations, the Committee, recalling the Commission of Inquiry’s recommendations, requests the Government to take, in consultation with the social partners, all further steps necessary in order to bring the labour and public service legislation into conformity with the new Constitution and the Convention. The Committee hopes that it will be able to note progress in this respect in the near future.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing. In its previous comments, the Committee had requested the Government to take the necessary measures so as to ensure that prison and correctional services’ employees enjoy the right to organize enshrined in the Convention. The Committee notes that the Government states that: (i) the prisons and correctional services are security services as defined by the new Constitution of Zimbabwe; (ii) article 65 of the Constitution expressly provides that members of the security services do not have the right to organize; and (iii) it is therefore the will of the people of Zimbabwe not to accord the right to organize to the prison and correctional services. In this respect, the Committee points out that according to Article 2 of the Convention, workers and employers without distinction whatsoever, shall have the right to establish and join organizations of their own choosing. The only exceptions to this principle that the Convention allows are set forth in Article 9(1), under which States may determine the extent to which the guarantees provided for in the Convention shall apply to the armed forces and the police. Recalling that the prisons and correctional services do not fall under the exception of Article 9(1) of the Convention, the Committee requests the Government to take the necessary steps to ensure that the employees of the mentioned services enjoy the right to organize. The Committee also requests the Government to provide information in this respect.

Difficulties in registration of new unions. The Committee notes that the ITUC and the ZCTU allege that, in spite of the rights granted by the new Constitution, the registration of trade unions is still at the discretion of the registrar. The Committee requests the Government to provide its comments in reply to these allegations.

Article 3. Right of workers’ and employers’ organizations to organize their administration. Promulgation of Labour Amendment Act No. 5 of 2015. The Committee welcomes the repeal by the Labour Amendment Act No. 5 of 2015 of section 55(e) and (f) of the Labour Act that placed limitations on salaries that may be paid to employees of trade unions and properties that may be purchased by such organizations. At the same time, the Committee recalls that the provisions of section 55 which, along with sections 28(2), 54(2) and (3), confer on the minister extensive powers to regulate trade union dues should also be amended so as to ensure respect for the freedom of employers’ and workers’ organizations to organize their administration. The Committee requests the Government to take the necessary steps to amend the abovementioned provisions and to inform on any progress achieved in this respect. In addition, the Committee notes that the ITUC and ZCTU denounce that: (i) new section 63(A) of the Labour Act introduced by the Labour Amendment Act violates Article 3 of the Convention as it gives broad powers to the registrar and the Minister of Labour to investigate and to take over the direction of an employment council (a bipartite body) if there is a belief of mismanagement; and (ii) new section 120 of the Labour Act broadens the powers of the Ministry of Labour to investigate trade union organizations and to appoint provisional administrators to manage the affairs of trade unions. Regarding the amendment to section 63(A) of the Labour Act, the Committee notes that the Government states that the broad responsibilities of employment councils, which conclude collective agreements applicable to entire economic sectors, require these bodies to be placed under central government supervision. With respect to the investigation powers granted to the Ministry of Labour by the new section 63(A) (applicable to bipartite employment councils) and section 120(2) of the Labour Act (applicable to workers’ and employers’ organizations) the Committee recalls that: (i) it had highlighted in its previous comments that the discretionary right of the authorities to carry out inspections and request information at any time entails a danger of interference in the internal administration of the trade union; and (ii) on that basis, both the Commission of Inquiry and the Committee had requested the Government to take the necessary measures to amend section 120(2) of the Labour Act. Observing that new section 63(A) grants similar powers to the authorities with respect to the bipartite employment councils, the Committee requests the Government to take the necessary measures to amend both sections 63(A) and 120(2) of the Labour Act so as to ensure that the autonomy of employers’ and workers’ organizations is fully respected.

In addition, the Committee observes that both the new section 63(A) of the Labour Act (applicable to employment councils) and the revised section 120 of the Labour Act (applicable to employers’ and workers’ organizations) provide that “pending determination by the Labour Court of an application to appoint an administrator, the Minister may appoint a provisional administrator who shall exercise all the powers of a substantive administrator until the provisional administrator’s appointment is confirmed by the Labour Court”. Recalling that, by virtue of Article 3 of the Convention, public authorities shall refrain from any interference which would restrict the right of workers’ and employers’ organizations to organize their administration, the Committee points out that outside control of workers’ and employers’ organizations should only take place in exceptional cases, as a result of a judicial decision and should be carried out by a person appointed by the judicial authorities. The Committee therefore requests the Government to take the necessary steps to amend sections 63(A) and 120 of the Labour Act accordingly and to inform of any progress in this respect.

Training activities related to the Convention. Recalling the importance granted by the Commission of Inquiry to the rule of law and the reinforcement of the independence of the judiciary in the country, the Committee notes the seminar on international labour standards jointly organized in September 2015 by the ILO and the Labour Court.

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