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SCHOOL OF BUSINESS, ECONOMICS AND MANAGEMENT
INDUSTRIAL AND LABOUR RELATIONS MANAGEMENT HRM 350
STUDY MATERIALS FOR PART TIME /FULL TIME AND DISTANCE STUDENTS.
These materials are wholly designed for students at UNILUS
Prepared by:Dr.Venus Seti FZIHRM
LECTURER/CONSULTANT0977 903181,0955 335860 Email: [email protected]
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Students are encouraged to read the recommended books in order
to enhance their knowledge base. In this case, the books and
relevant materials include the following:
.
Industrial Relations Act, Cap 269 and the Employment Act, Cap 268 of
the laws of Zambia
Employment Law By Richard Painter & Ann Holmes(Cases and
materials ),
Employment Law, second, edition ,By John Duddington (2007 ),
Modern Labour Economics-theory and public policy, 10th
edition ,Ronald G E and Robbert S. Smith,
Employment & Labour law, by Cihon and Castagnera (2005 ),
Human Resources Management By Derek Torrington & L Hall,Fourth
Edition (1998) ,
Human Resources Management -A Core Strategic Partnership In
Sustainable Development,5th edition By : Dr. Venus Seti –MBA-HRM
,PhD h.c ( HR).
Human Resource Management and the Legal framework 1st and 2nd
edition by: Dr.Venus Seti
Any Industrial Relations text book
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ASSIGNMENT 1and 2
INSTRUCTIONS: You are required to answer all the questions and your answers must be detailed , well researched and analytical in approach. You must also declare that the assignments submitted is an original piece of work produced by yourself. EACH ASSIGNMENT CARRIES 100 MARKS.
ASSIGNMENT ONE QUESTION ONEDiscuss how a human resource and industrial relations Manager at Venus university would find herself in a unique position of ensuring that ethics and value based management concept is applied throughout the organization .This is in view of the fact that all human resource strategies must fit the business strategies and vision. This also entails that those pursuing human resource strategies must uphold the values and ethic as of the organization.( 50 )QUESTION TWO.By way of giving an overview of human resource management, you should discuss what constitutes the difference between personnel management , human capital management and human resource management( 50 )ASSIGNMENT TWO
All the unionized employees at bertha limited participated in a strike action that saw all of them being dismissed from employment. However, after the successful negotiations on 10th
November, 2013 at the said company which has recognition agreements with three unions. One union with more than 200 members signed the collective agreement with management
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while the other two unions refused to sign it because their constituencies had rejected the terms and conditions negotiated for. The said two unions even went to an extent of writing to the ministry in charge of labour advising that government should not approve the submitted collective agreement.( 100 )
REQUIREDI. Analyse the situation and indicate if the two unions that
refused to sign the collective agreement were in order. ( 5 )
II. What would be the role of the ministry of labour at this stage?(10 )
III. How would you advise management to do in an event that their existing collective agreement was to expire on 31st December, 2013.( 10 )
IV. Advise if the strike action by the workers was legal or illegal and if so why according to your school of thought.(10 )
V. Discuss the difference between a recognition agreement and a collective agreement ( 10 )
VI. Would it be appropriate for employees who were sick, on leave and on study leave during the strike period to be dismissed since management informed all employees that they remained dismissed. (10 )
DUE DATE TBA
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1.0 LABOUR RELATIONS AND HUMAN RESOURCES MANGEMENTTHE ORIGIN OF HUMAN RESOURCE MANAGEMENTINTRODUCTION - Research has shown that the origin of human resource management lies mainly within the employment practices associated with capitalists employers in the USA during the 1930(jacoby,1997) and Foulkes (1980 ). after the second world war, it became necessary to rebuild the damaged economies and many people were recruited in the production companies. At this stage it was realised thatHRM in itself is a contributory factor in the analysis of employment relationships.
Recruitment, talent management & CBM
Performance appraisal
Salary admini, reward &compensation
HR audit, health and safety
Administering of discipline
Promotions, staff wel being,
Training &development
Industrial relations
Human resource planning
Job evaluation
Strategic human resource management
Therefore, Industrial Relations is one of the critical functions of human resources management
and it mainly hinges on the way workers relate with their employers ,the way the parties treat
each other and the way they resolve their differences .Usually what causes problems in their
relations is the way conditions of service are managed. Conditions of service as a matter of
concern will be well discussed in study unit two. Therefore, human capital as a resource and a
factor of production is not unique, as it reacts when acted upon. The area of labour relations and
the successful management of employer-employee relationships are probably the most crucial
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functions of the human resources manager today. The employer-employee relationship is the most
vital component in any business organization. This relationship has fundamental implications for an
entire business undertaking and its effects can spill over to the other business organizations both
locally and nationally. This relationship between employer and employee has an individual
component in the direct face-to-face relationship between employee and the human resources
manager (or employer) and a collective component which finds expression in the relationship
between the personnel manager (and employer) and trade union or employers represented by the
employers’ organizations. Where the relationship between labour(represented by trade unions) and
management (represented by employers’ organizations) is unsound, unhealthy and tense, it will
have a serious negative impact on the economy of a country, manifesting itself with negative
repercussions right into the socio-economic life of a community at grass roots level. No human
resources manager can effectively organize and manage a business without sound lab our relations
between employees and employers. Sound labour relations between management and an
employee are the cornerstone of the business organization. The primary objective of any business
undertaking is to maximize profits. To achieve this goal, it is essential that productivity in the
organization attains the highest level possible. To achieve this high level of productivity, it is
imperative that the business is conducted efficiently and as cost-effective as possible. This would
entail setting up structures, both internally and externally which would ensure the smooth
functioning of the business.
Where a business undertaking operates efficiently and effectively, productivity is high, resulting in
high profits. High profits will lead to improved remuneration and conditions of service, resulting in
employee satisfaction in the workplace. The climate in the workplace will be characterized by no
disturbances and conflict between management and employees. There will be minimum disputes in
the employee relationship and no disruption of the production process.
HARMONY AND EMPLOYEE SATISFACTION INTHE WORKPLACE
Employee participation in the functions and activities of the business undertaking is
fundamental at all levels in any business institution and this is possible as long as human capital
management is prepared to fully involve employees or their representatives by sharing with
them the responsibility of decision-making. Real employee participation is based on respect
which in turn requires human resource management to face up to the reality that they need the
contribution of workers.
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Reasons for implementing worker participation in the administration of the workplace
It has been shown worldwide, by the International Labour Organization (ILO), that employee
participation schemes reflect the following:
Ethical and moral objectives which are linked to the increasing demand by lab our
for better quality work life.
Socio-political objectives which seek to implement participatory schemes to ensure
that democracy at the workplace is attained
Economic objectives which relate directly or indirectly to the increasing of the
efficiency of business organizations.
Employee participation has a positive effect on the morale, motivation and
psychological well-being of the worker. This is translated into an increase in
productivity and, ultimately profits
Worker initiative and contribution in the business are encouraged
Self-confidence and pride in his/her company
Improved self-image of employee and employer
Sound interpersonal relationships in the workplace
Stable work environment with no disruptions
Co-operative spirit between employer and employee
Employees show greater degree of responsibility.
Although worker participation in the management of the business undertaking has clear
positive opinion for the employer and employee, this employer-employee relationship is still
underlined by inherent conflict of interests. The employer’s primary goal is the acquisition of
maximized profits. To achieve this goal, he has to keep cost factors as low as possible.
Among the key cost factors which are to be kept low are employee remuneration, working
conditions and facilities. The employee, on the other hand, strives for the highest possible
wages, shorter working hours and a constant drive for improved working conditions. There
is therefore a continuous need to balance these conflicting interests and to achieve this
balance necessitates continuous negotiation, improved communication systems, dialogue,
effective progressive, and participatory human resource management.
In the light of the above, it is clear that healthy lab our relations are a fundamental
component of such human management. The human capital manager must constantly strive
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to attain lab our, peace and stability in the workplace. The achievement of lab our peace,
order and stability requires:
Good and fair lab our practices
Equal treatment of all employees
Having sound communication systems in place
Respect for all workers
Pleasant working environment
Human resources development and training programmes
Human resources management should not be a top authoritarian management style, but rather a
top-down-bottom-up management style where both management and employees contribute to the
advancement of the business organization.
EMPLOYEE RELATIONS
The employer-employee relationship is a key element in sound labour relations. This relationship is
dependent on communication between the two parties, support for each other, striving towards
their common goals and interests, and a desire by both to advance and develop the business
undertaking. Traditionally, there was a distinct barrier which created a gap in the relationship
between employers and employees and which was reflected in class differences, with status
separating the two. One of the key tasks of the modern human resources manager today, is to
strive towards the narrowing of this traditional gap.
EMPLOYER-EMPLOYEE RELATIONSHIP IN THE PAST
To fully understand the current prevailing employer-employee relations, it is imperative that the
historical development in this relationship be studied. The historical era of the Industrial
Revolution had the most profound influence and impact on the economic system of the time.
The entire socio-economic system, manufacturing process, labour practices and business
organizations were revolutionized, fundamentally affected and changed by the Industrial
Revolution. Horne industries were replaced by the factory system and the invention of machines
altered the manufacturing process completely. The Industrial Revolution led to:
Economic activities being transferred from a personal to a social level. The changes in
economic activities impacted on the personal, social and political life of society
A polarization between employer and employee, manifesting itself in class differences,
gave birth to trade unions
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Today, the gap between the employer and employee still exists, but it is not as wide as it
used to be in the past
Employers and employees today, as in the past, have opposing goals and interests. Both
try to exploit each other by striving to obtain the maximum for the minimum from each
other.
ATTITUDES TOWARDS WORK
Essentially, the general attitude towards work by most employees is not a positive one. The
individual employee wants the maximum from the business undertaking, but wants to make the
minimum contribution. He demands the highest possible remuneration, personal growth and
development, work gratification and fair labour practices in the workplace. Remuneration and
better working conditions dominate labour relations and collective bargaining. As a result of
collective bargaining over the years, many positive and progressive strides have been made,
such as:
Improved education and training of human capital
Improved and fairly good conditions of service
Improved remuneration
Decentralization of organizational structures
Greater emphasis on team work
Recognition of the importance and value of the human resource
IMPORTANCE OF THE EMPLOYER-EMPLOYEE RELATIONSHIP
Labour relations are a tripartite relationship between employer, employee and government. The
importance of the role of government in this relationship differs from country to country, being
largely dependent on the political, social and economic systems of the country.
The role of the State, in most countries, is that of facilitator and regulator.
Employers and employees are the main parties in any business undertaking. The existence of a
head and sound employer-employee relationship is thus, crucial if collective bargaining is going
to be positive, orderly and with minimum disruption of the production process.
THE ROLES OF EMPLOYERS AND EMPLOYEES
The roles played by employers and employees in the employer-employee relationship are governed,
to a large extent, by tradition and custom. Traditionally, the employer has always been the
dominant party in this relationship and in the production process. He plans, controls and makes
decisions unilaterally whereas the employee must merely carry out instructions and has absolutely
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no say in the product process. This role of the employer has been described as “employer
prerogative”. The modern trend today is for the employee to play a far greater participative role by
being involved in the planning and decision-making process of the business.
INTER-DEPENDENCE OF EMPLOYERS AND EMPLOYEES
Both the employer and the employee have a common interest in ensuring the successful and
profitable operation of the business undertaking. The employer primarily wants maximum profits
from the employee while the employee essentially wants maximum remuneration and personal
gratification. These differing interests of both the employer and employee necessitate co-operation
and maximum contribution from both parties to ensure a successful and profitable business.It is
only when the business is profitable that the employer will see increased profits and also when
there are increased profits that the employer is in a position to give the employees higher salaries
and provide better working conditions. Thus, for a business to increase its profits, maximum
efficiency is required from the employee, which will result in increased productivity and hence,
profits. This inter-dependence of the employer and employee on each other is the key factor to
economic success and growth of any sector.
CONFLICT AND COLLECTIVE BARGAINING
There are numerous factors which are conducive to conflict in the employer-employee relationship
and some of these factors which lead conflicts are:
Employers are never satisfied with the productivity and they consequently drive their
employees very hard in their effort to raise productivity.
Unwillingness on the part of the employers to spend money to improve working conditions
and remuneration
Constant demand for higher remuneration by employees
Constant demand for improved working conditions by employees
Employees’ resentment being driven too hard, if remuneration is not equal to the expected
performance.
For the above reasons, there is an inherent conflict between the employer and employee. Collective
bargaining is essentially negotiation between employer or an employers’ organization and the
employees’ organized association, known as a trade union, of a particular industry, representing the
workers of that industry, over points of dispute such as:
Remuneration
Conditions of service
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Unhappiness with a particular manager or any other matter
Where negotiation is done by either a trade union or employers’ organization, such collective
negotiation is known as collective bargaining. For the unskilled and semi-skilled worker, collective
bargaining provides strength in numbers. The new Labour Relations Act in Zambia has put in place
numerous structures which are designed to promote and facilitate collective bargaining. These days,
very few workers and employers negotiate individually. Negotiation is done primarily collectively as
this gives the parties more power and strength at the bargaining table. Trade unions also realize that
their strength lies in their numbers. For this reason, a major source of tension between trade unions
and employers is when employers persist in wanting to bargain with individuals. In labour relations
at the workplace, there is a need to bargain and negotiate individually and collectively. In the
everyday running of business matters, the employer negotiates with the individual employees but
on major issues, particularly where there is a dispute, the negotiation is done collectively.
Employee involvement can be encouraged and maintained in a situation where the employer is
planning a small but significant number of redundancies. This is usually done through employee
representatives and this is called indirect participation as discussed below:
Joint consultation
Collective bargaining
Worker-director scheme and through team briefings and meetings
Besides, the strategy of full consultation with the employees is adopted; management will discuss
such decisions with employees. Unions should be consulted so that management can achieve its
objectives with minimum hardships. It is also advisable to engage supervisors in this process,
especially allowing them to be engaged in the process of selecting and identifying employees to be
retrenched or retained and much warning should be given of the impending issue. We should be
mindful that it can be more difficult to discipline incompetent employees in industrial relations. If an
employee falls below the expected standards of performance, management should show that the
reasons for decline have been investigated, warnings given, and attempts made to help employees
improve.
Early retirement
As provided for in the Zambia constitution and as read with the labour legislations , the compulsory
retirement age is fifty five ( 55 years ). However, some employers have a deliberate policy under
which they allow their employees to go on early retirement after working in the organization for
more that 20 years and upon reaching 45 years. The issue of retirement is a social and economic
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matter that requires managers to make better informed decisions because this matter, if not well
handled, impacts on the economy. Some employers avoid early retirement and never even want to
talk about it because people who leave earlier than retirement are a cost to the organization. Some
people draw a pension immediately but for management it is a cost because of the need to pay
pensions early. Suffice to note that during this process, dependable employees tend to leave
employment other than useless people. There are various methods of strategy formulation and this
impact on employee relations. Some of these strategy formulation aspects are as itemized below:
Integrating employment policies and practices so as to further the pursuit of overall
managerial goals.
Expanding companies and establishing good relations with the unions.
Management should assess the employee relations position periodically and determine
whether changes in policy and practice are necessary.
Management needs to have foresight, plan and make a commitment so as to have a good
management/staff relation.
Either control employees or encourage employees’ commitment. However, control is
important because of the need to ensure achievements of tasks.
Need to have knowledge and skills and employee relations training course
Management needs to encourage employee commitment so as to call for use of initiative
and overall contribution to the organization’s efficiency and effectiveness.
ASPECTS WHICH INFLUENCE THE EMPLOYER - EMPLOYEE RELATIONSHIP
Among the factors which have a major impact on employer-employee relations are:
Custom and tradition and Legislation
Mutual interests ,Social influences and Ethical considerations
CUSTOM AND TRADITION
The relationship between employer and employee is to a large degree determined by custom and
tradition. Traditionally, the employer held the position of power in this relationship. Decision-
making and general running of the business was authoritarian. To a very large degree, this type of a
relationship is still prevalent in most business undertakings. Modern viewpoints and management
programs have moved away from this authoritarian outlook to one of increasing worker
participation in management at the workplace. In this way, there is thus, a joint contribution from
both employer and employee for the general good of the business.
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The new Industrial and Labour relations legislation makes a serious attempt to turn the tradition
and custom around by promoting, encouraging and facilitating a participative style of management
and collective bargaining to resolve disputes and prevent disruption of the production process.
Legislation-All the functions of human resource management are regulated and in this case even,
industrial relations management is regulated through the labour laws. Labour laws are pieces of
legislations that regulate the labour market. The following laws fall within the ambit of the labour
laws: Employment Act, Cap 268 of the laws of Zambia,Industrial and Labour Relations Act, Cap
269,Minimum Wages and conditions of Employment Act, Act Cap 276 , Employment Act, Cap 270 of
the laws of Zambia , Employment of Young Persons and Childrens’ Act, Cap 274 of the laws of
Zambia.
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2.0 INDUSTRIAL RELATIONS TERMINOLOGIES INTRODUCTION
The Industrial and Labour Relations Act will be used as our basis in our industrial relations
management perspective .This Act, Cap 269 (Amendment) Act, 1997 Act No 30 of 1997
was assented by the President on 18th December, 1997 and became effective on 22nd
December, 1997. The Act revised the law relating to the formation of trade unions and
employers representatives organisations including the formation of federation of trade unions
and federation of employers organisations, recognition and collective agreements, settlement
of disputes, strikes, lock outs, essential services and Tripartite Consultative Labour Council,
the Industrial Relations Court. However, since independence in 1964, Zambia has so far
revised it’s Labour Management relations legislations as follows;
The Industrial Relations Act, 1971 which was repealed by the Industrial Relations
Act, 1990
The Industrial Relations Act, 1990 repealed by the Industrial and Labour Relations
Act, 1993 amended by the Industrial Labour Relations (Amendment Act 1997)
The Industrial Labour Relations Act, 1997, amended by the Industrial and Labour
Relations Act, No. 8 of 2008
APPLICATION AND EXCEMPTION
This piece of labour laws does not apply to the following category of workforce:
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- Zambia Defense Force
- Zambia Police Service
- Zambia Prisons Service
- Zambia Security Intelligence Service
- Judges and registrar of the Court, Magistrates and Local Court Justices
The Companies Act, Societies Act, and Co -operatives Society Act does not apply to
any trade union or employers’ organizations. (Companies Act, Cap 388, Societies
Act, Cap 119 and Co-operatives Societies Act, Cap 397). Any organisation which
intends to carry out Union activities should register with the Labour Commissioner
under this Act.
INTERPRETATION
(a) International Law obligation
The Industrial and Labour Relations Act, is interpreted in compliance with the Public
International Law obligation and any conventions of the International Labour
Organisation (ILO) ratified by Zambia.
(b) Bargaining Unit
These are negotiating teams comprising of representatives from Management and the
Union side respectively. These two parties will bargain for conditions of Service,
terms of employment and improved wages and come up with a Collective
Agreement.
(c) Collective Agreement
This is any Agreement negotiated by an appropriate bargaining Unit in which the
terms and conditions affecting the employment and remuneration of employees are
laid down.
(d) Congress
This means the Zambia Congress of Trade Unions, ZCTU and the Federation of Free
Trade Union (FFTUZ). These are mother body organisations to which various union
organisations get affiliated to. E.g. the Civil Servants Union of Zambia subscribes to
the Zambia Congress of Trade Union and National Union of Commercial Industries
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and Allied Workers is affiliated to the Federation of Free Trade Union of Zambia
(FFTUZ)
(e) Deadlock
This means a situation arising out of a collective dispute where the parties to the
dispute have exhausted the procedures, whether formal or otherwise, mutually agreed
to by the parties for the settlement of the dispute, where conciliations have proved to
be unsuccessful in terms of Section 75.
(f) Eligible Employee
This means Unionized Workers and not those that are in Management.
(g) Employee
Means any person who has entered into a Contract of employment whether such a
Contract is express or implied, oral or written, serving on Probation, casual employee
or Seasonal Workers.
(h) Employer
Means any person who or body of persons, firm, company, Corporation or Public
authority which has entered a contract to employ.
(i) Lock out
Means the closing down of a place of employment or the suspension of work or to
continue to employ any number of persons employed by him as a result of a dispute.
(j) Strike
Means the cessation of a work or withdrawal of labour by a body of persons
employed in any undertaking in combination or a concerted refusal or refusal under a
common understanding of any number of persons who are so employed to continue to
work or provide their labour.
2.0 RIGHTS OF EMPLOYEES WITH REGARDS TO UNION MEMBERSHIP
The law provides that every employees have the following rights:
The right to take part in the formation of a trade union;
The right to be a member of a trade union of that employee’s choice;
The right, at any appropriate time, to take part in the activities of a trade union
including any activities as, or with a view to becoming, an officer of the trade union,
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seeking election or accepting appointment, and if so elected or appointed, to hold
office as such officer subject only to he constitution of the trade union concerned
The right to obtain leave of absence from work in the exercise of the rights provided
for in paragraph and the leave applied for shall not be unreasonably withheld by the
employer;
The right not to be prevented, dismissed penalized, victimized, or discriminated
against or deterred from exercising the right conferred on the employee under this
Act;
The right of any employee not to be a member of a trade union or be required to
relinquish membership;
The right not to be dismissed, victimized or prejudiced for exercising or for the
anticipated exercise of any right recognized by this Act or any other law relating to
employment; or for participating in any proceedings relating thereto;
The right not to do work normally done by an employee who is lawfully on strike or
who is locked out, unless such work constitutes an essential service, or if on request
the employee voluntarily waives the right specified under this Act;
The right not to be dismissed, penalized or disciplined on the grounds that the
employee has been or is a complainant or a witness or has given evidence in any
proceedings, whether instituted against the employer;
However, it is worth noting that section 5(b) was amended in 2008 by the Industrial
and Labour Relations Amendment Act No. 8 of 2008, where by employees should no
longer belong to a union of their choice but a union relevant to their sector or
industry E.G. bankers can not belong to the Mine Workers Union of Zambia any
more because the areas of interest are different.
OBLIGATION OF EMPLOYEES IN RESPECT OF TRADE UNIONS
The Industrial and labour Relations Act, Chapter 269 of the Laws of Zambia provides
that :
(a) Every employee shall promote, maintain and co-operate with the management of
the understanding in which the employee is employed in the respect of interest of
industrial peace, greater efficiency and productivity.
(b) Every trade union shall within six months from the date of formation, and
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subject to section ten, apply to the Commissioner for registration under the Act.
REGISTRATION OF A TRADE UNION - The procedure for registering a union
are as discussed below:
(1) An application to register a group of employees as Trade Union shall be signed
by not less than fifty supporters or such lesser number as may be prescribed by
the Minister
An application to register a group of employees as a Trade Union shall be signed
by not less than fifty supporters or such lesser number as may be prescribed by the
Minister and shall be accompanied by-
a) two duly certified copies of the constitution of the proposed trade union;
b) such other information may be required by the Commissioner by notice in
writing addressed and delivered to the executive officer of the trade union
within such period as may be determined by the Commissioner and specified in
such notice.
(2) On being satisfied that an application for registration as a trade union
has complied with the conditions of registration prescribed under this Act and
that the constitution of the proposed trade union provides for matters set out in
the Schedule to this Act, the Commissioner shall register the group of
employees as a trade union and issue the trade union with a certificate of
registration in the prescribed form.
(3) A certificate of registration issued under subsection (3) unless proved to have
been withdrawn or cancelled, shall be prima facie evidence that provisions of
this Act relating to registration have been complied with.
(4) A group of employees shall not be registered as a trade union under this section.
a) under a name identical to, or by which, any other trade union has been
registered or so nearly resembles such name as to be like to deceive its own
members of the public; or
b) if it does not comply with the conditions of registration prescribed, in
consultation with the Tripartite Consultative Labour Council, under this Act.
Cancellation of Certificate of Registration
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The Labour Commissioner is by law empowered , after obtaining the approval of the
Minister , cancel the certificate of registration of a trade union on the conditions
discussed below:
o At the request of the trade union which has resolved to be dissolved and an
application has been made in the prescribed form;
o If the certificate of registration has been obtained by fraud or mistake;
o If the trade union has willfully violated any of the provisions under the Act; or
o if the trade union is dormant
However, where the Commissioner intends to cancel the certificate of registration
under Paragraph (b) or (c) of subsection (1), he gives at least three months notice
before canceling the certificate, give notice in writing to the union and the union
may make representations to the Commissioner within that period of notice.
1) The Commissioner may, after receipt from the trade union of representation,
if any, and after the expiration of the three months notice, cancel the certificate
of registration and shall notify the trade union accordingly.
2) A trade union whose registration is cancelled shall have a right of appeal to the
Court in accordance with the provisions of section thirteen.
3) A trade union whose certificate of registration has been cancelled under this
Section shall, from the time of such cancellation, cease to operate as a trade union
and shall be dissolved unless an appeal against such cancellation is preferred under
section thirteen to the Court.
Provided that in the case of any cancellation, other than cancellation made under paragraph
(a) of subsection (1), in respect of which no appeal is preferred to the Court, the cancellation
shall not have effect until the Court confirms the cancellation.
APPEAL FROM THE DECISION OF THE LABOUR COMMISSIONER
1) Any person aggrieved by any refusal of the Commissioner to register a trade
union, or by any decision to register an organization as a trade union, or by the
cancellation of a certificate of registration may appeal to the Court not later than
ninety (90) days after the notification of such refusal, decision or cancellation, as
case may be.
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2) The Commissioner shall have the right to be heard on any appeal preferred under
Subsection(1)
3) The Chairman may make rules governing such appeals, providing for the method of
Tendering evidence, prescribing the procedure to be followed, the fees to be paid, and
notice to be given to the Commissioner.
4) The Court, in an appeal referred to in subsection (1), may-
(a) set aside the decision of the Commissioner refusing the registration of
a trade union or canceling a certificate of registration, if it is satisfied that
grounds exist which qualify or entitle such trade union to be registered, or it
is satisfied that the cancellation of the certificate of registration subject to
such conditions, if any, as the Court may specify;
(b) dismiss the appeal or
(c) make such other order as it considers appropriate in the circumstances
CHANGE OF NAME OR ADDRESS OF A TRADE UNION
1) Subject to subsection (5) of Section nine, a trade union may, in accordance with
the provisions of its constitution, change its name.
2) Notice in writing of every change of name, signed by seven members, and
Countersigned by the executive committee of a trade union, shall be sent to the
Commissioner within thirty days of the change, and the Commissioner shall register
the change of name if he is satisfied that he change complies with subsection (1)
3) No change of name shall affect any right or obligation of a trade union or of any
member, and legal proceedings in respect of such right or obligation may be
commenced or, if pending, continued by, or against, the trustees of the trade union
or any other officer who may sue or be sued on behalf of such trade union,
notwithstanding its new name.
4) Notice in writing of every change in the address of the registered office of a
Trade union shall be sent to the Commissioner within thirty days of the change, and
the Commissioner shall register the change of address.
5) Failure to send a notice as required by subsection (2) or (4), as the case may be,
renders the executive officer of a trade union liable, upon conviction, to a fine not
exceeding twenty penalty units for every day during which the failure continues.
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AMALGAMATION OF TRADE UNIONS
1) Two or more trade unions may, in accordance with the provision of their
respective constitutions, amalgamate as one trade union and the new trade
union so formed shall be registered in accordance with the provisions of this
Act.
2) Any legal proceedings in respect of any rights or obligations of a trade union
which has amalgamated with another trade union may be commenced, be
continued, if pending, by or against, the trade union formed as result the
amalgamation.
VOLUNTARY DISSOLUTION OF TRADE UNIONS
1) When it is intended to dissolve a trade union voluntarily, notice of such
intention, signed by the members of the executive committee of the trade
union and a copy of the resolution to dissolve the trade union, shall be sent
to the Commissioner with a copy to the Federation of Trade Unions, if the
trade union is affiliated to it, and the Federation of Trade Unions may
comment on the dissolution within fourteen days of the receipt of the notice
2) If the Commissioner is satisfied that the intended dissolution of a trade
Union is in accordance with its constitution, the Commissioner shall approve
the dissolution of such trade union.
3) The Commissioner notifies his approval to the trade union, the
Federation of Trade Unions, if the trade union is affiliated to it.
4) The dissolution shall become effective from the date the Commissioner
approves such dissolution.
5) Where a trade union is dissolved under subsection (2) or dissolved under
subsection (5) of section twelve.
(a) the property of the trade union shall vest in the liquidator appointed by the
Commissioner who shall have all the powers to recover, realize and sell such property
as a trustee in bankruptcy Act relating to remuneration, and costs shall, with the
necessary modifications, apply to such liquidator. However in the event of the
resolution of the trade union, the federation or labour centre to whose the union
is affiliated, shall be consulted when appointing a liquidator.
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(b) the liquidator shall proceed to wind up the affairs of the trade union and,
after satisfying and providing for all the debts or other liabilities of the trade union,
prepare a scheme for the application of its remaining assets or property for purposes
likely to benefit the former members of the dissolved trade union; or distribute the
assets or property or the proceeds among its former members, as the Commissioner
may determine.
DISQUALIFICATION FROM ELECTIONS
1) No person shall be qualified for election or appointment as an officer of a trade
union if he;
(a) has not been engaged or employed for a period of twelve months or more in the
trade, occupation or industry with which the trade union is directly concerned:
Provided that the trade union may, if satisfied as to the suitability of a particular
Candidate, allow him to stand for such election, or be appointed, notwithstanding
that he has been so engaged or employed for a period of less than twelve months.
(b) having been an officer (or a member of the executive) at a national level of a
trade union whose certificate of registration has been cancelled under section
twelve , fails to satisfy the Commissioner that he did not contribute to the
circumstances leading to such cancellations;
(c) has been convicted of an offence involving dishonesty within a period of five
years preceding the election or appointment;
(d) is declared bankrupt;
(e) is of unsound mind
(f) has been suspended, under its constitution from holding office in the trade
union and his suspension has not been revoked, or the period for which he was
suspended has not expired.
2) An officer of a trade union shall cease to hold office if any circumstances arise
which would disqualify him under subsection (1) for election as an officer.
3) No person who is a full-time officer of a trade union shall be a full-time officer
of any other trade union or of the a federation of trade unions unless he resigns
from his first office.
4) The Commissioner may call for such documentation and information, as he may
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think necessary, from the executive committee or any officer of a trade union in
order to ensure that the provisions of this section are being complied with.
REGISTRATION OF EMPLOYERS ORGANISATION
1) Every employer’s organization is at liberty under section thirty-nine, to apply to
the commissioner for registration under the Act within three months from the date
of formation. (Cap 269)
2) If the Commissioner refuses to register an organization, the association is
dissolved within six months from the date of the notification of the refusal to
register.
3) Every Officer of an employer’s organization which is not registered or
dissolved as the case may be, within the period prescribed in subsection
(1) or (2) shall be guilty of an offence and shall be liable, upon conviction,
to a fine not exceeding one hundred and eleven penalty units for every
day that the employer’s organization remains unregistered or dissolved,
as the case may be, after the expiration of such period, and in addition
every such officer may be prohibited from holding office in any employer’s
organization for such period as may be determined by the Court.
RIGHTS OF EMPLOYERS
a) Employers have the right to participate in the formation of, and to join, an
Employers’ organization participate in the lawful activities of such organization;
b) nothing contained in any law prohibits any employer from being or
becoming a member of any organization lawfully in being or subject the
employer to any penalty be reason of the employers’ membership of any such
organization;
c) no person should impede, interfere with, or coerce, an employer in the exercise
the employers’ right’s under the Act, Cap 269
no person impedes or interfere with the lawful establishment,
administration or functioning of an organization.
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No employee shall cease or suspend doing work for his employer on the
Ground that the employer-
a) is not a member or holds or does not hold office, in an organization;
b) participates in the lawful activities of an organization;
c) has appeared as a complainant or as a witness or has given evidence in any
proceedings before the Court.
RECOGNITION OF AGREEMENTS
1) Every employer employing twenty-five or more eligible employees, or such
Lesser number as may be prescribed by the Minister, shall register himself
With the Commissioner within a period not exceeding three months from the
Date of coming into operation of this section or, from the dated upon which
This section becomes applicable to the employer, as the case may be.
2) The registration shall be in the manner and in the form as may be prescribed.
Provided that an employer registered under the Industrial Relations Act, 1990,
shall be deemed to be registered under the Industrial Relations Act.
3) An employer to whom this section applies and who fails without reasonable
cause or excuse, (the onus of proof shall lie on the employer), to register in
accordance with this section shall be guilty of an offence and liable, upon
conviction.
DUTY TO ENTER INTO RECOGNITION AGREEMENT
1) Not later than three months from the date of registration under section
sixty two a registered employer and a trade union, if any, to which the
employees belong shall enter into a recognition agreement.
2) Not later than three months from the date of issue a certificate of
registration, an employers organisation and a trade union to which the
Employees belong, shall enter into a recognition agreement
3) The Minister may, for good cause, extend the period laid down in
subsection (1) and (2).
ESSENTIALS OF A RECOGNITION AGREEMENT- The law provides that :
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1) Every recognition agreement should be in writing, signed by the
Representative of the parties to it and shall provide-
a) that the employer or employers’ organization, as the case may be has recog
nized the trade union as representative of and bargaining agent for, the
eligible employees represented by the trade union so recognized for the
purpose of regulating relations between the employer or employers’
organisation and the trade union.
b) for the rules relating to grievances and bargaining procedures;
…………………………………………………………………………………./
3.0 THE CONTEXT OF CONDITION OF SERVICE MANAGEMENT
Introduction – As already discussed under study unit one and two; issues of industrial
relations management border on conditions of service. Therefore, conditions of service
management take place within the context of the internal and external environments. These
normally exert considerable influence on conditions of service strategy and policy direction.
Many writers have indicted in this context that conditions of service policies cannot be
considered, developed or applied independently of their context. The strategy to develop
conditions of service between sectors and specific institutions differs in principles and in this
context, there are no universally effective or none–effective practices of conditions of service
management. It would suffice in this case, for all managers to realize the importance of
best fit instead of the best practices. Best fit is what organizations have to strive for
when formulating conditions of service. Policies to do with conditions of service will
mainly be affected by the characteristics of the organization with regard to its purpose,
products service, processes, public or private sector and culture which is usually influenced
by all the fundamentals of conditions of service management.
NEED FOR CONDITIONS OF SERVICE
Conditions of service provides a basis for the policy direction, rules and regulations, rules of
the thumb, and management tools for informed decision making processes. If well
developed, conditions of service prevent anarchy from taking at work places while both
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workers and management will have known of what is expected of them. It would auger well
to take note of the following features clearly highlighting the importance of conditions of
service on the labour market.
- Conditions of service indicate specific duties to be performed.
- Promotion of the best labour practices, as workers are not exploited or forced into
labour orderliness, is enhanced and also prevents the element of anarchy.
- Provides a limit in making claims as one would not claim anything beyond their
entitlements.
- A good aid in choosing a career and very ideal for new recruits who may think twice
before taking up a new appointment.
- Guides management in the operations of the organizations for avoidance of audit
queries.
- Good employee motivating factor.
CATEGORIES OF CONDITIONS OF SERVICE
Organizations have a variety of approaches in determining conditions of service and in this
case, the four categories of conditions of service are as discussed below:
(A) COLLECTIVE AGREEMENT
Under this arrangement, the employer and the union negotiates for conditions of
service and terms of employment. This is normally done through a collective
bargaining process where bargaining units from the employers side as well as
employees representatives, agree and determine the conditions of employment and
salary increments as need arises. Cap 269 ,HRM&Legal framework 2nd ed, by Dr.
Seti.
(B) CONTRACT
A contract is defined as an agreement which legally binds parties. A party to a
contract is bound because he has agreed to be bound. The underlying theory is that a
contract is the outcome of consenting minds. Contracts are sometimes referred to as
enforceable agreements and there is a component of the offeror and offeree in a
contract ,meaning that there is one party offering and the other party accepting the
offer and usually there is consent.
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(C) HUMAN RESOURCES MANUAL
The manual is designed as a reference guide and human resources policies of an
organization. The contents of the manual provide employees with information
relevant to their responsibilities and the benefits they are entitled to. The manual is
revised as and when the situation demands in order to keep abreast of new
developments.
(D) MINIMUM WAGES POLICY
The minister in charge of labour issues a statutory instrument after a certain period and this
is referred to as the minimum wage policy. The legislation on the minimum wage is meant
for the most vulnerable group of employees such as shop workers, domestic workers, and
farm workers. This legal frame work specifies the basic pay and other allowances payable to
this category of workers.
IMPLEMENTATION OF CONDITIONS OF SERVICE
It is a legal responsibility on the part of employers to facilitate the formulation of conditions
of services. The conditions of services are set properly and well defined so that they are
explained to all employees, especially the new recruits. The conditions of services should be
stable to benefit employees and this entails that as conditions of service and terms of
employment are being set, it should be cognizant of the fact that employees have personal
goals to pursue as they endeavour strive to achieve the goals of the organization and in this
sense, a balance should be stroked because employees need a stable mind –a stable mind
thinks properly and contributes to the growth and expansion of an organization.
Human resources managers should treat conditions of service as part of their systems because
it is only better conditions of service which attract competent and qualified manpower. It
should be noted that it is not only a salary which can motivate an employee but other factors
such as good working environment, fair treatment of workers, good management and
leadership, provision of loans to employees, good retention policies, funeral assistance,
provision of transport and accommodation to employees. While employers aim to make
profits, it is their responsibility to address issues of staff welfare. Usually, what constitutes
conditions of service include the management tools like the disciplinary code, grievance
procedures, human resources policies, performance appraisal management system,
occupational, health and safety procedures.
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LABOUR DISPUTES AND THEIR SETTLEMENTS
Sections 75, 76, 78 and 79 of the Industrial and Labour Relations Act, Cap 69 of the
Laws of Zambia provide for a mechanism of settlement of collective dispute .during
the Collective Bargaining Process, there is likely to be a situation where a dispute
occurs between the Bargaining Units. A Collective dispute exists when there is a
misunderstanding or dispute between the government and the Unions on the other
hand relating to terms and conditions of, or affecting the employment of, the
employees and one party to the dispute has presented in writing to the other party all
it’s claims or demands and the other party has, within fourteen 14 days from the date
of receipt of such demands, failed to answer the claims or demands.
This happens also when the other party has formally rejected the claims or demands
and has made no counter offer, or both parties have held at least one meeting with a
view to negotiate a settlement of the dispute but have failed to compromise.
The Act states that where a collective dispute arises, it should be referred to
conciliators appointed by both parties to the dispute or a board of conciliation
composed of a conciliator appointed by the employer or employees’ organizations.
Where the parties to the collective dispute not engaged in an essential service fail to
agree within a period of seven days from the date when a dispute arose on the
appointment of a conciliator or of the chairman, they should inform the Labour
Commissioner accordingly. The Commissioner on receipt of the information requests
the Minister to appoint, within a period of seven days from the date of the request, a
conciliator or chairman of the board of conciliation from a list of names submitted
and agreed upon by the representatives of both parties. The conciliators within seven
days do summon the parties to the collective dispute meeting and proceed to
conciliate in the dispute. Any party that neglects to attend such a meeting becomes
guilty of an offence. When a collective dispute is settled by means of conciliation, the
conciliator causes a memorandum of the terms of the settlement to be prepared and
signed by the parties to it. The conciliator(s) within seven days submits authenticated
copies of the memorandum to the Registrar of the Industrial Relations Court. The
Registrar as soon as possible, after receipt of the settlement embodied in the
memorandum, approves the settlement. If the court decides that the settlement as a
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whole or any term of the settlement embodied in the memorandum is contrary to any
written law, the Registrar communicates the decision of the court to parties to the
dispute accordingly.
GENDER EQUALITY IN INDUSTRIAL RELATIONS
Most governments have developed National Gender Policies aimed at promoting
gender equality in the public service and the private sector.There are also in all
Ministries and government institutions, focal point officers with a view that these
structures or framework mainstream gender issues in the Public Service. Private
sector establishments should follow government steps in the area of social dialogue
and promotion of gender issues at work places. Women should not in any way be
discriminated in the Collective Bargaining Process. However, once terms and
conditions of service have been negotiated for,the beneficiaries are both men and
women who enjoy the same conditions.
Women as long as they are employees, also hold key positions in the Unions. Under
the Employment and Labour Market Policy, there is a chapter on gender with a goal
to increase the level of women’s participation in overall gainful employment in all
sectors of the economy. The SADC declaration which states that 30% of leadership
positions should be given to women is also being enhanced .Section 5 of the
Industrial and Labour Relations Act, provides for the rights of eligible employees to
belong to a Union and participate in Union matters irrespective of gender. Under the
Industrial and Labour Relations Amendment Act No. 8 of 2008, the government of
the Republic of Zambia is now able to negotiate with only the most representative
body or employees’ representatives unlike in the past were the government as the
employer, negotiated with various unions. This trend was unproductive becausesocial
dialogue is highly promoted in Zambia and arrangements are being made with the
social partners to come up with a mechanism of negotiating as per provisions of the
new Act/Amended Act No. 8 of 2008. Section 108 provides for none discrimination
of persons in employment irrespective of their gender, colour, marital status,sex ,etc.
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4.0 CONTRACT OF EMPLOYMENT SERVICE
Introduction -A contract of service is a mutual agreement between the employer and employee for
which the employee puts his/her services (i.e. his/her working capabilities) at the disposal of the
employer, usually for an indefinite period and at an agreed wage or salary.
EMPLOYER
An employer is a person who grants and allows another person to work for him/her at an agreed
wage.
EMPLOYEE
An employee is a person who offers his/her capabilities and services to another at an agreed wage.
Conclusion of a Contract of Service
No formalities are required for the conclusion of a contract of service. The parties enter into a
contract of service on terms determined by the parties themselves. The normal contractual
requirements as determined by the law of contract have to be satisfied, namely:
Contractual capacity
Physical possibility
Consensus
Lawful
Clear and unambiguous
Serious with the intention to be legally bound.
Terms That Have Been Agreed Upon
Nature of the work or service –the parties must agree as to the type of work to be done.
Remuneration –the parties must agree as to the type of payment of wages or salary.
Wages/salary can be expressed in cash or in kind (e.g. goods) or a certain percentage of the
profit.
Figure 25.0 SAMPLE OF A CONTRACT /AGREEMENT OF EMPLOYMENT
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Between ……………………………………..(The employer)
Address …………….. and……………………………………..
Home address ………………………………………………………………………
From …………………………………… Date
SALARY
The employee shall receive a salary of ( ) per day/week/month.
Where the salary is paid monthly it shall be paid on the last day of each month.
HOURS
The employee’s hours of work shall be from …………………….to………..days in a week. The maximum
working hours shall not exceed 46 hours per week. Agreement should be made between each
employee about additional hours for which he/he must be paid. Payment for overtime working in
accordance with the rates laid down in the Basic Conditions of Employment Acts.
DAYS OFF
The employee shall be entitled to:
a) be off each Saturday and Sunday
b) payment of overtime if worked beyond 45 hours per week
c) paid sick leave per year
d) All public holidays, which will be paid holidays
Alternative arrangements for negotiated leave shall all be made by mutual agreement in case of the
unforeseen eventualities as stated below:
Compassionate leave
Sick leave
Maternity leave
BENEFITS
The following fringe benefits should be negotiated as detailed below:
a) Pension
b) Medical Aid
c) Housing Allowance
d) Transport
e) Group Life Cover
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f) Educational Bursary
NOTICE OF TERMINATION
Either of the parties to this agreement may cancel it by giving the other party one full calendar and
notice.
All parties acknowledge that they understand this contract in full
SIGNATURE
Thus done and signed on this___________________ day of_________month of year
200_________________
Employer: _________________________
Employee: _________________________
Witness: _____________________
Witness: _____________________
APPLICATION FOR EMPLOYMENT FORM
In seeking employment, the prospective employee will normally be required to complete a
prescribed application form. Where there is no prescribed application form, the work seeker will
have to provide the employer with the same type of information found in the normal application
form. The application form should be accompanied by Curriculum Vitae. (This is a document which
the work seeker should draw up in which he/she sets out all personal information about
himself/herself as well as his/her qualifications and employment experience).
STANDARD APPLICATION FORM
APPLICATION FOR EMPLOYMENT
A. POSITION APPLIED FOR :Boiler Maker
B. PERSONAL PARTICULARS
1. Surname (in block letters) :Peter
2. First name (block letters) :Goma
3. Date of birth :09/03/1976
4. Identity Number : 150364 65 1
5. Postal address :P/B 23, Mwekera,
Kitwe, Zambia
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6. Have you any physical and/or mental defects or diseases? N/A
7. Official language in which you prefer you correspondence? English
C. LANGUAGE PROFICIENCY
LANGUAGES (Specify)
1. 2. 3. 4.
Speak:
Read:
Write
C. QUALIFICATIONS
Institution: Certificate/Diploma/Degree Subjects
School _____________________ ______________________________
College __________ _____________________ ______________________________
University___________________________ ______________________________
D. EXPERIENCE
Employer Post held From – To Reason for leaving
1. ____________________________________________________________________
2._____________________________________________________________________
3._____________________________________________________________________
4.______________________________________________________________________
A typical curriculum vitae will provide the following information:
A. PERSONAL DETAILS
Full names and surname
Address and telephone number, Identity number, age, whether you have a driver’s license
B. EDUCATION
Schooling, Highest standards passed and subjects and symbols
Highest academic qualifications
Name of institute and date
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Major subjects
Current studies
Institution and study direction
Any further studies
Professional qualifications
Institution attended and dates
Major subjects
C. EXPERIENCE
Name of present employer, from which date, Position held, Basic salary, previous
employers, Names, Position held, from when to when, Reason for leaving.
FIXED TERM CONTRACTS
A fixed term contract is one that lasts for a specific length of times as agreed to by the contracting
parties. The contract ends automatically at the end of the agreed period. No notice needs be given
by either party and a fixed term contract can also end immediately before the end of the period if
one of the parties breaches the provisions of the contract in a serious way and the other party
chooses to end the contract. If the parties continue with employment relationship when the fixed
term contract has expired naturally, it is assumed that the contract is extended and this is referred
to as an indefinite contract.
Most contracts are of this kind, which means they do not say how long they will last. An indefinite
contract usually ends when one party gives reasonable notice to the other party. Notice is an
announcement that the contract is to end. The announcement must be made at a reasonable time
before the contract expires. A reasonable time is usually the same period of time for which a worker
is paid. Thus, if the worker receives weekly wages, then a week’s notice is reasonable or if he
receives a monthly salary, then a month’s notice is reasonable. Notice pay is usually given instead of
notice period and this is known as forfeiting one month salary in lieu of notice for not giving each
other adequate notice.
WORK ENVIRONMENT FOR NEW EMPLOYEES
When a new employee begins work at a business, it is imperative that an employee knows what to
do, where to go and whom to report to. Such information enables the employee:
To fit into the business organization and system easily
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To have a clear mind of what is expected from him/her
To have a reasonable chance of making a success of his/her probation period at the
workplace.
Being provided with the above information is at the same time beneficial to the business
organization in that:
Employee turnover is limited
Anxiety time and energy are reduced
Valuable time and energy saved, in that other workers and supervisors will spend very little
time with the employee showing him/her responsibilities, bit by bit, as he/she faces new
problems
Typical checklist provided to prospective employees:
Remuneration, Working hours and overtime, Medical aid, Annual leave, Annual bonus,
Accommodation, Allowances, Pension
Personal information, Copy of ID document, Unemployment card in some countries
Copy of qualification certificate, Copy of union membership if applicable
DUTIES AND RIGHTS OF EMPLOYERS
To pay the employee’s wages/salary strictly and punctually
If the time for payment of wages is not specified and the contract of employment is for an
indefinite period, then payment of wages must be made after completion of the work or on
a periodic basis
Where time for payment has not been mentioned in the contract, then payment must be
made according to custom of that particular industry in that area
If the employer should die before expiry of the contract of employment, then the estate of
the late employer must pay the remuneration
On insolvency of the employer, the contract terminates immediately
The employer must provide work and safe working conditions
The employer will not change the employee’s duties and status unilaterally
THE RIGHTS OF THE EMPLOYEES
That an employee will provide work to the best of his/her ability
Employees will be obedient to reasonable instructions
Regular and punctual attendance at work be kept and monitored by employers
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Employees will deal honestly with employer’s property and employee does not privately
compete with his/her employer.
DUTIES OF AN EMPLOYEE
MAKE PERSONAL SERVICE AVAILABLE.
The employee must make/his/her capabilities available to employers to the best of his/her ability.
The employee must be capable of doing the work he/she does. Inability to do the work amounts to
breach of contract.
OBEDIENCE
Refusal by the employee without valid reason to do work ordered by the employer which falls within
the scope of his/her work description, is a breach of contract.
MISCONDUCT
An employee is expected to behave in accordance with certain practices and procedures laid down
by the employer. Drunkenness, insolence, gross negligence and preventing another employee by
doing his/her work are considered forms of misconduct, which will entitle the employer to
terminate the contract of service.
MAINTENANCE OF BONAFIDES (GOOD FAITH)
An employee is expected not to divulge information acquired by virtue of his position. One must be
honesty and never to steal from the employer.
RIGHTS OF THE EMPLOYEE
All the duties of the employer are the rights of the employee:
Entitled to be paid correctly and punctually
Where payment time is not specified, he/she must be paid after completing the assignment
To be provided with work
To be provided with safe and healthy working conditions.
In addition to the above common law rights of employee, the new Labour Relations Act and
constitution have conferred additional statutory rights to the employee such as:
The right to fair labour practices
The right to security against unemployment
The right to be member of trade unions
The right to bargain collectively for improved remuneration and working conditions
The right to organize trade union activities at the workplace
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TERMINATION OF A CONTRACT OF SERVICE
A contract of service is ended on:
EXPIRY OF THE TERM OF SERVICE.
Where a contract of service has been concluded for an indefinite period of time, it ends on the
expiry of that specific period of time.
GIVING NOTICE OF TERMINATION OF SERVICE
If a contract was concluded for an indefinite period, it should be terminated by giving of proper
notice. No notice of termination is required where a contract is concluded for the performance of a
specific task. Notice of termination of service can be given in writing. Notice of termination must be
given on or before the first day of the payment to terminate service on the last day of the payment
cycle. In the case of monthly salaried employees, notice must be given on the first day of the month
and in this case notice must be given expressly and unconditionally.
………………………………………………………………………………………………………………………………/
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5.0 TRADE UNIONS AT THE WORK PLACE
MEANING OF TRADE UNIONS
A trade union is an association of employees of a particular industry, who organize
themselves in form of the association in order to regulate relations between
employees and employers.
WHY TRADE UNIONS DEVELOPED
Workers organized themselves into trade unions in order to enable them to bargain
with employers’ position of strength, thereby putting them on an equal footing with
employers in their relations, when regulating their relationship with employers. Trade
Unions were also provided with a more realistic medium through which they could
express their feelings and satisfy their needs, accordingly.
Conditions of the working class
Trade Unions came into existence to counter-balance the power of employers.
Workers have realized that only as a collective could they effectively oppose and
resist the injustices inflicted on the exploitative employers during the Industrial
Revolution. The Industrial Revolution finally changed the way of life of workers.
1.1.1 Poor working conditions and remuneration
The period of the Industrial Revolution was one characterized by exploitation of the
workers whose wages were low and working conditions extremely bad. Child labour
was at the order of the day and factory owners had no regard for the safety of their
workers. Accidents and occupational diseases were common amongst the workers. It
was the desire of workers to combat these exploitative conditions which resulted in
the formation of trade unions.
1.1.2 Mass production and specialization
The concept of mass production and specialization was introduced into the factory
system productivity. Work became repetitive and monotonous which made the lives
of factory workers intolerable. Specialization rendered workers immobile in that it
became difficult to move from one place to another. This situation enabled
management to exploit factory workers even further. The situation contributed to the
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formation of trade unions as well. Employees lost their independence and were
subjected to harsh disciplinary measures and long hours of work.
1.1.3 Labour as a commodity
Labour to the business owners became another commodity to be used while it was
useful and to be bought and sold while it had value. Wherever possible, it was
replaced by machines and if the price of labour became too high, it was easily
replaced. The gap between the employer and employees widened even further.
1.1.4 Economic insecurity and dependence
One of the major effects of mass production, specialization and general working
conditions, was a development of economic insecurity. While workers would sell
labour at the highest price, this highest price was exceedingly low and a worker
would not even afford to get sick as this would mean loss of work and an inability to
provide for his/her family. Saving amongst workers was virtually unknown.
1.1.5 The class system
The prevailing societal system was one in which the upper and middle classes
enjoyed the luxuries of life while the worker was impoverished and could hardly feed
himself/herself. The upper classes, who owned the means of production, enjoyed all
the fruits of the system at the expense and through exploitation of the working
classes. It was therefore, inevitable that to reverse this situation and to improve the
lot of the working class, trade unions would come into being.
1.2 FUNCTIONS OF TRADE UNIONS
The major function of a trade union is to represent the interest of its members. There
is an interest inequity in bargaining power that exists between the employer and
employee in their relationship. The employer is largely free to impose his/her will in
determining the terms and conditions of employment. Trade Unions have come into
being to gain more parity in terms of bargaining power with employers and five
functions have been identified by Salamon.
Power: By being organized into a collective, employees acquired the
collective power and strength to deal and negotiate with employers on equal
terms and form a position of strength;
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Economic Regulation: By constantly fighting for improved remuneration,
trade unions are in fact regulating the remuneration of their members;
Work Regulation: By their actions, trade unions established rules by which
employers must act. In so doing, they prevent employers from arbitrary
actions and enable employees to participate in decision-making. Trade
unions tend to express the ideology and political aspirations of their
members. In this way, the unions attempt to bring about social change for
their members. This is normally done through a recognition agreement
process.
Self-fulfillment: Mechanisms and structures have been put in place which
enables individual members of the union to develop outside the confines of
their work and in that way provide self-fulfillment for its members.
1.3 OBJECTIVES (GOALS) OF TRADE UNIONS
Below you will find some of the more common goals of trade union which appear in
the constitution of trade unions:
To unite and organize workers of the various industries as set out in its
constitution;
To protect the interest and welfare of its members
To strive for the economic and social enhancement of its members;
To oppose retrenchment and strive for full employment;
To put into place and maintain effective collective bargaining structures;
To introduce democracy at the workplace;
To struggle for the elimination of all form of discrimination in the workplace;
To establish with other unions a strong federations of unions. In this way, the
collective power of unions is strengthened even further;
To maintain solidarity amongst the various unions world wide
To establish and administer benefit funds for its members.
KEY CONCEPTS OF LABOUR RELATIONS
1. MUTUAL INTERESTS
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The relationship between employer and employee or management and labour,
represented by organizations and trade unions respectively, are to a certain extent
based on common interest. Thus, the following situation occurs in this relationship.
The primary goal of employers is to make maximum profit. In striving to
achieve this goal, the employer creates work for the employee;
The employee, in turn, accepts the work provided by the employer, primarily
to receive rewards and, to a lesser extent, for personal satisfaction and
personal status. To satisfy theneeds of the employee, the business undertaking
must make profits, for if it does not make profits the business undertaking
goes down. Hence no remuneration, no personal satisfaction and no status for
employees.
It is in the interests of both parties, therefore, that the business operates
successfully to make maximum profit, for it is only with the making of profits
that the mutual interest of both are satisfied;
The common interest compel co-operation between employer and employee
that manage various economic activities taking place in the labour market.
CONFLICT OF INTERESTS
Despite the common interests found in the relationship between the employer and
employee at the same time conflicting interests which manifest themselves sometimes
in a dispute, lead to a strike or other forms of protest action. The conflicting interests
are caused by the following “
The fundamental aim of the employer is to attain maximum profits in his/her
business and this goal as a key strategy is to reduce operating costs to a
minimum level.
The employee strives for maximum remuneration and ideal working
conditions coupled with perks;
The perception of insufficient remuneration on the one hand and the enormous
profits realized provides fertile ground for conflicts;
Conflict arises from personal goals as opposed to group goals, different values
and Ideologies;
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Conflict also stems from inadequate communication channels and insufficient
use of laid down resolution mechanisms, as well as lack of structure which
promote co-operation in the work place.
The distribution of profits and benefits is also another source of conflict
between employers and employees;
Collective bargaining is the primary mechanism for resolving disputes and
conflicts in the employer/employee relationship;
The new Industrial and Labour Relations Act, has been designed to encourage
and promote collective bargaining and disputes to be resolved speedily,
amicably and satisfactory, with the minimum of disruption of production
process in business operations.
Placing worker grievances before management.
To ensure and fight for safe working conditions for its members as well as
improve the working environment of its members;
To ensure all state legislation as well as the new Labour Relations
Act, is enforced at work place in various parts of the world.
INDIVIDUAL AND COLLECTIVE DIMENSION OF LABOUR RELATIONS
These days, labour relations take place primarily on a group or collective basis.
Persons are not seen as individuals, but rather as part of a particular group. This view
of the employee is further reinforced by the fact that his/her bargaining strength with
the employer lies in collectivity. It is only a part of the group that employees are able
to meet employers on equal terms. In a collective arrangement ,the individual is
protected against victimization by his/her employer. This type of situation makes it
extremely difficult of the individuality of the employee to surface.
A conflict within the employee is found because of the need to express his/her
individuality and the necessity of functioning in a group to achieve certain goals. This
situation very often is the cause of friction and tension between the trade unions as
preventatives of this collectivity. Labour management has therefore to deal with the
individual and his/her problems and aspirations as an individual and collectives
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represented by trade unions at the workplace. Care must be exercised that the claims
and demands of the two do not encroach on each other.
METHODS USED BY TRADE UNIONS TO ATTAIN THEIR GOALS
Collective Bargaining is the major method used by trade unions to attain their goals.
Strikes are as a rule called for as a last resort to force management to meet the
demands of the unions.
Benefit funds: many trade unions have introduced and administered various benefit
funds to improve the quality of life of their members, e.g. medical aid funds, funeral
funds, discount group insurance schemes or pension funds and certain loan schemes
for members only;
Collective Action: This action is very often taken by various trade unions e.g. go-
slow, work and protest action. Joining and forming federations give trade unions
greater bargaining power by the muscle of their enormous numbers. Taking their
grievances to the various disputes resolution councils,e.g. bargaining councils and
making use of the media to make their grievances and the unjust actions of the
employer known ,thereby getting support from the general public. Making use of the
Labour Court and the Appeal Courts and Presenting education, social and life skills
programmes to their members.
2. ORGANISATION AND MANAGEMENT OF TRADE UNIONS
Most unions are structured along the same lines and are governed in terms of their
objectives. Strategies and rules as defined by their constitutions, and in most cases,
their policy-making functions is determined by democratically elected office-bearers.
At the annual congress of the unions, the rank and file committee determines the
policy which office-bearers must follow.
THE STEWARD’S RELATIONSHIP TO MANAGEMENT
The growth of the role of the steward has been in part, attributed to management’s
willingness to allow and encourage such a development. Management has an
advantage to negotiate with stewards because they are employees of the firm, they
know how their members are likely to react to a particular proposal, they are likely to
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have detailed knowledge of problems on the shop floor, and they have to maintain an
effective, day-to-day working relationship with management.
TYPES OF TRADE UNIONS
(a) Occupational Unions
The members of occupational trade unions come from a particular occupation.
Occupational unions were first seen with the establishment of craft unions that
were concerned with the protection and reservation of the skill status of their
members. They were:
Exclusively for skilled men;
For the manual trades;
One union organized and covered each separate trade;
The general aim of the craft union was to make certain that their members would
have a high standard of living by ensuring high wages together with continuing
employment. Their power was founded on their skills ability to restrict and control
entry into the occupations they represented. Their strength therefore, was based on the
strategic skills and the positions they held.
(b) Promotion Unions
These unions drew their membership from workers skilled in a particular task, but
they were not artisans or craftsmen, as they served recognized apprenticeships.
They acquired their skills by having worked from the junior ranks to senior
positions in the business undertaking. They acquired their skills at the work place
and were promoted to senior positions on the basis of merit competence and
leadership.
(c) General Unions
The membership of these unions comes from all workers irrespective of their kind
of work or skill, and regardless of the industry in which they are employed. These
are usually unions with a large membership who come from both the manual and
white collar employment sector. Despite the fact that these unions are normally
open to all types of workers, some of the general unions have tended to organize
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workers of a specific industry or industries, or otherwise act as a clearing house
for other unions.
(d) Industries Unions
The membership of these unions comes from a well-defined industry, irrespective
of the type of work the worker does. Their membership would therefore consist of
manual and white collar workers from a particular industry. Their affinity with
each other lies in the fact that they work under similar conditions, share a
common technology, and work for the same or similar employers. Examples of
industrial unions are the National Union of Mine Workers.
(e) White Collar Unions
The members are drawn primarily from the public and private sector. They do not
play prominent roles in labour relations and even economically, do not enjoy the
high remuneration benefits of blue collar workers, although in the past they were
the more highly paid employee and enjoyed a high status. With technology and
technological skills having become so important nowadays, white collar workers
have lost their status and importance.
(f) Public Sector Unions
Umbrella Trade Union Bodies (federations)
In recent years, trade unions have organized themselves into groupings which
merely provide forums for collective bargaining in a particular industry or
function as an umbrella body that ordinates the economic and socio-political
policy and provides education and legal assistance to its affiliates.
(g) Employers` Organization
An employers` organization is an association of any number of employers from a
particular industry of which one of the purpose of their association together is the
regulation of work relations between employers and employees.
THE INTERNATIONAL LABOUR ORGANISATION (ILO)
The ILO is an international body established under the League of Nations Covenant
of Peace of Versailles for dealing with labour questions on an international basis. The
ILO has four constitutional bodies:
The General Conference
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The Governing Body
The Auxiliary Organs
The International labour Office
The Conference, known as the International Labour Conference, meets once a year to discuss
labour questions, establish labour conditions, and examine measures taken to give effect to
such conventions that have been produced in respect of hours of work, unemployment relief,
social insurance and other subjects.The international Labour Office has its seat in Geneva,
Switzerland. The ILO has overtime become a specialized agency of the United Nations. In
1940, the Philadelphia Charter was adopted which consisted of generalities about labour not
being a commodity and all human beings having the right to pursue their well-being in
conditions of freedom, dignity, security and equal opportunity.
……………………………………………………………………………………………./
6.0 INDUSTRIAL RELATIONS AND SOCIAL DIALOGUE
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Introduction - Social Dialogue refers to the relationships and dealings between
government as the employer, and employee’s representative bodies regarding the
formulation and implementation of social economic policies in country. The co-
operation seeks a greater understanding of the common and conflicting interests of
the social partners and enables them to reach consensus on broad economic and social
problems facing the nation. This co-operation involves the negotiations for terms and
conditions of service that incorporate salary increments.
RATIONALE
This chapter looks at the structure of all players involved in this dialogue and their
organizational framework for conducting this dialogue and whether these social
partners have a role in ensuring that labour standards are observed.
Member countries of ILO promote the tripartite system of co-operation through the
lead Ministry of Labour and Social Security. This Ministry is responsible for the
formulation and administration of labour policies and advises government on all
aspects of Labour and Industrial Relations, collection and analysis of labour market
data, regulation and enforcement of labour legislation and promotion of a safe
working environment.
BIPARTITE CONSULTATIONS
The government of the Republic of Zambia as the employer and the workers’
representatives (Trade Unions in the Public Service) conduct business through
formal rules and procedures established under the Industrial and Labour
Relations Act. In legal terms, the two parties are referred to as the Bargaining
Units.
ROLE OF THE STATE IN SOCIAL DIALOGUE
The Ministry of Labour and Social Security in Zambia plays a neutral role in terms of
social dialogue process in the public sector. The non-interference practice is in line
with the ILO Conventions number 87 and 98 which provide for a free and voluntary
Collective Bargaining as read with the ILO Convention number 151 (Labour
Relations -Public Service Convention, 1978; Ratification of which was registered on
19th August, 1980.
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The legislation and administrative regulations which conform to the provisions of the
Convention include, among other; the following:-
► Industrial and Labour Relations ACT, Cap 269 of the Laws of Zambia. This
ACT provides the Law relating to the formation of Trade Unions and
employer’s representative organizations, including the formation of
Federations of Trade Unions and Federations of Employers’ organizations,
Recognition and Collective agreements, Settlement of disputes, Strikes, Lock
outs, Essential service and the Tripartite Labour Consultative Council; the
Industrial Relations Court, and provide for matters connected with or
incidental to the foregoing.
► The Employment Act, Cap 268 of the Laws of Zambia which provides
legislation relating to the employment of persons; makes provisions for the
engagement of persons on contracts of service and provides for the form of
and enforcement of contracts of service, appointment of officers of the Labour
Department, protection of wages and provides for matters incidental to and
consequential upon the foregoing.
► Collective Agreements signed between the Public Service Unions and the
Government of the Republic of Zambia. Collective Agreements provide for
improved salaries and wages and conditions of service of public service
employees.
► Terms and Conditions of Service (TCS) for the Public Service; Service
Commission Regulations, Service Commission Policies and Procedures of
Employment in the Public Service, Disciplinary Code and procedures for
handling offences in the Public Service and other administrative circulars
complementing the Terms and Conditions of Service. These provide essential
framework for the day to day operations of the Public Service.
► Both the Employment Act and the Industrial and Labour Relations Act and the
Convention apply to all persons employed by the public authorities except the
Armed forces, who have their Terms and Conditions of Service determined by
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the National Defense Council. However, the Zambia Police Service
employees benefit from the general pay rise negotiated by the Unions.
COLLECTIVE BARGAINING
The principle of social dialogue is mainly applied in the collective bargaining process.
Therefore, this chapter looks at critical issues, which if not properly handled, result into
chaos. The employer and employees through their representatives namely the union and/or
employer’s organizations meet to discuss and determine conditions of service remuneration.
In this context, once the two parties have agreed on a common position of how conditions of
service and terms of employment ought to be, a collective agreement is developed.
Collective Agreement - A Collective Agreement is a condition of service manual which
highlights the conditions and privilege to be enjoyed by
employees. The same document is used as a management tool,
because as a result of this arrangement, both employees and
workers will have known what is expected of them.
However, in the scope of employee relations, Collective
bargaining becomes the process under which terms of
employment and procedures are jointly agreed and thereafter,
conditions of service are determined amicably. The method
used to settle the conditions of service and terms of
employment is known as negotiation process.
COLLECTIVE BARGAINING MODEL
Collective Bargaining is not an easy task and Human Resources Managers of the first century
should be mindful that this process is a human right, an economic, social and political issue.
It is therefore, a matter that should be nurtured with care as this can turn to be a sensitive
matter. It should suffice to note that the Collective Bargaining process takes place for four
reasons namely:
(a) To improve conditions of service that are already in existence
(b) To develop conditions of service and terms and terms of employment where there
is nothing in existence
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(c) To vary certain clauses of the existing collective agreement
(d) To set up rules of conduct for both the union and management.
In essence, the whole aim of bargaining is to reach an agreement with employers who in
most cases have interests to protect in the process while the unions also have to represent the
interest of workers.
Collective Bargaining Model confirms that collective bargaining is a sensitive matter.
Political Environment
Recognition Agreement
Management Representatives
Conditions of Service
Bargaining
Rules and Procedures
Employees Representatives
National Labour Legislations
Government
Soci
al a
nd E
cono
mic
Env
ironm
ent
Inte
rnat
ion a
l Lab
our C
onve
ntio
n
International Labour S tandards and Shareholders
Stakeholders and Shareholders
______________ _________
Figure Models that collectve bargaining is a sensitive matter
Source: Human Resource Management & the legal frame work ,2nd edition:Dr V.Seti -
2013
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However, collective bargaining process is quite sensitive because so many parties are
interested and this has a multiplier effect on the economy of the nation.
LEGAL FRAME WORK IN COLLECTIVE BARGAINING
Most countries use the International Labour Conventions, approved recognition agreements
and the national relevant pieces of legislations in the bargaining process as authority and
guiding tools. Some of these International Labour Conventions which have been ratified and
in certain cases even domesticated by many countries including Zambia are the following:
C.98 – Right to organize and Collective Bargaining Convention, 1949 (NO. 98) and
ratified by Zambia on 2nd September, 1996.
C.87 – Freedom of Association and protection of the right to organize convention,
1948 (No. 87) to which ratification was done on 2nd September, 1996.
C.11 – Right of Association (Agriculture) Convention, 1921, to which ratification
was done on 2nd December, 1964.
C. 95 – Protection of Wages Convention, 1949, and ratified on 23rd October, 1979.
C. 100 – Equal remuneration convention, 1951 of which ratification was done on 20 th
June, 1972.
C. 103 – Maternity protection convention of 1952, of which ratification was done on
23rd October, 1979.
C. 111 – Discrimination (Employment and occupation) Convention, 1958 and
ratification done on 23rd October, 1979.
C. 117 – Social Policy (basic aims and standards) Convention, 1962, to which
ratification was done on 2nd December, 1964.
C. 86 – Contracts of Employment Convention, 1947 to which ratification was done
on 2nd December, 1964.
C. 50 – Recruitment of indigenous workers convention ratified on 2nd December,
1964.
C. 29 – Forced Labour Convention ratified on 2nd December, 1964.
C. 22 – Employment Policy Convention 1964, ratified on 23rd October, 1979.
C. 19 –Equal Treatment (Accident Compensation) Convention, 1925 of which
ratification was done on 2nd December, 1964.
C. 131 – Minimum Wage Fixing Convention, 1970, ratified on 20th June, 1972.
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C. 135 – Workers’ representatives’ Convention, 1971, ratified on 24th May, 1973.
C. 144 – Tripartite Consultation Convention, 1976, ratified on 4th December, 1978.
C. 158 – Termination of Employment Convention, 1982, ratified on 9th February,
1990.
C. 173 – Protection of Workers’ Claims Convention, 1992, ratified on 25 th May,
1998.
C. 159 –Vocational Rehabilitation and Employment (Disabled Persons) Convention,
1983 and ratified on 5th January, 1989.
C. 176 – Safety and Health in Mines Convention, ratified on 4th January, 1999.
C. 151 –Labour Relations (Public Service) Convention, 1978, ratified on 19 th August,
1980.
C. 149 – Nursing Personnel Convention, 1977, ratified on 19th August, 1980.
C. 182 – Worst forms of Child Labour Convention, 1999, ratified on 10 th December,
2001.
C. 138 – Minimum Age Convention, 1973, ratified on 9th February, 1976.
C. 157 – Collective Bargaining Convention, 1981 and ratified on 4th February, 1986.
However, in the Zambian context for instance, the national legislations used as references in
the process of collective bargaining include the following legislature:
(i) The Zambian Constitution, chapter 1 of the Laws of Zambia
(ii) The Employment Act, Cap 268 of the Laws of Zambia
(iii) Other pieces of Labour Legislations such as the conditions of Employment Act,
Cap 276 of the Laws of Zambia with statutory instruments which are reviewed
every after two years by the Minister of Labour, Factories Act, Cap 441 of the
laws of Zambia and the Industrial and Labour Relations Act.
The Collective Bargaining process is mainly anchored on the basis of the Industrial Labour
Relations Act, Cap 269 of the Laws of Zambia. This piece of law is cardinal in the Collective
Bargaining game, since it regulates the Collective Bargaining process from the outset up to
the end. Suffice to note that Labour Market trends in Zambia may apply to many African
countries including the western countries although the difference is minimal. The pieces of
legislations are mainly the same but different in application and names or the way they are
called.
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Human Resources Managers and Unions should be aware that the learned Walton and
McKersie (1965) in their schools of thought came up with two differing perspectives on
employer-employee relationships. Their focus was anchored on employer/union
relationship as integrative bargaining in case of unitary approach and distributive bargaining
in a pluralist situation. Walton and Mckersie saw integrative bargaining as a mutual
problem solving activity to deal with the wage effort bargain.
COLLECTIVE BARGAINING AND THE LEGAL PROCESS
The Industrial and Labour Relations Act is the Labour Law that is used to administer
organized relations between employees and employers. In simple terms, Collective
Bargaining may be defined as the process of negotiations which takes place between
an employer, a group of employers or one more employees’ organizations, on the
other hand, and one or more workers’ organizations, on the other hand for:-
a) Determining working conditions and terms of employment.
b) Regulating relations between employers and workers
c) Regulating relations between employers or their organizations and workers’
organizations.
Under the Industrial and Labour Relations Act, Collective Bargaining is defined as the
process of negotiations by an appropriate bargaining unit for the purpose of concluding a
collective agreement. In the Zambian Labour Market context, Collective Bargaining is
continuously taking place between employers and workers’ representative bodies. Unlike in
the case of developed and developing countries where it is possible for individual workers to
bargain with their employers, this does not commonly happen in Zambia.,
Legal framework
The law that provides and regulates Collective Bargaining in Zambia is the Industrial
and Labour Relations act cap 269. To enhance free and voluntary Collective
Bargaining, Zambia has ratified and domesticated the Collective Bargaining
Convention, 1981 (No. 154) and the right to organize and Collective Bargaining
Convention, 1949 (98). The two Conventions were ratified on 4th February, 1986 and
2nd September, 1996, respectively. These instruments are International Labour
Organization (ILO) Labour Standards that aim at promoting free and Voluntary
Collective Bargaining and guaranteeing protection of workers who are exercising the
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right to organize and non-interference between workers’ and employers’
organizations. This in essence promotes sound and harmonious industrial relations
and freedom of association in the labour market.
Before Collective Bargaining can take place, it is imperative that the employer and
the trade union enter into and sign a recognition agreement to direct, by means of
rules and restrictions, and facilitate their negotiations. Under Section 64 of the
Industrial and Labour Relations Act, Cap 269 of the Laws of Zambia, it is obligatory
for an employer employing twenty five (25) or more eligible (union sable) employees
who are registered with the labour commissioner as required under section 63 of the
Act and the trade union to enter into a recognition agreement not later than three
months after registration. The recognition agreement is submitted to the labour
commissioner for registration. The threshold for entering into a recognition
agreement differs from country to country, but the principle is that employers and the
workers should co-exist and treat each other as strategic partners in sustainable
development.
Not later than three months from the date of issue of a certificate of registration of the
recognition agreement, the parties to the agreement shall engage in Collective
Bargaining to determine conditions of service and remuneration for the represented
employees.
The essentials of a recognition agreement are that it shall be in writing and signed by
the representatives of the parties to it and shall provide:-
(a) That the employer or employers’ organization, as the case may be, has
recognized the trade union as represented by the trade union for the purpose of
regulating relations between the employer or employers’ organization and the
trade union.
(b) For the rules relating to grievances and bargaining procedures.
Recognition gives the union quite a number of statutory rights such as the rights
to information for collective bargaining purposes and the right to time offon union
activities. Once the recognition agreement is finalized by the employer and the
employee, it symbolizes that their relationship is legalized. At this stage, the terms
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of references are well discussed in the recognition agreement document which by
standard will have the following salient features:
o Objectives
o Termination provision
o Signatures
o Compliance levels
o Provision for approval and witness
o Regulation of the relationship such as holding of meetings and handling of
grievances. Without a recognition agreement in place, it becomes difficult for
employees to be engaged in union activities.
Process of collective bargaining
Part VIII of the Industrial and Labour Relations Act clearly spells out the due process
of collective bargaining. The general rule and practice is that within a period of three
months of registration of a recognition agreement or the expiry of the existing
Collective Agreement, the parties (Bargaining Unit) is under an obligation to
commence or carry out negotiations for a subsequent collective agreement.
Statutory Clauses
Procedurally, a collective agreement ought to be a well-researched and
comprehensive document that contains all essentials, the most important of which are
what are referred to as statutory clauses stipulating:-
The date when the Collective Agreement is to come into effect
The period during which it has to remain in force
The methods, procedures and the rule of reviewing, amending,
replacing or terminating the Collective Agreement.
A signed Collective Agreement should be lodged with the Labour
Commissioner within a period of fourteen days by submitting to him
five copies.
The Labour Commissioner is required within fourteen days of receipt
of the Collective Agreement to submit it to the Minister with his
comments.
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The Minister may after consideration approve the Collective
Agreement or direct the Labour Commissioner as to what should be
done.
Note that the minister does not order registration of a Collective
Agreement without statutory clauses.
A Collective Agreementapproved by the Minister should:-
(a) Come into force on the date that it is approved by the Minister or on a latter
date specified in the Collective Agreement.
(b) Remain in force for such a period as specified in the agreement
Variation of a Collective Agreement
Parties to a Collective Agreement may by mutual agreement vary the provisions of a
Collective Agreement and within fourteen days of signing, lodge five copies of the
varied Collective Agreement to the Labour Commissioner.
The Labour Commissioner does within fourteen days, on receipt of five copies of the
varied Collective Agreement, submit such copies together with his comments to the
Minister.
Parties to the existing Collective Agreement may seek the Minister’s consideration
and approval of a request to extend the validity of the existing agreement under not
less than thirty and not more than sixty days before the expiry of the existing
Collective Agreement.
Application
The application of a Collective Agreement signed by the negotiating parties and
approved by the Minister is legally enforceable to cover all eligible employees
(unionized employees). Under the current provisions of the act, an employee shall
cease to be eligible employee if he or she:-
(a) Is empowered to make management decisions
(b) Is entrusted with personnel management and industrial relations functions
(c) Reports directly to the Chief Executive; provided that where there is a
disagreement on the point when an eligible employee becomes a member of
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management, the matter is referred to the Minister for resolution, subject to
appeal to the Court.
Objectives of Collective Bargaining
Some of the objectives of Collective Bargaining are:-
(i) To determine equitable pay structure as the surest means of reducing lost time
through wage disputes
(ii) To improve morale and industrial relations
(iii) To reduce labour turnover by particularly eliminating indiscipline
(iv) To improve work output and overall performance
(v) To promote rationale and harmonious relations between management and
workers.
Limits under which Collective Bargaining takes place
Procedurally, Collective Bargaining takes place by:-
(i) Formal rules
(ii) Acceptable practices or behaviour
(iii) Conventions and domestic legislations.
Essential conditions necessary for successful Collective Bargaining
The following are some of the pertinent conditions that are necessary for negotiations
to result into successful Collective Bargaining:-
(i) A favourable political climate
(ii) Freedom of association
(iii) Stability of workers’ organizations
(iv) Recognition of trade unions
(v) Willingness to give and take
(vi) Avoidance of unfair labour practices
How to determine wages under Collective Bargaining
Wages issues under Collective Bargaining may be determined by the following
criteria
(a) Ability of the employer to pay
(b) Level of production ,Comparison norm (wage and salary survey)
(c) Living wage standard ,Cost of living escalator clause or wage re-openers
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(d) Wage differentials of shifts, dirty jobs, extra work
(e) Job evaluation, Time rate (per day, per hour, etc).
(f) Piece rate (per item or unit produced),Holiday with pay,Health insurance
plans and other fringe benefits
Preparation for Collective Bargaining (Negotiations)
These are important ingredients of successful Collective Bargaining:-
(a) There should be thorough study of the existing Collective Agreement
(b) Close analysis of grievances and disciplinary cases
(c) Top management should consult with middle managers. Similarly, on the side
of the unions, there should be the same approach i.e. consultation with the
other union officials and general membership.
(d) Use of comparison norm theory
(e) Use of attitude surveys to find out the reaction of employees to current
conditions of service
(f) Know current government policy on wages and parties
(g) Have some data on production if possible and Know the source of company
revenue
(h) Know the state of International Relations and how it affects your country and
company
(i) Study union demands and similarity, for the trade union there is need to
review and critically analyze management counter offers
(j) Above all, the time to start preparing for negotiations should be soon after
concluding the new Collective Agreement
Collective Bargaining (Negotiation) procedures –Other guidelines
It is important to observe the following tenets
(i) Realistic
Present demands based on the facts not ideals or illusions which cannot be
substantiated.
(ii) Position
Do not continuously complain about the negative; indicate what you want and
be positive about it.
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(iii) Flexibility
Be prepared to change your position – but not abandoning it completely.
(iv) Time
Be aware of time constraints; negotiations are not meant to go on forever.
(v) Manner
Being aggressive and abusive will have limited effectiveness. It may be
necessary to negotiate with the same party at some time in future and a polite
and firm approach can provide the results required. This will help build
constructive relations for the future.
(vii) Teamwork
Work as a team and do not disagree within your own team in the presence of the other
party.
(viii) Prejudice
Put personal likes and dislikes aside during negotiations. Your aim is to
negotiate a settlement acceptable to you and your side, not to wage a personal
war against the other persons.
(ix) Preparations
The outcome of any negotiation is largely dependent on thorough preparation.
Preparations and not performance will determine the majority of outcomes.
Collect data that is correct, relevant and recent.
(x) Questions
Good questions can have greater impact than statements.
(xi) Non Negotiable - Some issues are not negotiable. Be aware that you may be
constrained by policy which is beyond your authority to negotiate on
occasions you simply have to say “no”.
(xii)
(xiii) PROBLEMS IN COLLECTIVE BARGAINING
(a) SIGNING OF AGREEMENT
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There are always disagreements over the time of signing collective
agreements. Rejection by management to sign an agreement can be a
serious rebuff for union negotiators.
(b) DURATION OF AGREEMENTS
It is inevitable for inexperienced trade union negotiations to sign a
collective agreement with management while completely overlooking
the need to specify the duration of the validity of the agreement.
(c) BARGAINING IN ADVERSE CIRCUMSTANCES
The problem of bargaining during prevalence of adverse conditions
such as economic recession can have obvious and serious implications
to reach the employer’s inability or lack of capacity to honor the
agreement.
(d) PROCESSING OF COLLECTIVE AGREEMENT
There are unforeseen delays in processing of Collective Agreements
within the time limit specified in the industrial and Labour Relations
Act for no fault of the Labour Commissioner. The reasons for all this
cannot be attributed to incompetence of the department but a critical
shortage of staff in the department which has reigned in the last
decade. By law the processing of a collective bargaining should be
done within fourteen days.
(d) RATIFICATION,IMPLEMENTATION AND EXTENSION OF
AGREEMENTS
Agreements resulting from Collective Bargaining do not require being
dormant after the parties have signed them. They need to be approved
by the Minister with the recommendation of the Labour
Commissioner.
(f) INTERPRETATION OF AGREEMENT
Differences of interest and differences of interpretation often lead to
serious problems. These arise not through failure or refusal to comply
with the agreed wages and conditions of work but because there is a
genuine difference of opinion over the exact meaning of an agreement.
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NON – MEMBERS
The argument as to whether non union members of a union should also
benefit what has been negotiated poses a real problem. Often questions
have arisen as to whether a worker who is not a paid up member of the
trade union should be entitled to negotiated benefits or not.
POSITION OF MANAGERS
Ordinarily, managers are not covered by Collective Agreements.
However, the agreement are generally regarded and used as reference
and focal points when determining perks for managers at both the
middle and lower levels.
(i) PEACE CLAUSES
This matter is the most difficult problem to handle. It is often a very
difficult situation to determine as to whether in their bargaining with
the employer, the workers should offer to keep industrial peace in
exchange for certain benefits offered. The question is not easy to
answer but in practice it has been observed with different views. In a
majority of cases, workers are so determined to safeguard their right to
strike that at no time are they prepared to give up this right.
(xiv) GOVERNMENT POSITION ON COLLECTIVE BARGAINING
(a) Following the ratification of the right to organize and Collective
Bargaining Convention 1949 (NO. 98) in 1995, the government is
determined and committed to ensuring that protection is given through
legal provisions to workers’ and employers’ organizations, and
promotion of voluntary Collective Bargaining. This has been made
possible by domesticating the ratified convention into National Labour
Legislation.
(b) In Zambia, today, workers enjoy adequate protection against acts of
anti-union discrimination. under section 5 (1) of the Act, the law
provides that every employee has the right to belong to a union of his
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or her own choice and that the employee shall under no circumstances
be punished or disadvantaged in any way by the employer for taking
part in trade union activities.
TYPES OF COLLECTIVE BARGAINING
In negotiation process, there are two categories of collective bargaining as outlined below:
(a) Traditional Collective Bargaining
Under this type of arrangement, the Bargaining Units realign their focus patterns and
deal much with issues of compensation, reward and benefits management. In most cases,
this kind of Collective Bargaining is likely to attract a strike action, lock outs and threats
by the union to withdraw labour.
(b) Integrative Collective Bargaining
On the contrary, this kind of Collective Bargaining is integrative in nature as It is mainly
anchored on mutual interest to both the bargaining units and emphasis is mainly on a
problem solving model as the simplest way of resolving conflicts.
COLLECTIVE BARGAINING PROCESS
The process of Collective Bargaining is delicate and no square pegs in round holes. This is so
because it is a matter of sensitive nature which is like time if not well handled. This entails
that the parties to the Collective Bargaining program should always adhere to the following
discussed processes as a guiding tool so that they appreciate what is expected of them at each
and every stage.
Pre-negotiation
In principle, this is known as the preparatory stage; parties to the bargaining process
gather data and facts regarding the financial status of the organization and determine the
issues to present to management as their demand in appreciation of their labour on sale.
This stage gives a clear direction and vision into the negotiation life cycle.
Selection of a Bargaining Unit Team
At this stage, the bargaining units constitute the negotiation team. Various skills and
expertise are considered in coming up with experts, financial specialists, operational
managers, as deemed necessary
Bargaining Strategy
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Both parties have to agree on a common position to take strategies prior to the
bargaining process and agree on how to proceed. This is called bargaining strategy and
without identifying a strategy, it becomes difficult to proceed with the negotiations and
people end up arguing amongst themselves in the negotiating room because they never
agreed on a common position from the outset.
Bargaining Gimmicks
Most employers do employ tactics like using technical and legal terminologies and
frustrating the meetings and just delaying the negotiation process. In the bygone years,
employers could also shout and pound on the tables to intimidate the other party in order
to win the game. This is old fashioned and bygone because overtime, both management
and the union are treating each other as strategic partners in the expansion and growth
processes of their organizations.
The Contract Stage
At this phase, the bargaining units will have successfully, completed their negotiations
and come up with a collective agreement which highlights the conditions of service to be
enjoyed by workers.
TACTICKS USED BY THE UNION IN COLLECTIVE BARGAINIG
As earlier alluded to in this chapter, the process of Collective Bargaining is not a simple
task as it is misconceived by many managers. Henceforth, what is likely to happen if the
matter is not handled amicably, are the following:
(a) Strikes – This entails withdrawing of labour as a way of compelling
management to give in during the negotiation process.
The following are various types of strikes
(i) Economic strike – This strike is conditions of services and improved
wages.
(ii) Wild cat strike – These gimmicks take quick and abrupt work
stoppage .These strikes do not receive blessings from the union.
(iii) Sympathy strike – A strike action taken by another union in support
of the other union as a way of mounting pressure on management to
give in and compromise it’s position.
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(iv) Sit down strike – This is when employees remain at their work places
just to show their existence when in actual they have withdrawn
labour. This affects the productivity of an organization and the
performance levels of the organization drops tremendously.
(v) Jurisdictional strikes – This is when there are more unions in one
working place and one union seeks to have dominion over the other.
The dominated union will exert pressure on management to recognize
it as such.
(vi) Recognition Strike – With this kind of a strike, the union mounts
pressure on the employer to recognize and start dealing with such a
union.
However, a strike can be legal or illegal. In Zambia for instance, any
strike action undertaken without following the legal procedures is an
illegal strike and workers who take part in such a strike actions are
dismissed.
(b) Picketing –This is when the union desires to keep the establishments or work
premises closed during a strike action. In this case, the employees striking do
patrol the premises to ensure that managers do not enter the plant. This
approach is peaceful.
APPOINTMENT OF CONCILIATORS
Section 76 of the Principal Act, chapter 69 of the labour legislations in Zambia provides that
where a collective dispute arises and either parties to the dispute is engaged in an essential
service, the employer and the union should refer their dispute to a conciliator appointed by
both parties. Alternatively, either the employees or employers should appoint a conciliator or
a board of conciliators. The appointed conciliator in this process becomes the chairperson to
chair all the proceedings. It is likely that, the employees and management may fail to agree to
appoint a conciliator to help them resolve their dispute. In this context, both parties, informs
the labour commissioner in writing within a period of seven (7) days from the date when a
dispute was declared. Upon receipt of such information, the office of Labour Commissioner
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requests the minister to appoint a conciliator (s) or chairperson of board of conciliators from
a list of names submitted to the dispute.
Employees should by all means respect this process instead of resorting to a strike action if
the dispute has not been resolved in a Collective Bargaining. Basically and as per legal
procedure, once a dispute has not been settled, only two legal routes should be taken by
employees and these are outlined below :
The matter should be duly referred to the court of law ,conduct a ballot to settle the
dispute by a strike or lockout.
Henceforth, if the matter goes to Court, the decision of the court is binding between the
parties to the dispute. There is a difference between the term conciliation, arbitration and
mediation. Conciliation refers to the involvement of the third part to assist parties towards
the peaceful resolution of conflicts between them. This person will not dictate or direct
anything but merely encourages parties to examine their differences and help them to
develop their own proposal solution.
SETTLEMENT OF DISPUTES AND LEGAL STRIKES IN ZAMBIA
The area of disputes resolution is critical and it is envisaged that Human Resources Managers
together with the union leadership and employers representatives should endeavor to
appreciate the process. It should also be appreciated that the industrial and labour relations
act provides that a collective dispute exists when there is conflicts of interests or disputes
between management or organizations representing management on one hand or on the other
hand, relating to terms and conditions of service or affecting the employment relationships.
Usually this occurs during the process of Collective Bargaining. In this case, the party to the
dispute presents in writing to the other party its claims and demands.
In view of this development, the aggrieved part makes its demand claims in writing and the
other party should provide a feedback. At the same time of collective bargaining a dispute
only occurs when the union has, within fourteen (14) days from the date of receipt of the
demands, failed to answer the claims or demands. The other scenario is when the employer
has formally rejected the claim or demands and has made no counter offer.
The third situation where a dispute is likely expected to occur is when both the employer and
employees/unions have held at least one meeting with a view to negotiate a settlement of the
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dispute, but have failed to reach a settlement on all or some of the matter and issues between
them.
STEPS OF LEGAL STRIKES
If the aggrieved party decides to go on strike, Section 78 of the Industrial and Labour
Relations Act, Cap 269 of the laws of Zambia provides that these employees should not
proceed on strike immediately, but the union should arrange to have elections so that workers
cast their votes in the elections supervised by labour officers.
If the majority of workers vote in favour of the strike action, this does automatically mean
that just then they strike or lock out, but what happens is that such employees wait for ten
(10) days to elapse. This entails that a strike action or lock out only commences after the
required period of ten days is due and during this period workers go on indefinite strike
during which the dispute remains unresolved. In case the majority of the workers vote against
a strike action, then that becomes the decision and any planned for strike action does not take
off.
we should be cognizant of the fact that any strike action affects the economy of any nation
and besides, strike actions are never done in the best interest of the nation. As a result of this
scenario, within the period often days and before, any action is taken, the labour minister
may intervene and try to settle the dispute. The minister may also, after consulting the
tripartite consultative labour council, apply to the court for a declaration that the indefinite
strike action or lockout is not in the public interest and the court makes decisions as such, and
the strike ceases immediately.
WAYS TO COME UP WITH A BARGAINING STRATEGY
One of the key roles of Human Resources Management is to play an advisory role to
management on issues that affect the employee/employer relationship. This kind of advice
should be tangible.
In Collective Bargaining, the advice should be anchored on the following strategies as a
starting point in the pre-negotiations phase:
Select and manage a bargaining team to speak one language through the appointed
spokesperson.
Map out the plan and basic policies to be followed in the bargaining process.
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Before entering the board room, certain elements of the basic plan must be worked
out.
The key personnel must agree on the maximum concessions that can be granted to the
anticipated demands on the union.
The bargaining unit must be firm, fair and stick to the proposed offer.
Recess to have an in caucus meeting if necessary
Carry the mandate and position of management even if you disagree on certain
principles
Apply the postponements gimmicks and Refuse to give final approval until the whole
packages is developed.
7.0 COLLECTIVE BARGAINING IN THE PUBLIC SECTOR
Introduction- This is a matter of industrial relations and human resources managers and the
civil service is implored to study this chapter with keen interest in order that the industrial
relations aspect is appreciated. The avenue will enable them become generic human
resources experts. Certain functions of human resources are not handled by human capital
managers serving in the civil service because most human resources functions are
specialized. However, the Law that provides and regulates Collective Bargaining in Zambia
is the Industrial and Labour Relations Act, Cap 269.To enhance free and voluntary Collective
Bargaining Zambia has ratified and domesticated the Collective Bargaining Convention 1981
(no. 154) and the Right to organize and Collective Bargaining Convention, 1949 (98). The
two Conventions were ratified on 4th February, 1986 and 2nd September 1996, respectively.
These two instruments of International Labour Standards aim at promoting free and
Voluntary Collective Bargaining and guaranteeing protection of workers who are exercising
the right to organize and non interference between the worker and the employer’s
organizations. This in essence promotes sound and harmonious Industrial Relations and
freedom of association in the Labour Market.
BARGAINING UNITS
During the negotiation period, the government Bargaining Unit is led by the
Permanent Secretary at the Public Service Management Division (PSMD) who
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constitutes a team together with Permanent Secretaries in line Ministries where
professionalism is required. The Unions within the Public Service also form the
Bargaining Alliance to negotiate with government. In the education sector, there are
three Unions namely the Zambia National Union of Teachers, ZNUT, the Basic
Education Teachers Union of Zambia (BETUZ), and the Secondary Schools Teachers
Union of Zambia, SESTUZ, who form a negotiating unit that bargains with the
government team. Other Unions like the National Union of Public Service Workers
(NUPSW) and the Civil Servants and Allied Workers Union of Zambia (CSAWUZ)
also negotiate together.
PROCESS OF COLLECTIVE BARGAINING IN ZAMBIA
Part VII of the Industrial and Labour Relations Act clearly spells out the due process
of Collective Bargaining. The general rule and practice is that within a period of three
months of registration of a Recognition Agreement, the Parties (Bargaining Unit) are
under an obligation to commence or carry out negotiations for a subsequent
Collective Agreement.
THE LEGISLATIVE FRAME WORK
Suffice to note that the legislative framework governing Public Service Labour
Relations is not very separate from that of the Private Sector. This is because the
terms and conditions of service both in the Private Sector and the Public Sector are
negotiated for under the same Industrial and Labour Relations Act, which provides
the legal process in the process of Collective Bargaining. The only difference is that
in the Private Sector, each industry has its own Union which negotiates with
management for conditions of service. All signed Collective Agreements are
submitted to the Ministry of Labour and Social Security for approval. The other
difference is that the Collective Bargaining Convention 1981 (No. 154) applies to the
Private Sector employees while Convention No. 151 applies specifically to the Public
Service employees. Otherwise, the Industrial and Labour Relations Act applies to
both the Private and Public Service employees as a legal framework.
“On the Right to organize”, Public Employees have a right to establish and join
organizations of their own choice. The Industrial and Labour Relations Act, under
section 5 provides that every employee shall have the rights:-
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(a) to take part in the formation of a trade union
(b) to be a member of a trade union of the employee’s choice
(c) to take part in the activities of a trade union including any activities as, or
With a view to becoming an officer of the trade union, seeking election or
accepting appointment, and if so elected or appointed to hold office as such
officer subject only to the constitution of the trade union concerned.
(d) To obtain leave of absence from work in the exercise of the rights provided
for in (c) above and the leave applied for shall not be unreasonably withheld
by the employer.
(e) Not to be prevented or victimized, penalized or discriminated against or
deterred from exercising the rights conferred on the employee under the Act.
The ratified ILO Convention (Public Service) 1978 No. 151, under article 4 states that
Public Employees shall enjoy adequate protection against acts of anti-union
discrimination in respect of their employment, such protection applies more
particularly in respect of acts calculated to make the employment of public employees
subject to the condition that they shall not join or shall relinquish membership of a
public employee’s organization, cause the dismissal of or otherwise prejudice a public
employee by reason of membership of a public employee’s organization. Article 5
also highlights that Public employees’ organizations shall enjoy adequate protection
against any acts of interference by a public authority in their establishment,
functioning or administration and that public employees’ organizations should enjoy
complete independence from public authorities. There exists in Zambia arrangements
to afford the representative of recognized public employees’ organizations facilities to
enable them carry out their functions promptly and efficiently.
This is provided for under article 6 of the ILO Convention number 151 as read with
the Industrial and Labour Relations Act, and the Recognition Agreements entered into
by the Public Service Unions and the government provide for a right of Unions to
hold meetings at a place of work. Further, the Terms and Conditions of Service
(TCS) provide for secondment of Public Service Employees to the Union for a
specific period of time. This entails that the government as an employer, is internally
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organized for purposes of negotiations to harmonize responsibilities and positions of
the various branches of the state for purposes of consultations or negotiation with
public employees’ organizations.
DETERMINING OF TERMS AND CONDITIONS OF EMPLOYMENT
Appropriate measures exist to encourage and promote the full development and
utilization of machinery for consultations or negotiations of terms and conditions of
Employment between the government and the Public Unions. In this context, the
terms and conditions of employment are determined by management prerogative
while others are done through the mechanism of Collective Bargaining as provided
for under the Industrial and Labour Relations Act. The public employees’
organizations are recognized for the purposes of consultation or negotiations in the
determining of terms and conditions. The Industrial and Labour Relations Act,
provides that before collective Bargaining can take place, it is imperative that the
employer and the trade union enter into a Recognition Agreement to direct by means
of rules, procedures and restrictions and facilitate their negotiations. Under section 64
of the said piece of legislation, it is obligatory for an employer employing twenty five
(25) or more eligible (Unionized) employees to enter into a Recognition Agreement.
The essentials of a Recognition Agreement are that it shall be in writing and signed
by the representatives of the parties to it and provides:-
(a) that the employer as the case may be, has recognized the trade union as
representative and bargaining agent for the eligible employees represented by
the trade union for the purpose of regulating relations between the Employer
and the Union.
(b) For the rules relating to grievances and bargaining procedures,
in this context, the Industrial and Labour Relations Act, also provides for the
Tripartite Social Dialogue which refers to the dealings between the
government, employers organizations and employees’ organizations regarding
the formulation and review of various labour legislations and policies. For
example when there is need to review the labour laws, all social partners
including employees’ organizations are involved at a Tripartite Labour
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Council Meeting. In this process, the scenario is that not all Unions are
brought on board but they all get represented by their mother bodies i.e. the
Zambia Congress of Trade Unions and the Federation of Free Trade Union of
Zambia.
The bargaining structure within which consultation or negotiation takes place
is at central level. At the time of negotiations, the Permanent Secretary at
Public Service Management Division (PSMD) leads the Government
Bargaining Unit on behalf of government and constitutes a team with
Permanent Secretaries from other relevant line ministries while the Unions
within the Public Service form negotiating teams.
However, the negotiations only take place at Institutional/Departmental level
in the autonomous government institutions where conditions of service are
regulated through a process of Collective Bargaining with the local union
representatives (As provided for under Article 7 or the ILO convention 1978
(No. 151) ratification of which was done in 1980). “The limitation in terms of
the two parties consulting each other and negotiating could exist only when
the issues being discussed are not within the law, this may frustrate the social
dialogue process.” Besides, procedurally, Collective Bargaining takes place
by formal rules, acceptable practices or behavior and conventions and
domestic legislation.
The following are some of the pertinent conditions that are necessary for
negotiations to result into successful Collective Bargaining:-
(a) a favourable political climate
(b) freedom of Association
(c) stability of workers’ organizations
(d) recognition of trade unions
(e) willingness to give and take
(f) avoidance of unfair labour practices
Regarding the Principles and criteria that govern the determination of
conditions of employment for public employees, the following criterion is
applied.
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-Ability of the government (employer) to pay
- Comparison norm (by way of wage and salary survey)
- Living wage standard
- Job evaluation
- Level of productivity/performance and Cost of living escalator clause
……………………………………………………………………………………………../
8.0 EMPLOYMENT RELATIONS AND REDUNDANCIES
INTRODUCTION - Whether organizations are unionized or not, the general approach to
relations with employees can strongly affect their potential for gaining competitive
advantage:-
Organization can choose to treat employees as an asset that requires investment of
resources or as an expense to be minimized. They have to make choices about how
much employees can and should participate in decision making and that rights
employees have, what the company’s responsibility is to them.
The approach organization takes in making these decisions can result in it either
successfully achieving its short and long term goals or ceasing to exist.
A manager should therefore build a strong relationship with his employees
EFFECTS OF SOUND EMPLOYMENT RELATIONSHIP
Optimum productivity
High quality
Concentration levels
Compensation tied to performance
Low levels of status differentiation
High levels of training for both new and experienced employees
Employees participation through structures such as work teams and problem solving
groups
Contributes to good HRM practices
Shaped employers/employee behavior
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ROLE BEHAVIOURS
These are behaviours that are required of an individual in his or her role as jobholder
in a social work environment.
All strategic types require competent people in a generic sense each of the strategies also
requires different types of behaviours and attitudes. Different strategies require employees
with specific skills and also requires these employees to exhibit different role behaviours.
According to porter in his school of thought, two strategies where highlighted as
being important in employee relations such as:-
(a) overall cost leadership strategy
This strategy focuses on becoming the lowest cost producer in the industry. This
strategy is achieved by constructing efficient large scale facilities, by reducing costs
through capitalizing on the experience curve, and by controlling overhead costs and
costs in such areas as research and development, service, sales force, and advertising.
This strategy provides above overage returns within an industry and tends to bar
other organizations entry into the industry because the organization can lower its
prices below competitors cost
(b) Differentiation strategy attempts to create the impression that the organizations
products or service is different from that of others in the industry. The perceived
differentiation can come from creating a brand image, from technology, from
offering unique feature, or from unique customer service.
CONCENTRATION STRATEGY
Concentration strategies require that the organization maintain the current skills that
exist in the organization. This requires that training programmes provides a means of
keeping those skills sharp among people in the compensation programmes focus on
retaining people with skills. This strategy focuses on increasing market share,
reducing cost or creating and maintaining a market niche for products and services.
INTERNAL GROWTH STRATEGY
This strategy present unique staffing problems. Growth requires that a company constantly
hire; transfer and promote individuals and expansion into different market may change
the necessary skills that prospective employees must have.
DOWNSIZING
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The biggest challenge in HRM’s role is downsizing or rightsizing. Most
organizations are under going this process. In view of the liberalization programme
and the free market economy in Zambia, infact from 1991 to 2010, most employees
have lost jobs through this exercise. Downsizing is therefore defined as the planned
elimination of large numbers of human capital designed to enhance organization
effectiveness, Employment Act, Cap 268 of the Laws of Zambia provides for
protection of employees being laid off and how they should be paid (Section 26A)
There is a massive war for talent particularly with the notables dot-com-craze-
organizations during this time sought to become employers of choice, to establish
employment brands and develop employee value propositions as ways to ensure that
they would be able to attract and retain talented employees
This new trend seems to represent a “churn” of employees, in which organizations lay
off those with out dated skills or cot whole businesses that are in declining markets
while simultaneously building businesses and employee bases in newer, high growth
markets.
EFFECTS OF DOWNSIZING
Increased return on investment
Reduced expenses ,Increased profits ,Improved cash flow increased
productivity ,Increased sales, Increased innovations ,Avoidance of a take over
Technological advances ,Increased customer satisfaction ,Improved decision
making.
REASONABLE EMPLOYERIn reaching its conclusion on the issue of reasonableness, the tribunal should not substitute its
own judgment, that is what members of the tribunal would have done if placed in the employer’s situation. It is necessary to set the rights and interests of the employee against the interests of the employer’s business and then decide whether any reasonable employer could have come to different conclusion.
Unreasonableness and breach of contract by the employer must be distinguished. Some unreasonable conduct of the employer may be serious enough to amount to repudiation of the contract., and if the employee leaves he can claim for constructive dismissal by the employer. But there is no implied term that the employer will always act reasonably. If he fails to do so, but in a manner which does not amount to repudiation of the contract, the employee who resigns terminates a still existing contract by his own act and cannot claim that there has been constructive dismissal.
CASE STUDIES
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1.0 Western Excavating (ECC) Ltd v Sharp 1978
The defendant was suspended without pay for misconduct. This caused him financial difficulties, and so he applied for an advance against holiday pay but was refused. He then left and claimed for constructive dismissal.
Held: the employers had not repudiated the contract which was the test (not reasonableness) to be applied. There had been no dismissal.
REMEDIES FOR UNFAIR DISMISSAL
An employee who alleges unfair dismissal must present this complaint to an industrial and Labour Relations Court within three months of the effective date of termination, or such longer period as the tribunal may allow if it is satisfied that it was not ‘reasonably practicable’ for the employee to present his complaint within the three months.
2.0 Palmer v Southend-on-Sea Borough Council 1984
P was convicted of theft and dismissed but appealed against his conviction. The appeals Committee of the employer undertook to look at the case again if his appeal against the Criminal conviction was successful, as it proved to be. However, the employer refused to reinstate P and he made application, more than three months after his dismissal, to the Industrial and Labour Relations Court( Labour court ) alleging that he had been unfairly dismissed. He argued that as his prospect of reinstatement in his job depended entirely on the outcome of his appeal against conviction, t was not “ reasonably practicable” to make his application until the result of that appeal was known. He took his case to the Court of Appeal.
Held: the test is whether within the three months allowed it is “reasonably feasible”, as it Was in this case to lodge an application with the court or ministry of labour and social security. The test is not weather it is merely “reasonable” to do so.
REMEDIES FOR UNFAIR DISMISSAL
Reinstatement
If unfair dismissal is established, the court first considers the possibility of making an order for reinstatement, which is return to the same job without any breaks of continuity: s68.
Re-engagement
The court may alternatively order re-engagement – the employee is give employment with the employer (or his successor or associate) on terms specified order. The new employment must be comparable with the old or otherwise suit 69.
In deciding whether to exercise these powers, the tribunal must take into account whether the complainant wishes to be reinstated, whether it is practicable for the
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employer to comply with such an order and whether, if the complainant contributed any extent to his dismissal, it would be just to make such an order. Such orders fact very infrequent.
Compensation
If the court does not order reinstatement or re-engagement, or if the employer does not comply with such an order, the court may award compensation
REDUNDANCY
The Act gives an employee a right to a redundancy payment (as compensation) if he was dismissed because of redundancy. A dismissal is treated as caused by redundancy if only or main reason is that:
(a) the employer has ceased, or intends to cease, to carry on the business (or the .. establishment of the business) in which the employee has been employed; or
(b) his requirements of that business for employees to carry on the work done by the employee have ceased or diminished ( or are expected to); EA Cap 268,section 26B .Retrenched employees should be kept on the pay roll until hey are paid their due entitlements in full. EA, section 26B , (3 b )
The businesses of associated employers are usually treated a one business for the purpose. If the employee’s contract requires him to work at other places then his present place employment, and the employer under the terms of the contract requires him to move to different a place of work because there is no longer work at his present place of employment, that is not a case of redundancy. In considering whether the requirement if the business for staff have been diminished, it is the overall position which must be considered. If example A’s job is abolished and A is moved into B’s job and B is dismissed, that is a case if redundancy although B’s job continues. If the employer re organizes his business or alters his methods so that the same work has to be done by different means which are beyond the capacity of the employee, that is not redundancy. The test is whether the job still exists.
3.0 North Riding Garages v Butterwick 1967
A garage re-organized its working arrangements so that the workshop manager’s duties included less mechanical and more administrative work (including new accounting procedures). As he could no longer perform his duties he was dismissed.
Held: his claim for redundancy pay must fail since it was not a case of redundancy.
4.0 Vaux and Associated Breweries v Ward 1969
The owner of a public house renovated their premises and as part of its “new image” (designed to attract a different clientele) they dismissed
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the middle-aged barmaid and replaced her with a younger and more glamorous employee.
Held: the claim for redundancy must fail since the same job, although its personality requirements had changed, still existed.
In proceedings before a labour court, the employee must show that he was dismissed. He is then presumed to have been dismissed for redundancy until the employer demonstrates that there was some other reason:
OFFER OF FURTHER EMPLOYMENT
The employer may offer a redundant employee alternative employment for the future. If the employee then unreasonably refuses the offer, he loses his entitlement to redundancy pay. The offer need not be in writing but must be made before the end of the old employment , to take effect within not more than four weeks after it will end:
The offer must be of alternative employment in the same capacity, at the same place and on the same terms and conditions as the previous employment. If it differs in any much respect, it must be suitable employment in relation to the employee: All these are questions of fact.
The employee may be given a four week trial period in the new employment ( under a written agreement). If either party terminates the new contract during the trial period, it is treated as a case of dismissal for redundancy at the expiry date of the previous employment.
If the employee accepts the offer and continues in the new employment after the expiry of any trial period, his service is treated as continuing from the old employment.
RESIGNATION
An employee is not entitled to redundancy if he resigns voluntarily.
He may retain his entitlement to redundancy pay if, after the employer gives him notice of dismissal, the employee gives notice of the termination to expire at an earlier date than the employer’s notice. But on receiving the employee’s notice the employer may, by a further written notice, require the employee to withdraw his notice (and continue in service until the dismissal takes effect). The employee who fails to comply is then disentitled to redundancy pay,
If the employer by his conduct breaks the contract, the employee may elect to treat this as constructive dismissal and is entitled to redundancy pay if he leaves with or without giving notice:
MISCONDUCT OF THE EMPLOYEE
An employee who is dismissed for misconduct is not entitled to redundancy pay even though he may become redundant.
5.0 Sander v Neale 1974
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In the course of a dispute employees refused to work normally, so there was a breach of contract on their part. The employer dismissed them and closed down his business. The employees claimed redundancy pay.
Held: the claim must be dismissed since the employees had repudiated the contract before the employer’s decision to close down made them redundant.
If the employee’s conduct entitles the employer to dismiss him without notice, and the employer does dismiss him without notice, on short notice or on full notice, the employee is not entitled to redundancy pay. But in such a case, if the employer terminates by giving a full period of notice he must also give to the employee a written statement that the employer is entitled to dismiss him without notice:
Strikes
This rule does not apply when the employee takes part in a strike either:
(a) after receiving notice of termination of the contract from the employer (and the strike is within the period of the notice); or
(b) in either case the employer may respond to the strike by terminating the contract of employment without notice (as a case of misconduct) but the employee does not on that account lose his entitlement to redundancy pay since it accrued before the repudiation of the contract:
CONSULTATION WITH TRADE UNIONS
In the event of planned redundancies, it is the employer’s duty it consult any trade union which is independent and recognised (in collective bargaining) by him as representative of employees. The consultation must begin no later than the beginning of the appropriate period which is normally 30 days of consultation with the union and not less than sixty days of engaging government in the process as a legal requirement. In giving notice to the trade union , the employer must give prescribed details including the reasons for the dismissals, the numbers to be dismissed, the method of selecting employees for dismissal, the procedure for the dismissals, and the period over which the dismissals will take place. The employer should allow the trade union time in which to consider what he has disclosed and to make representations or counter proposals
IMPLICATIONS OF CORPORATE RESTRUCTURING
Senior managers of Global organizations are always operating in an environment
where they are competing for scarce and valuable resources. This being the case,
such managers have come up with the survival means which are meant to reduce
on cost and one of the strategies is that of re organization of the Companies. Usually
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in the process of reorganization of companies, workforce is also affected because of
the need to reduce the labour force. Downsizing is defined as the planned
elimination of large numbers of workers, designed to enhance organizational
effectiveness. Human resources managers should also be aware that there is also
a component of Rightsizing which simply means re organizing the system in order
to put the right people in the appropriate jobs.
REDUNDANY- Any situation where changes in the organization’s economic,
operational or technological position result in a reduced level . This is the meaning
of redundancy which has the following causes :
structural decline of the industry within an organization like an industry may find
itself unable to respond to the price competition from similar industries in other
countries, thereby losing it’s tradition market.
Decrease in the level of economic activity resulting in the decline of sales and
over capacity. This normally takes the form of a recession affecting all industries
and lack of competitiveness may arise as much from poor management and
insufficient capital investments.
Introduction of technological change within the industry it self has an impact on
the economy of any organization.
The need by management to re engineer the organization may lead to job loses
because at this stage only employees identified as talents are retained and all
those seen to be liabilities get affected.
SUPPORT FROM THE UNION ON REDUNDANCY
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At the organization level, trade unions are reluctant to agree to any redundancy proposal
although inevitably they have to accept it. Redundancy is defined as a complete negation of
the concepts or job security and the right to work. Usually this takes place when the
employer has ceased to carry on the business in which the employee was employed or when
the employer has ceased to carry on business at the at which the employee was employed.
The trade union’s primary objective is to resist or at the very least minimize the extent of any
reduction in the labour force. It is not in the best interest of the state to see people being
declared redundant as this has a multiplier effect on the economy and the political situation.
In view of this, government installs the legislation in place to ensure that all redundancy
cases are done within the ambit of the law. This law will guide on how the employer should
proceed with any redundancy case should need arise and in this context the focus is mainly
anchored on to pay the redundancy benefits, protection of the individual employee against
unfair selection for redundancy and the requirement for management to consult with a trade
union. This trend contributed to complexity of managing work processes from both
functional and social perspectives. Nevertheless, corporate restructuring is a very painful
programme and its impacts and implications are discussed below:
a) Down sizing continues to leave a negative effect on the affected employees as it
creates and promotes unemployment levels. In the developing countries like Zambia,
unemployment trends bring about poverty to the majority of peoples and this is a
social impact. This is why it is extremely important for the company before thinking
about retrenching to consult the union and government so that the ways and means of
keeping jobs are found by reducing costs on other company activities other that
retrenching. For example in tripartite arrangements, Government may attach political
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will to the impending retrenchment programme by undertaking the following
measures:
Cutting electricity bills for key companies like mines
Reduce on taxes /loyalty taxes, export or import conditions etc
Waive or cut on the water bills
b) While the downsized company must be efficiency and innovation and It is also risky.
Usually these risks are born by workers and c0mpany owners .
c) New corporate structures require new corporate cultures so that all together the new
business environment is meaningful. In this case it will be not easy to communicate
the new cultural belief and norms because workers will not easily accept such a
change. This affects the operations of the company because in the initial stages,
workers continue to apply the old culture and norms
d) News changes means competing on the global market. This entails that the company
would come up with new competences like in team work and leadership and improve
on global competitiveness in order to survive the competition.
Downsizing ‘ in this context means the planned elimination of large workforce to
enhance productivity. In the early 1990s we saw many organizations adopting this
strategic options especially in the U.S .A where more than 1000 firms downsized
between 1987 and 2001.This resulted in more than 8million people being separated from
employment. The effect was much on manual work .Gerhart and wright (2008 :192 )
REDUNDANCY PAY ELIGIBILITY
In order to obtain a redundancy payment:
(a) the employee must be under the normal retirement age for business or under 55 and those within the retirement age must be retired normally and paid three months
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salaries per each year served other than the two months salaries meant for retrenched employees. (b) he must have been continuously employed for at least one year; and (c) he must have not been dismissed (or laid off or put on short time); except where;(c) the reason for dismissal must be redundancy.(d) Must not be a casual employee and not on trial period(e) Must not be serving on contract because contracts have gratuity embedded in
them.
A person who enters into a contract for a fixed period of at least two years may, by contract (or subsequently before its expiry), agree in writing to exclude any claim of redundancy payment, but on the grounds that the contract is not renewed expiry date: s142
Within six months from the relevant date ( the date of expiry of the dismissal notice equivalent event such as expiry of a fixed-term contract) the employee must either:
(a) obtain payment; or
(b) make written claim for payment by notice in writing to the employer; or
(c) secure that his claim (if dispute) is referred to an industrial tribunal; or
(d) make a complaint of unfair dismissal to a tribunal. On making a redundancy payment (otherwise than under the award of a tribunal), employer
must give to the employee a written statement to show how the amount been calculated: Redundancy pay is calculated on the following rate :
Two months pay for each year of service Leave terminal dues One month salary in lieu of notice or workers could be allowed to work for notice. Repatriation allowance where applicable and Last salary and any outstanding dues.
POINTS WORTH NOTING IN INDUSTRIAL RELATIONS
Chapter roundup
Self Evaluation Questions
(a) Explain why it is bad to casualise workers;(b) Why is it important for employers to observe the Labour Laws.
7.0 Offence to delay a labour officer. The law provides that it is an offence to do the following acts;
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Breach of the employment contract occurs where there is summary dismissal, constructive dismissal, inability on the employer’s side to continue employment, or repudiation of the contract by the employee
Where employment is terminated by notice the period given must not be less than the statutory minimum. Notice must be given in accordance with the contract if the contractual notice is longer than the statutory minimum. Either party may be entitled to reasonable notice, which may be longer than the statutory minimum.
If an employee is dismissed with shorter notice than the statutory or contractual requirements, or without notice when summary dismissal is unjustified, the employer can be sued by him for damages for wrongful dismissal. The only effective remedy available to a wrongfully dismissed employee is a claim for damages based on loss of earnings.
Certain employees have a right not to be unfairly dismissed. Breach of that right allows an employee to claim compensation from an industrial tribunal. To claim for unfair dismissal, the employee must satisfy certain criteria. He must have been dismissed and must have been unfairly dismissed. Once the employee has shown he was dismissed the employer, to avoid the claim, must show what was the principal reason for dismissal, and that reason was a substantial one such as to justify dismissal. Remedies for unfair dismissal include reinstatement, re-engagement and compensation.
Dismissal must be justified if it related to the employee’s capability or qualifications, the
(a) willfully obstructs, hinders or delays a proper officer or a medical officer in
12.0 OFFENCE TO DELAY OR OBSTRUCT A LABOUR OFFICER
The labour legislations under the employment act provides that it is an offence to:
(a) without reasonable cause, fails to comply with any lawful direction given or made by a proper officer or a medical officer under the provisions of this Act; or
(b) fails to produce any book, account, register or other document which he is required to produce under the provisions of this Act; or
(c) conceals, or attempts to conceal, any employee or casual employee who is required to appear before, or to be examined by, any labour officer, or who otherwise prevents, or attempts to prevent, any such employee or casual employee from so appearing or being examined;shall be guilty of an offence.
(d) Willfully obstructs a proper officer in the course of carrying out his duties as conferred upon him by this Act, shall be guilty of an offence and shall cause to be arrested. Section seven of the EA, Cap 268
MINIMUM CONTRACTUAL AGE 9.0 ADMINISTERING OF DISCIPLINE AT WORK PLACES
Introduction -Discipline is essential for any organization to survive and this can only
be achieved if management and employees understand and know their obligations
and strive to live up to their expectations. Discipline is therefore, one of the means
to which human resources and management at large nominate some officials to
correct behavioral deficit. This is normally done by ensuring that there is compliance
to the laid down regulations and policies. Many learned people have defined
discipline as having one major purpose which is basically the correction of behavior
and not to punish or embarrass the workers. This also enhances orderliness and
resolves problems or hanging of issues as well as changing the attitude of both
employees and management staff. The process of discipline should not be
mishandled by discipline administrators. The actual process involves first and
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Breach of the employment contract occurs where there is summary dismissal, constructive dismissal, inability on the employer’s side to continue employment, or repudiation of the contract by the employee
Where employment is terminated by notice the period given must not be less than the statutory minimum. Notice must be given in accordance with the contract if the contractual notice is longer than the statutory minimum. Either party may be entitled to reasonable notice, which may be longer than the statutory minimum.
If an employee is dismissed with shorter notice than the statutory or contractual requirements, or without notice when summary dismissal is unjustified, the employer can be sued by him for damages for wrongful dismissal. The only effective remedy available to a wrongfully dismissed employee is a claim for damages based on loss of earnings.
Certain employees have a right not to be unfairly dismissed. Breach of that right allows an employee to claim compensation from an industrial tribunal. To claim for unfair dismissal, the employee must satisfy certain criteria. He must have been dismissed and must have been unfairly dismissed. Once the employee has shown he was dismissed the employer, to avoid the claim, must show what was the principal reason for dismissal, and that reason was a substantial one such as to justify dismissal. Remedies for unfair dismissal include reinstatement, re-engagement and compensation.
Dismissal must be justified if it related to the employee’s capability or qualifications, the
foremost, investigating the matter. In this case the immediate supervisor or manager
should gather facts and evidence to confirm what exactly took place. The evidence
can include a statement from a witness, a report from a private investigator,
documentary evidence, interviewing of a witness or even the affected workers. This
forms a basis and usually disciplinary cases are either lost or won depending on the
investment put into the investigation process. The term discipline means an “action
taken against the erring employee or an employee who has violated the company
rules or when the employee’s performance has deteriorated.
Discipline is the form of training
Many disciplinary problems grow out of management’s failure to inform
employees what is expected of them “
Once it is established that there is need to discipline the erring employee after the
investigations, then the disciplinary process should commence at once. However,
investigations are conducted professionally and in a very fair way by ensuring that there is a
union official present or a witness or even by talking to many witnesses in order to have the
best possible picture of what happened. The meetings should also be formally done and a
record note taken. I have always advised fellow human capital managers that the issue of
discipline is critical and as such, it should be handled with care in order to avoid legal
disappointments.
PURPOSE AND OBJECTIVES OF DISCIPLINE
The purpose of discipline is to obtain compliance with established rules of conduct and to
correct improper conduct. Discipline should be positive in nature; it should involve creation
of an attitude and an organizational climate wherein the employees should willingly
conform to the rules and regulations. A sound discipline policy can only be if employees and
management are aware of their respective rights, obligations, responsibilities and the
necessary procedures. This awareness must include the knowledge and extent of penalties
to be meted out in case of infringement of the code. The objective of discipline is to achieve
the following:-
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To develop in the employees a willingness to obey and abide by the rules and
regulations of the company.
To develop in the employees an attitude and behavior to conform to acceptable
norms of conduct.
To enable management to take prompt action against offenders with confidence.
To ensure uniformity of action within the company on all disciplinary matters.
DISCIPLINE AND THE LEGAL PROCEDURE
Whether in the public sector or private sector, disciplinary action should be applied in
accordance with the provisions of the law. In Zambia for example, the Employment Act, Cap
268, section 26A of the Laws of Zambia provides that no employer should terminate the
employment contract of employee without charging him or her with an offence and
according them an opportunity to be heard. Therefore, prior to taking any disciplinary
action, an investigation of a misconduct should be done, then charged with an offence,
allow the affected employee to exculpate himself in writing within a stipulated period and
usually what is given is forty eight hours. The next step is to constitute a disciplinary
committee to hear the case. Research has revealed that human resources managers are
used to chair such meetings and even the issuance of the dismissal letters. This is irregular
because the role of human resources in the administration of discipline is that of providing
advice to management. In order to have fair case hearing without a pre-determined
position, the chair should be a senior manager nominated by management and the human
resources is the secretariat to take minutes and preparations of all reports pertaining to
particular case. Many pieces of labour legislations provide that the Ministry of Labour
should be informed of any dismissal case so that it is establish as to weather the disciplinary
action instituted against the erring employee warranted a dismissal or not. In particular,
section 25 of the Employment Act, Cap 268 of the Laws of Zambia vividly states that any
dismissal case should be reported to the local labour office and that if this provision of the
law is not complied with, then the employer is quilt of an offence .It should be clearly stated
here that a lab our office is not a tribunal to direct that a dismissed employee be reinstated
as this is the ambit of the court of law.
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FACTORS CONSIDERED WHEN ADMINISTERING DISCIPLINE
It is important to consider certain features as human resources specialists are administering
their discipline in order to be fair, and usually what is taken into consideration include the
following features:
Long service of an employee- the erring employee could have served the employer
for many years with a clean disciplinary record and this entails that for one to have
gone up to such years in service, such a one should be a good employee. Writing
from the practical experience point of view as a human capital manager, bad
employees are identified from the first day of engagement. At this stage, the first
impression is created and this is the reason why new employees are placed on a trial
or probation period to determine if these new workers are worth retaining or not.
Therefore, for Mr. X, for instance, to have worked for fifteen years or more, he
should be a good employee who adds value to the organization.
The other factor is the previous good or bad record of an employee and also the
factors surrounding the matter are considered seriously.
It should be established as to whether the employee was aware of the rule or policy
and whether the worker knew that violation of the rule or policy could lead to
discipline.
The nature or seriousness of the offence in terms of violating company rules of
conduct or obligations like being late for work for few minutes is just another factor
or is it that the employee admitted to the misconduct and apologized for his or her
behavior
The issue of precedence is also cardinal because all decisions should be referred to
the previous verdicts or previous decisions made in similar cases.
Human resources managers should be aware that some employees are merely pushed into
acting rudely and violently as a result of management of customer’s action. All these factors
are telling us that discipline just like other rewards, is a motivating factor if properly
administered. Human resources officials should be firm in this process but they should not
behave like they are in operation’s departments because of their unique role in
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management and administration. First and foremost, human resources management is that
part of management functions which is primarily concerned with employer/employee
relations in an organization and this entails that a Human Capital Manager protects the
interests of both the employer and employees. He stands in between the two parties to
advise accordingly and no square pegs in round holes.
STAGES OF THE DISCIPLINARY PROCEDURE
Below are outlined the key stages of any disciplinary procedure and all managers should
take advantage of this process so that workers are not treated unfairly or even exploited in
certain cases:
Verbal warning and written warnings
This is when the matter is not serious and managements just want to correct a mistake. In
this case, arrangements are made to have a meeting with an employee who has committed
a mistake and this is normally treated as a caution. However, what follows next is a written
warning if the employee does not want to change and improve. This stage entails that a
record should now be kept for reference purposes. A written final warning is only instituted
when a mistake made is of serious nature and the next stage is the final warning which is
applied when the offence is of serious nature and there is failure to improve upon a
previous warning and a dismissal is done only if previous warnings are ignored or if the
offence committed is very serious and of gross nature.
WRONGFUL DISMISSAL
Human resources managers are implored to really understand this concept from the legal
point of view. The concept of wrongful dismissal is the product of the common law.
Wrongful dismissal is one at the instance where the employer’s termination of the contract
is contrary to the terms and conditions of employment. When considering whether a
dismissal is wrongful or not, the form rather than the merit of the dismissal must be
examined. The common incidence of wrongful dismissal is where the employer fails to give
the required notice which is usually thirty days or payment of one month salary in lieu of
notice. Unfair dismissal is a creation of statute and it looks at the merit of the dismissal and
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form is only supportive of the whole merit for the dismissal. However, under unfair
dismissal the court looks at the reason for the dismissal to determine whether the dismissal
was justifiable or not. In Zambia for instance, any dismissal under the ambit of section 108
of the Industrial and Labour Relations Act, Cap, 269 is deemed to be unfair dismissal. This
section of the law states that no employer should dismiss an employee on the basis of
discrimination against gender, sex, religion, tribe, marital status, health or otherwise. In
labour administration, there is also a component of constructive dismissal which is when
the employer, through his behavior, makes the working environment so uncomfortable for
the employee that it is impossible for the employee to continue working. The employer in
this context ,will just frustrate the employee in question to such an extent that this worker
is left with no option but to resign and this situation is termed as “constructive dismissal
ROLES OF EMPLOYERS IN DISCIPLINE ADMINISTRATION
Employers have a special duty to ensure that certain things are done in
administering of discipline and these are the basic roles all human resources
managers should play
Keep a discipline record on employee’s personal file and record all happenings
regarding disciplinary action being taken.
Prepare charge forms and stock them in Human resources department
prepare dismissal letter templates and only amend where necessary
Allow employees to have room to appeal to the chief executive officer and all
disciplinary cases should be initiated by immediate supervisors and no instructions
should come from the principals as this would mean closing room for appeal
Do not determine the outcome of the case until all procedures are exhausted and no
comments should be made at this stage.
Do not intimidate employees
Train identified officials in discipline administration.
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Discipline is a form of training or system of rules designed to promote orderly conduct.It
must be noted that when disciplinary problems arise, it may be as much management’s
fault as the workers. Many disciplinary problems grow out of management’s failure to
inform employees what is expected of them. (Effective discipline depends on more than one
way communication in which the Manager/supervisor tells the employees that they would
be punished if they do not do what is required).Employees may be aware of the rule, but
refuse to accept it. On the other hand, employees may be aware of a rule but management
may never have disciplined anyone who violated it.
Clearly, no one expects that a rule will be enforced in the future either, and as a result a
pattern of Indulgence will prevail.
OBJECTIVES OF DISCIPLINE
Enhances productivity
Loyalty is enhanced
Reshapes the behavioral attitudes of employees
Spirit of oneness
To enable managers and supervisors to take prompt action against the erring
employees.
To ensure uniformity in action within the company on all disciplinary matters.
RULE OF THE GAME IN DISCIPLINE ADMINISTRATION
In order to achieve the above objective, the following should be implemented:
Formulation of standard rules and making employees and management aware of the
rules through meetings or memos.
Making employees aware of the action the company may take in the event of
such rules being contravened
Formulation of standard guide to ensure consistency of penalties in the company.
Induction of all new employees at all levels on what is expected of them.
Careful investigations of all circumstances of each case, before disciplinary action
is taken.
Prompt application of appropriate disciplinary action.
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Provision of appeal machinery.
Keeping a disciplinary record on the employees personnel files. Discipline is as
beautiful as a flower because it is merely a mechanism under which both
employers and employees relate to each other in terms of conduct. It is indeed
expected of both parties to be abreast with a disciplinary code and the grievance
procedures at the places of work. However, some employers are stubborn and
they do not respect this arrangement. All processes of discipline should be
administered in line with the provisions of the relevant pieces of labour
legislations and read with also the relevant international labour standards.
Therefore, Human Capital Managers are implored to be as beautiful as this flower
so that whatever, action they take is not in conflict with the law. The role of
human resources managers in matters of discipline is to advise management on
the legal way of administering discipline and not to let other managers influence
the decisions as this would mean making irregular decisions which may become a
liability on the part of the employer.
PROCEDURE AND PENALTIES
The procedure and prescribed penalties in this code should be followed and administered
accordingly. Disciplinary action should always be prompt, fair and firm, and taken after
thorough and critical investigations into each alleged offence, taking into account the
circumstances of each case.
PROBATION PERIOD
Offenders still on probation usually have their appointment terminated forthwith at first
breach of any offences without a formal case hearing and where it is deemed necessary, the
erring employee is charged with an offence.
DISCIPLINARY AND APPEALS COMMITTEES
In order to maintain consistency in the administration of discipline in the Company, a
disciplinary committee should be constituted and should operate from Company offices.
Alternatively, management nominates a panel to hear a particular case.
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Composition of the Disciplinary Committee
The disciplinary Committee will consist of the following members:
Chairman - Senior official appointed by Management
Secretary -Human resources manager or human resources director where the head of
department is the director, especially in large organizations and government systems and
other officials selected and a union official where applicable.
DISCIPLINARY LETTERS
All letters related to disciplinary actions should originate from the immediate supervisor
who initiates the disciplinary process and the signing of all the letters after the disciplinary
committee has decided on the matter should be done by the Chairman of the Disciplinary
Committee who is charged with the responsibility. The role of human resources officials
present is merely to be a secretariat and take minutes of the proceedings and write the
appropriate reports. That is to say; this person should endeavor to keep up-to-date records
of the proceedings of the Committee as such details may be required by the court of law in
case of a legal turn around.
APPEAL PROCEDURE
Without prejudice to the right of the employee who is aggrieved by any disciplinary action
taken against him, this employee has the right to appeal against the decision of the
Disciplinary Committee through the respective chief executive officer within the stipulated
period and for most organizations the period highlighted in their policies is within five (5)
working days or more. Failure to appeal within this period will render the appeal null and
void.
MISDIRECTION OF CASES
Similarly, if management feels that the Disciplinary Committee misdirected itself in
interpretation of the rules, it shall have the right to appeal to the Appeal Committee against
such a decision within 5 days of judgment.
COURT ACTION
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After the Appeal Committee, the employee or Management if not satisfied with the decision
taken, may refer the matter to the Industrial Relations Court or Labour Court whose
decision shall be final and binding to both parties.
Composition of the Appeals Committee
The following shall form the Appeals Committee of the Company:
I. Chief Executive Officer or his nominee- Chairman
2. Senior human resources manager-Secretariat and other senior managers as Committee
Members.
TIME LIMITS
All appeals should be lodged according to the following procedure:
The appellant should lodge an appeal within five (05) working days of the imposition of the
decision or penalty by the Disciplinary Committee. The appellant shall officially be called by
the Appeals Committee for an appeals hearing. Every effort should be made to hear the
appeal as soon as possible but not later than 28 working days. Out of time appeals may only
be considered when there is a reasonable excuse for the delay by management through the
Chief Executive Director.
If an employee fails to attend the hearing, he will be given a written notice of this fact and
another date will be arranged to hold the hearing by the Appeals Committee.
If an employee fails to attend for a second time and no reasonable cause is established, it
will be assumed that the employee no longer wishes to pursue the appeal and the matter
will be considered as closed by the Appeals Committee. Using non-procedural channels to
resolve a grievance is rendering the appeal null and void, and this constitutes an offence.
All employers should ensure that through their human resources units, employee’s personal
files have a disciplinary record this record form is updated from time to time as need arises.
GRIEVANCE PROCEDURE
The Grievances Procedure is a mechanism through which employees can air their
complaints and bring their problems to the attention of management. This procedure
assists in preventing minor issues sparking off major conflicts. It should therefore, be
handled and taken seriously by administering officials.
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Grievance
A grievance is any dissatisfaction or feeling of injustices brought formally to the attention of
management. Most grievances arise out of interpretation or application of a contract of
employment, work rules or labour laws.
COMPLAINT
A complaint is a spoken or written dissatisfaction that disturbs a worker enough to cause a
negative reaction. A complaint does not necessarily result in a grievance.
Settlement of Disputes
Settlement of Disputes should follow the following procedure:
An employee wishing to raise a grievance shall in the first instance discuss it with the
immediate supervisor.
The complainant should, if he so wishes be, accompanied by another employee.
If the matter is not resolved at supervisory level, the complainant shall discuss the grievance
with human resources officers. At this meeting, the complainant should ,if he so wishes be
accompanied by another employee.
If the grievance is not resolved at this level and the complainant wishes to take the matter
further, the human resources manager should submit a report within two (02) working days
to the office of the Executive Director indicating all relevant details of the grievance stating
the main issues, those resolved and outstanding.
At this stage, the complainant should be accompanied by the Human Resources Manager
and another employee to informally discuss the matter. If the matter is not resolved, the
Chief Executive Officer or his nominee arranges for an appeal hearing to be attended by all
parties concerned.
Discipline is essential for any organization to survive. Discipline can only be achieved if
management and employees of the company understand and know their obligations and
strive to live up to their expectations. Discipline is therefore, one of the means to which
human resources and management at large nominate some officials to correct behavioral
deficit. This is normally done by ensuring that there is compliance to the laid down
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regulations and policies. Many a learned people have defined discipline as having one major
purpose which is basically the correction of behavior and not to punish or embarrass the
workers. This also enhances:
orderliness and resolves problems or hanging of issues
changing the attitude of both employees and management staff.
CAUSES OF DISCIPLINARY ACTION
Normally disciplinary action is taken against an employee for two types of conduct
out lined below:
Poor job performance or conduct that negatively affects an
employee’s job performance- These normally boarder on behavioral
attitude.
Action that indicate poor citizenship – These are offences of criminal
nature.
OFFENCES RELATED TO BEHAVIORAL ATTITUDES OF EMPLOYEES
These are many but we could list a few just to have an out look of
what we are discussing and some of them are itemized below:
Sleeping on duty
Insubordination
Insulting or shouting at other employees
reporting late for work
Loafing
Disloyalty
Leaving the place of work early
( Discuss the rest )
OFFENCES RELATED TO POOR CITIZENSHIP
Just like discussed above , these are also itemized below for our
discussion.
Falsifying documents
Theft
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Assault
( Discuss the rest )
Besides , these are some of the reasons for discipline or discharge of workers
PROCESS OF DISCIPLINE
The process of discipline should not be mishandled by discipline administrators.
The actual process involves first and foremost, investigating the matter. I n this case
the immediate supervisor or manager should gather facts and evidence to confirm
what exactly took place .The evidence can include a statement from a witness, a
report from a private investigator, documentary evidence, interviewing of a witness
or even affected workers. This forms a basis and usually disciplinary cases are either
lost or won depending on the investment put into the investigation process.
Once it is established that there is need to discipline the erring employee after the
investigations then the disciplinary process should commence at once.
However, investigations are conducted professionally and in a very fair way by
ensuring that there is a union official present or a witness or even by talking to many
witnesses in order to have the best possible picture of what happened.
The meetings should also be formally done and a record note taken .I have always
advised fellow human capital managers that the issue of discipline is critical and as
such it should be handled with care in order to avoid legal disappointments.
Communicate the performance requirements or work rules to the workers
INVESTIGATIONS INTO A DISCIPLINARY CASE
The basis of investigations should be of cognizant of the fact that the paper trail like
financial records, time cards, policy documents and performance appraisals while seeking
outside help to investigate evidence may suffice because experts can do wonders.
The reasons for investigating is to gather evidence from third parties about
misconduct, assess, know what involvement , if any , an employee exhibited in a
misconduct as well as providing an opportunity for the erring employee to explain
his or her action.
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My only free advise to human resources managers is never to institute disciplinary
action against a worker during the investigation period as the investigation process
is ideal for determining whether it is indeed necessary to proceed with the case or
not.
It sounds funny but questions like “ who, where, how , when and why of the
misconduct is cardinal for human capital managers or officers.
To achieve this, it is necessary to have a machinery of regulating the company
discipline by developing a disciplinary code and Grievance procedures whereby,
these documents tend to
act as a guide or management tool for both management and employees.
THE HOT STOVE RULE IN DISCIPLINE ADMINISTRATION
This framework emphasizes that discipline should be directed against the act and
not the person. Besides the Hot Stove Rule also focuses on the following salient
features:
o Advance warningo Consistencyo Immediate action which refers to the period of time when an
offence was committed and the discipline. In short, the hot stove rule are also referred to as “set of guidelines used in administration of discipline that calls for quick consistent, and impersonal action followed by a warning. Managers are encouraged
to look at the out lined principles in a hot stove approach:
(i) Our hot stoves burn immediately – Thus , disciplinary processes should be
administered quickly.
(ii) Our hot stoves give a warning so is discipline.
(iii) Our hot stoves consistently burns everyone who touches it regardless of who they
are
(iv) Our hot stoves burn everyone in the same manner regardless of who they are
JUST CAUSE
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All allegations that an offence is committed is dependent on the employers proving
that an offence is committed and this is what is referred to as Just Cause. However,
Just Cause results when a very severe offence is committed that warrants a
dismissal.
Employers should be aware that some employees are merely pushed into acting
rudely and violently as a result of management of customer’s action.
All these factors are telling us that discipline just like other rewards, is a motivating
factor if properly administered.
Human resources officials or employers should be firm in this process but they
should not behave like they are in operations departments because of their unique
role in management and administration.
First and foremost, human resources management is that part of management
functions which is primarily concerned with employer/employee relations in an
organization. This means that this person protects the interests of both the
employer and employees. He stands in between the two parties to advise
accordingly and no square pegs in round holes.
All employees should be taken through the process of a disciplinary code so that
they understand and appreciate what is expected of them incase they misbehaved
or vice versa. Normally it is advisable for organizations to circulate copies of
disciplinary codes to all employees and perhaps engage a consultant to explain it’s
contents page by page. Government ministries should also budget for this activity
which should be implemented in form of a workshop so that both new and old
employees are oriented to the rules and regulations of the organization.
The human resources and administration department should realize that
performance and loyalty is enhanced if employees appreciate the disciplinary codes
and grievance procedures.
AUTHORITY OF DISCIPLINARY ACTION
This focuses mainly on the following :
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Employment Contract and regulations published from time to time
Principles of Law in both criminal and civil cases
Company internal regulations
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10.0 LABOUR COURT -ZAMBIAN CONTEXT
Introduction - The Industrial and Labour Relations Court, which is referred to as a labour
court in other countries, stems its origin to the Industrial Relations Act of 1971 which came
into effect on 1st April 1974. Section 96 of the Industrial Relations Act established the
Industrial Relations Court, as an extension of the dispute settlement procedures in the country
with a view of incorporating specialization and expertise in the arbitration and adjudication
of labour relations matters. Matters of labour disputes are normally administered by a
relevant government ministry mandated to do so and the rationale behind is to have the
matter resolved amicably and if parties to the dispute fail to resolve the problem, they can
refer the matter to court.
Upon the establishment of the court, government placed it under the portfolio responsibility
of the Ministry of Labour and Social Security. The rationale for attaching the court to the
ministry as opposed to it being part of the ordinary judicature stems from various objective
considerations which included the following, among others:
1. The Court was perceived as an institution of specialization and expertise to deal
with matters relating to labour, i.e. matters arising from the employment relationship
between collectives of employers and employees. It was envisaged that the court
would be more accessible, less formal and act with minimum delay to avoid the
consequences and harm that can emanate from the slow pace of action characteristic
of ordinary courts.
The core function that the Court was expected to perform formed part of the system of
labour administration and particularly labour management and dispute settlements whose
functions were the responsibility of the Ministry of Labour and Social Security. Such
system which commenced with the mediation and conciliation by labour officers or other
industrial relations practitioners ended with adjudication and arbitration by the Industrial
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Relations Court and was sequential and all institutions were to work in close
collaboration in the interests of fostering harmonious industrial relations in the country.
2. The Industrial Relations Court was established under an act of parliament falling
under the statutory functions of the Ministry Of Labour and Social Security.
The Industrial Relations Court Act of 1971 was revised by the Industrial Relations Court Act
No. 36 of 1990. The 1990 Act provided that the Industrial Relations Court, established by
section 96 of the Industrial Relations Act of 1971 continued to be applied as if it was
established under this Act. This Act was in turn repealed and replaced by the Act as
provided for under Section 84 thereof as follows: -
“The Industrial Relations Court, established by Section 64 of the Industrial Relations
Act, 1990, continued as if it was established under this act”.
With the enactment of the Judicature Administration Act by Act No. 42 of 1994, the
Industrial Relations Court was made part of the judicature and transferred from the Ministry
of Labour and Social Security.The import of this change has progressively seen a
transformation and adoption of the norms and procedural standards that ordinary courts
follow in their operations. It would not be wrong to say that progressively, the court has
become less accessible and more formal in line with the procedures that the ordinary courts
follow. Further, we have observed that unlike before, the trade unions have become less and
less involved in the operations of the court including representing their members.
Powers, Authority, and Jurisdiction of the Industrial Relations Court
The original jurisdiction or legal authority of the court was:
(a) To examine and approve collective and recognition agreements.
(b) To give awards and decisions in collective disputes and with respect to industrial
relations matters referred to it.
(c) To interpret awards and agreements and also resolve ambiguities.
(d) To adjudicate upon any matters concerning collective rights, duties and privileges
of employees, employers and their representative bodies.
Up until September, 2008 when amendments were introduced, the jurisdiction of the court
was provided for in Section 85 of Cap. 269 of the Laws of Zambia as amended with the Act
No. 30 of 1997 in the following terms:
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“85(1), the court has original and exclusive jurisdiction to hear and determine any industrial
relations matters and any proceedings under this Act.
(2) The court has jurisdiction to commit and punish for contempt any person who
disobeys or unlawfully refuses to carry out or to be bound by an order made against
him/her by the court under this Act.
(3) The court does not consider a complaint or application unless it is presented to it
within thirty days of the occurrence of the event which gave rise to the complaint or
application. Provided there is an application by the complainant or applicant, the
court may extend the thirty day period for a further period of three months after the
date on which the complainant or applicant has exhausted the administrative channels
available to him/her.
(4) The court is bound by the rules of evidence civil or criminal proceedings, but the
main objective of the court is to do substantial justice between the parties before it.
(5) An award, declaration, decision or judgment of the court on any matter falling within
its exclusive jurisdiction is, subject to section 97, binding on the parties to the matter
and on any parties affected.
FUNCTIONS OF THE COURT
The functions of the court are to hear and determine complaints, applications, appeals and
petitions as some people have been made to believe. The court can only deal with matters
properly before it and It is not the function of the court to investigate threatened strikes as
this is properly the functions of the officers in the department of labour.
During the month of September 2008, a new piece of legislation,Act No. 8 of 2008, the
Industrial and Labour Relations Act, Cap 269 was amended. Of particular importance to the
work of the court, was the replacement of Subsection 85(3) referred to above with the
following:-
“85(3) the court does not consider a complaint or application unless the complainant or
applicant presents the complaint or application to the court:-
(a) Within 90 days of exhausting the administrative channels available to the
complainant or applicant.
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(b) Where there are no administrative channels available to the complainant or applicant,
within 90 days of the occurrence of the event which gave rise to the complaint or
application
Provided that:-
(i) There is an application by the complainant or applicant, the court may extend the
period in which the complaint or application may presented before it.
(ii) The court shall dispose of the matter within a period of one year from the day on
which the complaint or application is presented to it.
A proper re-adding of the forgoing amended subsection 85(3) of the Act reveals clearly that
the court does not entertain any complaint or application from an aggrieved party unless the
same is lodged before it within 90 days of the occurrence of the event which gives rise to the
complaint or application.
However, where there are administrative channels available to the aggrieved party, the same
should be exhausted and the complainant or applicant may lodge his complaint or application
with the court within 90 days of exhausting the administrative channels.
In terms of the provision, the court may use its discretionary powers to extend the time in
which to file or lodge the complaint or application out of time before it in both instances
cited above. Furthermore, it is now mandatory for the court to dispose off the matter within a
period of one year from the day on which the complaint or application is presented to it. This
means that the court will be reluctant to grant adjournments, henceforth. With regards to
Subsection (5) of Section 85 Of Cap 269 quoted above, it is important to understand that this
provision empowers the court to delve behind the issue before it in order to establish the real
reasons at the centre of the dispute in the interest of doing substantial justice to the parties
before it and thus be enabled to remedy any injustice that may be revealed –see the case of
ZCCM Ltd Vs Mutale
However, it should be understood that the phrase that “the court shall do substantial justice
between the parties before it” does not mean that the Industrial Relations Court should lose
its impartiality and take sides when determining a complaint or application. It simply means
that the court must determine a complaint or application fairly and impartially by taking into
account all the evidence added by the parties, the law and the surrounding circumstances of
each case –refer to the case of Roston Mubili Mwansa Vs. NFC Africa Mining PLC.
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Furthermore, it must be noted that the statutory provision in subsection (5) of section 85 that
the court is not bound by the rules of evidence meaning that the court should exercise
flexibility and not rigidity in the adjudication process. For example, the rule of evidence that
only original documentary evidence may be admitted in evidence is not adhered to with
rigidity in the Industrial Relations Court as duplicates or photocopies are allowed.
As regards subsection (6) of Section 85 of the Industrial and Labour Relations Act, Cap 269,
any decision of the court on any matter before it or falling within its exclusive jurisdiction is
binding on the parties affected thereby. This means that where a complainant or group of
complainants bring a complaint or an issue to the court and succeed in the matter, such
decisions of the court does not only bind the parties to it but all those similarly circumstanced
even though they may not have been party to the proceedings in court –see the case of
ZCCM Ltd Vs. Jackson Manyika Siame and Others.
With regards to collective disputes, it is important to note again that the court cannot
entertain or deal with a matter that is brought to it without regard to procedure. Failure to
follow laid down procedures would render such action improperly before the court and liable
to be dismissed –In the case of Francis Kuveya (suing as General Secretary of NUPAW
on behalf of employees of the respondent) Vs. Zambia Sugar PLC , where the Supreme
Court of Zambia stated, among other things, that where a particular statute provides for a
procedure to be followed in commencing action, that procedure ought to be religiously
followed to avoid the matter being dismissed for being improperly before the court. The
operations of the Industrial Relations Court are governed by the Industrial Relations Court’s
rules contained in Statutory Instrument No. 206 of 1974. The rules provide detailed
procedures for commencing all types of cases in the court and these include applications,
complaints, appeals and references.
Special reference to rule number 42 that empowers the court to debar a respondent who fails
to deliver an answer within the stipulated period or fails to comply with an order of direction
of the court.
In certain circumstances, the court may proceed to hear the complainant or applicant and
deliver its judgment accordingly without hearing the respondent.
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In the interest of justice, it is important for the respondents who are usually employers, to file
their answer within the time appointed so that they are heard and to enable the court to
dispense equitable justice.
Clearly, the important responsibilities of the Industrial Relations Court are the issuance of
awards and decisions in collective and individual disputes, and other Industrial Relations
matters referred to it and in the process provide an avenue through which differences may be
reconciled or equitable solutions found.
BAD LABOUR PRACTICES
It is advisable for students to appreciate what constitute bad labour practices on the labour
market .In this case, bad labour practices are issues that affect the rights of employees and
causing employees to be exploited by employers. However, under the Labour laws the
following deeds are termed as bad labour practices at the place of work:
a) Non existence of conditions of service to highlight the terms of employment and
conditions of employment to be enjoyed by workers.
- Management also uses these conditions of service as a management tool in
making informed decisions
- Both parties will know what is expected of them once they have conditions
of service in place.
b) Hiring and firing policy - This should be discouraged at all costs because it becomes a
cost on the part of the employer
.
c) Non recruitment of qualified and competent Human Resources Specialists to handle
human resources issues and advise appropriately.
d) Making none human resources specialists to supervise the human resources manager.
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e) Non development of a disciplinary code and grievance procedure at the work place.
f) Promoting workers on tribal grounds or practicing nepotism.
- Forced labour and exploitation of workers
- Imposing slavely conditions of employment to workers
- Insulting, shouting at the workers and beating them
- Sexual harassment at the work place in order to win or render favors
- Employing persons below the minimum age e.g. 16 years
- Not allowing workers to belong to a union
- Frustrating appeal cases
- Not according erring employees an opportunity to be heard
- Refusal to allow female employees take mothers day
- Dismissing female employees on the basis of being pregnant
- Lack of providing protective clothes (PPE)
- Refusal to pay overtime and not allowing employees to rest.
31.1 Self evaluation Questions
( a ) In a company where there are two or more unions , advise how they can negotiate with
management for improved conditions of service.
( b ) Explain how a recognition agreement should be lawfully terminated.
ENJOY YOUR STUDIES
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