• as fight over 4% salary increase continues
Public sector trade unions will know by next if they have been granted an opportunity to stop President Ian Khama and other government organs from making unilateral decisions, disregarding the public sector bargaining council.
A panel of three judges constituted by Justice Isaac Lesetedi, Ian Kirby and Martin Howie on Friday heard an appeal by public sector trade unions after an urgent application they had filed with the high court was thrown out for lack of urgency. Senior Counsel Advocate Alec Freund of Cape town spent the whole day Friday persuading a panel of three court of appeal judges to accept arguments that the decision to throw out their urgent application seeking to interdict public service salary increase last year was wrong.
Representing BOFEPUSU and the five trade union members, Feund said the decision was erroneous because the judge failed to apply himself properly to appreciate the prejudice his clients suffered. "His decision harmed my clients' reputation. If the matter is referred back to the high court to follow normal process it can drag on causing further harm and impacting on salary negotiations for the following year," he said.
He said although they no longer seek to interdict the 4% increase because it has already been implemented they are undertaking a damage control exercise and fighting for principle. Freund said it is fundamentally wrong that court found no prejudice against trade unions. He said ruling that the matter was not urgent precluded the possibility of any kind of interdict, which was the only potential mechanism to protect the right of the workers. He argued that an employer cannot unilaterally increase salaries for public servants disregarding the bargaining process and negotiating in bad faith. He posited that government had an obligation to negotiate in good faith. He said the judge was manifestly wrong to conclude that there was no harm. The judge was erroneous in his understanding on urgency. The ruling of no urgency was devastating to the workers, he said. "The power relations between the parties should not be impermissibly altered by the employer by making unilateral decisions. There is no remedy after effect for the unions because the horse would have bolted by the time the negotiations got underway," he said
Freund said Section 12 of the Public Service Act (PSA) used in the defence by the state does
not arise and cannot be used in defence. He said the PSA, the Trade Unions and Employers
Organisations Act (TUEOA) and the Trade Disputes Act (TDA) create statutory sources of
obligation. He said as long as a trade union is legally recognised there is an obligation to
negotiate conditions of employment, the variation thereof. Section 48(4) of the Trade
Unions and Employers’ Organisation Act [Cap 48:01] (“the TUEO”) obliges an employer which
has granted recognition to a trade union to “bargain in good faith”with the union on various
matters, including remuneration and other terms and conditions of employment. Where, as
in this case, a joint industrial council exists, such negotiation takes place in, and between the
parties, to the council.
Freund said Khama's announcement of the 4% salary increase before negotiations even started undermined the bargaining process. He said there is nowhere in international law where the employer can make unilateral decisions regardless whether it will be favourable or not to the employees. He said the president does not have power where government is bound by statutory obligations. "The president being an organ of government cannot exercise executive discretion/ prerogative powers conferred on him by any law. The President cannot in the exercise of powers of prerogative invoke his powers to act in breach of Government’s statutory obligation to negotiate in good faith,“ he said.
The process of negotiating salaries and conditions of service for the public servants falling
within the council was, by agreement, due to commence on 10 April 2014. Before the
negotiations commenced president Ian Khama announced a 4% increment in salaries at a
public meeting held on 26 March 2014. The DPSM initially asserted that this only applied to
employees who were not members of trade unions. It soon became obvious, however, that
this was not correct. On Monday April 7 2014 the Daily News reported on a speech given by
Khama at Taung on Thursday 3 April, in which he stated the following:There would be a 4%
salary increase for all public servants starting from April; This 4% increase had been offered
to the unions; Government could not afford to wait for the council because it takes too long
to conclude salary negotiations; and Though the decision did not stop the process of the
council, Khama cautioned that the government “was constrained” to offer more. Presumably
this was intended to mean that it was thought unlikely that it would be in a position to agree
to pay more than the 4% already offered and being implemented.
David Moloise for the state contended that there was no urgency in the matter. He however said in his view it is wrong for the high court to have dismissed the application as not urgent but later granted leave to appeal. That decision indicated that court believed that the case is arguable on appeal. "If court should find that the lower court erred in finding that the matter was not urgent we would suggest that it be referred back to the high court for proper ventilation of issues," he said.
The DPSM argued below that the President exercised a prerogative with which the Court
could not interfere. A prerogative is a common law power which inheres in the Head of
State. It is a concept inherited from English Law which recognised the Crown’s inherent
powers to confer honours, pardon offenders, declare war, make peace, appoint and
recognise diplomatic agents, and ratify international treaties.