Davies Ndumiso Sibanda
FOLLOWING the disastrous crafting of the Labour Amendment Act Number 5 of 2015 which has many implementation challenges, questions are now being asked about the relevance and the legality of the Tripartite Negotiating Forum (TNF).
The legal position is that the TNF is not a legal body but a voluntary gathering of government representatives with union federations, ZCTU and ZFTU and employer organisations’ representatives (EMCOZ).
The body is not a creature of statute but is born out of ILO guidelines meaning that there is nothing binding in what the body does. There is nothing illegal with government using the TNF as a sounding board before crafting legislation as it pleases.
South Africa has the National Economic Development and Labour Council (NEDLAC,) which came into existence through an Act of Parliament and whose purpose is to allow government to come together with organised Labour, organised businesses, organised community groupings to discuss and try to reach consensus on issues of social and economic policy.
Many other countries have similar legal bodies thus the chances of coming up with half-baked legislation are reduced.
The TNF has been allowed to be the voice of the nation on labour matters despite the fact that many bodies involved with labour are excluded and they only scream when a bad law or a law they do not agree with has been crafted or when they lose cases in court.
The question is, Who is to blame? My view is that most stakeholders have themselves to blame, for example, the human resources practitioners and their Institute of People Management have not made input to the crafting of legislation but cry foul when legislation they do not agree with is crafted. Given the strength of IPMZ, I see no reason why they should be begging to go into the TNF, a voluntary organisation or asking EMCOZ to speak for them.
What they should be doing is to organise themselves and tell their story to the Parliamentary Portfolio Committee responsible for labour so should all other professionally affected and interested bodies that operate outside EMCOZ and unions, given the fact that the TNF is just another voluntary organisation whose right to audience before the government is not secured by any legislation.
Alternatively, government can expand its tent to include all interest groups in the TNF and also give the body an all-inclusive name which will look at matters with the interests of a wider society. I believe it is unfair to have voluntary bodies such as unions and employer associations to craft labour laws that affect so many people who are not members of the voluntary bodies.
Admittedly, there are checks and balances in the form of the relevant Parliamentary Portfolio Committee, Parliamentary legal committee and Parliament itself.
However, given the last Labour Act Amendment, their capacity to provide checks and balances is limited thus we now have legislation which both employers and labour find problematic.
In conclusion, I believe there is a need to transform the TNF into a legal body that will be able to have its decisions binding on the nation, that way as a nation we are more likely to have legislation that captures the broad interests of all stakeholders thus help grow our economy.
However, until we get to that stage we are better off having the TNF in place despite the fact that very few things agreed at the TNF have seen the light when legislation is eventually crafted.
Davies Ndumiso Sibanda can be contacted on: email: [email protected] <mailto:[email protected]>
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