"Pay April salaries but..."

SHARE   |   Monday, 10 April 2017   |   By Ditiro Motlhabane
BOFEPUFU representative, Attorney Mboki Chilisa BOFEPUFU representative, Attorney Mboki Chilisa

The Accountant General has been warned that she may have to open up the Government accounting system to IT experts appointed by public sector trade unions to investigate her claim that applications used therein to process salaries are not reversible. Justice Tshepo Motswagole sounded the warning on Thursday during a hearing of an urgent application through which BOFEPUSU and its member trade unions seek to force government to comply with a judgment delivered two days earlier nullifying the 3 % unilateral salary increase of public servants in March 2016. Government contends that the salaries for April have already been prepared. Opposing the application, government lawyers argued that it is impossible to reverse the system once an instruction has been performed and therefore can only comply with the court order after the month of May. Instead, the lawyer suggested that the state need time to bring in experts on the salary system from abroad to explain why it cannot be reversed. But the unions, who are adamant that such is not true, disagree. Attorney Mboki Chilisa, representing BOFEPUSU and her member trade unions argued that public service salaries have not yet been prepared, and that the system allows for reversal. "We have a court order that has to be complied with. It is not for government to choose when to comply. One of their witnesses has revealed in an affidavit under oath that it is difficult to reverse the process and that her department is short of personnel to do so, but she does not say it is impossible as they are now arguing before this court," said Chilisa, shortly after the judge warned the state lawyer that he runs the risk of constructive contempt if they are playing delaying tactics. "You should present evidence before court to support your claim that it is impossible to reverse the process in your system. Otherwise it is just your word, which is not supported by expert evidence," warned Justice Motswagole, before granting government time to bring experts to corroborate their argument.

Another lawyer, Otto Itumeleng, representing BOPEU urged court to dismiss the application because it was not properly before court. He said the application should have been registered as a new matter before the Registrar who will then appoint a new judge because it raises issues not covered in the original cases and the litigants are different. But Justice Motswagole brushed the argument aside, saying it is simply a technical attempt to block proceedings. He said his court is best placed to hear the application for compliance, as long as it has been received by the Registrar, because he is well acquainted with the details of the case. Justice Motswagole then issued a temporary order for government to either comply with the judgment by stopping payment of 3% and 4% in the month of April 2017, and if not, return to court on May 24 with expert evidence to demonstrate why it was impossible to do so. This means government should not pay April salaries that are inclusive of the 3 % and 4% increment unilaterally awarded in the financial year 2016/ 17 and 2017/18 which court has declared unlawful. Should that happen, government will have to bring expert evidence to demonstrate that the payroll could not be reversed to remove the increment for the month of April, failing which, she will be held in contempt of court. Trade unions on the other hand are also lining their own payroll experts and will apply to court to have them scrutinise the system which government claims is impossible to reverse. The judgment, which BOFEPUSU wants enforced, was delivered by Justice Motswagole on the 4th April 2017, reviewing and setting aside and declaring of no force and effect the unilateral salary increment by Government of 2016. On the scope of the bargaining council, Justice Motswagole ordered that the Public Service Bargaining Council (PSBC) is the only forum mandated to negotiate salaries and conditions of service for all public officers employed under the Public Service Act, except specified otherwise. Justice Motswagole said in his judgment: The decision of the Director of Public Service Management (DPSM) of 30 March 2016 communicated through Directive No. 4 of 2016 unilaterally increasing the wages of public officers by 3% is hereby reviewed and set aside and declared of no force and effect; All public officers employed in terms of the Public Service act, save as expressly excluded therein, fall within the scope of the Public Service Bargaining Council; Wages and salary increase in respect of such public officers are subject to negotiation at the Public Service Bargaining Council and cannot be effected unilaterally by the Government.
Government and Botswana Public Employees Union (BOPEU) have been ordered to pay the costs of the lawsuit.

No free riders
Motswagole's judgment has reinforced a proposal by trade unions that an agency shop floor levy be introduced at the Public Service Bargaining Council (PSBC) against non-unionised public servants. The levy covers costs incurred by trade unions in the operation of the PSBC secretariat, expert advice needed for bargaining and costs incurred through negotiators, out of the realisation that non unionised public servants continue to benefit from the bargaining process in terms of negotiated salary increases, improved conditions of service and assistance with alternative dispute resolution mechanisms (mediation and arbitration). Trade unions sitting at the PSBC have written to the Secretariat requesting that parties convene tomorrow (Monday) to resume negotiations of salaries and other conditions of service for 2016/17 and 2017/18. The request comes days after the High Court ruled that the scope of the bargaining council covers all public servants, and that decisions taken there affect them equally. BOFEPUSU has proposed a 10.5 % salary increase while government has awarded 3 %. Among other issues before PSBC, the trade union wants issues of medical aid and pension extended to employees who were classified as industrial class in the past. 

On Wednesday BOFEPUSU paraded their new catch, University of Botswana Academic and Support Staff Union (UBASSU), before the press to add to the number of trade unions that have affiliated recently since opening up membership. UBASSU President Dr Kaelo Molefe announced that they have joined the federation to promote unity among the working class and to fight injustices visited on workers by employers from the same corner. He said they took the decision to withdraw membership their from Botswana Federation of Trade Unions (BFTU) and cross the floor after realising that it is almost non-existent and is detached from current developments in the local labour front. Dr Molefe said their concern about the silence on national issues at BFTU was confirmed when the federation failed to support their own member Botswana Mine Workers Union (BMWU), particularly during the closure of BCL mines where 6 000 workers lost their jobs in October 2016. Ironically, BOFEPUSU rallied behind the miners and pledged solidarity in petitions and protests launched by mine workers union against government. "We are a progressive trade union, who want to remain relevant and in touch with the realities of our times. We want to align ourselves with BOFEPUSU who have done a sterling job in fighting for workers' rights," he said. BOFEPUSU president Johannes Tshukudu has also expressed optimism that the new leadership at Botswana Public Employees Union (BOPEU) led by Masego Mogwera will reconcile the two parties. He revealed that they have already written to Mogwera, inviting her trade union to dialogue.