UNIVERSITY OF LUSAKA SCHOOL OF LAW UNIT 7:
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slide1. UNIVERSITY OF LUSAKA SCHOOL OF LAW UNIT 7:
COLLECTIVE EMPLOYMENT
AND
INDUSTRIAL RELATIONS<br>
slide2. Definition of Collective Bargaining Collective bargaining is a process of negotiations between employers and the representatives of a unit of employees aimed at reaching agreements which regulate working conditions.
Collective agreements usually set out wage scales, working hours, training, health and safety, overtime, grievance mechanisms and rights to participate in workplace or company affairs.<br>
slide3. Definition of Collective Bargaining The union may negotiate with a single employer (who is typically representing a company's shareholders) or may negotiate with a group of businesses, depending on the country, to reach an industry wide agreement.
A collective agreement functions as a labour contract between an employer and one or more unions.
Collective bargaining consists of the process of negotiation between representatives of a union and employers (generally represented by management, in some countries by an employers' organization) in respect of the terms and conditions of employment of employees, such as wages, hours of work, working conditions and grievance-procedures, and about the rights and responsibilities of trade unions. The parties often refer to the result of the negotiation as a collective bargaining agreement<br>
slide4. Typically, the employees are represented by a trade union.
Collective bargaining actually begins with:
1. joining a union;
2. agreeing to abide by the rules of the union; and
3. electing union representatives.
Thus, in general, experienced people from the union will assist the employees with putting together a draft of a contract, and will help them present their desires to the company. Numerous meetings between representatives of employer and employees will be held until the two can agree on a contract. Commencement of collective bargaining<br>
slide5. Commencement of collective bargaining As the contract is being negotiated, general employees also have input on it, through their union officers. Thus, the agreement reflects the combined desires of all the employees, along with limitations that the employer wishes to see put in place. The result is a powerful document which usually reflects cooperative effort. In some cases, however, the union or the employer may resort to antagonistic tactics such as striking or creating a lockout, in order to push the agreement through.<br>
slide6. Legal support for collective bargaining The right to collectively bargain is recognized through international human rights conventions. Article 23 of the Universal Declaration of Human Rights identifies the ability to organize trade unions as a fundamental human right.
Item 2(a) of the International Employment and Industrial Relations Organization’s Declaration on Fundamental Principles and Rights at Work defines the "freedom of association and the effective recognition of the right to collective bargaining" as an essential right of workers.<br>
slide7. Legal support for collective bargaining In the Canadian case of Facilities Subsector Bargaining Association v British Columbia [2007] 2 S.C.R. 391, the Supreme Court of Canada extensively reviewed the rationale for regarding collective bargaining as a human right and made the following observations:
“The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work...<br>
slide8. Legal support for collective bargaining Collective bargaining is not simply an instrument for pursuing external ends…rather [it] is intrinsically valuable as an experience in self-government... Collective bargaining permits workers to achieve a form of workplace democracy and to ensure the rule of law in the workplace. Workers gain a voice to influence the establishment of rules that control a major aspect of their lives.”<br>
slide9. Collective Bargaining Procedure Section 66 of the ILRA sets out the procedure for reaching a collective agreement, through collective bargaining between trade unions and employers or employer organisations, as the case may be.<br>
slide10. Collective Bargaining Procedure: Achievement of collective bargaining Section 66(2) ILRA:
Collective bargaining may be undertaken-
(a) at the level of an undertaking, through negotiations between the management of the undertaking and the trade union representing the eligible employees; or
(b) at the level of an industry, though negotiations between the employers' organisation and the trade union representing the eligible employees.
(3) Every valid collective agreement in force prior to the
commencement of this Act shall continue in force until its expiry or replacement under this Act.<br>
slide11. Collective Bargaining Procedure: format of collective agreements Section 68 ILRA:
Every collective agreement shall contain clauses, in this part referred to as statutory clauses, stipulating-
(a) the date on which the agreement is to come into effect and the period for which it is to remain in force; and
(b) the methods, procedures and rules for reviewing, amending, replacing or terminating the collective agreement.<br>
slide12. Lodgement / filing of collective agreements Section 70(1) ILRA:
The parties to a collective agreement shall, within fourteen days of signing, lodge five signed copies of the collective agreement with the Commissioner.
(2) The Commissioner shall, within fourteen days of receipt of the copies referred to in subsection (1), submit such copies, together with his comment to the minister.<br>
slide13. Disapproval of collective agreement A collective agreement lodged or file for approval to the Labour Commissioner, may be disapproved, pursuant to section 71(1)(a):
Section 71 (1)(a) ILRA:
The Minister may, after considering a collective agreement
lodged in accordance with section seventy together with the comments of the Commissioner received under subsection (2)-
(a) direct that a copy of the collective agreement be returned to the parties together with his reasons for not directing the
registration and give instructions to re-submit the collective
agreement to the Commissioner; or<br>
slide14. Approval of collective agreement A collective agreement lodged or file for approval to the Labour Commissioner, may be approved, pursuant to section 71(1)(b) and section 71(2):
(b) direct the Commissioner to register the collective agreement.
(2) The Minister shall not direct the registration of a collective agreement unless he is satisfied that-
(a) the agreement contains the statutory clauses referred to in section sixty-eight; and
(b) the clauses in the agreement do not contain anything which is contrary to any written law<br>
slide15. Commencement of collective agreement Once a collective agreement has been approved by the Minister, it commences or comes into effect in accordance with the provisions of section 71(3) ILRA:
(3) Every collective agreement which has been approved by the Minister shall-
(a) come into force on the date on which it is approved or on a later date specified in the collective agreement;
(b) remain in force for such period as shall be specified in the agreement;
(c) be binding on the parties to it<br>
slide16. Incorporation of the terms of a Collective Agreement: There are two theories regarding incorporation of collective terms into individual contracts of employment.<br>
slide17. Incorporation of the terms of a Collective Agreement: Automatic incorporation theory The first one is known as the concept of automatic incorporation. Under this concept, it is assumed that the collective terms are incorporated automatically into individual contracts of employees in the enterprise or industry in which the collective agreement is in effect as soon as the agreement becomes legally binding.<br>
slide18. Incorporation of the terms of a Collective Agreement: Manual incorporation theory The other theory is that there is no automatic incorporation of collective terms but that parties to the contract of employment must consciously incorporate the said terms in their contracts of employment.<br>
slide19. Binding nature of collective agreements In the case of Contract Haulage Limited v Mumbuwa Kamayoyo (1982) Z.R. 13 (S.C.), the Supreme Court held that a collective agreement is a legally binding contract between the parties and that anything done outside these contractual agreements are of no legal effect.<br>
slide20. Industrial action and the right to strike, the right to lock out What is a “strike”?
Section 3 of the ILRA defines “strike” to mean:
"strike" means the cessation of work or withdrawal of labour contrary to the terms and conditions of a contract by a body of persons employed in any undertaking acting in combination; or a concerted refusal or a refusal under a common understanding of any number of persons who are so employed to continue to work or provide their labour<br>
slide21. Industrial action and the right to strike, the right to lock out What is a “lock out”?
Section 3 of the ILRA defines “lock out” to mean:
The closing down of a place of employment or the suspension of work by the employer, or the refusal by an employer to continue to employ any number of persons employed by him, as a result of a dispute, and done with a view of compelling those persons, or to aid another employer in compelling those persons, or to aid him, to accept terms or conditions affecting employment.<br>
slide22. Industrial action and the right to strike, the right to lock out Strikes and indeed lockouts are both recognized as legitimate actions that may be undertaken by workers or employers in furtherance of their dispute.
However, such actions become lawful only if they are resorted to after due process and only if they do not involve “essential services”.<br>
slide23. Industrial action and the right to strike: Procedure before resorting to strike or lock out The Act sets out detailed procedures to be followed in resolving disputes before a strike or lockout can be declared.
Firstly, section 6 of the Industrial and Labour Relations Act provides that:
Every employee shall promote, maintain and co-operate with the management of the undertaking in which the employee is employed in the interest of industrial peace, greater efficiency and productivity.
Therefore, before reaching any decision to go on strike, employees have a duty to co-operate with management to resolve any dispute.<br>
slide24. Collective disputes What is a “collective dispute”?
Section 3 ILRA provides:
"collective dispute" shall be construed (interpreted) in accordance with section
seventy-five.<br>
slide25. Collective disputes-S75 ILRA 75. A collective dispute shall exist when there is a dispute between an employer or an organisation representing employers on the one hand
and the employees or an organisation representing the employees on the other hand, relating to terms and conditions of, or affecting the employment of, the employees and one party to the dispute has
presented in writing to the other party all its claims and demands and-
(a) the other party has, within fourteen days from the date of receipt
of the claims or demands, failed to answer the claims or
demands; or
(b) the other party has formally rejected the claims or demands and has made no counter offer; or
(c) both the parties to the dispute have held at least one meeting
with a view to negotiating a settlement of the dispute, but have
failed to reach settlement on all or some of the matters in issue between them<br>
slide26. Failure to settle a collective dispute-S78 ILRA Section 78 ILRA sets out the next course of action where parties fail to settle a collective dispute.<br>
slide27. Failure to settle a collective dispute-S78 ILRA 78. (1) Where a conciliator or board of conciliation fails to settle a collective dispute the parties to the collective dispute may-
(a) refer it to the Court; or
b) conduct a ballot to settle the dispute by a strike or lockout.<br>
slide28. Failure to settle a collective dispute-S78 ILRA Referal of the dispute to court-S78(2):
(2) Where a collective dispute is referred to the Court under subsection (1) or under subsection (6) of section seventy-six the decision of the Court shall, subject to section ninety-seven be binding upon the parties to the dispute for such period as the Court may specify in the Order.<br>
slide29. Failure to settle a collective dispute-S78 ILRA Conduct of a ballot to strike or lock out-S78(3) ILRA
(3) Where the parties, decide to proceed on strike or lockout, the parties shall not proceed on strike or lockout unless a simple majority decision of the employees present and voting is made by employees in favour of the strike or lockout.
Note that, the voting weight for simple majority is 50% + 1<br>
slide30. Commencement of strike or lock out-S75(4) (4) The strike or lockout may, subject to section seventy-five, commence ten days following the decision to do so and may continue for an indefinite period during which the dispute remains unresolved.<br>
slide31. Effects of the commencement of a strike: Kitwe City Council v. William Ng’uni The rule in Kitwe City Council v. William Ng’uni, was to the effect that an employee cannot get paid for a period that he has not worked. Thus, by extension, when employees embark on a strike, because they are not working, the employer is entitled not to remunerate them for the period they do not report to work.<br>
slide32. Industrial action and the right to strike or lock out Who is entitled to the right to strike?
It is important to note that the right to strike is strictly limited to parties to the dispute. This therefore means that sympathy strikes over political matters are not legitimate under the law.
It is also important to note that no strike may take place after the Industrial Relations Court has given a decision.
Certain protective provisions have been incorporated in the Industrial Relations Act.<br>
slide33. Industrial action and the right to strike: protective provisions under the ILRA A strike cannot commence before the collective dispute is referred to conciliation pursuant to section 78 ILRA.
If the parties fail to reach a settlement agreement within the stipulated time frames, either party may refer the dispute to the court, conduct a ballot to settle the dispute by strike or lockout, or refer the matter for arbitration.<br>
slide34. Restrictions or Limitations on the right to strike Article 3(1) and (2) of the ILO Convention No. 87 provides that:
Workers’ organisations shall have the right to ... organize their ... activities and to formulate their programmes. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.<br>
slide35. Restrictions or Limitations on the right to strike Notwithstanding the enshrinement of the right to strike and wide ambit given to freedom of association, the ILO, through these supervisory bodies, has affirmed the principle of the right to strike subject to restrictions that are deemed reasonable in a free and democratic society.
These restrictions, the ILO notes, should be contained in a Statutory Instrument or an Act of Parliament, depending on the laws of the Member State.<br>
slide36. Restrictions or Limitations on the right to strike As can be seen from the above, the ILO has made it clear that a prohibition on the right to strike may generally be justifiable in exceptional circumstances such as in the event of "an acute national emergency".
What this means is that a general prohibition of strikes and the freedom of association can be made if it is justified by a situation of acute national crisis. An acute national crisis means:
“A genuine crisis situation, such as those arising as a result of a serious conflict, insurrection or national disaster in which the normal conditions for the functioning of society are absent.”<br>
slide37. Restrictions or Limitations on the right to strike This recognises, further, that the right to strike may legitimately be restricted or prohibited in the case of members of the police and armed forces, certain public officers "exercising authority" in the name of the State and workers in essential services, properly so called.
In determining the ambit of the limitation on public officers exercising authority in the name of the State, much depends upon the nature of the public servant’s functions, the impact of such services on the public and the specific legal system involved.<br>
slide38. Limitations on the right to strike: employees listed under S2(1) ILRA: Section 2 (1) of the Industrial and Labour Relations Act, which excludes the following:
Police and prison officers, judges, registrars and magistrates and other security services, namely, Zambia Security Intelligence Service and the Defence Force, from joining a trade union.
The exclusion of the police is warranted as members of the police and armed forces are expressly excluded from the operation of Convention No 87.
This means that these groups of persons have a limitation on the right to strike as the Industrial and Labour Relations Act does not apply to them.<br>
slide39. Limitations on the right to strike: Essential Services “Essential services” are defined by the ILO as those services "whose interruption would endanger the life, personal safety or health of the whole or part of the population".
Section 3 ILRA defines essential service to mean:
"essential service" shall be construed (interpreted) in accordance with section one hundred and seven;<br>
slide40. Limitations on the right to strike: Essential Services There is a limitation on the right to strike for those engaged in essential services, as defined as above. Those engaged in essential services have a limited right to strike due to the importance and vital nature of their employment to society.
Section 107(10) ILRA provides for a list of what amounts to essential service as follows:<br>
slide41. What amounts to “essential service”? S.107(10) ILRA S.107(10) For the purpose of this section, "essential service" means-
(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-
(i) underground working and drainage;
(ii) shafts and shaft installations; or
(iii) machinery and plant<br>
slide42. What does not amount to “essential services”? In Tropical Diseases Research Centre v University of Zambia and Allied Workers Union, employees wanted to go on strike after negotiations on a new collective agreement reached a stalemate.
The Supreme Court held that the service provided by the employer did not amount to an essential service as the employer provides facilities for research and training and hence did not qualify as a hospital or medical service. Therefore, the employees could strike if they so wished.<br>
slide43. Limitation on the right to strike: The principle in the Vincent Makando case Another limitation on the right to strike was emphasised in the case of Attorney General v. Vincent Makando.
The High Court emphasised that where one of the parties chooses to go to court or arbitration to resolve a collective dispute after conciliation fails, a strike cannot be initiated.<br>
slide44. END OF LECTURE
THANK
YOU!<br>
COLLECTIVE EMPLOYMENT
AND
INDUSTRIAL RELATIONS<br>
slide2. Definition of Collective Bargaining Collective bargaining is a process of negotiations between employers and the representatives of a unit of employees aimed at reaching agreements which regulate working conditions.
Collective agreements usually set out wage scales, working hours, training, health and safety, overtime, grievance mechanisms and rights to participate in workplace or company affairs.<br>
slide3. Definition of Collective Bargaining The union may negotiate with a single employer (who is typically representing a company's shareholders) or may negotiate with a group of businesses, depending on the country, to reach an industry wide agreement.
A collective agreement functions as a labour contract between an employer and one or more unions.
Collective bargaining consists of the process of negotiation between representatives of a union and employers (generally represented by management, in some countries by an employers' organization) in respect of the terms and conditions of employment of employees, such as wages, hours of work, working conditions and grievance-procedures, and about the rights and responsibilities of trade unions. The parties often refer to the result of the negotiation as a collective bargaining agreement<br>
slide4. Typically, the employees are represented by a trade union.
Collective bargaining actually begins with:
1. joining a union;
2. agreeing to abide by the rules of the union; and
3. electing union representatives.
Thus, in general, experienced people from the union will assist the employees with putting together a draft of a contract, and will help them present their desires to the company. Numerous meetings between representatives of employer and employees will be held until the two can agree on a contract. Commencement of collective bargaining<br>
slide5. Commencement of collective bargaining As the contract is being negotiated, general employees also have input on it, through their union officers. Thus, the agreement reflects the combined desires of all the employees, along with limitations that the employer wishes to see put in place. The result is a powerful document which usually reflects cooperative effort. In some cases, however, the union or the employer may resort to antagonistic tactics such as striking or creating a lockout, in order to push the agreement through.<br>
slide6. Legal support for collective bargaining The right to collectively bargain is recognized through international human rights conventions. Article 23 of the Universal Declaration of Human Rights identifies the ability to organize trade unions as a fundamental human right.
Item 2(a) of the International Employment and Industrial Relations Organization’s Declaration on Fundamental Principles and Rights at Work defines the "freedom of association and the effective recognition of the right to collective bargaining" as an essential right of workers.<br>
slide7. Legal support for collective bargaining In the Canadian case of Facilities Subsector Bargaining Association v British Columbia [2007] 2 S.C.R. 391, the Supreme Court of Canada extensively reviewed the rationale for regarding collective bargaining as a human right and made the following observations:
“The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work...<br>
slide8. Legal support for collective bargaining Collective bargaining is not simply an instrument for pursuing external ends…rather [it] is intrinsically valuable as an experience in self-government... Collective bargaining permits workers to achieve a form of workplace democracy and to ensure the rule of law in the workplace. Workers gain a voice to influence the establishment of rules that control a major aspect of their lives.”<br>
slide9. Collective Bargaining Procedure Section 66 of the ILRA sets out the procedure for reaching a collective agreement, through collective bargaining between trade unions and employers or employer organisations, as the case may be.<br>
slide10. Collective Bargaining Procedure: Achievement of collective bargaining Section 66(2) ILRA:
Collective bargaining may be undertaken-
(a) at the level of an undertaking, through negotiations between the management of the undertaking and the trade union representing the eligible employees; or
(b) at the level of an industry, though negotiations between the employers' organisation and the trade union representing the eligible employees.
(3) Every valid collective agreement in force prior to the
commencement of this Act shall continue in force until its expiry or replacement under this Act.<br>
slide11. Collective Bargaining Procedure: format of collective agreements Section 68 ILRA:
Every collective agreement shall contain clauses, in this part referred to as statutory clauses, stipulating-
(a) the date on which the agreement is to come into effect and the period for which it is to remain in force; and
(b) the methods, procedures and rules for reviewing, amending, replacing or terminating the collective agreement.<br>
slide12. Lodgement / filing of collective agreements Section 70(1) ILRA:
The parties to a collective agreement shall, within fourteen days of signing, lodge five signed copies of the collective agreement with the Commissioner.
(2) The Commissioner shall, within fourteen days of receipt of the copies referred to in subsection (1), submit such copies, together with his comment to the minister.<br>
slide13. Disapproval of collective agreement A collective agreement lodged or file for approval to the Labour Commissioner, may be disapproved, pursuant to section 71(1)(a):
Section 71 (1)(a) ILRA:
The Minister may, after considering a collective agreement
lodged in accordance with section seventy together with the comments of the Commissioner received under subsection (2)-
(a) direct that a copy of the collective agreement be returned to the parties together with his reasons for not directing the
registration and give instructions to re-submit the collective
agreement to the Commissioner; or<br>
slide14. Approval of collective agreement A collective agreement lodged or file for approval to the Labour Commissioner, may be approved, pursuant to section 71(1)(b) and section 71(2):
(b) direct the Commissioner to register the collective agreement.
(2) The Minister shall not direct the registration of a collective agreement unless he is satisfied that-
(a) the agreement contains the statutory clauses referred to in section sixty-eight; and
(b) the clauses in the agreement do not contain anything which is contrary to any written law<br>
slide15. Commencement of collective agreement Once a collective agreement has been approved by the Minister, it commences or comes into effect in accordance with the provisions of section 71(3) ILRA:
(3) Every collective agreement which has been approved by the Minister shall-
(a) come into force on the date on which it is approved or on a later date specified in the collective agreement;
(b) remain in force for such period as shall be specified in the agreement;
(c) be binding on the parties to it<br>
slide16. Incorporation of the terms of a Collective Agreement: There are two theories regarding incorporation of collective terms into individual contracts of employment.<br>
slide17. Incorporation of the terms of a Collective Agreement: Automatic incorporation theory The first one is known as the concept of automatic incorporation. Under this concept, it is assumed that the collective terms are incorporated automatically into individual contracts of employees in the enterprise or industry in which the collective agreement is in effect as soon as the agreement becomes legally binding.<br>
slide18. Incorporation of the terms of a Collective Agreement: Manual incorporation theory The other theory is that there is no automatic incorporation of collective terms but that parties to the contract of employment must consciously incorporate the said terms in their contracts of employment.<br>
slide19. Binding nature of collective agreements In the case of Contract Haulage Limited v Mumbuwa Kamayoyo (1982) Z.R. 13 (S.C.), the Supreme Court held that a collective agreement is a legally binding contract between the parties and that anything done outside these contractual agreements are of no legal effect.<br>
slide20. Industrial action and the right to strike, the right to lock out What is a “strike”?
Section 3 of the ILRA defines “strike” to mean:
"strike" means the cessation of work or withdrawal of labour contrary to the terms and conditions of a contract by a body of persons employed in any undertaking acting in combination; or a concerted refusal or a refusal under a common understanding of any number of persons who are so employed to continue to work or provide their labour<br>
slide21. Industrial action and the right to strike, the right to lock out What is a “lock out”?
Section 3 of the ILRA defines “lock out” to mean:
The closing down of a place of employment or the suspension of work by the employer, or the refusal by an employer to continue to employ any number of persons employed by him, as a result of a dispute, and done with a view of compelling those persons, or to aid another employer in compelling those persons, or to aid him, to accept terms or conditions affecting employment.<br>
slide22. Industrial action and the right to strike, the right to lock out Strikes and indeed lockouts are both recognized as legitimate actions that may be undertaken by workers or employers in furtherance of their dispute.
However, such actions become lawful only if they are resorted to after due process and only if they do not involve “essential services”.<br>
slide23. Industrial action and the right to strike: Procedure before resorting to strike or lock out The Act sets out detailed procedures to be followed in resolving disputes before a strike or lockout can be declared.
Firstly, section 6 of the Industrial and Labour Relations Act provides that:
Every employee shall promote, maintain and co-operate with the management of the undertaking in which the employee is employed in the interest of industrial peace, greater efficiency and productivity.
Therefore, before reaching any decision to go on strike, employees have a duty to co-operate with management to resolve any dispute.<br>
slide24. Collective disputes What is a “collective dispute”?
Section 3 ILRA provides:
"collective dispute" shall be construed (interpreted) in accordance with section
seventy-five.<br>
slide25. Collective disputes-S75 ILRA 75. A collective dispute shall exist when there is a dispute between an employer or an organisation representing employers on the one hand
and the employees or an organisation representing the employees on the other hand, relating to terms and conditions of, or affecting the employment of, the employees and one party to the dispute has
presented in writing to the other party all its claims and demands and-
(a) the other party has, within fourteen days from the date of receipt
of the claims or demands, failed to answer the claims or
demands; or
(b) the other party has formally rejected the claims or demands and has made no counter offer; or
(c) both the parties to the dispute have held at least one meeting
with a view to negotiating a settlement of the dispute, but have
failed to reach settlement on all or some of the matters in issue between them<br>
slide26. Failure to settle a collective dispute-S78 ILRA Section 78 ILRA sets out the next course of action where parties fail to settle a collective dispute.<br>
slide27. Failure to settle a collective dispute-S78 ILRA 78. (1) Where a conciliator or board of conciliation fails to settle a collective dispute the parties to the collective dispute may-
(a) refer it to the Court; or
b) conduct a ballot to settle the dispute by a strike or lockout.<br>
slide28. Failure to settle a collective dispute-S78 ILRA Referal of the dispute to court-S78(2):
(2) Where a collective dispute is referred to the Court under subsection (1) or under subsection (6) of section seventy-six the decision of the Court shall, subject to section ninety-seven be binding upon the parties to the dispute for such period as the Court may specify in the Order.<br>
slide29. Failure to settle a collective dispute-S78 ILRA Conduct of a ballot to strike or lock out-S78(3) ILRA
(3) Where the parties, decide to proceed on strike or lockout, the parties shall not proceed on strike or lockout unless a simple majority decision of the employees present and voting is made by employees in favour of the strike or lockout.
Note that, the voting weight for simple majority is 50% + 1<br>
slide30. Commencement of strike or lock out-S75(4) (4) The strike or lockout may, subject to section seventy-five, commence ten days following the decision to do so and may continue for an indefinite period during which the dispute remains unresolved.<br>
slide31. Effects of the commencement of a strike: Kitwe City Council v. William Ng’uni The rule in Kitwe City Council v. William Ng’uni, was to the effect that an employee cannot get paid for a period that he has not worked. Thus, by extension, when employees embark on a strike, because they are not working, the employer is entitled not to remunerate them for the period they do not report to work.<br>
slide32. Industrial action and the right to strike or lock out Who is entitled to the right to strike?
It is important to note that the right to strike is strictly limited to parties to the dispute. This therefore means that sympathy strikes over political matters are not legitimate under the law.
It is also important to note that no strike may take place after the Industrial Relations Court has given a decision.
Certain protective provisions have been incorporated in the Industrial Relations Act.<br>
slide33. Industrial action and the right to strike: protective provisions under the ILRA A strike cannot commence before the collective dispute is referred to conciliation pursuant to section 78 ILRA.
If the parties fail to reach a settlement agreement within the stipulated time frames, either party may refer the dispute to the court, conduct a ballot to settle the dispute by strike or lockout, or refer the matter for arbitration.<br>
slide34. Restrictions or Limitations on the right to strike Article 3(1) and (2) of the ILO Convention No. 87 provides that:
Workers’ organisations shall have the right to ... organize their ... activities and to formulate their programmes. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.<br>
slide35. Restrictions or Limitations on the right to strike Notwithstanding the enshrinement of the right to strike and wide ambit given to freedom of association, the ILO, through these supervisory bodies, has affirmed the principle of the right to strike subject to restrictions that are deemed reasonable in a free and democratic society.
These restrictions, the ILO notes, should be contained in a Statutory Instrument or an Act of Parliament, depending on the laws of the Member State.<br>
slide36. Restrictions or Limitations on the right to strike As can be seen from the above, the ILO has made it clear that a prohibition on the right to strike may generally be justifiable in exceptional circumstances such as in the event of "an acute national emergency".
What this means is that a general prohibition of strikes and the freedom of association can be made if it is justified by a situation of acute national crisis. An acute national crisis means:
“A genuine crisis situation, such as those arising as a result of a serious conflict, insurrection or national disaster in which the normal conditions for the functioning of society are absent.”<br>
slide37. Restrictions or Limitations on the right to strike This recognises, further, that the right to strike may legitimately be restricted or prohibited in the case of members of the police and armed forces, certain public officers "exercising authority" in the name of the State and workers in essential services, properly so called.
In determining the ambit of the limitation on public officers exercising authority in the name of the State, much depends upon the nature of the public servant’s functions, the impact of such services on the public and the specific legal system involved.<br>
slide38. Limitations on the right to strike: employees listed under S2(1) ILRA: Section 2 (1) of the Industrial and Labour Relations Act, which excludes the following:
Police and prison officers, judges, registrars and magistrates and other security services, namely, Zambia Security Intelligence Service and the Defence Force, from joining a trade union.
The exclusion of the police is warranted as members of the police and armed forces are expressly excluded from the operation of Convention No 87.
This means that these groups of persons have a limitation on the right to strike as the Industrial and Labour Relations Act does not apply to them.<br>
slide39. Limitations on the right to strike: Essential Services “Essential services” are defined by the ILO as those services "whose interruption would endanger the life, personal safety or health of the whole or part of the population".
Section 3 ILRA defines essential service to mean:
"essential service" shall be construed (interpreted) in accordance with section one hundred and seven;<br>
slide40. Limitations on the right to strike: Essential Services There is a limitation on the right to strike for those engaged in essential services, as defined as above. Those engaged in essential services have a limited right to strike due to the importance and vital nature of their employment to society.
Section 107(10) ILRA provides for a list of what amounts to essential service as follows:<br>
slide41. What amounts to “essential service”? S.107(10) ILRA S.107(10) For the purpose of this section, "essential service" means-
(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-
(i) underground working and drainage;
(ii) shafts and shaft installations; or
(iii) machinery and plant<br>
slide42. What does not amount to “essential services”? In Tropical Diseases Research Centre v University of Zambia and Allied Workers Union, employees wanted to go on strike after negotiations on a new collective agreement reached a stalemate.
The Supreme Court held that the service provided by the employer did not amount to an essential service as the employer provides facilities for research and training and hence did not qualify as a hospital or medical service. Therefore, the employees could strike if they so wished.<br>
slide43. Limitation on the right to strike: The principle in the Vincent Makando case Another limitation on the right to strike was emphasised in the case of Attorney General v. Vincent Makando.
The High Court emphasised that where one of the parties chooses to go to court or arbitration to resolve a collective dispute after conciliation fails, a strike cannot be initiated.<br>
slide44. END OF LECTURE
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