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.
In other news – Shepherd Bushiri’s church set on fire after he survived 2 murder attempts – Pictures
Two tents belonging to Shepherd Bushiri’s Enlightened Christian Gathering Church were ‘set alight’ on Wednesday night.
Spokesperson Ephraim Nyondo told Sowetan that the fire was put out before the tents could burn to the ground. Read more