Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 391, Octobre 2019

Cas no 3314 (Zimbabwe) - Date de la plainte: 23-MARS -18 - Cas de suivi fermés en raison de l'absence d'informations de la part du plaignant ou du gouvernement au cours des 18 mois écoulés depuis l'examen de ce cas par le Comité.

Allegations: The complainant alleges violations of collective bargaining rights, restrictions on the right to demonstrate, illegal dismissal of trade union leaders, arrest and criminal prosecution of a trade union leader following participation in a demonstration

1. 545. The complaint is contained in a communication dated 23 March 2018 from the Zimbabwe Congress of Trade Unions (ZCTU).
2. 546. The Government sent its observations in a communication dated 12 April 2019.
3. 547. 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. 548. In its communication dated 23 March 2018, the ZCTU alleges violations of collective bargaining rights, restrictions on the right to demonstrate, illegal dismissal of eight trade union leaders, arrest and criminal prosecution of a trade union leader following participation in a demonstration.
2. 549. The ZCTU explains that since 2012, ZESA Holdings Private Limited and its subsidiary Zimbabwe Electricity Transmission and Distribution Company (hereafter “the company”) has been refusing to honour a collective bargaining agreement (CBA) that had the effect of increasing the minimum basic salary of its employees to US$275 per month and rationalizing salary scales differentials. The company and its subsidiary are owned by the Government and the board of the company is appointed by the Minister of Energy and Power Development.
3. 550. The ZCTU explains that the agreement was registered in terms of section 79(1) of the Labour Act and published as Statutory Instrument 50 of 2012 in terms of section 80(1) of the Labour Act. The Zimbabwe Energy Workers Union (ZEWU), the National Energy Workers Union of Zimbabwe (NEWUZ), and ZCTU affiliates, brought the matter to the High Court after the company circumvented the agreement and offered settlement payments directly to its employees. The High Court ordered the company to stop offering its employees settlement back pays or salaries and to desist from negotiating directly with its employees. The complainant alleges that despite the court order, the company continued to refuse to comply with the agreement and that the dispute dragged on prompting workers and their unions to embark on a collective job action.
4. 551. On 27 November 2017, the Energy Sector Workers Union of Zimbabwe (ESWUZ) wrote to the chief executive officer of the company setting out its concerns regarding corruption and refusal of the company to comply with the agreement. The union then planned a demonstration, interdicted by a High Court Order which stated that any form of collective job action was prohibited due to the status of the essential service provider of the company. The union appealed to the Supreme Court against the judgment of the High Court, which had the effect of suspending the ban, and held a demonstration on 21 December 2017. According to the ZCTU, the company maintained its defiance to pay. The company applied for a show-cause order to the Minister of Labour and Social Services in terms of section 106 of the Labour Act. On 31 January 2018, the Labour Court issued a disposal order removing the case from the role, pending the outcome of the appeal filed in the Supreme Court.
5. 552. The ESWUZ also engaged the President’s Office seeking intervention. In response, the officials conducted investigations, the findings of which are not yet availed.
6. 553. On 9 February 2018, the company issued a press statement reiterating its defiance to pay and threatening union officials with unspecified actions. The ZCTU responded by requesting the company to withdraw its threats and to engage with the unions to come up with a payment plan.
7. 554. The complainant indicates that the unions planned another demonstration set for 28 February 2018. However, it was prohibited by the High Court, which ordered that there should be no demonstrations until the appeal filed in the Supreme Court is disposed of.
8. 555. On 5 March 2018, the company suspended eight trade union leaders of the ESWUZ: Florence Taruvinga (National Women Advisory Council Chairperson and the ZCTU first Vice-President), Gibson Mushunje (General Secretary), Admire Mudzonga (first Vice President), Ackim Mzilikazi (Union Trustee), Steogen Mwoyoweshumba (National Organizing Secretary and ZCTU General Council member), Taririo Shumba (Harare branch member), Given Dingwiza (National Young Workers Committee Chairperson and ZCTU Young Workers Committee Council member) and Johannes Chingoriwo (Chairperson of Harare branch and ZCTU northern region council member). The eight leaders were charged with the participation in an unlawful collective job action, breach of confidentiality and insubordination. They are now undergoing disciplinary proceedings, despite the fact that the unlawfulness of the demonstration of 21 December 2017 is still pending in the Supreme Court.
9. 556. On 12 March 2018, the ZCTU wrote to the Ministry of Labour and Social Services requesting its intervention. It alleges that its communication remained unanswered.
10. 557. On 13 March 2018, the NEWUZ staged a demonstration during which the police arrested the union’s General Secretary Mr Thomas Masvingwe. He is facing criminal charges and appeared in the Magistrate’s Court on 19 March 2018. His trial was set for 25 April 2018.
11. 558. On 20 March 2018, the ZCTU petitioned Parliament to investigate corruption at the company and victimization of workers’ representatives for reporting it. The police banned the procession accompanying the petition on the grounds that the union was prohibited by the High Court Order from engaging in any demonstration against the company. The ZCTU indicates that the allegations of corruption in the company became public and the Parliamentary Portfolio Committee on Public Accounts queried the company’s accounts. The company is also involved in a US$5 million tender scam while refusing to pay workers and punishing them for raising such issues.
12. 559. The ZCTU emphasizes in addition that no tangible progress was made with regards to the implementation of the conclusions and legislative amendments recommended by the ILO Commission of Inquiry in 2010.

B. The Government’s reply

1. 560. In its communication dated 12 April 2019, the Government indicates that the company in question is a state-owned enterprise and its board is accountable to the Minister of Energy and Power Development. The company generates, transmits and distributes electricity in Zimbabwe. It is the only electricity generator and supplier for the public grid. It is governed by two Acts of Parliament: the Electricity Act and the Rural Electrification Fund Act.
2. 561. The Government states that Statutory Instrument 50 of 2012 referred to by the complainant was registered by the Ministry of Labour and Social Services, which means that it was gazetted and became law.
3. 562. The Government further indicates that the case of the company’s non-compliance with the CBA was taken to the High Court and a judgment was issued. The Government indicates that as a parastatal and as a body corporate, the company is obliged to uphold the court judgment. The allegations that the Government allowed the company to defy the court judgment are therefore unfounded.
4. 563. The Government adds that following the ZCTU request for its intervention in March 2018, the Ministry of Labour and Social Services convened a meeting with the company’s management, the affected employees, representatives of the ZCTU and the Employers’ Confederation of Zimbabwe (EMCOZ). The meeting resolved that the ZCTU and the EMCOZ would attempt to engage their constituents and engage in bilateral discussions towards the resolution of the matter.
5. 564. In July 2018, due to lack of progress on the matter, the ZCTU requested the Government’s intervention. On 1 August 2018, the Ministry of Labour and Social Services convened another meeting, which resolved the following: (i) the company’s management is to consider the issues and options with the intention of re-engaging the dismissed workers and inform the Ministry within two weeks; (ii) the Ministry is to convene a meeting with the dismissed workers within two weeks; (iii) the Ministry is to facilitate ILO training for both unions and employers; and (iv) the company is to send copies of the High Court Judgment to the Ministry. The meeting noted that the implementation of the 2012 CBA had been overtaken by a High Court Judgment.
6. 565. Notwithstanding the lack of progress on the part of the company’s management, the dismissed employees met with officials of the Ministry of Labour and Social Services in December 2018 and agreed for the matter to be brought to the attention of the Minister responsible for labour administration for her intervention.
7. 566. In March 2019, a follow-up meeting was held between the dismissed employees and the Ministry of Labour and Social Services officials. The employees submitted a write up of their grievances, which the Ministry intends to discuss with the company’s new board.
8. 567. On 11 April 2019, the Minister of Labour and Social Services met with representatives of the ZCTU, Zimbabwe Federation of Trade Unions (ZFTU) and APEX Council. Part of the issues discussed in the meeting included this case. The Minister undertook to urgently engage the company’s board with a view to finalizing the long-standing issues of the dismissed employees, among other issues.

C. The Committee’s conclusions

1. 568. The Committee notes that the ZCTU alleges violations of collective bargaining rights, restrictions on the right to demonstrate, illegal dismissal of eight ESWUZ leaders, the arrest and criminal prosecution of a trade union leader following participation in a demonstration. The Committee notes that the Government does not dispute the course of events as described by the ZCTU.
2. 569. The Committee notes that the source of the dispute in this case is the refusal by the company to comply with the terms of the 2012 CBA, particularly with the provisions in relation to salary. The Committee notes in this respect a decision of the High Court dated 15 September and 18 November 2015. The Committee observes from this decision that the company “has admitted to non-compliance with the CBA in relation to remuneration” and “engaged the employees directly without the involvement of their unions and offered them a settlement”. The Committee further observes that the High Court pointed out that:
   • … A party which fails to comply with the terms of a collective bargaining agreement commits an unfair labour practice. Failure to comply with or refusal to be bound by a collective bargaining agreement is also offensive and constitutes a criminal offence. Section 82 records the seriousness with which the legislature views CBAs. This is borne by the fact that the legislature makes it an unfair labour practice to fail to comply with a registered CBA and further criminalises a failure to comply with the CBA.
3. The Committee also notes that the court ordered the company to:
   • ... stop offering to its employees settlement, back-pays and/or salaries which it unilaterally and arbitrarily computes without the involvement of the applicants [and to] desist from negotiating directly with its employees over wages and benefits without the involvement of employee unions and ensure that any negotiations or offer of settlement is done with the Applicants or through their legal practitioners and does not interfere with the employees’ right to collective bargaining and fair labour standards.
4. 570. The Committee further notes that on 9 February 2018, the company issued a press statement through which it advised its stakeholders that it acknowledges that there is a long-standing 2012 collective bargaining dispute that is pending before the courts; affirms that it has no capacity to pay the said CBA, notwithstanding a signed agreement; informed that it made a settlement offer to employees with respect to the CBA and was grateful that an overwhelming majority of employees accepted the offer; and considers that the substantial pay increase and back pay relating to the 2012 CBA would require a tariff increase which would place an unnecessary burden on electricity consumers.
5. 571. While noting the Government’s indication that as a parastatal, the company is obliged to uphold the court judgment, the Committee observes with regret that seven years after the conclusion of the CBA, the provisions in relation to salary are still not implemented. The Committee recalls that agreements should be binding on the parties and that failure to implement a collective agreement, even on a temporary basis, violates the right to bargain collectively, as well as the principle of bargaining in good faith [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1334 and 1340]. The Committee urges the Government to take all necessary measures to ensure that the CBA is implemented by the parastatal company in question or that a settlement is fully negotiated with the union without further delay. It requests the Government to keep it informed of all steps taken to that end.
6. 572. The Committee notes that according to the ZCTU, as the company refused to comply with the court order, the unresolved dispute prompted workers to embark on a collective job action. The ESWU informed the company of its intention to demonstrate through a letter dated 27 November 2017. However, the High Court granted a temporary interdict sought by the employer. The Committee notes the reasoning of the Court:
   • … The unlawfulness of the intended collective job action arises from two situations. Firstly, the employees of the applicant are engaged in an essential service, and are prohibited by law from engaging in or recommending collective job action. See section 104(3) of the Labour Act; and section 2(g) of the Labour Declaration of Essential Services Notice, 2003. Secondly, the respondent and its members have not followed the procedures set out in section 104(2) of the Labour Act before resorting to collective job action to resolve their dispute with the employer. The failure to comply with the mandatory requirements of that section renders the collective job action unlawful. Professor Madhuku for the respondent submitted that section 59 of the Constitution applies. The section provides that: “Every person has the right to demonstrate and to present petitions, but these rights must be exercised peacefully”. That section must be read together with section 65(3) of the Constitution which speaks explicitly to the right of every employee to participate in collective job action. Section 65(3) explicitly states that “a law may restrict the exercise of this right in order to maintain essential services”. Reading section 59 in isolation from section 65(3) would be contrary to the established principle that a Constitution is a living document whose provisions must be read together as a whole and not in isolation. The respondents have not sought to impugn the provisions of the Labour Act which relate to essential services in the context of collective job action.
7. The Court concludes:
   • … The balance of convenience favours the granting of the interim relief. … The full extent, implications and consequences of the proposed collective job action are matters that can be considered on the return date. The letter of 8 December 2017 does not limit participation in the demonstration to employees who are on leave. I do not believe that there is an alternative remedy which would achieve the same result as the interdict being sought in the present case. This is only a temporary interdict pending the outcome of the proceedings for a show-cause order.
8. 573. The Committee notes that the union appealed this decision to the Supreme Court, which had the effect of suspending the ban. It further notes that it held a demonstration on 21 December 2017. The company applied for a show-cause order to the Minister in terms of section 106 of the Labour Act. On 31 January 2018, the Labour Court issued a disposal order removing the case from the role, pending the Supreme Court decision. The Committee further notes that on 28 February 2018, the ESWUZ intended another demonstration that was interdicted by a High Court Order in March 2018 stating that the demonstration violated section 65(3) of the Constitution, prohibiting any form of collective job action until the appeal filed in the Supreme Court is disposed of and ordering that “any violation of this court order shall result in criminal prosecutions”. Finally, the police declined a request for a procession organized by the ZCTU to accompany the petition to Parliament against corruption and victimization of workers’ representatives for reporting corruption on 20 March 2018.
9. 574. The Committee notes that the Court, the complainant and the relevant documents submitted by the complainant (including the above-cited letter dated 27 November 2017 addressed to the company) refer to the intended action as a demonstration. The Committee observes that the facts presented in the case are not clear as to whether the employees intended to stop working or if the demonstration was to take place outside of working hours. The Committee recalls that while a work stoppage in an undertaking providing essential services, such as electricity services in the present case, may be restricted or prohibited, a demonstration outside of working hours to express their views on their socio-economic conditions which does not entail an interruption of such services should be afforded appropriate protection. The Committee recalls in this respect that workers should enjoy the right to peaceful demonstration to defend their occupational interests [see Compilation, op. cit., para. 208]. Observing that final consideration of this matter is pending before the Supreme Court, the Committee requests the Government to bring the conclusions of this case to the attention of the relevant judicial authorities and to transmit to it a copy of the final decision once it is handed down.
10. 575. The Committee notes the ZCTU allegations that following the above-mentioned action on 21 December 2017, on 5 March 2018 the company suspended from employment eight trade union leaders on charges of participating in an unlawful collective job action, breach of confidentially and insubordination. The complainant indicates that they are undergoing disciplinary proceedings. The Committee further notes that, according to the Government, following the ZCTU’s request for its intervention in March 2018, the Ministry of Labour and Social Services convened a meeting with the management, the affected employees, representatives from the ZCTU and the EMCOZ. The participants of the meeting resolved that the ZCTU and the EMCOZ would attempt to engage their constituents and engage in bilateral discussions towards the resolution of the matter. In July 2018, the ZCTU once again requested the Government’s intervention due to the lack of progress on the matter and another meeting took place on 1 August 2018. During the meeting, it was agreed in particular that the company would consider the issues and options with the intention of re-engaging the dismissed workers and inform the Ministry within two weeks, and that the Ministry, on the one hand, would convene a meeting with the dismissed workers within two weeks, and on the other, facilitate ILO training for both the unions and employers. Two meetings were also held between the dismissed employees and the Ministry officials in December 2018 and March 2019. On 11 April 2019, the Minister of Labour and Social Services met with representatives of the ZCTU, ZFTU and APEX Council to discuss different issues, including the present case. On that occasion, the Minister undertook to urgently engage the company’s board with a view to finalizing the long-standing issues of the dismissed employees. The Committee urges the Government to address the issue of dismissed employees as per its commitment expressed during the meeting of 11 April 2019 and to provide information in this regard as a matter of urgency.
11. 576. The Committee notes the arrest of Mr Masvingwe on 13 March 2018 during a demonstration staged by the NEWUZ. According to the complainant, he is facing criminal charges and appeared in the Magistrate’s Court on 19 March 2018. His trial had been set for 25 April 2018. The Committee regrets that the Government provides no information in this regard. The Committee recalls that while persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, the arrest of, and criminal charges brought against, trade unionists may only be based on legal requirements that in themselves do not infringe the principles of freedom of association [see Compilation, op. cit., para. 133]. It further recalls that no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing and participating in a peaceful demonstration. The Committee understands that Mr Masvingwe is not being detained. It observes, however, that more than a year has passed since the intended trial date on criminal charges against him. The Committee requests the Government to provide without delay detailed information on the circumstances of the arrest of Mr Masvingwe, the exact charges brought against him and the outcome of the trial.

The Committee’s recommendations

1. 577. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to take all necessary measures to ensure that the CBA is implemented by the parastatal company in question or that a settlement is fully negotiated with the union without further delay. It requests the Government to keep it informed of all steps taken to that end.
   • (b) The Committee requests the Government to transmit the considerations of this case to the relevant judicial authorities and to transmit a copy of the final decision once it is handed down.
   • (c) The Committee urges the Government to address the issue of dismissed employees as per its commitment expressed during the meeting of 11 April 2019 and to provide information in this regard as a matter of urgency.
   • (d) The Committee requests the Government to provide without delay detailed information on the circumstances of the arrest of Mr Masvingwe, the exact charges brought against him and the outcome of the trial.