Chapter 7:
The Consultative/Negotiating Structure for a Public Sector Staff Trade Union

• Types of Collective Agreement
• The legal effect of collective agreements

Chapter 7:
The Consultative/Negotiating Structure for a Public Sector Staff Trade Union

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Introduction
There is a fundamental distinction between consultation and negotiation, as explained by the Industrial Court in the case of Mbayi v Wade Adams (Botswana) (Pty) Ltd. [Case No. I.C. 30/94]:

"Consultation conveys the notion that the employer seeks the advice and views of his employees, but retains the final decision.
Negotiation on the other hand is in general a method of joint decision making involving bargaining between representatives of workers and of employers, with the object of establishing mutually acceptable terms and conditions of employment. Negotiation implies an effort to reach agreement by the parties concerned."

The present structures where public sector staff associations and Government discuss matters of common interest are clearly part of consultative processes, since all decisions taken at such meetings must be referred to the Minister who may accept, modify or reject them: see for example reg. 33 (2) of the Public Service Regulations.

Recognition of a Public Sector Staff Association as a Negotiating Body
If a public sector staff association registers as a trade union, it will become subject to the Trade Unions and Employers' Organisations Act [Cap 48:01]. Section 50 (1) of the Act provides that where at least one-quarter of the employees employed by an individual employer are members of a particular registered trade union, that employer must recognise that particular union as the negotiating body for all matters concerning those employees who are members of the trade union. Assuming that the public sector staff association as a trade

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union can satisfy the necessary one-quarter membership criteria, in terms of section 50 (1), Government will then be obliged to recognise the union as the negotiating body for all matters concerning those employees who are members of the union.

On recognition of trade unions, the National Industrial Relations Code of Practice states:

"62. Ideally, the recognition of a trade union should be a voluntary process. Management has a right to know the number of employees who are members of the union seeking recognition, but not their identities...

63. Recognition of a trade union or employee organisation as a representative body should be formalised in an agreement between management and the union, which includes:

1. The scope of recognition specifying categories of employees who are covered by the agreement and any categories of employees who are specifically excluded;
2. A binding commitment by management not to recognise any other union or employee organisation as representative of the same category or categories of employees covered by the agreement;
3. The rights and obligations of duly authorised employee representatives and protection from victimisation of such representatives;
4. Agreed facilities granted to the union or employee organisation which may include, among other facilities;
   1. Check off agreements;
   2. Time off for union activities, with, or without pay;
   3. Reasonable access to members by properly authorised representatives;
   4. Use of company notice boards and other office facilities."

Types of Collective Agreement

In the private sector, recognition of a trade union typically results in a collective agreement, signed by both the employer and the trade

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union. Section 2 (1) of the Trade Disputes Act [Cap. 47:01] defines a collective labour agreement as: "a written agreement relating to the terms and conditions of employment concluded between one or more registered trade unions or branches thereof or, where no such organization exists, the representatives of the employees concerned duly elected and authorised by them and one or more employers or registered employers' organizations".

Collective agreements usually have two functions:

1. To regulate procedural matters by providing for collective bargaining and dispute resolution procedures, and
2. To determine substantive issues such as the terms and conditions of employment for those employees covered by the agreement.

A useful explanation of the nature and scope of such collective agreements is contained in the National Industrial Relations Code of Practice:

"92. Collective agreements deal with matters of procedure and matters of substance which are of joint concern to management and employees.

93. Where an employer (or employers) enter into a collective agreement with a trade union or employee organisation, such agreement should be in writing and there should be provisions for future amendments, interpretation, and termination by mutual consent, or by one or other of the parties under specified conditions.

94. Collective agreements may be a single document, which covers both procedural and substantive issues, or successive separate documents as agreements are reached through negotiations.

95. Procedural agreements should include:

(a) Details of the parties to the agreement and the categories of employees falling within the scope of the agreement;
(b) Matters subject to collective bargaining and the level at which this bargaining will take place;

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(c) Procedural arrangements for negotiating terms and conditions of employment, and the conditions under which such terms can be re-negotiated;
(d) Facilities for trade unions and the establishment, status, appointment and functions of shop stewards;
(e) Procedures for the settlement of collective disputes and for disputes arising out of matters of interpretation;
(f) Procedures to be followed in the event of any industrial action by either party to the agreement and the protection of essential services within an industry or individual company;
(g) Ban on victimisation on the grounds of trade union membership, or non-membership, or trade union activity;
(h) The establishment and scope of any consultative committees.
96. Substantive agreements determining the terms and conditions of employment should clearly state the period for which they apply and the employees covered and may include:
(a) Wages and salaries, and other financial remuneration such as overtime rates, bonuses, piece rates, and other payment systems;
(b) Hours of work, provisions for shift working, overtime, annual leave, sick leave, maternity leave, compassionate leave and other forms of approved absences;
(c) Job evaluation techniques and the measurement of performance and measurement of work;
(d) Pension, provident fund and gratuity schemes;
(e) Service awards;
(f) Disciplinary codes of conduct, disciplinary measures and disciplinary procedures;
(g) Procedures for handling redundancies and temporary lay-offs;
(h) Training and localisation programmes."

On the issue of 'collective disputes procedures', the Code provides further:

"83. Where a collective agreement provides for a collective disputes procedure this should be in writing and should:

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1. Define a collective dispute;
2. State the level at which an issue should be first raised;
3. Provide for successive stages of negotiation, and lay down time limits for each stage in the procedure, with provision for extensions by mutual agreement;
4. Preclude any form of industrial action by either party until all stages of the procedure have been exhausted;
5. Provide for outside mediation and/or arbitration in terms of the Trade Disputes Act, or through private independent mediation or arbitration."

The legal effect of collective agreements

Section 33 (1) of the Trade Unions and Employers' Organisations Act provides that each party to a collective agreement should lodge a certified copy of the agreement with the Commissioner of Labour within 28 days immediately after concluding the agreement. Any extension or variation of such an agreement should be similarly lodged. The Commissioner has power to withhold registration of such an agreement where he considers the agreement is "contrary to any provision of this Act or any other written law": see section 33 (3). Any interested party aggrieved by such a withholding of registration may appeal to the Minister, whose decision shall be final: see section 33 (4).

The importance of a collective agreement is that it is legally binding upon both sides to the agreement. Section 32 (1) of the Trade Unions and Employers' Organisations Act provides that "every collective labour agreement shall be binding upon the parties thereto". This means that either party (that is, either the Government or the public sector staff trade union) could obtain a court order to force the other party to comply with the agreement. If any party wishes to repudiate the agreement, it must serve one month's written notice of such repudiation upon every other party to the agreement: see section 32 (2). Furthermore, no such notice of repudiation shall be served without the permission in writing of the Minister within the first six months of the agreement being in force: see section 32 (2).

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Collective Bargaining in the Public Sector
The framework of public sector collective bargaining will inevitably have similarities to collective bargaining in the private sector, where recognition of a trade union typically results in a collective agreement, signed by both the employer and the trade union. In order to negotiate a collective agreement, the parties must engage in collective bargaining. For both public sector staff associations and Government, this will be a new experience. However, a potential problem for public sector staff associations is that Government may be unwilling to engage in genuine collective bargaining. What Government regards as 'collective bargaining' or 'negotiation' may appear to the representatives of a public sector staff association as little different to the present consultation procedures. This has been the experience of unions in the parastatal sector who complain that management treat their 'negotiation procedures' as basically consultative. The challenge for public sector staff associations is to create an environment within which genuine negotiations on their conditions of employment can take place. This will not be easy.