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BOFEPUSU moves to block 3% salary hike

Botswana Federation of Public Sector Unions (BOFEPUSU) has filed an application with the High Court seeking a review and setting aside of the decision taken by Directorate of Public Service Management (DPSM) to unilaterally increase the salaries of public officers employed in terms of the Public Service Act by 3 percent prior to the conclusion of wage negotiations.

In stating grounds for review Rari writes that the decision to unilaterally increase salaries is a breach of the Government’s duty to bargain in good faith at the Public Service Bargaining Council (PSBC).   He further argues that implementing an increment in respect of non-unionised employees of Government (comprising both managerial and non-management employees) undermines and violates the legislative role of the PSBC.

“Government as an employer and as a member of the PSBC therefore has a duty in terms of the law to conduct itself in good faith as regards conditions of service, which conditions of service must be deliberated upon and discussed at the Council. Salaries as an integral component of employment must be deliberated and discussed at the Council,” he states.

Rari says he is advised that the unilateral decision taken by government is a classic form of bad faith bargaining. The employer party cannot resort to unilateral action as this makes nonsense of the entire bargaining process, says Rari.  He says this remains the case whether or not negotiations are on-going at the PSBC.  

“The Applicant trade unions are members of the PSBC and this means that the government owes them as members a duty to bargain with them in good faith.” Rari further posits that the decision to unilaterally increase salaries makes nonsense of the usefulness and relevance of Applicant trade unions to the entire bargaining process.  

“It certainly gives the impression to the Applicant’s members that they are better off not being members of the Applicants and that they can get better conditions of service without the Applicants (BOFEPUSU)” .

Rari says the PSBC has the sole responsibility of determining terms and conditions in the public service, “and this is especially so because it is registered as a joint industrial council which by definition negotiates terms and conditions of employment for employees in the industry.”

He says in terms of the PSBC constitution, all members of the public service (except the disciplined forces) fall within its scope of reach. He states that it matters not whether or not the employee is unionised or non-unionised; all outcomes and resolutions at the Council affect the entire public service.

“Non-unionised employees will comprise both managerial and non-management employees as both managerial and non-management employees are all employees of the public service. The PSA does not exclude members of management from the scope of operation of the PSA. As long as the employee is governed by the PSA, such an employee is a member of the public service and falls within the scope of reach of the PSBC.”

BOFEPUSU says on 11th March 2016, government’s intention to implement salary increases for non-unionised public officers falling within the scope of the Council to the exclusion of other public officers, was brought to their attention by a source within government. Through their Attorneys on 14th March 2016 they sought a written undertaking that government will not unilaterally implement a salary increase for non-unionised public officers for the year 2016/17 until the lawfulness thereof had been established. Rari explains that government did not respond to the notice.  

While Rari had been “reliably informed” that government had been advised that payroll system will be unable to differentiate between non-unionised employees and unionised employees for purposes of an increment which made him conclude that there would be no unilateral increment, he was shocked on 31 March 2016 when he received a Directive dated 30 March 2016 authored by DPSM, Ms Ruth Maphorisa, announcing a unilateral salary increment for all public officers, of 3 %.

Rari said the Directive shocked him because they have for the last several years negotiated salary increases through the Public Service Bargaining Council (PSBC). “Last year we were able to achieve a 6 % increase following extensive negotiations,” he says in his affidavit.  

Rari argues that the decision to proceed with a unilateral increment is undoubtedly a breach of the duty to bargain in good faith. He states that government ought to have returned to the PSBC following the noting of appeal. “Even if one assumes that the PSBC was dysfunctional, its dysfunctionality or non-existence did not negate government’s obligations to bargain at the workplace on an individual basis with the unions that fall under BOFEPUSU,” writes Rari.

According to BOFEPUSU secretary general, whether there is PSBC or not, their members will always have a right in law to bargain collectively for their members as long as they remain recognised and do not breach resolutions of the PSBC. “Any unilateral changes to the remuneration of public officers falling within the scope of the PSBC is thus unlawful,” he says.  

PSBC was ready to start verification of members

Meanwhile the PSBC was ready to kickstart the membership verification process for recognised unions to prepare for salary negotiations. The General Secretary of the PSBC Mr Patla Ulaula had written to recognised unions in reference to the Court of Appeal ruling of 17th June 2016. He stated that the Council had been instructed to conduct a determination of union membership figures. He further wrote that they were still studying the judgement with the view to ensure that its contents are sufficiently internalised and effectively implemented.

Ulaula appreciated that the Court of Appeal has not specified any timeframe for the verification process, but he stated that it is a consuming and engaging process that requires more time and human resource efforts and there is need to be diligent and pay attention to detail. He also communicated that they will be done with their internal processes by around July 5th and should be in a position to invite unions to submit their packages by around July 8th.

But following the BOFEPUSU application before the court seeking a review of the decision to unilaterally implement a 3 percent salary increase, PSBC may be forced to revise its dates because the court process will also take a bit of time. Public servants will once again have to give the courts time to deal matters of law before actual bargaining starts.

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