Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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

The Committee takes note of the observations of the International Organisation of Employers (IOE) received on 31 August 2017, containing the Employer statements made before the 2017 Conference Committee on the Application of Standards (hereinafter: Conference Committee) with regard to the individual case of Botswana. The Committee also notes the observations from the International Trade Union Confederation (ITUC) received on 1 September 2017, alleging dismissals of workers because of strike action, brutal repression by police of a peaceful picket organized in August 2016, and refusal to allow the Botswana Federation of Public Sector Unions (BOFEPUSU) to raise its concerns before Parliament as regards the proposed amendments affecting the public sector. The Committee requests the Government to provide its comments in this regard. While noting the Government’s comments in reply to the 2016 observations from Education International (EI) and the Trainers and Allied Workers Union (TAWU), the Committee is bound to reiterate its request to the Government to respond to the remaining observations made by: (i) the ITUC in 2016 (alleging lockout of workers in the mining sector); (ii) the ITUC and the Botswana Federation of Trade Unions (BFTU) in 2016 concerning new amendments of the Trade Disputes Act (TDA); (iii) the BFTU in 2016; (iv) the ITUC in 2014 (alleging violations of trade union rights in practice); (v) the TAWU in 2013 (alleging favouritism of certain trade unions by the Government); and (vi) the ITUC in 2013 (alleging acts of intimidation against public workers).

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee notes the discussion that took place in the Conference Committee in June 2017 concerning the application of the Convention. The Committee notes that the Conference Committee called upon the Government to: (i) take appropriate measures that ensure that the labour and employment legislation grants members of the prison service the rights guaranteed by the Convention; (ii) ensure that the Trade Disputes Act (TDA) is in full conformity with the Convention, and engage in social dialogue, with the further technical assistance of the ILO; (iii) amend the Trade Unions and Employers Organisations (TUEO) Act, in consultation with employers’ and workers’ organizations, to bring the law into conformity with the Convention; and (iv) develop a time-bound action plan together with the social partners in order to implement these conclusions. The Conference Committee also urged the Government to continue availing itself of ILO technical assistance in this regard and to report progress to the Committee of Experts before its next meeting in November 2017.

The Committee regrets that, despite the above request of the Conference Committee, the Government’s report has not been received.

Article 2 of the Convention. Right to organize of prison staff. In its previous comments, the Committee once again requested the Government to take the necessary measures, including the pertinent legislative amendments, to grant members of the prison service all rights guaranteed by the Convention. The Committee notes the Government’s indication before the Conference Committee that prison officers in Botswana are classified as members of the disciplined forces and are the custodians of public safety and security, and that the constitutionality of the exclusion of prison officers from the coverage of the TDA and the TUEO Act has been reaffirmed by the Court of Appeal; however, support or administrative staff are covered by the above legislation. While noting the classification at national level of the prison service as “disciplined force”, the Committee reiterates that the police, the armed forces and the prison service are governed by separate legislation, which does not provide members of the prison service with the same status as the armed forces or the police and emphasizes that the exception set out in Article 9 of the Convention for the armed forces and the police is to be interpreted restrictively. The Committee requests the Government once again to take, within the framework of the ongoing labour law review, the necessary legislative measures to ensure that prison officers enjoy the right to establish and join trade unions. The Committee requests the Government to provide information on any developments in this regard.

Article 3. Right of workers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee noted with concern that section 46 of the new Trade Disputes Bill No. 21 of 2015 enumerated a broad list of essential services, and that in line with section 46(2), the Minister may declare any other service as essential if its interruption for at least seven days endangers the life, safety or health of the whole or part of the population or harms the economy. The Committee requested the Government to take the necessary measures to amend the Trade Disputes Bill to reduce the list of essential services accordingly. The Committee notes the Government’s statement before the Conference Committee that, while the interruption of certain services in some countries may only cause economic hardships, it can prove disastrous in others and rapidly lead to conditions that might endanger the life, personal safety or health of the population and stability of the country; that flexibility is necessary to take into account the socio-economic circumstances of the country; and that the original list of essential services in the TDA was adopted 25 years ago and has been amended in 2016 in response to new developments and the specific circumstances in the country. Recalling that essential services, in which the right to strike may be restricted or even prohibited, as is the case in Botswana, should be limited to those the interruption of which would endanger the life, personal safety or health of the whole or part of the population, the Committee highlights that, while the economic impact of industrial action and its effect on trade and commerce may be regrettable, such consequences in and of themselves do not render a service “essential”. The Committee therefore considers that certain services enumerated in section 46, including diamond sorting, cutting and selling services; teaching services; government broadcasting services; the Bank of Botswana; railways operation and maintenance services; public veterinary services; and services necessary to the operation of any of these services, do not constitute essential services in the strict sense of the term. Referring to the Conference Committee’s request to ensure that the TDA is in full conformity with the Convention, the Committee requests the Government to take the necessary legislative measures to ensure that the list in section 46(1) of the TDA is limited to essential services in the strict sense of the term, and invites the Government, with regard to the services mentioned above, to give consideration to the negotiation or determination of a minimum service rather than imposing an outright ban on industrial action. The Committee further notes the Government’s indication before the Conference Committee that legislative amendments have been introduced pursuant to the Court of Appeal ruling on the invalidity of statutory provisions, which gave the Minister the power to amend the list of essential services, since it was the role of Parliament to determine the list of essential services. The Committee requests the Government to provide a copy of the most up-to-date version of section 46(2) of the Trade Disputes Act.

The Committee had also previously requested the Government to provide information on the progress made in relation to the amendment of section 48B(1) of the TUEO Act, which grants certain facilities (such as access to premises or representation of members in case of complaint, etc.) only to unions representing at least one third of the employees in the enterprise, and 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 the Government’s statement before the Conference Committee that several ILO missions had been undertaken in April 2017 following the Government’s request for technical assistance, that it was agreed that the main focus of the labour law reform would be the Employment Act and the TUEO Act, and that, while social dialogue and stakeholder involvement during this process are considered central to its success, there has not yet been the opportunity for open discussion thereon with the social partners. The Committee expects that, in the framework of the ongoing labour law reform, the abovementioned provisions of the TUEO Act will be amended, in full and frank consultation with the social partners, so as to bring these provisions into line with the Convention. The Committee requests the Government to provide information on any progress achieved in this regard and to provide a copy of the amended TUEO Act once adopted.

The Committee further notes the Government’s indication before the Conference Committee that, following considerable consultation with public service unions, the new Public Service Bill is at the stage of publication in the Official Gazette, which will allow for further consultation and could result in further amendments prior to its consideration in Parliament. In light of the most recent ITUC observations, the Committee wishes to emphasize the value of prior detailed consultation with the relevant social partners (including BOFEPUSU) during the preparation of legislation affecting their interests. The Committee reiterates its request that the Government provide a copy of the Public Service Bill in its current form or, as the case may be, of the Public Service Act once adopted.

The Committee reminds the Government that it may continue to avail itself of technical assistance from the Office with respect to all issues raised in its present comments.

The Committee is raising other matters in a request addressed directly to the Government.