Cape Town-based Senior Counsel Advocate Alec Freund on Thursday had the Court of Appeal eating from the palm of his hand, delivering a compelling opposition to an appeal by Government and Botswana Public Employees Union (BOPEU) who are challenging the scope of Public Service Bargaining Council (PSBC). Government and BOPEU also want the CoA to declare that there is nothing wrong with Government making unilateral decisions about issues in the public service that should be bargained for, among them salary increments. Holding his audience spellbound with legalistic arrogance yet remaining ever humble before the lordships, Freund cut to the chase citing excerpts from the Public Service Act, Trade Disputes Act, Trade Unions and Employers Organisations Act along the constitution of the PSBC. He said according to part 13 of PSA collective bargaining should happen exclusively at PSBC, and that bargaining can only happen with individual unions at sector level when the council becomes dysfunctional. Part 45(i) of the same act provides that every public servant has a right to join a trade union for the purpose of bargaining. "Not only is it compulsory for the establishment of the bargaining council under PSA, the PSBC shall perform the functions of a Joint Industrial Council (JIC) as stated in the TDA. The PSA, on the other hand, defines the JIC as a body constituted for an industry for the purpose of bargaining for all its members," submitted Freund, arguing that therefore decisions taken at the PSBC – which is an exclusive bargaining forum – bind all public officers as stated in the two statutes. Freund said in full appreciation of the above, BOPEU participated in the crafting of PSBC constitution, joined the PSBC together with other trade unions but later withdrew for unknown reasons. They cannot now claim to have a right to negotiate under a separate platform, he said. A pin drop silence engulfed the courtroom as the legal guru delivered an approximation of a passionate public lecture on what he termed conception of industrial democracy. He explained that in jurisdictions around the world the concept of collective bargaining is about majoritarian rule where decisions of a body constituted by statute like an industrial council, with qualification for membership bind all within an industry (in the current case, the public service). Botswana is not different, he submitted.
To ensure his audience did not miss a word of his presentation, Freund often assumed a posture that half his body faced the bench while the other in the gallery, and speak into the roof of the building, literally. Such was the intensity of a man who held the courtroom spellbound, with three judges and a half full gallery glued to his every word. Of the three judges, only Judge President Ian Kirby interrupted Freund every now and then to throw in a question, an elucidation or just a comment seeking clarification while Justice Monametsi Gaongalelwe and Zibani Makhwade sat glued to their lofty seats. They frequently scribbled on their notepads, for later reference. He warned that it would be destructive of the scheme of stature governing industrial relations in Botswana if court was to follow the proposal by BOPEU and Government, where the employer can engage trade unions outside the bargaining forum established by law. "The lawgiver (Parliament), through PSA, imposes an obligation to bargain only at PSBC. Decisions resultant of that process bind all members of the public service whether they are parties to PSBC or not, including non-unionised public officers," said Freund. Addressing the issue of bargaining in good faith, the Advocate would detour to lecture court about trends in industrial relations around the world before returning to the aspect citing a plethora of documents and past judgments discussing the concept. He said the law confers power equation between the more powerful and well-resourced employer and employees through the concept of collective bargaining. He said collective bargaining addresses imbalances of power in industrial relations, giving the example of multiple trade unions taking on a powerful employer (whom he referred to as capital) at the PSBC as opposed to an individual employee trying to bargain on their own. Consequently, Freund submitted, trade unions enjoy a measure of social power for their members through collective bargaining forums. Therefore, he pleaded with court to find that the unilateral salary increment by Government was calculated to undermine not only the bargaining process but the existence of trade unions. "Unilateral implementation only benefits the employer. It is calculated to make public servants ask themselves, what is the benefit of belonging to a trade union when government makes unilateral implementation of changes to my conditions of service and annual increment? The decision to award the 3% unilaterally was elementary, unambiguous, contemptuous and a violation of the law," argued Freund.
Presenting the state's case Advocate Timothy Bruinders had earlier struggled through his barely audible presentation, which forced judges to repeatedly plead with him to raise his voice. His submissions were disrupted by a barrage of questions from the bench, with all three judges taking turns to interrogate and dissect his case. Bruinders said the PSA definition of its members only defines the scope within which recognised trade unions can draw members but it does not dictate that those members are automatically parties to the bargaining council. Therefore, he said, the scope of the PSBC as defined in its constitution only refers to parties who are members to the council and not all public officers as suggested by BOFEPUSU. Further, Bruinders rejected arguments that the PSBC operates like a joint industrial council, saying although it covers issues of a similar nature it does not equate the JIC as envisaged in statute. Bruinders said Government's case is supported by the TUEOA, which gives the employer a right to negotiate with recognised trade unions within and outside the bargaining council. Government cannot be hamstrung in making decisions by parties at the PSBC who are still negotiating. He said the 3 % unilateral salary increment was not unfair and there is nothing wrong with government awarding the increment to all public servants, notwithstanding the status of negotiations. Justice Kirby asked if such conduct does not constitute bad faith and what would happen if negotiations resulted in higher percentage increment. In response Bruinders said other similarly circumstanced public servants not represented at PSBC will also enjoy the benefit as collateral. Yet he insisted that PSBC decisions are not binding on all public officers. "BOFEPUSU's case that Government cannot effect increment for her employees that are not members of PSBC until they have negotiated in good faith is without merit. Although PSBC constitution provides for coverage of issues of JIC nature it does not make it equivalent to one," argued Bruinders, even detailing events at PSBC where Government never submitted a counter offer on the 2016/17 salary increment long after BOFEPUSU delivered their proposal. That Government went ahead and awarded 3% increment for all public servants disregarding PSBC was a clear demonstration of negotiating in bad faith, he concluded.
Attorney Dutch Leburu, representing BOPEU, would later rise to augment arguments by the advocate engaged by Government. Insisting that the PSBC constitution only binds its members, he reiterated that BOPEU was not a party at the bargaining council and cannot be bound by outcomes of that engagement. He said even documents exchanged at the bargaining council, its constitution and an affidavit by BOFEPUSU secretary general Tobokani Rari show that the parties bargain based on a mandate from their principals and those cannot be BOPEU members. In fact, Leburu submitted that Rari's interpretation supports their case where he notes in an affidavit that notwithstanding the collapse of PSBC government still has an obligation to bargain with recognised trade unions at the work place in terms of signed Recognition Agreements the parties entered into. But Freund parried the suggestion, saying sectoral bargaining obtains where there is no national bargaining forum like the PSBC. Leburu suggested that the majoritarian rule does not apply in Botswana trade union landscape but only the individualism. Justice Kirby disagreed citing the example of an Acting Jointly Arrangement (AJA) admissible at PSBC. Under AJA trade unions give up their individualism for collective bargaining where a decision of two thirds majority binds all. Justice Kirby also warned Leburu against being opportunistic when the latter admitted on the stand that Article 3(i) of the PSBC constitution is valid despite that in his client's court papers they associate themselves with a finding to the contrary by the Industrial Court. Other judges, Michael Leburu and Motswagole have also ruled after the Industrial Court decision that the disputed section is legally valid. Adamant that there was nothing wrong with BOPEU members accepting the 3 % salary increase, Attorney Leburu argued vehemently that Justice Motswagole was wrong in finding that PSBC decisions are binding on all public servants. "There is nothing stopping the employer at any point from awarding a unilateral increment. The PSBC constitution does not alter that position. There is no compulsory bargaining referred to in the statutes (PSA, TDA, TUEOA)," said attorney Leburu.
Judgment has been reserved to a later date.