A week after public servants who belong to BOFEPUSU trade unions received their 3% and 4% back pays for 2016/17 and 2017/18 salary increments, the award will on Thursday take centre stage in an appeal challenging the scope of Public Service Bargaining Council (PSBC). Masego Mogwera, president of Botswana Public Employees Union (BOPEU) will on Thursday reunite with strange bedfellow Ruth Maphorisa – the Director of Public Service Management (DPSM) – at the Court of Appeal, where they are challenging the scope of the PSBC. The grounds of appeal and the opposition to same were filed by South African based senior counsel at the end of September 2017. The appeal is centred on a judgment by Justice Tshepo Motswagole, who set aside Directive No. 4 dated 30 March 2016 issued by Maphorisa awarding three per cent salary increase across board to all public servants. Following an interdiction of the unilateral salary increase obtained by BOFEPUSU in May 2016 at the Industrial court, Government continued to pay the increment to employees who are not affiliated to the federation or its member constituents as directed by court. Unhappy with the industrial court decision, which limited the scope of the bargaining council to its members only, BOFEPUSU applied for a review of the 2016 salary increase pleading with the High Court to declare that all public servants employed under the Public Service Act fall within the scope of the PSBC. The federation wanted court to further declare that all changes to terms and conditions of public officers falling within the scope of the bargaining council are subject to negotiation at PSBC. Ultimately, the federation asked Justice Motswagole to set aside the April 2016 unilateral decision of Government to award a 3% salary increase to public officers that fall within the scope of the PSBC.
Justice Motswagole concurred, and on April 04, 2017 ordered Government to stop paying the 3% salary increase to employees who are not affiliated to BOFEPUSU until negotiations at PSBC are concluded in good faith. The judge found that unilateral increment was done in bad faith at a time when negotiations were still on-going at PSBC. Essentially, the judge ruled that decisions emanating from negotiations at PSBC affect all public officers, except discipline forces who are specifically excluded. The judgment nullified and blocked unilateral salary increases made by Government to management cadres, non-unionised public officers and those belonging to trade unions outside the PSBC. Before Motswagole's judgment, another High Court judge had also set aside the 4% unilateral salary increment announced by Permanent Secretary to the President (PSP) Carter Morupisi to public servants for 2017/18, before negotiations on terms and conditions were concluded at PSBC. Justice Michael Leburu had also found that Government was in breach of its duty to bargain in good faith with BOFEPUSU. Government was saved the humiliation of having to terminate the two salary increases by a stay of execution order granted by Justice Monametsi Gaongalelwe, following an application by a coalition between Government and BOPEU. Warning that courts should not interfere in contractual arrangement between employees and their employers Advocate Timothy Bruinders – Senior Counsel engaged by Government – argues that BOFEPUSU does not have a right to stop increment for public servants who are not its members. They cite a court of appeal decision in a matter between FNBB and Botswana Bank Employees Union (BOBEU), where it was ordered that a salary increment for employees who are not members of unions is a private contractual matter between them and the employer. They add that by insisting on representing non-union employees and those belonging to trade unions outside PSBC the federation is trampling on the freedom of association, which every employee has a right to.
Dismissing Motswagole's judgment as factually wrong Bruinders argues that the parties before him were not the PSBC acting as a council appearing on behalf of its constituents, but trade unions seeking to represent non-union members. He said it was legally wrong for Justice Motswagole to conclude that the scope of PSBC includes all public servants, thus giving the federation the right to interdict salary increments for employees not affiliated to BOFEPUSU until it has negotiated in good faith. Further Bruinders argues that Motswagole misdirected himself in that he misconceived the scope of the bargaining council, which they argue does not identify who is bound by decisions in the PSBC. It identifies who may join and participate in bargaining at PSBC, they said. Bruinders also submits that trade unions that do not fall within the scope of PSBC may not join and are not bound by its decisions. "There is no statutory provision imposing a duty on Government to negotiate in good faith with non-parties (of PSBC). Nor is there one that stops Government from awarding increases to employees who are not members of the unions at PSBC, unless they negotiate in good faith at PSBC," he argues. Therefore, Bruinders concludes that the salary increase did not expose BOFEPUSU to any irreparable harm. Opposing the appeal, Cape Town-based Senior Counsel Alec Freund, first observes that BOPEU and Government appear not to take issue with the proposition that the Government may not ordinarily make increases unilaterally in respect of members of the unions negotiating at the PSBC but to contend that the Government is entitled to make unilateral increases to non-members.
To support his argument Freund refers to Article 3 of the PSBC constitution titled “Registered Scope”, which provides: “The registered scope of the Public Service Bargaining Council is the Government as the employer and all employees of the Public Service as defined by Article 2.11 of this Constitution". He says according to Trade Disputes Act and the Public Service Act the PSBC is a joint industrial council established for the purpose of negotiating terms and conditions of employment for all employees in the industry concerned. "This necessarily implies that the constitution of the PSBC must provide for the PSBC to negotiate the terms and conditions of employment of all employees in the public service (to the extent that they are covered by the PSA). The only qualification to this is that such negotiations are to apply only in respect of those matters that are regulated by uniform rules, norms and standards that apply to the public sector, or assigned to the Government as employer in respect of the public sector. Moreover the PSA provides that the constitution of the Council “shall provide” for the category or categories of employees “to be covered by” the Council. This too necessarily implies that the categories of employees “to be covered” by the PSBC are governed by agreements concluded in the PSBC (such as wage agreements). The PSA itself, therefore, establishes as a matter of statute that agreements concluded in the PSBC apply (with the stipulated exceptions) to all employees in the Public Service," argues Freund.
Consequently, Freund dismisses as clearly wrong the contention by Bruinders that wage agreements concluded in the PSBC only govern the members of the unions which conclude them and not others. He says the FNB judgment, which Government relies on in their appeal, is different in that it had nothing to do with a joint industrial council or the PSBC. It concerned workplace negotiations between a single employer and a union, as regulated by section 48 of the Trade Unions and Employers’ Organisations Act, he submits, and add that none of the provisions of the PSA, TDA or of the PSBC’s constitution which are determinative of the present issue had any application to that case. He argues that in that case the pay and annual salary increments of non-union employees were, in terms of the applicable recognition agreement, not negotiable matters. "In the present case, the very function of the PSBC is to negotiate in respect of all employees in the public service (with the statutory exceptions) and not merely on behalf of the unions which are party to the agreement. The statutory function of the PSBC also reflected in its constitution is to negotiate terms and conditions of employment which will apply across the public service, not only to members of the unions which are party to the agreement concerned, but also to non-members," he says. Further, Bruinders submits that implementing wage increases in respect of non-members but not in respect of members, when the PSBC is engaged in negotiating the increases which are to apply equally to both categories, places the unions’ members, and therefore the union, at an obvious disadvantage, irreconcilable with good faith bargaining. It effectively says to all employees (both members and non-members) that it is better not to belong to the unions on the PSBC than to belong to those unions, he argues, adding that this undermines the role intended by the lawgiver to be performed by the union parties to the PSBC.