Manual Workers Appeal Industrial Court Judgement
Goitsemodimo Kaelo | Monday January 16, 2017 16:12
The Industrial Court dismissed the urgency of the matter in which the Union was challenging the decision by Botswana Unified Revenue Services (BURS) to withdraw its recognition as a bargaining party at the workplace.
NALCGPWU had in December 2016, approached the Industrial Court on certificate of urgency seeking inter alia to review and set aside the respondent’s decision to implement its decision to withdraw the recognition of the union communicated by an internal memorandum dated November 23, 2016; to have the purported cancellation of the Union’s recognition agreement with the employer invalid.
The Union also pleaded for an order declaring that unless the Industrial Court authorised the withdrawal of recognition, the recognition of the Union by BURS management shall remain binding and of full force and effect.
In its judgement, the Industrial Court declined to hear the matter on an urgency basis, ordering that the applicant had failed to prove the matter was urgent and that any alleged urgency was in fact self-created.
The court also declared that the Commissioner’s withdrawal of recognition as at September 5, 2016 still stood and that no decision had been taken to withdraw the recognition.
In its application to the CoA, the Union through attorney Mboki Chilisa sought an order declaring that the dispute is urgent so as to warrant dispensation with the Rules of Court as regards time-limits and forms; the withdrawal and/or termination of recognition of the Applicant by the respondent as of November 23, 2016 be invalid and the applicant Union to continue enjoying recognition and all the benefits accruing thereto until such time that recognition is lawfully withdrawn.
The Union wanted an order of costs of appeal against the respondents.
The Union argued that the Industrial Court judgement was final in respect of a hearing in due course before the court will effectively deprive the applicant of the protection, which they sought from the industrial court in respect of the purported withdrawal of recognition by the respondent. “The refusal to hear the applicant’s application by the Industrial Court on an urgent basis effectively denied the applicant’s of the right to meaningful access to the court and protection of the law,” Chilisa argued. He further argued that the withdrawal of recognition has dire consequences for the applicant’s members.
He filed that being faced with what is fundamentally a denial of the right to protection of the law, and meaningful access to the courts, the applicant has been left with no option but to approach the highest court for an expedited hearing of appeal.
He indicated that following the judgement of the Industrial Court, the withdrawal of the recognition communicated in the letter by the respondent to the applicant and memo to its employees will be implemented, automatically making a hearing in due course academic, particularly in view of the fact that the applicant will in all probability lose membership as a result of the withdrawal of recognition.
He pointed out that the judgement failed to appreciate that Unions derived their strength from their membership and that they mainly functioned within the realm of the workplace.
This means that once recognition is withdrawn, the Union is unable to offer its primary service to its members, which is to bargain on their behalf better terms of conditions of employment.
“Without recognition, the employer will be at large to unilaterally implement changes to terms and conditions of employment.”
Opposing the appeal, BURS argued that the matter is not worthy to be adjudicated on by the CoA on an expedited basis and the issue of urgency should be disturbed.
The respondent stated in the answering affidavit, reiterating that the effect of the court a quo’s ruling is not final and dispositive of the dispute at hand.
It further denied that the livelihood of members necessarily has a bearing on the livelihood of the applicant’s members because there is no bar to the said members’ subscriptions being sourced and serviced otherwise than through its facilitation.
It also argued that the asserted effects of withdrawal are unavoidable consequences attached to any withdrawal of recognition and anticipated by the collective labour agreement between parties.
“There was also adequate notice of intention to withdraw the applicant’s recognition at the workplace given to the applicant as far back as January 20, 2016 upon realisation that the asserted membership of 380 awfully falls short of the requisite threshold for purposes of recognition at the workplace.”