INTRODUCTION
Collective labour law refers to the branch of employment law that regulates organised relations, such as trade unions and collective bargaining, between employers and employees. Otto Khan-Freund QC, a prominent scholar in labour law, propounding on the nature of a contract of employment, stated that:
The relationship between an employer and an isolated employee is typically a relationship between a bearer of power and one who is not a bearer of power. In its inception it is an act of submission and in its operation, it is a condition of subordination. However much, the submission and subordination are concealed by the indispensable figment of the legal mind known as a contract of employment.
Essentially, Freund was highlighting that the relationship between an employer and an isolated employee is characterised by a power dynamic that renders such an employee prone to being taken advantage of. An employer tends to possess leverage over an isolated employee. This dynamic is key and has vast legal implications as isolated employees are vulnerable to being abused and therefore should be protected by the law in order to ensure that their rights and interests are safeguarded.
A brief look at the history of the relationship between employers and isolated employees, together with a consideration of Khan-Freund's views on the nature of a contract of employment, reveals that employers have had the propensity to abuse their power by offering poor conditions of service such as low wages, poor safety standards at places of employment, etc. This led to employees coming together and forming trade unions, with the view of them having enhanced negotiation power to settle on better conditions of service with their employers. Trade unions therefore enable employees to collectively protect their economic and social interests in the workplace.
THE FOUNDATION: TRADE UNIONS AND THEIR LEGAL BASIS
Trade unions enable employees to collectively protect their economic and social interests in the workplace. The principal piece of legislation governing the formation, registration and operation of trade unions, amongst other things, in Zambia, is the Industrial and Labour Relations Act, 1993 (ILRA). The Act defines a trade union as any group or organisation of employees whose principal objective is the promotion and representation of employees' interests and the regulation of relations between employers and employees. The Act further provides for employers' organisations. An employers' organisation is referred to as an "association" under the Act and is defined as an organisation of employers registered as an association under the Act and whose principal objective is the regulation of collective relations between employers and employees or between employers and trade unions.
It is vital to note that, in line with Article 21 of the Zambian Constitution, which provides for the right to freedom of assembly and association, liberty to belong to a trade union, or to not belong to a trade union, is an entitlement of every employee. This entitlement, however, is subject to lawful restrictions pertaining to registration and formation as provided by the Constitution under Article 21(2)(d). In the illustrative case of Edward Kapapula and Others v Zambia Telecommunications Company Limited, the Supreme Court observed in relation to trade union membership that:
in terms of both Article 21(1) of the Zambian Constitution as amended, and section 5 of the Industrial and Labour Relations Act, CAP 269, being a member of or belonging to a trade union is a right which is exercised or enjoyed voluntarily. This means that an employee can choose whether or not to join or belong to a trade union.
Further, Zambia is a signatory to the International Labour Organisation, which under Convention number 87 of 1948, provides for the freedom of association and protection of the right to organise.
Employees' Rights in Relation to Trade Union Membership and Activities
The ILRA reiterates that every employee has the right to participate in the formation of a trade union, to be a member of a union of their choice, and to take part in union activities, including seeking office, without interference from their employer. However, under section 5(b) of the ILRA, trade union membership is restricted to the area, sector, trade or undertaking establishment to which the employee belongs. Further, employers are prohibited from dismissing, penalising, or discriminating against any employee on the basis of union membership or activity, and any employee who believes their rights have been violated may lodge a complaint before the Court within thirty days.
Section 6 of the ILRA places a duty on employees in an undertaking to cooperate with management of the undertaking in the interest of productivity, industrial peace and greater efficiency.
Notably, being an employee is a condition precedent to trade union membership. This is supported by the holding of the Supreme Court in the case of Daniel Peyala v Zambia Consolidated Copper Mines, where the court held that a former employee is not a member of a trade union and therefore lacks standing to make claims under a collective agreement entered into by the trade union.
Formation and Registration of a Trade Union
In relation to the formation and registration of a trade union, the court in Vincent Makando (Suing as General Secretary of the Judicial and Allied Workers Union of Zambia) v Matildah Chilambwe (Sued in her Capacity as General Secretary of the National Union for Judicial Workers) and Others considered section 9 of the ILRA, which governs applications for registration. The provision illustrates that registration requires, primarily, an application signed by at least fifty supporters and two copies of the proposed trade union's constitution, alongside any additional documents the Labour Commissioner may deem necessary.
Legal Personality of a Trade Union
A trade union, once registered under the ILRA, does not acquire legal personality in the conventional sense. Unlike a company or registered society, a trade union cannot sue or be sued in its own name. Proceedings are instead instituted through the Secretary General acting in that capacity. This is illustrated in Vincent Makando (Suing as General Secretary of the Judicial and Allied Workers Union of Zambia) v Matildah Chilambwe (Sued in her Capacity as General Secretary of the National Union for Judicial Workers) and Others, where the parties litigated expressly through their respective Secretary Generals. A trade union therefore derives its existence exclusively from registration under the ILRA and is distinct from companies registered under the Companies Act and societies registered under the Societies Act.
Dissolution of a Trade Union
Section 16 of the ILRA provides that a trade union may be voluntarily dissolved in accordance with its constitution upon approval by the Commissioner. The executive committee must notify the Commissioner and submit a resolution authorising the dissolution. Upon approval, a liquidator is appointed to wind up the union's affairs, settle liabilities, and distribute the remaining assets for the benefit of former members. The Act further protects the liquidator from liability for acts done in good faith during the exercise of their functions.
Cancellation of a Certificate of Registration
The law further permits the cancellation of a trade union's certificate of registration by the Labour Commissioner, in consultation with the Minister of Labour and Social Security, thereby withdrawing its legal recognition and capacity to operate as a registered union. Such cancellation may arise where the union wilfully violates the ILRA, where members resolve to dissolve the union under section 16, where the union becomes dormant, or where the certificate was obtained through fraud or mistake.
COLLECTIVE BARGAINING: WORKERS AT THE TABLE
Collective bargaining refers to the process by which employers and a group of employees negotiate and agree on the terms of employment. Collective bargaining can further be defined as the joint or the co-determination, through a process of negotiations, of the terms and conditions of employment by an appropriate bargaining unit. The ILRA defines collective bargaining as the carrying on of negotiations by an appropriate bargaining unit for purposes of concluding a collective agreement.
Who Bargains?
According to the definition of collective bargaining provided by the ILRA, collective bargaining is carried out by an appropriate bargaining unit. The Act defines a "bargaining unit" in a two-fold manner:
Recognition Agreements
Under the Zambian legal framework in relation to collective bargaining, the first step is entering into a recognition agreement. A recognition agreement refers to an agreement between an employer or employer's organisation and a trade union which acts as evidence that the employer or employer's organisation recognises the said trade union as the sole representative and bargaining agent for employees that are members of the trade union.
Further, sections 63 to 65 of the ILRA place a registration obligation on every employer with twenty-five or more eligible employees, and upon registration, both employer and trade union must conclude a written recognition agreement within three months, a deadline the Minister has discretion to extend. The agreement must further contain clauses that set out procedures for collective bargaining, grievance resolution, and the review or termination of the agreement itself.
Failure to conclude a recognition agreement is deemed a collective dispute, immediately entitling the grieved party to take industrial action such as a strike or lock-out as the case may be. Section 65A further provides a termination mechanism whereby either party may apply to the Commissioner for termination of the recognition agreement, stating reasons therefor. The Commissioner is required to notify the other party and set a hearing date, following which the Commissioner may either approve the termination or reject the application with reasons.In the case of Kelvin Mambwe (Suing as Secretary General of the University of Zambia Lecturers and Researchers Union) v University of Zambia Council and the Attorney General, the court held that a recognition agreement may be terminated in accordance with section 65A or in accordance with section 65 of the ILRA.
Collective Agreements
A collective agreement refers to a contract that has been negotiated by the appropriate bargaining unit in which the terms and conditions of employment, including remuneration of employees, are laid down.
Section 68 of the ILRA places a mandatory requirement on parties negotiating a collective agreement to ensure that statutory clauses are included in the contract for it to be valid and registered by the Minister of Labour and Social Security. These statutory clauses include the date on which the agreement is to take effect, the period for which it is to subsist and procedures for amending, reviewing or terminating the said agreement.
It is further vital to note that section 69 of the ILRA places a duty on parties to a bargaining unit to commence negotiations for a new collective agreement at least three months prior to the expiry of the collective agreement. Failure to do so renders the parties liable to sanctions.
Registration of Collective Agreements
Under section 71, the Minister reviews collective agreements lodged with the Commissioner and may either direct registration or return the agreement to the parties with reasons and instructions to resubmit. Registration is conditional upon the agreement meeting the statutory requirements under the Act and not conflicting with any written law. Once approved, the agreement binds the parties, comes into force on the date of approval or such later date as specified, and remains in force for the period stipulated, with Gazette notification required where the agreement was concluded by a joint council.
Sections 72 and 73 further provide that parties may vary an existing agreement by consent and may apply to the Minister to extend it before expiry, with the application window opening sixty days and closing thirty days before expiration.
In the case of The Council of the University of Zambia v University of Zambia and Allied Workers Union, the Supreme Court emphasised the importance of compliance with the provisions of the ILRA in relation to registration of collective agreements. The court held that in order for a collective agreement to have the force of law it must be registered in accordance with section 71 of the ILRA. The court further held that an unregistered collective agreement not approved by the Minister of Labour and Social Security has no legal effect.
INDUSTRIAL ACTION
Industrial action, in the context of employees, refers to any action such as a strike or go-slow taken jointly by employees in an undertaking by way of protest against unfavourable terms and conditions of employment. The ILRA defines a strike under section 3 as a concerted refusal or a refusal under common understanding by any number of persons so employed to continue to work or provide their labour. The said Act further defines a lockout as the suspension of work, closing down of the place of employment or the refusal to continue to employ any number of persons so employed as a result of a dispute and with the view to compel those persons or to aid another employer by compelling those persons to accept the terms and conditions of employment.
Under Zambian law, a collective dispute is defined in accordance with section 75 of the ILRA, which provides that a collective dispute is deemed to exist between an employer or employer organisation on one hand, and employees or their representative union on the other, concerning terms and conditions of employment, where one party has presented its claims in writing and the other has either failed to respond within fourteen days, formally rejected the claims without a counter offer, or where negotiations have been held but the parties have failed to reach a settlement.
Procedural Requirements for Lawful Industrial Action
Sections 76 to 78 lay out the procedural pathway for resolving collective disputes and, where resolution fails, the requirements for lawful industrial action. Upon the arising of a collective dispute, the parties must first refer the matter to either a single conciliator or a board of conciliation, with the Commissioner and ultimately the Minister stepping in to facilitate appointments where the parties fail to agree within seven days.
Disputes involving essential services are referred directly to the Court. What constitutes essential services is provided under section 107 of the ILRA and includes medical or hospital services, supply and distribution of water and the generation, supply or distribution of electricity. Where conciliation succeeds, a memorandum of settlement is signed, witnessed and submitted to the Court for approval. Where it fails, the parties may either refer the dispute to the Court, refer it to arbitration or proceed to a strike or lockout only upon a simple majority ballot. The strike or lockout may then commence ten days following that decision and run for a period of 14 days after which it is deemed to be referred to the courts.
Notably, the Minister retains discretion to intervene before or after commencement, and may apply to the Court to declare the action contrary to public interest, in which case the strike ceases and the dispute is deemed referred to the Court.
It is vital to note that in the illustrative case of Attorney General (for and on behalf of the Judiciary) v Vincent Makando (Sued in the Capacity as General Secretary of the Judicial and Allied Workers Union), the court held that once a party exercises one of the three options as provided by section 78 of the ILRA, another option cannot be exercised simultaneously. The other two options become immediately unavailable once a party selects one of the options.
Consequences of Unlawful Industrial Action for Workers and Unions
Compliance with legal procedures is essential when it comes to employees' right to strike. Failure to do so renders industrial action taken to be illegal. This is highlighted in the case of Kelvin Lukonde & Others v Mopani Copper Mines PLC, where the court held that failure to obtain permission from management before engaging in trade union activities was in violation of the law and dismissed the appellants' challenge against their summary dismissal.
CONCLUSION
As Khan-Freund observed, the isolated employee enters the employment relationship from a position of submission and subordination. Collective labour law exists precisely to disrupt that dynamic. Through trade unions, collective bargaining, and structured dispute resolution, employees are afforded a meaningful buffer against employer power. The ILRA's procedural framework is therefore the means through which social justice in the workplace is pursued and, where necessary, enforced. That said, the effectiveness of these protections ultimately depends on how robustly they are implemented in practice, and Zambia still has considerable ground to cover in ensuring that the law on paper translates into real protection for workers on the ground.
BIBLIOGRAPHY
Legislation
Constitution of Zambia (Amendment) Act, 2016
Industrial and Labour Relations Act, 1993
International Instruments
International Labour Organisation, Freedom of Association and Protection of the Right to Organise Convention (ILO Convention No 87, 1948)
Cases
Kelvin Lukonde & Others v Mopani Copper Mines PLC (Appeal 165 of 2010) [2014] ZMSC 144
Mambwe v The Attorney General & Anor (HP 246 of 2020) [2020] ZMHC 350
Peyala v Zambia Consolidated Copper Mines (Appeal 81 of 2012) [2014] ZMSC 98
Books
Otto Kahn-Freund, Labour and the Law (2nd edn, Stevens & Sons 1977)
Kondwani Banda is a third year law student at the University of Zambia and serves as researcher on the UNZALAW Editorial board.