Section 74 of the Labour Act provides for issues which can be negotiated by trade

unions or workers committee with employers to come up with a collective bargaining

agreement (CBA) which both parties agree. Discuss the collective bargaining provisions
in terms of section 74.

Collective bargaining is a means of regulating relations between management and employees and
for settling disputes between them International Labour Organisation (2008). It is based upon the
realization that employers enjoy greater social and economic power than individual workers. The
contract of employment is by nature imbalanced because its content is largely determined by the
employer by virtue of him owning the means of production and this places him/her in a stronger
bargaining position. Intervention either in the form of statute or a collective bargaining
agreement is necessary to act as a countervailing force against the powers of management.
Collective bargaining has proved to be an effective tool in redressing the inherent power
imbalance in the employment relationship and placing restraint on managerial prerogative.

The ILO has long taken cognizance of the critical role collective bargaining can play in
bringing about harmonious relations between employers and workers. Article 4 of the Right
to Organize and Collective Bargaining Convention, 1949 (No.98) provides that: Measures
appropriate to national conditions shall be taken, where necessary, to encourage and promote
the full development and utilization of the machinery for voluntary negotiation between
employers or employers’ organizations and workers’ organizations with a view to the
regulation of terms and conditions of employment by means of collective agreements.

For a conducive environment for collective bargaining to develop the legal and political
system must first and foremost tolerate the existence of trade unions by guaranteeing them
freedom of association and the right to organize as envisaged by the relevant ILO instruments
which include the Freedom of Association and the Protection of the Right to Organize
Convention, 1948 (No.87), the Right to Organize and Collective Bargaining Convention,
1949 (No.98), and the Collective Bargaining Convention, 1981 (No.154). This enables trade
unions to exercise their right to represent their members’ interests by negotiating on their
behalf and to carry out union activities without fear of reprisals or victimization.

Collective bargaining is defined in ILO Convention 154 as “a voluntary process for

reconciling the conflicting interests and aspirations of management and labour through joint
regulation of terms and conditions of employment”. Zimbabwe ratified both conventions in

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2003 and 1998 respectively. It also committed itself to the ILO Decent Work agenda and has
a country programme which runs until 2015. Collective bargaining is covered in the Labour
Act section 74 where it talks about issues that can be negotiated by trade unions or workers
committee with employers to come up with a collective bargaining agreement.

Section 74 (1) talks about the part of collective bargaining agreements that have been
negotiated by registered trade unions, employer and employer organisation and federations.
(1) This Part shall apply to collective bargaining agreements negotiated by registered trade
unions, employers and employers organizations or federations thereof:
Provided that nothing in this Part contained shall prevent an unregistered trade union or
employers organization from negotiating a collective bargaining agreement.

Even though the law allows for bargaining, the Minister of Labour has the power to refuse to
register a CBA where it is felt to be unachievable. This was the case with Post and
Telecommunication Corporation (PTC) versus Zimbabwe Posts and Telecommunication
Workers Union (ZPTWU) where the CBA was reduced by 50% by the Minister in 2000 and
the same happened with Zimbabwe Electricity Supply Authority (ZESA) versus Zimbabwe
Energy Workers Union (ZEWU) in 2009, (Mereki, 2012).

Section 74 (2), refers to the scope of negotiations between trade unions and employers
(2) Subject to this Act and the competence and authority of the parties, trade unions and
employers or employers organizations may negotiate collective bargaining agreements as to
any conditions of employment which are of mutual interest to the parties thereto.

Section 74 (3) talks about the 14 arears that can be negotiated between parties. These areas
also constitute the employment contract as they talk about wages and benefits. Of great
importance to note is that Trade Unions can also negotiate issues related to the growth of the
organization. Subsection 3 (n) talks about measures to foster the viability of undertakings
and high levels of employment where applicable. This shows that Trade Unions and
employers have an equal role to ensure that the organisation is growing. However, it seems
most employees are only worried about conditions of service such as pay and benefits. But
this section empowers trade unions and workers committee to task the employer on issues
related to productivity and economic competitiveness.

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Section 74 (4) gives reference to renegotiating after 12 months, currently parties are sitting
more than frequently.
(4) Nothing contained in any collective bargaining agreement shall prevent either or both of
the parties from seeking to renegotiate or amend the agreement after twelve months of its
operation in order to take account of changed circumstances in the industry or undertaking
concerned.
The sense being renegotiating was due to the stability of the economy. Currently our
economy is volatile and rampant with fiscal and monetary policies such that sitting once year,
no longer makes negotiating sense. Trade unions and Workers Committee are now sitting
with employers as frequent as possible. Industries are registering Collective Bargaining
Agreements more than twice in the course of the year.

Section 74 (5), activities of a CBA should be within the boundaries of the labour act or any
law of the country.
(5) A collective bargaining agreement shall not contain any provision which is inconsistent
with this Act or any other enactment, and any collective bargaining agreement which
contains any such provision shall, to the extent of such inconsistency, be construed with such
modifications, qualifications, adaptations and exceptions as may be necessary to bring it into
conformity with this Act or such other enactment.
All Collective Bargaining Agreements should operate within the confinements of the law.
Any variations outside law will result in them being null and void. Thus, employers will not
be able to operationalise them.

Section 74 (6) gives room for employers to negotiate favourable conditions. The CBA then
becomes the minimum that an employer can provide for his employees. Workers committee
and employers can negotiate better conditions of service as long as the employer can afford to
provide for them.
(6) The existence of a collective bargaining agreement shall not preclude an employer and
his employees from agreeing to the introduction of higher rates of pay or other more
favourable conditions of employment before the expiry of such collective bargaining
agreement, so however that the rights and interests of the employees are not thereby
diminished or adversely affected: Provided that the collective bargaining agreement shall be
endorsed to reflect such higher rates of pay or other more favourable conditions of
employment.

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The 2023 Labour Act Amendment saw the insertion of subsection 7, which now requires an
equal participation of the Minister of a parastatal, or statutory corporation controlled by the
Sate in Collective Bargaining Agreements. As such it might mean to say the Minister now
gives a mandate to the employer on the parameter to negotiate with workers committees or
trade .
“(7) Where a collective bargaining agreement being negotiated involves an employer
which is a statutory corporation, statutory body or an entity wholly or predominantly
controlled by the State, the Minister responsible for that body, corporation or entity shall be
deemed to be a party on an equal footing with such employer and accordingly is a party to
the negotiation of such collective bargaining agreement.

In conclusion the collective bargaining provisions in terms of section 74 covers all the
sufficient areas of a contract of employment. Both parties should be able to negotiate in good
faith. However the Labour Act is only limited to private employees and does not cover the
majority of the Zimbabwean workforce.

Reference

Prov Hoffmann and Zeffertt (2017), in The South African Law of Evidence, ided that the
collective bargaining agreement shall be endorsed to reflect such higher rates of pay or other
more favourable conditions of employment.

Fumane 'Malebona Khabo Collective Bargaining and Labour Disputes Resolution : is SADC
Meeting the Challenge? ILO Sub-Regional Office for Southern Africa, Harare: ILO, 2008 40
p. (Issue paper No. 30

Labour Act 28:01

Labour Act 28:01, Amendment 11 of 2023

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Freedom of Association and the Protection of the Right to Organize Convention, 1948
(No.87)

Right to Organize and Collective Bargaining Convention, 1949 (No.98)

Collective Bargaining Convention, 1981 (No.154).