A collective job action, commonly referred to as a ‘strike’ is a concerted industrial action resulting in cessation of work calculated to persuade or cause a party to an employment relationship to accede to a demand related to employment and it includes a strike, work boycott, lock out, sit in or sit out or any other concerted action. At common law strikes constitute a breach of contract entitling employers to summarily terminate the contract but now strike is seen as a necessary adjunct to collective bargaining and is now constitutionally entrenched. However, like all rights, the right to strike is not absolute, it is limited in the interests of other values and interests.
Section 65(3) of the Constitution of Zimbabwe entrenches the right to engage in collective job action for every employee, serve for members of the security services. It provides as follows;
“Except for members of the security services, every employee has the right to participate in collective job action, including the right to strike, sit in, withdraw their labour and to take other similar concerted action but a law may restrict the exercise of this right in order to maintain essential services.”
Employees, workers committees and trade unions have the right to resort to collective job action to resolve disputes of interest as opposed to disputes of right. In the case of a dispute of right, the basis for the claim is vested in a legal or contractual right, on the other hand a dispute of interest is not based on any existing right but rather seeks to establish a new right like a wage increase.
To acquire protection granted under the Labour Act Chapter 28:01, employees contemplating strike action must follow the prescribed statutory procedure for it to be certified a lawful collective job action. Section 104 of the Labour Act lays down the steps to be observed in convening a lawful strike. As a first step, the employees should give fourteen (14) days written notice of intention to resort to strike specifying grounds for the intended action. The notice has to be given to the party against whom the action is to be taken among other interested parties. The requirement to give such a long notice, it is submitted, is meant to deflect and deflate the potential strike as it is hoped that parties would resolve their issues before expiry of the notice period. Naturally tempers tend to die down due to lapse of time. In comparison, in South Africa the notice period is shorter as it is fixed at forty eighty (48) hours.
The second requirement is that the parties should attempt to conciliate the dispute before a Labour Officer/Designated Agent in terms of s 93 of the Labour Act. A certificate of no settlement should be issued to the parties in terms of s104(2)(b).
The third requirement, assuming the above requirements are met, is that the employees concerned should conduct a secret ballot whereby employees vote for or against engaging in a strike. The secret ballot should be superintended by a Labour Officer/Designated Agent who shall count and record the results of the secret ballot. The strike action can only proceed by agreement of the majority of employees voting by secret ballot. These should all be done within the 14 day period.
The aforementioned statutory requirements among other requirements are meant to curtail or minimise strike action, it being the common cause that strikes by their nature are disruptive and may cause heavy losses on employers.
In very limited circumstances, the law allows the employees to dispense with the need to follow the procedure stated above before resorting to strike. This applies to emergency situations listed in s104(4) as follows;
“(a) in order to avoid any occupational hazard which is reasonably feared to pose an immediate threat to the health or safety of the persons concerned:
(i) the occupational hazard has not been deliberately caused by the persons resorting to
the collective job action;
(ii) the collective job action resorted to shall remain proportional in scope and locality to
the occupational hazard in question;
(iii) the collective job action shall diminish in proportion as such occupational hazard
(b) in defence of an immediate threat to the existence of a workers committee or a registered trade union.”
There are severe heavy sanctions against those who engage in unlawful strikes whilst those who engage in lawful strikes are protected and enjoy several protections and privileges. In terms of s 108(1-3) of the Labour Act employees who engage in a lawful collective job action enjoy immunity from dismissal or any delict arising from the strike action. It must be stated however that the protection granted is limited. An employer is not obliged to remunerate an employee for services that the employee does not render during a lawful strike except where the employee’s remuneration includes payment in kind by way of accommodation, the provision of food and other basic amenities of life. The employer is even at large to recover the monetary value of such remuneration in kind through court action. (s 108(4)).
The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.
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