We At BOPEU Believe Truth Set Them Free
Correspondent | Monday May 8, 2017 15:34
Herein I present the facts, the truths and the reality of what has transpired. We, at BOPEU do not believe in rhetoric. We believe in telling the truth, bare and pain as it should be told.
And when we have erred, we will not hide behind anyone or shift the blame. We will not even victimise others for our own self created misgivings.
We will admit our faults and seek to rectify our mistakes. We are proudly stating that as the matter(s) stand, we have not erred. We have done it all, and continue to do it all to protect and cushion our members, our organisation and this nation.
By a public press statement, the National Amalgamated Local, Central Government and Parastatals Workers Union the (“Manual Workers Union”), admitted trade union party to the Public Service Bargaining Council (“the PSBC”) under the acting joint agreement with Botswana Teachers Union (“BTU”), Botswana Land Boards, Local Authorities and Health Workers Union (“BLLAHWU”) and Botswana Sector of Educators Trade Union (“BOSETU”), constituting Botswana Federation of Public Sectors Union (“BOFEPUSU AJA”) announced termination of their membership with the PSBC on April 30, 2017.
The decision to terminate their membership of the PSBC by BOFEPUSU AJA followed the PSBC Secretariat’s letter to the former to show cause why its membership cannot be terminated for their failure to submit its membership figures.
The letter requested BOFEPUSU AJA to have done so no later than April 24, 2017. As at April 24, 2017 BOFEPUSU AJA had not responded to the aforesaid letter nor acknowledged it.
As a result of the said withdrawal from the PSBC, BOFEPUSU now hopes that its members will be entitled to the back pay in respect of the salary increment awarded outside the Bargaining Council, as well as future payment of the cumulative 7% currently being enjoyed by non-unionised members of the disciplined forces, non-unionised members of the public service and members of Botswana Public Employees Union (“BOPEU”).
On May 20, 2016 Justice Ruhukiya under case no. ICUR 07/16 determined as follows;
[a] The rule nisi granted by this Court on April 11, 2016 is confirmed and an order granted interdicting and restraining the First and Second Respondents from unilaterally implementing salary increases for public officers subject to the following:
1.1 the interdict is granted pending an action for final relief declaring the First and Second Respondents conduct unlawful; and
1.2 the interdict is only specifically in respect of all those public officers who are members of the Applicant unions in terms of section 51 (1) of the PSA.
[b] For purposes of clarity and completeness the interdict granted at paragraph 1 above does not apply to those public officers defined as “members of management” in terms of section 45 (2) and (4) of the PSA as read with section 48 (2) and (3) of the TUEO, on the basis that such persons are not represented by the Applicants, they not being allowed to be members of the Applicants and therefore the PSBC.
[c] In terms of section 3 of the PSA as read with article 2.11 of the Constitution of the PSBC, the interdict at paragraph 1 above does not extend to the disciplined forces.”
The aforesaid case concerned constituent members of BOFEPUSU AJA who challenged the unilateral decision by Government of Botswana (“GoB”) to award the 3% salary increase outside the PSBC. The interdict sought and granted to BOFEPUSU AJA was in respect of all public officers who are their members only. Thus the interdict did not extend to members of the disciplined forces, non-unionised members nor members of BOPEU.
The interdict was to operate pending an action by BOFEPUSU AJA as regards the unlawfulness or otherwise of the decision to effect a salary increase outside the collective bargaining process.
That action was recently concluded before Motswagole J under case no. MAHGB-000343/16 with the Court finding in favour of BOFEPUSU AJA.
The net effect of that judgement was to set aside the unilateral wage increase.
Dissatisfied with that decision BOPEU appealed the decision of Motswagole J; sought stay of its execution and the hearing of the appeal on an expedited basis.
On April 27, 2017, Gaongalelwe J.A, under case no. CACGB 57/2017 stayed the execution of Motswagole J orders of April 4, 2017 and directed that the appeal be heard during the October session of the Court of Appeal (“CoA”).
THE DECISION OF THE COA MEANT THAT THE STATUS ANTE IN RESPECT OF THE AWARD AND PAYMENT OF THE SALARY INCREASE AS PER THE JUDGEMENT OF RUHUKYA J REMAINS IN FORCE.
That decision is that GoB is interdicted from awarding any salary increase to members of BOFEPUSU AJA pending determination and finalisation of the lawfulness and / or otherwise of GoB’s decision to unilaterally award increase outside the PSBC.
The question of whether or not GoB can unilateral increase public service salary outside the PSBC remains a live issue before the CoA. In other words, that question is yet to be finalised.
Specifically, the order of Ruhukiya J, as sought by BOFEPUSU AJA is to interdict GoB from effecting salary increase unilaterally but for their members.
Were GoB to award and / or effect increase in respect of members of BOFEPUSU AJA, it would be in contempt of Ruhukiya J’s order.
To the extent that the wording of the Court order by Ruhukiya J means that so long as public servants remain members of the individual unions who were applicants before the Court, the GoB is enjoined not to award the salary increase in respect of them and whilst the matter awaits finalisation of the appeal.
To the extent that the decision not to effect payment of the unilateral salary increment is a result of a Court order, no back pays can be said to arise unless and until the Court order of Ruhukiya J is varied and / or rescinded; or a new and fresh case is made before Courts as to why members of BOFEPUSU AJA are entitled to the increases.
BOFEPUSU cannot seek to rely on the judgement of Ruhukiya J (on principle) and at the same time seek to have the very same conduct it wants declared unlawful, extended to them and their membership (for political and financial expediency). These amounts to double standards.
Yours in Workers Welfare and Struggle, Cde. Topias Marenga
General Secretary – BOPEU
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