Although registered, Standard Chartered Bank of Botswana Managers Union is not a recognized Union – a three-man bench of the Court of Appeal stated.
The Union dragged the Bank to court after the bank officially withdrew recognition.
According to Standard Chartered bank, the managers union was not eligible for recognition as a bargaining representative because its membership did not meet the required one third threshold.
The Union, on the other hand, contended that it was entitled to recognition because the one-third threshold referred to only a cluster of employees in management and not necessarily as a percentage of the total workforce.
The two opposing parties had approached the court specifically on a question of the proper interpretation of Section 48 of the Trade Unions and Employers’ Organisations Act (TUEOA).
This was after the High Court ruled in favour of the Union by holding that the one third requirement meant employees of management and not of the total labour force.
“While management employees may well have difficulty in numbering more than one third of the total of the employees of that employer, many of the rights in practice afforded to non management employees are rights which management employees already have,” said Judge Foxcroft, who sat with Judges Ian Kirby and Tim Macnally.
Foxcroft said that many of the rights granted through recognition are of much greater concern to non-management employees than those in management.
The court said that non management, for instance, needed a right to access the employer’s facility to be able to bargain. The court pointed out that, on the other hand, those in management by virtue of their position did not require a right to access as they already have access.
The court rejected Union lawyer Thabiso Tafila’s contention that the act was unfair and unconstitutional in that it compelled management employees to come up with a one third of the total employees in order to be entitled to representation by a Union.
It concurred with Standard Chartered Bank attorney Mboki Chilisa that the recognition was not guaranteed in the constitution. It said that the constitution only acknowledged registration of trade Unions.
“Respondent’s members who already members of a registered union ,albeit not recognized one, are free to join whatever union they wish, but cannot be represented during collective bargaining by a trade union that does not exclusively represent manager,” Foxcroft said.
Following the judgment, the Union has indicated that it intends to lobby parliament to amend the law.
The union says the indirect message from the court is that it is not parliament and cannot make law.
In an interview with the Sunday Standard, union chair, Straight Kebagwisanyi, said that the court’s ruling did not mean the union had reached a dead end.
He said that the managers would convene a meeting soon to brief its members on the judgment. He said members were already touting ideas on how to lobby lawmakers to change the law and allow managers to form a recognizable union.
“This issue has to be taken to the legislator to rectify the law,” he said.
He said in the meantime they are still a registered union with the ability to engage the employer although casually.
“Our ability to bargain has not been taken away from us…we can still approach the employer with a proposal,” added Kebagwisanyi.