Introduction
The fundamental promise of any right is not just its proclamation in the Constitution or legislation but the existence of a clear, accessible, and effective pathway to its enjoyment. For public servants in Zimbabwe, the constitutional right to collective bargaining is a promise now under threat, not from an outright denial, but from a legislative sleight of hand. The recently tabled Public Service Amendment Bill [H.B. 8, 2025] while making ostensible strides towards alignment with the Constitution, creates a framework that is, in practice, a right without a route. It systematically fails to establish a genuine collective bargaining system, instead cementing a unilateralist approach that renders the constitutional right illusory. This article exposes the missing link between the constitutional right and its enjoyment through an impending apparent legislative gap.
Meaning of collective bargaining
Collective bargaining is defined by Grogan J as that process in terms of which employers and employee collectives (trade unions or associations or organisations) seek to reconcile their conflicting goals through a process of mutual accommodation. The International Labour Organisation (ILO) defines the same collective bargaining in art. 2 of the Collective Bargaining Convention, 1981 (C.154) as follows;
For the purpose of this Convention the term collective bargaining extends to all negotiations which take place between an employer, a group of employers or one or more employers' organisations, on the one hand, and one or more workers' organisations, on the other, for—
(a) determining working conditions and terms of employment; and/or
(b) regulating relations between employers and workers; and/or
(c) regulating relations between employers or their organisations and a workers' organisation or workers' organisations.
Further, it must be noted that the ultimate goal of collective bargaining is to reach to a collective bargaining agreement after the negotiations. This clearly appears from the definition of collective bargaining agreement in terms of s 2 of the Labour Act [Chapter 28:01] which reads; "collective bargaining agreement" means an agreement negotiated in accordance with this Act which regulates the terms and conditions of employment of employees.
The Constitutional Foundation: A Promise of Parity
To understand the Bill's failure, one must first appreciate the constitutional standard it purports to meet. In 2013, the country adopted the Constitution of Zimbabwe Amendment (No. 20) Act, 2013. This supreme law of the land brought with it fundamental labour rights under s 65. These rights include the right to collective bargaining under s 65(5)(a). The section is unequivocal:
(5) Except for members of the security services, every employee, employer, trade union, and employee or employer's organisation has the right to -
(a) engage in collective bargaining;
(b) organise;
(c) form and join federations of such unions and organisations.
Public servants are not part of the security services. The security services are defined in s. 207 of the Constitution. These are; Defence Forces, Police Service, the Prisons and Correctional Service and Intelligence Services and any other security service established by an Act of Parliament.
This s. 65(5) provision thus places public servants on an equal footing with their private-sector counterparts who enjoy such right under the Labour Act. The right is unqualified; it is a fundamental human right. Crucially, s. 203(1)(b) of the Constitution mandates the Public Service Commission to fix and regulate conditions of service of public servants including their salaries, allowances and other benefits subject to the right to collective bargaining under s 65(5) of the Constitution.
The constitutional vision is clear: a move away from unilateral government determination of conditions of service towards a system of collective determination through representative bodies. This is the very essence of collective bargaining. The new constitutional dispensation marks a complete departure from the past traditions which can be aptly described in the words of DEVITTIE J in S v Sithole 1996 (2) ZLR 575 (H) wherein it was stated;
... The present Constitution, ..., is a radical departure from an authoritarian past in which scant regard was paid to the rights of the individual ... Our constitutional history enlightens us to the values on which the present Constitution is premised — but more important, it should alert us to the dangers of retaining the authoritarian traditions of the past.
The Existing Framework: A History of Unilateralism
The current Public Service Act [Chapter 16:04] has long been criticised for stifling this right to engage in collective bargaining. Section 19(1) of the Public Service Act allows the Public Service Commission to determine conditions of service of public servants including salaries and allowances in consultation with the Minister of Public Service, Labour and Social Welfare. Concurrence of the Minister of Finance is required when the conditions relate to expenditure on the Consolidated Revenue Fund. The process does not involve the workers or their representatives. It is dominated by the employer party. The section reads;
Subject to the Constitution, this Act and the Labour Act [Chapter 28:01], the conditions of service applicable to members of the Public Service, including their remuneration, benefits, leave of absence, hours of work and discipline, shall be determined by the Commission in consultation with the Minister:
Provided that, to the extent that such conditions may result in an increase in expenditure chargeable on the Consolidated Revenue Fund, the concurrence of the Minister responsible for finance shall be obtained.
Section 20 of the same Act on the other hand, mandates the Commission to engage in regular 'consultation' with associations and organisations representing public servants as to conditions of service. Be that as it may, consultation is not collective bargaining. Further the same section states that absence of such consultation or absence of agreement does not invalidate the decision of the Commission on salaries and conditions of service. In this setup, unions can only be "consulted" or "make representations." The ultimate power to decide rests solely with the Commission. This is the antithesis of collective bargaining, which implies a negotiation between parties with the goal of reaching a mutually binding agreement.
There is a clear distinction between consultation and collective bargaining. This distinction was drawn in the case of Metal and Allied Workers Union v Hart Ltd (1985) 6 ILJ 478 (IC) at 493 H-I wherein it was stated;
There is a distinct and substantial difference between consultation and bargaining. To consult means to take counsel or seek information or advice, from someone and does not imply any kind of agreement as an end result, whereas to bargain means to haggle or wrangle so as to arrive at some agreement on terms of give and take. The term negotiate is akin to bargaining and means to confer with a view to compromise or come to an agreement.
The Amendment Bill: A Missed Opportunity and a Regressive Step
The Public Service Amendment Bill was a golden opportunity to break from this past and finally give life to sections 65(5)(a) and 203(1)(b) of the Constitution. Instead, it fails in five critical ways:
1. The manifest absence of a clearly defined right to engage in collective bargaining
The Amendment Bill does not mention that public servants and their collectives i.e. trade unions have the right to engage in collective bargaining. In fact, the whole Bill mentions the term 'collective bargaining' once when it states that service regulations may make provision for collective bargaining. These regulations are made in terms of s. 31 of the Public Service Act. They are made by the Commission with the concurrence of the Minister of Public Service, Labour and Social Welfare. They are made unilaterally by the employer party without involvement of the employees or their trade unions, associations or organisations.
2. The absence of a properly established collective bargaining forum
The Bill should have set up a collective bargaining forum or at the very least a framework of its existence. Instead, the opportunity was sullied. There is no framework, there is no forum and there is no right. The current set up of the National Joint Negotiating Forum (NJNC) under the Public Service (Public Service Joint Negotiating Council) Regulations SI 141 of 1997 has proved to be a failure.
3. Preservation of the Commission and Ministerial overrides
The retention of s 19 of the Act which speaks to the Commission's power to fix and regulate conditions of service without express mention of the right to collective bargaining is fatal to the interest of the public servants.
4. Retention of Consultation Provisions
The Bill retains s. 20 of the Act. The section relates to the Commission's authority to consult employees' associations and organisations on conditions of service. This is opposed to collective bargaining. Further the section states that absence of consultation or agreement will not invalidate the Commission decision on conditions of employment. This promotes and facilitates unilateralism.
5. The Vagueness that Masks Control
By omitting critical details such as the mention of the right to engage in collective bargaining in the Bill, the binding nature of agreements reached, dispute resolution mechanisms, and the specific powers of the Forum (if any were to be set), the Bill kicks the can down the road. It delegates the power to define the entire process to the Commission and the Minister through regulations. This means the very government that is the opposing party in the negotiation will write the rules of the game. This is a fundamental conflict of interest and a sure recipe for a system designed to maintain state control, not enable genuine bargaining.
Conclusion: A Right Hollowed Out
The Public Service Amendment Bill does not create a route for collective bargaining; it erects a detour that leads back to the status quo. It provides the appearance of constitutional compliance while meticulously ensuring that the final authority over the public servant's terms of employment remains firmly where it has always been: in the hands of the executive.
By failing to explicitly mention the right in the Bill and failing to establish an independent bargaining framework, protect the principle of good faith negotiation, and curtail its own unilateral powers, the government is offering a hollowed-out right. It is the right to have a meeting, but not the right to reach an agreement. It is the right to talk, but not the right to be heard.
For the public service; the teachers, nurses, and civil servants who form the backbone of the nation, this is not the reform they were promised. True alignment with the Constitution requires more than just creating a forum with a fancy name; it requires a genuine transfer of power from the State to the bargaining table. Until that happens, the fundamental right in Section 65(5)(a) of the Constitution remains, for them, a right without a route.
Public hearings for the Bill are yet to come. It will be an opportunity to voice out and demand the needful; a proper right to engage in collective bargaining and a proper bargaining space. For the legislature, when the ghosts of the past stand in the path of a new constitutional dispensation clanking their medieval chains, the proper course is for them to pass them undeterred.
Prepared by:
Edzai Edson Matika | Yvonne Chiratidzo Bamu | Kundai Mapuranga
Harare, 22 August 2025