BOFEPUSU ready to challenge Unions’de-recognition in court

Nicholas Mokwena BG reporter
Monday, 29 October 2018
Motshwarakgole Motshwarakgole

President Mokgweetsi Masisi’s administration has entered into its first fight with Public Sector unions affiliated to Botswana Federation of Public Private and Parastatal Sector Unions (BOFEPUSU).

The unions - Botswana Landboards, Local Authorities and Health Workers Union (BLLAWU), Botswana Sectors of Educators’ Trade Union (BOSETU), Botswana Teachers Union (BTU) and National Amalgamated Local Central Government and Parastatal Workers Union (NALCGPWU) - which asked for Dr Masisi to be given a chance to lead the country when he occupied the high office, have since slapped government with a legal suit for derecognising them.

In court papers seen by this publication, the unions argue that the application is instituted as one of extreme urgency, to interdict the Directorate of Public Service Management (DPSM) Director Goitseone Naledi Mosalakatane from implementing a decision contained in the letter dated 16 October 2008, in terms of which the DPSM resolved that the unions were not entitled to continued recognition in terms of the Public Service Act. 

According to an affidavit deposed off by BOFEPUSU Labour Secretary who also doubles as NALCGPWU National Organising Secretary, Johnson Motshwarakgole the loss of recognition rights or the enjoyment of same at the whim of the DPSM has catastrophic consequences for the unions. He posits that it effectively means that over 65 000 public officers in the public service are no longer effectively represented in the public service.

“The loss of recognition may result in the loss of Applicants’ rights to check-off facilities. The Applicants’ loss of recognition status also means that they cannot validly participate in negotiations for the revival of Public Service Bargaining Council (PSBC).  Currently to the best of my knowledge, only Botswana Nurses Union (BONU) was recognised subsequent to the promulgation of the Public Service Act (PSA),” he said.

According to Motshwarakgole it also effectively means that only their members will be represented when PSBC’s constitution is settled and registered. He stated that only BONU will then qualify for representation at the PSBC. BONU would then become the sole voice of the workers in the public service, he says adding that this position is untenable in view of the fact that in terms of numbers, only about five percent of the public service will be represented at the PSBC.

“Irreparable harm will flow from the lack of representation of the Applicants’ members.  The Applicants’ members will not only lose confidence and faith in the Applicant unions, they are likely to terminate their membership of the Applicant as a result of the aforesaid loss of recognition.

“As a result of the loss of recognition the Applicants may no longer be able to collect subscriptions from their members. This is because they will lose the contractual and statutory rights to have check-off facilities administered on their behalf. Funeral schemes and other group schemes that the Applicant unions operate using the check-off facilities may collapse if premiums and subscriptions are not being collected using the check-off facilities that the applicants currently enjoy by virtue of their recognition,” reads Motshwarakgole’s affidavit.

He stated that it is also in the national interest to have the matter dealt with urgently so that there may be certainty in the interim in respect of the applicants’ participation in the re-establishment of the PSBC. According to court papers the DPSM’s decision is a clear breach of the rights that the Applicants have in terms of their various recognition agreements.

It is argued that the DPSM has for at least the last eight years conducted itself as if it accepts that the recognition that the Applicants enjoy is, for all intents and purposes, as valid as if it were granted in terms of section 46 of the Public Service Act. Motshwarakgole further argues that the Applicants, relying on the representations made to them by the DPSM, did not consider it necessary to apply for recognition afresh in terms of section 46 of the PSA.

The DPSM is therefore stopped from now asserting that the Applicants are not validly recognised because they did not make an application in terms of the PSA, he sates.“The processes for de-recognition set out in section 48 (5) of the Trade Union and Employer’s Organisation Act and in section 36 of the Trade Disputes Act apply mutalis mutandis to unions recognised in terms of the PSA.

There has been no process followed to withdraw the Applicants’ recognition.  The DPSM decision to disregard the Applicants’ recognition is therefore clearly invalid,” Motshwarakgole argues.The Applicants therefore bring this application to seek to preserve their statutory and contractual rights flowing from recognition which they have hitherto enjoyed, he explained.

The unionist pointed out that the rights and privileges are sought to be preserved pending the outcome of an application for final relief which will resolve uncertainties that have been introduced by the DPSM in respect of the validity of the Applicants’ statutory and contractual rights and privileges in the public service.  The intention is to file an application for final relief seven weeks from today to enable the Applicants to comply with their obligation to issue Statutory Notice, says Motshwarakgole in the court papers.

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