CoA raps govt as BOFEPUSU triumphs


The court of Appeal (CoA) has ruled in favour of Botswana Federation of Public Sector Unions (BOFEPUSU), against President Ian Khama and the Director of Public Service Management (DPSM).

A panel of four judges - Judge President of CoA Ian Kirby, and Justices Foxcroft and Isaac Lesetedi unanimously agreed that by their conduct, President Khama and DPSM Carter Morupisi did not negotiate in good faith when government implemented the four percent salary increment in 2014.

“The conduct of the respondents in implementing the unilateral 4 percent salary increment to members of the applicant trade unions constitutes breach of the duty to bargain in good faith,” Kirby said in delivering the ruling this week.

The court found that the content of the founding affidavit by President Khama and Morupisi affirmed breach of the duty to negotiate in good faith, as well as breach of the Public Service Bargaining Council (PSBC) procedures for meetings and negotiations as agreed to by the parties.

The Botswana Federation of Public Sector Unions (BOFEPUSU), National Amalgamated Local and Government Central & Parastatal Workers Union (NALGC&PWU), Botswana Teachers Union (BTU), Botswana Public Employees’ Union (BOPEU), Botswana Secondary School Teachers Union (BOSETU) and Botswana Land Board & Local Authorities Workers’ Union (BLLHAWU) also sought a restraining order against the respondents from making unilateral statements concerning the government’s bargaining position.

Furthermore, BOFEPUSU sought a relief declaring the conduct of the respondents as unlawful, and restraining the respondents from making distribution of Directive No 1 in announcing the four percent increment.

On April 30, 2014, the High Court struck off the BOFEPUSU case on grounds that their case was not urgent, even before hearing it, leading to the current appeal.

However, CoA agreed with the appellants the judge erred in amongst others, failing to distinguish between refusal to bargain, and failure to bargain in good faith. The CoA also stated that the judge erred in failing to recognise that appellants’ rights could only be protected by way of interdict and in failing to grant the order sought.

Justice Kirby said the conduct of the respondents in implementing the unilateral 4 percent increment to non-unionised employees of the Government (comprising both managerial and non-management employees), undermined and violated the legislative role of the PSBC and constituted breach of the duty to bargain in good faith.

Justice Kirby further agreed with the appellants’ arguments that the High Court judge in granting leave to appeal amounted to an admission that his original refusal to allow the case to continue on basis of urgency was wrong.  He added that he was satisfied with appellants proof that government had unilaterally implemented, without due negotiation, its package of proposals tabled before PSBC, before the appellants had been able to table their counter proposals.

Therefore, the matter was referred back to the High Court.

 “The case is remitted to the High Court for the judge to call a case management conference for the purpose of issuing such directions as he deems fit for the service and/or joinder of non-unionised members of the public service, and of public service unions which are not parties to the present proceedings,” he said.

However costs of appeal were reserved for determination upon the conclusion of the application. The court also ruled that the case was not urgent.

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