By Shadreck Zangairai
Zimbabwean legislation recognises the right to engage in collective bargaining. This is done at both enterprise level, through works councils, and at industrial level, through the auspices of employment councils. However this right does not apply to the public service employees who are covered by the Public Service Act Chapter 16:04 and the Health Service Act Chapter 15:16. Ideally there is no collective bargaining in the entire public sector but there is only consultation between employee associations and the Public Service Commission. These consultations are recognised through the establishment of a forum called National Joint Negotiating Council (NJNC), and Health Service Bipartite Negotiating Panel (HSBNP). After consultations, the employer is not bound by the decisions reached and can implement what it believes to be fair disregarding the other parties’ view or submissions. Consultations are also provided under section 24(1) of the Public Service Act.
Recently there has been speculations and expectations of wage and salary increment by the Public Service employees. Negotiations scheduled for the 7th of July 2023 were halted due to discrepancies in the increments demanded and offered, hence the negotiating principals wanted time to consult. This was confirmed by the Public Service, Labour and Social Welfare Minister who told the Herald of the same date that the National Joint Negotiating Council meeting was paused for further consultations. From the foregoing, it is undeniable that collective bargaining in the public service is quite different from collective bargaining in the private sector, both structurally and conceptually. In fact, it may be argued that there is consultation and not collective bargaining in the public service.
Negotiation in the public service is unique in that the state has dual responsibility of acting as both the employer and the legislative authority. As an employer, the state has to rely on efficient revenue collection so as to offer sound wage increases and at the same time it has to utilise the revenue collected prudently and remains accountable for public expenditure, hence the involvement of the Minister of Finance who has the responsibility to justify expenditure in parliament. In such circumstances, bargaining parties in the public service cannot be said to enjoy an autonomous relationship when it comes to collective bargaining, as it seek to achieve a balance between promoting collective bargaining and living within its own means.
The fragmented nature of the labour legislation in Zimbabwe disadvantages workers in the public sector and takes away their right to actively participate in negotiations. Besides the absence of the right to negotiation, the platform for bargaining is also not there. Members of the negotiating team (from the government) don’t have the mandate to decide on behalf of the government, but will have to collect the employee proposals for consultation with their principals. This reinforces the fact that negotiations in the public service are merely consultations. These consultations may take longer thereby keeping workers in waiting.
Unlike in the private sector where the Labour Act is enforced, the Public Service Act provides the legislative framework in the sector. According to SI 141/97, the National Joint Negotiating Council is more of a consultative forum rather than a negotiating forum, as decisions or conclusions made by the Joint Negotiating Council are subject to considerations by the Minister for approval or rejection. This therefore delay negotiations and employees are vulnerable because their employer is also the legislative authority. Therefore one can conclude that there are no negotiations but mere consultations as the representatives of the employer present at the negotiating table do not have the mandate to agree or disagree with the position tabled by the employee representatives. The Minister therefore has the power to make unilateral ‘take or leave’ decisions on the salaries, allowances and conditions of service in the Public Service.
Again, to some extent, government interventions can also cause delays in reaching agreements in the public sector. The Finance Ministry has on many occasions delayed the negotiation process through announcing a wage freeze for all civil servants. This is one of the challenges causing delays in reaching settlements. Other challenges causing delays include, lack of good faith between parties especially government, lack of conducive political, economic and social environment and the repressive and unsupportive legislation. This is because the public service regulations recognise consultations, with the employer having final say in the consultations. On the other hand, collective bargaining without the full right to strike tend to tilt the bargaining power to employers. The International Labour Organisation (ILO) convention on freedom of association embodies the right to strike in collective bargaining.
As a suggestion, the legal framework for negotiation in the public sector needs to change. Thus there is need to push for the harmonisation of the labour laws in the country. This will mean that the public sector will also be accorded the full right to collective bargaining thereby empowering unions. In addition, collective bargaining without the full right to strike tend to give more bargaining power to the employer. Zimbabwe legislation needs to be reformed in this area and afford a balance to negotiating parties. There is also need for the establishment of an effective Employment Council to create a platform for meaningful social dialogue. Furthermore, there is also need to repeal relevant provisions of the Public Service Act, Public Service Regulations, Health Service Act and the Health Service Regulations which grant excessive powers affecting social dialogue such as setting of conditions of service and dispute resolution.
Disclaimer: The information contained herein does not serve as alternative to legal advice. The author do not accept any liability for any damages or losses suffered as a result of actions taken based on information contained herein.
Shadreck Zangairai is a Human Resources Practitioner and for feedback, email: sh***********@gm***.com,
+263772939877/713068365
