BOPEU triumph against BHC

BHC barred from filling positions without consulting BOPEU

Botswana Public Employees Union ( BOPEU) won its case against Botswana Housing Corporation ( BHC) over the organisation’s unilateral organisational structure review. The Industrial Court declared that the BHC unilateral organisational structure review as contained in vacancy circular No. 5 of 2022/ 23 is unlawful and a legal nullity. The court ordered that BHC should consult BOPEU on any alteration and/ or organisational structure review and restructuring of the workplace as per the dictates of the parties’ Collective Labour Agreement ( CLA). It was further ordered that BHC, its agents, employees, or any person( s) acting under the instruction of BHC from proceeding with the recruitment of and/ or filling of three ( 3) posts advertised internally via vacancy circular No. 5 of 2022/ 23 pending consultation with BOPEU on any alteration to BHC’S organisational structure, organisational structural review or restructuring the workplace and alternatively the institution and finalisation of the review application to be filed within 60 days. The court explained that BOPEU’s case is made out in the founding affidavit of its President Masego Mogwera “The deponent avers that in terms of the CLA, there is a joint Negotiations and Consultative Committee comprising of representatives of the Applicant and Respondent for the purpose of negotiating and consulting on negotiable and consultative matters. “She states that Article 6.3 of the CLA imposes a duty on the Respondent to consult the Applicant on restructuring the workplace as well as organisational structural review.

“Mogwera states that on the 3rd May 2022, the Respondent wrote to the Applicant informing it that; it has recognised and reassigned employee relations activities culminating in the creation of a new position of Manager- Employee Relations within the Human Capital and Administration Department. “The Applicant objected to the aforesaid letter stating that the respondent’s actions violated Article 6.3 ( a) and ( g) of the CLA,” the court said. BOPEU had launched an urgent application to interdict BHC from proceeding with the filling of positions, arguing that if the parastatal is allowed to fill and hire for the posts before consulting the union, any anticipated consultation on the matter later when the posts are already filled will be meaningless and a sham. The union argued that the matter was urgent on account of BHC having advertised on the 22nd June 2022, three posts of senior estate officers with the closing date of the 28th June 2022. “In accordance with the specific rule principle, the court is persuaded that Article 6.3 of the CLA is applicable to the dispute at hand. That the respondent desires to improve service delivery cannot be the basis for not to consult the Applicant on consultative matters. “The respondent seems to emphasise that it will consult the Applicant when it carries out a comprehensive review. The respondent cannot seek to rewrite the CLA. The CLA requires the respondent to consult when it undertakes a review of its structure, it does not qualify that the review must be comprehensive to trigger consultation. “In my opinion, the applicant has a reasonable apprehension of irreparable harm. I do not see how a call for service delivery and resolution of manpower deficiencies’ arising out of a structure which has been in use for over four ( 4) years can be used to sidestep what the Respondent has agreed to,” explained justice Diwanga.