Appeals court to decide on BMC, BOPEU case
Court of Appeal is next month expected to put to finality a long- standing dispute between the Botswana Meat Commission ( BMC) and Botswana Public Employees Union ( BOPEU) over the refusal by the parastatal to recognise the union as a bargaining entity.
The BMC was taken to court for refusing to recognise the union as a bargaining entity for its members who are employees of the commission. In 2019, Lobatse High Court Judge, Jennifer Dube 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. The judge also said the union’s members constituted the requisite threshold of one third or more of all the employees of the commission who are eligible for unionisation.
According to Justice Dube, the commission, by refusing to recognise the union as a bargaining entity, is violating the provisions of Trade Dispute Act as well as the Trade Union and Employees Organisation Act.
The BMC has since appealed the decision of the high court. The appeal matter was heard by Justices Ian Kirby ( Court President), Makhwade and Letsididi. BMC has argued that in its interpretation of the law, the recognition of another union in addition to the already recognised BMC Workers Union would create a recognition challenge.
The BMC avers the learned judge erred in finding that BOPEU met the requisite threshold of membership. The commission argues that the learned judge ought to have found that the union did not meet the requisite threshold because its listed members include persons who were no longer in the employ of BMC and those that belonged to another recognised trade union.
“While the Act ( Trade Dispute Act) does not prohibit employees from enjoying dual or multiple membership in trade unions, to allow the same employees to be represented by more than one recognised union will defeat the purpose of the provision in that; there will be more than three ( 3) recognised trade unions in the same workplace, contrary to the desired outcome envisaged by the Trade Dispute Act in providing a ( one third threshold) and the duty to bargain in good faith would not be achievable if the same employees are allowed to take up different and contrary positions in respect of the same issues through different trade unions,” argued BMC in its heads of argument.
According to BMC, of the claimed 382 membership of the union from the 1, 014 employees; 15 of those persons are no longer employed by the commission; two ( 2) of those are members of management and 183 of those persons are in fact represented by the Botswana Meat Industry Workers Union ( BMIWU) which is a trade union that is already recognised, and was at all material times recognised, by the Appellant in terms of the Trade unions and Employers’ Organisations Act and/ or the Trade Dispute Act, having applied for and granted such recognition also following the procedure set out in the Trade Dispute Act.
In praying for the dismissal of the appeal, BOPEU argues that on the issue of dual or multiple membership, Section 13 ( 1) of the Constitution essentially provides that no person, except without his or her consent, shall be hindered in his or her right to freely assemble and associate with other person, in particular, to form or belong to trade unions. Therefore, an employee’s right to join a trade union enjoys constitutional protection in Botswana. The union further avers that there is no statutory prohibition preventing a person from belonging to more than one trade union.
“The Appellant argues that the duty to bargain in good would be circumvented by employees if they are allowed to make representations on the same issues through different unions by virtue of their dual or multiple union membership. Sections 48 ( 4) and ( 5) of the Trade Unions and Employer’s Organisation Act imposes a duty on an employer and a recognised trade union to bargain in good faith. The Act itself does not expand on what this duty entails. In essence, the Appellant’s argument is that the 183 employees with dual membership are prone to engage in the conduct which constitute bargaining in bad faith if they are allowed to be represented by two recognised trade unions. An individual employee who has opted to have dual or multiple union membership should not be assumed to be dubious or unreliable by virtue thereof,” BOPEU submitted, adding that no conceivable prejudice exist against BMC should its staff enjoy dual or multiple members.
The Appellant seeks to dictate and or control the exercise of the members’ right to freedom of association by setting a limit of how many associations and or union they are, in law, allowed to be part of when the constitution has not itself placed a limitation, argued BOPEU. It is the union’s contention that the fear that BMC has concerning the members bargaining in bad faith is unfounded, particularly because the law set protective measures for such situations.