Statistics Botswana defends bargaining position with BOPEU
Statistics Botswana (SB) has successfully defended its bargaining position with Botswana Public Employees Union (BOPEU) after it was accused of bargaining in bad faith during salary negotiations.
SB was dragged before court by BOPEU accusing it of bargaining in bad faith with respect to the 2020/21 salary negotiations.
This was due to the fact that SB had apparently withdrawn its first position paper and replaced it with a second one. It was said to have also refused to disclose the required information during the negotiations.
Recently the Court of Appeal (CoA) declared that SB did not bargain in bad faith therefore, the parties should continue negotiations.
CoA President Tebogo Tau explained that SB’s withdrawal of the position paper dated August 14, 2020 did not constitute bargaining in bad faith.
“The parties are directed to proceed to bargain at the Joint Negotiation Consultative Forum in accordance with their Collective Labour Agreement (CLA),” she said.
She explained that BOPEU cried foul even before reaching the negotiation table and thus denied themselves the opportunity to hear and consider the explanation for the withdrawal of the first position paper and its replacement with the second one.
Justice Tau also said that the union denied themselves opportunity to explore other options towards agreement. She said that as a result the court below was wrong to side with the union in finding that Statistics’ unilateral withdrawal of position paper was an act of bargaining in bad faith.
“Where I part company with the judge a quo is where he seems to suggest that starting the negotiation process from a realistic position of what a party can afford is bargaining in bad faith and falls,” judge Tau said.
The judge pointed out that such approach ignores the reality that the ceiling set has a floor starting with one to five percent and that in terms of the CLA both parties are required to bargain in good faith and to take account of affordability among other factors.
She said the parties may end up in deadlock which is provided for also in the CLA which may result in both parties approaching their principals with a view to raise any ceilings or to move from previously entrenched positions in search of an agreement.
Meanwhile the appeal was against the 2022 judgment issued by Industrial Court in Francistown in favour of BOPEU after the union had instituted proceedings against Statistics Botswana.
The proceedings were in connection with negotiations for the 2020/2021 salary inflation adjustment and the union had sought the following from the Industrial Court:
● A declarator that the Statistics Botswana’s refusal to disclose the required information in terms of the Collective Labour Agreement (CLA) for the 2020/2021 salary negotiations constitutes bargaining in bad faith.
● A declarator that the Statistics Botswana’s unilateral withdrawal of the position paper it submitted on August 14, 2020 constitutes bargaining in bad faith.
● An order directing Statistics Botswana to bargain with the union on the 2020/21 salary negotiations on the basis of the position paper submitted on August 14, 2020.
Industrial Court Judge, Galesiti Baruti had granted both declarators in his judgment and directed that Statistics Botswana furnish the union with the requisite documentation and bargain with the union on the basis of the position paper of August 14, 2020.
The appeal by Statistics was based on the grounds that the court below was wrong in deliberating on and making a finding on the issue of disclosure of information which had been struck out by the same court on previous matter and in compelling Statistics to furnish the union with documents it allegedly failed to disclose or provide.
Furthermore, the appeal was premised on that the court erred in finding that BOPEU had unequivocally accepted Statistics’ proposal as set out in position paper dated August 14, 2020 and in finding that Statistics was not entitled to withdraw its position paper or alternatively present a new position paper for consideration.
“The court also erred in finding that the exchange of position papers marks the commencement of the bargaining process/ negotiations. In finding that the Appellant by unilaterally withdrawing its position paper was bargaining in bad faith,” reads the appeal.
Lastly, the relief sought by Statistics was that the appeal be upheld with costs and that the order of the court a quo be replaced with the following order, that their withdrawal of position paper did not constitute bargaining in bad faith, that the parties be directed to conclude the exchange of position papers and proceed to bargain at the Joint Negotiation Consultative Forum.