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CoA faults Gov’t, BOFEPUSU in Bargaining Council flop

Publishing Date : 16 January, 2018

Author : UTLWANANG GASENNELWE

The Court of Appeal (CoA) has this week laid the blame on government and Botswana Federation of Public, Private and Parastatal Sectors Union (BOFEPUSU) for the eventual collapse of the Public Service Bargaining Council (PSBC).


Both BOFEPUSU and government withdrew from the PSBC following disagreements and countless court battles between the duo, rendering the Council eventually ineffective and worthless. In the just ended matter, government in cohorts with Botswana Public Employees Union (BOPEU) was appealing a case in which Gaborone High Court Judge Tshepo Motswagole earlier this year ruled in favour of BOFEPUSU in a matter to set the record straight on the scope of the Bargaining Council.


In essence, the judgement of Justice Motswagole nullified the unilateral decision by Government to award salary increments outside the Public Service Bargaining Council (PSBC) saying government had bargained in bad faith with the unions.


“Government breached its duty to bargain in good faith when it granted unilateral 3% increment of salaries on March 30, 2016. The scope of the PSBC- being a joint industrial council - extends to all public servants and is not only restricted to trade union members,” Motswagole had ruled then. At the time, BOPEU was not sitting in the PSBC and it is understood that motivated its teaming up with government against rival union, BOFEPUSU.


The two critical questions in the appeal were both answered this week in the judgement as delivered by a bench consisting of CoA President Justice Ian Stuart Kirby, Justice Monametsi Gaongalelwe and Justice Zibani Makhwade.
The trio, through Justice Gaongalelwe who read the judgement on their behalf, reached a conclusion that “the government is not permitted to grant unilateral wage increases to public servants during the period when wage negotiations are in progress as this constitutes negotiating in bad faith.”


In regard to the principle of negotiations in labour matters having to be conducted in good faith by both the employer party and the trade union party, Judge Gaongalelwe also said that it was impermissible, and an act of bad faith for government to grant a unilateral increase to public servants during the period set aside each year for wage negotiations. This, he said, could be construed as being intended to frustrate ongoing negotiations.


 However, the trio also ruled, which seems to be contradictory, that; “decisions of the Public Service Bargaining Council (PSBC) do not presently bind public service employees who are not unionised nor those who are members of trade unions not admitted to the council.”


The highest court explained that on the strength of all materials canvassed, they found that decisions of the PSBC, as presently provided for only bound parties to the Council. In practical terms they highlighted that this translated to saying that decisions of the Council governed only those public employees who are members of trade unions admitted to the Council.  


Justice Gaongalelwe explained that “so while it is mandated with dealing with cross-cutting issues common to all public servants, the PSBC decision will, by article 28 bind only the members of its constituent unions.” He also said that all indications suggest that government acted in bath faith when negotiating with unions. “In casu the actions of government as a party to the PSBC fall squarely within what amounts to bad faith. Government was unwilling to enter into discussions as evidenced by ignoring the letter from BOFEPUSU and refused any counter proposal.”


“Granting the unilateral increment in the manner in which it was done seriously undermined the trade unions and dented their integrity and credibility in that it intended to show employees that union representatives are not effective in bargaining and such conduct dissuades employees from joining trade unions,” Justice Gaongalelwe pointed out in the judgement.


He added that, “In my judgement, even if such increment had been offered during the negotiating period to public officers whose trade unions were not members of the Council and to non-unionized employees only (which was not the case) that would still be amounted to bad faith since at the end of the day such adjusted salaries would be withheld from officers whose trade unions are parties to the Council, and government would not achieve its objective of making adjustments for purposes of achieving uniformity in salaries of employees holding similar and same scale positions. The granting of such an increment would have an obvious damaging effect on the status of the PSBC merger unions.”     


According to Gaongalelwe, the judgement will probably mark a completion of what had been a long and tortuous journey over a rough terrain undertaken by government and prominent trade unions. “The journey commenced through launching an application for an interdict at the Industrial Court, then a review application at the High Court and ultimately the matter came to this court, he said.


“The controversy in this appeal largely revolves around the interpretation of certain provisions found in statutes and instruments dealing with labour relations in the country. These are the Public Service Act, Trade Unions and Employers’ Organisations Act, Trade Disputes Act and the constitution of Public Service Bargaining Council,” he added.   


Collapse of the Bargaining Council is a step in retrogression


According to Gaongalelwe, the effect of the withdrawal of all trade union parties from the PSBC and that there was no Bargaining Council presently is a step in retrogression. “it creates an unhealthy situation which will be counterproductive in the end, with uncoordinated parallel negotiations being held with sundry unions,” the CoA judgement pointed out. Justice Gaongalelwe said trade unions have been created for the purpose of constructive collective bargaining and their forming a bargaining council was a valuable move for the benefit of members.


He stressed that: “I must say this latest development causes a concern. An operative PSBC gives government the opportunity to benefit from properly researched submissions advanced by the unions, who are well resourced for this purpose, and to receive feedback on its own proposals developed during the budgetary process, so that an acceptable and affordable compromise can hopefully be attained each year. This is a positive process for the benefit of the nation, and should not be viewed in a negative light.”


The Judge emphasised that since parties had withdrawn from the PSBC, which has been rendered dysfunctional “shows an urgent need of the government and the unions to revisit either the Act or the PSBC constitution or both, so that a fair and inclusive negotiating forum can be reconstituted”.


Parliament should amend law to remove obstacles for unions admission to PSBC


The way forward, Judge Gaongalelwe pointed out, might be for parliament to consider amending the relevant statutes, if so advised by the appropriate authorities, to set by law the annual negotiating period, and to remove some of the obstacles to admission to the council.


He said “the thresholds in respect of both recognition of a trade union by the employer and for the admission to the PSBC are too high, and make fully inclusive PSBC impossible,” before adding that “It is difficult and often unachievable for a single trade union to be admitted to the Council. This inevitably leads to the trade union desirous of becoming party to the council being compelled to enter into acting jointly agreements which have their own problems.”


He added that it can also lead to one sector of the public service being over-represented in the Council at the expense of other sectors, and that seems to have happened at one stage in this case. He justified highlighted that the withdrawal of BOPEU from the BOFEPUSU acting jointly agreement created just such a scenario.


However, to avoid being seen to be encroaching to parliament territory, Justice Gaongalelwe highlighted that it is worth noting that the remarks were only suggested possibilities, “since the courts has no legislative powers and that it was parliament which legislated where its wisdom so directs”. BOFEPUSU was represented by Advocate Alec Freund, Mboki Chilisa and Onuorah Ifezue while BOPEU was represented by Dutch Leburu. Odirile Otto, Advocate Tim Bruinders and Joseph Akoonyatse stood in for government.

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