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

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Article 4 of the Convention. Promotion of collective bargaining. Recognition of the most representative union. In its previous comments, the Committee noted that section 198A(1)(b) of the Labour Code defined 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 requested the Government to take the necessary measures in the context of the labour law reform to ensure that if no union reached the required majority to be designated as the collective bargaining agent, minority unions would be given the possibility to bargain collectively, jointly or separately, at least on behalf of their own members. The Committee notes that the Government indicates that in the labour law reform, all recognised unions are given bargaining rights and therefore minority unions should also enjoy the right to bargain collectively. While taking due note of these elements, the Committee requests the Government to provide information on the specific measures taken within the framework of the labour law reform to ensure that the rules determining the access of trade unions to collective bargaining comply with the Convention, and to provide copies of any laws or regulations adopted in this regard.

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. It also noted that the drafting instructions for the 2016 consolidation and revision of the Labour Code referred 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 takes note of the Government’s indication that it has undertaken to put in place regulations upon the enactment of the revised Labour Code to ensure that disputes which require the holding of secret vote to determine which trade union is most representative are in fact disposed of by means of a ballot. It further notes that the Government indicates that a copy of the envisaged regulations will be provided once adopted. The Committee expects that the ongoing labour law reform will be completed shortly and that the revised Labour Code and its accompanying regulations will ensure that a vote by secret ballot is held for the determination of disputes regarding trade union representativity. It requests the Government to provide a copy of the abovementioned texts once adopted. Moreover, the Committee once again requests the Government to take the necessary measures to ensure that the revised Labour Code allows new organizations, or organizations failing to secure a sufficiently large number of votes, to ask for a new election after a reasonable period has elapsed since the previous election.

Collective bargaining in the education sector. The Committee previously noted the Government’s indication that the drafting instructions for the 2016 consolidation and revision of the Labour Code identified that the Education Act should be clarified to state that teachers enjoy collective bargaining rights. It noted that section 64 of the Education Act of 2010 provided that a teacher had 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 could apply for recognition to the Minister. The Committee requested the Government to provide information on the amendment to the Education Act and 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. It also requested the Government, in the meantime, to provide information on the application of section 64 of the Education Act in practice. The Committee notes the Government’s indication that there is no amendment of the Education Act of 2010 to date. It further notes that the Government informs that the Progressive Association of Lesotho Teachers has been recognized by the Ministry of Education and Training as the largest trade union in Lesotho, as per section 64 of the Education Act of 2010. The Government indicates, however, that when giving effect to this provision in practice, the minority unions are always included in the negotiations on issues relating to their members. While taking due note of this information, the Committee requests the Government to take, within the context of the labour law reform, the necessary measures to ensure that the right of teachers to bargain collectively is explicitly recognized in the legislation in a manner that, as mentioned in its previous comments, gives full effect to the Convention. The Committee also reiterates its previous requests to the Government to provide information on any collective bargaining agreements reached with teachers in the public and private sectors.

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 and to indicate the sectors concerned as well as the number of workers covered.

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

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.

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes the observations made by the International Trade Union Confederation (ITUC) in a communication received on 4 August 2011.

The Committee recalls that its previous comments concerned:

Article 4 of the Convention. Representativeness requirements for certification of a union as the exclusive bargaining agent. The Committee recalls that it had trusted that under section 198B(2) of the Labour Code, as amended, disputes which required the holding of elections to determine which trade union was most representative were disposed of by means of a ballot and not left to the discretion of the arbitrator. The Committee recalls 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.

Recognition of the most representative union. The Committee recalls that it had noted that section 198(1)(b) of the Labour Code defined 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”. The Committee recalls 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 Committee notes the Government’s indication that a consolidation of labour legislation is under way, with ILO technical assistance, and that it will include the issues raised by the Committee as key areas for reform. The Committee expresses the hope that legislation in full conformity with the rights enshrined in the Convention is adopted in the very near future and requests the Government to provide information on progress made in this regard.

Collective bargaining in the education sector. The Committee notes the Government’s reference to Bokang Vincent Lelimo v. President of the Labour Court and Others (LAC/A/04/05), in which the Labour Court of Appeals held, in a judgment delivered in 2006, that teachers in the public sector were not public officials and so, according to the Government, they enjoy the right to collective bargaining. In its previous observation, the Committee had requested the Government to provide copies of the Education Act 2010 and the Labour Code (Amendment) Act No. 1 of 2010, so as to assess the extent to which trade union rights enshrined in the Convention were recognized. The Committee once again requests the Government to provide copies of the Education Act 2010 and the Labour Code (Amendment) Act No. 1 of 2010, which were not received with its latest report. The Committee further requests the Government to provide details of any collective bargaining agreements reached for teachers in the public and private sectors.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 4 of the Convention. Representativeness requirements for certification of a union as the exclusive bargaining agent. The Committee had previously noted that section 198B(2) of the Labour Code, as amended by the 2006 Amendment Act, provides that the arbitrator may conduct a ballot “if appropriate” in the determination of disputes concerning trade union representativity. It had subsequently requested the Government to amend the Labour Code by introducing a formal requirement for ballots to be held in determination of trade union representativity, thereby removing the arbitrator’s discretion as to whether a ballot is “appropriate” in the circumstances. In this respect, the Committee had noted the Government’s statement that leaving the decision to conduct a ballot to the arbitrator’s discretion is justified, as not all disputes concerning trade union representativity – such as those concerning whether particular employees fall inside the relevant bargaining unit or not – may be resolved by resorting to a ballot. The Government had further indicated that the decisions of the arbitrator are subject to review by the Labour Court. The Committee indicated that it trusted that under section 198B(2) of the Labour Code, as amended, disputes which require the holding of elections to determine which trade union is most representative are disposed of by means of a ballot. The Committee notes the Government’s indication that its abovementioned comments will be considered by the National Advisory Committee on Labour. The Committee requests the Government to provide information on the work of this Committee and hopes that the necessary measures to amend the Labour Code will be taken 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.

Recognition of the most representative union. The Committee had 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) specifies that “a majority of employees in the employ of an employer means over 50 per cent of those employees”. It had subsequently requested the Government to take the necessary legislative measures so as to ensure that when no union covers more than 50 per cent of the workers, collective bargaining rights are granted to all the unions in the unit, at least on behalf of their own members. The Committee recalled that problems may arise when the law stipulates that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent; a representative union which fails to secure this absolute majority is thus denied the possibility of bargaining and that under such a system, if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 241). The Committee notes the Government’s indication that its abovementioned comments will be considered by the National Advisory Committee on Labour. The Committee requests the Government to provide information on the work of this Committee and hopes that the necessary measures to amend the Labour Code will be taken so as to ensure the respect for the abovementioned principle. The Committee also requests the Government to indicate whether, in practice, minority unions enjoy collective bargaining rights in cases where there is no union representing 50 per cent of the workers concerned. If this is the case, the Committee requests the Government to provide relevant examples and statistics.

Collective bargaining in the education sector. In its previous comments the Committee had requested the Government to take all necessary measures so as to promote a prompt and negotiated solution to the long-standing disputes concerning teachers in the public sector and guarantee to them the rights enshrined in the Convention. The Committee takes note from the Government’s report that the Education Act of 2010 was promulgated. According to the Government, this Act may provide a solution to the long-standing disputes concerning teachers in the public sector. According to the Government’s report, this Act stipulates that teachers are employed by the Teaching Service Commission and disputes arising out of the teaching services are referred to the Teaching Service Tribunal, whose decisions are final and binding. However, “courts of law” have the jurisdiction to hear reviews from the Tribunal. The Committee further notes the Government’s indication that following the promulgation of the Labour Code (Amendment) Act No. 1 of 2010, all labour disputes whether from the public or private sector can now be heard by the Court of Appeal on questions of law. Therefore, according to the Government, the teachers’ dispute can now be referred to the Court of Appeal. Noting, however, that the Education Act of 2010 and the Labour Code (Amendment) Act No. 1 of 2010 have not been attached, the Committee requests the Government to transmit a copy of these legislative texts with its next report.

The Committee further notes that the Government indicates in its report that it takes upon itself to call a meeting of all stakeholders wherein the long standing issue of the teachers in the public sector shall be discussed to its finality. The Committee requests the Government to provide information on any developments in this regard and recalls that, in conformity with the Convention, teachers of the private and the public sectors should enjoy collective bargaining rights.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the Government’s report and its reply to the 6 November 2006 comments submitted by the Congress of Lesotho Trade Unions (COLETU). It also notes the comments submitted by the International Trade Union Confederation (ITUC) on 29 August 2008, which primarily refer to matters previously raised by the Committee. Referring to its previous comments on the 2006 draft Amendment Bill, which amends several provisions of the Labour Code Order 1992, the Committee once again requests the Government to indicate the progress made with respect to the Bill’s adoption and to provide a copy of the legislation as soon as it is adopted.

Article 4 of the Convention. Collective bargaining in the education sector. In its previous comments the Committee had taken note of statements submitted by the ITUC and COLETU on the Government’s long-standing obstruction of collective bargaining in the education sector, including COLETU’s observation that a case brought by its affiliate the Lesotho Teachers Trade Union (LTTU) had been pending before the High Court for 11 years, and had requested the Government to take all necessary measures so as to promote a prompt and negotiated solution to the long-standing disputes concerning teachers in the public sector.

The Committee notes that according to the Government, the case referred to by COLETU was filed in the Labour Court. The President of the Labour Court had recused himself in respect of this case, and the union has not pursued the matter through its legal counsel since. While noting this information, the Committee nevertheless regrets that the Government provides no indication that it has taken steps to promote a solution to the long-standing disputes in the education sector, as previously requested. It therefore once again requests the Government to take all necessary measures so as to promote a prompt and negotiated solution to the long-standing disputes concerning teachers in the public sector and guarantee to them the rights enshrined in the Convention.

Representativeness requirements for certification of a union as the exclusive bargaining agent. The Committee had previously noted that section 198B(2) of the Labour Code, as amended by the 2006 draft Amendment Bill, provides that the arbitrator may conduct a ballot “if appropriate” in the determination of disputes concerning trade union representativity. It had subsequently requested the Government to amend the Labour Code by introducing a formal requirement for ballots to be held in determination of trade union representativity, thereby removing the arbitrator’s discretion as to whether a ballot is “appropriate” in the circumstances. In this respect, the Committee notes the Government’s statement that leaving the decision to conduct a ballot to the arbitrator’s discretion is justified, as not all disputes concerning trade union representativity – such as those concerning whether particular employees fall inside the relevant bargaining unit or not – may be resolved by resorting to a ballot. The Government further indicates that the decisions of the arbitrator are subject to review by the Labour Court. The Committee trusts that under section 198B(2) of the Labour Code, as amended, disputes which require the holding of elections to determine which trade union is most representative are disposed of by means of a ballot. Additionally, the Committee once again 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.

Recognition of the most representative union. The Committee had 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) specifies that “a majority of employees in the employ of an employer means over 50 per cent of those employees”. It had subsequently requested the Government to take the necessary legislative measures so as to ensure that when no union covers more than 50 per cent of the workers, collective bargaining rights are granted to all the unions in the unit, at least on behalf of their own members. The Committee notes that according to the Government, complying with the Committee’s request would require employers to enter into negotiations with several minority trade unions, leading to trade union fragmentation and inconsistent terms and conditions of employment for different employees. Such an approach, the Government further indicates, would be contrary to the country’s accepted industrial relations practices.

While noting this information, the Committee is compelled to recall that problems may arise when the law stipulates that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent; a representative union which fails to secure this absolute majority is thus denied the possibility of bargaining. The Committee considers that under such a system, if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 241). Accordingly, the Committee requests the Government to take the necessary measures to amend the Labour Code so as to ensure respect for the abovementioned principle.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report and the comments submitted by the International Confederation of Free Trade Unions (ICFTU) on 10 August 2006, which refer in particular to problems of application of the Convention in practice in the textile sector and the denial of collective bargaining rights to public employees. The Committee requests the Government to reply to these comments. Moreover, the Committee takes note of the draft Amendment Bill, 2006, which amends several provisions of the Labour Code Order, 1992, and requests the Government to keep it informed of developments relating to its adoption, as well as to take into account those of its ensuing comments referring to specific provisions of the draft Amendment Bill. The Committee also takes note of the comments of the Congress of Lesotho Trade Unions (COLETU) of 6 November 2006 and requests the Government to send its reply thereon.

Article 4 of the Convention. 1. Collective bargaining in the education sector. The Committee further recalls the previous comments of COLETU indicating that, although the revision of the Public Service Act of 1995, to grant public service employees collective bargaining rights, was commendable, the Government continues to obstruct collective bargaining in the education sector. In this regard, the Committee notes with regret that the Government provides no information on the collective bargaining situation in the education sector, in spite of its previous comments and those of COLETU and the ICFTU respecting the same. In these circumstances, the Committee asks the Government to reply to the unions’ comments, and once again requests the Government to take all necessary measures to promote a prompt and negotiated solution to the long-standing disputes concerning teachers who are not public servants engaged in the administration of the State.

2. Representativeness requirements for certification of a union as the exclusive bargaining unit. The Committee notes that sections 39 and 40 of the draft Amendment Bill amend the provisions of the Labour Code concerning the issue of representativeness (sections 198A and 198B of the Labour Code), and that section 198B(1), as amended, now provides that any dispute about whether a trade union is representative shall be referred to the Directorate of Dispute Prevention and Resolution – an independent body according to section 46B(2)(b) of the Labour Code – for summary determination by an arbitrator. The Committee further notes that according to section 198B(2) of the Labour Code the arbitrator may, in making the determination, conduct a ballot “if appropriate” and make any necessary inquiries. In this respect, the Committee recalls that it is not necessarily incompatible with the Convention to provide for the certification of the most representative union in a given unit as the exclusive bargaining agent for that unit, provided a number of safeguards are provided. Where the procedure of certifying unions as exclusive bargaining agents has been established, such safeguards should include the following: (a) certification to be made by an independent body; (b) the representative organizations to be chosen by a majority vote of the employees in the unit concerned; (c) the right of an organization which fails to secure a sufficiently large number of votes to ask for a new election after a stipulated period; and (d) the right of an organization other than the certificated organizations to demand a new election after a fixed period, often 12 months, has elapsed since the previous election. In the light of this principle, the Committee requests the Government to take the necessary measures to amend the Labour Code so as to: (1) introduce a formal requirement for a ballot to be held in cases of dispute concerning representativity, thereby removing the arbitrator’s discretion as to whether a ballot is “appropriate”; and (2) ensure that organizations failing to secure a sufficiently large number of votes, or new organizations, may ask for a new election after a certain period has elapsed since the previous election.

3. Recognition of the most representative union. Previously, the Committee had 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) specifies that “a majority of employees in the employ of an employer means over 50 per cent of those employees”. In this connection, the Committee recalls once again that, when the law stipulates that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent, and when 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 Committee requests the Government to amend section 198A of the Labour Code so as to give effect to this principle concerning the promotion of collective bargaining.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the information contained in the Government’s report. It also notes the comments of the Congress of Lesotho Trade Unions (COLETU) dated 27 May 2005.

The Committee’s previous comments concerned the need to allow public servants who are not employed in the administration of the State to bargain collectively in respect of their employment conditions.

The Committee notes with satisfaction from the Government’s latest report the text of the Public Service Act No. 1 of 2005, which replaced the Public Service Act No. 13 of 1995, and contains provisions giving public servants the right to organize (sections 21 and 22), engage in collective bargaining (sections 15(1)(iv), 25(1)(c)), and establishes dispute settlement mechanisms (sections 17-20).

The Committee notes the comments made by COLETU according to which, although the revision of the Public Service Act of 1995 is a commendable move, the Government continues to obstruct collective bargaining in the education sector. In particular, according to COLETU, the Government took to the High Court a dispute between the Lesotho University Teacher and Researchers Union (LUTARU) and the University Council, which was already being heard by the Directorate of Dispute Prevention and Resolution (DDPR); as a result, the case is neither proceeding in the DDPR nor the High Court. Moreover, a case which had been brought by the Lesotho Teachers’ Trade Union (LTTU) to the High Court has been pending for ten years. The Committee requests the Government to provide its observations on these comments and to take all necessary measures so as to promote a prompt and negotiated solution to the long-standing disputes mentioned by COLETU concerning teachers who are not public servants engaged in the administration of the State and therefore are covered by the right to collective bargaining by virtue of Article 4 of the Convention.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes that the Government’s report has not been received. It also notes the comments of the Congress of Lesotho Trade Unions (COLETU) dated 14 November 2001 and the Government’s observations thereon. Finally, the Committee takes note with interest of the text of the draft Public Service Bill 2003.

The Committee recalls that in its previous comments it had examined sections 35 and 31 of Public Service Act No. 13 of 1995 which prevent public servants from engaging in collective bargaining through their organizations. The Committee had requested the Government to take measures to bring its legislation into full conformity with the Convention allowing all public servants who are not employed in the administration of the State to bargain collectively in respect of their employment conditions.

The Committee notes that according to COLETU, Public Service Act No. 13 of 1995 and the University Act bar civil servants and university lecturers from forming or joining trade unions. In addition to this, the Government has removed the jurisdiction of the Labour Court over cases involving public employees so that affiliates of COLETU, i.e. the Lesotho Union of Public Employees (LUPE) and the Lesotho Teachers’ Trade Union, have been silenced and cannot assist their members. The Committee notes that the Government states that the constitutionality of its action was confirmed in the High Court and that it is currently in the process of reviewing the legislation relating to the public service in consultation with the social partners including COLETU.

The Committee notes with interest that sections 20 and 21 of the draft Public Service Bill 2003 guarantee freedom of association to public officers and enable them to form officers’ associations for the purposes of collective bargaining. Section 14(1)(a)(iv) also provides that the Minister may issue and table before Parliament a (binding) code of practice on collective bargaining to guide the public officers and registered public officers’ associations on how to bargain collectively with the employer on matters of mutual interest without outside interference. Finally, section 17 provides that appeals arising from grievances, disciplinary actions or otherwise shall be brought before the Public Service Tribunal. The Committee requests the Government to keep it informed of steps taken with a view to the adoption of the draft Public Service Bill 2003 and to communicate the text of any code of practice adopted in this respect.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes that the Government is preparing detailed comments on the observation submitted by the Congress of Lesotho Trade Unions (COLETU). The Committee hopes that these comments will be received very soon so that it could examine them at its next meeting.

The Committee will also examine at its next meeting the questions raised in its 2001 direct request.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report, including the legislation and the judgement of the High Court of Lesotho attached thereto.

1. Article 4 of the Convention. The Committee takes note of the information provided by the Government in its report on the practical application of this Article, including the number of agreements signed, the signatory organizations and the sectors covered.

The Committee notes that section 23 of the Labour Code (Amendment) Act 2000 introduces a new section which supplements section 198 of the Labour Code, 1992. According to the Government, this section is intended to further encourage and promote the full development and utilization of machinery for voluntary negotiation between employers and workers and/or their respective organizations and it recognizes the importance of good faith in a collective bargaining relationship. However, the Committee notes that the new section 198A(1)(b) 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) specifies that "a majority of employees in the employ of an employer means over 50 per cent of those employees". It recalls that when the law stipulates that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent and when no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members.

2. Article 6. The Committee notes that the Labour Code does not apply to public officers by­ virtue of the provisions of section 35 of the Public Service Act No. 13 of 1995, which expressly excludes them from the application of the Code. It also notes that according to section 31 of the Act, public officers may form and establish staff associations under the provisions of the Societies Act 1966, but they shall not become members of any trade union registered under the Labour Code. Furthermore, the Committee notes that according to section 4 of the Public Service Act and section 154 of the Constitution, a public officer is a person holding or acting in any office of emolument in the public service. The Committee stresses that public servants not employed in the administration of the State are covered by the provisions of the Convention and therefore must have the right to bargain collectively through their organizations.

In this connection, the Committee takes note of the decision of the High Court of Lesotho confirming the constitutionality of sections 31 and 35 of the Public Service Act. It also notes the information supplied by the Government in its report according to which the National Advisory Committee on Labour (NACOLA) is seized with the issue of the exclusion of public servants from joining trade unions and made attempts to meet with the Minister of Employment and Labour to urge him to advise the Government to delete section 31 of this Act.

The Committee firmly hopes that the Government will take measures as soon as possible to bring the legislation fully into conformity with the Convention, allowing all public servants who are not employed in the administration of the State to bargain collectively in respect of their employment conditions. The Committee requests the Government to inform it in its next report on all measures adopted accordingly.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes that the Congress of Lesotho Trade Unions (COLETU) has sent communications dated 4 and 14 November 2001 on the application of the Convention. The Committee requests the Government to send its observations thereon for examination at its next meeting.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report and the list of collective agreements in force.

The Committee recalls that in its previous direct request it had noted that, under section 35 of the Public Service Act No. 13 of 1995, the Labour Code does not apply to public officers and had requested the Government to specify the scope of this exclusion. As the Government has confirmed that the situation has not changed, the Committee requests that the Government consider adopting measures to amend the legislation with a view to guaranteeing the right to bargain collectively to public administration workers who are not in the State Administration Service.

The Committee also requests the Government to send a copy of the Public Service Act No. 13 of 1995.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes with regret that the Government's report has not been received. It must therefore repeat its previous observation on the following matters:

1. Article 4 of the Convention. The Committee repeats its request to the Government to supply information on the practical application of this Article of the Convention, including the number of agreements signed, the signatory organizations and the sectors covered.

2. Article 6. The Committee notes that according to the Government's report, the Labour Code Order, 1992, does not apply to public officers by virtue of the provisions of section 35 of the Public Service Act No. 13 of 1995, which came into effect on 9 April 1996. The Committee requests the Government to specify the scope of the exclusion and forward to it a copy of this legislation.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the Government's report, including the judgements of the Labour Court attached thereto.

1. Article 1. The Committee had noted the conclusions of the Committee on Freedom of Association in Case No. 1590 concerning the need to provide compensation to trade union members who had been victimized due to their trade union activities. In its report, the Government states that in its opinion, this matter is closed for the following reasons: (i) the Court of Appeal found that the dismissals were lawful (pursuant to the Trade Union and Trade Dispute Laws, 1964, which has now been repealed); (ii) the former employers could not be compelled to provide compensation as they have left the country; (iii) the Government does not have the finances to provide such compensation due to budgetary constraints. The Committee notes that the first two of these reasons were raised by the Government within the context of Case No. 1590. On the first issue the Committee on Freedom of Association responded as follows:

Where national laws, including those interpreted by the high courts, violate the principles of freedom of association, the Committee has always considered it within its mandate to criticize the laws, provide guidelines ... the Committee does not consider here whether the Government has acted in a manner consistent with national law. Rather, it is considering only whether and how national law conforms to international standards, and in particular the ILO Conventions ... (287th Report of the Committee, paragraph 213).

The Committee on Freedom of Association also stressed the importance of financial compensation for the employees who had been dismissed for their participation in a strike, having noted that the enterprise had left Lesotho (287th Report, paragraph 221). While noting the Government's further concerns regarding budgetary constraints, the Committee reiterates the point raised by the Committee on Freedom of Association regarding the importance of compensating employees dismissed on the basis of their trade union activities. Where there is no remedy for a violation of a fundamental right, the right becomes illusory.

The Committee notes that pursuant to the Labour Code Order, 1992, as interpreted by the Labour Court, there is now protection against dismissal for participation in a strike. The Committee takes particular note of several Labour Court cases in which remedies for anti-union discrimination were ordered. Given that the new legislation provides protection for workers engaging in strikes and given that the enterprise at issue in Case No. 1590 has left Lesotho, the Committee will not pursue this matter further.

2. Article 4. The Committee repeats its request to the Government to supply information on the practical application of this Article of the Convention, including the number of agreements signed, the signatory organizations and the sectors covered.

3. Article 6. The Committee notes that according to the Government's report, the Labour Code Order, 1992, does not apply to public officers by virtue of the provisions of section 35 of the Public Service Act No. 13 of 1995, which came into effect on 9 April 1996. The Committee requests the Government to specify the scope of the exclusion and forward to it a copy of this legislation.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes with regret that the Government in its report has not answered its previous direct request.

Article 1. The Committee had noted the conclusions of the Committee on Freedom of Association in relation to Case No. 1590, concerning trade union members who had been dismissed on account of their trade union activities. The Committee again asks the Government to indicate in its next report the measures taken to provide compensation to the workers who had been victimized for their trade union activities or to indicate any new development in this regard. It also asks the Government to provide information on any court decision in relation to Article 1.

Article 4. The Committee asks the Government to supply information on the practical application of this Article of the Convention, including the number of agreements signed, the signatory organizations and the sectors covered.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee takes note of the information supplied by the Government in its report and of the Labour Code Order 1992, which contains a number of provisions which are in line with the requirements of the Convention.

Article 1. The Committee has noted the conclusions of the Committee on Freedom of Association in relation to Case No. 1590, concerning trade union members who had been dismissed from their employment on account of their trade union activities. The Committee, like the Committee on Freedom of Association, would ask the Government to indicate in its next report the measures taken to provide compensation to the workers who had been victimized for their trade union activities or to indicate any new development in this regard. It would also ask the Government to provide information on any court decision in relation to Article 1.

Article 4. The Committee would ask the Government to supply information on the practical application of this Article of the Convention, including the number of agreements signed, the signatory organizations and the sectors covered.

[The Government is asked to report in detail in 1996.]