Direct Request (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 notes that the Government’s report has not been received.

Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes. The Committee once again draws the Government’s attention to the following provisions of the Trade Unions and Employers Organisations’ Act (TUEO Act) and the Trade Disputes Act (TDA), which are not fully in line with the Convention, and requests the Government, in the framework of the ongoing labour law reform, to take the necessary measures, in consultation with the social partners:

• - to repeal 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);
• - to amend section 10 of the 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;
• - to repeal sections 11 and 15 of the TUEO Act, which result in the automatic dissolution and banning of activities of non-registered organizations;
• - to repeal 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);
• - to 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);
• - to amend section 43(3) of the TDA (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); and
• - to amend section 43(4) of the TDA (prohibiting picketing 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 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 expects that its comments will be fully taken into account and requests the Government to provide information on any progress made in this regard and a copy of the relevant Acts once amended.