Report in which the committee requests to be kept informed of development - Report No 377, March 2016

Case No 3128 (Zimbabwe) - Complaint date: 07-APR-15 - Closed

Allegations: The complainant organization alleges the refusal by the Registrar to register the Zimbabwe Footwear Tanners and Allied Workers’ Union of the Bata Shoe Company (ZFTAWU) and the banning by the police of a public demonstration

1. 442. The complaint is contained in communications dated 7 April and 27 May 2015 from the Zimbabwe Congress of Trade Unions (ZCTU). The International Trade Union Confederation (ITUC) associated itself with the complaint in a communication dated 9 April 2015.
2. 443. The Government sent its observations in a communication dated 21 September 2015.
3. 444. Zimbabwe has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 445. In its communications dated 7 April and 27 May 2015, the ZCTU explains that in 2012, 850 workers at Bata Shoe Company based in Gweru resigned from a trade union called the Zimbabwe Leather Shoe and Allied Workers Union because it was no longer acting in their interest. On 10 May 2012, these workers, led by their chosen representative, formed the Zimbabwe Footwear Tanners and Allied Workers’ Union of the Bata Shoe Company (ZFTAWU) to represent the interests of employees in the Leather Footwear, Tanners Industry. The ZFTAWU adopted its Constitution, as required by section 28 of the Labour Act, and applied for registration on 21 May 2012, as per sections 29(1), 33 and 34 of the Labour Act. On 2 August 2013, the notice of application for registration was published in the Government Gazette General Notice 379/2013. On 24 October 2014, the Registrar published in the Government Gazette a notice of accreditation proceedings that was to be held on 19 November 2014, and invited any interested person to file representations in this regard. On 19 November 2014, the Zimbabwe Leather Shoe and Allied Workers Union appeared to oppose the registration of the new union. The Registrar did not furnish the ZFTAWU with copies of the opposition and the union representatives were only served on the day of the accreditation proceedings. On 19 November 2014, the ZFTAWU representatives protested over the non-receipt of the opposing papers from the Zimbabwe Leather Shoe and Allied Workers Union. The Registrar then requested the protesting union to file written submissions, which they did. On 9 January 2015, the Registrar made a decision denying registration to the ZFTAWU on the grounds that a similar application it declined earlier was upheld by the Labour Court, and that there were no changes to the declining workforce density in the industry and that the ZFTAWU members constituted a minority of workers. On 19 February 2015, the ZFTAWU filed an appeal to the Labour Court challenging the Registrar’s decision and the application is still pending.
2. 446. The ZCTU considers that the decision by the Government to refuse to register the ZFTAWU is a violation of Article 2 of Convention No. 87; section 65(2) of the national Constitution, which provides that “[e]xcept for members of the security services, every person has the right to form and join trade unions and employee or employers’ organisations of their choice, and to participate in the lawful activities of those unions and organisations”; and section 27(1) of the Labour Act which provides that “[s]ubject to this Act, any group of employees may form a trade union”.
3. 447. The ZCTU explains that denial of registration deprives the union of its legal status and enjoyment of rights and privileges provided under section 29 of the Labour Act, which includes representing its members, collective bargaining and collection of union dues through a check-off system. The ZCTU regrets that section 45 of the Labour Act gives wide discretion to the Registrar to register or refuse to register a trade union after considering certain factors which include protecting the majority union at the expense of the minority.
4. 448. The ZCTU also alleges that the National Union of Metal and Allied Industries of Zimbabwe (NUMAIZ) has remained unregistered since 21 June 2013.
5. 449. The ZCTU further alleges that on 7 and 17 March 2015 it adopted a resolution to organize and embark on a protest action to be held on 11 April 2015 in the six ZCTU regional centres of Harare, Bulawayo, Gweru, Mutare, Masvingo and Chinhoyi. The protest was to be in the form of a public demonstration and handing of a petition to the Ministry of Public Service Labour and Social Welfare. The purpose of the protest action was to draw the attention of the public and the Government to the following issues affecting workers in Zimbabwe: the Government’s intended policy to freeze and cut salaries and wages, and introduce labour market flexibility; non- or late payment of workers’ salaries; non remittance of trade union dues; and the general economic decay causing job losses.
6. 450. The ZCTU, through its regional offices, notified the police of the intended protest action. The Zimbabwe Republic Police (ZRP) in Bulawayo, Masvingo, responded banning the demonstration, while the ZRP Mutare district police gave a verbal ban. The ZCTU approached the High Court seeking an order to overturn the ban. On 10 April 2015, the High Court issued an order interdicting the ZRP from interfering or stopping the demonstration. The ZCTU alleges that on the night before the protect action, unidentified people printed and distributed purported ZCTU press statements advising that the protest action was cancelled. The ZCTU indicates that it has reason to believe that the State machinery and the ruling party had a hand in the printing and distribution of the purported ZCTU press statements, because after the Government had lost in the High Court, the only available option was to disrupt the protest action by whatever means.
7. 451. The complainant further alleges that following the announcement by the ZCTU of the ban, the Government’s newspaper the “Herald” published articles entitled “ZCTU is paid for demonstration” and “ZCTU, MDC–T at the pinnacle of insanity”. The articles attack the ZCTU and contain lies that the ZCTU is paid for demonstrations by the ILO. The ZCTU further alleges that the Minister of Water and ZANU–PF political Commissar was quoted in the press to say that the protest action was an “attention-seeking gimmick by a cash strapped labour federation directed at the donor community and that the union leaders must tell their western allies to remove sanctions imposed on the economy for it to grow … ”. According to the ZCTU, the Zimbabwe Youth Action Alliance (ZANU–PF Youth wing) was quoted in the press warning the ZCTU not to proceed with the action and calling the ZCTU a “Trojan horse of the main opposition, MDC–T”.
8. 452. The ZCTU further alleges that the ZRP in Mbare District banned the Zimbabwe Security Guards Workers Union (ZISEGU), its affiliate, from embarking on a peaceful demonstration on 30 April 2015 after wage negotiations deadlocked.
9. 453. The ZCTU submits that by banning trade union activities, the Government is violating Article 3(1)–(2) of Convention No. 87, Article 4 of Convention No. 98 and its own Constitution, section 59 of which provides that: “Every person has the right to demonstrate and to present petitions, but these rights must be exercised peacefully”.

B. The Government’s reply

1. 454. The Government submits that the decision not to register the ZFTAWU was made after the Registrar was duly satisfied that the leather industry was not viable enough to justify a new trade union for the sector. The decision of the Registrar is consistent with a previous decision that was upheld by the Labour Court not to register the Leather Footwear, Canvas Manufacturing Workers Union on the same basis. The decision was made pursuant to section 45 of the Labour Act, which requires the Registrar to consider the following grounds, among others, during accreditation proceedings:
   • (a) the desirability of affording the majority of the employees and employers within an undertaking or industry effective representation in negotiations affecting their rights and interests; and
   • (b) the desirability of reducing, to the least possible number, the number of entities with which employees and employers have to negotiate.
2. The record of the accreditation proceedings shows that the Registrar was satisfied that the registration of the ZFTAWU would not further the interests of the majority of workers in the sector.
3. 455. The Government further informs that accreditation proceedings for the NUMAIZ were conducted on 21 September 2015, as required by the legislation in force. The Government argues that the applicant union stalled the registration process by delaying its payment for the gazetting of the notice for accreditation proceedings. A decision on the matter is pending and will be communicated to the parties without delay.
4. 456. The Government informs that the legislative provisions that relate to the registration of trade unions are being reviewed. The amendments seek to provide specific grounds to be considered by the Registrar in registering a trade union, such as the existence of a constitution, existence of an executive board, fixed business address, membership register and audited financial statements.
5. 457. With regard to the alleged banning of the ZCTU protest action, the Government indicates that the ZCTU was able to carry out its demonstration across the country as planned. In the case of Bulawayo Metropolitan and Masvingo Provinces, the ZRP withdrew its initial refusal. Although the ZCTU had lodged a complaint with the High Court, the police withdrew the initial refusal on its own initiative after internal consultations. In the Government’s opinion, this demonstrates the capacity of the ZRP to guarantee the rights of workers to organize. The Government also explains that the timing of the protest action had presented practical and logistical challenges for the ZRP as it virtually coincided with Independence Day, which falls on 18 April. Various events to commemorate Independence Day were held throughout the country, and the police service is an integral part of the preparations, hence the lack of preparedness to guarantee police protection for the ZCTU demonstration on 11 April 2015.
6. 458. The Government submits that the ZRP acted in good faith in not granting the Zimbabwe Security Guards Union permission to demonstrate, largely due to the proposed timing of the action. As indicated above, the timing coincided with countrywide Independence Day commemorations and there was reasonable justification to believe that the demonstration would be hijacked by malicious elements to the detriment of the union’s interests as well as public order. Furthermore, the Government indicates that the timing of the intended demonstration coincided with a period when the Harare municipal authorities were battling to maintain peace and order, while relocating often violent street vendors to designated sites. The Government points out that the refusal in this case does not amount to a general policy to indiscriminately ban trade union demonstrations.
7. 459. The Government dismisses the allegation that it distributed cancellation material for the ZCTU protest action and stresses that it consented to the protest action being conducted. The Government further rejects the accusations with regard to various statements allegedly quoted in newspapers, and explains that it does not use newspapers to communicate its positions on such matters and that the correct Government’s position was expressed by the High Court when it allowed the ZCTU to proceed with the protest action.
8. 460. The Government points out that the continued improvement in the enjoyment of workers’ rights to organize is due to the Government’s ongoing efforts to give full effect to the ratified ILO Conventions. These efforts include countrywide interfaces with law enforcement agencies on international labour standards that have been supported by the International Labour Office since 2011. The Government also submits that there has been continued improvement in the engagement of trade unionists and the ZRP in discussions and preparations of modalities for the conduct of demonstrations. It is envisaged that this dialogue and mutual cooperation will continue. The Government is still working with the Office in efforts to mainstream international labour standards in the work of the police and is confident that workers’ organizations will continue to fully enjoy freedom of association and the right to organize.
9. 461. With regard to the alleged undermining of collective bargaining rights through media reports on salary cuts, wage freezes and labour market flexibility, the Government indicates that these allegations have nothing to do with its current policies or legislative reforms. It reiterates that it does not use the media to articulate its policy positions. The Government indicates that it continues to be guided by the ratified ILO Conventions in the elaboration of policies and legislation. Section 65(5) of the national Constitution upholds the right to collective bargaining. The Government underlines that it has resuscitated tripartite dialogue at the Tripartite Negotiating Forum to enable the social partners to contribute to social and economic programmes in the country.

C. The Committee’s conclusions

1. 462. The Committee notes that the ZCTU alleges the denial of registration of new trade unions (ZFTAWU and NUMAIZ) and the ban by the police on trade union demonstrations.
2. 463. The Committee notes that according to the ZCTU, the ZFTAWU was formed on 10 May 2012 to represent the interest of employees in the Leather Footwear, Tanners Industry. The union, which has a membership of 850 workers, applied for registration on 21 May 2012, as per sections 29(1), 33 and 34 of the Labour Act. On 2 August 2013, the notice of application for registration was published in the Government Gazette General Notice 379/2013. On 24 October 2014, the Registrar published in the Government Gazette a notice of accreditation proceedings and invited any interested person to file representations in this regard. The Zimbabwe Leather Shoe and Allied Workers Union appeared on 19 November 2014 to oppose the registration. On 9 January 2015, the Registrar made a decision denying registration of the ZFTAWU on the grounds that a similar application it declined earlier was upheld by the Labour Court and that there were no changes to the declining workforce density in the industry, and that the ZFTAWU members constituted a minority of workers. On 19 February 2015, the ZFTAWU filed an appeal to the Labour Court challenging the Registrar’s decision. This application is still pending.
3. 464. The ZCTU also alleges that another union, NUMAIZ, has remained unregistered since 21 June 2013.
4. 465. The Committee notes that in its reply dated 21 September 2015, the Government refers to the requirement imposed by section 45 of the Labour Act on the Registrar to consider the following grounds, among others, during accreditation proceedings:
   • …
   • (a) the desirability of affording the majority of the employees and employers within an undertaking or industry effective representation in negotiations affecting their rights and interests; and
   • (b) the desirability of reducing, to the least possible number, the number of entities with which employees and employers have to negotiate.
   • …
5. 466. The Committee notes that the wording of section 45 of the Labour Act would appear to confer on the Registrar wholly discretionary power to grant or reject a registration request. The Committee believes that the vagueness of this legislative provision can only encourage the competent authorities to make excessive use of their discretionary powers, which is a serious obstacle to the establishment of organizations, and may amount to a denial of the right of workers and employers to establish organizations without previous authorization. Furthermore, where a Registrar has to form his or her own judgement as to whether the conditions for the registration of a trade union have been fulfilled, although an appeal lies against the Registrar’s decisions to the courts, the Committee has considered that the existence of a procedure of appeal to the courts does not appear to be a sufficient guarantee; in effect, this does not alter the nature of the powers conferred on the authorities responsible for effecting registration, and the judges hearing such an appeal would only be able to ensure that the legislation has been correctly applied. The Committee has drawn attention to the desirability of defining clearly in the legislation the precise conditions which trade unions must fulfil in order to be entitled to registration and on the basis of which the Registrar may refuse or cancel registration, and of prescribing specific statutory criteria for the purpose of deciding whether such conditions are fulfilled or not [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 302].
6. 467. The Committee further considers that section 45 of the Labour Act would appear to hinder the registration of a new organization if another registered organization already exists in a specific enterprise or occupation. It recalls in this respect that a provision authorizing the refusal of an application for registration if another union, already registered, is sufficiently representative of the interests which the union seeking registration proposes to defend, means that, in certain cases, workers may be denied the right to join the organization of their own choosing, contrary to the principles of freedom of association [see Digest, op. cit., para. 328].
7. 468. The Committee further notes that the Labour Act does not contain provisions on the time period for registration procedure. The Committee notes that the procedure lasted two and half years in the case of the ZFTAWU only to find its application ultimately rejected. The Committee considers that this in itself 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 [see Digest, op. cit., para. 307].
8. 469. The Committee notes the Government’s indication that the legislative provisions that relate to the registration of trade unions are being reviewed and that the amendments seek to provide specific grounds to be considered by the Registrar in registering a trade union, such as the existence of a constitution, existence of an executive board, fixed business address, membership register and audited financial statements.
9. 470. The Committee regrets that the most recent amendment of the Labour Act (Labour Amendment Act No. 5 of August 2015) does not contain any modifications to section 45. The Committee encourages the Government, on the basis of the principles above, to further amend the Labour Act in consultations with the social partners so as to: (i) ensure that the conditions for the granting of registration are not tantamount to obtaining previous authorization from the public authorities for the establishment of a workers’ or employers’ organization; (ii) to make it clear that when a trade union already exists for the same employees as those whom a new union seeking registration is organizing, or is proposing to organize, or the fact that the existing union holds a bargaining certificate in respect of such class of employees, this cannot give rise to objections of sufficient substance to justify the Registrar in refusing to register the new union; and (iii) to ensure that the period for registering an organization is reasonable. The Committee requests the Government to keep the Committee of Experts on the Application of Conventions and Recommendations, to the attention of which it draws the legislative aspects of the case, informed of the progress made in this regard.
10. 471. In the light of the above, and to give full effect to article 65 of the national Constitution providing that “every person has the right to form and join trade unions … of their choice and to participate in the lawful activities of those unions …”, including “the right to engage in collective bargaining”, the Committee requests the Government to take the necessary measures in order to review the ZFTAWU application with a view to its registration, thus guaranteeing the right of the 850 workers alleged to be its members, to establish and join the organization of their own choosing without previous authorization. The Committee requests the Government to keep it informed in this respect.
11. 472. As regards the NUMAIZ request for registration, the Committee notes the Government’s indication that the accreditation proceedings were conducted on 21 September 2015, as required by the legislation in force, and that a decision on the matter is pending and will be communicated to the parties without delay. The Committee recalls that free choice of workers to establish and join organizations is so fundamental to freedom of association as a whole that it cannot be compromised by delays [see Digest, op. cit., para. 312]. The Committee requests the Government to ensure that the procedure is expedited, if it has yet to be concluded, and to transmit the Registrar’s decision.
12. 473. The Committee notes the ZCTU allegations concerning the ban on three ZCTU regional marches on 11 April 2015, as well as of a peaceful demonstration by the Zimbabwe Security Guards Workers Union (ZISEGU) and the Government’s reply thereon. The Committee notes that the police ban on the ZCTU protest action lead to the presentation of a petition to the High Court which ordered the police not to interfere with the union action. The Committee further notes the Government’s indication that the ZCTU was able to carry out its demonstrations on 11 April 2015 as planned and that the police withdrew its initial refusal with respect to demonstrations in two provinces. With regard to the ban on the ZISEGU demonstration on 30 April 2015, the Government indicates that as this activity “coincided with Independence Day commemorations” there were reasonable grounds to believe that the demonstration would be hijacked by malicious elements to the detriment of the union’s interests as well as public order. Furthermore, the Government indicates that the timing of the intended demonstration coincided with a period when the Harare Municipal authorities were battling to maintain peace and order while relocating often violent street vendors to designated sites. The Government points out that the refusal in this case does not amount to a general policy to indiscriminately ban trade union demonstrations.
13. 474. The Committee further notes the Government’s indication that there has been continued improvement in the engagement of trade unionists and the ZRP in discussions and preparations of modalities for the conduct of demonstrations. The Government envisages that this dialogue and mutual cooperation will continue and indicates in this respect that it is still working with the Office in efforts to mainstream international labour standards in the work of the police, and is confident that workers’ organizations will continue to fully enjoy freedom of association and the right to organize. These efforts include the countrywide interfaces with law enforcement agencies on international labour standards that have been supported by the International Labour Office since 2011.
14. 475. The Committee recalls in this respect that when it examined Case No. 2862, dealing with a ban on holding International Women’s Day and International Labour Day processions, at its May–June 2012 meeting, it had requested the Government to elaborate and promulgate without delay clear lines of conduct for the police and security forces. Noting with regret that this has not been done and recalling that permission to hold public demonstrations, which is an important trade union right, should not be arbitrarily refused, the Committee urges the Government to take the necessary steps for the adoption and effective implementation of the code of conduct so as to ensure that the police and security forces follow clear lines of conduct with regard to human rights and trade union rights. The Committee requests the Government to keep it informed in this respect.

The Committee’s recommendations

1. 476. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee encourages the Government to amend the Labour Act in consultation with the social partners so as to:
     • (i) ensure that the conditions for the granting of registration are not tantamount to obtaining previous authorization from the public authorities for the establishment of a workers’ or employers’ organization;
     • (ii) to make it clear that when a trade union already exists for the same employees as those whom a new union seeking registration is organizing, or is proposing to organize, or the fact that the existing union holds a bargaining certificate in respect of such class of employees, this cannot give rise to objections of sufficient substance to justify the Registrar in refusing to register the new union; and
     • (iii) to ensure that the period for registering an organization is reasonable.
   • It requests the Government to keep the Committee of Experts on the Application of Conventions and Recommendations, to the attention of which it draws the legislative aspects of the case, informed of the progress made in this regard.
   • (b) The Committee requests the Government to take the necessary measures in order to review the ZFTAWU application with a view to its registration, thus guaranteeing the right of the 850 workers alleged to be its members, to establish and join the organization of their own choosing without previous authorization. The Committee requests the Government to keep it informed in this respect.
   • (c) As regards the NUMAIZ application for registration, the Committee requests the Government to ensure that the procedure is expedited, if it has yet to be concluded, and to transmit the Registrar’s decision.
   • (d) The Committee urges the Government to take the necessary steps for the adoption and effective implementation of the code of conduct so as to ensure that the police and security forces follow clear lines of conduct with regard to human rights and trade union rights. The Committee requests the Government to keep it informed in this respect.