Thursday, May 26, 2022

Barclays managers lose recognition case, plan to appeal

Barclays Management Staff Union (BAMSU), which last Thursday suffered a blow when the Industrial Court held that the bank’s management had not acted unlawfully in refusing them recognition, is appealing the court decision.

Pronouncing judgment, Industrial Court President Elijah Legwaila said he cannot grant the managers the recognition because the Court of Appeal had already ruled in the Botswana Railways Train Crew Union case that one third of employees as per Section 48 (1) of the Trade Unions and Employers’ Organisation Act meant one third of the employer and not “one third of employees of the same trade in the employer’s business”.

The judge said the Court of Appeal in the Railways case ruled that “the words (of Section 48 (1)) stand on their own and on the face of what they say and therefore it was not possible for the court to give them another hidden meaning in favour of the managers.

Responding to argument by BAMSU lawyer, Sesupo Mosweu, that the managers cannot by law be members of a general trade union and therefore a derogation from the ordinary meaning of Section 48 (1) in favour of the managers be allowed, the presiding judge held that he could not assume that the Court of Appeal when deciding the Railways case were not aware of the existence of Section 48 (2) adding that the superior court dealt with the distinction between registering unions and recognition by the employer.

The appeals court in dealing with the distinction had said it appeared that the legislature intended that there should be a distinction between registered trade unions and trade unions granted recognition in terms of section 48. “The former have certain rights in terms of Section 17 of the Act but the latter have more rights, and much more important ones, in terms of Section 48”, the appeal court had ruled.

“This was an answer to the point I had made in the Railways case that it appeared strange that the law permitted sections of the workforce to register as trade unions and yet deny the enjoyment of the fruit registration. In my view, and in the light of the Court of Appeal decision, I do not think it can be said that members of management should by law be recognised even if they do not meet the requirements of Section 48 (1). Let us not forget that Section 48 (1) does not outlaw recognition for any registered union. It only imposes conditions which may be difficult for certain groups. The Court of Appeal has found nothing wrong with that,” said Justice Legwaila.

The court said Section 48 (2) was meant to exclude membership of members of management from the general union and envisaged the creation of negotiating body made up of management only. “Members of management may legitimately form a negotiating body whatever form they want it to take. But the section does not compel members of management to form a union as suggested by Mr Mosweu. Negotiating body, in terms of that section is not synonymous with, recognition,” emphasised Justice Legwaila.

The court further said it was clear that a negotiating body may be an entity other than a trade union and could not detect anything in the wording of a section that justified giving another meaning.

The presiding judge concluded that the intention of the legislature was that members of the management were entitled to be represented by a negotiating body and not necessarily a registered trade union as contended for and held that the refusal was not unlawful.

The bank was represented by attorney Sipho Ziga of  Armstrong Attorneys.

Following the delivery of the judgment, BAMSU chairman Bobby Tebape said his union is appealing the court decision.


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