BMC ordered to recognise union
Mpho Mokwape | Thursday April 18, 2019 13:29
The BMC was taken to court for refusing to recognise the union as a bargaining entity for its members who are employees of the commission.
Lobatse High Court Judge, Jennifer Dube recently ruled that BOPEU was entitled to be recognised by BMC as a bargaining entity on behalf of its members at the commission’s place of business.
The judge also said the union’s members constituted the requisite threshold of one third or more of all the employees of the commission who are eligible for unionisation. “The commission, by refusing to recognise the union as a bargaining entity, is violating the provisions of Trade Dispute Act as well as the Trade Union and Employees Organisation Act,” she said.
Judge Dube explained that trade union recognition worked as much in the interests of the employer as it does in the interest of the worker.
“Therefore recognition of trade unions was the backbone of collective bargaining as it creates the emergence of mutual obligations between the employer and the representative of the employees such as conferring in good faith with respect to employees’ conditions of employment,” she emphasised. “The right to association and register trade unions within the meaning of the Constitution is a fundamental right, but the right to form an association does not carry with it an automatic concomitant right to be recognised by the employers. However, non-recognition of trade unions for collective bargaining constitutes unfair labour practices,” he said.
The judge further pointed out that she was not agreeing with BMC’s assertion that there were more than one trade unions at bargaining meeting and that negotiations would be in bad faith.
She said without any evidence the commission was just speculating, especially that unions as well as employers have a duty to act and negotiate in good faith.
“Instead of BMC working towards balancing both the interests of the employees and of itself, it flatly refuses to recognise the union by applying some interpretation that I have some difficulty to fathom,” Dube said.
The judgement is a result of an application by BOPEU launched on March 12, 2018 seeking declaratory orders in terms of the notice of motion that they have met the required threshold, therefore the commission ought to recognise them as a union for its members.
The background of the matter is that the BOPEU has members who are employees by BMC. Out of a total of 1,014 of the employees who are eligible to unionise, BOPEU noted that 382 are its members.
Subsequently BOPEU asserted that they had met the requisite one third of members in order to be recognised by BMC in terms of section 35 (4) of the Trade Dispute Act.
However according the judgement, trouble started when BMC communicated that out 382 members of the union, 13 no longer worked for them and that 186 members of the union belonged to other unions.
In that circumstances, the union upon its application for recognition was denied on the basis that some of its registered members belonged to other unions, therefore deemed ineligible for purposes of recognising the union. Applicant was represented Ndadi Law Firm while Babuseng and Maswabi Attorneys appeared for the BMC.