JIFA alum, Judge Derrick Mulenga of Zambia, delivers important workers' rights decision

23 February 2019 · Carmel Rickard

WHEN does a union dispute become, fair and square, an issue of human rights and a test of the constitution? A recent decision by Judge Derrick Mulenga in Zambia’s high court makes a strong statement about this question: the court said the right of workers to belong to a union of their choice involved fundamental rights. These were constitutionally protected and part of an employee’s human rights. As a result, the mining company’s refusal to give official recognition to an additional trade union, and the several reasons it gave for not allowing workers to join, were all forcefully dismissed by the judge. Mbewe v Lumwana Co. Ltd. (IRC/SL/03/2018) [2018] ZMIC 292 (27 July 2018);

This article first appeared in LegalBrief

THE case landed in court because management of the company concerned refused to give official recognition to an additional trade union, and raised a number of reasons why it would not allow workers to join.

Zambian high court judge Derrick Mulenga, sitting in the industrial and labour division, gave the company’s argument a forceful dismissal. Not only did he find in favour of the workers who wanted to change union, ordering the company immediately to facilitate the necessary administrative arrangements to facilitate the change, but he also awarded punitive damages against the company as well as legal costs.

Explaining this decision, the judge said, ‘(T)he issue of employees’ freedoms and rights should not be belittled or trivialised by employers. Employees’ rights and freedoms like any human rights are not only fundamental and constitutionally protected but have further been restated in the Industrial and Labour Relations Act’.

The application against the employer, Lumwana copper mine, was brought by Sumaili Mbewe, president of the Consolidated Miners and Allied Workers Union of Zambia (CMAWUZ). His union is properly registered under Zambia law but it was given the run-around by Lumwana with management refusing to recognise the union.

Eventually CMAWUZ declared a dispute and the matter was referred to conciliation. But even though the conciliator found there was ‘no justifiable reason’ for management to refuse recognition of the union, Lumwana stood firm and the union eventually headed for court.

Mbewe told the high court that unless the company was compelled by the court to recognize the union, its members at Lumwana would be deprived of their constitutional right to freedom of association.

In his evidence Mbewe said that some CMAWUZ members at the company were previously members of the National Union of Miners and Allied Workers or the Mine Workers Union of Zambia, but that they had left these unions to join CMAWUZ.

These workers had instructed Lumwana to stop withdrawals from their salaries in favour of the unions to which they previously belonged, and instead to pay their union dues to CMAWUZ, but the company refused to do so.

In justification, Lumwana’s human resources manager claimed some of CMAWUZ’s executive members did not work in the mining sector and that ‘only 10’ employees changed unions – too few for a recognition agreement.

In oral evidence however it emerged that most of the workers who wanted to ‘change’ union, did so through CMAWUZ, asking that union to inform the company of the worker’s change in affiliation. But the company said that because it did not recognize the new union it refused to accept any notifications received through CMAWUZ.

The company gave Judge Mulenga three main reasons for not allowing the workers to change union. There were ‘not enough’ workers wanting to join CMAWUZ and so the company declined to recognize the union. In addition, the union had members ‘who do not belong to the mining industry’ and that some of the union’s executive members were ‘not eligible for membership’.

The judge pointed out that the union was legally registered to represent workers in the ‘mining and allied’ fields. True, some of the union’s members and officials were members of ‘allied’ fields, but they worked in companies that provided services to the mines and were thus included in the definition.

As to the question of numbers and the form used to notify the company of the workers’ decision to quit their old union and join another, the judge said it was the court’s ‘considered position’ that just as a worker could not belong to more than one union at a time, so ‘is not for (the company) to decide which union an employee should join or not join.’ In addition, the law did not stipulate how a change in union was to be handled.

The workers filled in cancellation and joining forms on CMAWUZ forms that clearly showed they had withdrawn from one of the other two unions and joined a third. The company continued to deduct union fees from those who had notified the company of their intention to change and paid these dues on to the previous unions. In doing so Lumwana was ‘infringing the employees’ right of freedom of association and belonging to a trade union of their choice’.

While the company questioned whether the new union’s executive members were ‘qualified’ to be members of a union representing the sector, the judge said that elections for officials of any union were regulated by the Labour Commissioner who administered the relevant law in relation to these elections. It was thus not the ‘preserve’ of the employer ‘to decide who should hold executive office’ in a union.

Like the conciliator, the judge concluded that the company had no justification for refusing to recognize CMAWUZ, and ordered that the company immediately draw up a recognition agreement with the union, that must be finalized and in place within 30 days.

By the end of September 2018 the company had to start paying union dues to CMAWUZ on behalf of all the workers who had indicated they wanted to change.

Asked by the union to award punitive damages against the company, the judge said he wanted ‘to emphasise’ that the issue of employees’ freedoms and rights should not be ‘belitted or trivialised’ by employers. In this case the company had refused ‘without justification’ to recognise CMAWUZ. It was thus ordered, by way of punitive damages, to ensure payment to the union of what the prospective 31 new union members would have paid from 2 May 2017, when the unions wrote to the company about the change in membership, until the end of August 2018.

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Mbewe v Lumwana Co. Ltd. (IRC/SL/03/2018) [2018] ZMIC 292 (27 July 2018);

Carmel Rickard

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