The Court of Appeal President Ian Kirby on Wednesday faulted both the Essential Service Workers and Government for mistakes that he said arose from the 2011 nationwide strike by public servants.
While dismissing the appeal by essential service employees, Kirby noted that the workers had raised issues of public importance and have been vindicated in certain matters of the criticism they raised against findings of the Industrial Court President Tebogo Maruping.
He said the case demonstrates it should be brought to the attention of the Attorney General and other relevant authorities that the Trade Dispute Act (TDA) does contain contradictory and confusing provisions, and that the sections of the Public Service Act dealing with industrial action are also not fully aligned with TDA.
“It is important that the law-makers should look urgently at this legislation and recast it to reflect unambiguously what is that they intend to achieve. Unclear legislation on industrial relations is never conducive to peaceful and amicable settlement of trade disputes. It leads to misunderstandings which are exacerbated by the high emotions of strike action in particular, as happened in this case,” said Kirby.
He added that it is in the interest of harmonious industrial relations in Botswana that prompt attention be given to rectifying the deficiencies and inconsistencies in the Acts in question.
On the essential service workers argument that they had complied with the Rules by supplying the categories of workers required to report for duty, thus fulfilling their obligations under the strike rules, Kirby said by necessary implication, it was for the applicants, who were orchestrating the strike, to ensure that those categories of employees reported for duty.
“This too was impracticable, considering the lateness of the hour, although perhaps announcements could have been made through the media,” said Kirby. He added that instead of delaying the commencement of the strike, as they should have done, to resolve these issues, through consulting the mediator or otherwise, the workers proceeded with the strike, and the disagreements were never resolved, nor were essential services properly provided,” he said.
It is precisely to avoid situations such as this, Kirby said, that the Strike Rules have to be agreed and, where appropriate, complied with, before a strike can be embarked upon. That was not done.
“Had it been, the disagreement on implementation of the minimum service level could have been resolved. So, although the judge (Industrial Court President Tebogo Maruping) said that no Strike Rules were agreed, the interdict was nevertheless competent under section (2 (1) (a)(i) because the agreed procedure set out in the collective agreements was not followed. In addition, the rules dealing with essential service employees were unlawful,” said Kirby.
Kirby added that even assuming that strikes by essential service workers and particularly by those serving in the public service can ever be lawful, this could only be so where each essential service has complied with section 45 of the Trade Dispute Act (TDA) by reporting its dispute under the section through the Union and subjecting itself to the further requirements thereof.
“In this case that was not done, so that any clause in Strike Rules purporting to permit a percentage of essential workers to strike was unlawful and unenforceable. It is also true that in terms of the collective agreements Strike Rules had to be agreed and complied with before any strike commenced. The Rules were agreed on the day before the strike, but there was fundamental disagreement as to how there were to be implemented,” said Kirby.
The Court of Appeal judges also found that no steps were taken which might have relieved essential service employees in terms of section 47 from the potential legal consequences of Section 43 of the Trade Dispute Act, which, as a general rule, forbids strikes by essential service employees.
“There is no provision in section 45(1) for a general essential service strike. The reference is to an essential service, so that consideration is to be given to the impact on the public service of the withdrawal of the service in question,” said Kirby.
He added that a general public service strike would not normally include those public officers who are precluded from striking under the Public Service Act.
“There was no suggestion that employees in any of the nine essential services were to be involved in the strike, or were seeking mediation. It is impermissible for a strike by essential services employees to be introduced by default or otherwise under the cloak of a general workers’ strike,” said Kirby.
He added that the Minister must first be given the opportunity of considering the potential effect of a strike by the particular type of essential service (and essential services generally) before deciding whether or not to exercise his discretion to direct a secret ballot or possibly to refer the dispute to the Industrial Court.