Government and Botswana Public Employees Union (BOPEU) have shared spoils with Botswana Federation of Public Sector Trade Unions (BOFEPUSU) in a protracted legal battle over the scope of the Public Service Bargaining Council (PSBC). The Court of Appeal ruled this week that although decisions of the PSBC do not bind public servants who are non-unionised or those whose trade unions are not admitted to the council, Government is not permitted to grant unilateral wage increases to public servants during the period when wage negotiations are in progress as this constitutes negotiating in bad faith. "(It is) an act of bad faith for Government to grant a unilateral increase to public servants during the period set aside each year for wage negotiations. This could be construed as being intended to frustrate on-going negotiations," reads part of the judgment delivered on Monday. Secretary General of the federation Tobokani Rari says they are happy that the CoA agrees with them in finding that Government has all along been bargaining in bad faith when it increased salaries when PSBC was still seized with negotiations. "We have been vindicated as the CoA has said it unequivocally that this conduct by Government is typical of bad faith and is prohibited. This goes a long way to tell the public the federation has not been cry-babies all along when we complained about the deliberate and clearly orchestrated action of frustrating the PSBC. The judgment is quite telling in the respect that the collapse of the PSBC due to its non-functionality lied squarely at the doorstep of government due its bad faith bargaining that they were involved in, this vindicates us and we are happy that at the end the public got the truth as pronounced by the CoA," he said. Notwithstanding the partial victory, Rari said they are not happy with the CoA determination that the scope of the PSBC is only restricted to public servants whose unions are admitted to the council. Such determination, he said, clearly separates Botswana from all countries of the world, as the only country that has an Industrial Council that is very limited in terms of scope.
The three judges; Ian Kirby, Monametsi Gaongalelwe and Zibani Makhwade, go further in their judgment to offer advice on the way forward to revive the comatose PSBC. The effect of the withdrawal of all trade unions from the PSBC is that there is currently no platform for bargaining taking place. "This is a step in retrogression. It creates an unhealthy situation which will be counterproductive in the end, with uncoordinated parallel negotiations being held with sundry unions. I must say this latest development causes concern," the judges observed, emphasising that trade unions have been created for constructive collective bargaining and their forming a bargaining council was a valuable move for the benefit of members. The judges also concur that an operative PSBC gives Government the opportunity to benefit from properly researched submissions advanced by the unions and to receive feedback on its own proposals developed during the budgetary process, so that an acceptable and affordable compromise can be attained each year. "This is a positive process for the benefit of the nation, and should not be viewed in a negative light," they warned.
Therefore, the judges opine that the way forward would be for Parliament to consider amending the relevant statutes to set by law the annual negotiating period, and to remove some of the obstacles to admission to the bargaining council. The thresholds in respect of both recognition of the trade union by the employer and for admission to the PSBC are too high and make a fully inclusive PSBC impossible, leading to trade unions desirous of becoming parties to the council being compelled to enter into acting jointly arrangement which have their own problems, the judges ruled. Prohibitive thresholds can also lead to one sector of the public service being over represented on the council at the expense of the others, they said. Government and BOPEU had asked 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. They argued that the scope of the PSBC as defined in its constitution only refers to parties who are members to the council, granting exemption of those outside. Opposing the application, BOFEPUSU had pleaded with court to declare that decisions taken at the PSBC – which is an exclusive bargaining forum – bind all public officers as stated in the Public Service Act and the Trade Disputes Act, supported by the constitution of the PSBC. The federation also argued that, by awarding a 3% increment to all public servants for 2016/17 disregarding PSBC, Government was undermining the council and a clear demonstration of negotiating in bad faith.
The judgment is a win-win outcome for both parties.