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TEILDOKUMENT:
Chapter One
Legislative and Political Developments of the Trade Unions in Zambia
In terms of post-independence legislative developments the Trade Unions and Trade Disputes Act of 1964 was the earliest piece of legislation to regulate trade union activities. This was repealed in 1971 and replaced with the Industrial Relations Act which did not become operational until 1974. This Act was again repealed in 1990 and another Industrial Relation Act was introduced. In 1993 the new government repealed the Industrial Relations Act of 1990 and in its place the Industrial land Labour Relations Act was introduced.
It is the purpose of this chapter to consider the historical development of trade union law and practice in Zambia in so far as they have a bearing on the present day trade union status.
(a) The Zambia Congress of Trade Unions (ZCTU)
The ZCTU was established by an amendment to the Trade Unions and Trade Disputes Act (TUTDA) of 1964. All the subsequent and successive Acts have retained the statutory proclamation of the ZCTU with variations as to its powers. For example, the 1971 Act expressly registered by the Labour Commissioner without any application being made on its behalf. Automatic registration of the ZCTU has implications on the structure of trade unions and, in particular, on the question of trade union affiliation to the ZCTU.
(b) The Affiliation to the ZCTU
Under section 43 of the TUTDA affiliation to the ZCTU could only be effected if a majority of its officers resolved to affiliate. Under this Act, therefore, the question of affiliation was a matter left to the decision of the members: it was not mandatory to affiliate to the ZCTU.
The 1971 Industrial Relations Act (IRA: 1971) made some radical changes to this matter by providing for the principle of affiliation by registration.
The Act stipulated under section 15(i)(b) that every trade union in possession of a valid certificate of registration shall be deemed to be a trade union duly affiliated to the Congress.
Under sub-section (2) it was provided that upon registration and, therefore, affiliation, such a trade union ‘shall be entitled to the rights and privileges, and be subjected to the obligations specified in the constitution of the congress.’ Thus the influences and authority wholly depended on what the constitution of the ZCTU stipulated. Indeed section 27 (i) required that the constitution of the ZCTU ought to spell out the rights, privileges, duties and obligations conferred or imposed upon trade unions by virtue of their affiliation to the congress.
The powers of ZCTU over its affiliates were also defined under section 28. It was provided that where a dispute arose between two or more trade unions as to which of them had or should have the exclusive right to represent employees of a specified class or category then the parties were under an obligation to refer such a dispute to the ZCTU with a right of appeal to the Industrial Relations Court. It has to be noted that section 27 was in effect a limitation of the scope of issues on which the ZCTU could have influences on. The trade unions in dispute could only refer the matter to the ZCTU if the issues in dispute related to representation.
The relationship between the ZCTU and its affiliates was judiciary tested in the case of Luciano Mutale and Jackson Chomba vs Newstead Zimba in 1988. [ Fn 1: unreported]
The facts of the case were that the National Union of Building, Engineering and General Workers (NUBEGW) General Council passed a resolution in September 1987 to suspend the union chairman Frederick Chiluba who was also the Chairman General of the ZCTU. This was followed up by the ZCTU convening its own General Council which decided to intervene by way of suspending the entire Executive Committee of NUBEGW and some of NUBEGW’s full time employees. NUBEGW objected to the intervention by the ZCTU arguing that if (the ZCTU) did not have legal authority to do so. When the matter was taken to the High Court it ruled that the action by the ZCTU was not in breach of the law.
On appeal the Supreme Court reversed the decision of the High Court. It was decided that the rules or the constitution of the ZCTU did not give the ZCTU the power to intervene in the internal affairs of the affiliates in the manner in which it did. The court observed that the power to expel or suspend members could only be enforced if such a power was expressly provided by the rules or could arise by necessary implication. The court refused to draw such an implication from the constitution of the ZCTU.
Under the short lived 1990 Industrial Relations Act the matter was put to rest when it was expressly provide that the ZCTU could not intervene in the internal affairs of its affiliates. Similarly, automatic affiliation was removed and provided that only by a two thirds majority of all members of a union could affiliate to or disaffiliate from the ZCTU.
The 1993 legislation makes it obligatory for unions affiliated to the ZCTU to refer their dispute to the ZCTU for reconciliation. If this fails the parties have recourse to the Minister of Labour and Social Security for arbitration with final appeal to the Industrial Relations Court [ Fn 2: The Industrial and Labour Relations Act] .
It is important however to note that under the same 1993 Act [ Fn 3: s. 34] , it is provided that each trade union shall maintain its separate status and shall have the right to organize itself as it considers fit.
It is further provided that the ZCTU shall have no jurisdiction over any trade union affiliated to it in any domestic management or domestic matter unless such a matter has been referred to it by the trade union concerned.
Finally, affiliation to the ZCTU [ Fn 4: S.17] is by a simple majority decision of the members present and voting at a General Conference.
These three aspects require some clarification. Section 35 only makes it mandatory that where there is a dispute between two or more trade unions affiliated to the ZCTU then such a dispute has to be referred to the ZCTU in the first instance.
On the hand, section 34 declares that where a dispute is purely domestic within the trade union then the ZCTU has no right to intervene unless such a dispute has been referred to it by the trade union concerned.
Lastly, section 17 deals with the question of affiliation to and disaffiliation from the ZCTU. It provides that by a simple majority a trade union may decide at its General Conference to affiliate or cease to be affiliated to the ZCTU. This last point is particularly important on the trade union situation in Zambia - a point which is a central make of this treatise.
c) Trade Union Registration
It has been noted that the 1971 legislation provided for automatic affiliation to the ZCTU by registration. It is also significant to note that under Rule 3 or the ZCTU constitution it was stipulated that every trade union which was duly registered under the Industrial Relations Act was deemed to be affiliated to the ZCTU.
The 1971 legislation, like the TUTDA of 1964, provided that an application to register a trade union had to be signed by not less than seven members. This application had to be lodged with the Labour Commissioner. The Labour Commissioner could, under that legislation, refuse a trade union on any of the following two grounds:
- that it has a name that is identical with that by which any other trade union has been registered or so nearly resembling such a name as to be likely to deceive its own members or the members of the public;
- that it purports to represent a class or classes of employees already represented by or eligible for membership of another trade union [ Fn 5: s.7(8)] .
The first of the above grounds had no bearing on the strength or structure of the labour movement. It is the second reason that had far-reaching implication on trade union structure and organisation and needs to be examined in some detail.
What the second ground effectively meant was that no trade union could be registered if another union existed in such industry. By extension no single employer could have more than one union to deal with. This interpretation is derived from section 112 of the 1971 legislation. This section provided that every recognition agreement ‘shall provide that the employer has duly recognised the trade union as the sole representative of and exclusive bargaining agent for employees employed by such an employer.’
The net effect of these sections was to define the structure of trade unions based on the principle of one union in one industry. Indeed in his opening address to the National Assembly of 7th January 1979 the then President Kenneth Kaunda stated as follows:
‘...our policy still remains one of supporting one union for one industry, for we are convinced that a proliferation of trade unions weakens the bargaining strength of the workers.’
One can hardly doubt the suitability of this philosophy because of its implicit spirit for good industrial relation and a strong trade union movement.
The pattern of one union in one industry has more advantages than disadvantages. Apart from strengthening trade unions this pattern avoids the problem of multiple representation and it associated disadvantages of inter union conflict, multiplicity of negotiations within the industry as well as the problem of overlapping membership.
Proliferation of unions also has the disadvantage of promoting industrial disharmony which has the ultimate effect of compromising trade unions in their collective bargaining engagements and other industrial relations obligations.
These problems were endemic shortly after 1967 when Zambia got her political independence, for example. At that time the mining sector had three unions, the railways had two and the transport sector also had two. [ Fn 6: See Elena Berger, Labour Race and Colonial Rule ( Oxford: Clrendon Press, 1974) and Cherry Gertzel, Industrial Relation in Zambia on 1975’ in Damachi, U.G. et at (Eds) Industrial Relations in Africa (London: The Macmillan Press Ltd, 1979) pp 324-5]
At that there were twenty four union in Zambia. By 1974 the number had dropped to eighteen because of the reorganisation of the labour movement necessitated by the introduction of the principle of one union in one industry by the 1971 legislation. Thus the three unions in the mining sector amalgamated for form the Mineworkers Union of Zambia (MUZ) while the two unions in the transport industry, namely, the National Union of Transport and General Workers and he Zambia Long Distance and Heavy Haulage Union merged to form those in the railways amalgamated to form the Zambia Railways Amalgamated Workers Union which changed its name to the Railway Workers Union of Zambia.
The law has drastically changed and the whole process has been reversed. These changes have also seriously affected the bargaining power of the trade unions especially in view of the Structural Adjustment Programme which the Movement for Multiparty Democracy (MMD) government is pursuing. With the privatisation programme firmly in place, jobs have been lost thereby reducing union membership and in some cases, seriously undermining trade union unity.
d) The Impact of Political Pluralism on Trade Unionism
The advent of political pluralism in 1990 in Zambia was used as a major thrust to justify the liberalisation of the labour movement by the former government of Kenneth Kaunda. While it was publicly admitted in 1970 by the former head of state that the bargaining strength of trade union is undermined by the proliferation of trade unions, there was a major policy shift in 1990 when it was stated that trade unions had a duty to compete for membership and that therefore, the law should allow the proliferation of trade unions within industries. This, it was argued, was consistent with the spirit of liberalisation.
It is interesting to note that while the MMD was strongly opposed to the 1990 Industrial Relations Act introduced by the former government as it was perceived to be divisive of the labour movement the MMD now in power have done nothing significant to address the divisive character of the law. While the 1990 legislation did not place any restrictions on trade union formation and registration, the 1993 Industrial Relations Act, introduced by the MMD, states that no union could be registered within an industry where another union exists unless it is shown that such a union is intended to represent a specific trade or profession. This has been broadly interpreted and has led to a liberal registration of trade unions on the basis that they are distinctly professional and that the existing trade unions cannot sufficiently represent such members. As pointed out above, the 1993 legislation also makes affiliation to the ZCTU optional. These developments have put the labour movement in Zambia in disarray because of disaffiliation from and non affiliation to the ZCTU. There are also serious cracks in some unions arising from splinter unions.
These are some of the factors that h have compromised the strength of unions such that they have failed to make much impact on government policies, especially in the area of the adjustment programmes and the lack of initiatives towards labour law or policy reforms.
For example over 7000 employees lost their jobs between January and October of 1995 from 310 companies as a result of the structural adjustment programme. According to the Bank of Zambia 1995 Annual Report the highest job losses occurred in the transport, manufacturing, wholesale, retail and financial sectors of the economy. The Report stated that the liquidation of the United Bus Company, a public corporation and three commercial banks contributed significantly to the rate of redundancies and unemployment.
Further, according to the statistics at the Ministry of Labour and Social Security, formal sector employment has been on a declining trend since 1992 and now only represents 10-15% of the entire labour force. On the other hand the informal sector has emerged as the main source of employment in the country. Divisions and internal fighting in the labour movement has made it impossible for the unions to be assertive in the face of such employment related developments.
© Friedrich Ebert Stiftung | technical support | net edition fes-library | März 1999
