BOFEPUSU starts 'essential services' battle

ISAIAH MOREWAGAE
Staff Writer | Thursday October 6, 2011 00:00

This time around the umbrella of five trade unions is challenging the Labour and Home Affairs Minister Peter Siele's decision and powers to classify veterinary, teaching and diamond sorting, cutting and related services as essential services.

In their notice of intention to sue, the unions demand that Siele must revoke the amendment to the Second Schedule immediately.

Failure to do so, the unions said, they would approach the court for an order either reviewing and setting aside the amendment or declaring it unconstitutional.

Alternatively, unions seek a court declaration that the amendment of the Second Schedule does not affect any public officer who was employed in the public service immediately prior to May 1, this year. They further seek an order directing that Siele personally pay the litigation costs. In the court papers, BOFEPUSU avers that the minister's objectives in seeking to safeguard the economy and right of children is laudable but is not one which can in law provide justification for classification of teaching services as essential.

'The purpose of the strike action is to inflict economic harm, it therefore makes no sense at all to try and avert future economic harm by classifying a service as essential,' unions stated. To do so, the unions say, goes against the entire spirit of Trade Dispute Act, which protects the right to strike and in so doing legitimises the infliction of harm on the employer as a legitimate bargaining weapon.

The unions further accuse Siele of breaching Section 13 of the Constitution, which protects the right to freedom of association. They stress that freedom of association may only be limited where it is shown to be reasonably justifiable in a democratic society.

'In the case of trade unions, associational activities include collective bargaining, which in turn encompasses the right to strike in support of a demand. It therefore follows that to the extent that it may be contended that persons in the essential services have no right to strike through the amendment by the minister unreasonably limits the right to strike thereby acting in breach of Section 13 of the Constitution.'  Unions emphasised they legitimately expected that the executive will at all times act in accordance with the undertakings that it has given and in accordance with international obligations.

'Botswana is a signatory of both International Labour Organisation (ILO) conventions No 87 and 98. These conventions, have been interpreted by the ILO Committee of Experts, human rights tribunals, distinguished courts the world over, and eminent jurists, as requiring that the classification of essential services be limited to those services the interruption that would endanger the health, the lives or the personal safety of or the whole population,' unions stated.

They say they had legitimate expectation that Siele would act consistently with the conventions, as he was duty bound to afford them a hearing. 'It stands to reason that by acting inconsistently with conventions No 87 and 93, without first affording the unions a hearing, the minister acted unlawfully,' the unions submit.

Botswana Public Employees' Union (BOPEU), Botswana Teachers Union (BTU), Botswana Sector of Educators Trade Union (BOSETU) and National Amalgamated Local and Central Government and Parastatal Workers Union (NALCGPWU) are suing government over the 'essential services' declarations.

Mboki Chilisa, Kole Kole and Tshiamo Rantao represent unions while the Attorney General represents Siele.