Davies Ndumiso Sibanda
WHILE the present labour legislation allows for National Employment Council (NEC)s to put a cap on the number of times fixed term contract employees can be re-engaged, careless crafting of such agreements is now resulting in loss of jobs and destroying lives of many workers.
I had workers coming to seek advice on how they could avoid being laid off in terms of their NEC regulations, which states that once a fixed term contract worker has been re-engaged for six occasions then he or she has to be treated as an employee on permanent contract.
The employer had told workers that he cannot afford to have them on permanent placement and as such he terminated their contracts advising them he might consider them after a two months break, which is the minimum period to break continuity of employment in terms of NEC rules.
The employer engaged their “replacements” one and a half months earlier to circumvent the Labour Act Chapter 28:01 provision on termination, expectation of being re-engaged and replacement by another worker.
When confronted the employer argued that the workers were hired because they were needed at the time and demonstrated they were fully occupied meaning that the provisions of section 12B (b) of the Labour Act Chapter 28:01 cannot be used against the employer. I could not help the worker as they approached me after they had been laid off. They can only pray the employer re-engages them after two months break.
Smart workers’ committees have approached their employers at works council and said while they expect to be employed on permanent basis we appreciate it is the employer’s prerogative to place workers on permanent employment.
However, they don’t want a break in service as related problems could be career limiting and there is no guarantee they will be re-engaged.
The workers have signed works council agreements to be exempted from NEC provisions that limit the number of fixed term contracts and approached NECs for confirmation of agreements and exemption from the Collective Bargaining Agreement (CBA) provisions.
The agreements are legally crafted and many labour consultants and lawyers will assist organisations and workers with such applications. However, these have to be done while employees are still in service.
Research has shown that only 25 percent of the world workers are on permanent employment. Looking at California with the fifth strongest world economy only about 20-25 percent of the workers are on permanent employment. In Asian countries other than Japan, the number of those on permanent employment is even smaller.
This must be a lesson and a guide to our unions in their push for permanent placement or treatment as permanent employees.
There is no doubt that employees have to be treated fairly by employers, however, in my view where unions push employers at NEC to have CBAs that cost workers jobs it becomes worrying.
While unions should continue to push for improved employees conditions of service whether on fixed term or whatever other employment contract has been used, the method should not be such that the workers end up worse off. The unions should balance their interests with those of employers.
Recently one employer was heard boasting that the new arrangement at his NEC gives him a licence not to place anyone on permanent employment for six years and towards the end of six years, he can terminate contracts and “smartly” replace them without offending labour laws.
Such comments while not in good taste clearly expose the weaknesses of the CBAs that have been pushed by unions through the NECs with employers agreeing because they are aware of the loopholes and benefits that accrue for them.
In conclusion, unions have to seek expert legal opinion before pushing through NECs and CBAs that come back to destroy workers lives.
Davies Ndumiso Sibanda can be contacted on: email: [email protected] Or cell No: 0772 375 235