Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

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 drew the Government’s attention to several provisions of the Trade Unions and Employers Organisations’ Act (TUEO Act) and of the Trade Disputes Act (TDA), which are not fully in line with the Convention, and requested the Government, in the framework of the ongoing labour law reform, to take the necessary measures, in consultation with the social partners.

With regard to the TUEO Act:

• -to repeal section 8, 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 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, which result in the automatic dissolution and banning of activities of non-registered organizations;
• -to repeal section 20(3), 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, 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); and

With regard to the TDA:

• -to amend section 43(3) (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 notes the Government’s indication that consultations are ongoing between the Government and the representatives of employers and workers on the process to review labour laws. These consultations commenced in July 2017 and resulted in the establishment of a tripartite Labour Law Review Committee (LLRC) to spearhead the labour law review process, which covers, among others, TUEO Act and the TDA. According to the Government, the LLRC will take into consideration the comments of the Committee in the framework of the review of both the TUEO Act and TDA. Welcoming the consultative review process, 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, as well as a copy of the relevant Acts once amended.