BOPEU had before Justice Kebonang successfully challenged SB over salary disparities. The roots of the dispute lie in the migration of employees from the Central Statistics Office to Statistics Botswana in 2009, following the establishment of the latter as a body corporate.
This migration led to the development of a new operational structure, including a pay structure. However, grievances arose regarding the fairness of the grading system, leading to the appointment of a Salary Grievances Task Force. According to documents from Justice Kebonang’s court, on March 13, 2015, the parties entered into a collective labour agreement with respect to SB employees at band STB B and 5-9. The category excludes those in management positions.
In her answering affidavit filed on behalf of SB, Annah Ngalapi Majelantle who held the office of Statistician General at the time, she contextualises and explains the dispute between the parties as stemming from the migration of employees from the Central Statistics Office to Statistics Botswana following the establishment of the latter in 2009 by way of an Act of Parliament. Statistics Botswana became a body corporate as a consequence and ceased from being a department or unit within the Ministry of Finance and Development Planning.
She explained that once the new entity was established, the then employees of Central Statistics office did not automatically become its employees. It was only upon being offered, and in turn accepting to enter into contracts of employment with Statistics Botswana that they became its employees. She said a consultant DCDM E&M from Mauritius was engaged to develop and populate a new operational structure. A skills audit, organisational structure and a pay structure were thus undertaken and developed during the formation period up to April 2012.
Arising from the structure aforesaid, some employees who met the job requirements were automatically offered and appointed to new positions while other positions were contested through an open and competitive recruitment process which included advertising the vacancies externally. On the more immediate and relevant issue of remuneration, she explained that the migration of employees to the new pay structure resulted in several grievances being raised by employees on the unfairness of the grading system.
To deal with the grievances raised, a Salary Grievances Task Force was appointed by her to look into the pay structure and to consider submissions from employees and thereafter, to make recommendations to management. The Salary Grievances Task Force acknowledged the inconsistencies and made certain recommendations, which included adjusting salaries to a mid-point to reduce the wide gap between grades and salary ranges. The recommendation was, however, not accepted leading to a protracted dispute between the parties.
The dispute still rages on to date. On May 13, 2022, the parties prepared a stated case for adjudication agreeing on a number of facts as not being in dispute. The only dispute currently between the parties is on how the disparity and the inconsistencies in the pay structure are to be resolved. SB stated in its answering affidavit that there were anomalies with respect to the pay structure and its implementation and that it has addressed the situation by freezing salaries. BOPEU on the other hand contends that salaries of those disadvantaged should be adjusted upwards to match their counterparts in higher salaries.
BOPEU, acting as the representative of its members, filed legal proceedings seeking redress for salary disparities. The primary issues included the unlawfulness of remunerating employees differently for the same job, holding similar qualifications, and performing identical duties. The alternative plea sought the release of the Salary Grievances Task Force findings and the implementation of its recommendations. Statistics Botswana raised several preliminary points in law, including the argument that BOPEU failed to utilise remedies provided under the agreement and lacked locus standi.
However, the court dismissed these points, asserting the union's right to represent its members as per the recognised collective labour agreement. The court addressed critical questions, declaring the disparity in remuneration for employees in the same roles and qualifications to be unlawful. It also deemed the payment of lower qualified employees more than their superiors as unlawful. Notably, the court criticised the freezing of salaries, describing it as an unfair labour practice and prejudicial to employees entitled to progression.
In light of the affirmative answers to the key questions, the court ruled in favour of BOPEU. The judgement ordered the rectification of the pay structure, declaring the existing of disparities unlawful. Furthermore, it mandated that employees with the same functions, qualifications, and level of operation should receive equal remuneration. Costs were awarded to the union on an attorney-client scale. The appeal had been initially filed on December 9, 2022, and the current application faced no opposition.
The delay was attributed to the assumption that simultaneous service had been carried out on BOPEU's erstwhile attorneys, leading to a belated awareness by the current legal representatives on February 28, 2023. The transition between attorneys and the intervening Christmas break were cited as contributing factors to the oversight. In this case, Justice Walia found the applicant's explanation reasonable and acknowledged the soundness of the judgement in BOPEU's favour. Consequently, the court granted leave for the notice of opposition to be filed out of time. No costs were awarded in this instance. BOPEU was represented by Attorney Kago Mokotedi while Diba Diba represents SB.
