TRADE UNIONS: THE RIGHTS OF EMPLOYEES IN RESPECT TO TRADE UNION MEMBERSHIP AND TRADE UNION ACTIVITIES

A critical analysis of the cases of Kelvin Lukonde and Others v. Mopani Copper Mines (2010) and Zambia Sugar Plc v. Lumuno Mukwali (2019)
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By Kunda Mulega

16th, July, 2024

Employment Law - Trade Unions


A critical analysis of the cases of Kelvin Lukonde and Others v. Mopani Copper Mines App No. 165 of 2010 and Zambia Sugar Plc v. Lumuno Mukwali App No. 152 2019.


1.What is a Trade Union?

A trade union is an organization in which members are wholly or mainly workers and their principal purpose include the regulation of relations between employees and their employers or employers’ organization. The Industrial and Labor Relations Act (ILRA) is the law regulating matters in relation to trade unions, though it does not seem to define the word trade union. A trade union acts as a representative for employees in a specific field of work it was registered for, with its main function being, to help negotiate better terms and conditions between the represented employees and their respective employers.

The Right to Be a Member of a Trade Union.

 Being a member of a trade union is a constitutional right guaranteed under Article 21(1) of the Constitution, which provides that, except with his own consent a person has the right to be a member of a trade union, and also Section 5(1)(a)(ii) ILRA, provides that, an employee has the right to be a member of any trade union of his choice. It is clear from these provisions that, the right to be a member of a trade union is one protected by law which cannot be easily taken away, as freedom association includes the right of works to join organizations of their choosing. Thus, any infringement to this right should fall under the exceptions under Article 21(2) of the Constitution.

 In the case of Bridget Lwanga and others v. Nemchem International Ltd, the court stated that, 

"an employer that dismisses an employee as a result of that employee exercising his/her right belong to a trade union contravenes the constitution. The law is very clear and no justification can be put to the termination of employment by the employer purely on the basis that an employee belongs to a trade union or is participating in union activities."

 Despite an employer having the right to be part of a trade union and to take part in activities thereto, this right is limited to what the ILRA terms as ‘an appropriate time’. Section 5(1)(b), provides that, 

"an eligible employee shall as between himself have the he right, at any appropriate time, to take part in the activities of the trade union. Additionally, the right to absent himself from work without leave of the employer for the sole purpose of taking part in the activities of the trade union, if the leave of absence though applied for was unreasonably withheld by the employer."

A unionized employee (an employee who is a member of a trade union) is under a contract of employment with the employer and as such must carry out his obligations under the contract diligently. Carrying out union activities must be done at an appropriate time, this could mean, outside working hours or within working hours but with permission from the employer or on leave days accordingly. In order to understand the concept of ‘an appropriate time’ recourse is sought from the case of Kelvin Lukonde and Others v. Mopani Copper Mines.

Facts

The four Complainants namely; Kelvin Lukonde, Osward Simfukwe, Costain Muzyamba and Elijah Kombe were all employees of the Respondent; Mopani Copper Mines Plc. They were dismissed by the Respondent on the charge of failure to comply with established procedures on or about 23rd September 2009.  They were accused of organizing a meeting to overhaul the union leadership during working hours on the Respondent’s premises; without the consent of management. It was alleged that the Complainants sought to cause confusion to the rest of the Respondent’s employees by soliciting for them to attend the meeting, during working hours, thereby threatening to disturb the Mining operations.

Issue(s)

Whether the allegation made by the Respondent to the effect that the complainant failed or neglected to comply with the established procedure when choosing to hold a meeting in the Mining area without consent and during working hours was incorrect?

Holding

The court held that, no employer should dismiss any person for exercising his/her right to attend Union meetings, and activities.  Attendance to Union meetings, and activities however, should not be unconditional and without order.  One of those conditions must, of necessity, be that the employee concerned should have the permission of his/her supervisor; or the consent of the employer; and that such permission or consent should not be withheld without good reason. The right of employees to attend Union meetings and/or activities without the threat of dismissal should not be overstretched to protect employees who organize Union meetings and/or activities at the employer’s premises without the consent and permission of their supervisors and management.  To hold otherwise, would be promoting disorder, chaos and disruption of work and paralysis of the employer’s business.

Significance 

This case illustrates that, the right to participate in trade union activities cannot be exercised during working hours and without permission from the employer. The rationale behind this is to ensure a balance on the fair and orderly running of the employers’ business against the exercise of a unionist’s constitutional right.

This case can be distinguished from the case of Zambia Sugar Plc v. Lumuno Mukwali.

 Facts

The respondent was employed by the appellant as a unionised employee in the position of Zone Supervisor. He was subsequently elected President of the Zambia Union of Sugar Industry and Allied Workers (ZUSIAW). The said Union was duly recognized by the Appellant. On a Sunday the respondent's day off, whilst he was in the company of the Union Secretary General, the Respondent featured on a paid for phone-in radio programme hosted by Mazabuka radio station. During the said programme the Respondent made utterances about the poor working conditions and the low wages, and that management was to blame for the pathetic conditions. The Appellant's management was aggrieved with the Respondent's utterances and charged him with gross misconduct. A disciplinary hearing was duly held where the Respondent made his representations and he was subsequently dismissed from employment. His appeal to the Appellant's Managing Director proved futile.

Issues

1.      Whether a Union official, in his capacity as Union president, can be subjected to disciplinary action or procedures for words spoken at an occasion as in the present?                                     

2.      Whether the appellant’s dismissal infringed his rights to participate in union activities as a unionised employee?

Holding

The court in its holding interpreted the provision of section 5 of (ILRA), from the said provision, the Respondent as union president was at liberty to participate in any union activities. It must be noted that the participation in union activities is limited to what is referred to as "any appropriate time." Consequently, in this case, the Respondent in his capacity as Union president used his day off on Sunday to participate in the radio programme that was dedicated to addressing union matters which can be considered as "an appropriate time" to attend to such activities.

Significance

This case affirms that, an employee in his/her exercise of the right to be a member of a trade union and participate in union activities is not a basis for dismissal from his/her employment.  

From the two cases it is evident that the right to participate in union activities is not absolute but is limited to ‘an appropriate time’ and should be exercised in such a manner as not to jeopardize the functioning of the employer’s business. As seen from the case kelvin Lukonde and Others v. Mopani Copper Mines, an employer is justified in dismissing an employee where this right is exercised unreasonably. This notwithstanding, the law in Zambia Sugar Plc v. Lumuno Mukwali adequately protects employees who exercise this right within the confines of section 5 (ILRA). This section allows union members to perform their union activities without intimidation and to remain unfettered in their operations so as to enable them to adequately represent their members. Thus, any dismissal of a unionized employee participating in the activities of a trade union in accordance with the provisions of the law, is an infringement to their constitutional right.


REFERENCES

Statutes

The Constitution of Zambia Chapter 1 of the Laws of Zambia.                                          

Industrial and Labor Relations Act Chapter 269 of the laws of Zambia.

Cases

Kelvin Lukonde and Others v. Mopani Copper Mines App No. 165 of (2010).                     

 Zambia Sugar Plc v. Lumuno Mukwali App No. 152 (2019).                                                  

Bridget Lwanga and others v. Nemchem International Ltd (2017)


This Article is brought to you by:

 LEGAL AID INITIATIVE

(Access to Knowledge) 


About the Author: 


 Kunda Mulenga is a third-year 

law student at the University of Zambia and serving as

 the Secretary General of the Legal Aid Initiative

 


1 comment

  1. Awesome write up and information