Thursday, January 28, 2021

Public service unionization: gov’t caught in own trap

The International pressure brought to bear on the Government of Botswana to meet its obligations in respect of International Labour Standards (ILS), to which she is signatory, more particularly regarding the unionization of the Public Service, is yielding desired results. The recent travel to South Africa, Lesotho and Singapore, by a joint delegation of high level officials of Government as the employer and of employee organizations, on a benchmarking exercise attests to this.
Information turned up by Sunday Standard investigations reveals that the team, which was headed by the Deputy Director of Directorate of Public Service Management, Pearl Matome, was specifically directed to identify models of collective bargaining and consultative structures in the Public Services of the three countries and the processes applicable to those countries. The benchmarking team also had as its terms of reference, to establish the legal framework on which the structures are anchored and how it impacts on the functioning of the public service bargaining/consultative structures.
Matome said the exercise was worth the cost, given the wealth of experience and unique cultural and historical backgrounds of both countries. “We are currently waiting for the employee organizations to get over with their Conferences, thereafter, we could present our report and recommendations to the broader Reference Committee,” she added.

According to information turned up by Sunday Standard investigations, the benchmarking exercise emanated from the Terms of Reference of the Task Force that was set up by the Government through the Office of the President with a view to enhancing the Task Force’s scope of case examples for reference.

The premise of the Office of the President’s decision was that on 22 December, 1997, the Botswana Government ratified three International Labour Organisation Conventions, and that, following on from that, early in 2004 amendments were effected to the National Labour Laws to align them to the letter and spirit of the ILS. The ratified Conventions include the Labour Relations (Public Service) Convention, 1978, (no.151); Freedom of Association and Protection of the Right to Organise, 1948 (no.87); and Right to Organise and Collective Bargaining, 1948 (no.98).
The effect of the amendments to the Trade Disputes Act, the Trade Unions and Employers’ Organisations and Employment Acts, was to allow public servants to form and become Trade Union members. Although from then on employee organizations began to unionize, in practical terms they could not engage the employer as there were no appropriate structures.

Sunday Standard investigations revealed that prior to 2004, public employees were only required to form staff associations, governed by separate acts, as per their area of service. The role of associations was only for the employer as and when need arose to consult them. However, any agreements reached from such consultations were not binding to either of the parties.

Furthermore, the current Acts clearly stated that, public servants could not become Union members. At the same time, the Trade Unions and Employers’ Organisations Act, the Trade Disputes Act and the Employment Act did not recognize public servants as employees. Additionally, the effect of this situation was that even if by any chance, the Public Service Act did not have limitations as to who could form or become a Trade Union member. The fact that the existing Labour laws did not recognize public servants as employees, meant that it was not going to be possible to unionize.

Tacitly, the Civil Service, as it were, remained a monolithic bloc of yes men, who depended solely upon their employer’s world outlook for both their own development as individuals, and for the national destiny. This despite the fact that C151 on the unionization of the Public service, Article 9, states clearly: “Public employees shall have, as other workers, the civil and political rights which are essential for the normal exercise of freedom of association, subject only to the obligations arising from their status and the nature of their functions.
According to a document of the ILO, titled Rules of the Game, once a country ratifies any one of its Conventions, it is then subjected to the international body’s regulatory system. The basis of the regulation is to ensure that member states are assisted by determining the requisite conditions, for effective implementation of the ILS, and where necessary the UN/ILO ‘ s support is always forthcoming. As such no country, including Botswana can find enough excuse not to carry the ratified Conventions to their letter.

Thus predicated between the nagging periodic reports of the ILO monitors after their frequent inspections for compliance, on the one hand, and the unstoppable tide of a path she has set herself on by aligning the National Labour laws to provide for Public service unionization, the Government finds she is tagged in to a one way rail. The fact that Article 12 of the Convention No. 151 on unionization of the Public service, says that “a member which has ratified a convention, has the liberty to renounce it at the expiry of a ten year period, if they are not keen on it otherwise they will be bound by it for another ten years”, does not offer any comfort zone for the Government. More reports will be coming.
Against this background, it becomes necessary to expedite an appropriate environment for the unionization of the public service, and facilitate the creation of bargaining and consultative structures between Government and employee organizations/unions.

“Thus, the most immediate thing was to merge the various employing services of the Government into one single ‘employer’,” said Matome. This could only be done by integrating the existing Acts of the Public Service.

Sunday Standard investigations have turned up information to the effect that the Reference Committee was assigned, in 2005, the task to pursue the integration of the Public Service Act, Teaching Service Act, Unified Local Government Service Act and Tribal Land Act (as it relates to the Land Board staff) into a single overarching Act of Parliament for the (entire) Public Service of Botswana. For reasons of expertise, it was decided to engage a private legal consultant working hand in hand with the Reference Committee in respect of all the Terms of Reference.

Commenting on the state of the ongoing consultations, Pelotshweu Baeng, president of BALLAWU said that although the process took off on a slow gear, it would be foolhardy to start pointing fingers now.

Information unearthed by Sunday Standard investigations, reveals that whilst consultations will be ongoing, the bulk of what the Reference Committee was assigned to is expected to be wound up in the report that will be presented before the Committee before the end of the month. “All things being constant, the first proposed bill for an overarching Act of Parliament for the Public Service should go through the Legislature by the first quarter of next year,” Matome said.


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