Works Council: A joint strategic Industrial Relations Platform to drive the organizational productivity agenda and mandate.

There has been an evident gap on distinguishing the terms of reference of the Workers Committee ad that of the Works Council. Legislative provisions differentiate these two strategic Industrial Relations institutions. Most Industrial Relations interventions reveal that in most establishments the Works Council has not been effectively and efficiently utilised. This background has triggered this general advisory instalment on the Works Council and most of the guidance herein will be extracted from the provisions of the Labour Act Cap 28.01 particularly Section 25A. I hope this will help a bit in the utilisation of the Works Council.

In any establishment it must be understood that there is management and employees. At common law one of the most important duties of the employee is the duty to render a service. In rendering that service establishments have put in place management structures with an obligation to manage. So, in essence the Works Council by its nature becomes a joint platform to drive the realisation of output from the establishment’s mandate as spelt out in its broad strategy.

Legal Provisions

Section 25A (1) of the Labour Act cap 28.01, Composition, procedure and functions of works councils has it that “In every establishment in which a workers committee representing employees other than managerial employees has been elected, there shall be a Works Council.” This provision is peremptory in that it provides that where there is a workers committee representing employees other than managerial employees there SHALL be a Works Council. You cannot have a Works Council in the absence of a Workers Committee representing the section of employees as provided for in the Act.

Composition

The composition of the Works Council is as mentioned on Section 25A (2) which provides that “A works council shall be composed of an equal number of members representing the employer and the workers committee.”

Procedure

Section 23A (3) provides that “The procedure of a works council shall be as determined by the employer and the workers committee at the establishment concerned.” This provision is very important in that it gives the need for a governance framework to be established for the Works Council. In the absence of a governance mechanism the business of the Works Council becomes contaminated. The question that therefore arises is do our Works Councils have a constitution? It is apposite that a Works Council have a constitution that provides for among other issues-: Aims and Objectives of the Council, its scope and authority, composition, membership, office bearer’s duties, filling of vacancies, dispute resolution, conduct of meetings etc.

Functions

Labour Act Section 25A (4) “Without prejudice to the provisions of any collective bargaining agreement that may be applicable to the establishment concerned, the functions of a works council shall be:

a) to focus the best interests of the establishment and employees on the best possible use of its human, capital, equipment and other resources, so that maximum productivity and optimum employment standards may be maintained; and

b) to foster, encourage and maintain good relations between the employer and employees at all levels, and to understand and seek solutions to their common problems; and

c) to promote the general and common interest, including the health, safety and welfare of both the establishment and its workers; and

d) in general, to promote and maintain the effective participation of employees in the establishment, and to secure the mutual cooperation and trust of employees, the employer and any registered trade union representing employees in the establishment, in the interests of industrial harmony.

I strongly urge corporates to have a checklist for themselves against the functions there above. In most cases the Works Council has been turned into a grievance handling body. This is fatal and compromises the driving of the business mandate by this institution. The Works Council must understand the business and align itself to the requirements of the business and move away from the “THEM” and “US” mantra on the part of management and employees.

Areas the employer must consult the Works Council

It is imperative to point out the provisions of Section 2A (PURPOSE OF THE ACT) of the Labour Act cap 28.01. Section 2A has it that “The purpose of this act is to advance social justice and democracy in the workplace by

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(e) The promotion of the participation by employees in decisions affecting their interests in the workplace;

This provision becomes a guideline for the provisions spelt out in Section 25A (5). Section 25A (5) provides that “Without prejudice to the provisions of any collective bargaining agreement that may be applicable to the establishment concerned, a Works Council shall be entitled to be consulted by the employer about proposals relating to any of the following matters:

a) the restructuring of the workplace caused by the introduction of new technology and work methods;

b) product development plans, job grading and training and education schemes affecting employees;

c) partial or total plant closures and mergers and transfers of ownership;

d) the implementation of an employment code of conduct;

e) the criteria for merit increase or payment of discretionary bonuses;

f) the retrenchment of employees, whether voluntary or compulsory

As can be seen some of the areas here above have separate sections in the Labour Act where the Works Council role is mentioned. A reading on the procedure of Retrenchment on Section 12C of the Labour Act will reveal that the Works Council has a role.

One of the sticking issues in most establishments has been the communication of Works Council business or deliberations. There is need for a distinction between a proposal, resolution, recommendation and/or agreement. The tendency has been proposals are communicated as agreements! Section 25A (6) is instructive in this regard. It provides that “Before any employer may implement a proposal relating to any matter referred to subsection (5), the employer shall-

a) Afford the members of the works council representing the workers committee a reasonable opportunity to make representations and advance alternative proposals.

b) Consider and respond to the representations and alternative proposals, if any, made under paragraph (a) and if the employer does not agree with them, state reasons for disagreeing.

c) Generally, attempt to reach consensus with the members of the works council representing the workers committee on any matter referred to in subsection (5).

It is abundantly clear that the final decision usually rests with the employer. However, there might be communication prior to the Works Council deliberations on the mandate and limits authorising the Works Council to reach an agreement. As said earlier this must be governed by a governance mechanism that regulates the operations of the Council.

In conclusion it must be noted that proceedings of the Works Council are strictly private and confidential. It must be clear as at what point will official communication be done and by who. Representatives must not communicate issues that endanger the industrial relations climate at the establishment concerned and endanger the organisation’s business.

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