An Evaluation of Dispute Resolution in Botswana Public Sector
This paper aimed at scrutinizing how Botswana (Democratic State) a politically stable country for the first time since independence terminated contract for essential services section in Government abruptly, due to conditional salary increase of 5% increase, hence Trade Unions proposing an increase from 16% to 13.8%, this was during Lt General Ian Khama Seretse Khama’s presidency. Failing to reach consensus, employees resorted to national strike which took eight weeks. "Ignorance of the law excuses not" and "ignorance of the law excuses no one" respectively; essential services employees, In terms of the Trade Dispute Act 2003, Cap 28: 02, (Laws of Botswana) every party to a dispute of interest has the right to strike or lockout if all the requisites of a lawful strike prescribed by the Act have been met. Even though every employee has the right to strike, it was argued that the industrial action by some of the employees was unlawful as they are classified as essential service employees. Therefore, the above statement abrupt essential services workers to strike, despite employee’s grievances. In this scenario, the unions have to be blamed for not assisting the essential workers to understand the repercussion of (strike) consequences of crossing the law’s path “ignorance of the law excuses not” and “ignorance of the law excuses no one” respectively.
Botswana as Africa’s oldest democracy is known to cherish the good values of tolerance that advocates virtues such as freedom of association (hence citizens free to join trade unions). Le Roux & Cohen, (2016) States that in 2011 for the first in the history of Botswana, public officers embarked on unprecedented industrial actions happened which lasted for almost two months. Almost 3000 essential workers were collectively dismissed without hearing due to these consequences for partaking in an illegal strike and failing to comply with a strike interdict and various ultimatums to return to work public. Good, K. (2017). The strike by public-sector unions (‘BOFEPUSU’) in 2011, was also motivated by inadequate pay and conditions: the workers had not had a salary increase for three years, and working conditions in general, and especially for such groups as nurses combating HIV/AIDS, were reportedly poor. Salamon, (2000) cited in Motshegwa & Bodilenyane (2012) argued that a court that intervenes in an industrial conflict cannot be ‘neutral’, it will take one side or the other, and generally in doing so will add the weight of ‘legal right’ to the management side. According to Diamond, 1999 cited in Motshegwa & Bodilenyane (2012) Democracy has to do with how government, interest group leaders exercise their power-not just their promise to democracy in opinions, but their ability to bargain with one another, form coalitions, mobilize public support and respond to public pressures and preferences. In 2020 public servant and their representatives unions were irked by the decisions by government to defer salary increment to public sector citing the challenges of corona virus. Public Sector and Trade unions were not consulted as there is no consultative forum such as public bargaining council. Even though the government made an announcement that public servants will get their back pays after the end of state emergency (6 months). These acts unilateralism by the government has rendered bargaining council totally nonexistent. This then shows that trade unions together with employees will always be in a weaker position of negotiating and the government can continue making unilateral and yet unpopular decisions that directly affects the welfare of the public service. This then now questions the democratic credentials of Botswana as a stable country.
According to (Hope, 1995), the public sector is the largest organization in Botswana, it comprises Central and local government including parastatal institutions. It is the major sector in Botswana in terms of breadth of services delivered; numbers of people served; regional distribution of services provided; assets and expenditures under its management; and number of employees The country's public sector comprises central and local government together with parastatal institutions. Public Service rests with the Directorate of Public Service Management (DPSM) which is within the Office of the President.
Trade Union in Botswana
The participation of trade unions is, however, not very significant in terms of their ability to influence government decisions and/or policies particularly since their role is advisory and consequently, the government is not bound to accept any of its views or propositions in those forums (Friedrich Ebert Foundation 2008:31 cited in Molokwane, (2019). Unions encourage employees to be productive and adhere to acceptable performance standards at work. The tensions between the union representatives and government have at numerous times reached courts of laws. One notable example was in 2017 when the unions challenged their derecognition by a government within the bargaining council.
The presence of a Bargaining Council even though very important there may be some deadlocks when the dialogue between workers and employers is characterized by the reluctance on the part of the parties to compromise (Smithsen, 2009). The public strike of 2011 and the endorsement of the opposition Umbrella for Democratic Change in 2014 elections are some of the examples that collective voices are viewed as important for workers to pressure the government to improve their working conditions. With a non-functional Public Service Bargaining Council, the federations have always offered a glimmer of hope to workers as they continue engaging the government on various salary increment and other issues. According Tshukudu (2020), Since Botswana Public Service Bargaining Council (BPSB) inception, it has been ridden by problems, with labour and other commentators observing that government is dragging its feet to start the bargaining council to frustrate unions. The other major problem was non-adherence to Collective Agreement by President Khama whereby He addressed collective bargaining issues such as salary increment during his Kgotla (traditional gatherings) meetings.
The unlawful court cases
Motshegwa & Bodilenyane (2012) distresses that “It is quite disturbing to realize that in a democratic state like Botswana the government can just act outside its mandate even though judges should be the final arbiters in disputes. One would expect the judicial system to have exercised their restraint to prevent the abuse of power by the state. However, due to judicial impartiality, the striking workers were not given an opportunity by the courts to defend themselves as to why they did not obey the Court Order. Indeed this was observed by Salamon (2000) cited in Motshegwa & Bodilenyane 2012) who argued that a court that intervenes in an industrial conflict cannot be ‘neutral’, it will take one side or the other, and generally in doing so will add the weight of ‘legal right’ to the management side.
Botswana as a democratic country allows citizens and organizations such as trade unions to seek legal redress if they feel aggrieved. Some court cases more especially Abrupt Termination of Employee Contracts in a Democratic State (2011 strike) have soured the relationship between the two parties. Federations of Public Sector Union were derecognized under Ian Khama Presidency in 2017, which adversely impacted on the Public Sector Bargaining Council. In many instances, salary increments were done outside the scope of the Bargaining Council by the government. In this case, more questions than answers were asked by the nation and trade unions about the future of Trade Unions as far as their participation in the bargaining negotiations under the presidency of Ian Khama Seretse Khama.
AIM OF THE STUDY
The aim of the paper is to explore how best the government could have done rather than resorting to abrupt Termination of Employee Contracts, due to wage negotiations.
Fagbemi, (2014) states that in any human relationship, the dispute is inevitable. Once it is inevitable in human relationships, it is not alien to labour relations. The dispute in the labour of relations is more formal than in any other types of relationships. According to Public Service Act (Act No. 30 of 2008) (Cap. 26:01) public officers that wilfully breach their employment contract, with the effect that the public is deprived of an essential service, commit a criminal offence in the absence of a credible defence. 'Industrial relations'? (Hyman, 1975) explains that many scholars see the definitions being surprisingly rare, professors and university departments with unquestioned expertise in the field were to seek to specify its nature precisely, and they would be likely to disagree in significant respects. Furthermore, emphasize in their disagreement as to the field is that most writers on industrial relations would agree only in one point “ not all social relations in industry fall within their province”, hence, the term is not interpreted accurately. Relations in the industry include a vast variety of routine personal interrelationships. In addition to what Hyman, explains
- Quote paper
- Anonymous, 2020, An Evaluation of Dispute Resolution in Botswana Public Sector, Munich, GRIN Verlag, https://www.grin.com/document/935341