The looming strike at Botswana Unified Revenue Service (BURS) and the legal tussle between government and public servants over the unilateral declaration of almost all public service cadres as essential service, through the amendment of the trade dispute act, marks a sad day in the relationship between the employer and employees.
Since the inception of the public service act, which brought with it the need for collective bargaining between employers and employees through the bargaining council, where both parties are represented, it is disappointing that government and some of her subsidiaries still want to bully workers and make unilateral decisions. Government has failed to embrace the concept of collective bargaining, or at the least engaging in meaningful consultation with the workers. This is despite the fact that government is a signatory to ILO conventions, which protect the workers' rights. Instead government views trade unions representing workers as enemies, and continuously seeks to sideline them in major decisions directly affecting their conditions of service. We have witnessed instances where employers in the private sector are also taking the cue from the conduct of government to disregard bargaining structures thus undermining the rights of workers. This is wrong and cannot be justified by any reasonable argument. Such conduct buttresses the argument that labour laws in Botswana are pro-employer and anti-workers.
In the latest stand-off between government and workers, it is widely known that a Government Extra Ordinary Gazette was published on 22nd June 2015 notifying the Trade Disputes Bill 2015. Botswana Federation of Trade Unions (BFTU) and Botswana Federation of Public Sector Unions (BOFEPUSU) have teamed up to oppose the un-procedural enactment of the Trade Dispute Bill, 2015, mainly Sections 46 and 47 on Essential Services. This has forced government to defer the Bill pending further consultation. But we are aware that government has in the past withdrawn some proposed amendments to other acts, only to sneak them back into parliament without any modifications to the original proposal.
The issue of Essential Services is not new. Trade unions have always indicated disagreement with a schedule of Essential services, contained in the current Trade Disputes Act, re-enacted in 2005. Trade Unions have been consistently opposed to the existence of the whole schedule, and have recommended an alternative method of regulation, based on the ILO definition as a best practice. Similarly, the ILO Committee of Experts on the Applications of Labour Standards and the Committee on Freedom of Association have repeatedly raised objections to the schedule and its inconsistency with the ILO definition on Essential Services. In recent years the ILO has objected to the inclusion of the Botswana Railway Services and Telecommunication services and has recommended for their removal from the schedule.
Botswana Government has continuously resisted calls for the abolition or alignment of the Essential services schedule and conveniently promised to the ILO and the international community that it is consulting social partners on the issue. No such consultation is taking place. Following the 2011 BOFEPUSU strike, government extended the schedule, now to include Veterinary services, Teaching services and Diamond sorting, cutting and selling services. BFTU and BOFEPUSU worked together to oppose the Instrument, which was temporarily withdrawn by Parliament but eventually approved as is.
The highest court in the land (Court of Appeal) has declared that the Essential services schedule is invalid and of no force or effect. Government has arrogantly disregarded the court order, showing contempt for the judicial decision. Government, through the Trade Disputes Bill 2015, now seeks to extend its definition of Essential Services further and thereby limit further the right to strike. Government has increased the number of Essential Services from 10 to 14 with an express power to the Minister to declare more services essential. Oddly the new Bill also extends the definition to support services in the listed services, in which case even a Cleaner in a school will be an essential service cadre. The effect of this development is to curtail workers' rights, and in particular the fundamental right to strike. The right to strike is the only weapon that workers have at their disposal to back up demands during collective bargaining and in peaceful coercion of employers in a relationship which is inherently unbalanced. Should the Bill be passed with the current schedule, almost all unionized workers in Botswana will fall under the definition of Essential services. Clearly this is a strategy by government to conveniently ban the right to strike. It would be unlawful for workers in any sector to use strike action in furtherance of grievances with employers.
We also note that a draft bill of the TDA was brought before the Labour Advisory Board (LAB) as per the requirement of the Employment Act, but government has turned around and ignored all recommendations rendering the whole exercise a formality. Government never really wanted to consult on the issue before forging ahead with her intensions.
The banning of the right to strike is indirectly at variance with Section 13 (1) of the Constitution which conferred on workers the Right to associate. The Right to bargain is a fundamental right and the Right to strike is an effective means to its achievement. In the absence of the strike weapon trade unions will be turned into welfare societies. We also agree that Botswana as a member of the ILO and currently as a sitting member of the ILO Governing Body is obliged to not only uphold but also promote International labour standards, not to undermine or work against them.
Government's continued hardline stance against trade unions is counterproductive and only serves to further strain the relationship between the workers and the employer. We shudder to imagine the negative impact of having Botswana Government reported to ILO and related UN bodies for violating ILO Conventions 87 and 98 on fundamental labour rights. Already there is lobbying to have Botswana removed from the ILO Governing Body with immediate effect, for violating Conventions it should be overseeing and domesticating.
Government should take the lead in showing other employers to cultivate healthy working relationships and meaningful bargaining with employees.