Solicitud directa (CEACR) - Adopción: 2006, Publicación: 96ª reunión CIT (2007)

The Committee notes the Government’s reply to its previous direct request.

The Committee recalls that its previous comments concerned the following points.

Article 2 of the Convention. (a) Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously noted that the Labour Act (Chapter 28:01) did not apply to the prison service (sections 2, 3(2)(b) and 5(a)) and requested the Government to take the necessary measures so as to guarantee the right to establish and join workers organizations to prison staff. The Committee regrets that no information was provided by the Government in this respect. Recalling that the functions exercised by prison staff should not justify their exclusion from the right to organize (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 56), the Committee reiterates its previous request and asks the Government to keep it informed of the measures taken or envisaged in this respect.

In its previous direct request, the Committee, noting that under the terms of the Labour Act (section 2), a manager was considered to be an employer, asked the Government to indicate how the right to organize of managers was ensured by the legislation and in practice. The Committee notes the Government’s indication that managerial employees, like other employees, enjoy the right to organize for furtherance of their interests in terms of sections 23 and 27 of the Labour Act. According to the Government, the categorization of workers is intended to avoid conflict of interest involving managerial staff and more so to prevent interference by employers into trade union activities. The Committee notes the list of established unions for managerial employees provided by the Government.

(b) Right of employers and workers to establish organizations without previous authorization. In its previous comments, the Committee noted that according to section 36(1) of the Labour Act, the Registrar could refuse an application for registration of a trade union or employers’ organization or federation and that the legislation did not provide for grounds on which such a refusal could be based. In this respect, the Committee asked the Government to indicate the grounds the Registrar may invoke to refuse the registration of a employers’ and workers’ organization. The Committee notes that the Government indicates that the registration of trade unions or employers’ organization is not compulsory, as they may exist and perform their functions without being registered. However, in the event that an organization seeks to be registered to enjoy privileges accorded to registered organizations, the Registrar can refuse an application for registration on the following grounds: (1) if it occurs that the organization had no constitution or that the constitution fails to meet the requirements; (2) there is no proof of membership; (3) the leadership has a known and proven track record of illegal conduct; (4) there is no proof of a grouping (i.e. minutes of a Congress); and (5) there are credible objections submitted during accreditation proceedings from stakeholders and existing trade unions in the particular industry indicating serious implications to the interests of workers in general. The Government adds that transparency of the registration procedure is ensured by virtue of section 40(4) of the Labour Act, which provides that the Registrar should indicate the reasons for the suspension of registration of the trade union. The same section also provides for the right to appeal to the Labour Court against the Registrar’s decision. The Committee considers that the grounds, which could be invoked by the Registrar to deny registration, should not impair the guarantees laid down in the Convention. In respect of the grounds listed by the Government, the Committee requests the Government to provide further information on the requirements which the trade union constitution should meet for registration purposes (ground 1). The Committee recalls that workers and employers have the right to establish organizations of their own choosing for furthering and defending their economic and social interests without previous authorization. That implies that existing trade unions or any other “stakeholders” should not be able to impair the right of workers to create other trade unions. In this respect, the Committee requests the Government to clarify the meaning of “credible objections by stakeholders and existing trade unions” (ground 5) and to provide examples, if any, of denial of registration on that ground. As for the “illegal conduct” of trade union leadership (ground 3), the Committee refers to the comments below.

Article 3. (a) Right of workers to elect their representatives freely. With regard to the right of the Registrar to deny registration if the leadership of the workers’ or employers’ organization has a known and proven track record of illegal conduct, the Committee recalls that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office. Thus, legislation which establishes excessively broad ineligibility criteria, for example by means of an open-ended definition or a long list including acts which have no real connection with the qualities of integrity required for the exercise of trade union office, is incompatible with the Convention (see General Survey, op. cit., paragraph 120). The Committee requests the Government to clarify whether all persons who have been convicted, regardless of the gravity or nature of the offence are disqualified from the trade union office.

The Committee had previously noted section 51 of the Labour Act, which concerned the supervision of election of officers of a trade union or employers’ organization. According to this section, the Minister may: set aside any election if it was not properly conducted or if the result of the election did not represent the views of the electors; postpone, or change the venue of, or procedure, for any election; assign responsibility for the conduct of elections to any trade union or employers’ organization; prohibit any person from conducting the election campaign; and make regulations for controlling and regulating elections and for fixing the qualifications for officers of trade unions and employers’ organizations. The Committee asked the Government to take the necessary measures to amend section 51 of the Labour Act so as to ensure that the right of employers’ and workers’ organizations to elect their representatives in full freedom and without interference from the authorities was guaranteed. The Committee notes the Government’s indication that section 51 is intended to ensure proper conduct of elections in accordance with the rules and regulations. The Government points out that the law specifies what the Minister “may” and not “shall” do. The Minister may invoke this section upon credible representations from the concerned union members indicating improper conduct, which may have serious implications on the elections. In practice, the supervision of elections of officers of employers’ and workers’ organizations is conducted upon an invitation from the concerned organization. While noting the information on the practical application of section 51, the Committee points out that this section refers to the right of the Minister to supervise election of officers “where the national interest so demands”. The Committee once again recalls that the autonomy of organizations can be effectively guaranteed only if their members have the right to elect their representatives in full freedom. The Committee considers that legislative provisions, which enable the public authorities to interfere in the election procedure, are contrary to the principles of freedom of association (see General Survey, op. cit., paragraphs 112 and 115). The Committee therefore requests the Government to amend section 51 so as to ensure the right of employers’ and workers’ organizations to elect their representatives in full freedom and without interference from the authorities and to keep it informed of the measures taken or envisaged in this respect.

(b) Right of workers’ organizations to organize their administration and to formulate their programmes. The Committee had previously requested the Government to amend sections 28(2), 54(2) and (3) and 55 of the Labour Act which conferred to the Minister extensive powers to regulate trade union dues as well as to regulate such matters as staff that may be employed by trade unions, their salaries and allowances, as well as the equipment and property that may be purchased by trade unions. The Committee notes from the Government’s reply to the comments submitted by the Zimbabwe Congress of Trade Unions (ZCTU) in a communication dated 6 September 2005 that section 55 of the Act is intended to protect the interests of workers against the pegging of unsustainable trade union dues. No information was provided by the Government in respect of other abovementioned legislative provisions. The Committee is bound to once again recall that problems of compatibility with the Convention arise when the law gives authorities such powers as powers to specify the amount of dues members should pay to their organizations and the proportion of dues that have to be paid to the federations. The Committee further recalls that freedom of employers’ and workers’ organizations to organize their administration implies that these organizations should be able to dispose of all their fixed and movable assets unhindered (see General Survey, op. cit., paragraphs 126 and 127). The Committee therefore requests the Government to take the necessary measures to amend sections 28(2), 54(2) and (3) and 55 of the Labour Act accordingly and to keep it informed of the measures taken or envisaged in this respect.

The Committee had previously noted section 120 of the Labour Act. While noting that under its subsection 1, the Minister may order that any trade union or federation be investigated if there is a reasonable cause to believe that the property or funds of any trade union, or federation are being misappropriated or misapplied, or that the affairs of any trade union, or federation are being conducted in a manner that is detrimental to the interests of its members as a whole, the Committee requested the Government to amend subsection 2, providing that the Minister can appoint an investigator who shall at all reasonable times and without prior notice, enter any premises (paragraph (a)); question any person employed on the premises (paragraph (b)); and inspect and make copies of and take extracts from any books, records or other documents on the premises (paragraph (c)). The Committee notes the Government’s indication that section 120(1) is intended to guarantee remedy to concerned members of the organizations upon credible representations indicating improper conduct on the leadership or office bearers of the union, which has serious implications on the interests of the members of the organization. The Government points out that this section is only invoked in exceptional circumstances following credible representations from members of the organization. Moreover, the powers given to an investigator are in sync with the normal practice of auditing. The Government indicates that investigators are independent and in no way should be considered as an extension of administrative authority of the Government. The Committee considers that while there is no infringement of the right of organizations to organize their administration if the supervision is limited to the obligation of submitting periodic financial reports or if there are serious grounds for believing that the actions of organizations are contrary to its rules or the law (which should not infringe the principles of freedom of association), or if such a verification is limited to exceptional cases, for example in order to investigate a complaint, or if there have been allegations of embezzlement, problems of compatibility with the Convention arise when the law gives the authorities powers of control which go beyond the principles set forth above (see General Survey, op. cit., paragraphs 125 and 126). In this respect, the Committee once again points out that the provisions contained in section 120(2) give rise to two different sets of problems from the standpoint of freedom of association. As regards section 120(2)(a) and (b), the Committee recalls that the right of the inviolability of trade union premises necessarily implies that the public authorities may not insist on entering such premises without prior authorization or without having obtained a legal warrant to do so and any search of trade union premises, or of unionists’ homes, without a court order, constitutes an extremely serious infringement of freedom of association. Moreover, searches of trade union premises should be made only following the issue of a warrant by the ordinary judicial authority where that authority is satisfied that there are reasonable grounds for supposing that evidence exists on the premises which are material to a prosecution for a penal offence and on condition that the search be restricted to the purpose in respect of which the warrant was issued. The Committee is of the view that paragraphs (a) and (b) of subsection (2), which authorize an investigator appointed by the Minister to enter trade union premises and question any person employed there at all reasonable times and without prior notice, clearly do not respect the principles enunciated above. Secondly, as regards paragraph (c) of subsection (2), which authorizes an investigator, at all reasonable times and without prior notice, to inspect and make copies and take extracts from any books, records or other documents on trade union premises, the Committee considers that the control exercised by the public authorities over trade union finances should not normally exceed the obligation to submit periodic reports. The discretionary right of the authorities to carry out inspections and request information at any time entails a danger of interference in the internal administration of trade unions. Moreover, as regards certain measures of administrative control over trade union assets, such as financial audits and investigations, the Committee considers that these should be applied only in exceptional cases, when justified by grave circumstances (for instance, presumed irregularities in the annual statement or irregularities reported by members of the organization), in order to avoid any discrimination between one trade union and another and to preclude the danger of excessive intervention by the authorities which might hamper a union’s exercise of the right to organize its administration freely, and also to avoid harmful and perhaps unjustified publicity or the disclosure of information which might be confidential. The Committee considers, consequently, that the powers of supervision contained in paragraph (c) of subsection (2) are excessive. The Committee therefore requests the Government to take the necessary measures to amend section 120(2) so as to bring it into conformity with the Convention and to keep it informed of any measures taken or envisaged in this regard.

(c) Right to strike. The Committee had previously noted that under the terms of section 102 of the Labour Act, the Minister could declare any service essential and requested the Government to take the necessary measures to delete reference to this power of the Minister, which would have an effect of prohibiting the exercise of the right to strike, from section 102. The Committee notes the Government’s statement that in terms of section 102(b), the Minister declares a service essential after consultations with a tripartite advisory council. In Government’s opinion, this ensures that employers’ and workers’ views regarding the declaration of essential services cognizant of the national conditions and aspirations are considered. The Committee points out, however, that essential services are only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey, op. cit., paragraph 159). It therefore asks once again to amend section 102 of the Labour Act so as to bring it into conformity with the Convention and to keep it informed in this respect.

With regard to its previous request to amend section 104(3)(e), according to which, a strike action taken without an agreement of the majority of the employees is considered to be unlawful collective action so as to ensure when a vote by workers is required in order to call a strike, account is taken only of the votes cast and to keep it informed in this respect, the Committee notes the Government’s indication that in practice, and in keeping with the principles of a secret ballot, the account is taken only of the votes cast.

Finally, the Committee had noted that, in the case of unlawful collective action being organized, excessive sanctions are provided. Sections 109 and 112 establish possible imprisonment of the individual engaged in an unlawful collective action, while section 107 gives the power to the Labour Court to dismiss the individual engaged in such action and to suspend or rescind the registration of the trade union involved in such action. In this respect, the Committee notes the Government’s statement that the Labour Act penalizes unlawful collective action just as much as any other law penalizes criminal conduct. An unlawful collective action is an action not permitted in law, hence such conduct should be discouraged. This is premised on the fact that the Labour Act clearly lays out procedure required before one engages in collective action. In the Government’s opinion, this is meant to promote dialogue at workplaces and, at the same time, to preserve industrial peace. The Government further indicates that the desirability of a particular penalty or its legitimacy surely rests with the courts of law, as in some cases, unlawful job actions result in injury or death of innocent people. The Committee emphasizes that all penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike. Further, concerning the sanctions of dismissal and dissolution, the Committee recalls that no one should be penalized for carrying out or attempting to carry out a legitimate strike and that, in any case, the sanctions imposed should not be disproportionate to the seriousness of the violations (see General Survey, op. cit., paragraph 178). Therefore, the Committee asks once again the Government to amend sections 109 and 112 of the Labour Act so as to bring it into conformity with Article 3 of the Convention and to keep it informed of the measures taken or envisaged in this respect.