Saturday, January 22, 2022

Court battle looming over BR retrenchment

With the critical phase of a restructuring exercise about to get underway, Botswana Railways and its employees’ union could be readying to do battle at the High Court if recent developments are a reliable indicator.

A little over a week ago, the Joint Negotiating Committee, which is made up of management and the leadership of the Botswana Railways Amalgamated Workers Union (BRAWU), met to discuss the restructuring and came out of different sides of issues on the table. Whereas it has been invited to participate in the implementation of the new structure, BRAWU says that it would first want to be told about the deficiencies of the current structure, how the new structure would be ameliorative, how the number of potential retrenchees was arrived at and what management has done to avoid retrenchment. BRAWU’s position is that consultation with it has been inadequate but management is adamant that the reverse is the case and will not consult further. That being the case, a letter from BRAWU’s general secretary, Tsenang Nfila, to union members says that at this meeting, management indicated that it came down to it, it would carry out the retrenchment without the input of the union. The latter’s response to this was that it would stop such process. There is only one way that can be done. With only three weeks left towards the December 15 deadline, BRAWU would have to make an urgent application to the High Court to stop the process.

Already there is enough tension to suggest that judicial intervention is a possibility. BRAWU has declined invitation to be part of a transition team overseeing the exercise. In a staff notice that he wrote last Wednesday, the Chief Executive Officer, Dominic Ntwayagae, emphasises the need to expedite the implementation process as the exercise is already behind schedule. On the other hand, Nfila’s note to union members says that “the deadline of 15th December, 2012 has lost significance.”

Even before the parties start negotiating the terminal package – which is a process provided for in the Collective Bargaining Agreement – there are fundamental differences between the parties over this issue.

What would most likely present a complication is that well into the process, BRAWU sucker-punched management by engaging its own consultant, Mosweu & Co. Legal Practice, which produced a report that poked holes in the one already submitted to management by EOH Consulting. BR engaged the latter to carry out a study on its operations and make appropriate recommendations. With regard to the retrenchment itself, BRAWU’s report says that the exercise is unnecessary because the EOH report shows that various departments in the organisation are understaffed.

EOH proposed a separation package that would award retrenchees a gratuity of 33 percent of their pension value. The gratuity would be paid according to employees’ contracts of employment and be subject to the current provisions for such remuneration. The formula for the gratuity is as follows: for the first five years, a monthly total package divided by the number of days worked in a month (whereas five days per week equal 22 days, 5┬¢ days equal 24 days and six days equal 26 days) referred to as the daily rate, multiplied by the number of months worked or 60 months where an employee has worked for more than five years.

The calculation for gratuity for employees who have worked for more than five years for the years worked above five years would be as follows: daily rate multiplied by two multiplied by the number of months. The total gratuity payable for an employee who has worked for more than five years would be the total for the first 60 months plus the total for additional months above the first 60. It is also proposed that the terminal package should include notice pay for at least for two months, relocation expenses, leave days accrued, service recognition awards and pension paid according to BR Staff Pension Fund rules and regulations.

The Mosweu & Co. Legal Practice report notes that “exit packages are not for a consultant to determine but for the union and BR management to negotiate.” It goes farther to say that the union was not provided with the proposed salary structure which would assist the union to make an independent assessment of whether or not it was sufficiently aligned with the proposed job profiles for the impending organisational structure.

Unfazed with the union’s protestations, management seems determined to see the process through. As part of the restructuring, BR has filled four director positions in the departments of finance and corporate services, business development, operations and engineering and human capital.

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