By Sishuwa Sishuwa
On 4 February 2020, the government, through the Labour Commissioner, cancelled the Recognition Agreement between the University of Zambia Lecturers’ and Researchers’ Union (UNZALARU) and the Council of the University of Zambia (UNZA), sometimes referred to as UNZA Management. The Agreement is the marriage certificate that confirms the formal relationship between an employer (in this case the UNZA Council) and the representative of employees (UNZALARU) for purposes of regulating the collective relationship between the two parties.
Sections 63 and 64 of the Industrial and Labour Relations Act make it mandatory for an employer with 25 or more employees, to enter into a recognition agreement with a registered trade union that represents the employees in the employment of that employer. The law further provides that an employee has the right to be a member of a registered trade union within the sector, trade, undertaking, establishment or the industry in which the employee is engaged.
To illustrate: if a company known as Eternally Corrupt Leader (ECL) employs 25 workers, who have associated themselves with a trade union, the employer (ECL) has the obligation to enter into a Recognition Agreement with their union, which would then act as the sole representative and bargaining entity of the said workers. This is how the Recognition Agreement between UNZALARU, formed in 1992, and the UNZA Council was signed on 23 March 1993, a month before their wedding was formally registered with the Labour Commissioner on 27 April that year. The Agreement was to remain in force for the next two and half decades until it was terminated this month.
In dissolving the marriage between the two parties, the Labour Commissioner was acting on an application for divorce filed by UNZA Management using the assertion that their relationship with UNZALARU had ‘broken down irretrievably’ for two reasons.
The first was that the leadership of the Union, at a meeting called on 6 January 2020 to discuss the delayed payment of employees’ salaries for December 2019, had threatened to cause industrial disharmony if UNZA Management proceeded to reopen the university as originally scheduled without paying its employees. “We want to warn Management”, noted UNZALARU president Evans Lampi, “that do not bring students here if you don’t have the money to pay us because you will just bring chaos.”
The second reason provided by UNZA Management as a justification for the termination of the Agreement was that the Union had hurled “unbridled insults on [UNZA] Management”. Here, as the university leadership was referring to the remarks of Union Trustee, Chabala Musonda who, during the above-cited meeting, used a metaphor to communicate a point to the membership: “I ask you to hold the bull by its balls. I got an eviction notice and yet I come here to teach every day. If it means pinching where it hurts the most, let the balls break.” Members of UNZA Management complained that these remarks were insults and had injured their reputation and that of the institution.
In asking the Labour Commissioner to terminate its Agreement with UNZALARU for the stated reasons, Management relied on Section 65A of the Industrial and Labour Relations Act, as amended in 2008, which provides for the following:
- (A party to a recognition agreement may apply to the [Labour] Commissioner for the termination of a recognition agreement, stating the reasons therefor (sic).
- The Commissioner shall, where the Commissioner receives an application under subsection (1), inform the other party in respect of which the application is made and set a date on which the application shall be heard.
- 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.Upon receipt of the application, and as per the law, the Labour Commissioner informed UNZALAU on
- January 2020 about Management’s request and set 22 January 2020 as the date on which the matter would be heard. After hearing both parties, the Commissioner approved the application, stating that:
“…the Union failed to successfully defend itself on the matters that Management raised against them. Having considered…the deliberations of the hearing meeting that took place on 22nd January 2020, the Ministry concluded beyond reasonable doubt that indeed the Union did violate section 6 of the Industrial and Labour Relations Act chapter 269 of the law (sic) of Zambia as well as breached article 18 of the Recognition Agreement between UNZA Management and the Union. In view of the above, the Ministry wishes to inform you that the application to terminate the Recognition Agreement has been approved in accordance with section 65A (3) (a) of the Industrial and Labour Relations Act, chapter 269 as amended by Act No. 8 of 2008 of the Laws of Zambia”
Now, the official reasons given by both the Labour Commissioner and the University Management for termination of the Agreement are as unconvincing as they are ridiculous. Neither the named Section 6 nor article 18 of the Recognition Agreement were violated by UNZALARU. Section 6 of the Industrial and Labour Relations Act provides that “Every employee shall promote, maintain, and cooperate with the Management of the undertaking in which the employee is employed in the interest of industrial peace, greater efficiency and productivity”. What exactly did the Union say or do that violated this section?
By warning Management to pay the employees before the scheduled reopening of the University, the Union leadership – while addressing a meeting of members who were complaining about not being paid their December salaries – was in fact promoting industrial harmony. The employees were effectively cooperating with Management by telling the employer of the likely result of non-payment of employees’ salaries: namely, withdrawal of labour by the workers and its consequent adverse effects on the university’s operations. Such effects include the possibility of student protests caused by their reporting or returning to a university where academic members of staff are not teaching. This was not a far-fetched prospect: UNZA’s history is replete with such experiences. Other likely effects of non-payment of salaries are low productivity, caused by employees’ constant search for alternative sources of sustenance, and reduced efficiency, resulting from the workers’ anxieties about whether they would be evicted from their rented houses and the stress of not knowing if they would be able to send their children to school – it is worth noting that schools were opening only a few days later.
When a sane person therefore considers the context in which the Union issued the “unbridled insults” and “threats”, they would easily realise that the employees, through their Union, were in fact furthering their obligations under Section 6. By promising to “hold the bull by its balls…[even] if it means pinching where it hurts the most…[until] the balls break”, the Union leadership was effectively encouraging UNZA Management (the bull), whose representatives had earlier refused to address the members, to meet its dues (paying employees’ salaries) in order to avert industrial disharmony and ‘in the interest of industrial peace, greater efficiency and productivity’. Otherwise members would touch them where it hurts the most – withdrawal of labour. How is this perfectly normal language (including in labour relations) an expletive or a violation of Section 6 and the Recognition Agreement?
It is astonishing that anyone would be prepared to wreck any possibility of harmony with academic staff at Zambia’s most hallowed intellectual site or university by imagining that the metaphorical reference to holding balls – a commonplace phrase in the English language – was a reference to them, and, on that assumption, seek the termination of a very necessary relationship for the sake of massaging a potentially bruised ego. This demonstrates degraded attitude to questions of free speech. In the Zambian climate with so much tension in the labour market, it is extremely unwise to do away with trade unions because they introduce an element of stability.
Unions can speak collectively on behalf of many and it is in the best interest of UNZA Management that they exist. It would be difficult, for instance, for Management to manage hundreds of lecturers as individuals. The failure by those in Management to meet their obligations, or indeed the possible differences with one or two members of the Union leadership, should not blind them to the importance of trade unions – they are a means of institutionalising individual behaviour. If a member of UNZA Management felt aggrieved that the language used by any Union leader injured them, they should have initiated legal action against the individual whose mouth uttered the words that they found slanderous. A union, a composite of its entire membership, cannot insult.
In any case, UNZALARU members, at their 6 January 2020 meeting, did not promise to withdraw their labour under any circumstances; they said they would do so if their December salaries were not paid by 20 January 2020 – the date when the University, which until then was on vacation, was set to reopen for this academic year. As it turned out, their threat was to be overtaken by events: the delayed December wages – the primary grievance that motivated the employees to issue the threat – were paid three days later, on 9 January. This followed the government’s release of the monthly statutory grant to the University of Zambia, whose delayed disbursement had affected the Council’s capacity to pay its employees on time. Yet, despite this development, UNZA Management proceeded to write to the Labour Commissioner on 13 January 2020, asking the government official to terminate its Agreement with UNZALARU based on a potential, not actual, breach of the law. This action on the part of UNZA Management does not make sense.
Similarly, the argument that UNZALARU breached article 18 of the Recognition Agreement is as thin as the paper on which it was issued. To be sure, article 18 provides for the termination, replacement, amendment or review of the Agreement. The relevant clause is article 18 (1) which stipulates that:
“This Agreement may be terminated by three months prior notice given by either party to the other stating reasons for such intention, which reason must be of such a nature as sufficiently strong to justify such a move and must relate to gross misunderstanding between the parties in a manner that may be said that the relationship between the parties has irretrievably broken down. Provided that where the other party does not agree to the termination, it may refer the matter to the Bargaining Unit for negotiation. Where no agreement is reached by the bargaining unit, either party may declare a dispute in accordance with the relevant provisions of the [Industrial and Labour Relations] Act”.
Here, we see three problems. The first is that article 18 cannot be breached in itself as to warrant termination of the Agreement; it can only be invoked in instances where gross misunderstanding that affects the very core of the relationship between the parties has arisen. The existence of gross misunderstanding between the parties is not a sufficient reason for seeking to terminate the Agreement; the gross misunderstanding must be of such a strong nature that the parties cannot be reconciled and it may be said that the relationship between them “has irretrievably broken down”. To illustrate this point with an example from a legal relationship: if a partner in a marriage commits adultery, the adultery itself does not provide sufficient ground for the termination of the marriage; the aggrieved party, the one seeking divorce, has to demonstrate that the adultery is of such a nature or adverse effect that the two cannot be reconciled.
The question therefore is: has the relationship between UNZALARU and Management broken down irretrievably? This is a question of fact that has to be investigated through the processes provided for in the Recognition Agreement, as a starting point, and, if that layer fails, in the Act. By applying for the termination of the Agreement directly to the Labour Commissioner, UNZA Management skipped two stages of the reconciliation process: the bargaining unit for negotiation and the declaration of a collective dispute under Part 9 of the Industrial and Labour Relations Act, which provides for negotiations and possible settlement in cases of declared disputes. It is only when this two-stage process has been followed and the parties are still not agreed that the matter can be referred to the Labour Commissioner for possible termination of the Agreement. Even then, before exercising the power vested in their office by Section 65A, it is incumbent for the Labour Commissioner to satisfy themselves that the processes for the resolution of disputes provided for in article 18 of the Recognition Agreement and Part 9 of the Act have been followed. This is also implicit in the provisions of Section 65 of the Industrial and Labour Relations Act, which provides for what should be contained in a recognition agreement.
The second issue that arises from article 18 (1) is that UNZA Management did not comply with the provision that requires the party seeking to terminate the Agreement to give the other party three months prior notice of the intention to do so. To be sure, Management, in a letter to the Union dated 7 January 2020, notified UNZALARU of its intention to invoke article 18 using the same reasons that were subsequently advanced in the application to the Labour Commissioner. However, Management only gave UNZALARU two days within which to respond:
“Management is giving you 48 hours from date hereof to show cause why it must not invoke provision of Amendment Act 8 of 2008 with a view to ask the Labour Commissioner to terminate the Recognition agreement between Management and your Trade Union. If we do not receive satisfactory response within 48 hours from date hereof, we belabour Management’s strict resolution to go ahead and enforce the provision of Section 65A of the Industrial and Labour Relations Act as read with Amendment Act No 8 of 2008.”
In effect, UNZA Management breached the law by not complying with the mandatory time limits provided for in the Agreement.
The third problem is that of procedural impropriety. By writing directly to the Labour Commissioner, UNZA Management neglected to comply with the laid down processes provided for in the Recognition Agreement pertaining to the resolution of disagreements. The reason why the Agreement contains such procedural safeguards is to protect the legal relationship between the two parties, to give each party sufficient opportunity to answer allegations levelled against them, to provide for the harmonious resolution of disputes, and establish the mechanism through which employees can enjoy their constitutionally guaranteed right to associate and belong.
Notwithstanding this breach by Management, UNZALARU, in a response dated 8 January 2020, indicated that it did not agree to the termination:
“We…do not agree that there are any reasons of a sufficiently strong nature to justify termination of the Recognition Agreement between the Union and Management that renders our relationship to have broken down irretrievably. In the premises, we note that Management has a grievance which in our view must be resolved by the Bargaining Unit, in accordance with the provisions of article 18 (1) of the Recognition Agreement”.
It is important to note that UNZALARU did not dismiss Management’s concern; the Union acknowledged it, but expressed the view that it was not grave enough to warrant termination. The University Management, instead of referring the matter to the Bargaining Unit for negotiations, rushed to the Labour Commissioner, contrary to the procedural steps outlined in article 18.
As earlier stated, the Labour Commissioner, in the light of these blatant breaches of both the Agreement and the law by UNZA Management, could have declined the application to terminate its Recognition Agreement with UNZALARU on the ground that the grievance procedure provided for in the law had not been followed. Instead, the government approved the application. It is worrying that the Labour Commissioner can be manipulated so easily. Contrary to the official reasons provided, there is, in my view, one real explanation behind the government’s move – one that has no legal basis whatsoever.
The real reason why the government has terminated the Recognition Agreement between UNZA Management and UNZALARU is that doing so offered President Edgar Lungu’s administration the much-awaited opportunity to undermine the last bastion of independent thinking and cripple a trade union that has helped expose the government’s precarious financial position. It is no secret that the government is broke and largely unable to meet its obligations, such as paying the salaries of public sector employees promptly and the timely release of money to grant-aided institutions. Academics are not the only ones affected by this near bankruptcy, caused largely by grand corruption in government, wastefulness, outright incompetence, and debt repayment. Council workers and post office employees, for instance, have gone for months without pay, causing huge problems for thousands of Zambians who have their own financial commitments to meet every month.
One difference for academics is that they have an effective organisation that has repeatedly drawn the public’s attention to the government’s failure to meet its fiscal commitments. This is an ongoing embarrassment for the government, but rather than attempt to fix the underlying problem – one that seriously first emerged in early 2019 – they have instead moved to silence the critics like UNZALARU.
The truth is that the Patriotic Front (PF) has mismanaged the economy and workers are now paying the price for its ineffectiveness. It is not UNZA academics who have been directing economic policy since 2011, so why should they suffer for this incompetence? Instead of continually trying to silence critics, Lungu and his friends in government could benefit from a period of quiet introspection. How was so much money wasted over the last decade? What went wrong? And why is the government so determined to scapegoat anyone else for its ineptitude and policy failures?
One indication that the PF knew that there would be ongoing problems in 2020 with the timely payment of wages is an amendment to the law that regulates employment, passed in April last year. The Employment Code Act No. 3 came into effect on 9 May 2019 and effectively changed the payday of employees from the last day of the month to a date to be determined by the employer. Section 66 of the cited Code provides that “An employer shall pay the wages of an employee. Subsection 1(a) provides for the dates when an employer is obliged to pay the wages of an employee and stipulates that in the case of the monthly contract of employment, the employee shall be paid “each month, from the last day of payment.” Subsection 2 goes further to state that wages ‘shall fall due and be paid at regular intervals not being later than the fifth day following the date on which they fall due under subsection (1).’
It is worth noting that Section 66 amended Section 48 (1) of the repealed Act which provided that wages for a contract of service for a month were payable “on the last day of each month.” This means that Section 66 of the Employment Code Act changed the payday of employees who are paid monthly from “the last day of each month” to “the last day of payment.” The obligation to pay wages at regular intervals and no later than five days from the last day of payment has been retained in section 66(2). What this means is that from the commencement of the Employment Code Act on 9 May 2019 when the Commencement Order was published, employees were to be paid at regular intervals, but no later that the last day of payment. Section 138 of the Employment Code Act, which provides for the transition provisions of the Act, supports this interpretation.
In effect, this law abandons the idea that monthly salaries should be paid on the last day of the calendar month, but that they can be paid on the date when an employer last paid the employee, a ridiculous amendment which, on face value, gives legal cover to an ever-extending series of salary delays. To illustrate: if UNZA employees received their salaries for December 2019 on 9 January 2020, they are not entitled to another pay until 9 February 2020. When one adds the extra five days cover that the law gives to employers, it means that UNZA Management has up to 14 February 2020 to pay its employees before they can be said to have violated the law. This thinking may explain why Minister of Higher Education Brian Mushimba was recently quoted saying that he and the government would only welcome insults from UNZALARU members complaining about the non-payment of salaries for the month of January 2020 on 15 February 2020.
What Mushimba or anyone who retains his demonstrated possible understanding of the revised law may have overlooked is the fact that the Employment Code effectively introduced a payday – which is the date on which employees received their wages after the Act was implemented on 9 May 2019. For example, UNZA employees received their salaries for May 2019 on 4 June last year. This means that the 4th of each month becomes their new payday, or within five days after that day – failure to which the employer incurs criminal liability.
Given UNZALARU’s renewed criticism of the government’s failure to meet its fiscal obligations to the University, even within the confines of the amended law, the authorities took the application for termination of the Agreement as opportunity to strangle the Union’s right to formally represent its members in any engagements with the government-aligned employer. It is worth noting that Lungu’s administration has long desired to silence UNZALARU, as it has other critical civil society organisations, not least because of the Union’s condemnation of the deplorable Constitution of Zambia (Amendment) Bill Number 10. What the government previously lacked was the ground on which they could weaken the union, since abolishing it would violate Article 21 (1) of the Constitution, which provides for freedom of association.
At one point, the government seriously considered suspending the current UNZALARU executive but abandoned their plans on the realisation that the law could not support their intended action. At another, they mooted plans to either register another union to rival UNZALARU or to simply render the Union ineffective by way of capturing its leadership or advancing PF supporters to lead or run it. These latter, less public, efforts remain on the table. What the application for termination of Agreement by UNZA Management did was simply to provide the convenient pretext on which the government could, however momentarily, rid itself of a perceived adversary. It is no wonder that the government, through the Labour Commissioner, has sent another letter to UNZALARU, asking the Union to show cause as to why its certificate of registration should not be cancelled. Nothing demonstrates the sum total of the government’s terrible attitude to, and contempt for, the University of Zambia than its handling of this subject. There lie ahead tough times for trade unions and civil society – not that recent times have been any easier.