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Labour Matters, Davies Ndumiso Sibanda
THE present labour legislation on collective job action is not user friendly on workers and when workers go on collective job action they risk dismissal as in most cases the reasons for collective job action are founded on disputes of right.

Until the Labour Act is aligned with the Constitution, the present processes that must be satisfied before workers engage in collective job action must be satisfied as long as they are not inconsistent with the Constitution.

The first challenge for workers who engage in collective job action is that they would have to prove that they followed procedure, a thing that is almost impossible to satisfy thus the employers can easily discipline and dismiss the workers they can prove were ringleaders.

Many trade unionists are guilty of getting workers in trouble with the law through leading workers through illegal collective job action that costs workers their jobs. I have seen cases where at show cause order hearings, unions admit workers were on collective job action and a subsequent disposal order rules that what workers did was illegal and thus the employer gets solid ground for disciplining and dismissing workers.

At times trade unionists mislead workers into believing that acts like go-slow, demonstrating during lunch and demonstrating while on leave are safe.

The truth is that all these are forms of collective job action as the legal question to be answered is, “What is the purpose of the workers action?’ if the answer is that the workers action is intended to get the employer to give in to workers demand, then whatever they are doing is collective job action and must follow the law before engaging in such actions.

Sometimes workers are told only those who are off or on leave must engage in collective job action. The bottom-line is that they are all still employees and if what they are doing is intended to get the employer to give in to their demands, then it is collective job action and workers can be disciplined and at times lose their jobs, that workers were off or on leave at the material time is not relevant.

Above all, if the employer wants to quietly get rid of the workers who engaged in collective job action, he can use the now generally cheaper retrenchment route where he identifies the “troublemakers” and terminate their contracts in terms of section 12C(2) of the Labour Act which is payment of one month salary for every two years worked.

While this is definitely cruel to the workers, that is the law at present. In conclusion, until the Labour Act and the Constitution are aligned, it is not advisable for workers to go on collective job action as it could easily lead to loss of jobs.

They can only rely on robust negotiation and litigation. However, litigation can also be complex and expensive for most workers.

Davies Ndumiso Sibanda can be contacted on: email: [email protected].  Or cell No: 0772 375 235