Botswana Government Workers Union was dealt a deadening blow yesterday when Lobatse High Court Judge Singh Walia ruled that their recognition as a trade union was a breach of the law and should be revoked.
The Manual Workers Union, a rival of BOGOWU, had dragged government and BOGOWU to court arguing that BOGOWU does not meet the required one third of the employees of the employer, which qualifies it for recognition as a trade union.
In May 2009, the Manual Workers Union launched the case in court, arguing that government’s recognition of BOGOWU was a breach of a memorandum of agreement that the Manual Workers Union signed with government on 13 November 1975.
In response, government argued that the agreement between the Manual Workers Union and government was unlawful as it violates Section 48 of the TUEOA and Section 32 of the Trade Disputes Act.
In Mach 2010, Justice Walia ruled that the 1975 agreement was valid and legal, and therefore invalidated the recognition of BOGOWU. However, the Court of Appeal later decided that the issue of the recognition of BOGOWU must first be determined before the legality of the agreement is considered. The Manual Workers Union then abandoned the issue of the memorandum of agreement and now challenged BOGOWU’s qualification for recognition.
Attorney Tshiamo Rantao argued that BOGOWU failed to meet the threshold prescribed by Section 48 of TUEOA, which states that government must only recognize unions that represent at least one third of the employees of an employer. He challenged BOGOWU to show that it meets the prescribed one third of the employees of DPSM.
BOGOWU, on the other hand, argued that Section 46 of the Public Service Act of 2008 qualifies them for recognition as they represent one third of employees of the employer engaged in the same trade (i.e. industrial class employees).
When passing judgment in favour of the Manual Workers Union, Justice Walia said at the time of recognition, BOGOWU had 9863 members, who represented a third of the 28 765 industrial class workers in Botswana.
He therefore agreed with the Manual Workers Union’s argument that BOGOWU ‘s membership does not meet the threshold prescribed by Section 48 of the TUEOA, and that BOGOWU’s membership does not meet a third of the total employees of DPSM.
“BOGOWU represents industrial class employees only. Its recognition was granted purely on the grounds of its representing more than a third of the industrial class workers and not a third of employees of the central government. It follows that the application must succeed and the recognition of BOGOWU by government must be set aside,” said Justice Walia. He also ordered that BOGOWU and government should share the costs of the application.
When commenting on the issue, BOGOWU President Kaboda Phillip said the judgment effectively means that no union qualifies for recognition as there is not a single union that meets the threshold prescribed by Section 48 of TUEOA. He, however, said all is not lost as they will now go back to government to chart the way forward.
“We are still perusing the judgment to see if we can appeal,” said Phillip.
While he welcomed the ruling, Johnson Motshwarakgole of the Manual Workers Union extended an olive branch to BOGOWU, inviting them to work together with other trade unions to forward the interests of the working class.
“BOFEPUSU is the only federation that can forward the cause of the working class. We, therefore, invite other unions to join forces with us. We need more people in our federation,” said Motshwarakgole.