Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

The Committee notes the Government’s report and its reply to the 6 November 2006 comments submitted by the Congress of Lesotho Trade Unions (COLETU). It also notes the comments submitted by the International Trade Union Confederation (ITUC) on 29 August 2008, which primarily refer to matters previously raised by the Committee. Referring to its previous comments on the 2006 draft Amendment Bill, which amends several provisions of the Labour Code Order 1992, the Committee once again requests the Government to indicate the progress made with respect to the Bill’s adoption and to provide a copy of the legislation as soon as it is adopted.

Article 4 of the Convention. Collective bargaining in the education sector. In its previous comments the Committee had taken note of statements submitted by the ITUC and COLETU on the Government’s long-standing obstruction of collective bargaining in the education sector, including COLETU’s observation that a case brought by its affiliate the Lesotho Teachers Trade Union (LTTU) had been pending before the High Court for 11 years, and had requested the Government to take all necessary measures so as to promote a prompt and negotiated solution to the long-standing disputes concerning teachers in the public sector.

The Committee notes that according to the Government, the case referred to by COLETU was filed in the Labour Court. The President of the Labour Court had recused himself in respect of this case, and the union has not pursued the matter through its legal counsel since. While noting this information, the Committee nevertheless regrets that the Government provides no indication that it has taken steps to promote a solution to the long-standing disputes in the education sector, as previously requested. It therefore once again requests the Government to take all necessary measures so as to promote a prompt and negotiated solution to the long-standing disputes concerning teachers in the public sector and guarantee to them the rights enshrined in the Convention.

Representativeness requirements for certification of a union as the exclusive bargaining agent. The Committee had previously noted that section 198B(2) of the Labour Code, as amended by the 2006 draft Amendment Bill, provides that the arbitrator may conduct a ballot “if appropriate” in the determination of disputes concerning trade union representativity. It had subsequently requested the Government to amend the Labour Code by introducing a formal requirement for ballots to be held in determination of trade union representativity, thereby removing the arbitrator’s discretion as to whether a ballot is “appropriate” in the circumstances. In this respect, the Committee notes the Government’s statement that leaving the decision to conduct a ballot to the arbitrator’s discretion is justified, as not all disputes concerning trade union representativity – such as those concerning whether particular employees fall inside the relevant bargaining unit or not – may be resolved by resorting to a ballot. The Government further indicates that the decisions of the arbitrator are subject to review by the Labour Court. The Committee trusts that under section 198B(2) of the Labour Code, as amended, disputes which require the holding of elections to determine which trade union is most representative are disposed of by means of a ballot. Additionally, the Committee once again requests the Government to take the necessary measures to amend the Labour Code so as to ensure that new organizations, or organizations failing to secure a sufficiently large number of votes, may ask for a new election after a certain period has elapsed since the previous election.

Recognition of the most representative union. The Committee had previously 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”. It had subsequently requested the Government to take the necessary legislative measures so as to ensure that when no union covers more than 50 per cent of the workers, collective bargaining rights are granted to all the unions in the unit, at least on behalf of their own members. The Committee notes that according to the Government, complying with the Committee’s request would require employers to enter into negotiations with several minority trade unions, leading to trade union fragmentation and inconsistent terms and conditions of employment for different employees. Such an approach, the Government further indicates, would be contrary to the country’s accepted industrial relations practices.

While noting this information, the Committee is compelled to recall that problems may arise 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; a representative union which fails to secure this absolute majority is thus denied the possibility of bargaining. The Committee considers that under such a system, if 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 (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 241). Accordingly, the Committee requests the Government to take the necessary measures to amend the Labour Code so as to ensure respect for the abovementioned principle.