COLLECTIVE LABOUR

RELATIONS

1.Collective Bargaining
2. Legal framework
 7.1Collective bargaining
is a process of negotiations between
employers and the representatives of a unit
of employees aimed at reaching
agreements which regulate working
conditions.
The result of this collective bargaining is a
Collective Agreement
 Collective agreements usually set out
wage scales, working hours, training,
health and safety, overtime, grievance
mechanisms and rights to participate in
workplace or company affairs.
 cont-
The union may negotiate with a single
employer (who is typically representing a
company's shareholders) or may negotiate
with a group of businesses, depending on
the country, to reach an industry wide
agreement.
 A collective agreement functions as a
labour contract between an employer and
one or more unions.
 cont-
Typically, the employees are represented by a
union. Collective bargaining actually begins
with joining a union, agreeing to abide by the
rules of the union, and electing union
representatives.
 In general, experienced people from the union
will assist the employees with putting together
a draft of a contract, and will help them present
their desires to the company.
Numerous meetings between representatives
of employer and employees will be held until
the two can agree on a contract.
 cont-
As the contract is being negotiated, general
employees also have input on it, through their
union officers.
Thus, the agreement reflects the combined
desires of all the employees, along with limitations
that the employer wishes to see put in place.
The result is a powerful document which usually
reflects cooperative effort.
In some cases, however, the union or the
employer may resort to antagonistic tactics such
as striking or creating a lockout, in order to push
the agreement through.
 7.2 LEGAL FRAMEWORK SUPPORT FOR COLLECTIVE BARGAINING

 The right to collectively bargain is recognized through

international human rights conventions. Article 23 of the
Universal Declaration of Human Rights identifies the
ability to organize trade unions as a fundamental human
right.
 Article2(a) of the International Labour Organization's
Declaration on Fundamental Principles and Rights at
Work defines the "freedom of association and the
effective recognition of the right to collective bargaining"
as an essential right of workers.
 In June 2007 the Supreme Court of Canada extensively
reviewed the rationale for regarding collective bargaining
as a human right. In the case of
Facilities Subsector Bargaining Association v. British Colu
mbia
, the Court made the following observations:
 cont-
 The right to bargain collectively with an employer
enhances the human dignity, liberty and autonomy of
workers by giving them the opportunity to influence the
establishment of workplace rules and thereby gain some
control over a major aspect of their lives, namely their
work.
 Collective bargaining is not simply an instrument for
pursuing external ends rather [it] is intrinsically valuable
as an experience in self-government.
 Collective bargaining permits workers to achieve a form
of workplace democracy and to ensure the rule of law in
the workplace.
 Workers gain a voice to influence the establishment of
rules that control a major aspect of their lives.
 Wage setting in Zambia is conducted largely through
7.3 Wage Setting and Collective Bargaining

the process of collective bargaining under the

auspices of the Industrial and Labour Relations Act.
 Every employer employing not less than twenty five
(25) employees and the trade union to which his
employees belong are required to enter into a
recognition agreement.
 Under this agreement, the employer does not simply
acknowledge the existence of such trade union, but
more importantly undertakes to accept the Union as
a bargaining partner.
 The agreement is a pre-requisite for regulating the
collective agreement.
 7.4 Incorporation of Collective
Terms

There are two theories regarding incorporation of

collective terms into individual contracts of employment
.
 The first one is known as the concept of automatic
incorporation. Under this concept, it is assumed that the
collective terms are incorporated automatically into
individual contracts of employees in the enterprise or
industry in which the collective agreement is in effect as
soon as the agreement becomes legally binding.
 The other theory is that there is no automatic
incorporation of collective terms but that parties to the
contract of employment must consciously incorporate
the said terms in their contracts of employment.
 7.5 What is the legal Status
Collective Agreement?
 The legal status of collective agreements in Zambia is that if the
agreement is procedurally correct and approved by the Minister, it
constitutes a legally binding contract between the parties.
 Before its repeal, the Industrial Labour Relations Act made
provision for the legal enforceability of a collective agreement by
providing that a duly gazette collective agreement was binding on
the parties for the period during which it was in existence.
 The 1997 Act did away with the need to gazette collective
agreements negotiated and once concluded by joint councils.
However every collective agreement that has been approved by
the Minister is binding on the parties.
 In the case of Kamayoyo v. Contract Haulage the Supreme
Court held that a collective agreement is a legally binding
contract between the parties and that anything done outside
these contractual agreements are of no legal effect.
 cont-
. In the case of Pamodzi Hotel V. Godwin
Mbewe a collective agreement was
incorporated into the terms of the
employment that bound both parties.
 The agreement provided a penalty of
dismissal after warning for a first breach for
offences related to drunkenness and
summary dismissal without any need for a
previous warning for drunkenness.
On allegation that the respondent was
drunk on duty, he was dismissed.
 cont-
He sought a declaration in the High Court that the
dismissal was null and void.
Evidence was adduced at the trial that he was
found to be drunk by security guards and was
seen by the hotel manager, who from the smell of
his breath and appearance , found that he was not
his usual self and concluded that he was drunk.
The court found that under the collective
agreement , dismissal could only occur after a final
written warning for a previous breach and as no
warning had been given, summary dismissal was
unlawful.
 Cont-

The appellant appealed to the Supreme Court.

The Supreme Court held ,inter alia that, where
there is a collective agreement which has been
properly published in the Gazette and which
contains a disciplinary code providing for a certain
procedure to be followed before the dismissal,
there is statutory support for such procedure and
a breach thereof might as well result in a
declaration that a dismissal was null and void.
.
 Contents of a collective
agreement
In order to be valid, every collective
agreement must
Be in writing and signed by the bargaining unit
contain the following mandatory clauses
referred to as statutory clauses, namely, the
date on which the agreement is to come into
effect and the period for which it is to remain
in force ; and the methods , procedures and
rules for reviewing , amending or replacing or
terminating the collective agreements.(section
68 ILR ACT)
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The Minister will not direct the registration
of a collective agreement until he is
satisfied that the agreement contains the
mandatory statutory clauses and that the
clauses do not contain anything that is
contrary to any written Law.
Parties to a collective agreement are at
liberty to vary provisions of the collective
agreement as long as the provisions for
lodgment of collective agreements with the
Commissioner for approval by the Minister
are followed.
 Commencing of Negotiations

It is the duty of the bargaining unit to

commence negotiations for the purpose of
concluding a new collective agreement at
least three months before the expiry of the
current collective agreement.
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If the bargaining unit is unable to conclude

a new collective agreement before the
expiration of the existing collective
agreement or if the bargaining unit for any
other reason desires to extend the period
for which the collective agreement is to
remain in force, it may apply to the
minister for an extension of the collective
agreement.
This provided for Under Sections ,Section
68,Section 69 (1) (a)(b) of the ILR Act
 cont-
 The application for extension must be made not less than
thirty days and not more than sixty days before the expiration
of the existing collective agreement.
 The minister may however consider an application made at
any time before the expiration of the existing collective
agreement.
 If the bargaining unit fails or neglects, without reasonable
cause or excuse , to commence negotiations or conclude the
collective agreement within the stipulated time or to notify
the Commissioner in writing within fifteen days after
commencement of the negotiations of the date on which the
negotiations were commenced , every member of the
bargaining unit is liable upon conviction to a fine and may
also be prohibited from holding a position in the bargaining
unit for a period not exceeding three months. Section 69(2)
of the ILR Act .
 7.6 INDUSTRIAL ACTION (STRIKE
ACTION)
 A strike is defined as the cessation of work or withdrawal of
labour contrary to the terms and conditions of a contract of
a contract by a body of persons employed in any
undertaking acting in combination or a concerted refusal
under a common understanding of any number of persons
who are so employed to continue work or provide their
labor. Sect 3(1) ILR Act
 The Act does not define a ‘go –slow’. However a ‘go-slow
can be defined as an action by employees whereby they do
not completely withdraw their labour but deliberately work
according to rule.
 They refuse to put in extra hours but restrict themselves to
the contractual hours.
 The go-slow is popular among essential workers who are
prohibited to go on strike .
 7.7 What is a lockout?
.Section 3 of the Industrial and Labor
Relations Act defines a ‘lockout’ as the
closing down of a place of employment or
the suspension of work, or the refusal by an
employer to continue to employ any
number of persons employed by him, as a
result of a dispute , and done with a view of
compelling persons , or to aid another
employer in compelling those persons or to
aid him, to accept terms or conditions
affecting employment.
 7.8 Who is an essential worker and what is an essential
services certificate?

 The Industrial Labour Relations Act defines essential service as

any service relating to the generation , supply and distribution
of electricity; any hospital or medical service; any service
relating to the supply and distribution of water; any sewerage
service; any fire brigade ; any service for the maintenance of
safe and sound conditions in a mine of underground drainage,
shafts and shaft installation or machinery and plant; and such
other service which the Minister may, in consultation with the
Tripartite Consultative Labour. Section 107 (10)
 Provides that every employee engaged in essential service
shall be issued with an essential certificate confirming that he
or she is an Essential Service Employee. Section 107 (1)
 The Employee should be informed of the content of the
certificate and provision of the law
 7.9THE RIGHT TO STRIKE
 Strikes and indeed lockouts are both recognized as
legitimate actions that may be undertaken by workers
or employees in furtherance of their dispute.
 However, such actions become lawful only if they are
resorted to after due process and only if they do not
involve “essential services” as previously defined.
 It is important to note that the right to strike is strictly
limited to parties to the dispute.
 This means that sympathy strikes over political
matters are not legitimate under the law.
 It is also important to note that no strike may take
place before the Industrial Relations Court has given a
decision.
 7.10 What is the position of Government
on illegal strikes?
 Illegal strikes has negative effects in the nation.
 In 1993 ,the then Minister of Labor and Social Security, Dr
Ludwig Sondashi, while presenting the Industrial Relations Bill
to the National Assembly for the Second Reading, had the
following to say on the importance of a good industrial
climate:
“a good industrial climate is of paramount importance
both from the economic and social points of view. Poor
industrial relations do not only have an unsettling
effect on the industrial climate, but are a sure recipe
for strikes which in turn adversely affect production by
cumulative man-days lost, raise production costs ,
contributing to inflation and scare away prospective
investors.”
Parliamentary Debates ,15 January -18 March
1993,Column 1821.
 7.11Procedure to declare a
Dispute
This is provided under section 75 of IRL Act.
 7.12 The procedure for a lawful
strike
Section 76 to 78 provides for the procedure to
be followed when a collective dispute has
arisen and neither party to the dispute is
engaged in an essential service.
The dispute is resolved through conciliation or
board of conciliators.
They party to dispute will inform the
Commissioner within seven who should inform
the Minister to appoint the conciliator
Within seven days of being appointed
concilliator to call the parties discuss the
matter in dispute
cont-
If any party to a dispute does attend the
meeting called the conciliator shall be
guilty of an offence .
 In the case of a dispute arising between
parties, either of whom is engaged in an
essential service , the parties cannot resort
to conciliation but have to refer the
dispute to the Industrial Relations Court for
resolution. 76(6) IRL Act
If the dispute is resolved by the conciliator
may approve the dispute refer the
memorandum77IRL Act
 Failure to settle dispute refer matter court
cont-
When a dispute is referred to the court by
the essential workers the decision of the
court shall be binding unless appealled in
the supreme court.
The strike take unless the simple majority
agree to do so
The strike will not commence until after
ten(10) days after voting in favour by the
simple majority.
The strike may indefinite as long as the
dispute is unresolved
Minister may to intervine before the
Cont-
 After consultation with the Tripartite Consultative Labour
Council, the Minister may apply to the Court for a
declaration that the continuation of the strike or lockout is
not in the public interest.
 Where such an application is made, the Court must make
a decision within seven days of the application for
declaration.
 Where the Court issues a declaration in favour of the
application, the strike or lockout must cease and dispute is
deemed to have been referred to the Court as if the
conciliator or Board of Conciliation have failed to settle a
collective dispute the Court has power to decide whether
the workers on a legal strike should be eligible for
payment of wages during the period of strike.
cont
 The court shall make decision within
seven days and if the decision is in favour
the strike shall cease.
The court shall have power to decide if the
workers on strike shall be paid the wages .
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An employee who goes on an illegal strike
necessarily terminates his contract of
employment. under the common law which
happens, when the employer has the following
remedies open to him.
He may treat the employee as having
repudiated the contract of employment and
hence terminated it, or he may sue the
employee for damages for breach of and retain
him employment.
 He may also withhold payment for the number
of days that the employee was absent.
7.13 What are the implication of worker involved
in an illegal strike?
 The implication of section 78 (ii) in the Industrial and Labour
Relations Act are that any employee involved in an illegal strike will
be in breach of his contract of employment.
 Even under the common law, breach of a collective agreement by
either party has the same effect as the breach of any other contract.
 Breach includes unilateral alteration of the provisions of the
collective agreement.
 Where a breach involves non – implementation of the existing rights
under the collective agreement, a dispute of rights arises while a
dispute involving the introduction of new terms which the parties fail
to agree upon results in a dispute of interests.
 The central question in as far as industrial action is concerned, is
what is the legal effect of industrial action on the part of the
employee who takes who takes part in industrial action in breach of
his contract of employment , where such contract has an intrinsic
implied term that he shall be able and willing to work? What
remedies does an employer have in such a case?