Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

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

The Committee notes the Government’s report and the comments submitted by the International Confederation of Free Trade Unions (ICFTU) on 10 August 2006, which refer in particular to problems of application of the Convention in practice in the textile sector and the denial of collective bargaining rights to public employees. The Committee requests the Government to reply to these comments. Moreover, the Committee takes note of the draft Amendment Bill, 2006, which amends several provisions of the Labour Code Order, 1992, and requests the Government to keep it informed of developments relating to its adoption, as well as to take into account those of its ensuing comments referring to specific provisions of the draft Amendment Bill. The Committee also takes note of the comments of the Congress of Lesotho Trade Unions (COLETU) of 6 November 2006 and requests the Government to send its reply thereon.

Article 4 of the Convention. 1. Collective bargaining in the education sector. The Committee further recalls the previous comments of COLETU indicating that, although the revision of the Public Service Act of 1995, to grant public service employees collective bargaining rights, was commendable, the Government continues to obstruct collective bargaining in the education sector. In this regard, the Committee notes with regret that the Government provides no information on the collective bargaining situation in the education sector, in spite of its previous comments and those of COLETU and the ICFTU respecting the same. In these circumstances, the Committee asks the Government to reply to the unions’ comments, and once again requests the Government to take all necessary measures to promote a prompt and negotiated solution to the long-standing disputes concerning teachers who are not public servants engaged in the administration of the State.

2. Representativeness requirements for certification of a union as the exclusive bargaining unit. The Committee notes that sections 39 and 40 of the draft Amendment Bill amend the provisions of the Labour Code concerning the issue of representativeness (sections 198A and 198B of the Labour Code), and that section 198B(1), as amended, now provides that any dispute about whether a trade union is representative shall be referred to the Directorate of Dispute Prevention and Resolution – an independent body according to section 46B(2)(b) of the Labour Code – for summary determination by an arbitrator. The Committee further notes that according to section 198B(2) of the Labour Code the arbitrator may, in making the determination, conduct a ballot “if appropriate” and make any necessary inquiries. In this respect, the Committee recalls that it is not necessarily incompatible with the Convention to provide for the certification of the most representative union in a given unit as the exclusive bargaining agent for that unit, provided a number of safeguards are provided. Where the procedure of certifying unions as exclusive bargaining agents has been established, such safeguards should include the following: (a) certification to be made by an independent body; (b) the representative organizations to be chosen by a majority vote of the employees in the unit concerned; (c) the right of an organization which fails to secure a sufficiently large number of votes to ask for a new election after a stipulated period; and (d) the right of an organization other than the certificated organizations to demand a new election after a fixed period, often 12 months, has elapsed since the previous election. In the light of this principle, the Committee requests the Government to take the necessary measures to amend the Labour Code so as to: (1) introduce a formal requirement for a ballot to be held in cases of dispute concerning representativity, thereby removing the arbitrator’s discretion as to whether a ballot is “appropriate”; and (2) ensure that organizations failing to secure a sufficiently large number of votes, or new organizations, may ask for a new election after a certain period has elapsed since the previous election.

3. Recognition of the most representative union. Previously, the Committee had noted that section 198A(1)(b) of the Labour Code 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”. In this connection, the Committee recalls once again 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 the unit, at least on behalf of their own members. The Committee requests the Government to amend section 198A of the Labour Code so as to give effect to this principle concerning the promotion of collective bargaining.