The right to strike is one amongst major contestations in the current academic fora as well as

the labour market as necessary instruments of dispute resolution at workplace. Whilst the
term is widely used, its original meaning is, more often than not, multifaceted. The right to a
strike is often referred to as what happens when a group of employees conduct a work
stoppage usually attached to grievances the workforce has with its employer. For Chabuka
(2009:29), it’s a collective, organised cessation or slowdown of work by employees, to force
acceptance of their demands by the employer. At the core of a strike is a form of protest in the
workplace to pressure employers into meeting demands before returning to work. Zimbabwe
in particular, has the right to strike both in its constitutional and legal provisions, but with
strings attached to it that are not limited to the following: provision of a notice, certificate of
no settlement, union approval, union agreement restriction (Gwisai 2006:355).
Notwithstanding these encouraging conditions in theoretical sense, this paper argues that the
legality of the right to strike as epitomised in the constitution and legal framework presents a
“give and take approach”, making its practicality limited to a larger extent. It then proceeds
from the assumption that the prohibition of strikes in Zimbabwe is due to a number of
constraints such as the issue of essential services, disputes of right, arbitration situation,
unregistered trade unions, contradicting Acts of parliament on public gathering among others.

The Labour Act (Section 104) among other statutes forms the basis of the right of strikes in
Zimbabwe’s labour market. Ibid (2006:350) laments that the issue of strike forms a classical
form of collective job action, involving the collective withdrawal of labour by workers or the
other concerted interruption of work to put pressure on an employee to concede to their
demands. It is thus taken as a medium between the employer-employee relationship where
critical issue related to working conditions (hours o work), wages and salaries, fringe benefits
are resolved. It is therefore crucial to note that behind the right to strike is the desire to give
workers the right to send their sad messages that all is not well in their workplace, hence
calling for a remedy. As a democratic wave in the labour market, the right to strike is attached
to the right to form trade unions and collective bargaining which in many jurisdictions and in
labour jurisprudence, locally, regionally and internationally has received a rapturous
welcome.

As has been alluded earlier, the right to strike in Zimbabwe is not just a straight jacket
approach; rather its legality is upheld upon the ensuing pre-conditions. Section 104 of the
labour Act of 2005 categorically stipulates that a strike remains legal upon provision of a
notice prior the industrial action to the minister. Gwisai (2006:354) further coined that a 14
days’ notice stating the grounds for going on strike must be given to the employer or relevant
party; appropriate employment council, appropriate trade union notice. This is epitomised in
the case of Federation of Master Printers of Zimbabwe (PFMZ) v Zimbabwe Graphical
Workers Union (ZGWU) LC/H/140/2005 where a consent order by the Labour Court,
prohibited the threatened strike. “Pending the outcome of the conciliation”, was also held to
have disposed of the dispute and that the union should have a fresh notice before going to
strike, after failure of conciliation.
Equally important in the legality of strikes in Zimbabwe is certification of no settlement. It is
tautologically expressed in the Labour Act (section 104) that the right to strike should form
the last resort of dispute resolution after all amicable avenues have been tried and failed. In
this vein (source), argues that there must have been an attempt at reconciliation of the dispute
and a certificate of no settlement has been raised. Attached to this is the issue of secret box
with the approval of the majority of employees or employers as the case may be. (Section 103
(3) of the LA). Interestingly, it must be noted also that conducting secret box is vague and
badly conducted, implying that they must be read robustly with the main guiding
consideration being whether a substantially free ballot has been conducted in Zimbabwe.
Worse-still, for workers to strike more than 50% of the workers must vote for a strike and this
will be followed by 30 day conciliation period and the possibility of binding arbitration
source. Union approval should also be taken into consideration as a necessary condition for
legalising strike in Zimbabwe. It is envisaged in section 104(3) (b) of LA that before any
employees, workers’ committees or employee can embark on collective job action, the must
get approval of the registered trade union or employer organisation. However, empirical
evidence reviews on a sad note that normally government-imposed delays prevent most
employees and their unions from ever declaring legal strikes, if any. Equally important is
union agreement restriction provided under section 104(3) (d) of LA. Gwisai (2006:356)
coined that a workers’ committee can not engage in collective job action if there is a “union
agreement which provides for or governs the dispute, and such agreement has not been
complied with or remedies specified therein have not been exhausted as to the issue in
dispute”

It is quite instructive that the right to strike is also made legal in Zimbabwe for a number of
reasons. Section 104(4) of LA stipulates that nothing shall be deemed to prevent collective
job action from being resorted to in two fronts. Firstly, in order to avoid any occupational
hazard this is reasonably feared to pose an immediate threat to the health or safety of the
persons concerned. This is due provided that: the occupational hazard has not been
deliberately caused by the persons resorting to the collective job action; the collective job
action resorted to shall remain proportional in scope and locality to the occupational hazard in
question; the collective job action shall diminish in proportion as such occupational hazards
diminishes. Secondly, a strike is lawful in defence of immediate threat to the existence of a
workers’ committee or a registered trade union.

The Labour Act also aptly espouses the lawful job action specifically by relating to what
it term “protected persons.” Ncube (2004;18) defines lawful job action as any collective
job action that complies with this Part in respect of its notification and other matters
provided for under this Part, and unlawful collective job action shall be construed
accordingly. Pertaining to protection of discipline and dismissal, section 108 (2)
reiterates that it is not a delict or breach of contract for a protected person to threaten
or engage in a lawful strike, serve for acts or omissions threatening or resulting in the
destruction of, or damage to, to property. This is amplified in the case CASUWZ vs
TelOne (Pvt) HH 91-05. In this case, the employer dismissed striking employees under
this code despite a ruling by the Labour Court declaring a show cause order invalid.
The dismissal was invalidated because the strike had been lawful. Thus the conclusion
was that incitement of a lawful collective job action is not lawful. Section 108 (4) of the
Act promotes the right to strike particularly on the right to remuneration in kind.
Gwisai (2006:358) buttresses that where her/his remuneration includes payment in kind
by way of accommodation, the provision of food and other basic amenities of life, the
worker is entitled to continue receiving these during the life.

The right to picketing (section104A (2) LA) cannot receive a peripheral discussion pertaining
to the right to strike. In this section, picketing is defined as a gathering of members and
supporters of a union or workers’ committees for the purpose of demonstrating peacefully in
support of any collective action or in opposition to any lock out and peacefully persuading
other members of the trade union or workers’ committees or employees of the industry,
undertaking or workplace represented by the trade union to take part in the collective job
action. The picket must be authorised by the union or workers’ committee in terms of Form
RL 10 under S.1.217 of 2003. In the case of ZTCU vs Officer Commanding, ZRP, Harare
2002 (1) ZLR 323(H) points it clear that the picket may be done outside the premises of an
employer or in any place to which the public has access such as near the residence of the
bosses. A picket is usually accompanied by verbal, written or symbolic messages such as
speeches, songs, slogans posters, dancing and drumming (Gwisai 2006:359).

Whilst this paper above has dramatised various conditions for the right to strike in
Zimbabwean industry, a cursory review of the experiences on a broad sense presents the
impression that there are notable threats for its successfulness. As has been highlighted
above, there are both constitutional and legal provisions that even restrict the right to strike,
thus undermining the plight of workers to demonstrate their work-related grievances before
their employers. Ibid, 2006:352 rightly puts out that there are various circumstances specified
under section 104 of the Labour Act, where there is deemed to be no right to collective job
action per se, as opposed to where one may go on collective job action after fulfilling certain
requirement.

Section 104 (3) (a) (1) clearly prohibits strike in essential services. The LA categorically
defines essential service as services relating to fire brigade, distribution of water services,
revenue specialists involved in the performance of security and health checks at airports,
certain areas in health and electricity services and a public broadcaster during a declared state
of disaster. However, section 3 of the notice allows expanded definition of the term essential
service in so far as any non- essential service may be declared an essential service by the
minister if strike in a sector...persists to the point that the lives, personal safety or health of
the whole or the part of the population is endangered. Under the Emergency Powers Act,
Chapter 11:04 also provides regulation of essential services by the president under 31J of the
constitution. These are defined to capture any services relating to hospitals, transport, sewage,
sanitary work, fire brigades, coal mining, generation and supply of electricity, fuel, water or
food or any other service declared by the president, by statutory instrument, to be an essential
service. This broader definition than in the LA raises fundamental question of which one
should take precedence, as section 4 of the LA guarantees its precedence over any other
enactment and that all the provisions attached are legally binding. The current provisions
relating to damage caused to property through an “illegal strike” imposes criminal sanctions
on workers’ representatives who would have facilitated the strike. There is no immunity for
workers’ representatives. The labour system in the country separates workers in the private
sector, public sector, health services, police and the army. "Essential" employees are
prohibited by law from striking, and the government defines all public sector workers as
essential.
Managers also are prohibited from striking. The government also considers some private
sector workers, such as those in the health sector, as essential workers.
For the remaining nonessential employees to conduct a strike legally, more than 50 percent of
the company's employees must vote in favour of the action, a discouraging case for many
employees for the fear of management reprisals (www.mywage.org).

The right to strikes is also prohibited to redress a dispute of right. As Mungeni 1997:78
posits, actions are allowed only in relation to disputes of interest. Admitting that at the heart
of the LA (2005) is to clearly to institutionalise labour conflicts through methods like
conciliation and arbitration, a dispute of right is therefore defined in Section 2 of the Act as
any dispute involving legal rights and obligations, including any dispute occasioned by an
actual or alleged unfair labour practice, a breach of alleged breach of this Act or of any
regulations made under this Act, or a breach or alleged breach of any of the terms of a
collective bargaining agreement or contract of employment. The right to strike is also
potholed in Zimbabwe particularly with regards to unregistered trade unions. Section 104(3)
(c) of LA stipulates that unregistered unions and employers’ organisations are prohibited from
engaging in collective job action. Even under arbitration situations, whether voluntarily or
compulsorily, collective job action is strictly prohibited. This is worsened by enactment of
draconian pieces of legislations that seek to undermine public gathering. In 2002 government
passed the Public Order and Security Act (POSA) which bans any public gathering without
police permission. The organisers of the public gatherings must apply for permission at least
four days in advance and there is no guarantee that this will be approved by the police.
Anyone found guilty of disturbing the peace, security or order faces up to 10 years in prison
or a fine.

Tightening of screws by the government with regards to the right to collective bargaining
cannot be discussed outside the paradigm shift in the political terrain of Zimbabwe since late
1990s when the government for the first time witnessed waning signs of its hegemony with
the rise of a formidable opposition party Movement for Democratic Change MDC that stood
firm to criticise the government. Considering that this part is a mere brainchild of ZCTU (a
trade union), the government failed to adopt a “wait and see approach” to such a threat.
Rather it responded radically through reformations of repressive laws that are tantamount to
the final nail to the death of any democratic job action in the country for the fear of future
national threats. These Acts include Public Order and Security Act (POSA), Access to
Information for Privacy and Protection Act (AIPPA).
A special Commission of Inquiry of the ILO said after a fact-finding mission to Zimbabwe in
2008 that government was responsible for serious violations of fundamental rights, in
particular concerning freedom to organise trade unions and to collective bargaining, the right
to strike, and protection of trade unionists from discrimination (Chiwashira, 2009:23). As a
testimony to the grave nature of the violations, it was the first time in the history of the ILO
that both trade unions and employer organisations filed a complaint against a government,
leading to the establishment of the Commission of Inquiry in 2008.The inquiry came hard on
the heels of the battering of labour leaders after a foiled march in the capital, Harare in 2007.
Labour leaders Wellington Chibebe and Lovemore Matombo sustained grave head injuries in
the police assault (Ibid). It also concluded that “there was another clear pattern of control
over ZCTU trade union gatherings, be they internal meetings or public demonstrations
through the application of the POSA” and that “detentions and targeted violence have been
used to intimidate both leaders and rank and file members of the trade union in a systematic
and systemic manner.” The POSA, or Public Order and Security Act, has been used regularly
as a pretext for anti-union action by the Mugabe regime.

Equally important, the Labour Relations Amendment Act (LRAA) came into effect on 7
March 2003. While it pays lip service to the existence of trade unions, in general, it makes it
very difficult for trade unions to exercise their rights and has been described as "draconian”.
It must be not that while technically, the Act does give private sector workers freedom of
association, the right to elect their own representatives, and to join unions without prior
authorisation, allowing for multiple unions per industry, cumbersome, vague and jailing
registration of each is done with the Ministry of Public Service, Labour and Social Welfare
(MPSLSW). Following these enactments of these repressive laws, cases of intimidation,
killings torture, and harassments among other inhuman treatments assumed permanence in
Zimbabwe as government survival strategies to silence trade unions, employees among other
government opponents. In fact, the question as to whether collective job action was still a
right or now a privilege became difficult to attempt in these experiences. Worse came to
worse when the industrial sector witnessed politicisation of the trade unions among other
worker representatives whose roles after that has been deemed moribund to the plight of the
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workers. According to (www.sokwanele.com), the Zimbabwe Federation of
Trade Unions (ZFTU) is a government created labour body designed to undermine and
weaken the ZCTU. The ZFTU works closely with the ruling ZANU PF and has created
splinter unions in every sector of the economy. In some cases ZFTU unions have coerced
workers, telling them they have to join their union if they want to keep their jobs. The ZCTU
reports that some of its members have been assaulted for wearing ZCTU T-shirts. According
to (Chabuka 2008:26), Trade union rights and the human rights of trade unionists continued
to be trampled on by the Robert Mugabe regime in Zimbabwe. Throughout the year there
were arbitrary arrests, seizure of materials, and threats and harassment of union organisations
and their leaders. The most serious violation occurred in September 2006, when security
forces responded to a union demonstration with mass arrests and severe beatings of union
leaders, drawing international condemnation (www.mywage.org). President Robert Mugabe
was widely quoted in the media condoning the police brutality and suggesting the trade
unionists had deserved to be beaten.

The LRAA recognises the right to collective bargaining. However, as Chabuka (2008:33) postulates,
the 2005 Labour Amendment Act, in its sections 25, 79, 80 and 81, gives the Minister of Labour the
power to approve collective bargaining agreements, register and publish them which is contrary to
promises made by the government at the International Labour Conference in June 2004 that these
sections would be repealed. It is also discouraging to note that, the Act also states that collective
bargaining agreements should provide for measures to combat workplace violence which in essence
the government is chief culprit for its perpetuation in the country specially during elections when the
political temperature of the government seem to be high to sweep up election votes. The Zimbabwe
Congress of Trade Unions (ZCTU) believes this could be used to criminalise industrial action.
Collective bargaining is not the exclusive prerogative of trade unions, as workers’ committees may
also bargain at company level. The law encourages the creation of these committees in enterprises
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where less than 50 per cent of workers are unionised (www.sokwanele.com). They
exist in parallel with trade unions, hence creating the potential for employers to undermine the unions
by pitting the workers’ committees against them. Their role is to negotiate on shop floor grievances,
while trade unions are supposed to focus on industry level issues, notably wages, and negotiate
through National Employment Councils (where they exist). The workers’ committees meet with
representatives of management to discuss workplace issues in a Works Council which, in essence,
have to be approved by the Ministry of Labour.

From the above discussion, needless to posit that the right to strike in Zimbabwe sounds more
on paper than in practice despite a raft of legislations as well as constitutional provisions. The
right to strike therefore has been understood as an organised, planned collective job action in
which the workers do temporal work stoppage as a clear message to the management of
seeking an urgent redress against prevailing workplace grievances. Its legality is rooted in the
various circumstances that are not limited to the provision of a notice, outside essential
services, as a last resort of dispute resolution, union approval, outside arbitration period and
union settlement restriction. A cursory review of Zimbabwean strike experiences for the past
decades has generally produced mixed results, one of which is that the environment is
threatening for workers to undertake both peaceful and militant industrial action with political
reasons being taken as the major key value. Without reservations, this paper concludes that
the legal provisions governing industrial relations in Zimbabwe aptly resembles a “give and
take” approach towards workers embarking on legal strikes.
Bibliography

Chiwashira, F (2009). An Analysis And Critique of the Efficacy of Strike Law in Zimbabwe,
UZ, Harare (dissertation thesis)

Chabuka, S. (2008). A Critical Examination of Strike Law in Zimbabwe in the Light of

International Labour Standards , UZ (not published).

Gwisai, M. (2006). Labour and Employment in Zimbabwe: Relations of work under Neo-
Colonial Capitalism, Institute of Commercial Law, Harare.

Mungeni, L. (1997). Industrial Action Law in Zimbabwe, UZ, Harare (dissertation thesis)

Ncube, J. (2004). The Right to Collective Action in Zimbabwe in Light of the New Labour
Act (Chapter 28:01), UZ, Harare

Government Legislations

Emergency Powers Act, (Chapter 11:04), government printers, Harare.

Labour Act of 2005, government printers, Harare.