Monday, October 25, 2021

Fed up BOFEPUSU quits PSBC in a huff

Botswana Federation of Public Sector Union (BOFEPUSU) on Friday took a decision to terminate its membership in the Public Service Bargaining Council (PSBC).

A document from the federation passed to Sunday Standard shows that the union will demand a P4-million refund from PSBC. 

The PSBC is a joint forum between government as the employers and recognised public service union tasked with negotiating, concluding and enforcing collective bargaining agreements. Each party contribute money for the council’s operations.

BOFEPUSU states in the document that it won’t return to PSBC until 2019 “when hopefully there will be a new regime that supports the rights of workers”.  

BOFEPUSU says it did not leave the PSBC because of any compliance issues, as they have the necessary membership to continue being members and have paid the membership fees, but do so out of the need to save their time and meager resources and channel them into something productive.

“Our decision to terminate our membership of the PSBC will free our members to receive the 3 percent and 4 percent increment that government has been giving to its sweet-heart unions.    Our members have sacrificed immensely to date and we applaud them for their sacrifice.    We ask them not to despair as 2019 is not too far,” reads the document.

It says: “The day will come when collective bargaining rights are restored and we have a judicial system with integrity that is manned by men and women appointed on merit through a transparent process, not a legal system where people are elevated to the highest court to go and protect the system by being government gate-keepers.”

BOFEPUSU states the complete disregard of collective labour rights, undermining the rule of law and rampant corruption seemed to have taken hold in the country when President Ian Khama came into power in 2008.  

The federation says it has, however, become a culture that pervades all the country’s institution as persons have been strategically placed in all important institutions, whose loyalty is not to the country and its constitution but to the President.    

For the last several years affiliates of Botswana Federation of Public Parastatal and Private Sectors Unions have been engaged in non-ending battles with the government of Botswana to try and respect PSBC and collective bargaining rights.   

The federation says in 2013  Khama went around the country proclaiming to be a trade union on his own and announcing a unilateral 4 percent increment.   The High Court, per Justice Leburu held that the President’s acts breached government’s duty to bargain in good faith.    

“In 2016 government again resorted to a unilateral increment of 3 percent.  The 3 percent increment was held by the High Court per Justice Tshepo Motswagole to be a breach of the duty to bargain in good faith and set aside in respect of all employees.   A 4-percent increment was awarded for the year 2017, which was interdicted temporarily by Motswagole and made returnable on May 24, 2017,”reads the document.

The document says prior to the return day, the government and Botswana Public Employees Union (BOPEU), brought an urgent application for stay before the Court of Appeal, contrary to well established practice that an such a request must be filed before the High Court and contrary to established practice that an appellate judge should not intervene in respect of a matter that is still being considered by a lower court.   

It says the Government and BOPEU circumvented Motswagole and directly approached the Court of Appeal as they were fully aware that they were more likely to get a sympathetic ear at there.

“Attempts to get Justice Steven Gaongalelwe to recuse himself were unsuccessful as he was itching to exercise jurisdiction over the matter.  Gaongalelwe had been asked to recuse himself because there was a pending appeal case brought by the Manual Workers’ Union that concerns the validity of his appointment,” says the federation.  

It adds that: “In a bizarre ruling, Justice Gaongalelwe recognised that the ordinary rule was that an application for stay must be sought from the High Court judge who was seized with the merits of the matter, but shockingly found that there were exceptional circumstances which justified bypassing Justice Motswagole.”  

It says: “Justice Gaongalelwe’s ruling undermines the rule of law as it served to encourage government to disobey court orders and go running directly to the Court of Appeal to seek stay of execution.” 

The document notes that the ruling was delivered on the day that Motswagole was to hear an application to have the Permanent Secretary, President and Director of Public Service Management locked up for contempt of court. 

“The ruling was in many respects incoherent, and surprisingly directed that the appeal that has been lodged by BOPEU and government be heard only in October 2017, despite the fact that the Judge took the view that the matter was one of great public interest and needed to be given priority.   It seems absurd that the matter could not be accommodated in the July Court of Appeal session given that the roll has not yet been finalised,” the document reads.

In the document BOFEPUSU says the continued disregard of collective bargaining rights by Government, who have found an ally in BOPEU, and Gaongalelwe, whose abilities as judge we have always had question marks about, has led them to conclude that only a political solution can resolve the continued disregard of bargaining rights of public service employees.  

“Our attempts to bargain collectively have been frustrated every year by the government and the courts seem to be feeble in their enforcement of the collective labour rights of workers.  Draconian provisions such as a provision that appear to give government three months to comply with court orders are indiscriminately cited by judges, like (Justice) Gaongalelwe who fail to appreciate that the rule of law requires that court orders be obeyed by every person without distinction,” BOFEPUSU says. 

It says this was not a shock to BOFEPUSU as he was a lone dissenting voice in the recent judgment invalidating the decision of the President to reject the appointment of Motumise as a judge. 

BOFEPUSU also took a swipe at the Botswana Congress Party (BCP). 

“We wish to express our disappointment at our comrades at the Botswana Congress Party for supporting the disregard of collective bargaining rights of public servants by condoning government’s stance and sympathising with positions taken by the Botswana Public Employees’ Union on the PSBC,” says BOFEPUSU. 

BOFEPUSU concluded that: “It came as no surprise to BOFEPUSU when BCP’s finest legal brains were deployed to assist BOPEU with its collusion with Government to frustrate collective bargaining rights.   There can be no neutrality when government colludes with evil forces to undermine the bargaining rights of workers.” 

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