Wednesday, December 8, 2021

Rival unions clash in court

Discord and animosity among the country’s public sector unions was laid bare for all to see last week when the two of the country’s biggest public sector unions, Botswana Public Employees Union (BOPEU) and Manual Workers Union clashed in court. The rivalry between the two, headed by trade union heavyweights Johnson Motshwarakgole (Manual Workers Union) and Andrew Motsamai (BOPEU) played itself out in a case in which the BOPEU sought a relief for an order of the court interdicting Botswana Unified Revenue Service (BURS) from implementing its 2015/16 salary increment for employees who are members of the Manual Workers Union.

This follows government’s decision to award six percent salary increment across the board to all public service employees with effect from April 2015. The two unions are affiliated to Botswana Federation of Public Sector Unions (BOFEPUSU). In his founding affidavit BOPEU President Andrew Motsamai said his union was seeking relief for an order interdicting the decision by BURS to implement the 2015/2016 salary increment for employees of BURS who are not members of BOPEU.

Motsamai’s BOPEU had proposed a 15 percent salary increment, while BURS indicated that it could not budge from the six percent salary increment as proposed by government. Motsamai said BOPEU could not agree with BURS on the percentage increment as the parastatal had throughout the negotiations maintained that it would not move from the one and only offer of six percent.
“BURS made a deliberate decision to apply a six percent increment across the board to all employees, unionized or not unionised, members of BOPEU or not. They approached the negotiations with their minds already made up,” said Motsamai.

Whilst BOPEU acknowledged the fact that the Manual Workers Union has been recognized by BURS, and that there are other employees of the parastatal who are not affiliated to either of the two recognized unions, it argued that BURS must balance the rights of such employees with the BOPEU’s right to a fair bargaining process that is undertaken in an environment free of any undue and prejudicial influences.

In his affidavit, BURS Commissioner General Keneilwe Morris said BOPEU had throughout the negotiations maintained that it was mandated to negotiate for a higher increment than the six percent proposed by the parastatal. He said the reasons advanced by BOPEU were utterly frail and could not be embraced.

“It ought also to be recorded that out of sheer good faith and in cognizance of the need to strike a balance between the interests of both BOPEU’s members as well as of those other employees who have no ties with the union and who have accepted the proposal, BURS suggested for BOPEU to allow for the proposed six percent adjustment to be implemented across board whilst negotiations continued. The suggestion was unreasonably rejected by BOPEU,” said Morris.

He further argued that BURS’s decision to restrict its proposed increment to the dictates of the recurrent budget does not in any way constitute breach of the parsatatal’s duty to negotiate in good faith. BOPEU’s arch rivals, the Manual Workers Union moved fast to counter the application by BOPEU on the basis that it affected its members. In his affidavit, Manual Workers Union Organizing Secretary, Johnson Motshwarakgole said BOEPU has no right to interfere with the contractual relationships of BURS’s non-unionised employees.

“The application, insofar as it seeks to interdict the implementation of the six percent salary increment in respect of non-unionized employees is incompetent,” said Motshwarakgole.

He said the relief sought by BOPEU was incompetent because the union has no prima facie right to get an interim interdict against payment of six percent salary increment to non-unionised members and those who are members of Manual Workers Union. He added that employees of BURS expect to be paid their salary increments with effect from April of every year; and this expectation is shared by BOPEU members in terms of the labour agreement between BOPEU and BURS.

“For BOPEU to launch an incompetent urgent application with a view to blocking payments of salary increments, two months after the time expected for such increments, is inconsistent with the duty to bargain in good faith. This is even morose when the attempt is to even block payment to members of another recognised trade union which has itself bargained for its members as it is in law to do,” said Motshwarakgole.

In fact, Motshwarakgole said, BOPEU cannot be said to have been acting in good faith throughout the negotiations with BURS when it refused, without reasonable cause, to temporarily accept an increment of six percent across the board pending negotiations. In his ruling, Industrial Court President Tebogo Maruping agreed with BOPEU that BURS was not obliged to confine or restrict its proposed increment to the maximum limit awarded by the government of Botswana, adding that the decision to do so amounted to breach by BURS.

However, Maruping rejected BOPEU’s application for implementation of the six percent salaries and allowances increment to be suspended and for BURS be interdicted from taking any steps in furtherance of such decision until conclusion of the negotiations between BOPEU and BURS.

Maruping also rejected the relief sought by BOPEU for the decision by BURS to effect the 2015/2016 six percent salaries and allowances increment for employees who are not members of BOPEU to be set aside. Baboletse Akoonyatse of Ramalepa Attorneys represented BOPEU while Tshiamo Rantao of Rantao and Kewagamang Attorneys represented Manual Workers Union.

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