Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

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

The Committee notes the Government’s report and its reply to the comments submitted by the International Confederation of Free Trade Unions (ICFTU) on 10 August 2006. The ICFTU’s comments mainly refer to matters previously raised by the Committee and to allegations concerning the massive dismissal of strikers in the mining sector, including the Chairperson and general secretary of the Botswana Mining Workers Union (BMWU); a harassment campaign against the new general secretary of the Botswana Federation of Trade Unions (BFTU); the eviction of BMWU leaders from the Debswana company’s largest diamond mine at Orapa in October 2005, after they arrived to conduct elections for BMWU’s branch committee; and the spying on, by members of the military intelligence, of the presidents of the Botswana Unified Local Government Service Association (BULGSA) and the Botswana Federation of Secondary School Teachers (BOFESETE). In regard to the strikers dismissed at the Debswana mines, the Committee notes the Government’s statement that the dispute is before the Industrial Court, and, if it determines that any employees have been wrongfully dismissed, it may order their reinstatement, with or without compensation. In these circumstances, the Committee requests the Government to keep it informed of the final judicial decision concerning this allegation and to send its observations in respect of the other ICFTU comments with its next report.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously referred to section 2(1)(iv) of the Trade Union Employers’ Organizations (TUEO) (Amendments) Act, 2003, and section 2(11)(iv) of the Trade Disputes Act, both of which deny employees of the prison service the right to organize. The Committee notes the Government’s statement that section 35 of the Prisons Act similarly prohibits prison officers from becoming members of a trade union or any body affiliated to a trade union, but that the Committee’s comments were noted and consultations with relevant authorities on this issue were ongoing. In this regard, the Committee requests the Government to keep it informed of any measures taken to amend the above legislation, including section 35 of the Prisons Act, so as to ensure that prison workers enjoy the right to organize.

Right of workers and employers to establish organizations of their own choosing. The Committee recalls that it had noted that section 48B(1) of the TUEO Act granted certain facilities (access to an employer’s premises for purposes of recruiting members, holding meetings or representing workers, the deduction of trade union dues from employees’ wages, recognition by employers of trade union representatives in respect of grievances, discipline and termination of employment) to unions representing at least one-third of the employees in an enterprise. The Government indicates that consultations with the social partners are ongoing with respect to amendments to this section of the Act. Recalling that 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 an organization by workers, the Committee requests the Government to keep it informed of the practical application that this provision has on the choice of workers of their trade unions and the progress made in the tripartite discussions.

Right of workers and employers to establish organizations without previous authorization. The Committee had previously requested the Government to amend its legislation so as to provide for an opportunity to rectify the absence of some of the formal requirements provided for in section 10 of the TUEO Act and to repeal sections 11 and 15, which result in the automatic dissolution and banning of activities of non-registered organizations. The Committee notes the Government’s statement that the objective of registration is to ensure orderliness and the proper functioning of trade unions and employers’ organizations, and that deleting section 15 would defeat this objective since there would be no regulatory mechanism, and that consultations to rectify the formal requirements for registration are being held with the social partners. The Committee requests the Government to keep it informed of any measures adopted in this respect.

Article 3 of the Convention. Right of workers’ organizations to organize their administration and to formulate their programmes. The Committee had previously asked the Government to amend the following sections of the TUEO Act, so as to ensure that trade unions enjoy autonomy and financial independence from the authorities: section 43, providing for the inspection of accounts, books and documents of a trade union by the registrar “at any reasonable time”; and sections 49 and 50, providing for the inspection by the minister “whenever he considers it necessary in the public interest” of the financial affairs of a trade union. The Committee notes the Government’s indication that consultations with the relevant authorities are ongoing and expresses the hope that the Government would be able to indicate the progress made with respect to their amendment in its next report.

Right to strike. The Committee notes that sections 9(1)(b), 13 and 14 of the Trade Disputes Act empower the Commissioner and the Minister to refer a dispute in essential services to arbitration or to the Industrial Court for determination. The Committee notes further that the list of essential services specified in the Schedule of the Trade Disputes Act includes, among others, the Bank of Botswana, railways services, and the transport and telecommunications services necessary to the operation of all of these services. The Committee recalls that compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted or banned, such as in the case of disputes in the public service involving public servants exercising authority in the name of the State, or in essential services in the strict sense of the term. The Committee notes the Government’s indication that it included the Bank of Botswana in the list of essential services due to its critical role in the shaping of economic policy to promote economic stability and development, and that the stoppage of services rendered by the Bank would lead to an acute national crisis. In this connection, the Committee once again recalls that the essential services are only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee recalls that, in order to avoid damages which are irreversible or out of all proportion to the parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility rather than impose an outright ban on strikes (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 159-160). The Committee requests the Government to amend the Schedule of the Trade Disputes Act in the light of the abovementioned principles.