BOSETU fights BIUST’s ‘unilateral’ statutes
Mpho Mokwape | Monday February 26, 2024 06:00
BOSETU has taken BIUST to the Industrial Court arguing that the university breached the Collective Labour Agreement (CLA), which was concluded and registered by the two parties.
The union, in its court papers, said the CLA was put in place so that the parties can maintain harmonious industrial relationship and that the union is able to negotiate and bargain for its members. “The trade dispute in issue is the breach of the CLA concluded between the parties on the basis that the union was not afforded the right to be heard as provided under the CLA before the university’s unilateral variation of the conditions of employment of the union’s members,” said the union. The alleged implementation of the university’s statutes was meant to address the employees’ condition of service among others employees, performance and salary increments.
Particulars of alleged trade dispute
According to BOSETU’s court papers, on October 14, 2020 and November 10, 2020 respectively, the parties reportedly concluded and registered a CLA by which the parties agreed to among other things maintain a harmonious industrial relationship by following the negotiation and consultation procedure therein.
As per the agreement by both parties, under the Performance Management System of BIUST, the performance contracts of BOSETU’s members for the financial year 2020/2021 ended on March 31, 2021. As a result, BOSETU members allegedly expected the payment of performance-based salary increments ranging from 1-3% and those increments are paid on an annual basis; a practice established and implemented consistently by the university over the previous years. “The above salary increments constituted a negotiable matter under the CLA and were to be tabled before the negotiating body named the Joint Negotiation and Consultation Committee (JNCC).
The salary increments, however, were not placed before the JNCC as obliged under the CLA,” said BOSETU. Further, the papers revealed that the salary increments were not awarded to the union’s members and that it was unexpected as the union’s members had signed performance contracts at the beginning of the 2020/2021 year; that a practice had been established where the performance-based salary increments were awarded on an annual basis and no communication regarding the award of salary increments was forthcoming from the university. “By letter dated August 11, 2021, the union sought clarity on the performance-based salary increment in light of its non-payment. Further, by letter dated August 19, 2021 the union wrote to the university giving notice of the university’s breach of clauses of the CLA,” said the union. The union explained that the university was breaching the CLA clause in the sense that the BIUST’s management presented the amendments to the ‘Staff Training and Skills Development Policy’ to the University Council for approval without first negotiating or consulting with BOSETU.
The policy allegedly was one of the policies tabled before the JNCC for negotiation, which negotiation was yet to be concluded and that the university’s management presented the amendments to the University Statutes and Performance Management Rewards to the University Council for approval without first negotiating or consulting with the union. “The University Statutes were before the JNCC and negotiations were yet to be concluded, but the Performance Management Rewards were not before the JNCC,” read union’s papers. BOSETU further noted that on October 14, 2021, the university issued a Memorandum titled ‘Revised BIUST Statutes’ by which it reportedly advised its staff and students that the university’s Council approved revisions to the University Statutes, and such Revised Statutes were operational with retrospective effect from September 16, 2021. The union said, however, at the time of the issuance of the memorandum, the parties were engaged in negotiations over the Revised Statutes before the negotiating body called the JNCC. “The negotiations before the JNCC were adjourned at the time the memorandum was issued and therefore had yet to be concluded. The university, however, issued the memorandum despite the fact that negotiations before the JNCC had yet to be concluded,” the union said.
The union said upon receipt of the memorandum they wrote a letter to the university dated October 18, 2021 expressing its objection to the memorandum and went further to state that the memorandum undermined the CLA between the parties. The union also requested that the university withdraw the memorandum and the university subsequently issued a memorandum titled ‘Approved Policies and Guidelines’ dated November 15, 2021 to which approved policies and guidelines were attached. The union further said by letter dated November 30, 2021, raised complaint that the above memorandum flouted the JNCC’s mandate and requested a withdrawal of the policies attached thereto.
Substantive Fairness
According to the union, the procedure under the CLA is designed to avail the university the opportunity to advance reasons for any changes to the employment terms and conditions of union’s members. “By circumventing the procedure under the CLA, the university has insulated itself from accountability and avoided its duty to provide reasons for its administrative acts, all of which adversely affect the union and its members,” argued the union. Further the union pointed out that it is indisputable that the university acted unreasonably and unlawfully in its circumvention of the procedure of the CLA in that no other administrative body would have conducted itself in such a way. Any other administrative body would have complied lock, stock and barrel with the provisions of the CLA, thereby avoiding legal proceedings.
BOSETU noted that in that regard the university’s conduct is therefore substantively unfair.
Procedural fairness
“According to clause 10.1 and 10.2 of the CLA, the JNCC was established to facilitate consultation and negotiation as the sole negotiating and consultation body between the parties. At clause 5.1.1, the university undertakes to consult or negotiate with the union on changes to its Policies, Rules and Regulations that affect employees, and also undertakes to ensure that members of management comply with the conditions, procedures and spirit of the CLA,” reads union’s papers. The union argued that negotiable matters between the parties are set in the CLA where reference is also made to Section 48(4) of the Trade Unions and Employers’ Organizations Act, of which it is required to bargain with the union in good faith on matters including a remuneration and other terms and conditions of employment, including the physical conditions under which employees are required to work, employment benefits, employment policies concerning, the recruitment, appointment, training, transfer, promotion, suspension, discipline and dismissal of employees among others.
The union argued that in violation of the CLA provisions, university’s management presented the amendments to the ‘Staff Training and Skills Development Policy’ to the Respondent’s Council for approval without first consulting or negotiating with the Applicant under the JNCC. The Policy constitutes negotiable matter under the CLA and was to be negotiated meaningfully and seriously prior to implementation according to the procedure under the CLA. “In further violation of the outlined CLA provisions, university’s management presented the amendments to the University Statutes to the university’s Council without first negotiating or consulting with the union under the JNCC,” said the union. More over the union explained that the university statutes constitutes both negotiable and consultative matter under the CLA and was to be negotiated meaningfully and seriously prior to implementation according to the procedure under the CLA. In further contravention of the above-stated CLA provisions, the union revealed that university’s management presented the amendments to the Performance Management System to the union’s council without first negotiating or consulting with the applicant under the JNCC. The Performance Management System constitutes negotiable matter under the CLA and was to be negotiated meaningfully and seriously prior to implementation according to the procedure under the CLA.
“By circumventing the procedure set out in the CLA through its presentation and implementation of amendments to the ‘Staff Training and Skills Development Policy’, Performance Management System, and University Statutes without consulting or negotiating, as the case may be, with the union under the JNCC, the university bargained in bad faith and acted in breach of the provisions of the CLA, which acts ought to be set aside as procedurally improper and therefore unlawful,” pointed BOSETU. BOSETU also emphasised that in furtherance of the procedural improprieties, by issuing the memorandum dated October 14, 2021 which communicated the approval of the amended university statutes, which were to operate immediately and with retrospective effect, and without negotiating with the union under the JNCC, the university acted in breach of the provisions of the CLA. Further that the university acted unlawfully in that it failed or neglected to give due effect to the union’s members’ right to be heard, as in this case where an adverse decision was made against them without a hearing and which unlawfulness is compounded by retrospective effect of the memorandum. In conclusion the union said finally, by issuing the memorandum dated November 15, 2021, to which amended policies were attached and which policies constituted form negotiable and consultative matters, without negotiating or consulting with the union under the JNCC, BIUST acted in breach of the CLA, and which Memorandum ought to be set aside as unlawful.
Relief sought by BOSETU
The union is seeking among other reliefs an order declaring that the university’s memorandum dated October 14, 2021 is unlawful and contrary to the Collective Labour Agreement concluded between the parties, an order reviewing and setting aside the university’s memorandum dated October 14, 2021. It is also seeking an interdict restraining the university from implementing the memorandum dated October 14, 2021 pending the determination of this application and an order directing the university to compensate the union’s individual members for the financial loss occasioned by the implementation of the memorandum dated 14, 2021 from September 16, 2021 to the date of this order. “An order granting us the costs of suit and an order granting any further and/or alternative relief,” concluded the union. The union is represented by Kambai Attorneys while Kewagamang Legal represents BIUST.