Public sector unions are celebrating the recent Justice Michael Leburu’s judgement but they will appeal a particular point in the judgment.
The Botswana Federation of Public Sector Unions (BOFEPUSU) secretary general Tobokani Rari said they take a dim view of the part of the judgement, which says the Public Service Bargaining Council (PBSC) is not mandated to negotiate for non-unionised members.
Rari said: “Our view is that unlike the scenario of the First National Bank (FNB) case, the constitution of the PSBC and the Public Service Act is clear in that the PSBC negotiates for conditions of service for whole industry.
“We met our lawyers over this point and agreed to challenge this particular point at the court of appeal. The danger about leaving this aspect unchallenged is that in future government could use the tactic of awarding increments to non-unionised employees while negotiations are still on. This tactic could jeopardize negotiations and put undue pressure on negotiating parties.”
Leburu said the conduct of President Ian Khama and the then Directorate of Public Service Management (DPSM) boss Carter Morupisi in implementing the unilateral four percent salary increase to non-unionized employees did not undermine the legislative role of the Public Service Bargaining Council. He added that this did not constitute a breach of the duty to bargain in good faith. He ruled that the respondents should bear the costs of this application.
Otherwise, Rari said Leburu’s judgement was sound, well-researched and watertight.
“In our view the judgement has not only banished the president and DPSM from interfering with the functions of the PSBC, but more importantly, it has succinctly and crisply defined and laid out the parameters of the presidential executive powers,” he said. “The judgement made it clear that the executive powers do not extend to areas where Parliament has ascribed such functions to a certain body. The judgement emphasised that doing so will be tantamount to interference by the president.”
The judge said a proper exercise of power should be fairly and reasonably traceable to some specific grant of power or justly implied or included within such grant as proper and necessary to its exercise.
“If the head of state, in my judgement, acts or takes measures incongruous and incompatible with the express and/or implied will of Parliament, his power, I venture to say, would be, with all due respect, at a lower ebb and/or pedestal,” said Leburu in the judgement.
The BOFEPUSU and five public sector unions wanted the court to define the role of the PSBC.
Last year the federation applied for a high court order to restrain Khama and DPSM from making pronouncements on public service salary negotiations. Leburu said in this case, it goes without saying that the respondents could not exercise and invoke their powers in breach of the government’s statutory obligation to negotiate in good faith in terms of the Public Service Act and the Trade Unions and Employers’ Organisations Act.
“Not only that, they cannot exercise their powers to disregard contractual obligations that the government has assumed and firmly bound itself unto, in terms of the Procedure for Meetings and Negotiations. If that were so, then the relevant provision of the Public Service Act, in so far as it delegated collective bargaining to the Public Service Bargaining Council, would be rendered ineffective, in violation of Section 26 and 27 of the Interpretation Act, which favours a purposive and effective interpretation of a statute.
“He proceeded to say the respondents could invoke their powers to thwart the policy objectives of an Act of Parliament. It is the policy of the Public Service Act that the terms and conditions of employment in the public service should be settled through the process of collective bargaining at the Public Service Bargaining Council.
“The duty to bargain in good faith precludes unilateral changes to the terms and conditions of employment before negotiations have been concluded. The duty, furthermore, frowns upon disregard of collective labour agreements.”
The judge declared that the conduct of the respondents in unilaterally awarding a four percent salary and allowances increase, to union members, whilst negotiations were ongoing, constituted a breach of the duty to negotiate in good faith.