There is a yawning gap between what diamond mining companies in the country want to pay workers as night shift allowances, and what workers think they should earn and the talks between the two parties have reached a stalemate.
As a result of the deadlock, workers say they have not been paid their allowances from last year when the government promulgated new regulations that provide for night shift allowances for workers, among others.
They accuse the mining companies of using smoke and mirrors to avoid paying them.
The interpretation of the Labour Code (Exemption of Diamond Mining Industry from sections 117 and 118) Regulations of 2021 has emerged as a sticking point in the talks between companies and workers.
Broadly, the mining companies say the regulations stipulate that a worker should be paid 10% of their basic monthly salary as night shift allowance at the end of the month, but workers argue that they should be paid an equivalent of 10% of their monthly salary for each night worked.
â€œWe are aware that there may be different interpretations of the relevant section of the Regulations â€“ just as there are when interpreting any law.,â€ Storm Mountain Diamondâ€™s Chief Executive Officer (CEO), Mohale Ralikariki, told Newsday.
Ralikariki said there were workers who had interpreted Regulation 3(e) as requiring an employer to pay employees allowances of 10% of their basic monthly salaries for each night worked.
â€œStorm Mountain Diamonds is of the view that this reading of the Regulation cannot be correct, and could not have been the intention of the legislator when drafting the Regulations. This would be unsustainable and does not make any business sense,â€ he said.
Newsday has obtained a copy of the said regulations. Regulation 3(e) states that: â€œan employee shall be paid a monthly night shift allowance of 10% of their basic salary per night.â€
Ralikariki said they were aware that this regulation may as well be interpreted as meaning that an employee should be paid 10% of his or her daily rate for each night actually worked.
He said applying this interpretation results in the employees receiving less allowance than what they are currently earning at Storm Mountain Diamonds, â€œbut this interpretation might as well be correctâ€.
He denied workersâ€™ claims that they had not been receiving their allowances from last year.
The workers first complained about the issue to the Ministry of Labour and Employment in October last year. At that time, they said they had not received their allowances for two months.
The petition was signed by 105 workers from different mines in the country.
Secretary General of the Mine Workers Association, Motlomelo Kao, told Newsday last week that they had not received any communication from the ministry after submitting their petition.
They only learned last month when trying to follow up on the matter that the Commissioner of Labour, â€˜Mamohale Matsoso, wrote to the Chamber of Mines on December 20, 2021, explaining how the dispute between mines and workers should be resolved.
Newsday has seen a copy of Matsosoâ€™s letter.
She indicated in the letter that the minister was advised to request any party or stakeholder requesting clarification/interpretation of any provision of the regulation to invoke the provisions of section 226 2(a) of the Labour Code (Amendment) Act 2000.
â€œThe advice was based on the fact that over and above your enquiry, the Minister was getting inundated with letters from various groups of employees with which they were claiming that the employers were failing to honor the provisions of the regulation and were as a result underpaying them,â€ she wrote.
With this turn of events, she said the ministry concluded that there was a potential dispute between employers and workers arising from the interpretation of the provisions of the said regulations.
â€œAlternatively, Section 226 2 (c) provides that a dispute concerning the underpayment of any monies due under the provisions of this Act may be resolved by Arbitrators. In this case, the workers would be expected to lodge a dispute if they are of the opinion that the employer has been underpaying their night shift allowance since the promulgation of the regulations,â€ she added.
Matsoso further explained that the minister was advised that a democratic dispensation is characterized by the separation of powers.
â€œWe, therefore, feel strongly that the Labour Commissioner and the Minister cannot replace the Directorate of Dispute Prevention and Resolution and the Labour Court.
â€œFinally, if the chamber is of the opinion that any provision of Regulations has been wrongly drafted, this should be brought to the attention of the National Advisory Committee on Labour which will advise the Minister on the appropriate cause of action,â€ she concluded.
Kao said they are surprised by Matsosoâ€™s explanation to the Chamber of Mines that the ministry cannot replace DDPR and whoever feels aggrieved should go to the courts.
The workers want the ministry to intervene so that the matter can be resolved without animosity outside of the courtroom.
â€œOur question is why laws would be made and when seeking intervention from the government we are told to lodge a dispute,â€ Kao queried.