April 4 2010: Lobatse High Court Judge, Dr Onkemetse Tshosa, has reserved judgment in a case in which the manual workers union and the Botswana Land board and Local Authorities Workers Union (BLLAWU) want government’s decision to change salary structures in the local government service to be set aside.
The two unions want the court to declare the decision to be of no force and effect, and for government to bear the costs of the suit. Attorney Tshiamo Rantao, standing for the unions, submitted that government did not consult the unions before issuing the directive, and that the said directive was decided by cabinet instead of the Establishment Secretary.
“The directive will effectively discriminate employees, and it is inconsistent with the trade union and employment organizations act. The implementation of the directive was not preceded by any negotiations and is therefore unlawful, as it amounts to a breach of labour laws,” said Rantao.
In answer to Rantao’s submissions, Boitshoko Toteng, acting on behalf of the Establishment Secretary, said that the unions agreed to the withdrawal of Directive No. 11 of 2008 at a meeting held between their presidents and general secretaries and the Department of Public Service Management on the 3rd of July 2008. He further said that the unions also agreed to the withdrawal of the directive at a consultative meeting convened by the Establishment Secretary, at which they were represented by Moshe Noge of BLLAWU.
But Rantao countered that no binding agreement could have come out of the two meetings because they were National Consultative Council meetings. Therefore, said Rantao, according to clause 7 of the National Amalgamated Local Government Parastatals Workers Union’s recognition agreement, the resolution allegedly taken at the said meeting cannot be binding to the manual workers union. Further, both meetings were not Joint Consultative Council meetings, and their resolutions cannot be binding to BLLAWU.
“Accordingly, there are disputes of fact on the purpose of the two meetings. It is trite law that where there are genuine disputes of fact on an affidavit the courts will be very slow to decide. But if after consideration the respondents’ facts lack credibility, the court should not hesitate to reject it” he said.
Rantao further said that the Establishment Secretary’s submissions about the two meetings are unsatisfactory because, contrary to his claims, the minutes of the two meetings, as attached in the affidavit, do not show that the unions’ presidents and secretary generals were actually present.
“The minutes show that BLLAWU was not represented at the two meetings, and the manual workers union was not represented by any official, but by an office bearer who attended merely on an advisory capacity. The allegation that Moshe Noga represented both BLLAWU and the manual workers union is incorrect because the manual workers is an autonomous union that cannot be represented by an official from a different union” said Rantao.
Toteng on the other hand argued that the papers before the court show that the unions were fully afforded an opportunity to be consulted before the decision was taken.
He further said that the unions’ arguments regarding representation is merely academic and does not change the critical issue that there was need to withdraw Directive No. 11 of 2008, and that the represented union agreed that it was proper and justifiable to withdraw the directive implicitly to pave way for the one.