Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 31 July 2012 concerning issues already raised by the Committee.

The Committee further notes the information provided by the Government in response to the comments made by Education International (EI) in a communication dated 19 September 2011 concerning the Public Service Act, the status of the Bargaining Council and 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. The Committee notes in particular that the Government states that: (1) the Public Service Act implementation was initiated in May 2010 and some other issues need to be completed; (2) the Bargaining Council, established and registered in August 2011, is now operational; and (3) the issue of the Statutory Instrument No. 50 of 2011 was heard before the courts that held that the Public Service Act empowers the President to make regulations for conditions of service for public service employee, and therefore the President acted lawfully in promulgating the said statutory instrument. The Committee notes that the Statutory Instrument No. 50 of 2011 has not been received and requests the Government to supply a copy.

It 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 of 1994 on freedom of association and collective bargaining, paragraphs 262 and 265). The Committee once again requests the Government to ensure that the Statutory Instrument No. 50 of 2011 is in conformity with this principle. The Committee requests the Government to examine this issue in full consultation with the most representative organizations and to provide information on the results of this dialogue.

Legislative issues. The Committee recalls that for many years it had been commenting on several legislative dispositions contrary to the Convention.

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 (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 that in its previous report the Government 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, and their 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 notes that the Government indicates in its report that this matter is of national interest and thus wider consultations have to be undertaken with relevant Government departments, social partners and other stakeholders. 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. The Committee requests the Government to provide information on the abovementioned consultations and hopes that the Trade Disputes Act, the TUEO Act and the Prison Act will soon be amended so as to ensure prison staff the rights enshrined in the Convention.

Article 1 of the Convention. 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). The Committee notes that the Government indicates that: (1) section 23 of the Employment Act has been amended to strengthen it by including more grounds that restrict termination of employment which include gender, health status, sexual orientation and disability; and (2) the Act was further amended by inserting a new paragraph (e) to provide a general provision on non-discrimination during termination of employment. The Committee recalls the importance that the legislation prohibits and sanctions specifically all acts of anti-union discrimination as set out in 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 and specific 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 Committee notes that the Government indicates in its report that this issue will be considered in future amendments.
• – 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. The Committee notes that the Government indicates that this issue will be considered in future amendments.
• – 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 notes that the Government indicates that: (1) work is ongoing to review the Trade Disputes Act; (2) it recognizes the need to have an independent dispute resolution mechanism that was planned for in the National Development Plan 10 which runs from 2009 to 2016; and (3) due to the economic downturn, the project was shelved.

The Committee requests the Government to continue to provide information on any progress made in relation to the abovementioned requested amendments and it encourages the Government to avail itself of the technical assistance of the Office if it so wishes.

ITUC’s comments. Section 35(1)(b) of the Trade Disputes Act. 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. The 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 notes that the Government indicates that: (1) the law authorizes the unions to join forces with others to form one third of the workforce in order to bargain collectively; and (2) the Committee’s comments have been noted and will be considered. 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 once again the Government to take the necessary measures 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.

Capacity building and implementation gap. The Committee notes the “induction and negotiation skills workshop (of tripartite nature) for the Public Service Bargaining Council (PSBC)” held in August 2012 aimed at: (1) fully sensitize PSBC members on their role and function in the Council; (2) enable them to appreciate the application of collective bargaining in the context of public service; and (3) enhance their negotiation skills. The Committee also notes, from the report of an ILO mission held in the country in September 2012, that it was agreed during discussions between the Botswana delegation and the ILO during the International Labour Conference in June 2012, that: (1) efforts would be geared towards improving freedom of association standards; and (2) the activities in this regard are planned to take place at the end of January 2013, pending confirmation by the Ministry of Labour. The Recommendations adopted during the mission refer to the importance to start addressing the comments of the Committee with, as the main focus, the legal revision process, as a number of comments point out a gap in the national legislation. The Committee requests the Government to continue to provide information concerning the possible legal revision process abovementioned and, in particular, in relation to the points raised in the present observation.