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

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

The Committee notes the comments made by the International Trade Unions Confederation (ITUC) in a communication dated 4 August 2011. The Committee also notes the comments made by Education International (EI) in a communication dated 19 September 2011 concerning the unilateral determination and changes of the terms and conditions of employment in the public sector (in matters that should be left to the parties), through the issuance of Statutory Instrument No. 50 of 2011 which revoked, without consultations with the representative organizations, the new Public Service Act and Status of the Bargaining Council and the Public Service Bargaining Council. The Committee recalls that while Article 6 of the Convention allows public servants engaged in the administration of the State to be excluded from its scope, other categories should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment, including wages. In addition, in the case of negotiations in the public or semi-public sector, intervention by the authorities is compatible with the Convention in so far as it leaves a significant role to collective bargaining. Measures which unilaterally fix conditions of employment should be of an exceptional nature, be limited in time and include safeguards for the workers who are the most affected (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 262 and 265). The Committee requests the Government to amend Statutory Instrument No. 50 of 2011 in accordance with this principle and in full consultation with the most representative organizations and to provide information on the measures taken in this regard.

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous points which read as follows:

Scope of the Convention. Application of the Convention to prison staff. The Committee had previously requested the Government to amend section 2 of the Trade Disputes Act, section 2 of the Trade Union and Employers’ Organizations (Amendment) Act 2003, (TUEO), and section 35 of the Prison Act, so as to ensure that prison staff are afforded all the guarantees provided under the Convention. The Committee had noted from the Government’s report that it had no intention to grant prison staff the right to unionize since their staff association, as provided for in the Prison Act, supposedly caters adequately for the negotiations on their welfare, terms and conditions of employment. However, the Committee noted that according to section 35(3) of the Prison Act, a prison officer may only become a member of an association established by the minister and regulated in the manner prescribed; and that under section 35(4), any prison officer who becomes a member of a trade union or anybody affiliated to a trade union shall be liable to be dismissed from the service. The Committee recalls that all public service workers other than those engaged in the administration of the State should enjoy protection against acts of anti-union discrimination and interference and their union should enjoy bargaining rights. Therefore, the Committee once again requests the Government to amend the Trade Disputes Act, the TUEO Act and the Prison Act to ensure to prison staff the rights enshrined in the Convention.

Article 1 of the Convention. In its previous comments, the Committee had further noted the Government’s statement that consultation was ongoing concerning the ITUC’s previous observation according to which if a trade union is not registered, union committee members are not protected against anti-union discrimination (e.g. article 23 of the Employment Act). Recalling that the Government is responsible for preventing all acts of anti-union discrimination in order to give effect to Article 1 of the Convention, the Committee once again requests the Government to take the necessary measures to ensure that all union committee members, including those of unregistered trade unions, enjoy an adequate protection against anti-union discrimination.

Articles 2 and 4. Protection against acts of interference and promotion of collective bargaining. In its previous comments, the Committee had requested the Government to provide information on the progress made with respect to the following legislative changes:

• – the adoption of specific legislative provisions ensuring adequate protection 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 repeal of section 35(1)(b) of the Trade Disputes Act, which permits an employer or employers’ organization to 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; and
• – the amendment of section 20(3) of the Trade Disputes Act, so as to ensure that compulsory arbitration of disputes of interest is permissible only in the following instances: (1) where the party requesting arbitration is a trade union seeking a first collective agreement; (2) disputes concerning public servants directly engaged in the administration of the State; and (3) disputes arising in essential services. In this respect, the Committee notes the Government’s indication that it has included in the National Development Plan 10 a project to establish an independent dispute resolution system.

The Committee noted that consultations with the social partners on all labour legislation were still ongoing. The Committee requests the Government to indicate, in its next report, any progress made on the abovementioned provisions and it hopes that the Government will make every effort to take the necessary action in the very near future. The Committee encourages the Government to avail itself of the technical assistance of the Office if it so wishes.

ITUC’s comments. The Committee noted the ITUC’s comments concerning the necessity for a trade union to represent a significant proportion of the workforce in order to bargain collectively. sThe Committee noted the Government’s indication that in terms of section 48 of the TUEO Act as read with section 32 of the Trade Dispute Act, the minimum threshold to be recognized by the employer is set at one third of the workforce of any organization. The Committee recalls that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should be granted to all unions in this unit, at least on behalf of their own members. The Committee requests the Government to provide in its next report information on the measures taken or contemplated so as to ensure that where no union represents one third of the employees in a bargaining unit, collective bargaining rights are granted to all unions in the unit, at least on behalf of their own members.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.