Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Botswana (Ratification: 1997)

The Committee notes the Government’s report. The Committee notes the adoption of the Trade Unions and Employers’ Organizations (TUEO) (Amendment) Act, 2003. It further notes the adoption of the Trade Disputes (Amendment) Act, 2004 and requests the Government to provide a copy thereof. It wishes to raise the following points in respect of the TUEO Amendment Act.

Article 2 of the Convention. 1. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that under section 2(1)(iv) of the amended TUEO Act, employees of the prison service are excluded from its application. The Committee is of the opinion that the functions exercised by this category of public servants should not justify their exclusion from the right to organize (see General Survey on freedom of association and collective bargaining, 1994, paragraph 56). It therefore requests the Government to amend the Act so as to ensure that prison workers enjoy the right to organize and requests the Government to keep it informed of measures taken or envisaged in this respect.

2. Right of workers and employers to establish organizations of their own choosing. The Committee notes that the TUEO Amendment Act introduces new section 48B, which provides in its paragraph (1) that a recognized trade union (i.e. a union representing, according to new section 48(1), at least one-third of the employees of an employer) is entitled to have authorized representatives of the union granted access to an employer’s premises for purposes of recruiting members, holding meetings or representing members in respect of grievances, discipline and termination of employment, as well as being entitled to check-off facilities. The Committee notes that while the Act, as amended, does not require a minimum number of workers for the establishment of a trade union, it only grants certain basic facilities to unions that have been recognized under the Act and which must therefore represent at least one-third of the employees at the enterprise. The Committee considers that the workers’ freedom of choice is jeopardized if the distinction between the recognized and non-recognized unions results, in law or in practice, in the granting of privileges such as to influence unduly the choice of organization by workers. This distinction should not have the effect of depriving those trade unions that are not recognized of the essential means for defending the occupational interests of their members, for organizing their administration and activities, and formulating their programmes, as provided for in the Convention (see General Survey, op. cit., paragraphs 83 and 98).The Committee considers in particular that reasonable access to the enterprise in order to advise workers of the benefits of unionization and the right of an organization to represent its own members in respect of individual grievances should be guaranteed to all workers’ organizations, regardless of the degree of their representation. The Committee therefore requests the Government to amend section 48B(1) accordingly and to keep it informed of measures taken or envisaged in this respect.

3. Right of workers and employers to establish organizations without previous authorization. The Committee notes that the amended TUEO Act does not provide for a procedure to rectify formal requirements for registration and that section 11(1)(a) of the Act under which a trade union or employers’ organization is dissolved following the notification of refusal of registration as well as section 15 under which unregistered organizations are prohibited from carrying out their activities were not amended. The Committee therefore reiterates its request that the Government take the necessary measures to amend its legislation so as to provide for an opportunity to rectify the absence of certain of the formal requirements provided for in section 10 of the Act and to repeal sections 11 and 15 which result in the automatic dissolution and banning of activities of non-registered organizations. The Committee requests the Government to keep it informed of the measures taken or envisaged in this respect.

Article 3. 1. Right of workers to elect their representatives freely. With reference to its previous comments, the Committee notes that section 22(7) of the TUEO Act, which provided that "no person shall be an officer of a trade union or federation of trade unions who has, within the immediately preceding five years, been convicted of an offence under the Act", has not been amended. The Committee recalls that conviction for an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office (see General Survey, op. cit., paragraph 120). Considering that section 22(7) establishes excessively broad ineligibility criteria by means of an open-ended definition, the Committee once again requests the Government to amend this provision so as to limit this restriction specifically to convictions clearly touching upon the integrity of the person concerned.

On the issue of trade union elections, the Committee had previously asked the Government to amend its legislation in respect of the occupational requirement. While noting that section 21(2) of the TUEO Act, according to which a member of a trade union ceasing to be an employee in an industry with which the trade union is directly concerned shall cease to be a member of the trade union, was repealed, the Committee notes that the occupational requirement remains. Section 21(1) still provides that only employees in the industry may be trade union members, while section 22(1) still prohibits non-members of a trade union or a federation of trade unions from becoming officers and section 22(2) still provides that an officer of a trade union will leave the post once he or she ceases to be a member of the trade union. The Committee therefore once again requests the Government to amend its legislation in order to bring it into conformity with the Convention, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have previously been employed in the organization concerned. It requests the Government to keep it informed of measures taken or envisaged in this respect.

Furthermore, with reference to its previous comments, the Committee notes that section 22(3) and (6) of the Act, which grants the Registrar the power to remove a trade union treasurer if the Registrar considers that a treasurer is incapable of carrying out his or her functions properly, was not repealed. It therefore once again requests the Government to repeal these provisions and to keep it informed of measures taken or envisaged in this regard.

2. Right of workers’ organizations to organize their administration and to formulate their programmes. With reference to the application and receipt of funds, the Committee notes with interest that section 39 (section 37 following the new numbering of the Act) has been amended to provide that "no funds of a registered trade union, federation of trade unions or employers’ organization shall be expended otherwise than as provided by their constitutions". The Committee notes however that section 41 (section 39 following the new numbering), providing for an interdict to restrain unauthorized or unlawful expenditure of funds on the application of the Registrar or Attorney-General, was not amended and therefore once again requests the Government to repeal this provision and to keep it informed of the measures taken or envisaged in this regard.

With respect to its previous request to limit the powers of the public authorities as concerns the inspection of accounts, books and documents of trade unions by amending sections 45, 51, 52 and 53 of the TUEO Act, the Committee notes with interest that section 53 (section 51 following the new numbering) was repealed. The Committee regrets however that section 45 (section 43 following the new numbering), providing for the inspection by the Registrar "at any reasonable time" and sections 51 and 52 (sections 49 and 50 following the new numbering), providing for the inspection by the Minister "whenever he considers it necessary in the public interest" of the financial affairs of a trade union, were not amended. Given that as a result of such investigation, the registration of the trade union may be cancelled, the Committee recalls that the supervision of trade union accounts should be limited to the obligation of submitting periodic financial reports or where there are serious grounds for believing that the actions of an organization are contrary to its rules or the law. Similarly, there is no violation of the Convention if such verification is limited to exceptional cases, for example, in order to investigate a complaint, or if there have been allegations of embezzlement. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey, op. cit., paragraph 125). The Committee therefore once again requests the Government to limit the powers of the public authorities to the situations noted above and keep it informed of the measures taken or envisaged in this respect.

The Committee recalls that it had previously commented on the provision of the Trade Dispute Act empowering the Minister to refer trade disputes to the Industrial Court when "the dispute has or may jeopardize the essentials of life or livelihood of the people of Botswana" and requested, in this respect, to delete the reference to "livelihood", which it considered went beyond the notion of essential services and to limit the powers of the Minister to essential services in the strict sense of the term. The Committee understands from the Government’s report that this section was not repealed by the amendment of the Trade Disputes Act. The Committee therefore reiterates its request to delete the reference to "livelihood" in section 14(1)(b) of the Act and requests the Government to keep it informed of measures taken or envisaged in this respect.