Public servants currently enjoying the 3% salary increase awarded by government last year could lose the benefit on May 12, when High Court judge Tshepo Motswagole renders a final interpretation of the law on the scope of the Public Sector Bargaining Council (PSBC). Appearing on behalf of four trade unions affiliated to BOFEPUSU, attorney Mboki Chilisa, argued on Friday that the scope of the Bargaining Council extends to all those employed in the public service as stipulated in its constitution. Chilisa said should court agree that the scope of bargaining council covers all public servants, it should go further and determine that the March 30, 2016 decision to award a 3% salary increase to public servants be declared unlawful and set aside. He said such award by government was a clear breach of duty to bargain in good faith as it was calculated to undermine the bargaining council, which was yet to sit and decide the issue. Chilisa argued that with the exemption of disciplined forces, the constitution of the bargaining council extends its scope to the entire public service. He said such position is supported by provisions of the Public Service Act (PSA) which state that PSBC performs all functions of a Joint Industrial Council. The Joint Industrial Council in turn is defined by the Trade Disputes Act (TDA) as a body constituted for a trade or industry to negotiate conditions of service.
Opposing the application, state attorney Tefo Bogosi said the PSBC is a creation of the Public Service Act (PSA) and its constitution should be construed under such. He said public servants join trade unions voluntarily for purposes of bargaining, which is not mandatory, to exercise their freedom of expression and association. His biggest argument was that there is a clear distinction between management and junior public servants and therefore decisions made by PSBC are limited to employees belonging to recognised trade unions admitted to the council. Further, he said the constitution of the bargaining council, as it stands currently, has been crafted to exclude management. Therefore, he said, decisions of bargaining council cannot be binding on management who do not have an organisation with legal standing to represent them at PSBC. He however failed, when quizzed by the judge, to explain if there is any law which prevents management cadre from forming a trade union to represent their interest. Justice Motswagole asked Bogosi if in his view there should be a separate PSBC for management, to handle bargaining for issues pertaining to senior management. He asked if it is impossible for the existing structure to bargain for all employees in the public service. But Bogosi insisted that they oppose the application.
Also in court were lawyers representing Botswana Public Employees Union (BOPEU) and other minority trade unions, who tried to persuade court that they should not be affected by the decision pertaining to PSBC because they are not members. But Justice Motswagole quashed the argument, saying the minority unions are not at the bargaining council simply because they could not meet the threshold for admission. Although he granted their attorney audience, he stopped short of dismissing his submission, saying everything will fall into place when he makes a determination on the scope of PSBC. "If the decision is that it covers all those employed in the public service then your members will be affected," he said.
The Friday application emanates from the case in which BOFEPUSU trade unions were successful in interdicting the 3% salary increase for their members. The Industrial Court then made a determination that the PSBC is responsible for determining the conditions of service for only those public servants whose unions are admitted into the PSBC at that time. BOFEPUSU felt that such a determination was not only erroneous, but was detrimental to the functionality of the PSBC, hence filing a case with the high court for a final determination on the matter. Government negotiators then cited the pending court decision on the scope of PSBC to refuse to continue with negotiations late last year. An urgent application to try to force government back to the negotiation table, as BOFEPUSU felt negotiations for the current financial year could be concluded notwithstanding the determination over scope failed when Justice Godfrey Radijeng said there was no urgency as the issues could await the decision of Justice Motswagole.