The labour law still remains intact despite Covid-19 pandemic
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Previous columns have referred to the fact that our law stands supreme.
The pandemic seems to have created a situation where many employers and some trade unions believe the Labour Relations Act and the Basic Conditions of Employment Act have been suspended.
This is not correct. The regulations issued by the minister of employment and labour and the Department of Health are subsidiary to the legislation.
We all understand that the workplace is affected, and this effect will last many years beyond the pandemic.
Unfortunately, it will not be business as usual and even more unfortunately, we are facing millions of retrenchments across every industry.
Under level 2 of lockdown, many more businesses are expected to reopen. Unfortunately, the economy is weak and the public don’t have money to spend. With these factors and the lack of international spending, businesses are trading below par and some might even find it impossible to open until the lockdown is lifted. The turmoil has resulted in a restructure of the world of work.
During this period of uncertainty, employers are receiving strange advice from trade unions and shop stewards. On the other side of the coin, employees are receiving incorrect messages from their employers.
For instance, some employers have been advised that if they can’t afford severance payments for employees, they don’t need to pay them. Other employers are leaving their staff at home with no payment, in order to force the staff member to resign and find employment elsewhere.
A rather nasty employer telephoned to tell me that he was going to make things “hot in the kitchen” in order to force his staff out.
These practices are illegal, immoral and not going to be accepted by either the Commission for Conciliation, Mediation and Arbitration or the bargaining councils.
Trade union officials have been advising some employers that because of the lockdown, staff can't be retrenched and disciplinary inquiries have to be held over until the end of the pandemic.
We need to understand that our legislation remains supreme. In particular, Section 189 of the Labour Relations Act which guides everyone on a dismissal for operational requirement: “The employer and the other consulting parties must in the consultation envisaged by subsections 1 and 3 engage in a meaningful, joint consensus-seeking process and attempt to reach consensus."
During this period I have experienced incredible lateral thinking. Employers have sat with workplace forums, trade unions and shop stewards and come up with innovative ideas. Anything is possible if people reach out to one another and speak meaningfully without animosity and without trying to cheat the other.
Most employers have indicated that they are trying everything in their power to avoid dismissing their staff. Many have pointed out that the staff are qualified, loyal and productive. They merely want the business to survive until the staff can meet their productivity once again.
Many individuals are willing to take salary cuts and work harder to ensure that the business remains solvent. With these wishes and fears, there must be a way forward and there must be a way in which parties can work together to find one another.
I have signed amazing agreements over the past five months. For instance, a tourist-related business that lost all its orders in the beginning of March. It discussed the ramifications with its staff. The feedback was fantastic and the staff loyalty unbelievable.
Everyone agreed to be retrenched and that they would receive their severance package over 12 months. All the role-players shared their individual problems with one another so that the employer could try to resolve some of the issues which would be incurred over those next 12 months.
For instance, a pregnant staff member said she needed to remain on medical aid because of pregnancy-related complications. The employer made arrangements to ensure that she could remain on the medical aid on a lower level and at a lesser cost.
Others needed the employer to negotiate with their banks and other creditors to put all debt on hold. The employer was able to secure reasonably priced loans so that staff members did not have to go to loan sharks. Everyone left on the basis that they would come back once the business revived. The exercise ensured that the business could remain solvent.
Other businesses have been releasing their staff from onerous commitments such as previous loans and debt. I have just been through an exercise where all the staff members were released from the restraint of trade they signed with the employer.
On another occasion, an employer chose to give the business to his staff instead of spending money on liquidating the business.
The employer wrote off the monies the business owed him and transferred all the assets to a group of employees who were able to restart the business and even engage with their former employer as an independent consultant. This strange state of affairs has meant the former employer is earning a consultancy fee from his own business which was costing him money monthly beforehand.
The employees have been able to access government funding to which the employer was not entitled.
The employees, some of whom had been there more than 20 years, were able to implement changes and introduce structures to make the business more profitable and viable.
South Africans are resilient, innovative and ready to restart our economy.
Two wonderful things have happened in the past week, showing that there is light at the end of the tunnel and hope for our economy.
First, Minister Naledi Pandor, in answering a question in Parliament, said our government needs to relook at independent contractors and small businesses. The minister has recognised that the growth of our economy is reliant on atypical employment.
Hopefully, our labour and employment minister has heard Minister Pandor loudly and clearly.
Furthermore, the trade unions have been demanding the lockdown be lifted and their members go back to work.
It is extraordinary to think that trade unions, which normally threaten strike action, are demanding to go back to work. This is a wonderful and warm feeling.
* Michael Bagraim is the DA's deputy spokesperson for Employment and Labour, and a labour lawyer.
** The views expressed here are not necessarily those of Independent Media.