BOPEU stops BHC in its tracks
Goitsemodimo Kaelo | Tuesday August 16, 2022 06:00
In a recent ruling delivered by Justice Christian Diwanga of Francistown Industrial Court, BHC is interdicted from filling three new posts that were recently advertised internally as the exercise is deemed to constitute a review of the entity’s organisational structure. Justice Diwanga’s latest judgment confirmed a rule nisi order issued by the same court on June 30.
“The respondents, its agents, employees, or any person(s) acting under the instruction of the organisation are interdicted from proceeding with the recruitment of any or filling of three posts advertised internally via vacancy circular No.5 of 2022–2023 pending consultation with the applicant on any alteration to its organisational structure, organisational structure review, or restructuring the workplace or alternatively pending the finalisation of the review application to be filled within 60 days,” read Diwanga’s judgment.
While BHC through its Director of Human Capital and Administration Sekgele Ramahobo denied that the move to create new posts constituted an alteration of its organisational structure, the court agreed with BOPEU that if BHC is allowed to go ahead with filling the new posts it will lose its right under the CLA.
“The respondent does not dispute that the post for Senior Estate Officer as it has been advertised does not exist in its current structure. By creating a post which is not on its structure, the respondent is in effect restructuring its organization structure,” read the judgment in part. The court said the argument that the post was created to increase service delivery cannot be the basis for BHC not to consult BOPEU on consultative matters.
The judge was against BHC’s notion that it planned to consult BOPEU when it carries out a comprehensive review, as that is equivalent to rewriting the CLA, which requires BHC to consult when it undertakes a review of its structure.
The court’s judgment follows an urgent application launched by BOPEU on June 28, which sought BHC to be stopped from filling new posts that BHC had advertised internally. BHC had advertised three posts of Senior Estates Officer (Estates Management) on June 22, which are not in its organisational structure. The move was challenged by BOPEU which has entered into a Collective Labour Agreement (CLA) with BHC that regulates the relations between them.
The CLA provides amongst others for negotiable and consultation matters.
It is on that point that BOPEU wanted the court to declare that BHC’s unilateral organisational structure review is unlawful and a legal nullity. Over and above seeking an interdict to stop the filling of the advertised posts, BOPEU also wanted BHC ordered to consult it on any alteration or review of its structure and restructuring of the workplace as per the dictates of the CLA. BOPEU wanted an order directing BHC to subject any proposed alteration to the Joint Negotiation and Consultative Committee (JNCC) for consultation within 60 days.