The right to gainful employment

In the course of my “day job” as an industrial relations consultant I get increasing queries from distraught employers of small and medium-sized businesses who simply do not know what to do as the country goes out of lockdown.

As I am simultaneously the chair of a human rights NGO I am forced to acknowledge the interlocking of the two disciplines, and ask myself the question, “Should the right to gainful employment not be acknowledged as a basic human right?”

An adult should be able to support him or herself, their dependants, who may include children, parents or grandparents and those in the bloodline who are disabled. That is what being mature means. To be able to accept this usually requires that, outside of inherited resources, an adult must be able to work. And that should be a human right as well as an obligation.

Our constitution declares that everyone, without distinction as to race, colour, religion sex or, most notably at a time of refugees, origin, has certain rights. Section four lists 11 of them.

The right to gainful employment is not one of them.

As organisations have finally been allowed to reopen, a genuine conflict has resulted. People want to return to work. Employers want to go back to pre-lockdown status.

But one after the other are unable to do so, an eventuality not, apparently, foreseen by those who ordered the lockdown. Customers deprived of income themselves are not buying. Savings have run out, if they ever existed, as after the bank crisis of 2008-2009 and the subsequent recession of 2016-2019, most people and most SMEs survive from month to month. Those small contractors not already bankrupted by government’s failure to pay for work previously done are not getting new contracts. Foreign used vehicles are piling up on the waterfront as new buyers cannot afford them.

It is a myth that every employer has pots and pots of money earned by exploiting their workers put aside in the bank, so that when pandemics shut down the economy, employers can be ordered by a government to dig up the pots and pay rent, electricity, water rates, insurance, maintenance, internet, telephone and wages. To say nothing of taxes, back VAT rates, NIS contributions, health surcharge, Green Fund levy and transport for goods and services that must be provided to keep the organisation going. This does not include bank charges, interest on loans taken out and contributions to pension and health schemes.

Trade unions know all this because they, too, are employers and have rent to pay, or, if they own their own buildings, maintenance. They have computers and must pay internet charges, electricity, water rates, telephone, cell phone charges and transport allowances for travelling officers which include the price of fuel, which has risen three times in the past year. Their members pay the hefty executive salaries of the union president and wages of support staff out of monthly dues which have probably not increased.

As ILO research stats have shown, worldwide union membership has fallen, except, apparently in communist countries and among public servants who are expected upon employment, if not actually legally compelled, to join. Mainly older workers over 40 maintain union membership, they report, as multinationals have seen the writing on the wall and have or are going to withdraw, shut, close down, shrink, roboticise, re-engineer. All of which means no more work for people and no union dues for trade unions. As one union leader put it sadly, “We really are all in this together.” And to give the unions credit, there are those among them who are mature and honest adults and have admitted, “We have to carry some of the burden. It is our country, too. We can’t expect employers to do it alone.”

But how to do it in a way that preserves human rights?

The Industrial Relations Act deals with two aspects: matters of “right” and “matters of interest.” These apply to all workers, unionised or not. Matters of right are those matters or benefits workers are guaranteed by law, such as minimum wages, sick leave, etc. Also anything written down and signed, such as a letter of employment (which is a contract) or a collective agreement.

A matter of interest is a benefit that the worker does not have but is interested in getting, like a pandemic bonus, more vacation leave, an increase in wages, etc.

What happens when the employer, be it union or company, can no longer meet its obligations to workers? They may want to, but there has been a shift in reality throughout the world as we know it, and the old rules don’t fit. What happens if they cannot pay rent or mortgage?

There are always options. If it is rent, they get evicted, if it is mortgage, they face foreclosure. Those are contractual obligations as well. Or they renegotiate the terms of the rental contract or renegotiate the length of the mortgage repayment contract and their family continues to have shelter..

But what about when they can’t pay workers what they have agreed to pay – also a contractual obligation, and a rights issue? What are the options?

Well, contracts can be ended or they can be changed, but in the latter case, only if the parties agree to the change. No one can force an agreement.

No one foresaw the pandemic so no law has been passed that governs issues arising out of it. There are no precedents to follow.

But there are workers, as noted above, who recognise that we are all in this together and are willing to work to a joint solution to keep the organisation going.

If their representatives are not willing to do so, for whatever reason, ending the contract is inevitable. No organisation, be it trade union or company, can get blood out of a stone.

In those situations, the employment comes to an end and severance pay is only due if the organisation itself continues. Under the old pre-pandemic law, severance pay must be paid within three months.

If the employer cannot pay, the matter can be referred to the Industrial Court. We have no idea what the court will rule, as there is no pandemic precedent for the court to go on.