Govt, unions fight gets dirty

SHARE   |   Monday, 11 April 2016   |   By Ditiro Motlhabane

The animosity between government and public servants deteriorated into an ugly spectre when the latter forced two cabinet ministers to withdraw Bills from the floor of Parliament midweek, and interdicted the awarding of a three percent salary increase for 2016/17. Justice Harold Ruhukya of the Industrial Court will tomorrow (Monday) rule over an application by BOFEPUSU and her trade unions to stop government from awarding the 3 % salary increase announced on March 31. On Thursday public sector federation, motivated the interdiction of the unilateral implementation of a 3 % salary increase for public officers, and to enforce the right to have government bargain in good faith. The federation rejects the 3 % offered by government because it is not a product of the Public Sector Bargaining Council (PSBC) process, which is mandated to negotiate salaries and conditions of service.

From the onset Justice Ruhukya differed with government attorneys, Tefo Bogosi and O. Thamuku on their defence that government took the unilateral decision because PSBC is defunct and there was nobody to bargain with. Thamuku conceded that there was no consultation or negotiations undertaken by government with individual trade unions before the increment was declared. She argued that such could not be done because salary negotiations are not sectoral issues and therefore once the PSBC has been formed, government cannot negotiate salaries with individual trade unions. The judge was also not convinced by the state lawyers' claim that because the accounting process has started inputting data to the salaries of public servants for the month of April such cannot be suspended to a later date, and the increment paid in retrospect. Justice Ruhukya put it to the state attorneys that it cannot be right that government, which is a party to PSBC, can increase salaries without any negotiation of bargaining with employees. "You need to understand that the PSA changed the way things are done in the public service. For the employer to make a unilateral decision was wrong," he said.  

Representing BOFEPUSU, attorney Mboki Chilisa said the unilateral decision was taken in bad faith, and is in breach of the obligation to bargain placed on the employer by the Public Service Act (PSA). He said the scope of the PSBC- being a joint industrial council - extends to all public servants and is not only restricted to trade union members. Chilisa said the Director of DPSM Ruth Maphorisa does not enjoy any extra powers bestowed on her by the PSA to disregard the bargaining council, which is set up by a statute. He argued that even if the bargaining council is non-existent, as Maphorisa suggests in court papers, government still has an obligation to negotiate salaries and conditions of service with individual recognised trade unions as stated in the Trade Union and Employers Organisations Act (TUEOA). Further, Chilisa said it is a flawed argument for government to suggest that the PSBC is defunct, simply because of the judgment of Justice Tebogo Maruping-who had found that the federation is not a member of the Council. BOFEPUSU has noticed an appeal, and by so doing has suspended the enforcement of the whole judgment, therefore Maphorisa cannot claim that there was nobody to bargain with, Chilisa said. The appeal is to be heard at the Court of Appeal on April 26. 

On the issue of urgency, Chilisa said the unilateral increase of salaries by government is calculated to discredit trade unions and create an impression that workers do not need them, thus threatening their very existence. He said the issue of salaries is of major public importance and if not expedited could cause irreparable harm as public servants will have no alternative remedy. In an interesting turn of events, two public sector unions – TAWU and BONU – opposed the application arguing through their lawyer Otto Itumeleng that BOFEPUSU trade unions are not members of the PSBC. He also insinuated that Manual Workers Union was not a recognised trade union in the public service, and therefore was not properly before court. However, Chilisa dismissed such argument as frivolous, unmeritorious and baseless. "If DPSM - the employer who are in court now - does not have a problem with recognition granted Manual Workers union why would BONU and TAWU be concerned? Recognition of trade unions is not an issue for court to decide but DPSM. If an interdict on the 3 % increase sought is to affect only BOFEPUSU members why would TAWU and BONU be concerned with such a development?" asked Chilisa, rhetorically.

Away from the fight over salary increment,  a storm is brewing between the parties after government's attempt to sneak in two controversial Bills into parliament during the week - BEC Amendment Bill and Trade Dispute Act (Amendment). Realising the dangers of the two bills to workers and trade unions rights, BOFEPUSU engaged in lobbying MPs to oppose them. The federation requested to address the General Assembly but were turned down by the Speaker of Parliament. The federation then resorted to addressing political party caucus meetings. They managed to address only opposition caucus twice after being rejected by the BDP. Correspondence and telephone communication with BDP chief whip in Parliament could not bear any fruit. "We find it disturbing for the speaker to deny us access to address the General Assembly and for the BDP to thwart efforts to their MPs who have obligation to listen to concerns of society," said Ketlhalefile Motshegwa of BOFEPUSU.

Dow makes U-turn
On Monday afternoon the Minister of Education and Skills Development (MoESD), Unity Dow was forced to withdraw the Botswana Examinations Council (Amendment) Bill of 2015, after intense lobbying by teacher trade unions and BOFEPUSU. Dow explained that she intends to address issues raised by teachers' unions concerning it. The bill, which was proposing among other things, for the chief executive officer of BEC to be appointed by the minister and teachers to invigilate external examinations and mark course work was in the second reading in Parliament. Before withdrawing the Bill, Dow said although she was confident that enough consultations were made before it was tabled, she had since become aware of a letter written by teacher unions raising issues concerning some clauses in the bill. Therefore, she said she would like to give herself time to consult over the issues raised. BOFEPUSU and BOSETU Secretary General Tobokani Rari said "We  thank  Minister Dow and the entire Executive for being bold to withdraw the bill, and those in the ruling party who came out to support the cause of workers. This is a sign of good leadership that responds to the concerns of the citizenry".

Batshu suspends Bill
Meanwhile the debate of a Bill seeking to amend to Trade Dispute Act to make the entire civil service cadres providers of essential service was suspended after Parliament was informed about the lawsuit challenging its contents. The Minister of Labour and Home Affairs Edwin Batshu withdrew the Bill to allow parliamentary counsel to investigate issues complained of by the federation. Attorney Nelson Ramaotwana represents the federation in a case yet to be allocated a date for hearing. BOFEPUSU complains that in 2014, the minister failed to consult them on the envisaged draft amendment of the TDA. They said the draft, which was circulated and presented to the Labour Advisory Board, excluded teaching services, government broadcasting services and immigration and customs services. The Bill was later gazetted on 22 June 2015, including the above mentioned services despite that they were never consulted. This, the federation argues, breaches the principle of natural justice and infringes their right to be heard, as none of the members of the LAB could claim to adequately represent the excluded cadres. The federation is seeking an order to compel Batshu to hold consultative meetings with them and to declare section 46 of the Trade Dispute Bill too broad and / or wide including non-essential services.