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

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comments

The Committee notes the observation of the Federation of Free Trade Unions in Zambia (FFTUZ), submitted with the Government’s report, alleging that the minimum requirement of having at least 25 employees in an institution before the workers can join a union of their choice has greatly disenfranchised employees from institutions with less than 25 employees, as these workers cannot belong to a union due to the aforementioned minimum legal requirement. The Committee requests the Government to provide its comments thereon.

Articles 2 and 3 of the Convention. Revision of the Industrial and Labour Relations Act. In its previous comment, the Committee had urged the Government to take all necessary measures to amend sections 2(e), 5 (b), 7(3), 9(3), 18(1)(b), 21(5) and (6), 43(1)(a), 78(4), and 107 of the Industrial and Labour Relations Act (ILRA) which pertain to the right of workers, without distinction whatsoever, to establish and join organizations, the right of organizations of workers and employers to elect their representatives, and the right of workers’ organizations to freely organize their activities and to formulate their programmes. The Committee notes the Government’s stated commitment to adhere to ratified Conventions and its indication that the ILRA will be undergoing review and that the concerns raised by the Committee will be tabled for debate during consultative meetings. Regarding section 5(b) of the ILRA, the Committee notes, however, the Government’s indication that the legislation does not prohibit employees from joining unions provided they are within the same sectors, due to differing skills bases and remuneration packages in various sectors. In this respect, the Committee once again recalls that such conditions may be applied to first-level organizations, on condition that these organizations are free to establish inter-professional organizations and to join federations and confederations in the form and manner deemed most appropriate by the workers concerned. The Committee firmly expects that the ILRA will be amended in the very near future, in consultation with the social partners, so as to bring it into full conformity with the Convention. The Committee requests the Government to provide information on all developments in this regard, and to provide a copy of the amended legislation.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Articles 2 and 3 of the Convention. Revision of the Industrial and Labour Relations Act. In its previous comment, the Committee had expressed regret that the last review of the Industrial and Labour Relations Act (ILRA) (Act No. 19 of 22 December 2017) failed to address the substantive issues raised by the Committee with regard to sections 2(e), 5(b), 7(3), 9(3), 18(1)(b), 21(5) and (6), 43(1)(a), 78(4), and 107, which pertain to the right of workers, without distinction whatsoever, to establish and join organizations, the right of organizations of workers and employers to elect their representatives, and the right of workers’ organizations to freely organize their activities and to formulate their programmes. The Committee notes the Government’s indication that the ILRA assists in maintaining industrial harmony and stability of the labour market and that social partners are not dismayed by the provisions identified as problematic by the Committee. The Committee notes with deep concern that no consideration is being given to amending the ILRA by the Government. Recalling that it is the responsibility of the Government to ensure the application of the international labour Convention concerning freedom of association which has been freely ratified, the Committee urges the Government to take all necessary measures to amend the abovementioned provisions and to inform it of all steps taken in this respect.

The Committee had previously requested the Government to provide information with regard to the closing of the procedure for the recognition of the Zambia Union of Financial Institutions and Allied Workers (ZUFIAW) by the Zambia Revenue Authority (ZRA) and to indicate whether workers of the ZRA can establish or join unions of their own choosing without prior authorization. The Committee notes the Government’s indication that the ZRA is not a financial institution nor is it an allied financial institution. Thus, in line with section 5(b) of the ILRA, which limits trade union membership to workers in the same occupation or branch of activity, workers of the ZRA are not eligible to join the ZUFIAW. While noting the Government’s indication that out of 2243 ZRA employees, 1953 are members of the Zambia Revenue Authority Worker Union, the Committee recalls that conditions such as those set by section 5(b) of the ILRA may be applied only to first-level organizations, a category to which ZUFIAW does not belong. The Committee therefore emphasizes the need to amend the ILRA without further delay so as to ensure the right of workers to establish and join organizations of their own choosing in law and in practice.

[The Government is asked to reply in full to the present comments in 2023.]

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the Government’s reiteration in reply to the 2015 observations of the International Trade Union Confederation (ITUC) concerning allegations of dismissals of workers in the mining sector on grounds of participation in strikes, that protests and strikes are allowed as long as they adhere to the Provisions of the Industrial and Labour Relations Act. The Committee takes note of the observations of the ITUC received on 1 September 2016 referring to matters under examination by the Committee.

Revision of the Industrial and Labour Relations Act (as amended by the Industrial and Labour Relations (Amendment) Act, 2008). The Committee had previously requested the Government to amend the following provisions of the Industrial and Labour Relations (Amendment) Act No. 8 of 2008 (ILRA) so as to bring them in conformity with articles 2 and 3 of the Convention:

Article 2 of the Convention

• -section 2(e), which excludes from the scope of the Act, and therefore from the guarantees afforded by the Convention, workers in the prison service, judges, registrars of the court, magistrates and local court justices, and section 2(2), which accords the Minister discretional power to exclude certain categories of workers from the scope of the Act.
• -section 5(b), which provides that an employee can only become a member of “a trade union within the sector, trade, undertaking, establishment or industry in which the employee is engaged” since it limits trade union membership to workers in the same occupation or branch of activity. In this respect, the Committee once again recalls that such conditions may be applied to first-level organizations, on condition that these organizations are free to establish inter-professional organizations, and to join federations and confederations in the form and manner deemed most appropriate by the workers concerned.
• -section 9(3), which sets a maximum of six months as the period of registration of a trade union, thereby constituting a serious obstacle to the establishment of organizations and amounting to denial of the right of workers to establish organizations without previous authorization.

Article 3

• -section 7(3), which allows a labour commissioner to prohibit a trade union officer from holding office in any trade union for a period of one year if, following the commissioner’s refusal to register the union, this union is not dissolved within six months. In this respect, the Committee once again recalls that an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office.
• -section 21(5) and (6), which confers on the Commissioner the power to suspend and appoint an interim executive board of a trade union, as well as to dissolve the board and call for a fresh election.
• -sections 18(1)(b) and 43(1)(a), under which, a person, having been an officer of an employers’ or workers’ organization whose certificate of registration has been cancelled, may be disqualified from being an officer of a trade union if that person fails to satisfy the commissioner that she or he did not contribute to the circumstances leading to such cancellation.
• -section 78(4), which limits the maximum duration of a strike to 14 days, after which, if the dispute remains unsolved, it is referred to the court; section 78(6)–(8), under which a strike can be discontinued if it is found by the court not to be “in the public interest”; section 78(1), under which, as interpreted by a decision of the industrial relations court, either party may take an industrial dispute to court; section 107, which prohibits strikes in essential services, defined too broadly, and empowers the Minister to add other services to the list of essential services, in consultation with the tripartite consultative labour council; and which empowers a police officer to arrest, without any possibility of bail, a person who is believed to be striking in an essential service and which imposes a fine and up to six months’ imprisonment.

The Committee notes with regret that the last review of the ILRA (Act No. 19 of 22 December 2017) failed to address the substantive issues pointed out by the Committee. The Committee expects that the ILRA will be further amended in the very near future following full and frank consultations with the social partners and taking into account the comments it has been making for many years. The Committee urges the Government to provide information on any progress made in this respect.

The Committee recalls that for a number of years it has been requesting the Government to address the issue of the recognition of the Zambia Union of Financial Institutions and Allied Workers (ZUFIAW) by the Zambia Revenue Authority (ZRA). It had previously noted the Government’s indication that the enabling legislation may need to be reviewed to resolve the issue of recognition. The Committee notes with concern the Government’s indication in its report that the recognition of the ZUFIAW by the ZRA has been closed under guidance from the Ministry of Justice and the Bank of Zambia, as the ZRA is not in the sector represented by ZUFIAW. The Committee requests the Government to provide detailed information in this respect and to indicate whether workers of the ZRA can establish or join unions of their own choosing, without prior authorization as called for under the Convention.

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

The Committee notes the Government’s reply to the observations of the International Trade Union Confederation (ITUC) received in July 2012 concerning allegations of threats and intimidation of strikers in the mining sector. The Committee notes that the Government indicates that protests and strikes are allowed as long as they adhere to the Provisions of the Industrial and Labour Relations Act. The Committee also takes note of the ITUC’s observations received on 1 September 2015, which concern allegations of dismissals of workers in the mining sector on grounds of participation in strikes. The Committee requests the Government to provide further information on the specific allegations of the ITUC, including on the results of any investigations and judicial proceedings undertaken in relation to such matters. The Committee also takes note of the observations of the International Organisation of Employers (IOE) received on 1 September 2015, which are of a general nature.

Revision of the Industrial and Labour Relations Act (as amended by the Industrial and Labour Relations (Amendment) Act, 2008). In its previous comments, the Committee had noted that the Industrial and Labour Relations (Amendment) Act No. 8 of 2008 (ILRA) had been adopted, but that most of the amendments previously proposed by the Committee had not been taken into account when reviewing the law. The Committee takes note that the Government indicates that it is currently reviewing all labour laws and that the Committee’s comments regarding the ILRA will be taken into account in this review. The Committee also notes the Government’s indication that an issue previously raised by the ITUC, namely that the Zambia Revenue Authority (ZRA) has consistently used delaying tactics to effectively deny recognition to the Zambia Union of Financial Institutions and Allied Workers (ZUFIAW), will also be addressed in the ongoing review of the labour laws.

The Committee once again recalls that measures should be taken to bring the following provisions of the ILRA, into conformity with the Convention:

Article 2 of the Convention

Section 2(e), which excludes from the scope of the Act, and therefore from the guarantees afforded by the Convention, workers in the prison service, judges, registrars of the court, magistrates and local court justices, and section 2(2), which accords the Minister discretional power to exclude certain categories of workers from the scope of the Act.

Section 5(b) which provides that an employee can only become a member of “a trade union within the sector, trade, undertaking, establishment or industry in which the employee is engaged” since it limits trade union membership to workers in the same occupation or branch of activity. In this respect, the Committee recalls that such conditions may be applied to first-level organizations, on condition that these organizations are free to establish inter-professional organizations, and to join federations and confederations in the form and manner deemed most appropriate by the workers concerned.

Section 9(3) in order to shorten the period of registration of a trade union which is currently at a maximum of six months, constituting a serious obstacle to the establishment of organizations and amounting to denial of the right of workers to establish organizations without previous authorization.

Article 3

Section 7(3) which allows a labour commissioner to prohibit a trade union officer from holding office in any trade union for a period of one year if, following the commissioner’s refusal to register the union, this union is not dissolved within six months. In this respect, the Committee recalls that an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office.

Section 21(5) and (6) which confers on the Commissioner the power to suspend and appoint an interim executive board of a trade union, as well as to dissolve the board and call for a fresh election.

Sections 18(1)(b) and 43(1)(a), under which a person, having been an officer of an employers’ or workers’ organization whose certificate of registration has been cancelled, may be disqualified from being an officer of a trade union if that person fails to satisfy the commissioner that she or he did not contribute to the circumstances leading to such cancellation.

Section 78(4), which limits the maximum duration of a strike to 14 days, after which, if the dispute remains unsolved, it is referred to the court; section 78(6)–(8), under which a strike can be discontinued if it is found by the court not to be “in the public interest”; section 78(1), under which, as interpreted by a decision of the industrial relations court, either party may take an industrial dispute to court; section 107, which prohibits strikes in essential services, defined too broadly, and empowers the Minister to add other services to the list of essential services, in consultation with the tripartite consultative labour council; and which empowers a police officer to arrest, without any possibility of bail, a person who is believed to be striking in an essential service and which imposes a fine and up to six months’ imprisonment.

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 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 made in this respect and hopes that the amendments to the Act will be in full conformity with the provisions of the Convention. The Committee also hopes that the issue of the recognition of the ZUFIAW by the ZRA will be effectively addressed in the ongoing review of the labour laws.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

In its previous comments, the Committee had noted that Industrial and Labour Relations (Amendment) Act No. 8 of 2008 (ILRA) had been adopted. The Committee, however, noted that most of the issues raised in its previous comments still remain unattended to and were not taken into account during the process of the labour law review. The Committee notes that the Government indicates in its report that: (1) the moratorium on the discussion of the ILRA has been lifted as the matters before the courts of law arising from a petition by the Federation of Free Trade Unions of Zambia (FFTUZ) have been withdrawn; (2) it is willing to consider the Committee’s concerns and has engaged the social partners through the tripartite structures; and (3) it has engaged a consultant who will aid the Government in conducting a comprehensive labour review. The Committee hopes that 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:

Article 2 of the Convention.

• -Section 2(e), which excludes from the scope of the Act, and therefore from the guarantees afforded by the Convention, workers in the prison service, judges, registrars of the court, magistrates and local court justices, and section 2(2), which accords the Minister discretional power to exclude certain categories of workers from the scope of the Act.
• -Section 5(b) that provides that an employee can only become a member of “a trade union within the sector, trade, undertaking, establishment or industry in which the employee is engaged” since it limits trade union membership to workers in the same occupation or branch of activity. In this respect, the Committee recalls that such conditions may be applied to first-level organizations, on condition that these organizations are free to establish inter-professional organizations, and to join federations and confederations in the form and manner deemed most appropriate by the workers concerned.
• -Section 9(3) in order to shorten the period of registration of a trade union which is currently at a maximum of six months, constituting a serious obstacle to the establishment of organizations and amounting to denial of the right of workers to establish organizations without previous authorizations.

Article 3.

• -Section 7(3) that allows a labour commissioner to prohibit a trade union officer from holding office in any trade union for a period of one year if, following the commissioner’s refusal to register the union, this union is not dissolved within six months. In this respect, the Committee recalls that having committed an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office.
• -Section 21(5)(6) which confers to the Commissioner the power to suspend and appoint an interim executive board of a trade union, as well as to dissolve the board and call for a fresh election.
• -Sections 18(1)(b) and 43(1)(a), under which a person, having been an officer of an employers’ or workers’ organization whose certificate of registration has been cancelled, may be disqualified from being an officer of a trade union if that person fails to satisfy the commissioner that she or he did not contribute to the circumstances leading to such cancellation.
• -Section 78(4), which limits the maximum duration of a strike to 14 days, after which, if the dispute remains unsolved, it is referred to the court; section 78(6)–(8), under which a strike can be discontinued if it is found by the court not to be “in the public interest”; section 78(1), under which, as interpreted by a decision of the industrial relations court, either party may take an industrial dispute to court; section 107, which prohibits strikes in essential services, defined too broadly, and empowers the Minister to add other services to the list of essential services, in consultation with the tripartite consultative labour council; and which empowers a police officer to arrest, without any possibility of bail, a person who is believed to be striking in an essential service and which imposes a fine and up to six months’ imprisonment.

The Committee hopes that the future amendments will take into account the comments that it has been making for many years and that they 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 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.

Workers’ and employers’ organizations comments. The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 31 July 2012 alleging that protests are not tolerated in the mining sector and that strikers suffer retaliation as well as threats and intimidation. The Committee requests the Government to provide its observations on these comments.

The Committee notes the Government’s observations on the 2010 ITUC comments: (1) concerning the allegation that the Zambia Revenue Authority (ZRA) has consistently used delaying tactics to effectively deny recognition to the Zambia Union of Financial Institutions and Allied Workers (ZUFIAW), the Government indicates that the enabling legislation may need to be reviewed in order for the ZUFIAW to be recognized by the ZRA; and (2) concerning the allegation of intimidation of strikers through police intervention, the Government indicates that it has not used the police to intimidate striking workers but that the police may be called upon to maintain law and order to secure the property of the organization and the lives of employees and employers. The Committee requests the Government to indicate the measures it will take to amend the legislation in order for the ZUFIAW to be recognized by the ZRA.

The Committee notes the comments made by the International Organisation of Employers (IOE) on the right to strike, in a communication dated 29 August 2012, which are dealt with in the General Report of the Committee.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

In its previous comments, the Committee had noted that the Industrial and Labour Relations (Amendment) Act No. 8 of 2008 (ILRA) had been adopted. The Committee, however, noted that most of the proposed amendments 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. Finally, the Committee noted the Government’s indication that its previous comments 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 ILRA as there are matters before the courts of law arising from a petition by the Federation of Free Trade Unions of Zambia. The Committee further notes that the Government indicates that in spite of the aforesaid, it is willing to review the Committee’s concerns through the tripartite structures once the matters are disposed of by the courts of law.

In these circumstances, the Committee must once again recall its comments and in particular that measures should be taken to bring the following provisions of the ILRA, into conformity with the Convention:

Article 2 of the Convention:

• -Section 2(e), which excludes from the scope of the Act, and therefore from the guarantees afforded by the Convention, workers in the prison service, judges, registrars of the court, magistrates and local court justices, and section 2(2), which accords the Minister discretional power to exclude certain categories of workers from the scope of the Act.
• -Section 5(b) that provides that an employee can only become a member of “a trade union within the sector, trade, undertaking, establishment or industry in which the employee is engaged” since it limits trade union membership to workers in the same occupation or branch of activity. In this respect, the Committee recalls that such conditions may be applied to first-level organizations, on condition that these organizations are free to establish inter professional organizations, and to join federations and confederations in the form and manner deemed most appropriate by the workers concerned.
• -Section 9(3) in order to shorten the period of registration of a trade union which is currently at a maximum of six months, constituting a serious obstacle to the establishment of organizations and amounts to denial of the right of workers to establish organizations without previous authorizations.

Article 3 of the Convention:

• -Section 7(3) that allows a labour commissioner to prohibit a trade union officer from holding office in any trade union for a period of one year if, following the commissioner’s refusal to register the union, this union is not dissolved within six months. In this respect, the Committee recalls that having committed an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office.
• -Section 21(5)(6) which confers to the Commissioner the power to suspend and appoint an interim executive board of a trade union, as well as to dissolve the board and call for a fresh election. In this respect, the Committee recalls that any removal or suspension of trade union officers, which is not the result of an internal decision of the trade union, a vote by members or normal judicial proceedings, seriously interferes in the exercise of the trade union office to which the officers have been freely elected by the members of their trade unions. Provisions which permit the suspension and removal of trade union officers by the administrative authorities or under the provisions of legislation are incompatible with the Convention. Measures of this kind should be solely directed towards protecting the members of organizations and should only be possible through judicial proceedings. The law should lay down sufficiently precise criteria to enable the judicial authority to determine whether a trade union officer has committed acts warranting his suspension or removal; provisions, which are too vague or fail to comply with the principles of the Convention, do not constitute an adequate guarantee. The persons concerned should also enjoy all the guarantees of normal judicial procedures (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 122 and 123).
• -Sections 18(1)(b) and 43(1)(a), under which a person, having been an officer of an employers’ or workers’ organization whose certificate of registration has been cancelled, may be disqualified from being an officer of a trade union if that person fails to satisfy the commissioner that she or he did not contribute to the circumstances leading to such cancellation.
• -Section 78(4), which limits the maximum duration of a strike to 14 days, after which, if the dispute remains unsolved, is referred to the court. The Committee considers that such a restriction would seriously limit the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and formulate their programmes and is not compatible with Article 3 of the Convention.
• -Section 78(6)–(8), under which a strike can be discontinued if it is found by the court not to be “in the public interest”.
• -Section 78(1), under which, as interpreted by a decision of the Industrial Relations Court, either party may take an industrial dispute to court.
• -Section 107, which prohibits strikes in essential services, defined too broadly, and empowers the Minister to add other services to the list of essential services, in consultation with the Tripartite Consultative Labour Council.
• -Section 107, which empowers a police officer to arrest, without any possibility of bail, a person who is believed to be striking in an essential service and which imposes a fine and up to six months’ imprisonment. The Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed against strikers.

The Committee hopes that the future amendments will take into account the comments that it has been making for many years and that they 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 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.

ITUC comments. Finally, the Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 4 August 2011 concerning issues already raised by the Committee and indicating that the Zambia Revenue Authority (ZRA) has consistently used delaying tactics to effectively deny recognition to the Zambia Union of Financial Institutions and Allied Workers (ZUFIAW). The Committee had also previously noted the comments made by the ITUC in 2008 and 2010, on the application of the Convention and in particular concerning the intimidation of strikers through police intervention. The Committee requests the Government to provide its observations on all of these ITUC comments.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee recalls that, for many years, it has been requesting the Government to take the necessary measures to amend several provisions of the Industrial and Labour Relations Act (ILRA) to bring it into conformity with the Convention. In its previous comments, the Committee had 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 most of the proposed amendments 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. Finally, the Committee notes the Government’s indication that its previous comments will be taken into account in the future review of the Industrial and Labour Relations Act.

In these circumstances, the Committee must once again recall its comments and in particular that measures should be taken to bring the following provisions of the Industrial and Labour Relations Act (as amended by the Industrial and Labour Relations (Amendment) Act, 2008) (ILRA), into conformity with the Convention:

Article 2 of the Convention

–           section 2(e), which excludes from the scope of the Act, and therefore from the guarantees afforded by the Convention, workers in the prison service, judges, registrars of the court, magistrates and local court justices, and section 2(2), which accords the Minister discretional power to exclude certain categories of workers from the scope of the Act;

–           section 5(b) that provides that an employee can only become a member of “a trade union within the sector, trade, undertaking, establishment or industry in which the employee is engaged” since it limits trade union membership to workers in the same occupation or branch of activity. In this respect, the Committee recalls that such conditions may be applied to first-level organizations, on condition that these organizations are free to establish inter-professional organizations, and to join federations and confederations in the form and manner deemed most appropriate by the workers concerned;

–           section 9(3) in order to shorten the period of registration of a trade union which is currently at a maximum of six months, constituting a serious obstacle to the establishment of organizations and amounts to denial of the right of workers to establish organizations without previous authorizations;

Article 3 of the Convention

–           section 7(3) that allows a labour commissioner to prohibit a trade union officer from holding office in any trade union for a period of one year if, following the commissioner’s refusal to register the union, this union is not dissolved within six months. In this respect, the Committee recalls that having committed an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office;

–           section 21(5)(6) which confers to the Commissioner the power to suspend and appoint an interim executive board of a trade union, as well as to dissolve the board and call for a fresh election. In this respect, the Committee recalls that any removal or suspension of trade union officers, which is not the result of an internal decision of the trade union, a vote by members or normal judicial proceedings, seriously interferes in the exercise of the trade union office to which the officers have been freely elected by the members of their trade unions. Provisions which permit the suspension and removal of trade union officers by the administrative authorities or under the provisions of legislation are incompatible with the Convention. Measures of this kind should be solely directed towards protecting the members of organizations and should only be possible through judicial proceedings. The law should lay down sufficiently precise criteria to enable the judicial authority to determine whether a trade union officer has committed acts warranting his suspension or removal; provisions, which are too vague or fail to comply with the principles of the Convention, do not constitute an adequate guarantee. The persons concerned should also enjoy all the guarantees of normal judicial procedures (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 122 and 123);

–           sections 18(1)(b) and 43(1)(a), under which a person, having been an officer of an employers’ or workers’ organization whose certificate of registration has been cancelled, may be disqualified from being an officer of a trade union if that person fails to satisfy the commissioner that she or he did not contribute to the circumstances leading to such cancellation;

–           section 78(4), which limits the maximum duration of a strike to 14 days, after which, if the dispute remains unsolved, is referred to the court. The Committee considers that such a restriction would seriously limit the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and formulate their programmes and is not compatible with Article 3 of the Convention;

–           section 78(6)–(8), under which a strike can be discontinued if it is found by the court not to be “in the public interest”;

–           section 78(1), under which, as interpreted by a decision of the Industrial Relations Court, either party may take an industrial dispute to court;

–           section 107, which prohibits strikes in essential services, defined too broadly, and empowers the Minister to add other services to the list of essential services, in consultation with the Tripartite Consultative Labour Council; and

–           section 107, which empowers a police officer to arrest, without any possibility of bail, a person who is believed to be striking in an essential service and which imposes a fine and up to six months’ imprisonment. The Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed against strikers.

The Committee hopes that the future amendments will take into account the comments that it has been making for many years and that they 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 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.

ITUC comments. Finally, the Committee notes the comments made by the International Trade Union Confederation (ITUC) in communications dated 24 August 2010 and 29 August 2008, on the application of the Convention and in particular concerning the intimidation of strikers through police intervention. The Committee requests the Government to provide its observation thereon.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee takes note of Bill No. 6 of 2008 to amend the Industrial and Labour Relations Act (ILRA) and wishes to raise in this respect the following points.

1. With reference to its observation, the Committee notes that the following previously commented upon sections are not amended by the Bill: Sections 2(e) and 2(2), 18(1)(b) and 43(1)(a), 78(6)–(8) and 107. The Committee requests the Government to take the necessary measures in order to bring the abovementioned sections in line with the Convention.

2. With regard to the right of workers to establish and join organizations of their own choosing, the Bill proposes to amend section 5(b) so as to provide for the right of an employee to be a member of “a trade union within the sector, trade, undertaking, establishment or industry in which the employee is engaged” and the deletion of the words “a trade union of the employee’s choice”. As drafted, this provision would limit trade union membership to workers in the same occupation or branch of activity. In this respect, the Committee recalls that such conditions may be applied to first-level organizations, on condition that these organizations are free to establish inter-professional organizations, and to join federations and confederations in the form and manner deemed most appropriate by the workers concerned. The Committee requests the Government to ensure that the new legislative provision will ensure application of this principle.

3. With regard to the registration of trade unions, the Committee notes that the new text envisages a maximum six-month period for registration of a trade union (section 9(3)). The Committee considers that a long registration procedure constitutes a serious obstacle to the establishment of organizations and amounts to a denial of the right of workers to establish organizations without previous authorization. It therefore requests the Government to reconsider this provision so as to shorten the period of time within which a trade union must be registered.

4. Regarding the right of workers’ and employers’ organizations to elect their representatives in full freedom, the Committee notes that the Bill amends section 7(3) so as to allow a Labour Commissioner to prohibit a trade union officer from holding office in any trade union for a period of one year if, following the Commissioner’s refusal to register the union, this union is not dissolved within six months. In this respect, the Committee considers that having committed an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office. The Committee requests the Government to take the necessary measures so as to amend this provision accordingly.

5. With regard to the power conferred on the Commissioner to suspend and appoint an interim executive board of a trade union, as well as to dissolve the board and call for a fresh election (section 21(5) and (6), as amended by the Bill), the Committee considers that any removal or suspension of trade union officers, which is not the result of an internal decision of the trade union, a vote by members or normal judicial proceedings, seriously interferes in the exercise of the trade union office to which the officers have been freely elected by the members of their trade unions. Provisions which permit the suspension and removal of trade union officers by the administrative authorities or under the provisions of legislation are incompatible with the Convention. Measures of this kind should be solely directed towards protecting the members of organizations and should only be possible through judicial proceedings. The law should lay down sufficiently precise criteria to enable the judicial authority to determine whether a trade union officer has committed acts warranting his suspension or removal; provisions, which are too vague or fail to comply with the principles of the Convention, do not constitute an adequate guarantee. The persons concerned should also enjoy all the guarantees of normal judicial procedures (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 122 and 123). The Committee requests the Government to reconsider amendment to section 21 so as to ensure respect for the above principles.

6. With regard to the right to strike, the Committee notes that section 78(4), as amended, would limit the maximum duration of a strike to 14 days, after which, if the dispute remains unsolved, it is referred to the Court. The Committee considers that such a restriction would seriously limit the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes and is not compatible with Article 3 of the Convention. The Committee therefore requests the Government to abandon the proposed new amendment so as to ensure that the legislation does not impose restrictions of a maximum duration of a strike.

The Committee hopes that the envisaged amendments will take into account the comments that it has been making for many years and that they will be adopted in the near future following full and frank consultations with the social partners. The Committee 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.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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.

The Committee recalls that for many years it has been requesting the Government to take measures to bring the following provisions of the Industrial and Labour Relations Act (ILRA) into conformity with the Convention:

–      section 2(e), which excludes from the scope of the Act, and therefore from the guarantees afforded by the Convention, workers in the prison service, judges, registrars of the court, magistrates and local court justices, and section 2(2), which accords the Minister discretional power to exclude certain categories of workers from the scope of the Act;

–      sections 18(1)(b) and 43(1)(a), under which a person, having been an officer of an employers’ or workers’ organization whose certificate of registration has been cancelled, may be disqualified from being an officer of a trade union if that person fails to satisfy the commissioner that she or he did not contribute to the circumstances leading to such cancellation;

–      section 76, which establishes no time frame within which conciliation should end before a strike can take place;

–      section 78(6)–(8), under which a strike can be discontinued if it is found by the court not to be “in the public interest”;

–      section 78(1), under which, as interpreted by a decision of the Industrial Relations Court, either party may take an industrial dispute to court;

–      section 107, which prohibits strikes in essential services, defined too broadly, and empowers the Minister to add other services to the list of essential services, in consultation with the Tripartite Consultative Labour Council; and

–      section 107, which empowers a police officer to arrest, without any possibility of bail, a person who is believed to be striking in an essential service and which imposes a fine and up to six months’ imprisonment.

In this regard, the Committee notes the Government’s indication that the concerns of the Committee are being addressed through the review of the labour laws and that the Amendment Bills were pending before the Cabinet. It hopes that the envisaged amendments will take into account the comments that it has been making for many years and that they will be adopted in the near future following full and frank consultations with the social partners. The Committee 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.

Finally, 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 amending the Industrial and Labour Relations Act (Bill No. 6 of 2008) contains provisions, which, if adopted, would violate workers’ rights under the Convention and which were drafted without any consultation with the social partners. 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. A request with regard to the provisions of Bill No. 6 of 2008 is addressed directly to the Government.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report.

The Committee also notes the comments on the application of the Convention made by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 10 August 2006, referring to the arrest by the police of nine trade unionists during the national strike on 8 February 2005 and the arrest of 31 mineworkers during the strike held in July 2005, as well as the attempt to open criminal proceedings against the union leadership of the National Energy Sector and Allied Workers’ Union. In this respect, the Committee takes note of the observations submitted by the Government in which it indicates that: (1) with regard to the nine trade unionists arrested during the 2005 national strike, the police has only arrested people who were protesting without police permission and who could represent a danger for society; (2) with regard to the arrest of 31 mineworkers during a strike in July 2005, this was done to reduce tension between the parties to the conflict and to maintain peace in the country. The Committee recalls that the police authorities should be given precise instructions so that, in cases where public order is not seriously threatened, people are not arrested simply for having organized or participated in a demonstration, and that the arrest of trade unionists against whom no charge is brought involves restrictions on freedom of association, and governments should adopt measures for issuing appropriate instructions to prevent the danger involved for trade union activities by such arrests. The Committee requests the Government to ensure that these principles are respected.

The Committee recalls that for many years it has been requesting the Government to take measures to bring the following provisions of the Industrial and Labour Relations Act into conformity with the Convention:

–      section 78(6) to (8), under which a strike can be discontinued if it is found by the court not to be “in the public interest”;

–      section 100, which refers to exposing property to injury;

–      section 107, which prohibits strikes in essential services and empowers the Minister to add other services to the list of essential services, in consultation with the Tripartite Consultative Labour Council;

–      section 76, which establishes no timeframe within which conciliation should end before a strike can take place;

–      section 78(1) under which, as interpreted by a decision of the Industrial Relations Court, either party may take an industrial dispute to court;

–      section 107, which empowers a police officer to arrest, without any possibility of bail, a person who is believed to be striking in an essential service or who is violating section 100 (exposing property to injury), and which imposes a fine and up to six months’ imprisonment;

–      section 2(e), which excludes from the scope of the Act, and therefore from the guarantees afforded by the Convention, workers in the prison service, judges, registrars of the court, magistrates and local court justices, and section 2(2), which accords the Minister discretional power to exclude certain categories of workers from the scope of the Act; and

–      sections 18(1)(b) and 43(1)(a), under which a person, having been an officer of an employers’ or workers’ organization whose certificate of registration has been cancelled, may be disqualified from being an officer of a trade union if that person fails to satisfy the commissioner that she or he did not contribute to the circumstances leading to such cancellation.

In this regard, the Committee notes the Government’s indication that the Technical Tripartite Committee has amended the laws, which await adoption by the Tripartite Consultative Labour Council and ratification by Parliament. The Committee hopes that the envisaged amendments will take into account the comments that it has been making for many years and that they will be adopted in the near future. The Committee 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.

Finally, with regard to the observations of the ICFTU of 31 August 2005 concerning threats by the President to trade unions, the Committee notes the Government’s indication that these allegations are unfounded and that the trade unions were merely reminded to concentrate on the activities of workers’ interests which constitute their core business, rather than political issues. In this respect, the Committee recalls that “although the promotion of working conditions by collective bargaining remains a major feature of trade union action, (…) workers’ organizations must be able to voice their opinions on political issues in the broad sense of the term and, in particular, to express their views publicly on a government’s economic and social policy” (see General Survey on freedom of association and collective bargaining, 1994, paragraph 131).

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes with regret 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:

With reference to its observation, the Committee wishes to raise the following points.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations. With regard to its previous comments concerning the discretionary power of the Minister to exclude workers from the scope of the Labour Relations (Amendment) Act, 1997 (section 2(2)), the Committee once again recalls 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 once again urges the Government to amend section 2(2) so as to ensure that the discretionary power of the Minister cannot be exercised in such a way as to deny any category of workers the rights guaranteed under the Convention and to keep it informed of any use of this discretionary power.

The Committee notes that in its previous comments it had asked the Government to supply the legislation that guaranteed the right of association to workers in the prison service, judges and registrars of the court, magistrates and local court justices, who are excluded from the scope of the Labour Relations (Amendment) Act, 1997 (section 2). The Committee observes that the above categories of workers are currently not allowed to belong to either workers’ or employers’ organizations under the Industrial and Labour Relations Act, Cap. 269. The Committee recalls that the prison service, judges and registrars of the court, magistrates and local court justices, do not fall under the permissible exceptions of Article 9 of the Convention and therefore should be ensured, like all other workers, the right to establish and join organizations of their own choosing in accordance with Article 2 of the Convention. The Committee therefore asks the Government to amend the legislation so as to guarantee the above categories of workers the right to establish and join professional organizations of their own choosing, and to keep it informed of any measures contemplated or taken in this respect.

Articles 3 and 10. Right of organizations to elect their representatives freely. The Committee notes that in its previous comments it had asked the Government to provide information on any cases where a person has been disqualified from being an officer of a trade union. The Committee had observed that, under sections 18(1)(b) and 43(1)(a) of the Labour Relations (Amendment) Act, 1997, such disqualification may take place if a person, having been an officer of an employers’ or workers’ organization whose certificate of registration has been cancelled, fails to satisfy the commissioner that he did not contribute to the circumstances leading to such cancellation. The Committee recalls that having committed an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office, and requests the Government to amend its legislation accordingly.

The Committee requests the Government to indicate in its next report the measures taken or envisaged to bring the legislation into fuller conformity with the Convention on these matters.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

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

The Committee takes note of the observations communicated by the International Confederation of Free Trade Unions (ICFTU) of 2002.

Articles 3 and 10 of the Convention. Right of organizations to organize their activities and to further and defend the interests of their members. The Committee takes note of the observations communicated by the ICFTU according to which the definition of essential services is excessively wide. The Committee recalls that in its previous comments it had taken note of the Government’s intention to revise the legislation, in particular, by introducing the concept of minimum negotiated services, and had requested the Government to keep it informed of progress made in bringing the following provisions of the Industrial and Labour Relations Act into conformity with the Convention:

-  section 78(6) to (8) under which a strike can be discontinued if it is found by the court not to be "in the public interest";

-  section 100 which refers to exposing property to injury;

-  section 107 which prohibits strikes in essential services and empowers the Minister to add other services to the list of essential services in consultation with the Tripartite Consultative Labour Council.

The Committee once again recalls that the right to strike 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. The Committee requests the Government to keep it informed of the progress made in the legislative revision with respect to these sections of the Industrial and Labour Relations Act.

The Committee takes note of the ICFTU’s comments according to which the right to strike is subject to numerous procedural requirements such that it is next to impossible for workers to hold a legal strike. The Committee recalls that its previous comments had related to section 76 of the Industrial and Labour Relations Act, which establishes no time frame in which conciliation should end before a strike can take place. The Committee once again recalls that procedures should not be so slow or complex that a lawful strike becomes impossible in practice or loses its effectiveness. The Committee further notes that its previous comments related to section 78(1) of the Industrial and Labour Relations Act as interpreted by a decision of the Industrial Relations Court according to which, either party may take an industrial dispute to court. The Committee once again recalls that if the right to strike is subject to restrictions or a 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; recourse to arbitration should be at the request of both parties or in the case of strikes occurring in essential services in the strict sense of the term or in an acute national crisis. The Committee once again urges the Government to amend sections 76 and 78(1) of the Industrial and Labour Relations Act in accordance with the above.

With regard to its previous comments concerning section 107 of the Industrial and Labour Relations Act which empowers 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 (exposing property to injury), and which imposes a fine and up to six months’ imprisonment, the Committee once again emphasizes that sanctions for strikes should not be disproportionate to the seriousness of the violation and requests the Government once again to amend these provisions so as to bring them into full conformity with the Convention, in particular, by ensuring that no worker can be imprisoned for participation in a peaceful strike.

In addition, the Committee is addressing a request on certain other points directly to the Government.

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

The Committee finally notes the comments made by the ICFTU in a communication dated 31 August 2005 with regard to presidential threats against trade unions. The Committee requests the Government to communicate its observations in this respect in its next report.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

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:

With reference to its observation, the Committee wishes to raise the following points.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations. With regard to its previous comments concerning the discretionary power of the Minister to exclude workers from the scope of the Labour Relations (Amendment) Act, 1997 (section 2(2)), the Committee notes that the Government does not provide any new information. The Committee once again recalls 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 once again urges the Government to amend section 2(2) so as to ensure that the discretionary power of the Minister cannot be exercised in such a way as to deny any category of workers the rights guaranteed under the Convention and to keep it informed of any use of this discretionary power.

The Committee notes that in its previous comments it had asked the Government to supply the legislation that guaranteed the right of association to workers in the prison service, judges and registrars of the court, magistrates and local court justices, who are excluded from the scope of the Labour Relations (Amendment) Act, 1997 (section 2). The Committee observes from the Government’s report that the above categories of workers are currently not allowed to belong to either workers’ or employers’ organizations under the Industrial and Labour Relations Act, Cap. 269. The Committee also notes from the latest and previous reports furnished by the Government that discussions are going on as regards allowing security officers to join representative organizations under the Industrial and Labour Relations Act, and that judges and magistrates have formed their own association to jointly articulate and protect their rights. The Committee recalls that the prison service, judges and registrars of the court, magistrates and local court justices, do not fall under the permissible exceptions of Article 9 of the Convention and therefore should be ensured, like all other workers, the right to establish and join organizations of their own choosing in accordance with Article 2 of the Convention. The Committee therefore asks the Government to amend the legislation so as to guarantee the above categories of workers the right to establish and join professional organizations of their own choosing, and to keep it informed of any measures contemplated or taken in this respect.

Articles 3 and 10. Right of organizations to elect their representatives freely. The Committee notes that in its previous comments it had asked the Government to provide information on any cases where a person has been disqualified from being an officer of a trade union. The Committee had observed that, under sections 18(1)(b) and 43(1)(a) of the Labour Relations (Amendment) Act, 1997, such disqualification may take place if a person, having been an officer of an employers’ or workers’ organization whose certificate of registration has been cancelled, fails to satisfy the commissioner that he did not contribute to the circumstances leading to such cancellation. The Committee notes that the Government provides no information in its report on this issue. The Committee therefore once again recalls that having committed an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office, and requests the Government to amend its legislation accordingly.

The Committee requests the Government to indicate in its next report the measures taken or envisaged to bring the legislation into fuller conformity with the Convention on these matters.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

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

The Committee takes note of the observations communicated by the International Confederation of Free Trade Unions (ICFTU) of 2002.

Articles 3 and 10 of the Convention. Right of organizations to organize their activities and to further and defend the interests of their members. With regard to its previous comments and the observation communicated by the ICFTU concerning certain limitations or restrictions of the right to strike which go beyond the limits permitted under the Convention, the Committee notes that the Government’s report does not provide any information in this respect.

The Committee takes note of the observations communicated by the ICFTU according to which the definition of essential services is excessively wide. The Committee recalls that in its previous comments it had taken note of the Government’s intention to revise the legislation, in particular, by introducing the concept of minimum negotiated services, and had requested the Government to keep it informed of progress made in bringing the following provisions of the Industrial and Labour Relations Act into conformity with the Convention:

-  section 78(6) to (8) under which a strike can be discontinued if it is found by the court not to be "in the public interest";

-  section 100 which refers to exposing property to injury;

-  section 107 which prohibits strikes in essential services and empowers the Minister to add other services to the list of essential services in consultation with the Tripartite Consultative Labour Council.

The Committee once again recalls that the right to strike 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. The Committee requests the Government to keep it informed of the progress made in the legislative revision with respect to these sections of the Industrial and Labour Relations Act.

The Committee takes note of the ICFTU’s comments according to which the right to strike is subject to numerous procedural requirements such that it is next to impossible for workers to hold a legal strike. The Committee recalls that its previous comments had related to section 76 of the Industrial and Labour Relations Act, which establishes no time frame in which conciliation should end before a strike can take place. The Committee once again recalls that procedures should not be so slow or complex that a lawful strike becomes impossible in practice or loses its effectiveness. The Committee further notes that its previous comments related to section 78(1) of the Industrial and Labour Relations Act as interpreted by a decision of the Industrial Relations Court according to which, either party may take an industrial dispute to court. The Committee once again recalls that if the right to strike is subject to restrictions or a 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; recourse to arbitration should be at the request of both parties or in the case of strikes occurring in essential services in the strict sense of the term or in an acute national crisis. The Committee once again urges the Government to amend sections 76 and 78(1) of the Industrial and Labour Relations Act in accordance with the above.

With regard to its previous comments concerning section 107 of the Industrial and Labour Relations Act which empowers 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 (exposing property to injury), and which imposes a fine and up to six months’ imprisonment, the Committee once again emphasizes that sanctions for strikes should not be disproportionate to the seriousness of the violation and requests the Government once again to amend these provisions so as to bring them into full conformity with the Convention, in particular, by ensuring that no worker can be imprisoned for participation in a peaceful strike.

In addition, the Committee is addressing a request on certain other points directly to the Government.

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

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

With reference to its observation, the Committee wishes to raise the following points.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations. With regard to its previous comments concerning the discretionary power of the Minister to exclude workers from the scope of the Labour Relations (Amendment) Act, 1997 (section 2(2)), the Committee notes that the Government does not provide any new information. The Committee once again recalls 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 once again urges the Government to amend section 2(2) so as to ensure that the discretionary power of the Minister cannot be exercised in such a way as to deny any category of workers the rights guaranteed under the Convention and to keep it informed of any use of this discretionary power.

The Committee notes that in its previous comments it had asked the Government to supply the legislation that guaranteed the right of association to workers in the prison service, judges and registrars of the court, magistrates and local court justices, who are excluded from the scope of the Labour Relations (Amendment) Act, 1997 (section 2). The Committee observes from the Government’s report that the above categories of workers are currently not allowed to belong to either workers’ or employers’ organizations under the Industrial and Labour Relations Act, Cap. 269. The Committee also notes from the latest and previous reports furnished by the Government that discussions are going on as regards allowing security officers to join representative organizations under the Industrial and Labour Relations Act, and that judges and magistrates have formed their own association to jointly articulate and protect their rights. The Committee recalls that the prison service, judges and registrars of the court, magistrates and local court justices, do not fall under the permissible exceptions of Article 9 of the Convention and therefore should be ensured, like all other workers, the right to establish and join organizations of their own choosing in accordance with Article 2 of the Convention. The Committee therefore asks the Government to amend the legislation so as to guarantee the above categories of workers the right to establish and join professional organizations of their own choosing, and to keep it informed of any measures contemplated or taken in this respect.

Articles 3 and 10. Right of organizations to elect their representatives freely. The Committee notes that in its previous comments it had asked the Government to provide information on any cases where a person has been disqualified from being an officer of a trade union. The Committee had observed that, under sections 18(1)(b) and 43(1)(a) of the Labour Relations (Amendment) Act, 1997, such disqualification may take place if a person, having been an officer of an employers’ or workers’ organization whose certificate of registration has been cancelled, fails to satisfy the commissioner that he did not contribute to the circumstances leading to such cancellation. The Committee notes that the Government provides no information in its report on this issue. The Committee therefore once again recalls that having committed an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office, and requests the Government to amend its legislation accordingly.

The Committee requests the Government to indicate in its next report the measures taken or envisaged to bring the legislation into fuller conformity with the Convention on these matters.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the Government’s report. The Committee also takes note of the observations communicated by the International Confederation of Free Trade Unions (ICFTU) of 2002.

Articles 3 and 10 of the Convention. Right of organizations to organize their activities and to further and defend the interests of their members. With regard to its previous comments and the observation communicated by the ICFTU concerning certain limitations or restrictions of the right to strike which go beyond the limits permitted under the Convention, the Committee notes that the Government’s report does not provide any information in this respect.

The Committee takes note of the observations communicated by the ICFTU according to which the definition of essential services is excessively wide. The Committee recalls that in its previous comments it had taken note of the Government’s intention to revise the legislation, in particular, by introducing the concept of minimum negotiated services, and had requested the Government to keep it informed of progress made in bringing the following provisions of the Industrial and Labour Relations Act into conformity with the Convention:

-  section 78(6) to (8) under which a strike can be discontinued if it is found by the court not to be "in the public interest";

-  section 100 which refers to exposing property to injury;

-  section 107 which prohibits strikes in essential services and empowers the Minister to add other services to the list of essential services in consultation with the Tripartite Consultative Labour Council.

The Committee once again recalls that the right to strike 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. The Committee requests the Government to keep it informed of the progress made in the legislative revision with respect to these sections of the Industrial and Labour Relations Act.

The Committee takes note of the ICFTU’s comments according to which the right to strike is subject to numerous procedural requirements such that it is next to impossible for workers to hold a legal strike. The Committee recalls that its previous comments had related to section 76 of the Industrial and Labour Relations Act, which establishes no time frame in which conciliation should end before a strike can take place. The Committee once again recalls that procedures should not be so slow or complex that a lawful strike becomes impossible in practice or loses its effectiveness. The Committee further notes that its previous comments related to section 78(1) of the Industrial and Labour Relations Act as interpreted by a decision of the Industrial Relations Court according to which, either party may take an industrial dispute to court. The Committee once again recalls that if the right to strike is subject to restrictions or a 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; recourse to arbitration should be at the request of both parties or in the case of strikes occurring in essential services in the strict sense of the term or in an acute national crisis. The Committee once again urges the Government to amend sections 76 and 78(1) of the Industrial and Labour Relations Act in accordance with the above.

With regard to its previous comments concerning section 107 of the Industrial and Labour Relations Act which empowers 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 (exposing property to injury), and which imposes a fine and up to six months’ imprisonment, the Committee once again emphasizes that sanctions for strikes should not be disproportionate to the seriousness of the violation and requests the Government once again to amend these provisions so as to bring them into full conformity with the Convention, in particular, by ensuring that no worker can be imprisoned for participation in a peaceful strike.

In addition, the Committee is addressing a request on certain other points directly to the Government.

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

The Committee notes with regret 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. Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations. With reference to its previous comments concerning the exclusion from the scope of the Labour Relations (Amendment) Act, 1997 (the "Act"), of the prison service, judges and registrars of the court, magistrates and local court justices (section 2 of the Act), the Committee notes with interest that, despite their exclusion from the scope of the Act, judges and magistrates have formed their own association through which they have jointly articulated and protected their rights. The Committee also notes that freedom of association, including the right to form or belong to any trade union, is guaranteed under articles 11 and 21 of the Constitution of Zambia Act, 1991. Nevertheless, the Committee recalls 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). Therefore, the Committee asks the Government to supply the legislation that guarantees the right of association to defend the professional interests of workers in the prison service, judges and registrars of the court, magistrates and local court justices.

2. Article 3. Right to elect their representative freely. Regarding the right of workers’ and employers’ organizations to elect their representatives in full freedom, the Committee recalls that pursuant to sections 18(1)(b) and 43(1)(a) of the Act, a person is disqualified from being an officer of a trade union or employers’ organization if, having been an officer of such an organization whose certificate of registration has been cancelled, the person fails to satisfy the commissioner that he did not contribute to the circumstances leading to such cancellation. The Committee noted the information supplied by the Government in its last report to the effect that these sections were not intended to curtail the right to elect representatives freely but were intended to protect employees’/employers’ organizations from being managed by leaders who have not acquired the desired experience to appreciate the needs of the workers and employers concerned. The Government also indicated that, where an individual’s integrity is in question, such person would be disqualified from being an officer of a trade union or employers’ organization. The Committee recalls that having committed an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office, and it requests the Government to indicate it in its next reports cases where a person has been disqualified from being an officer of a trade union or employers’ organization in application of sections 18(1)(b) or 43(1)(a).

The Committee asks the Government to forward in its next report the legislation and information requested above.

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

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.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information contained in the Government’s report.

1.  Article 2 of the Convention.  Right of workers, without distinction whatsoever, to establish and join organizations.  With reference to its previous comments concerning the exclusion from the scope of the Labour Relations (Amendment) Act, 1997 (the "Act"), of the prison service, judges and registrars of the court, magistrates and local court justices (section 2 of the Act), the Committee notes with interest that, despite their exclusion from the scope of the Act, judges and magistrates have formed their own association through which they have jointly articulated and protected their rights. The Committee also notes that freedom of association, including the right to form or belong to any trade union, is guaranteed under articles 11 and 21 of the Constitution of Zambia Act, 1991. Nevertheless, the Committee recalls 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). Therefore, the Committee asks the Government to supply the legislation that guarantees the right of association to defend the professional interests of workers in the prison service, judges and registrars of the court, magistrates and local court justices.

2.  Article 3.  Right to elect their representative freely.  Regarding the right of workers’ and employers’ organizations to elect their representatives in full freedom, the Committee recalls that pursuant to sections 18(1)(b) and 43(1)(a) of the Act, a person is disqualified from being an officer of a trade union or employers’ organization if, having been an officer of such an organization whose certificate of registration has been cancelled, the person fails to satisfy the commissioner that he did not contribute to the circumstances leading to such cancellation. The Committee takes note of the information supplied by the Government in its last report to the effect that these sections are not intended to curtail the right to elect representatives freely but are intended to protect employees’/employers’ organizations from being managed by leaders who have not acquired the desired experience to appreciate the needs of the workers and employers concerned. The Government also indicates that, where an individual’s integrity is in question, such person would be disqualified from being an officer of a trade union or employers’ organization. The Committee recalls that having committed an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office, and it requests the Government to indicate it in its next reports cases where a person has been disqualified from being an officer of a trade union or employers’ organization in application of sections 18(1)(b) or 43(1)(a).

The Committee asks the Government to forward in its next report the legislation and information requested above.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information contained in the Government’s report. 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 notes with interest the information provided by the Government in its report that this power has 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. The Committee notes with interest 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 takes note of the information supplied by the Government in its report to the effect that there is 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 notes 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 notes the information supplied by the Government in its 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 states that the action usually ends 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 notes that the Government will take its concerns into consideration when the ILO’s financially supported revision takes place. The Committee reminds the Government that its technical assistance is at the disposal of the national authorities.  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.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's first report, including the Industrial and Labour Relations (Amendment) Act, 1997 attached thereto. The Committee also takes note of the comments of the Zambia Congress of Trade Unions and the Government's response to these comments.

Article 2. The Committee notes that freedom of association, including the right to form or belong to any trade union, is guaranteed under articles 11 and 21 of the Constitution of Zambia Act, 1991. Section 5 of the Industrial and Labour Relations Act, 1993, as amended by the Industrial and Labour Relations (Amendment) Act, 1997, ("the Act"), also sets out the right of every employee to take part in the formation of a trade union and to be a member of a trade union of that employee's choice. A similar right for employers is established under section 37. Pursuant to section 2 of the Act, the following workers are not covered by the Act, and according to the report of the Government, are not otherwise provided with the right to form and join trade unions: the defence force, the police force, the prison service, the security intelligence service, judges and registrars of the court, magistrates and local court justices; the Minister also has discretion to exclude other persons from the scope of the Act. Recalling 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 requests the Government to specify in its next report whether those excluded from the scope of the Act can otherwise associate to protect and defend their interests. Regarding the general discretionary power of the Minister to exclude employees from the scope of the Act, the Committee requests the Government to specify on what basis this discretion is to be exercised, and again recalls the broad application of the Convention and the need to ensure that this discretion is not exercised in such a way as to deny workers the rights guaranteed under the Convention.

Article 3 (Right to elect their representatives freely). Regarding the right of workers' and employers' organizations to elect their representatives in full freedom, the Committee notes that pursuant to sections 18(1)(b) and 43(1)(a) of the Act, a person is disqualified from being an officer of a trade union or employers' organization if, having been an officer of such an organization whose certificate of registration has been cancelled, the person fails to satisfy the Commissioner that he did not contribute to the circumstances leading to such cancellation. In the view of the Committee, such criteria for disqualification is vague and the reason for cancellation does not seem to be given, nor is a time-limit set for the disqualification. The Committee recalls that having committed an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office. The Committee requests the Government to provide more information in its next report regarding the scope and interpretation of the provisions, and to consider amending them to ensure that workers are able to elect their representatives in full freedom, without undue interference from the public authorities.

Articles 3 and 10 (Right of organizations to organize activities to further and defend the interests 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, namely those services, the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee notes that certain provisions limit or restrict strikes in circumstances that do not fall within these categories, 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(10) 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 service. The Minister, in consultation with the Tripartite Consultative Labour Council, is also empowered to add any other service to the list of essential services. The Committee requests the Government to ensure that these provisions are applied in a manner that fully conforms with the Convention. The Committee draws to the Government's attention the concept of minimum negotiated services, which it may wish to substitute for the legislated restrictions that go beyond those permitted under the Convention. Such a service should be limited to the operations which 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, and the trade unions concerned should be able to participate in defining such services.

The Committee notes that where a person is believed to be striking in an essential service, a police officer may arrest that person without a warrant, and the person may then be liable to a fine and up to six months' imprisonment (section 107). Similar sanctions are set out for a violation of section 100. As sanctions for strikes should not be disproportionate to the seriousness of the violation, the Committee requests the Government to amend these provisions to bring them into fuller conformity with the Convention, in particular by removing the sanction of imprisonment.

Regarding the conciliation procedure that must be undertaken pursuant to section 76 of the Act before a strike can take place, the Committee requests the Government to indicate in its next report whether there exists any time-limit for the completion of the conciliation process, and if there is any means of determining when conciliation is deemed to have failed. 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. The Committee further requests the Government to provide it with information as to the interpretation of section 78(1), in particular specifying whether the parties to a collective dispute need to refer the matter to the court jointly, or whether each party can act independently in this regard. The Committee recalls that permitting one party to refer an interest dispute to adjudication is a violation of the Convention, except in the case of an essential service. Regarding section 78(3), providing for balloting in the case of a strike, the Committee requests further information as to the scope of this provision, in particular clarification as to which group of employees is to participate in the ballot.

The Committee notes that according to the Zambia Congress of Trade Unions, section 101(2), which provides that no employee may take part in a strike that is not in contemplation or furtherance of a collective dispute to which the employee or the trade union is a party, prohibits sympathy action. The Committee recalls that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action provided the initial strike which they are supporting is itself lawful. Noting further the comments of the Zambia Congress of Trade Unions concerning threats of deregistration due to a protest strike and the Government's reply thereto, the Committee reminds the Government that workers and trade unions should not be sanctioned for organizing or taking part in protest action in defence of workers' social, economic and occupational interests.

Regarding the provision requiring every employee to "promote, maintain and cooperate with the management of the undertaking in which the employee is employed in the interests of industrial peace, greater efficiency and productivity" (section 6), the Committee requests the Government to explain the meaning of this provision and in particular to indicate whether it in any way limits the right to strike set out elsewhere in the Act. In addition, with respect to the protection provided to striking workers, and noting that some protection is found in sections 78(11), 98 and 99, the Committee requests the Government to specify whether striking workers are fully protected from dismissal and other prejudice in employment.

The Committee requests the Government in its next report to supply the information referred to above and to indicate any measures taken or contemplated to bring the legislation into closer conformity with the Convention.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's first report, including the Industrial and Labour Relations (Amendment) Act, 1997 attached thereto. The Committee also takes note of the comments of the Zambia Congress of Trade Unions and the Government's reply to these comments. The Committee notes with satisfaction that the Industrial and Labour Relations (Amendment) Act, 1997, amends the Industrial and Labour Relations Act, 1993, which had recognized the Zambia Congress of Labour and the Zambia Federation of Employers as the only central bodies to which trade unions and employers' organizations could affiliate. Pursuant to the recent amendments, trade unions and employers' organizations are now free to establish and join federations of their own choosing, allowing for pluralism at the federation level.

The Committee also notes that the Industrial and Labour Relations Act, as amended, excludes certain groups of workers from its scope, and also contains other provisions that are not fully compatible with the rights enshrined in the Convention. The Committee, therefore, raises particular points in a request addressed directly to the Government.