In terms of Section 2 of the Labour Act Chapter 28.01 ,Collective Job Action, means an industrial action calculated to persuade or cause a part to an employment relationship to accede to a demand related to employment and includes a strike, boycott, lockout, sit in or sit out or other such concerted action.
CJA is an employee right which is provided for on Section 65 (3) of the Constitution of Zimbabwe which reads, ‘except for members of the security services, 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. CJA is also provided for by the International Labour Organization Convention Number 87 which reads,” Freedom of association and protection of the right to organize.” It is also important to note that Zimbabwe ratified convention number 87 in 20003.
Article 8 of ILO convention No 87 provides that in exercising the rights provided for in this convention workers and employers and their respective organizations like other persons or organized collectivities, shall respect the law of the land. The rights to resort to CJA has got the prerequisites as enshrined in the constitution on Section 65 (3) mentioned supra. The prerequisites for a lawful CJA are clearly stated on Section 104 of the Labour Act. Before embarking on collective job action the following requirements must be met.
(a) The dispute must be a dispute of interest not a dispute of right.
In terms of Section 2 of the Labour Act Chapter 28.01, dispute of right means any dispute involving legal rights and obligations, including any dispute occasioned by an actual or alleged unfair labour practice, a breach or alleged breach of this Act or any regulations made under this Act or a breach or alleged breach of any of the terms of a collective bargaining agreement or contract of employment.
Dispute of interest is also defined by the Labour Act on Section 2 as any dispute other than a dispute of right. Most labour disputes in Zimbabwe are disputes of right and they mainly include nonpayment and under payment of salaries. It is unfortunate that employees can not embark on CJA for such disputes.
(b) Persons engaging in CJA must not be from essential service
No CJA should be recommended if persons concerned are engaged in an essential services and if the parties have agreed to refer the matter to arbitration. Essential service is described on Section 102 of the Labour Act as the interruption of which endangers immediately the life, personal safety or health of neither the whole nor any part of the public and that is declared by notice in a gazette made by the Minister. The sectors prescribed as essential services by SI 137 of 2003 include transport and communication, health service, revenue specialists, fire brigade, veterinary services, supply of water, electrical services and broadcasting services.
Section 3 of SI 137 of 2003 Labour (Declaration of Essential Services) Notice 2003 provides that any non-essential service may be declared an essential service by the Minister if a strike in a sector, service industry or enterprise persist to the point that the lives ,personal safety or health of the whole or part of the population is endangered.
(c) Fourteen days’ notice.
Section 104 subsection 2 provides that fourteen days’ notice specifying grounds for the intended strike must be handed to:
• a part against whom the action is to be taken,
• the appropriate National Employment Council for the undertaking,
• the Trade Unions and Employer Organizations were applicable
(d) Conciliation should have been attempted and a certificate of no settlement is issued.
This suggests that the dispute leading to the CJA must be brought to the attention of a Labour Officer who shall attempt to resolve the dispute through conciliation. CJA can only be recommended after a dead lock leading to issuance of a certificate of no settlement by the Labour Officer.
(e) A registered trade union must approve the CJA
If there is a registered trade union or employer organization concerned, the trade union or employer organization must approve or authorize the CJA. It is important to note that the trade union must be registered for it to approve a collective job action.
(f) CJA can not be sanctioned where there is a pending agreement on the dispute between the parties.
A workers committee can not sanction a CJA if there is an agreement by a union which is in existence and the agreement has not been complied with and all other remedies have not been exhausted.
(g) There must be an agreement of the majority employees or employers as the case may be by secret ballot voting.
In terms of Section 4 of Statutory Instrument 217 of 2003 Labour (Settlement of Disputes) Regulations, 2003 the voting shall proceed in the presence of a Labour Officer or Designation Agent and each person shall be entitled to one vote only. Subsection of the aforementioned regulations also provides that the simple majority outcome shall prevail and in the case of a deadlock there shall not be a CJA.
Nothing mentioned above shall prevent CJA in order to avoid any occupational hazard which is reasonably feared to pose an immediate threat to the health or safety of their persons concerned provided that the occupational hazard has not been deliberately caused by persons resorting to CJA. The CJA resorted to shall remain proportional in scope and locality to the occupational hazard in question and shall diminish in proportion to the occupational hazard as it diminishes.
The other exception is in defense of an immediate threat to the existence of workers committee or a registered trade union. Section 3(2) of Statutory Instrument 131 of 2003 Labour regulations protection against any acts of interference between worker organization and employer’s organization) Regulations 2003 provides that no employer or employer organization shall interfere with workers organization or employer organization agents or members with respect to the establishment, function or administration of the workers organization.
It is imperative that both parties in an employment relationship must be conversant with the legal provisions on CJA so that they are not caught on the wrong side of the law.
Simbarashe Gobvu is an experienced La¬bour Practitioner and an Independent Arbitrator who write in his own capac¬ity. He can be contact¬ed at [email protected] / Phone 0773215904 or 0713008767 https://masvingomirror.com