At the heart of the BFTU saga
| Friday August 13, 2010 00:00
This article has been influenced by reports in the media and comments from some trade union leaders regarding the subject of bargaining in the public service. As a trade union leader and one who has been following the transformation in labour relations within the public sector, I feel that a lot is being wrongfully portrayed and that both the workers and the public are being fed with some untruths. The comments that I make in this article are my personal observations and not necessarily the opinion of the Botswana Federation of Trade Unions of which I am a member. My arguments will be based on the provisions of the Trade Unions and Employers Organisations Act (TUEOA), the Trade Dispute Act (TDA) and the Public Service Act (PSA 2008). I would want to deal mainly with two issues: Recognition as defined by the three Acts and Collective Bargaining structures in the public service.
Trade Union recognitionUnder this sub-heading I wish to comment on the issue of recognition of a trade union by the employer and specifically on the significance of that recognition. First of all, the Section 48 of the TUEOA states that 'If a trade union represents at least one third of the employees of an employer, that trade union may apply for recognition under the section 32 of the TDA'. The key for recognition under this section lies in the one third representations by the union. Section 32 of the TDA further sets parameters, which would guide the employer as to whether he/she should recognise the trade union.
As we are discussing recognition in the public service, I wish also to draw attention to section 46 of the PSA 2008. This section reads: 'A trade union, which is representative of one third of the employees of the employer engaged in the same trade as members of the same union, may apply to the Director for recognition for the purposes of bargaining.'
What should be of particular interest in this section is the phrase that recognises one third representation of employees in a particular trade as compared to the total workforce of the employees of the employer. In simple terms a union with one third of the total contingent of nurses or teachers or technicians or lecturers or engineers or pilots etc qualifies for recognition by the employer according to this section. This is the most rational definition of the term 'trade' since the recent judgment of the Court of Appeal in the Railway Crew case conveniently avoided this definition, although it has been broadly defined in section 2 of the Trade Disputes Act.
But why should the employer recognise the union? To answer this question let us look at what the law says.Section 48 (4) of the TUEOA reads in part: 'An employer who has granted recognition of a trade union, in terms of section 32 of the TDA, shall bargain in good faith with the union......' The same section 46 of the PSA we quoted above in part reads: 'A Trade Union......may apply to the Director (Employer representative) for recognition for the purposes of bargaining.' It is, therefore, logical from the above quotes that a trade union is granted recognition by the employer for the purposes of bargaining and nothing else. There is therefore no way an employer could lawfully grant a trade union recognition and then refuse to bargain with it or more specifically create structures that could bar such a union from the bargaining structures or process. That would simply be illegal. I am drawing this conclusion from both the TUEOA and the PSA as nowhere in these Acts is there any inference that such a scenario could happen. Those individuals and unions who are saying that public service unions which are recognised should constitute one third of the total employees of the employer to be admitted into the bargaining structure are simply misleading themselves, their members and the public at large. This leads me to the next issue that I believe also needs clarification, i.e. the issue of bargaining structures.
Bargaining structuresAccording to laws referred to above and as has been demonstrated above, the fundamental structure or platform for bargaining is a recognised union and an employer, in this context, government and any of the unions that she has recognised. Those are the parties that constitute the bargaining structure. In the case of the Public Service Act (2008 section 51) access to the Bargaining Council is granted to any recognised trade union.
I suppose it is for this reason that DPSM has invited all the seven recognised unions individually to a meeting of the Bargaining Council to be held around August 11 2010. It is surprising that some recognised trade unions still hold to the view that they will never have access to the Bargaining Council unless they group themselves under a new federation of the public service to qualify to bargain. And these are very learned people who have this fear, despite the law being so clear and unambiguous. Why do these unions doubt what is in the law unless they do not have confidence in the recognition that they already hold? Why then would the same unions go to court to protect the same recognition that they do not believe grants them access to the bargaining structure? Something does not add up here.
I am convinced that according to the law there is nothing that suggests that any employer should or must group all unions in his/her place of work and form a single bargaining forum - and that includes government. Under the law every individual recognised union is granted the right to bargain with the employer on its own or voluntarily acting together with another or other unions if it chooses to do so. But there is no obligation on a recognised union to act jointly with others. That is a voluntary choice provided by Section 34 of the TDA. But then there is nothing wrong with those unions, which choose to do so to tell their members of the merits of acting jointly. They do not have to put fear in their members in order to justify the formation of an unnecessary federation.
Industry recognition in the public service There seems, however, that there is confusion between union recognition at the workplace and at industry level. The law again is very clear in this regard. Only a union (or unions acting jontly) that represents one third of the total employees in an industry can apply for recognition in that industry. It should be noted that in this instance recognition is not sought from the employer but from the Commissioner of Labour (TDA section 34(2)).
The reason is that in an industry there is more than one employer and recognition of a union at this level automatically grants the union rights to bargain with any employer in that industry. The application is made by an employers' organisation and the union i.e. the two parties apply jointly, which means that they must be in agreement about the application for industry recognition.
A good example here could be a union like Botswana Mine Workers Union (BMWU) having at least one third of workers in the mining industry applying for recognition jointly with a chamber of mines to form a joint industrial council. Granting BMWU recognition in this industry would mean that it does not have to apply for recognition or sign separate agreements with individual mining companies, but would bargain for its members through the joint industrial council rather than through company/single employer bargaining committees, commonly created by recognition agreements of enterprise unions.
Now in the context of the public service I would like to consider the entire government as an industry, at least this is what I am getting when reading the PSA. I want to state that in my opinion it is erroneous to have the PSA legislating the procedure of the setting up of a joint industrial council, otherwise known as the 'Bargaining Council', as this is already provided for in the TDA.
I am saying it is erroneous because the new Pubic Service Act, which was literally promulgated by the employer (DPSM) takes away the right of a union to decide whether it wants to bargain at industrial level or at the work place level. Whereas the Act seems prescriptive on the setting up of the Council, reading Section 51 (3), (4) and (5) suggest that the setting up of this Council should actually be a joint and voluntary exercise. This is a contradiction that will have to be dealt, alongside other numerous mistakes one could point in the Act.
There has been a lot of apprehension within the public service that some unions, which do not constitute one third of the total public service employees either individually or jointly will be left out of the Council. What should be noted is that currently the public service is estimated at approximately 110 000 and for any union to hold one third of that it should count almost 36 600 public servants as its members. There is currently no union in the public service that has that membership.
However, it must be noted that the combined membership of the five public service unions under BFTU (before the recent pronouncements) actually surpassed this threshold.
I am aware that Manual Workers Union (MWU) has been claiming a membership of about 40 000 since the 1990s even after its 2004 split. The unfortunate thing is that the category of employees that MWU is organising in central government are actually only about 28 000, according to DPSM statistics and they share those employees with its splinter group, Botswana Government Workers Union (BOGOWU), whose official figures stand at around 10, 000 (I am also aware that MWU and its allies have put this figure far less than what is stated here).
However, my point here is that so far there is no single union in the public service that qualifies for a joint industrial council with the employer unless they act jointly together. This however, does not mean that these unions cannot bargain since the right to bargain is realised through recognition as already explained. It should be noted that the Bargaining Council in Government serves the purpose of grouping together all recognised unions into one forum through which Government as the employer can negotiate with its employees as a unit instead of forming different joint negotiating bodies. It is a matter of convenience for the employer. It is my opinion that it was never the intention for the Bargaining Council to be a preserve of a few and exclusion of other legitimately recognised employee organisations.
In my opinion, there is nothing in the law that forces public service unions to bargain with the employer at industry level, but they could do so if they so wish without any prejudice to themselves or other parties. In other words the Act provides for flexibility so that the Bargaining Council could function as an Industrial Council, not that it is by definition an Industrial Council! It is clear from the PSA that the constitution of the Council is a product of mutual agreement between the employer and recognised unions - what is commonly known as a collective labour agreement (CLA). The unfortunate thing here is that the PSA has put the 'cart before the horse.' A CLA is an agreed document between an employer and a recognised union. It is, therefore, inconceivable that recognised unions in the public service could actually draw up a document and agree that it should exclude them from bargaining with the employer. That would be absurd. A CLA is not a matter for voting so that the majority unions could agree amongst themselves to exclude any union. That would simply lead to a dispute by any of the recognised unions, which would delay or render the Bargaining Council unworkable. It should also be noted that any union that could be recognised at a later date, which is not party to the constitution (or CLA) will not be bound by its rules and regulations. A CLA is a subordinate piece of law.
We need to explain the public service recognition at industry level a bit more. In my view a union in the public service, say for instance, Botswana Public Employees Union (BOPEU), having members constituting 33 percent or more of the total public service will be entitled to apply for recognition to bargain with the employer at any given place of work within government where it has members. For example, nurses, prison officers, teachers, etc, as long as it organises in those sections of government employment. Such a union would not have to apply for further recognition to represent new cadres in its fold as it would have already acquired recognition at industry level.
When Trainers and Allied Workers Union (TAWU) was granted recognition by DPSM, it was for negotiating for the tertiary educators under the employ of DPSM and nothing else. BOSETU was given recognition to bargain for teachers, BOGOWU for industrial class and so on. If in the future any of these unions decide (through constitutional change) to include in its fold nurses, it would have to apply for that recognition and would only be given such recognition if it has at least 1/3 of the nursing cadre as their members. This should be understood in the context of the cadres (or trades) that the union constitution purports to represent and that is why when addressing the issue of recognition the constitution of a trade union cannot be ignored, lest it is granted rights beyond its legal scope.
Is the 1/3 threshold mandatory to the employer?Whereas the law stipulates that a union should have at least 1/3 of the employees of the employer for it to be granted recognition by the employer, my reading of this provision of the law does not sound prescriptive. I do not believe that a union must necessarily have one-third of the employees as its members for it to be recognised, but rather the law simply gives the employer discretion not to recognise a union with less than 1/3 threshold and simultaneously entitles a union to recognition if it has at least this minimum threshold as its members.
Thus a union cannot claim a right to be recognised if it does not meet the minimum threshold, but that does not prohibit recognition by an employer on voluntary basis.
This is a similar application to the minimum wages regulation - the law does not prohibit an employer not to pay above the minimum wage. I am of the opinion that it is incumbent upon the employer to recognise any union even if that union has not met one-third of his/her employees. This is particularly important if this could foster better labour relations within the work place and there being no other encumbrances such as the existence of another union, which sufficiently represents the same employees in the same workplace or industry that has gained recognition.
In the context of the public service, government plays two roles, as the employer as well as regulator. It is, therefore, important that government should not be seen as using her position as a regulator to impede the processes of collective bargaining. In my view, government should go all the way to assist workers under her ambit to be able to enjoy rights that are enshrined in both the international labour standards and the domestic legislation rather to limit enjoyment of those rights. It is worth noting at this point that for the past few years the International Labour Organisation's (ILO) Committee of Experts has been writing to the Botswana government requesting her to amend the section on threshold by actually removing it as it hampers freedom of association.
However, so far government has been resisting this and has been backed sometimes by some unions who want to preserve their monopoly. In some cases, unions have crafted exclusion clauses in collective agreements to protect this monopoly, which essentially negates ILO pluralism principles.
Applicability of the railway crew Appeals Court judgment in the public serviceThe applicability to the public service of the Court of Appeal judgment in the case of Botswana Railways v Railway Train Crew Union starts with the new Public Service Act 2008. Clearly the Act refers to recognition on trade lines, which is not similar to the Trade Unions and Employers' Organisations Act, which refers to 'employees of the employer', which was the bone of contention in the Appeal case. In the Appeal case the judges ruled that the union must have one-third of all the employees of Botswana Railways in order to qualify to bargain for its members.
Another difference lies in the nature of the public service as an organisation. Perhaps this is the origin of the 'trade' specific recognition concept in the PSA 2008 since the public service is a large, heterogeneous organisation, with other peculiarities, which are too dissimilar to Botswana Railways (BR) that is if BR could be taken as a typical commercial enterprise in Botswana's business context. The management of the public service are appointed by a political authority and so on. There are several other peculiarities, which may not be helpful for our discussion. It is for these reasons that the ILO came up with a Convention solely to regulate the public service (Industrial Relations Convention 151). So applicability of the Court of Appeal judgment cannot be a simple automatic cut-and-paste process.
Labour laws in Botswana grant eligibility for Trade Union membership and hence bargaining rights in the public service to selected employees to the exclusion of some employees, especially security forces. That includes Prisons Services, which is in violation of the core ILO Conventions that Botswana has ratified. Therefore, trade union recognition in the public service is not based on all the employees of government but on those employees of one of the employing authorities of government (DPSM as of May 1 2010), but based on their 'trade', according to Section 46.
In conclusion, it is wrong and misleading for some public service unions to say they need to form a federation so that they should have numbers that will allow them to enter into the Bargaining Council with the employer. Such statements are peddled by those who have other motives of forming a federation to rival the Botswana Federation of Trade Unions (BFTU) and are trying to scare members of some of BFTU affiliates so that they vote into relocating to the new federation.
Members of public sector unions affiliated to BFTU should know that when they vote to affiliate to the new federation that vote is by no means linked to collective bargaining. They already have access to collective bargaining given by statute law and their leaders should come up with different reasons that are compelling them to force a division amongst workers through this new federation.
Furthermore, if the issue is about numbers, why could they not use those numbers whilst still at BFTU since they met more than the stipulated 1/3 threshold? They did not need BOFEPUSU and still do not need to federate to qualify to bargain. By remaining in BFTU they could have compelled those outside BFTU to come into BFTU instead of the other way round. How did they miss such opportunity or did they lack confidence to exert themselves in the power relations? The other question that they should answer is: if they are sincere about numbers being the motive for forming a new federation solely for the public service, why did they leave out other public service unions and go on a campaign to sideline their colleagues? Why is exclusion and hatred of fellow unions a necessary condition for the new unity?
I hope this discussion settles some of the controversial issues regarding Recognition as defined by the TUEOA, the TDC and the PSA as well as the establishment and access to Collective Bargaining structures in the public service. One also hopes that it would assist members of public service and unions who may be vulnerable to the untruths and perhaps manipulation.
* Mhotsha is BFTU Secretary General. He writes in his personal capacity.