The union had instituted the proceedings against FNB following the bank's failure to comply with an interim court order that they should not pay non-unionised employees an eight percent salary increase. The order was to remain in place until the conclusion of a case filed by the union seeking to stop the bank from paying the increment because the two parties were still negotiating the salary hike. The union felt that the bank was undermining the spirit of collective bargaining by effecting the payment. The Industrial Court has made a final order that the salary increase should be halted. This week the union and FNB entered into an agreement in court following consultations with their lawyers. The agreement states that the union has withdrawn the contempt of court proceedings against the bank. The bank is going to implement an eight percent salary increase to unionised employees, which would be similar to the one awarded to non-unionised staff. The salary increase would be backdated to August this year. The order of a salary increment for unionised employees will be implemented on November 20. During the negotiations, between the union and FNB, the salary increase that has been implemented will not be used to the advantage or disadvantage of any party. Meanwhile before the two sides reached agreement, the union's lawyer, Joseph Akoonyatse said that the application for contempt of court proceedings against FNB was not frivolous. He said the union rejected the eight percent increase while they were still negotiating because it was an unprecedented development. He submitted that the union felt that it would undermine the negotiations to accept the eight percent increase offered by the bank. In the application, the union wanted the court to declare that FNB was not entitled to effect the salary increase to non-unionised employees pending the determination of an appeal. The union wanted the court to declare that FNB was bound to comply with the order issued by court. It prayed that FNB be declared in contempt court of court and therefore should be punished. In response, FNB lawyer Mboki Chilisa maintained that the Industrial Court does not have jurisdiction to entertain contempt of court proceedings. He said that the prejudice that the union contemplated has not materialised. He said the union did not lose any members, adding that the negotiations are still going to take place.
Chilisa said in the case of Debswana versus Botswana Mine Workers' Union, it was established that a court may only exercise contempt jurisdiction if it is explicitly conferred with such jurisdiction or it exercises inherent jurisdiction. He insisted that the Industrial Court has not been explicitly conferred with jurisdiction to deal with contempt of court proceedings. Chilisa stated that the reasoning in the Debswana case is sound and no cogent reasons have been set by the union for departing from it. He submitted that the union has failed to make out a prima facie case of contempt. He said by registering an appeal, the Industrial Court automatically suspends execution of its judgments. He dismissed the application for contempt of court proceedings against the bank as frivolous. He said at the time the salary increase was paid in October, an appeal had been noted against the interim order. "It is also not in dispute that the position of the law and practice for the last 12 years has been that the noting of an appeal renders the judgment that is under appeal, inoperative until the appeal matter is disposed of."
