Double, double toil and trouble; Fire burn and cauldron bubble: Commissioner of Labour, Rose Sennanyana, must be feeling like the witches in Shakespeare’s Macbeth as she watches the bubbling alphabet soup of civil service trade unionism: BTU, NALCGPWU, BLLAWU, BOPEU and BOSETU.
Sennanyana, who recently published a notice of application for industry recognition of the Botswana Federation of Public Sector Unions (BOFEPUSU), was hoping to brew a potion that will stop the running battle between civil service unions and government.
Instead, the notice is turning out to be a spell that is piling up toil and trouble ÔÇô yielding twice the toil and double the trouble for both government and the workers union movement.
It started with a legal battle against the de-registration of BOPEU and NALCGPWU. It ended up being a tortuous journey through the corridors of power of the varied and vested interests in the civil service trade union movement and its myriad bodies: Botswana Teachers Union (BTU), National Amalgamated Local and Central Government and Parastatal Workers Union (NALCGPWU), Botswana Land Boards and Local Authorities Workers Union (BLLAWU) and Botswana Public Employees Union (BOPEU) as well as Botswana Secondary Teachers Union (BOSETU) who decided to form a joint unit BOFEPUSU.
What it revealed is that the Botswana civil service trade union movement is at crossroads, its development at a pivotal moment and that the current crisis is about whether government and all the various trade union organizations can pick their way through mistrust and self-interest and can be reconciled as they fight their corners, for the good of the country’s civil service.
The big five trade unions moved the first piece on the board with an application for the formation of BOPEU as a council for the “big five” trade union. Government bulked at the application and the issue was contested in court.
Sennanyana told Sunday Standard that publication of the notice was the result of an interim relief order by the Industrial Court that she should cause to be published within fourteen days BOFEPUSU’s application for industry recognition.
The first sign of trouble in the wake of the planned recognition of BOPESU came last week in the form of a letter from the Tertiary Trainers and Allied Workers Union (TAWU) arguing that this posed a threat to them and to the integrity of existing laws.
Sennanyana confirmed this week that, “It is true that we have before us a letter objecting to the industry recognition of BOFEPUSU as a union, although it is an internal matter of which we cannot share its details.”
In the letter, TAWU states that, “it has an interest and will be affected by the registration of an Industrial Council as indicated by the notice…our interest stems from the unlawfulness of the registration of the industrial council which is intended to have the same authority and function as the Public Service Bargaining Council (PSBC)…,” read part of the objection letter.
Confirming the content of the letter, Edward Tswaipe, Secretary General of TAWU said, despite the expectation that the process of consolidating on the gains so far made in the establishment was to be continued, which in any case was in the interest of all the public sector unions, he was shocked by the decision of the “big five” to apply for recognition as a union.
Against that background, TAWU filed a fourteen point’s objection to the office of the Commissioner, detailing the extent of their interest in the matter, also outlining the consequences of granting recognition to BOFEPUSU.
The objection verged on the jurisdiction of the Commissioner, proliferation of bargaining structures, the motive of the applicants, the unlawful use of the name BOFEPUSU and the position of Government in the whole matter.
“The application of the five public service unions herein referred to as applicant, namely BOPEU, BTU, BOSETU, BLLAWU and NALCGPWU is improperly brought before the Commissioner of Labour and Social Security,” read the objection letter.
It was argued that the recognition of public officers’ unions including those within industry and group of industries was already provided for under Section 46 of the Public Service Act (PSA 2008), so that there was no need for further recognition unless each of the affected unions intended to relinquish the existing recognitions.
“By acting together the applicants cannot in any way alter the fundamental purpose of the application, namely, that what they want is collective recognition for bargaining, an undertaking that is otherwise already provided for under Section 46 of PSA,” TAWU submitted.
TAWU further maintains that the Commissioner of Labour does not have the power to consider and or grant public officers unions’ industry recognition under section 34 of the TDA. Thus, it is worth noting that the word “Trade” as used in Section 46 of PSA is without prejudice inclusive, and should be interpreted in terms of section 2 of the TDA.
Gadzani Mhotsha, Secretary General of the Botswana Federation of Trade Unions (BFTU), had said in a statement to The Sunday Standard, that “An impression that seemed to be given by the five in peddling the idea of acting together, was that acting together could only be achieved applying for registration as federation, than otherwise.”
Tswaipe maintains that the Commissioner was virtually constrained from dealing with BOFEPUSU application, by the fact that section 34 of the TDA which places under her mandate, an obligation for the creation of a bargaining structure (Joint Industrial Council) that is not in compliance with the provisions of section 50 and 51 of PSA.
Otherwise, there is the inherent danger that the excluded unions, TAWU, Botswana Government Workers Union (BOGOWU), the Botswana Nurses Union (BORNU) and other unions outside BOFEPUSU might like to consider singularly or collectively to seek the same kind of recognition sought by the “big five”.
In that event the very public service bargaining structures established under the new PSA of 2008, which the unions especially the “now BOFEPUSU” members very much fought for would be rendered irrelevant.
The other aspect that seems to compound issues related to the fact that, through section 54 of the PSA the Public Service Bargaining Council constitution shall provide for the establishment of a Sectoral Bargaining Council, even upon request by parties to the Council. Again it was noted that such a request may be based on trade or industry as per the two terms’ definitions in section 2 of the TDA.
Furthermore, “It is not clear whether the name BOFEPUSU as appeared in the public notice under discussion was used just as a name for identity purposes or it is a name of a registered union by the same,” TAWU questioned in their objection.
Strikingly, information passed to the Sunday Standard indicates that three of applicant unions, namely BTU, BOSETU and BLLAWU, are still to serve the BFTU of which they officially remain affiliates, with resignation letters. They have to wait for their respective congresses to secure endorsement.
That being the case, one of the issues raised by TAWU in its objection, which is generally believed could mark the beginning of a long tussle for the energetic and ever “legal-war ready” big five leaders, relates to the legality of BOFEPUSU.
On account of the fact that there is a matter that is before the courts in which BOPEU and NALCGPWU contested de-registration, the matter is considered subjudice.
According to TAWU, any decision by government to be privy to recognitions envisaged by Section 34 of TDA and structures thereof will defeat the letter, spirit and purpose of the new PSA, especially the centralization of public service bargaining.
