At the heart of the mother of all strikes

| Friday September 10, 2010 00:00

Mmegi - A lot has been reported about a stalemate between the DPSM and the unions and threats of a massive strike have also been reported. What is going on here MmaBakwena?

Bakwena - We have been engaging with the unions here and we do not have a lot of staff. Our aim was that we should travel the country to talk to the employees about their work conditions. We would be with the unions on this. We are planning to start this programme in October.

I started the journey with this Public Service Act when I joined the Directorate in March this year. When I started I called the unions here to talk to them and introduce myself to them on March 2. They told me the Act should have commenced on March 1 and I told them that I did not see any preparation to commence the Act. I requested that they give me time to prepare for its commencement as I was still new in the office and they told me they were not talking about me but the office. They said the office had said the Act would commence in April 2009 but later changed to March 1, 2010.  After the talks with them and consultation with key stakeholders and role players within the government we saw it fit to commence the Act in May this year.

This Act comes with changes; at the top is having a single public employer. You will realise that in the past employees were at different ministries being Ministry of Education, Local Government, Land Board, DPSM and other ministries, they had different working conditions depending on how they had negotiated with their employer I suppose. Now the first thing is that all conditions be aligned, more especially that the Act calls for conditions to be aligned with the International Labour Organisation and the Botswana Labour laws.

Mmegi - Now this pending strike, where did this start?

Bakwena - We also don’t know anything about this strike; we are just reading about it in the papers. It all started with these conditions that have been left behind. Those which did not have financial implications and we implemented them right away. The remaining one had the major financial implications and that is where there is partly the bone of contention now. What happened is that the permanent and pensionable public service employees were paid based on 20 working days and the new act says the salaries be calculated based on 22 working days. This means that effective from May 1, 2010 they should have been paid those days. These two days have implications looking at the number of the employees that are supposed to be paid which is quite a reasonable sum. We have agreed with the unions that the money would be paid. Their issue might be that it has taken long but government is still looking for the money and will ultimately pay the employees.

The second issue is that industrial class workers when they covert to being permanent and pensionable, government has to pay 15 percent of their basic salary and the employee pays five percent to their pension fund.That has not happened. This also has financial implications and that is why it has taken long to be implemented.

The other aspect of this issue is that because people are at different levels meaning that one might have been working for the 55 years while the other one might have started working, we thought that because the new Act states that whatever we do when we implement the conditions of service should not cause the employee to end up with a worse condition than they already enjoyed. We agreed with the union on whether we should give the employees options to covert because for some it did not make sense to join the pension if left with only about three years before they retire. The act also states that one can work as a permanent and pensionable, on contract, part time or casually, the only thing you cannot be is industrial class. We set up a taskforce that comprises the unions and members from different government sectors and I have a report I was given last week.

We will then take this to NGICC where we were discussing this issue on the options that make sense and we will go with the unions to teach the employees about the options to assist them in choosing. We were looking at the fact that it is a journey that we had to go on with to complete it.

The third issue is hours of work for the teachers. You will understand that the teachers work undefined hours and now the act says they must work eight hours. When we talked to the unions something that we appreciate, the industrial class gave government their 15 minutes. We negotiated with the teachers and we realised that they work outside of their work when they are on extra mural work. We could not negotiate the allowances and had to first seek the mandate to negotiate. The challenge is that you could not take a mandate before calculating how much they cost so that we know the range were we would be negotiating. That is where we delayed and that was sometime in June. 

Mmegi - Are these the main issues that are causing discomfort within the employees right now?

Bakwena - Yes, that government owes them and is taking long in paying them. The truth of the matter is that we will pay them.

Mmegi - We understand the Public Service Bargaining Council (PSBC) to be the main problem right now? How did you vision it?

Bakwena - Before the Act started, an interim committee was set which included the unions and DPSM. We agreed that we would need a constitution, which the secretariat drafted. It was agreed that after the commencement of the Act the draft constitution would be finalised. At this point there is no council as we are preparing for its formation. When you are outside council you have to facilitate the establishment of the council. When you go to the Department of Labour to register you must have a final copy of the constitution. This is now the bone of contention now. To finalise the constitution we as the employer had to go through the constitution if it is what we wanted and we came with the proposals for the amendments. They came with counter amendments, which agreed with our proposals while some did not. These unions are in two groups with the big five and TAWU with BOGOWU on the other side. I think we had made a breakthrough because before now we used to meet them separately and repeat the same thing we said to the other group. Much as I questioned myself how we were going to proceed going forward and because I wanted to make progress I met them separately like they wanted but I preferred the structures that were in place like the Central Joint, NGICC and so on. When we consulted we met them separately.

When we came to the issue of the constitution it was very important that all of us be together and we started talking to them outside of the routine. When we talked about the conditions of service we managed to do as they wanted and now with this constitution it was different. Now when we meet, we meet with all the seven recognised unions. For me that is a big breakthrough.

Mmegi - Is it true that from the different interviews it appears as if some unions want others to be closed out of the council? Is that the main issue that you are in disagreement with right now?

Bakwena - Well, it is the interpretation. When you interpret what we want in the amendment you might say that but it is not something that we are pronouncing.

Mmegi - Not DPSM per say but is this between the unions?

Bakwena - Like I say it is the interpretation. Who has the right to say who must not sit in the council? When we talk about the seven recognised unions, we look at the law and craft our amendment in a way that requires that we sieve underneath. In the amendment it reads like we want all the recognised to sit in the council. When we are together we don’t talk like that, we just state that we are looking at this section in such a way but if it is read like that it would result in every recognised union becoming a member of the council. Those who do not want that would oppose and state that they want a formula to include the membership of the unions, which means that those with fewer members might end up not qualifying. But like I say that is the interpretation, the effect of the amendment would result in either every recognised union becoming a member or if we agree only some of them would qualify. This is the watershed as far as I am concerned.

Mmegi - So there is confusion in interpretation of the amendment of the Act?

Bakwena - Yes and that is not wrong. It is only that our Act is complicated as it keeps referring to other acts like the employers’ act, the trade dispute act and so on. When you read it takes you elsewhere. For example, that issue where they took us to court that we wanted to derecognise them, it was about the threshold of a recognised union because we wanted them to confirm the strength of their membership. All the unions got their recognition because the Trade Dispute Act stated that they had to meet one third of the employees of the same employer of the same trade. This time around we are talking about the threshold of being a member of the council. If we look at it as according to the High Court of Appeal as one third of the employees of the employer none of them would qualify to be members of the council. What they see is that we are just dilly-dallying to push time. Our intention is that we register the council, which would assist us in dealing with issues, as there would be other people coming from other ministries to help us with different issues. Really it is in our interest to get the PSBC up and running.Even forming the council has its own financial implications as we would have to find independent offices and a secretariat.

Mmegi - What is your position on the threshold for the unions and ultimately who makes the decision of who sits in the council and who should not?

Bakwena - The issue is that the council should make the decision of who stays in the council and who should not.It is only that right now we are in the chicken and egg situation. It should not be the employer because when we are in the council we are acting jointly. For example, we are supposed to bring our members and they bring their own and when the time comes to elect the neutral person who should be the chairperson we bring our nominated name and they bring theirs. I am not sure how we are going to agree on the name but when we do not agree we would go for arbitration till we give motivation on why we want those people. The thing is that because this is a new area we have not done anything like this before. It is another challenge that we are going through a learning curve.

On the threshold, we can only interpret the threshold in that it should be stated how many members of the council there should be. The Act says that the council should determine the number of members of the council. We said our interpretation was that the number of recognised unions and they told us it was not supposed to be like that but the numbers of members per each union-membership not each union. All our lawyers subject all these to interpretation as they all have different legal representatives while we have only one. The good thing is that we thresh them out and when we do not agree when they say they want the number and not something that describes the number, we go back to our lawyer because the law shields us. After the number there came the issue of the formula-like if there are eight unions and they are maybe 10 recognised unions how are we going to choose which ones sit in the council, actually that is the material difference, stating the number and stating the number of recognised unions. Those who know they have the numbers say those without want to be automatically there. When we are at the negotiating table we do not talk like that, we say the law says this and therefore we are saying this.

We were supported by TAWU and BOGOWU on our proposal while the Big Five saw that differently. When we came back after looking at their counter, the advice we got was that if the law said the number we should put numerical there. This shows that we are reasonable after agreeing with the Big Five on their counter proposal because this is a give and take situation. Now we are no longer at an understanding with TAWU and BOGOWU because they are aggrieved. DPSM does not have an entrenched position right now. We do not know what is going to happen or if there is any union that is going to be closed out. We don’t know how big these unions are because we do not know their strength in numerical. As long as there is an agreed position it does not matter to us who sits in the council.

Mmegi - Is there a deadlock right now?

Bakwena - There is a time frame that they gave us after getting their submission, which was on Monday. They had thought that we would not agree with them but as it turned out there were material things that we agreed with them. We had a very long meeting on Monday and the Big Five had come with their submissions and TAWU and BOGOWU had not submitted their rebuttal as they said they had not yet seen our letter but because we knew our time went up to Monday we thought we were on time. The Big Five Unions took us through their presentation one by one and they told us they wanted their response there and then. I told them that if we are working well together and have had a long day I could not read the whole document there and give them the response same time. I asked for adjournment to Friday (today) and they refused later requested Thursday (yesterday) and they told me it was too far.  They asked for an adjournment to talk amongst themselves and when they came back they revealed that they are declaring a dispute. I asked why a dispute because we had not agreed on anything and had just been consulting and they given me something to consider. They told me this has taken too long not even considering that we started this in March this year. They made the statement that they are declaring a dispute and we made our own statement requesting an adjournment that there is no point in declaring a dispute as the talks could still go ahead and we both still had an opportunity to agree. They took the signed statement and we thought maybe they were taking it to the Labour department but still we have not heard anything up to today. This is where we are right now.

Mmegi - So this is why they are striking?

Bakwena - We heard about this strike before the Monday meeting.

Mmegi - Are they being impatient with you?

Bakwena - They said a dispute could be declared not only when you disagree but also when you think the process is taking too long. They are getting the authorities to force us to make a decision. It is not because we have disagreed. They think that this draft constitution has been finalised and agreed on. When we started they never complained, they said they had looked at it at the union levels and they are happy. This is where we are coming with amendments and that is why they took our amendments and came with their counter proposals.

Mmegi - Now what is the problem?

Bakwena - I don’t know what the problem is. When you hear me saying we heard about the strike before this and talking on my hunch as an individual this is not the only reason. That is why I started by telling you some of the things that were left behind. I wish I knew what the problem is. When we talk to them from someone looking from the outside it is like we are not talking in good faith. We have been working well with them and they responded to our amendments, this shows that we were making progress. If they had picked those things I talked about earlier and went on strike about them I would understand but not to talk about the constitution. I really wish I knew.

Mmegi - Were there any time frames on the implementation of those?

Bakwena - There were time frames and we were expected to have paid by end of August while some were supposed to have been implemented by November. The only problem is that we are trying to find money in a wallet that is empty. If they were to take us to task on anything it should be that we took long to implement those.

Mmegi - Your last word to the government employees?

Bakwena -  My last word is that a strike should not be used to solve our issues. If we are owed other things and government has agreed that they will pay us we must follow the due process.  After striking you will still be owed those, which are your right and the law states that you must be paid those. I also want to appreciate the employees and the unions for allowing us to talk to them up to this day. The talks have not broken down because we are still in talks. The issue of taking long no one can deny it.