Judgment day awaits BOPEU, Gov�t vs BOFEPUSU
Innocent Selatlhwa | Friday April 21, 2017 18:37
Motswagole of the Gaborone High Court, nullified the unilateral decision by Government to award salary increment to non-unionised employees and those who are not admitted into the Public Service Bargaining Council (PSBC).
Motswagole ruled in favour of the Botswana Federation of Public Private Parastatals Sector Unions (BOFEPUSU) stating that Government acted unlawfully by unilaterally adjusting the salaries of the civil servants by three percent on March 30, 2016, and as such, is also restrained to award a four percent increase announced recently.
BOPEU prays that the appeal under case No. CACGB-057-17 be heard on an expedited basis and all time lines relating to the filing of the heads of arguments and incidental matters be heard by the Court.
BOPEU attorney, Dutch Leburu pleaded with the Court to allow the Union members to continue benefiting, as they would be affected in their daily lives. He argued that the members would be affected in their taxes, medical aid membership, pension deductions and other obligations they enjoyed as part of the three percent increment.
“My client has over 29,000 members who have families to support. Taking away the three percent they have enjoyed for a year will affect not just them, even their unborn children as some will now no longer qualify for medical aid while others who qualified for loans because of the three percent will face financial difficulties,” he said.
Leburu said in accepting the three percent, the appellant never waived its right to negotiate as and when the process and legal disputes relating to the PSBC have been resolved. He argued that BOFEPUSU would not suffer any prejudice, as their members had never benefited from the three percent.
Directorate of Public Service Management (DPSM) representative Advocate Timothy Bruinders argued that BOFEPUSU had no right to interdict the three percent, as their members were not affected.
“There is no way that the non BOFEPUSU members can be affected by the constitution of the PSBC as they are not part of it. Disciplined forces, management and members of recognised trade unions which are not affiliated to BOFEPUSU,” he said.
Bruinders said it was important to note that BOFEPUSU never benefited from the three percent and that those who did never objected to it with understanding that there could be a top- up after bargaining.
“Also, it will cost Government greatly to balance things like pension deductions and taxation of members. This is despite that BOFEPUSU will not be prejudiced. This will also make the Government to be in contempt of Court and officials will face jail,” he said.
Representing BOFEPUSU, Advocate Duma Boko argued that the case ought to be heard by Motswagole before it could proceed to the High Court unless there are exceptional circumstances, which he said the appellants failed to prove.
Boko also said the appellants failed to show how not granting them stay of execution could prejudice them. “There are no facts presented here to show that indeed the appellants would suffer prejudice. Specific employees complaining should be before Courts and not their employer.
There is nowhere they clearly state the prejudice they suffered.” he said. In response, Bruinders said prejudice will be suffered as the case affects a huge number of employees and that they will be disadvantaged if they were to earn less. He also said it will cost Government to bring an expert from Israel to configure the system.
Boko said the prejudice to be suffered by BOFEPUSU is in that no salary adjustment should be made outside the PSBC. “The PSBC is a legal forum set up by Act of Parliament to exclusively deal with the issues of bargaining. They were told by Court that it is unlawful to make any pronouncements and now want the Court to allow them to keep on doing the same thing,” he said.
Boko said the appellants failed to establish any prospects of success, which is a requirement for a stay. He also argued that those outside the PSBC could negotiate with Government but the final outcome can only come through the PSBC. Justice Gaongalelwe reserved judgement and stated that he would announce the date soon.