Over 26 000 public servants stand to be disenfranchised should Botswana Public Employees Union (BOPEU) fail in its attempt to dismantle the bargaining council and stop the 2016/17 salary negotiations, through a court case argued at the Industrial court on Friday. The union has filed an urgent application asking court to declare that the admission and continued presence of BOFEPUSU at the public sector bargaining council (PSBC) unlawful. Their lawyer, Joseph Akoonyatse, said the federation does not satisfy the requirements for admission because it is not registered and recognised as a trade union in the public service, its members are not natural persons in the public service but rather corporate entities (trade unions) and does not meet the minimum threshold. Akoonyatse said the matter is urgent because government is expected to submit a counter offer to an earlier submission by the trade union party at the bargaining council next Thursday, for salary negotiations proper to continue. Thereafter, bargaining will start in earnest in the next five days. He said these events should be preceded by a determination of who is illegible to sit at the bargaining council after BOPEU pulled out of the "acting jointly arrangement" through which the trade union party was admitted to PSBC under the auspices of BOFEPUSU.
"Trade unions should be admitted in their individual capacity before they enter into any joint arrangement. The verification process should determine if they meet the requisite threshold first before admission," he said. He said BOPEU discovered during the recent verification ordered by court that the admission of the federation to PSBC under the joint arrangement was unlawful, despite that they were instrumental to the application by BOFEPUSU and have acquiesced the same practice since November 2011. He said the verification of membership and determination of threshold was not done in a proper manner and should be declared a nullity. "PSBC has no power either by consent, acquiescence or otherwise to do that which breaches the constitution. It is a subordinate of the statute," he said. BOPEU members stand to be disadvantaged should salary negotiations continue without their representation because they were party to the initial submission by BOFEPUSU, Akoonyatse submitted.
But his arguments were opposed vehemently by lawyers representing PSBC and BOFEPUSU-Omphemetse Motumise and Tshiamo Rantao respectively. The duo spent the better part of Friday tearing apart the application by BOPEU, arguing that the current predicament the union finds itself in is self-inflicted. They said BOPEU application is frivolous and vexatious, and only seeks to remove the federation from the bargaining process without putting up a case for their inclusion, which is strange. Rantao said, according to the law, even if BOFEPUSU admission to PSBC in 2011 was an administrative error - which he disagreed with - it cannot be challenged after over four years in existence. He said court cannot make an order to dismantle the composition of PSBC only at the pleasure of BOPEU, who are only challenging it now because they have left the joint arrangement and are disadvantaged by such a decision. The lawyers dismissed claims by the union that its withdrawal from BOFEPUSU joint agreement does not imply that they also withdrew from PSBC. "BOPEU was only a member of PSBC under the acting jointly arrangement and not as an individual trade union. They ceased to be members when they withdrew from the arrangement. This is also shown in their numerous correspondences and their pending application for admission to PSBC under Botlhe Bargaining Forum (BBF) together with other unions. Clearly they are aware of what they should do," said Rantao.
"The 26 000 members (of BOPEU) have elected leadership who make decisions on their behalf, and if they fail to do they just have to live with it," said Rantao, when asked about the implications of excluding the union from the salary negotiations on their members. Motumise posited that BOPEU application seeks to throw the bargaining process into chaos and obliterate it by dislodging BOFEPUSU from the bargaining table, dismantling the PSBC and suspending salary negotiations. "The applicant wants court to save BOPEU from BOPEU. The series of events and actions, which brought the parties to court, were unleashed by BOPEU. They were not forced but rather withdrew voluntarily from the acting jointly arrangement and by extension the PSBC. The consequence of their decision is coming back to bite. It is now uncomfortable because they are out in the cold. They crave the comfort of being inside. In tennis we could call their decision an unforced error, or an own goal in football," said Motumise. "The 26 000 workers were forsaken by their leaders who switched horses halfway during the race. Where was the interest of the 26 000 workers when the leadership withdrew from the bargaining council by dumping the joint arrangement. Their choices hurt them. They cannot continue to sit in the bargaining council outside the joint arrangement through which they were admitted. There are no two ways about it and they are aware of this, hence their application through BBF," continued Motumise.
The lawyers pleaded with court to throw out the application and allow salary negotiations to continue, while BOPEU await the outcome of their BBF application, because suspending the talks will inconvenience a large number of public servants who are eagerly awaiting conclusion ahead of April 01-the beginning of the 2016/17 financial year. Judgement will be delivered on Wednesday.