Chapter 3:
Problem areas: The Rules on Membership and Essential Services

Chapter 3:
Problem areas: The Rules on Membership and Essential Services

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In November 1997, when the Minister of Labour and Home Affairs announced that the Government of Botswana had ratified ILO Convention 151, he also made reference to two related matters: the right to take industrial action, and the rules on trade union membership. As regards the right to take industrial action, the Minister stated that "this right does not cover essential service workers who will have a special dispensation to address their concerns or grievances. He also said that there would be a cut off point as to which government employees can belong to unions to take care of instances where a civil servant is also part of management."

Managers and Trade Union Membership
The effect of section 61 of the Trade Union and Employers' Organizations Act is that a manager cannot be a member of the same union, or branch of a union, as the employees that he or she manages. The section provides as follows:

"(1) Notwithstanding any other provision of this Act, no member of management in any undertaking or enterprise shall be represented by a negotiating body, whether the same is or is not a registered trade union or branch thereof, in respect of matters bearing upon relations between his employer or the industry in which the member of management is employed and those employees thereof or therein who are members of management unless the negotiating body represents only members of management in the same undertaking, enterprise or industry and no other employees.

(2) In this section, "member of management" means an employee who -

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(a) Has authority, on behalf of his employer, to employ, transfer, suspend, lay off, recall, promote, terminate the employment of, reward, discipline or deal with the grievances relating to the employment of any fellow employees or effectively to recommend any such action or the manner in which such grievances ought to be dealt with, if the exercise by him of that authority is not merely of a routine or clerical nature but requires the use of his discretion;
(b) Participates in the making of a general policy regarding relations between his employer and his fellow employees or any of them; or
(c) Is employed in a capacity that requires him to have full knowledge of the financial position of the undertaking or enterprise in which he is employed or gives him free personal access to other confidential information relating to the conduct of his employer's business."

The application of this section has caused considerable difficulties to most trade unions in the parastatal sector. The difficulty was highlighted in the case of 'Botswana Power Corporation Workers Union v Botswana Power Corporation' which was recently argued in the Industrial Court (a summary of this case is included as Appendix C). This case arose because of a dispute as to which employees of Botswana Power Corporation are entitled to become members of the Botswana Power Corporation Workers Union. The Union claimed that all employees who fall within grades 8 to 17, irrespective of the nature of their jobs, are entitled to become Union members. The Corporation claimed that employees who fall within grades 8 to 17 do not automatically qualify for Union membership: whether they are entitled to become Union members depends on the nature of their jobs, and employees who are 'members of management' as defined by section 61 of the Trade Union and Employers' Organizations Act are excluded from membership of the Botswana Power Corporation Workers Union. On the basis of this argument, the Corporation claimed that the holders of some 68 job positions falling within grades 8 to 17 are not entitled to be members of the Union. The Industrial

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Court ruled in favour of the Botswana Power Corporation and reasoned that collective bargaining would be undermined if management had to bargain with a Union representing both ordinary employees and employees who are members of management.

An important feature of the judgment in 'Botswana Power Corporation Workers Union v Botswana Power Corporation' is that the Court was not willing to declare that certain grades of employees are automatically designated as 'members of management'. The Court emphasised that each job position and job description must be carefully studied in order to determine whether it falls within the wording of section 61 (2) (a), (b) or (c).

Managers in the Civil Service
In order to illustrate the potential effect of these membership rules upon public sector staff trade unions, let us consider the position of public officers who are currently members of the Botswana Civil Service Association (BCSA). At present, neither the 1987 General Orders nor the 1996 General Orders prohibit any category of public officer from becoming a member of BCSA. However, both sets of General Orders prohibit certain more senior public officers from accepting appointment as office bearers in any Staff Association.

In the event that BCSA decides to register as a trade union, certain categories of public officer will be excluded from membership of a 'unionised BCSA' by virtue of section 61 of the Trade Union and Employers' Organizations Act. But it is not easy to define precisely which categories of public officer will not be eligible for membership of a 'unionised BCSA'. At first sight, it appears that guidelines are already contained in the General Orders. For example, order 38.4 of the 1996 General Orders states that:

"Officers of D3 and above may not accept appointment as office bearers in Staff Associations, nor may Heads of Department who are a lower grade"

However, this approach is similar to the 'grading' argument, which was rejected by the Industrial Court in 'Botswana Power Corporation Workers Union v Botswana Power Corporation'. Instead of declaring

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that certain grades of employees are automatically designated as 'members of management', the Court emphasised that each job position and job description must be carefully studied in order to determine whether it falls within the wording of section 61 (2) (a), (b) or (c). This approach is more similar to that adopted in the 1987 General Orders which stated in Annex 3 to Chapter Two:

"Consideration has been given to the desirability of more senior superscale officers and Heads of Departments and Divisions accepting appointment to the Executive of the Botswana Civil Service Association and, in some cases, subsequently being nominated to serve on the Central Joint Staff Consultative Council. It has been decided that such appointments could conflict with the managerial duties of such senior officers and may also detract from the consultative machinery being truly representative of the various cadres of the Public Service. Therefore, it has been decided that General Orders should be amended to provide that officers in Superscale grade SI to SV and other officers who hold particular managerial posts may not accept appointment as office bearers in Staff Associations. The schedule of posts concerned is as follows:
SCHEDULE A. Superscale officers serving on salary scales SI to SV.
B. (i) Deputy Clerk of Assembly; (ii) Senior Magistrate; (iii) Director of Library Services; (iv) Deputy Establishment Secretary (ULGS); (v) Chief Immigration & Passport Control Officer; (vi) Director, Tirelo Sechaba; (vii) Employment Coordinator; (viii) Director, National Museum & Art Gallery; (ix) Bursaries Secretary; (x) Registrar of Companies; (xi) Customary Courts Commissioner; (xii) Senior District Officer; (xiii) Principal, (BIAC); (xiv) Principal, BAC; (xv) Principal, Polytechnic; (xvi) Principal Tutor, NHI; (xvii) Principal State Counsel; (xviii) Chief Environmental Health Officer; (xix) Senior Electrical Engineer; (xx) Assistant Director, Public Service Management; (xxi) Director, Tourism Development; (xxii) Director, BEDU; (xxiii) Assistant Attorney General."

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Although this list of job positions is clearly out of date, it does provide an illustration of the approach that would be adopted by the Industrial Court in deciding which public officers are not eligible to be members of a trade union. In order for BCSA to predict which of its members would not be eligible for union membership, a list of members' job positions and job descriptions must be obtained in order that a detailed comparison can be made with the provisions of section 61 (2) (a), (b) and (c) of the Trade Unions and Employers' Organizations Act. A similar exercise should be undertaken by each public sector staff association that decides to register as a trade union.

Essential Services
The Trade Disputes Act [Cap. 47:01], as amended by the Trade Disputes (Amendment) Act [No. 23 of 1992], makes a fundamental distinction between industrial action in non-essential services and in essential services. In non-essential services, industrial action is presumed lawful unless or until it has been declared unlawful. However, industrial action in essential services is unlawful unless the elaborate procedures laid down in section 43 of the Act have been observed.

Section 43 requires that the following steps should be taken before industrial action is taken in an essential service:

STEP 1.	Where any industrial action in furtherance of a trade dispute is contemplated by either an employer(s) or employees in an essential service, the trade dispute must be reported to the Commissioner of Labour.
STEP 2.	Upon receipt of such report, the Commissioner has 21 days in which to promote a settlement of the dispute, during which period the Minister may declare the proposed industrial action to be unlawful and refer the dispute to the Industrial Court in accordance with section 9.
STEP 3.	If the dispute is not settled within the 21 day period, and it has not been referred to the Industrial Court by the Minister, employees may still not take industrial action until a secret ballot has been held in which at least two-thirds of the employees concerned are in favour of taking industrial action. Such ballot must be supervised by the Commissioner in accordance with section 44, and the procedures laid down in the Trade Disputes Regulations [S.I. 146 of 1984].

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In terms of the Schedule to the Trades Disputes Act, the following services have been declared as 'essential services':

• Air traffic control services
• Bank of Botswana
• Barclays Bank of Botswana Limited
• Botswana Vaccine Laboratory
• Electricity services
• Fire services of the Government, of the Railways and of local authorities
• First National Bank of Botswana Limited
• Health services
• Sanitary services
• Stanbic Bank of Botswana Limited
• Standard Chartered Bank Botswana Limited
• Telecommunication services
• Water services
• Transport services necessary to the operation of any of the foregoing services
• Operational and maintenance services of the Railways.

It is clear that some members of public sector staff associations, particularly in BCSA and BULGASA, do currently work in these so-called 'essential services'. However, it must also be emphasised that this list of 'essential services' is not static: it can be extended by Government by means of a Statutory Instrument at any time. The grounds on which an extension to the list of 'essential services' can be challenged in the High Court are very limited. Affected public sector staff associations would therefore be advised to seek clarification from the Minister (of Labour and Home Affairs) as to whether Government intends to extend or modify the present list of essential services.