Labour laws fail Basotho

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The ongoing factory workers’ strike, where the workers demand a M3 500 minimum wage gazette which is believed to be withheld by the authorities, has caused a great deal of unease in the country. With many people questioning the labour laws of Lesotho and how they work, theReporter’s Kefiloe Kajane had a chat with labour relations lawyer Advocate Paul Sesenyi to find more on labour law questions that are currently on people’s mouths.

What do you make of the recent unrest in the textile industry, whose root cause is low pay; there are views that it is actually a symptom of a much deep-rooted problem.

It is very unfortunate that for a period of two years the minimum wage workers have not received any increment. The last Minimum Wage Gazette, which is currently in force, is that of the financial year 2019/2020. Meaning in the year 2020/2021 there was no increment for all the sectors and not only the textile sector.

I share the same sentiments with such views that the problems surrounding this issue are deep-rooted. They have both legal and political implications. One of the sad things about our country is that we still use old laws which no longer address the current challenges within the workplace in the modern-day society. In order for one to understand what has led to the current labour unrest, one needs to have an understanding of the wage fixing machinery, who are the key players, what roles do they play and what powers do they have.

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The unions must, however, educate their members and perhaps the office of the Labour Commissioner educate the general public on the processes of wage fixing. In the true sense, the government does not decide how much should be given as the minimum wage for the employees in the private sector, although it has representatives within the (Under the Balance Employment Act) WAB. It merely plays a neutral role in ensuring and overseeing that the negotiations process between the employer representatives and those of the employees go smoothly. For a composition of the WAB see the First Schedule and section 50 read with section 51 of the Labour Code on the duties of WAB and the responsibilities of the minister.

We have it on good authority that the 2021/2022 wages gazette has been drawn. From where you stand, is the government acting within the confines of its rights visa vis the interests of the workers to neglect, ignore and blatantly refuse to release the gazette? And in whose interests would it be acting in this manner?

Yes, it is correct that the 2021/2022 minimum wage gazette has been drawn, it is the Labour Code Wages (Notice of Intention to Submit Recommendations for Minimum Wages 2021/2022 to the Minister) Notice, 2021 No. 49 of 2021. However, this is not the final and binding gazette but one which invites the public opinion on the proposed wages for 2021/2022.

There is a grey line between the law and politics. As earlier stated, I would say yes, the Government is acting within the confines of the law but clearly that election has serious political consequences, which in the long run do not serve anyone’s interests. Nowhere does the law say once the recommendation is made to the minister, then the Minister shall be bound to adopt it nor does it say in the event that the minister uses his discretion it shall be in the positive by raising the wages. This has created a loophole which our politicians are at will to abuse whenever they see fit and it has led to the current situation which lately is becoming a norm.

In what circumstances would it be necessary for government to enlists the services of ILO? Is it necessary to do so under these circumstances?

Lesotho is a signatory to the ILO and as a member state, it has every right to seek the advice of and engage the expertise of ILO as and when it deems fit to do so. However, the current situation does not need ILO intervention.

Some believe it is more a question of political will on the part of the current government to actively exercise its obligations under the labour code and issue out the minimum wage orders, no matter the outcome. Where there are reasons for not doing so, the relevant stake holders must be informed of such reasons.

What is the government’s policy concerning native factory workers? Has it been or is it being followed, given the prevailing situation?

I am not well conversant with the government’s policy on foreign factory workers, but I believe it is based on technical skill sharing. To that end, the Labour Code in sections 165 to 167 provides the conditions under which non-citizens may be allowed to work in the country. Firstly, such a non-citizen must be in possession of a work permit issued by the Labour Commissioner.

Secondly, the Director of National Employment Service must have certified that there is no citizen of Lesotho who is qualified to perform the function in question and thirdly, the work permit must be valid for a period not exceeding twenty- four months. However, the reality on the ground is totally different. This again shows the inefficiencies of both the Labour Commissioner’s office and the trade unions in their reluctance to fight these kinds of practices.

There is a lot of Chinese employees in the factories who do not possess ay special skills necessary to be imparted to the Basotho nationals, but they continue to work in the factories in violation of these provisions. And these are the very people who perpetrate racial attacks and sexually assault these marginalized workers.

In view of the above-mentioned textile workers’ strike, do you think labour laws in Lesotho are fair to both the workers or employers, or they favour one party at the expense of the other?

I think it depends on what is deemed as fair? What is fair to you may not necessarily be fair to me and so the same analogy applies to both the workers and the employers. But the Labour Code as amended has striven to strike a balance between these competing groups. While it may seem unfair that for two years the workers have not had a raise in their salaries, that does not make their strike a lawful one. It remains unlawful as it is conducted in violation of the clear provisions of the Labour Code.

Most people believe labour laws are ineffective and blame this ineffectiveness on lack of law enforcement, too low minimum wage, poor management practices and general government ignorance. What’s your take on that?

Everyone is entitled to their opinion, but you need to have solid facts as the basis for your opinion. My view is that yes; our laws are not up to standard especially compared to our neighbors South Africa.

We rely heavily on the South African jurisprudence and that has shown us how wide the gap is between our labour jurisprudence and theirs. So to answer your question, our labour laws are effective but just how effective they are being another issue altogether. In my years as a labour practitioner I have had many employers jailed for failure to fulfill their judgment obligations and some would only pay just when they receive the summons for enforcement. Clearly there are challenges as in other countries, but the system works, and I strongly believe that there is no employee who can say the law has not provided them with redress to their situation.

For me I would argue that the government through the ministry of labour and employment should create platforms where our trade unions are capacitated in terms of education and through a review of the collective bargaining laws. As earlier stated, some issues have political implications and it is only through proper engagement of the trade unions and the government that some of these serious issues can be meaningfully addressed. Currently we do not have very strong labour movement and that has resulted in the government not feeling any pressure to amend the laws to address the pay issues, poor management and the like.

The effectiveness of our labour laws is among others dependent on the effectiveness of the office of the Labour Commissioner which is entrusted with the responsibility of overseeing and monitoring compliance with the national labour laws.

Do you agree with the notion that workers’ organizational capacity and effective participation at the floor management level, law or policy formulation level and labor law enforcement are extremely weak?

I fully agree with such notions and this is reinforced by what I have just said earlier on the weak labour movement. One of the factors contributing towards such weakness is the lack of solidarity within the union federations. There is simply no way we can have a strong and unified labour movement when the federations are almost non-existent. That places a greater burden on the already weaker unions to negotiate on floor level with employers who have financial muscle to engage experts, with the resultant strikes and lockouts as we have seen over the years.

According to a 2014 study, investors in the industry mostly come from countries with villainous or bad labour practices which local exploited workers regard it to be the bad culture of such employers/foreign investors brought down from their countries. Is this a valid concern?

Yes, it is, but we should remember that the primary purpose of every company is to make profits and so it is logical for such companies to choose countries like Lesotho with weaker laws in order to take advantage of the market. So, this is a global phenomenon and it is most likely to continue until the next millennia.

There strong sentiments that replacing Asian investors with a different group of investors from developed societies that value labour can result in improved working conditions and effective or truly working labour laws.

That is one possibility, however, it is unlikely that such a change in investors will yield any positive feedback. There are many factors at play here, those that are domestic in terms of political ideology, economy, effectiveness of the labour laws, effectiveness of the labour movement, foreign relations between the hosting state and that of the investors. It is not a one size-fits all kind of a situation.

There have in the past been suggestions that labor law services are inefficient and scanty, as characterized by too few inspectors for too many factories. What strides have been made in this regard thus far, and what do you think needs to be improved?

I do not believe that labour law services are inefficient and scanty as alleged. It ismore a question of lack of knowledge on the part of those who seek such services andthe inability of those who are entrusted with the responsibility of educating the generalpublic.

In this category we will have the department of labour, trade unions and theemployers’ organizations and to a large extend the law Society of Lesotho. These otherinstitutions should make it their responsibility of educating the public about labour issuesprimarily because the unions serve the workers, employers organizations serve theemployers and the labour department serve both groups.

So, if these groups candevelop educational programmes within their structures and use the media in itsdifferent forms then most of the people will have basic education on their rights andduties at workplace.

What do you think of the argument that overcoming constraints to labour law effectiveness requires trade unions to become integrated in factories’ management structures, educators and skills imparting agents to membership?

This is one area which needs detailed review. The current Labour Code is not very detailed on the concept of organizational rights as compared to the South African Labour Relations Act and this is coupled with the hostile attitude of our employers towards trade unions and the culture of not having union facilities within the premises of the employers.

The other issue is that of lack of educational programmes within the union structures and their constitutions. Union shops stewards must be given adequate training.

The Labour Code is often criticized as being antiquated and out of touch with today’s situation. What’s your position on that?

To a greater extent I agree and for reasons given in 1 above.

Recently, there have been calls for a bargaining council to be establish to replace the wages advisory board? How does a bargaining council work and how would it benefit workers, especially in the negotiation for better pay?

There is currently a review of the Labour Code Act as amended and one hopes that one of the issues to be addressed in that new law is the creation of bargaining councils.

Bargaining Councils are statutory bodies established with the sole purpose of regulating conditions of employment within the specific sector. For example, there could be a bargaining council on textile and manufacturing sector, security sector and construction sector as few examples.

They are given the legal authority to resolve trade disputes and enter into sector binding agreements. Their decisions are subject to review by superior courts within the jurisdiction. Since each council can have its own rules and procedures, that in itself makes bargaining easy. Once a trade union falling within the jurisdiction of the particular council meets the threshold for joining, it enjoys the benefits associated with such bargaining council even if it may individually lack the capacity to negotiate alone with the employer on company level.

The negotiation process is left to the parties without the intervention of the government. They can decide on the implementation date of the newly negotiated salaries without necessarily impacting on other sectors which are not parties to such a council. As it is, both the employers and employees’ representation within the WAB is not evenly balanced, in fact some sectors have no representation at all.

That means employees in such sectors have no option but to accept and take what has been decided upon on their behalf by those sectors having representation in the WAB. These equally applies to the employers. These are but some of the advantages of the bargaining councils.