Caso individual (CAS) - Discusión: 2017, Publicación: 106ª reunión CIT (2017)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Botswana (Ratificación : 1997)



A Government representative stated that significant efforts had been made, in collaboration with the social partners, towards the enactment of labour laws that protected and promoted workers’ rights. The Trade Disputes Act had been amended in August 2016 in order to address delays in the resolution of trade disputes. Legislative amendments had also been introduced pursuant to the Court of Appeal ruling on the invalidity of statutory provisions which gave the Minister the power to amend the list of essential services. That judgment clarified that it was the role of Parliament to determine the list of essential services. In response to the judgment, the Government had presented amendments to the Trade Disputes Act which included the issue of essential services. The Government’s position on essential services was premised on the socio-economic circumstances of the country. Inclusion on the list of essential services did not deny those categories of employees the right to organize or to associate, but only the right to withdraw their labour. Section 13 of the Constitution guaranteed freedom of association, and allowed the reasonable limitation of that right in the interest of defence, public safety, public order, public morality or public health. The Trade Disputes Act had been carefully crafted to ensure its conformity with the Constitution and had been promulgated after extensive consultations. Considerable consultation had also been undertaken with public service unions on the Public Service Bill, and care had been taken to ensure that the Bill was constitutional. The Bill was at the stage of publication in the Official Gazette prior to being tabled before Parliament. The publication would allow for further consultation and input, and could result in further amendments prior to its consideration in Parliament.

The Committee of Experts considered that essential services were those whose interruption would endanger the life, personal safety or health of all or part of the population. However, the Committee of Experts also considered that account must be taken of the special circumstances that existed in various member States. While the interruption of certain services in some countries might cause only economic hardships, it could prove disastrous in others and rapidly lead to conditions that might endanger the life, personal safety or health of the population and the stability of the country. That flexibility allowed the circumstances to be taken into account when incorporating the spirit and intent of a Convention into domestic legislation. A more rigid approach would unduly restrict member States. The original list of essential services in the Trade Disputes Act had been adopted approximately 25 years ago, and was amended in 2016 in response to new developments and the specific circumstances in the country.

The exclusion of prison officers from coverage under the Trade Disputes Act and the Trade Unions and Employers’ Organizations Act had also been cited as a contravention of the Convention. Prison officers in Botswana were classified as members of the disciplined forces and were the custodians of public safety and security. The constitutionality of that exclusion had been reaffirmed by the Court of Appeal. However, support staff or administrative staff were covered by the Trade Disputes Act and the Trade Unions and Employers’ Organizations Act.

In the spirit of discussion and consultation, the Employment Act and Trade Unions and Employers’ Organizations Act were being reviewed, which would address a number of the issues raised by the Committee of Experts. A request had been made to the ILO Decent Work Team for Eastern and Southern Africa in January 2017 for technical assistance in a number of areas, including labour law reform, with a focus on the Employment Act and the Trade Unions and Employers’ Organizations Act. The objectives of that review were: addressing the gaps in those Acts; making the legislation conducive to the undertaking of business; incorporating the various decisions of the Courts; and aligning the Acts with the international labour standards ratified. Several ILO missions had been undertaken in April 2017. There had been general consensus that some of the labour legislation was outdated and needed revision in order to align it with ILO Conventions, and to comply with the decisions of courts. It had therefore been agreed that the main focus of the reform would be the Employment Act and the Trade Unions and Employers’ Organizations Act, but the reform could be extended to include other Acts, to ensure consistency. Social dialogue and stakeholder engagement during the labour law reform process were considered central to its success. The Government was committed to aligning its labour laws with ILO Conventions. There had not yet been the opportunity for open discussion with the social partners on the labour laws, and the law reform and other consultation processes should be allowed to take their course. It was therefore necessary to wait for the outcome of these discussions.

The Employer members commended the Government for its ratification of all eight fundamental Conventions. Pursuant to certain provisions of the Trade Unions and Employers’ Organizations Act, the Trade Disputes Act and the Prison Act, members of the prison service were part of the disciplined forces, and were therefore prohibited from becoming members of a trade union. According to Article 9(1) of the Convention, only armed forces and the police could be exempted from the application of the Convention. The national courts believed that the prison service was functionally akin to the police or armed forces. In its observation, the Committee of Experts had initially appeared to agree with that assessment. However, it then concluded that the prison service was not akin to the police or the armed forces, and requested the Government to amend the law to grant the rights under the Convention to workers in the prison service. In that respect, the Committee of Experts’ recommendations appeared to be contradictory, and its conclusion, without an explanation of its reasoning, was confusing. Clarity in that respect was required in order to enable the Conference Committee to properly supervise the case. In addition, the right to associate did not automatically mean that the trade unions of prison staff would have a right to bargain collectively. It also did not mean that those workers would have the right to take industrial action, as the Committee of Experts had recognized that prison services were essential services where strikes could be prohibited. However, the difference between the right of association and representational rights was sometimes not well understood.

Section 46 of the Trade Disputes Act, as amended, defined essential services to include the Bank of Botswana, diamond sorting, cutting and selling services, operational and maintenance services of the railways, veterinary services in the public service, teaching services, government broadcasting services, immigration and customs services, and services necessary to the operation of any of these services. Pursuant to section 46(2) of the Trade Disputes Act, as amended, the Minister could declare any other service as essential if its interruption for at least seven days endangered the life, safety or health of all or part of the population or harmed the economy. In this respect, the Employer members disagreed with the conclusion of the Committee of Experts. With reference to the Joint Statement of the Workers’ and Employers’ groups at the 2015 Tripartite Meeting on the Convention in relation to the right to strike and the modalities and practices of strike action at national level, they considered that there was no basis for a discussion in the Committee on that point. Regulation at the national level was appropriate for those issues and the national regulation was deemed in conformity in a decision of the courts.

Section 48B(1) of the Trade Unions and Employers’ Organizations Act granted certain facilities only to unions representing at least one third of the employees in the enterprise. While the Committee of Experts had requested that this be amended, the difficulty with this provision was not clear. It would have therefore been more appropriate for the Committee of Experts to request information on the motivation underlying that section. Section 43 of the Trade Unions and Employers’ Organizations Act provided for inspection of accounts, books and documents of a trade union by the registrar at “any reasonable time”. The Employer members agreed with the Committee of Experts’ conclusion that “any reasonable time” was not appropriate and that inspection should be limited to an obligation to provide periodic reports.

The Committee of Experts’ direct request referred to the reform of employment legislation. The ILO was providing technical assistance in this respect. The Government had met with the social partners and there was general agreement on the need for a holistic review of the legislation, rather than of certain provisions of the Trade Unions and Employers’ Organizations Act, the Trade Disputes Act and the Prison Act. In this respect, the Government and the social partners should be given the time necessary to finish this holistic review and to amend the legislation in accordance with the Committee’s latest conclusions, and then to report back.

The Worker members emphasized that freedom of association, as enshrined in the Convention, was a fundamental right that was essential for the realization of all other rights. This right included, on the one hand, the right to associate with other workers to establish trade unions and, on the other hand, the right to take collective action. The Committee of Experts had reported violations of the Convention by the Government of Botswana on several occasions, for which reason it had been included in the list of individual cases and needed to provide detailed responses to the allegations. Acts of favouritism towards trade unions was one of the most insidious and dangerous violations of the Convention, as it led to division and contention within workers’ organizations. Moreover, the favouring of one organization to the detriment of others was an indirect violation of the right of workers to join organizations of their own choosing.

Regarding the need to amend the legislation to allow workers in the prison service to join a trade union, the Government considered that the prison services formed part of the disciplined forces and that they could therefore be excluded from the protection afforded by the Convention in the same way as the police and the armed forces. In this respect, the Worker members emphasized that the exception set out in Article 9 of the Convention for the armed forces and the police had to be interpreted restrictively, as indicated by the Committee of Experts in the 2012 General Survey on the fundamental Conventions. It was the nature of their work that meant that public servants in the prison administration were covered by the exception, not the fact that they were subject to special disciplinary regulations. Furthermore, the police, the armed forces and the prison service were governed by separate legislation.

Concerning the long list of essential services contained in the Trade Disputes Bill, to which the Committee of Experts had referred, the Workers emphasized that several services on the list could not be considered essential services, that is, those services whose interruption would endanger the life, personal safety or health of all or part of the population. Furthermore, the provision enabling the Minister to declare any other service essential if its interruption harmed the economy was arbitrary in nature and contrary to the Convention. This provision rendered the right to engage in collective action completely meaningless, as any action of a certain scope would inevitably have an impact on the national economy. The legislation must therefore be amended in order to limit the list of essential services.

Regarding the thresholds of representativity required for the granting of certain facilities to trade unions, the establishment of such thresholds was not in itself contrary to the Convention. However, this possibility was subject to conditions (the specific and objective nature of the criteria, or the distinction being limited to certain privileges). In this case, the legislation 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 or the representation of members in the event of a complaint, disciplinary measures or dismissal. These two elements were fundamental aspects of trade union activity. Without them, it would be almost impossible for a trade union to recruit members and to establish itself within an enterprise. Workers would therefore no longer be able to choose their trade union freely.

The Worker members referred to another legislative provision that was in violation of the Convention and would need to be amended, namely the provision authorizing the trade union registrar to inspect the books and documents of a trade union “at any reasonable time”. This measure constituted interference in the activities of organizations that was contrary to the Convention, as controls by the authorities should only be carried out in exceptional cases and according to strictly defined criteria. Organizations needed to benefit from the necessary autonomy and independence.

In 2005, the Committee of Experts had welcomed the efforts made by Botswana to ensure a more effective application of the Convention. It was to be hoped that there would be further progress in relation to the various points outlined above so as to ensure full respect for freedom of association.

The Worker member of Botswana expressed support for the Committee of Experts’ conclusion that prison staff were not members of the disciplined forces and were therefore being unjustly denied the right to organize and bargain collectively. No court ruling had held that prison staff belonged to the disciplined forces. The recent amendments to the Trade Disputes Act had significantly enlarged the definition of essential services. In April 2011, the public service unions had gone on strike and demanded a salary increase when no agreement had been reached through negotiation. In response, the Government had quickly introduced legislation seeking to categorize a number of services as essential, including the teaching services and the diamond cutting and polishing services. That legislation had subsequently been ruled unlawful by the judiciary. In 2016, despite the strong opposition of trade unions, amendments to the Trade Disputes Act had been adopted extending the list of essential services from 10 to 16 services, some of which did not fall under the definition of essential services in the strict sense of the term. Those amendments had opened the door for the classification of the whole economy as essential, in providing that all other services that were necessary for the operation of the services listed were also considered essential. Both workers directly involved in the services listed as essential and those working in supporting services were affected, including workers in the public, parastatal and private sectors. Moreover, the amended Act prohibited all workers in essential services from participating in a strike, which aimed to prevent the use of strikes as a bargaining tool. Those provisions had not been enacted pursuant to court rulings. Section 46(2) of the Trade Disputes Act as amended also authorized the Minister to declare more services essential after consulting the Labour Advisory Board if a strike lasted more than seven days. That was unacceptable, as consultation of the Labour Advisory Board had often been a formality. The industrial relations situation in the country was deteriorating, as evidenced by the newly proposed amendments to the Public Service Act, which would be presented before Parliament in July 2017. The proposed amendments sought to deprive public employees of the right to bargain. Section 72 of the proposed amendments provided that the Department of Public Service Management would be the secretariat of the Public Service Bargaining Council (PSBC), and that would enable the Government to take control of the Council. In addition, section 74(4) of the proposed amendments authorized the Minister to appoint the Chairperson and Vice-Chairperson of the Council without any consultations with, or agreement of, the trade unions. The proposed amendments would also allow salary increments to be granted without the Council’s approval. Those changes, if adopted, would render collective bargaining in the public service useless. He urged the Committee to call upon the Government to comply with its international obligations.

The Government member of Swaziland, speaking on behalf of the member States of the Southern African Development Community (SADC) acknowledged the efforts of the Government. ILO technical assistance had commenced with a view to achieving compliance with the Convention, and this assistance should continue. Meaningful and constructive social dialogue was encouraged among all the partners involved in ensuring full compliance with the Convention, taking into account the socio-economic situation of the country. The Government should be given the opportunity to continue the internal review process of the relevant national legislation in an effort to ensure full conformity with the Convention, and the necessary technical assistance should continue.

The Worker member of Zimbabwe stated that the Trade Unions and Employers’ Organizations Act violated labour rights. Sections 11 and 15 of the Act prohibited unregistered trade unions from conducting any operations. However, the Committee of Experts had previously recommended that the activities of unregistered unions should not be totally banned and that an opportunity should be provided to rectify the absence of formal registration, by virtue of Article 2 of the Convention. Moreover, section 27 of the Act required that trade unions and employers’ organizations conduct “a general meeting” by convening all members of the concerned organization, which was difficult to achieve in practice. Trade unions must have the right to regulate their own operations through their constitutions. Stipulating such conditions was inconsistent with the requirement of Article 3(1) and (2) of the Convention and amounted to interference. The Trade Unions and Employers’ Organizations Act also granted excessive authority to the registrar. Pursuant to section 43 of the Act, the registrar could interfere in the operations of a trade union by inspecting its books without cause. The Government had a duty to ensure transparency, but there were no guarantees of an impartial procedure by the competent judicial authorities. It was regrettable that those provisions, which interfered with the autonomy and financial independence of trade unions, had not been amended despite the repeated recommendations of the Committee of Experts. Consequently, the Government must be called upon to adhere to its international obligations.

The Government member of Malawi took note of the Government’s statement regarding the challenges surrounding the practical application of the Convention. She commended the Government’s efforts, particularly its request for ILO technical assistance with the labour law review, to address certain gaps with a view to guaranteeing the constitutional right to freedom of association. The ILO should provide the support necessary to fulfil the country’s obligations. She encouraged the Government to engage in meaningful consultation with the social partners and stakeholders to align the labour laws with ILO Conventions.

The Worker member of Norway, speaking on behalf of the trade unions of the Nordic countries, expressed disappointment that the new Trade Disputes Act limited the fundamental rights of many workers. Prison workers were prohibited from joining trade unions. Section 46 of the Trade Disputes Act as amended enumerated a broad list of essential services, and other services could be added at the Minister’s discretion. This affected approximately 20,000 workers and appeared to stifle trade union activities. Botswana’s tripartite Labour Advisory Board currently only advised the Minister. Instead of imposing restrictions, the Government should enhance dialogue with the social partners on the basis of trust and respect, and agree on a roadmap for cooperation. The right to organize for all workers was not antithetical to an agreement as to what constituted essential services. In conclusion, the Government should promote the development and use of collective bargaining mechanisms and laws in both the private and public sectors, and widen the scope of workers covered by effective collective bargaining agreements.

The Government member of France referred to the problems identified by the Committee of Experts regarding, on the one hand, obstacles to the free exercise of trade union activities, particularly the prohibition on prison staff joining trade unions and, on the other hand, the very broad definition of essential services, which excluded many workers from the exercise of the right to strike. Freedom of association and specific provisions permitting the full exercise of this right, through effective and balanced social dialogue or through protections and facilities granted to worker representatives, were essential. Moreover, the right to strike was an essential element of freedom of association and it was important to recall the importance of respect for that right in the context of the application of the Convention. He invited the Government to take into account the requests made by the Committee of Experts with respect to amending the legislation on labour disputes and the public service in order to enable workers whose duties could not reasonably be classed as essential services to freely exercise trade union activities.

An observer representing Education International (EI) noted with concern the inclusion not only of teachers but of support staff on the list of essential services in section 46 of the Trade Disputes Act, as amended. As outlined in the 2012 General Survey of the Committee of Experts, the restriction of the right to strike should only be limited to those services whose interruption would endanger life, personal safety or health, and teachers did not fall within that definition. During a lengthy strike, the possibility of establishing minimum services in consultation with the social partners made the inclusion of education on the list even less necessary. The core value of respect for teachers must be reflected in appropriate working conditions as well as in freely negotiated collective agreements, for which the ability to strike was fundamental. Unions had been given only three days to make written submissions on the draft amendments to the Public Service Act, without any face-to-face consultations. Nonetheless, the amendments had been gazetted and would be submitted to Parliament in July 2017.

An observer representing the International Transport Workers’ Federation (ITF) recalled that, as clearly enunciated by the Committee of Experts, the essential services enumerated in section 46 of the amended Trade Disputes Act did not constitute essential services in the strict sense of the term. Transport generally did not constitute an essential service. Other than air traffic control, the transport occupations listed in the Act, namely the operational and maintenance services of the railways and the transportation and distribution of petroleum products, did not constitute essential services. Furthermore, the broad classification of the services necessary to operate essential services as also being essential services would invariably capture the majority of transport operations in the economy. Harm to the economy caused by the interruption of a service was insufficient to consider it as an essential service and this would limit collective bargaining. For example, the majority of members of the ITF-affiliated rail union workers in the state railways operations, engineering, finance and IT departments, were all covered by the essential services provision. Moreover, the Government had failed to give compensatory guarantees for workers deprived of the right to strike. The Government had not even considered the introduction of a negotiated minimum service as a possible alternative to a total prohibition on strikes. The new essential service provisions made it more difficult for transport workers to take action in defence of their jobs, livelihoods and working conditions. Echoing the comments by the Government member of France, he recalled that the right to strike was a human right protected in international law, not only covered by the Convention, but also recognized now as customary international law. The Government was therefore urged to comply with the observations of the Committee of Experts in order to bring the amended Trade Disputes Act into conformity with the Convention.

The Worker member of South Africa, speaking on behalf of the Southern Africa Trade Union Co-ordination Council (SATUCC) and its affiliates in the SADC, recalled that the Trade Disputes Act and related legislation, such as the Public Service Bill and the Prison Act, subjected workers to a labour market system in which organizing and bargaining were viewed as contradictory to progress. Botswana illustrated a tendency to restrict workers’ rights in the race to diminish labour standards. Botswana had for some time been ambivalent regarding labour rights and the freedom to express contending views. There was a regional trend to erode gains made by workers and seemingly to test problematic legislation which restricted workers’ rights. When the Trade Disputes Act had been adopted, it essentially eliminated the right to strike and the means to bargain. The Committee should call on the Government to respect the unequivocal and unambiguous provisions of the Convention regarding the rights of workers to organize. Ratifying a Convention without adapting national law was in violation of international law.

An observer representing Public Services International (PSI) noted that the Government had started a wide-ranging process of revising the labour legislation in the country. Certain provisions of the new Public Service Bill were not fully in line with ILO principles on freedom of association and collective bargaining. Section 3(2)(c) of the Bill excluded some categories of workers from unionization. This included “members of staff” of the Directorate of Intelligence and Security. The term “members of staff” had a broad meaning, which would exclude support staff such as labourers and cleaners. Section 19(2) excluded, among others, persons who had been convicted of a criminal offence from joining the public service. The term “criminal offence” was also broad and it might prevent, for example, a person convicted of a speeding offence from joining the public service. Section 50 banned political expressions in the public service but was silent as to what constituted a political matter. According to ILO principles, workers should enjoy civil liberties and freedom of political expression. Section 61 removed the power of the PSBC to settle disputes or grievances of whatever form. Sections 72 and 74(4) of the Bill gave power to the Directorate of Public Service Management and the Minister to appoint the secretariat, Chairperson and Deputy Chairperson of the PSBC, respectively. The Constitution of the PSBC currently conferred that power to the Council itself. Section 74(3) provided that representatives of both the worker and employer shall be public officers. That restriction limited the ability of both parties to be represented by experienced negotiators of their choice and was contrary to Article 3 of the Convention. Section 75 gave the employer the power to unilaterally change terms and conditions of service without input from the PSBC, or even from workers. Finally, section 76(2) gave the employer the possibility of conferring benefits during ongoing negotiations, which short-circuited the bargaining process and might be contrary to the duty to bargain in good faith. The revision of the labour legislation in Botswana was a great opportunity for the Government and the social partners to adopt legislation in line with ILO Conventions. In that process, consultations with representative trade unions were of the utmost importance for constructive labour relations and to maintain the social peace. He requested that the Government keep working with the ILO and that there be a formal process of consultation with trade unions representing public sector workers.

The Government member of Zimbabwe expressed support for the statement delivered by the Government member. Consultations were ongoing with a view to aligning legislation with the ILO Conventions. The Committee should afford the tripartite partners an opportunity to undertake these consultations in earnest. The issues raised by the Committee of Experts provided a good platform through which the tripartite constituents in the country could continue to engage. Issues around labour law reform and social dialogue required the collaboration of the tripartite partners. The speaker encouraged the ILO to provide the necessary support in order to achieve the desired objectives.

The Government representative acknowledged the contributions to the discussion as helpful and indicated that some issues raised by members of the Committee had not been factual. For instance, all registered trade unions had the right to organize and no trade unions were favoured by the Government. All trade unions were subject to the labour laws and could have recourse to established trade dispute resolution mechanisms and the courts of law. He did not agree with the statement by the Worker member of Botswana that consultations in the Labour Advisory Board were superficial. Botswana had ratified 15 ILO Conventions as a result of the advice of the Board. He fully agreed with the position of the Employer members regarding the need for a holistic review of the labour laws. The Government also undertook to further engage with the social partners to clarify certain issues during the labour law reform process. The necessary time must be given for consultations to take place.

The Worker members reaffirmed that the inclusion of the case in the list of 24 individual cases, which was agreed by consensus, was fully justified. Violations had been clearly identified by the Committee of Experts since 2001, and it was to be hoped that the Government would make every effort to meet its international obligations. To that end, it must, inter alia: (i) refrain from any action that had the consequence of favouring one organization to the detriment of others; and (ii) amend its legislation to enable all workers in the prison administration to join a trade union and to limit the list of essential services. In that regard, it should be recalled that, in their Joint Statement of 2015, the Employer and Worker members had recognized the right to take collective action. The fact that the concept of essential services was being discussed meant that limits could be placed on that right, on the basis of the Joint Statement. Furthermore, the consequences of allowing a State to consider a service as essential if its interruption harmed the economy were twofold: it called into question the right of workers to take collective action and it contradicted the main objective of the Organization by subordinating the achievement of social justice to an economic imperative. In that regard, the statement by the Government member of France, to the effect that the right to strike constituted an essential element of freedom of association, was to be welcomed.

With regard to the privileges granted only to trade unions representing one third of employees in an enterprise, the Government should either review this limit or review the privileges granted to such unions. Those privileges prevented the development of trade union pluralism. Lastly, the Government should repeal the provision allowing the trade union registrar to inspect a union’s books and documents at “any reasonable time”. To give effect to these reforms, the Worker members called on the Government to avail itself of ILO technical assistance and to establish a workplan in collaboration with the social partners.

The Employer members stated that they were in agreement that the determination of the list was a consensual process. They reiterated that the Committee of Experts had been correct to indicate that the legislative provision providing for the inspection of accounts, books and documents of a trade union by the registrar at “any reasonable time” should require no more than periodic reporting. Disagreement existed on the issue of essential services and on the right of those services to take industrial action. Disagreement existed with respect to the existence of the right to strike under the Convention. In that respect, the Government group statement of the 2015 Tripartite Meeting on the Convention in relation to the right to strike and the modalities and practices of strike action at national level had stated that the scope and conditions of the right to strike were regulated at the national level. That also applied to essential services. Noting the reference to the 2012 General Survey of the Committee of Experts, the Employer members stated that the contents of the General Survey had led to difficulties in the Committee’s functioning for several years.

The Employer members indicated that the provision of technical assistance should continue. The holistic review of the legislation should also continue, particularly in light of the numerous pieces of legislation mentioned by various members of the Committee. The Government should then report back as to the outcome of the holistic review and the changes made.

Conclusions

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

Taking into account the discussion, the Committee called upon the Government of Botswana to:

- take appropriate measures that ensure that the labour and employment legislation grants members of the prison service the rights guaranteed by the Convention;

- ensure that the Trade Disputes Act is in full conformity with Convention No. 87, and engage in social dialogue, with the further technical assistance of the ILO;

- amend the Trade Unions and Employers Organisations Act, in consultation with employers’ and workers’ organizations, to bring these laws into conformity with the Convention.

The Committee called upon the Government of Botswana to develop a time-bound action plan together with the social partners in order to implement these conclusions. 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 2017.