Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Lesotho (Ratification: 1966)

The Committee notes the Government’s report, including the legislation and the judgement of the High Court of Lesotho attached thereto.

1. Article 4 of the Convention. The Committee takes note of the information provided by the Government in its report on the practical application of this Article, including the number of agreements signed, the signatory organizations and the sectors covered.

The Committee notes that section 23 of the Labour Code (Amendment) Act 2000 introduces a new section which supplements section 198 of the Labour Code, 1992. According to the Government, this section is intended to further encourage and promote the full development and utilization of machinery for voluntary negotiation between employers and workers and/or their respective organizations and it recognizes the importance of good faith in a collective bargaining relationship. However, the Committee notes that the new section 198A(1)(b) defines "a representative trade union" as "a registered trade union that represents the majority of the employees in the employ of an employer" and that section 198A(1)(c) specifies that "a majority of employees in the employ of an employer means over 50 per cent of those employees". It recalls that when the law stipulates that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent and when no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members.

2. Article 6. The Committee notes that the Labour Code does not apply to public officers by­ virtue of the provisions of section 35 of the Public Service Act No. 13 of 1995, which expressly excludes them from the application of the Code. It also notes that according to section 31 of the Act, public officers may form and establish staff associations under the provisions of the Societies Act 1966, but they shall not become members of any trade union registered under the Labour Code. Furthermore, the Committee notes that according to section 4 of the Public Service Act and section 154 of the Constitution, a public officer is a person holding or acting in any office of emolument in the public service. The Committee stresses that public servants not employed in the administration of the State are covered by the provisions of the Convention and therefore must have the right to bargain collectively through their organizations.

In this connection, the Committee takes note of the decision of the High Court of Lesotho confirming the constitutionality of sections 31 and 35 of the Public Service Act. It also notes the information supplied by the Government in its report according to which the National Advisory Committee on Labour (NACOLA) is seized with the issue of the exclusion of public servants from joining trade unions and made attempts to meet with the Minister of Employment and Labour to urge him to advise the Government to delete section 31 of this Act.

The Committee firmly hopes that the Government will take measures as soon as possible to bring the legislation fully into conformity with the Convention, allowing all public servants who are not employed in the administration of the State to bargain collectively in respect of their employment conditions. The Committee requests the Government to inform it in its next report on all measures adopted accordingly.