Zambia
The ITUC affiliate in Zambia is the Zambia Congress of Trade Unions (ZCTU).
Zambia ratified Convention No. 87 on Freedom of Association and Protection of the Right to Organise (1948) in 1996 and Convention No. 98 on the Right to Organise and Collective Bargaining (1949) in 1996.
Legal
Freedom of association / Right to organise
Freedom of association
The right to freedom of association is enshrined in the Constitution.
The right to freedom of association is recognised by law but strictly regulated.
Anti-Union discrimination
The law prohibits anti-union discrimination, but does not provide adequate means of protection against it.
Barriers to the establishment of organisations
- Power to refuse official registration on arbitrary, unjustified or ambiguous grounds
- Section 9 of the Industrial and Labour Relations Act stipulates that the Commissioner shall register a trade union only if satisfied that the 'conditions of registration' have been met. The conditions of registration are not clearly apparent from the Act. It also prohibits a trade union from being registered "if the registration will be prejudicial to national security or the objects of the trade union are contrary to the purposes for which that trade union was formed" (section 9(5)(c), Industrial and Labour Relations Act, as amended 2008).
- Excessive representativity or minimum number of members required for the establishment of a union
- An application for registration of a trade union must be made by not less than 50 supporters, or such lesser number as may be prescribed by the Minister (section 9(2), Industrial and Labour Relations Act).
- Other formalities or requirements which excessively delay or substantially impair the free establishment of organisations
- The Registrar has a period of 6 months from the date of the application to register a trade union (section 9(3), Industrial and Labour Relations Act, as amended 2008).
- Sanctions imposed for organising or joining an organisation not officially recognised
- Every officer of a trade union that is not registered within 6 months from the date of its formation is guilty of an offence and shall be liable to a fine of up to 200 kwacha for every day that it remains unregistered or undissolved. Any trade union or officer that performs an act in furtherance of the objects for which it was formed without the trade union being registered commits an offence and liable on conviction to a fine of up to 10,000 kwacha (sections 7 and 8, Industrial and Labour Relations Act).
Restrictions on workers’ right to form and join organisations of their own choosing
- Restrictions on workers’ right to join the trade union of their choosing imposed by law (i.e. obligation to join a trade union of a certain level e.g. enterprise, industry and/or sector, regional and /or territorial national)
- An employee can only become a member of “a trade union within the sector, trade, undertaking, establishment or industry in which the employee is engaged” (section 5(b), Industrial and Labour Relations Act, as amended 2008).
Restrictions on trade unions’ right to organise their administration
- Restrictions on the right to elect representatives and self-administer in full freedom
- The Labour Commissioner has the power to appoint an independent auditor to audit the books of account of a trade union and, on the recommendation of the auditor, to recommend to the Tripartite Consultative Labour Council that the trade union board be suspended or dissolved. The Labour Commissioner also has the power in such circumstances to appoint an interim committee of members to oversee the operations of the trade union (section 21(3)-(6), Industrial and Labour Relations Act). Where a trade union has had its registration cancelled, any officer of that trade union may be disqualified from holding any future trade union office if that person fails to satisfy the Commissioner that she or he did not contribute to the circumstances leading to such cancellation. Also, if a trade union has had an application for registration refused or its registration cancelled and fails to dissolve within the prescribed timeframe, any officer of that union may be prohibited holding office for a period of one year (sections 7, 18 and 43, Industrial and Labour Relations Act). Finally, the deduction of trade union subscription fees is regulated by the Industrial and Labour Relations Act, which establishes the requirements for deduction, notice for its cessation and stipulates that deductions may only be made from the wages of non-management employees (sections 22 and 23, Industrial and Labour Relations Act). A trade union or federation of trade unions that receives outside material, technical or financial assistance must inform the Commissioner within 30 days of receipt (section 34(4), Industrial and Labour Relations Act, as amended 2008).
- Administrative authorities’ power to unilaterally dissolve, suspend or de-register trade union organisations
- The Labour Commissioner shall, after obtaining the approval of the Minister, cancel the registration of a trade union if the trade union has wilfully violated any provisions of the Industrial and Labour Relations Act or if the trade union is dormant (not defined) (section 12(1), Industrial and Labour Relations Act).
Categories of workers prohibited or limited from forming or joining a union, or from holding a union office
- Others categories
- The Minister may, after consultation with the Tripartite Consultative Labour Council, by statutory instrument, and subject to such conditions as he may prescribe, exclude any person or class of persons or any trade, industry or undertaking from the right to join a trade union (section 2(2), Industrial and Labour Relations Act).
- Other civil servants and public employees
- Workers in the prison service, judges, registrars of the court, magistrates and local court judges are excluded from the right to join a trade union (section 2(1)(c) and (e), Industrial and Labour Relations Act).
- Managerial and supervisory staff
- Members of management are entitled to form, join and hold office in a trade union, but are not entitled to be represented by the union in collective bargaining or have their union subscription fees deducted from their wages (sections 4, 5, 22 and 66, Industrial and Labour Relations Act). An employee will be a member of management if he or she: is the head of an employing body with authority to hire, suspend etc an employee; or is the head of a department with authority in financial, operational, personnel or policy matters; has decision making authority in the financial, operational etc matters and represents the employer in collective bargaining; or has written authority to perform any of the above functions (section 3, Industrial and Labour Relations Act).
Right to collective bargaining
Right to collective bargaining
The right to collective bargaining is recognised by law but strictly regulated.
Barriers to the recognition of collective bargaining agents
- Absence of recourse to an independent body responsible for declaring whether an organisation may negotiate or not
- There is no statutory recourse provided for trade unions that are not included in a bargaining unit in accordance with section 69(1) of the Industrial and Labour Relations Act.
Restrictions on the principle of free and voluntary bargaining
- Imposition of fixed and unreasonable procedural requirements (e.g. short time-limits for reaching an agreement)
- A bargaining unit shall conclude and sign the collective agreement within 3 months after commencing negotiations. If the bargaining unit fails to do so, every member of the bargaining unit shall be liable, upon conviction, to a fine not exceeding 2,000 kwacha and may be prohibited from holding a position in the bargaining unit for a period not exceeding three months (section 69, Industrial and Labour Relations Act).
- Compulsory conciliation and / or binding arbitration procedure in the event of disputes during collective bargaining, other than in essential services
- An employer may refer a dispute arising during the course of collective bargaining to the Court for binding determining or for arbitration in accordance with the Arbitration Act (section 78(1), Industrial and Labour Relations Act, as amended 2008).
Restrictions on the scope of application and legal effectiveness of concluded collective agreements
- Endorsed collective agreements not regarded as legally binding or enforceable
- Collective agreements must be approved by the Minister before becoming binding on the signatory parties (section 71(3), Industrial and Labour Relations Act).
- Authorities’ approval of freely concluded collective agreements
- Collective agreements must be lodged with the Commissioner and approved by the Minister before becoming binding on the signatory parties. Upon receipt of a collective agreement and the Commissioner's comments, the Minister direct that a copy of the collective agreement be returned to the parties together with his reasons for not directing the registration (sections 70 and 71, Industrial and Labour Relations Act).
Limitations or ban on collective bargaining in certain sectors
- Other civil servants and public employees
- Workers in the prison service, judges, registrars of the court, magistrates and local court judges are excluded from the collective bargaining framework established under the Industrial and Labour Relations Act (section 2(1)(c) and (e), Industrial and Labour Relations Act).
Other limitations
- Other limitations
- Members of management are not entitled to be represented in collective bargaining (sections 4 and 66, Industrial and Labour Relations Act).
Right to strike
Right to strike
The right to strike is recognised by law but strictly regulated.
Barriers to lawful strike actions
- Excessively long prior notice / cooling-off period
- Strike action may only commence 10 days following the decision to go on strike is made by ballot (section 78(4), Industrial and Labour Relations Act).
- Compulsory recourse to arbitration, or to long and complex conciliation and mediation procedures prior to strike actions
- Strike action may only be taken in the event that a conciliator or board of conciliators fails to settle a collective dispute. The conciliator(s) have 30 days to conclude conciliation proceedings from the date of appointment by the Minister. Any party to a collective dispute or any agent or representative who refuses or neglects without reasonable cause or excuse (the onus of proof shall lie on such party) to attend a meeting summoned by the conciliator or board of conciliation shall be guilty of an offence. Also, the Minister may intervene before (or after) strike action has commenced to try and settle the dispute (section 76, Industrial and Labour Relations Act).
Ban or limitations on certain types of strike actions
- Restrictions with respect to the objective of a strike (e.g. industrial disputes, economic and social issues, political, sympathy and solidarity reasons)
- Strike action may only be taken by an employee or trade union in relation to a collective dispute to which the employee or trade union is a party (section 101, Industrial and Labour Relations Act). A dispute will only be a collective dispute for the purposes of the Act if it relates to the terms and conditions of, or affects the employment of, employees or it concerns the failure of a registered employer and a representative trade union to conclude a recognition agreement (sections 64 and 77, Industrial and Labour Relations Act).
Undue interference by authorities or employers during the course of a strike
- Authorities’ or employers’ power to prevent or end a strike by referring the dispute to arbitration
- The maximum duration of a strike is 14 days, after which, if the dispute remains unsolved, it is referred to the court. Also, an employer may refer a dispute to the court or for arbitration without the consent of the trade union party (section 78(1), (4) Industrial and Labour Relations Act, as amended 2008). A strike can be referred to the Court at the Minister's initiative by application to the court for a declaration that the strike action is "not in the public interest” (section 78(6)–(8) Industrial and Labour Relations Act). The decision of the Court shall be binding on the parties to the dispute for such period as the Court specifies in the Order (section 78(2), Industrial and Labour Relations Act). Any person who takes part in strike action against or in defiance of any award, declaration, decision or judgement of the Court shall be liable to a fine of up to 100,000 kwacha or to imprisonment for up to 12 months, or both (section 85(8), Industrial and Labour Relations Act).
Undermining of the recourse to strike actions or their effectiveness
- Excessive civil or penal sanctions for workers and unions involved in non-authorised strike actions
- An employee or trade union that takes part in a strike which has not be authorised by a valid strike ballot or which is not in contemplation or furtherance of a collective dispute to which the employee or trade union is a party shall be guilty of an offence and liable to a fine of up to 50,000 kwacha (for a trade union) or 20,000 kwacha and disqualification from holding office (for an employee) (section 101(1) and (4), Industrial and Labour Relations Act). Any person convicted of taking strike action that is likely to hinder or interfere with an essential service may be liable to a fine and up to six months’ imprisonment (section 107, Industrial and Labour Relations Act). Finally, any person convicted of taking part in strike action against or in defiance of any award, declaration, decision or judgement of the Court shall be liable to a fine of up to 100,000 kwacha or to imprisonment for up to 12 months, or both (section 85(8), Industrial and Labour Relations Act).
- Excessive sanctions for damages caused by strike actions
- Any person who engages in strike action, knowing or having reasonable cause to believe that the probable consequence of their so doing will endanger human life or cause serious bodily injury or expose any real or personal property to destruction or serious injury, shall be guilty of an offence and liable, upon conviction, to a fine not exceeding 20,000 kwacha or to imprisonment for a term not exceeding six months, or to both (section 100(1), Industrial and Labour Relations Act).
Limitations or ban on strikes in certain sectors
- Discretionary determination or excessively long list of “essential services” in which the right to strike is prohibited or severely restricted
- Essential service is defined to mean: (a) any service relating to the generation, supply or distribution of electricity; (b) any hospital or medical service; (c) any service relating to the supply and distribution of water; (d) any sewerage service; (e) any fire brigade; or (f) any service for the maintenance of safe and sound conditions in a mine of underground working and drainage, shafts and shaft installations or machinery and plant; (g) such other service which the Minister may, in consultation with the Tripartite Consultative Labour Council, prescribe by statutory instrument as an essential service (section 108, Industrial and Labour Relations Act).
- Absence of compensatory guarantees for categories of workers deprived of the right to strike
- Disputes involving a party engaged in an essential service must be referred directly to the Industrial Relations Court, rather than referred for conciliation (section 76, Industrial and Labour Relations Act). As with all other matters referred to the Court, the Court has one year from the day on which the dispute is referred to dispose of the matter (section 85(3), Industrial and Labour Relations Act, as amended 2008).
In practice
Trade unionists condemn the treatment of the Zambia Congress of Trade Unions (ZCTU) general secretary, Cosmas Mukuka, who was forced into retirement by the Zambian government under the orders of the Teaching Service Commission.
Mr Mukuka was informed that he would no longer be able to serve in the capacity of general secretary due to his retirement. The ZCTU maintains that Mr Mukuka was not consulted at any point about this decision. Although Mr Mukuka was later reinstated to his role following mass complaints by unionists, there remains doubt over his ability to serve in a governmental capacity due to mandatory retirement age limits.
As a result of the central government of Zambia delaying funds to local government authorities that should pay workers’ salaries, council workers in Zambia have recently been on go-slow. At the date of writing, 64 out of 103 councils in Zambia had not paid workers their salaries, and it had been 90 days since workers last received their monthly salaries.
In response to the protests, the Zambian government has suspended striking workers councils that took up action. Unions have firmly condemned the suspensions as meant to dissuade other workers from following suit. The Zambian United Local Authorities Workers Union (ZULAWU), a PSI-affiliate, condemned the accumulation of salary arrears. PSI and its affiliates adopted a resolution during the 13th Africa and Arab Countries Regional Conference (AFRECON) in Lomé, Togo, invoking the provisions of ILO Convention 95 on the Protection of Wages. Article 12 of the convention states that wages shall be paid regularly. Failure to pay wages regularly is a clear violation of this provision and a violation of the dignity of the workers and their families.
The National Union of Commercial and Industrial Workers and the Mineworkers Union of Zambia denounce the absence of unionisation at the Masaiti plant – nine kilometres outside Ndola – which employs more than 1,000 workers, due to the company frustrating union activity and dismissing workers for joining unions.
Dangote, an African multinational cement company, which has outsourced most its core work, signed a contract with Silondwa Engineering to “ensure that its employees are not involved in union activities and strikes that lead to stopping of work”. Further, a worker can be given a final warning for “incitement to strike”.
With no wage increases in four years, workers transferred to Silondwa Engineering and who work under precarious conditions describe Dangote as one of the worst employers.
Efforts by Joyce Nonde-Simukoko, the minister of labour and social security, to force Dangote to recognise workers’ rights have not been successful, but unions are not giving up the fight.
After recruiting and organising over 500 workers at the Dangote Cement plant in Masaiti, Zambian unions were being prevented from meeting with their members and collecting membership fees because of the company’s blatant violation of workers’ rights and union busting practices.
At a meeting in Ndola on 5 July, the Mineworkers Union of Zambia, the National Union of Commercial and Industrial Workers and the National Union of Building, Engineering and General Workers met with representatives from Dangote and presented them with a petition demanding that the company stops violating workers’ rights. Also, of concern to unions is that Dangote employs only 15 permanent workers and has outsourced over 1,000 workers to different subcontractors.
After the meeting, the unions drove to the Masaiti plant, where they picketed. Workers who joined the picket gave testimonies on how bad the wages and working conditions were.
The National Union of Metalworkers of South Africa (Numsa) has lodged a complaint with both the South African and Zambian authorities over what it calls the harassment and ill-treatment of Numsa officials by Zambian immigration authorities last weekend.
According to the union, two Numsa officials who flew to Zambia on 31 March 2018 to attend the launch of the new Socialist Party were harassed by immigration officials at the airport who stopped them and then sent them back to South Africa.
“Their paperwork was in order and they were not carrying anything illegal. They were simply flying in on a one-day trip to support their comrades who were launching the Socialist Party in Zambia last weekend‚” Numsa said in a statement.
“The Zambian officials prevented them from proceeding to their destination. Furthermore‚ they detained them for several hours‚ unjustifiably confiscating their phones and passports‚ and then sent them back home.
“Our members were treated like common criminals and yet they had done nothing wrong. A pregnant woman was amongst those detained and she was denied water and food for several hours by the immigration authorities,” the union said.
During the parliamentary hearing on 2 November 2017, the Higher Education Minister confirmed her intent to remove student trade union representatives from university councils of public universities including Copperbelt University and the University of Zambia (UNZA). The Minister accused trade union representatives of focusing too much on bursaries. She announced that all students were free to engage her individually without going through the unions. On 2 January 2018, the Minister’s decision was condemned by the Zambia Congress of Trade Unions (ZCTU), which called on its affiliates to reject the proposal the Minister had sent to the Cabinet.
On 9 January, hundreds of Luanshya Copper Mines (LCM) workers organised a strike demanding a 25 per cent salary increment raise across the board, claiming that they had not received an incremental increase in the previous three years. The issue was subject to negotiations between LCM and both the Mine Workers Union of Zambia (MUZ) and the National Union of Miners and Allied Workers (NUMAW). The management of LCM called the strike illegal and on 10 January suspended seven of the striking workers for allegedly inciting the work stoppage. The matter was subject to immediate intervention by the Copperbelt Minister who called on the management to lift the suspension. The management of LCM agreed to reinstate the suspended workers but, at the same time, appealed to the government to also safeguard the interest of investors, arguing that the work stoppage had adversely affected the operations of the mine.
Three staff unions of the University of Zambia announced a possibility of a strike if the August salaries of unionised workers were not paid by the end of the month. The University of Zambia Lecturers and Researchers Union, the University of Zambia Professional Staff Union and the University of Zambia and Allied Workers Union relied upon the fact that the workers of the University were supposed to receive their salaries by the 18th-20th of every month but, over the previous months, salaries for unionised staff were systematically delayed.
On 13 January 2016, the Judicial Service Commission fired Chairman of Judiciary and Allied Workers Union of Zambia Copperbelt, Mr Paul Chilosha. Chilosha had declared that judiciary workers intended to make their voice heard in 2016 and that the President Edgar Lungu would not have it easy if he refused to increase salaries by a reasonable amount. Following these statements Chilosha received a letter of termination of his employment by the Judiciary Service Commission on behalf of the President Lungu.
On 14 October 2013, about 3,000 workers employed at Shoprite Holdings went on a strike over pay and working conditions. The National Union of Commercial and Industrial Workers was informed by management that all the workers who had gone on strike were dismissed. The company stated that workers would have to re-apply for their jobs.
The Zambia National Teachers Union (ZNUT) stated that the government is not implementing a concluded collective agreement which stipulates improved working conditions. While the agreement should have been implemented in June 2013, it is still not clear when it will be effective. The union has threatened to take strike action if the government continues to disregard the agreement.
The Kitwe City Council has engaged in disciplinary action against trade union leaders and members who had participated in a prolonged work stoppage over delayed salaries. Two trade union leaders from the Zambia United Local Authority Workers Union (ZULAWU) who were linked to the strike action, were suspended. Furthermore, ZULAWU Kitwe branch deputy secretary Stephen Kamponge and Joshua Phiri were transferred to different positions in order to prevent future union activities.
In February 2013, the government seized Collum Mine over poor working conditions and violations of trade union rights. There has been frequent industrial unrest since the mine was privatised in 2003. In October 2010, 13 mineworkers were injured when two managers at the mine opened fire on striking workers. Charges against the two managers were later dropped by the State. A pay dispute at the mine in 2012 after government raised the minimum wage resulted in a spontaneous protest by workers during which a Chinese supervisor was killed and another was injured.
In February 2012, the Mopani Copper Mines (MCM) dismissed 19 miners, including a union official from the United Mineworkers Union of Zambia (UMWUZ), for allegedly inciting miners to protest after the company awarded its employees a 17% salary rise. UMWUZ stated that the union official who had been fired was merely there to tell the workers to resume work.
A report by Human Rights Watch (HRW) released at the end of October revealed a string of workers’ rights abuses at Chinese mining companies in Zambia. The report, “You’ll Be Fired If You Refuse’: Labor Abuses in Zambia’s Chinese State-owned Copper Mines”, based on interviews with miners between November 2010 and July 2011 reveals long working hours and appalling health and safety standards. Miners are expected to work 12 or even 18 hour shifts in poor ventilation, which can cause lung disease, and lacking vital safety equipment. Protests are not tolerated. Outspoken union representatives faced retaliation, and the workers’ rights to join a union were violated by Chinese managers, HRW researchers found (see Violations).
Complaints about Chinese business practices in Zambia stretch back years and often are pointed to as examples of problems with Chinese investors across Africa. In 2005, an explosion at a Chinese-owned factory in northern Zambia killed 51 Zambian workers. In 2010 two Chinese managers were accused of shooting coal miners during a labor dispute (see 2010 Survey and Violations below).
Another practice undermining attempts by workers to improve their lot is casualisation. Speaking in May 2011, Mundia Sikufele president of National Union of Miners and Allied Workers warned that most foreign investors were circumventing labour laws by employing workers as casuals. Mr Sikufele called on the government to stiffen regulations and intensify labour inspection.
President Michael Sata came to power in September vowing to clean up the mining industry.
The prosecutors in charge of the case against two Chinese supervisors who shot at miners in October 2010 decided at the beginning of April to drop the charges against them after the company agreed to pay compensation. The two were facing 13 counts of attempted murder after they fired live ammunition into a crowd of miners on 15 October 2010 during a protest over a wage dispute at the Chinese-owned Collum coal mine, a major supplier of coal to Zambia’s copper and cobalt sector. The incident provoked outrage among many Zambians, whose opposition is growing to China’s huge economic influence over their country.
Working conditions at the mine are extremely harsh and wages are often no more than four dollars a day. The Chinese supervisors speak very little English and nothing of the local languages. They are therefore unable to communicate properly with their workers.
At the time of the incident the Zambian government had promised that the shootings would be thoroughly investigated and that a full and fair trial would be held. The prosecutors did not give a reason for dropping the charges.
In September, the General Secretary of the Mineworkers’ Union of Zambia (MUZ), Oswell Munyenyembe, protested that the government intimidated the union whenever it spoke out on issues affecting miners. Matters came to a head after the MUZ repeatedly voiced concerns about the government’s decision to allow Vale, a Brazilian mining giant, to start operating in Zambia. The government disregarded the union’s concerns and instead accused it of being used by the opposition. The MUZ pointed out it did not need the opposition to tell it to defend miners’ interests. The MUZ’s views and concerns about Vale were based on the company’s record of mistreating workers at mines it operated in other countries.
Former Zambia Congress of Trade Unions (ZCTU) President, Fackson Shamenda, observed that trade unions in the country were operating under difficult conditions, given the political climate, the economic situation and consequent job losses. Meanwhile the Labour and Social Security Minister, Austin Liato, publically criticised some employers for using temporary workers to fill traditionally permanent positions simply to avoid paying statutory employment benefits to workers, leading to growing casualisation and making union organising all the more difficult.
As a result of lengthy procedural requirements making it almost impossible for workers to hold a lawful strike, no legal strike has been held in Zambia since 1994.