The Trade Dispute Act Section 41 (3) categorically stipulates that;
"Notwithstanding subsection (1), an employer is not obliged to remunerate an employee for services that the employee does not render during the strike or lockout in compliance with the provisions of this Part."
Put in simple terms, the Act gives the employer the option to exercise her discretion as to whether it is appropriate or in the best interest of the service not pay or to pay workers who are on a legal and protected strike. I argue below that in case of the on-going industrial action, it is in the best interest of the service and the public for the employer to pay workers for the period that they were on strike so that the backlog of work accrued during the strike can be performed retrospectively by workers who were on strike. In my argument, I will give extensive examples from the education sector about the damage that could arise if striking workers are not remunerated for the days that they were on strike.
The principle of No Work, No Pay is a common phenomenon worldwide under the circumstances. Though the decision to apply it rests with the employer, employers worldwide have found it difficult to implement it under the circumstances of a legal and a protected strike. It has to be bone in mind that the principle of No Work, No Pay can be applied on the reverse. While the employer has the power and prerogative to withhold salaries for services not rendered while employees are on a legal strike, employees also reserve the right to withhold their services for the work that they have not been remunerated for while on strike. After all, employees are not paid for physically showing themselves up at the work place, but rather they are paid for rendering service, so, if the employer decides not to pay for services not rendered, then she should not expect employees to render services that they have not been remunerated for because they were on a strike. In other countries where issues of industrial relations are at an advanced stage, the principle of No Work, No Pay is set aside in the case of a legal industrial action, but rather the two parties to the dispute agree as to how workers who were on strike will deal with the back log of work that accrued while they were on a strike. A case in point is the South African situation during a recent strike, where the unions and the employer had to agree that employees who were on strike will have to do work over the weekends, after hours and during school vacations in the case of teachers, to cover up for the time lost while on strike. Forfeiting public holidays, weekends, school vacations and working after hours are on their own punishment enough on workers if ever the intention is to punish.
If the employer stick to her guns and apply the principle of No Work, No Pay, employees will apply the principle of No Pay, No Wok in retaliation. This will have grave negative consequences on the education sector especially. The inescapable consequence of applying the principle of No Pay No Work by teachers for instance, will be that they will not do work that has accrued while they were on strike. Teachers will not teach some portions of the syllabus which should have been taught during the period of the strike. Consequent to this, they will obviously be a gap on what the students are supposed to cover in accordance with the dictates of the syllabus. This will impact negatively on the education of the children and subject them to a possibility of failure. It is also true that students, especially the completing ones, were supposed to be doing course work which contributes towards their final grade.
Coursework is carried out throughout the duration of the course that the child is studying. During an industrial action, which like the one on-going, and consequently during the time that schools are closed due to an industrial action (as is the case now) there is nothing taking place as far as course work is concerned. For instance, course work for subjects such as Design and Technology, Art, Home Economics, Physical Education, Agriculture, the Science subjects, etc are at a standstill and there is obviously a backlog of work as far as course work is concerned. So, if government decides to apply the No Work No Pay principle and teachers apply the No Pay No Work principle then students will not be assisted by teachers who were on strike on the course work backlog as it will be work that they have not been remunerated for.
This effectively means that there is a possibility of having a National Examination crisis yet again during the year 2011 if government mishandles the issue of No Work No Pay. Parents and members of the public will recall that the 2010 National Examinations were marred with controversy that resulted in form 4s missing the whole teaching term. This was because teachers could not agree with the Ministry of Education and Botswana Examinations Council over course work. Course work was not done on time as a result. The situation threw the whole exam into crisis and has plunged the future of thousands of young Batswana in a quagmire. We warn that if government will apply No Work, No Pay on teachers who were on strike the country will face another national examination crisis of probably the biggest magnitude ever.
Tobokani Nicholas Rari
BOSETU Vice SG & National Negotiator