Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Botswana (Ratification: 1997)

The Committee notes the Government’s report and the comments submitted by the International Trade Union Confederation (ITUC), which refer mainly to legislative issues raised in its previous observation. The Committee requests the Government to provide its observations on the ITUC’s comments.

The Committee recalls that it had previously requested the Government:

–      to amend section 2 of the Trade Disputes Act, section 2 of the Trade Union and Employers’ Organizations (Amendment) Act, and section 35 of the Prisons Act so as to ensure that prison staff are afforded all the guarantees provided under the Convention;

–      to amend its legislation by adopting specific provisions ensuring adequate protection against acts of interference by employers or employers’ organizations in the establishment, functioning or administration of trade unions, coupled with effective and sufficiently dissuasive sanctions;

–      to repeal section 35(1)(b), of the Trade Disputes Act, which permits an employer or employers’ organization to apply to the Commissioner to withdraw the recognition granted to a trade union on the grounds that the trade union refuses to negotiate in good faith with the employer.

In this respect, the Committee notes the Government’s statement that it has taken note of its comments, and that consultations with the social partners on the legal provisions referred to therein are ongoing. Recalling that consultations with the social partners with regard to legislative amendments had commenced last year, the Committee requests the Government to indicate the progress made with respect to these previously raised points and expresses the firm hope that next year it would be in a position to note substantive progress.

Finally, the Committee had noted that section 18(1)(e) of the Trade Disputes Act empowers the Industrial Court to direct the Commissioner to refer disputes before it to arbitration; section 20(3) provides on the other hand that a party to a trade dispute may make an urgent application to the Industrial Court for the determination of the dispute in question. In this respect, the Committee notes the Government’s indication that the Industrial Court may refer disputes of interest to arbitration, including where one of the parties to a dispute has made an urgent application to the Industrial Court. Further noting the Government’s statement that the intention of the law is to have disputes of interest resolved through arbitration, the Committee recalls that, as regards arbitration imposed by the authorities at the request of one party, it considers that it is generally contrary to the principle of the voluntary negotiation of collective agreements established in Convention No. 98, and thus the autonomy of the bargaining partners. An exception might however be made in the case of provisions which, for instance, allow workers’ organizations to initiate such a procedure on their own, for the conclusion of a first collective agreement. As experience shows that first collective agreements are often one of the most difficult steps in establishing a sound bargaining relationship, these types of provisions may be said to be in the spirit of machinery and procedures which facilitate collective bargaining (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 257). The Committee recalls, moreover, that recourse to compulsory arbitration is also legitimate for disputes arising in the public service and in essential services in the strict sense of the term. In these circumstances, the Committee requests the Government to amend section 20 of the Trade Disputes Act in accordance with the principles noted above and to keep it informed of the progress made in this regard.