Saturday, December 3, 2022

BOFEPUSU to sue gov’t on essential services

The Botswana Federation of Public Sector Trade unions will on September 6th file papers with the Lobatse High court, contesting the recent classification of teachers as essential services.

The Federation has already served government with notice of intention to sue, demanding that Labor and Home Affairs Minister Peter Siele should immediately revoke the recent classification of teaching, veterinary, diamond sorting and cutting services as essential services.

BOFEPUSU, through their lawyer, Tshiamo Rantao, cite Siele as the first respondent and Attorney General Athalia Molokomme as the second respondent.

The applicants in the notice are Botswana Public Employees Union, Botswana Teachers Union, Botswana Sectors of Education Trade Union and the Manual Workers Union.

On July 14th Siele, in terms of Statutory Instrument number 56, repealed Statutory Instrument number 49. On the same day, through Statutory Instrument number 57, Siele reintroduced the amendment.

BOFEPUSU argues that Siele acted in fraud of the legislature because he clearly sought to circumvent the resolution of the National Assembly by keeping alive the statutory instrument which parliament had annulled.

“This defeats the purpose of Section 9(1) of the Statutory Instruments Act, and hereby renders Siele’s act in reintroducing the amendment as unlawful,” said Rantao.

He argued that Siele failed to comply with Section 144 of the Employment Act, which enjoins him to consult the Labour Advisory Board before promulgating any statutory instruments concerning employment issues. He also argued that Siele’s powers to classify services as essential are not unlimited because the law does not allow for unfettered discretion.

“In giving him the powers to classify services as essential, the legislature believed that Siele would limit his discretion to those services whose interruption would endanger the life, health and safety of the population. This is consistent with the definition of essential services in the Public Services Act (PSA), and the definition of the International Labour Organization,” said Rantao.

He argued that none of the services in contention satisfy the definition, adding that Siele acted unreasonably in amending the schedule of essential services.

“In the event that the state argues that Siele enjoys carte blanche to categorize any service as essential, we will argue that such a delegation is unconstitutional and that Section 2 of the TDA, as read with Section 49 , should be struck down as ultra vires Section 40 of the constitution,” he said.

While Siele’s actions to safeguard the national economy and the rights of children are laudable, said BOFEPUSDU, his actions to classify the said services as essential are not justifiable in a democratic society.

“The whole purpose of the strike action is to inflict economic harm. It therefore makes no sense to try and avert economic harm by classifying a service as essential. This goes against the spirit of the TDA, which protects the right to strike. By protecting the right to strike, the TDA legitimizes the infliction of economic harm on the employer as a legitimate bargaining weapon,” said Rantao.
He further argued that Section 13 of the constitution protects the right to freedom of association, which has been endorsed by international human rights tribunals, eminent jurists and courts all over the world.

“This right does not only protect one’s choice to belong to an association, but also entrenches the right to take part in activities that are associated with those of an association,” said Rantao.
Such activities, he said, include the right to engage in collective bargaining and the right to strike.

Rantao said public servants have a legitimate expectation that government will at all times act in accordance with undertakings that it has given in accordance with international obligations.
“The employees had a legitimate expectation that Siele would give them a hearing before acting so inconsistently. We are also of the view that in terms of Section 67(e) of the PSA, the amended schedule does not affect any public officer who was employed prior to 1 May 2010,” said Rantao.


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