A CRITICAL STUDY OF THE RIGHTS OF WORKERS TO STRIKE IN ZAMBIA i On ‘O« Tc ce Se, 3 yee LOLLECTIO® BY WILLIE DANIEL CHALWE (COMPUTER NUMBER 25070959) AN OBLIGATORY ESSAY SUBMITTED TO THE SCHOOL OF LAW AT THE UNIVERSITY OF ZAMBIA IN PARTIAL FULFILMENT OF THE REQUIREMENT FOR THE AWARD OF A DEGREE OF BACHELOR OF LAWS (LL.B) OF THE UNIVERSITY OF ZAMBIA. UNIVERSITY OF ZAMBIA SCHOOL OF LAW P.O.BOX 32379 LUSAKA. APRIL 2010DECLARATION 1, Chalwe Daniel Willie, Computer Number 25070959 do hereby declare that I am the author of this Directed Research paper entitled: “A critical study of the rights of workers to strike in Zambia.” 1 further declare that the work is of my own ingenuity and that due acknowledgement has been made where other peoples’ work has been used. I truly believe that this research has not been previously presented in the School of law at the University of Zambia for academic work. I therefore bear the absolute responsibility for contents, errors defects and any omissions therein. SIGNED. Le, DATE. aslout byCERTIFICATION [recommend that this Obligatory Essay prepared under my supervision by CHALWE DANIEL WILLIE (COMPUTER NUMBER 25070959) ENTITLED: ACRITICAL STUDY OF THE RIGHTS OF WORKERS TO STRIKE IN ZAMBIA Be accepted for examination, I have checked it carefully and I am satisfied that it fulfils the requirements relating to format as laid in the regulations governing Directed Research Essay pate: 4 €/ oY / /O_ ¥.MupENDA_——~ 7 * (SUPERVISOR) iitABSTRACT The rights of the workers to strike is the only weapon left in the hands of the workers to fight for improved salaries and better conditions of employment. This right must be protected by ensuring that the law in place does not impede the workers from carrying out a legal strike. The strike in its broad significance has a reference to a dispute between an employer and his or her workers, in the course of which there is a concerted suspension of employment. Because it is an expensive weapon, the strike is generally labours’ last resort in connection with industrial controversies. This essay examines the rights of the workers to strike in Zambia and how the workers have been afforded such rights. It further looks at the international provisions on the right of the workers to strike and the conditions attached to the enjoyment of these rights. The essay examines at the protection given to these rights and how far that protection goes. The essay further identifies difficulties in the local law that make it difficult for the workers to go on a legal strike. The essay observes that the workers can not go on a legal strike because of the requirements that seem to be too difficult to be met by the workers and their unions. The Labour and Industrial relations Act, Chapter 269 of the Laws of Zambia, is of no help in workers taking a legal strike because of the provisions of having a strike ballot in the law for workers to legally strike. In conclusion the essay acknowledges these problems in the Industrial and labour Relations Act and hopes that the law could be reformed by making necessary amendments to the statute. It is my sincere hope that this paper will contribute to the understanding of the rights of workers to strike and why certain strikes re termed as illegal and or legal strikes in Zambia. Willie Daniel Chalwe UNZA April 2010ACKNOWLEDGEMENTS Iam grateful to the following people for the roles they played, generous advice and guidance they rendered to me: My employers for their patience and tolerance of my lateness in finishing my reports and for letting me knock off earlier than the stipulated knocking off time. To you I say thank you. Mr. Phil kancheya for the encouragement and support to research more on the subject and for suggesting names of people to see for my research. To my class mates; Chintu Mulendema, George Musonda, Andrew Chisala, Zsundu Zimba and Alex Chileshe, To you guys I wish to say thank you for being such a bunch of wonderful friends. Chintu Mulendema and Phil Kancheya the two of you were more special to me you made my fridays special. To my wife Martha for being such an encouragement in my life and my children Chisala, Mashiku, Memory, Mwelwa, Mayeya and Micheal the only boy in the clan, to you all I say thank you for being so nice. Lastly to my supervisor Mr Fredrick Mudenda for the guidance and advise given to me during my research. I remain indebted to the institutions and the people who took time off to talk to me and gave me valuable information. To all of you and many more not mentioned by name who rendered help during the course of this research, I say thank you and may the good Lord be with you. Willie Daniel Chalwe April 2010 vSTATUTES. 1. Constitutional of Zambia, Chapter | of the Laws of Zambia. 2. Employment Act, Chapter 268 of the Laws of Zambia 3. Medical Examinations of Young Persons Act No. 20 of 1973 4, Industrial and Labour Relations Act;- s.3, s.5, s.69, s.70, 8.75, s.76, 8.78, and s.101 5. International Covenant on Economic Social and Cultural Rights, Article 8 paragraph | (a). International Statutes 1. European Charter of Human Rights 2. Industrial Disputes Act of India 3. International Labour Organisation Convention No. 23 of 1930, No. 87 of 1948, No.98 of 1949, No. 125 of 1965 and Convention No.135 of 1971. 4. South African Constitution — Article 23 (1) and (2) 5. Trade Union and Labour Relations (Combination) Act 1992 of United Kingdom 8.238, and s. 273.TABLE OF CASES a 20. 21. 22. 23. . ANZ Grindlays Bank (Z) Ltd v Kaona (1997) ZR 85 . Bank of Zambia v Kasonde (1997) ZR 238 Barclays Bank (Z) Ltd v Chola and Mubanga (1997) ZR 212 . B.R. Singh v Union of India (1989)11 Lab LJ 591 . Cassidy v Minister of Health [1951] 2 QB 343 . Crompton Greaves v The workmen (1978) AIR 1489 |. Express and Star Ltd vy NGA (1985) IRLR 455 Forster v British Gas [1990] 3ALL ER 890 Indian Iron Steel Co. Ltd v Its workmen (1967) ILLJ 381 . Laws v London Chronicles [1959] 1 WLR 698 . Gerald Musonda Lumpa v Maamba Collieries Ltd (1988) Z.R 217 . Madura Coats Ltd v Inspector of Factories Madurai (1981) ILLJ 255 . Morgan v Fry [1968] 2 QB 710 |. Raine Engineering Ltd v Baker (1972) ZR 152 . Resident Doctors Association of Zambia and Others v A/G (2003) SC No. 12 Short v J & W Henderson [1946] 627 TLR 427 . Spencer and Co Ltd v The Workmen (1966) ILLJ 714 (LAT) . Summons v Hoover [1977] ICR 61 . Van Gender Loos [1963] CMLR 105 ECJ Young G James & Webster v UK [1981] 1 RLR 408 ECHR Zambia Breweries Ltd v Whisky Kawisha (1994) ZR 32 Zambia Consolidated Copper Mines Ltd v Matale (1995 - 1997) Z.R 144 Zambia Sugar PLC v Fellow Nanzaluka (2001) SC Appeal No. 82 of 2001TABLE OF CONTENTS Content Declaration Certification Abstract Acknowledgements Table of Statutes Table of Cases Table of Contents Chapter 1 1.1 Introduction 1.2 Statement of the problem 13. Objectives 1.4 Chapters and their titles 1.5. Research questions 1.6 Rationale of the research 1.7 Methodology 1.8 Literature review 1.9 Conclusion Chapter 2 2.0 The right to strike vill viChapter 3 Chapter 4 21 2.2 23 24 2.5 2.6 27 2.8 3 3.2 3.3 3.4 3.5 3.6 37 3.8 41 Introduction 13 Strikes defined 13 Purposes of strikes 15 Types of strikes 16 Consequences of strikes 18 Strikes and unfair dismissal 19 The right to claim for reinstatement and wages 21 Conelusion 2 The law and the right to strike 24 Introduction 24 The common law and strikes 24 The Constitutional provisions 26 The Industrial and Labour Relations act and strikes28 The International standards 33 Impact of international law on local law 36 Protection of the right to strike 38 Conclusion 39 The way forward in striking legally 40 Introduction 40Chapter 5 Bibliography 42 43 44 4.5 46 5.1 5.2 53 54 5.5 5.6 Collective bargaining period Strikes and the conciliation process Reducing on illegal strikes The right to strike compared Conclusion Conclusion Introduction Workers representatives Suspension of contracts when on strike The right to strike in Zambia Proposals on the way forward Conclusion 40 42 42 43 46 47 41 47 4B 48 59 50 51CHAPTER ONE 1.0 INTRODUCTION 1.1 Introduction ‘This research essay is about the rights of the workers to strike on the one hand and on the other hand there is the Act’ in place that seems to be too rigid on the workers to go legally on strike unless certain processe: re complied with. The research tries to explore the Zambian Jaw as well as the international law’ on the rights of the workers to strike. It further explores the legal rights of workers to strike, and restrictions on workers and their organisations to take industrial action. The aim of the research is to critically examine the law relating to the rights of workers to strike and consider whether or not such rights exist. The essay will look at the Zambian legislation as well as the international law if such rights exist and to what extent they go. In doing so, the essay will consider how easy is it for the workers to go ona legal strike. It will also consider the local law that require workers to follow a defined process before going on a legal strike. It will further discuss why other processes like the mediation and arbitration process are not easily resorted to in times of a crisis in resolving the industrial disputes.* In this essay the words industrial action and strike are used interchangeably but in essence they are talking about one and the same thing, so are the words of employees, workers and workmen which are also used in this research interchangeably as well to mean one and the same thing that of employees. * Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia 2 Industrial and Labour Relations Act. Cap 269, Section 78, ? International Labour Organisation Conventions and Recommendations ‘Industrial and Labour Relations Act, Section 75,1.2 Statement of the problem The law regulating industrial action is the most politically contentious area of employment law, largely because of the propensity of industrial action to affect people who are not parties to the dispute. Where a strike affects the general public, there is likely to be a feeling that workers should not have the freedom to take industrial action because of its disruptive effect on the community. The possibility of a strike action is a necessary weapon for the workers to have in their armoury, because it is only by the threat of collectively withdrawing their labour, or actually doing so, that they have any power. They cannot rely on the employer dealing with them fairly. In 1966 Grunfeld wrote that; “..jff one set of human beings is placed in a position of authority over another set, to expect the former to keep the interests of the latter constantly in mind and, for example, to increase the latter's earnings as soon as the surplus income is available...it is to place on human nature a strain it was never designed to bear."* It is not easy to participate in an industrial action in Zambia which is lawful and yet the incidences and scale of unlawful industrial action in Zambia is of public concern’ as they happen on an annual basis thereby disrupting industrial harmony and productivity in the nation. The country faces strikes of all kinds and most of these strikes are illegal as witnessed recently by the nurses and the teachers.* ‘The records indicate that there has been one legal strike in Zambia.” Does it mean that the law that regulates industrial relations when it comes to strikes is ineffective or is it that the people themselves are so disobedient to the law? The right to strike is a workers right and therefore 5 Gwyneth Pitt, (2007) Employment Law, Sweet and Maxwell, London. Pg 347 °C. Grunfeld, (1966) Modern Trade Union Law, Sweet and Maxwell, London. Pg 256. ‘Times of Zambia July 5, 2009 pg 1. RB Visits the Copper belt. ® Rupiah Banda President of Zambia, Sunday Mail July 5, 2009 pg 1. RB saves striking nurses ° Afro News. 19".February, 2004. Zambia's first strike in 20 years. An estimated five thousand members of Of the Zambia Congress of Trade Union and the Federation of Free Trade Union of Zambia took part in what was termed as the strike “over tax hikes and the frozen wages” 2that right to strike of any workers should not be denied to the workers if their economic, social and working conditions at their work place are not conducive enough to enable them work quite peacefully and if the employer does not take steps to improve on them. The right to strike is internationally recognised’? as one of the fundamental instruments available to workers to balance the unequal economic power relations between the workers and the employers. The right to strike is an essential right, the right of every citizen, of every worker, to associate with others! and withdraw his labour, to go on strike. This right of workers to withdraw their labour is guaranteed by international treaties. As Novitz points out that;- “mounting awareness that modern erosion of democratic parti ipation and human rights protection, including provision for workers’ rights, necessitates greater coordination between international and regional organisations.” '* The central issues of labour law are the central issues of our society. How much state regulation”? should exist? Can economic justice be defined and administered, or must the free market be given more play? Is there a breakdown in order as competing interests vie for public sympathy and support? The drive now should be to move towards deregulation driven by competitive pressures inherent in globalisation and the growth of free trade. Regardless labour law continues to be a major component of labour relations and collective bargaining," In this regard is the Zambian law on labour relations that relates to strikes compatible with the times and season? This essay therefore examines Zambian law as it relates to strikes and to see whether it infringes on the rights of the workers to take industrial action when there is a need. * international Labour Organization Conventions No 87 of 1948 * Constitution of Zambia, Chapter 1 of the Laws of Zambia, Article 21. ® Novitz T. (2003) International and European Protection of the Right to Strike, A comparative Study of Standards set by the international Labour organisation, the council of European Union. Oxford, Oxford Press. » Through Acts like the Industrial and Labour relations Act Chapter 269 of the Laws of Zambia. * Industrial and Labour relations Act, Cap 269 of the Laws of Zambia, s. 69 and s.70 3The essay therefore discusses the rights of workers to strike. It focuses on the rights of the workers to strike in relation to the law of the land as it relates to taking industrial action. The law gives workers the rights to organise themselves in organisations such as trade unions of their choice.'§ The Constitution of Zambia gives this right to the workers under Article 21. (1). In Article 21. (1), of the Constitution the right of workers to form a trade union and ag belong to one without hindrance or want." Further the constitution provides for protection against slavery and forced labour.'” This c: be seen as the basic provisions of the human rights in these two Article provisions. The Industrial and Labour Relations Act Chapter 269 of the laws of Zambia governs the operations of trade unions, industrial action, and the relationship between employers and unions. The Act in Section 5 (1) (a) gives the employee the right to take part in the formation of trade union and the right to belong to a trade union of his choice.'® ‘An employee who has reasonable cause to believe that the employee’s services have been terminated or that the employee has suffered any penalty or disadvantage for exercising an employee's rights may bring up his complaint to the industrial relations court"? within reasonable time. Industrial action which has been endorsed by a trade union is regarded as official action for the purpose of the law.”” Article 21 of the Constitution of Zambia provides for the right to freedom of assembly and association. The Article states, inter alia:- * Constitution of Zambia, Article 21(1) ** Constitution of Zambia, Article 22 (1) * Constitution of Zambia, Article 14 + Industrial and labour Relations Act, Chapter 269. Section 5. * Industrial and Labour Relations Act, Chapter 269. Section 5(4). ® Industrial and Labour Relations Act, Cap 269. Section 78(3). 4“10 person shall be hindered in the enjoyment of his freedom of assembly and association...in particular to form or belong to any political party, trade union or other association for the protection of his interests.”"" 1.3 Objectives The objectives of this research are; To understand the rights of workers to strike in Zambia given that the law demands that a process’ has to be exhausted before one embarks on taking an industrial action. To understand why workers in the country go on illegal strikes without exhausting the due process as provided for in the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. To study and understand the laws regulating industrial relations in the country and see whether the restrictions that are imposed on labour unions are equitable and justified To study the international law on the rights of workers to strike and see whether they are in consonant with the Zambian laws. To investigate why there are many illegal strikes in the country and the causes of these industrial disputes despite there being a law that regulates industrial relations in the country. To study and understand whether the requirements placed on the labour movement to follow a defined process by the law are justified and to see whether there are some things that can be done to make striking legal. * Constitution of Zambia, Chapter 1 of the Laws of Zambia Article 21 * Industrial and Labour Relations Act, Cap 269 Section 78, 51.4 Chapters and their titles Chapter 1 is the Introduction chapter. It contains the statement of the problem, the methodology that the research will take, the objectives of the research and the rationale behind the research topic to be undertaken. ‘The title of Chapter 2 is “The right to strike.” In this chapter strikes are defined and the types of strikes that are there are given out. This chapter also explains the purposes of the strikes and the consequences of going on illegal strikes, highlighting different outcomes of legal and illegal strikes. It also discusses the unfair dismissal of a person on strike and how one can claim for unfair dismissal. Chapter 3 is on “The law and the right to strike.” In this chapter the Constitutional provisions are discussed on the rights of the worker to strike and to see whether the right to strike is protected by the Constitution. The Industrial and Labour Relations Act provisions on the right of the workers to take industrial action are discussed as well as the international standards on the rights of workers as well Chapter 4 is on “The way forward in striking legally.” This chapter looks at strategies that can be put in place for the workers and their unions to go on lawful strikes as opposed to the situation now. The chapter also discusses the internal controls that could help in fostering industrial harmony; the training of the union leaders in understanding the law on illegal strikes is discussed as well. It further highlights the shortcomings that are in the statutes. Chapter 5 will be the Conclusion. In this chapter the essay is concluded by looking at the way forward, summarising the points of discussion brought out in the essay pointing out how future strikes could be avoided stressing on the internal controls that can be strengthened. It then finally concludes the discussion of the essay.1.5 Research questions The essay seeks to address specific questions that that are posed in this research with a view to generating knowledge that may be useful in understanding the causes of unlawful strikes in Zambia. In this regard chapter one introduces the topic of discussion and the methods that were used to do this research. Chapter two defines what a strike is and discusses the consequences arising out of these strikes. It also attempts to find out the answers to the question of “Are people going on illegal strike just disobeying the law as provided for in the Act or is it that the law as given in the Act is too rigid to take a lawful strike? The main purpose of this question is to examine whether the law relating to industrial action conflicts with the rights of workers to strike. In chapter three the research questions to be considered and answered are whether the law that limits the rights of the workers to take industrial action is to all purposes and intents justifiable, and whether the provisions in the Act® do address all the concerns. The main purpose of these questions are to identify the short comings if any in the Industrial and Labour Relations Act and to examine what impact the international labour law has on our Zambian law and the rights of the workers. Having analysed the short comings in the Zambian law and the impact that international law has on the rights of workers and the Zambian law, chapter four looks at the question of what strategies can be used to help regulate industrial relations, with suggestions given on some of the things that may be done to reduce on the infringements on the workers’ rights to take industrial action which is lawful. Chapter five makes a conclusion of the essay on the right to strike in Zambia, it summarises the essay bringing out the salient features of the topic of discussion of the essay on the right to strike. * Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia. 71.6 Rationale of the Research The frequency of strikes in Zambia has posed a great challenge to the labour movement, the workers themselves, workers employers and the politicians who are charged with the responsibility of maintaining industrial harmony.** However it would appear that there has not been enough research done in this field in the country on the right to strike and on minimising the unlawful industrial actions that are happening on an annual basis. The strikes are embarked on by the workers and their unions fully aware of the law of what is required of them to follow and exhaust the channels” that are laid down for them to make a strike legal and yet they do just that which is forbidden of them. The researcher is also motivated by the seemingly attitude of the people to take industrial action disregarding the law which is there and when things don’t seem to go well there are pleas for forgiveness and mercy”® on the workers by their unions. The going on strike by essential workers and when they are not allowed and without putting in measures to attend to problems has been a motivation to find out why this is done in this way and has been of great concern to the author. 1.7 Methodology The study examines the various pieces of Zambian legislation which include the Employment Act, the Industrial and Labour Relations Act and the Constitution of Zambia. It further examines the international provisions as provided by the International Labour Organisation which are given as Standards and Recommendations.”” 2° The Post July 5, 2009 pg 1, Nurses end strike ® Industrial and Labour relations Act, Chapter 269 of the Laws of Zambia. s. 76 7 Times of Zambia, 7" July 2009 pg 3. Healthy Union pleads for forgiveness of striking nurses, » International Labour Organization Convention No. 87 and Convention No. 98 8Interviews with some officials from the Ministry of Labour, Zambia Congress of Trade Unions, Federation of Free Trade Unions in Zambia, Zambia Federation of Employers, Zambia National Union of Teachers, the local office of the International Labour Office shall form part of the research. The study shall rely mainly on the library and desk-top research which involve the analysis of the legislation and other documentation like books and publications, media reports and internet based information and decided cases. All these sources were reviewed as an on-going process for the duration of the research. 1.8 Literature Review The problem of appropriation the fruits of other peoples labour, the exploitation of man by man was of concer. It is this relationship to the means of production and the manner of its contribution of wealth which bring about the problems of strikes in industry.” In the absence of proper legal machinery or devices of dealing with grievances of the workers, the only remedy of the workers is to revolt by way of strikes with a view of compelling the employer to attend to their demands. In return the employer may dismiss or cause the strikers to be arrested where strikes are illegal.2? Labour rights are human rights which women and men have with respect to the employment and working arrangements.*° The ultimate source of labour rights is the Universal Declaration of Human Rights” which provides that; 1. Everyone has a right to work, to free choice of employment, to just and favourable conditions of work and to protection against employment. 2. Every one without discrimination, has the right to equal pay for equal work ** Chimansa Chisumo C. 1978, Obligatory essay. An Analysis of Zambian Industrial Relations prior to independence to date viewed from the perspective of the rights of workers. ® Banji Michelo, 2004 Obligatory essay. The labour standards in the civil service: An overview. * United Nations Charter.3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human supplements, if necessary, by other means of social protection. ( ests. t 4. Everyone has a right to form trade unions for the protection of his inter Lufungulo Evans” on the other hand says that the enactment of the woes cnt ; ee o Labour Relations Act of 1971° introduced far reaching effect and revolutionary impact to improve the industrial relations in Zambia the central features he points out were that; Establishment of the Industrial Relations Court under part VII of the Industrial and Labour Relations Act of 1971 now under part XI of the industrial and Labour Relations Act of 1993, the introduction of the concept of collective bargaining ad its legal regulation and the provision of a legal framework for the settlement of disputes. Chris White™ also writes that the right to strike is seen as a human right, although justified on social ground where, quoting Ewing, he sees a convergence of the justifications for the right to strike. The traditional and social arguments and the civil and political justification for the right to strike are joined by a human rights justification. There is renewed advocacy for the right. International labour law is joined by human right. Ewing®® goes on to show that the right to strike has interesting features. A human right is inalienable in that it cannot be abrogated by the state or by the individuals. Human rights are individual and unequivocal. The exercise of human rights has in the practice been made possible by the state. Although an individual right, the right to strike is exercised in combination; individuals organising collectively, especially in unions where they are fully protected.” The individual on strike * Lufungulo Evans, 1989 Obligatory essay, Impact of Industrial Relations Court. A critical study. > The industrial and Labour Relations Act. Act No 36 of 1971. * Chris White, The Right to Politically Strike: The case for re-evaluation. School of Law, Flinders university, Adelaide. A paper for the 2005 Association of Industrial Relations Academics of Australia and New Zealand. * Ewing K.D (1989), The right to strike in Australia: 2 Australia Journal of Law 18. ** industrial and Labour Relations Act, s. 78 (3) 10has a firewall protection. Apart from losing wages no other penalties can be imposed. A worker cannot be dismissed or discriminated against for going on a legal strike, In our globalisation network economics, individual protection is arguably still important in work place relations. This human right to be effective requires immunity from common law sanctions. The strike action as a human right action its scope is wider than bargaining on social economic issues. It can be used to respond to the political attacks on workers individual rights. Individuals should have the freedom to determine how the right to politically protest with industrial action should be exercised and for what purposes. If the right to strike is a human right then workers must be free to determine the causes they will promote by using it, just as the same way that we do not censor the purposes that may be promoted by the exercise of the right to freedom of assembly. From the foregoing Chimansa’” does not discuss the rights of the workers to strike he only discusses strikes in a passing way and not bringing in the law that was there which is repealed now, The essay does not touch on the provisions of the Industrial and Labour Relation Act, neither does it touch on the International law as provided by ILO. Banji Michelo™ also does not discuss the issue of the rights of workers to strike a subject of my discussion. Chris White®? and Ewing“ on the other hand try to discuss the right to strike as a human rights issue that confronts the political issues. My essay will discuss the right of workers to strike as a labour right which the members can use to compel the other party to come to terms with them. * ibid * Ibid * bid *° Ewing K. D (1989), “The right to strike in Aust , 2 Australia Journal of Law 18. 11In 1993 through Act number 27 the Zambian Parliament enacted the Industrial and labour Relations Act, Chapter 269 an Act‘! meant to the regulate industrial relations in the country. In the Act we find the law relating to trade unions the Zambia Congress of Trade Union, employers’ associations, Zambia Federation of Employers.’ This Act regulates collective bargaining and agreements, the settlement of disputes, strikes, lockouts, essential services and the tripartite Labour Consultative Council, It also establishes the Industrial and Labour Relations Court. The question to be asked is whether the provisions of this Act are adequate to forestall any industrial disputes. It would appear the frequency of these strikes suggests that the law regulating industrial relations in the country might not be adequate enough to address the frequent strikes of workers. The looks at what possible gaps if any that could be addressed in the legislation. 1.9 Conclusion The right to go on a legal strike is every worker's right. It a right that is available to an employee to use as a last resort to push forward his demands for improved conditions of service. Ordinarily a legal strike is possible if employees have followed the right procedures and are using it to exert pressure upon their employer in order to improve the conditions of their employment. A strike is unlawful if it done without following the laid down procedures and processes in the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. “Industrial and Labour Relations Act, Chapter 269 of the laws of Zambia. 12CHAPTER TWO 2.0 THE RIGHT TO STRIKE 2.1 Introduction This chapter centres on the right to strike. In employment law when a worker goes on strike he breaches a fundamental rule of the contract of employment because of contractual liability which is in force all the time, for it is expected for the worker to work and not to strike.” In this chapter strikes are defined and the types of strikes that are usually embarked on by the workers are given. It further highlights the purposes of strikes; because there has to be a purpose for embarking on an industrial action otherwise it would be pointless to do so. The chapter will show the consequences of going on illegal strike. It looks at the contractual obligations of workers in relation to their going on strike. ‘The good things and the bad things that come out strikes are discussed in detail so as to get a better understanding of what repercussions can be with illegal strikes. After this then the essay discusses the rights of striking employees to claim for wages and salaries, the right to reinstatement and the claim for unfair dismissal and when it can be claimed. The chapter shows to what extent the employee has the right to be reinstated after he has been on a legal strike and then at the end make a conclusion of the chapter. 2.2 Strikes defined. A strike is a collective stoppage of work by employees undertaken in order to pressure upon those who depend on the sale or use of the products of their labour."*"Ludwig Teller in his, “ simmons v Hoover Ltd [1977] ICR 61 “5. N. Misra, (2007) Labour and Industrial Laws 23" Edition, Central Law Publications, Allahabad. Pg 149. 13book, “Labour, Disputes and Collective Bargaining,” says that;- “the word ‘strike’ in its broad significance has reference to a dispute between an employer and his workers, in the course of which there is a concerted suspension of employment, because it is an expensive weapon, the strike is generally labour’s last resort in connection with industrial controversies." The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia however defines a strike as “the cessation of the work or withdrawal of labour contrary to the terms and conditions of a contract by a body of persons employed in an undertaking acting in combination; or a concerted refusal or refusal under a common understanding of a any number of persons who are so employed to continue to work or provide their labour.” The word “strike” has been going constant transformation around the basic concept of stoppage of work or quitting of work by employees in their economic struggle with capital. In order to constitute a strike in its technical sense it is necessary that there should be cessation of work but it is not necessary that there must be total suspension of work because even partial stoppage of work would be a strike. Thus cessation of work for short duration will also be a strike. The term “concert” as used in the definition means “to accord together”. Thus an individual who absents himself to enforce a demand for higher wages shall not constitute a strike. Mere cessation of work does not come within the purview of strike unless it can be shown that cessation of work was a concerted action for the enforcement on an industrial demand. The term strike therefore postulates three main ingredients, namely (i) plurality of employees, (ii) cessation of work or refusal to do work, and (iii) combined or concerted action. Go-slow would not technically be a strike though go-slow tactics also are generally resorted to by workers for compelling the employer to yield to their demands. Workers have the right to ** Ludwig Teller, (1993) Labour Disputes and Collective Bargaining, Butterworth, London. Pg 142 * industrial and Labour Relations Act, . 3 “ indian Iron Steel Co. Ltd v Its Workmen (1967) 1 LLI 381 14strike but there is no such right to adopt go-slow tactics which are more reprehensible in character than strike. The word strike therefore stands for the concerted cessation by workers of their work with the object of halting the activities of a given establishment or paralysing such activities to a considerable extent, or any abandonment by workers of their work in accordance with a decision taken to that effect by an organisation. The strike in industrial relations is therefore an organised work stoppage carried out by a group of employees, for the purpose of either enforcing demands related to employment conditions on their employer or of protesting unfair labour practices. Strikes have been called for political purposes. They are conducted most frequently by workers organised into trade unions. In other words a “strike” is the term given to industrial action by workers who refuse to work or decide to form a picket outside the workplace to dissuade normal working practices, The determining factor of whether a strike is afforded legal protection is, under normal circumstances, dependant on whether or not it was organised pursuant to the pertinent rules.“ The remit of protection afforded striking workers is largely determined by whether or not the strike is official or unofficial. Protected industrial action is for most practical purposes likely to be official strike, It is an act or series of acts which an employee is induced to commit by an act which by virtue of it is not illegal. This means that if the circumstances are that a trade union can take advantage of the immunity provided for trade unions operating in contemplation or furtherance of a trade dispute. 2.3 Purposes of strikes The strike must also have a purpose, such as to induce or compel the employer to agree to ns Act, Chapter 269 of the laws of Zambia. 15any demands concerning the terms or conditions of employment, or refrain from making changes in the conditions of employment. The purpose can also be to compel the employer not to dismiss an employee or reinstate a dismissed employee The principle tactic aim of all the strikes is to achieve the total suspension of work within the employer's establishment. The most widely means of achieving this aim, invoked after the workers quit work and left the business establishment, is the practice of picketing, The purpose can be like what Shoprite workers had achieved during their two days strike in which their union Secretary General“* said the workers had decided to go on strike to pressure management to enact a pension scheme. Shoprite management was not responding enough to their demands for a pension scheme which resulted in the workers to go ona strike to compel management to act fast,“? and after the workers went on strike Shoprite Zambia management agreed to give its employees a pension scheme based on the local conditions as demanded by the workers. 2.4 Types of strikes Strikes can be divided into two main basic types:*° economic and unfair labour prac economic strike seeks to obtain some type of economic benefit for the workers, such as improved wages and hours of work, or to force recognition of their union. An unfair labour practice strike is called to protest some act on the employer that the employees regard as unfair. There are however so many strikes taking place everywhere these days. When a strike takes place against the will of the leadership of the union, or without the union, it is known as a wildcat strike.*' In many countries, wildcat strikes do not enjoy the same legal protection as “ Mr. ohn Bwalye Secretary General ~Nationel Union of Commercial and industrial Workers Union (NUCIW) * Times of Zambia August 12, 2009. Shoprite workers end strike. 5° Gerald N. Hill and Kathleen T. Hill (2005), A Lexicon of Labour Strikes, New York. Pg 2 * Ewing K.0. (1989) “The right to strike in Australia” 2 Australian Journal of Labour Law 18. 16a standard union strike, and may result in penalties for the union whose members participate There is then a walkout which is unannounced refusal to perform work.*? A walkout may be spontaneous or planned in advance and kept secret. If the employees walkout it is an irresponsible or indefensible method of accomplishing their goals, a walkout is illegal. The other frequently used in the country is a slowdown or go slow, which is an intermittent work stoppage by employees who remain on the job. Slowdowns or go-slows are usually illegal because they give the employees an unfair bargaining advantage by making it impossible for the employer to plan for production by the workforce. An employer may discharge an employee for a go slow.** A sit-down strike is one in which employees stop working and refuse to leave the employer’s premises. These are illegal under the circumstances. A sympathy” strike on the ‘one hand occurs when a union stops work to support the strike of another union. A sympathy strike is work stoppage designed to provide aid and comfort to a related union engaged in an employment dispute, Although sympathy strikes are not illegal, unions can relinquish this tactic in a collective bargaining agreement.” ‘A lockout on the other hand is a weapon in the hands of the employer. This is when the employer closes down a place of employment or suspension of work, or 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 bia ** The members of UNZALARU went on a go slow during the month of July to press their Council to increase their salaries to about 15% as opposed to the 5% that the Council offered them. * National Coal Board v Galley (1958) 1 W.LR 16 * Gerald N. Hill and Kathleen T. Hill (2005), A Lexicon of Labour Strikes, New York. *®s. 101(1) and s. 101 (2) of the Industrial and Labour Relations Act, forbids sympathy strikes in Zambia. *7 Mutual agreement reached between employees and employer after joint negotiations 7compelling those persons or to aid him, to accept terms of conditions of employment or terms of conditions affecting employment.** 2.5 Consequences of striking. It would appear that nobody likes strikes in any form. The reason for this dislike is that in a strike everybody loses something. Be it a lockout or strike there is some loss that is suffered by the employees and the employer; the employer loses his profits and continuing costs, while the employees lose their wages. It is generally believed that this mutual fear is the driving force behind collective bargaining.” In most cases the employers’ and unions sign collective bargaining agreements without strikes. When employees strike, the employer may continue operating the business and can hire replacement workers. Upon settlement of an unfair labour practice strike or dispute, the strikers must be reinstated as soon as possible and if they offer unconditionally to return to work, even if the replacement workers have to be dismissed.*" In Barclays Bank (Z) Ltd v Chola and Mubanga,® the respondent employee of the appellant bank and members of the Zambia Union of Financial Institutions, embarked on an illegal strike and were dismissed for defying an order to report for work on a given date. Proceedings in the Industrial Relations Court led to a finding that the dismissals were unfair. On appeal as against the first respondent only, the award of four years’ of salary put in issue, as against second respondent, the appellant questioned both finding liability and compensation of three year’s salary. It was held that the finding of the trial court that the 5 industrial and Labour Relations Act, s. 3 * Industrial and labour relations Act, Cap. 269 of the Laws of Zambia. s. 69 © 2UFIAW signed a collective bargaining With Finance Bank to increase their salaries by K500,000 across the board in July,2009 without having workers going on strike © Spencer and Co. Ltd v Their Workmen (1966)1 LI 714 (LAT) © (1997) ZR 212 18second respondent was prevented from reporting for work, which findings was supported by evidence was confirmed. Once the strike is held to be illegal, the question of justifiability does not arise and the employees are not entitled to seek wages and salaries for the strike period unless they prove that the strike was legal and justified. 2.6 Strike and the unfair dismissal. In most countries the proximate reason for the introduction of the law on unfair dismissal followed International Labour Organisation Recommendation No.119 of 1964 on Termination of Employment, In Zambia however the termination of employment is founded on grounds of race sex, marital status, religion political opinion or affiliation tribal extraction or social status of the employee and is restricted by section 108 of the Industrial and labour Relations Act. ILO’s recommendation no 119 of 1964, it provides that contracts should be terminated only if there is a valid reason related to the conduct or capacity of the worker or operational requirement of the business. The unfairness that common law was doing on the workers made it possible for the legislation of some law to regulate industrial relations. Countries saw it fit and justifiable to put in place a statute law to govern industrial relations. Illegal strikes usually have a telling effect in that the employer is at liberty to dismiss the employees for going on an illegal strike. This in itself is a sad development which can be avoided by the workers to make it a point that they should engage in an industrial action which is protected by law instead of them taking it for granted that it is fine even if they went on strike which is not protected by any law. © 5. N. Misra (2007) Labour and industrial Laws 23" Edition, Central Law Publications, Allahabad. Pg 159 “ international Labour Organisation Recommendation No. 119 of 1964 19In ANZ Grindlays Bank (Z) v Kaona,® in which the respondent had dismissed from his employment with the appellant after the appellant left his office with the permission of his supervisor to attend union meeting. On his return he, along with his colleagues, discovered they had been locked out and treated as if they had been on strike. The respondent and his colleagues later applied for reinstatement. The appellant only reinstated only some of the dismissed workers and did not reinstate the worker who had many years’ service. In an application by the trade unions, it was held that that there had been unlawful strikes and the appellant should not have been selectively re-employed workers. There was an order for reinstatement. On a further claim for reinstatement on the ground that he had been discriminated against because he had worked for the appellant for more than 20 years. The High Court held that the respondent had been discriminated against, without indicating what form of discrimination had taken place but went on to say that the respondent had not had a proper hearing and that the action taken against the respondent was nullified. Reinstatement was ordered. On appeal to the Supreme Court it was held that for the order to succeed it was necessary to show not only that the cause of action was the same but also that the appellant had no opportunity to recover in the first action what he hoped to recover in the second action. The first action brought by the trade union did not allow for reinstatement where as the second action did. The Supreme Court further held that orders for reinstatement are made in exceptional cases and that there was nothing special to suggest that reinstatement should be ordered in the present case. The reinstatement order was replaced with an order that the appellant pay respondent damages for wrongful dismissal and plus other ancillary relief. What is important to note here is that the employer is at liberty to dismiss the worker if that worker goes on an industrial action which is not protected by law. The workers are supposed to take industrial action after declaring a dispute and fulfilling the stated requirements in the © (1995) 28.85, 20Act.®° Participation in a strike or other industrial action is likely to have a highly detrimental impact on an employee’s statutory employment rights. The most serious consequence is likely to be the potential loss of the right to bring proceedings for unfair dismissal but other statutory rights of striking employees will also be affected like; (a) a striking employee's right to redundancy pay may be jeopardised and (b) the weeks during which an employee takes part in a strike will not count for purposes of calculating an employee’s continuity of employment.” 2.7 The right to claim for reinstatement, wages and salaries. A strike that is carried out in accordance with the provisions of the Industrial and Labour Relations Act," that strike must be deemed legal. In such a situation where the strike is legal the Courts are empowered under section 78 (10) of the Industrial and labour Relations Act to decide whether to direct payment of wages and salaries for the period of the strike if the strike is a legal one. They can also order reinstatement in some cases, though the reinstatement order is rarely done even where the basic conditions are fulfilled, such as the contract being governed by statutory provisions or there being an element of public employment, the discretion of the court to order reinstatement as opposed to damages has to be exercised on grounds which can be identified and defended” in the High Court which uses common laws principles. It was stated in Bank of Zambia v Kasonde”', that it trite law that the order of reinstatement is granted sparingly with great care and jealousy and with extreme caution, and when one is very much seized with the general principles and found in the case circumstances which can be identified and defended for instance if the defendant is a public industrial and Labour Relations Act Cap 269 of the Laws of Zambia, 5.78 ° Gwyneth Pitt (2007), Employment Law, 6" Edition, Sweet and Maxwell, London. “industrial and Labour relations Act, Cap 269 of the Laws of Zambia, s.78 (4) © industrial and Labour Relations Act, Cap 269 of the Laws of Zambia, s.78 (10) 7 zambia Breweries Ltd v Whisky Kawisha (1994) Z.R 32 7 (1995/1997) Z.R. 238 aainstitution and those running it must at all times adhere to the principles of fair play. Dismissals based on the misconduct of employees must be on proven grounds. All employees should enjoy equal treatment under the ruling regulations, Section 5 (2) of the Industrial and Labour Relations Act, Chapter 269 provides for circumstances where no employee is to be prevented, dismissed, penalised or discriminated against, from exercising any of the rights given by subsection (1). Where it is found that an employee has been dismissed, penalised or discriminated against, he can sue for damages or compensation under section 5 (2) (c).” When a worker is dismissed for going on an illegal strike it is rather difficult to be reinstated. What this shows is that the employee will have lost his work. In an Indian case of Crompton Greaves v The Workmen,” it was held that in order to entitle the workmen to wages for the period of strike, the strike should be legal as well as justified. Similarly in the case of Madura Coats Ltd v Inspector of Factories Madurai,”* the workers went on strike without serving a notice as required by law. They claimed wages for national holiday which fell in the strike period. The Supreme Court of India held that they were not entitled to wages because they themselves brought about a situation by going on strike without giving a notice whereby management was deprived of their right to take work from them. 2.8 Conclusion A strike is the partial or complete refusal to work, or the slowing down or obstruction of work by employees in order to try to remedy a grievance or resolve a dispute with an employer or more than one employer. It comprises three elements: stoppage, concerted action and purpose. Stoppage is the prime example of a strike and is commonly called a “walkout”. It * Industrial and Labour Relations Act, 5.5 (2) (a), (b), (c(i) and (i > AiR 1978 SC 1489 (1981) 1 LU 255 22may include refusals to work overtime, embarking on “go-slows” or refusals to comply with conditions of employment. Refusals to work will constitute a strike only if there is an understanding between the workers to act ina concerted fashion against their employer. The strike must be a collective act, not a series of individual acts. When a worker is dismissed for being on a legal strike, the dismissal will be termed as unfair dismissal and the worker can sue the employer for damages and or reinstatement. A strike is legal if it is carried out in full compliance with the provisions of the statute.” A strike cannot be said to be unjustified unless the reasons for it are entirely perverse or unreasonable. The use of force or violence or acts of sabotage resorted to by employees during a strike should disentitle them to any wages and salaries during the strike period.”°The effect of an illegal strike on the demand of the employees to wages and salaries or compensation and an order for reinstatement coupled with their liability to punishment is based on the strike being justified. Mere illegality of the strike does not end the matter. It means that if the strike is illegal and at the same time unjustified, the employees have no claim to wages and salaries and must also be punished, and if it is justified then they can claim for wages and salaries. °* industrial and Labour Relations Act, Chapter 269. s.78, © Gwyneth Pitt, (2007) Employment Law, 6" Edition, Sweet and Maxwell, London. Pg 244 23CHAPTER THREE 3.0 THE LAW AND THE RIGHT TO STRIKE. 3.1 Introduction. This chapter looks at the provisions of Constitution of Zambia, the Industrial and Labour relations Act as the Zambian legislation that is concerned with industrial labour relations matters on the right of workers to strike. It will also look at other international law given as Conventions and Standards on the right to strike. In looking at these pieces of legislation the essay will try and find out whether the right of the workers to strike is provided for and to what extent do the Acts give this protection if any. A brief look at the common law provision is done as well. Strike action is regulated by the common law and statutory legislation. The Industrial and Labour Relations Act” is the law in this country that regulates industrial relations, coupled to this is the Industrial and Labour Relations Court which was established to hear matters connected with industrial relations. 3.2 The common law and strikes Under common law the contract of employment governed the relationship between the employee and the employer and it is through this relationship that statutory law works. At common law it is still true that if a reasonable notice to terminate is given, then the contract terminated lawfully, and it follows that the employee has no claim for wrongful dismissal. It does not matter whether the employer terminated for a bad or an arbitrary reason, or indeed no reason at all; nor does it matter for how long the employee has been working; nor his ” Laws v London Chronicles [2959] 1 W.LR 698 ”* Gerald Musonda Lumpa v Mamba Collieries Ltd (1988) Z.R 217 24record. Provided that the employer has given notice or pay in lieu of notice,” the employee has no claim. This is seen as the major defect of the common law position. As Gwyneth points out that;- “There is no free market in labour. Today the employment relationship is characterised by an enormous amount of statutory regulation aimed at achieving a proper balance between the interests of the parties. However, it remains the case that the central relationship between employer and worker is one of contract, on which statutory requirements operate.” In laws v London Chronicle® it was held that, wilful disobedience of a lawful and reasonable order shows disregard, a complete disregard of a condition essential to the contract of service, namely the condition that the servant must obey the proper orders of the master, and that unless he does so the relationship is, so to speak, struck at fundamentally. This relationship is the type of master and servant relationship in which common law principles remain important in understanding and interpreting the statutes. The most fundamental contractual obligations of employee (servant), is to be ready and willing to serve the employer (master). The action of going on strike is likely to be regarded as constituting a breach of the contract giving rise to the employer the right to dismiss the employee summarily, thus in Simmons y Hoover Ltd™, it was reaffirmed that an employer has the right to dismiss a striking employee. It may also entitle the employer to withhold the employees" salaries while they are on strike. Since labour contracts follow the rules of contract law in which the parties are assumed to enter freely into agreements on the basis of roughly equal bargaining power, today it is generally agreed that equal bargaining power rarely exists. In the employment world particularly the bargaining powers of the parties is unequal. The employer holds all the tramp ™ Raine Engineering v Baker (1972) ZR 152 ® Gwyneth Pitt (2007) Employment Law, 6” Edition, Sweet and Maxwell, London. Pg 1 ** [1959] 1 W.LR. 698 * [1977] ICR 61 25cards but except for a few exceptionally talented people, most of the workers need the employer than the employer is in need of them. The would be worker is rarely in a position to negotiate about terms now that the work environment has shrunk that people accept anything offered to them, in which case the only have a take it or leave it situation. This is where the employer exploits the worker and tramples on the worker’s rights because the employer is able to define the working conditions®® of the worker and further more he defines the way the worker does his job."* Yet employees can equalise the situation if they all act together, collectively as a group, individually they are weak."* It is difficult to have one voice and speak as a group fragmented unions are always in problems on who represents the workers best.*° 3.3 Constitutional provisions on the rights of workers. The Constitution®” states, in Article 14 (1) A person shall not be held in slavery or servitude and Article 14 (2) A person shall not be required to perform forced labour. These two provisions of the Act bar people from forced labour or any form of servitude. The wording of these two Articles is such that the Constitution simply forbids forced labour. This in essence gives the workers the right to protest if they see that the work environment is not conducive to their performing work quite satisfactory. If a workplace is not fit for workers to perform their work in a manner conducive enough they can sit down with the employer to discuss or failure to do so they can protest® through demonstrations and by way of strike. The freedom of assembly, association and to form or belong to a trade union is one protected * cassidy v Minister of Health [1951] 2KB 343 * Short vJ & W. Henderson [1946] 627 TLR 427 °° ZNUT has been weakened by splinter unions who broke away from it and formed their unions. ** SESTUZ, BETUZ and ZNUT are all teachers’ unions all representing the interests of teachers instead of one union similarly MUZ and NUMAW are two trade unions representing miners as well. *" Constitution of Zambia, Article 14 (1) and 14 (2) * Resident Doctors Association of Zambia and others v Attorney General (2003) Supreme Court No 12 of 2003. 26by the Constitution. The Constitution in Article 21 (1) states that;- “Except with his own consent a person shall not be hindered in the enjoyment of his freedom of assembly and association,... his right to assemble freely and associate with other persons and in particular to form or belong to a political party, trade union or other association of his interests." This Constitutional Article gives the right of every worker to belong to a union of his choice and in which he feels his interests would best be served. This Constitutional provision of the freedom to form or to belong to a trade union does not only lie in a member holding a membership card only, but it should go deeper than just holding a membership card, it should entail all, even the right to strike of a member but unfortunately the Constitution does not expressly state so. These two provisions of the Constitution are the most progressive pieces of legislation that are found on the workers’ rights. Despite this enactment of the law there are several cases were trade union recognition is almost impossible. ‘There are employers who do not want to have trade unions at their places of work thereby sparking protests and strikes by workers. The right to strike does not seem to be expressly protected in the Constitution, being a member who belongs to a union entails one to do that which a union is allowed to do and therefore if the constitution allows one to be a member of a union it is to be assumed that he is allowed to do those activities the union is allowed to do but unfortunately the Zambian Constitution does not expressly state so. The Directive Principles of state policy as given in Article 112 Gj) state that;- “the state shall recog the right of every person to fair labour practices and safe and healthy working conditions."** of Zambia, Article 21 (1) ‘of Zambia, Article 112 (j). 27The Constitution states further in the Directive Principles of State Policy in Part IX of the Constitution in Article 111, that;- “The Directive Principles of State Policy set out in this part shall not be justiciable and shall not thereby,...be legally enforceable in any court, tribunal or administrative institutions or entity. Strikes are basically as a result of unfair labour practices and here the constitution states that, these cannot be litigated on if one wants to rely on the Constitution which is supposed to be the supreme law of the land. It can then safely be said that the right to strike in Zambia is not protected by the Constitution unlike other countries like South Africa where it is protected by the Constitution.°> However there could be other pieces of legislation that gives the right to strike per se legal protection. The Industrial and Labour Relations Act, Chapter 269 of the laws of Zambia does provide for strikes, 3.4 The Industrial and Labour Relations Act and the right to strike. It was said at one time that;- “Men who have no property except their manual skill and strength ought to be allowed to confer together, if they think fit, for the purpose of determining at what rate they will sell their property.” This has seen legislation intervening on behalf of the weaker party to prevent undue exploitation. Legislation has intervened in that it provides for the regulation of industrial relations. The rights of employees in respect of trade union membership and its activities are spelt out in Part 11 of the Industrial and labour Relations Act. In Part 11 it states in section 5 (1) notwithstanding anything to the contrary in any written law, and subject to this Act-"* * constitution of Zambia, Article 111. * south African Constitution, Article 23 (1) and (2), ** Per Robert Peel in the debates on the combination Acts 1824 and 1825 of the United Kingdom. 28(a) Every employee shall as between himself and his employer, have the following rights (the right to take part in the formation of a trade union; (ii) _ the right to be a member of any trade union within the sector, trade, undertaking, establishment in which that employee is engaged. (b) Every eligible employee shall as between himself and the employer, have the following rights; () the right, at any appropriate time, to take part in the activities of the trade union including any activities as, or with a view becoming a member, an officer of a trade union and the right 0 seek election or accept appointment and, if elected or appointed, to hold office as such officer; and (ii) the right to absent himself from work without leave of the employer for the sole purpose of taking part in the activities of a the trade union, including any activities as or with a view to becoming an officer of a trade union, and the leave or absence though applied for was unreasonably withheld by the employer. The above provisions compliment those of the Constitution which are given in Article 21(1) on the rights of workers to the freedom of assembly and association and for the worker to form or belong to a trade union of his choice. In fact section 5 (2) of the Industrial and Labour Relations Act prohibits the termination of employment on the grounds of trade union activity or membership.® The Act further gives employees the right to strike and also bars members of those excepted professions like police service, doctors, defence force and other essential workers from striking.” * industrial and Labour Relations Act Cap. 269 of the laws of Zambia, s. 5 (1) (a) (b) * industrial and Labour Relations Act Cap 269, s. 5 (2) ** industrial and Labour Relations Act Cap 269, s. 5 29In Part IX of the Industrial and Labour Relation Act are the provisions for settlement of disputes which also provide for strike action. Section 75 states that a collective dispute shall exist between an employer or an organisation representing employers on one hand and the organisation representing 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 date of receipt of the claims or demands, failed to answer the claims or demand; or (c) both parties to the dispute have held at least one meeting with a view to negotiating a settlement of the dispute, but failed to reach settlement on all or some of the matters in issue between them. The failure of the employer to respond to the demands of the workers within the stated period as provided by the Act in section 75 (a) leads the workers to start agitating for strike action. This then leads to a dispute between the employees and the employer, and when a dispute has arisen in such circumstance as stated in the Act in the above provisions, there are certain steps required to be taken as provided by the Act.’* The Act requires that the dispute be referred to a conciliator as provided for in section 76,”° and the conciliator has to be appointed by the parties to the dispute or alternatively a board of conciliators composed of appointees by the employer or organisation representing the employer, appointees by the employees or an organisation representing employees. The conciliators role is to work with the parties to a dispute and see how the parties work through the dispute. The workers *" Industrial and Labour Rel * Ibid Industrial and Labour Relations Act, s. 76. ions Act Cap 269, s. 75, s.75 (a), (b) and (c). 30however have always shunned the conciliation process because answers are not normally found and parties have tended to stick to their positions and refused to be reconciled.’ Section 78 (1) requires that where a settlement has failed the dispute should be referred to the Court or the union conducts a strike ballot. The section states that, where a conciliator 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.!*" (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." The above provisions of the Act try to regulate the industrial action in such a way that if anything is done outside these provisions then it would be considered as unlawful and therefore not protected by law. The workers are of the view that that the Ministry of Labour and Social Security is poorly funded and therefore lacks capacity to ensure adherence to this requirement of the law in effectively conducting a strike ballot.'? ‘The Act is further reinforced by the provisions in section 78 (4) where it is provided that the strikes or lockout may, subject to section seventy-five commence ten days following the decision to do so and shall continue for a period of fourteen days after which the dispute shall if it remains unresolved, be referred to the court. '™* The remit of the Act here affords workers to strike lawfully after ten days following a decision to do so and in accordance with its provisions. The ten days also gives the employer time to find a solution to the problem. +" interview: Steven Mumbi, Director Organisation- ZCTU 20" November 2009. *** Industrial and Labour Relations Act, s. 78 (1), ** Industrial and Labour Relations Act, s. 78 (3). +95 interview: Steven Mumbi-Director of Organisation ZCTU 20" November 2009. 4©* Industrial and Labour Relations Act, s. 78 (4). 31Section 78 (5) provides for the intervention of the minister of labour under subsection (4) before or after the strike begins in order for him to try and settle the dispute between the workers and the employer. "> The minister must act before the strike starts this is meant for the minister to forestall the strike action by the workers. The minister can, after consultations with the Tripartite Consultative Labour Council, in fact apply to the Court for a declaration that the continuance of the strike or lockout is not in the public interest,!°° especially strikes like those of health workers can be declared as not being in the best interest of the nation as they compromise the health of the nation. The essence of the section is the protection of public interest. In practice however the procedural requirements are such that it is regarded as virtually impossible to comply with the same to ensure such action is official, and therefore legal. Most unions resort to strikes without bothering to give notice of their intention to go on strike and the unions are mostly powerless to do anything about the situation as they feel the law on strikes is quite laborious and do not ultimately make the employees exercise the right to strike.'°’ The Industrial and Labour Relations Act however prohibits workers from taking part in sympathy strikes as it states clearly that for one to get involved in such a dispute the worker must be a party to that dispute.'"* The Act further bars workers and their trade unions from taking part in strikes that have not been authorised by a strike ballot.' But this is often over looked by the unions for the Ministry of Labour lack of capacity. The Act however states in section 101 (2) No employee, trade union or other person shall take part ina strike which- (a) has not been authorise by a strike ballot taken in the manner provided by the ** Industrial and Labour Relations Act, s. 78 (5). Industrial and Labour Relations Act, s. 78 (6). Interview: Steven Mumbi- ZCTU Director Organisation 20" November 2009. * industrial and Labour Relations Act, s. 101 (1). °° industrial and labour Relations Act, s. 102 (2) (a) and (b). 32Constitution of a trade union under this Act; (b) is not in contemplation or furtherance of a collective dispute to which the employee or trade union is a party. The above provisions show that the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia is for lawful strikes and not unlawful ones which are not protected by the constitutions of trade unions and the Industrial and labour Relations Act and the Zambian Constitution, However the provisions of the Acts make it practically impossible for the union members to go on lawful strikes in Zambia because of the ballot requirement. The Unions are required to conduct a ballot for them to go on strike in accordance with s.78 as all unlawful strikes are not given protection by the law since they are illegal and the law cannot be seen to be promoting any illegality. 3.5 The International Standards and the right to strike. The freedom to form and belong to associations, whether they be political parties is regarded as an aspect of human rights, and is found stated as a right in principal treaties on the subject: The Universal Declaration of Human Rights 1948,'!° (Article 20), the International Covenant on Civil and Political Rights, 1966. Additionally it is given in Europe in the European Convention on Human Rights in Article 11 and in the African Charter in Article 2. Therefore on the international law, the International Labour Organisation has the right to strike as an integral to uphold the Human Rights and is guaranteed by the following Conventions; The ILO’s Freedom of Association Protection of the Right to Organise Convention 1948 (No 87)'"' and the Right to Organise and Collective Bargaining Convention 1949 (No 98).!!? ‘The United Nations Universal Declaration of Human Rights 1948 International Labour Organization Convention No. 87 of 1948, + international Labour Organization Convention No. 98 of 1949 33