Report in which the committee requests to be kept informed of development - REPORT_NO309, March 1998

1. 421. In communications dated 9 September 1997, the International Federation of Commercial, Clerical, Professional and Technical Employees (FIET) submitted a complaint of violations of freedom of association against the Government of Zimbabwe.
2. 422. The Government sent its observations in a communication dated 5 November 1997.
3. 423. Zimbabwe has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 424. In its communication dated 9 September 1997, the complainant indicated that a strike was held by employees of the Standard Chartered Bank on 23 April 1997, called in response to the unilateral introduction of a new performance-related bonus scheme which was unacceptable to the employees. The issue of the bonus scheme was at the origin of an earlier dispute which occurred in 1995. At that time, a strike was called off when the local bank management agreed to an interim bonus scheme with the understanding that the terms and conditions of the final scheme would be subject to further discussions and agreement with FIET's affiliate union, the Zimbabwe Banks and Allied Workers' Union, ZIBAWU. According to the complainant, the latest scheme introduced by the Bank was done without sufficient negotiation and has been imposed on employees.
2. 425. Following the commencement of the strike the Bank sought a disposal order from the Ministry of Public Service, Labour and Welfare. An order was made by the Ministry on 25 April and decreed that the workers must return to work and that the Bank could take disciplinary action against the striking workers.
3. 426. According to the complainant, the Bank, thus armed, commenced a witch-hunt among those who took part in the industrial action and summarily dismissed 365 employees who took part in the strike, who were then informed that in order to return to work they must reapply for previous positions and accept temporary contracts with substantially lower conditions of employment and benefits than they were previously entitled to. Some of the workers were offered jobs in different locations, often a considerable distance from their homes. The complainant adds that the Bank's management in both Zimbabwe and London has repeatedly rejected attempts by FIET and ZIBAWU to resolve the dispute.
4. 427. The Bank's actions have come as a result of the disposal order made by the Ministry which ruled against legitimate and reasonable strike action taken by the union and its members. The complainant concludes that the rulings of the Ministry have violated Conventions Nos. 87 and 98 and have impeded legitimate trade union activity.

B. The Government's reply

1. 428. The Government has indicated in its communication dated 5 November 1997 that the complaint which is based on the disposal order issued in terms of the Labour Relations Act, Chapter 28:01, 1996, by the Ministry of the Public Service, Labour and Social Welfare of Zimbabwe, does not raise any issue which contravenes the provisions of Conventions Nos. 87 and 98. The parties, both the employers and the workers, merely exercised their rights as provided for in the country's laws.
2. 429. The Government adds that the complaint has been brought before the ILO even before its finalization following the relevant procedures provided for in national legislation, since the matter is still before the High Court of Zimbabwe on a motion of appeal by the workers against the employer's action.
3. 430. In terms of the country's labour laws, section 104 of the Labour Act allows workers, workers' committees and trade unions to go on strike to achieve lawful objectives, and section 108 gives immunity to workers and trade unions from a lawsuit. In other words, a trade union, workers' committee or worker cannot be sued for loss of profit or other losses caused by a legal strike nor can a worker be dismissed on the grounds that he or she was involved in a legal strike.
4. 431. The Government indicates that on 2 April 1997, the Standard Chartered Bank employees gave notice to the employer that they would go on strike within 14 days if their grievances were not addressed to their satisfaction.
5. 432. On 3 April 1997, the employer informed the Ministry and sought assistance to resolve the matter in terms of the law. Section 93 of the Labour Relations Act gives rights to any worker or employer who is involved in a dispute to bring a complaint to the notice of a labour officer. The labour officer in turn may conciliate on the matter or refer such matter to a voluntary arbitrator if the parties agree or to compulsory arbitration in the Labour Court of the country where no agreement has been reached on a voluntary arbitration.
6. 433. According to the Government, four meetings were held between the parties under the chairmanship of a labour officer on 11, 16, 21 and 22 April 1997, with a view to finding a solution through conciliation. The four main workers' grievances were:
7. (1) workers wanted the company profit-sharing scheme to continue which had been stopped by management;
8. (2) workers were not happy with the changes of their pension scheme which had been made without much consultation;
9. (3) workers complained about the company's appraisal system; and
10. (4) they complained that some workers' committee members in the company had been victimized by being transferred to other sections of the business.
11. 434. In the meetings, three of the four grievances were resolved through conciliation, but the matter regarding profit-sharing could not be resolved.
12. 435. On 22 April 1997, the parties, having failed to agree on voluntary arbitration, agreed that the labour officer should refer the matter of the profit-sharing scheme to compulsory arbitration in the Labour Court and that the parties should prepare their position papers for a hearing in this court. On 23 April 1997 the employees of the Standard Chartered Bank went on strike.
13. 436. A meeting was held at the Ministry of Labour on 24 April in which the Ministry was seeking representations from both the workers and employers as to why a disposal order to stop the strike should not be issued in view of agreements which had been reached to send the matter to compulsory arbitration to the Labour Court.
14. 437. On the following day, the officer, having listened to the representation by the parties, issued a disposal order directing that, since the matter was now due for hearing in the Labour Court and an early hearing date had been secured with the court: (1) workers were to terminate their industrial action; and (2) the employer could take disciplinary action in terms of the company code against any worker who failed to comply with the order.
15. 438. On 26 April 1997, the Standard Chartered Bank sent to each worker a message attaching the disposal order and requesting the workers to report back to work by 28 April, failing which, disciplinary action would be taken.
16. 439. The workers challenged the order in the High Court claiming that the matter was not properly brought before the Labour Court.
17. 440. The High Court ruled that the labour officer should "by not later than 10 a.m. on 2 May 1997 deliver to legal practitioners of the applicant and respondent a statement of the issues referred to arbitration". This was done.
18. 441. In the meantime, management was proceeding with hearings in terms of the company's code of conduct on those employees who did not return to work on 28 April and a decision to dismiss them was made on 3 May 1997.
19. 442. The employees challenged the employer's decision to dismiss them in the High Court on 12 May, and the matter is still pending.
20. 443. Furthermore, the Government states that the Labour Court issued the following judgement as to the issue regarding profit-sharing: "The applicant or the workers were not entitled to any additional bonus payments other than those already made in respect of the financial year ending 31 December 1996." Although, in terms of the law, the workers could have appealed this decision to the Supreme Court, they did not.
21. 444. The Government therefore reiterates its opinion that there was no violation of either Convention No. 87 or Convention No. 98.

C. The Committee's conclusions

1. 445. The Committee notes that the allegations in this case concern the referral of an industrial dispute to compulsory arbitration by the Ministry of Public Services, Labour and Welfare (hereinafter, Ministry of Labour) and the issuance of a disposal order terminating a strike and permitting disciplinary action on the part of the employer in respect of any workers remaining on strike, which resulted in mass dismissals at the Standard Chartered Bank.
2. 446. The Committee notes that, according to the Government, there is no violation of freedom of association in this case as the employers and the workers were merely exercising their rights as provided for in the national legislation. The Government adds that an appeal by the workers against the employer's actions is still pending before the High Court. In this respect, the Committee first wishes to recall that, although the use of internal legal procedures is undoubtedly a factor to be taken into consideration, it has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures. (See Digest of decisions and principles of the Committee on Freedom of Association, 4th edition, 1996, Annex I, para. 33.)
3. 447. As concerns the substance of the allegations, the Committee notes that the Zimbabwe Banks and Allied Workers' Union gave strike notification on 2 April 1997. On the following day, the Standard Chartered Bank (hereinafter, the Bank) requested the Ministry of Labour to issue an order calling upon the parties to show cause why a disposal order should not be made (section 106 of the 1996 revised edition of the Labour Relations Act). Conciliation meetings aimed at resolving the conflict were held from 11 to 22 April 1997. While certain grievances were resolved, the matter of the company profit-sharing scheme remained unsettled. According to the Government, the parties failed to agree to voluntary arbitration, but agreed that the labour officer should refer the matter to compulsory arbitration in the Labour Court. The Committee notes, however, that there is no indication in the complaint that the union agreed to compulsory arbitration, and in any case, section 98 of the Labour Relations Act empowers the labour relations officer to refer a dispute to arbitration irrespective of the views of the parties.
4. 448. The strike began on 23 April 1997 and the Bank immediately sought a disposal order from the Ministry which was subsequently issued on 25 April 1997. Under section 107 of the Labour Relations Act, the Minister has the authority to issue a disposal order directing that collective job action be terminated, postponed or suspended or reduced in scope and the ministry official may refer the dispute for resolution to another authority, in accordance with the terms of the Act concerning the determination of labour disputes. Under section 107(5)(a), the Minister has the authority to provide for the lay-off or suspension, with or without pay, of specified employees or categories of employees engaged in an unlawful collective job action, for such a period as may be specified.
5. 449. The disposal order issued on 25 April 1997 provided that workers should report back to work by noon that same day, that they should not be paid for the period on strike, that the employer may take any disciplinary action he deems fit against any employee who fails to comply with the disposal order and that the dispute shall proceed to compulsory arbitration in terms of sections 98, 99 and 100 of the Labour Relations Act of 1996. Subsequently, the Bank summarily dismissed 365 employees for absence from work and, according to the complainant, informed the striking workers that, in order to return to work, they would have to reapply for previous positions and accept temporary contracts with substantially lower conditions of employment and benefits. (The complainant has attached to its complaint sample dismissal letters and the terms for re-employing dismissed workers.)
6. 450. Firstly, the Committee notes that there were apparently two occasions when the matter of the company profit-sharing scheme was referred to compulsory arbitration. In the first place, the Government indicates that, upon the failure to resolve this grievance through conciliation, the labour officer decided to refer the matter to compulsory arbitration. Secondly, the disposal order issued on 25 April 1997 provided that the strike be terminated and that the matter of the profit-sharing scheme be referred to compulsory arbitration. In this respect, the Committee has stressed that the imposition of compulsory arbitration is only acceptable in cases of strikes in essential services in the strict sense of the term or in cases of acute national crisis. (See Digest, op. cit., para. 517.) The Committee has already considered that banking does not constitute an essential service in the strict sense of the term. (See Digest, op. cit., para. 545.) Regretting that sections 98, 99, 100, 106 and 107 of the Labour Relations Act grant the labour authorities the power to refer disputes to compulsory arbitration whenever it considers this appropriate, the Committee urges the Government to amend these sections so as to ensure that compulsory arbitration may only be imposed with respect to essential service and in cases of acute national crisis and requests the Government to keep it informed of the progress made in this regard.
7. 451. Secondly, as concerns the mass dismissal of striking workers at the Bank, the Committee notes the Government's indication that the workers' challenge against these dismissals is still pending before the High Court. The Committee must, however, note with regret that these dismissals came as a result of the permission granted to the employer in the disposal order to take any disciplinary action it considered appropriate. It must recall that the dismissal of workers because of a legitimate strike constitutes discrimination in employment. (See Digest, op. cit., para. 704.) The Committee therefore requests the Government to take the necessary measures to ensure that those workers who were dismissed as a result of their participation in the Standard Chartered Bank strike of April 1997 are reinstated in their jobs and are entitled to the same conditions of employment and benefits as were enjoyed prior to the strike. Furthermore, given that section 107(5) of the Labour Relations Act grants broad authority when issuing disposal orders to include the lay-off or suspension for a specified period of specified employees engaged in unlawful or lawful collective job action, as well as the dismissal of specified employees engaged in unlawful collective job action, the Committee requests the Government to take the necessary measures to amend this provision so as to ensure that workers are not discriminated against in their employment for exercising legitimate trade union activity. The Committee requests the Government to keep it informed of the progress made both with respect to the reinstatement of the dismissed workers at the Standard Chartered Bank and the amendment of section 107(5) of the Industrial Relations Act