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The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010, and the Government’s reply.
Scope of the Convention. Application of the Convention to prison staff. The Committee had previously requested the Government to amend section 2 of the Trade Disputes Act, section 2 of the Trade Union and Employers’ Organizations (Amendment) Act (TUEO), and section 35 of the Prison Act, so as to ensure that prison staff are afforded all the guarantees provided under the Convention. The Committee notes from the Government’s report that it has no intention to grant prison staff the right to unionize since their staff association, as provided for in the Prison Act, supposedly caters adequately for the negotiations on their welfare, terms and conditions of employment. However, the Committee notes that according to section 35(3) of the Prison Act, a prison officer may only become a member of an association established by the Minister and regulated in the manner prescribed; and that under section 35(4), any prison officer who becomes a member of a trade union or any body affiliated to a trade union shall be liable to be dismissed from the service. The Committee recalls that all public service workers other than those engaged in the administration of the State should enjoy protection against acts of anti-union discrimination and interference and their union should enjoy bargaining rights. Therefore, the Committee once again requests the Government to amend the Trade Disputes Act, the TUEO Act and the Prison Act to ensure to prison staff the rights enshrined in the Convention.
Article 1 of the Convention. In its previous comments, the Committee had further noted the Government’s statement that consultation was ongoing concerning the ITUC’s previous observation according to which if a trade union is not registered, union committee members are not protected against anti-union discrimination (e.g. article 23 of the Employment Act). The Government does not refer to this issue in its report. In these circumstances, recalling that the Government is responsible for preventing all acts of anti-union discrimination in order to give effect to Article 1 of the Convention, the Committee once again requests the Government to take the necessary measures to ensure that all union committee members, including those of unregistered trade unions, enjoy an adequate protection against anti-union discrimination.
Articles 2 and 4. Protection against acts of interference and promotion of collective bargaining. In its previous comments, the Committee had requested the Government to provide information on the progress made with respect to the following legislative changes:
– the adoption of specific legislative provisions ensuring adequate protection against acts of interference by employers or employers’ organizations in the establishment, functioning or administration of trade unions, coupled with effective and sufficiently dissuasive sanctions;
– the repeal of section 35(1)(b) of the Trade Disputes Act, which permits an employer or employers’ organization to apply to the Commissioner to withdraw the recognition granted to a trade union on the grounds that the trade union refuses to negotiate in good faith with the employer; and
– the amendment of section 20(3) of the Trade Disputes Act, so as to ensure that compulsory arbitration of disputes of interest is permissible only in the following instances: (1) where the party requesting arbitration is a trade union seeking a first collective agreement; (2) disputes concerning public servants directly engaged in the administration of the State; and (3) disputes arising in essential services. In this respect, the Committee notes the Government’s indication that it has included in the National Development Plan 10 a project to establish an independent dispute resolution system.
The Committee notes from the Government’s report that consultations with the social partners on all labour legislation are still ongoing. The Committee requests the Government to indicate, in its next report, any progress made on the abovementioned provisions and it hopes that the Government will make every effort to take the necessary action in the very near future. The Committee encourages the Government to avail itself of the technical assistance of the Office if it so wishes.
ITUC’s comments. The Committee notes the ITUC’s comments concerning the necessity for a trade union to represent a significant proportion of the workforce in order to bargain collectively. The Committee notes the Government indication that in terms of section 48 of the TUEO Act as read with section 32 of the Trade Dispute Act, the minimum threshold to be recognized by the employer is set at one third of the workforce of any organization. The Committee recalls that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should be granted to all unions in this unit, at least on behalf of their own members. The Committee requests the Government to provide in its next report information on the measures taken or contemplated so as to ensure that where no union represents one third of the employees in a bargaining unit, collective bargaining rights are granted to all unions in the unit, at least on behalf of their own members.
The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 26 August 2009. The Committee requests the Government to provide its observations thereon.
Scope of the Convention. The Committee had previously requested the Government to amend section 2 of the Trade Disputes Act, section 2 of the Trade Union and Employers’ Organizations (Amendment) Act, and section 35 of the Prison Act so as to ensure that prison staff are afforded all the guarantees provided under the Convention. The Committee notes the Government’s indication that consultations with the social partners with regard to the said legislative amendments have not been concluded. Recalling that consultations with the social partners with regard to legislative amendments had commenced two years ago, the Committee expresses the hope that the Government will be in a position, in the near future, to report progress on these legislative amendments to ensure to prison staff the rights enshrined in the Convention. It requests the Government to provide information on developments in this regard.
Article 1 of the Convention. The Committee further notes the Government’s statement that consultation is still ongoing concerning the ITUC’s previous observation according to which if a trade union is not registered, union committee members are not protected against anti-union discrimination. In this regard the Committee, recalling that the Government is responsible for preventing all acts of anti-union discrimination in order to give effect to Article 1 of the Convention, requests the Government to take the necessary measures to ensure that all union committee members, including those of unregistered trade unions, enjoy protection against anti-union discrimination.
Articles 2 and 4. The Committee once again requests the Government to provide information on the progress made with respect to the legislative changes requested in its previous comment, which it repeats as follows:
– the repeal of section 35(1)(b) of the Trade Disputes Act, which permits an employer or employers’ organization to apply to the Commissioner to withdraw the recognition granted to a trade union on the grounds that the trade union refuses to negotiate in good faith with the employer;
– the amendment of section 20(3) of the Trade Disputes Act, so as to ensure that compulsory arbitration of disputes of interest is permissible only in the following instances: (1) where the party requesting arbitration is a trade union seeking a first collective agreement; (2) disputes concerning public servants directly engaged in the administration of the State; and (3) disputes arising in essential services.
The Committee notes that the Government’s report has not been received. It further notes the comments submitted by the International Trade Union Confederation (ITUC) on 29 August 2008, which mainly refer to legislative issues raised in its previous observation. The Committee asks the Government to provide full information on the progress made with respect to the legislative changes requested in its previous comment, which it repeats as follows:
– the amendment of section 2 of the Trade Disputes Act, section 2 of the Trade Union and Employers’ Organizations (Amendment) Act, and section 35 of the Prisons Act so as to ensure that prison staff are afforded all the guarantees provided under the Convention;
Finally, the Committee requests the Government to provide its observations with respect to the ITUC’s comments, according to which if a trade union is not registered, union committee members are not protected against anti-union discrimination.
The Committee notes the Government’s report and the comments submitted by the International Trade Union Confederation (ITUC), which refer mainly to legislative issues raised in its previous observation. The Committee requests the Government to provide its observations on the ITUC’s comments.
The Committee recalls that it had previously requested the Government:
– to amend section 2 of the Trade Disputes Act, section 2 of the Trade Union and Employers’ Organizations (Amendment) Act, and section 35 of the Prisons Act so as to ensure that prison staff are afforded all the guarantees provided under the Convention;
– to amend its legislation by adopting specific provisions ensuring adequate protection against acts of interference by employers or employers’ organizations in the establishment, functioning or administration of trade unions, coupled with effective and sufficiently dissuasive sanctions;
– to repeal section 35(1)(b), of the Trade Disputes Act, which permits an employer or employers’ organization to apply to the Commissioner to withdraw the recognition granted to a trade union on the grounds that the trade union refuses to negotiate in good faith with the employer.
In this respect, the Committee notes the Government’s statement that it has taken note of its comments, and that consultations with the social partners on the legal provisions referred to therein are ongoing. Recalling that consultations with the social partners with regard to legislative amendments had commenced last year, the Committee requests the Government to indicate the progress made with respect to these previously raised points and expresses the firm hope that next year it would be in a position to note substantive progress.
Finally, the Committee had noted that section 18(1)(e) of the Trade Disputes Act empowers the Industrial Court to direct the Commissioner to refer disputes before it to arbitration; section 20(3) provides on the other hand that a party to a trade dispute may make an urgent application to the Industrial Court for the determination of the dispute in question. In this respect, the Committee notes the Government’s indication that the Industrial Court may refer disputes of interest to arbitration, including where one of the parties to a dispute has made an urgent application to the Industrial Court. Further noting the Government’s statement that the intention of the law is to have disputes of interest resolved through arbitration, the Committee recalls that, as regards arbitration imposed by the authorities at the request of one party, it considers that it is generally contrary to the principle of the voluntary negotiation of collective agreements established in Convention No. 98, and thus the autonomy of the bargaining partners. An exception might however be made in the case of provisions which, for instance, allow workers’ organizations to initiate such a procedure on their own, for the conclusion of a first collective agreement. As experience shows that first collective agreements are often one of the most difficult steps in establishing a sound bargaining relationship, these types of provisions may be said to be in the spirit of machinery and procedures which facilitate collective bargaining (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 257). The Committee recalls, moreover, that recourse to compulsory arbitration is also legitimate for disputes arising in the public service and in essential services in the strict sense of the term. In these circumstances, the Committee requests the Government to amend section 20 of the Trade Disputes Act in accordance with the principles noted above and to keep it informed of the progress made in this regard.
The Committee notes the Government’s report and the attached copies of the Trade Union Disputes Act (2004) and the Trade Unions and Employers’ Organizations (Amendment) Act, 2003.
The Committee notes the comments of the International Confederation of Free Trade Unions (ICFTU), dated 10 August 2006, which mainly concern legislative issues raised in its previous observation. The ICFTU also underlines several problems regarding the application of the Convention, including anti-union dismissals in 2005, the imposition of compulsory arbitration and the harassment of trade union leaders. The Committee requests the Government to send its observations thereon.
Previously, the Committee had requested the Government to undertake amendments to its laws so as to bring them into conformity with the requirements of the Convention. The Government states in this regard that the Committee’s comments were noted, and that consultations with the relevant authorities are ongoing. The Committee notes this information and expresses the hope that the Government would, in its next report, be able to indicate the progress made with respect to the following issues raised by the Committee in its previous comments.
Articles 1, 2 and 4 of the Convention. Trade union rights of officers of the prison services. The Committee notes that the Government amended the Trade Union Disputes Act and the Trade Unions and Employers’ Organizations (Amendment) Act in order to include in their scope public officers other than the armed forces, the police and the prison services. The Committee recalls that the guarantees provided by the Convention apply to prison staff. The Committee once again requests the Government to amend its legislation (including section 35 of the Prisons Act) in order to bring it in full conformity with the Convention and to keep it informed of measures taken or envisaged in this respect.
Article 2. Acts of interference. The Committee had noted that the legislation did not contain specific provisions for the protection of workers’ organizations against acts of interference by employers and their organizations and requested the Government to amend its legislation by adopting specific provisions ensuring adequate protection of workers’ organizations against acts of interference by employers or employers’ organizations in the establishment, functioning or administration of trade unions, coupled with effective and sufficiently dissuasive sanctions. The Committee again requests the Government to keep it informed of measures taken or envisaged to afford legislative protection against acts of interference.
Article 4 of the Convention. The Committee had noted that section 18(1)(a) of the Trade Union Disputes Act provides that the Industrial Court shall have jurisdiction to hear and determine all trade disputes except for disputes of interest. However, section 18(1)(e) provides that the Industrial Court shall have jurisdiction to direct the Commissioner to refer a dispute that is before the court, to arbitration while section 20(3) provides that a party to a labour dispute may make an urgent application to the Industrial Court for the determination of the dispute in question (without excluding disputes of interest). The Committee requests the Government to specify whether the Industrial Court has the power to direct the Commissioner to refer a dispute of interest to compulsory arbitration (for instance, in cases where one of the parties to the dispute has made an urgent application to this effect to the Industrial Court).
The Committee had noted that, according to section 35(1)(b), an employer or employers’ organization may apply to the Commissioner to withdraw the recognition granted to a trade union on the grounds that the trade union refuses to negotiate in good faith with the employer. The Committee considers that while the question as to whether or not one party adopts an amenable or uncompromising attitude towards the other party is a matter for negotiation between the parties, both employers and trade unions should bargain in good faith making every effort to reach an agreement. The Committee considers that the severity of this sanction could have an intimidating effect and jeopardize the free and voluntary nature of collective bargaining. The Committee requests the Government to take all necessary measures to repeal this provision.
Article 4 of the Convention. 1. The Committee notes that section 18(1)(a) of the Trade Disputes Act provides that the Industrial Court shall have jurisdiction to hear and determine all trade disputes except for disputes of interest. However, section 18(1)(e) provides that the Industrial Court shall have jurisdiction to direct the Commissioner to refer a dispute that is before the Court, to arbitration while section 20(3) provides that a party to a trade dispute may make an urgent application to the Industrial Court for the determination of the dispute in question (without excluding disputes of interest). The Committee requests the Government to specify whether the Industrial Court has the power to direct the Commissioner to refer a dispute of interest to compulsory arbitration (for instance, in case where one of the parties to the dispute has made an urgent application to this effect to the Industrial Court).
2. The Committee notes that according to section 35(1)(b), an employer or employers’ organization may apply to the Commissioner to withdraw the recognition granted to a trade union on the grounds that the trade union refuses to negotiate in good faith with the employer. The Committee considers that while the question as to whether or not one party adopts an amenable or uncompromising attitude towards the other party is a matter for negotiation between the parties, both employers and trade unions should bargain in good faith making every effort to reach an agreement. The Committee considers that the severity of this sanction could have an intimidating effect and jeopardize the free and voluntary nature of collective bargaining. The Committee requests the Government to take all necessary measures to repeal this provision.
The Committee notes that the Government’s report has not been received and hopes that a report will be supplied for examination by the Government at its next session and that it will contain full information on the matters raised in its previous direct request.
The Committee further notes the comments submitted by the International Confederation of Free Trade Unions (ICFTU) in a communication of 31 August 2005 and requests the Government to communicate its observations on these comments in its next report.
Articles 1, 2 and 4 of the Convention. The Committee notes that the Government amended the Trade Disputes Act and the Trade Unions and Employers’ Organization Act in order to include in their scope public officers other than the armed forces, the police and the prison services. The Committee recalls that the guarantees provided by the Convention apply to prison staff. The Committee requests again the Government to amend its legislation in order to bring it in full conformity with the Convention and to keep it informed of measures taken or envisaged in this respect.
Article 2. The Committee had noted that the legislation did not contain specific provisions for the protection of workers’ organizations against acts of interference by employers and their organizations and requested the Government to amend its legislation by adopting specific provisions ensuring adequate protection of workers’ organizations against acts of interference by employers or employers’ organizations in the establishment, functioning or administration of trade unions, coupled with effective and sufficiently dissuasive sanctions. The Committee requests again the Government to keep it informed of measures taken or envisaged to afford legislative protection against acts of interference.
The Committee is also addressing a request directly to the Government on certain other points.
The Committee notes the Government’s report. The Committee notes the adoption of the Trade Unions’ and Employers’ Organizations (Amendment) Act, 2003. It further notes the adoption of the Trade Disputes (Amendment) Act, 2004, and requests the Government to provide a copy thereof.
Article 2 of the Convention. The Committee had previously noted that the legislation did not contain specific provisions for the protection of workers’ organizations against acts of interference by employers and their organizations and requested the Government to amend its legislation by adopting specific provisions ensuring adequate protection of workers’ organizations against acts of interference by employers or employers’ organizations in the establishment, functioning or administration of trade unions, coupled with effective and sufficiently dissuasive sanctions. The Committee notes that while the Government indicates that it takes note of the Committee’s comments in this respect, the two amended Acts do not include provisions to this effect. The Committee reiterates its request and asks the Government to keep it informed of measures taken or envisaged in this respect.
Article 4. (a) Parties to collective bargaining. In its previous direct request, the Committee raised a concern about the right of federations and confederations of trade unions to conclude collective agreements. The Committee notes the Government’s indication that the legislation does not prohibit federations of trade unions from concluding collective agreements.
(b) Principle of voluntary collective bargaining. With respect to its previous comments on compulsory arbitration (sections 7 and 9 of the Trade Disputes Act), the Committee notes the Government’s indication that the legislation was amended so as to confer on the Minister the power to refer a dispute to the Industrial Court in the following circumstances: (1) where a dispute involves an essential service; (2) where the Minister is satisfied that the dispute has or may jeopardize the essentials of life or the livelihood of the people of Botswana or a significant section thereof or may endanger the public safety or the life of the community; and (3) when the dispute involves categories of officers regarded as members of management. The Committee will examine the new amendment to the Trade Disputes Act as soon as it is available to it.
The Committee notes the Government’s report. The Committee notes the adoption of the Trade Unions and Employers’ Organizations (Amendment) Act, 2003. It further notes the adoption of the Trade Disputes (Amendment) Act, 2004, and requests the Government to provide a copy thereof.
Article 2 of the Convention. In its previous comments, the Committee requested the Government to amend its legislation so that all public servants other than those engaged in the administration of the State can enjoy the right to bargain collectively. The Committee notes with satisfaction the Government’s indication that the Trade Disputes Act and the Trade Unions and Employers’ Organizations Act have been amended to include public officers in the definition of employee in both Acts. With the amendment, public officers other than the armed forces, the police and the prison services can now establish and join trade unions and bargain collectively. The Committee recalls that the guarantees provided by the Convention apply to prison staff and requests the Government to amend its legislation in this respect and to keep it informed of measures taken or envisaged in this respect.
A request on certain other points is being addressed directly to the Government.
The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:
The Committee notes the information provided by the Government in its first report. The Committee would draw the Government’s attention to the following points.
1. Article 2 of the Convention. The Committee notes that there are no specific provisions contained in the legislation for the protection of workers’ organizations from acts of interference by employers and their organizations. In this respect, the Committee would recall that governments which have ratified the Convention are under the obligation to take specific action, in particular through legislative means, to ensure respect for the guarantees laid down in Article 2 (1994 General Survey on freedom of association and collective bargaining, paragraph 230). The Committee requests the Government to amend its legislation by adopting specific provisions ensuring adequate protection of workers’ organizations against acts of interference by employers or employers’ organizations in the establishment, functioning or administration of trade unions, coupled with effective and sufficiently dissuasive sanctions.
2. Article 4. (a) Parties to collective bargaining. The Committee notes that under section 2 of the Trade Disputes Act, a registered trade union, its branches, or the representatives of the employees concerned where no such organization exists, can conclude a collective agreement. Under the law, federations may be created but they are not recognized as negotiating bodies. The Committee recalls that the Convention applies to all workers’ and employers’ organizations without distinction. The Committee requests the Government to amend its legislation in this regard, so that federations and confederations of trade unions can conclude collective agreements.
(b) Workers covered by collective bargaining. The Committee also notes that under the Trade Unions and Employers’ Organizations Act (TUEO) as amended by Act No. 24 of 25 September 1992, public officers or persons employed by a local authority are excluded from the application of the Act. Under the TUEO Act, these workers are not considered "employees" and are therefore prohibited from joining trade unions. Furthermore, under the Trade Disputes Act and the Employment Act, the term "employee" does not include officers or public servants unless the Minister declares them to be employees for the purposes of these Acts. The Committee recalls that under Article 6 of the Convention, only public servants who are engaged in the administration of the State (civil servants in government ministries and comparable bodies) may be excluded from its scope. All other categories of civil servants should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment. The Committee requests the Government to amend its legislation so that all public servants other than those engaged in the administration of the State can enjoy the right to bargain collectively.
(c) Principle of voluntary collective bargaining. The Committee notes that under section 7 of the Trade Disputes Act, if the bargaining parties fail to reach a negotiated agreement after a reasonable period, the Commissioner may issue a certificate allowing either party to refer the dispute to the Industrial Court. Under section 9 of the Act, the Minister may refer certain disputes to the Industrial Court without the consent of the parties. The Committee recalls that the imposition of compulsory arbitration in cases where the parties do not reach an agreement is generally contrary to the principle of voluntary collective bargaining and is only admissible in essential services (in the strict sense of the term), with regard to public servants engaged in the administration of the State, in the event of an acute national crisis, or where, after prolonged negotiations, it is clear that the deadlock will not be overcome without an initiative by the authorities. The Committee requests the Government to amend its legislation so that a dispute may be referred to the Industrial Court only at the request of both parties or where the parties do not reach an agreement, in essential services in the strict sense of the term, for public servants engaged in the administration of the State, in the event of an acute national crisis, or where, after prolonged negotiations, it is clear that the deadlock will not be overcome without an initiative by the authorities.
The Committee expresses the firm hope that the Government will take the necessary measures in the very near future to bring its legislation into conformity with Articles 2 and 4 of the Convention and it requests the Government to indicate in its next report any progress achieved in this regard.
The Committee takes note of the existence of the three bills concerning employment, trade unions and employers’ organizations and trade disputes. The Committee requests the Government to consider that the bills deal with the questions raised above.