The Industrial Court has dismissed an urgent application by Botswana Mine Workers Union (BMWU) against Tati Nickel Mining Company with costs saying it was frivolous and vexatious. BMWU rushed to court last month seeking an order to declare that Tati Nickel Mining was in breach of collective labour agreement entered into between the two parties.
The union wanted the court to declare that the company was in breach of a duty to bargain in good faith and consult meaningfully when it decided to unilaterally implement a Voluntary Separation Scheme communicated through a brief dated February 27, 2009.
BMWU sought a court interdiction restraining the company from implementing the terms of the Voluntary Separation Scheme.
Justice Herald Ruhukya ruled in favour of Tati Nickel Mining confirming arguments raised by their attorney Mabakiso Chilisa that the application was riddled with contradictions; that there was no basis for an interdict; and that the applicants failed to demonstrate urgency. The judge said that the management had consulted the employees on what the company was going through but the union still demanded salaries of all employees including the general manager, cost of renting houses, cost of avis rentals and cost of education.
The company did not oblige, he said, but invited employees to participate in a voluntary separation package if they so desired. He agreed with Chilisa that the applicants failed to attach a copy of the February 27 , brief on which the application was predicated. He assumed that the brief did not exist. Joba Nnoi represented BMWU.
"To my surprise Nnoi for the applicants did not respond to Chilisa's arguments. He said nothing to counter the point. He only has himself to blame for the consequences," Ruhukya said. He asserted that after going through the papers, he learnt that the only brief issued by the company inviting the employees to participate in a voluntary separation scheme was issued on February 23, 2009.
"Parties rushing to court must ensure that their pleadings are properly prepared and contain no errors," he said.
Ruhukya disagreed with Nnoi's argument that should non-unionised employees be allowed to participate in the voluntary separation exercise, it would create a precedent which would have the effect of eroding the power of the BMWU to negotiate on behalf of its members. "
This argument shows an ignorance of the dynamics of a workplace. There will never be a situation where the entire workforce in an establishment belongs to a particular union," he stated. He added that those who opt to join then enjoy the benefits accruing, while those who opt out simply live to fight their battles as bes they can.
The judge was not pleased with the manner in which BMWU confused consultation with negotiation. He said the company ended the consultation process when it issued the brief. He said there was poor understanding of the law regarding consultation and negotiation on the part of the applicants. He said the employees were not entitled to a negotiation with the management.
Ruhukya awarded the costs to Tati Nickel Mining on grounds that BMWU has a history of rushing to court without proper preparations for their cases citing recent ones where judges were lenient in their favor.
"Obviously the applicant did not learn from its mistakes. It came rushing to court almost a month after the release of the brief with an application seeking to interdict the respondent over a matter falling in the arena of consultation. Would it be right for them to escape a costs order a second time? I think not," he said.