Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

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

Legislative issues. The Committee recalls that for many years it has been requesting the Government to take the following legislative measures:

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

(b) adopt specific legislative provisions ensuring that all union committee members, including those of unregistered trade unions, enjoy an adequate protection against anti-union discrimination;

(c) adopt specific legislative provisions ensuring adequate protection against acts of interference by employers coupled with effective and sufficiently dissuasive sanctions;

(d) repeal 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;

(e) amend 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;

(f) take the necessary legislative measures so as to ensure that if no union reaches the required threshold to be recognized as a bargaining agent, i.e., one third of the employees in a bargaining unit (section 48 of the TUEO Act read with section 32 of the TDA), the existing unions are given the possibility, jointly or separately, to bargain collectively, at least on behalf of their own members; and

(g) take the necessary legislative measures so as to ensure that the limitation imposed in the Public Service Act on the scope of collective bargaining for public sector workers not engaged in the administration of the State will fully comply with the Convention.

The Committee had previously expressed the hope that the abovementioned legislative measures would be taken in the framework of the ongoing labour legislation review process to ensure the full conformity of the abovementioned Acts with the Convention. The Committee notes that the Government indicates that the Committee’s comments and concerns have been considered in the ongoing labour legislation review process which is being conducted with the assistance of the Office. It also notes the Government’s indication that on 8 August 2019, the Parliament passed the TDA (Amendment) Act 2019. The Committee observes, however, that while the said Act refers to issues related to the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), it does not address the questions raised by the Committee in the present comment. The Committee therefore recalls its previous request to the Government and expresses its firm hope that the necessary measures will be taken in the framework of the ongoing labour legislation review process so as to ensure the full conformity of the abovementioned Acts with the Convention. The Committee requests the Government to provide information on the progress made in this respect.

Article 4 of the Convention. Collective bargaining in practice. The Committee recalls that it has previously requested the Government to reply to observations made by the Trainers and Allied Workers Union (TAWU) in 2013 concerning violations of the right to collective bargaining in practice. While noting that the Government has not provided a reply to the said allegations, the Committee observes, from the information provided in the report, that out of the 40 collective agreements concluded between 2017 and 2019, three were negotiated by the TAWU. The Committee further notes that the 40 collective agreements were negotiated in a broad variety of sectors, including mining, retail, education, health, hotel, communication and services. The Committee requests the Government to continue to provide information on the number of collective agreements signed and in force in the country and to indicate 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.