Court nullifies BURS �commitment letters�
Mpho Mokwape | Friday August 28, 2015 16:18
Judge Tapiwa Marumo yesterday granted the Botswana Public Employees Union (BOPEU) an interim interdict to suspend the ‘commitment letters’ that the union had alleged were forced on its members to intimidate them to abandon the strike and return to work.
The commitment letters read: “I confirm that I wish to voluntarily approach management with a view to return to work.
I shall not be seen in any manner to be participating in a go-slow during working hours; I shall not interfere with the security of BURS facilities either electronically or others; the BURS General Conditions of Service shall continue to apply to me and I advise that I understand the above conditions and accept to be bound by them in full”.
When granting BOPEU the sought relief, Marumo said she was satisfied that they have arguably presented their case and that they have laid down considerable points in regards to their application.
“After much consideration and listening to both counsels, I will grant the relief sought by the workers and the interim interdict is hereby granted,” she said.
She also ruled that the matter was urgent, and allowed the applicants to amend their main application of intimidation to also include the lock out.
Earlier, BOPEU attorneys, Joseph Akoonyatse and Mboki Chilisa presented the workers’ arguments on basis of urgency; amendment of the filed application and interdict sought on the BURS letters. When addressing the urgency part and the relief sought, Akoonyatse charged that the matter was urgent because the issue of salary increment, which had led to the industrial strike, remained unresolved while BURS decided to go the route of self help and intimidate workers to fully return to work.
He said forcing workers to sign the letters and return to work while the industrial strike was still ongoing and even without engaging the union, as representative for the workers, was unlawful.
“While the industrial strike was ongoing, the workers got to know of the commitment letter that was issued on the 5th of August 2015 and workers were told to sign in order to return to work, all this happened while negotiations were ongoing,” he said. He explained that BURS management went behind the union’s back and intimidated workers by threatening, thus breaking the laid down strike rules.
Akoonyatse also submitted that despite the respondents claiming that they did not issue the letters to intimidate the workers, there was no clause in the striking rules that other party was entitled to self-help therefore arguing that BURS management used its muscles and force on the workers.
“We had issued a go slow notice so they victimised the workers, undermined the industrial action because there is no point for workers to engage in the strike if the employer does not feel the harm so it is important for us to be heard on urgency.”
He argued that even the contents of the letter were not to be accepted as they were already part of the workers’ contractual conditions.
Chilisa said the issue of lock out that the workers were threatened with, if they did not sign the letters, had to be addressed as it was tied to the letters.
He said after the letters were issued and they had already taken action and filed for the interdict, new developments took place therefore amendment to the main application was necessary to address both the issue of lock out and the commitment letters as one.
“The legality of lock out is tied to the commitment letters and we feel it is unlawful as it was not carried in respect to the dispute of interest but rather dispute of rights, it is only carried in respect to the signing of letters but does not address the issue at hand, which is the dispute of salary increment,” he said.
Countering the applicants’ arguments, BURS attorney Lawrence Khupe charged that the applicants had failed to act on their rights, therefore there was no urgency and that they have known about the letters for days.
He said there was no urgency because the strike was an indefinite one whose duration was unknown hence the application be treated in the normal way.
“The applicants did not satisfy the legal requirement on the issue of urgency and why they wanted an interim interdict on the letters, while they have known about them and the intention of the BURS management, to undertake lock out to workers who return to work and only to practice a go-slow,” he said.
He said the workers returned to work voluntarily and that it was the management’s rights to safeguard its interest by being assured that the workers would be fully functional, especially that the organisation handles millions every day. “The employer has the right to ask workers when they would return to work and under what condition, so the letters were legal and the lock-out was legal too as according to the Trade Dispute Act, an employer can engage a lock-out even if the strike is ongoing until it is resolved as long as the 48 hours notice is issued,” he said.