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CASAWU convene 1st Trade Union Expo 2016

The keynote speaker at recently convened Trade Union Exposition hosted by the Cashiers, shop Assistants and Allied Workers Union(CASAWU) Anthony Morima, acknowledged Botswana has a progressive labour legal framework in terms of the Employment Act, the Public Service Act, the Trade Disputes Act and the Workers Compensation Act.

Workers also have access to Commissioner of Labour and Social Security whose primary responsibility is to, after labour disputes are referred to him or her in terms of section 7 of the Trade Disputes Act 2003 facilitate mediation and/or arbitration to help identify a solution acceptable to conflicting parties.

"This is, however negated by the fact that the mediation process has no teeth since mediators cannot make any decision in relation to the merits of the dispute. Consequently, some employers just attend mediation hearings for the sake of it. After all, they know that over and above the thirty days that the dispute should have been mediated as provided in section 8 of Trade Disputes Act, 2003, they because of thousands of pending cases, have an average of two(2) years before the matter can be heard at the Industrial Court," said Anthony Morima, Managing Director of Mosireletsi Legal Services(Pty)Ltd.

He said, "This delay is an injustice to employees since justice delayed is justice denied. In fact, there are employers who knowingly commit such labour relations violations as unfair dismissals and unlawful withholding of wages and boastfully tell the employees that they will only pay them when the matter is just about to be heard at the Industrial Court. Many cases remain pending before the Industrial Court only to be postphoned because the employer has, for two years, failed to and/or neglected to file a statement of defense."

According to Morima these delays work against employees because an order of reinstatement is affected by the long passage of time. Also, after such passage of time it is often difficult to secure payment because the employers company has ceased to exist or its financial position has diminished so much so that the enforcement of the judgement debt is improbable.

The other serious challenge is the perceived lack of independence of the judges of Industrial Court. In terms of section 16(1) of the Trade Disputes Act, 2003 judges of the Industrial Court are appointed by the President without advise from the Judicial Service Commission(JSC), as is the case with High Court Judges.

Section 16(4) of the Trade Disputes Act, 2003 provides 'a judge of the Industrial Court who is not a citizen of Botswana or who is appointed on a permanent and pensionable terms may be appointed on a contract basis and shall be eligible for reappointment. This lack of security of tenure of expatriate Judges in particular is a threat to independence of the Industrial Court Judges.

The provision at section 16 B of the Trade Disputes Act, 2003 stating that 'An Industrial Court Judge shall vacate office on attaining the age of 70 years to continue in office for such period as may be necessary to enable the Industrial Court judge to deliver judgement or to do any other thing in relation to the proceedings commenced before him before he trained that age.

This extension of service beyond retirement could be sued to retain Judges who are sympathetic to Government. The Public Service Act also does not allow police officers, soldiers and prison warders to unionize unlike other countries like South Africa. Another sore point is the probation clause.

In terms of section 20(2) of the Employment Act, CAP.47:07, 'where a contract of employment is terminated during a probationary period by either the employer or employee under section 18 or 19 by not less than fourteen days notice,' the contract is deemed to have been terminated with just cause.

"Taking every dispute to court burdens the justice system and dilutes the quality of justice – through time and work pressure – for those who need the system the most. Don't talk to me talk to my lawyer has become a buzzword the world over that has landed a plethora of disputes in court, yet some of these cases would not have seen the light of day in court had the parties decided to make use of other dispute resolution mechanisms such as mediation," said Ndaba Ndaba, of Ndaba and Associates.

He said, "Litigation as we know it, has resulted in a number of employees being driven to abject poverty after their companies were auctioned because they owed XYZ. People have lost and continue to lose their properties and means of survival because a judgement handed down to pursuant to a litigation process has demanded that such property be auctioned. There is no regard for the consequences. Winners are winners no matter what happens to the loser."

Nadaba pleaded with union leaders to stay away from politics saying issuing 'hit list' that pertain to whom the general electorate should or should not vote for is improper and should rather deregister Union and establish a political party.

The remarks came at the inaugural Trade Exposition, which has been designed to step up educational campaigns to empower employees who lack understanding of their rights and obligations especially in the private sector environment.

"The idea off a Trade Union expo was a brilliant idea but the challenge was that we could not do it ourselves not only because we were operating on zero credit but we could not stop recruitment campaign so the idea proved to be a colossal epitome for CASAWU but we nearly gave up on it until we met two very good Samaritans being Smart creations Advertising and Communications and Bancroft media who agreed to pioneer event," said Dimpho Nyambe, CASAWU National Organizing Secretary.

He said, "The private sector has been rattled by the abstruse practices. It is this disregard for the liberty and dignity of the employees in the workplace that has left employees disgruntled which has had cataclysmic effects on the national economy. These challenges made us to seek solace in bringing union's and stakeholders together as well as employees to interact, learn, discover and foster co-operation thus the child was borne and named Trade Union expo and today we are gather here to celebrate her Birthday."

One of the speakers went to great lengths to stress unions should be run by rank and file members and not elitist leaders removed from their problems.

"The type of leaders that we have is a reflection of the membership. General membership of unions should take centre stage and should not sit back because they have paid subscriptions. They are the driving force behind the unions and through their proactive activism they can take union movement forward and achieve the lofty ambitions they have set for themselves. It is the members who should be held accountable," said Victor Phologolo, BOPEU Regional Organizer.

He said, "Members are leaders and true leaders encourage bottom up decision making and not top down decision making. Members should understand their role and importance to the proper functioning of a union. This involvement should not be limited to participation at the Congresses."

The Trade Union Expo co-sponsors BOPEU and Botswana Teachers Union(BTU) are keen to integrate the private sector unions into the mainstream union activity believing they are very critical component of the work force.

"It is a great contribution to unit workers of this country. We are happy to see CASAWU grow because they are most vulnerable workers. We strongly believe private sector unions to be best placed to address their challenges," said Onkemetse Mokone Chairman of BOPEU Board Trustees.

He said, "Let us have organized workers because organized will be needed to lobby parliamentarians and stakeholders to influence decision makers to formulate relevant policies."

The Trade Union expo is designed to educate and share with the general public as well as business community the value of Trade Unions, including their primary mandate and roles within civil society.

It is also aimed to foster a spirit of solidarity amongst sister organizations so that public and private sector organizations can core exist and forge memorandums of understandings and learn from each other.

Kago Phiri, the youthful Managing Director of Smart Creations, said "The purpose of Trade Union Expo was to educate student, public and other stakeholders like entrepreneurs. It was designed to create greater public awareness on role of unions and labour rights and further conscientious prospective members. "

He said, "It was a massive success. We were able to get support from BOPEU, BTU and Capital Banc. BOPEU are also working with smaller unions to build capacity and so saw Exhibition as an ideal platform to provide helping hand."

 

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