Sparks Electrical News November 2015

11 contractors’ corner

ECA News by Mark Mfikoe, national director of the Electrical Contractors’ Association of South Africa

Flexicurity – a concept from Japan I RECENTLY attended the 21 st World Congress of the International Society for Labour and Social Security Law held in Cape Town where I was privileged to attend a session in which Prof Takashi Araki of the University of Tokyo, Japan, presented a paper on Japan’s industrial relations. the courts own assessment and any submis- sion made by interested parties. In South Africa, the business would be bound to act only in terms of the provisions of Section 189 or 189A, whatever the case may be. These sections dictate how changes brought about by operational requirements of the business are to be effected.

ceptable, such decisions would be overturned by the courts. At the same time, the courts give the business people the right to amend the conditions of employment to give businesses the best chance at survival to ensure that life time employment is made a reality. It would be great when all parties concerned avoid dismissals at all costs subject to flexible adjustment of working conditions. A profound lesson from Japan.

Section 189 proceedings. The section dictates the timetable for the changes as well as the players involved. The irritation I have with this provision is that it has got no relationship with business realities. I have been involved in many restructuring proceedings and, without excep- tion, timing is everything. Flexicurity is a good concept and a culture to promote. Business is forced to consider the social impact of any decision to dismiss. Should the courts find this to be socially unac-

The focus of this presentation was on a con- cept of ‘flexicurity’. This word is a combination of two concepts: (1) Flexibility – this depicts flexibility in adjusting working conditions by the employer; and (2) Security – depicting security of employment where dismissals are avoided at all costs. In South Africa, the fairness of a dismissal is judged on two grounds: substance and procedure. If a dismissal is found to be ‘on reasonable grounds’and that a fair proce- dure was followed in effecting the dismissal, the entire dismissal would be judged by any adjudicating forum in South Africa as having been fair. Given the concept of security of employ- ment in Japan, which is part of the culture of Flexicurity, the courts frown upon dismissals that are found to be socially inappropri- ate. The 2003 Labour Standards Act makes dismissals that are socially inappropriate null and void ab initio (from the beginning). In other words, such dismissals have no force or effect. In the Kachi Broadcasting Case of 1977 a newsreader arrived late for work and could not read the news at the allocated time. The newsreader’s explanation was that she overslept. The broadcaster dismissed the employee. The court found that the dismissal was too harsh and socially inappro- priate and ordered back pay and reinstate- ment. This shows the extent to which the Japanese culture prevents dismissals. The April 2015 statistics shows unemployment in Japan sitting at 3.3% with the majority of the employees in what is called, ‘life time’ employment. This security of employment culture is also promoted by the trade union movement. According to Prof Araki,“The most frequent request made by workers employed by a company in bad shape, is not a wage hike but a guarantee of employment”. The employees would rather agree to a lowering of employment conditions to keep as many of them employed as possible rather than to chase higher wages and compromise the continuing employment of their colleagues. This security of employment is balanced by flexibility – the other leg of Flexicurity. The employer is given flexibility in adjusting working conditions. The Supreme Court of Japan decided in 1968 that, in instances of reasonable modification, the employer can ask the union opinion but the actual modifi- cation decision is unilateral. To guarantee justice, the courts scrutinise reasonableness in the modification. Such reasonableness would be based on the business conditions as objectively assessed by the courts against the existing material conditions on the ground as evidenced by

Section 189A(9) even goes to the extent of giving the employees a statutory right to strike in the face of dismissals occasioned by

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november 2015

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