BMWU unlawfully declared irrelevant in the BCL hot potato

SHARE   |   Friday, 14 October 2016   |   By Adam Phetlhe
BCL mine workers BCL mine workers


Botswana Mine Workers’ Union (BMWU) is a duly recognised workers’ representative at the BCL whose main mandate is to promote and protect its member’s interests whatever these may be. This recognition, coupled with the Collective Labour Agreement (CLA), is between the Union and BCL management which would provide that should any interests or rights of workers and the employer be disturbed or violated the two parties would sit down and resolve them. The unfolding events at BCL suggest that workers’ rights and interests are, or have been disturbed or violated in one form or the other in which BCL management and the Union should, as per the CLA, have met and dealt with them. But political leadership has all but rendered the interaction between the two signatories of no force and effect. It is an open secret that the shutdown of mining operations at the mine will result in no-fault dismissals (losing a job for reasons not of your own making) which is essentially retrenchment. Government parastatals have over the years and up to today, retrenched workers for a variety of reasons where trade unions and management engage each other purely because each party has a constituency to serve and protect. Losing a job particularly for reasons not of your own making is an unpleasant experience where one expects the employer or business owner to do all it can to be seen to be undertaking this process in good faith. Good faith doesn’t appear to be the narrative in the prevailing circumstances because the Union is only told decisions to which they cannot make an input.


Assuming without conceding that there are valid reasons to shutdown mine operations, government as a sole shareholder disregarded Section 25 of the Employment Act which requires that as soon as the employer forms an intention to retrench employees (as it is the case), written notice of this intention must be given forthwith to the Commissioner of Labour and to every employee likely to be directly affected by the retrenchment. As it stands, the Liquidator is the one calling the shots and nothing suggests that the Union will be fully involved up to the end of the saga because the validity and relevance of the Union is as good as inconsequential. The Union is legitimately asking pertinent questions with regards to the rights and interests of its members yet none of the political leadership including the Vice President, is able whether by design or default, to provide concrete and convincing answers. Does Botswana Mine Workers’ Union have recourse in handling this hot potato? Legal gurus will be better placed to give an informed opinion and answer but one would like to argue from an uninformed position that there could be some relief sought depending on whether the Union has given up or not and waiting for fate to take its course. The starting point is that political leadership has directly taken over the retrenchment of workers with complete disregard to the lawfulness of doing so. Processes of retrenchments by organisations in which government is a sole shareholder have set a precedent where the Union plays a prominent part on behalf of its members. It should not be different in the present circumstances irrespective of the number of workers involved. This may be the biggest number of workers to be retrenched but it cannot be an excuse to disregard the precedent already set.


The second point could be to declare a dispute of right at the Industrial Court in terms of Section 18 of the Trade Disputes Act of 2004 which empowers this Court “to hear and determine all trade disputes except disputes of interest”. A dispute of right exists for BCL employees in that their employment status is on the firing line. While the actual termination is not yet pronounced and it could be argued that a cart is put before the horse, circumstances and indications nevertheless suggest that this will ultimately be the case. Legal gurus should be able to advice. Alternatively, an order could be sought to interdict any process which purports to exclude the Union from meaningfully safeguarding its members’ rights and interests. Even if government is a sole shareholder who has been bailing BCL out of its miserable financial quagmire overtime, she cannot choose, however aggrieved with the turn of events she may be, processes which fundamentally shut the door on the face of other critical stakeholders like BMWU. I want to assume that BCL had (prior to political involvement) a properly constituted board, executive management and BMWU who by law, should have dealt for purposes of this article, with the Union’s misgivings. Even if the board and management may have been unable to deal with the issue for one reason or the other, the shareholder should have ensured that the Union is granted meaningful space and platform to seek and be granted adequate answers to its question. Government is under obligation to ensure that her enterprises are properly managed but this cannot and shouldn’t be at the expense of good faith and duly constituted structures like BMWU. As it stands, workers are in a desperate and vulnerable situation like an animal wailing in the wilderness because like as alluded to above, they are a victim by association with the mining company. Their fate is at the mercy of political leadership and the Liquidator and not the lawfully established structures meant to deal with situations similar to the present ones. Judge for yourself!
Adam Phetlhe
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