Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

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

The Committee notes that the Government’s report has not been received. The Committee also notes the comments made by the International Confederation of Free Trade Unions (IFCTU) dated 31 August 2005 concerning issues raised by the Committee in its last direct request.

Article 2 of the Convention. 1. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously noted that, under section 2(1)(iv) of the Trade Union Employers’ Organizations (TUEO) (Amendment) Act, 2003, employees of the prison service were excluded from its application. The Committee notes that section 2(11)(iv) of the Trade Disputes Act is to the same effect. The Committee is of the opinion that the functions exercised by this category of public servants should not justify their exclusion from the right to organize (see General Survey of 1994 on Freedom of Association and Collective Bargaining, paragraph 56). It therefore once again requests the Government to amend the legislation so as to ensure that prison workers enjoy the right to organize.

2. Right of workers and employers to establish organizations of their own choosing. The Committee had previously noted that section 48B(1) of the TUEO Amendment Act granted certain basic facilities (access to an employer’s premises for purposes of recruiting members, holding meetings or representing members in respect of grievances, discipline and termination of employment and check-off facilities) only to unions representing at least one-third of the employees at the enterprise. The Committee once again recalls that the workers’ freedom of choice is jeopardized if the distinction between the recognized and non-recognized unions results, in law or in practice, in the granting of privileges such as to influence unduly the choice of organization by workers. This distinction should not have the effect of depriving minority trade unions of the essential means for defending the occupational interests of their members, for organizing their administration and activities, and formulating their programmes, as provided for in the Convention (see General Survey, op. cit., paragraphs 83 and 98). The Committee once again requests the Government to amend section 48B(1) so as to bring it into full conformity with the Convention.

3. Right of workers and employers to establish organizations without previous authorization. The Committee had noted that the amended TUEO Act did not provide for a procedure to rectify formal requirements for registration. It had further noted section 11(1)(a) of the Act, under which a trade union or employers’ organization was subject to dissolution following the notification of refusal of registration and section 15, under which unregistered organizations were prohibited from carrying out their activities. The Committee once again requests the Government to take the necessary measures to amend its legislation so as to provide for an opportunity to rectify the absence of certain of the formal requirements provided for in section 10 of the Act and to repeal sections 11 and 15 which result in the automatic dissolution and banning of activities of non-registered organizations.

Article 3. 1. Right of workers to elect their representatives freely. With reference to its previous direct request, the Committee once again requests the Government to amend the following sections of the TUEO Act:

n  section 22(7), establishing excessively broad ineligibility criteria, so as to ensure that only convictions clearly touching upon the integrity of the person concerned could constitute grounds for disqualification from trade union office;

n  section 21(1), providing that only employees in the industry may be trade union members; section 22(1), prohibiting non-members of a trade union or a federation of trade unions from becoming officers; and section 22(2), providing that an officer of a trade union will leave the post once he or she ceases to be a member of the trade union, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have previously been employed in the organization concerned; and

n  section 22(3) and (6), which grants the Registrar the power to remove a trade union treasurer if the Registrar considers that a treasurer is incapable of carrying out his or her functions properly.

2. Right of workers’ organizations to organize their administration and to formulate their programmes. Furthermore, the Committee once again requests the Government to amend the following sections of the TUEO Act so as to ensure that trade unions enjoy autonomy and financial independence from the authorities:

n  section 41 (section 39 following the new numbering), providing for an interdict to restrain unauthorized or unlawful expenditure of funds on the application of the Registrar or Attorney-General; and

n  section 45 (section 43 following the new numbering), providing for the inspection of accounts, books and documents of a trade union by the Registrar "at any reasonable time", and sections 51 and 52 (sections 49 and 50 following the new numbering), providing for the inspection by the minister "whenever he considers it necessary in the public interest" of the financial affairs of a trade union. The Committee once again recalls in this respect 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, op. cit., paragraph 125).

3. Right to strike. Noting that section 14(1)(b) of the Trade Disputes Act empowering the minister to refer trade disputes to the Industrial Court when "the minister is satisfied that the dispute has or may jeopardize the essentials of life or the livelihood of the people of Botswana or a significant section thereof or may endanger the public safety or life of the community" was not repealed by the amendment of the Trade Disputes Act, the Committee reiterates its request to delete the reference to "livelihood" which goes beyond the notion of essential services and to limit the powers of the Minister to essential services in the strict sense of the term.

The Committee notes that the list of essential services specified in the Schedule of the Trade Disputes Act includes the Bank of Botswana, the operational and maintenance services of railways, the sewerage services as well as the transport and telecommunications services necessary to the operation of any of these services. As concerns the Bank of Botswana and the transport and telecommunications services necessary to the operation of this service, the Committee recalls that the essential services are only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. As concerns the operational and maintenance services of railways, the sewerage services and the transport and telecommunications services necessary to the operation of any of these services, the Committee considers that in order to avoid damages which are irreversible or out of proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility rather than impose an outright ban of strikes. In the view of the Committee, such a service should meet at least two requirements. Firstly, and this aspect in paramount, it must genuinely and exclusively be a minimum service, that is one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear. Secondly, since this system restricts one of the essential means of pressure available to workers to defend their economic and social interest, their organization should be able, if they wish, to participate in defining such a service, along with employers and the public authorities. (see General Survey, op. cit., paragraphs 160 and 161). The Committee requests the Government to amend the Schedule so as to bring it into conformity with the abovementioned principles.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future and requests the Government to keep it informed of measures taken or envisaged in this respect.