BIUST ditches BOSETU for BOPEU
Mpho Mokwape | Monday February 26, 2024 06:00
The university, which is at loggerheads following accusations by BOSETU for unilaterally implementing the statutes and therefore breaching the Collective Labour Agreement between the parties, said it ditched the union for its unavailability for meetings.
“The union's approach has not yielded progress at similar pace due to its unavailability for meetings, the union's view on whether matters are negotiable or consultative, as well as their general view of the relationship with the university,” BIUST said.
The university reportedly entered into agreement with BOSETU through the Collective Labour Agreement, as form of negotiating and bargaining for the union’s members.
The CLA was also meant to create a harmonious industrial relationship between the parties. BIUST’s grounds for ditching BOSETU The university explained that it recognised the union as the collective bargaining agent for employees falling within the bargaining unit for purposes of Section 48 of the Trade Unions &Employees' Organisations Act. According to the court papers, the university after recognition, it engaged the union on matters that required either negotiation or consultation, with a view to negotiate or consult on such matters. “The matters the parties have been engaged in consultation on comprise the University Statutes,” read the papers.
BIUST revealed that the parties, reserved for negotiation, the Performance Management System, and salary increments, as well as the Staff Training and Skills Development Policy and that the university had recognised another trade union, BOPEU. The university pointed out that the two unions started of their engagements with the university as a team, however, at a later stage, the unions decided to engage the university as separate parties. “The university has made a lot of progress on the matters that the current case is concerned with, with BOPEU,” said the university. It explained that BOSETU's approach has not yielded progress at similar pace due to its unavailability for meetings, the union's view on whether matters are negotiable or consultative, as well as their general view of the relationship with the university.
The university said it entered into the CLA in good faith, that it has every intention of negotiating or consulting as the case maybe, in good faith. “It has also, where parties hold divergent views, availed itself to facilitate dispute resolutions through agreed mechanisms. It has also been accommodative of the union's time constraints and has been reasonable and proactive in setting timelines through the development of an engagement plan containing proposed advance dates and duration for engagement,” revealed the university. BIUST also noted that it took into account that progress stalled with the referral of the matters herein for mediation. Engagement plans for various matters with the union respectively. Alleged breach The university confirmed that performance management system is a negotiable matter and that in recognition of the fact, the parties negotiated the matter to a deadlock.
“The union's statement of case states that performance based increments for the year 2020-2021 has been referred to mediation in accordance with clause 16.5 of the CLA, subsequent to the declaration of a deadlock at the meetings of 16th and 30th November 2021 respectively. It is therefore threadbare that this matter has been negotiated contrary to the union's assertion,” BIUST said. The university in its defence said that the Training and Development policy is one of the policies that was listed for negotiation on April 25, 2022, as proposed by them.
The university explained that the policy together with others was duly submitted to the union on June 12, 2022 via correspondence to Thato Balekane and Nkebeto, the union's representatives and that the policy has not been approved by the University Council precisely to allow negotiation between the parties. Further, the university argued that BIUST statutes were listed for consultation from May 11, 2021 to May 12, 2021 as proposed by them and that the university consulted the union on the revisions to the statutes and shared the changes with the union.
“The statutes in question were operational statutes that affected the administrative functions and structures of the university being the Senate and the Council. The university believed that these were negotiable matters and consequently decided to be obstructive and not participate meaningfully in the consultation process,” said BIUST. Substantive fairness The university said it has set in motion, the process of negotiating matters that require negotiation and that the processes have taken rather long, owing to reasonable time constraints, and a refusal to be consulted on the union's side. “The university has therefore accorded the union substantive fairness, and shall continue to do so. This however, does not mean that the university will yield to the union even in circumstances where it honestly believes that the union is wrong. A difference of opinion does not equate to a lack of substantive fairness,” said BIUST. Procedural fairness BIUST said it was noteworthy that the union does not indicate the statues that it posits are negotiable and those that it posits are consultative and that it was an example of the obstructive approach the union has adopted. The university emphasised that the approach undermines the spirit and intent of the CLA and that the university duly fulfilled its duty to consult the union but did not have the duty to negotiate matters that did not affect its members.
For salary increments and BOSETU claiming compensation, the university said they are subject to negotiation between the parties contingent on the prevailing economic climate at the time, they are not automatic. BIUST noted that there has been no procedural impropriety to the extent that the parties have negotiated and deadlocked on this matter and that the court has not been appraised of the party's substantive position on the matter, it therefore cannot order compensation on the basis of a complaint on procedure, when no substantive foundation has been set out for the order claimed in this matter.
“The university has demonstrated that the Staff Training and Development Policy was listed for negotiation, before the proceedings; the parties deadlocked on the Performance Management System which matter the union has the opportunity to advance its position on, as it has not been concluded, and the union was consulted on the University Statutes,” said the university. Interdict The university said the balance of convenience favours the denial of an interdict as it has demonstrated that the university is not in breach and further, the memorandum whose implementation the union seeks to interdict is an October 2021 memorandum implemented effective September 16, 2021, more than a year ago.
“The union knew of this implementation date and its alleged rights in relation to the memorandum, but waited long to seek an interdict. Unfortunately for the union, the provisions of the memorandum have been fully put in effect,” noted BIUST. An interdict is therefore incompetent in the circumstances. 38.
In any case it has been demonstrated that the Respondent is not in breach, disentling the applicant to an interdict even if convenience was on their side. At the end, the university said the union has failed to demonstrate how the memorandum of October 14, 2021 has resulted in losses and that nothing has been set out justifying such financial loss to its members, in the end the university prayed for the dismissal of the union's claims with costs. Kewagamang Legal represents BIUST while Kambai Attorneys represents BOSETU.