Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2017 that are addressed under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Article 4 of the Convention. Promotion of collective bargaining. Recognition of the most representative union. The Committee 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) specified that “a majority of employees in the employ of an employer means over 50 per cent of those employees”. It recalled that if 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 Government indicated in that respect that the ongoing consolidation of labour legislation would include the issues raised by the Committee.

The Committee notes the Government’s statement that in the current process of revision of the labour legislation, there is an introduction of the concept of organizational rights as opposed to bargaining rights. The Government indicates that regulations on organizational and bargaining rights are anticipated upon completion of the labour law reform. The Committee notes in this regard that the drafting instructions for the 2016 consolidation and revision of the Labour Code highlight the Committee’s previous request in this respect, and state that the revised Code should provide for bargaining rights in the scenario where unions are sufficiently representative but there is an absence of any union with a more than 50 per cent membership. The Committee recalls that the determination of the threshold of representativeness to designate an exclusive agent for the purpose of negotiating collective agreements which are destined to be applied to all workers in a sector or establishment is compatible with the Convention in so far as the required conditions do not constitute an obstacle to the promotion of free and voluntary collective bargaining in practice. The Committee requests the Government to take the necessary measures in the context of the labour law reform to ensure that if there is no union that reaches the required majority to be designated as the collective bargaining agent, minority unions should be given the possibility to bargain collectively, jointly or separately, at least on behalf of their own members. It requests the Government to provide information on measures taken in this respect, and to provide a copy of any legislation or subsequent regulations adopted.

Representativeness requirements for certification of a union as the exclusive bargaining agent. The Committee previously noted that section 198B(2) of the Labour Code provides that the arbitrator may conduct a ballot “if appropriate” in the determination of disputes concerning trade union representativity. In that respect, it trusted that disputes which required the holding of a vote to determine which trade union was most representative would be disposed of by means of a ballot. It further recalled that new organizations, or organizations with a sufficiently large number of votes, should be able to ask for a new election after a reasonable period has elapsed since the previous election.

In this respect, the Committee notes that the drafting instructions for the 2016 consolidation and revision of the Labour Code refer to the introduction of a formal requirement for ballots to be held in determining trade union representativeness, removing the arbitrator’s discretion as to whether a ballot is appropriate. The Committee requests the Government to pursue its efforts to ensure that, in the context of the labour law reform, disputes which require the holding of a vote to determine which trade union is most representative are in fact disposed of by means of a ballot. Additionally, the Committee 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.

Collective bargaining in the education sector. The Committee previously requested information on any collective bargaining agreements reached for teachers in the public and private sectors. In this regard, the Committee notes the Government’s indication that drafting instructions have been submitted to the Office of Parliamentary Counsel for drafting concerning the amendment of the Education Act in order to bring it into conformity with the rights enshrined in the Convention. It notes in this respect that the drafting instructions for the 2016 consolidation and revision of the Labour Code identify that, with regard to changes required in respect of other pieces of legislation, the Education Act should be clarified to state that teachers enjoy collective bargaining rights. In addition, with respect to the public sector, the Committee notes the Government’s reference to section 64 of the Education Act of 2010, which provides that a teacher has a right to form or become a member of any teacher formation, and that a teachers’ formation representing more than 40 per cent of practising teachers may apply for recognition to the Minister. With respect to the private sector, the Government indicates that the rights of teachers in that sector to form and to join trade unions are also protected by section 64 of the Education Act and the Labour Code (Amendment) Act No. 1 of 2010, and that collective bargaining is permissible provided that the required threshold is achieved. The Government further indicates that teacher formations are consulted for concerted decisions every time the Ministry of Education has an issue that concerns its members. The Committee requests the Government to provide information on the amendment to the Education Act aimed at bringing the Act into conformity with the Convention and to, in the context of this revision, take into account the Committee’s above indications concerning the need to ensure that if there is no union that reaches the required threshold to be designated as the collective bargaining agent, minority unions should be given the possibility to bargain collectively, jointly or separately, at least on behalf of their own members. In the meantime, the Committee requests the Government to provide information on the application of section 64 of the Education Act in practice, including the number of teachers’ associations that have applied to the Minister for recognition, the number of associations recognized, and the rights accompanying such recognition. The Committee once again requests the Government to indicate if any collective bargaining agreements have been reached with teachers in the public and private sectors, and if so, to provide details of such agreements. Lastly, it once again requests the Government to provide a copy of the Labour Code (Amendment) Act No. 1 of 2010.