The quest for collective bargaining and reiterating working class agenda
Correspondent | Tuesday February 14, 2017 16:27
This presentation, maybe obviously so, will not belabour the legal nuances of collective bargaining. Nor will it delve into how collective bargaining works within the legal framework provided by both legislation and the “contractual” obligations for collective bargaining in labour agreements. To my mind a Government can put in place a multitude of legislative enactments that speak to the rights of workers and the recognition of collective bargaining, but such legalisation and the recognition of collective bargaining are meaningless without the appropriate constitutional protections and the political will to give voice to the intention of such bargaining and legislation.
As reflected in both Botswana Land Boards, Local Authorities and Health Workers Union And Two Others Vs The Director Of Public Service Management And Another CACLB-043-11, and Attorney General v Botswana Landboards and Local Authorities Workers’ Union and others 2013 34 ILJ 1875 the Court of Appeal (CoA) defined the legal framework of strike action and consequently collective bargaining in a narrow restrictive sense.
The approach by the CoA was a strictly legalistic one, which, in my view at least, failed to take into account a broader more purposeful approach to the legislation in the context of what a democratic society seeks to achieve.
What value is a collective labour agreement or legislation when by the stroke of a pen, a Government can declare that Teachers form part of “essential services” and deny them the right to strike? What value is a collective labour agreement if the disputes arising from it are ultimately resolved by a Judiciary beholden to the Executive? From the onset it must be emphasised that collective bargaining is intrinsically connected with the “state of democracy”. A genuinely democratic society will engage in dialogue, because that dialogue forms the foundational principles of a democracy, conversely the refusal to engage in dialogue is the antitheses of democratic governance . Similarly, that the recognised right to universal suffrage and secret ballot form an essential and integral part of our constitutional democracy; and that without a functional constitutional democracy, collective bargaining and the advancement of the worker agenda (in the absence of a worker revolution) cannot and will not succeed. Furthermore, it must be recognised that the historical development, the philosophical premise and the constitutional framework for a democracy pale into insignificance against the attitude and approach that the government of the day takes towards the implementation of those principles and the rule of law.
The state and the success of a constitutional democracy must be gauged then, not only within the legal framework in place (a constitution and legislation) that provide the safeguards against the erosion of the rule of law, peoples inalienable rights and the regularity of election but more fundamentally as against the political will to implement and advance democratic principles, the recognition of inalienable rights and the transparency of the vote. A constitution (and legislation) provides the soil in which the seed of democracy may and ought to grow, but whether that soil is rich and fertile or arid and barren depends on whether the soil is cared for or destroyed by the manner in which a Government implements its policies. Whether the seed of democracy flourishes or withers away ultimately lies in the hands of those elected and the courts. A progressive constitutional framework is as good as the progressive Government that adheres to it; or as bad as it is regressively interpreted by an authoritarian Government with a partial Judiciary. Collective bargaining and the furtherance of a working class agenda can only be advanced (in the absence of a workers revolution, as I already said) through dialogue and a progressive political will, with appropriate policy implementation. Since the elected (members of Councils and Parliament) drive the policies under a banner of democratic principles (and of course the implementation of a working class agenda) and the courts ensure that such policies (implemented through legislation) comply with the constitution (the rule of law) no discussion on the state of democracy can be made without reference to how the policy makers are elected (universal suffrage and the vote) and the independence of the Judiciary.
Once again recognition must be given to the position that it is elected officials, the President (albeit elected by Parliament and parliamentarians by the national ballot) that appoints Judges . The same Judges that ultimately have a say in the laws that interpret the rights of workers. Almost 200 years ago, in 1836 the world’s first modern labour movement was established in England, the “Working Men’s Association” . In recognition of the importance of elected officials driving the agenda of the working class, the “Working Men’s Association” realised that without the ability to ensure that elections were conducted freely and fairly, the implementation of their agendas would fail. Within a year of the organisation’s formation, in 1837 it had formed committee that included six members of the British Parliament that lead to the creation of the “Peoples Charter” in 1838.
The Peoples Charter set out the six main objectives for the movement. These form the basis of the current system of democratic Governments and elections around the world today. The People’s Charter provided the outline of an act to “provide for the just representation of the people of Great Britain in the Commons house of Parliament; it embraced the principles of universal suffrage, no property qualification (for the right to vote), annual Parliaments, equal representation, payment of members (of Parliament), and vote by secret ballot”.
What it is indisputable in a democratic republic such as ours, is that collective bargaining, in the form of a political dialogue, is a founding principle of our national constitution and democratic philosophy. Our representative democracy with a written Constitution of basic rights that protect the minority from being completely overridden by the majority, is characterised by governing according to the rule of law under which the Government of majority is unable to take away the inalienable rights of any persons (even those in a minority). The elected are bound by an oath to the Constitution , voting “together” in dialogue to create laws that address the concerns of the electorate in a democratic manner in parliament; that is by a majority vote.
As a constitutional democracy, all interpretations of constitutional provisions ought to ensure that the disadvantaged can speak, and that as a consequence those that are not disadvantaged are compelled to hear and listen to the voice of what would otherwise be the voiceless. At the heart of our democracy, the electorate speak though their elected representatives whom they choose by way of the ballot. Thus the ballot must have meaning beyond merely being a piece of paper that accurately records a vote. The ballot and the casting of the ballot must not only be secure and transparent but furthermore the electorate must know whom they are voting for.
This raises two important aspects of critical importance; who is behind the politician and the manner of the vote. (to be continued)