IV. Anti-Union Activities

If you don’t ever talk, if you don’t ever complain, then the Chinese [managers] will like you.[272]

—Union Representative at Sino Metals, November 2010

While at least one union exists at each Chinese-run copper mine, the Chinese copper mining operations in Zambia have inhibited workers from joining Zambia’s oldest mining union, the Mineworkers Union of Zambia (MUZ). MUZ was established in 1948, prior to independence, as the Northern Rhodesian African Mineworkers’ Union. The second main union, the National Union of Miners and Allied Workers (NUMAW), was formed in 2003. Both represent thousands of miners across the Copperbelt, but management in several Chinese-owned operations appear to have chosen to accept only NUMAW, despite some workers expressing a clear preference to be represented by MUZ. Domestically in China, there is only one legal trade union—the government-affiliated All-China Federation of Trade Unions—and many problems described in this section are similar to those experienced within China.[273] At every non-Chinese copper mine, workers have been free to establish and join branches of both unions.

In addition to impeding the establishment of MUZ, union leaders at the Chinese operations said that they faced discrimination because of their union activities. These problems were not limited to the Chinese mines—union representatives at several non-Chinese mines also expressed concerns for this. This raises broader issues regarding the right to association and union activity in Zambia.

The right of workers to join unions of their choice is protected under international human rights and labor law. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights both provide for the right to freedom of association with others, including “the right to form and join trade unions” for the protection of their interests.[274] Likewise, ILO Convention No. 87 concerning Freedom of Association and Protection of the Right to Organise states, “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.”[275]

In 2009, the International Trade Union Confederation (ITUC) noted that while “Zambia has ratified the ILO Conventions on trade union rights… the legislation on freedom of association and collective bargaining is not in full conformity with ILO Conventions … [and] trade union rights are widely flouted in the mining sector in particular.”[276] In particular, the ITUC found that, in contravention with the ILO conventions, Zambian law permitted the stopping of strikes that were not in the public interest and subjected them to procedural requirements that made it “almost impossible … to hold a legal strike.”[277] The ITUC noted a “worsening social climate in the mining industry” for trade unions, with specific reference to “Chinese investors who are often accused of intimidating and brutal attitudes.”[278]

Efforts to Bar MUZ at CCS, Sino Metals

Management at two Chinese-owned copper mining operations have actively impeded workers from joining MUZ. Although opinions vary greatly throughout the Copperbelt, MUZ is often reputed to have greater resources and energy to fight for members’ rights than has the much newer NUMAW.

At China Luanshya Mine (CLM), where the previous structure was kept in place following CNMC’s purchase, both NUMAW and MUZ operate freely. And at NFCA, MUZ has operated a branch office since 2006, with NUMAW establishing its own branch office since soon after that union’s creation in 2003. But in the Chambishi processing and smelting operations—Sino Metals and CCS—management has continued to refuse to sign a recognition agreement with MUZ, according to Charles Muchimba, the director of research at MUZ’s national office. He told Human Rights Watch:

We took [Sino Metals] to court over this, over their refusal to allow a “recognition agreement” that allows you to form an elected branch of the union on site—that allows you to set up a branch office, essentially. The court ruled in our favor in 2007, or 2008, but there is still no branch there. Sino Metals still does not allow us…. At CCS, it’s similar. Workers submitted papers to join MUZ, but the company instead only allowed NUMAW. No [MUZ] branch office is allowed there either. They refuse to enter into a recognition agreement with MUZ, but have allowed NUMAW on the scene…. There was a point where the workers were so angry that they withheld their subscription dues from NUMAW to try to be able to join MUZ, but it has calmed down since…. We took CCS to court as well, and the court decided in our favor. Yet we still can’t get access. The company won’t sign a recognition agreement…. It has been a long time since we last approached [the company], because we moved the issue to the courts. It ruled in our favor several years ago, but [the judgment was ignored], nothing has changed.[279]

A MUZ official in Chambishi who has worked to establish a CCS branch, explained further:

At CCS, there are only about 300 unionized workers [out of 900 total]—those belonging to NUMAW. The rest are not unionized, because the company won’t allow MUZ, and the workers want MUZ. Previously papers were filed by workers who wanted to join MUZ, I helped organize this, but the company then told us that “they were misplaced.” The HR officer has told us that they are not refusing MUZ, but that the paperwork must be in order. This has gone on for years though, even after courts ruled in our favor.

Next time, which we are starting right now, we will collect the forms in the township, and we will hold on to them ourselves. We will not give them to the company again so that they can “misplace” them. We have a strategy, we will be more careful this time.[280]

Miners at both CCS and Sino Metals expressed a strong desire to have MUZ’s representation, and had even taken steps to secure their representation before being threatened by management. An acid plant operator at CCS, who identified MUZ as stronger on workers’ rights and tending to support the political opposition, explained:

We have two main unions here in Zambia, MUZ and NUMAW…. The Chinese know that MUZ is considered pro-[Sata], and also that it has more power. It’s older and stronger. MUZ tried to establish a branch here at CCS, with NUMAW already here. The chief executive of CCS kept them out though. The management wants to make sure and keep us from being able to join them, even though many of us want to…. The majority of workers in fact think that NUMAW is weak, but we cannot join MUZ.

MUZ brought forms awhile back, it was probably a year ago at least, early when I was working here [since early 2009]. Management made clear to us that we would be dismissed if we signed. A lot of us had already signed them—I had—but we ripped them up and threw them away when we were told that. I can’t lose my job, even if I’d prefer MUZ.[281]

A miner at the Sino Metals processing plant expressed similarly:

Right now, we only have NUMAW; the management won’t allow MUZ to come in, because they know it’s stronger. They say if we bring MUZ, MUZ will cause too much problems advocating for [our rights]. We’ve tried, but with no success. We have tried to sign stop orders, it’s been over two years since many of us did this. We gave them to HR, who is still keeping the forms and does nothing. If MUZ was allowed in, it would help.[282]

Another worker at Sino Metals said that to keep the workers from joining MUZ, “Zambian bosses have told us that the Chinese will fire anyone who tries to establish MUZ here.”[283]

A 2007 report on the Zambian copper industry noted shortcomings in Zambia’s labor legislation in terms of protecting the right to establish a union branch office:

Zambia’s weak labour legislation makes organising workers, particularly setting up union branches in new workplaces, difficult. Unions cannot simply go into a company and announce that they want to recruit. Rather, before recognition can be considered, the union must identify a “shadow committee” of employees. However, the experience of MUZ organizers is that once such a committee is established, firms have simply sacked those staff that constitute the committee, sending a clear message to the workforce that unionism will not be tolerated. MUZ representatives report that they are having to adopt underhand tactics, “The moment they are publicly known we have ended up finding that the whole shoot are dismissed. So, when you go there, once you have identified a shadow committee they have to clandestinely organise.”[284]

In response to Human Rights Watch’s letter describing our main findings, the Chinese parastatal that owns the four copper mining operations in Zambia denied that either CCS or Sino Metals had ever interfered with workers’ rights to join the union of their choice. Specifically on CCS, the response indicated that discussions with MUZ had been undertaken in 2009, but MUZ did not present the signatures necessary to establish a recognition agreement.[285] As noted above, MUZ officials and CCS employees told Human Rights Watch that this was due to active undermining by CCS management. The letter from CNMC further states that “[w]e have discussed this with NUMAW leaders who are of the opinion that that for a company like Chambishi Copper Smelter, where there are less than 1,000 workers, one union suffices.”[286] It is unclear why CCS would consult with NUMAW, MUZ’s competitor union, to determine whether the presence of a second union was warranted—rather than allow the miners themselves to make the decision.

In regards to Sino Metals, the CNMC letter stated:

Although there is only one union in the company at the moment, this cannot be used to illustrate that the company is engaging in “anti-union activities.” The type of union in a company, and the number of unions that choose to enter the company, depend on the choices that the workers make based on their free will, and are matters to do with the workers themselves. The company will not, and does not have the right to, interfere with any union that enters the company lawfully.[287]

As with CCS, MUZ officials and Sino Metals employees expressed in interviews with Human Rights Watch that they did not have the freedom to establish a MUZ branch office.

When asked in November 2010 about several Chinese operations blocking MUZ from representing workers, the deputy labor minister, Simon Kachimba, told Human Rights Watch:

Any employee is free to join a union. A company can’t refuse a union, there is no way that this would happen. If MUZ is being denied somewhere, they should involve us. If MUZ involves us and says that they want to recruit at a mine where workers want them, we will summon management. They took the wrong channel by going to court. We are the custodian.[288]

In July 2011, Venus Seti, the assistant labor commissioner from the Ministry of Labour and Social Security, said that MUZ should be allowed in and the companies’ blocking of MUZ “is a big problem if true.”[289] As with the deputy labor minister, he said that labor disputes are to be referred to the Ministry of Labour for “amicable resolution” before going to the court of law.[290] However, Zambia’s Employment Act does not appear to require that the Ministry of Labour be seized before a complainant files a case with a court, saying that whenever a dispute arises, “the party aggrieved may report the matter to a labour officer, who shall thereupon take such steps as may seem to him to be expedient to effect a settlement between the parties.”[291] The word “may” implies that it is one of several options, and additional provisions of both the Employment Act and the Industrial and Labour Relations Act indeed reference filing complaints without mention to labor officers.[292]

Regardless of the correct manner to settle the dispute, management’s efforts to bar MUZ at CCS and Sino Metals, including the intimidation of workers seeking representation, would appear to violate Zambia’s Industrial and Labour Relations Act, which gives employees the right to form and be a member of the trade union of their choice.[293]

Intimidating Union Representatives

Union officials at the three Chambishi-based copper mining operations alleged that Chinese management acted improperly against both the local union branch and individual representatives. ILO Convention No. 135 states that “[w]orkers’ representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers’ representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements.”[294] A union representative at Sino Metals described to Human Rights Watch the contrast between these requirements and the conditions at the mine where he worked:

The Chinese don’t understand the concept of a union. They intimidate those that lead or are part of a union. If they know you’re a representative, you’ll encounter problems, they’ll try to frustrate you until you leave the job. For me, before I was working in the [omitted to protect anonymity] department. But they transferred me to the crusher department because I’m a representative. We all know why these transfers happen, as it always touches the same people, [union representatives]…. It’s a much tougher environment in the crusher, it’s very dusty. I don’t have experience there, it’s not my background, they just wanted to make me leave…. Basically, if you’re in the union, they’re going to try to frustrate you. If you don’t ever talk, if you don’t ever complain, then the Chinese will like you.[295]

Several other union representatives at Chinese-run mines described being transferred to different departments where they had no experience, without being consulted, in what they perceived as an attempt to either make them quit or pressure them into shunning their union responsibilities. A union representative at NFCA described what he believed was retribution for attending union meetings:

Several times I’ve been harassed and intimidated because of my union ties. [Earlier this year], I was forcibly transferred; they moved me to machines, because they wanted me to stop attending union meetings—the machines department is much farther from where meetings are organized and held…. [Several months later], they charged me for attending a meeting, which is directly against the law. The manager claimed that I did not have permission from the immediate supervisor, even though I had received it. I had asked my [Zambian] supervisor, he approved, and I went. Then the Chinese manager said that I didn’t; the supervisor wasn’t going to cross him, then he would just lose his job. My supervisor said the instructions came from above, so he couldn’t do anything; he said that the Chinese manager “insisted that I charge you.” So the Chinese manager gave me a “charge,” which indicated a “final warning.” I could be fired for the next one, so it is a way to keep me from my union duties. The Chinese don’t give any respect to the union, they see us as enemies.[296]

In addition to the guarantees outlined in ILO Convention No. 135, described above, ILO Convention No. 98, the Right to Organise and Collective Bargaining Convention, guarantees workers adequate protection “against acts of anti-union discrimination” including, specifically, “acts calculated to … cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.”[297] Although Human Rights Watch was not able to verify with the supervisor in this specific circumstance whether permission was provided in accordance with company policy for meetings conducted within working hours, union representatives across the Chinese-run mines repeatedly voiced similar complaints alleging prejudice for attending union meetings with authorization. A union representative at CCS told Human Rights Watch:

They don’t understand unions at all. To go to a union meeting, you need to get a note from HR, who take it to the Chinese. We do this, but the Chinese still cause us problems. I get bad performance assessments that say, “Always going to meetings.” So they allow us to go, they don’t expressly bar us from going, but they view us as bad workers for taking care of our union responsibilities. And the problem is that when it comes time for renewing contracts—because we’re all just on one- or two-year contracts—they won’t renew you because of your bad performance reviews. So we’re facing a lot of problems as union officials. Sometimes I turn down going to important meetings just so I don’t have to deal with my boss the next day.[298]

A union representative at Sino Metals likewise said:

We receive a lot of intimidation from the managers. I need to perform my duties as the union representative, to move around the plant and discuss problem with people, to see the conditions and have things reported to me, but the Chinese tell me that if I move around and discuss, they’ll fire me. They also threaten to give me less for a production bonus, because they say, “You spend too much time in meetings.” I’ve received less several times…. And they’ve said that they can’t [increase] my salary because I’m the union rep. I do the duties of a supervisor—I have for the last 18 months—but I’m paid the same as an attendant…. And our contracts make it more difficult. It’s one year, two years, even for those of us that have been here since inception. Management says that it’s not ready to give us permanent employment. As a result, we are all worried that our contracts will not be renewed, so we can’t strike, we can’t complain, we can’t do anything to show our displeasure with the conditions.[299]

The one- and two-year contracts that are standard in the Chambishi-based Chinese mining operations were repeatedly described as obstructions to meaningful union activity. Union representatives and members at each of these operations identified outspoken colleagues who had been union officials in the local branch and then had their contracts not renewed by management. Human Rights Watch interviewed several of these officials, who said they received a written notice that their contract would not be renewed, without further details or explanation.[300] While Human Rights Watch could not verify whether union activity was related to termination in each specific case, there does appear to be a pattern of not renewing “troublesome” union representatives. And the perception that union activity was likely to negatively impact a person’s employment, regardless of performance, was expressed in nearly all interviews with Human Rights Watch. Non-unionized workers at Chinese mines often explained their decision to not join a union, such as this miner at CCS: “The unions are compromised. If they do anything to help us, they’ll be fired. So they’re just there. If the Chinese respected unions like the other mines, I’d join, but now, there’s no reason.”[301] [See text box below for discussion of anti-union activities in other mines.]

In response to Human Rights Watch’s concerns, CNMC said that its companies had “harmonious” relations with the unions.[302] CNMC did not directly address the issue of prejudice against union representatives in several of its companies, however. For NFCA, the letter said the existence of yearly collective bargaining negotiations and the company’s decision to avoid downsizing during the 2008 economic crisis demonstrated “the sincere collaboration” between management and the unions. For CCS, the issue of prejudice was not addressed in the letter.[303] Concerns were more directly addressed with regards to Sino Metals. The letter stated that “Sino-Metals clearly supports the union in its lawful work and in fulfilling its legitimate union responsibilities; it welcomes and encourages the union to monitor the company in various aspects of its work.”[304] It is unclear if the company has a different conception of “legitimate union responsibilities,” as the response does not accord with Human Rights Watch’s interviews with union representatives. The CNMC letter further identified initiatives that Sino Metals has undertaken to improve management-union relations, including financial support for the union’s activities as well as the provision of office space and a canteen; regular meetings between the company’s general manager and a union representative; support in recreational and sporting events; and regular communication. The CNMC letter also states that any worker is able to lodge a complaint on any matter at any time.[305] Despite these stated initiatives, nearly all the miners and union representatives from Sino Metals who spoke to Human Rights Watch described an environment of intimidation, as described above.

Management at another CNMC company, China Luanshya Mine, appears to have instituted a positive initiative that has been more felt by the miners. The letter notes that there is consistent dialogue between management and union representatives and routine meetings in which the unions and workers can voice problems to the human resources department.[306] Miners and union representatives from China Luanshya Mine indeed expressed very few problems related to union activity, and, while this specific initiative was not mentioned, the union representatives did on several cases extol concerted efforts of engagement by the Chinese management at that company.

Zambia’s Industrial and Labour Relations Act accords employees the right to participate in union activities as well as the “the right not to be dismissed, victimized or prejudiced for exercising or for the anticipated exercise of any right” outlined in the Act.[307] The Act appears to go beyond the ILO Conventions in giving those involved in union activities “the right to obtain leave of absence from work in the exercise of” those activities, and states that “the leave applied for shall not be unreasonably withheld by the employer.”[308]

Zambia’s failure to ensure the right to association of workers, in particular to protect union representatives from prejudicial acts, including loss of employment, doubtlessly has an impact on other substandard conditions of employment addressed in this report, including poor health and safety practices and long hours without adequate overtime. Workers, particularly union representatives, expressed the view that they are unable to bargain effectively, as the anti-union pressure means they have to choose between needed job security and advocating more rigorously for improved conditions. Given the scarcity of jobs, they overwhelming choose to protect their employment.

Intimidation against Union Representatives in Other Copper Mines The two Chinese-run operations in which MUZ is absent are the only copper mining companies in Zambia in which workers have been blocked from joining their preferred mining union. But, while anti-union activities do not reach the same level, union representatives from companies owned by other nationals at times voiced similar complaints regarding prejudice against them. A union representative at the Kansanshi processing plant, part of an open-pit mining operation in Solwezi owned by the Canadian First Quantum Minerals (FQM), told Human Rights Watch that several active union leaders were dismissed once their fixed-term contracts ended. The perception, according to the representative, was, “If you speak out too much, they fire you.”[309] A union representative at FQM’s mining operation similarly said his biggest problem was “intimidation” in citing a number of prejudicial acts the company had taken as a result of his position: Management has asked me to resign my position, and in return they would promote me. I refused. They even tried to bribe me. If you talk too much, they try to bribe you. Last week they told me that they were going to change me from [a mining position I’ve been trained for] to a storeroom manager. I am qualified for my job, not to be a storeroom manager. I refused the change, and I was reported to management. They are just trying to intimidate me. I was supposed to go to South Africa for a job training course even, but they have said that I must step down from the union, or I can’t go. They gave merit increases to everyone in my section except me, telling me to step aside from the union. It goes on and on.[310] At Konkola Copper Mines, owned by an Indian mining conglomerate now headquartered in London, a union official explained their efforts to target union representatives: They’re reducing the employees at the open-pit by 20 percent, deploying them to other departments. In doing this, they’ve targeted the shop stewards to paralyze union leadership there. Every time we’ve voted a new one, they’ve deployed him elsewhere.[311] Another union representative at KCM said that if a union leader is promoted, “it’s because he’s listened to management and shut up. Those of us that speak out, we’re stuck.”[312] Finally, two union members from Mopani Copper Mines said that, during the 2009 global economic crisis—when many Zambian copper mining operations laid off workers in response to low world copper prices—union representatives were often the first to be “pruned” from the company’s Nkana mine.[313] In a letter response to Human Rights Watch, Mopani’s chief executive officer said that reports of prejudicial acts were “simply untrue. In fact, we enjoy good relations with the unions at Mopani.” The response highlighted that Mopani was perhaps the only copper mining company in Zambia “not to have had a general strike over negotiations for many years.”[314] Mopani is primarily owned by the Switzerland-based Glencore International, though First Quantum Minerals owns just under 17 percent as well.