BOPEU urgent interdict is baseless � AG
Lebogang Mosikare | Friday September 15, 2017 13:41
BOPEU’s application is premised on the basis that as a legally recognised trade union in Botswana, it has the right to represent its members at the PSBC.
Attorney, Ndiye Balule from the AG on Wednesday prayed with the Industrial Court to dismiss BOPEU’s application.
He said: “There is no basis whatsoever for the applicant to demand mediation at the PSBC because in so far as mediation and arbitration are concerned, BOPEU has no locus standi to represent its members before the PSBC. BOPEU is not a party to the PSBC”.
BOPEU was formerly a member of the PSBC under the Botswana Federation of Public, Private and Parastatal Sector Union (BOFEPUSU) Acting Jointly Agreement (AJA).
For reasons best known to BOPEU, Balule said, BOPEU voluntarily pulled out of the BOFEPUSU AJA at the PSBC thus forfeiting their right to sit at the PSBC proceedings.
“It is therefore, surprising that BOPEU wants to represent its members at the PSBC which is also defunct. The PSBC is also not functioning and non-existent because BOFEPUSU also pulled out of PSBC following BOPEU. The PSBC cannot function without all its constituent members; the employer and trade unions.
“I submit that should the court rule in the applicant’s favour, it would be unreasonable and contrary to public policy if the government alone is allowed to deal with mediation process without the other parties,” Balule said.
“We pray with the court to dismiss BOPEU’s application with costs. The Trade Disputes Act is very clear about how disputes are resolved at the PSBC. The applicant’s action is frivolous and vexatious. They had sworn before a different court through a letter that the PSBC is defective. If the PSBC is defective, it then cannot carryout its functions following the pull out of trade unions,” said Balule adding that everything BOPEU is purporting to do, was unlawful.
He said: “BOPEU has written a letter to the effect that they don’t have anything to do with the PSBC because it cannot conduct its business. Now the same people who wrote that letter are somersaulting from their previous position… The court should punish the applicant for this kind of behaviour with costs”.
Nonetheless, Balule submitted that the state has no business of attending the PSBC business because it is nonfunctioning adding that even if the State was called to do so, government would ignore those calls.
In reply to the AG submission, counsel Joseph Akoonyatse for BOPEU said that the state should not be surprised when they come with an arbitration award to court should government ignore calls to come to the PSBC. On the issue of urgency, Akoonyatse said they were surprised that government says it will now withdraw its participation from the PSBC.
“We were never aware of government’s intention until recently when we learnt that through a savingram from the state. The said savingram was copied to us and we wonder why the government copied the savingram to us if we are not party to the PSBC. The government is clearly acting on bad faith,” Akoonyatse said.
Responding to Balule’s submission that BOPEU’s application should be dismissed because BOPEU does not have locus standi in court, Akoonyatse said it is surprising for government to say that the PSBC is defunct and on one hand say that BOPEU is not a party to the PSBC.
He added: “We submit that the duty of the PSBC is to resolve disputes involving public workers and their employer. BOPEU is proper to appear before the PSBC on behalf of its members. Government cannot bury its head in the sand and wish this away…Furthermore, the court is not asked to deal with the merits of this case but is dealing with whether it can grant an interdict or not. We submit that our application is not frivolous and vexatious and should not be dismissed with costs”.
Justice Galesite Baruti of the Industrial Court will deliver a ruling on the matter on September 26.