LABOUR Commissioner Givens Muntengwa says Zambia Congress of Trade Unions (ZCTU) secretary-general Cosmas Mukuka cannot continue to serve in that capacity because his primary employer has retired him in national interest.
In a letter addressed to the Union president Nkole Chishimba and copied to the office of the Attorney General, Ministry of Labour, General Education and to the Teaching Service Commission, Muntengwa guided ZCTU to pay Mukuka his dues.
“I am compelled to guide that for as long as the retirement in national interest of Mr Mukuka still stands, it follows that he should cease to hold office. In other words, the retirement by the primary employer leaves his contract of employment, which ZCTU in abeyance and, ultimately, being incapable of further execution. To that effect, ZCTU is liable to pay Mr Mukuka his dues on a pro-rata basis as the contract has been terminated by operation of law. Further, the other question raised on the salaries before his pension benefits are paid, can be handled by the primary employer, which is the Teaching Service Commission through the Ministry of General Education,” Muntengwa stated.
He said the new labour law required that only people, who were employed outside the trade union, were qualified to be elected or serve under trade unions.
“However, I wish to provide clarity that contrary to your assertion that the decision to retire Mr Mukuka was made in accordance with Clause 38 (e) of the terms and conditions of the public service, the correct position is that the terms and conditions of the public service merely reinstated a legal provision, which is well provided for under regulation 29 C of the Teaching Service Commission Regulations No.172 of 1971, which states that ‘29 C (1) The Commission may retire an officer in the service in the national interest; (2) Retire in the national interest shall be limited to cases where an officer has to relinquish his appointment at the instance of government either to take up another appointment outside the service or for other reasons of government policy.’ In light of the cited provisions, you went to state that Mr Mukuka was a duly seconded officer and that he has been serving as a secretary-general of the Zambia Congress of Trade Unions, a non-public service organization, which is an independent, autonomous corporate body and in that context, there was nothing applicable within the terminology of public or national interest about his duties, activities or functions as secretary general of ZCTU,” stated Muntengwa.
“Ordinarily, I must confess that your arguments were sound before the amendment of the Industrial and Labour Relations Act, Cap 269 of the laws of Zambia. In this case, please be guided that Section 18 (1) (h) of the Industrial and Labour Relations Act, Cap 269 of Zambia as amended by the Industrial and Labour Relations (Amendment) Act No. 8 of 2008 provides ‘No person shall be qualified for an election or appointment as an officer of a trade union is an officer of a trade union or trade union secretariat, who is not employed outside the trade union of trade union secretariat.’ Additionally, Section 18 (2) of the same Act is instructive and thus it provides; ‘an officer of a union shall cease to hold office if any circumstances arise, which would disqualify him under subsection (1) for election as an officer.”