Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Botswana (Ratification: 1997)

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.