Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Lesotho (RATIFICATION: 1966)

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Civil liberties. The Committee previously requested the Government to provide its detailed reply to allegations by the International Trade Union Confederation (ITUC) that the Secretary General and Acting President of the Lesotho Correctional Service Staff Association was suspended and subsequently dismissed in 2016 for commenting publicly on a Correctional Service Bill, which regulated offences and punishment for the correctional service staff. The Committee takes note of the Government’s indication that the Secretary General of the above-mentioned association was interdicted in January 2016 for airing issues that were still being addressed internally and affected the security of the State, without the authorization of the institution. The Government further informs that the Secretary General already had a case of insubordination against him at the moment of the interdiction, which led to his dismissal. On the other hand, the Committee observes that the ITUC observations indicated that the grounds for dismissing the Secretary General were entirely related to the interventions he had made as a trade union leader with respect to the Correctional Service Bill. In this vein, the Committee recalls that the right to express opinions without previous authorization through the press is one of the essential elements of the rights of occupational organizations. The Committee requests the Government to review its course of conduct in light of the foregoing and to reverse any measure, including dismissal, that may have been imposed on the Secretary General and Acting President of the Lesotho Correctional Service Staff Association in which his exercise of freedom of expression in the context of his trade union activities was a factor.

Article 3 of the Convention. Public Service Act. Restrictions on the exercise of the right to strike and compensatory guarantees. In its previous comments, the Committee requested the Government to take measures to amend section 19 of the Public Service Act to ensure that public servants other than those exercising authority in the name of the State were able to exercise the right to strike and that adequate compensatory guarantees existed for workers who were deprived of the right to strike. It further requested the Government to provide information on measures taken in that respect, including any awareness-raising activities carried out on the issue. The Committee notes that the Government reports that numerous meetings in the fiscal year 2018-19 have taken place between the Ministry of Labour and Employment and the Ministry of Public Service to assist the latter in appreciating its role as an employer as opposed to being the regulator or an executive arm of the Government. The Committee further notes that the Government indicates that it will provide a copy of the Public Service Act as soon as the law has been amended. The Committee expects that section 19 of the Public Service Act will be modified shortly to ensure that the prohibition of the right to strike in the public service is limited to public servants exercising authority in the name of the State and that adequate compensatory guarantees are provided to workers who are deprived of the right to strike. The Committee requests the Government to inform on any developments in this respect.

Protest action. The Committee previously requested the Government to provide its detailed comments on allegations by the ITUC that public servants and workers in the Lesotho Correctional Service were prohibited by the Ministry of Public Service from participating in a stay-away action and protest march organized in May 2016 by a number of non-state actors, trade unions and businesses represented by the Lesotho Chamber of Commerce and Industry. The Committee notes the Government’s indication that the Guidelines on Grievance Procedure in the Department for Staff, which became a Standing Order after being adopted through the Corrections Internal Circular No. 58 of 2012, provide a procedure to follow when there is a complaint in relation to major social and economic policy trends which have a direct impact on the staff, and further notes that the procedure set forth in the Guidelines calls for informal resolutions or formal hearings within a department. The Government also notes that the legislative base for these guidelines is the Prison Proclamation No. 30 of 1957. On the other hand, the Committee recalls that the ITUC alleged that the above-mentioned prohibition was broadly applicable to all civil servants and observes that the Government does not provide any comments in this respect. While acknowledging that civil servants exercising authority in the name of the State may have their right to strike restricted, the Committee considers that trade unions responsible for defending socio-economic and occupational interests should be able to use strike action or protest action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members (see the 2012 General Survey on the fundamental Conventions, paragraph 124). In light of the foregoing, the Committee requests the Government to indicate whether public servants may, with the only possible exception of those exercising authority in the name of the State, participate in strike actions. It further requests the Government to specify whether public servants, including workers in the Lesotho Correctional Service, are allowed to otherwise participate in protest actions to defend their occupational and economic interests.

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Article 3 of the Convention. Right of workers’ and employers’ organizations to organize their activities and formulate their programmes. In its previous observations, the Committee had noted that section 198F of the Labour Code grants specific advantages (access to premises to meet representatives of the employer, to recruit members, to hold a meeting of members and to perform any trade union functions in terms of a collective agreement) to trade unions representing more than 35 per cent of employees, and that section 198G(1) of the Labour Code provides that only members of registered trade unions representing more than 35 per cent of the employees in enterprises employing 10 or more employees were entitled to elect workplace union representatives. The Committee requested the Government to take measures, including in the context of the ongoing labour law reform, to ensure that the distinction between most representative and minority unions does not result, in law or in practice, in granting privileges that would unduly influence workers’ free choice of organization. The Committee notes that the Government indicates that in the draft revised Labour Code, which has not been tabled before the Parliament, the distinction between the most representative and the minority unions will not unduly influence the workers' choice of organization, as bargaining rights are granted to both majority and minority trade unions. The Committee once again recalls that the distinction between most representative and minority unions should be limited to the recognition of certain preferential rights (for example, for such purposes as collective bargaining, consultation by the authorities or the designation of delegates to international organizations). The Committee encourages the Government to also include in the revision of the Labour Code the consideration of measures to amend sections 198F and 198G(1) to ensure that workers’ free choice of organization is not unduly influenced by the privileges granted by these provisions, and to send a copy of the revised Labour Code once adopted.

Articles 2, 3 and 5. Public officers’ associations. The Committee had previously noted that section 14(1)(b), (c) and (d) of the Societies Act required registered societies to supply to the Registrar-General, upon his or her order at any time, a list of office bearers and members of the society, the number and place of meetings held within the preceding six months, and such accounts, returns and other information as he or she thinks fit. It requested the Government to pursue its efforts to amend the Public Service Act to ensure that organizations of public officers were not subject to the obligations outlined in section 14(1)(b), (c) and (d) of the Societies Act, and that their supervision was limited to the obligation of submitting periodic financial reports or where there were serious grounds for believing that the actions of an organization were contrary to its rules or the law. The Committee further expressed its firm hope that the Government would take the necessary measures to ensure that public officers were able to establish and join federations and confederations, and affiliate with international organizations. The Committee notes that the Government indicates that: (i) the Ministry of Public Service is still awaiting Cabinet approval for the review of the Public Service Act; (ii) the draft revised Labour Code has abolished the divided system of labour law and will apply to all sectors of the economy, including the public service; (iii) a Labour Policy which underlines the application of international labour standards to all workers across sectors, including public servants, has been approved; and (iv) the Ministry had requested technical assistance from the ILO but the workshops that were scheduled were suspended because of the COVID-19 pandemic and the nationwide lockdowns. The Committee expects that the review of the Public Service Act will be conducted in the near future and will ensure that organizations of public officers are exempted from the application of section 14(1)(b), (c) and (d) of the Societies Act and that their supervision is limited to the obligation of submitting periodic financial reports or where there are serious grounds for believing that the actions of an organization were contrary to its rules or the law. The Committee also requests the Government to provide information on the specific measures taken, within the framework of the labour law reform, to ensure that public officers are allowed to establish and join federations and confederations, and affiliate with international organizations, in accordance with Article 5 of the Convention.

The Committee is raising other matters in a request addressed directly to the Government.

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The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2017 which refer to the matters dealt with by the Committee below.

Civil liberties. The Committee notes the observations of the ITUC alleging that the secretary general and acting president of the correctional service staff association was suspended and subsequently dismissed in 2016 for commenting publicly on a Correctional Service Bill, which regulated offences and punishment for the correctional service staff. The Committee recalls that the freedom of opinion and expression and, in particular, the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers, constitute civil liberties which are essential for the normal exercise of trade union rights. The Committee requests the Government to provide its detailed reply to the allegations set out above.

Article 3 of the Convention. Public Services Act. Restrictions on the exercise of the right to strike and compensatory guarantees. In its previous comments, the Committee requested the Government to amend section 19 of the Public Services Act (2005) so as to ensure that the prohibition of the right to strike in the public service is limited to public servants exercising authority in the name of the State, and to ensure adequate compensatory guarantees for those workers deprived of the right to strike. The Committee notes the Government’s indication that the Ministry of Labour and Employment intends to request technical assistance from the ILO to sensitize political leaders on the provisions of the Convention and to bring clarity on the notion of strikes as a lack of understanding of this issue appears to be an obstacle. Noting the Government’s indication that amendments to the Public Services Act are under consideration, the Committee requests the Government to take measures to amend section 19 of the Act to ensure that public servants other than those exercising authority in the name of the State are able to exercise the right to strike and that adequate compensatory guarantees exist for workers who are deprived of the right to strike. It requests the Government to provide information on measures taken in that respect, including any awareness-raising activities carried out on the issue.

Protest action. The Committee notes the observations of the ITUC alleging that public servants and workers in the correctional service were prohibited by the Ministry of Public Service from participating in a stay-away action and protest march organized in May 2016 by a number of non-state actors, trade unions and businesses represented by the Lesotho Chamber of Commerce and Industry. Recalling that, in its 2012 General Survey on the fundamental Conventions, the Committee indicated that trade unions responsible for defending socio-economic and occupational interests should be able to use protest action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members (paragraph 124), the Committee requests the Government to provide its detailed comments on these allegations.

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Article 3 of the Convention. Right of workers’ and employers’ organizations to organize their activities and formulate their programmes. The Committee had previously noted that section 198F of the Labour Code grants specific advantages to trade unions representing more than 35 per cent of employees, and that section 198G(1) of the Labour Code provides that only members of registered trade unions representing more than 35 per cent of the employees in enterprises employing ten or more employees were entitled to elect workplace union representatives. The Government had indicated that the issue would be examined by the National Advisory Committee on Labour which was working on a reform of the labour legislation. The Committee had trusted that the Government would ensure, through the reform of the labour legislation, that the distinction between most representative and minority unions did not result in granting privileges that would unduly influence workers’ free choice of organization. The Committee regrets that no information has been provided by the Government in its report in this respect and recalls that workers’ freedom of choice may be jeopardized if the distinction between most representative and minority unions results, in law or in practice, in granting privileges such as to influence unduly the choice of organization by workers. The Committee further recalls that the distinction should be limited to the recognition of certain preferential rights (for example, for such purposes as collective bargaining, consultation by the authorities or the designation of delegates to international organizations). The Committee requests the Government to take measures, including in the context of the ongoing labour law reform, to ensure that the distinction between most representative and minority unions does not result, in law or in practice, in granting privileges that would unduly influence workers’ free choice of organization. It requests the Government to provide information on all progress made in this respect.

Articles 2, 3 and 5. Public officers’ associations. In its previous comments, the Committee had requested the Government to indicate if public officers’ associations were subject to the obligations requiring a registered society to supply to the Registrar-General, upon his or her order at any time, a list of office bearers and members of the society, the number and place of meetings held within the preceding six months, and such accounts, returns and other information as he or she thinks fit (section 14(1)(b), (c) and (d) of the Societies Act), or whether they fall within the exception of section 14(2) of the Societies Act (which provides that the Registrar-General shall not order a political association to furnish its minutes, information on its meetings, accounts, correspondence or lists of its members, except to the extent that is necessary to ascertain the constitution, rules and office bearers of that association). In addition, the Committee expressed the hope that measures would be taken to ensure that public officers under the Public Service Act were able to establish and join federations and confederations, and affiliate with international organizations.

The Committee notes the Government’s indication that public officers’ associations are not exempted under section 14(2) of the Societies Act. However, the Committee also notes the Government’s indication that, in the context of discussions between the Ministry of Labour and Employment and the Ministry of Public Service concerning possible legislative amendments, the Ministry of Public Service’s Strategic Plan for 2016–19 has been endorsed by the Cabinet. It notes with interest that the Strategic Plan includes amending the Public Service Act to accommodate trade unionism, under priority 6 concerning the enhancement of public officers’ welfare, with a projected time frame of April to July 2017 for start and completion dates. It further notes the Government’s indication that the Ministry of Labour and Employment has successfully developed a draft Labour Policy, which will be tabled in the Cabinet. The draft Policy underlines the application of international labour standards to all workers across sectors, including public servants, and the Government indicates that accordingly, the rights under the Convention will be enjoyed by public servants. The Committee welcomes this explanation and requests the Government to pursue its efforts to amend the Public Service Act to ensure organizations of public officers are not subject to the obligations outlined in section 14(1)(b), (c) and (d) of the Societies Act, and that their supervision is limited to the obligation of submitting periodic financial reports or where there are serious grounds for believing that the actions of an organization are contrary to its rules or the law. It further firmly hopes that the Government will take the necessary measures to ensure that public officers are able to establish and join federations and confederations, and affiliate with international organizations. It requests the Government to provide information on developments in this regard, including any legislation adopted in this respect.

The Committee reminds the Government that it may avail itself of the technical assistance of the Office in this regard.

The Committee is raising other matters in a request addressed directly to the Government.

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Article 2 of the Convention. Public officers’ associations. In its previous comments, the Committee requested the Government to indicate if public officers’ associations were subject to the obligations requiring a registered society to supply to the Registrar-General, upon his order at any time, a list of office-bearers and members of the society, the number and place of meetings held within the preceding six months, and such accounts, returns and other information as he thinks fit (section 14(b), (c) and (d) of the Societies Act), or whether they fall within the exception in section 14(2) of the Societies Act. The Committee notes that the Government has not replied in this regard. The Committee once again requests the Government to provide information in relation to the obligations imposed on public officers’ associations under the Societies Act.

Article 3. Public Services Act. Restrictions on the exercise of activities and compensatory guarantees. In its previous comments, the Committee had requested the Government to amend section 19 of the Public Services Act (2005) so as to ensure that the prohibition of the right to strike in the public service is limited to public servants exercising authority in the name of the State; and to ensure adequate compensatory guarantees for those workers deprived of the right to strike. The Committee notes that the Government indicates that discussions between the Ministry of Labour and Employment and the Ministry of Public Service concerning possible legislative amendment, put on hold by political unrest, are expected to recommence soon. The Committee firmly hopes that the Government will be in a position to report on concrete steps taken in order to ensure that public servants other than those exercising authority in the name of the State are able to exercise the right to strike and that adequate compensatory guarantees exist for workers who are deprived of the right to strike.

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The Committee notes the observations made by the International Organisation of Employers (IOE) in a communication received on 1 September 2014.

Article 3 of the Convention. Right of workers’ and employers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee referred to section 198F of the Labour Code which grants specific advantages to trade unions representing more than 35 per cent of employees, and to section 198G(1) of the Labour Code that provides that only members of registered trade unions representing more than 35 per cent of the employees of enterprises employing ten or more employees were entitled to elect workplace union representatives. The Committee notes the Government’s indication that, following the Parliamentary Counsel’s advice that existing labour legislation and proposed amendments (in particular the 2006 Draft Amendment Bill) should be consolidated into one piece of legislation, ILO technical assistance has supported the appointment of an independent consultant and a task team under the National Advisory Committee on Labour (NACOLA) has been established to drive the review process. The Committee trusts that the Government will ensure, through the forthcoming reform of the labour legislation, that the distinction between most representative and minority unions does not result, in law or in practice, in granting privileges that would unduly influence workers’ free choice of organization.

Article 5. Public service. Right to form federations and confederations. In its previous comments, the Committee had requested the Government to ensure that public officers’ associations established under the Public Services Act were guaranteed the right to establish federations and confederations and affiliate with international organizations. Noting that the Government has not replied specifically to this point and, in the context of discussions between the Ministry of Labour and Employment and the Ministry of Public Service concerning possible legislative amendment, the Committee firmly hopes that the Government will take the necessary measures to ensure that public officers are able to establish and join federations and confederations and affiliate with international organizations.

The Committee is raising other matters in a request addressed directly to the Government.

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In its previous direct request, the Committee had requested the Government to indicate the manner in which public officers’ associations may become registered and how the Societies Act protects the right of public officers to form associations for the purpose of collective bargaining. The Committee notes that the Government indicates in its report that under section 22 of the Public Services Act, public officers may form a public officers’ association under the provisions of the Societies Act 1966 and that once registered, the association shall have the right to engage in collective bargaining, if it meets the requirements of section 22(2) of the Public Services Act. The Committee notes that under section 2 of the Societies Act, a “society” includes any association of ten or more persons, whatever its nature or object.

Moreover, the Committee notes that the Registrar-General may, at any time, by notice under his hand, order a registered society to supply to him, in writing, under section 14(b) of the Societies Act, a true and complete list of office-bearers and of the members of the society distinguishing (if so ordered) those residing in Lesotho or present there at the date of the order; under section 14(c) a true and complete return of the number and place of meetings of the society held within the period of six months immediately preceding the order; and under section 14(d) such accounts, returns and other information as he thinks may fit. The Committee recalls that the supervision of trade union accounts should be limited to the obligation of submitting periodic financial reports or where there are serious grounds for believing that the actions of an organization are contrary to its rules or the law. Similarly, there is no violation of the Convention if such verification is limited to exceptional cases, for example, in order to investigate a complaint, or if there have been allegations of embezzlement. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 125). The Committee requests the Government to indicate if public officers’ associations are subject to the obligations indicated in section 14(b)(c)(d) of the Societies Act or if they fall under the exception of section 14(2) of the Societies Act.

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Article 3 of the Convention. In its previous comments, the Committee referred to section 198F of the Labour Code which expressly grants specific advantages (access to premises to meet representatives of the employer, to recruit members, to hold a meeting of members and to perform any trade union functions in terms of a collective agreement) only to an authorized officer or official of a trade union that represents more than 35 per cent of the employees, as well as to section 198G(1) of the Labour Code that specifies that only the members of a registered trade union, which represented more than 35 per cent of the employees, of an employer that employed ten or more employees, were entitled to elect workplace union representatives. The Committee had recalled that the workers’ freedom of choice may be jeopardized if the distinction between most representative and minority unions results, in law or in practice, in granting privileges such as to influence unduly the choice of organization by workers (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 98). The Committee had requested the Government to indicate the manner in which sections 198F and 198G(1) influence the workers’ choice of their trade union organization, as well as their right to elect their representatives. The Committee notes that the Government indicates in its report that these issues will once again be brought to the attention of the National Advisory Committee on Labour which is currently closely examining the revised Labour Code. In these circumstances, the Committee requests the Government to indicate, in its next report, the progress made with respect to the abovementioned issue.

Labour Code (essential services). In its previous observation, the Committee requested the Government to transmit a copy of the legislation setting out the essential services. In this respect, the Committee notes that the Government has transmitted the Schedule of the Labour Code (Essential Services) Regulations 1997 which provides that the following services should be regarded as essential for the purposes of the Labour Code: health services, hospital services, electricity services, water supply services, sanitary services, telecommunications services, air traffic control services, fire prevention and extinguishing services, transport services necessary to the operation of any of the services abovementioned. Furthermore, the Committee takes due note that the Government indicates that the law provides for alternative compensatory machinery in the form of arbitration meant for speedy resolution of disputes in the essential services.

Public Services Act. Restrictions on the exercise of activities. In its previous comments, the Committee had requested the Government to amend section 19 of the Public Services Act (2005) so as to ensure that the prohibition of the right to strike in the public service is limited to public servants exercising authority in the name of the State. The Committee notes that the Government indicates that the Ministry of Public Service has been engaged in some discussions regarding the comments made by the Committee, and while no amendments have been put in place yet, the Ministry of Public Service is of the opinion that there is need for more discussion and training within the public service for employees and employers to understand the content and consequences of the right to strike. The Committee therefore requests the Government to indicate, in its next report, the progress made with respect to the abovementioned issue and it hopes that the Government will make every effort to take the necessary action in the very near future.

Compensatory guarantees. With respect to the public servants who may be deprived of the right to strike under the Public Services Act, taking into account the comments mentioned in the preceding paragraph, the Committee had also requested the Government to establish compensatory guarantees, such as arbitration machinery for those workers who may be deprived of the right to strike. The Committee notes that the Government indicates in its report that in terms of compensatory guarantees section 18 of the Public Services Act provides for arbitration to resolve disputes, while the arbitration is only binding in cases where the dispute arises from an essential service. The Government has indicated that in other disputes parties have to agree to their dispute being referred to arbitration. Section 17 of the Public Services Act provides for conciliation of disputes of interest but the decision shall not be binding on the parties; however, under the Code of Good Practice 2008, an unresolved dispute of interest shall be referred to arbitration or tribunal for final determination. The Government realizes that these sections contain limitations and therefore the Ministry of Public Services is looking into it for possible amendments to the law. The Committee therefore requests the Government to provide information on any development in this regard.

The right to form federations and confederations. Finally, the Committee had requested the Government to ensure that public officers’ associations established under the Public Services Act are guaranteed the right to establish federations and confederations and affiliate with international organizations. The Committee takes note of the Government’s indication that according to the Ministry of Labour, due to the nature of the service provided by the state public officers, their associations cannot affiliate with trade union federations and confederations. The Committee recalls that a provision of national law prohibiting organizations of public officials from adhering to federations or confederations is difficult to reconcile with Article 5 of the Convention. The Committee therefore requests the Government to take the necessary measures to ensure the respect of the abovementioned principle and to provide information in its next report on the measures adopted in this regard.

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In its previous direct request, the Committee asked the Government to indicate the manner in which public officers’ associations may become registered. In this regard, the Committee had noted that section 22 of the Public Services Act (2005), regarding the right of public officers to establish associations for the purpose of collective bargaining, is regulated under the provisions of the Societies Act (1966). However, after inspecting the Societies Act, the Committee found no mention of any provision regarding public officers’ right to form their own organizations. The Committee notes that the Government’s report contains no reply to its request. The Committee therefore once again requests the Government to provide any information as to how the Societies Act protects the right of public officers to form associations for the purpose of collective bargaining and, if it does not, to amend the Public Services Act so as to ensure that public servants, officials and workers in nationalized industries enjoy the right of freedom of association.

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The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) dated 29 August 2008 concerning issues already raised by the Committee.

Article 3 of the Convention. The Committee recalls that its previous comments concerned sections 198F and 198G(1) of the Labour Code as introduced in the draft Amendment Bill (2006). In particular, the Committee had noted that section 198F provided access to the enterprise (in order to communicate with management, recruit members or perform other trade union functions) only to an authorized officer or official of a trade union which represented more than 35 per cent of the employees. The Committee had expressed its concern at practical effect that such a provision may have on the choice of workers of their trade union. The Committee notes the Government’s explanation to the effect that the issue of access to the enterprise is guaranteed by section 198 of the Labour Code which provides for “reasonable facilities for conferring” and which will not be amended. The Government adds that the purpose of new section 198F is to conclude a written collective agreement regulating the issues of access which is mandatory in certain circumstances. The Committee notes that while section 198 imposes, in general terms, an obligation on employers to provide to trade union officers reasonable facilities, section 198F expressly grants specific advantages (access to premises to meet representatives of the employer, to recruit members, to hold a meeting of members and to perform any trade union functions in terms of a collective agreement) only to an authorized officer or official of a trade union that represents more than 35 per cent of the employees.

In addition, the Committee had previously noted that section 198G(1) specified that only the members of a registered trade union, which represented more than 35 per cent of the employees of an employer that employed ten or more employees, were entitled to elect workplace union representatives. The Committee had therefore requested the Government to amend section 198G(1) so as to allow all workers to either participate as candidates or voters in the election of workplace representatives. The Committee notes the Government’s argument that the purpose of framing organizational rights is to require the employer, once the representativity threshold is met, to recognize these representatives. The Government is of the opinion that it would be inconsistent with the Convention to compel trade unions to allow non-members to vote in the election of trade union representatives.

The Committee considers that the workers’ freedom of choice may be jeopardized if the distinction between most representative and minority unions results, in law or in practice, in granting privileges such as to influence unduly the choice of organization by workers (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 98). The Committee reiterates its previous comments and requests the Government to indicate the manner in which the above provisions influence the workers’ choice of their trade union organization, as well as their right to elect their representatives.

The Committee had previously noted that section 51 of the draft Amendment Bill (amending section 232(5) of the Labour Code) provides that any strike in pursuance of a trade dispute that threatens the continuance of any essential service shall be unprotected. It further noted that under section 51 a strike that had commenced could be deemed to be unprotected retroactively, in cases where the Labour Commissioner or the Labour Court find that the strike concerned an essential service; as a consequence, workers could be dismissed or incur liability in tort not only for participating in an unprotected strike, but also for any conduct in contemplation or furtherance of an unprotected strike (new section 231 of the Labour Code introduced by section 50 of the draft Amendment Bill). The Committee had therefore requested the Government to consider amending or supplementing the law by adding a list of specific services which are considered to be essential – i.e. services, the interruption of which might endanger the life, personal safety or health of the whole or part of the population – or, in the alternative, to amend section 232(5) so that a strike becomes unprotected only if it continues after the Labour Court has decided that it concerns an essential service. The Committee notes that the Government refers to legislation which lists those services deemed to be essential. Noting, however, that it has not been attached, the Committee requests the Government to transmit a copy of the legislation setting out essential services in its next report.

Finally, the Committee recalls that its previous comments concerned the Public Services Act, 2005. It notes that according to the Government, the Committee’s comments on this law have been brought to the attention of the National Advisory Committee on Labour (NACOLA), and that NACOLA had in turn requested that these matters be referred to the Ministry of Public Service. Noting this information, the Committee expresses the hope that the Government will soon be in a position to provide full information on the measures taken:

–      to amend section 19 of the Public Services Act (2005) so as to ensure that the prohibition of the right to strike in the public service is limited to public servants exercising authority in the name of the State;

–      to establish compensatory guarantees, such as arbitration machinery for those workers who may be deprived of the right to strike; and

–      to ensure that public officers’ associations established under the Public Services Act are guaranteed the right to establish federations and confederations and affiliate with international organizations.

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In its previous direct request, the Committee asked the Government to indicate the manner in which public officers’ associations may become registered. In this respect, the Committee notes that section 22 of the Public Services Act, 2005, regarding public officers’ right to form a public officers’ association for the purpose of collective bargaining and ethical conduct of its members, falls under the provisions of the Societies Act of 1966. After inspecting the Societies Act of 1966, specifically the registration of societies under Part I of the Act, the Committee finds no mention of any provision regarding public officers’ right to form their own organizations. Consequently, the Committee requests the Government to provide any information as to how the Societies Act of 1966 protects the right of public officers to form associations for the purpose of collective bargaining and, if it does not, to amend the Public Services Act of 2005 so as to ensure that public servants, officials and workers in nationalized industries enjoy the right of freedom of association.

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The Committee notes the information provided in the Government’s report. The Committee also notes the Draft Amendment Bill (2006) to the Labour Code Order, 1992. Furthermore, the Committee notes that the International Confederation of Free Trade Unions (ICFTU) submitted comments on the application of the Convention in a communication dated 10 August 2006. In a general way, the ICFTU refers to some matters that the Committee has already raised and to difficulties in the procedure to call a strike.

Article 3 of the Convention. The Committee notes that section 198F of the new Draft Amendment Bill (2006) provides access to the enterprise (in order to communicate with management, recruit members or perform other trade union functions) only to an authorized officer or official of a trade union that represents more than 35 per cent of the employees. The Committee recalls that the right of trade union officers to have access to places of work and to communicate with management is a basic tenet of freedom of association that should be open to all trade unions, in particular, so that trade unions can communicate with workers in order to apprise them of the potential advantages of unionization (see General Survey on freedom of association and collective bargaining, 1994, paragraph 128). The Committee considers that the workers’ freedom of choice would be jeopardized if the distinction between the most representative and minority unions results, in law or in practice, in granting privileges such as to influence unduly the choice of organization by workers (see General Survey, op. cit., paragraph 98). The Committee therefore requests the Government to indicate whether it has considered the practical effect that such a provision may have on the choice of workers of their trade union and to keep it informed in this respect.

The Committee further notes that section 198G(1) of the Labour Code (introduced by section 41 of the Draft Amendment Bill) provides that the members of a registered trade union, which represents more than 35 per cent of the employees of an employer that employs ten or more employees, are entitled to elect union representatives. It appears therefore that the members of minority trade unions cannot vote and run for election as workplace representatives. The Committee considers that an advantage, such as the right to participate either as candidates or voters in the election of workplace representatives accorded to the union by reason of the extent of its representativeness, is of a nature to influence unduly the choice of the workers in respect of the organization to which they wish to belong. Therefore, the Committee requests the Government to amend section 198G(1) so as to allow all workers to participate either as candidates or voters in the election of workplace representatives.

The Committee also notes that section 51 of the Draft Amendment Bill (amending section 232(5) of the Labour Code) provides that any strike in pursuance of a trade dispute that threatens the continuance of any essential service shall be unprotected. Because this new text seems to indicate that a strike may be considered as unprotected retroactively, from the moment it started, in cases where the Labour Commissioner of Labour Court find that the strike concerned an essential service, the effect is to place the burden upon the workers to decide whether a strike would fall within the scope of an essential service or not, before this issue is decided by the Labour Commissioner or the Labour Court. This is particularly important in light of the fact that workers may be dismissed or incur liability in tort not only for participating in an unprotected strike but also for any conduct in contemplation or furtherance of an unprotected strike (new section 231 of the Labour Code introduced by section 50 of the Draft Amendment Bill). Thus, in order to ensure predictability and security of law as to whether a particular service is essential or not, the Committee requests the Government to consider amending or supplementing the law by adding a list of specific services which are considered to be essential, i.e. services, the interruption of which might endanger the life, personal safety or health of the whole or part of the population (see General Survey, op. cit., paragraph 159). Alternatively, section 232(5) should provide that a strike becomes unprotected only if it continues after the Labour Court has decided that it concerns an essential service.

The Committee recalls that it had previously noted with concern section 19 of the Public Services Act, 2005, according to which public officers were prohibited from engaging in strikes and requested information detailing the precise categories of workers restricted in their right to strike under this Act. The Committee notes the Government’s indication that the restriction on the right to strike applies to all workers in the public service. The Committee further notes the Government’s statements indicating that teaching staff employed in private schools and certain other learning institutions such as the National University of Lesotho and the Lerotholi Polytechnic are excluded from these restrictions. In these circumstances, the Committee once more emphasizes that the prohibition of the right to strike in the public service can only be limited to public servants exercising authority in the name of the State (see General Survey, op. cit., paragraph 158). Therefore, the Committee again requests the Government to take the necessary measures in order to amend section 19 of the Public Services Act, 2005, so as to bring it into conformity with the Convention.

The Committee further recalls that its previous comments concerned the need to establish compensatory guarantees for those groups of public servants for which the prohibition of the right to strike would be justified. The Committee notes that the Government makes general reference to the language of the legislation and, more specifically, to sections 17-20 of the Act. The Committee once again points out that section 17 only provides for non-binding conciliation and recalls that workers who may be deprived of the right to strike as a means “of defending their socio-economic and occupational interests should be afforded compensatory guarantees, for example conciliation and mediation procedures leading, in every deadlock, to arbitration machinery seen to be reliable by the parties concerned. It is essential that workers be able to participate in determining and implementing the procedure, which should furthermore provide sufficient guarantees of impartiality and rapidity; arbitration awards should be binding on both parties and, once issued, should be implemented rapidly and completely” (see General Survey, 1994, op. cit., paragraph 164). Therefore, the Committee once again requests that the Government take the necessary measures to establish compensatory guarantees, in particular arbitration machinery for those workers who may be deprived of the right to strike, and keep it informed as to its progress in this regard.

Articles 5 and 6. The Committee previously requested the Government to ensure that public officers’ associations established under the Act are guaranteed the right to establish federations and confederations and affiliate with international organizations. As no information was provided by the Government in this respect, the Committee reiterates its previous request.

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The Committee notes the Government’s report together with the adoption of the Public Service Act, 2005.

Pursuant to its previous comments, the Committee notes that the definition of collective bargaining in the Act refers to a process of negotiations entered into between a “registered public officers’ association” and the employer in respect of any matter of mutual interest, with the purpose of reaching a collective bargaining agreement. Therefore, the Committee once again asks the Government to indicate the manner in which public officers’ associations may become registered.

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The Committee notes the Government’s report, as well as the comments made by the Congress of Lesotho Trade Unions. It further notes the adoption of the Public Service Act, 2005.

Trade union rights and civil liberties. Rights of assembly and demonstration. The Committee notes the comments from the Congress of Lesotho Trade Unions according to which the Lesotho Police denied workers permission to celebrate May Day by holding a parade, on the grounds that the celebrations coincided with local government elections. Recalling that the right to organize public meetings and processions, particularly on the occasion of May Day, constitutes an important aspect of trade union rights, the Committee trusts that the Government will make every endeavour in the future to refrain from any interference that would restrict the rights of assembly and demonstration of workers or impede its exercise.

Article 3 of the Convention. The Committee notes that section 19 of the Public Service Act, 2005, prohibits public officers from engaging in strikes. The Committee recalls that a prohibition on the right to strike in the public service should be limited to public servants exercising authority in the name of the State. The Committee asks the Government, therefore, to provide detailed information as to the precise categories of workers restricted in their right to strike under the Act and the manner in which all other state employees, such as teaching staff or employees in state institutions, are guaranteed the right to undertake industrial action, without being subject to disciplinary or other sanctions.

The Committee further recalls that workers who may be deprived of the right to strike as a means of defending their socio-economic and occupational interests should be afforded compensatory guarantees, for example conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned (see General Survey on freedom of association and collective bargaining, 1994, paragraph 164). The Committee notes that section 17 of the Public Service Act only provides for non-binding conciliation. Therefore, the Committee requests that the Government provide further information as to the measures taken to establish compensatory guarantees, in particular arbitration machinery for those workers who are prohibited from exercising their right to strike under the Act.

Articles 5 and 6. The Committee notes that the Public Service Act, 2005, is silent as to the rights of public service trade unions to establish federations and confederations and to affiliate with international organizations. It recalls that the Convention not only recognizes the right of organizations to establish higher level bodies, but extends to such higher level bodies the same rights as first-level organizations. The Committee therefore requests that the Government ensure that public officers’ associations established under the Act are guaranteed the right to establish federations and confederations and to affiliate with international organizations. It asks the Government to indicate in its next report any measures taken or contemplated in this respect.

In addition, the Committee is addressing a request on another point directly to the Government.

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The Committee notes that the Government’s report has not been received, but notes, nevertheless, that a Public Service Bill has been developed. In pursuance of its previous comments, the Committee wishes to make the following points.

Article 2 of the Convention. The Committee notes that section 20 of the Bill provides that public officers shall be entitled to freedom of association. The Committee observes, however, that section 21 states that public officers’ associations may be formed by public officers "in pursuance of section 23" which relates to the rules of the Public Service Joint Advisory Council. The Committee notes the importance of the right of public servants to associate for the purpose of furthering and defending their occupational and economic interests. In light of its previous comments, the Committee asks the Government to provide clarification on the scope of the legislation and, in particular, whether the adoption of this legislation would permit all civil servants, including university professors, to form organizations of their own choosing. It further requests the Government to indicate whether the reference to section 23 in section 20 may result in restrictions on the right to organize.

Further, noting that the definition of "collective bargaining" in the Bill refers to "registered public officers’ associations", the Committee asks the Government to indicate the manner in which public officers’ associations may become registered.

Article 3. The Committee notes that section 19 of the Bill prohibits public officers from engaging in strikes. The Committee recalls that a prohibition on the right to strike in the public service should be limited to public servants exercising authority in the name of the State. The Committee asks the Government, therefore, to provide detailed information as to the precise categories of workers restricted in their right to strike under the Bill and the manner in which all other state employees, such as teaching staff or employees in state institutions, are guaranteed the right to undertake industrial action, without being subject to disciplinary or other sanctions.

The Committee further recalls that workers who may be deprived of the right to strike as a means of defending their socio-economic and occupational interests should be afforded compensatory guarantees, for example conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned (see General Survey on freedom of association and collective bargaining, 1994, paragraph 164). The Committee requests the Government, therefore, to provide further information as to the compensatory guarantees available to those workers prohibited from exercising their right to strike under the Bill and any other measures envisaged in this regard.

Articles 5 and 6. The Committee notes that the Bill is silent as to the rights of public service trade unions to establish federations and confederations and to affiliate with international organizations and recalls that the Convention not only recognizes the right of organizations to establish higher level bodies, but extends to such higher level bodies the same rights as first-level organizations. The Committee trusts that public officers’ associations established under the Bill will be guaranteed the right to establish federations and confederations and to affiliate with international organizations and requests the Government to indicate the manner in which this right is to be ensured.

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The Committee notes the information provided in the Government’s report. It also notes the observations made by the Congress of Lesotho Trade Unions (COLETU) on the application of the Convention, as well as the detailed comments provided by the Government in this regard.

The Committee notes that according to COLETU, civil servants and university lecturers are not permitted to form or join trade unions under the Public Service Act, 1995, sections 16, 30 and 31. COLETU states that over the years it has been unsuccessful in persuading the Government to amend the Act and appeals to the courts of law have been to no avail. COLETU further states that the Government removed the jurisdiction of the labour courts in legal matters regarding public employees and that cases which had been lodged in 1996 are still pending. The Committee asks the Government to indicate the court which now has the legal jurisdiction to proceed on matters related to public employees.

The Committee takes note that the Government dismisses all the allegations of COLETU and states that it acted neither ultra vires nor in contravention of ILO Conventions when it promulgated the Public Services Act, and that its action was confirmed in the High Court judgement which declared the Act constitutional. In this respect, the Government criticizes what it calls the bad faith of COLETU for not having first exhausted domestic remedies before applying for intervention from international organizations. The Committee points out, however, that it has never considered that domestic remedies must be exhausted before a workers’ or an employers’ organization may raise a concern before it of non-application of a ratified Convention. While national courts are clearly the competent bodies for considering the constitutionality of national legislation, the Committee is competent for examining the application in national legislation of ratified Conventions. The Committee trusts that the comments it makes in this respect will be helpful to the considerations given to the matter at national level.

The Committee notes, however, that reaffirming its commitment to the ILO, the Government is currently in the process of reviewing the legislation relating to the public service, in consultation with the social partners, including COLETU. The Committee notes with interest that this process has resulted in proposed amendments to the current legislation, which set out specifically that public officers shall be entitled to freedom of association in accordance with the national Constitution and ILO Conventions Nos. 87 and 98 and that they shall be at liberty to form a public officers association or organization for the purpose of collective bargaining.

The Committee trusts that the amendment will be adopted in the near future so as to ensure trade union rights to public servants; for instance, the right for public servants to join the organization of their own choosing and to join federations or confederations with private sector trade unions in accordance with Articles 2, 5 and 6 of the Convention and that these organizations will be free to draw up their constitutions, elect their officers and organize their administration and activities in full freedom in accordance with Article 3. The Committee requests the Government to transmit a copy of the amendment once adopted and to provide information on its application in practice, in particular as concerns the number of public service organizations registered, the competent institutions for registration and any particular registration requirements.

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The Committee notes that the Congress of Lesotho Trade Unions (COLETU) has sent a communication dated 4 November 2001 on the application of the Convention. The Committee requests the Government to send its observations thereon for examination at its next meeting.

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The Committee notes the information provided in the Government’s report.

In its previous comments, the Committee noted that, under section 31 of the Public Service Act No. 13 of 1995, public officers may form and establish a staff association under the provisions of the Societies Act of 1966 but may not become members of any trade union registered under the Labour Code Order of 1992.  While taking note of the Public Service Act which the Government transmitted with its report, the Committee once again requests the Government to send, with its next report, a copy of the Societies Act of 1966 so that the Committee may ensure the Act’s conformity with the principles of freedom of association.

Moreover, the Committee notes with interest the extracts from the minutes of the National Advisory Committee on Labour (NACL) meetings attached to the Government’s report. It notes that the NACL has urged the Minister of Employment and Labour to consider recommending the repeal of section 31 of the Public Service Act so that public servants may form trade unions like all other workers. The Committee expresses the firm hope that the Government will do its utmost to grant trade union rights to public servants and requests to be kept informed of any developments in this respect.

Finally, the Committee once again asks the Government to indicate in its next report whether associations of public officers established under section 31 can join confederations with private sector trade unions, in accordance with Articles 2, 5 and 6 of the Convention.

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The Committee takes note of the information provided by the Government in its reports. The Committee notes that according to section 31 of the Public Service Act No. 13 of 1995, public officers may form and establish a staff association under the provisions of the Societies Act of 1966 but not become members of any trade union registered under the Labour Code Order of 1992. In this regard, the Committee requests the Government to send a copy of the Societies Act of 1966 in order for it to ensure its conformity with the principles of freedom of association.

Moreover, the Committee asks the Government to clearly indicate that organizations of public officers can join federations or confederations with private sector trade unions respecting Articles 5 and 6 of the Convention.

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With reference to its previous comments, the Committee notes with satisfaction that the Labour Code which was drawn up with the technical assistance of the ILO entered into force on 12 November 1992. The Committee notes that section 241 of the Code repeals Act No. 34 of 1975 which provided that the banking sector was an essential service where the workers were deprived of the right to strike and that section 232(1) defines essential services as those services whose interruption would endanger the life, personal safety or health of all or any part of the population of Lesotho, thereby addressing the Committee's previous concerns with respect to the application of the Convention.

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The Committee notes the Government's report.

1. The Committee notes with interest that Order No. 4 of 1988 fell into abeyance six months after the date on which it was adopted, 23 August 1988, and that the state of emergency was lifted, thereby restoring public freedoms without which the recognition of the right to organise has no effect.

2. With reference to its previous comments concerning the need to amend Act No. 34 of 1975, as amended in 1982, the annex to which provides that the banking sector is an essential service (thereby implying that it is subject to compulsory arbitration and depriving workers in the sector of the right to strike), the Committee notes the Government's statement in its report that it is continuing to give the matter active consideration and that it should be resolved with the adoption of the new Labour Code that was compiled with the assistance of the ILO.

The Committee notes with interest that under the terms of the draft text which, according to the Government, is in the process of being adopted:

- section 241 provides that Act No. 34 of 1975 will be repealed; and

- section 232 defines essential services as those services whose interruption would endanger the life, personal safety or health of the whole or part of the population.

The Committee expresses the firm hope that the Government will take the necessary measures for the draft Labour Code to be adopted rapidly and requests it to supply the final text once it has been adopted and to indicate in its next report the progress made in this respect.

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The Committee takes note of the Government's report.

In its earlier comments, the Committee noted certain discrepancies between the legislation and the Convention concerning the following points:

- suspension of Act No. 24 concerning human rights;

- the banning of the right to strike of workers in the banking sector (Essential Services Arbitration Act (No. 34) of 1975).

1. With reference to its previous observation, the Committee notes that Act No. 24 of 1983 concerning human rights, section 2 of which recognises the right to peaceful assembly and association and the right to express and disseminate opinions, is still in force, as is shown by the text of a judgement of April 1988 in which the Government was declared guilty of having infringed the provisions of this Act (CIV/APN/111/88).

The Committee none the less observes that the Suspension of Political Activities Order (No. 4) of 1986 provides that no person shall take part in the formation of political parties, propagate political ideas, take part in any public meeting or procession of a political nature, under penalty of a fine or of imprisonment for up to two years, or both, and that a state of emergency has been proclaimed on several occasions, most recently on 24 August 1988. Furthermore, Emergency Powers Order No. 4 of 1988 lays down in section 4 that for so long as a state of emergency remains in force, the Minister may make such regulations as are, in his judgement, necessary for securing public safety, the defence of Lesotho, the maintenance and restoration of public order, the suppression of mutiny, rebellion and riot, the prevention and suppression of crimes, and for maintaining supplies and services essential to the life of the community.

Recalling that civil liberties - such as freedom of assembly and of meeting, freedom of speech, opinion and expression - are essential to the exercise of trade union rights, the Committee asks the Government to indicate whether the state of emergency has been lifted and to communicate any regulations adopted under this emergency legislation, restricting the civil liberties without which the recognition of the right to organise remains without effect.

2. In the past, the Committee has requested the Government to amend the provisions of the Essential Services Arbitration Act (No. 34) of 1975, as amended in 1982, which lay down that any dispute in the banking sector, considered to be an essential service, is subject to compulsory arbitration, thereby depriving workers in this sector of the right to have recourse to strikes.

The Government again states in its report that it has taken note of the Committee's concern in this matter and stresses that the matter is under consideration.

The Committee therefore recalls that, while workers engaged in essential services may be deprived of the right to strike subject to appropriate, impartial and rapid conciliation and arbitration procedures, such services should be limited to those whose interruption would endanger the life, personal safety or health of the whole or part of the population. In the opinion of the Committee, the banking sector does not fall within this definition.

The Committee expresses the firm hope that the Government will take the necessary steps to remove restrictions on the exercise of the right to strike of workers in the banking sector and requests the Government in its next report to indicate any progress made in this respect.