The Trade Disputes Amendment Bill: One step forward, two steps backwards

SHARE   |   Monday, 11 July 2016   |   By Adam Phetlhe

Under normal circumstances, any amendment to any law is premised, I want to assume, on the expectation that such amendment will have a profound improvement to the one being amended. One is for example quickly reminded of an amendment that reduced voting age from 21 to 18 which was (and I stand corrected) overwhelmingly received. These amendments are rightfully effected by politicians and in today’s world where political power determines every sphere of our lives, such amendments are at times effected for political expediency – that is, a deeper political goal is desired and must be achieved. In this article, I intend to look at the negative side of the bill because it is this negativity which appears to render the bill unacceptable to workers given their uncomfortable posture towards it. BFTU and BOFEPUSU issued a joint statement in July 2015 “expressing grave concerns against TDA Bill (2015) and more particularly opposing Sections 46 and 47” The tabling of the bill was deferred in 2015 reportedly to consult stakeholders but nothing suggests that this achieved any notable outcome because issues which were contested then are still in the bill.  It will however be unfair not to recognise and acknowledge the “brighter” side of the bill.

The Hon. Minister of Labour and Home Affairs has reportedly brought this bill to amongst others, “strengthen the dispute resolution process that would in turn minimise delays in the resolution of trade disputes; give the Commissioner of Labour and Social Security the power to confirm or vary default awards by mediators which will result in a reduction in the backlog of cases at the Industrial Court”. Given the bottlenecks in the current dispute resolution mechanisms, one would on face value, applaud these interventions. But the bill has in large measure, wrongfully touched the nerve of trade unions particularly clause 46 which seeks to classify almost all public servants under the essential services bracket. It is important to note, however annoying or comfortable this may be to some, that the issue of declaring almost all public servants essential took the centre stage soon after the 2011 public servants strike. By failing to genuinely engage workers on labour disputes, government felt that the only route to stifle workers from using their lethal weapon of lawful striking, was to permanently disarm them of this weapon notwithstanding the ILO definition of an essential service. The ILO defines an essential service as that “which when interrupted, would endanger the life, health or personal safety of the whole or part of the population”. Teachers for example, and even if they withdrew their service, wouldn’t endanger the life, health or personal safety of anybody.

While government should be applauded again for having ratified ILO core conventions and fairly domesticating them into national legislation from which public servants now form and belong to trade unions; are permitted by law to bargain collectively,  this initiative is painfully regressed by promoting laws which are grossly in conflict with some of these conventions. Declaring workers under the essential service bracket effectively precludes them from lawfully striking. In this respect, a prohibition to lawful strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings. But given the almost broken down relationship between government and workers which is further compounded by clause 46, will the same government act swiftly to compensate for the loss of striking power whose universal objective is to quickly summon the employer to the negotiating table? Very hard to tell. Lawful striking will always be the last resort when all else has failed and I will concede that the impact of a strike on citizens is generally speaking, inconveniencing in all respects. Nobody wants it but it is a necessary devil for workers to intransigent employers. When meaningful, genuine conciliation and arbitration is intended, strike options become substantially diminished but because this intention is only a “pie in the sky” given the recent BURS strike and the 2011 public service strike, it more or less suggests that the status quo (lack of negotiating in good faith) will remain where there will be no strike option.

The remnants of historical tension and conflict of the Industrial Revolution era between workers and employers are still very much alive yet we had hoped that with the birth of the ILO and its elaborate processes and procedures to almost end it (tension and conflict), politicians are still behaving like we are still in that era. May be they are taking comfort from the fact that the ILO itself hasn’t unequivocally pronounced on the strike issue. “ILO has taken a third position (watching from a distance and almost non-committal) that workers are entitled to take industrial action to defend their economic and social interests” because there is no ILO convention specifically on strike. It is almost like writing a “to whom it may concern” letter. Are we perhaps moving in the Swaziland direction where trade union wings are all but effectively clipped? You be the judge but I maintain that we have taken one step forward and two steps backwards.
Adam Phetlhe      
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