Non-managerial vs managerial workers’ committee

Davies Ndumiso Sibanda, Labour Matters
THERE has been a lot of confusion as to whether managerial employees can legally form a workers’ committee like non-managerial employees.

The Labour Act Chapter 28:01 provides for the formation of a managerial and non-managerial workers’ committee in section 23(1) which reads,

“(1) Subject to this Act and any regulations, employees employed by anyone employer may appoint or elect a workers’ committee to represent their interests:
Provided that no managerial employee shall be appointed or elected to a workers’ committee, nor shall a workers’ committee represent the interests of managerial employees, unless such workers’ committee is composed solely of managerial employees appointed or elected to represent their interests.

This provision clearly and unambiguously provides for the managerial employees workers’ committee and as such managerial employees have every right to elect and appoint members of the workers’ committee.

It, therefore, follows that managerial employees can also have their own works council where they can engage with the employer and negotiate and sign collective bargaining agreements covering managerial employees.

There are many employers who have taken non managerial employees conditions of service that have been prescribed by NECs for non-managerial employees and have extended them to managerial employees.

This is illegal unless the managerial employees workers’ committee managerial employees NEC or individual managerial employees accept such an extension.

Alternatively, there will be no problem if the said conditions are identical to the organisation’s human resources policies and procedures but that is highly unlikely.

Where the employer extends non-managerial employees collective bargaining agreements to managerial employees, a number of problems arise when some managerial employees object to having these conditions extended to them.

For example, a Code of Conduct that was not negotiated with the managerial employees but with non-managerial employees cannot be legally extended to managerial employees, the employer is likely to run into problems if a managerial employee who is being disciplined argues that the Code of Conduct that is being used is inappropriate as it was negotiated and registered by a body that has no authority to extend it to managerial employees even if the Code of Conduct says it covers all employees.

There have been cases where employers have extended non managerial employees’ collective bargaining agreements on wages to managerial employees and thereafter managerial employees have demanded to negotiate on their own arguing that the employer voluntarily extended the non-managerial employees CBA agreed salaries to them without consultation and as such they will like to negotiate beyond what has been given as it is not binding on them.

Such cases present complex legal problems for employers.

Many employers are afraid of having managerial workers’ committees due to their limited understanding of labour law and labour relations. In my opinion there is a lot for the employer to gain from the managerial workers’ committee if it is properly utilised as it creates a forum for involving all managerial employees in getting commitment towards meeting organisational goals.

Generally, is it executives who do not understand labour relations, people management and performance management who fear the formation of a managerial employees workers’ committee as they fear having their weaknesses exposed when the managerial employees make brilliant contributions towards the growth of the business which in a number of occasions have produced better quality of decisions than the executive team meetings.

I know of an organisation that has more MBA holders in the managerial workers’ committee than in the executive team and the CEO has used his skills to tap on the vast capacity of the managerial workers’ committee to guide the organisation towards achievement of goals.

Why managerial employees will form managerial employees workers’ committees in the majority of cases is because there is a large number of managerial employees whose interests cannot adequately be catered for in one on one meetings with the employer and the employer will be failing to effectively utilise management meetings to the frustration of managerial employees.

However, there are cases where the employer’s failure to recognise and value managerial employees will result in managerial employees seeking to assert their rights through the formation of the managerial workers’ committee.

Generally, in a number of large organisations where the employer has taken an interest in the managerial employees’ conditions of service and has very open lines of communication devoid or victimisation, managerial employees will not collectivise and form a managerial workers’ committee.

There are many cases where managerial workers’ committee formations are a reflection of poor management of labour relations by the executive team.

In some cases managerial employees have even made an effort to illegally seek refuge in the non-managerial trade unions, others have joined legal aid bodies and some have a standing arrangements with lawyers to represent their interests before the employer.

When such things happen, it is a sign of failure by the executive team to manage labour relations.

In conclusion, managerial employees have a right to form workers’ committees, works councils and trade unions.

However, the employer must understand the reason why the workers have done so as the workers could do that with good intentions or they could be making a statement that the employer is failing to look after them.

– Davies Ndumiso Sibanda can be contacted on: E-mail: [email protected]