Chapter 4:
Comparison of the advantages and disadvantages of public sector staff associations registering as trade unions

• Advantages of registration as a trade union
• Disadvantages of registration as a trade union

Chapter 4:
Comparison of the advantages and disadvantages of public sector staff associations registering as trade unions

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Advantages of registration as a trade union

These may be summarised under the following heads:

• Legal recognition as the negotiating body for public sector employees
• Legal rights, immunities and privileges
• Protected status within an industry or trade
• Freedom of association for public sector employees
• Advantages arising from membership of the B.F.T.U.

Legal recognition as the negotiating body for public sector employees:
The current regulations applicable to civil servants, unified local government staff and teachers recognise their respective staff associations as the formal representative body for such employees. For example, BCSA is given the right to nominate staff representatives on two types of consultative machinery: the Central Joint Staff Consultative Council, and the Ministerial Consultative Committees. Both of these bodies are purely consultative in that their role is merely to advise or make recommendations to the relevant decision making authority.

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]. In terms of this Act, where at least one-quarter of the employees employed by an individual employer, or in an industry, 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: see section 50 (1). In the event of any uncertainty over whether an employer or an industry is bound to recognise a particular trade union, the matter may be referred to the Registrar for determination: see

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section 50 (3). The Registrar must then within 30 days issue a certificate stating whether or not the employer or industry is bound to recognise the trade union: see section 50 (4). Such a certificate is conclusive determination of the matter until such time as the Registrar determines the matter again and issues a fresh certificate: see section 50 (6).

Assuming that a public sector staff association as a trade union can satisfy the necessary one-quarter membership criteria, the Government would then be obliged to recognise the union as the negotiating body for all matters concerning those employees who are members of the union. However, this legal recognition will not guarantee very much so far as the union's members are concerned. In reality, the bargaining strength of a union depends upon a wide range of factors including the commitment of its members. Notwithstanding section 50, there are some trade unions in Botswana whose negotiating position is very weak.

Legal rights, immunities and privileges
The Trade Union and Employers' Organizations Act [Cap 48:01] confers certain benefits upon trade unions that are registered under the Act. Section 17 gives important legal rights, immunities and privileges to registered trade unions, as well as to their members and officers. These immunities and privileges are of fundamental significance, because at common law it is impossible for a trade union to engage in any effective industrial action against an employer without committing an unlawful act such as inducing an employee to break a contract of employment, or interfering with another person's trade, business or employment. Section 17 (a) provides that legal action on these grounds may not be taken against a registered trade union (or against its members or officers) where an act is 'done in contemplation or furtherance of a trade dispute'.

These benefits can only be enjoyed by registered trade unions. A public sector staff association currently cannot register under the Trade Union and Employers' Organizations Act because its members are not 'employees' within the meaning of that Act. By section 2 (1),

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the definition of an employee excludes a public officer or any person employed by a local authority (except for industrial class workers). As a consequence, public sector staff associations do not benefit from the immunities and privileges which are enjoyed by registered trade unions, and nor do their officers or members. As a result of this lack of immunity, a public sector staff association could be sued by Government if it were to advocate industrial action in the public service, as could any of its officers or members who induced their colleagues to take industrial action in breach of their contracts of employment.

Protected status within an industry or trade
The policy, which underlies the Trade Unions and Employers' Organisations Act, is that the formation of industry-wide unions should be encouraged, and the formation of competing unions should be discouraged. This policy would give some protection to a public sector staff association if it registered as a trade union, since the Registrar should therefore refuse to register any new union purporting to represent that particular category of public sector employees, provided he is satisfied that the public sector staff union is already sufficiently representative of the interests of workers in that particular area of public sector employment: see section 10 (4) (a).

Freedom of association for public sector employees
If a public sector staff association registers as a trade union, those public sector employees eligible to join the union will be exercising their legal right of association. The Trade Unions and Employers' Organisations Act provides that no employer may make it a condition of employment that an employee shall not remain or become a member of a registered trade union, or participate in the activities of a registered trade union: see section 57 (1). It is also provided that an employer may not penalise an employee who becomes a member of a registered trade union, or who participates in the activities of a registered trade union: see section 57 (2). Furthermore, section 23 of the Employment Act makes it unlawful for an employer to dismiss an employee on grounds of membership of a registered trade union or

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involvement in any activities of a registered trade union outside working hours.

Advantages arising from membership of the B.F.T.U.
If a public sector staff association registers as a trade union, it will have the opportunity as a union to join the Botswana Federation of Trade Unions. The potential advantages of B.F.T.U. membership are political and educational rather than legal.

Disadvantages of registration as a trade union

These may be summarised under the following heads:

• Restrictive rules on membership
• Restrictive rules on the receipt of foreign donations

Restrictive rules on membership
As already discussed (see chapter 3 above), 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 application of this rule will result in a loss of membership to public sector staff associations.

Restrictive rules on the receipt of foreign donations
Section 64 of the Trade Union and Employers' Organizations Act provides that a registered trade union may not accept any funds originating from outside Botswana without the written consent of the Minister. In this context, 'funds' includes all donations, loans or other assistance having pecuniary value, except for travel expenses and scholarships. At present, public sector staff associations are able to accept such foreign donations without obtaining any such consent.