Lobatse High Court judge, Gabriel Rwelengera, is scheduled on 27 November to hear the National Amalgamated Local Central Government and Para-statal Workers Union, representing the Botswana Land board and Local Authorities Workers Union, argue against changes to its salary structures.
The unions want the Attorney General to set aside and review its decision contained in directive No 1 of 2009 dated 3 March 2009 in terms of which alterations were purportedly made to changes to salary structure that is applicable in the local government service.
They also want him to declare that such a decision of the Attorney General was of no force and effect.
Alternatively, the unions want the Attorney General to declare such decision to be inconsistent with Trade Union and Employers’ Act. The union, which will be represented by Tshiamo Rantao, complains mainly that in 2006 and early 2007 an organisation and methods exercise was carried out by the Department of Local Government Staff Management which brought about a new structure which was then approved for implementation.
They were all involved through representation in the reference committee that was responsible for the approval of the new structure which necessitated the carrying out of a job grading and evaluation exercise.
The exercise was carried out by a committee on which both the union and the local authorities were represented. Following the outcome of the job grading, and evaluation exercise, all government entities whose conditions of employment are governed by Unified Local Government were required to implement the new salary structure which was agreed by all concerned.
That the implementation of the new job grades and salary structure was to take effect from 1 September, 2007.but that on 10 March, 2009 the union and local authorities received a copy of the Local Service Management Directive No 1 of 2009 dated 3 March 2009.
In terms of the directive, all jobs at grade D2 and below will revert to the job grades which were applicable prior to the implementation of the 2006-\2007 job grades.
The old grades were made applicable with immediate effect. All future recruitments, promotions and appointments were to be made in terms of the old job grades. Employees who were employed by the establishment secretary prior to 3 March 2009 would continue to receive salaries to which they were entitled under the new job grades agreed by the union following the job evaluation exercise.
In view of the fact that the new job grades were a product of a joint decision making consensus, the union had a reasonable expectation that they would be given an opportunity to make representations before any prejudicial changes could be made.
But they were not given such an opportunity and that makes the directive contained in the directive illegal on this count alone.
It is apparent from the face of the directive that the establishment secretary did not exercise his independent judgement in making the decision and that he was simply implementing the decision that was dictated by Cabinet.
This renders his decision unlawful in view of the fact that that the establishment secretary is the only person empowered to make decisions with respect to applicable job grades in the local government service.
Further, the unions argue that this decision brings about unfair discrimination between employees because persons employed after 1 March 2009 will continue to be paid in terms of the revised grades whilst persons employed subsequent to that will be paid in accordance with the old jobs grades.
This, Rantao will submit, brings about a disparity of pay between employees doing the same job and that this differentiation is irrational and gives rise to a claim of unfair discrimination.
Alternatively, the decision is null and void and inconsistent with labour laws which require that an employer must negotiate with a trade union prior to implementation of any changes to an item that is negotiable which includes salary structure, job grading and evaluation.
In implementing changes to the applicable job grades and salary structures without prior consultations, the establishment secretary has acted unlawfully, and it follows that the changes by the directive were null and void, according to the unions.
In response to Rantao’s submissions, Boingotlo Toteng, representing the Attorney General, will submit that it is not true that the union and the local authorities were not consulted about the decision to withdraw the said Directive no 11\2007.
And that the decision to withdraw it was preceded by a process of broad based consultation involving both the union and the local authorities, including the office of the establishment secretary which was part of the process and its main driver.
Further, the union and the local authorities have agreed with the policy considerations behind the withdrawal of the said directive and agitated for it.
A meeting on the issue of Directive No 1 of 2009 was held at the office of the establishment secretary on 17 of February, 2009.