27 October 2011

Zimbabwe: Demystifying Collective Action


Last week, I highlighted the pain of collective bargaining involving employers who do not honour agreements resulting in some workers resorting to job action. Strikes have rocked both Government and the private sector, with questions being asked lately as to why the new wave of industrial action has intensified over the last year compared to previous years.

Employees have accused employers of failing to honour collective bargaining agreements while employers have accused workers of engaging in illegal strikes and this brings about the question: What is a collective job action?

I will try to take a simplified approach in an attempt to demystify this very emotional, common and everyday issue. The legal framework for collective job action in Zimbabwe is provided for by the Labour Act (Chapter 28:01), Statutory Instrument 31 of 1993, and Statutory Instrument 217 of 2003.

Collective job action can be defined as an industrial action calculated to persuade or cause a party to an employment relationship to accede a demand related to employment.

The types of collective job action consist of strikes by employees due to their grievances, stay away by civic society, trade union and employees, and boycotts through abstaining from buying or dealing with an organisation, usually for political reasons.

Collective job action also consists of lockouts done by employers to prevent them from working, lock in done by employees against employers, and sit in/out by employees who come to work but do not work.

There are two forms of collective job action; the lawful or legal and the illegal collective job action.

These forms arise because of the nature of dispute, whether it is a dispute of right or a dispute of interest.

A dispute of right involves legal rights and obligations including any dispute occasioned by an actual or alleged unfair labour practice, breach of the Labour Act or of any regulations made under the Act.

It also involves a breech or alleged breech of any of the terms of a collective bargaining agreement or contract of employment. A dispute of interest is any other dispute, or the creation of a new right, for example, salary increment.

The dispute resolution system for the two also differs, with the dispute of right that has no settlement certificate being referred to arbitration.

A dispute of interest that has no settlement certificate results in a collective job action. There are certain procedures and requirements for a collective job action to be called legal.

The dispute should be of interest and the persons involved must not be engaged in essential services. A conciliation and certificate of no settlement has to be in existence, and there should be no reference to arbitration (avoiding dual process).

The trade union or employers' organisation has to be registered, and union agreements which govern the dispute in question have to be complied with, with remedies therein being exhausted. The majority of employees have to agree to the industrial action through voting by secret ballot (according to SI 217, Section 8 of 2003). A 50/50 vote means no collective job action should take place.

There are exemptions to collective job action to avoid occupational hazards posing a threat to health and safety. Exemption also applies to a collective job action to defend existence of workers' committee or registered trade union (if being prohibited).

The practice in Zimbabwe is that before engaging in a collective job action, workers should give a 14-day notice to their employment council, the Ministry of Labour and the employer.

The employer is allowed to apply for a "show cause order" with the Ministry of Labour or the Labour Court in order to stop the industrial action. A show cause order is given by a Labour Court president or the Minister of Labour after application by the aggrieved party, to show why a disposal order should not be made in relation to the industrial action.

Now that the question of collective job action has been answered, how many of the strikes in Zimbabwe have been legal or illegal?

Although it is for the reader to distinguish, it cannot be disputed that strikes have been fuelled by an adversarial style of negotiating between workers or unions and employers.

This has in the end produced a tense atmosphere in the industry and many National Employment Councils have their disputes ending in arbitration.

The other challenge to negotiations with employers has been the rate of economic growth, as it has not been the one anticipated when the inclusive Government came in. Employers and workers had great expectations as they saw an opportunity for growth of business and opportunity for huge credit line, which instead have remained modest.

These challenges and many others are likely to dodge collective bargaining this year, as they form barriers for smooth negotiations and offer a recipe for complications. The other problem, which will haunt collective bargaining, is the issue of hanging and unresolved CBAs for 2010 that some NECs have these cases pending before the courts.

The appeal takes time to be processed and these will naturally have an impact on future negotiations.

The best course of action in such a scenario is for parties to withdraw their cases and negotiate a settlement. The courts will not provide a permanent solution to the impasse of salaries, and a way forward should be found, especially regarding the widening salary margins.

There is also need for a target-based negotiations where workers are given opportunity to enhance productivity. The percentage of increments proposed in negotiations should be productivity based.

In other words, the employers and workers should agree on productivity levels and profit levels. The issue of frequency of negotiations needs to be revisited and when parties negotiate, there is need for a win-win scenario and practical agreements.

According to the World Economic Forum Global Competitiveness Report for 2011, Zimbabwe's labour suffers inefficiencies, and the country is ranked at number 137 out of 139 countries for flexibility in wage determination.

The country's hiring and firing practices were ranked at 122, while redundancy costs put Zimbabwe at 134 out of 139 countries. Inefficient labour market fundamentals are inextricably tied to the performance of the general economy.

An analysis of the present economic state reflects the miserable state of the worker and the fragile nature of the recovery.

This has resulted in incessant deadlocks and references of cases for arbitration and applications for exemptions where agreements had been reached.

Therefore, collective bargaining had largely remained dysfunctional and its recovery is tied inextricably to that of the economy.

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