Botswana Railways ill-fated restructuring exercise may have hit another brick wall with the legitimacy of the Botswana Railways Amalgamated Workers Union (BRAWU) leaders who are negotiating with management being questioned.
In a document titled “BRAWU in Constitutional Crisis – or It Isn’t”, the union’s former secretary general, Adam Phetlhe, argues that the term of the current leadership elapsed on July 26 this year and, as a result, has no mandate to negotiate on behalf of members.
“The crisis therefore begins from the 26th July 2013 onwards and subsequently renders structures elected during the 2010 congress illegal, unlawful and unconstitutional…. Legally, strictly and technically speaking, BRAWU is in a power vacuum because the structures’ mandates have neither been renewed nor extended by lawful authority. The lawful authority in this case is either the Delegates or Extra-Ordinary Congresses,” Phetlhe wrote in a letter he circulated among members, drawing the ire of at least one.
Using some pretty tough language, Rapula Phefo wrote back to say that the executive committee was not in office illegally despite the fact that its term has elapsed.
“The restructuring exercise has been dragging since early last year, so good thinking people cannot hold elections and elect a new committee while in the middle of this complicated situation…. Comrades, to sum up, some of the information presented by the author is a jargon of rubbish and rigmarole.”
The testy back-and-forth that followed prompted another union member, Jacob Taolo, to step in as a peace broker.
“Dear colleagues mince you words,” he implored, quoting two verses from as many books of the Bible.
Prior to the start of this debate, BRAWU had planned a delegate conference for this Saturday which will indeed go ahead. Phetlhe argues that this would still not be good enough because constitutional requirements on notification timelines would not have been met.
If what he says is genuine (and there is at least one legal expert who agrees with him), there could be enormous dislocations in the process farther down the road because the outcome of an unlawfully constituted negotiating team would lack legitimacy.
The expert (a government lawyer who cannot be named because he is not authorised to speak to the press) draws a parallel with what happened a few weeks ago when the government distanced itself from a statement made by former vice president, Mompati Merafhe, about the Zimbabwean general election.
While he absolves management of blame, the lawyer asserts that “it is not wise” for it to negotiate with a union leadership operating without constitutional mandate. He adds that employees aggrieved by the outcome would have a solid case should they choose to go to court. For the organisation, that would be a major setback as the process, which should have been completed in December last year, is already behind schedule by close to a year.
BRAWU is in no better position because the last thing it needs at this point in time is dissension within its hitherto intact ranks. The union is currently fighting a major battle with management over the restructuring exercise and has strongly hinted at the possibility of going to court. Last month, management made an offer to non-union members to apply for an improved exit package. This discrimination appears to be based on a Court of Appeal judgment that says that a union cannot negotiate on behalf of non-union employees.
In response to this offer, BRAWU’s secretary general, Tsenang Nfila, said that the union lawyer “has advised that management is out of order”. The two parties have already fought at the Gaborone Industrial Court and may be headed back there.
“Management tactics can only help delay the process further as we are likely to battle it out in court. BRAWU is still consulting, we will keep you posted,” Nfila wrote in a letter to union members.
The exit package offer was designed in such manner as to leave very little wiggle room for employees and Sunday Standard”s information is that there was overwhelming response to this offer. However, this alone would not be good enough for management because retrenchment exercises are also an opportunity for organisations to creatively weed out “troublesome” employees like unionists.
The fact that the latter didn’t qualify for the offer means that BR would not get such opportunity.