Collective Bargaining Addresses Imbalance � BOFEPUSU Lawyers

Goitsemodimo Kaelo | Monday October 30, 2017 15:20

This is in response to a case in which the government and Botswana Public Employees Union (BOPEU) are challenging a High Court judgement declaring that the Public Service Bargaining Council (PSBC) binds all public servants inclusive of those whose unions would not have been admitted in the PSBC.

In the appeal, the government is challenging High Court judge Tshepo Motswagole’s judgement that the PSBC is an industrial council, hence its scope and decision affects and binds all public servants inclusive of those whose unions would have not have been admitted in the PSBC. Motswagole had also in his judgement declared that the three percent and the four percent salary adjustments that were being granted exclusively to those public servants whose unions were not in the PSBC was unlawful as adjustment of conditions of service for public servants was purely a preserve of the PSBC.

His judgement interdicted the salary increase, which was enjoyed by the non-unionised officers. The government is of the view that Motswagole’s judgement is misdirected. It points out that there is no statutory provision imposing a duty on government to bargain in good faith with non-parties nor is there one that stops the government from giving increases to employees who are not members of unions at the PSBC, unless they negotiate in good faith at the PSBC.

It also submits that Motswagole was misdirected to assume that a constituent of the BOFEPUSU AJA had been verified as a party that met the threshold number required for admission to the PSBC as it had not happened by the time the judgment was handed down.

“The increase did not expose the BOFEPUSU AJA to irreparable harm. The appeal should be upheld with costs and the judgment and orders by Motswagole be set aside,” submits Advocate Tim Bruinders SC on behalf of government.

However, Advocate Alec Freund representing BOFEPUSU argued that the very purpose of constituting a joint industrial council is to negotiate terms and conditions of employment for all employees in the industry concerned.

“In terms of Section 36 of the TDA, this necessarily implies that the constitution of the PSBC must provide for the PSBC to negotiate the terms and conditions of employment of all employees in the public service,” he said.

He further argued that implementing wage increases in respect of non-members but not in respect of members, when the PSBC is engaged in negotiating the increases, which are to apply equally to both categories, places the unions’ members, and therefore the union, at an obvious disadvantage, irreconcilable with good faith bargaining. He said this effectively says to all employees that it is better not to belong to the unions on the PSBC than to belong to those unions. This undermines the role intended by the lawgiver to be performed by the union parties to the PSBC.

“Agreements concluded within the PSBC do not only govern members of the unions party to such agreements but govern non-members too. The Government is not entitled to implement issues subject to negotiations unilaterally.”

 Freund said unilateral implementation takes away the power of unions of industrial action. He added that government has a duty to negotiate in good faith with the unions. This, he indicated, does not mean it is the duty bound to agree with the demands but to negotiate in good faith until an impasse has been reached. He said the PSBC should perform all functions of the industrial joint council. He said the law states that collective bargaining for the public service should take place exclusively at the PSBC.

Moreover, he said the general secretary of the PSBC settled the issue of BOFEPUSU AJA status in the PSBC on September 19, 2016 when he confirmed that the BOFEPUSU AJA still met the applicable threshold. He argued that the BOFEPUSU AJA’s recognition as a negotiating party on the PSBC had never been revoked, nor even placed in issue by BOPEU’s application.