Collective Labor Law & ILO Objectives

• This course explores collective labor law, focusing on the rights of unionized workers versus employers and their associations.
• Collective bargaining is the primary method of regulation, exclusively granted to trade unions and employer organizations, forming the bargaining unit.
• Regulation mandates representation of parties in bargaining to achieve mutually beneficial labor conditions, preventing work stoppages and fostering social dialogue.
• Collective labor law governs relationships between employee representatives, organizations, and employer associations.
• Entities are legally required to enter collective agreements to prevent potential losses from unresolved issues.
• Labor legislation is internationally influenced by the International Labour Organisation (ILO) to address modern economic and social challenges.

ILO Objectives:

• The ILO aims to establish legal systems for productive individual and collective employment relationships, fostering a productive economy.
• The ILO seeks for safe environments where workers and representatives can discuss work matters, promoting harmonious relations through workplace democracy.
• The ILO aims to guarantee fundamental workplace principles and rights, ensuring broad social acceptance and enforcement.
• Effective labor legislation responds to labor market conditions and the involved parties' needs.
• Zambian labor legislation may struggle to balance social protection, equity, and economic efficiency.
• Section 6 of the Industrial and Labour Relations Act requires employees to support management for industrial peace, efficiency, and productivity.
• The framework for industrial relations in Zambia originates from two International Labour Conventions, ratified in 1996 and earlier domesticated under Section 5 of the Industrial and Labour Relations Act Chapter 269.

Freedom of Association and Protection of the Right to Organise Convention (No. 87 of 1948):

• It was adopted on July 9, 1948, and enforced on July 4, 1950.
• It grants employees and employers the right to form trade unions and employer associations without external interference.
• Legal entities representing these interests must be unrestricted, and relevant laws must be fair to guarantee convention rights.
• Member states must ensure workers and employers can establish and join organizations without discrimination or prior authorization (Article 2).
• Organizations can create their rules, elect representatives freely, manage their activities, and develop programs (Article 3).
• Public authorities cannot interfere with or hinder the lawful exercise of these rights (Article 3).
• Organizations cannot be dissolved or suspended by administrative action (Article 4).
• Organizations can establish and join federations/confederations, and affiliate with international bodies (Article 5).
• Articles 2, 3, and 4 apply to federations and confederations (Article 6).
• Acquiring legal personality cannot restrict the application of Articles 2, 3, and 4 (Article 7).
• Rights outlined should be exercised respecting the law of the land (Article 8).
• National law should not impair the guaranteed rights (Article 8).
• The extent of guarantees for armed forces and police is determined by national laws (Article 9).
• ILO ratification does not affect existing laws granting rights to armed forces or police (Article 9).
• "Organization" means worker or employer groups promoting and defending worker interests (Article 10).

Right to Organise and Collective Bargaining Convention No. 98 of 1949:

• Adopted on July 1, 1949, and enforced on July 18, 1951.
• It aims to safeguard employees from anti-union discrimination at work.
• It protects against dismissal for union activities outside working hours or with employer consent.
• Member states must ensure adequate protection through the following provisions:
• Workers should have protection against anti-union discrimination (Article 1).
• Protection includes preventing employment conditions that require not joining or relinquishing union membership (Article 1).
• It also protects against dismissal or prejudice due to union membership or activities outside working hours (Article 1).
• Worker and employer organizations are entitled to protection from interference by each other or their members (Article 2).
• Actions designed to create employer-dominated worker organizations or support worker organizations to control them are considered interference (Article 2).
• Machinery should be established to ensure respect for the right to organize (Article 3).
• Measures are to be taken to encourage voluntary negotiation between employer/employee organizations for regulating employment terms (Article 4).
• The extent to which guarantees apply to armed forces and the police shall be determined by national laws or regulations (Article 5).
• ILO ratification doesn't affect existing laws granting rights to armed forces/police (Article 5).
• Section 2 of the I & LR Act excludes the Zambia Defence Force, Police Force, Prison Service, Security Intelligence Service, Judges, Registrars, Magistrates, and Local Court Justices.
• The Minister of Labour may exempt individuals/entities from the Act after consulting the Tripartite Consultative Labour Council, subject to specified conditions.
• The Companies Act, Societies Act, and Co-operatives Societies Act do not apply to trade unions.
• Organizations intending to operate as trade unions/employer associations must register with the Labour Commissioner under the Industrial and Labour Relations Act.
• Registrations under the Companies Act, Societies Act, or Co-operative Societies Act for trade union activities are void.
• The Industrial and Labour Relations Act (Chapter 269) was enacted in 1971, replaced in 1990, and updated in 1993.
• It provides the framework for establishing, organizing, and managing trade unions, employer groups, and their federations.
• It facilitates collective bargaining, industrial dispute resolution, consultative mechanisms, and the Industrial Relations Court.
• Amendments in 1997 accommodated liberalized political and economic conditions.
• These changes reinforced freedom of association per ILO standards and ended "one union one industry" policy, enabling enterprise-level bargaining.

Trade Union and Employer Organizations:

• A trade union is an organization of employees registered under the Industrial and Labour Relations Act with the core objective of regulating collective relations.
• The Industrial and Labour Relations (Amendment) Act No. 30 of 1997 broadened the definition of a trade union.
• The newer definition included any employee group registered to represent and promote employee interests as well as manage relations between employees and employers; this includes federations.
• This definition allowed for trade union amalgamation, increasing bargaining power and improving employment conditions.
• An Employer's Organization is any group of at least five employers registered under the Industrial and Labour Relations Act.
• The Employer's Organization aims to represent and promote employer interests as well as manage relations between employers, employees, and trade unions; this includes federations.
• Employee rights apply similarly to employers, including the right to organize and associate under the Freedom of Association and Protection of the Right to Organise Convention No. 87 of 1948.
• Section 37 of the Industrial and Labour Relations Act guarantees employer rights, including the right to:
  • Form and join associations, participating in their lawful activities
  • Be or become a member of any lawful association without legal prohibition or penalty due to membership
  • Be free from impedance, interference, and coercion by any individual in exercising rights under the Act
  • Be free from discrimination based on association membership status
  • Ensure employees are not discriminated against for holding office in an association
  • Operate without interference in the lawful establishment, administration, or functioning of an association
  • Employees cannot face repercussions for the employer's membership, activities, or court appearances related to an association.
• At least 50 employees can form a trade union by signing an application for registration by the Labour Commissioner.
• The application must include certified copies of the proposed trade union's constitution.
• The commissioner registers the union and issues a registration certificate upon payment of a prescribed fee.
• Trade Unions and Employer Associations can merge to enhance bargaining strength if permitted by their constitutions.
• The resulting union must be registered, assuming the rights and liabilities of the previous unions.

Trade Union Policy:

• Registration of trade unions was established to prevent proliferation through automatic affiliation to the Zambia Congress of Trade Unions (ZCTU).
• The 1971 legislation stipulated automatic ZCTU affiliation upon registration.
• Rule 3 of the ZCTU constitution mandated that every trade union registered under the Industrial Relations Act be affiliated with the ZCTU.
• The 1971 legislation authorized the labour commissioner to deny registration to unions with:
  • Similar names to existing unions.
  • Representation of employee classes already represented by another union.
• The government's policy restricted registration if another union existed in the same industry leading to "one union, one industry".
• This extended to prevent single employers from dealing with multiple unions.
• Kenneth Kaunda's address in 1979 reinforced supporting one union per industry to strengthen worker bargaining power.
• Proliferation of unions can disrupt industrial harmony, compromising collective bargaining.
• In 1995, the Supreme Court in Attorney-General v Fabian Zulu found section 9(8)(c) of the 1993 Act, enforcing the "one industry, one union" policy, unconstitutional.
• The Labour Commissioner's invocation of the law was ruled unconstitutional because the teaching profession was already represented by the Zambia National Union of Teachers.
• The court's decision was an infringement on the petitioners' rights to assembly and association as protected by the Constitution.
• The Secondary School Teachers Union comprised a specific category distinct from other teachers, qualifying them to form a trade union under section 9(8)(c) of the Industrial and Labour Relations Act.
• To that extent, section 9(8) c was regarded within the powers of the constitution and permitted the registration of a separate union for secondary school teachers.
• Trade unions or employer organizations can be voluntarily dissolved by members under sections 16 and 50.
• This involves submitting a notice to the Labour Commissioner, signed by the executive committee, and copied to the Federation if applicable.
• A copy of the minutes and resolution passed must also be submitted.
• The commissioner may approve the dissolution.
• Dissolution takes effect from the date of notice by the commissioner.
• Upon dissolution, all union property vests in a liquidator appointed by the commissioner.
• The liquidator collects all assets, sells them, and pays creditors of the Union.
• Any remaining assets are shared by the members.
• Registered trade unions and employer associations lack specific legal personality, limiting their capacity to perform functions.
• Trustees, such as the President, Secretary General, or Treasurer of the association, represent them.
• Any real or personal property is vested in these trustees.
• The trustees bring and defend actions on behalf of the association.
• Trustees are protected from personal liability for shortages unless due to their default or neglect.
• Employer’s associations lack capacity to contract and are represented by the trustees who may be officers in the association.

Collective Labour Relations:

• Collective labor relations entail amicable and peaceful negotiation for improved working conditions.
• It encompasses conflict prevention through using social dialogue among stakeholders, known as collective bargaining.
• The term "collective bargaining" was coined in 1891 by Beatrice Webb, highlighting its link to British trade union activity in the 18th century.
• Collective bargaining focuses on bipartite relations between employers/organizations and workers/organizations.
• Employers/organizations can negotiate directly with trade unions or through managers/experts, complicating the agreement parties.
• Article 92 of Morocco's Labour Code defines it as dialogue between the most representative unions and employers/organizations to improve working conditions and organize relations.
• Collective bargaining enjoys international protection under Article 23(4) of the Universal Declaration of Human Rights, recognizing union organization as a fundamental right.
• The ILO's Convention No. 98 of 1949 protects against anti-union discrimination.
• The Freedom of Association and Protection of the Right to Organise Convention No. 87 of 1948 outlines employee rights regarding union membership.
• The aforementioned rights are integrated into Zambian law under Section 5 of the Industrial and Labour Relations (Amendment) Act, 1997 Chapter 269.
• Rights include forming/joining a trade union, participating in its activities, seeking/accepting office, obtaining leave for union activities without unreasonable denial, and protection against discrimination.
• Employees also have the right to decline union membership, to not be dismissed/prejudiced for exercising their employment rights, and to refuse work normally done by striking/locked-out workers unless it is an essential service, or they waive their right.
• Employees cannot be penalized for being a complainant/witness in proceedings against the employer or for receiving a reward/benefit due to a court decision.
• Injured parties are entitled to damages/compensation for job loss, re-employment/re-instatement, or other appropriate orders.
• Collective bargaining involves all negotiations between employers/organizations and workers/organizations to determine working conditions, regulate relations, and establish terms of employment.
• ILO's Convention No. 154 reinforces this definition.
• Collective bargaining allows for the negotiation of employment terms between employers and workers.
• labor unions commonly represent employees during the process.
• Negotiated terms may cover working conditions, salaries/compensation, hours, and benefits.
• The ILO regards collective bargaining as a fundamental right.
• The aim is to reach a collective agreement, defined by the ILO as written agreements on working conditions and terms of employment between employers/organizations and worker representatives.
• This definition aligns with Part II.2. (1) of the Collective Agreements Recommendation, 1951 (No. 91).
• Collective agreements bind signatories and those they represent, applying to all workers unless specified otherwise in writing, prevailing over individual contracts while recognizing more favorable stipulations for workers.
• Free and voluntary collective bargaining means agreements reflect the parties' consensus, not external impositions.
• Collective bargaining is a process of negotiation whether its discussion, formal or informal, with the aim of reaching an agreement.
• For collective bargaining to be effective, negotiations must be conducted in good faith.
• it includes mutual decision making, which helps build trust and respect, and enhance labor relations.

Disadvantages of Collective Bargaining:

• Collective bargaining can be a lengthy process due to employers/leaders seeking feedback and potential member votes.
• The process then restarts, if the proposed terms are rejected.
• Collective bargaining can be costly as employers and employees take time off, affecting productivity and establishment performance.
• Biases from compromised employee representatives can result in unfavorable terms.
• Collective bargaining in the public sector may be controversial due to constraints imposed by taxpayer funding and international debt obligations.
• Social dialogue includes all types of negotiation, consultation, or exchange of information between representatives of governments, employers, and workers on common issues.
• Social dialogue includes bipartite/tripartite negotiations at all levels, with participation from governments, employers, and workers.
• Collective bargaining is a key component of social dialogue.
• It involves substantive negotiations between one or more employers/organizations and trade unions to create a collective agreement.
• The collective agreement regulates employment conditions and party relations, setting it apart as a unique dialogue form.

Consultation vs. Collective Bargaining:

• Consultation involves information sharing and consideration of views on matters of interest before decisions are made.
• Collective bargaining involves information sharing and listening views of those concerned on matters commom interest before takinga decision.
• Consultation can enrich communications, build common understanding, and add value to management decisions.
• Consultation may be bipartite/tripartite and occur at enterprise, industry, and national levels.
• Collective bargaining is a bipartite process for joint decision-making on employment terms.
• Consultation complements and does not replace collective bargaining. Tripartite social dialogue includes organizations, trade unions, and governments, consisting of negotiations, consultations, and exchange of information and is bipartite.
• Collective bargaining is bipartite, and involves both one or more employer and one or more trade union.
• Government involvement happens in its role as an employer in the public sector.
• Tripartite social dialogue enhances collective bargaining when authorities adjust policies and institutions, framing the socio-economic context.
• Collective bargaining results in a collective agreement signed by negotiating parties.
• Such agreements set rules for grievances/procedures, helping to resolve employment disputes amidst internal uncertainties.
• Section 75 defines 'collective dispute where claims and demands violate the terms of employment, and is initiated by informing parties of intention in writing.
• In Pamodzi Hotel v Godwin Mbewe (1987), dismissal due to drunkenness was justified under a collective agreement.
• Collective agreements act as a labor contract between employers and unions.
• For legal force, collective agreements must be registered with the Labour Commissioner.
• In 1998, an agreement between UNZA and UNZAWU for a salary increase was declined registration due to a wage freeze.
• The agreement was signed on July 9, 1998, between the University of Zambia Council and the Allied Workers’ Union, and sought to pay a 58% harmonized salary increment settlings all after terms.
• The lower court ordered the appellant to honor those provisions.
• The Supreme Court held that the lower court had erred in law and fact for honoring the provisions.

Legal Support for Collective Bargaining:

• Collective bargaining forms part of the right to freedom of association under Article 21 of Zambia's Constitution.
• Defined in 1891 by Beatrice Webb, collective bargaining connects to British trade unionism in the 18th century.
• International law protects collective bargaining, for instance, Article 23(4) Universal Declaration of Human Rights in recognising a right of trade unions as a fundamental human right.
• The ILO Right to Organise and Collective Bargaining Convention No. 98 of 1949 protects employees from anti-union violence at work.

Bargaining Procedure:

• ILO maintains that collective bargaining is fundamental for all workers.
• All employees hold the right to present grievances to employers and engage in negotiation.
• Collective bargaining by the ILO also reduces inequalities in the workplace and increases labor negotiations for workers.
• Collective bargaining occurs typically amongst members of management, and leader of trade union who are elected in order to represent the interests of the employees, and improve labor negotiations.
• Collective bargaining is initialised upon contract renewal of employees or during employer changes to labour contracts.
• Common changes include the following areas:
  • The conditions of one's employment
  • Regulations of working settings
  • Minimum levels of pay, inclusive of wages
  • Regular durations of work hours and shift times
  • Employee sick day allocations and holiday days granted, in addition to time off periods
  • Additional compensation for items such as retirement plans and healthcare.
• Collective Bargaining relies directly with the trade union, and the employers organisation and together, they form the bargaining unit.
• Bargaining and negotiation levels are also under careful consideration.
• Collective bargaining involves five primary functions: - Bargaining unit and their negotiations - Collective framework and employee organisation - Trade unions conclude bargaining agreements with employers - Employee participation with negotiations

Settlement of Collective Disputes:

• Under section 75, a collective dispute emerges when a claim concerning terms and conditions of employment is disregarded.
• Under section 75 (c), it exists when the employer makes a decision with claims from its writing and intentions, under all conditions of employment.
• A key component of that section states, and includes terms of writing, and intimations made by others concerning the violations.
• The other party is under obligation to address the matter via writing, and it carries a 14 days of not responding.
• Under section 76 (1), conciliation and board member are required, and must consent together.
• An essential service must also refer its matters to the court.
• A notice to labour unions are essential when settlements fail, in addition for informing, for 7 days, via board and consiliator.
• Should an agreement be reached, it will then be signed by a party, inclusive of a chairman and board member.
• And, if no means for agreements are reached, then may be referred to via high cou