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Davies Ndumiso Sibanda, Labour Matters
COLLECTIVE job action remains misunderstood by many workers and trade union leaders resulting in many workers losing their jobs as a result of participating in illegal collective job action.

Many trade unions have advised workers that section 65 of the Constitution gives them the absolute right to engage in collective job action without following procedures set out in section 104 of the Labour Act chapter 28.01.

In my opinion, this wrong as procedure set out in section 104 of the Labour Act read with section 8 of Statutory Instrument 217 of 2003 and section 93 of the Labour Act remain valid as it does not offend the constitution.

The starting point is that it remains illegal to engage in collective job action over disputes of right and a dispute of right relates to those rights given in the CBA for the industry, given in one’s contract of employment, given in conditions of service, contained in policies and procedures and those that are a result of custom and practice. Further, not all rights are expressly given as many others are implied meaning that it is not easy for workers to have a dispute related to conditions of service, which is not a right issue.

The second major point is that the law does not say workers can go on collective job action after giving 14 days’ notice but that collective job action can only be legal after satisfying provisions of section 104(2(b) whereby the labour officer has to issue a certificate of no settlement and if he or she refers the matter to arbitration then a subsequent collective job action related to the matter is illegal. In fact, the moment workers get to conciliation when they are already on collective job action, they will be acting illegally and will be at the mercy of the employer even if a settlement is reached at conciliation.

The certificate of settlement would merely stop the collective job action but the employer reserves the right to discipline all who participated in the illegal collective job action. This position was confirmed by the Supreme Court in the matter ZISCO v T. Dube and 53 others judgment number SC107/97.

Workers wrongly think that they cannot be disciplined for engaging in collective job action without a disposal order. That again is wrong. The employer can use the code of conduct and as such is not paralysed to discipline those who engaged in illegal job action, particularly those using the National Code of Conduct (SI 15 of 2006) which does not make it compulsory to have worker representatives as part of the disciplinary authority. Also see the matter Lancaster Steel v Zvidzai and others judgment SC 29/95, where the workers were dismissed for engaging in illegal collective job action without getting a disposal order.

The argument that some codes of conduct have no offence related to collective job action does not help as employers can easily use the omnibus clause (Any act inconsistent with implied conditions of one’s contract.) even if it has not been inked into the contract. Again the Supreme Court has confirmed this position.

In my opinion workers who go as far as disposal orders take a huge risk given that in their application for disposal orders, most employers pray for declaration of the collective job action as illegal and once the disposal order states the collective job action was illegal then all those that participated become sitting ducks as the employer can then decide those he wants to dismiss and keep from among the workers.

The disciplinary hearings are the easiest to conduct for the employer as it will be common cause that the collective job action was illegal. Further, workers are not entitled to payment for the period they are on collective job action, a thing that can leave many workers worse off.

In conclusion there are many other technical matters related to collective job action which must be fully understood before workers embark on a collective job action as reckless actions can cause untold harm to workers and their families more so in this environment where jobs are hard to come by. Further, workers have to wait for the harmonisation of labour law, hopefully some of the laws will be loosened to allow for easy going on collective job action.