Sunday, September 27, 2020

The long walk to Public Service Bargaining Council resuscitation


Francistown Industrial Court judge, Justice Galesite Baruti aptly captures the volatile relationship between the various public sector unions and their employer, the Directorate of Public Service Management (DPSM) in a judgment he delivered he delivered this week interdicting and restraining DPSM from derecognizing the public sector unions pending their compliance with Section 46 of the Public Service Act.

In the judgment, Justice Baruti ordered the government through DPSM to continue recognizing the public sector unions and extending to the all rights of a recognized union by the government, and in particular the right to lawfully bargain with the government over the conclusion of an agreement on a constitution of the Public Service Bargaining Council in the manner contemplated under Section 51 (1) of the Public service Act.

The presiding judge observed that collective bargaining relationship between the public sector unions and the employer of their members (DPSM) “may not have been a honey moon affair. Considerable turbulence rattled this relationship. However, despite the turbulence the parties operated a working collective bargaining relationship, to the extent that some of the labour issues between them were indeed resolved.

“A bout of turbulence rattled this relationship once again when on 16th October the 1st respondent (DPSM) wrote a letter to all the five applicants. It is one letter in terms of wording, but it was addressed and served on each of the five applicants. It being the source of the dispute that has caused the parties to undertake a litigation journey to this court”.

In the letter the DPSM indicated that the unions had been engaged in the process of resuscitating the Public Service Bargaining Council in terms of Part X111 (Collective Bargaining in the Public Service ) of the Public Service Act (PSA). The employer and public service unions that are involved in this process are currently trying to craft a constitution for the PSBC as contemplated by Section 51 of the PSA.

The employer said one of the unions had objected to the involvement of another union, namely, Botswana Government Employees Union (BOGOWU) because some of the unions involved in the crafting of the PSBC constitution had not been recognized in terms of Section 46 of the PSA.

The letter then called on the unions to provide proof of compliance with Section 46 of the PSA, and if they had not complied, to embark on a compliance process before 31st July 2019.

This is the letter that triggered the aggrieved to unions to lodge an urgent application with the court because their understanding of the letter implied that DPSM had in effect de-recognised them.

The unions embarked upon challenging the validity of the DPSM letter in court of law, hence the urgent application before the Industrial Court. Whilst working on challenging the letter to have it quashed, the public sector unions asked the court to temporarily suspend the impact of the letter on the affected unions.

The reasoning of the aggrieved unions was that the temporary suspension of the operation of the letter would preserve their right to freedom of association and to organize as well to collective bargaining.

The Commissioner of Labour had in 2017 deregistered the PSBC and confirmed the end of its existence. A turbulence which was then sweeping through the relationship between the parties had rendered the PSBC defunct, and it remained so defunct at the time the public sector unions instituted the urgent application.

Justice Baruti observed that the absence of PSBC has left the applicants and their members with no forum where issues relating to their working conditions could be ventilated.

Subsequent to the recent change of national leadership of the country, President Masisi undertook to normalize government relations with the public sector unions by reviving the defunct PSBC.

Catching onto this wind of a change, National Amalgamated Local Central Government and Parastatal Workers Union (NALCDPWU) wrote the DPSM on 27th July 2018 requesting that the PSBC be resuscitated. In the same letter NALCDPWU made a list of changes that it suggested should be reflected in the new PSBC, and registration of its constitution with the Commissioner of Labour.

In reply, DPSM announced that government wished to see the PSBC up and running by September 2018, expressing the need for the unions and the employer to agree on a new PSBC constitution for registration with the Commissioner of Labour.

The public sector unions obliged and submitted a raft of changes they envisaged to be included in the new constitution. Not long after all seemed to be in the right process of drafting the new constitution was underway, a new challenge emerged when some of the public sector unions objected to the involvement of BOGOWU in that the latter union  had never been recognized under the Trade Unions and Employers Organizations Act or section 46 of the PSA. The other reasoning was that BOGOWU had been derecognized by a High Court decision.

According Justice Baruti, it would be noted that the 4th applicant (NALCDPWU) had evoked the provisions of section 46 of the PSA as the basis for objecting to BOGOWU participating in the remaking of the PSBC.

It would be noted that DPSM took the objecting union’s reasoning a step further by applying it not only to BOGOWU, but all those unions that had never been recognized in terms of section 46 of the PSA.

At the initial interaction between the unions and DPSM, there was no mention of  the Trade Union and Employers Organizations Act, which is clearly the legal basis for the existence and recognition of the applicants.

A shift to the PSA recognition meant that the applicants would be unrecognized, their recognition being based on section 48 of TUEOA. The drift meant that all the unions had to be recognized under section 46 of the PSA if they were to lawfully participate in the resuscitation of the PSBC.

With nor recognition under section 46 of the PSA the applicants found themselves placed by DPSM in the same boat that BOGOWU was rowing. The unions rowing that boat had never been recognized in terms of section 46 of the PSA. Rowing in that boat and sitting next to BOGOWU was unpalatable for the applicants, given that they were recognized in terms of section 48 of TUEOA.

In this boat it followed that they were disqualified or likely to be disqualified from participating in the resuscitation of the PSBC, just like BOGOWU.

The exchange of letters between the unions and DPSM depicted that in one breath the applicants were not recognized in terms of section 46 of the PSA meaning that their participation in the resuscitation of the PSBC was illegal. In the next breath they were invited to participate in the continuing resuscitation of the PSBC but with their conscience having been pricked with the notification that they enjoyed no recognition.

The unions’ standing was no longer based on the law but at the pleasure of DPSM. In other words although the applicants had not been derecognized under section 46 of the PSA, they were still called upon to ignore the non-recognition and participate in resuscitating the PSBC as if they had been recognized.

The aggrieved applicants approached the court alleging that their rights derived from recognition have been jettisoned over the board, and that they deserve an urgent judicial protection.

Respondents argued to the contrary, pointing out that all the unions’ rights arising from section 48 recognition have not be trammeled in any way.

Justice Baruti however held that section 48 has conferred full collective bargaining rights on the unions. The bargaining package for the government includes the formulation of the PSBC. By participating in the creation of the PSBC the unions were acting within the ambit of their right as derived from section 48.

“Collective bargaining provided for in the whole of Part X111 of the Public Service Act falls within the scope of Section 48. The creation and running of the PSBC falls squarely within matters listed in the above quoted Section 48 (4) of the Trade Unions and Employers Organization Act. This is so for all unions registered under Section 46 of the Public Service Act. The provisions of the Public Service Act, that deal with recognition and bargaining rights are simply confirming the collective bargaining rights of all those unions recognized under Section 48. This position is validated by the conduct of 1st Respondent when it went ahead and allowed the applicants to participate in the creation of the PSBC even though it was crystal clear that they had never complied with Section 46 of the Public Service Act”, ruled Justice Baruti.

The presiding judge further held that over the years the applicants enjoyed all these section 48 based collective bargaining rights as packaged in Sections 51, 52 and 53 of the Public Service Act. Sections 51, 52 and 53 of the Public Service Act are simply laying out how Section 48 recognized unions must go about in bargaining for their members. These sections can never be interpreted to curb or curtail the Section 48 bargaining rights of the recognized unions.

According to the presiding judge, the approach of the PSA is that the more the unions, inclusive of the numerically challenged ones, the more effective bargaining for the workplace welfare of a wide population of the public service employees.

Justice Baruti concluded that the bargaining rights of the applicants have subsisted from the time of their recognition up to now, and that Section 46 of the Public Service Act has not curtailed or cancelled them out. These collective bargaining rights, that have included the creation and running of the PSBC, have crystallized over a period up to 2018. Applicants are therefore entitled to take the necessary action to protect that which has accrued to them.

Justice Baruti’s interdict shall remain operative pending the final outcome of an application to be filed by the public sector unions for the review and setting aside of the DPSM’s decision derecognizing the unions as per its letter of October 16, 2018.

The public sector unions were ordered to file their application within 21 days from the date of the judgment and were given temporary relief not to secure recognition under the PSA for them to enjoy the rights under Section 51 (1) of the PSA or any of those recognition agreements; and the parties shall appear in court on 28th February 2019.


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Sunday Standard September 27 – 3 October

Digital copy of Sunday Standard issue of September 27 - 3 October, 2020.