31 January 2013

Zimbabwe: Collective Bargaining, Mutual Accommodation


CB dynamic is demand and concession and its objective is agreement. Therefore, unlike mere consultations, it assumes willingness on each side, not only to listen to the representatives of the other but also to abandon fixed positions where possible in order to find common ground.

CB mainly deals with bread and butter issues, that is, the battle of the stomach. However, it also covers other issues to do with the terms and conditions of employment.

Therefore, the phrase "terms and conditions" must be given a liberal and all encompassing interpretation. This was aptly underscored by the court in the case of Metal and Allied Workers Union versus Hart Ltd (1985) 6 ILJ 478 (IL) at 493H-1.

"There is a distinct and substantial difference between consultations and bargaining. To consult means to take counsel or seek information or advice from someone. It does not imply any kind of agreement.

"To bargain means to haggle or wrangle so as to arrive at some agreement or terms of give and take. The term negotiate is akin to bargaining and means to confer with a view to compromise and agreement."

The term CB is applied to those agreements under which usage and conditions of employment are settled by bargain, in the form of an agreement between employers and workers' organisations (Cronin 1970:315 Webbs 1897:18).

In unorganised trades, the normal practice was -- and sometimes still is - for the individual workman, when applying for a job, to accept or refuse the terms offered by the employer without any other considerations than his own position. In other words, he made an entirely individual bargain with his employer. The position is different when the employer is party to an agreement, which settles the principles and conditions upon which for the time being all workers of a particular grade or class will be engaged.

The world over, only those trade unions or workers who are tenacious and militant can win concessions from employers. The improvement of conditions of employment does not come to workers on a silver platter, but is a product of an engagement process with employers in a process known as CB.

The stronger the trade union or workers' committee is, the more it is going to succeed in securing better conditions of employment for its members.

Conversely, where the trade union or workers' committee is weak, its membership will settle for crumbs or meager chicken feed.

In the entire global village, those who are privileged will never surrender their privileged status until the oppressed agitate and fight for their rights.

A classic example is the liberation struggle of Zimbabwe that dismantled the oppressive colonial regime, which enjoyed trampling upon the rights of the black masses. A similar feat was achieved in South Africa when the blacks overthrew the endemic apartheid regime that treated blacks as second class citizens.

When the agreement is made by a number of different employers or - as is often the case - by an employers association, all workers employed by the employers concerned are secured in equality of treatment. Each employer is protected against unfair competition by reason of lower wage costs in so far as his competitors are party to the agreement (Webbs 1897:18).

The term CB has been defined to mean a voluntary process for reconciling the conflicting interests and aspirations of management and labour through the joint regulation of terms and conditions of employment (Rycoft and Jordaan 1992:116). It is important to note that the International Labour Organisation (ILO) Convention 154 defines CB as follows.

"CB extends to all negotiations which take place between an employer, a group of employers or one or more employers' organisations, on one hand, and one or more employees' organisations on the other for:

1. Determining working conditions and terms of employment.

2. Regulating relations between employers and workers.

3. Regulating relations between employers or their organisations and workers' organisations."

The then American President Woodrow Wilson in his presidential message of May 1919 in the following words underscored the fundamental nature of colective bargaining.

"The object of all reform in this essential matter must be the genuine democratisation of industry, based upon a full recognition of the right to those who work - in whatever rank - to participate in some organic way in every decision that directly affects their welfare and the part they are to play in industry." (Cox et al 2001:191)

A collective agreement is an agreement or an arrangement in any way and in any form by or on behalf of one or more trade unions, whether registered or not, and one or more employers or organisation of employers, being an agreement or arrangement with the following.

1. Prescribe wholly or in part the terms and condi- tions of workers of one or more descriptions.

2. Relate to any of the matters with which a procedure agreement can be concerned.

3. Satisfy both the above (Heath 1971:31)

According to M Finnemore (2009:193), CB is the most common form of employee participation in the world. The word "collective" refers to the fact that employees join together in trade unions to enhance their power in bargaining with employers over wages and working conditions. Employees elect their representatives and mandate them to enter into negotiations with management representatives, who are in turn appointed by the employer to represent its interests.

The term collective may also extend to a grouping of trade unions and a grouping of employers who themselves may come together and combine for the purpose of CB at a sectoral or national level of the economy.

The aim of CB is to reach a perceived equitable settlement n matters of mutual interest through the process of negotiation. The terms of such a settlement are applied uniformly across a specified group of employees. Employers, unions and their members are bound by the terms of the agreement.

It must be pinpointed that even the Almighty God underpins the need for social justice in CB in Colossians Chapter 4 verse 1 by imploring masters to give their servants (employees) what is just and equal.

It is further buttressed by 1 Timothy 5 verse 18, which says the labourer is worth of his reward. In the same vein, James 5:4-5 reiterates the need for employers to exercise social justice and pay their employees fair wages.

Some of the information contained in this article extracted from A Guide to Collective Bargaining Law by Advocate Caleb Mucheche.

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