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Davies Ndumiso Sibanda
THE desire by trade unions to extinguish casualisation of labour is starting to backfire on trade unions as many NEC agreements that require workers to be treated as if they were permanent employees are starting to cost workers jobs and destroying their livelihoods.

Farai (not his real name) who worked in the Commercial sectors industry had been on fixed term contract for the last 14 years and three months ago, after the new Collective Bargaining Agreement (CBA) which states that after the 6th fixed term contract he should be treated as if he were permanent he lost his job when his contract came to an end after the 5th contract.

The employer said he would consider him after 2 months break if there is a vacancy. He has been waiting to be re-engaged and there is no likelihood he will be re-engaged soon as the employer seems to be coping with the labour he has. Off the record Farai’s former supervisor has told him that he might be considered when those at work have finished the five fixed term contracts meaning that if they have one year contracts he will only be considered after 5 years. Farai has been to see a labour expert who has advised him to wait in the hope that he will be re-called as prospects of success with litigation are remote given that replacement employees were engaged prior to Farai’s contract being terminated and there was no expectation of being re-engaged as his contract was express on that.

While I have in the past said that keeping workers on fixed term contract and re-engaging them over long periods is cruel to the workers, the problem of casualisation of labour should not be handled carelessly at the expense of workers as is the present case. There is a need for thorough research on the unintended consequences of each option and run with an option that reduces casualisation of labour without costing workers their jobs.

While the Labour Act Chapter 28:01 now allows for the capping of the number of times a fixed term contract employees can be re-engaged, unions should seek expert advice on how to go about implementing that clause.

It is evil to negotiate and secure a NEC agreement that makes fixed term contract workers more insecure than they were under the original fixed term contracts. As things stand today the number of workers losing their jobs due to the CBAs that are insensitive to the plight of workers is continuing to rise and families are starting to suffer and children’s education is compromised. The sad thing is that these workers pay their dues religiously and get rewarded by dismissal when unions have signed agreements that cost them their jobs.

Many employers in an effort to comply with the CBA and manage the financial risk of having to treat workers as if they were permanent hire replacement workers and thereafter terminate contracts of workers before they get to a sixth contract. They also make sure that all workers contracts have a clause that says there is not expectation of being re-engaged. While this is my opinion it is not good for labour relations, employers will be acting legal and taking advantage of the weaknesses of a CBA.Workers have a few options available to them.

The starting point is to engage the unions and push for review of the CBA so that the offending clauses are removes, alternatively workers whose jobs are found in competing industries can move to industries where there are safe CBAs. For example, workers who work instore bakeries, or butcheries can fit into several NECs all they need to do is to find an NEC where their jobs will be safe and persuade their employers to move them there, but that has its own problems especially when it comes to salaries.

The best option is to apply for an exemption from the application of the offending CBA. My experience is that fixed term contract employees sign such agreements running.  The NEC will automatically grant the exemption as there will be unanimous agreement between the employer and employees. Where the NEC turns down the exemption application the employer and workers should collectively approach the Labour Court and apply for an order to have the NEC grant the exemption.

A reasonable NEC is unlikely to oppose the order. I am of the view that the solution to casualisation of labour needs sincere dialogue between employers and unions and agree on a solution that balances the interest of employers and those of workers without costing workers jobs. The present approach is not helping workers at all but is leading to loss of skills for business and loss of jobs for workers as employers try to balance business and workers interests in this harsh economic environment.

In conclusion the only viable way out for workers is to approach employers ask them to ask for exemption from the application of the CBA and at Works Council negotiate a way of ensuring that employees are placed on permanent after serving on fixed term for certain periods or when certain events occur, for example when some permanent employees leave for whatever reason.

There are many ways of reducing casualisation of labour that have been implemented successfully.

Davies Ndumiso Sibanda can be contacted on: Email: [email protected]