Interim Report - Report No 284, November 1992

Case No 1575 (Zambia) - Complaint date: 22-MAR-91 - Closed

1. 837. The International Confederation of Free Trade Unions (ICFTU) presented its complaint of violations of trade union rights against the Government in a communication dated 22 March 1991. The Zambia Congress of Trade Unions (ZCTU) associated itself with this complaint in a letter dated 15 May 1991. The Miners' International Federation (MIF), on behalf of its affiliate the Mineworkers' Union of Zambia, presented its complaint on 3 June 1991. The Public Services International (PSI) presented its complaint on behalf of five national affiliates (the Zambia United Local Authorities Workers' Union, the National Union of Public Services, the Civil Servants' Union of Zambia, the Zambia Electricity and Allied Workers' Union and the Zambia National Union of Health and Allied Workers) in a communication of 25 September 1991.
2. 838. The Government sent observations on the case in communications dated 11 and 14 October 1991. After a change of government, the new Government sent information in letters dated 14 November 1991 and 24 January, 13 April and 16 July 1992.
3. 839. At its March 1992 Session, the Governing Body noted certain of the information on this case communicated in letters of 14 November 1991 and 24 January 1992 (281st Report of the Committee, para. 9, approved at the Governing Body's 252nd Session).
4. 840. Zambia has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). But, the Labour Relations (Public Service) Convention, 1978 (No. 151) has been ratified.

A. The complainants' allegations

1. 841. In its letter dated 22 March 1991, the ICFTU complained of two pieces of draft legislation, the Salaries and Conditions of Service Commission Act and the Industrial Relations Act, both of which were approved by the Zambian Parliament and received presidential assent on 23 January 1991. The exact date of their coming into force had yet to be indicated by the authorities.
2. 842. According to the ICFTU, the Salaries and Conditions of Service Commission Act contains provisions which, if put into effect, would constitute gross interference in the right of collective bargaining in the public and parastatal sectors. The public sector employs a considerable proportion of the Zambian workforce, and the fact that section 2(b) empowers the President to declare any company, association, statutory board or corporation, or any institution of learning in which the State holds any interest to be a parastatal body means that the restrictions on collective bargaining in the draft Act would have very extensive consequences.
3. 843. The Act provides for the establishment of a Salaries and Conditions of Service Commission. The manner in which the Commission is to be constituted, and its terms of reference are such that it could not carry out its functions independently, but would be under strong government influence. This is shown by the fact that: (i) the chairman and the six members of the Commission are to be appointed by the President (section 4(2)); (ii) trade union members are specifically excluded from membership of the Commission (section 4(4)(d)); (iii) the Commission is required to carry out its functions in close cooperation with the relevant ministry or departments of the Government or parastatal body (section 5(4)(a)); and (iv) the Commission is required to give effect to any general or specific directions that the President may give it in respect of the carrying out of its duties (section 5(7)).
4. 844. The effective government control of the Commission is particularly significant and damaging in view of the functions allocated to the Commission by section 5(1)(b); in addition to determining and reviewing salaries and conditions of service of non-trade unionists unilaterally, the Commission would be empowered to: "approve, either without amendment or with such amendments as it thinks fit, or to refuse to approve, the terms and conditions of service for public officers who are members of a trade union or similar organisation".
5. 845. As section 10 makes explicit, collective bargaining may still take place in the public and parastatal sectors, but only on condition that all collective agreements be submitted to the Commission which may approve, amend, or reject them as indicated above, and with retrospective effect. The ICFTU submits that the effect of the draft Act would be to require that prior approval be obtained from the authorities before a collective agreement can become effective.
6. 846. The ICFTU states that the Industrial Relations Act (which would repeal and replace the 1971 Act of the same name) attempts to impose a comprehensive legislative framework on the practice of industrial relations in Zambia. The ICFTU is concerned that the Act violates the basic rights of trade unions in numerous respects. Indeed, the nature of a number of these violations is such as to constitute a deliberate attack on the ZCTU, its elected leadership, and its affiliates.
7. 847. For example, the ICFTU refers to the registration and dissolution of trade unions. Under the Act, all trade unions must register. If a trade union fails to register, or is refused registration, it will be subject to dissolution within six months. The fact that the Act contemplates situations in which the Minister may lay down statutory conditions for registration and that failure to meet them will result in the refusal of registration (section 8(8)(b)) means that workers could be required to obtain previous authorisation to establish their own organisations, in contravention of the principles contained in Convention No. 87. In addition, the Labour Commissioner may refuse registration where he considers a trade union incapable of implementing any of its principal objectives (section 8(6)(b)) some of which are specified by law. This provision grants the authorities further unwarranted discretionary power over the basic right to organise. Similarly, the Commissioner is empowered to cancel the registration of a union which he considers to have ceased to pursue the principal objectives for which it was formed and registered (section 9(1)(b)). This provision runs counter to the principle that trade unions should not be subject to dissolution by administrative authority.
8. 848. Referring to interference in trade union activities, the ICFTU states that the Act contains a number of provisions that interfere severely in the internal affairs of Zambian trade unions, and of the ZCTU and in the relationship between individual unions and the ZCTU. In the latter regard, section 14(1) provides that all ZCTU affiliates will be considered to be disaffiliated at the time of its coming into force. Each such union would then need to obtain a two-thirds majority decision in favour of re-affiliation. This provision constitutes a violation of the right of trade unions to join federations and confederations and a clear attack on the ZCTU itself.
9. 849. The Act sets out a series of statutory clauses that must be contained in the constitution of any trade union (section 15(1)) and of the ZCTU (section 29(2)). These provisions go beyond matters of pure form, for example by requiring trade union training and workers' education to be one of the major purposes of the expenditure of trade union and ZCTU funds. This requirement is particularly significant in view of the liability of trade unions to summary dissolution for failure to pursue any of its principal objectives, and violates their right to draw up their constitutions and rules in full freedom.
10. 850. The Act further provides that certain decisions must be taken by properly supervised secret ballots. These include the election of officers, decisions to dissolve, merge or amend the constitution of organisations and, in the case of the ZCTU, "any proposal to affiliate with any organisation or body outside Zambia" (section 29(2)(k)(iii)). While no secret ballot is required for decisions on international affiliation by individual trade unions, section 35(3) stipulates that such affiliation must be on the basis of a two-thirds majority decision. The picking out of international affiliation for exceptional and excessive regulation in this manner represents an attempt to discourage or control the international relations of the Zambian trade union movement in contravention of Article 5 of Convention No. 87. This contravention is compounded by section 35(4) and (5) which requires trade unions to obtain prior ministerial approval for the receipt of "outside technical and financial assistance", and that the Minister should grant such approval if he is satisfied that such assistance "is not prejudicial to public security". The presumption would appear to be that international trade union assistance might be expected to be prejudicial to public security.
11. 851. The ICFTU considers that, by specifying a series of reasons why individuals may be disqualified from trade union office, the Act is in breach of the right of unions to elect their representatives in full freedom. Thus, section 17(1)(a) provides that nobody who has not been employed for a year or more in the trade, occupation or industry with which a trade union is directly concerned may hold office within it, except at the discretion of the Labour Commissioner; under section 17(1)(b) any person held to have contributed as an officer to the cancellation of the registration of a trade union is similarly disqualified; and section 30(1)(a) applies the same disqualification to the ZCTU. Further disqualifications are imposed in the case of ZCTU office on any candidate who is not nominated by the union of which he or she is a member as well as by delegates from nine others and on anybody whose freedom of movement is restricted for more than six months under any Zambian law. The last-mentioned regulation is clearly aimed against the ZCTU's current leadership.
12. 852. In addition, the Act improperly seeks to regulate the relationship between the ZCTU and its affiliated unions (sections 35 and 36) in areas which should be the sole concern of the organisations themselves. Moreover, sections 17(3) and 30(4) make it impossible for any trade unionist to be, at the same time, an officer of an individual trade union and a full-time official of the ZCTU.
13. 853. A provision of the Act that causes particular concern to the ICFTU is that which empowers the Labour Commissioner to suspend from office any official of a trade union or of the ZCTU where he is satisfied that a union organisation's financial affairs are not being conducted in accordance with its stipulations or where there has been any other continued breach of its terms (sections 20 and 33). These powers go well beyond the legitimate measures that may be taken to protect union funds against misuse, and imply the risk of serious acts of interference.
14. 854. The ICFTU states that the Act seeks to interfere with and disrupt long-standing agreements between trade unions and employers by which check-off facilities have been extended for the direct deduction of trade union dues. While section 22 explicitly recognises the possibility of such agreements with individual employees, it goes on to specify that they may be withdrawn at one month's notice in writing by the employer or by an individual employee.
15. 855. The ICFTU also alleges that the Act's regulations governing the use of trade union funds and those of the ZCTU (as well as of employers' organisations) place severe restrictions on the purposes for which such funds may be spent. Section 61(1) (now section 62(1) since the Act became law) prohibits such expenditure on "anything which is not directly related to the welfare of the members" of the organisation concerned, thus making impossible a range of legitimate activities such as sympathy, solidarity or humanitarian activities or activities related to general issues which may be held not to relate directly to members' interests. The provision thus impinges on the rights of trade unions to organise and administer their activities freely. In addition, the Act requires the establishment of voluntary political funds by those trade union organisations that pursue political objectives. Section 61(3) (now section 62(3)) stipulates that a two-thirds majority decision is required for the setting up of such funds, which the ICFTU regards as excessive.
16. 856. On collective agreements, collective disputes and restriction of the right to strike, the ICFTU states that the Act sets out the jurisdiction and working methods of the Industrial Relations Court which is given general powers of inquiry and adjudication, particularly to interpret the terms of awards or agreements and to decide collective disputes. The composition and terms of reference of the Court mean that it cannot act independently of government in the way that its mandate would require in order to be in accordance with principles of freedom of association. The chairman and vice-chairman of the Court are to be appointed by the President, and its other members by the Minister. While provision is also made for worker and employer "assessors", these are also to be appointed by the Minister without reference to the trade unions or employers' organisations, and the Court, while required to give "due consideration" to the opinions of the assessors, is not bound by them. Moreover, section 67(5) (now section 68(5)) states that in reaching any decision or making any awards concerning wages and conditions of employment, "the Court shall have regard to the Government's declared policy on prices and incomes". This requirement means that the Court cannot fulfil satisfactorily and impartially the conciliation and arbitration functions attributed to it under the Act. This shortcoming is particularly serious in view of the fact that Court decisions are final and binding on the parties concerned and that strike action in defiance of any such decision is punishable by a fine of up to 1,000 kwacha and/or a prison sentence of up to 12 months. The ICFTU is further concerned that the provisions in section 72 (now section 73) for the holding of closed sessions of the Court where its chairman considers that publicity would be prejudicial to the interests of justice, defence, public safety, public order or public morality imply further serious risk that the Court would not carry out its functions fairly and independently.
17. 857. The Act also provides for the establishment of structures and procedures for collective bargaining and the conclusion of collective agreements. However, section 84 (now section 85) appears to oblige the parties to a bargaining unit not only to begin negotiations at least three months before the date of expiry of a collective agreement, but also to conclude and sign a new agreement within that three-month period on pain of a fine up of to 100 kwacha and disqualification from office in a bargaining unit for up to three months. The provision does not appear to contemplate the possibility of the declaration of a collective dispute arising from a failure to reach agreement within three months, although section 88 (now section 89) does allow the possibility of the extension of an existing agreement in such circumstances.
18. 858. Where a collective agreement is concluded, section 85 (now section 86) stipulates that it must be submitted to the Labour Commission which may refuse to register it. Such refusal may be based either on reasons of form or on the Commission's finding that the agreement contains clauses that are "contrary to declared government policy on prices and incomes". The ICFTU submits that this amounts to a requirement of prior approval by the authorities before an agreement can come into force, in clear violation of the principles of Convention No. 98.
19. 859. The ICFTU points out that Parts X and XII of the Act deal separately with the settlement of disputes in services that are regarded by the Government as essential, and those that are not. A definition of essential services where strikes may not take place is provided in section 127(9) and (10) (now section 128) and is broader than that which has been accepted consistently by the ILO Committee, namely those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. Particularly damaging to the free exercise of the right to strike is the provision in subsection (10) which allows the Minister to apply to the Industrial Relations Court to have any service facing strike action to be declared an essential service.
20. 860. The ICFTU explains that any dispute arising in an "essential" service must be referred to the Industrial Relations Court for compulsory arbitration. Yet, as explained above, the Court does not constitute an appropriate mechanism to compensate the workers affected for the denial of the essential means they would otherwise have to defend their occupational interests as required by the Committee's past jurisprudence concerning the restriction of the right to strike in essential services. Moreover, section 128 makes interference in the provision of an essential service an offence and allows a police officer to arrest without warrant any person he believes is acting in such a manner. This provision puts trade unionists at risk from summary arrest and detention in a manner that seriously endangers the exercise of their basic trade union rights.
21. 861. In non-essential services, the Act provides for conciliation procedures and for the option of reference of a dispute to the Court. The ICFTU understands that neither of these possibilities detracts from the possibility, referred to in section 93(1)(b) (now section 94), for a union to conduct a strike ballot. Nevertheless, the requirement under subsection (3)(a) of a two-thirds majority of eligible voters in favour of strike action constitutes a serious obstruction to the legitimate exercise of the right to strike. Moreover, subsection (3)(b) allows the Minister to apply to the Court for a declaration that the continuance of a strike of seven days' duration is not in the public interest, and provides that where such a declaration is issued the dispute must be referred to the Court for compulsory arbitration. The ICFTU regards this provision as a serious and arbitrary limitation of the right to strike. In addition, section 122(2)(d) (now section 123) places improper restrictions on the purposes for which strike action may be taken in that it prohibits strikes which are "not in contemplation or furtherance of a collective dispute to which the employer or trade union is a party". This effectively outlaws sympathy strikes or strikes concerning general social and economic issues.
22. 862. Lastly, the ICFTU states that section 123 (now section 124) prohibits any person acting on behalf of a trade union organisation in the context of a collective dispute from "attending at or near" a dwelling place, place of work, or other place with the purpose of communicating information or of persuading or inducing other persons from taking part in a strike or demonstration, if the attendance is likely to intimidate, to cause an obstruction, or to lead to a breach of the peace. Persons contravening the terms of this section are liable to a fine of up to 2,000 kwacha and a prison sentence of up to six months. Where in similar circumstances an individual attends at someone's dwelling place with the purpose of persuading that person to join a strike or demonstration, even where that attendance is not judged intimidatory, this too constitutes an offence punishable by a fine or disqualification from trade union office. The ICFTU submits that these restrictions, given the discretion that may be exercised by the authorities in the identification of acts they judge to be intimidatory, obstructive or liable to provoke a breach of the peace, and the obstacles they pose on the communication of information by trade unionists in the context of a collective dispute, represent a violation of the right to picket and to incite peaceably workers to take part in industrial action.
23. 863. The MIF, in its complaint, refers to the two draft Acts and specifically to sections 127 (now numbered 128) and 123 (now numbered 124) of the draft Industrial Relations Act. It points out that section 127(9) defines as an essential service "any service for the maintenance in safe and sound conditions in a mine of underground working and drainage, shafts and shaft installations or machinery and plant". The MIF sees this as possibly covering the entire extraction process and notes that the interruption of these services would not endanger the life, personal safety or health of the population. The MIF adds that section 127(5) gives arbitrary authority to police forces to arrest any person whom they believe on reasonable grounds is acting in contravention of section 127, namely to arrest any unionist in the mining sector who exercises basic trade union rights, in particular the right to strike. This is further confirmed by subsection (3) which stipulates that "no employee, trade union or other person shall take part in a strike which is likely to hinder or interfere with the carrying on of any essential service". It believes that by referring to the likeliness of hindrance or interference, the Government is giving itself an instrument to ban at will any industrial action in the mining sector.
24. 864. The MIF also states that section 123 prohibits any person acting on behalf of a trade union organisation in the context of a collective dispute from "attending at or near" a dwelling place, place of work or other place with the purpose of communicating information or of persuading or inducing other persons from taking part in a strike or demonstration, if the attendance is likely to intimidate, to cause an obstruction, or to lead to a breach of the peace. Persons contravening the terms of this provision are liable to a heavy fine and a prison sentence. In Zambia, the major mining company, the ZCCM, offers housing to its employees which is usually located in the immediate vicinity of the mines. The MIF therefore submits that this provision represents a clear violation of the right to organise, to picket and to peacefully encourage workers to take part in industrial action.
25. 865. The PSI, in its complaint, encloses a copy of the affidavit lodged by the ZCTU in the High Court of Zambia for judicial review of the 1990 Industrial Relations Act. According to the affidavit, the Act is inconsistent with article 23 of the Zambian Constitution which provides that "No person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular, to form or belong to trade unions or other associations for the protection of his interests", and with article 22 which provides that "No person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be of the public interest or to any person or class of persons) and freedom from interference with his correspondence".
26. 866. The affidavit refers to the 1952 ILO resolution on the independence of the trade union movement and alleges that the 1990 Act is aimed at allowing the State to interfere with the normal functions of the ZCTU and its affiliates because the ZCTU has freely and independently decided not to associate with the political programme of the United National Independence Party. That was the party in power when the affidavit was lodged.
27. 867. The affidavit complains of the following provisions of the Act: section 2(2) (power given to the Minister to exempt any person or persons from complying with the statutory provisions of the Act, including the right of the citizen to belong or not to belong to a trade union); section 3(1) (restricts union activity by declaring certain services to be essential and by defining strikes in such services as illegal); section 14(1) (excludes existing ZCTU affiliate unions from being so affiliated and subjects them to a two-thirds majority vote of all members when seeking re-affiliation); section 14(2) (introduces similar conditions of disaffiliation from the ZCTU); section 15 (interferes with the freedom and independence of the trade union by providing that a decision by the trade union shall only be made by secret ballot and the ballot shall be supervised by a labour officer, and by prescribing the creation of a political fund for trade unions which will make it impossible for unions to engage freely in political activity); section 20 (empowers the Commissioner for Labour to suspend union officials on alleged account of financial mismanagement or irregularity despite the fact that each registered union already has its own machinery for removing or disciplining an officer of the union); section 22(2) (permits employers on one month's notice to withdraw from an agreement to deduct union subscriptions); section 29(2) (provides for the ZCTU to establish a voluntary political fund which is to be under government control in accordance with section 61 of the Act); section 30 (disqualifies certain persons from becoming officers of the ZCTU, namely those whose freedom of movement has been restricted under any law in force in Zambia for a period in excess of six months which is a major restriction given that administrative detention has been the order of the day during the period that Zambia has been under the governance of the United National Independence Party); section 35 (restricts the receipt of outside technical and financial assistance unless prior approval has been given by the Minister).

B. The previous Government's replies

1. 868. In its letter of 11 October 1991, the Government replies to the MIF's allegations. It argues that, in contrast to the earlier definition of essential services (contained in the 1971 Act), the 1990 Act has considerably narrowed the area covered by essential services so as to accommodate the views expressed by the ILO over a considerable period of time that the previous definition was too wide for effective enforcement and fairness. Hence in the 1990 Act, essential services largely cover those areas where an interruption of work would have dire consequences on the life, personal safety or health of the whole of part of the general public. It adds that in 1989 an ILO advisory mission to Zambia examined the definition of "essential services" as was then contained in the preliminary draft Bill. The final version of the definition in the 1990 Act was therefore based mainly on the suggestion of the ILO mission. Moreover, at a Tripartite Labour Consultative Meeting held on 18 September 1989, an ad hoc tripartite committee was established so as to consider the definition of "essential services" and make appropriate recommendations. The management of the Zambia Consolidated Copper Mines Limited and the Mineworkers' Union of Zambia (the current national chairman) were directly represented on this committee. That committee delegated the consideration of the matter in so far as it affected the mines to the two sector representatives who recommended the following services in the mines for inclusion in the term "essential services": mining, metallurgical processes, engineering, ventilation, geological survey and purchasing services. The recommendation was subsequently adopted by the full ad hoc committee. This shows firstly that in the determination of the matter under discussion, the Mineworkers' Union of Zambia, which has initiated this complaint, was involved and secondly, that the meaning of essential services as ultimately adopted so far as the mines are concerned is much narrower than was recommended by a body in which the union was very much involved.
2. 869. With particular reference to the submission by the MIF that by the nature of mining operations, the definition of essential services for the mines covers the entire extraction process, the Government disagrees. In the Government's view there are very many activities in or connected with mining operations that fall outside the meaning contained in section 128(9)(f) of the 1990 Act. With regard to the assertion that an interruption of the services set out there would not endanger the life, personal safety and health of the whole or part of the population, the Government states that, on the contrary, the repercussions of an interruption of work in those services would be catastrophic. The allegation seems to show a lack of appreciation of the nature of undergound mining operations in Zambia. For example, Chililabombwe Mine is one of the wettest mines in the world and over 400,000m3 of water has to be pumped from underground daily on a continuous basis. An interruption of the water draining operations due to a stoppage of work by pump attendants and other related workers would not only result in the immediate flooding of the mine, but more importantly the life of other miners underground and elsewhere would be very gravely endangered.
3. 870. With regard to the exercise of basic trade union rights in the mining sector, the Government points out that these rights accrue to miners as they do to all other workers in Zambia. Concerning the right to strike, the Government states that it recognises the fact that the strike is inherent in industrial relations as a legitimate means of defending workers' interests. However, the Government also recognises that there are certain services where strike action cannot be allowed because of the dangerous nature of those services. Thus, those workers in essential services as defined in the law should not strike at any time as they wish and there are provisions for expeditious grievance settlement procedures, including arbitration by an impartial body, at the disposal of aggrieved parties. Where essential workers strike in spite of such provisions, they commit a serious offence and may be arrested. It is important to recognise that the power of the police to arrest without warrant under section 128(5) extends only to essential service workers and to any persons who incite the commission of offences under the section. It does not cover all personnel in the mining sector as is made out by the MIF.
4. 871. Concerning picketing and related activities as provided for in section 124 of the 1990 Act, the Government states that there is nothing in the law to stop peaceful picketing provided it is not at or near a dwelling place. Where the picketing is conducted other than in a peaceful manner, this is not allowed. The main purpose of the law is the prevention of intimidation or violence in connection with industrial disputes. The Government does not accept the right to organise and to picketing at or near a dwelling place. What is "near a dwelling place" is a matter of evidence, and this arrangement recognises the privacy of the home as provided for in the Constitution of Zambia.
5. 872. In its letter of 14 October 1991, the Government replies to the ICFTU's allegations. On the Salaries and Conditions of Service Commission Act 1990, the Government states that section 10 preserves free collective bargaining for public service unions and those representing eligible unionised employees working in parastatal companies. What has changed is that instead of the public service unions and the Government registering collective agreements with the Prices and Incomes Commission, the agreements will now, in terms of section 5, be referred to the new Commission which is empowered to adjust what has been agreed upon in order to ensure taking into account the public interest, the capacity of the Government and the parastatal companies to pay and the state of the economy as a whole to sustain awards contained in the agreements. The new powers of the Commission take into account the lessons learnt by the Government from the last collective agreement it signed with the four public service unions. That agreement introduced housing allowances for civil servants which have been inflationary, and introduced serious ambiguities in the national pay structure. The variation was necessitated by local conditions in Zambia which the ILO Conventions recognise as a good and acceptable reason to modify the application of ILO Conventions to suit local conditions.
6. 873. The Government points out that the members of the tripartite Commission were recently appointed and include a former trade unionist and an employers' representative; its decisions will reinforce and not weaken collective bargaining in the public and parastatal sector.
7. 874. With regard to the Industrial Relations Act, 1990, the Government clarifies that the Act was enacted into law by Parliament at the close of 1990, assented to by the President on 31 January 1991 and brought into operation by the Minister on 1 June 1991 by virtue of Statutory Instrument No. 66 of 1991. A review of the new Act has recently been made and a number of proposed amendments identified. A Bill to enact these changes will be submitted to Parliament soon after the presidential and general elections scheduled for 31 October 1991.
8. 875. Replying to the specific allegation concerning registration and dissolution of trade unions, the Government states that the 1990 Act requires that every organisation which is intended to be a trade union must register within six months from the date of formation and where registration is refused, such organisation must dissolve following notification of the refusal to register. These provisions are not new because they were contained in the repealed Trade Union and Trade Disputes Act and the Industrial Relations Act of 1971. It also states that the Minister is empowered to make procedural regulations concerning registration of trade unions; to this effect he has issued Statutory Instrument No. 67 of 1991 (a copy of which is supplied) which lays down only formalities and procedural matters, and not conditions that can be said to be prior statutory authorisation to the establishment of trade unions or amounting to obstacles to their establishment. On the power of the Labour Commissioner to refuse registration of a trade union, the Government refers to sections 10 and 77 of the Act which allow any person or persons aggrieved by such refusal or by the Commissioner's decision to cancel the registration of a trade union to appeal in the first instance to the Industrial Relations Court and then to the Supreme Court. This shows that a limitation has been placed on the powers of the Labour Commissioner by providing for the right to appeal.
9. 876. With regard to the alleged interference in trade union activities, the Government states that it does not accept that to require trade unions to decide democratically on whether they shall affiliate or not affiliate to the ZCTU constitutes interference detrimental to the pursuit of trade union freedom. It believes that the provision in the new Act in this connection enhances the democratic rights of trade unions and their members. The repealed 1971 Industrial Relations Act had made affiliation of trade unions to the ZCTU compulsory; the 1990 Act has not only made affiliation to the ZCTU optional, but has given the trade unions the opportunity to decide through a democratic process on the question of affiliation to the ZCTU.
10. 877. As regards the contents of union constitutions, the Government points out that trade unions enjoy the right to draw up their own constitutions. The fact that the 1990 Act requires unions to comply with statutory requirements does not violate the principle of freedom of association and the right of trade unions to draw up their constitutions and rules as guaranteed by Convention No. 87. The Government adds that the trade unions' freedom to make their own rules is not absolute: it is subject to the need to respect the law of the land and the local circumstances.
11. 878. According to sections 15 and 35 of the 1990 Act, certain decisions of trade unions must be taken by secret ballot supervised in all cases by a labour officer. Decisions concerning affiliation to international workers' organisations may be approved only with the support of at least two-thirds of the general membership of the trade union concerned. Following the enactment of the law, representations were successfully made to the Government by the ZCTU over, among others, these sections and changes in the law will be made in due course. The proposed changes will empower trade unions to appoint independent persons to supervise all their ballots except strike ballots, which will continue to be supervised by labour officers. They will show that there is no intention to stifle or hinder the right of trade unions to establish international relations.
12. 879. Concerning the receipt of outside technical and financial assistance by trade unions, the Government notes that the 1971 Act had required trade unions, the ZCTU, employers' associations and the Employers' Federation to obtain the Minister's permission to receive even such offers as air tickets and small personal gifts. The 1990 Act has restricted the Minister's permission to technical and money offers. It is the view of the Government that the labour movement in Zambia should not be subject to outside manipulation which would jeopardise the security of the country through the receipt of outside offers to unsuspecting members of unions and associations. It is therefore desirable that the Government of the day should know what is being allowed into the country and have a record of the value of assistance coming from whatever external sources.
13. 880. Referring to section 17 of the Act specifying qualifications for election to trade union office, the Government considers that these provisions do not restrict the rights of workers to elect in full freedom their representatives who are qualified. The requirement that only those persons who have been associated with the trade, occupation or industry with which a trade union is directly concerned should be elected to office is intended to ensure that such persons as are elected are conversant with the situation and conditions affecting the workers involved so that they can represent them meaningfully and fully. With regard to disqualification in respect to nomination to ZCTU office, this matter has been reviewed and an amendment to the Act will be introduced in due course. The Government stresses that none of the provisions of the new law is aimed at specific individuals in the labour movement as the ICFTU contends.
14. 881. Regarding the relationship between the ZCTU and its affiliated unions, the Government explains that in a Supreme Court pronouncement in the 1988 case of National Union of Building, Engineering and General Workers v. ZCTU, the Court recognised that trade unions in Zambia were autonomous legal entities and not appendages or branches of the ZCTU particularly as regards internal governance. The Court counselled that there was a need to specify clearly the relationship between the ZCTU and affiliated trade unions. Thus section 35(2) of the 1990 Act clarifies the relationship and the extent of the power of the ZCTU over its affiliated bodies.
15. 882. Concerning the ban in section 30(4) against a person who is a full-time officer of the ZCTU from being an officer of any trade union, the Government points out that the rationale behind this is to promote and maintain impartiality of these officers when the interests of the ZCTU may differ with those of its affiliates. It was evident that a conflict of interest did arise in the 1988 case of NUBEGW v. ZCTU, referred to above.
16. 883. The concern of the ICFTU regarding the power of the Labour Commissioner to suspend from office any erring trade union or congress official has been noted. The Government submits, however, that this is a legitimate faculty available to the authorities when standards continue to be violated. It cannot and should not be seen as administrative suspension.
17. 884. With regard to the new rules for check-off agreements, the Government states that it does not accept that the collection of trade union dues by way of voluntary check-off has been interfered with by the arrangement of the new Act. An examination of the provisions in section 22 of the new Act and section 19 of the repealed Act will reveal no substantial change. The Government considers that since the agreements for the deduction and collection of dues are voluntary, the parties must have the opportunity to opt out. It is the Government's contention that the right to associate also means the right to disassociate. A compulsory dues system was not democratic for a majority of trade union members and hence it was replaced in the new Act.
18. 885. As regards the regulation of the use of trade union funds, the Government states that the provisions are intended to protect funds against abuse and to ensure that they are used in connection with the declared objectives or legitimate activities of the organisations. The requirement that the membership of the trade unions be consulted in connection with the establishment of political funds should be seen as enhancing democratic decision-making within the unions.
19. 886. On collective agreements, collective disputes and strikes, the Government states that the Industrial Relations Court is a judicial institution. Though falling under the portfolio of the Minister of Labour, the Court is independent in its operations and, as is clear from section 64(4) of the Act, the main object of the Court is to adjudicate cases before it as justice demands. The Government denies that, by its composition, the Court cannot act independently: whilst the assessors are appointed by the Minister, they are nominated by the trade unions and employers' organisations. The idea of the assessors is to associate directly employers' and workers' representatives with the work of the Court. It is not the intention that the assessors should assume the role and function of the Court. Like assessors in other judicial institutions, their role is advisory. It is not correct to suggest that the decisions of the Industrial Relations Court are final: the parties can, if aggrieved, appeal to the Supreme Court against any decisions of the Industrial Relations Court. The Government refers to section 77 of the 1990 Act which was not in the 1971 Act. As for section 73 of the 1990 Act, the Government states that it does not accept the anxiety expressed by the ICFTU that the fairness and independence of the Court would be adversely affected when court proceedings are held in camera. This provision, in the Government's opinion, is not incompatible with the guarantees of the ILO Convention on freedom of association.
20. 887. The Government has noted the allegations concerning the structures and procedures for collective bargaining, but states that one of the principles behind the 1990 Act is that collective bargaining should form the major basis for the determination of terms and conditions of employment for the bulk of the workforce. The provisions in the Act for the establishment of labour unions and employers' associations, the conclusion of recognition agreements between employers and labour unions and the establishment of joint industrial councils are all measures taken to ensure that collective bargaining plays an increasingly important role in the industrial relations system. Section 85 of the Act which specifically requires employers and trade unions to enter into negotiations for the purpose of concluding collective agreements must be seen as a positive step towards promoting collective bargaining. The Government explains that collective agreements in Zambia usually run for a specific period, at the end of which the agreement becomes invalid unless the bargaining parties deliberately extend it. Where therefore an agreement is not validated by extension or replaced by a new agreement, the workers concerned will operate without specific terms and conditions of service. It is for this reason that bargaining parties are required to commence and conclude negotiations three months prior to the expiry of the current agreement. If the parties are unable to conclude their negotiations, they are expected to extend the life of their current agreement. It is wrong to read section 85 in isolation and conclude that disputes arising out of inability to conclude collective agreements are not contemplated. The contents of section 91 of the Act obviously contemplate that disputes will arise over inability to agree on terms and conditions of employment and inability to agree would amount to reasonable cause or excuse for the purpose of section 85.
21. 888. Section 86 of the Act requires collective agreements to be submitted to the Prices and Incomes Commission for registration before implementation. The Commission is established under section 4 of the Prices and Incomes Commission Act of 1981, with the duty: (a) to formulate and recommend for approval of the Government a comprehensive prices and incomes policy; (b) to supervise the execution and implementation of the prices and incomes policy as approved by the Government; and (c) to examine and register collective agreements. The Government explains that the main interest groups including employers' and workers' organisations are represented on and take part in the deliberations of the Commission. The prices and incomes policy that is finally adopted therefore is not an imposition by the Government, but arises out of serious tripartite deliberations and consensus of all the parties and should at times be in line with the Government's general planning and programming. Where the Commission is unable to register a collective agreement, it will refer it back to the parties for renegotiation by the parties concerned. The Government emphasises that it adopts from time to time general development planning and programming which, by its very nature, entrusts the Government with safeguarding the public interest. Obviously, the Government cannot delegate that responsibility completely to trade unions and employers and their organisations. It is incumbent upon the Government to ensure that activities are in line with the orientation of the national development policy in fields of public life and public policy, including that of labour-management relations.
22. 889. Concerning section 127's definition of essential services, the Government considers that it is much narrower than was contained in the 1971 Act and conforms with the international definition, namely services whose interruption would endanger the life, personal safety and health of the population. The Government repeats that the definition in the 1990 Act was worked out in collaboration with a 1989 ILO advisory mission to Zambia. It also points out that the Industrial Relations Court is not empowered to declare all services facing strike action to be "essential". The Court can do so only in those circumstances where, by an objective test, it is convinced that any strike or threatened strike in the service concerned poses or would pose an immediate and real danger to the life, safety or health of part or the whole population. The fear expressed by the ICFTU seems unfounded. After all, in the 1971 Act, the Minister had discretionary power to declare any service to be an essential service whereas under the 1990 Act this power has been transferred to an independent court. The Minister can only recommend a declaration to the court.
23. 890. With regard to the settlement of disputes in respect of essential services, the Government states that the rationale behind the arrangements is that such disputes should be dealt with expeditiously. Hence the provision that disputes involving essential services should go straight to arbitration. The aspersion made on the impartiality of the Industrial Relations Court is totally unfounded. Concerning the power of the police to arrest without warrant any strikers in an essential service or any person who incites a person in an essential service to commit an offence, the Government does not think that such powers are a detraction from the exercise of basic trade union rights. It is not a basic trade union right to deprive the general population of an essential service by way of strikes. In any case, such cases would end up in court and the judicial process would take its normal course. With regard to strike action by non-essential service workers, the Government states that the 1971 Act did not expressly outlaw strikes but did not specify at what stage in the dispute settlement procedure a legal strike could be conducted. The 1990 Act has not only expressly retained the right to strike but specifies unequivocally when a legal strike may take place, provided that a collective dispute has been declared by the parties and a strike ballot has been held. Note has been taken of the ICFTU's observation that to require a two-thirds majority of eligible voters in favour of strike action constitutes an obstruction to the exercise of the right to strike. However, the Government considers that whilst it recognises the strike as a legitimate means at the disposal of workers, it also recognises the harm that can and usually does arise out of the disruptive effect of strikes both to the employer and the workers, as well as the general public. Strikes must therefore be used only when other avenues available for resolving the dispute have been unsuccessful. To strike is such an important decision that it must be supported strongly by the employees concerned, and the Government considers two-thirds to be such a strong support.
24. 891. The Zambian Government like any responsible government has a duty not only to establish rules, institutions and procedures for industrial relations but, as custodian of the public interest, it is entrusted with far-reaching responsibilities. The Government cannot remain a passive observer even where the general interest is seriously threatened. The provision of section 94(3)(b) of the Act is intended to enable the Government to take action to protect the public interest through a court declaration.
25. 892. As regards the alleged ban on sympathy strikes, the Government draws attention to the definition of "collective dispute" in section 3 as read with section 91 of the Act: a collective dispute is deemed to exist when there is a dispute between an employer or an organisation representing the employers and employees or an organisation representing the employees relating to terms and conditions affecting their employment. If therefore a strike is in connection with a collective dispute, it must affect only those workers directly concerned with the matter in dispute.
26. 893. With regard to picketing and related activities as provided for in section 124 of the Act, according to the Government there is nothing to stop peaceful picketing provided it is not at or near a dwelling place. Where picketing is conducted other than in a peaceful manner, this is not allowed. The purpose of this provision is to recognise the privacy of the home as provided in the Constitution of the country and to prevent intimidation and violence during industrial disputes. The Government does not accept that the right to organise is violated by the ban on intimidation or violent picketing. The Government also does not accept that it possesses discretionary power to identify acts of intimidation or acts liable to provoke a breach of the peace in terms of section 124. The authorities must prove the facts before a court of law.

C. The new Government's replies

1. 894. In its letter of 14 November 1991, the new Government replies to the PSI's allegations, noting that the affidavit is still before the High Court. It stresses the new Government's serious intention to review the 1990 Industrial Relations Act in the very near future in order to safeguard and promote trade union and workers' rights. It adds that the forthcoming review will be preceded by a tripartite consideration of the Act.
2. 895. In its letter of 29 January 1992, the Government states that a successful tripartite consultative meeting was held on 22-24 January 1992 involving representatives of the new Government, the ZCTU and the Zambia Federation of Employers. A thorough review of the 1990 Act was completed which will result in a number of amendments to the provisions raised in the complaint.
3. 896. In its letter of 13 April 1992, the Government announces that a Bill covering the changes proposed by the above-mentioned tripartite consultation is likely to be brought before the next session of Parliament.
4. 897. In its letter of 16 July 1992, the Government states that the Salaries and Conditions of Service Commission Act is due to be repealed in due course. The drafting of the Bill to amend the 1990 Industrial Relations Act is proceeding and the amendment exercise should be completed shortly.

D. The Committee's conclusions

1. 898. The Committee notes that this case involves allegations that (1) the Salaries and Conditions of Service Commission Act of 1990 interferes in the collective bargaining rights of public and para-public sector employees; and (2) the Industrial Relations Act of 1990, in a series of provisions, allows the State to intervene in the right of workers to form and join unions, in the right of workers' organisations to function freely, in the right of workers' organisations to strike, in their right to affiliate and in their right to bargain collectively.
2. 899. At the outset, the Committee notes that there has been a change of government in Zambia in the months following the lodging of these complaints and that the new Government has recently announced that, following successful tripartite consultations, a Bill to amend the 1990 Industrial Relations Act is to be before the next session of Parliament. It also notes that the Salaries and Conditions of Service Commission Act is to be repealed soon.
3. 900. The Committee does not consider that comments on the soon to be repealed Act would serve any purpose at this stage. However, since a series of legislative amendments to the 1990 Industrial Relations Act are under way, the Committee considers it worthwhile to indicate the specific freedom of association issues raised by the 1990 Act which should be addressed by the draft amendment Bill.
4. 901. As regards the right to form organisations, the complainants point out that registration is compulsory but that conditions for registration (section 8) and the Commissioner of Labour's wide powers to refuse or cancel registration (section 9) amount to prior authorisation and, in the case of cancellation, a form of dissolution by administrative authority. The Committee notes that some of the requirements are indeed extremely difficult to fulfil, such as the minimum membership threshold of 100 members, all of whom must sign the registration application form (section 8(1) and (2)). In previous cases, the Committee has considered that the establishment of a trade union may be considerably hindered or even rendered impossible when legislation fixes the minimum number of members at obviously too high a figure, such as 50 (Digest of decisions and principles of the Committee on Freedom of Association, 3rd edition, 1985, para. 256). In addition, the Committee has emphasised that the cancellation of registration of an organisation by the registrar of trade unions is tantamount to the suspension or dissolution of that organisation by administrative authority (Digest, para. 489).
5. 902. As for the automatic disaffiliation of unions from the ZCTU and the requirement to obtain a two-thirds majority for reaffiliation provided for in section 14(1) the Committee considers that this is a clear violation of the right of unions to affiliate to federations and confederations.
6. 903. As regards the right of workers' organisations to function without government interference, the complainants point out that sections 15 and 29 prescribe detailed items to be included in the constitutions of unions and the ZCTU, respectively, instead of letting the organisations decide themselves on the contents of their founding documents. The Committee considers that certain of these requirements should be left to the internal rules of a workers' organisation and should not be the subject of statutory imposition: for example, the need to include the purposes for which union funds may be used (Digest, para. 289). The Committee also considers that the requirement which is to be included only in the constitution of the ZCTU to use secret ballots for the question of affiliation to any body outside Zambia (section 29(2)(k)(iii)) should be left to the unions' rules.
7. 904. The complainants also allege that the new requirements for eligibility to union office are contrary to the right of workers' organisations to elect their leaders in full freedom, particularly the 12 months' occupational requirement (section 17(1)(a)), the non-responsibility for cancellation of a registration (section 17(1)(b)) and the disqualification from the ZCTU leadership related to restrictions on freedom of movement (section 30(1)(e)). The Committee has stated on many occasions in the past that provisions which require that trade union leaders shall, at the time of their election, have been engaged in the occupation or trade for more than one year are not in conformity with the principles of freedom of association (Digest, para. 304). Moreover, the Committee welcomes the undertaking to amend the eligibility requirement linked to restrictions on freedom of movement, which appears to be a particularly serious restriction not linked to being charged or convicted of any specific crime which might have a bearing on that individual's aptness to hold positions of trust and responsibility within a workers' organisation (Digest, para. 315).
8. 905. As for the ban on multiple office holding (sections 17(3) and 30(4)), the Committee is of the opinion that a ban on holding office in more than one workers' organisation interferes with the right of workers to choose the individual whom they believe will best represent them (Digest, para. 293).
9. 906. The complainants allege that new provisions concerning union finances and government discretion to suspend union officers on the basis of financial irregularities (sections 20 and 33) violate the right of workers' organisations to organise their administration and activities without interference. The Committee is conscious of the need for measures to protect union funds against misuse and to prevent fraud, and thus accepts such requirements as yearly audits of accounts (Digest, paras. 328, 330, 331 and 332). However, the Committee has always been wary that such measures could be applied in a manner as to interfere in the autonomy of the organisation and has clearly stated that the control exercised by the public authorities over trade union finances should not normally exceed the obligation to submit periodic reports (Digest, para. 333). In the present case, the provisions of the 1990 Act allow the Commissioner full discretion to order the administrative suspension of the union officer concerned - it being clear under the Act that this cannot be appealed to the Industrial Court - even without some form of initial investigation. The Committee accordingly considers that the provisions are contrary to the principle that administrative control should be applied only in exceptional cases, such as when there are suspected irregularities in the annual statements or when the members of the organisation themselves report irregularities (Digest, para. 334) and that removal of trade union officers should be effected only through the courts (General Survey, 1983, para. 177).
10. 907. As for the complainants' allegations that the new check-off arrangements disrupt long-standing agreements between unions and employers, the previous Government replied that section 22 of the 1990 Act does not substantially change the former provision but merely abolishes the compulsory dues system by allowing members to opt out. It thus appears that the option of continuing the current check-off arrangements continues to exist, but with the employer or the employee having the right to withdraw from such an agreement with one month's notice in writing. The Committee in past cases has stated that the withdrawal of check-off facilities, which could lead to financial difficulties for unions given the practical difficulties in collecting membership dues, is not conducive to the development of sound industrial relations and should be avoided (Digest, para. 325) and it considers that the new arrangements do not run counter to that principle.
11. 908. The complainants also refer in this connection to the restrictions on the use of union funds introduced by section 62(1) (ban on expenditure not directly related to the welfare of the members) and the enforced creation of a separate "voluntary political fund" where workers' or employers' organisations pursue political objectives (sections 15(1)(d), 29(2)(b) and 62(2) and (3)), which fund shall be administered in accordance with rules issued by the Minister. The Committee again cannot but note that this form of control over the internal affairs of workers' (and employers') organisations goes beyond the simple verification of conformity with the relevant laws and financial standards. Indeed, the Committee would recall generally that a general ban on trade unions from engaging in any political activities would not only be incompatible with the principles of freedom of association, but also unrealistic in practice given that unions may, for example, wish to express publicly their opinion on the Government's social and economic policy; while it is difficult to draw a clear distinction between what is political and what is, properly speaking, trade union in character, the Committee is of the view that the type of outside control over the use of funds present in the new provisions is contrary to the right of workers' organisations to organise their own administration (Digest, paras. 356 and 359).
12. 909. The complainants allege that the right of workers' organisations to strike is curtailed by the requirement that two-thirds of eligible members vote for a strike (section 93(3)(a)), by the ban on strikes not in contemplation or futherance of a collective dispute (section 123(2)(b)), by the broad definition of essential services (section 128(9)(f) and (g): "any service for the maintenance in safe and sound conditions in a mine of underground working and drainage, shafts and shaft installations or machinery and plant" and any other service declared by the Minister to be essential as an interruption would endanger the life, personal safety or health of the whole or part of the population), by the restriction of picketing (section 124) and by the arrest without warrant power vested in the police for suspected contravention of the strike ban in esential services (section 128(5)).
13. 910. With regard to section 93's requirements for a strike vote, the Committee takes note of the Government's reply that strikes should be used as a last resort when all other avenues for resolution of the dispute have been unsuccessful and that such an important decision should be supported strongly by the members, such as by two-thirds of them. The Committee recalls that in past cases it has stated that a two-thirds legal requirement for a strike vote constitutes an intervention by the authorities in the activities of trade unions of such a nature as to restrict their right to organise their activities without interference (Digest, para. 379); in the present case it therefore considers that the provision is contrary to the principles of freedom of association.
14. 911. With regard to section 123(2)(b)'s ban on strike action not linked to a collective dispute to which the employee or union is a party, the Committee recalls that the Committee of Experts on Application of Conventions and Recommendations has stated that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action provided that the initial strike which they are supporting is itself lawful (General Survey, 1983, para. 217). The Committee accordingly is of the view that the provision is contrary to the principles of freedom of association.
15. 912. With regard to section 128(9)(f)'s listing of "essential" mining operations, the Committee recalls that in past cases it has considered it normal to restrict the right to strike in certain sectors to the extent necessary to comply with statutory safety requirements (Digest, para. 413); in other cases where continuous staff was necessary for the safety of machinery and the prevention of accidents it considered that a minimum service could legitimately be required as long as the workers' organisations concerned could participate, if they so wish, in defining such a service in the same way as the employers and the public authorities (Digest, paras. 414 and 415). It accordingly considers that, rather than list these safety-related operations as essential thereby banning all strike action, the legislation might make the establishment of a minimum service - if agreed in accordance with the principle set out above - compulsory which would ensure the maintenance of drainage, shafts and machinery in mines.
16. 913. As regards the restriction of picketing near a dwelling place the Committee recalls that the Committee of Experts has declared that restrictions on picketing can only be justified if the action ceases to be peaceful (General Survey, 1983, para. 218). Noting that, in the present case, it is alleged that many workers both live and work on the same premises, the Committee would particularly draw to the Government's attention the fact that the current ban amounts to unacceptable interference by the public authorities in the activities of the workers' organisations which, by picketing the workplace, will perforce be attending near a dwelling place.
17. 914. As regards section 128(5)'s vesting of arrest without warrant powers in the police for contravention of the ban on strikes in essential services, the Committee recalls that given the importance it attaches to trade unionism being exercised in a climate free of insecurity and fear, certain basic guarantees of due process should always be respected in the case of detained trade unionists (Digest, para. 110, and 277th Report, Case No. 1444 (Philippines), para. 332).
18. 915. As regards the alleged interference in the exercise of the right to international affiliation under new section 35(4) and (5) which requires prior ministerial approval, subject to public security, for the receipt of outside technical and financial assistance, the Committee recalls that the corollary of the principle of free international affiliation is the right to maintain contacts with outside organisations and to benefit from the services and advantages which such affiliation offers. Legislation prohibiting the free acceptance of financial assistance from an international organisation to which a union is affiliated brings into question the principle of the right to affiliate (Digest, paras. 529 and 527). In the present case, the Committee is thus of the opinion that in so far as the provision affects receipt of outside assistance from international workers' organisations to which unions freely belong, it is incompatible with the principles of freedom of association.
19. 916. On the allegation that section 85's requirement that negotiations for a new collective agreement commence at least three months before the expiry of the current one requires the parties to conclude and sign an agreement within those three months, the Committee notes that the Act provides for collective bargaining to be the main basis for determining the terms and conditions of employment and that the particular provision in question does require negotiations to commence and conclude during those three months, but at the same time allows the parties either to extend the life of the current agreement if negotiations cannot be concluded or turn to the Industrial Court procedures for settlement of the dispute under section 91 of the Act. The Committee does not consider that these procedures run counter to the principles of collective bargaining.
20. 917. However, the Committee expresses its concern over the allegations that negotiated collective agreements must be lodged with the Prices and Incomes Commission (section 86) which can refuse such agreements not only on grounds of form, but also if they contain clauses contrary to declared government policy on prices and incomes (section 87(2)(b)). The Committee recalls that it has repeatedly held that, rather than subject the validity of collective agreements to government approval, steps should be taken to persuade the parties to collective bargaining to have regard voluntarily in their negotiations to major economic and social policy considerations and the general interest invoked by the Government (Digest, para. 644). In the present case, it is not clear whether the Commission is fully tripartite thus providing a forum for voluntary consideration of government policies and the Committee accordingly is of the view that the legislation should make it clear that the final decision should rest with the parties to each agreement.
21. 918. Lastly, on the complainants' allegations concerning the composition and functioning of the Industrial Court set up under the 1990 Act to settle collective disputes, the Committee, noting that the members of the Court who are appointed by the Minister are to be qualified and that the other nominees are to be of equal number of worker and employer representatives selected by the chairman of the Court, does not consider its composition to be contrary to the principles of freedom of association. As for section 68(5)'s requirement that the Court "have regard to the Government's declared policy on prices and incomes", again the Committee notes that the Court is only obliged to have regard to such policies and does not appear to be bound to implement them.
22. 919. As a final overall point, the Committee would point out to the Government that legislation which minutely regulates various aspects of union activities is incompatible with the principles of freedom of association.

The Committee's recommendations

1. 920. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Noting that the new Government is in the process of preparing amendments to the 1990 Industrial Relations Act, numerous sections of which run counter to the principles of freedom of association (namely those concerning the right to form workers' organisations, the right of workers' organisations to draw up their own constitutions, to elect their own leaders, to organise their internal arrangements and finances, to strike, to affiliate and enjoy the benefits of such affiliation, and to bargain freely), the Committee urges the Government to take account in its draft of the comments made above and to provide a copy of the amending text as soon as it is available.
   • (b) The Committee reminds the Government that the Office's assistance is at its disposal for the preparation of its draft with a view to ensuring full compliance with the principles on freedom of association.
   • (c) It asks the Government to confirm that the Salaries and Conditions of Service Commission Act of 1990 has been repealed.
   • (d) It asks the Government to inform it of the outcome of the affidavit challenging the constitutionality of the 1990 Industrial Relations Act which was, according to the new Government's reply of 14 November 1991, still before the Zambian High Court.