Report in which the committee requests to be kept informed of development - Report No 346, June 2007

Case No 2500 (Botswana) - Complaint date: 12-JUN-06 - Closed

Allegations: The complainant alleges that the employer interfered with internal trade union affairs, dismissed the entire union leadership for having produced information on salary scales at the bargaining table and for inciting workers to go on strike for better working conditions, and dismissed 461 workers employed at three diamond mines under the pretext that they provide essential services. It also alleges that there is no adequate dispute resolution process to deal with the demands of these workers and that the Government had failed to intervene, even though it had been fully informed of the situation. The employer also resorted unduly to the judicial process to harass workers and their union, which was destabilized and financially affected

264. The complaint is contained in a communication from the Botswana Federation of Trade Unions (BFTU) dated 12 June 2006. The BFTU transmitted additional information in support of its complaint on 24 July 2006.

1. 265. The Government submitted its observations in a communication of 23 February 2007.
2. 266. Botswana has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 267. In its communication of 12 June 2006, the complainant states that the Debswana Mining Company dismissed 461 striking employees in its Orapa, Letlhakane and Jwaneng mines. These employees were dismissed as they were employed in essential services, and therefore prohibited from striking; the complainant alleges that this was an unfair pretext as the dismissed workers’ jobs did not fall under the definition of essential services.
2. 268. The complainant states that the employer also dismissed union leaders for producing researched information on the salary scales of all of Debswana’s employees at bargaining sessions with the employer, whereas other union leaders were dismissed for allegations of inciting workers to go on strike. According to the complainant, the latter were also sued for allegedly inciting the strike and, although ultimately unsuccessful, the lawsuit had instilled fear and destabilized the functioning of the union. This lawsuit forms part of a broader attempt by the employer to use the courts to frustrate the ability of workers to go on strike and diminish the union’s finances. Furthermore, the complainant alleges that the company issued inflammatory statements through the media to demean the workers, thus inciting them to strike.
3. 269. The complainant states that there was no rapid dispute resolution process in place to deal with this dispute and that, although it had petitioned the Government to secure the reinstatement of the dismissed employees, the Government had not made any effort to address the matter.
4. 270. Further information in support of its earlier allegations are provided by the complainant in a communication of 24 July 2006. The complainant states that it had commissioned a fact-finding inquiry following the dismissal of 461 employees and union members by the Debswana Mining Company, as well as the dismissal of four BCL Mine employees who were also Botswana Mine Workers Union (BMWU) branch committee officials. The said inquiry took place on 14–15 May 2005; it was undertaken by Mr C.T.O. Phikane and Ms S. Dingalo.
5. 271. The inquiry was mandated to: (1) interview the concerned parties; (2) investigate what prompted the strike that lead to the dismissal of 461 Debswana employees; (3) investigate why four BMWU branch committee members at the BCL Mine were dismissed; (4) investigate why BMWU Chairman and General Secretary were dismissed; (5) make recommendations on the matter; and (6) submit a report to the BFTU secretariat by 18 May 2005. The following persons were interviewed:
6. – Jack Tlhagale, General Secretary of the BMWU;
7. – M. Rabasimane, shop steward at Jwaneng;
8. – Johnson Gabonewe, former security officer;
9. – Bokopaano Phirinyane, formerly an assistant buyer;
10. – Chakalisa Masole, chairman of the BMWU at the Orapa–lethakane mines.
11. 272. With respect to the events prompting the strike that led to the dismissals, the complainant states that, according to the interviews conducted under the inquiry, industrial disharmony had existed since 2003. To address this disharmony the management of the Debswana company hired a consultant to present a paper on relationship-building initiatives; on 23 March 2003 the Nupen report was produced. In spite of these efforts, the situation failed to improve, and the BMWU and company employees continued to complain of favouritism on the shop floors.
12. 273. According to the complainant, the situation deteriorated with the appointment of the company’s new Managing Director, Mr B. Marole. On the day of Mr B. Marole’s inauguration party, employees took to the streets in a peaceful demonstration against his appointment. The complainant alleges that this infuriated the outgoing Managing Director, Mr Nchindo, who attacked the bargaining unit during the demonstration by accusing them of acting like spoiled children; by this accusation, the complainant maintains, Mr Nchindo was referring to an incident, in March 2003, where he had offered employees in bands A1 to 4 a 2,500 pula (BWP) bonus. The complainant adds that managerial staff, however, were given bonuses in the region of 95,000 BWP, and that this had generated a significant amount of dissatisfaction amongst union members, as well as some managerial staff and government appointees, including the Permanent Secretary in the Ministry of Energy Affairs, who is also a board member of the Debswana Mining Company.
13. 274. The complainant states that when negotiations for the 2004–05 period started, the NEC of the BMWU were aware of the fact that bonuses to managerial staff had been awarded since 1997, and that the management was aware that the issue of bonuses would be tabled for negotiation. During negotiations, the management proposed the use of a performance-based reward system, under which bonuses would be issued when certain targets were achieved in all of its mines. The BMWU refused this offer, as a number of factors – including mechanical shutdowns – could frustrate the achievement of the targets, and insisted upon its demand of a 25,000 BWP bonus.
14. 275. According to the complainant, negotiations dragged on with both parties refusing to compromise. In July 2004, the BMWU declared a dispute with respect to the matter; however, the management and the union disagreed over the interpretation of clause 10 of the collective agreement, which provides for the procedures to follow in declaring a dispute. The matter was referred to the Commissioner of Labour, who found that the union was correct in declaring a dispute. Mediation followed, but was unsuccessful, with the employer’s proposal standing at a bonus of 6 per cent and a salary increment of 8 per cent. Subsequently, the union declared its intention to go on strike. The complainant states that the Commissioner of Labour had indicated that the strike would be lawful if rules were formulated – a position the employer was dissatisfied with.
15. 276. According to the complainant, strike rules were drawn up, and the employer was requested to indicate the departments that were essential services. The employer submitted a list of essential services comprising almost all of the departments, including cleaners and gardeners. Additionally, while the strike rules were being prepared the employer’s lawyers served the union with a court interdiction against the strike.
16. 277. The complainant states that the President of Botswana met with several members of the union’s executive body. At the said meeting, the union executive members agreed to the President’s request that he be given five days to talk to the management of the company; five days later the President telephoned the union and indicated that he had instructed the management to return to the negotiating table and to increase the terms of their offer.
17. 278. Resuming negotiations, the management proposed a 10 per cent bonus, as well as a 10 per cent salary raise. The complainant adds that the employer communicated this proposal directly to the union’s constituents in a special brief dated 10 August 2004, and that the brief stated that if the proposal was not accepted by 4 p.m. on 11 August 2004, it would be revoked, and that the previous offer of a 6 per cent and 8 per cent increase for the bonus and salary, respectively, would be reverted to.
18. 279. The union then wrote to propose a Joint Negotiating Committee (JNC) meeting on 13 August 2004, but the management replied that they would not be available until 16 August 2004. On 16 August 2004, the management informed the union that they had reverted to the 6 per cent bonus and 8 per cent salary increase.
19. 280. According to the complainant, the employees of the company asked the union representatives to allow their strike. In spite of the court interdiction, the employees went on strike from 23 August to 6 September 2004. The complainant maintains that the union was, at that point, unable to control them.
20. 281. The company, in response to the strike, sued the union’s executive body, charging it with contempt of court; however, the case was dismissed by the Industrial Court for lack of jurisdiction.
21. 282. On 24 August 2004, the Debswana company dismissed 461 employees. The complainant alleges that although the strike was illegal, the fact that only 461 employees were dismissed – out of a total of 3,900 strike participants – and the criteria used to select the employees for dismissal were unfair and in violation of the company’s own disciplinary procedures. As for the employees who returned to work, the complainant states that they were given written warnings valid for a period of 24 months, whereas the disciplinary procedures state that a final written warning shall be valid for 12 months from the date it is issued.
22. 283. The complainant adds that certain individuals were unfairly targetted by the employer. For instance, Mr Bokopaano Phirinyane, an assistant buyer in the materials department, was dismissed even though his job is not classified as an essential service, and even though he had been ill and hospitalized for most of the strike period. The complainant also adds that Mr Chakalisa Masole, the BMWU branch Secretary at the Orapa–Letlahkane mines, was charged with influencing employees not to vacate company housing between 24 August and 6 September 2004, even though he had been on leave from 16 August to 14 September 2004 to attend to his wife’s illness and subsequent death. Mr Masole had been summoned to a hearing and was presently awaiting the verdict in his case.
23. Dismissal of four BMWU branch committee
24. members from the BCL Mine, Selibe Pikwe
25. 284. The complainant states that in July 2003, the management of the BCL Mine submitted a proposed salary structure to the BMWU, which then commissioned a consultant to conduct research on the wage structure of the BCL Mine workforce. Among the research findings was that, the Chief Executive Officer of the BCL Mine was paid more than any other Chief Executive Officer in the market. The report was submitted to BCL Mine management; one of its recommendations was that employees be paid at market rates.
26. 285. The complainant alleges that, on 7 April 2004, the management asked that new members of the union’s committee be elected, and had specifically asked union members not to re-elect Mr Mogende and Mr Kabelo Oitsile, the chairperson and the secretary of the committee, respectively. The new committee was elected on 26 April 2004; Mr Mogende and Mr Oitsile were both re-elected.
27. 286. Negotiations between the union and the company took place from 8 to 10 June 2004. In said negotiations, the management agreed to the union’s proposal of a salary structure based on the commissioned report, indicating that they would use the report to devise a new structure. An agreement was signed by both parties on 13 July 2004.
28. 287. The complainant states that on 13 July 2004, the management wrote to the union inquiring as to who had submitted the confidential company information contained in the commissioned report. In its reply the following day, the union stated that the consultant, Boko, Motlhala and Company, had carried out the survey contained in the report. On 21 July 2004, the management wrote another letter asking the names of the individuals from whom confidential information was obtained. The union responded on 23 July 2004, stating that it did not know how the information was obtained; the company nevertheless sent yet another letter on 28 July demanding the same information.
29. 288. On 30 July 2004, the management telephoned the 13 union committee members and asked them to report to the company’s office to collect suspension letters. The union’s attorneys challenged the suspensions in court; however, their case was dismissed by the High Court for lack of jurisdiction.
30. 289. The complainant alleges that four committee members were subsequently allowed to return to work, for having complied with the conditions of suspension, and four more members were called back to work in the first week of October 2004. Only Messrs. Mogende, Oitile, Molemoge, Buka and Keakitse remained suspended.
31. 290. On 5 October 2004, the abovementioned union committee members were called to the mine. According to the complainant, they were to be given letters lifting their suspension; instead, Mr Molemoge was discharged from the company, whereas the other four members were charged with: (1) unlawful possession of confidential information; (2) refusal to disclose the confidential information in their possession; (3) refusal to disclose the names of the individuals who had provided the confidential information; and (4) giving false evidence with the intention to mislead. Court hearings for the above-named committee members were held on 18 and 19 October 2004; on 15 November 2005, they were adjudged to have been properly dismissed. Appeals were filed, but the decision was upheld.
32. 291. The complainant alleges, in particular, that Mr Jack Tlhagale, General Secretary of the BMWU, was charged for having asked the Assistant General Manager of the company whether the company knew that Mr Lebotse, the outgoing General Secretary, had met with the management in Gaborone. Mr Tlhagale was charged with: (1) wilful dishonesty; (2) corruptly trying to obtain management information from management secretaries; (3) breach of the employment contract; and (4) conducting non-work investigation during working hours. According to the complainant, Mr Tlhagale had requested and was denied a complaint form before his hearing; furthermore, the hearing was procedurally flawed, as Mr Tlhagale was not allowed to hear the evidence given by the company’s witness, even though by law the defendant should be present throughout the entire proceeding.
33. 292. On 11 April 2005, the complainant and the management were called to the district labour office for mediation; however, the management apologized and stated that it was not ready for the hearing.
34. 293. The complainant maintains that the concerned union committee members were only made aware of the company’s wage structure information at the presentation made by the consultant, and that the consultant had confirmed, via a letter dated 22 October 2004, that information regarding the company’s wage structure was not obtained from union officers. The complainant adds that, at a 10 June 2004 meeting of the JNC, the management had rejected the union’s request for wage structure information, as it did not see the relevance of providing information respecting the salary of employees outside of the bargaining unit, and that only a cost book, monthly report, and audited financial statements were given to the union. In spite of the above, the complainant reiterates that the committee members were unfairly targeted and victimized due to their trade union activities and in violation of freedom of association principles.
35. 294. To its 24 July communication the complainant attaches several documents in support of its complaint, comprised mostly of communications between the BMWU and the Debswana company. The said documentation includes, in particular: (1) a 21 July 2006 letter from the BMWU to Debswana management accusing the company of showing favouritism to the dissident BMWU faction; and (2) a notice from Debswana to its employees dated 10 July 2006 refuting the BMWU’s accusations of interference and favouritism in the internal affairs of the BMWU and reiterating its policy of non-interference.
36. 295. The complainant also attaches a copy of the Memorandum of Agreement between the BMWU and the Debswana Mining Company, dated 24 February 2000. Section 11 of the agreement, which relates to industrial action, is excerpted as annex.
37. B. The Government’s reply
38. 296. In its communication of 23 February 2007 the Government states that the Debswana Mining Company operates mines in Orapa, Jwaneng and Letlhakane, and that Debswana recognizes the BMWU as the collective bargaining agent of its members. This recognition is formalized in a collective agreement known as the Memorandum of Agreement.
39. 297. According to the Government, the BMWU has established branches at each of the mines operated by Debswana. The union’s constitution provides for the establishment and functioning of branch committees, as well as a National Executive Committee (NEC); all union elections at the branch and national levels took place without interference by the Debswana management.
40. 298. In 2004, the BMWU elected a new NEC, Mr Chimbidzani Chimidza, who was then Chairperson of the Orapa branch committee, and Mr Jack Tlhagale, Chairperson of the Jwaneng branch committee were elected to the NEC as Chairperson and General Secretary, respectively.
41. 299. Members of the BMWU at seven out of the 12 union branches, including those in the Orapa and Letlhakane mines, challenged the legitimacy of the election of Chimidza and Tlhagale to the NEC, as neither of them were subscribing union members as required by the BMWU’s constitution. In response, the NEC dissolved the Orapa branch committee; members of the Orapa branch committee challenged the dissolution on the grounds that it was unconstitutional, as the procedure for the dissolution of the branches had not been followed. The Orapa branch committee, by a 14 July 2005 letter to the NEC, declared its dissolution null and void.
42. 300. In October 2005, the seven branches called for a delegate’s congress to deliberate on the BMWU’s internal problems – under the BMWU’s constitution the delegate’s congress is the union’s supreme decision-making body. The NEC sought and succeeded in obtaining an order from the High Court of Botswana prohibiting the congress from convening; the order further required officials from the seven branch committees to hand over funds of the branch accounts to the NEC. The branch officials, however, refused to comply with the court order.
43. 301. According to the Government, in November 2005, the NEC again applied to the High Court of Botswana, seeking a declaratory order in respect of the legitimacy of their positions with the BMWU. On 25 April 2006 the High Court issued an order declaring the current NEC to be legitimately in charge of the union’s affairs. As with the previous order, the declaratory order required that funds in the branch accounts be transferred to the NEC, and again the branch officials refused to comply with the order. Subsequently, the High Court found the branch officials to be in contempt of the court for their failure to cede branch account funds to the NEC in accordance with the orders and ordered them to transfer the funds within five days or face imprisonment for six months. The officials failed to comply and were sentenced to imprisonment for six months; the orders are currently being litigated in the High Court.
44. 302. The Government states that, according to the Debswana company, there is evidence of a split within the BMWU, and it appears that a number of employees at its mines have left the BMWU and intend to form a new union. The Debswana company has not been involved or participated in this internal union conflict. However, due to the conflict, normal industrial relations between Debswana and the union have been difficult to maintain; Debswana had a number of meetings with the BMWU where representatives of both Orapa branch committee factions attended, each claiming to be the sole legitimate representative of the BMWU, and also held several meetings with the BMWU in circumstances where the allegedly dissident Orapa branch committee were in attendance.
45. 303. After the April 2006 High Court order legitimizing the NEC as the lawful representative of the BMWU, the NEC insisted that the dissident Orapa mine branch committee be excluded from meetings. After discussion with the BMWU, Debswana took the view that it would meet with the BMWU on this basis, and recognize the faction designated by the NEC as representing the BMWU at the Orapa mine. The Government states that Debswana had agreed to do so despite objections raised by those who claim to be the legitimately elected branch committee and the significant numbers of BMWU members supporting them. The objections raised by these elements include allegations that: (1) the Orapa branch committee favoured by the NEC was never elected by the general membership in 2005, as alleged by the NEC; (2) some committee members had never been union members since they were employed and therefore did not qualify to be office bearers; and (3) the NEC had used a referendum to endorse its preferred committee instead of holding general elections, as required by the BMWU constitution.
46. 304. The Government states that as recently as August 2006, Debswana had concluded an agreement with the BMWU, and that the company’s actions had been in accordance with the High Court’s determination that the NEC was the lawfully elected representative. The company had noted, however, that there had been a significant number of resignations from the BMWU, particularly at its Orapa mine. The Government adds that on 1 September 2006, the office of the Registrar received an application to register a new union, the National Mining and Allied Workers’ Union.
47. 305. With respect to the allegations concerning the mass dismissals following the strike at the Debswana Mining company, the Government explains that wage negotiations between Debswana and the BMWU had commenced in March 2004. By June 2004, the two parties had not reached a settlement and the BMWU referred the matter to the Commissioner of Labour for mediation.
48. 306. At the mediation meeting, the union gave notice of its intention to strike with effect from 26 July 2004. Debswana applied to the Industrial Court to interdict the contemplated strike; on 6 August 2004 the Industrial Court declared the strike unlawful on the following grounds:
49. – the contemplated strike contravened the dispute resolution procedures laid down in the collective agreement (Memorandum of Agreement) between Debswana and the BMWU;
50. – the BMWU had not conducted a strike ballot as required by its constitution;
51. – there was an outstanding dispute respecting the interpretation of essential services, as contained in the Memorandum of Agreement.
52. 307. The BMWU appealed the Industrial Court’s decision, which was upheld by the Court of Appeal on 28 September 2004. The Government adds that, in spite of this, the BMWU called upon its members to commence a strike as of 23 August 2004.
53. 308. On 21 and 22 August 2004 the Industrial Court issued court orders advising members of the BMWU’s Jwaneng mine branch and Orapa/Letlhakane branch – who had given notice of their intention to strike as of 23 August 2004 – that the contemplated strike action was in contempt of the 6 August 2004 court order ruling that the strike contravened the Trade Disputes Act. In the orders, the court had directed the BMWU’s branch executive committees to hold general meetings the night before the strike was to commence to instruct BMWU members to comply with the court orders and to desist from embarking on any illegal strike action. The court further directed the BMWU not to encourage, incite, support or in any manner whatsoever cause its members to embark on an illegal strike. According to the Government, the branch executive committees were specifically directed to issue a statement in writing to their members unequivocally stating that the contemplated strike action would be in breach of the court order issued on 6 August 2004.
54. 309. A BMWU meeting was held at Orapa mine on 21 August 2004, which was also attended by union officials from the Jwaneng Mine and the BCL Mine. The Government states that at the meeting union officials advised union members that:
55. – judging from the recent illegal strike at the BCL Mine and the political intervention that followed, members were better served by embarking on illegal rather than legal strike action, because illegal strikes were not bound by the rules and timelines for strikes laid down in the Trade Disputes Act;
56. – employees engaged in essential services should embark on an illegal strike action and thereby cause the water and electrical reticulation systems to stop, thus causing significant impact on the mines and putting pressure on the management;
57. – if a sufficient number of employees participated in the illegal strike action, the management would not dismiss anyone but, in fact, would be more likely to capitulate and accede to the workers’ demands.
58. 310. At the meeting, BMWU officials also called upon the Orapa and Letlhakane mine workers, whether union members or not, to join their colleagues in the Jwaneng mine in participating in the illegal strike action. It was resolved that the workers in both mines would support the strike, to begin on 23 August 2004. The said strike did in fact begin on 23 August 2004 and continued until 6 September 2004, a total of 13 days.
59. 311. The Government states that the BMWU officials had conceded, under oath, that the strike was illegal, and that the union’s resort to illegal strike action cannot be justified by any conduct on the part of the Debswana Mining company or by any explanation to the effect that the BMWU had no other option but to resort to an illegal strike: on the contrary, the union’s decision to flout the provisions of the Trade Disputes Act was both deliberate and calculated. The Government adds that, on the evidence available to Debswana, the BMWU officials, by urging essential services (including nursing staff) personnel to participate in the strike, intended through their unlawful actions to inflict maximum possible harm to the company, as well as to those employees who not participating in the strike and the communities in which Debswana conducts its mining operations.
60. 312. With respect to the dismissal of BMWU members engaged in essential services, the Government states that the Trade Disputes Act identifies a number of essential services for which limitations on the right to strike are imposed, and which are listed in a schedule to the Act. The schedule of essential services provided for in legislation, however, does not preclude an employer and a trade union from agreeing, in full freedom and without interference, that particular services and functions should be regarded as essential, and to accordingly limit the right to strike with respect to these job classifications. According to the Government, clause 11 of the Memorandum of Agreement concluded between BMWU and Debswana classifies several services as essential, and which must continue to operate in the event of a strike – including those related to hospitals, schools, security, sanitation, refuse disposal, power, water supply and sanitation, firefighting, mine safety and transport. The classification of these services as essential, recognizes the fact that Debswana’s mining operations are located in remote areas and that the company is responsible for the provision of the above services to the communities in those areas, rather than the local authorities. The Government states that prior to the strike, the Debswana company had consistently reminded the employees engaged in essential services, individually and collectively, that they were prohibited from striking and that, furthermore, the company had furnished the BMWU with a list of the names of the employees in essential services, as is required by the agreement.
61. 313. According to the Government, the services deemed essential in the agreement were all, to varying degrees, disrupted during the period of the strike. It adds that the company’s management closely monitored the levels of disruptions of services at the mining operations, the findings of which are as follows:
62. - Hospital services – More than half the complement of nurses and hospital orderlies went on strike, resulting in the unavailability of nursing and laundry services, which in turn compromised public health standards and put the well-being and lives of patients at risk.
63. - Security services – The absence of security personnel resulted in understaffed checkpoints, thereby compromising controls for the protection of precious stones in terms of both access control and search processes.
64. - Business services – There were no catering services and attendants at the catering messes to provide meals for critical areas e.g. hospital, apprentice and single-quarter residences.
65. - Transport services – Available drivers were stretched due to extended driving hours in an effort to transport essential services and production employees who continued to work.
66. - Water services – The water supply situation was put at risk due to the unavailability of some boreholes which could not be repaired/maintained due to staff unavailability.
67. - Refuse disposal and sanitation – Landfill sites were not manned, impacting negatively on the environment, and day-to-day refuse collection and disposal operations were disrupted.
68. 314. Debswana therefore instituted disciplinary action against the employees acting in breach of the collective agreement, including the summary dismissal of those employees in essential services who had participated in the strike. In July 2005, almost a year after the strike, the BMWU lodged an appeal in the Industrial Court seeking condonation of the late lodging of its unfair dismissal case in respect of the 461 employees. The matter was partially heard in September 2006, whereas the main action, in which the dismissed employees claim a remedy for unfair dismissal, remains pending.
69. 315. According to the Government about 2,000 employees received final written warnings for having taken part in the illegal strike. The warning was valid for 12 months for those who participated in the strike for seven days or less, and valid for 24 months for those who had participated in the strike for more than seven days. At a relationship-building initiative subsequent to the strike, the BMWU raised serious objections to the 24-month warnings, as they were not provided for in the disciplinary code. As a result of the union’s appeal, Debswana agreed to reduce the period for those warnings to 12 months; at the time of the BFTU’s submission of its complaint, these warnings had lapsed.
70. 316. With respect to Mr Chakalisa Masole, in particular, the Government states that he was given a written warning for influencing dismissed employees not to vacate company housing, and that the written warning has since lapsed.
71. 317. As regards the allegation that the Debswana Mining Company is using the courts to weaken the union, the Government states that Debswana had lodged a case for contempt of court against BMWU officers for wilful disobedience of a court order prohibiting the strike, and for inciting employees to go on an illegal strike. Debswana’s position in this respect is that the parties must respect and comply with court orders because this not only brings finality to disputes, but also promotes confidence in courts and respect for the laws regulating the relationship between the union and the management. The contempt of court application was dismissed by the Industrial Court on the grounds that the court lacked jurisdiction to issue the order sought by Debswana. The company did not appeal the decision, nor did it pursue contempt proceedings in any other court.
72. 318. As regards the complainant’s allegation that Debswana had issued inflammatory statements demeaning workers, the Government replies that during and after the strike the BMWU used the press to campaign against Debswana, and that the language the union had used was inflammatory. In particular, officials of the BMWU made disparaging and defamatory allegations against some members of Debswana management, but the company chose not to take action against the BMWU officials concerned.
73. 319. As concerns the dismissal of four union officials from the BCL Mine, the Government states that, on 9 June 2004, while wage negotiations were being conducted, BMWU officials read out a document prepared by the union that was based on private and confidential information. In spite of several requests, the officials refused to divulge the source of the confidential information in their possession; consequently, the BCL Mine decided to institute disciplinary action against the officials concerned, which culminated in a decision that the officials were guilty of serious misconduct and had acted in breach of their employment contracts. Each of the officials were afforded the opportunity to appeal the penalty of dismissal that was imposed.
74. 320. At appeal hearings concluded in December 2004, the findings of misconduct and the penalty of dismissal were upheld. In April 2005, the Regional Labour Officer mediated the dispute concerning the officials’ dismissal, but the parties failed to settle and the dispute was referred to the Industrial Court. Before the Industrial Court, none of the union officials have alleged that their dismissal was due to their position as union officials or to the activities undertaken by them in that capacity. Rather, the argument they had presented before the Industrial Court is that if any offence was committed, it was committed by the BMWU and not by them. Consequently, any penalties should be directed at and borne by the union itself. The Government states that the employer has responded to the statement filed by the union officials and that the parties were awaiting a date for the hearing of the case.
75. 321. With respect to the complainant’s allegation concerning the inadequacy of the dispute resolution mechanisms in place, the Government states that the procedures established by the Trade Disputes Act requires a reference of all disputes to statutory mediation, followed by referral to the Industrial Court if the mediation is unsuccessful.
76. 322. As concerns the BFTU’s petition requesting that the dismissed workers be reinstated, the Government states that it cannot accede to demands for the reinstatement of officials in circumstances where a dispute concerning their dismissal for misconduct remains pending before the Industrial Court. Furthermore, the parties involved are independent entities on whom the Government cannot impose any decision; instead they may resort, and indeed have resorted to the applicable procedures in place for settling a dispute.

C. The Committee’s conclusions

1. 323. The Committee notes that the present case involves the following allegations: the dismissal of 461 employees and union members for having engaged in strike action; the dismissal of four union officials; interference by the employer in the union’s internal affairs; and the failure of the government to provide adequate dispute resolution procedures and intervene in the dispute between the BMWU and the Debswana Mining Company.
2. 324. As concerns the dismissal of 461 employees following a strike that had taken place from 23 August to 6 September 2004, the Committee notes the complainant’s statement that, although the strike had been unlawful, the dismissal of 46l – out of a total of 3,900 strike participants – was unfair. The complainant alleges that prior to the strike, the employer had submitted a list of persons employed in essential services, in accordance with the Memorandum of Agreement; however, the list submitted included employees working in departments other than those services categorized as essential in the Memorandum of Agreement, including cleaners and gardeners. The Committee recalls, in this respect, that the right to strike may be restricted or prohibited in essential services in the strict sense of the term – that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 576].
3. 325. The Committee observes that, generally speaking, the list in the collective agreement, which goes far beyond the mining sector to cover the provision of services to the community at large, corresponds to its notion of essential services. Although some of the services set out in the agreement, such as those concerning sanitation and transport, fall outside the scope of essential services in the strict sense of the term, the Committee observes that these restrictions on the right to strike are the result of an agreement freely entered into by the two parties. The Committee notes with regret in this regard the Government’s indications that, in spite of the collective agreement, the BMWU had incited workers in numerous essential services to go on strike, and that this had a significant impact on the provision of hospital, power and water supply services. The Committee further notes, however, the complainant’s allegation that Debswana violated the terms of the collective agreement by submitting a list to the BMWU of employees going beyond those working in essential services within the meaning of section 11 of the collective agreement – including cleaners and gardeners. Noting the Government’s indication that the question of the dismissal of the 461 employees is currently before the Industrial Court, the Committee expects that these proceedings will be concluded expeditiously. It requests the Government to keep it informed of the outcome of the judicial proceedings and to ensure that all relevant information is gathered in an independent manner so as to shed light on the situation of these workers and the circumstances surrounding their dismissal. Should it be determined by the court or by the information gathered that any of those dismissed were employed in services other than those categorized as essential within the meaning of the collective agreement, it requests the Government to take the necessary measures to ensure that they are fully reinstated in their previous positions.
4. 326. The complainant also alleges that, of those dismissed following the strike, two individuals in particular had been unfairly targeted: Mr Bokopaano Phirinyane, an assistant buyer in the materials department, who was dismissed even though he had been ill and hospitalized for most of the strike period; and Mr Chakalisa Masole, the BMWU branch Secretary at the Orapa–Letlhakane mines, who was charged with influencing employees not to vacate company houses between 24 August and 6 September 2004, even though he had been on leave from 16 August to 14 September 2004.
5. 327. In respect of the charges brought against Mr Chakalisa Masole, the BMWU branch secretary at the Orapa–Letlhakane mines, the Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions [see Digest, op. cit., fifth edition, 2006, para. 799]. Noting the Government’s indication that Mr Masole had received a written warning for influencing workers not to vacate company housing, which has since lapsed, the Committee requests the Government to clarify whether Mr Masole has indeed been brought before the courts, as the complainants allege, and to provide full particulars in this regard.
6. 328. As regards the dismissal of the other employees, including Mr Phirinyane, the Committee notes that, although the complainant claims their dismissals were unfair, it does not specifically allege that anti-union discrimination – or any violation of freedom of association principles, for that matter – played a part in their dismissals. The Committee is of the opinion, therefore, that this particular allegation calls for no further examination.
7. 329. With respect to the dismissal of, and charges brought against, the four union officials from the BCL Mine, the Committee notes the complainant’s allegation that the concerned parties had been targeted on the basis of their status as union officeholders, and of their activities on behalf of the union. The Committee also notes that, according to the Government, the four union officials were dismissed as a result of disciplinary proceedings for serious misconduct and that, before the Industrial Court, none of the union officials had alleged that their dismissal was due to their position as union officials, or to the activities undertaken by them in that capacity. Rather, the argument they had presented before the Industrial Court was that if any offence was committed, it was committed by the BMWU, and not by them. Consequently, any penalties should be directed at, and borne by, the union itself.
8. 330. The Committee observes from the information at its disposal that the disciplinary proceedings resulting in the dismissal of the four officials hinged on whether the concerned parties had divulged allegedly confidential information, in breach of their employment contracts. The Committee further notes that the BMWU leadership had commissioned consultants to research the wage structure of the workforce in the BCL Mine in July 2003, which resulted in a report containing the confidential information. This report moreover was used in the negotiations that subsequently took place from 8 to 10 June 2004, in which the company’s management agreed to the union’s proposed salary structure based on the report’s findings, and which resulted in the conclusion of a collective agreement on 13 July 2004.
9. 331. According to the complainant, the consultant subsequently confirmed that its information did not come form the union’s officers. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, and that this protection is particularly desirable in the case of trade union officials because, in order to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate they hold from their trade unions. The Committee further recalls that it has pointed out that one way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter except, of course, for a serious misconduct [see Digest, op. cit., paras 799 and 804]. In the light of the above principles and the information before it, the Committee queries whether the four BMWU officials were not indeed dismissed for having engaged in legitimate activities in furtherance of their members’ interests. Noting that the concerned parties were awaiting a date for the hearing of their case, the Committee expects that the Industrial Court will bear these principles in mind when considering this case, and requests the Government to keep it informed of the outcome and to transmit a copy of the judgements as soon as it is handed down.
10. 332. As regards the general allegation that the employer had interfered in the internal affairs of the BMWU by favouring one faction over the other, the Committee notes that this allegation is supported only by a letter in which the BMWU accused the Debswana company of favouring the dissident faction. The Committee further observes that this allegation is directly contradicted by the information provided by the Government, according to which the employer maintains that it has observed a policy of non-interference in the BMWU’s affairs, and that the employer’s actions have been consistently based on the court’s determination of legitimacy. The Committee will therefore not proceed with the examination of this matter.
11. 333. As regards the allegation that the employer had engaged in litigation to harass and weaken the union, the Committee notes from the information at its disposal that Debswana had lodged a case for contempt of court against BMWU officers for wilful disobedience of a court order prohibiting the strike, and for inciting employees to go on an illegal strike. The case was apparently dismissed for lack of jurisdiction. Debswana was also a party to the case relating to the dismissal of the four union officials at its BCL Mine, an action which commenced when the four concerned individuals appealed their dismissal to the Industrial Court. The Committee observes that apparently both the complainant and the employer had sought recourse to legal action, where available and in furtherance of their respective interests. The Committee therefore considers that this allegation calls for no further examination.
12. 334. The Committee takes note of the complainant’s allegation that the dispute resolution mechanisms currently in place are inadequate. It notes, nevertheless, that the complainant sets forth no evidence in support of this allegation, and in fact states that mediation between itself and the employer had been resorted to on a number of occasions. Furthermore, noting the Government’s statement that mediation and litigation before the Industrial Court are available means of resolution under the Trade Disputes Act, the Committee will not examine this matter further unless additional information is transmitted by the complainant.
13. 335. The Committee observes that, although a report on relationship-building initiatives was commissioned by the Debswana company in 2003, it is clear – from the overall facts of the case and the allegations of defamatory remarks made by both sides – that the industrial relations climate within the company remains a tense one. The Committee therefore requests the Government to consider all possible measures aimed at fostering harmonious workplace relations between the BMWU and the Debswana Mining Company. It requests the Government to keep it informed in this regard.

The Committee's recommendations

1. 336. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Noting the Government’s indication that the question of the dismissal of the 461 employees is currently before the Industrial Court, the Committee expects that these proceedings will be concluded expeditiously. It requests the Government to keep it informed of the outcome of the judicial proceedings and to ensure that all relevant information is gathered in an independent manner so as to shed light on the situation of these workers and the circumstances surrounding their dismissal. Should it be determined by the court or by the information gathered that any of those dismissed were employed in services other than those categorized as essential within the meaning of the collective agreement, it requests the Government to take the necessary measures to ensure that they are fully reinstated in their previous positions.
   • (b) The Committee requests the Government to clarify whether Mr Masole has indeed been brought before the courts, as the complainants allege, and to provide full particulars in this regard.
   • (c) As regards the dismissal of the four BMWU officials, the Committee expects that the Industrial Court will bear in mind the principles of freedom of association cited in its conclusions when considering their appeal and requests the Government to keep it informed of the outcome and to transmit a copy of the judgement as soon as it is handed down.
   • (d) The Committee requests the Government to consider all possible measures aimed at ameliorating the industrial relations climate in the Debswana Mining Company. It requests the Government to keep it informed in this regard.

Z. Annex

• Excerpt from the 24 February 2000 Memorandum
• of Agreement between the BMWU and the
• Debswana Mining Company
  11. 11 Industrial action
  11. 111 The Company and the Union agree not to cause, countenance or support any lockouts, strikes, restrictive practices or industrial action of any kind until the matter or matters in dispute have been dealt with in accordance with the procedures as stipulated under this Agreement, under the Trades Disputes Act of 1982, as may be amended, from time to time or any other relevant legislation.
  11. 112 The Union agrees that services essential for the maintenance of safety, security and health will, in the event of a strike, continue to be performed. The Company agrees to use employees during the strike who are employed on such services only for their normal defined routine duties.
  11. 113 Essential services for this purpose include those operations relating to:
• i. Hospital, Clinics and First Aid Station
• ii. Sanitation and Refuse Disposal System
• iii. Power Supply and Reticulation
• iv. Water Supply and Purification Plant
• v. Schools
• vi. Fire Team Members
• vii. Security
• viii. Mine Safety
• ix. Transport Staff in respect of the above services
  11. 114 The Union agrees that it will not interfere with the orderly shut down of the operation in the event of strike action. The Company agrees, in the event of a strike, to provide the Union with the names of all those employees required to work on essential services and will specify the length of time that the employee will be required to work.