SECTION of DOCUMENT:
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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
(2) In this section, "member of management" means an employee who -
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(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 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:
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:
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.
Section 43 requires that the following steps should be taken before industrial action is taken in an essential service:
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In terms of the Schedule to the Trades Disputes Act, the following services have been declared as 'essential services':
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.
© Friedrich Ebert Stiftung | technical support | net edition fes-library | Juni 1999