31 October 2018

Botswana: De-Recognition of Trade Unions Tested

Four public sector trade unions on Friday dragged government to court challenging a decision by Directorate of Public Service Management (DPSM) to de-recognise them through a letter dated 16 October 2018. The letter raises serious doubt as to the validity of the continued recognition of the trade unions, suggesting that they have no entitlement whatsoever to continue to be recognised.

To justify the decision, DPSM Director Goitseone Naledi Mosalakatane claims they do not have a record of the unions' compliance with Section 46 of the Public Service Act. The import of her letter is that the unions currently enjoy recognition at the whim of DPSM and the existing agreements that they currently have are not valid and binding. Mosalakatane gives the trade unions until 31st July 2019 to comply. Section 46 of the Public Service Act reads as follows: "A trade union which is representative of one third of the employees of the employer engaged in the same trade as members of the same union, may apply to the director for recognition for purposes of collective bargaining".

The trade unions, Botswana Landboards, Local Authorities and Health Workers' Union (BLLAHWU), Botswana Sectors of Educators' Trade Union (BOSETU), Botswana Teachers' Union (BTU), and the National Amalgamated Local Central Government and Parastatal Workers' Union (NALCGPWU), argue that they have always had recognition agreements with government long before the inception of the Public Service Act in 2010.

In a founding affidavit, which formed the basis of the arguments on Friday at the Francistown Industrial Court, the National Organizing Secretary of NALCPWU, Johnson Motshwarakgole said the matter is of extreme urgency. He argues that the rights of the unions are sacrosant and entrenched, both in the statutes and agreements. Therefore, he said, the date of 31 July 2019 is meaningless to them because they have no intention whatsoever to seek recognition afresh in terms of section 46 of the Public Service Act. As far as they are concerned their recognition which predates the promulgation of section 46 of the Public Service Act continues to be valid and has been regarded as if it were as valid as recognition that has been granted under section 46 of the Public Service Act, submitted Motshwarakgole.

"In any event, it is doubtful whether the threshold set out in section 46 for the recognition of trade unions in the public sector is still applicable in view the threshold that has been introduced by section 35 (4) of the Trade Disputes Act 2016. It is certainly arguable that there has been an implied repeal of the threshold in section 46 of the Public Service Act," argues Motshwarakgole.

BACKGROUND

In 1975, the NALCGPWU which was then known as the Botswana National Union of Government Manual Workers was recognised by the Government of Botswana in terms of the legislation that was then applicable, viz. the Trade Unions Act number 24 of 1969. The Trade Unions Act was the legislation that was in force prior to the introduction of the Trade Unions and Employers Organisation Act. It has been amended a number of times in the last several decades. Both Government and the NALCGPWU have continued to regard the latter's recognition agreement as binding and enforceable notwithstanding legislative changes.

For many years only industrial class workers were permitted to unionise in the Public Service. In the 2004 significant amendments were made to the Trade Union and Employers' Organisation Act [Cap 48:01] which enabled public servants who are not industrial class workers to unionise for the first time in the country's history. Prior to the 2004 amendment, the First, Second and Third Applicants merely existed as associations.

Following introduction of the aforesaid amendments to the Trade Union and Employers Organisation Act, which sought to give effect to the Botswana's International Labour Organisation obligations, the First to Third Applicants were registered as trade unions and soon thereafter obtained recognition from the Government of Botswana. At the time that they were granted recognition the public service was regulated by different pieces of legislation, with different employers for each sector. In respect of the teaching profession, in the public service, the employer was represented by the Department of Teaching Service Management. The First to Third Applicants were granted recognition in terms of section 48 (4) of the Trade Union and Employers' Organisation Act. The recognition agreements annexed hereto were concluded pursuant to recognition in terms of the said statutory provision.

In 2010 the legislature consolidated the various pieces of legislation that had hitherto governed employment in the Public Service and promulgated the Public Service Act No.30 of 2008. The Public Service Act created one legislative regime for the entire public service with the exception of the disciplined forces, judicial officers, Members of Parliament and Ntlo ya Dikgosi who continue to be regulated by different dispensations.

The Public Service Act came into force on 1 May 2010.

Section 51 (1) of the Public Service Act required that as soon as practicable after its commencement, the representatives of Government, in its capacity as employer, and all recognised trade unions, whose members are public officers shall conclude an agreement on a constitution for the Public Service Bargaining Council (PSBC). Significantly, the provision talks of all recognised trade unions, it doesn't require that the recognition ought to be have been pursuant to an application brought in terms of section 46 of the Public Service Act. The Applicants were all recognised trade unions at the time that the Public Service Act became operative. The Applicants together with other recognised unions therefore met in order to establish the Public Service Bargaining Council.

An issue was raised at a meeting of the Applicants and DPSM held on 28 June 2010, in respect of validity of recognition obtained prior to commencement of the PSA. It was raised by the DPSM. At the time the office was held by Ms. Festinah Bakwena. The minutes of that meeting, which although are unsigned have been previously confirmed under oath, by the then DPSM, Bakwena. They were confirmed in Case No. IC-App 28/2010.

DPSM asserted at the 28 June 2010 meeting that the recognition that was extended to the Applicants under the Trade Union and Employers Organisation Act was no longer valid. In response, the trade unions maintained that the recognition was valid. The statement uttered by DPSM precipitated an urgent application by the trade unions in which they sought to interdict DPSM from giving effect to her assertion that trade unions needed to be recognised afresh in terms of section 46 of the PSA.

During the course of the urgent court proceedings, DPSM conceded that trade unions did not need to be recognised afresh. She further conceded that the recognition obtained in terms of the Trade Union and Employers Organisation Act was valid for purposes of Public Service Act. An interdict was granted against the First Respondent by Justice Tshosa. The interdict was to operate pending an application for final relief in which the Applicant would seek to set aside the decision of the First Respondent to require that the Applicants apply for recognition afresh. The purpose of the application for final relief would have been to confirm that the Applicants for all intents and purposes continue to be recognised trade unions with all the rights that recognised trade unions are entitled to in law and in terms of their agreements. In view of the fact that DPSM threw in the towel it became unnecessary to institute proceedings for final relief. The ruling delivered by Justice Tshosa is reported as Botswana Landboards and Local Authorities Workers' Union and Ors vs. Director, Public Service Management & Anor 2010(3) BLR 351.

Following delivery of the aforesaid ruling, the applicants joined other recognised trade unions in the settlement of a constitution for the PSBC. DPSM abandoned its unmeritorious contention that the recognition of the Applicants was defective or lacking in some respect.

The constitution of the PSBC was duly finalised and registered with the Commissioner of Labour in 2012. The Applicants took their place at the PSBC once it was established. They went into the PSBC through what was termed an Acting Jointly Arrangement. The name of their Acting Jointly Arrangement was BOFEPUSO.

It suffices at this juncture to note that in terms of the constitution of the PSBC only a recognised union could be admitted into the PSBC. When the Botswana Government Workers' Union, in 2017, sought to enter into an Acting Jointly Arrangement with the Botswana Public Employees' Union, the First Respondent rightly pointed out that the Botswana Government Workers Union could not do so because it was not recognised.

Since promulgation of the PSA, apart from the meeting of 28 June 2010, and the recent developments which I shall deal with later, the Government of Botswana has never at any point in time sought to suggest that Applicants' recognition was defective or needed to be renewed in terms of section 46 of the PSA.

Post the commencement of the Public Service Act there were numerous disputes between the Applicants and the First Respondent that came before the courts. In all the disputes that came before the courts, without exception, the Applicants asserted that they were duly recognised as collective bargaining agents by the First Respondent. At no point in time was this assertion ever gainsaid or denied, to the contrary, the assertion was on all occasions accepted without demur. By way of example, I refer the Honourable Court to the pleadings filed under cases No: UAHGB-00219-16; UAHGB-00147-13; UAHGB-00061-14. To avoid prolixity I shall not annex the pleadings because they are matters of public record. Should this issue be disputed I will produce the pleadings together with the judgments delivered in the said matters.

In 2017 the PSBC became defunct after the largest trade union in the public service, the Fourth Applicant resolved to pull out of the PSBC. The Fourth Applicant's decision to pull out of the PSBC was the result of being frustrated about the First Respondent being continuously found, in dispute after dispute that came before the courts, to have bargained in bad faith.

The other Applicants could not get admission to the PSBC on their own. This is because on a proper interpretation of the constitution of the PSBC they must be at least one union that on its own meets the one third threshold for admission into the PSBC.

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