Wednesday, September 30, 2020

Industrial Court ruling on Botswana Railway Crew a litmus test for labour movement in Botswana

The ruling of the Industrial Court of Justice (IC) in a matter in which the Botswana Railways Train Crew (BRTC) pleaded for the Botswana Railways management’s refusal to recognize them to be declared “unlawful”, and were favoured by the sought interpretation of Section 48(1), raises serious questions concerning the potential capacity of existing Trade Unions to withstand the impending pressure emanating from the formation of “splinter” unions.

According to Section 48(1), “If a trade union represents at least one third of the employees of an employer, that trade union may apply for recognition under section 32 of the Trade Disputes Act.”

Like the Directorate of Public Service Management (DPSM) since the advent of unionization but before May this year, it would appear that BR management tended the view that “one third” applied to the “entire” workforce of the employer.

The effect of this interpretation was deprivation of collective bargaining rights to employees of trades, which are considered to harbour numerically insignificant numbers in relation to ‘supposed’ threshold..

BRTC on the other hand maintained that by virtue of their specialized profession, they needed only “one third” of their own folk and not of the entire BR workforce.

To make matters worse, the existing union in many ways tended to display solidarity with the employer.

On the basis of this, and after protracted engagement between parties which included mediation before the Commissioner of Labour and intervention by the Minister of Labour and Home Affairs Charles Tibone and his Assistant, Gaotlhaetse Matlhabaphiri, the train crew, which was aggrieved by the apparent lack of clarity as to the correct interpretation, chose to apply to the IC to rest the matter.
From the parties’ contentions, it came out loud and clears that at the centre of the dispute, laid the question, whether “one third” applied to a part, sector or entire workforce of the “employer”.

In his determination on matters of law in relation to the matter, Judge President of the Industrial Court, Justice Elijah Legwaila, categorically stated that in making his judgment he gave due consideration to the fact that the interpretation offered by the court was consistent with the terms of Section 3 of the country’s Constitution.
That is in so far as it seeks to protect the fundamental rights and freedoms of the individual to assemble and associate with other employees sharing common interests.
Against this background it was pronounced, “The question “whether “one third of the employees of the employer” should be read as ‘one third of employees’ of the same trade in the employers business (as contended for by BRTC is answered in the affirmative for the purposes of the applicant and for similar cases.

However, the striking element of Justice Legwaila’s ruling is that it also hinges on the integrity of big existing unions, in the sense that he spoke categorically against union monopoly.

Big unions that form good case examples include the National Amalgamated Local and Central Government and Parastatal Workers Union (NALCGPWU), Botswana Public Employees Union (BOPEU) and Botswana Teachers Union (BTU).
To highlight this problem, NALCGPWU has since served DPSM with a notice of intent to take them to Court on the basis that “they recognized unions which do not qualify for recognition.”

Kgotlele Kgotlele, Public Relations Officer at DPSM has confirmed thus, “we are aware of the matter, however the issue is still with the AGC, and therefore one can only go so far.’
Speaking after revelations that AGC has advised DPSM to recognize both the numerically small, Tertiary Trainers and Allied Workers Union (TAWU) as well as Botswana Government Workers Union (BOGOWU), Andrew Motsamai, President of the BOPEU, defended the need for general unions.

He said, “This is the only way we could combine our energies and bargain effectively.” Motsamai expressed this view in response to information that nurses are strongly considering forming their own union. BOPEU President criticized the idea as “divisive.”
Allan Keitseng, President of TAWU has told the Sunday Standard that, the present structural order in the trade unions whereby people of all and varied professional cadres are bunched up into singular organizational groupings in spite of their variegated interests and circumstances, tends to serve others at expense of others.

Elucidating further on the expression “one third of the employees of an employer” he argued that the meaning that is presumed by BR in contesting the union’s application if granted would deny trade unions lawfully registered by the Registrar the right to get the full benefit of their unionization.

In the same vein it follows according to the learned Judge that the Legislature could not have intended to give any group of employees the right to unionize only to take away the prospects of realizing the fruits of unionization due from recognition by their employer.

Part of the judgment reads, “In multifaceted industries, employees of different professions are recruited and employed. The holders of a certain profession who feel that their peculiar interests cannot be adequately catered for by the general union should surely be permitted to form a union specifically to cater for their peculiar interests.

Subject to meeting a proper threshold such a union should be granted recognition.

For purposes of clarity, reference is made to a past case which also involved the Botswana Railways Organization and a certain Setshogo. The particulars of the case are that as result of employees who belong to the train crew section being members of the general union; BRAWU they found themselves having to “ fend for themselves at the workplace through a strike and through the courts up to the court of Appeal without their main union in sight,” asserted Legwaila.

Still quoting from the same case, he said, “The crew had gone on strike clearly unsupported by the main union.”
Finally, “The denial of recognition on the ground of the existence of another organization would breach the Convention 87 because it would be an attempt to implement one union policy,” stated Legwaila.

Given the fat that the Government remains the largest employer, it seems only natural that following the AGC’s legal opinion which guided DPSM prior to the ruling of the IC efforts by those opposed to the spirit of the law on unionization might risk embarrassment.

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