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

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

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.