Wednesday, March 22, 2023

Courts spotlight plight of radical unions

Trade unions look likely to resort to courtroom tussles to stave off laws that put them at the mercy of the employer. Meanwhile, tensions between BOFEPUSU and BFTU have stalled the Public Service Bargaining Council – Writes GODFREY GANETSANG

Recent developments in Botswana’s courts of law have raised questions about the safety of Botswana’s trade unions. Given the increasingly militant nature of the trade unions, especially in the wake of the public sector strike, it is evident that the employer is uneasy with a radical and vibrant labour movement in Botswana. It is therefore worrisome if the trade unions have to battle very restrictive laws that effectively put them at the mercy of the employer.

The land mark case in which the Botswana Railways Train Crew Union lost an application in which they were contesting their employer’s refusal to recognise them as a trade union sent ripples through Botswana’s labor movement.

The ruling, delivered by Industrial Court Judge Elijah Legwaila hinged on the interpretation of the Trade Unions and Employers Organisations Act. It raised serious questions about the capacity of existing trade unions to withstand the impending pressure emanating from the formation of splinter unions. The ruling effectively gave the employer carte blanche to determine the existence of smaller trade unions, as those that do not enjoy a large following would be deprived of their right to collective bargaining.

The ruling came to light again recently when the Barclays Management Staff Union (BAMSU) also lost a case in which they were contesting their employer’s refusal to recognise them as a union. The court once again maintained that the words of Section 48 (1) stand on their own and on the face of what they say. Therefore it was not possible for to give them another hidden meaning in favour of the managers.

Lobatse High court Judge Singh Walia on Monday revoked the state’s recognition of the Botswana Government Workers Union after the Manual Workers Union made an application contesting its legality. Walia ruled that BOGOWU’s recognition as a trade union was a breach of the law and should be revoked. The Manual Workers Union also argued that BOGOWU does not meet the required one third of the employees of the employer, which qualifies it for recognition as a trade union.

The manual workers union argued that BOGOWU failed to meet the threshold prescribed by Section 48 of TUEOA. When passing judgment in favour of the Manual Workers Union, Justice Walia said at the time of recognition, BOGOWU had 9863 members, who represented a third of the 28 765 industrial class workers in Botswana.

Edward Tswaipe of the Trainers and Allied Workers Union and the Botswana Federation of Trade Unions believe that the legislation, as it stands puts, Botswana’s labour movement at risk of destruction by the employer.

“We must look at the bigger picture and consider the implication of this ruling on any employer and organisation. In effect the employer can start de-recognising many of the existing unions because none of them meets the stated quota,” said Tswaipe.
He added that the fate of the smaller trade unions lies squarely on the decision of the employer.

After the Botswana Railways ruling, government wrote to all public sector trade unions demanding that they should regularise according to Legwaila’s ruling. However, they refused and maintained that they have regularised according to the Public Service Act. Tswaipe is worried that the employer might also target smaller trade unions and kill them systematically.

The Botswana Federation of Public Sector Trade Unions is also fighting government’s refusal to register it because of yet another hampering law. They have since found reprieve after High Court Judge Lot Moroka stayed their deregistration pending a constitutional application.

Justice Justice Singh Walia had ruled against BOFEPUSU and upheld a July 2009 decision by the Registrar of Trade Unions to withdraw their registration. The registrar argued that BOFEPUSU had not complied with section 45(3) of the Trade Unions and Employers Organisations Act, which insists that a general meeting of each of BOFEPUSU’s affiliate trade unions should resolve, by secret ballot, to form a federation.

BOFEPUSU on the other hand said it would be a logistical nightmare to convene thousands of its affiliates to come and vote on the issue. But Justice Walia maintains that the fact that it was administratively cumbersome to comply with the Act is not an excuse for BOFEPUSU to disregard the law.

BOFEPUSU have since withdrawn their appeal of Justice Walia’s ruling, and they are now challenging the constitutionality of section 45(3) of TUEOA.

The registrar is also using the said constitution to thwart the operations of trade unions. Tswaipe revealed that some the BFTU affiliates’ efforts to merge were thwarted by the Registrar because she insists that the affiliates must first hold a general meeting where all of their members will be present to vote on the decision to merge. This would be a logistical nightmare.

“The Registrar even refuses to accept congress decisions, saying a congress includes delegates and not all members. Basically the basic operations of the trade unions, aimed at harnessing our ability to represent our clients, are being frustrated,” he said.

The trade unions will have to battle it out in court to sort out these crippling legal interpretations. However some of the problems bedeviling Botswana’s trade unions are self inflicted. The acrimony between BOFEPUSU and BFTU has practically halted the institution of the Public Service Bargaining Council.

The bone of contention here is that BOFEPUSU affiliates are against the inclusion of TAWU and BOGOWU in the council, saying they do not meet the requisite threshold of 36 000 members.
Once again Tswaipe has warned that this should not be used as a yard stick for inclusion in the council because union alliances change.

“What happens in future when BOFEPUSU affiliates no longer want to work together? Setting a threshold built by alliances is a recipe for disaster,” he said.

While the union leaders agree that a united workforce in Botswana is paramount, they seem to be continuously derailed by pride and mistrust.


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