Wednesday, September 30, 2020

Government risks being reported for breach of International Labour Standards

April 4 2010: Following the decision of the High Court in Lobatse on 25th March 2010, to the effect that clause 1(c) of the Regulations for Industrial Class Employees (RIE), which is a collective bargaining agreement between Government and the National Amalgamated Local and Central Government and Parastatal Workers Union (NALCGPWU) also known as Manual Workers Union (MWU), signed in 1975, was not unlawful, it is likely to expose the canard of Botswana’s labour administration system.

Judge of the High Court, Justice L.S. Walia, said upon delivery of his finding, “This ruling is concerned with a preliminary argument raised by the respondents, namely Attorney General (for Director of Public Service Management-DPSM) and BOGOWU that clause 1 (c) of the Memorandum of Agreement made between DPSM and MWU on 13th November 1975 was unlawful.

In response to the Court finding, BOGOWU has threatened to report Government to the International Labour Organization (ILO) unless she repealed the agreement in question.

Secretary General of BOGOWU, Kaboda Phillip, lamented, in a press statement that, “As far as we are concerned, the court ruling seeks to protect an ouster clause that in effect is against the spirit and purpose of the Botswana Labour laws, thus subsequent to this decision it is upon Government to correct the anomaly by subjecting all unions to the same standard.”

Phillip further pointed out that on account of the ratification of critical ILO conventions, namely Convention 87 and 98, and resultant alignment of national labour laws to comply with international standards, it was a grave mistake for Government not to have initiated a review of the 1975 agreement with Manual workers.

It had been found by the High Court Judge Justice L.S. Walia, that clause 1(c) of RIE accords MWU the vested right to be the sole representative of the employees of the employer falling in the category of employees eligible for membership with MWU, and it is on that basis that MWU maintain that the recognition of BOGOWU by the employer was not legal.

BOGOWU on the other hand argued that their recognition was in line with the country’s labour laws and a fulfilment of international labour standards on freedom of association and the right to organize, adding that it was for that reason that such recognition cannot be nullified by an agreement whose validity rests on a serious error of oversight on the part of Government.

Notwithstanding BOGOWU’s statement, Walia mentioned that there was nothing in the TUEOA or TDA purporting to take way or in any way affect vested rights in terms of any employer/employee agreements predating the enactment of those Acts.

Thus,, “I find that the rights vesting in the applicant under the agreement of 13th November 1975 remain unaffected by TUEOA and TDA. It follows that Clause 1 (c) is neither illegal nor invalid,” said Walia.

and Section 32 of Trade Disputes Act (TDA), it was on the basis of the same instruments that Government claimed in its submissions to have granted BOGOWU’s recognition.

Trouble is, there is conflict between the statutory provisions set out as the basis for BOGOWU recognition, and clause 1(c) of the 1975 RIE, in that the agreement places a complete ban on recognition of any other trade union while the statutory provisions of current legislation, essentially section 32(4) of TDA, enjoin an employer to recognize a trade union unless either it does not meet 1/3 of the employees of the employer or its recognition had been withdrawn by the Industrial Court.

On whether MWU shares Governments sin of a “cockeyed labour laws” which obviously resulted in the present scenario, Johnson Motshwarakgole, National Organizing Secretary of MWU, said, “We are open to constructive engagement with anybody regarding the status of our agreement with the employer, however, we take exception to anyone undermining or seeking to undo existing agreements in a manner neither agreeable in law or with the interests of labour.”
BOGOWU also reserves the right to report Botswana Government to the International Labour Organisation (ILO), if the government does not respect ILO Conventions 87 and 98.

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