Tuesday, January 26, 2021

Labour Department rules against BMWU employees

The Botswana Mine Workers Union and hundreds of Moolman Mining employees were last week left with limited options as the Labour Department ruled in favour of the mining company, in the ongoing retrenchment package debacle between the two.

An eight-hour mediation meeting between the two and labour officials on Tuesday came to naught as they could not come to a common understanding, and indications are that the matter will be forwarded for arbitration. But BMWU were done a damning blow when the mediator ruled in his advisory award that Moolman mining was in the right, thereby painting a gloomy picture for any chances of success for BMWU going forward.

BMWU and Moolman have for some time been embroiled in a bitter fight over retrenchment packages which started recently when the mining company embarked on a massive retrenchment exercise at its Mowana and Tati Nickel plants. BMWU feels that the retrenchment package that Moolman is offering its employees is a rip off and therefore initiated negotiations with the mining company. However, Moolman stuck to its guns and maintained that what it was offering the employees was enough, and BMWU had no option but to seek the intervention of the labor department.

By Friday last week, 177 of the targeted 400 employees were slapped with retrenchment letters. Speaking to The Sunday Standard on Friday BMWU’s Kealeboga Keakantse said that there are unconfirmed reports that the number might have exceeded the list of 177 that they had initially received from Moolman.

In a January 29th letter signed by Sean Stirling, Moolman management informed the employees that their positions have “become redundant” and therefore they “will be retrenched with immediate effect.”

In response, BMWU accused Moolman mining of unfair retrenchment as the mining company had failed to give the employees a reasonable notice of intention to retrench. The union felt that instead of slapping the unsuspecting employees with letters stating that they will be retrenched with immediate effect, the mining company should have given the employees at least three months notice of intention to retrench.

The union therefore felt that because of this mishap the mining company should pay the employees three months monetary compensation. Moolman management on the other hand felt that they had consulted the union, the commissioner of labor, and all employees and given them one month’s payment in lieu of notice. Moolman therefore maintained that they had acted in accordance with the processions of Section 25 of the Employment Act (CAP47:01) and with the provisions of the universal labour standards of the International Labour Organization.

In his advisory award, the mediator, Kebonyemodisa Lerothodi, said that Moolman’s retrenchment exercise was fair, justified, and valid in that it was sparked by the worldwide economic meltdown. He also said that several union and management consultative meetings were held regarding the intended retrenchment. However, he conceded that the two failed to come to a common understanding in all of the said meetings. At the crux of the matter is BMWU’s contention that Botswana’s Employment Act shortchanges the employee because it gives the employer the upper hand.

“The law states that in such consultations it is the duty of the employer to consult and not necessarily to negotiate. Basically the union and the employees can only be consulted but they cannot bargain,” said Keakantse.
“Management’s position was that the issue of retrenchment and separation of packages were consultative in nature while the union’s position was that the retrenchment is consultative and the issue of separation of packages was negotiable. I, therefore find that retrenchment of the affected employees was procedurally fair,” stated the mediator.

He also maintained that the retrenchment was lawful in that the affected employees were not only given notice of intention to retrench but also paid one months salary in lieu of notice.

In their retrenchment letters, Moolman offered employees one day’s basic pay for each month of continuous employment and one week’s pay for every year of continuous employment. BMWU on the other hand feels that the retrenchment package will benefit only a few of the employees while a majority of them walk away empty-handed.

BMWU’s Kealeboga Keakantse told The Sunday Standard earlier that most employees have been employed for less than a year and the decision by Moolman to award employees with one week’s pay for every year of employment will automatically disqualify them from benefiting. The union, therefore, demanded three weeks pay for every year of service or a minimum separation package of P 20 000, whichever is greater.

The mediator said that the disputing parties have not entered into a collective labour agreement regarding retrenchments. He also maintained that the Trade Dispute Act classifies such disputes as disputes of interest, which cannot be settled by a mediation process. He therefore advised the two parties to renegotiate and refer the matter to an arbitrator if they reach a stalemate.

For his part Keakantse accused the mediator of applying double standards as he was making partial rulings in a matter in which he maintains that he has no jurisdiction. “We are a bit confused here because the mediator maintains that he cannot make rulings on matters concerning disputes of interests and yet continues to make partial rulings on the very matter on which disputes of interest are an integral element,” he said.

On other issues the mediator advised that only employees who had been redeployed to Mowana be paid P750.00 as repatriation fee he also advised that the advisory award is not binding to either party to the dispute.

BMWU management is still to meet to chart the way forward. However, Keakantse expressed worry that even while the matter is still being negotiated, Moolman is continuing with their retrenchment process. Moolman management could not be reached for comment.

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