The Court of Appeal (CoA) has said the government’s unilateral increases during the negotiations of the Public Service Bargaining Council (PSBC) undermines trade unions, dents their integrity and credibility.
Such conduct dissuades employees from joining unions. Moreover, it said that the employer could increase salaries unilaterally in the event that parties have reached a deadlock at the PSBC.
This was said in a recent judgement on government appeal on the determination of the scope of the PSBC and whether government can increase salaries of public officers unilaterally while negotiations are still ongoing. The government also wanted to know if the increase could apply to those who are represented in the PSBC and those who are not. The CoA said government ought to amend the relevant statues to set the annual negotiating period.
The PSBC is currently dysfunctional after the union party withdrew from the Council citing negotiating in bad faith by the employer party. The judgement also brought an end to a long and torturous journey over a rough terrain between unions affiliated to Botswana Federation of Public, Private Parastatals Sector Unions (BOFEPUSU) and government.
CoA bench made up of Justice Monametsi Gaongalelwe, Acting Justice of Appeal Zibani Makhwade and Judge President Ian Kirby has determined that the decisions of the PSBC do not presently bind public employees who are non-unionised nor those who are members of trade unions not admitted to the Council. The Justices concluded that government is not permitted to grant unilateral wage increases to public servants during the period when wage negotiations are in progress, as this constitutes negotiating in bad faith. It was a partial success for the two parties, as the court ruled that each should then bear its own costs.
However, Justice Gaongalelwe lamented the current dysfunctional status of the PSBC. He stated that this development is a step in retrogression as it creates an unhealthy environment, which will be counter productive in the end with uncoordinated parallel negotiations being held with sundry unions.
“Trade unions have been created for the purpose of constructive collective bargaining and their forming a bargaining council was a valuable move for the benefit of members. I must say the latest development causes concern,” said Gaongalelwe in the judgement.
He also said the current threshold in respect of both recognition and admission into the Council are too high and make fully inclusive PSBC impossible.
“It is difficult and often unachievable for a single trade union to be admitted to the Council. This inevitably leads to trade unions desirous of becoming parties to the Council being compelled to enter into acting jointly arrangements which have their own problems. It can also lead to sector of the public service being over-represented at the Council at the expense of other sectors,” he said.
The CoA further said its comments could only be suggested possibilities as the court has no legislative powers, but only Parliament has those powers.
The court reiterated the need to review and amend relevant statutes to remove obstacles to admission to the bargaining council.