Wednesday, April 21, 2021

Industrial Court declares strike by Essential Services illegal …..Unions Appeal judgment and continue with strike

The court room battle between the Directorate of Public Service Management (DPSM) and Botswana Federation of Public Sector Unions (BOFEPUSU) is far from over.

On Friday, barely hours after the Industrial Court Judge, Tebogo Maruping, declared the strike by public sector employees illegal, the unions affiliated to BOFEPUSU launched an Appeal with the Court of Appeal.

On Friday, Maruping told a packed court room while delivering judgment that the strike by those in the essential service cadre contradicts the Trade Dispute Act.

Reading a 47-page judgment, Maruping stated that a strike has to be regulated by law, adding that, in certain circumstances, there are prohibitions.

“Examples are restrictions affecting certain categories of workers based on the functions they perform, such as essential service workers,” said Maruping.

He said that the strike is in breach of the collective labour Agreement, adding that the Unions had agreed that in case of a strike, essential services would continue to be performed and maintained.
The court said that it was concerned that at least 50 doctors at Princess Marina Hospital had joined the strike, that several nurses from across the country had joined the strike, resulting in the closure of at least 27 clinics.

“Quiet clearly, if essential services were being performed and maintained as agreed, no clinics would be closed,” said Maruping.

The judge further stated that essential service employees should have been separated from other employees and, instead of a strike, their concerns should have been referred to mediation.
Maruping said that this would avoid the interruption of essential service and ensure that members of the public are not endangered.

“Therefore, the considered opinion of the court is that this strike as it relates to essential service employees is unlawful and unprotected because the strike is in breach of the provisions of section 42(1) (b) (iii) of the Trade Dispute Act as read with 9(1) (b) in that on failure to reach agreement at mediation, the Commissioner of Labour lumped together all the employees and did not take account of the special provisions relating to the essential service employees,” the judge said.

He said that from the court’s assessment, the strike is premature because there is no agreement on the strike rules.

He added that, from the court papers, it is clear that the parties had never signed for the rules. He, however, said that “as far as non essential employees are concerned the strike is still lawful and protected notwithstanding failure to agree on the strike rules”.

Following the judgment, BOFEPUSU lawyers swiftly filed a notice of appeal before the Court of Appeal, expressing their reservations about the judge’s findings and the entire verdict.

According to the Union, the strike will continue because the judgment by the Industrial Court has been rendered inoperative by the appeal notice and, therefore, essential service employees have been urged to join the strike again.

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