Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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 Botswana Federation of Trade Unions (BFTU) received on 1 October 2020 relating to matters examined in the present comment. It notes that the observations of the BFTU also allege dismissals of workers because of industrial action following the adoption on 9 April 2020 of an Emergency Powers Act, which included a clause that restricted workers and employers from taking part in industrial action. The Committee requests the Government to provide its comments thereon.

Not having received other supplementary information, the Committee reiterates its comments adopted in 2019 and reproduced below.

The Committee notes the Government’s reply to the observations made by the International Trade Union Confederation (ITUC) and the Trainers and Allied Workers Union (TAWU) in 2013 and 2014.

Legislative developments. The Committee recalls that, following the recommendations made by the Conference Committee on the Application of Standards (Conference Committee) in 2017 and 2018: (i) the Government had embarked on a labour law review process; (ii) a tripartite Labour Law Review Committee (LLRC) was established; and (iii) the LLRC decided to focus the review on the Employment Act and the Trade Unions and Employers Organisations (TUEO) Act, the Public Service Act of 2008 (PSA) and the Trade Disputes Act of 2016 (TDA). In its last observation, the Committee had noted that both the Government and the Botswana Federation of Trade Unions (BFTU) had indicated that the work by the LLRC was ongoing and that progress was being made with respect to the implementation of the Conference Committee’s recommendations. The Committee had also noted the Government’s indication that, given that a review of the list of essential services was of critical importance to workers, a task team had been formed to review such list under section 46 of the TDA.

In its last report, the Government indicates that, while the labour law review is still ongoing, on 8 August 2019, the Parliament passed the TDA (Amendment) Act 2019, which amends the list of the essential services. The Committee notes with satisfaction that, in line with its recommendations, the following services have been deleted from the list of essential services: diamond sorting, cutting and selling services; teaching services; government broadcasting services; the Bank of Botswana; vaccine laboratory services; railways operation and maintenance services; immigration and customs services; transportation and distribution services of petroleum products; sewerage services; public veterinary services; and services necessary to the operation of any of these services.

The Committee takes note that, accordingly, the list of essential services under section 46 of the TDA (Amendment) Act 2019 contains the following services: air traffic control services; fire services; the provision of food to pupils of school age and the cleaning of schools; electrical services (electricity teams for generation, transmission and distribution); water and sanitation services; and health services as well as transport and telecommunication services required for the provision of any of the previously mentioned services. The Committee notes the Government’s indication that such ancillary transport and telecommunication services have been included in light of the particular circumstances prevailing in the country and considering, for instance, the need for ambulances or the services of operators who take note and transmit the details of patients in cases of accidents for paramedics to attend to the scene.

The Committee recalls that, in its previous comments, it had also requested the Government to take the following legislative measures:

• -amend section 2(1)(iv) of the TUEO Act and section 2(11)(iv) of the TDA, which exclude employees of the prison service from their scope of application, as well as section 35 of the Prison Act, which prohibits members of the prison service from becoming members of a trade union or anybody affiliated to a trade union. The Committee notes that the Government indicates that while it considers that prison staff perform a security function, the LLRC with ILO assistance is engaging the relevant stakeholders on this matter;
• -amend 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 indication that this matter is being considered in the labour law review process;
• -amend 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. The Committee notes the Government’s indication that this matter is being considered in the labour law review process.

Trusting that all pending matters in relation to the above-mentioned 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.

The Committee had previously taken note that the labour law review process had been extended to include the PSA and had requested the Government to provide information on the progress made in this regard. Noting that the Government has not provided information in this respect, the Committee reiterates its previous request to the Government to provide information on the progress made in the review of the PSA and to provide a copy of the amended Act, once adopted.

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

The Committee is raising other matters in a request addressed directly to the Government, which reiterates the content of its previous request adopted in 2019.