GROUP PRESENTATION

Qtn: There is no right to strike in Zimbabwe. Discuss the legal position with regard to strikes in Zimbabwe

PRESENTATION OUTLAY introduction Right to strike International instruments Strike law in Zimbabwe Process for striking

No right to strike International instruments Strike law in Zimbabwe

STRIKE Definition of strike Strike is the refusal of union members to work and is recognized as a basic union right .

Types of strikes Economic strike This is a strike over an economic issue such as wages, benefits and working conditions Grievance strike Occurs when the union does not agree with the way management handles problem e.g the disciplining of an employee

Secondary A strike in which other unions agree to work stoppage not because of action by their own employer but to support other union members striking at other firms. Wildcat strikeIt takes place suddenly and without warning. This strike is forbidden in most countries.

RIGHT TO STRIKE The right of workers to strike is probably the most controversial component of the labour law. It raises complex questions. For instance:

Should the law create and protect a right to strike. The issue of a right to strike attracts very strong and sometimes deeply emotive and ideological views.

JUSTIFICATION Human right According to Lovemore Madhuku striking is defended as a fundamental human right for employees just like other human rights in general self evidence right.In such a case the right to strike ought to be part of any civilised community in the same way as the right to life, liberty and other common human rights.

DEMOCRACY According to Davies and Freedland 1983, “there can be no equilibrium in industrial relations without a freedom to strike. In protecting the freedom, the law protects the legitimate expectations of workers that they can make use of their collective power: it corresponds to the protection of the legitimate expectation of management that it can use the right of property for the same purpose on its side”.

THE “EQUILIBRIUM” ARGUMENT This is heavily rooted in the concepts that under lie labour law. The right to strike is seen as creating an equilibrium in labour relations. This equilibrium is seen as essential for the establishment of a properly functioning industrial relations system.

The equilibrium facilitates collective bargaining , the latter being seen as the corner stone of the modern labour law

According to this justification, the basic principle of modern law should be to promote collective bargaining as a strong means to resolving the inherent conflict between labour and capital while at the same time preserving an efficient capitalist system.

CONT……… The justification for the right to strike largely shapes the nature and extent of protection given by the law.

For example the equilibrium argument as the basis of law of strikes, makes purely political strikes illegal in the UK and the US, as these are not functional to collective bargaining.( Brassey et al 1987)

The South African constitution does not protect political strikes as it only grants the right to strike for the purpose of collective bargaining.

According to Halbach et al 1992, in Germany, “the aim of strikes must be the conclusion of a collective agreement. If they are called to achieve goals that cannot be covered in a collective agreement , they are illegal. This applies to political strikes..”

CONT……….. In Italy the constitution grants a right to strike on the justification of fundamental human rights, some political strikes are lawful.

INTERNATIONAL JUSTIFICATIONS- INTERNATIONAL LABOUR LAW International labour law refers to the rules of labour law which have been established by main sources and are the legal instruments of the International Labour Organization (ILO) and other international and regional human rights instruments.

The ILO case law, developed by the committee of Experts and the Committee on freedom of association, have derived the right to strike from the concept of freedom of Association as enshrined In Conventions 87 and 88 holding that the right to strike is ‘ an intrinsic corollary to the right to organize protected by Convention 87 and the right to strike is ‘ a legitimate means… through which workers …may promote and defend their economic and social interest.

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (1966) It justifies strike provided it is exercised in conformity with the laws of the particular country.

The European Social Charter of 1961, recognises the right of workers and employers to collective action in the case of conflict of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.

THE ZIMBABWEAN CONSTITUTION The constitution of the Zimbabwe is the supreme law of the country and any law which is inconsistent with it, is void.

If the constitution grants the right to strike, any purported prohibition or restriction of it in the labour legislation would be void.

The constitution according to section 65 (1) states that “ except the member of the security every employee has the right to participate in collective job action, including the right to strike, sit in withdraw their labour and to take other similar concerted action, but a law may restrict the exercise of this right in order to maintain essential services.”

CONT.. This however does not fairly and truly support the right to strike but somewhere somehow protects the right to strike.

More so, It is then argued that the constitutional protection of the freedom of association and assembly enshrined in section 58 could cover a right to strike.

The constitution also protects the freedom to demonstrate and petition (section 59) states that “ every person has the right to demonstrate and to present petition, but these rights must be exercised peacefully. This could also cover the right to strike.

On the other hand the freedom to join and participate in trade unions activities necessarily includes the right to strike. In support to that, the ILO derived a right to strike from freedom of Association.

CONT……. In countries like South Africa and Malawi, the constitutions specifically enshrine some right to strike.

In Zimbabwe it is clear that workers on strike or participating in a demonstration have a constitutional right to peaceful assembly and movement without interference from state is necessary for workers to demonstrate or assemble in the constitution.

RIGHT TO STRIKE IN THE PUBLIC SERVICE IN ZIMBABWE The constitution creates 2 main groups of government workers.The public serviceIt is administered by a constitutionally entrenched public service commission operating in terms of the public service act.Other special groups outside the public service commission For example the police, army, prison services and the judiciary and these are governed by specific acts of parliament enjoined by the constitution.There is no right what so ever to strike for this group.

RIGHT TO STRIKE OUTSIDE THE PUBLIC SERVICE The legislation governing labour law outside the government employment is the Labour Relations Act.(chapter 28:01)

According to Section 104 (1), ‘subject to this act all employees, workers committees and trade unions shall have the right to resort to collective job action for the redress of lawful grievances.

LABOUR RELATIONS ACT Section 104(1) states that striking is justified when it is a collective action and not an employee action

The Act recognizes the right to strike even by unorganized workers as long as they are employed unlike in other countries like Germany and Sweden where a lawful strike can only be organised by a Trade Union.

Section 108 of the Act protect lawful strikes

THE PROCESS FOR STRIKING.

(a) fourteen days’ written notice of intent to resort to such action,specifying the grounds for the intended action, given—(i) to the party against whom the action is to be taken; and(ii) to the appropriate employment council; and(iii) to the appropriate trade union or employers organisation or federationin the case of members of a trade union or employers organisation or federationpartaking in a collective job action where the trade union or employers organisation or federation is not itself resorting to such action;

CONT……(b) an attempt has been made to conciliate the dispute and a certificate ofno settlement has been issued in terms of section ninety-three.1) A labour officer to whom a dispute has been referred, or to whose attention it hascome, shall attempt to settle it through conciliation or, if agreed by the parties, byreference to arbitration. (2) If the dispute is settled by conciliation, the labour officer shall record thesettlement in writing. (3) If the dispute is not settled within thirty days after the labour officer began toattempt to settle it under subsection (1), the labour officer shall issue a certificate ofno settlement to the parties to the dispute.

CONSULTATION TO SENIOR OFFICERSAfter a labour officer has issued a certificate of no settlement, the labour officer,

upon consulting any labour officer who is senior to him and to whom he isresponsible in the area in which he attempted to settle the dispute— (a) shall refer the dispute to compulsory arbitration if the dispute is adispute of interest and the parties are engaged in an essential service; or (b) may, with the agreement of the parties, refer the dispute tocompulsory arbitration; or (c) may refer the dispute to compulsory arbitration if the dispute is adispute of right; and the provisions of section ninety-eight shall apply to such reference to compulsory arbitration.

CONT…… The labour court or labour officer is the one who chooses the Arbitrator, a person whose name appears on a list referred to by the Minister, in consultation with the Senior President of the Labour Court and the appropriate advisory council.

The Arbitration Act [Chapter 7:15] shall apply to a dispute referred to compulsory arbitration.

Where the Labour Court or a labour officer has referred a dispute to compulsoryarbitration, no employee, workers committee, trade union, employer or employersorganisation shall engage in collective job action in respect of the dispute.

PURPOSE OF ENFORCEMENT

Where arbitral award has been registered, it shall have the effect, for purposes of enforcement, of a civil judgment of the appropriate court.

THERE IS NO RIGHT TO STRIKE When the strike does not achieve goalsThe aim of the strike must be the conclusion of a collective agreement or achieve goals, this applies particularly to political or demonstration strikes ( Halbach et al , 1992)

ZIMBABWEAN STRIKE LAWS ARE UNCLEAR

If there is clear justification on the right to strike , then there is a right to strike but if there is no clear justification , then there is no right to strike. Hence the nature of the current Zimbabwean law is not clear.

It is important to provide a clear justification for the right to strike, which constitute the basis of the law.

INTERNATIONAL LABOUR ORGANIZATION CONVENTION DOES NOT SPECIFY ON THE RIGHT TO STRIKE

For example the ILO Conventions No 87 On Freedom of Association and Protection of the right to organize and 98 on the right to Organise and collective Bargaining do not make any specific reference to the right to strike.

NO RIGHT TO STRIKE FOR THE PUBLIC SERVICEThe Zimbabwean Labour Act is silent and does not govern public service, therefore public services are governed by the Public service commission and Specific Act of Parliament (section 104,)

LABOUR ACTThe Labour Act (section 93) states that, Collective job action is not allowed if the parties to the dispute have agreed to refer the dispute to arbitration; or if the issue in dispute is a dispute of right; or if a secret ballot in support of the strike has not been conducted, or if the CBA procedures have not been complied with.More so, Subject to subsection (4), no collective job action may be recommended orengaged in by—(a) any employees, workers committee, trade union, employer, employersorganisation or federation—(i) if the persons concerned are engaged in an essential service; or(ii) if the issue in dispute is a dispute of right; or(iii) if the parties to the dispute have agreed to refer the dispute toarbitration;

CONT…(b) any employees, workers committee or employer, if there is inexistence a registered trade union or employers organisation which represents theinterests of the employees or employers concerned and that trade union or employersorganisation has not approved or authorised the collective job action; or(c) any trade union, employers organisation or federation unless the tradeunion, employers organisation or federation is registered; or(d) any workers committee, if there is in existence a union agreementwhich provides for or governs the matter in dispute, and such agreement has not beencomplied with or remedies specified therein have not been exhausted as to the issue in dispute

THE ZIMBABWEAN CONSTITUTION IS NOT CLEAR The constitution of Zimbabwe is the supreme law of the country and any law inconsistent with it is void unless if the right to strike was derived from the constitution. The problem, however , is that the constitution does not specifically incorporate the right to strike.

FREEDOM OF ASSOCIATION The Canadian Supreme Court ruled that the right to strike cannot be derived from a mere right to associate as the latter does not only exist for trade unions.

UNIFORMED FORCES HAVE NO RIGHT TO STRIKE For example the police force resorting to strike may constitute several offences such as desertion , these offences might lead to imprisonment of up to 5years, worse more for the army. Thus outside public service

NO RIGHT TO STRIKE BEFORE REFERRING THE DISPUTE TO LABOR RELATIONS OFFICER This dispute should be discussed together with the third part, which says that there is no right to strike if a labour relations officer or other institutions in terms of party XII of the Act has dealt with the dispute.

NO RIGHT TO STRIKE WHERE THE MATTER IS GOVERNED BY AN ACT THAT HAS EXPIRED Expired Act is deemed void.

NO RIGHT TO STRIKE WHERE A SHOW CAUSE ORDER IS ISSUED OUT The Act gives the minister the power to stop the strike by issuing a show cause order . Pending this defense , the strike is illegal.

CONCLUSION The Zimbabwe’ view of strike is precisely a fact of giving a right to strike by a right hand and almost completely taking it away by the left hand, which makes strikes in Zimbabwe misconceived. The right to strike should be granted on some justification, so that the law can make every effort realistic.

THANK YOU!!!