Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the information provided in the Government’s report received in September 2008, including copies of the Employment Act, Chapter 236 of the Laws of Zambia, as amended by Act No. 15 of 1997, which were supplied further to the Committee’s previous comment.

1. Article 2, paragraphs 4–6, of the Convention. The Committee notes that section 2(1) of the Employment Act excludes members of the Zambia police force and members of the Zambia prison services from its scope. Furthermore, section 2 of the Industrial Relations Act, 1993, excludes members of the Zambia Security Intelligence Service and registrars of the courts. The Committee recalls that, by virtue of Article 2(6), each member is required to list in its first report on the application of the Convention any categories which may have been excluded in pursuance of Article 2(4) and (5). In its first report received in August 1992, as clarified by its subsequent report in January 1994, the Government confirmed that employees of an employer which is adjudged or declared bankrupt and employees of a company which is being wound up would be excluded from the application of the Convention. The Government is thus requested to clarify how it ensures the application of the Convention to all employees and to supply copies of any applicable legislation.

2. Articles 4 and 5. The Committee notes from the Government’s report that section 26A of the Employment Act gives effect to Article 4. Section 26A provides that “an employer shall not terminate the service of an employee on grounds related to the conduct or performance of an employee without affording the employee an opportunity to be heard on the charges laid against him”. The Committee observes that this provision, on a worker’s opportunity to defend himself while giving effect to Article 7, does not prohibit the termination of an employee without a valid reason as is required by Articles 4 and 5. The Committee asks the Government to amend the legislation to give full effect to Articles 4 and 5 so that all workers within the scope of the Convention are not terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.

3. Article 5, paragraph (d). The Government again indicates in its report that the issue of whether family responsibilities of the employee shall not constitute a valid reason for termination of employment has been the subject of discussions amongst the stakeholders for some time now. Nevertheless, no consensus was reached to introduce a specific amendment in this regard. The Government indicates, however, that although no test cases have been brought following the amendment of section 108 of the Industrial and Labour Relations Act, in which the “social status of the employee” was replaced by “status of employee”, there may be scope for a wider interpretation of “status of the employee” to include family responsibilities. The Committee would appreciate being kept informed of the progress of the tripartite discussions in this regard, and receiving a copy of any rulings on whether the “status of the employee” under section 108 of the Industrial and Labour Relations Act, was extended such that the family responsibilities of the employee do not constitute a valid ground for termination.

4. Article 9, paragraph 3. The Government is invited to clarify in its next report whether the proper officers are empowered in cases of appeal to determine whether the termination was indeed for the reason of operational requirements of the undertaking, establishment or service.

5. Article 13, paragraph 1(b). The Committee notes that section 26B(2)(b)(i) of the Employment Act provides that whenever an employer intends to terminate a contract of employment for reasons of redundancy, the employer shall afford the representatives of the employee an opportunity for consultations on the measures to be taken to minimize the terminations and the adverse effects on the employees. The Committee points out that Article 13(1)(b) also requires consultation on measures to be taken to avert the terminations. The Committee asks the Government to take measures to give full effect to Article 13(1)(b) of the Convention in order to give the workers’ representatives concerned an opportunity for consultation on measures to be taken to avert or to minimize the terminations.

6. Part V of the report form. The Government is requested to provide general information on the manner in which the Employment Act is applied in practice, including, for example, available statistics on the activities of the bodies of appeal (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided), and on the number of terminations for economic or similar reasons.