BIUST in bad faith salary negotiations
Botswana International University of Science and Technology (BIUST) has been accused of acting in bad faith towards its employees in salary negotiations for the year 2019/2020.
The Francistown Industrial Court agreed with the university’s employees that the institution acted in bad faith during the negotiations by failing to disclose crucial information needed by the employees for better negotiations and breaching conditions of employment. The employees represented by Botswana Public Employees Union (BOPEU) took the university to court accusing it of bargaining in bad faith by withdrawing the terms and conditions of employment away from the bargaining table. In their court papers the employees said the university bargained in bad faith following its unilateral withdrawal of the terms and conditions of employment for the discussion by a the Joint Negotiation and Consultation Committee ( JNCC) at a meeting held September 5-6, 2019 and its failure to comply with Collective Labour Agreement (CLA).
When delivering the ruling last week, Judge Galesite Baruti said the university’s unilateral and untimely act of withdrawal of its terms and conditions and draft policies from consideration by the parties as per the meeting amounted to bargaining in bad faith. “Withdrawal by the university despite the parties having mutually agreed to the submission, constitutes failure to disclose information that is relevant for collective bargaining as well as bargaining in the bad faith,” he said. The judge criticised the university for its reluctance to comply with CLA and ordered that it adhered to the Trade Disputes Act and the contractual provisions and terms of the CLA. He further ordered that BIUST comply with the mutual agreement made by the parties at all duly constituted JNCC meetings and timeously disclose to the union all information relevant to negotiations between the parties in terms of the law.
Judge Baruti said in terms of clause 14 of the CLA, the university had bound itself to fully and promptly implement its undertakings agreed at the meeting. “There is no promptness in doing nothing about an undertaking to provide policies with comments, and thereafter executing a u-turn just one day before deadline of the August 30, 2019. By doing nothing, and not even alerting applicant on time until last minute, they acted unreasonably and treated the union with contempt,” he said. He said the union’s requests for information to enable it to prepare for salary negotiations and for a meeting date were ignored by the university to the extent that it had to be reminded by a letter and still then failed to act.
The judge further said “instead the whole month of March and 23 days of April 2019 passed without respondent doing anything in the way of responding to applicant’s requests and by its conduct the respondents breached the CLA. The background of the matter is that BOPEU and BIUST entered into a CLA, which established the JNCC under CLA. In the founding affidavit of BOPEU acting secretary general,
Ketlhapeleng Karabo in terms of the CLA, the Joint Negotiations and Consultative Forum was established consisting of representatives of the both parties for the purpose of negotiating, consulting and bargaining on all negotiable matters. He explained that as a vehicle for collective bargaining, consultation and negotiation, the JNCC was tasked with negotiating the following, ‘remuneration and other terms and conditions of employment, including the physical conditions under which employees are required to work. “It was further tasked with negotiating employment benefits, employment policies concerning, inter alia, the recruitment, appointment, training, promotion, suspension, discipline and dismissal of employees”, he said. According to him, on January 7, 2019, they wrote a letter to the university requesting information and a date for the policy review, but the university did not favour the letter and request with a response. He said that a follow-up letter dated February 28, 2019 was dispatched to the again and the university in its letter dated April 24, 2019 stated that the BUIST Council has not met to discuss the policies and that no date had yet been agreed by the Council.
“I aver that on May 9, 2019, the Union requested the Respondent to disclose the following documents to prepare for the negotiations, company financial performance, wage structure within the bargaining Unit being, total Wage expenditure, approved budget for the year 2018/2019 for the year 2019/2020,” he said.
He pointed out that they further requested employment benefits and their costing, including allowances of which he said following up was not timeously disclosed therefore they had sought legal recourse.