By Dr Felix Musukubili
IN the labour arena, the year 2013 was inundated with overwhelming industrial actions both protected and unprotected. Most notably these were in the retail, hospitality, mining and fishing sectors. All because of either poor or ineffective collective bargaining from both employers and employees.
It is common cause that industrial actions have the effect of causing losses to production and profits for companies. In the same vein, it creates loss of remuneration on the part of the employees. And ultimately impacting on the country’s economy and causing investment fears in the outside world, particularly with foreign investors. It is within this context that this article is written to encourage meaningful collective bargaining in the country. Pursuant to the constitutional provisions, Namibia has ratified two core International Labour Organization (ILO) conventions relevant to collective bargaining. These include, The Freedom of Association and Protection of the Right to Organize Convention. This Convention provides workers and employers, the right to establish and join organizations of their own choosing for the purpose of furthering and defending their rights. It is submitted that freedom of association is a cardinal principle of the ILO on the basis that it permits workers to pursue their economic and social interests fairly. Given this significance, member states undertook under the 1998 ILO Declaration to respect, promote and realize in good faith the principles contained in the declaration. Namibia has embraced these principles since the ratification of the convention and the adoption of the declaration.
The other convention is the Right to Organize and Collective Bargaining Convention. Article 4 of the convention urges governments of all ratifying member states to “encourage and promote the full development and utilization of machineries for voluntary negotiation between employers’ organizations and workers’ organizations.” The convention aids in the regulation of the terms and conditions of employment by means of collective bargaining as envisaged by the Labour Act No 11 of 2007. The rationale behind collective bargaining is to maintain industrial peace. This is why one of the ironies of collective bargaining is its very object, industrial peace, being dependent on the threat of conflict. The success of the process is premised on the value that it offers to the parties. For workers it is a means of maintaining “certain standards” of distribution of work, of rewards and stability of employment. The term collective refers to a situation where employees join together in trade unions to enhance their power in bargaining with employers over wages and working conditions. It is a process where employees elect their representatives and mandate them to enter into negotiation with management representatives, who are also appointed or delegated to represent employers’ interests. The grouping may go beyond employees and employers to include grouping of trade unions and grouping of employers’ organizations who themselves may come together and combine for the purpose of collective bargaining at a sector or national level of the economy to establish minimum wages. This is the level of bargaining that established the prevailing minimum wages in the agricultural, security and construction sectors. Certainly, collective bargaining should be seen as a remedy to the inherent inequality between the parties. Their relationship is typically characterised of power and one who is not a bearer of power. The employer’s power can only be challenged by employees acting collectively to neutralise the power advantage enjoyed by employers as the owners and controllers of the means of production. It is through collective bargaining that employees are placed in a stronger bargaining position from where they may succeed in negotiating and enforcing their demands. For this reason, labour law scholars argue that “collective bargaining without the right to strike amounts to collective begging.”
Labour legislation can only come in to maintain the “equilibrium” between the parties by ensuring the effective operation of a voluntary system of collective bargaining. It is within this framework that the Labour Act contemplates the promotion of sound labour relations and fair employment practices as contained in the preamble. This is seemingly an open agenda and may therefore be subject to interpretations by the courts. The Labour Act provides a wider conception of collective bargaining and thereby creating a duty to bargain on parties.
The Act dictates that collective bargaining should be conducted in good faith. Otherwise, the converse is bad faith bargaining causing industrial actions and thereby subverting orderly collective bargaining. The Canadian Supreme Court has observed the following in an often-quoted passage: “Labour law… is fundamentally important as well as an extremely sensitive subject. It is based upon a political and economic compromise between organised labour – a very powerful socio-economic force – on one hand, and the employers of labour –an equally powerful socio-economic force on the other. The balance between the two forces is delicate and the public at large depends on its security and welfare upon the maintenance of that balance. One group concedes certain interests in exchange for concessions from the other. There is clearly no correct balance which may be struck giving permanent satisfaction to the two groups, as well as securing the public interest. The whole process is inherently dynamic and unstable… care must be taken then in considering whether constitutional protection should be given to one aspect of this dynamic and evolving process while leaving the others subject to the social pressures of the day.” (Deliosle v Cananda (Deputy Attorney General) 1999 2 SCR 989 at par 126). Gleaning from this citation, I submit that good faith bargaining should be characterised by an open-minded approach on the part of the participants and a willingness to consider genuine positions put forward. And where possible, to reach an agreement, as opposed to parties having a pre-determined approach by simply going through the motions, with no intention whatsoever of shifting positions or of considering a compromise settlement. The requirement to bargain in good faith is considered to be the most important characteristic of successful labour negotiation. However, the notion to bargain in good faith does not translate into a duty to agree. But it merely contemplates entering the negotiation and endeavour to reaching agreement. Where an agreement is not in sight, parties are in principle free to call a halt to negotiation and to resort instead to power play or to a unilateral action whenever they choose. At such stage of impasse, it may become unnecessary for the parties to continue bargaining.
Dr. Felix Musukubili is a labour law and employment relations expert and a graduate from Nelson Mandela Metropolitan University (NMMU).