Judgment due in BOFEPUSU, Khama wage review case
Oarabile Mosikare | Tuesday June 9, 2015 15:30
On Monday April 7, 2014 the Daily News reported on a speech given by Khama at Taung on Thursday 3 April, in which he stated there would be a four percent salary increase for all public servants starting from April of that year. The announcement came before government sat down to negotiate with the public sector unions.
Yesterday, Leburu said he would deliver his judgment on August 31. Curiously, the Attorney General representing both President Ian Khama, and the then Directorate of Public Service Management boss Carter Morupisi, did not attend yesterday’s case.
“The respondents in typical Attorney General fashion have not bothered to file any court papers and they are not here,” said Mboki Chilisa for the union told Leburu.
This matter previously came before Leburu last year on a certificate of urgency and was struck off the roll on account of the fact that the applicants had failed to make out a case for the hearing of the matter on an urgent basis.
On appeal from the High Court, the Court of Appeal concluded that the matter ought to have come for hearing sooner than it did.
Chilisa submitted that Clause 8.1.1 of the Procedures for Meetings and Negotiations (PMN) within the Bargaining Council’s make-up prohibits bypassing the negotiation procedures.
“By-passing the negotiation procedure means making offers directly to the employees whose terms and conditions the Bargaining Council seeks to settle.
“By-passing the negotiation process is a classical form of bad faith bargaining because it conveys the impression to the employees that they do not need the Bargaining Council in order to receive a favourable change to their terms and conditions of employment,” said Chilisa. He also said Clause 8.3.1 and 8.3.2 of the PMN prohibit negotiating through the media. “Clause 8.3.1, in clear and unambiguous terms, prohibits the tabling of offers through media and making known the likely outcome of the negotiation process through the media. Clause 8.3.2 requires that if the parties wish to inform the general public of the progress being made in the negotiations they should make use of joint statements as opposed to issuing unilateral statements.”
The lawyer also said the duty to bargain in good faith prohibits the unilateral variation of any terms and conditions regardless of whether or not negotiations are on-going at the time of variation. “The making of unilateral changes undermines the role of the Bargaining Council, which has been established to settle the terms and conditions of employment. It conveys the notion to members of the applicants and civil servants that they do not need the unions because they can get favourable changes without them.
“It also does not matter whether or not the improvements sought to be granted are favourable ones or not. It undermines the unions,” submitted Chilisa.
He said the duty to bargain in good faith applies to the Government of Botswana, the same way that it does to an employer in the private sector.
“Any contention that the content of the duty to bargain in good faith is different for government to what it is for private employers is therefore without merit and runs contrary to the clear legislative intent, which is that the duty is the same for all employers.”