The government has dragged the unions before the court over the issue of introducing veterinary services, diamond cutting, sorting and selling services, as well as teaching as essential services. The case is scheduled to appear before the Court of Appeal during this session which starts from January 10th.
Last year, Judge Key Dingake ruled in favour of Unions who had taken government to court challenging its decision to declare some services essential. In his judgment, Justice Dingake declared Section 49 of the Trade Disputes Act, which government relied on for its unpopular decision, unconstitutional and nullified the listing of veterinary services, diamond cutting, sorting and selling services, as well as teaching as essential services.
In their petition before the Appeal Court, the minister of Labour and Home Affairs argued that Justice Dingake erred and misdirected himself in finding that the said section is invalid.
They also argued that the court misinterpreted the provision of section 144 of the Employment Act (Cap. 47:01) in finding that the minister failed to consult the Labour Advisory Board (LAB) in its applicability in its decision. It is further the government’s argument that the court erred in holding that Botswana’s membership of the ILO and ratification of the ILO convention gives rise to a legitimate expectation that the Minister will not include as essential service, services which do not meet ILO criteria.
The unionists on the other side contend that the Court of Appeal should dismiss the government with costs. They argue that Botswana’s approval of the ILO instruments founded a legitimate expectation on the part of the unions that the minister would act in agreement with Botswana ILO obligations.
They argued that it appears from the minister’s affidavit that the amendment was directed against an anticipated possible resumption of the public sector strike by the unionists. “The unions should have been given notice and an adequate opportunity of presenting a case against the making of the amendment. This did not occur,” argued attorney Mboki Chilisa on his heads of arguments.
The background of the case is that on April 2011 members of the unions; Botswana Public Employees Union, Botswana Teachers Union, Botswana Secondary Teachers Union and National Amalgamated Local and Central Government and Parastatal Workers Union embarked on a nationwide industrial action.
On June 2011, representatives of the BFTU received notice by e-mail from the Assistant Labour Commissioner of an emergency LAB meeting. The proposed agenda for the meeting was to discuss amendments of the schedule to the Trade Dispute Act through the addition of veterinary services and the teaching service to the list of essential services.
It was at this meeting that all the attendees agreed that the meeting be postponed to another date to enable both parties to go and seek their constituents’ views on the issue.
Despite the agreement, the next day the minister through statutory instrument no. 49 of 2011 gazetted a new schedule to the Trade Disputes Act, different from the old one. The amendments purportedly increased the scope of essential services and thereby removed rights from many employees.