By Felicity Kayumba Kalunga
On the 4th of February 2020, the Acting Labour Commissioner Mukamasole M. Kasanda communicated her decision to approve the termination of the recognition agreement between the University of Zambia (UNZA) Management and the University of Zambia Lecturers’ and Researchers’ Union (UNZALARU) following management’s application. The Acting Labour Commissioner cited Section 65A of the Industrial and Labour Relations Act (“the Act”) as amended by Act No. 8 of 2008 as the empowering legal provision.
A quick search on online law databases seems to suggest that the provisions of Section 65A urgently need to be subjected to judicial interpretation. The UNZA example therefore provides a great opportunity to examine the provisions of Section 65A and their legal implications on the employees’ right to freedom of assembly and association protected by Article 21 of the Constitution of Zambia as read together with the Act.Notwithstanding the apparent shortage of judicial precedent on the interpretation of Section 65A of the Act, there is sufficient case law on trade unions, recognition agreements vis a vis the constitutional right to freedom of association and assembly from which inferences for assessing the legality of Section 65A of the Act may be drawn.
Section 65A of the Act empowers the Labour Commissioner to approve the termination of a recognition agreement on the application of a party to the agreement after hearing both parties. The section provides that:
(1) A party to a recognition agreement may apply to the commissioner for the termination of the recognition agreement stating the reasons therefor.
(2) The Commissioner shall, after the Commissioner receives an application under subsection (1), inform the other party to the recognition agreement in resect of which the application is made and set a date on which the application shall be heard.
(3) The Commissioner may, where the Commissioner hears the parties pursuant to subsection (2) –
a) Approve the termination of the agreement; or
b) Reject the application and give the applicant the reasons therefore.
The Section does not state the exact grounds upon which a party may move the Commissioner to terminate the recognition agreement nor does it say what happens following this termination of the recognition agreement. One could therefore infer on the consequences of this termination from a purposive reading of the Act as a whole.
Recognition agreements are provided for under part VI of the Act. Section 64(1), (2) and (5) are worth quoting extensively to demonstrate the purpose and function of recognition agreements:
(1) Not later than three months from the date of registration under section sixty-three a registered employer and a trade union, if any, to which the employees belong, shall enter into a recognition agreement.
(2) Not later than three months from the date of issue of a certificate of registration, an employers’ organisation and trade union to which the employees belong, shall enter into a recognition agreement.
(5) Where the parties referred to in subsection (1) or (2), fail to conclude a recognition agreement under this Part, the failure shall be deemed to be a collective dispute and Part IX shall apply, with the necessary modifications.
Section 63 mandates an employer with a minimum of 25 unionised employees, or a less number that may be prescribed by the Minister, to register themselves with the Labour Commissioner. The provisions of Section 64 are couched in mandatory terms. The conditions that ought to be fulfilled for parties to enter into a recognition are set out in subsections (1) and (2) of Section 64, namely, an employer employing a minimum of 25 unionised employees or a registered trade union with a minimum of 25 employees working for the relevant employer.
This interpretation is consistent with the decision of the High Court (IRC Division) in the case of Sumaili Mbewe v Lumwana Company Limited (IRC/SL/03/2018). This case involved a complaint against the employer (LumwanaCompany Limited) relating to its refusal to enter into a recognition agreement with the complainant (Consolidated Miners and Allied Workers Union of Zambia), a duly registered trade union. The Union declared a collective dispute and the matter was referred to conciliation where the conciliator found in favour of the Union.
First, the employer argued that it could not enter into a collective agreement with the union on the grounds that the union did not have the requisite number of members employed by the Respondent.
Secondly, the employer argued that some of the union members did not belong to the mining industry and that some union executives were not eligible for membership. After considering the provisions of sections 63 and 64 of the Act and the evidence presented before it, the court found that there was no justification for the employer to refuse to enter into a recognition agreement with the trade union. The court further held that the refusal amounted to infringement of the employees’ right to freedom of association and belonging to a trade union of their choice which rights are protected by Section 5 of the Act and Article 21 of the Constitution of Zambia.
From this discussion, it is clear that the grounds upon which an employer may refuse to enter into a recognition agreement with a trade union are strictly prescribed by law and is not left to the unbridled discretion of anyone. Any other interpretationwould be contrary to the empowering legislation and the Constitution. Based on this interpretation, it follows that in the absence of substantive grounds for termination of a recognition agreement, section 65A should be interpreted in a manner that promotes the purpose of the Act as it relates to the obligation to enter into a recognition union as stipulated in Section 64 of the Act.
Further, the wider purpose of the Act is to give effect to the right to freedom of association and assembly protected under Article 21 of the Constitution of Zambia. This is reflected in the rights, obligations and procedural guidelines stipulated in the Act, which in turn give effect to the limitation of the right provided by Article 21(2) of the Constitution. The relevant provisions of Article 21 as they relate to trade unions provide that:
(1) Except with his own consent a person shall not be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to any political party, trade union or other association for the protection of his interests.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that it is shown that the law in question makes provision:
(b) that is reasonably required for the purpose of protecting the rights or freedoms of other persons;
(d) for the registration of political parties or trade unions in a register established by or under a law and for imposing reasonable conditions relating to the procedure for entry on such a register including conditions as to the minimum number of persons necessary to constitute a trade union qualified for registration;
and except so far as that provision or, the thing done under the authority thereof as the case may be, is shown not to be reasonably justifiable in a democratic society.
In order to be valid, the limitation of the right as provided by the Act must pass the constitutional test for limitation of rightsstipulated in the above cited Article 21(2) of the Constitution of Zambia. Examples of limitations in the Act based on Article 21(2) (d) are provisions relating to the power given to the Labour Commissioner to regulate the registration of trade unions. For instance, Section 12 of the Act empowers the Labour Commissioner to cancel the registration of a registered trade union for the following reasons:
a) at the request of a trade union which has resolved to be dissolved and an application has been made in the prescribed form;
b) if the certificate of registration has been obtained by fraud or mistake;
c) if the trade union has wilfully violated the provisions of this Act; or
d) if the trade union is dormant.
In all these instances, the Commissioner is mandated by law to demonstrate that that the exercise of the power is supported by the grounds listed in the Act; and in every instance, show that the power has been exercised in a manner that promotes the ideals of a democratic society. These ideals include strictest adherence to upholding fundamental rights and freedoms of the individual.
An excellent example of what would suffice as a limitation of the right based on Article 21(2) (b) of the Constitution is Section 6 of the Act which states that “every employee shall promote, maintain and co-operate with the management of the undertaking in which the employee is employed in the interest of industrial peace, greater efficiency and productivity.” This is the section that UNZA management claims to have used to invoke the powers of the Labour Commissioner in terms of Section 65A of the Act.
In interpreting Section 6 of the Act the Commissioner ought to have satisfied herself that the facts presented had been proven to the very high standard such as the one set by Section 12 (c) of the Act for instance, that the trade union haswilfully violated the provisions of the Act. This standard requires the Commissioner to prove that the Union not only violated provisions of the Act but did so WILFULLY. In any event, the Commissioner ought to show that her actions were reasonably required for purposes of protecting the rights and freedoms of the employer and are “reasonably justifiable in a democratic society.”
The interpretation of constitutional limitations has long been settled by well-founded precedent which established the following standards: Firstly, that the limitation on exercising a fundamental human right must be provided by law. Secondly, that law and exercise of authority under it should be reasonably required to promote a legitimate end or reasonably necessary, which fact must be proven by the state when challenged. This position was stated in Patel v Attorney-General (1968) Z.R 99. Thirdly, the limitation must be reasonably justifiable in a democratic society. Lastly, the limitation should not deny the right but merely regulate it.
These tests were aptly re-stated in the leading case of Christine Mulundika and 7 Others v The Attorney General(SCZ Appeal No. 25 of 1995). In that case, the Supreme Court established, amongst other principles, that “fundamental constitutional rights should not be denied to a citizen by any law which permits arbitrariness and is couched in wide and broad terms.” The Supreme Court decided that the provisions of the impugned law in that case, the Public Order Act, which gave the regulating authority power to deny rights and did not provide effective control over the exercise of that power, were unjustifiable in a democratic state.
Applying these settled principles to the interpretation of Section 65A of the Industrial and Labour Relations Act clearly shows that the authority given to the Labour Commissioner is unconstitutional. This is because the Section purports to give arbitrary authority to the Labour Commissioner to approve termination of recognition agreements with the effect of denying workers their right to form or belong to a trade union for the protection of their collective interest in the employment relationship.
The Section is couched in very wide terms and without effective controls over the exercise of the power. Such controls should have been in the provision of grounds of termination, for instance, as is the case under Section 64 which provides for the obligation to enter into recognition agreements or Section 12 which provides for the power to cancel registration of a trade union. To the contrary, Section 65A does not state any grounds for termination nor does it provide procedural safeguards and/or ascertainable consequences that follow the exercise of authority. It therefore would not pass the constitutional test of legality of a law that seeks to limit the enjoyment of a right.
Given that section 65A does not state the consequences of termination of a recognition agreement, UNZALARU has every right to seek legal redress which could include the following: Moving the process to enter into a fresh recognition agreement with UNZA Management pursuant to Section 64, which is mandatory. The other option is to commence court process to challenge the legality of decision of the Labour Commissioner. The decision could also be challenged on grounds of procedural impropriety. As argued by political analyst Sishuwa Sishuwa in a most recent article entitled “The real reason why the government wants UNZALARU out,” the Labour Commissioner appears to have exercised this power without due regard to the procedure outlined in the parties’ recognition agreement. UNZALARU could also challenge the constitutionality of Section 65A of the Act. The case raises very compelling grounds for overturning the Labour Commissioner’s decision.
The author is a lawyer and lecturer in law at the University of Zambia.
