13.1 Collective Labour Law: Trade unions

Article 21(1) of the Constitution

(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to any political party, trade union or other association for the protection of his interests.

Legal Personality of a Trade Union

- A Trade Union is not a body corporate even though it may purchase or take on lease in the name of the trustees of the trade union, any land and sell, exchange, mortgage or let the land. - Actions by and against trade unions are brought and defended by trustees of the union or any other officers authorised to do so by the union's constitution.

Daniel Peyala v ZCCM

- the court confirmed that only employees can be members of a trade union. - further, the Supreme Court endorsed that where an employee withdraws from a trade union, he cannot benefit from subsequent collective agreements entered into with the trade union relating to conditions of service, as in the Kapapula case. - the Supreme Court also established that if an employee leaves employment, he also vacates membership of the trade union he was a member of.

Article 3 of ILO Convention No. 87

1. Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their eduling programmes. 2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.

3 main central organisations in Zambia

1. the Zambia Congress of Trade Unions (ZCTU), 2. Federation of Free Trade Unions of Zambia (FFTUZ) 3. Confederation of Trade Unions in Zambia (CTUZ).

Section 7(1) of the ILRA

Every trade union shall be registered under this Act with the Commissioner within six months from the date of formation.

Section 52(4)(a) of the Employment Code Act

states that an employer is not permitted to dismiss an employee for being a member of a trade union or participating in union activities outside working hours or, within working hours with the consent of the employer.

Section 22 of the ILRA

states: (1) An employer may, by agreement with an eligible employee, deduct the amount of subscription prescribed by the constitution of the trade union from the wages of such eligible employee if the employee is a member of such trade union. (2) An eligible employee may, at any time, withdraw the agreement referred to in subsection (1) by giving three months' notice, in writing, to the trade union concerned.

ILO Declaration of Philadelphia

stipulates that freedom of expression and of association are essential to sustained progress.

Section 5(2) of the ILRA

(2) No employer, or any person acting on his behalf shall- (a) prevent, dismiss, penalise or discriminate against or deter an employee from exercising any of the rights conferred on him by subsection (1); (b) refuse to engage a person, or dismiss, penalise or discriminate against any employee on the ground that, at the time of applying for an engagement, he was or was not a member of a trade union or of a particular trade union or other organisation of employees; or (c) dismiss, penalise or discriminate against an employee on the grounds that such employee- (i) has been or is a complainant or a witness or has given evidence in any proceedings, whether instituted against the employer before the Court or any other court; (ii) is entitled to a reward, benefit or compensation against the association or the class of employers to which such employer belongs or against any other person, in consequence of a decision made by a Court in his favour or in favour of a trade union or the class of employees to which such employee belongs;

rules on trade unions under the ILRA

(a) all unions must be registered. (b) in order to register, they must have at least one hundred members, (c) without being registered, a trade union will not be able to claim important rights and will not be protected by the law. (d) An unrecognised trade union will not be able to negotiate and enter into a valid collective agreement. (e) any application to register a trade union must be signed by no fewer than fifty supporters or such lesser number as may be prescribed by the Minister. (f) The Commissioner must register a trade union within six months of receiving the application. (g) If the Commissioner refuses to register an organisation, such organisation is obliged to dissolve within six months from the date of notification, failing which the organisation will be liable to pay a fine. (h) Any person, who is aggrieved by the refusal of the Commissioner to register an organisation as a trade union, or by the cancellation of a certificate of registration, has the right to appeal to the Industrial Relations Court, not later than 90 days after being notified about the refusal, decision or cancellation

Rights and Obligations of Employees with Trade Union Membership

(a) the right to take part in the formation of a trade union; (b) the right to be a member of a trade union of that employee's choice; (c) the right, at any appropriate time, to take part in the activities of a trade union; (d) the right to obtain leave of absence from work in the exercise of the rights provided for in paragraph (c) and the leave applied for shall not be unreasonably withheld by the employer; (e) the right not to be prevented, dismissed, penalised, victimised or discriminated against or deterred from exercising the rights conferred on the employee under this Act; (f) the right of any employee not to be a member of a trade union or to be required to relinquish membership; (g) the right not to be dismissed, victimised or prejudiced for exercising or for the anticipated exercise of any right recognised by this Act or any other law relating to employment; or for participating in any proceedings relating thereto; (h) the right not to do work normally done by an employee who is lawfully on strike or who is locked out, unless such work constitutes an essential service, or if on request the employee voluntarily waives the right specified under this Act;

Luciano Mutale and another v Newstead Zimba

- A member can also decide to withdraw from a trade union before his employment terminates. - the Supreme Court held that the mother bodies have no jurisdiction in domestic matters, such as disciplinary procedures related to one of the affiliated trade unions, unless such matter has been expressly referred to the body by the trade union. - the Supreme Court was of the view that the issue of withdrawal of membership from a trade union is between the member employee and the union itself. - further, it was held there is no inherent common law right to expel or suspend from membership of, or honorary office in, a trade union. Any such right must be found in the rules or constitution, either by express mention or by necessary and clear implication. - the Supreme Court emphasised that the right to regulate membership in trade unions will be governed by the constitution or rules of the trade union.

ANZ Grindlays Bank (Zambia) Limited v Chrispin Kaona

- In this case, the employee was granted permission to attend a trade union meeting. When he returned to work, he was locked out and treated as though he had been striking. - The Industrial Relations Court immediately therefore set out the law relating to the rights of an employee to attend union meetings, and said that, since Section 5(2)(a) of the Industrial Relations Act provides that no employer should dismiss any person for exercising his right to attend a union meeting, the dismissal in this case was null and void.

United Nation Union of Private Security Employees and Others v Panorama Security and Another

- In this case, the second appellants did send notices to both respondents of their withdrawal from the second respondent union. However, the notices were composite ones; where on one notice the names of employees giving that notice together with their signatures were indicated. - the supreme court held that notice was in writing and the signatures of the employees named thereon signified that they had adopted the notice in their individual capacity. Certainly, the second respondent was left in no doubt that those employees had decided to withdraw their membership. - The court thereby held that several employees can use one notice of withdrawal to collectively withdrawal from the union.

Zambia Sugar Plc v Lumuno Mukwali

- a unionised employee, on his day off featured on a radio programme where he spoke. He was charged with misconduct and subsequently dismissed. - the Respondent in his capacity as Union president used his day off on Sunday to participate in the radio programme that was dedicated to addressing union matters which can be considered as "an appropriate time" to attend to such activities. - interpreted section 5(1)(c) of the Industrial and Labour Relations Act which provides for partaking in trade union activities at an appropriate time

Edward Kapapula and 2 others v Zamtel Ltd

- emphasised that the right to join or leave a trade union should be made voluntarily. as a general rule all employees (excluding the excluded employees) are eligible to join a trade union, no employee must be forced to join or leave. - It was held that held that both under Article 21(1) of the Zambian Constitution, as amended, and Section 5 of the ILRA, being a member of or belonging to a trade union is a right which is exercised or enjoyed voluntarily - the Supreme Court also endorsed that where an employee withdraws from a trade union, he cannot benefit from subsequent collective agreements entered into with the trade union relating to conditions of service.

law prior to and after 2008

- prior to the 2008 Industrial and Labour Relations (Amendment) Act, a worker had the right to be a member of a trade union of their choice. - After 2008, the IIRLA was amended and section 5(b) of the Act limits the right of workers to form and join organisations to - a trade union within the sector, trade, undertaking, establishment or industry in which that employee is engaged."

the Industrial and labour relations act

- provides protection for the exercise of rights normally associated with trade union membership, such as the right to leave in order to perform trade union functions and several anti-discrimination provisions. - regulates the formation and operation of workers' unions and employers' organisations. - further, provides for the establishment of the Zambia Congress of Trade Unions (ZCTU), federation of employers' organisations, funding for bodies, recognition agreements, collective agreements, settlement of collective disputes, the Tripartite Consultative Labour Council and the Industrial Relations Court. - excludes members of the Defence Force, the Police Force, Prison Services, Security Intelligence Services, judges, registrars of the court, magistrates and local justices from its ambit

Kelvin Lukonde and Others v Mopani Copper Mines Plc

- the Supreme Court interpreted the provisions of the Industrial and Labour Relations Act in relation to discrimination held that: - Under this law, no employer should dismiss any person for exercising his/her right to attend union meetings, and activities. Attendance to union meetings, and activities however, should not be unconditional and without order

Attorney General and Another v Fabion Zulu and Others

- the supreme court was divided on whether secondary school teachers could form a trade union separate from the Zambia National Union of teachers - it was confirmed that a trade union could be registered if it deals with a specific group of employees even though there is an overarching trade union that represents this group of employees together with other similar employees. - it was held that the proposed Secondary School Teachers Union of Zambia comprise a specific category, different from other teachers, who are qualified to form a trade union within the terms of Section 9(8)(c) of the Industrial and Labour Relations Act, and that its members are not represented by any other union. - In this case, despite there being a Zambia National Union of Teachers that represented all teachers, the court permitted the registration of a trade union just for secondary school teachers. - there was a dissenting judgement.

Key components of freedom of association and collective bargaining

1. the right of workers and employers, without distinction whatsoever, to freedom of association and collective bargaining; 2 exceptions to guaranteeing these rights to certain categories of workers; 3. the right of workers and employers to form and join organisations of their own choice, subject to the rules of the organisation; 4. the right of employers' organisations and trade unions to self- determination 5. the right of workers' and employers' organisations to establish and join federations; 6. protection against state interference; 7. measures to promotoe collective bargaining; 8. principle of free and voluntary negotiations; and 9. the right to strike

Article 21(2)(d) of the Constitution

Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that it is shown that the law in question makes provision -- (d) for the registration of political parties or trade unions in a register established by or under a law and for imposing reasonable conditions relating to the procedure for entry on such register including conditions as to the minimum number of persons necessary to constitute a trade union qualified for registration; and except so far as that provision or, the thing done under the authority thereof as the case may be, is shown not to be reasonably justifiable in a democratic society.

Section 5(1) of the ILRA

Notwithstanding anything to the contrary contained in any other written law, and subject to this Act (a) every employee shall, as between himself and his employer, have the following rights; (i) the right to take part in the formation of a trade union; (ii) the right to be a member of any trade union of his choice; (b) every eligible employee shall as between himself and his employer, have the following rights: (i) the right, at any appropriate time, to take part in the activities of the trade union including any activities as, or with a view to becoming, an officer of the trade union and the right to seek election or accept appointment and, if elected or appointed, to hold office as such officer; and (ii) the right to absent himself from work without leave of the employer for the sole purpose of taking part in the activities of the trade union, including any activities as, or with a view to becoming an officer of the trade union, and the leave of absence though applied for was unreasonably withheld by the employer

Section 12 of the ILRA

The section provides that the Commissioner, after getting consent from the Minister of Labour and Social Security may cancel the registration of a trade union in the following circumstances: (i) at the request of the trade union which has resolved to be dissolved and an application has been made in the prescribed form; (ii) if the certificate of registration has been obtained by fraud or mistake; (iii) if the trade union has wilfully violated any of the provisions of this Act; or (iv) if the trade union is dormant.

rights of trade unions

Trade unions have the right to engage in various activities, including but not limited to: (a) collective bargaining in appropriate bargaining units; (b) settling disputes that could not be resolved through conciliation through court process or through a strike or lockout; and (c) representing employees in the Industrial Relations Court. (d) taking part in the Tripartite Consultative Labour Council.

Article 2 of ILO Convention No. 87

Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.

international conventions zambia has ratified

Zambia has ratified to important ILO conventions relating to freedom of association and collective bargaining: 1. the Freedom of association and protection of the right to organize convention, No. 87 (1948) 2. the Right to Organise and Collective Bargaining Convention, No. 98 (1949)

Section 3 of the ILRA

a manager is: (a) who is the head of an institution or undertaking and has authority to hire suspend, promote or demote an employee of the institution or undertaking. (b) who is the head of a department in an institution or undertaking and has authority in the financial, operational, human resource, security or policy matters of the institution or undertaking; (c) with decision-making authority in the financial, operational, personnel or policy matters of an institution or undertaking and who represents and negotiates on behalf of the institution or undertaking in collective bargaining or negotiations with any trade union; or (d) with written institutional authority to perform the functions referred to in paragraphs (a), (b) or (c).

Section 11 of the ILRA

a trade union must have a constitution. (3) of the Industrial and Labour Relations Act, the constitution should not be inconsistent with the Act or any other written law.

Section 15 of the ILRA

allows two or more trade unions, in accordance with the provisions of their respective constitutions, to amalgamate as

Section 9(2) of the ILRA

an application to form a trade union must be accompanied by : (i) two duly certified copies of the constitution of the proposed union and (ii) such other information or documents as may be required by the Labour Commissioner by notice in writing addressed and delivered to the executive officer of the trade union within such period as determined by the Labour Commissioner and specified in the notice.

trade union

any group or organisation of employees registered under the Industrial and Labour Relations Act whose principal objectives are the representation and promotion of the interests of employees and regulation of relations between employees and employers.

Section 2(2) of the ILRA

empowers the Minister, after consultation with the Tripartite Consultative Labour Council, to exclude any other person from the right to join a trade union.

Section 5 of the ILRA

establishes the right of every employee tot take part in the formation of a trade union and to be a member of any trade union of the employee's choice.

Section 4(1) of the ILRA

excludes members of management from being regarded as eligible employees, and thus it does not apply to management employees.

SADC Social Charter

guarantees similar rights which include; 1. freedom of association; 2. the right to collective bargaining; the right to strike; 3. the right to autonomous and accessible dispute system machinery; and 4. organisational rights.

Graham Banda v Rudnap Zambia

held that dismissal of trade union members who disobey lawful instructions from their employer or breach their employment duties is permissible, provided such breach is independent and not linked to their trade union activities.

Faramus v Film Artistes' Association

it was held that a trade union can exclude any employee from the union for any reason.