There seems to be confusion over the maxim “creature of statute” and party political interference. A lot of people think the political party with majority representation in Senate, National Assembly and local governance must dictate the pace at all levels of governance. Whilst this may be true to some extent, it may not be the best route to take.
Moses Tsimukeni Mahlangu
A lesson can be learnt from how Iranians conduct their political processes. They have the upper and lower house, assembly of experts, to name a few. A deliberate decision was made to make sure all minority and ethnic groups are represented. Judged by what we are made to believe, one would have thought that Iran was an authoritarian State. Surprisingly, the opposite is true, as evidenced by the balanced representation of all its citizenry interest groups, at all decision making bodies.
Local governance, one would have thought, was established to decentralise decision-making and taking. The Constitution has buttressed this position by capturing the principles of devolution of power. This long overdue operationalisation of the devolution principles is a disturbing feature given the State’s said commitment to the rule of law.
Currently, local authorities are stuck on a ministerial directive that instructs them to religiously adhere to the 30:70 ration, meaning salaries of any given local authority should not exceed 30% of total recurrent expenditure. The remaining 70% must be channelled to service delivery. The formula used to arrive at the said ratio is unknown. In addition the 30:70 ratio must be informed by the economic performance of the country in general and an individual local authority in particular.
During years of plenty maybe the said ratio could have worked. Under the current economic meltdown, what is 30% of a meagre income? Equally, 70% is just nothing. Coming from an industrial relations background, one would strongly argue that the 30:70 ratio directive is a direct interference with collective bargaining. In fact, the directive promotes industrial disharmony.
Disputes over non-payment of salaries or salary arrears are awash at the Ministry of Labour and in courts. Local authorities are not pleading incapacity to pay salaries, but point to the 30:70 ratio directive as the stumbling block. In ZUCWU vs Victoria Falls Municipality, Labour Court Judge, Moya Matshanga ruled that this directive is just a directive nothing more, as such she concluded that a directive may not stand in the way of an Act of Parliament.
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Following the Zuva Petroleum (Pvt) Ltd Supreme Court Judgment of July 17, 2015 some local authorities attempted to terminate contracts of employment of some workers. Some local authorities would have terminated on notice before Parliament remedied the mischief, that is, a worker can be dismissed for no apparent reason and without compensation. After Parliament put a stop to this madness, some local authorities resorted to salary cuts which were also illegal.
The Labour Act, Section 2(2) Section 71(1)(4) of the Constitution; property rights
Definition of property — any description and any right or interest in property e.g. pension, annuity, gratuity or similar allowance
●A law which provides for the extinction or diminution of that right is regarded as providing for the compulsory acquisition of property section 65(1) of the constitution ; labour rights. Every person has the right to fair and safe labour practices and standards and to be paid a fair and reasonable wage.
How is fairness measured except by parties mutually reaching a collective bargaining agreement? As such an attempt to wriggle oneself out of such an agreement is not only an illegal, but criminal Labour Act, Chapter 28:01.
Below is a number of Sections in the Labour Act that govern the employment or workplace relationship between employers and employees.
Section 2A(i) — The purpose of the Act is to advance social justice and democracy at the workplace by :-
●Giving effect to the fundamental rights of employees
●The promotion of the participation by employees in decisions affecting their interests in the workplace
Under the new dispensation, employees cannot be dismissed for no apparent reason, neither can they be subjected to unilateral decisions made without their involvement. Mischief Rule aims at finding the mischief and proffering a remedy.
Section 6(i)(a) — No employer shall pay any employee a wage which is lower than that specified for such an employee by law or by an agreement made under the Act. The Collective Bargaining Agreement (CBA) is binding and, therefore, enforceable. It can, therefore, not be breached without sanction Section 8(c) It is an unfair practice for an employer to fail to comply with or implement (i) a collective bargaining agreement
Section 12A(3) Wages shall be paid at regular intervals on working days, near the workplace.
Clearly, the ballooning salary arrears witnessed these days are unacceptable.
Section 12(6) No deduction or set off of any description shall be made from any remuneration except: — as demanded by law or a legal process, when repaying a salary advance or stop orders. No such deductions should exceed 25% of the employee’s gross salary.
Unilateral salary cuts and for removal of benefits is, therefore, definitely unlawful.
Section 12A(7) — No aggregate deduction must exceed 25% of the employee’s gross salary. In some instances workers have had their salaries reduced by 50% and this is criminal to say the least.
Section 16(2) Parties may agree on less favourable conditions. Employees’ rights to social security, pensions, gratuities or other retrenchment benefits shall not be diminished without the prior written authority of the minister.
One may argue that this Section deals with an organisation being transferred as an ongoing concern. Whilst this may be correct, one can still argue that the intention of the legislature regarding all workers was to jealously guard against unilateral removal of the gains that would have been acquired. Only the minister in a regulatory capacity can authorise a diminishing of benefits subject to parties agreeing to the diminish.
Section 74
●Parties are empowered to negotiate a collective bargaining agreement
●Negotiations may cover any conditions of employment which are of mutual interest to parties
●Parties may negotiate or amend the agreement after 12 months of the existence of the current agreement
●Collective bargaining agreement shall not contain any provisions that are inconsistent with the Labour Act
●Parties may agree to introduce higher rates of pay and more favourable conditions of employment at the expiry of the Collective Bargaining —care should be taken not to diminish the rights and interests of workers in the process or adversely expose workers.
In addition, no one is allowed to unilaterally take or reduce one’s salary as it forms a part of the worker’s property.
It would appear it is again dawning to some urban councils that salary cuts are indeed illegal.
One or two urban councils have resorted to retrenching workers. The author of this article, in one of the published articles, rightfully argued that in terms of the Labour Amendment No. 5 of 2015 there were only four routes to terminating an employment contract, namely;
●In terms of the Code
●By mutual agreement
●If the contract was for a fixed term
●In terms of Section 12C (retrenchment)
Sanity has prevailed at last and as such workers and urban councils can meaningfully and legally engage. It must be quickly pointed out that the said retrenchments or any of the four routes to termination of contracts must be negotiated and not unilaterally imposed. One of the urban councils which has taken the retrenchment route is said to be offering two(2) months’ salary for every year worked. As long as parties agreed to the package the move is legal and seems to be a fair one.
Another intriguing question is, how did some urban councils get over staffed in the first place? Some councils introduced what they term ward employment, a situation whereby Councillors were invited to bring job seekers from their wards. Knowing human nature for what it is, the window was abused resulting in competing in employing councillors’ boys. The innocent worker is now at the receiving end as a result of a political scheme that went burst. This approach to staffing issues has led to the prevailing staffing freeze. This freeze is affecting service delivery in councils that did not go on a political hiring spree. One would suggest that the staffing freeze could be a political counter measure, meant to disempower councils perceived to be of a wrong political orientation from empowering their political party blue eyed boys.
Prior to independence, civil servants were supposed to be apolitical. Upon attaining independence, civil servants were invited to join political parties of their choice. This has resulted in the battle for control of workers’ allegiance and loyalty. All along, the battle was on controlling councillors yet of late, we have seen council officials being put to the block. The trend is widespread. Incoming ministers get rid of boards only to replace them with own boys. It would appear this is the in thing in the current political dispensation. Continuity has been sacrificed at the altar of self-serving egos.
Poor local authorities driven towards all directions: 30:70 ratio directive, salary cuts, appointment of commissioners, illegal running of local authorities by political figures. Gone are the days when councils were run independently. It would appear councils have their hands tied, they cannot negotiate salaries for their workers, they cannot employ as guided by the needs for service delivery. Budgets have been used as punishing instruments. A council can be brought to its knees for want of an operational budget.
May be we need to go back to the drawing board; apoliticise civil servants including council workers. Make appointments based on merits and not political affiliation. Councillors should be elected for their ability and skill and not sloganeering and so should the officials.
There is need for vibrant, focussed councillors that make independent decisions as opposed to being remotely controlled. If councils’ resolutions are overturned elsewhere, this becomes an affront to the residents who elected those councillors.
What an unenviable situation for local authorities? The pain of doing what one knows is wrong yet does it anyway.
●Moses Tsimukeni Mahlangu writes in his own capacity and can be reached on [email protected] for comments
