Last week, a newspaper publication boldly captioned a headline to the effect that National Labour Commission (NLC) workers were to go on strike over single spine salary issues.
This triggered a wave of panic in high places. I can state with authority that the newspaper headline could not have been true.
But assuming it was true, what would happen if workers of the National Labour Commission actually laid down their tools? This scenario, I believe, has never been envisaged by our policymakers. We are confronted with a truism and possibility. What are we going to do about it?
This column for the past three years has continuously advocated for a productive workforce, workplace and nation. Today�s article may sound more nationalistic than the traditional human resources, labour and workplace focus. But still, labour and its management is an important national issue.
Democracy is expensive. But the process of democratisation is more expensive. The time, effort and money that would normally go into ensuring that a democratic state is safe, effective and competitive within the regional and global community cannot be quantified.
By democratic state, I mean a state or country where the rule of law is supreme and state leadership (Government) is voluntarily elected by citizens through the ballot-box. For a column that is known to feature topical issues on human resources, workplace and employee effectiveness as well as labour, it is strange that the opening paragraph makes the column begin to look like a nationalist or political column.
But permit me to be a bit nationalistic today because what makes a country competitive in today�s global economy is its people � its human resources. In many state affairs across the world, Labour and its management is securitised -- or what in layman�s terms would be called a �security� issue.
This is because labour unrests have been known to -- and have the potential to -- destabilise a state or country. When work grinds to a halt because all workers in unison decide to stay away from work, the state grinds to a halt. With transport systems shut down, Sea and Airports abandoned, banks closed, shops not opened and government and other agencies not open for business, a country is bound to grind to a halt.
The situation is even gloomier when the regulator or agency with the responsibility to oversee the labour or industrial relations industry suspends its services. That will be the day! Imagine that in the midst of all the chaos regarding the single spine policy implementation, the National Labour Commission was closed to business: what would be the consequences? I believe that this was not envisaged by our policymakers when they passed the laws that established the National Labour Commission. Let�s take a closer look at the NLC and its role under the Labour Act, 2003 (Act 651).
The National Labour Commission (NLC)
The National Labour Commission is perhaps one of the most powerful and important state Commissions for national development. This is because labour and its management has always been the major driving force for development of an organisation or a country.
In his book �From Third Generation to First Generation�, Lee Quan Yew of Singapore stated that one of the major reasons for the achievements of Singapore was the rallying and management of the people�s talents, as well as their willingness to work hard. This, he said, contributed to their successes.
The role or functions of the NLC are outlined in section 138 of the Labour Act. Among others, the NLC has the role:
- To facilitate the settlement of industrial disputes
- To settle industrial disputes
- To investigate labour-related complaints, in particular unfair labour practices, and take such steps as it considers necessary to prevent labour disputes
- To maintain a database of qualified persons to serve as mediators and arbitrators
- To promote effective labour cooperation between labour and management, and
- To perform any other function conferred on it under the Labour Law or any other enactment.
Since August 2005, the National Labour Commission has handled all sorts of Labour disputes brought before it. The Commission has and continues to have its own public sector challenges in resourcing, staffing and procedures. But it has blazed the trail and continues to be a Commission of Hope to not only employees but employers also.
Many people have belittled the relevance of the NLC. The NLC, in the exercise of its adjudicating and disputes resolution functions, has the powers of the High Court in aspects of its proceedings: such as enforcing the attendance of witnesses and the examination of such witnesses under oath, affirmation or otherwise. The Commission also has powers to compel the production of documents and request to examine witnesses abroad.
The Commission, in respect to its proceedings, enjoys the same privileges and immunities as those in the High Court.
Powers of the NLC also include those to receive complaints on industrial disagreements and allegations of infringement of any requirements of the Labour Laws and Regulations. The Commission can require and actually direct workers or workers� representatives, or employers or their representatives, to rectify any defaults or irregularities.
An appeal against the orders of the Commission in the exercising of their Powers under the Labour Act, 2003 (Act 651) lies with the Civil Courts of Appeal for the appropriate redress. Conversely, contraventions of the orders of the NLC may lead to the enforcement of its orders before the High Court (Labour Division).
The National Labour Commission is not a Court. It is a labour adjudication body empowered to facilitate the settlement of industrial disputes in the Country. In the first instance, all petitions, complaints or requests to the Commission are made through the Commission�s Secretariat headed by the Executive Secretary.
Per the NLC Regulations, the Executive Secretary invites a response from the party against whom the complaint has been made. A response is expected to be forwarded to the Commission within 14 days after the receipt of copies of the complaint.
Where the response is not received after the expiration of the 14 days, a reminder is sent to the party for a further 7 days as final notice. If the party still fails to respond, the Commission shall go ahead to determine the case. And the Commission�s ruling shall be final and binding on the party.
However, if the other party responds to the Complaint, the Commission then goes ahead to invite both parties for an attempted resolution of the matter through meditation. If this fails, the Commission would normally hold an official summary hearing of the matter and determine the case on its merit. Parties before the NLC may also request or may be requested to submit to Mediation or Arbitration services as facilitated by the Commission under the Labour Law.
Where parties wish to settle their disputes by Mediation or Arbitration, they are assisted to select a Mediator or Arbitrator who assists them to resolve their dispute within 14 days.
In the event that the parties fail, or are unable to select a Mediator or Arbitrator, the Commission selects and appoints one for them. Most often, where Mediation is unsuccessful, the parties are required to settle their dispute by Voluntary Arbitration or compulsory Arbitration in the case of Essential Services or Labour Crisis situations.
Database of Mediators and Arbitrators...
The Commission has the function or role of keeping a data-base of qualified persons to serve as Mediators and Arbitrators. The list of Mediators and Arbitrators can be accessed at the website of the National Labour Commission. Who are these Mediators and Arbitrators? First of all, Senyo M. Adjabeng is one of them � a HR/Labour Relations Practitioner, Alternative Disputes Resolution Consultant, a Trainer, Writer and Columnist.
Many of the Mediators and Arbitrators are professionals who are skilled and experienced in the field of Disputes Resolution, Workplace Regulations, Human Resources Best Practices and Facilitation Processes.
A Mediator or Arbitrator is an Alternative Disputes Resolution (ADR) Practitioner (Neutral Third Party) who is a qualified disputes resolution practitioner, invited, selected or appointed by parties in dispute to assist in the amicable resolution of their differences. The services of a Mediator or Arbitrator may be requested directly by the parties.
The specific role of Mediators and Arbitrators under the NLC is to assist disputants, through the Commission, to resolve disputes between employers and their workers. Mediators and Arbitrators are also expected to assist in educating the general public about the role and functions of the National Labour Commission, and on the principles of Alternative Disputes Resolution (ADR) as well as the benefits of resolving labour disputes through Mediation, Arbitration and other ADR mechanisms such as Negotiation and Facilitation.
The Unlikely Event of an NLC Strike Action
So what happens when workers of NLC decide to lay down their tools legally? I foresee three scenarios. Firstly, Management of the NLC may engage employees to amicably resolve the matter. Secondly, when management�s effort fails, it may approach the Minister of Employment and Social Welfare to intervene on behalf of Government.
Finally, when this does not work, the NLC management may file processes in Court for an order to have the workers return to work while attempts are made to resolve the grievances.
Now, it must be understood that all these scenarios are my personal opinion and speculations about how things could play out in the unlikely event of an NLC strike action.
At this point, I can only speculate because I am not aware of any Law that outlines a procedure for resolution of labour disputes between NLC and its workers, or prevents the workers from embarking on a legal strike. Unfortunately, the Labour Regulations of 2007 (LI 1833) failed to include the National Labour Commission as an essential service provider. This, I believe, is a costly oversight which must necessarily be revisited.
So, a national labour crisis is a possibility. It is the duty of industry practitioners and writers to bring these possibilities to the attention of the necessary authorities. I am certain that the National Labour Commission has internal grievance procedures for resolving their own internal disputes as envisaged.
But when these fail, we need to have clear regulations at Law that steer us away from the original chaotic status quo that existed before the passage of the Labour Act 2003 (Act 651) and its regulations, and the establishment of the National Labour Commission.
The above is a primary reason why this column believes strongly that the National Labour Commission must be classified as an essential service provider in order to bring it under the expedited disputes resolution mechanisms for essential services under Act 651. Yet again, there will be clear difficulties -- for example, regarding who will constitute the Arbitration Panel to conduct the Compulsory Arbitration since the Members of the Commission would be parties to that particular dispute.
Questions and technicalities arise in the attempted analysis of an unlikely strike action by workers of the National Labour Commission, and this should caution us to look at the possibility a bit more closely and craft workable solutions before we get there.
In my very curious mind, we must do something. The database of Mediators and Arbitrators therefore comes into sharp focus.
If such a database can be fully strengthened and the capacities of the Mediators and Arbitrators continuously built, the database can become a worthy resource and a targetted source of an arbiter in the unlikely event of a National Labour Commission Strike Action.
The thoughts and speculations expressed in this article are my very own and are subject to any corrections and inputs. Let�s share ideas on this issue towards a workable solution that helps us avoid such a calamity should it ever occur God Forbid.
Source: Senyo M. Adjabeng
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