Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 4 August 2011, as well as the comments made by Education International (EI) in a communication dated 19 September 2011. In its previous comments, the Committee had noted the comments made by Education International and the Botswana Teachers Union (BTU) concerning the Government’s interference in the internal organization of the BTU. The Committee once again requests the Government to provide its observations thereon.

Articles 2 and 3 of the Convention. The Committee recalls that it had previously requested the Government to:

• -amend section 48B(1) of the Trade Unions and Employers Organisations (Amendment) Act 2003, (TUEO Act), which grants 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) only to unions representing at least one third of the employees in an enterprise;
• -amend section 10 of the TUEO Act, so as to afford industrial organizations the opportunity to rectify the absence of some of the formal registration requirements provided for in that section, and to repeal sections 11 and 15, which result in the automatic dissolution and banning of activities of non-registered organizations; and
• -amend sections 9(1)(b), 13 and 14 of the Trade Disputes Act, which empower the Commissioner and the Minister to refer a dispute in essential services to arbitration, or to the Industrial Court for determination.

In this regard, the Government indicates in its report that it had noted the Committee’s comments and that consultations with the social partners on amendments of all labour legislation are still ongoing. The Committee once again hopes that due account will be taken of its comments in the process of amending the relevant labour legislation. The Committee once again requests the Government to provide information, in its next report, on any progress made in this regard. The Committee recalls that the Government may avail itself of the technical assistance of the Office if it so wishes.

The Committee had also requested the Government to amend the list of essential services specified in the Schedule of the Trade Disputes Act, which includes, among others, the Bank of Botswana, railway services and the transport and telecommunications services necessary to the operation of all these services. The Committee was informed that the Government has adopted the Trade Disputes (Amendment of Schedule) Order 2011, on 15 July 2011, adding the veterinary services, teaching services and diamond sorting, cutting and selling services, and all support services in connection therewith to the existing essential services. The Committee once again recalls that 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 (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 159). The Committee considers that the new categories added to the Schedule do not constitute essential services in the strict sense of the term and therefore requests the Government to amend the Schedule accordingly.

Furthermore, in its previous comments, the Committee had requested the Government to amend section 43 of the TUEO Act, which provides for inspection of accounts, books and documents of a trade union by the Registrar at “any reasonable time”. The Committee notes that according to the Government, section 43 does not authorize the Registrar of Trade Unions to inspect the books of accounts but should be read only as conferring the powers to inspect such books on the members of the union and not on the Registrar. Noting that according to the legislation, the books of accounts shall be open to inspection as many times as provided by the Registrar, the Committee recalls that the control by the public authorities (or by its decision) over trade union finances should, except when exercised on the basis of a complaint from a certain percentage of workers, normally not exceed the obligation to submit periodic reports. In these circumstances, the Committee once again requests the Government to take necessary measures to amend section 43 of the TUEO Act accordingly.

The Committee had also requested the Government to indicate the practical application of sections 49 and 50 of the TUEO Act which provide for the inspection by the minister of the financial affairs of a trade union “whenever he considers it necessary in the public interest”, including the frequency with which these sections are invoked to inspect trade unions finances. In this regard, the Committee notes the Government’s indication that these sections have never been invoked.

Employees in the prison service. In its previous comments, the Committee had requested the Government to amend section 2(1)(iv) of the TUEO Act, and section 2(11)(iv) of the Trade Disputes Act, both of which specifically exclude employees of the prison service from their scope of application, as well as section 35 of the Prisons Act, which prohibits prison officers from becoming members of a trade union or any body affiliated to a trade union. The Committee notes that the Government indicates that prison services, in accordance with article 19 of the Constitution, are part of the disciplined forces and that these forces are not permitted to unionise and that the prison services are not only part of the justice system but they have also security responsibilities. The Committee recalls that while exclusion from the right to organize of the armed forces and the police is not contrary to the provisions of the Convention, the same cannot be said for prison staff and the functions exercised by the prison staff should not justify their exclusion from the right to organize on the basis of Article 9 of the Convention (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 56). In these circumstances, the Committee once again requests the Government to amend the abovementioned sections of the TUEO Act, the Trade Disputes Act and the Prison Act in order to grant to prison staff the right to establish and join organizations of their own choosing.