BMC loses BOPEU recognition appeal
The Court of Appeal (CoA) has dismissed an appeal by Botswana Meat Commission (BMC) which was challenging a High Court decision ordering the recognition of Botswana Public Employees Union (BOPEU) as a bargaining entity.
BMC had appealed a judgement by Lobatse High Court Judge, Jennifer Dube who had ruled that BOPEU was entitled to be recognised by BMC as a bargaining entity on behalf of its members at the commission’s place of business back in 2019. This was after BOPEU had taken BMC to court for refusing to recognise the union as a bargaining entity for its members who are employees of the commission.
It is reported that BMC had refused to recognise BOPEU on account that it did not reach a one third membership threshold as some of its members held dual membership. Some of the employees also dabbled as members of the Botswana Meat Industry Workers Union (BMIWU), which was the only recognised union by BMC.
In his judgement, CoA Judge President Ian Kirby dismissed the appeal saying, “overall, I have no doubt that the Judge a quo was correct to hold that there is no bar to an employee being a member of two or more unions, and if a union is able to show that it represents more than a third of the eligible employees in the sense that these are its paid up members, then the employer has no right to refuse recognition of that union in terms of Section 35(a) of the Trade Dispute Act”. Kirby said in his judgement, employees were perfectly entitled to join more than one union if they perceived that was to their advantage to do so. He said the employer may not interfere with that entitlement.
The CoA Judge President also explained that every union was entitled to list all its paid up and signed up members in order to ascertain whether or not it met the threshold for recognition.
“To hold otherwise would be to unjustifiably curtail the rights of both the unions and the employees,” he said.
He further said he found difficulty in comprehending the argument by the BMC that the ability to negotiate in good faith would be undermined if one member was represented by two unions holding different positions.
“It is the duty of each union and of the employer to negotiate in good faith, and not of individual members of the union, who do not negotiate on their own behalf at all.
As I have said, each union will promote the position taken by the majority of its members, and there will always be some dissidents, who nonetheless remain members, and will remain represented by the union,” he added.
He stated that an employee who chose to join two unions did so in the hope that their combined force will prevail in their favour, but also in the knowledge that their personal views will not necessarily prevail over a majority view in either union.
Kirby said that the employee parts with his monthly dues on that understanding and also, possibly, to take advantage of side benefits as well and it’s a choice of which he/she may not, be deprived by the wish of an employer for an easier ride in the negotiations.