Update on two Visa issues

In a recent article in HR Future, I highlighted the Constitutional Court Judgement in the Ahmed case which was a ground breaking decision of the Constitutional Court and restored the status quo ante which permits the holder of an Asylum Seeker Temporary Visa or Formal Recognition of Refugee Status to change their Status to a mainstream Visa under The Immigration Act.

Whilst this is great news for qualifying applicants, the reality on the ground is that at the time of writing this article, applications are not yet being taken in almost three months later, on the basis that Visa Facilitation Services which is the receiving and dispatch agent for the Department of Home Affairs will not take in the lodgements until a Departmental Directive is issued by the Director General of Home Affairs in this regard.

Such Departmental Directive, despite enquiries regarding this, has not yet been issued and the Department of Home Affairs is silent on this point.

In effect, this stymies potential applicants at this time until clarity is obtained through a Departmental Directive.

The delay in putting together a Departmental Directive is not only unfair to Asylum Seekers and Refugee Permit holders but is potentially also in contempt of the Constitutional Court Order.

Through the Law Society of South Africa’s Immigration and Refugee Law Committee further enquiries are being made, and as soon as there is any news then HR Future will carry the detail thereof.

Any queries in this regard should be directed to enquiries@immigration.org.za with the words “Asylum Seeker/Refugee Change of Status”.

Minister of Home Affairs Malusi Gigaba “resigns” as the Minster of Home Affairs On 14 November, after much speculation regarding the Minister’s situation, he “after discussion” with President Cyril Ramaphosa, the next day resigned as Minister of Home Affairs. The question arises as to whether he jumped into the chasm or whether he was pushed?

Blade Nzimande was temporarily slotted in as acting Minister of Home Affairs but the situation has now been clarified with the appointment of Siybonga Cwele in a shift from the Communications Portfolio to take up the position of Minister of Home Affairs. Hopefully this will lead to some clarity in the office as the terms of office of the previous Minister of Home Affairs was lacklustre, to say the least, but was also fraught with many controversies, the least of which related to indulgences and exceptions made for the Gupta family in terms of their citizenship. The then Minister was dogged by various other controversies during his separate 10 years as Minister of Home Affairs, one of the most damaging being to the tourism industry with the Unabridged Birth Certificates debacle.

The situation is being carefully watched and a further report will be published in HR Future as and when events happen.

Zimbabwean Exemption Permits “ZEP” Visas I have written previously in HR Future on the ZEP scenario.

By way of a recap, towards the end of 2017, the Minister of Home Affairs at the time, decided to extend the previous Zimbabwe Dispensation Permits to qualifying holders of that Visa and to enable the holder of a ZDP or ZSP Visa to apply for the ZEP Visa for a further period of four years.

Whether or not the anticipated influx of application can be coupled to a number that is accurate is a debatable point. However, media reports do indicate that more than a quarter of a million applications were lodged.

It is important to note that the deadline for applying for the ZEP Visa was at the end of December 2017 but that this was, because of the influx of applications, extended to the end of February 2018.

The reality is that more than a year has gone by and there are still thousands of applications that have not yet been finalised.

This has led to much uncertainty among applicants, a lot of frustration and, in many instances, banks have either closed or threatened to close the bank accounts of those individuals because they perceive the applicants to be on expired Visas.

A meeting was held by the Law Society of South Africa with SABRIC and the SA Banking Association at which it was recommended, and accepted, that if an applicant for such Visa could provide proof that they were on a valid Visa, have a valid Passport and timeously lodged their application for an extension participation in the ZEP Waiver scheme then their Bank Account would not be frozen.

In addition, many employers are confused by what has transpired and in fact this may have resulted in job losses to the previous dispensation holders who timeously applied for the ZEP Visas but have not had any finalisation of their applications.

Any enquiries in this regard can be forward to enquiries@immigration.org.za bearing the words “ZEP Extensions” in the subject line.

Julian Pokroy is one of South Africa’s leading immigration specialist attorneys, immigration.org.za, and currently heads the Law Society of South Africa’s Immigration and Refugee Law Specialist Committee and the Immigration, Nationality and Refugee Law Committee of the Law Society of the Northern Provinces. He is a member of the South African Law Reform Commission Committee.

This article appeared in the January 2019 issue of HR Future magazine.

Collective agreements regulating dismissals

The Labour Court, in Association of Mineworkers and Construction Union and Others v Bafokeng Rasimone Management Services (Pty) Ltd (2017) 28 SALLR 10 (LC), considered the following important issues:

(a) According to the Labour Court in casu, where an employer grants organisational rights to a majority trade union(s) and concludes a collective agreement with such union(s) but does not grant organisational rights to a minority union, is it obliged, in terms of s189(1)(a) to s189(1)(d) of the LRA to consult with the minority union or, alternatively, individually with the members of such union or, alternatively, with any other non-union members?

(b) In the above scenario, if the employer has only consulted with the majority trade union regarding the pending dismissal for operational requirements and, subsequently, concluded a so-called retrenchment agreement which is a collective agreement in terms of s23 of the LRA and, furthermore, such collective agreement has been extended in terms of s23(1)(d) of the LRA, dealing with, inter alia, the issue that same constitutes a full and final settlement agreement in terms of which the majority trade union waives its right to challenge the dismissals at any forum, to what extent is such collective agreement binding on the minority union, its members as well as other non-union members?

Overview

The applicants approached the Labour Court for an order inter alia declaring s189(1)(a) to s189(1)(c) of the Labour Relations Act 66 of 1995 (‘the LRA’) unconstitutional insofar as they have the effect that, where an employer consults with a trade union with which the employer is required to consult in terms of a collective agreement, that employer has no obligation to consult with any other trade union whose members are likely to be affected by the proposed dismissals.

Construed in this manner, it violates rights set out in the Constitution and those are the rule of law (s1), the right to equality (s9(1)), dignity (s10), freedom of association (s18), fair labour practice (s23), access to information (s32) and access to courts (s34).

The applicants sought that s189(a)-(c) be excised from the LRA, alternatively, be reinterpreted in a manner consistent with the aforesaid Constitutional rights and that it be declared that, where an employer consults with a trade union, that employer is required to consult with in terms of a collective agreement, that employer must also consult with any other trade union whose members are likely to be affected by the proposed dismissals.

In respect of s23(1)(d), the applicants sought an order declaring the said section unconstitutional insofar as it permits a collective agreement regulating the dismissal of employees based on operational requirements, concluded with a majority trade union, to bind employees who are not members of the registered trade union.

Construed in this manner, it violates the following rights set out in the Constitution: rule of law (s1), the right to equality (s9(1)), dignity (s10), freedom of association (s18), fair labour practice (s23), just administrative action (s33) and access to courts (s34).

The applicants sought that s23(1)(d) be reinterpreted in a manner that is consistent with the aforesaid constitutional rights and that it be declared that a collective agreement regulating the dismissal of employees based on operational requirements, concluded with a majority trade union, could not be extended to bind employees who are not members of the trade union party to the agreement, alternatively, that an exclusion be read into s23(1)(d) precluding its application to collective agreements regulating the dismissal of employees based on operational requirements.

The applicants also sought the review and setting aside of the retrenchment agreement concluded between the first, second and third respondents, and/or the extension thereof in terms of s23(1)(d) of the LRA.

Lastly, the applicants sought the dismissals of the second and further applicants to be declared of no force and affect and that they be reinstated retrospectively. If the dismissals were not declared to be of no force and effect, the applicants sought to challenge the procedural fairness of their dismissal in terms of the provisions of s189A(13). The latter part of the relief sought could only be granted if the constitutional challenges were successful. Should the constitutional challenge not succeed, the application would have to fail in its entirety. The application was opposed.

Pertinent facts of the case

The first respondent (‘the mine’) operates a platinum mine in the Rustenburg area and the second to further applicants (‘the employees’) were previously employed by the mine in various positions.

In 2014, the first applicant (‘AMCU’) commenced with the recruitment of members at the mine and, as at 31 July 2015, the employees were members of AMCU. At that point, a verification process was ongoing and, in August 2015, it was confirmed that AMCU had 382 members.

The mine did not extend organisational rights to AMCU and did not recognise it for bargaining purposes. Organisational rights were extended to the second respondent (‘NUM’), who was also recognised for bargaining purposes.

UASA was traditionally recognised for bargaining purposes.

The third respondent (‘UASA’) was historically recognised for bargaining purposes.

NUM was the majority union and recognised for bargaining purposes

It is undisputed that NUM had, as its members, the majority of employees at the mine.

On 30 September 2015, when the employees arrived for work and attempted to clock in with their access cards at the turnstile gate, they were denied access and were advised to wait outside the gate for the human resources personnel to address them.

They were subsequently transported to the mine’s protection services department, where they were instructed to form queues and were issued with notices of their retrenchment dated 18 September 2015. The notice informed the employees of their retrenchment with effect from 31 October 2015.

Neither AMCU nor the employees were issued with s189(3) notices, nor were they consulted or invited to consult during the course of the retrenchment process and prior to the issuing of the aforesaid retrenchment notices.

A. REetrenchment agreement

It is common cause that, on 18 September 2015, the mine, NUM and UASA, on behalf of their members, concluded a retrenchment agreement (‘the retrenchment agreement’), and they agreed that NUM and UASA represented the majority of employees in the workplace, that the agreement was a collective agreement as contemplated in s23 of the LRA, that the mine had the need to dismiss for operational reasons and that there was compliance with the provisions of s189 and s189A of the LRA prior to the dismissal of the retrenched employees.

The terms of the agreement were in full and final settlement of all obligations and any claims and it was extended in terms of the provisions of s23(1)(d) to all retrenched employees who were listed in an annexure to the agreement.

On 15 October 2015, AMCU referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (‘CCMA’), challenging the substantive and procedural fairness of the employees’ dismissal. The matter was set down for conciliation on 13 November 2015 and, at the commencement of proceedings, the mine raised a jurisdictional point regarding the existence of the collective agreement which was binding on the applicants.

On 19 November 2015, the CCMA issued a jurisdictional ruling in which it was held that the CCMA lacked the requisite jurisdiction to conciliate the matter and it was dismissed. On 20 November 2015, AMCU filed an application, in terms of s189A(13) of the LRA, challenging the procedural fairness of the employees’ dismissal. The application was set down for hearing on 3 December 2015.

B. Consultation agreement

The mine opposed the s189A(13) application and contended that the employees’ dismissals were not unfair as the mine had concluded a collective agreement with NUM and UASA, as contemplated in s189(1)(a) of the LRA, in terms of which it was agreed that the mine, NUM and UASA would consult in respect of dismissals for operational requirements (‘the consultation agreement’).

The agreement, referred to as the ‘consultation agreement’, was concluded on 30 March 2015 as an addendum to the recognition agreement that was concluded on 9 March 2015 between the mine, NUM and UASA.

In the consultation agreement, it was specifically agreed that they would consult on matters of mutual interest, which included dismissal for operational reasons as contemplated in s189 and s189A of the LRA.

The parties consulted in accordance with the consultation agreement, which agreement excluded any requirement of consultation with AMCU in terms of s189(1)(a) of the LRA. On 3 December 2015, the applicants withdrew the s189A(13) application and the parties agreed to an order whereby, inter alia, the applicants’ rights to challenge the constitutionality of the relevant provisions of the LRA were reserved.

Findings of the labour court

Section 189(1)(a) to section 189(1)(d) in keeping with the ILO Conventions, identifies the parties an employer should consult with as any person whom the employer is required to consult in terms of a collective agreement.

If there is no collective agreement, a workplace forum and any registered trade union, whose members are likely to be affected, should be consulted and, if there is no workplace forum, any registered trade union whose members are likely to be affected. If there is no such trade union, the employer has to consult the employees likely to be affected or their nominated representatives.

It is evident from the structure of s189(1) that there is a hierarchy where the identity of the consulting parties would, in the first instance, be determined by collective bargaining. If there is a collective agreement that requires consultation with a specified party, as per the agreement, it displaces all others with competing claims to consult.

Chamber of Mines judgment (LAC)

The Labour Appeal Court recently found that the principle, of extending collective agreements to minorities or non-member workers in the workplace, is not contrary to international law (see Association of Mineworkers and Construction Union and Others v Chamber of Mines of SA acting in its own name and on behalf of Harmony Gold Mining Co (Pty) Ltd and Others (2016) 37 ILJ 1333 (LAC) – ‘Chamber of Mines judgment’).

When evaluating the constitutionality of legislation, courts must be conscious of the vital limits on judicial authority and the Constitution’s design to leave certain matters to other branches of government (see Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC) at paragraphs [37] and [38]).

The pre-eminent constraint is the doctrine of the separation of powers and courts must be careful not to usurp the legislative powers to determine the policy content of legislation.

Although the courts are the ultimate guardians of the Constitution and have the power to intervene in order to prevent a violation thereof, courts have no power to supervise or interfere with the exercise of the functions of the executive or legislature.

The policy content of legislation is not to be disturbed as long as it falls within the bounds of the Constitution. Wallis discussed the need for judicial constraint in law making, particularly the field of labour relations, in an academic article:

‘The complex balancing exercise to achieve fairness for both employers and workers embodied in the LRA was not accidental. It was preceded not only by expert input in the original drafting process, but by hard bargaining among the social partners, to arrive at a result that can only be described as a compromise. Where the results of that compromise are clear I suggest that it is inappropriate for courts to disturb the balance by exercises in creative judicial law making…’ (see Wallis ‘The Rule of Law and Labour Relations’ (2014) 35 ILJ 894 at 861 to 862)

A. LC has jurisdiction to consider constitutionality of s189(1) and s23(1)(d) of LRA

The Labour Court is not unconstrained in evaluating the constitutionality of s23(1)(d) and s189(1) of the LRA.

The following factors are relevant:

This matter must be decided with due observation of the limits of the court’s powers and the principle of separation of powers.

1. Purpose and framework of the LRA

Further, it must be decided within the purpose and framework of the LRA.

Bader Bop judgment (CC)

In NUMSA and Others v Bader Bop and Others (2003) 24 ILJ 305 (CC), at paragraph [13], the constitutional court held that:

• the first purpose of the LRA is to give effect to constitutional rights;
• secondly, it is intended to give legislative effect to international treaty obligations arising from the ratification of International Labour Organization (ILO) conventions;
• thirdly, to provide a framework whereby both employers and employees and their organisations can participate in collective bargaining and the formulation of industrial policy; and
• fourthly, the LRA seeks to promote orderly collective bargaining with an emphasis on bargaining at sectoral level, employee participation in decisions in the workplace and the effective resolution of labour disputes.

2. s39(1) of the Constitution: consider international law

Section 39(1) of the Constitution provides that, when the Bill of Rights is interpreted, a court must consider the international law.

3. s233 of the Constitution: prefer a reasonable interpretation consistent with international law

Section 233 of the Constitution provides for the application of international law and prescribes that, when interpreting legislation, a court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.

4. s3 of the LRA: LRA must be interpreted to give effect to its primary objects, compliance with Constitution and international law obligations

Section 3 of the LRA provides that the provisions of the LRA should be interpreted to give effect to its primary objects, in compliance with the Constitution and in compliance with the public international law obligations of the Republic.

In casu, the applicants will have to show, essentially, that the legislative adoption and implementation of the principle of majoritarianism in the LRA fall outside the range of constitutionally permissible legislative options available to the legislature.

B. Challenge iro s23(1)(d) of LRA

The Labour Court dealt, firstly, with the challenge in respect of s23(1)(d) of the LRA. The applicants accepted that, on the current interpretation, the retrenchment agreement was binding on AMCU’s members. The applicants’ case, however, was that s23(1)(d) of the LRA, as currently interpreted, is unconstitutional as it violates important provisions, principles and certain constitutional rights already alluded to.

These rights are offended by the current interpretation of s23(1)(d) of the LRA in that it permits private parties to take away an employee’s individual right pertaining to the procedural and substantive fairness of a dismissal and it prevents those rights from being enforced in a court of law. The rule of law, the principle of legality and the right of access to courts are thereby infringed.

The applicants’ case was, further, that the current interpretation allows trade unions, having the majority of employees, to divest employees, to whom retrenchment agreements are extended to bind, of their rights and claims in respect of fair labour practices, just administrative action and access to courts.

The majority are allowed to impose their will on the employees to whom such collective agreement is extended, which results in unfair discrimination between employees based on their chosen trade union affiliation.

Applicants’ case

The applicants sought that the present application of s23(1)(d) of the LRA be reconsidered and reinterpreted in a manner that would not result in the aforesaid consequences. Alternatively, an exclusion should be read into s23(1)(d) precluding its application to collective agreements regulating the dismissal of employees based on operational requirements. AMCU acknowledged that s23 of the LRA recognises the fundamental right to collectively bargain and that s23(1)(d) gives effect to the principle of majoritarianism by allowing collective agreements, concluded with majority trade unions in the collective bargaining context, to be extended to apply to employees who are not members of the trade unions party to the agreement.

Respondents’ case

The opposition to the constitutionality challenge is premised on the principle of majoritarianism and the contention that any infringement of the applicants’ constitutional rights is justifiable.

Chamber of Mines judgment (supra)

The respondents rely on The Association of Mineworkers and Construction Union and Others v Chamber of Mines of SA acting in its own name and on behalf of Harmony Gold Mining Co (Pty) Ltd and Others (2016) 37 ILJ 1333 (LAC), where the Labour Appeal Court has held that s23(1)(d) is a manifestation of the principle of majoritarianism and that: ‘Section 23(1)(d) of the LRA is but one instance in the LRA where the legislature had chosen to apply the principle of majoritarianism. There is nothing unconstitutional about the principle itself. It is a useful and essential principle applied in all modern democracies, including the Republic of South Africa. It has been recognised as an essential and reasonable policy choice for the achievement of orderly collective bargaining and for democratisation of the workplace and the different sectors’.

In the Chamber of Mines judgment (supra), the challenge was that s23(1)(d), read with s65 and the definition of ‘workplace’ in s213 of the LRA, was unconstitutional for violating specific constitutional rights to the extent that the said section of the LRA granted private employers and trade unions the power to bind, by way of an extended collective agreement between them, other employees and trade unions who were not party to the agreement and effectively preventing them from, inter alia, bargaining collectively and striking concerning matter of mutual interest.

1. Chamber of Mines judgment (supra): principle of extending collective agreement to minorities or non-members is rational and reasonable

In the Chamber of Mines judgment, the Labour Appeal Court considered the application of s23(1)(d) and found that the principle of extending collective agreements to minorities or non-member workers in the workplace was not contrary to international law and such extension was rational and reasonable.

The Labour Appeal Court held further that:

‘It would be impractical if minority workers were not bound to collective agreements concluded at workplace level between the employer(s) and trade unions that represented the majority of the employees, simply because they were not parties to that collective agreement. Furthermore, to require unanimity amongst all employees, despite different trade union membership or affiliation would be unrealistic. To prohibit extension of the collective agreement to the minority employees, who were not parties to the collective agreement, so that they are not bound by it, would not only undermine the enforcement and therefore the effectiveness of the collective agreement, but also be destructive of collective bargaining per se, to peace in the workplace and to the achievement of fair labour practices. Such consequences are clearly not in conformity with the LRA and the Constitution’.

In the Labour Court’s view, the distinction AMCU sought to draw between this application and the Chamber of Mines judgment (supra), where the Labour Appeal Court held that majoritarianism was an essential and reasonable policy choice for the achievement of orderly collective bargaining, was flawed for a number of reasons.

LC: no distinction between case in casu and Chamber of Mines judgment (supra)

AMCU’s case was that majoritarianism finds application in the context of collective bargaining and not retrenchment.

Both collective processes

Firstly, it is flawed because the primary consideration is the collective nature of the process. Retrenchment is, indeed, a collective process and this is supported by the provisions of s189 of the LRA where the legislature explicitly selected a hierarchical structure for retrenchment consultations and the primary one is through a collective agreement, which can only be the result of collective bargaining.

Secondly, the fact that the Labour Appeal Court, in the Chamber of Mines judgment, dealt with the extension of a wage agreement and not a retrenchment agreement, does not detract from the principle and there is no basis to read an exclusion into s23(1)(d) precluding its

For reasons dealt with fully below, there was no merit in the applicants’ case insofar as they sought the reconsideration and reinterpretation of s23(1)(d) that would not result in trade unions having the majority of employees to divest employees, to whom retrenchment agreements were extended to bind, of certain rights. There was also no basis to grant the alternative relief by reading an exclusion into s23(1)(d) precluding its application to collective agreements regulating the dismissal of employees based on operational requirements.

The ILO supervisory bodies have recognised that pre-dismissal rights, restructuring processes and dismissals are matters for collective bargaining and it follows that the extension of any collective agreement dealing with these issues is unobjectionable on the ILO instruments relied on by the Labour Appeal Court in the Chamber of Mines judgment (supra).

2. AUSA judgment (LC)

In AUSA and Others v SAA Soc Ltd and Others (2015) 36 ILJ 3030 (LC), the Labour Court considered the question whether, as a matter of legal principle, a retrenchment agreement could validly be extended to non-party employees in terms of s23(1)(d). In considering the question, the court referred to two judgments where this question was answered in the affirmative.

The first was Tsetsana v Blyvooruitzicht Gold Mining Co Ltd (1999) 4 BLLR 404 (LC), where it was held that:

‘The applicant’s contention that he is not bound by the terms of agreements concluded by a trade union of which he is not a member, is without substance or foundation. The retrenchment agreement of August 1997 is unquestionably a collective agreement which binds, inter alia, employees who, although not members of a registered trade union which is a party to it, are employed in the workplace to which it applies and in which that trade union enjoys majority representation of the employees there employed.’

The second was Sigwali and Others v Libanon (A Division of Kloof Gold Mine Ltd) (2000) 21 ILJ 641 (LC), where it was held:

‘In casu, it is common cause that NUM represented the majority of the employees in respondent’s business. It is not disputed that the agreement identifies the employees affected by it with sufficient particularity. Even if it was disputed, it is my view that the agreement clearly identifies the employees as set out in s23(1)(d)(i). Consequently in my view the agreement concluded between the NUM and respondent binds not only those employees who are members of the NUM but also non-members as contemplated above.’

In the AUSA judgment, the court held that, while it may appear objectionable that s23(1)(d) can be used in this way, so as to deprive individuals (and thus their unions) of the right to challenge the fairness of a retrenchment process, the section permits all collective agreements to be extended in terms thereof and is not limited in its scope to only agreements that do not involve a deprivation of rights. Indeed, most collective agreements extended in terms of s23(1)(d) involve depriving non-party employees of some or other right.

The fact is that what AMCU challenges as unconstitutional is indeed permissible and is underscored by s189(1)(a) of the LRA, which has been interpreted as meaning that an employer and a majority union can enter into a collective agreement upfront to the effect that, in the case of a retrenchment exercise, the employer will only consult with the majority union. Where it then does so, any retrenchment agreement concluded with the majority union will then bind non-union and minority union members.

3. Aunde judgment (LAC)

The Labour Appeal Court put this as follows, in Aunde SA (Pty) Ltd and Others v National Union of Metalworkers of SA (2011) 32 ILJ 2617 (LAC):

‘Where an employer consults in terms of agreed procedures with the recognised representative trade union in terms of a collective agreement which requires the employer to consult with it over retrenchment, such an employer has no obligation in law to consult with any other union or any individual employee over the retrenchment. If such a consultation exercise has culminated in a collective agreement that complies with the requirements of a valid collective agreement, all employees including those who are not members of the representative trade union that consulted with the employer are bound by the terms of such collective agreement irrespective of whether they were party to the consultation process or not.’

The conclusion of a retrenchment agreement, further to a process of consultation and its extension in terms of s23(1)(d), has the same effect and is unobjectionable, according to the Labour Court.

Section 189 and s189A constitute a legislative process designed to get the parties to attempt to reach consensus, which will, if successful, typically result in the conclusion of a collective agreement. Such a collective agreement, like all collective agreements, is then capable of being extended in terms of s23(1)(d) (if the requirements are met).

As a matter of legal principle, a retrenchment agreement could be extended to non-party employees in terms of s23(1)(d) and, as already alluded to, the Labour Court could see no reason to read an exclusion into s23(1)(d) precluding its application to collective agreements regulating the dismissal of employees based on operational requirements.

4. Putco judgment (CC)

After arguments in this matter were presented, the applicants filed further submissions wherein they brought to the Labour Court’s attention the constitutional court judgment of Transport and Allied Workers Union of South Africa v PUTCO Limited (2016) 37 ILJ 1091 (CC) wherein the constitutional court made pertinent findings regarding the application and reach of the principle of majoritarianism.

The Labour Court in casu found the principles established in such judgment to be limited to the facts of that particular case and not applicable in casu.

C. Challenge iro s189(1)(a) to s189(1)(d) of the LRA

The applicants’ case was that every employee had the right not to be unfairly dismissed and, to achieve that and to give effect to the Constitutional right to fair labour practices, an inclusive consultation process was required wherein employees, whose employment security, livelihoods and dignity were at risk, could participate, where appropriate, through a representative body, such as a trade union, of which they were members.

Consistent with the plain language of s189 and the hierarchy it established, it has been interpreted and applied to oblige the employer to consult in terms of only one of the subsections.

If an employer consults a party in terms of a collective agreement, there is no obligation to consult another party in terms of the remaining subsections. The elevation to the status of ‘consulting party’, as contemplated in s189(1)(a) of the LRA, is, strictly speaking, not dependent on the principle of majoritarianism, but rather on such a party acquiring the status of ‘consulting party’ by way of a collective agreement.

In the Labour Court’s view, there was no basis to excise s189(1)(a) to s189(1)(c) from the LRA, alternatively, to reinterpret them and to declare that where an employer consulted with a trade union that employer was required to consult within terms of a collective agreement, and that that employer had also to consult with any other trade union whose members were likely to be affected by the proposed dismissals. To do so would not only disregard judgments the Labour Court is bound to follow, but would also ignore and probably undermine conscious policy choices made by the legislature when formulating the LRA.

D. Infringements of constitutional rights

The applicants alleged that a number of their constitutional rights had been violated by the current interpretation and application of s23(1)(d) and s189(1)(a) to s189(1)(c) of the LRA. The respondents denied that any constitutional rights were violated, but submitted that, insofar as there might be an infringement or limitation of the employees’ constitutional rights, the limitation was reasonable and justifiable (s36 of the Constitution). Rights are not absolute. They may be infringed when there is a compellingly good reason to do so and where the infringement is not disproportionate to the benefits it obtains (see Currie and De Waal The Bill of Rights Handbook (6th Ed)).

D(i): The rule of law

The applicants’ case was that the principle of legality and the rule of law were undermined where parties were permitted to take away an employee’s individual right to be heard before dismissal and, when this happens, the employee had no recourse to assert that right in a court of law.

The arrangement of the hierarchical structure provided for in s189(1) is not irrational and it gives precedence to a union with whom the employer has a duty to consult with in terms of a collective agreement.

Nothing in the LRA precludes minority unions from concluding collective agreements as contemplated in s189(1)(a) of the LRA and, once such an agreement is concluded, such a party acquires the right to be consulted. It is fair that some form of selection through recognition criteria, whereby some are entitled to bargain or consult and others not, is provided for in s23(1)(d) and s189(1)(a) to s189(1)(c) of the LRA.

The Labour Court could not find that the current interpretation and application of s23(1)(d) and s189(1)(a) to s189(1)(c) of the LRA violated or undermined the rule of law. There are important policy considerations that played a vital role in the crafting of the said sections and those cannot be ignored and do not amount to a violation of the rule of law.

D(ii): the right to fair labour practices

The applicants’ case was that every employee has the right to fair labour practices as provided for in s23 of the Constitution and they are deprived of this right because s23(1)(d) and s189(1)(a) to s189(1)(c) of the LRA operate to deprive minority union members of the right to pre-dismissal consultations and the right to challenge the fairness of their dismissal.

The constitutional court has endorsed the right not to be unfairly dismissed as essential to the right to fair labour practices, but in casu the Labour Court held that, for the following reasons, the minority union indeed had not been deprived of a right to pre-dismissal consultations.

Firstly, minority union members are, in effect, represented during the consultation process by the majority union and the consequence of this is that they were indeed part of the process from the outset. NUM, for purpose of retrenchment consultations, represented not only its own members, but all employees affected by the retrenchment process.

In Sikhosana and Others v Sasol Synthetic Fuels (2000) 21 ILJ 649 (LC), the Labour Court described the position under s189(1)(a) as being that the right to consultation secured by a majority union entitles it to speak on behalf of the company’s employees, whatever their union affiliation, in matters of retrenchment.

Secondly, when it comes to retrenchment, employees do not have an individual right to fairness, but instead a collective right to consultation. The legislature’s desire is that consultation should be collective rather than individual and in casu AMCU members were afforded that right via the majority unions.

Thirdly, a collective agreement in a retrenchment context is like all collective agreements, the end product of collective bargaining, and, in circumstances where NUM and UASA had majority representation, AMCU members could not have asserted a right to a hearing before the conclusion of a collective agreement.

Respondents submitted that AMCU’s contention, that the employees were deprived of the right to challenge the fairness of their dismissal, was also misconceived. This was so because the legislative assumption underlying a s23(1)(d) extension is that a minority union would not be able to secure a better deal than the majority with the result that no unfairness arises and minority union members are indeed afforded the benefit of the collective bargaining power of the majority.

The effect of an extension of the collective agreement is that the minority union members in fact become part of the agreement. If the minority union were admitted to the consultation process, it would have no power to influence the process and it would be unfair for the employer to agree to something different with the minority.

Respondents also submitted that the principal flaw in AMCU’s contention. that they were deprived of the right to challenge the fairness of the dismissal, was its failure to recognise that a retrenchment agreement is the end product of collective bargaining. Once the consultation process mutates into a process of collective bargaining and a collective agreement is concluded, there can be no question of anyone bound by the agreement being able to contest the fairness of the dismissal as a dispute of right. In the Labour Court’s view, there was merit in this argument.

To allow a challenge to the fairness of the dismissal in circumstances where there was a valid and binding collective agreement, would undermine the processes sanctioned by the LRA and would undermine the principle that, provided that the agreement was lawful, the courts should not intervene to scrutinise the bargaining conduct of the parties or the terms of the agreement.

In casu, AMCU did not have the collective bargaining power to secure a s189(1)(a) collective agreement and its members were thus bound by the agreements concluded by the majority union.

The Labour Court could not find that the impugned sections of the LRA violated the constitutional right to fair labour practices. This was so because the impugned sections operate in a manner that is consistent with a key policy choice that underlies the LRA, namely, majoritarianism, and there can be no doubt that s23(1)(d) and s189(1)(a) to s189(1)(c) of the LRA are all about majoritarianism, which is aimed at achieving the promotion of orderly collective bargaining, the effective resolution of labour disputes and labour peace.

D(iii): The right to access to courts: s34 of the Constitution

In terms of s34 of the Constitution, everyone has the right to have any dispute, that can be resolved by the application of law, decided by a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

AMCU’s complaint was that, inherent to the right not to be unfairly dismissed, was the entitlement to challenge the fairness of the dismissal.

On the current interpretation and application of s23(1)(d) and s189(1)(a) to s189(1)(c), the employees could not challenge the fairness of their dismissals.

Respondent submitted that the right of access to courts, or other labour law dispute-resolution forums, is limited to disputes of right and does not extend to disputes of interest as disputes of interest are not disputes that can be resolved by the application of law, as required in s34 of the Constitution. The Labour Court agreed with the above submission.

D(iv): Freedom of association and equality

AMCU’s case was that, based on the employees’ election to join a minority union, they were victims of unfair discrimination and they were treated differently to members of the majority trade unions. The first respondent submitted that the employees had elected to join a minority union and they had to be held to the consequences of their election. It is irrational for an employee, who joins a minority union, to claim the same rights and benefits that would accord to an employee who joins a majority union and, in such an instance, there could be no question of discrimination.

In casu, no case had been made out that the employees’ freedom of association had been infringed or was limited in any way as AMCU was allowed to exist, to organise members, to represent members in relation to individual grievances and to challenge majority unions.

The Labour Court could not find that the employees were discriminated against based on their election to join AMCU, a minority union. The employees simply experienced the consequences of belonging to a minority trade union where the principle of majoritarianism applies and that per se does not amount to discrimination.

D(v): Access to information

The applicants’ case was that their right to access information during a retrenchment process was violated as they had been completely excluded from the process.

The mine submitted that the disclosure of information during a s189 process is governed by s16 and 189(4)(a) of the LRA. These sections oblige an employer to disclose relevant information to a consulting party during the retrenchment process. These sections endorse the principle of majoritarianism in that the access to information is restricted to parties who are, in terms of s189(1) of the LRA, entitled to participate in the retrenchment process.

D(vi): Right to dignity

The first respondent referred to the Chamber of Mines judgment (supra) where the Labour Appeal Court has held that:

‘[130] The Constitutional Court held in Nokotyana that ‘the right to dignity alone is rarely dispositive of a constitutional matter’ and that where a court can identify the infringement of a more specific right, that right should be invoked rather than the general right (i e to dignity).

[131] That, in my view, is the short answer to the argument. The actual right impacted was the right to engage in collective bargaining and more specifically the right to strike. Enquiry into whether the right to dignity was infringed in the circumstances of this matter will not lead to a different conclusion’.

There was no reason for the Labour Court not to follow the same reasoning. Section 23(1)(d) and s189(1)(a) to s189(1)(c) of the LRA, as they are currently interpreted and applied, do not infringe the employees’ constitutional right to dignity.

D(vii): Constitutional infringements not justified ito s36 of the Constitution

AMCU’s case was that the constitutional infringements, that flow from the current interpretation of s23(1)(d) and s189(1)(a) to s189(1)(c) of the LRA, could not be justified in terms of s36 of the Constitution. The impugned sections are, on their current interpretation and application, reasonably capable of a meaning that places them within constitutional bounds and as such, they should be preserved.

Insofar as the Labour Court might be wrong and there was indeed a violation or infringement of the constitutional rights as alleged by the applicants, the question that then arose was whether such limitation was justifiable.

The minister submitted that s23(1)(d) and s189(1)(a) to s189(1)(c) of the LRA should be read with s23 of the Constitution. Section 23(5) of the Constitution provides that every trade union, employers’ organisation and employer has the right to engage in collective bargaining and that legislation may be enacted to regulate that and, to the extent that the legislation may limit a right in the Bill of Rights, the limitation must comply with s36(1) of the Constitution.

The legislation contemplated in s23(5) of the Constitution is the LRA, which had been enacted to regulate collective bargaining, and the limitations enacted in the consultative framework of s23(1)(d) and s189(1)(a) to s189(1)(c) of the LRA, meet the requirements of s36(1) of the Constitution in that the limitations are reasonable and justifiable according to the Labour Court.

The process contended by the applicants would not result in the effective resolution of labour disputes or orderly collective bargaining as it would mean that every individual who preferred not to join a trade union would need to be consulted in addition to all the minority trade unions.

The rights are in any event only limited to the extent that non-unionised employees or members of minority trade unions are unable to represent themselves or be represented by a minority trade union not party to a collective agreement. There is nothing precluding a minority trade union to be party to such collective agreement and, in such a case, no rights are limited. The Labour Court could see no reason to deviate.

Order of the LC

In view of the Labour Court’s findings, it was not necessary to deal with the remainder of the relief sought by the applicants. In the premises, the application was dismissed and there was no order as to costs.

Dr Brian van Zyl is a Director of labour law firm Van Zyl Rudd and Associates, www.vanzylrudd.co.za.

This article appeared in the January 2019 issue of HR Future magazine.

Create an engaged workforce through collaboration and gamification

When researching the benefits that an engaged workforce can bring to an organisation, more often than not, the same two factors on how to improve engagement keep arising: collaboration and gamification. In this article I will delve a little deeper into how these two topics can improve your levels of employee engagement.

Collaboration

Today, many organisations are starting to place a lot of emphasis on finding a balance between employees being able to utilise their own time for brainstorming and problem solving and spending time as part of the team – as part of an overall collaborative process. In order to take advantage of utilising both of these two approaches, it is essential that the underlying HCM solution has the relevant mechanisms to enable unified communications and collaboration, to ensure all discussions and decisions can be recorded with any of the associated documentation attached as part of the process.

With most employees now in possession of mobile technology that enables them to be connected to the core HCM solution, anywhere, anytime – enabling them to be connected to all other employees in the organisation, and their own external networks – an environment has now been created that facilitates online, collaborative communities.

Most C level executives should be looking to achieve high levels of collaboration in their respective organisations, as it is collaboration in the workplace that enables employees to work together to accomplish the common goals of the organisation, by sharing their thoughts and ideas in a collaborative environment.

In a Work.com study it was found that 97% of employees and executives agreed that the level of collaboration directly impacts the outcome of a task or project. Teams or departments that can collaborate smoothly and openly share information, with the means to communicate seamlessly, are enabled to work at their most effective and productive levels.

This is in direct contrast to the situation where employees work in a siloed approach, often with those invisible but deadly Chinese walls, which generally lead to the extension of the time required to complete a task, resulting in an increase in the overall costs.

What we are finding today is that smart mobile technology is enabling collaboration between employees, allowing them to work in far more flexible environments as opposed to those of the traditional office based nine to five workers. This has also resulted in providing many more employees with the opportunity to work remotely, as opposed to having to be in the office to be part of any collaboration forum.

Ultimately, there is no organisation that I am aware of that would not want to take full advantage of the combined brain power and efforts of their entire employee base. Imagine the power of all employees being able to share their ideas, assist each other in solving problems with the means to easily and seamlessly transfer their skills amongst themselves.

A collaborative environment will lead the organisation into being able to provide its customers with superior products and services, which ultimately improves the bottom line.

Gamification

The simplest definition of Gamification in the business environment is the process of adding games or game-like elements to business related tasks to increase the levels of participation of employees.

One area where gamification has already taken huge strides ahead of other HR functions is in the Training and Development environment. Here the adoption of replacing age-old paper based or electronic, but still static, training manuals with new-age interactive games and challenges has encouraged employees to interact directly with course content, and thereby increased levels of participation.

A further motivator for using gamification is the ability to add competitive elements to various environments, and here again learning is playing a leading role. The Learning and Development team is able to present learners with the opportunity to match themselves against their peers and achieve awards or badges, which in turn encourages acknowledgement from both their managers and peers.

One of the newer uptakes in utilising gamification I have recently come across is by organisations that prioritise employee wellness in the workplace. Suddenly, the number of steps taken in a day, the number of calories burned or a target weight reached becomes a competition, often connecting employees while motivating them to do more than they would traditionally do on their own, while simultaneously building up team spirit and morale in the organisation.

The whole concept of gamification centres on encouraging participation through a means that’s fun and non-threatening. Imagine having a workforce who are keen to get through the next module of a training course (to stay ahead of their peers!) instead of repeatedly creating reasons why they cannot possibly make the time to complete their training.

In summary, collaboration and gamification have been enabled through the latest technological innovations and are providing organisations with a means to create an engaged workforce, by empowering their employees with real-time collaboration tools as well as a platform to encourage training and development in a more positive and rewarding way.

Rob Bothma is an HCM Business Solution Architect at Oracle Corporation SA, www.oracle.com, a Fellow of the Institute of People Management and past non-executive director and Vice President of the IPM, co-author of the 4th Edition of Contemporary Issues in HRM and an Executive member of the South African Payroll Association.

This article appeared in the January 2019 issue of HR Future magazine.

Could pay compression be affecting your company’s performance?

One of the most popular words in HR, business and the working world in general is “performance”.

Read moreCould pay compression be affecting your company’s performance?

Ideas to get your coaching right

A frequently asked question at the end of a coaching intervention is: When are we going to see results?

Read moreIdeas to get your coaching right

Are you a controlling or empowering leader?

In my latest book, The Final Lap: Practical Tools for Empowering Leaders, I share that the essence of leadership is having a clear and compelling vision, being able to translate that vision into reality as well as the ability to rally people behind that vision.

Read moreAre you a controlling or empowering leader?

Women need to simply be who they are

The recent American #metoo woman’s tidal wave post the Harvey Weinstein scandal has got me thinking about power dynamics and barriers for women in the South African workplace, particularly the linkages between this world-wide phenomenon and any relevance or us ladies locally.

Read moreWomen need to simply be who they are

Reimagining Talent Management

Dramatic changes are taking place within workforces. Organisations have changed, structures don’t stay static for long, whole markets spring up quickly, and new jobs appear that simply didn’t exist five years ago. Research by the World Economic Forum forecasts that 35 percent of the skills considered important today will not be in five years’ time, while 65 percent of children entering primary school today will do jobs we’ve never even heard of.

Yet we continue to provide our Millennial leaders with tools to manage their people and organisations that were designed for a more predictable time. We ask them to plan for a future that may not exist – to choose successors for roles that may well vanish. By 2025, it is estimated that Millennials will make up 75% of all employees. These are people who have only ever known life in a digital world. How will they respond to the decades-old processes and solutions that many of them will be expected to deploy when they reach executive and C-suite level?

Artificial intelligence is another of the many factors due to impact global workforces over the coming decade. Others include the rise of the freelancer (self-employed people now make up a quarter of the workforce in the UK) and the potentially massive shortages of skilled labour that will cause global economies to miss out $8.5 trillion of un-generated revenue by 2030, according to recent economic research.

The approach to talent management is overdue for a refresh. For organisations that inhabit a market from the past that is unrecognisable, nothing short of a disrupted talent management solution may be in order – re-imagined talent management to reflect the work as it is, not as it was.

The recent Korn Ferry study on the Future of Work, The Talent Crunch, told us that despite the emphasis business leaders are placing on technology, human capital is the most valuable asset for organisational performance. If organisations are to make the most of technological advancement and reap the benefits of increased productivity and improved customer value, they will need the right people, with the right level of skill, to make that happen. But what if there simply aren’t enough people to enable organisations to reap the benefits that technology can deliver?

If talent continues to trump tech, as the research shows, then it’s clear our talent strategies will become more important as a way of ensuring businesses prepare for the future and attract and retain the humans that will sit at the heart of innovation; but it’s also clear that our current thinking on what constitutes best practice in talent strategy and processes will need to adapt to stay relevant.

Economic modelling that led to The Talent Crunch report shows that the lack of talent that many industries and markets are already experiencing is rapidly developing into a massive global talent crisis. This impending talent crunch, if not managed, will get out of control – and it will be developed markets that will be hardest hit.

So, if there are not enough people with the right kinds of skills that businesses will need in the future to remain competitive, what can organisations do to prepare?

The new Korn Ferry report, Reimagining Talent Management, answers this exact question through extensive research that shows that, to be sustainable and mitigate the effects of the talent crunch, organisations will need to change their approach to talent management to ensure it is fit for the future and will deliver business value. The companies that have already realised this are making a conscious choice to follow a “refresh” or “disrupt” path to update their talent solutions. This means that organisations must take a step back and consider a new talent strategy and a new more flexible way of implementing that strategy before the talent crunch hits.

To learn more about how talent management strategies could potentially be reshaped, we conducted in-depth interviews with 29 of the world’s leading organisations. Our aim was to understand and analyse their responses to the seismic changes taking place in the world of work.

Refreshers and disruptors

But when it comes to answering that question, opinion differs. Some talent experts, that is, 47%, are clearly taking what we have dubbed a “refresh” path. These people believe that their organisations’ talent management approach and philosophy is still fundamentally right. They are choosing to maintain core elements, such as detailed potential definitions, succession planning and annual talent reviews, but to deliver them in more flexible ways.

In the other camp are those who favour a “disrupt” approach. This group concluded that to remain relevant and ensure they deliver what the business needs, they have to change their whole philosophy and approach, becoming more agile, stripping out processes and tools and simplifying wherever they go. These disruptors made up 33% of research participants. The remaining 20% of participants were looking to evolve their approach even more slowly than the “refresh” group or, in a small minority of cases, not change their approach at all.

Create a new talent strategy

Defined along the lines of a ‘special gift’, a ‘natural ability’ or ‘aptitude’, talent is the opposite of something that ‘can be controlled’. Therefore, the term ‘talent management’ is as close to an oxymoron as it is possible for a single expression to be. The very thing we seek to ‘manage’ has always had an element of unpredictability. No matter the control we exercise, people have always had an infinite ability to surprise. But organisations do need to channel this spontaneity to deliver their objectives – and a stability to respond quickly to unforeseen market changes.

To meet this challenge head on, we need a talent strategy that allows us to harness the gifts of our talent individuals and unleash them in a way that will deliver real market advantage. It’s less about ‘management’ and more about ‘liberation’.

So, whether you choose to take the “refresh” or the “disrupt” path, clearly your organisation’s talent strategy needs to harness the gifts of talented individuals and unleash them in a way that will deliver real market advantage. Through our research, we have identified eight talent imperatives that will enable you to do just that – they provide a blueprint for reimagining talent management – and a framework for shaping a talent strategy that will deliver the right balance of direction and freedom for all your talent.

Over the next couple of issues, we take each of the eight imperatives in turn, providing examples of the kind of actions and processes you might adopt if you were to go down the “refresh” path, on the one hand, or the “disrupt” path on the other.

Malcolm Pannell is the Managing Director and Agustina Mendez is the Head of Expertise at Korn Ferry, www.kornferry.com.

This article appeared in the January 2019 issue of HR Future magazine.

Understanding how people think Part 2

Last month, we started our journey through philosophy as found in an excellent book, A Little History of Philosophy by Nigel Warburton by making our way from the big questions posed by Socrates, through to the doubt of Descartes and ending with the evolutionary thinking of Charles Darwin. This month, we continue on our path of discovery kicking off with Danish Philosopher, Soren Kierkegaard …

SOREN KIERKEGAARD (1813 – 1855): Oh my, that makes choice even more anguished, in the absence of pre – existing guidelines. What to do: choose the aesthetics of pleasure or the ethics of moral rule?

KARL MARX (1818 – 1883): That seems a trivial choice given the suffering of the many. What matters is that all people are equal and, for equality to be achieved, the proletariat must rise up in violent revolution and from the bloodshed a better world will emerge in which each gives according to their ability and each receives according to their need. I agree with Hegel that progress is inevitable but force is required to bring about rapid change. After the revolution people will discover their humanity in meaningful work, done in a spirit of cooperation, to the benefit of all.

CHARLES SANDERS PIERCE (1839 – 1914): I like the practicality of what you are saying, Karl. All this theorising is a waste of time. Just experiment, investigate and find what works and that’s the truth.

WILLIAM JAMES (1842 – 1910): Well, Charles, we discussed this at length when we were together at Harvard and I agree with you on the whole but believe you should put it less bluntly.

CHARLES SANDERS PIERCE (Again): William, you are just being wordy, like your brother Henry.

WILLIAM JAMES (Again): Yes, because words are important, they are practical. How else will you get your meaning across? Words work so they are the way to practical truth.

RICHARD RORTY (1931 – 2007): Right – words are tools that help us handle the world.

WILLIAM JAMES (Yet again): And that’s why I like to believe that God exists: because that belief helps them behave better. It works, so it’s true.

FRIEDRICH NIETSZCHE (1844 – 1900): Well, didn’t I get into a lot of trouble for saying that God is dead? All I meant was that the belief in God was dead! And that is a dilemma because it has left us without a basis for morality. Not that that’s a problem for an immoralist like me. I’ve got over worrying about good and evil. Now there are no limits and people can create values that suit them. But here’s the thing: Once upon a time, back in the time of Socrates, it was all about heroes with heroic values like courage, fortitude and duty. But then the slaves turned those values upside down by positioning and supporting values like kindness, empathy and humanity.

SIGMUND FREUD (1856 – 1939): Jawohl, Friedrich, you should be more conscious of the unconscious, lest you have a Freudian sex, I mean slip.

BERTRAND RUSSEL (1873 – 1970): Well now Sigmund, I’m with you on the sex, but I also dig religion and mathematics. A man must have his obsessions – my true passion is logic. Here’s a nice example: Either man must abolish war or war will abolish man. Here’s another (I’ve got lots): People don’t like dying so they like religion. See: structure in logic. But then there’s paradox: when something is both true and false at the same time. For example, this sentence is false: If you don’t want your life to be a paradox, make sure your language is precise.

ALFRED JULES AYER (1910 – 1989): Boo! Hooray! That’s what I say! I say most of you are talking gibberish – you just aren’t scientific enough. Take any sentence and ask just two questions: Is it true by definition? Is it empirically verifiable? If the answer is not yes to one of these questions, then don’t waste your time further. For example, talking as an igtheist, all talk of God is nonsense because he/she/it is not true by definition and can’t be empirically verified.

JEAN – PAUL SATRE (1905 – 1980): You are so angry, Alfred. So many exclamations. But you are, of course, free to think what you will. You were not designed to do anything in particular so you can choose what to do, and that is hard. Even if you pretend you don’t have a choice, you have chosen to believe that. Mon ami, you are condemned to be free. Such anguish when you are responsible for all you do. So, I am the poet of existentialism: first you exist, then you decide.

SIMONE DE BEAUVOIR (1908 – 1986): Jean – Paul, my lover, you and other men, you try to choose for women, try to choose how they should be, but we too are free to choose.

ALBERT CAMUS (1913 – 1960): But do not make life seem a useless passion. Even Sisyphus pushing his rock endlessly up that steep hill may be happy in his punishment as long as the reason for his punishment gives him a sense of worth.

LUDWIG WITTGENSTEIN (1889 – 1951): The most important questions lie beyond the limits of understanding and if you can’t talk meaningfully, stay silent and think. Language is so confusing: so many meanings for one word. And then we try to describe our experiences using these limited and vague words. Let us first make words have public meaning or our minds will remain locked.

HANNAH ARENDT (1906 – 1975): But we have to speak, Ludwig, because we must beware the unthinking man. This is what that boring simpleton, Eichman, taught me: unquestioning obedience, a blind sense of duty, this is not reasonable, it is the banality of evil. We must share our thoughts as best we can or sink into a world without nuance, without imagination, wondering through life like zombies.

KARL POPPER (1902 – 1994): Forget about imagination. Let us learn from our mistakes: we progress when we realise that a particular way of thinking about reality is false. So, like scientists, we must try to prove our theories false and if we can’t then they are true. If you say all swans are white just because all the swans you have seen are white, then what you look for is a black swan and if you find one you know your theory is wrong – and you have learnt.

THOMAS KUHN (1922 – 1996): OK, Karl, but things get interesting when there’s a paradigm shift because then the way we are judging something to be wrong, that may be wrong.

PHILLIPA FOOT (1920 – 2010): Let’s play a game! So, this train driver has fallen unconscious and his train is hurtling down the track straight at five railway workers and it’s going to kill them all for sure, except that you are next to a switch that will cause the train to go down a different track and kill only one railway worker. What do you do?

JUDITH JARVIS THOMSON (1929 – ): But, imagine that you are on a railway bridge above the train and there is a very fat man standing next to you and if you push him over the edge he will fall in front of the train and because he’s so fat he will stop the train and no railway workers will be killed! What then?

JOWN RAWLS (1921 – 2002): Mmm, I like how your thought games make me think. When I wrote The Theory of Justice, I had no idea it would be so popular, but I am pleased that so many people agree with me that not only is a better world needed but that thought and putting thoughts into writing, can help. We have to start out by asking: How can we make it better? Then we have to exert pressure on the state to influence it into better organising society. Of course, the challenge is that we all tend to describe this better world in terms of how it would be better for me. We need a more original position, a way of designing a better society without knowing what position in that society we will occupy. That is the only way of ensuring that everyone occupies a better position. I base this on two principles: the Principle of Liberty ensures that everyone has the right to a range of basic freedoms, like freedom of expression and freedom of belief; and then there is The Difference Principle: inequality is only defensible if it leads to an overall improvement for all.

ROBERT NOZICK (1938 – 2002): True, John; simply having the good luck to be born with ability should not be a ticket to unequal benefit. That ability should be rewarded and used to everyone’s benefit.

MARTHA NUSSBAUM (1947 – ): Yes John, philosophy should not only change the way we think but the way we live.

ALAN TURING (1912 – 1954): We could let computers work it all out for us. If we get someone to ask questions without knowing if they are asking a person or a computer and they can’t correctly identify which, and it is a computer, then the computer passes the test and proves its intelligence.

JOHN SEARLE (1932 – ): That’s clever, Alan – even intelligent! – but let me take you into The Chinese Room. It will prove to you that giving the right answers doesn’t mean understanding. A true answer is mere syntax. To be intelligent, the answer must have semantics to have meaning.

PETER SINGER (1946 – ): I would like to go back to Socrates and his need to ask questions. Let’s keep on asking the difficult questions like: If you see a child drowning in a pond, you would surely not hesitate to jump in and save it – so why, when you hear that a child is starving to death on another continent don’t you do something about it? It’s all about what we ought to do – if you could, then you should. It’s about consequences: the best action is the one that produces the best outcome for everyone – including animals – and if you don’t believe that then you are speciest which is just as bad as being racist. But, go on, debate this with me, as long as you support your opinion with research. And that’s just Western philosophy …

Compiled by Johnny Johnson, Managing Director of the TowerStone brand, www.towerstone-global.com.

This article appeared in the January 2019 issue of HR Future magazine.

How to stay relevant in a Digital World Part 1

The word ‘Disruptive’ has come to signify the kind of transformative change that uproots existing norms of competitive economies and forges a path of its own by rewriting the ‘rule book’ while relegating complacent titans of industry to the annals of history. It’s the kind of trailblazing that is majestic in nature and game-changing in practice. However, organisations that are built upon such innovations are also highly susceptible to becoming like the ones they replaced as accelerated growth and unbridled expansion come into focus, especially, after the ‘aura’ of being a ‘startup’ disappears. Consequently, it is imperative that the strategic focus of progressive organisations is in congruence with the demands of the Digital Age to remain relevant and competitive while maintaining an effective buffer against disruptive influences/competitors. The following model is being presented in the respective context:

The aforementioned model highlights the five strategic imperatives for organisations to stay relevant and competitive in the Digital Age, that is, Humanistic, Functional, Architectural, Business and Technology. It is designed in the form of a self-reflection that creates a framework for an honest self-appraisal of an organisation’s strengths and weaknesses to further strengthen the positive traits and to enable timely corrective/preventive actions for overcoming any shortcomings. Let’s discuss each of the five strategic imperatives with their constituent elements, as follows:

Humanistic

The Humanistic aspect focuses on all areas pertaining to the management of human talent that creates a win-win situation for both the employee and the employer during the lifecycle of the employment relationship. It calls for cognisance of the fact that employee voices are being increasingly muffled under the euphoria induced by the increasing encroachment of seemingly user-friendly technology in the workplace, especially, AIenabled, that is serving as a ‘relationship buffer’ for senior management, enamoured with an obsessive focus on efficiency, to marginalise the humanistic concerns. Consequently, the brevity of careers in a digital economy is significantly changing the ‘psychological contract’ as it shifts from being blindly based on ‘solemn faith’ to being watchfully propped up on ‘validated trust’.

Short-sighted organisations often implement talent management practices that are designed for ‘risk accommodation’ against ‘talent flight’ instead of ‘risk mitigation’ that caters to ‘talent engagement’. However, gone are the days when budding professionals depended upon the paternalistic instincts of their employers to provide them with a viable career path. The capable professional of today is more informed, incisively skilled, and comes with a baggage of knowledge that enables leveraged negotiating targeted to achieve maximum gains within a mutually agreed frame of reference. Consequently, Total Rewards has evolved to incorporate Employee Experience in addition to the traditional norms of Compensation and Benefits. It has become a hallmark of outstanding employers as reflected in the “Total Rewards” Package diagram.

Therefore, the key question in the respective context becomes: ‘Is there substantial value in being an employee of our organisation?’

Functional

The Functional aspect focuses on all areas pertaining to the effective integration, harmonisation and channelisation of activities/initiatives that are manifested through prudent organisational structuring. It elevates the notion of nimbleness to a core competitive advantage and points to the significance of being able to pivot congruently with respect to the demands of the Digital Age. This is crucial in terms of safeguarding against disruptive forces (astute competitors, breakthrough technologies, transforming eco-systems, dynamic customer/client bases, binding laws/rules/regulations, uncertain political environment, multi-generational workforces, etc.). However, care has to be taken in terms of not being lured into excessive experimentation associated with ‘fad-surfing’ or becoming highly vulnerable to the pitfalls of accelerated growth and unbridled expansion without a supportive organisational structure, especially, in case of new organisations, after the ‘aura’ of being a ‘startup’ disappears.

Organisations are a complex mix of various interactive elements that are both organic and inorganic in nature as shown below.

Most leaders struggle to find an optimum balance between the two key facets due to the inevitable presence of various controllable/ uncontrollable factors and are generally resigned to leaning more towards one than the other as they try to stamp their influence on building an enduring legacy within the organisations. Such an imbalance creates serious issues for the long-term success of the organisation, especially, considering that one of the key reasons that ‘organisational restructuring’ often fails in progressive organisations is due to the inconspicuous fact that it is primarily focused on tinkering with the ‘organisational hierarchy’, rather than, significantly improving the ‘thought hierarchy’. Therefore, the key question in the respective context becomes ‘Are we configured in the best possible way to deliver desired results?’

Architectural

The Architectural aspect focuses on all areas pertaining to designing, implementing, maintaining, improving and sustaining the physical work environment that is conducive to the health and wellbeing of the workforce. Proactively assuring and ensuring such initiatives is a significant part of the overall equation for corporate success, especially, in terms of managing stress levels, reducing fatigue factors and inculcating measures for a lively and invigorating workplace. Following questions pertaining to workplace design should be considered for gaining a better understanding of relevant strengths and weaknesses to reinforce/institutionalize effective remedial measures:

1. What are you trying to achieve with workplace design now that earlier initiatives could not accomplish?
2. How is your organisation meeting the associated challenges?
3. How is ‘employee voice’ being incorporated in the respective context?
4. Are there any areas where customer/client needs and employee desires clash? If so, how have you resolved them?
5. What are some of the key direct and indirect metrics that reflect the impact of workplace design in your organisation?
6. Do you benchmark in the respective context? If so, how has it helped you?
7. How does the ‘gig economy’ (freelancing) fit with such initiatives?
8. What role do you foresee Artificial Intelligence (AI) playing in the respective context for the future?
9. Have you used innovative workplace design as a recruitment tool too? If so, is it attracting the desired talent accordingly?
10. How do you intend to inculcate lessons learnt from such experiences in future endeavors?

The aforementioned questions create the ‘thought space’ that can compel progressive leaders to not only focus on the ‘palatable’ prioritised areas, but also the ‘contentious’ marginalized areas, such as overcoming communication/engagement challenges through the astute use of office space, elevating productivity levels by effectively catering to ergonomic considerations, boosting diversity and inclusion initiatives through design innovation, excelling in meeting customer/client needs/expectations by incorporating the ‘WOW’ factor, adopting environmentallyfriendly designs/practices that lead to efficient utilisation of available resources, using human-centric lighting/luminosity to enhance focus and comfort levels (https://www.ledsmagazine.com/articles/print/volume-14/issue-9/features/human-centriclighting-in-the-workplace-it-s-not-just-aboutcolor-temperature.html), etc. Therefore, the key question in the respective context becomes: ‘Have we created a welcoming and healthy place for work?’

Murad Salman Mirza is a Committed Organisational Architect, Positive Change Driver, Unrepentant Success Addict and a globally published author based in the United Arab Emirates.

This article appeared in the January 2019 issue of HR Future magazine.

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