Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

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

Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee reiterated its request to the Government to amend section 10 of the Trade Unions and Employers Organisations’ Act (TUEO Act) so as to afford industrial organizations an 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. The Committee notes the Government’s indication that the process of amending the TUEO Act is ongoing, that the Committee’s concerns were noted and that the social partners have submitted their proposals for amendment. Welcoming the revision process of the TUEO Act, the Committee trusts that its comments will be fully taken into account and requests the Government to provide information on any developments in this regard and the text of the Act once amended.

In the framework of the legislative revision, the Committee also draws the Government’s attention to the following provisions of the TUEO Act and the Trade Disputes Bill (Bill No. 21 of 2015), which are not fully in line with the Convention, in order to:

• -delete section 8 of the TUEO Act, which sanctions each officer or any person acting or purporting to act as an officer of a trade union or federation that failed to apply for registration within 28 days of its formation (although the official recognition of an organization through its registration constitutes a relevant aspect of the right to organize, the exercise of legitimate trade union activities should not be dependent upon registration, and penalties in this regard should not be imposed on the trade union or its members);
• -delete section 20(3) of the TUEO Act, second sentence, which prohibits young members (15–18 years old) from being officers or trustees of a workers’ or employers’ organization (minors legally allowed to work should be able to be candidates for trade union office);
• -amend section 39 of the TUEO Act, which allows the Registrar or Attorney General to apply for an interdict to restrain any unauthorized or unlawful expenditure of funds or use of any trade union property, and section 41(3), which provides the Registrar with broad supervisory powers over the financial assets of a trade union, to ensure that supervision is limited to exceptional cases and that trade unions enjoy autonomy and independence (supervision is compatible with the Convention only when it is limited to the obligation of submitting annual financial reports, verification based on serious grounds to believe that the actions of an organization are contrary to its rules or the law and verification called for by a significant number of workers; it would be incompatible with the Convention if the law gave authorities powers to control which go beyond these principles, or which over-regulate matters that should be left to the trade unions themselves and their by-laws);
• -amend section 43(3) of the Trade Disputes Bill (prohibiting an employer to hire workers to replace striking or locked-out workers only if the parties have concluded an agreement on the provision of minimum services or, if no such agreement has been made, within 14 days of the commencement of the strike), so as to limit the powers to hire external replacement workers to cases of acute national crisis, to essential services in the strict sense of the term and to cases where minimum service can be imposed (services in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the population or public services of fundamental importance) and not to make its prohibition subject to the conclusion of an agreement on minimum services (in this regard, the Committee recalls that while, if they so wish, workers’ organizations should be able to participate in defining the minimum services, any disagreement on this issue should be solved by a joint or independent body which has the confidence of the parties); and
• -amend section 43(4) of the Trade Disputes Bill (prohibiting picketing if the parties have concluded an agreement on the provision of minimum services or, if no such agreement has been made, during 14 days of the commencement of the strike or lockout), so as to allow pickets to take place also in the absence of an agreement on the provision of minimum services and at any time after the commencement of the strike or lockout.

The Committee requests the Government to take the necessary measures to amend or repeal the abovementioned provisions in accordance with the preceding comments and to provide information on any developments in this regard.