Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee notes the Government’s comments on the observations made in 2017 by the International Trade Union Confederation (ITUC) concerning alleged cases of anti-union discrimination and obstruction to collective bargaining. However, the Committee notes with regret that the Government provides no reply to the remaining observations made by the Trainers and Allied Workers Union (TAWU) alleging violations of the right to collective bargaining in practice.

The Committee takes note of the initiatives taken in the framework of the labour law review and in particular observes from the Government that the Public Service Act of 2008, the Trade Disputes Act (TDA) of 2016 and the Trade Unions and Employers Organisation Act (TUEO) have to be harmonized during the ongoing labour law review process. The Committee expresses the hope that its comments below will be taken into account in the framework of the review to ensure the full conformity of these Acts with the Convention and that it will be in a position to note progress in the near future. The Committee requests the Government to provide any information on the progress achieved.

Scope of the Convention. Prison officers. On several occasions, the Committee, considering that the prison service cannot be considered to be part of the armed forces or the police for the purposes of exclusion under Article 5 of the Convention, had requested the Government to take the necessary measures, including the pertinent legislative amendments, to grant members of the prison service all rights guaranteed by the Convention. Noting from the Government that this issue is going to be considered during the ongoing labour law review, the Committee requests the Government to continue providing information on the progress made in this respect.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. On several occasions, the Committee requested the Government to take the necessary measures to ensure that all union committee members, including those of unregistered trade unions, enjoy an adequate protection against anti-union discrimination. The Committee regrets that the Government once again failed to provide any comments on this point and recalls that the fundamental rights accorded by the Convention to members or officers of trade unions, such as protection against acts of anti-union discrimination, cover all workers who wish 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 once again its previous request.

Articles 2 and 4. Adequate 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 TDA, 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 TDA (this section read together with section 18(1)(a) and (e) allows the Industrial Court to refer a trade dispute to arbitration, including where only one of the parties made an urgent appeal to the Court for determination of the dispute) so as to ensure that the recourse to compulsory arbitration does not affect the promotion of collective bargaining. In this regard, the Committee recalls that compulsory arbitration is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), or in essential services in the strict sense of the term or in cases of acute national crisis. Noting the Government’s indication that these matters should be considered during the ongoing labour law review and that the technical assistance has already been sought for this purpose, the Committee expects that the necessary legislative measures will be taken, so as to bring these provisions into line with the Convention.

Threshold of representativity. The Committee had previously noted that, in terms of section 48 of the TUEO Act, as read with section 32 of the TDA, the minimum threshold for a union to be recognized by the employer for collective bargaining purposes is set at one third of the relevant workforce. The Committee had recalled that the determination of the threshold of representativity 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. Noting the Government’s indication that these matters should be considered during the ongoing labour law review, the Committee expects that the above-mentioned provisions will be amended to ensure that if no union reaches the required threshold to be recognized as a bargaining agent, unions should be given the possibility to negotiate, jointly or separately, at least on behalf of their own members.

Articles 4 and 6. Collective bargaining in the public sector. In its previous comments, the Committee requested the Government to specify which provisions of the Public Service Regulations, 2011, are not open for negotiation and invited the Government to reconsider the limitation imposed on the scope of collective bargaining for public sector workers not engaged in the administration of the State. The Committee notes from the Government that the provisions of the Public Service Regulations constitute minimal legislative protective clauses on the basis of which the parties are able to negotiate better and/or additional benefits, and that they should be read with the TUEO which also applies to the public sector. In addition, the Committee notes from the Government that the amendment of the Public Service Act, 2008, though it was at an advanced stage and ready for tabling before the Parliament, has been included in the labour law review mechanism. While taking due note of the Government’s statement, the Committee expects that the ongoing labour review process will ensure that the provisions defining the scope of collective bargaining for public sector workers not engaged in the administration of the State will fully comply with the Convention.

Article 4. Collective bargaining in practice. The Committee requests the Government to provide information on the number of collective agreements signed and in force in the country, indicating the sectors and the number of workers covered.

The Committee reminds the Government that it may continue to avail itself of technical assistance from the Office with respect to all issues raised in its present comments.