The Botswana Mine Workers Union have accused Komatsu Botswana of negotiating in bad faith following protracted negotiations over retrenchments.
The two reached a stalemate over benefits to at least 65 employees laid off by the company. The workers’ Union has demanded access to company financials to determine if indeed Komatsu are unable to honour their demands for retrenchment packages.
The two parties had met several times internally to resolve the issue of the retrenchment package through their Joint Negotiation and Consultation Committee (JNCC) meetings but failed to reach an agreement.
They each put in their proposals but could not reach an agreement hence a declaration of a dispute as per their Memorandum of Agreement (MOA) which invoked the sections of the Trade Disputes Act, 2016 on dispute resolution.
The Union then escalated the matter to the Commissioner of Labour for mediation in June 2021 and was set for mediation where parties could not agree. Around April 2022 the parties jointly signed the consent that the matter be heard through arbitration as there was no agreement at mediation. The matter was therefore heard fully at arbitration on the 12 July 2022.
The Union demanded a lump sum calculated as “three months basic salary of every year including housing allowance, pension and medical aid contribution, prorated for an uncompleted year or; a minimum of BWP95, 000 whichever is greater; Ex-Gratia Payment of three (3) months; Four (4) months payment in Lieu of notice.” Komatsu’s initial and final position is that the retrenchment package be “calculated on the basis of one (1) week per completed year of service on the total cost to company remuneration package.” They say the position is supported by a written policy from the Komatsu Africa Holdings.
Noting that their proposals regarding the retrenchment packages were far apart, and that the company was unwilling to make compromises the Union declared a dispute at their JNCC meeting held in March 2021.
According to arbitration documents since the Union says they submitted a draft policy to Komatsu in 2016 on retrenchment to be negotiated among the parties. They further stated that the parties met several times, and they were both in agreement on most part of the policy procedures and guidelines. The Union says during one of the JNCC meetings it was agreed that a benchmarking exercise be carried out, which was done but the company never bothered to use it.
The Union says their initial proposal included four (4) months of each year worked as a severance package including housing allowance, medical aid cover and pension, 6 months ex-gratia, and 6 months’ notice, but Komatsu has continued to stick to their initial proposal as entrenched in their policy from the Komatsu Africa Holdings retrenchment policy of September 2019.
As a result the Union’s view is that the conduct of the employer is tantamount to consulting in bad faith.
Therefore the Union wanted, among other things, to be allowed access to the company financials in order to satisfy themselves that the company could not afford the package proposed.
Part-time arbitrator Tebogo Sigwele ordered that the company avail their finances to the JNCC. However, the matter was referred back to the arbitrator following a standoff over a non-disclosure agreement. The company wanted the Union to sign a non-disclosure agreement before viewing the finances and the union refused. They referred the matter back to Sigwele who ordered that Komatsu avail the finances saying the issue of non-disclosure was never provided for in the MOA.
“That the respondent is therefore ordered to submit all the required information as per the award order 59 (iv) to the District Labour Office on or before 22 November 2022 and the District Labour Officer shall issue the information immediately to the applicant with the DLO stamp for authentication. The applicant, after receipt of the information, shall use the information solely for the purpose of negotiation of the retrenchment package and to protect that information as per the MOA.”