Employer taken to court for refusing to recognize union representing employees
Botswana Investment and Trade Center (BITC) employees have through their union, National Amalgamated Local Central Government and Parastatal Workers’ Union taken the parastatal before the courts after it refused to recognize them.
In their finding affidavit, the union, which is represented by Collins Chilisa Attorneys, stated that they had applied to BITC for recognition sometime in 2015, but were later turned down. They noted that 33 people out of the total workforce of 82 had expressed interest in unionizing.
After receiving the application for recognition BITC met the union. “Subsequent to this meeting, BITC wrote to the Union denying it recognition on the basis that a good number of its membership included members of management and therefore in terms of the Trade Unions and Employers Organizations Act (TUEOA) it could not be said to represent a third of its employees,” their court papers read in part.
According to the affidavit, a dispute was thereafter lodged in accordance with section 32(5) of the Trade Disputes Act (TDA) and placed before a mediator. The dispute was however not resolved and a certificate of failure to settle was issued in July this year.
They argue that once a union meets a requisite threshold for recognition under the TUEOA and applies for recognition in terms of the TDA, an employer such as BITC cannot refuse to grant the union recognition.
“The requisite threshold is a third of the total workforce regardless of whether or the said union member is a member of management or not. Membership of trade unions is governed by the union’s constitution and sections 20 and 21 of the TUEOA. The membership in question has been duly admitted into the membership of the union.”
In their answering Affidavit, BITC which is represented by Armstrong Attorneys denied that they had 82 employees at the time of application for recognition as the union alleged. “At the time… BITC had a total workforce of 91 employees, …Currently BITC has 87 employees. Therefore, in order to meet the threshold for recognition, at least a third of such employees (29) should be members of the union, …and should be eligible for union representation.”
BITC argued that in the list of 33 employees made by the union, 2 were no longer employees, while 12 were not elegible for membership as they are part of management and as envisaged in section 42 (2) of TUEOA.
“The numbers fell short of the requisite threshold for recognition under the TDA, …the Union only had 19 eligible employees. This was short of meeting the requisite numbers,” they said.
The union however rebutted this, saying the law does not preclude a union from having members of management as its members. They said what the law precludes is for the union to bargain on behalf of the said members of management when collective bargaining takes place.