Giant unions await legal fate

Staff Writer | Wednesday July 7, 2010 00:00

 

Prior to the ruling made by the judge that the case be heard on Thursday there was a verbal exchange in court between the lawyers representing the two parties.

Tshiamo Rantao, representing the unions, argued that since they had been issued with voluminous documents from the Attorney General in court, they should be allowed time to ponder over the documents and to reply to their papers.  Deputy Attorney General, Abram Keetshabe, representing the DPSM and the Attorney General did not agree to a postponement saying that since they as the respondents were ready, the case should proceed.

It appears from the heads of argument that were before court that the applicants will rely heavily on the founding affidavit of Andrew Motsamai, the president of BOPEU.  In his founding affidavit, Motsamai maintains that the five unions represent a total of 90,000 employees out of 109,731.  He states that DPSM has withdrawn recognition of the five unions for two reasons:

* they were recognised under old laws such as Teaching Service Management and Land Board Acts which have since been repealed,

*  and that under the new act for a union to be recognised it ought to represent at least a third of the workforce of the industry.

Motsamai contends that 'the argument about the applicants not meeting the threshold for recognition is fallacious, because the DPSM is fully aware there is a procedure to be followed prior to withdrawing the recognition of a union that no longer meets the threshold, which procedure she has not followed'.

Arguing for urgency, Motsamai says the matter is urgent given the unlawful act of the DPSM to cease registering the unions. He says the five unions are not only de-recognised but that the loss translates to loss of organisational rights and that they will be deprived of monthly subscriptions, which facility is the lifeblood of all the unions.  Without these subscriptions, he posits, the unions will collapse in a matter of weeks.

'All the applicants have huge expenses, which they incur on a monthly basis in the form of buildings that they rent and salaries for staff that they have employed in order to better represent their membership.

The financial ruin of the applicants will precipitate their dissolution, which in turn would bring about frustration of the ideals behind the new act.

The DPSM is now free to exclude the five biggest unions in the public sector, and indeed in the country, from negotiation of terms and conditions of employment.

As a result of the purported withdrawal of the applicant's recognition, DPSM is now free to make changes to terms and conditions of employment without reference to the five largest trade unions in the public sector.

The only unions that are still recognised are the Tertiary Allied Workers Union (TAWU) and Botswana Government Workers Union (BOGOWU), whose recognition was obtained under dubious circumstances. DPSM is now free to establish the Bargaining Council with only TAWU and BOGOWU, which between them represent less than 4,000 employees in the public sector.

In their heads on point in limine, the Attorney General opposes the application. The AG opposes urgency because they have not been given statutory notice of the intention to institute proceedings.

The AG further opposes urgency since the DPSM director, Festinah Bakwena, is said to have intimated that the negotiation process is still ongoing. Further the AG contends that the applicants have failed in their application to show explicitly the reasons for urgency.

The applicants chose to rush to court, ignoring to give the Attorney General notice of their intention to institute these proceedings. Had they done that, the applicants would have received a clear response from the Attorney General to the effect that they still enjoy recognition'.

The AG takes issue with the assertion by Motsamai that the DPSM has taken a decision to de-register the unions. They maintain that this is not factual and the DPSM director contradicts it.

The AG further takes a dim view of Motsamai representing all the other unions. According to the AG, since there is no resolution to that effect, Motsamai does not have authority to represent unions other than BOPEU.