Individual Case (CAS) - Discussion: 2018, Publication: 107th ILC session (2018)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Botswana (Ratification: 1997)



A Government representative recalled that in 2017 the Committee had recommended the Government to: take appropriate measures to ensure that the labour and employment legislation granted members of the prison service the rights guaranteed by the Convention; ensure that the Trade Disputes Act (TDA) was in full conformity with the Convention and engage in social dialogue, with further technical assistance of the ILO; amend the Trade Unions and Employers Organisations Act (TUEO Act), in consultation with employers’ and workers’ organizations, to bring those laws into conformity with the Convention; and develop a time-bound action plan together with the social partners in order to implement the Committee’s conclusions. The speaker indicated that since then, consultations had been ongoing between the Government and the representatives of employers and workers on the process to amend the labour laws. In particular, the Government and the social partners had met seven times between July 2017 and April 2018, clearly showing the Government’s commitment to move forward. Although the process of reviewing the labour laws had been slow at the beginning, meaningful progress had been made in October 2017 when a tripartite time-bound action plan, as requested by the Committee, had been adopted by the tripartite parties and provided to the ILO Decent Work Team for Eastern and Southern Africa. There had been general consensus among the representatives of the Government and the social partners on the need to review the labour laws to fill the gaps, incorporate various Court decisions and make the legislation compliant with the ILO Conventions ratified by Botswana.

In April 2017, during the mission of the ILO Decent Work Team for Eastern and Southern Africa to Botswana, it had been resolved that the focus of the review would be on the Employment Act and the TUEO Act. However, the tripartite partners had acknowledged that some provisions in those laws could have a bearing on the provisions of other labour laws and it had therefore been agreed that the review could be extended to include such other laws as the Public Service Act (PSA) and the TDA, to the extent necessary, so as to ensure harmonization and consistency. In order to carry out the review, the Government and the social partners had agreed to establish a Labour Law Review Committee (LLRC) consisting of members from the Government, employers and workers, the purpose of which was to spearhead the labour law review process. The tripartite action plan envisaged that the Bills on the amendment of the laws would be submitted to the November 2018 session of Parliament. The Government and the social partners had also agreed to engage an expert to assist in the review process, had developed the Terms of Reference for the Review of the Labour Laws, which had been provided to the ILO in March 2018 and, with the facilitation of the ILO Decent Work Team for Eastern and Southern Africa, had also agreed on the expert to be engaged. During the Government’s engagement with employers’ and workers’ representatives, it had become clear that the amendment of the TDA, in particular the review of the list of essential services, was of critical importance to workers and the Government had therefore deemed it necessary to re examine the list of essential services. As such, the TDA and the PSA would form part of the laws that would be reviewed. Finally, the speaker emphasized once again that the framework for the review of the labour laws had been agreed with the social partners, that the action plan had been communicated to the ILO, which had facilitated the engagement of an expert, and that the tripartite parties had agreed on the expert and were awaiting confirmation from the ILO on when the expert would commence the task of facilitating the review of the labour laws. He also reiterated the Government’s engagement to ensuring that progress was made towards the full implementation of its commitments.

The Worker members recalled the recommendations made by the Committee during the discussion of the case in 2017, and noted that they had not been implemented. The Government had sent no report on the application of the Convention, which had led the Committee of Experts to repeat its previous observation. The situation was regrettable. First, with regard to the recurring issue of prison staff being denied the right to organize, the Government considered that the prison administration was part of the disciplined forces. Such a situation was contrary to Articles 2 and 9 of the Convention. While Article 9 provided for an exception for the armed forces and police, such an exception must be interpreted narrowly. It should be noted that the exception for the army and the police was not based on the fact that they were subjected to discipline, but rather on the nature of their activities. It therefore did not matter whether or not the prison administration was subject to disciplinary regulations. Furthermore, there was no direct link between the different categories (armed forces, police, prison service). Consequently, the Government’s argument that prison staff were excluded from the right to organize on the grounds that they were part of the disciplined forces was incompatible with the Convention, even if the Constitutional Court had accepted such an exclusion. The Worker members emphasized that, in other administrations, workers had been pressured into ending their trade union membership. Their employers had threatened to take away their social benefits if they did not give up their trade union membership. Legal action had been taken in this regard.

Second, concerning the right of trade union organizations to organize their activities, and in particular the determination of the list of essential services and the discretionary power of the Minister to declare a service essential, despite the diverging positions on the right to strike, the Employer members and the Worker members had reached a consensus on the subject during the examination of the case in 2017, and had invited the Government to bring its legislation on labour disputes into conformity with the Convention. Also at the legislative level, the issues relating to the conformity of the TUEO Act, which were linked to the provision granting certain facilities only to unions representing at least one third of the employees in the enterprise, had not been resolved. Although the establishment of thresholds of representativity was not in itself contrary to the Convention, this was subject to conditions such as the precise and objective nature of the criteria used, or the distinction being limited to certain privileges. In the case of Botswana, the Act did not establish a minimum number of members as a requirement for the establishment of a trade union, but as a requirement for the granting of certain privileges, such as access to the premises of an enterprise to recruit members, hold meetings or represent members in the event of a complaint, disciplinary measures or dismissal. However, such privileges were fundamental aspects of trade union activity; without them, it would be almost impossible for a trade union to recruit members or establish itself within an enterprise. Sometimes, even if a trade union met the criteria, the employer would refuse to grant it such privileges. Another provision of the TUEO Act that was contrary to Article 3 of the Convention was the one that authorized the registrar of trade unions to inspect the books and documents of a trade union at any reasonable time. In this regard, it was important to recall that organizations needed to benefit from the necessary autonomy and independence. Controls could only constitute an exceptional measure that must be narrowly defined. Lastly, regarding the new draft bill on the public service which, according to the Government, had been the subject of prior consultations with the social partners, it was essential for the Government to provide a copy of the latest version of the draft bill, or a copy of the legislation once it had been adopted. In conclusion, in 2017, the Government representative had stated that it was necessary to wait for the outcome of an open discussion with the social partners in the near future. The Worker members had shared this concern, which was linked to the need to ensure consultation with the social partners, and had recognized the difficulties and hurdles that a government could encounter in its efforts in that regard. Nevertheless, given the fact that the Government’s attention had been drawn for 17 years to many of the points under discussion, the amount of time needed to engage in social dialogue could not be used as an excuse for failing to guarantee the basic rights of workers.

The Employer members recalled that, although the case had first been discussed by the Conference Committee in 2017, it had previously been subject to nine observations of the Committee of Experts. It was being discussed again because nothing had happened in the meantime, despite the provision of technical assistance by the ILO on a number of occasions. It was noted that a recent change of presidency had had a beneficial effect on the Government’s commitment to change The Committee of Experts’ requests to the Government reflected concerns relating to compliance with the Convention in law and practice. With respect to practice, the Committee of Experts had reported violations of the Convention on several occasions, including favouritism towards certain trade unions, dismissals of striking workers, police repression of pickets and a refusal to allow public sector unions to address their concerns to Parliament. There were several aspects of concern to the Employer members, the first relating to the requirements of Article 3 of the Convention, which permitted workers and employers to set up organizations free from official interference. While favouritism and restrictive criteria for establishment did not meet that standard and should be avoided, that did not mean that there should be no criteria. It was common for unions to be subject to the same criteria as any other not-for-profit organization. Similarly, unilateral access by public authorities to the books and accounts of a union could be regarded as interference by the authorities, in clear contravention of Article 3 of the Convention. Regard should be had to the practice common in many countries of requiring regular reports rather than permitting the authorities’ access to trade union records. Acknowledging the establishment of the LLRC, the Employer members urged the Government to make progress in reviewing labour legislation so as to remove any barriers to the free establishment or operation of trade unions.

The reference in the Committee of Experts’ observation to instances of repression was more difficult to deal with as, without more evidence, it was difficult to assess whether the instances complained of involved violence or other unlawful acts that would have attracted legitimate attention from the authorities. Consistent with the Employer members’ firm view that the Convention did not regulate the right to strike, as well as with the view expressed in the Government statement to the 2015 tripartite meeting on the Convention that the scope and conditions of the right to strike were regulated at the national level, there was little more that the Employer members could add on the subject. The Government was encouraged to ensure that actions taken with respect to protests were commensurate with the source and nature of the protest and the respected national laws that governed them. The same applied to essential services, which could be designated by a country. In many countries, the right to organize and to take industrial action was typically denied to the armed services and the police, which was unequivocally a decision to be taken by the nation concerned. It was also common to designate certain other services as essential because any disruption of them for more than a short period would cause economic harm or endanger the lives, safety and health of the population. Botswana had designated a large number of services as essential and, while that approach did not in itself contravene the Convention, it did raise questions as to why, particularly when those services included banks and diamond operations. The history of the case also related to the Government’s designation of the prison services as a “disciplined force” in the same manner as the armed services and the police. The Employer members disagreed with such a designation, as the prison service was not responsible for preserving and maintaining law and order in the constitutional sense as applied to the armed services and the police. Nor, as observed by the Committee of Experts, was the prison service covered by the same legislation as the armed services and the police. However, the Employer members were restricted in commenting further as that was a matter for the national legislature. Similarly, as in 2017, the Government was urged to review the list of essential services and to ensure that any restrictions placed upon them were commensurate with their impact on the health and welfare of the citizens and the economy. With regard to the compliance of national law with the Convention, the Government had previously indicated that it was focused on amending the Employment Act and the TUEO Act, but meaningful dialogue with the social partners had yet to occur. Moreover, both employers and workers had previously expressed deep concern that focusing only on those two Acts would achieve little. In April 2018, the Government had asked for further assistance from the ILO which would be provided. The speaker welcomed the broadening of the review exercise, encouraged the Government to engage in social dialogue with the representative organizations of employers and workers willing to advance the underlying issues and noted the increased willingness of the Government to do so.

The Worker member of Botswana regretted that the Government was not complying with the Convention and had largely not followed the conclusions of the Committee, using delaying tactics and showing a negative attitude towards the supervisory bodies. Upon returning from the 2017 Conference, the Government had held a press conference in which, stopping short of denouncing the ILO, the Minister had stated that its findings were merely advisory and not binding. Despite this position, in July 2017, the trade unions had submitted for tripartite discussion proposals to give effect to the Committee’s conclusions. At first, the Government had frustrated those efforts and only in October 2017 had the proposals been discussed and the parties agreed to form a tripartite LLRC, as well as agreeing to a time-bound workplan to complete the review. The LLRC had been given the mandate to agree on the terms of reference for a consultant to assist in reviewing the laws, but the Government had sought in bad faith to unilaterally impose the terms of reference on the social partners, seeking to exclude from the scope of the review the TDA, the PSA and the Prisons Act. The workers’ representatives, supported by Business Botswana, had recalled that the Committee’s conclusions had called for the review of those Acts, but that the Government had refused to amend them and, as it was not even willing to engage in dialogue on the issue, had referred to its old argument that the prison service belonged to the disciplined forces. In its 25 April 2018 response to a request from the Botswana Federation of Public Sector Unions (BFTU) on the subject, the Government had claimed that unionization implied industrial action and that this would compromise national security. Such flawed reasoning was contrary to Article 9 of the Convention, as well as to national constitutional provisions on civil liberties. Moreover, since the last discussion by the Committee, violations of the Convention had continued. In January 2018, the Government had notified trade unions and federations that it would inspect trade union books, accounts and documents pursuant to section 49 of the TUEO Act and had insisted on such unlawful inspections, despite the BFTU’s submission that they were contrary to the Convention and would encroach on the independence and autonomy of trade unions. The BFTU was also deeply concerned at the deregistration of the Public Sector Bargaining Council (PSBC), an institution which nurtured and consolidated industrial democracy. The Government had also published the Public Service Bill (PSB) to amend the PSA without consulting any tripartite body. The PSB undermined the role of the social partners in the appointment of the PSBC secretariat and encroached on union autonomy by dictating who could represent them or negotiate on their behalf. The Committee must therefore request the Government, as a matter of urgency, to halt the continued violations of the Convention and to allow the terms of reference for the labour law review to be subject to tripartite structures and to encompass the various laws the Committee had urged be amended, as well as the PSA, with precise timelines.

The Employer member of Botswana stated that the tripartite partners had met to address the recommendations made by the Committee on the Application of Standards in 2017 and a tripartite task force had been established to spearhead a comprehensive review of the labour laws. Although much time had been lost on building consensus on the parameters of the review, there was confidence that the task force would rapidly oversee the labour law review, especially considering that the country’s new leadership was inclined to engage openly with the workers, and that it would report progress to the ILO supervisory bodies. As the review of the labour laws not only offered the opportunity to address the conclusions of the Committee, but also to align the national employment laws and policies with the needs of a modern and competitive economy, the speaker requested the Committee to give the country time to address its recommendations, and expressed the employers’ continued availability to work with the Government and workers on the issue. Finally, he sounded a note of caution, as it would not be easy to reach consensus on the classification of prison officers in view of the divergent legal opinions on the matter, but the deep tradition of consultation should allow for progress to be made.

The Government member of France drew attention to cases in which freedom of association had been violated, particularly as prison staff were unable to join a union and essential services were defined very broadly, leading to many workers being excluded from exercising the right to strike. In that regard, no information had been provided to suggest that the situation had changed. The speaker underlined the importance that should be attached to the full exercise of the right to freedom of association through effective and balanced social dialogue, and to the protections and facilities that should be provided for workers’ representatives. Similarly, it should be emphasized that the right to strike was an essential element of freedom of association within the meaning of the Convention, and that the importance of respecting this right in applying the Convention should be recalled. Freedom of association and the associated right to strike were fundamental labour rights enshrined in the eight core Conventions, universal ratification of which should be promoted. Consequently, the Government of Botswana should take into account the requests made by the Committee of Experts and review its legislation so as to enable workers whose functions could not reasonably be categorized as essential services to carry out trade union activities freely.

The Worker member of South Africa expressed concern that the various pieces of legislation identified by the Committee of Experts as requiring urgent and substantive amendments – the TDA, the Prison Services Act and the PSB – were designed to reduce workers’ rights, which was injurious to work morale, democratic industrial relations and productivity. It was also worrying that the Government continued to ignore the genuine efforts made by the national social partners, especially the workers, as well as by the Committee of Experts and the Conference Committee. The right of workers to organize, form organizations of their choice and have representation, including collective bargaining rights, constituted the basic minimum for making shared progress. He referred to the example of a trade union from South Africa which had organized workers in the police and prison services and highlighted that the trade union membership and activities of those workers had never posed a threat to the stability and cohesion of the country, or compromised the workers’ professionalism in carrying out their official duties. It was therefore not useful for the Government of Botswana to argue that workers in prison services were members of a disciplined force that could not be allowed to organize freely and genuinely. The tendency to systematically and administratively stifle and shrink spaces for civil liberties, including the rights of workers in prison services, was dangerous for economic and societal stability. Therefore, the Committee was strongly urged to call on the Government to preserve and respect the sanctity of the provisions of the Convention, which were unambiguous, persuasive and practical in relation to the rights of workers to freely organize and bargain, and to take measures to protect those provisions without let or hindrance.

The Government member of Zimbabwe thanked the participants for their interventions that focused on the core elements of the issue discussed, which was of a legislative nature. Legislative reforms could not be completed overnight given the plethora of bodies involved, including the tripartite structures, the Cabinet, the Parliament and their relevant subcommittees. The Government had informed the Committee about the roadmap, in particular the work being undertaken by the tripartite LLRC, which it had put in place, together with the social partners, to address the concerns raised by the ILO supervisory bodies. The Government had also stated that it was working together with the ILO field offices, including in relation to the labour law expert to be hired by the ILO to assist in elaborating the labour law reform. While appreciating the collaboration between the Government and the ILO, the speaker urged the latter to continue supporting the Government and the social partners in the reform process, including through its field offices.

The Worker member of Kenya indicated that the trade union organizations of the East African Trade Union Confederation (EATUC) understood perfectly the rationale and principles for essential services in the public services. Workers delivering essential services were conscious that their critical services, their professional commitment and willingness to serve people and their communities, contributed to the attainment of individual, community and national aspirations. Nevertheless, like every other worker, they had workplace rights to safeguard, which were not to be frozen, discounted and undermined simply because the workers were providers of essential services. Such rights should be well preserved, respected and enjoyed. However, the Government had continued to do the opposite, as noted in the report of the Committee of Experts. Experience had shown that workers who did not enjoy strike actions undertook efforts to avoid them as much as possible, but they also had the right to withhold their services where such efforts failed, so as not to open the gates for abuses of their other rights. The rationale for classifying essential services as was done in the TDA was incomprehensible, impossible to accept, and did not contribute to industrial relations and workplace harmony. It was difficult to see how diamond sorting, cutting and selling services, government broadcasting services, the Central Bank of Botswana, veterinary services and railway operations constituted essential services, as their interruption would not endanger the life, personal safety or health of all or part of the population. Recalling the Government’s assertion to the Conference Committee that legislative amendments would be made to the list, the speaker confirmed with regret that no progress had been made in that regard and asked the Committee to insist on real and tangible progress.

The Worker member of Ghana, speaking on behalf of the Organization of Trade Unions of West Africa (OTUWA), expressed concern about the TUEO Act, highlighting in particular its section 43, which provided for the inspection of accounts, books and documents of a trade union by the Registrar at “any reasonable time”. The provision was a clear interference by the Government in the internal affairs of trade unions, with the real consequence that union activities would be self-censored to favour the Government and not union members. Even in cases where the unions mustered the courage to assert their rights, there was the real and very high likelihood that the Government would retaliate by instigating false allegations, relying on its broad power to inspect union accounts, books and documents. The speaker also noted previous comments of the Committee of Experts indicating that legislative provisions regulating in detail the internal functioning of workers’ and employers’ organizations posed a serious risk of interference and were therefore incompatible with the Convention. For instance, in Ghana, the legal framework allowed unions to enjoy the greatest possible autonomy, with a view to enabling them to function effectively, and the social partners filed their annual financial and other reports with the sole objective of protecting the interests of union members and guaranteeing the union’s democratic functioning. Union activities and resources were from and for its members, who had the primary right to scrutinize and hold leaders accountable for running the organization. Governments should not include language in the legislation which could create any second level financial accountability mechanism as a pretext to interfere in legitimate trade union activities, and the Government was called on to amend the relevant legislation.

An observer representing Public Services International (PSI) indicated that the PSBC had been established in 2011, pursuant to the PSA, with the mandate to negotiate, conclude and enforce collective agreements. In August 2013, the office of the Director of Public Service Management (DPSM) had sent a letter to a member of the PSBC, the Botswana Federation of Public Service Unions (BOFEPUSU), stating that the Government was withdrawing from the PSBC, thereby rendering it dysfunctional, since the PSBC could only pass a lawful resolution if signed by both the employer and the trade union parties. The BOFEPUSU had taken the matter for review to the High Court, which had held that the withdrawal of the Government (as the employer) prejudiced the BOFEPUSU. Following the decision of the High Court, the Government had deregistered the BOFEPUSU as a Federation. That decision had been appealed and the courts had once again considered the deregistration to be illegal. In May 2017, the BOFEPUSU had withdrawn its membership from the PSBC, following the Government’s decision to unilaterally award a 3 per cent salary increase to public servants outside the purview of the PSBC. The High Court had held that the Government was not permitted to grant unilateral wage increases to public servants during the period when wage negotiations were in progress, as this constituted negotiating in bad faith. The High Court had also stated that granting a unilateral increase, in light of the manner in which this had been done, had seriously undermined the trade unions and had damaged their integrity and credibility by demonstrating that union representatives were not effective in bargaining and thereby dissuading employees from joining trade unions. In addition, the High Court had urged the Government and the unions to revisit the situation, so that the fair and inclusive negotiating forum could be reconstituted. Despite the judgment, the Acting Commissioner of Labour and Social Security had dissolved the PSBC in November 2017, even though unions had been collaborating together with the Minister of Employment, Labour Productivity and Skills Development to resume its operations and the Acting Commissioner had been notified of such efforts. The unions had since appealed to the Minister to rescind or revoke the Commissioner’s decision to cancel the PSBC, but to no avail. The speaker further recalled that the revision of the labour legislation was a great opportunity for the Government and the social partners to adopt legislation in line with the ILO standards ratified by the country. Nevertheless, the Government’s behaviour clearly showed a deliberate attempt to undermine social dialogue and Botswana’s obligations under the Convention.

An observer representing Education International (EI), speaking on behalf of the Botswana Secondary Teachers’ Union (BOSETU) and the Botswana Teachers’ Union (BTU), stated that a high number of employees, including teachers, had been placed under the category of essential services through the amendment of section 46 of the TDA. Such widespread extension of the essential service status to almost 85 per cent of workers in the public service was meant to freeze their rights to organize and effectively bargain, thereby infringing the Convention. Consequently, teachers and support staff in education would remain not only weak, but also vulnerable, their working conditions would deteriorate and it would have dire consequences on the quality of education, which was a public good. The speaker noted with regret the disagreements over the terms of reference of the tripartite LLRC, which had been established to review the labour laws to ensure their compliance with the Convention. The reasons of the disagreement had been the decision of the Government to exclude the TDA and the PSA from the review, even though section 46 of the TDA on essential services was a key aspect of the case, and it was therefore unacceptable for it to be excluded from the review. In addition, the Government had dissolved the PSBC, the only tripartite bargaining structure available in the public sector. As a result, there was no bargaining in the public service in Botswana. Furthermore, contrary to the Convention, a decision of the authorities to inspect union books had been adopted, which represented an interference in trade union affairs. The Committee was requested to ask the Government to include the TDA, the PSA and the PSB in the labour legislation review.

An observer representing IndustriALL Global Union referred to the continued violation of workers’ rights in Botswana reported by its affiliates, due to the Government’s continued failure to abide by the provisions of the Convention and the Committee’s requests. In 2017, the Committee had noted various submissions concerning new amendments to the TDA, but no concrete progress had been reported to date, despite the abundant goodwill and disposition of the social partners, especially the workers. Expressing deep concern at the attitude of the Government, the speaker noted that the TDA had a sweeping broad application across all sectors and this posed a threat to economic and labour peace. Reports from affiliates in the country pointed to members and workers in the diamond and mining industries who were experiencing violations deriving directly from the TDA, including the case of a government-owned mining company which had made 5,702 workers redundant without following the relevant procedures. Economic hardship was no reason to undermine workers’ rights. Workers with positions in the bargaining unit in the diamond cutting, sorting and sales services had been abusively re-classified as workers in “essential services”, with the effect of denying their right to bargain with their employers and to strike. They had been unable to get an audience with the Commissioner of Labour and Social Security or to have attention paid to their grievances, the administration of disputes related to essential services being treated as an act of magnanimity. The Government was asked to take appropriate measures to ensure that the TDA was in full conformity with the Convention and to engage in genuine social dialogue with national unions.

The Worker member of Burkina Faso emphasized that, while information on political change was an indicator to be taken into consideration, it was not sufficient in itself, particularly if account was taken of the principle of continuity of the State and the fact that the Government had stated in a press conference in 2017 that the Committee’s conclusions were mere recommendations that were not binding on national authorities. Regarding the process of codifying “living together” through the adoption of standards, the speaker emphasized that the principle of freedom of association was considered to be a central value of the ILO and that Convention No. 87 had been adopted by tripartite consensus to regulate the exercise of freedom of association and trade union rights. In that context, it was important to recall that Conventions were legally binding international treaties and that, through their ratification, countries committed to their application in law and in practice. All authorities in the country must contribute to respecting international commitments made by the Government through the ratification of a Convention. However, a lack of principled governance regarding respect for international commitments was widespread and constituted a dangerous phenomenon. The workers’ movement must act to ensure that trade unions played their role. To that end, it was essential for the Office to produce a simple leaflet, with a reminder of what a Convention was and of the hierarchy of standards for a country that had ratified it, in order to raise awareness among young workers.

The Government member of Iraq recalled that the Convention was a fundamental one and referred to fundamental freedoms. The Convention had just been ratified by Iraq. The right to organize and to freedom of association was essential and should be guaranteed even where a small group of workers was concerned. The Government and the social partners should pursue their efforts to better implement the Convention and adopt texts in line with it. The speaker expressed deep gratitude to the ILO and its various bodies for the enormous efforts made in relation to implementation of international labour standards, with a view to meeting the objective of social justice.

The Government representative expressed appreciation for the contribution of the various speakers, especially those who had supported the Government in its endeavour to advance in the labour law review process. He also expressed regret at the fact that the observations from the workers had not taken into account the progress made, especially considering that legislative changes could not occur overnight. He emphasized the country’s consultative approach to decision-making, as had been mentioned by the Employer member of Botswana. Most of the issues raised in the discussion concerned legislative issues and therefore needed to be subjected to social dialogue, preferably through the LLRC. However, it was unfortunate that some issues that had already been resolved through tripartite means, such as the Terms of Reference for the Review of the Labour Laws that formed the basis for ILO technical assistance, were being denied by workers in Botswana. Furthermore, the Worker member of Botswana had made some statements which were not factual. With regard to the PSBC mentioned by several speakers, the speaker clarified that: (1) the PSBC had been established in 2011 when the Government, as the employer, and the public service unions had created its Constitution through collective bargaining, and one of the powers bestowed on the Council by its Constitution had been the authority to decide which unions it should or should not admit; (2) in May 2017, the BOFEPUSU AJA had given notice of its resignation from the PSBC with immediate effect, as a joint arrangement between four public service unions, which were members of the PSBC; (3) as of May 2017, the Government had become the only member of the PSBC, which could thus not function or carry out its mandate, and the Government had made an application to the Commissioner of Labour to cancel the registration of the PSBC Constitution; (4) the cancellation of the PSBC Constitution had afforded an opportunity to the Government, as the employer, and all public service unions to craft a new constitution through collective bargaining so as to ensure that, in the future, it would not cease to function as a result of the voluntary withdrawal of one of its members; and (5) the Government was hopeful that the new Constitution would be agreed upon and the PSBC would once again be functioning by the end of August 2018. In conclusion, social dialogue was a delicate process that required mutual trust and good faith among the parties involved. As previously mentioned, the Government had met with the social partners on numerous occasions and together they had achieved several milestones, but it appeared from the intervention of the Worker member of Botswana that there were deeper and more serious underlying problems that needed to be addressed by the tripartite partners, with the assistance of the ILO expert. However, the formalization and institutionalization of the mechanism for the review of labour laws clearly demonstrated the Government’s commitment to implementing the Committee’s recommendations, as well as to examining other labour laws, such as the PSA.

The Employer members noted that Botswana had been going through a process of change in Government, in will and in attitude, but that this had not translated into concrete outcomes. Nevertheless, it was appreciated that the Government had sought ILO assistance and hope was expressed that the outcome of such assistance would translate into real progress. Referring to particular aspects of the case, the speaker highlighted that there were many ways of settling the issues at stake. The threshold for setting up unions did not have to be so high, but some thresholds could be set; with regard to the inspection of accounts, books, and documents of a trade union, it would be possible to balance the information the Government deemed necessary with observance of the Convention. The different views expressed on how progress had been achieved showed an absolute need to address the issues in a tripartite manner and the Government was urged to engage in social dialogue with the representative organizations of employers and workers.

The Worker members considered that, in the absence of tangible progress, there was a need to reiterate the requests made in the 2017 discussions. Above all, the Government should be invited to take the appropriate steps to ensure that the labour legislation endowed prison staff with the rights enshrined in the Convention, particularly freedom of association. The Government should also fully align the TDA with the Convention and initiate a social dialogue with renewed technical assistance from the Office. It was also necessary to amend the TUEO Act, in conjunction with the workers’ and employers’ organizations, to bring it into line with the Convention, particularly by revoking the obligation for organizations to make their books and documents available to the Registrar for examination at any reasonable time. Similarly, it was necessary to withdraw the facilities and benefits granted solely to trade unions that represented at least one third of the employees of the company, since these were not in keeping with the Convention. In view of the lack of progress, the Government should be called upon to take all possible steps to implement the recommendations adopted by the Committee.

Conclusions

The Committee took note of the oral statements made by the Government representative and the discussion that followed.

The Committee welcomed the Government’s agreement to broaden the scope of the labour law review.

Taking into account the Government’s submissions and the discussion that followed, the Committee called upon the Government to:

- take appropriate measures in consultation with the most representative employers’ and workers’ organizations to ensure that the labour and employment legislation grants members of the prison service that are not considered to be part of the police the rights guaranteed by the Convention;

- amend the Trade Unions and Employers’ Organizations Act, in consultation with employers’ and workers’ organizations, to bring it into conformity with the Convention;

- provide further information on the Court of Appeal ruling on the invalidity of statutory provisions;

- ensure that the registration of trade unions in law and in practice conforms with the Convention; and

- process pending applications for the registration of trade unions, in particular in the public sector, which have met the requirements set out by law.

The Committee called upon the Government to address these recommendations within the framework of the ongoing labour law review and in full consultation with the social partners. The Committee urged the Government to continue availing itself of ILO technical assistance in this regard and to report progress to the Committee of Experts before its next meeting in November 2018.

A Government representative acknowledged the recommendations of the Committee and confirmed that his Government was pursuing labour law review through the tripartite Labour Law Review Committee. The Government was committed to engaging with the social partners with a view to submitting a report to the Committee of Experts’ meeting in November 2018 and would continue to resort to the tripartite structures to progress with the legislative agenda and reforms, including the labour law review, during the November sitting of Parliament.