Unpacking unfair labour practice

GENERALLY speaking “unfair labour practices” are those employer actions that interfere with union rights. In addition, the union’s failure to fairly represent its members or refusal to work with employers on issues of mutual concern, for no justifiable reasons can be considered such a practice.
From the above, it should be noted that both employer and employee or union or workers’ committee can commit acts of unfair labour practice. However, for this paper I will only focus on unfair labour practices by the employer.
In terms of the Labour Act Chapter 28:01, an employer, or any other person, commits an unfair labour practice if, by act or omission, he prevents, hinders or obstructs any employee in the exercise of any right such as employees’ entitlement to membership of trade unions and workers’ committees.
The Act also protects the employees from forced labour but forced labour does not include any labour required in consequence of the sentence or order of a court.
Any labour required of a member of a disciplined force in pursuance of his duties as such or any labour required of any person by virtue of an enactment in place of service as a member of any such force, any labour required by way of parental discipline and any labour required by virtue of an enactment during a period of public emergency or in the event of any other emergency or disaster that threatens the life or well-being of the community.
Discrimination based on race, tribe, place of origin, political opinion, colour, creed, gender, pregnancy, HIV/Aids status or disability, subject to the Disabled Persons Act (Chapter17:01) and  any disability in matters to do with employment also constitute unfair labour practice by the employer.
Failure by the employer to observe employees’ right to fair labour standards and protection of employees’ right to democracy in the workplace also constitute unfair labour practice.
An employer commits unfair labour practice in terms of the Labour Act if they also refuse to negotiate in good faith with a workers’ committee or a trade union which has been duly formed and which is authorised in terms of this Act to represent any of his employees in relation to such negotiation.
Refusal on the part of the employer to co-operate in good faith with an employment council on which the interests of any of his employees are represented or failure to comply with or to implement a collective bargaining agreement or a decision or finding of an employment council on which any of his employees are represented also constitute unfair labour practice on the part of the employer.
Refusal by the employer to bargain collectively or otherwise dealing with another trade union, where a registered trade union representing his employees exists constitutes unfair labour practice.
Other forms of unfair labour practice include situations whereby the employer demands from any employee or prospective employee any sexual favour as a condition of the recruitment for employment, the creation and classification or abolition of jobs or posts, the improvement of the remuneration or other conditions of employment of the employee, the choice of persons for jobs or posts, training, advancement, apprenticeships, transfer, promotion or retrenchment and  the provision of facilities related to or connected with employment and any other matter related to employment .
Making unilateral decisions such as amending employee’s contract of employment or pay cuts without consulting the concerned employee are clear cases of unfair labour practice. The employer will also be guilty of unfair labour practice if he engages in unwelcome sexually determined behaviour towards any employee, whether verbal or otherwise, such as making physical contact or advances, sexually coloured remarks, or displaying pornographic materials in the workplace.
An employee who becomes a victim of unfair labour practice should not just rush to the courts or NECs without first trying to resolve the matter with the employer unless the employer is that kind of a person who boasts an “open door policy”, when in actual fact there is a lion seated on the chair.
Employees are encouraged to try to use the internal avenues or procedures as laid down in the organisation’s Grievance Handling Procedure. However, if all this fails to bring about the desired result, one can then approach the Ministry of Labour, in terms of the aforementioned Act.
A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration. If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing. If the dispute or unfair labour practice is not settled within 30 days after the labour officer began to attempt to settle it, the labour officer shall issue a certificate of no settlement to the parties to the dispute or unfair labour practice. The parties to a dispute or unfair labour practice may agree to extend the period for conciliation of the dispute or unfair labour practice.
After a labour officer has issued a certificate of no settlement, the labour officer, upon consulting any labour officer who is senior to him and to whom he is responsible in the area in which he attempted to settle the dispute or unfair labour practice, shall refer the dispute to arbitration. The arbitrator’s decision shall be final and can only be appealed against at point of law.
As such all progressive employers are reminded to uphold the principle of fair play as any foul play on their part may cost them a lot. Employees deserve to be treated as humans and any attempt to violate their rights will one day backfire.
l Taurai Musakaruka is Human Resources Practitioner.
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