Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Botswana (Ratification: 1997)

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The Committee notes the observations of the Botswana Federation of Trade Unions (BFTU) received on 4 October 2022, relating to matters examined in the present comment, and the Government reply thereto, as well as their observations communicated with the Government report.

Legislative developments. Employment and Labour Relations Bill. The Committee takes note of the Government’s indication regarding the imminent finalization of the Employment and Labor Relations Bill, 2023 (the Bill), which will replace both the Trade Disputes Act (TDA) and the Trade Unions and Employers Organizations Act (TUEO) and is to be tabled before the Parliament at its November 2023 session. The Government refers to a training for drafters organized by the ILO in early 2023, that provided in-depth understanding of international labour standards. The Committee notes with interest that the proposed Bill, if adopted would take into consideration its previous comments, regarding the following matters:

• penalties imposed on the officers of trade unions or federations who fail to apply for registration within 28 days of the establishment of the organization pursuant to section 8 of the TUEO will be repealed;
• section 86(4) of the Bill provides for an opportunity to rectify the absence of certain formal registration requirements;
• section 86(7) of the Bill provides that nothing prevents an unregistered or de-registered trade union from continuing to organize and to recruit members subject to the provisions of the Act;
• the prohibition of election of young members (15–18 years old) from being officers or trustees of a workers’ or employers’ organization enshrined in section 20(3) of the TUEO will be repealed;
• the broad supervisory powers of the Registrar over the financial assets of a trade union, provided in section 41(3) of the TUEO will be repealed. The Bill in section 108(1) only requires annual submission of a balance sheet giving a true record of the state of the financial affairs of such trade union at the end of every financial year;
• the power of the Registrar or the Attorney-General to apply for an interdict to restrain any unauthorized or unlawful expenditure of funds or use of any trade union property pursuant to section 39 of the TUEO, and the power of the Registrar to conduct inspection of accounts, books and documents of a trade union at “any reasonable time” provided in section 43 of the TUEO will be repealed;
• the denial of facilities at the enterprise to small unions pursuant to section 48B (1) of the TUEO Act, which grants certain facilities (such as access to premises or representation of members in case of complaint, etc.) only to unions representing at least one third of the employees in the enterprise, will be repealed. The Committee observes that the Bill grants authorized representatives of unions the right to represent members in case of complaints under section 239(1) and grants to all such representatives access to trade union premises under sections 234 and 237, regardless of the registration status of the unions they represent;
• the authorization for the employer to use replacement labour within 14 days of the commencement of the strike regulated by section 43(3) of the TDA will be repealed: section 265 (5) of the Bill restricts this practice to” the extent that it is necessary to maintain a minimum service, or in the circumstances where a disruption of service constitutes an acute national crisis”;
• section 275(1) of the Bill allows peaceful picketing.

The Committee notes however, that certain other longstanding issues, that will be examined below, remain unaddressed in the Bill. The Committee notes the Government’s indication that while the drafting continues, consultations are ongoing at various levels to get inputs on issues on which no consensus was reached. The Committee requests the Government to continue its consultation with the social partners with a view to incorporating all legislative issues raised in this comment into the reform agenda and to provide information on the steps taken in this respect.

Public Service Bill. The Committee recalls that the Government previously informed the Committee that a process of review of Public Service Act of 2008 (PSA) was under way. The Committee notes in this respect the latest indications of the Government reaffirming that the PSA is included in the labour law review process and the bill will be presented to the parliament during the November 2023 session. The Committee requests the Government to provide information on the outcome of the review process and to send a copy of the latest draft or the law if adopted.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. Prison staff. The Committee had previously requested the Government to amend section 2(1)(iv) of the TUEO Act and section 2(11)(iv) of the TDA, which exclude employees of the prison service from their scope of application, as well as section 35 of the Prison Act, which prohibits members of the prison service from becoming members of a trade union. The Committee notes that section 3 of the Bill continues to exclude the prison service from the scope of trade union rights. The Committee notes the Government’s indication that the Labour Law Review Committee (LLRC) considered this issue and engaged the Ministry but noted that any amendment to the provisions on prison service would require prior amendment of the Constitution. Some work on the review of the Constitution was done in 2021-2022 and the conclusions will guide the way forward. The Government adds that the Prisons Service Department maintains that prison staff perform a security function and are a disciplined force. The Committee further notes the observation of the BFTU confirming that the Prison Service Act is part of the laws being reviewed by the LLRC but that the matter has not been brought to a tripartite discussion with the relevant Ministry since 2018 and suggesting that tripartite discussion should be resumed to achieve progress. The Committee recalls that while the exclusion of the armed forces and the police from the right to organize is not contrary to the provisions of the Convention, the functions exercised by prison staff do not justify their exclusion from the rights and guarantees set out in the Convention. The Committee therefore requests the Government to initiate consultations on this issue, with the participation of all stakeholders including the parent Ministry and representatives of workers concerned, with a view to amending the law so as to recognize and guarantee the freedom of association of prison staff. The Committee requests the Government to provide information on any steps taken in this respect.

Article 3. The right of organizations to elect their representatives in full freedom. The Committee notes that section 111(1) of the Bill provides that a member of an organization or the Registrar may apply to the Industrial Court for an interdict to prohibit an officer of an organization from holding office in or controlling the funds of such an organization. Section 111(2) provides that the Industrial Court may grant the interdict where it is satisfied that there is a prima facie case against the officer in question for fraudulent misuse of the funds of the organization, or that such officer is disqualified from holding office. The Committee notes that this provision allows the removal of a union officer after an ex parte proceeding, where only the establishment of a prima facie case is required. The Committee recalls that any removal or suspension of trade union officers which is not the result of an internal decision of the trade union, a vote by the members or normal judicial proceedings, seriously interferes in the exercise of trade union office and requests the Government, in full consultation with social partners, to review section 111 of the Bill, with a view to ensuring the right of organizations to elect their representatives in full freedom in conformity with Article 3 of the Convention.

The right of organizations to organize their administration and activities and to formulate their programmes. The Committee notes that sections 86(6), 87(6) and 89(1) of the Bill provide that an unregistered organization or an organization whose registration has been cancelled “shall not enjoy the rights, immunities and privileges reserved for a trade union, federation of trade unions, employers’ organization or federation of employers’ organizations under this Act”. The Committee notes that pursuant to section 90 of the Bill, these rights include immunity from certain suits or other legal proceedings in a civil or penal court, including civil suits “in respect of any act done in contemplation or furtherance of a trade dispute to which a member of the trade union is a party on the grounds only that such act induces some other person to breach a contract of employment or that it is in interference with the trade, business or employment of some other person or with the rights of some other person to dispose of his or her capital or labour as he or she determines”. The Committee recalls in this respect that, although the official recognition of an organization through its registration constitutes a relevant aspect of the right to organize, as it is the first measure to be taken so that organizations can fulfil their role effectively, the exercise of legitimate trade union activities should not be dependent upon registration. Considering that the exposure of unregistered organizations to the kind of legal action referred to in section 90 can significantly restrict their right to conduct legitimate trade union activities, the Committee requests the Government, in full consultation with the social partners, to review the above-mentioned provisions of the Bill with a view to ensuring that unregistered organizations can freely exercise their legitimate trade union activities.

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 the Committee’s comments.