Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

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 respect to the TUEO Act:

• -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);
• -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;
• -repeal sections 11 and 15, which result in the automatic dissolution and banning of activities of non-registered organizations;
• -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);
• -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);

The Committee notes the Government’s indication that the above comments in relation to the TUEO Act have been considered in the ongoing labour law review process.

With regard to the TDA:

• -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). The Committee notes the Government’s indication that the Labour Law Review Committee (LLRC) understands that this provision is rightfully placed because the minimum service to which it refers, is not related to essential services, but to the regulation of strikes in general, and that, accordingly, this provision has not been proposed for amendment. The Committee wishes to clarify that the suggested amendment is aimed at limiting the power to hire external replacement workers, so that it is only permitted in cases of acute national crisis, cases involving essential services in the strict sense of the term, and cases where minimum service can be imposed;
• -amend section 43(4) (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). The Committee notes the Government’s indication that the LLRC understands that this provision is rightfully placed because the minimum service to which it refers is not related to essential services, but to the regulation of strikes in general, and that, accordingly, this provision has not been proposed for amendment. The Committee wishes to clarify that the suggested amendment is aimed at allowing pickets to take place in the absence of an agreement on the provision of minimum services and at any time after the commencement of a strike or lockout.

Trusting that all pending matters in relation to the TUEO and TDA Acts will be addressed in the framework of the ongoing labour law review process, the Committee urges the Government to take measures to ensure that such Acts are amended, in consultation with the social partners, so as to bring them into full conformity with the Convention. The Committee requests the Government to continue providing information on any progress achieved in this regard and to provide a copy of the amended Acts once adopted.