Court orders BHC to pay employees
Industrial Court in Gaborone has ordered Botswana Housing Corporation to pay all unionised employees who are members of the Botswana Public Employees Union ( BOPEU).
BOPEU took the parastatal to court on urgency after the management of BHC implemented salary adjustment for non- unionised employees while negotiations for salary increase was still on the table. The court ruled in favour of the applicant ( BOPEU), after BOPEU filed an urgent application following failed mediation at the District Labour Office as the employer ( BHC), refused to share/ disclose relevant information for purposeful negotiations.
The court ordered that the principle of parity be applied and BHC was directed to pay all unionised employees on or before 22nd January 2021.
BHC in a Memorandum of 17th December 2020 indicated that a decision was taken to implement salary adjustments for the 2020/ 21 financial year for non- unionised employees of the corporation. The salary adjustment was processed and paid out in the month of December 2020. BHC Acting Chief Executive Officer, Pascaline Sefawe indicated in the memorandum that salary negotiations were still ongoing and the parties had reached a deadlock on the matter, with the option for either party to exercise their right to refer the matter to the Commissioner of Labour. Sefawe states that the union has since referred the matter to the Commissioner of Labour for mediation.
“Management is concerned that contrary to its initial expectation, the negotiations are still not yet concluded. The situation also affects nonunionised employees of the Corporation who do not form part of the bargaining unit. While the Corporation has a contractual obligation to both unionised and non- unionised employees regarding the adjustment of salaries, its obligation to unionised employees is subject to negotiations through the bargaining unit.
The contractual obligation in respect of nonunionised employees is not waived by virtue of the negotiations between management and the union. At any point therefore the Corporation remains obliged to fulfil its contractual obligations to non- unionised employees,” stated the CEO.
The union says it responded to BHC management on the 13th July 2020 with its Position Paper 2020- 2021 Salary Negotiations. Amongst other things, the Union’s position was that the BHC Pay Policy should be applied in adjusting the salaries. The union requested to be furnished with the BHC Performance Reward Policy, BHC Incentive Policy and BHC Basic Pay Policy.
BOPEU General Secretary, Kaboyaone Sedimo in his affidavit filed with the industrial court indicated that there is a real threat of union members leaving the union so that they can benefit from the salary adjustments as non- unionised employees.
“Already, the applicant ( union) has received threats from some members of the union. Effecting salary adjustments to the non- unionised employees undermines and risks dissipating the bargaining power of the Union. This is so especially where it is the respondent ( employer) which has delayed negotiations by refusing to disclose relevant information. The applicant is entitled to approach the court to protect its bargaining power. Further, on the basis of equity and fairness, the Applicant’s members are entitled to the same benefit as that extended to non- unionised members, provided that their constitutional and statutory rights to bargain and negotiate for more are preserved and protected,” Sedimo stated.
He argued that by refusing to disclose relevant information which is necessary for the union to negotiate and bargain properly, BHC was negotiating in bad faith and in breach of its statutory obligations. Seen in this context, the respondent’s decision to implement salary adjustments to the non- unionised employees is further perpetuation of bad faith and ill- will, he added.
“On the 9th October 2020, the negotiating parties met. The respondent contended that it would pay in accordance with the Remuneration Policy supported by practices. The Union noted that the respondent would be in breach of the BHC Remuneration Policy and that BHC was withholding relevant information. On failure by the respondent to produce the BHC Pay Policy, the Union registered a dispute with Labour Office on the Pay Policy,” said Sedimo. He explained that on the 25th November 2020 , a mediation hearing meeting was convened. The first case according to the General Secretary was on the Incentive Policy. He indicated that at the mediation proceedings, the respondent requested for additional time to explain its position and the hearing was postponed on account of the respondent. The second case was for the Pay Policy.
“Again, the respondent asked to go to the Board to request for permission to share the remaining documents with the Union. The mediator asked the respondent to share the documents by the 4th December 2020 . The respondent declined to furnish the Union with requested missing pages of the Pay Policy on the basis of confidentiality,” said Sedimo.