Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Botswana (Ratification: 1997)

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The Committee notes the observations of the Botswana Federation of Trade Unions (BFTU) received on 4 October 2022 and 6 June 2023 regarding, on the one hand, issues examined in the present comment, and, on the other hand, allegations of anti-union discrimination in the mining sector, including cases of non-renewal of contracts and dismissal of trade union members. The Committee notes the Government’s indication that: (i) labour inspections were carried out in 33 out of 55 identified companies in the diamond cutting subsector in May and June 2023; and (ii) engagement with stakeholders, including the Botswana Diamonds Workers Union (BDWU), Diamond Hub and Botswana Diamond Association, is scheduled to begin in October 2023. The Committee observes, based on the Labour Inspection Report of the diamond processing companies transmitted by the Government, that (i) there are impediments faced by trade unions regarding recognition by employers since the latter prefer to work with internal Workers’ Committees; and (ii) there were cases both of non-renewal of contracts and of the dismissal of certain trade union members, which the management states is unrelated to their union membership. The Committee takes due note of these elements. Based on the above, the Committee requests the Government to continue to take all the necessary measures to ensure that unions, including unregistered ones, and their members in the mining sector are adequately protected against all acts of anti-union discrimination. The Committee requests the Government to continue to provide information on the action taken and the results achieved in this respect.

Legislative reform. The Committee notes the Government’s indication that the Employment and Labour Relations Bill, 2023 (hereinafter referred to as the Bill), which has the object of replacing the Employment Act, the Trade Disputes Act (hereinafter referred to as the TDA) and the Trade Union and Employer’s Organizations Act, was to be tabled before the Parliament at its November 2023 session. The Committee welcomes: (i) the explicit objective of the Bill to bring the legislation in conformity with the present Convention and with the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No 87); and (ii) the Government’s indication that, with ILO assistance, the drafters of the Bill received an in-depth training on International Labour Standards. The Committee examines below the extent to which the Bill addresses its previous comments on the application of the Convention.

Scope of the Convention. Prison officers. The Committee had previously requested the Government to take the necessary measures to grant members of the prison service their rights guaranteed under the Convention. The Committee notes that section 3 of the Bill continues to exclude prison officers from the scope of trade union rights. It notes the Government’s indication in its report concerning the application of Convention No. 87, that the Labour Law Review Committee (LLRC) considered this issue and engaged the Ministry but noted that any amendment to the provisions on prison service would require prior amendment of the Constitution. Some work on the review of the Constitution was done in 2021–22 and the conclusions will guide the way forward. The Committee also notes the observation of the BFTU confirming that the Prison Service Act is part of the laws being reviewed by the LLRC, but that the matter has not been brought to a tripartite discussion with the relevant Ministry since 2018, and that these discussions should resume to achieve progress. In view of the foregoing, the Committee urges the Government to take the necessary measures to initiate consultations on this matter with the parent Ministry and the representatives of the workers concerned, with a view to changing the legislation and ensuring that prison officers enjoy the rights and guarantees set out in the Convention. The Committee requests the Government to continue providing information on any progress in this respect.

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee requested the Government to take the necessary measures to ensure that all union committee members, including those of unregistered trade unions, enjoy an adequate and specific protection against anti-union discrimination. The Committee notes with interest that section 22 of the Bill that protects workers, both prior and during employment, from discrimination against trade union affiliation and trade union activities makes no distinction between registered and non-registered unions.

Article 2. Protection against acts of interference. The Committee previously requested the Government to adopt specific legislative provisions that ensure adequate protection against acts of interference by employers coupled with effective and sufficiently dissuasive sanctions. The Committee observes that although section 82(1) prescribes that trade union independence, defined as the absence of any kind of direct or indirect control or interference from any employer or employers’ organization, is a prerequisite for trade union recognition, as the Bill does not contain provisions that explicitly prohibit acts of interference or sanction such acts. The Committee requests the Government to take the necessary measures in line with its previous request to ensure that the legislation includes provisions that give full effect to Article 2 of the Convention. The Committee requests the Government to provide information in this respect.

Article 4. Promotion of collective bargaining. Trade union recognition. The Committee previously requested the Government to take the necessary legislative measures to ensure that in the absence of a union that represents at least one third of the employees in a bargaining unit, existing unions are given the possibility to bargain collectively, at least on behalf of their own members. The Committee notes that the Bill: (i) still refers to the one third threshold as the first condition for a union to be recognized for collective bargaining purposes at the company level (section 245.1); (ii) provides however that if no union meets the referred threshold, the union with the most members may be recognized for the purpose of collective bargaining (section 245.2); (iii) mentions additional criteria to be taken into account for the recognition of a union for bargaining purposes (including the composition of the workforce and the importance of non-standard forms of employment, section 245.4); and (iv) prescribes that an employer may request the withdrawal of collective bargaining recognition if the union falls below the referred threshold (section 248.1). While welcoming the possibility set by the Bill to recognize unions that would not meet the one third threshold as bargaining agents, the Committee notes that it will only be able to determine to what extent this possibility will effectively contribute to broadening the opportunities for collective bargaining in accordance with Article 4 of the Convention once this provision is implemented. The Committee therefore requests the Government to provide any information in this regard and expects that, if the Bill is adopted as it stands, sections 245.2 and 245.4 of the Bill will be applied taking full account of the obligation established by the Convention to promote collective bargaining.

The Committee also requested the Government to amend section 35(1)(b) of the TDA that permits an employer or employers’ organization to apply to the Commissioner to withdraw the recognition for the purpose of collective bargaining granted to a trade union on the grounds that the trade union refuses to negotiate in good faith. The Committee notes with interest that the Bill does not contain a similar provision.

Compulsory arbitration. The Committee recalls that, with a view to promote free and voluntary collective bargaining, it requested the amendment of section 20(3) of the TDA that allows the Industrial Court to refer a trade dispute to arbitration, including where only one of the parties made an urgent appeal to the Court for determination of the dispute. The Committee notes that, per section 283.1 of the Bill, arbitration in the context of a collective dispute can take place when: (i) both parties agree to refer the dispute to arbitration or the referring party to the Mediation and Arbitration Commission has requested arbitration; (ii) parties to the dispute are engaged in an essential service; and (iii) the Industrial Court has directed the Commission to arbitrate the dispute. The Committee observes that these provisions mandate compulsory arbitration in situations that exceed the scope of what the Committee considers is compatible with the Convention i.e.: (i) in essential services in the strict sense of the term; (ii) in the case of disputes in the public service involving public servants engaged in the administration of the State; (iii) when, after protracted and fruitless negotiations, it becomes obvious that the deadlock will not be broken without some initiative by the authorities; or (iv) in the event of an acute crisis (General Survey of 2012 on fundamental Conventions, paragraph 247). The Committee therefore requests the Government to take the necessary measures to ensure that the future legislation will not allow compulsory arbitration beyond the set of situations described above. The Committee requests the Government to provide information in this respect.

Articles 4 and 6. Collective bargaining in the public sector. The Committee notes the indications of the BFTU and the Government that the Public Service Bargaining Council (PSBC) has not been resuscitated but that the Public Service Act, 2008 was included within the scope of the Labour Law Review Commission. Recalling its on-going dialogue with the Government with a view to ensuring that the material scope of collective bargaining for public sector workers not engaged in the administration of the State is in conformity with the Convention,the Committee requests the Government to: (i) provide further information on the content of any on-going reform that would address the right to bargain collectively in the public sector; and (ii) provide practical examples of the content of collective agreements applicable to civil servants not engaged in the administration of the State.

Collective bargaining in practice. The Committee notes the Government’s indications that there are 69 collective agreements signed and in force in the country, concluded both at the sector level and the company-level across various sectors. The Government indicates that statistics on workers covered by the agreements, although unavailable currently, would be collected hereon. While noting that, according to ILOSTAT, the coverage of collective bargaining in 2020 was 34.5 per cent, the Committee requests the Government to continue to make efforts to collect and provide information on the number of collective agreements signed and in force in the country along with statistics on the sectors and workers covered.

The Committee hopes that the Government will be in a position to soon inform about the adoption of the Bill and that its content will contribute to the full implementation of the Convention. The Committee reminds the Government that it may continue to avail itself of the technical assistance of the Office with respect to all issues raised in the present comments.