Thursday, January 21, 2021

Attorney General compelled DPSM to recognize small unions

The Directorate of Public Service Management (DPSM) was given a no option advice by the Attorney General’s Chambers to grant recognition to the Botswana Government Workers Union (BOGOWU) and the Tertiary Trainers and Allied Workers Union (TAWU). An investigation conducted by the Sunday Standard reveals that whilst the decision might have pushed DPSM against their original position, it is feared to have far reaching implications on the politics of labour.

Government’s readiness to deal with employment issues and the challenges that come with the increasing number of Unions is also under serious scrutiny.
To highlight the seriousness of the issue, credible sources inside Government have intimated that the Minister of Presidential and Public Administration, Daniel Kwelagobe, went on a frenzy last week, summoned the officials at DPSM and demanded a written explanation as to why BOGOWU was accorded the status of representative for collective bargaining purposes on behalf of its members.

Apparently, the Minister was acting on account of a complaint lodged with him by the National Amalgamated Local and Central Government and Parastatal Workers’ Union (NALCG&PWU), otherwise known as the Manual Workers Union (MWU). The complaint centred on DPSM’s latest decision to recognize BOGOWU and TAWU as collective bargaining agents for their respective memberships.
Pearl Matome, Deputy Director at DPSM, denied that they were compelled to recognize the Unions since it has always been a matter of time and consultation that stood to determine, “Our ultimate worker employee relationship, subject to the provisions of the law.”

Matome acknowledged that they are indeed in the process of attending to a written complaint from the MWU the contents of which she was reluctant to disclose, adding that it is still an internal matter. She stated that her office is aware of the MWU’s contemplation of taking her department to court, but again she maintained a no comment response to the question of whether they will appease the complainant by reviewing the contested recognitions.

Johnson Motshwarakgole, National Organizing Secretary of the MWU, has said in an interview that BOGOWU does not have a membership that amounts to the figures they have quoted.
“There is no way that they can prove such figures exist.”

Motshwarakgole further questioned the criteria and wisdom of the legal opinions that inspired DPSM’s decision to grant both BOGOWU and TAWU recognition. In addition he pointed out that MWU has as enshrined in a collective bargaining agreement with Government settled not recognize any other union aiming to represent industrial class employees in the country.

Whilst both Motshwarakgole and Matome would not divulge the contents of the Legal opinions from the AGC, they seemed to occupy opposed positions.
Although Matome claims that they have not been pushed into their current stand, correspondence from her office addressed to TAWU, dated 02 October, 2008 relaying the decision to grant recognition refers to a previous letter which was dated 19 February, 2008 by which DPSM maintained an interpretation of the law which placed ‘employees of the employer’ as employees of the whole public service.

The latest correspondence, which, like the first one, was authored by the Deputy Director, reads in part, “…This communication supersedes the letter ref. DP 11/20 I (64) dated 19 February, 2008.”

According to Section 48 (1) of the Trade Unions and Employers’ Organisations Act (TUAEO), “if a trade union represents at least one third (1/3) of the employees of the employer, that trade union may apply for recognition under Section 32 of the Trade disputes Act,” quoted the DPSM official in the 19 February letter.
It goes on to state that regarding TAWU’s case, the current membership of their trade union did not satisfy the provisions of Section 48 (1) of the TUEO Act since they had two hundred and seventy one (271) members out of twenty seven thousand three hundred and seventy seven (27377) eligible members in the permanent and pensionable establishment of the public service.
To show the source of DPSM’s shift of position, The Sunday Standard has in possession a confidential document purporting to be a legal opinion from the AGC directed to DPSM, dated May 12.
Government is the employer of all public servants, which, of course, includes teachers, be it primary school teachers or a lecturer at a vocational training college. “That notwithstanding, reads part of the AG ‘s advice, one could observe and reasonably so, that the public service itself is made up of so many different trades or industries, each with its own challenges and concerns for both employer and employee.”

In general terms of course workers in these areas all constitute employees of just one employer. In addition, the Attorney General reminded DPSM to pause and reflect “on the motivation behind legalising trade unions in the country.”

To drive the point home, “It is our considered opinion, therefore, that the phrases employees of the employer and trade or industry should be interpreted within the unique context of Government employees as workers from many varied industries and trades,” submits the AGC. It is further argued that if it is assumed that fostering conducive, employer-employee communication and relations is the primary purpose of allowing unionization, and then there no reason is apparent as to why an employer should limit bargains and negotiations to workers from only a certain trade or industry.

Following concerted consultations with TAWU and at times outright disagreements which included mediation before the Commissioner of Labour, even after this advice DPSM then conceded, and granted recognition to both TAWU and BOGOWU in accordance with the law.
Pelotshweu Baeng, President of Botswana Land Boards and Local Authorities Workers’ Union (BLLAWU), commended Government’s decision to recognize both TAWU and BOGOWU, adding that the spirit of the law is to facilitate representation and dialogue with workers. He said it is in that context that AGC’s advice may be viewed.

However, the possibility of a court battle between MWU and DPSM to contest the current interpretation stands to raise a lot of other issues which are pertinent. For example, “it is presently unclear whether the work place as mentioned in the Trade Disputes Act, would refer to the Public service in general, the particular department where an employee serves or the specific site or station or office where one operates,” said Baeng.
One other issue which arises and forms the crux of the MWU’s contest of BOGOWU’s recognition involves dual membership.

Section 21 of the Trade Union’s and Employers’ Organization Act says, “No person shall be admitted to a trade union unless he is an employee in an industry with which the trade union is directly concerned.” The Act is not particularly vocal about whether or not dual membership is a way of practicing freedom of association or cause for conflict of interest.

Concerning Kwelagobe’s alleged intervention; Matome denied that the Minister was infuriated by the decision to grant BOGOWU recognition. She however, could not effectively refute the fact that indeed she was ordered to make a written explanation.

She said, “When the Minister is approached regarding any matter pertaining to his Ministry, sometimes he may upon acting on the issue give consideration basing on what he has been told by those who feel they have a legitimate query. In that event it is only proper that as professionals under him we explain the real issues involved.” Matome further pointed out that when that occurs, it does not necessarily suggest anything anomalous.
The DPSM’s response notwithstanding, there is concern that Kwelagobe has consistently shown interest in the affairs of some unions than others. An instance is cited where BFTU affiliated public service unions had wanted to meet him regarding the findings of the Presidential Salaries Commission, and flatly refused the request.
Documents in the possession of the Sunday Standard give startling evidence of failed efforts by the Vice President Lieutenant General Mompati Merafhe to bring the Minister and BFTU affiliates to an understanding.

Previous reports that linked two other ministers to BOGOWU seem to show the importance that politicians attach to having control over the labour movement. One labour analyst who declined to be quoted said it is in this context that Kwelagobe’s conduct should be viewed.

Besides, the other dimension to this is the threat posed to bigger unions such as BOPEU by the “new found” freedom for those sectors like nursing and others who are currently submerged in the mob, and which were initially disadvantaged by the old interpretation of threshold for recognition.

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