Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

The Committee notes the comments made by the Trainers and Allied Workers Union in a communication dated 26 August 2013 and the comments made by the International Trade Union Confederation (ITUC) in a communication dated 30 August 2013, which refer to the legislative matters examined by the Committee and allege violations of the right to collective bargaining in practice. The Committee requests the Government to provide its observations thereon.

Scope of the Convention. The Committee had previously requested the Government to amend section 2 of the Trade Disputes Act, section 2 of the Trade Union and Employers’ Organisations (Amendment) Act (TUEO Act) and section 35 of the Prison Act that deprive prison staff from the right to unionize under the threat of being dismissed. The Committee notes that the Government reiterates in its report that this matter is of national interest and thus wider consultations have to be undertaken with the relevant government departments, social partners and other stakeholders as they hold strongly that employees in the prison services are deemed to be performing a security function. Recalling once again that the functions exercised by prison staff do not justify their exclusion from the rights and guarantees set out in the Convention, the Committee reiterates its previous request. It asks the Government to provide information on any development in this regard.

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee had requested the Government to take the necessary measures to ensure that all union committee members, including those of unregistered trade unions, enjoy an adequate and specific protection against anti-union discrimination. The Committee notes the Government’s request for clarification as to what constitutes an unregistered trade union and recalls in this respect that “registration” is a formality that can be used by national authorities to give to a trade union a legal existence which can confer significant advantages such as special immunities, tax exemptions or the right to be recognized as a bargaining agent. The Committee underlines that the fundamental rights accorded by the Convention to members or officers of trade unions, such as protection against acts of anti-union discrimination, covers all workers wishing to establish or join a trade union; therefore, such protection should not be dependent on the registered or unregistered status of a trade union, even if the authorities consider registration to be a simple formality. In these circumstances, the Committee reiterates its previous request.

Articles 2 and 4. Protection against acts of interference; promotion of collective bargaining. In its previous comments, the Committee had requested the Government to provide information on the progress made in respect to: (i) the adoption of specific legislative provisions ensuring adequate protection against acts of interference by employers coupled with effective and sufficiently dissuasive sanctions; (ii) the repeal of 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; and (iii) the amendment of section 20(3) of the Trade Disputes Act so as to ensure that compulsory arbitration of disputes of interest is permissible only in essential services in the strict sense of the term or in respect of public servants engaged in the administration of the State. The Committee notes that the Government reiterates that these issues will be considered in the framework of an ongoing review of the Trade Disputes Act. The Government recognizes the need to have an independent dispute resolution mechanism and indicates that this project is part of the National Development Plan (2009–16). The Committee hopes that the Government’s next report will contain information on the progress made in relation to the abovementioned requested amendments and encourages the Government to avail itself of the technical assistance of the Office if it so wishes.

The Committee had previously noted that, in terms of section 48 of the TUEO Act as read with section 32 of the Trade Disputes Act, the minimum threshold for a union to be recognized by the employer is set at one third of the relevant workforce. It had therefore requested the Government to ensure that where no union represented one third of the employees in a bargaining unit, collective bargaining rights were granted to all unions in the unit, at least on behalf of their own members. Noting that no information has been provided by the Government on the measures taken or envisaged in this respect, the Committee reiterates its request.

The Committee notes the Public Service Regulations, 2011 (Statutory Instrument No. 50), providing for general conditions of service in the public service (hours of work, shift work, weekly rest periods, paid public holidays, overtime and annual paid leave). The Committee requests the Government to clarify whether the provisions of this Instrument constitute fixed conditions of service or rather minimal legislative protection clauses on the basis of which the parties are able to negotiate special modalities and additional benefits.