Atypical, antifragile employment practices will see us through the pandemic
Revision of employment contracts could allow employees to keep their jobs while pursuing other business interests
There are roof leaks that can be revealed only by a stormy, rainy season. These leaks are not created by the rain, but they are revealed when it rains. When the sun is shining, when skies are clear, you think everything is perfect until you are hit by hail, rain and wind, and you realise the roof is leaking. This is also true about many of our employment practices. We thought they were fine until we were hit by the pandemic and we realised how fragile they were.
One employment practice we need to rethink in the wake of the pandemic is permanent employment. I argue that it is archaic. And contrary to popular rhetoric, there are now many employees who do not necessarily want permanent employment. It is time for atypical employment practices to become mainstream, for the benefit of both the employer and a certain type of employee.
In terms of the labour legislative framework in SA you are either an employee or an independent contractor. There’s nothing in between. Section 213 of the Labour Relations Act (LRA) provides that an employee is “anyone, other than an independent contractor, who works for another person or who assists in conducting the business of an employer”.
But this definition is outdated when you consider the changing world of work. It is too prescriptive. I know why it is like that — the employer-employee relationship is generally adversarial in SA. There’s very little trust. In the absence of trust, everything should be governed by law.
Consider highly skilled employees who have other business interests but are also passionate about their employers’ businesses and add significant value. They have to leave to pursue their business interests because up until now, the legislative framework just didn’t allow them to do both. Some will argue that they could do it as long as they declared a potential conflict of interest, but we all know this seldom works. It depends on who you report to. It is subjective.
A revision of employment contracts has been in the pipeline for a while but due to this world-ravaging virus the need has been accelerated. To survive, many employers will consider flexible/robust employment practices where they can tap into talent regardless of whether that talent is in academia, self-employment, employment elsewhere or any other atypical employment relationship.
The one piece of research that got it right was the Global Human Capital report by Deloitte. In the 2019 version the researchers argued that “In 2019 and 2020, as the economy is likely to slow, we think a new approach is needed. Rather than automatically opening a job requisition when a manager needs a role filled, it’s time to think about how organisations can continuously ‘access talent’ in varying ways: mobilising internal resources (internal mobility), finding people in the alternative workforce, and strategically leveraging technology to augment sourcing and boost recruiting productivity”.
Vulnerable employees in the bargaining unit should still be protected through permanent employment, but if employers are going to survive Covid-19 they need to think strategically about managing talent in the skilled and management categories. Instead of blindly employing people permanently, they need to tap into talent.
This category of employees is not too fussy about job security anyway. Some of them want to explore their other talents. They want to hustle. They would really appreciate an opportunity to sell their skills to other employers-consumers while still contributing to your business. If your company made them that offer, they would jump at it.
This also helps employers who are grappling with ways of reducing labour costs as a response to this crisis. Before implementing a section 189 process, consider asking your employees if some of them would consider being given a different contract where they can work for you a few days in a week (therefore reducing labour costs) while they pursue other interests on the other days. You will be surprised how many will take you up on this. It’s a win-win.
There’s a Zulu proverb that says Ukubona kanye ukubona kabili, loosely translated as: an unpleasant thing that befalls you should serve as a warning for you to avoid the same thing happening to you again in future. We have an opportunity to reflect deeply about our employment practices right now so that we don’t find ourselves in this same predicament again.
Retrenchments can be extremely traumatic. We can avoid them by structuring employment contracts differently in future. There are many mutually beneficial atypical employment practices we should be considering right now: variable pay, short-time or even a reduced workweek that allows employees to find other work for the other days.
The most important thing is that no employer can arbitrarily explore these practices; they need to be discussed (in good faith) with employees. There are employees who would jump at the opportunity.
• Moyo is a conference speaker and a lecturer in the industrial psychology department at Stellenbosch University.
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