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Home » Archived News » General » Gov’t amends Public Service Act

Gov’t amends Public Service Act

Publishing Date : 22 May, 2017

Author : UTLWANANG GASENNELWE

President Lt. Gen. Dr Seretse Khama Ian Khama’s administration is moving swiftly with pace and strong intentions to amend the contentious Public Service Act of 2008 following a resolution from cabinet recently.


The executive is said to have given the move a nod, and plans are underway to take it to the parliament floor for debating. Indications suggest that the goal is to present the bill at the national assembly’s next sitting (July). It is said that the ruling Botswana Democratic Party (BDP) legislators are expected to knock down opposition party lawmakers in numbers in a move to rubber stamp the amendment bill into law. The said controversial bill (re-enactment) was gazetted on the 5th May 2017.


Some sections which leave a lot to be desired in the contentious bill include section 72 which states that the Directorate of Public Service Management (DPSM) shall be the Secretariat of the Public Service Bargaining Council (PSBC). The section is a departure from the previous arrangement where the Secretariat was appointed by independent bodies appointed by the Council so that it too remains autonomous.


Another controversial section is 73 (1) which posits “the Commissioner may, on application by an interested party, and on reasonable cause being shown, cancel the registration of the Council. (2) Any interested party aggrieved by a decision of the Commissioner to cancel registration of the Council, may appeal against that decision, to the Industrial Court.


In addition, section 74 (3) says: “representatives of both the trade unions and employer under subsections (1) and (2) shall be public officers” together with subsection (4) which mentions that “the Minister shall, from amongst persons who are not representatives, appoint a chairperson and a deputy chairperson” were also said to have been done in bad faith. Still on section 74, subsection (7b) states that 50 percent of the members, excluding the Chairperson and deputy Chairperson, shall constitute a quorum.


Moreover, some debatable sections to be amended also include section 79 (1) which says every trade union recognised under the Act shall be entitled to be a party in the Council and shall be entitled to have only one union representative at the Council. The section continues at subsection (2) citing that every trade union recognised under the Act shall be entitled to appoint public officers as representatives from among its members for purposes of (a) bargaining in good faith with government and b) representing its members in respect of disciplinary proceedings involving acts of serious misconduct.     


In terms of subscriptions “government shall not be required to deduct any trade union dues or levies from employees wages on behalf of any trade union save for union membership subscriptions,” reads section 79 (5) another section deemed as part of the controversial amendments to the Public Service Act of 2008. The Act which is being amended, (Public Service Act No 30 of 2008) is said to be a direct result of the ratification of three ILO Conventions by the Botswana Government ratified in 1997.


It was in 2010 that the objective of the 2008 Public Service Act was to provide for a single legislation governing employment of all employees of Government.  The Act also was to provide for the establishment of Public Service Bargaining Structures and recognized Public Service trade unions to engage in negotiations and bargaining over issues which have been identified and are matters for negotiation. The Act commenced on the 1st May 2010 and was published in the Botswana Gazette No. 11 of March 2010.


Previously it is understood that there were four pieces of legislation governing employment in the Public Service and these were the Public Service Act CAP 26:01, Unified Local Government Service Act, Teaching Service Act and Tribal Land Act Part II (a) to II (f). It was said then that the use of these separate laws resulted in inconsistencies in the conditions of service and uncoordinated relationships between Government as an employer and some civil servants.


“The Act thus establishes a single public service; ensures consistent terms and conditions of employment for all government employees; and installs systematic collective bargaining processes.” Meanwhile, it remains a mystery on what the government is trying to achieve by the impending amendment to the Act. Some say they are trying to climb down on the workers’ rights to bargain effectively. The new imminent amendments to the Act are seen as a target to the Bargaining Council which gives the government of the day sleepless nights.


Some say it is a drawback also to the current legislatures as it is moving away from the spirit of ILO in terms of standards and conventions of giving power to workers. When reached for comment concerning the amendments, a negotiating partner at the PSBC and part of the tripartite arrangement at ILO, Botswana Federation of Public, Private and Parastatal Sectors Union (BOFEPUSU) Secretary General Tobokani Rari said they were never consulted when the amendments were being made and as such don’t approve of them.


“We are surprised that the bill has now been gazetted contrary to all the promises. We would like to state for the record that there has not been any meaningful consultation,” he told Weekend Post in an interview this week. Rari narrated that they wrote to government requesting that they be given reasons for the intended amendment, but the employer never replied. He added that they nevertheless proceeded to write, providing their views on the intended amendments “hoping for further physical engagement on the same”.


“We then met Director of DPSM in March 2017 where we asked about the engagement on the proposed amendments. At this meeting the Director intimated to us that the amendments were about to be gazetted, but however stated that she would engage the Minister on the possibility of halting the process for further engagements,” the unionist pointed out.


Rari continued: “we then met Minister Mabeo recently during the month of April. We raised the same matter of consultation. At this meeting we came to a common ground that with the assistance of an ILO team of experts, the amendment of all the labour laws would be harmonised and as such we were assured of further engagement.”


During the month of the same month of April, Rari said they also met Assistant Minister in the Office of the President Thato Kwerepe whereat the very issue was raised yet again. According to Rari, Minister Kwerepe assured the delegation that BOFEPUSU would be consulted before gazetting the bill.


The BOFEPUSU SG stressed that the courts have on several occasions dealt with the concept of meaningful consultation or engagement. He said it involves parties exchanging views over a matter. “In this case our view is that there has not been any meaningful consultation,” he said of the Public Service Act pending amendments. What the union federation says about the bill


In a letter to DPSM Director Ruth Maphorisa, BOFEPUSU say they want her to share their reasons for seeking to depart from the existing practice, as per the 2008 Act, in appointing the PSBC Secretariat. In light of this the union stated: “the selection of the secretary of the council has since the inception of the PSBC been the joint responsibility of both government as well as Trade Unions sitting at the PSBC. Additionally, the discharge of the role has never been restricted to public servants.”
 


In another issue, the union says PSBC has been functioning effectively as a forum for dispute resolution, and it assists with evenly distributing the workload of dispute resolution. “The PSBC is especially the more ideal forum for public servants with grievances against the government as the officers presiding over the disputes are not public servants. It is furthermore open to everyone regardless of whether they are unionised or not and regardless of whether their union forms part of the PSBC,” they contended.

 
The union asked Maphorisa to shed more light in terms of the rationale for proposing the change so that they may make meaningful representations in respect of the same. “The aforementioned proposed amendment runs contrary to the spirit of negotiating in good faith. The hallmark of negotiating in good faith is that an employer must not take any steps averse to the party negotiating on behalf of its members.” They also asked the DPSM Director to confer a benefit on employees whilst negotiations are ongoing saying it makes a complete mockery of the entire bargaining process and it automatically tilts the scales in favour of government.


They continued: “clause 79 (1) provides that recognition will entitle a union to one seat at the PSBC. The implication of this provision is simply that a union like the National Amalgamated Local, Central Government and Parastatal Workers Union (NALCGPWU”) which has more than 20,000 members will have the same voice as a union like Trainers and Allied Workers Union (“TAWU”) which has less than 200 members.”


With this in mind, BOFEPUSU explained that they failed to appreciate the rationale behind granting a union whose members represent a negligible percentage of the entire workforce the opportunity to speak on behalf of everyone else. They also pointed out that clause 74 incorporates a proviso restricting representatives of trade unions admitted to the PSBC to public officers. “We would like to understand why there has been a drastic departure from ILO standards as well as local case law which has authoritatively pronounced on this issue,” the union highlighted.


They emphasised that the ILO position is to encourage collective bargaining as well as its autonomy. Article 3 of the ILO of 98, they said, provides as follows: Article 3. (1)   “Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes. 3. (2)   the public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.”


According to BOFEPUSU, the issues they raised constitute some of concerns in relation to the proposed bill. In light of the foregoing, he said it is critical that government shares what informed the proposed change.

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