adminLabour matters Davies Ndumiso Sibanda
EMPLOYERS and unions, while they continue to litigate on whether the various terminations on notice are legal or not, they should spend more energy on preparing to make input into the Labour Act Amendment Bill otherwise we will end up with another problematic piece of legislation.
There is a need to look at how the present common law problem can be dealt with in order to protect employees from unfair dismissals and also to protect employers from long periods of holding labour that is not productive due to fear of retrenchment costs and related processes.
A lot of time has to be spent on looking at sections of the Constitution that have to be expressly read and written into the Labour Act such as the meaning of fairness in various sections by the employers in order to avoid the present challenges where employers say it is fair to terminate on notice without giving reasons and labour is saying fairness requires employers to give reasons for termination. While this could be a Constitutional issue, it is better to have it unpacked and simplified in the Labour Act as many employers and labour have no capacity to litigate until the Constitutional Court.
The challenge of statutory and voluntary National Employment Councils (NEC) needs to be clarified if the powers the Minister is promising to give to NECs are to help build industrial harmony. As things stand, all NECs are voluntary and employers and unions are not compelled to join them.
Currently, we have a situation where many unions operate outside the NECs and are unable to enforce NECs bargaining agreements. This is a problem that employers and unions should make sure that the amendment deals with.
A number of ILO statutes that workers believe will help their lot are not written into our labour laws and as such they are not relevant in our labour relations environment. The position will remain so until they are written into our labour laws. Unions should therefore be expending their energies preparing input to the Labour Act in this area.
Representation at the Labour Court is restrictive leaving out labour consultants whose abilities and aptitudes in labour law cannot be ignored. Other than that, they are affordable and understand labour matters better than some lawyers. In my view, employers and workers who cannot afford legal fees can benefit from services of lower levels in the majority of cases. It is therefore advisable that employers and unions put their minds into how the bill can incorporate these service providers in representation rather than restrict them to arbitration only.
Another area of consideration is arbitration. While regulations gave us a good start, there is a need to incorporate the regulations into the Act or have an independent Labour Arbitration Act.
Further, our retrenchment laws which have been overly expensive for employers have taken us to the termination on notice challenges we face today, meaning that there is a need to deal with the procedures so that the employers and workers are in a win-win situation.
In conclusion, employers and unions need to be careful and adequately prepare for the bill as it is clear that everybody is rushing this bill meaning that while maintaining its urgency, we need to be extra vigilant to avoid making amendments with more problems.
Davies Ndumiso Sibanda can be contacted on:
E: [email protected] C: 0772 375 235
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