The 2007 collective labour agreement (CLA) between Limkokwing University of Creative Technology (TAWU) and the Trainers and Allied Workers Union (TAWU) expressly states that “The Institute agrees that it will negotiate with the Union before embarking on a retrenchment exercise, which would include discussions on exploring alternatives to retrenchment.” This is actually a restatement of the retrenchment procedure as outlined in the Trade Disputes Act. The CLA established a joint negotiating and consultation committee (JNCC) at which the two parties would meet and resolve issues of concern.
However, upon initiating a retrenchment exercise in December last year, Limkokwing held a consultative meeting not with TAWU but directly with staff members. Another meeting was held on January 6 this year and 10 days later, the first batch of retrenches got letters informing that “your services shall no longer be required.” The union had tried to query management’s decision but the explanation was that the CLA between the two parties had expired three years ago.
“There is therefore no longer any Collective Labour Agreement in force and there cannot be a meeting of JNCC in the absence of any Collective Labour Agreement,” reads a January 13, 2016 letter from Limkokwing that doesn’t state the position of the signee.
At issue is Clause17.1.6 of the CLA which states that the agreement “shall remain in force unless and until the expiry of two years from the date of the signing of this Agreement. However, if neither party has, within three months of the expiry of the two years, signified to the other that it wishes to alter or replace this Agreement in part or in whole, it shall be deemed to have been renewed for a further period of two years by tacit mutual consent.” The agreement was signed on April 30, 2013 and with neither party having signified to the other that it wished to alter or replace it by at least October 31, 2015, the agreement was automatically renewed for a further period of two years by tacit mutual consent expiring on April 30, 2017.
When leaders of the TAWU branch at the university made written request for an emergency meeting on December 7, the London-based Vice Chancellor for Africa, Professor Cedric Bell, responded by saying that “Given the short notice it is not possible to meet with you between now and the consultation meeting tomorrow.” The letter, which is addressed to the Secretary General, doesn’t say anything about Limkokwing management not recognising TAWU. As a matter of fact, the two parties had 15 JNCC meeting after April 30, 2015, the last being on September 15 last year. Among others, the outcome of such meetings was the conclusion of an agreement on staff pensions. The other noteworthy aspect is that the varsity had all along been deducting union member subscriptions on a monthly basis and forwarding the money to the TAWU bank account. This is a standard CLA arrangement for employers and unions.
Limkokwing’s appreciation of the issue is that it was the union’s responsibility to renew the agreement. Against the background of Limkokwing’s understanding that the CLA had lapsed, Sunday Standard sought clarification on the basis upon which the varsity did official business with an entity it didn’t recognise. In response, the varsity’s spokesperson, Mercy Thebe, said that until it was alerted by the its lawyers, Limkokwing was unaware that the CLA had lapsed and that upon being enlightened, duly relayed this information to both the union leadership and staff members.
“The responsibility for the same, in our view, rests solely with the union who allowed the collective agreement to lapse,” she said.
The interpretation of the varsity’s lawyers notwithstanding, Thebe’s explanation will have to align perfectly with a part of the clause that states: “However, if neither party has, within three months of the expiry of the two years, signified to the other that it wishes to alter or replace this Agreement in part or in whole, it shall be deemed to have been renewed for a further period of two years by tacit mutual consent.”
The CLA states that Limkokwing recognises the desirability of retaining employees with long continuity of service over employees with shorter service. In addition to adhering to the first-in-last-out principle, the varsity would also consider operational requirements of the business, performance, length of continued service, potential for training, discipline record, qualifications and experience as well as age. Some of the citizen retrenchees say that they have been working at the university longer, are more qualified and have more experience than some (non-citizen) staff members who have been retained. Thebe said that the criteria that “the University followed was guided by Section 25 of the Employment Act (Cap.47:01) in accordance with the principle commonly known as “first in-last out” taking into account the need for the efficient operation of the undertaking and the ability experience, skills and occupational qualifications of each employee concerned.”
Save for instances where an employer has “good cause”, the Trade Disputes Act has formulated a “model retrenchment procedure” that should be strictly followed. The procedure’s introduction describes retrenchment as “a traumatic process” and recommends that “an employer should attempt to implement this procedure in a manner that is sensitive to the needs and interests of employees.” The “Disclosure of Information” clause says that except where confidential information is concerned, management should disclose information regarding the proposed retrenchment package. In the particular case of Limkokwing, employees were asked to volunteer for retrenchment without knowing what the package was. They only learnt that they would be getting five weeks notice when they got the letters notifying them of the retrenchment.
Asked to confirm that staff members were asked to volunteer before they knew what the package was, Thebe response was that “It is worth noting that the university followed all retrenchment guidelines as stated in the Employment Act and university policy.”
