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Individual Case (CAS) - Discussion: 2018, Publication: 107th ILC session (2018)

 2018-BWA-C087-En

A Government representative recalled that in 2017 the Committee had recommended the Government to: take appropriate measures to ensure that the labour and employment legislation granted members of the prison service the rights guaranteed by the Convention; ensure that the Trade Disputes Act (TDA) was in full conformity with the Convention and engage in social dialogue, with further technical assistance of the ILO; amend the Trade Unions and Employers Organisations Act (TUEO Act), in consultation with employers’ and workers’ organizations, to bring those laws into conformity with the Convention; and develop a time-bound action plan together with the social partners in order to implement the Committee’s conclusions. The speaker indicated that since then, consultations had been ongoing between the Government and the representatives of employers and workers on the process to amend the labour laws. In particular, the Government and the social partners had met seven times between July 2017 and April 2018, clearly showing the Government’s commitment to move forward. Although the process of reviewing the labour laws had been slow at the beginning, meaningful progress had been made in October 2017 when a tripartite time-bound action plan, as requested by the Committee, had been adopted by the tripartite parties and provided to the ILO Decent Work Team for Eastern and Southern Africa. There had been general consensus among the representatives of the Government and the social partners on the need to review the labour laws to fill the gaps, incorporate various Court decisions and make the legislation compliant with the ILO Conventions ratified by Botswana.

In April 2017, during the mission of the ILO Decent Work Team for Eastern and Southern Africa to Botswana, it had been resolved that the focus of the review would be on the Employment Act and the TUEO Act. However, the tripartite partners had acknowledged that some provisions in those laws could have a bearing on the provisions of other labour laws and it had therefore been agreed that the review could be extended to include such other laws as the Public Service Act (PSA) and the TDA, to the extent necessary, so as to ensure harmonization and consistency. In order to carry out the review, the Government and the social partners had agreed to establish a Labour Law Review Committee (LLRC) consisting of members from the Government, employers and workers, the purpose of which was to spearhead the labour law review process. The tripartite action plan envisaged that the Bills on the amendment of the laws would be submitted to the November 2018 session of Parliament. The Government and the social partners had also agreed to engage an expert to assist in the review process, had developed the Terms of Reference for the Review of the Labour Laws, which had been provided to the ILO in March 2018 and, with the facilitation of the ILO Decent Work Team for Eastern and Southern Africa, had also agreed on the expert to be engaged. During the Government’s engagement with employers’ and workers’ representatives, it had become clear that the amendment of the TDA, in particular the review of the list of essential services, was of critical importance to workers and the Government had therefore deemed it necessary to re examine the list of essential services. As such, the TDA and the PSA would form part of the laws that would be reviewed. Finally, the speaker emphasized once again that the framework for the review of the labour laws had been agreed with the social partners, that the action plan had been communicated to the ILO, which had facilitated the engagement of an expert, and that the tripartite parties had agreed on the expert and were awaiting confirmation from the ILO on when the expert would commence the task of facilitating the review of the labour laws. He also reiterated the Government’s engagement to ensuring that progress was made towards the full implementation of its commitments.

The Worker members recalled the recommendations made by the Committee during the discussion of the case in 2017, and noted that they had not been implemented. The Government had sent no report on the application of the Convention, which had led the Committee of Experts to repeat its previous observation. The situation was regrettable. First, with regard to the recurring issue of prison staff being denied the right to organize, the Government considered that the prison administration was part of the disciplined forces. Such a situation was contrary to Articles 2 and 9 of the Convention. While Article 9 provided for an exception for the armed forces and police, such an exception must be interpreted narrowly. It should be noted that the exception for the army and the police was not based on the fact that they were subjected to discipline, but rather on the nature of their activities. It therefore did not matter whether or not the prison administration was subject to disciplinary regulations. Furthermore, there was no direct link between the different categories (armed forces, police, prison service). Consequently, the Government’s argument that prison staff were excluded from the right to organize on the grounds that they were part of the disciplined forces was incompatible with the Convention, even if the Constitutional Court had accepted such an exclusion. The Worker members emphasized that, in other administrations, workers had been pressured into ending their trade union membership. Their employers had threatened to take away their social benefits if they did not give up their trade union membership. Legal action had been taken in this regard.

Second, concerning the right of trade union organizations to organize their activities, and in particular the determination of the list of essential services and the discretionary power of the Minister to declare a service essential, despite the diverging positions on the right to strike, the Employer members and the Worker members had reached a consensus on the subject during the examination of the case in 2017, and had invited the Government to bring its legislation on labour disputes into conformity with the Convention. Also at the legislative level, the issues relating to the conformity of the TUEO Act, which were linked to the provision granting certain facilities only to unions representing at least one third of the employees in the enterprise, had not been resolved. Although the establishment of thresholds of representativity was not in itself contrary to the Convention, this was subject to conditions such as the precise and objective nature of the criteria used, or the distinction being limited to certain privileges. In the case of Botswana, the Act did not establish a minimum number of members as a requirement for the establishment of a trade union, but as a requirement for the granting of certain privileges, such as access to the premises of an enterprise to recruit members, hold meetings or represent members in the event of a complaint, disciplinary measures or dismissal. However, such privileges were fundamental aspects of trade union activity; without them, it would be almost impossible for a trade union to recruit members or establish itself within an enterprise. Sometimes, even if a trade union met the criteria, the employer would refuse to grant it such privileges. Another provision of the TUEO Act that was contrary to Article 3 of the Convention was the one that authorized the registrar of trade unions to inspect the books and documents of a trade union at any reasonable time. In this regard, it was important to recall that organizations needed to benefit from the necessary autonomy and independence. Controls could only constitute an exceptional measure that must be narrowly defined. Lastly, regarding the new draft bill on the public service which, according to the Government, had been the subject of prior consultations with the social partners, it was essential for the Government to provide a copy of the latest version of the draft bill, or a copy of the legislation once it had been adopted. In conclusion, in 2017, the Government representative had stated that it was necessary to wait for the outcome of an open discussion with the social partners in the near future. The Worker members had shared this concern, which was linked to the need to ensure consultation with the social partners, and had recognized the difficulties and hurdles that a government could encounter in its efforts in that regard. Nevertheless, given the fact that the Government’s attention had been drawn for 17 years to many of the points under discussion, the amount of time needed to engage in social dialogue could not be used as an excuse for failing to guarantee the basic rights of workers.

The Employer members recalled that, although the case had first been discussed by the Conference Committee in 2017, it had previously been subject to nine observations of the Committee of Experts. It was being discussed again because nothing had happened in the meantime, despite the provision of technical assistance by the ILO on a number of occasions. It was noted that a recent change of presidency had had a beneficial effect on the Government’s commitment to change The Committee of Experts’ requests to the Government reflected concerns relating to compliance with the Convention in law and practice. With respect to practice, the Committee of Experts had reported violations of the Convention on several occasions, including favouritism towards certain trade unions, dismissals of striking workers, police repression of pickets and a refusal to allow public sector unions to address their concerns to Parliament. There were several aspects of concern to the Employer members, the first relating to the requirements of Article 3 of the Convention, which permitted workers and employers to set up organizations free from official interference. While favouritism and restrictive criteria for establishment did not meet that standard and should be avoided, that did not mean that there should be no criteria. It was common for unions to be subject to the same criteria as any other not-for-profit organization. Similarly, unilateral access by public authorities to the books and accounts of a union could be regarded as interference by the authorities, in clear contravention of Article 3 of the Convention. Regard should be had to the practice common in many countries of requiring regular reports rather than permitting the authorities’ access to trade union records. Acknowledging the establishment of the LLRC, the Employer members urged the Government to make progress in reviewing labour legislation so as to remove any barriers to the free establishment or operation of trade unions.

The reference in the Committee of Experts’ observation to instances of repression was more difficult to deal with as, without more evidence, it was difficult to assess whether the instances complained of involved violence or other unlawful acts that would have attracted legitimate attention from the authorities. Consistent with the Employer members’ firm view that the Convention did not regulate the right to strike, as well as with the view expressed in the Government statement to the 2015 tripartite meeting on the Convention that the scope and conditions of the right to strike were regulated at the national level, there was little more that the Employer members could add on the subject. The Government was encouraged to ensure that actions taken with respect to protests were commensurate with the source and nature of the protest and the respected national laws that governed them. The same applied to essential services, which could be designated by a country. In many countries, the right to organize and to take industrial action was typically denied to the armed services and the police, which was unequivocally a decision to be taken by the nation concerned. It was also common to designate certain other services as essential because any disruption of them for more than a short period would cause economic harm or endanger the lives, safety and health of the population. Botswana had designated a large number of services as essential and, while that approach did not in itself contravene the Convention, it did raise questions as to why, particularly when those services included banks and diamond operations. The history of the case also related to the Government’s designation of the prison services as a “disciplined force” in the same manner as the armed services and the police. The Employer members disagreed with such a designation, as the prison service was not responsible for preserving and maintaining law and order in the constitutional sense as applied to the armed services and the police. Nor, as observed by the Committee of Experts, was the prison service covered by the same legislation as the armed services and the police. However, the Employer members were restricted in commenting further as that was a matter for the national legislature. Similarly, as in 2017, the Government was urged to review the list of essential services and to ensure that any restrictions placed upon them were commensurate with their impact on the health and welfare of the citizens and the economy. With regard to the compliance of national law with the Convention, the Government had previously indicated that it was focused on amending the Employment Act and the TUEO Act, but meaningful dialogue with the social partners had yet to occur. Moreover, both employers and workers had previously expressed deep concern that focusing only on those two Acts would achieve little. In April 2018, the Government had asked for further assistance from the ILO which would be provided. The speaker welcomed the broadening of the review exercise, encouraged the Government to engage in social dialogue with the representative organizations of employers and workers willing to advance the underlying issues and noted the increased willingness of the Government to do so.

The Worker member of Botswana regretted that the Government was not complying with the Convention and had largely not followed the conclusions of the Committee, using delaying tactics and showing a negative attitude towards the supervisory bodies. Upon returning from the 2017 Conference, the Government had held a press conference in which, stopping short of denouncing the ILO, the Minister had stated that its findings were merely advisory and not binding. Despite this position, in July 2017, the trade unions had submitted for tripartite discussion proposals to give effect to the Committee’s conclusions. At first, the Government had frustrated those efforts and only in October 2017 had the proposals been discussed and the parties agreed to form a tripartite LLRC, as well as agreeing to a time-bound workplan to complete the review. The LLRC had been given the mandate to agree on the terms of reference for a consultant to assist in reviewing the laws, but the Government had sought in bad faith to unilaterally impose the terms of reference on the social partners, seeking to exclude from the scope of the review the TDA, the PSA and the Prisons Act. The workers’ representatives, supported by Business Botswana, had recalled that the Committee’s conclusions had called for the review of those Acts, but that the Government had refused to amend them and, as it was not even willing to engage in dialogue on the issue, had referred to its old argument that the prison service belonged to the disciplined forces. In its 25 April 2018 response to a request from the Botswana Federation of Public Sector Unions (BFTU) on the subject, the Government had claimed that unionization implied industrial action and that this would compromise national security. Such flawed reasoning was contrary to Article 9 of the Convention, as well as to national constitutional provisions on civil liberties. Moreover, since the last discussion by the Committee, violations of the Convention had continued. In January 2018, the Government had notified trade unions and federations that it would inspect trade union books, accounts and documents pursuant to section 49 of the TUEO Act and had insisted on such unlawful inspections, despite the BFTU’s submission that they were contrary to the Convention and would encroach on the independence and autonomy of trade unions. The BFTU was also deeply concerned at the deregistration of the Public Sector Bargaining Council (PSBC), an institution which nurtured and consolidated industrial democracy. The Government had also published the Public Service Bill (PSB) to amend the PSA without consulting any tripartite body. The PSB undermined the role of the social partners in the appointment of the PSBC secretariat and encroached on union autonomy by dictating who could represent them or negotiate on their behalf. The Committee must therefore request the Government, as a matter of urgency, to halt the continued violations of the Convention and to allow the terms of reference for the labour law review to be subject to tripartite structures and to encompass the various laws the Committee had urged be amended, as well as the PSA, with precise timelines.

The Employer member of Botswana stated that the tripartite partners had met to address the recommendations made by the Committee on the Application of Standards in 2017 and a tripartite task force had been established to spearhead a comprehensive review of the labour laws. Although much time had been lost on building consensus on the parameters of the review, there was confidence that the task force would rapidly oversee the labour law review, especially considering that the country’s new leadership was inclined to engage openly with the workers, and that it would report progress to the ILO supervisory bodies. As the review of the labour laws not only offered the opportunity to address the conclusions of the Committee, but also to align the national employment laws and policies with the needs of a modern and competitive economy, the speaker requested the Committee to give the country time to address its recommendations, and expressed the employers’ continued availability to work with the Government and workers on the issue. Finally, he sounded a note of caution, as it would not be easy to reach consensus on the classification of prison officers in view of the divergent legal opinions on the matter, but the deep tradition of consultation should allow for progress to be made.

The Government member of France drew attention to cases in which freedom of association had been violated, particularly as prison staff were unable to join a union and essential services were defined very broadly, leading to many workers being excluded from exercising the right to strike. In that regard, no information had been provided to suggest that the situation had changed. The speaker underlined the importance that should be attached to the full exercise of the right to freedom of association through effective and balanced social dialogue, and to the protections and facilities that should be provided for workers’ representatives. Similarly, it should be emphasized that the right to strike was an essential element of freedom of association within the meaning of the Convention, and that the importance of respecting this right in applying the Convention should be recalled. Freedom of association and the associated right to strike were fundamental labour rights enshrined in the eight core Conventions, universal ratification of which should be promoted. Consequently, the Government of Botswana should take into account the requests made by the Committee of Experts and review its legislation so as to enable workers whose functions could not reasonably be categorized as essential services to carry out trade union activities freely.

The Worker member of South Africa expressed concern that the various pieces of legislation identified by the Committee of Experts as requiring urgent and substantive amendments – the TDA, the Prison Services Act and the PSB – were designed to reduce workers’ rights, which was injurious to work morale, democratic industrial relations and productivity. It was also worrying that the Government continued to ignore the genuine efforts made by the national social partners, especially the workers, as well as by the Committee of Experts and the Conference Committee. The right of workers to organize, form organizations of their choice and have representation, including collective bargaining rights, constituted the basic minimum for making shared progress. He referred to the example of a trade union from South Africa which had organized workers in the police and prison services and highlighted that the trade union membership and activities of those workers had never posed a threat to the stability and cohesion of the country, or compromised the workers’ professionalism in carrying out their official duties. It was therefore not useful for the Government of Botswana to argue that workers in prison services were members of a disciplined force that could not be allowed to organize freely and genuinely. The tendency to systematically and administratively stifle and shrink spaces for civil liberties, including the rights of workers in prison services, was dangerous for economic and societal stability. Therefore, the Committee was strongly urged to call on the Government to preserve and respect the sanctity of the provisions of the Convention, which were unambiguous, persuasive and practical in relation to the rights of workers to freely organize and bargain, and to take measures to protect those provisions without let or hindrance.

The Government member of Zimbabwe thanked the participants for their interventions that focused on the core elements of the issue discussed, which was of a legislative nature. Legislative reforms could not be completed overnight given the plethora of bodies involved, including the tripartite structures, the Cabinet, the Parliament and their relevant subcommittees. The Government had informed the Committee about the roadmap, in particular the work being undertaken by the tripartite LLRC, which it had put in place, together with the social partners, to address the concerns raised by the ILO supervisory bodies. The Government had also stated that it was working together with the ILO field offices, including in relation to the labour law expert to be hired by the ILO to assist in elaborating the labour law reform. While appreciating the collaboration between the Government and the ILO, the speaker urged the latter to continue supporting the Government and the social partners in the reform process, including through its field offices.

The Worker member of Kenya indicated that the trade union organizations of the East African Trade Union Confederation (EATUC) understood perfectly the rationale and principles for essential services in the public services. Workers delivering essential services were conscious that their critical services, their professional commitment and willingness to serve people and their communities, contributed to the attainment of individual, community and national aspirations. Nevertheless, like every other worker, they had workplace rights to safeguard, which were not to be frozen, discounted and undermined simply because the workers were providers of essential services. Such rights should be well preserved, respected and enjoyed. However, the Government had continued to do the opposite, as noted in the report of the Committee of Experts. Experience had shown that workers who did not enjoy strike actions undertook efforts to avoid them as much as possible, but they also had the right to withhold their services where such efforts failed, so as not to open the gates for abuses of their other rights. The rationale for classifying essential services as was done in the TDA was incomprehensible, impossible to accept, and did not contribute to industrial relations and workplace harmony. It was difficult to see how diamond sorting, cutting and selling services, government broadcasting services, the Central Bank of Botswana, veterinary services and railway operations constituted essential services, as their interruption would not endanger the life, personal safety or health of all or part of the population. Recalling the Government’s assertion to the Conference Committee that legislative amendments would be made to the list, the speaker confirmed with regret that no progress had been made in that regard and asked the Committee to insist on real and tangible progress.

The Worker member of Ghana, speaking on behalf of the Organization of Trade Unions of West Africa (OTUWA), expressed concern about the TUEO Act, highlighting in particular its section 43, which provided for the inspection of accounts, books and documents of a trade union by the Registrar at “any reasonable time”. The provision was a clear interference by the Government in the internal affairs of trade unions, with the real consequence that union activities would be self-censored to favour the Government and not union members. Even in cases where the unions mustered the courage to assert their rights, there was the real and very high likelihood that the Government would retaliate by instigating false allegations, relying on its broad power to inspect union accounts, books and documents. The speaker also noted previous comments of the Committee of Experts indicating that legislative provisions regulating in detail the internal functioning of workers’ and employers’ organizations posed a serious risk of interference and were therefore incompatible with the Convention. For instance, in Ghana, the legal framework allowed unions to enjoy the greatest possible autonomy, with a view to enabling them to function effectively, and the social partners filed their annual financial and other reports with the sole objective of protecting the interests of union members and guaranteeing the union’s democratic functioning. Union activities and resources were from and for its members, who had the primary right to scrutinize and hold leaders accountable for running the organization. Governments should not include language in the legislation which could create any second level financial accountability mechanism as a pretext to interfere in legitimate trade union activities, and the Government was called on to amend the relevant legislation.

An observer representing Public Services International (PSI) indicated that the PSBC had been established in 2011, pursuant to the PSA, with the mandate to negotiate, conclude and enforce collective agreements. In August 2013, the office of the Director of Public Service Management (DPSM) had sent a letter to a member of the PSBC, the Botswana Federation of Public Service Unions (BOFEPUSU), stating that the Government was withdrawing from the PSBC, thereby rendering it dysfunctional, since the PSBC could only pass a lawful resolution if signed by both the employer and the trade union parties. The BOFEPUSU had taken the matter for review to the High Court, which had held that the withdrawal of the Government (as the employer) prejudiced the BOFEPUSU. Following the decision of the High Court, the Government had deregistered the BOFEPUSU as a Federation. That decision had been appealed and the courts had once again considered the deregistration to be illegal. In May 2017, the BOFEPUSU had withdrawn its membership from the PSBC, following the Government’s decision to unilaterally award a 3 per cent salary increase to public servants outside the purview of the PSBC. The High Court had held that the Government was not permitted to grant unilateral wage increases to public servants during the period when wage negotiations were in progress, as this constituted negotiating in bad faith. The High Court had also stated that granting a unilateral increase, in light of the manner in which this had been done, had seriously undermined the trade unions and had damaged their integrity and credibility by demonstrating that union representatives were not effective in bargaining and thereby dissuading employees from joining trade unions. In addition, the High Court had urged the Government and the unions to revisit the situation, so that the fair and inclusive negotiating forum could be reconstituted. Despite the judgment, the Acting Commissioner of Labour and Social Security had dissolved the PSBC in November 2017, even though unions had been collaborating together with the Minister of Employment, Labour Productivity and Skills Development to resume its operations and the Acting Commissioner had been notified of such efforts. The unions had since appealed to the Minister to rescind or revoke the Commissioner’s decision to cancel the PSBC, but to no avail. The speaker further recalled that the revision of the labour legislation was a great opportunity for the Government and the social partners to adopt legislation in line with the ILO standards ratified by the country. Nevertheless, the Government’s behaviour clearly showed a deliberate attempt to undermine social dialogue and Botswana’s obligations under the Convention.

An observer representing Education International (EI), speaking on behalf of the Botswana Secondary Teachers’ Union (BOSETU) and the Botswana Teachers’ Union (BTU), stated that a high number of employees, including teachers, had been placed under the category of essential services through the amendment of section 46 of the TDA. Such widespread extension of the essential service status to almost 85 per cent of workers in the public service was meant to freeze their rights to organize and effectively bargain, thereby infringing the Convention. Consequently, teachers and support staff in education would remain not only weak, but also vulnerable, their working conditions would deteriorate and it would have dire consequences on the quality of education, which was a public good. The speaker noted with regret the disagreements over the terms of reference of the tripartite LLRC, which had been established to review the labour laws to ensure their compliance with the Convention. The reasons of the disagreement had been the decision of the Government to exclude the TDA and the PSA from the review, even though section 46 of the TDA on essential services was a key aspect of the case, and it was therefore unacceptable for it to be excluded from the review. In addition, the Government had dissolved the PSBC, the only tripartite bargaining structure available in the public sector. As a result, there was no bargaining in the public service in Botswana. Furthermore, contrary to the Convention, a decision of the authorities to inspect union books had been adopted, which represented an interference in trade union affairs. The Committee was requested to ask the Government to include the TDA, the PSA and the PSB in the labour legislation review.

An observer representing IndustriALL Global Union referred to the continued violation of workers’ rights in Botswana reported by its affiliates, due to the Government’s continued failure to abide by the provisions of the Convention and the Committee’s requests. In 2017, the Committee had noted various submissions concerning new amendments to the TDA, but no concrete progress had been reported to date, despite the abundant goodwill and disposition of the social partners, especially the workers. Expressing deep concern at the attitude of the Government, the speaker noted that the TDA had a sweeping broad application across all sectors and this posed a threat to economic and labour peace. Reports from affiliates in the country pointed to members and workers in the diamond and mining industries who were experiencing violations deriving directly from the TDA, including the case of a government-owned mining company which had made 5,702 workers redundant without following the relevant procedures. Economic hardship was no reason to undermine workers’ rights. Workers with positions in the bargaining unit in the diamond cutting, sorting and sales services had been abusively re-classified as workers in “essential services”, with the effect of denying their right to bargain with their employers and to strike. They had been unable to get an audience with the Commissioner of Labour and Social Security or to have attention paid to their grievances, the administration of disputes related to essential services being treated as an act of magnanimity. The Government was asked to take appropriate measures to ensure that the TDA was in full conformity with the Convention and to engage in genuine social dialogue with national unions.

The Worker member of Burkina Faso emphasized that, while information on political change was an indicator to be taken into consideration, it was not sufficient in itself, particularly if account was taken of the principle of continuity of the State and the fact that the Government had stated in a press conference in 2017 that the Committee’s conclusions were mere recommendations that were not binding on national authorities. Regarding the process of codifying “living together” through the adoption of standards, the speaker emphasized that the principle of freedom of association was considered to be a central value of the ILO and that Convention No. 87 had been adopted by tripartite consensus to regulate the exercise of freedom of association and trade union rights. In that context, it was important to recall that Conventions were legally binding international treaties and that, through their ratification, countries committed to their application in law and in practice. All authorities in the country must contribute to respecting international commitments made by the Government through the ratification of a Convention. However, a lack of principled governance regarding respect for international commitments was widespread and constituted a dangerous phenomenon. The workers’ movement must act to ensure that trade unions played their role. To that end, it was essential for the Office to produce a simple leaflet, with a reminder of what a Convention was and of the hierarchy of standards for a country that had ratified it, in order to raise awareness among young workers.

The Government member of Iraq recalled that the Convention was a fundamental one and referred to fundamental freedoms. The Convention had just been ratified by Iraq. The right to organize and to freedom of association was essential and should be guaranteed even where a small group of workers was concerned. The Government and the social partners should pursue their efforts to better implement the Convention and adopt texts in line with it. The speaker expressed deep gratitude to the ILO and its various bodies for the enormous efforts made in relation to implementation of international labour standards, with a view to meeting the objective of social justice.

The Government representative expressed appreciation for the contribution of the various speakers, especially those who had supported the Government in its endeavour to advance in the labour law review process. He also expressed regret at the fact that the observations from the workers had not taken into account the progress made, especially considering that legislative changes could not occur overnight. He emphasized the country’s consultative approach to decision-making, as had been mentioned by the Employer member of Botswana. Most of the issues raised in the discussion concerned legislative issues and therefore needed to be subjected to social dialogue, preferably through the LLRC. However, it was unfortunate that some issues that had already been resolved through tripartite means, such as the Terms of Reference for the Review of the Labour Laws that formed the basis for ILO technical assistance, were being denied by workers in Botswana. Furthermore, the Worker member of Botswana had made some statements which were not factual. With regard to the PSBC mentioned by several speakers, the speaker clarified that: (1) the PSBC had been established in 2011 when the Government, as the employer, and the public service unions had created its Constitution through collective bargaining, and one of the powers bestowed on the Council by its Constitution had been the authority to decide which unions it should or should not admit; (2) in May 2017, the BOFEPUSU AJA had given notice of its resignation from the PSBC with immediate effect, as a joint arrangement between four public service unions, which were members of the PSBC; (3) as of May 2017, the Government had become the only member of the PSBC, which could thus not function or carry out its mandate, and the Government had made an application to the Commissioner of Labour to cancel the registration of the PSBC Constitution; (4) the cancellation of the PSBC Constitution had afforded an opportunity to the Government, as the employer, and all public service unions to craft a new constitution through collective bargaining so as to ensure that, in the future, it would not cease to function as a result of the voluntary withdrawal of one of its members; and (5) the Government was hopeful that the new Constitution would be agreed upon and the PSBC would once again be functioning by the end of August 2018. In conclusion, social dialogue was a delicate process that required mutual trust and good faith among the parties involved. As previously mentioned, the Government had met with the social partners on numerous occasions and together they had achieved several milestones, but it appeared from the intervention of the Worker member of Botswana that there were deeper and more serious underlying problems that needed to be addressed by the tripartite partners, with the assistance of the ILO expert. However, the formalization and institutionalization of the mechanism for the review of labour laws clearly demonstrated the Government’s commitment to implementing the Committee’s recommendations, as well as to examining other labour laws, such as the PSA.

The Employer members noted that Botswana had been going through a process of change in Government, in will and in attitude, but that this had not translated into concrete outcomes. Nevertheless, it was appreciated that the Government had sought ILO assistance and hope was expressed that the outcome of such assistance would translate into real progress. Referring to particular aspects of the case, the speaker highlighted that there were many ways of settling the issues at stake. The threshold for setting up unions did not have to be so high, but some thresholds could be set; with regard to the inspection of accounts, books, and documents of a trade union, it would be possible to balance the information the Government deemed necessary with observance of the Convention. The different views expressed on how progress had been achieved showed an absolute need to address the issues in a tripartite manner and the Government was urged to engage in social dialogue with the representative organizations of employers and workers.

The Worker members considered that, in the absence of tangible progress, there was a need to reiterate the requests made in the 2017 discussions. Above all, the Government should be invited to take the appropriate steps to ensure that the labour legislation endowed prison staff with the rights enshrined in the Convention, particularly freedom of association. The Government should also fully align the TDA with the Convention and initiate a social dialogue with renewed technical assistance from the Office. It was also necessary to amend the TUEO Act, in conjunction with the workers’ and employers’ organizations, to bring it into line with the Convention, particularly by revoking the obligation for organizations to make their books and documents available to the Registrar for examination at any reasonable time. Similarly, it was necessary to withdraw the facilities and benefits granted solely to trade unions that represented at least one third of the employees of the company, since these were not in keeping with the Convention. In view of the lack of progress, the Government should be called upon to take all possible steps to implement the recommendations adopted by the Committee.

Conclusions

The Committee took note of the oral statements made by the Government representative and the discussion that followed.

The Committee welcomed the Government’s agreement to broaden the scope of the labour law review.

Taking into account the Government’s submissions and the discussion that followed, the Committee called upon the Government to:

- take appropriate measures in consultation with the most representative employers’ and workers’ organizations to ensure that the labour and employment legislation grants members of the prison service that are not considered to be part of the police the rights guaranteed by the Convention;

- amend the Trade Unions and Employers’ Organizations Act, in consultation with employers’ and workers’ organizations, to bring it into conformity with the Convention;

- provide further information on the Court of Appeal ruling on the invalidity of statutory provisions;

- ensure that the registration of trade unions in law and in practice conforms with the Convention; and

- process pending applications for the registration of trade unions, in particular in the public sector, which have met the requirements set out by law.

The Committee called upon the Government to address these recommendations within the framework of the ongoing labour law review and in full consultation with the social partners. The Committee urged the Government to continue availing itself of ILO technical assistance in this regard and to report progress to the Committee of Experts before its next meeting in November 2018.

A Government representative acknowledged the recommendations of the Committee and confirmed that his Government was pursuing labour law review through the tripartite Labour Law Review Committee. The Government was committed to engaging with the social partners with a view to submitting a report to the Committee of Experts’ meeting in November 2018 and would continue to resort to the tripartite structures to progress with the legislative agenda and reforms, including the labour law review, during the November sitting of Parliament.

Individual Case (CAS) - Discussion: 2017, Publication: 106th ILC session (2017)

 2017-Botswana-C087-En

A Government representative stated that significant efforts had been made, in collaboration with the social partners, towards the enactment of labour laws that protected and promoted workers’ rights. The Trade Disputes Act had been amended in August 2016 in order to address delays in the resolution of trade disputes. Legislative amendments had also been introduced pursuant to the Court of Appeal ruling on the invalidity of statutory provisions which gave the Minister the power to amend the list of essential services. That judgment clarified that it was the role of Parliament to determine the list of essential services. In response to the judgment, the Government had presented amendments to the Trade Disputes Act which included the issue of essential services. The Government’s position on essential services was premised on the socio-economic circumstances of the country. Inclusion on the list of essential services did not deny those categories of employees the right to organize or to associate, but only the right to withdraw their labour. Section 13 of the Constitution guaranteed freedom of association, and allowed the reasonable limitation of that right in the interest of defence, public safety, public order, public morality or public health. The Trade Disputes Act had been carefully crafted to ensure its conformity with the Constitution and had been promulgated after extensive consultations. Considerable consultation had also been undertaken with public service unions on the Public Service Bill, and care had been taken to ensure that the Bill was constitutional. The Bill was at the stage of publication in the Official Gazette prior to being tabled before Parliament. The publication would allow for further consultation and input, and could result in further amendments prior to its consideration in Parliament.

The Committee of Experts considered that essential services were those whose interruption would endanger the life, personal safety or health of all or part of the population. However, the Committee of Experts also considered that account must be taken of the special circumstances that existed in various member States. While the interruption of certain services in some countries might cause only economic hardships, it could prove disastrous in others and rapidly lead to conditions that might endanger the life, personal safety or health of the population and the stability of the country. That flexibility allowed the circumstances to be taken into account when incorporating the spirit and intent of a Convention into domestic legislation. A more rigid approach would unduly restrict member States. The original list of essential services in the Trade Disputes Act had been adopted approximately 25 years ago, and was amended in 2016 in response to new developments and the specific circumstances in the country.

The exclusion of prison officers from coverage under the Trade Disputes Act and the Trade Unions and Employers’ Organizations Act had also been cited as a contravention of the Convention. Prison officers in Botswana were classified as members of the disciplined forces and were the custodians of public safety and security. The constitutionality of that exclusion had been reaffirmed by the Court of Appeal. However, support staff or administrative staff were covered by the Trade Disputes Act and the Trade Unions and Employers’ Organizations Act.

In the spirit of discussion and consultation, the Employment Act and Trade Unions and Employers’ Organizations Act were being reviewed, which would address a number of the issues raised by the Committee of Experts. A request had been made to the ILO Decent Work Team for Eastern and Southern Africa in January 2017 for technical assistance in a number of areas, including labour law reform, with a focus on the Employment Act and the Trade Unions and Employers’ Organizations Act. The objectives of that review were: addressing the gaps in those Acts; making the legislation conducive to the undertaking of business; incorporating the various decisions of the Courts; and aligning the Acts with the international labour standards ratified. Several ILO missions had been undertaken in April 2017. There had been general consensus that some of the labour legislation was outdated and needed revision in order to align it with ILO Conventions, and to comply with the decisions of courts. It had therefore been agreed that the main focus of the reform would be the Employment Act and the Trade Unions and Employers’ Organizations Act, but the reform could be extended to include other Acts, to ensure consistency. Social dialogue and stakeholder engagement during the labour law reform process were considered central to its success. The Government was committed to aligning its labour laws with ILO Conventions. There had not yet been the opportunity for open discussion with the social partners on the labour laws, and the law reform and other consultation processes should be allowed to take their course. It was therefore necessary to wait for the outcome of these discussions.

The Employer members commended the Government for its ratification of all eight fundamental Conventions. Pursuant to certain provisions of the Trade Unions and Employers’ Organizations Act, the Trade Disputes Act and the Prison Act, members of the prison service were part of the disciplined forces, and were therefore prohibited from becoming members of a trade union. According to Article 9(1) of the Convention, only armed forces and the police could be exempted from the application of the Convention. The national courts believed that the prison service was functionally akin to the police or armed forces. In its observation, the Committee of Experts had initially appeared to agree with that assessment. However, it then concluded that the prison service was not akin to the police or the armed forces, and requested the Government to amend the law to grant the rights under the Convention to workers in the prison service. In that respect, the Committee of Experts’ recommendations appeared to be contradictory, and its conclusion, without an explanation of its reasoning, was confusing. Clarity in that respect was required in order to enable the Conference Committee to properly supervise the case. In addition, the right to associate did not automatically mean that the trade unions of prison staff would have a right to bargain collectively. It also did not mean that those workers would have the right to take industrial action, as the Committee of Experts had recognized that prison services were essential services where strikes could be prohibited. However, the difference between the right of association and representational rights was sometimes not well understood.

Section 46 of the Trade Disputes Act, as amended, defined essential services to include the Bank of Botswana, diamond sorting, cutting and selling services, operational and maintenance services of the railways, veterinary services in the public service, teaching services, government broadcasting services, immigration and customs services, and services necessary to the operation of any of these services. Pursuant to section 46(2) of the Trade Disputes Act, as amended, the Minister could declare any other service as essential if its interruption for at least seven days endangered the life, safety or health of all or part of the population or harmed the economy. In this respect, the Employer members disagreed with the conclusion of the Committee of Experts. With reference to the Joint Statement of the Workers’ and Employers’ groups at the 2015 Tripartite Meeting on the Convention in relation to the right to strike and the modalities and practices of strike action at national level, they considered that there was no basis for a discussion in the Committee on that point. Regulation at the national level was appropriate for those issues and the national regulation was deemed in conformity in a decision of the courts.

Section 48B(1) of the Trade Unions and Employers’ Organizations Act granted certain facilities only to unions representing at least one third of the employees in the enterprise. While the Committee of Experts had requested that this be amended, the difficulty with this provision was not clear. It would have therefore been more appropriate for the Committee of Experts to request information on the motivation underlying that section. Section 43 of the Trade Unions and Employers’ Organizations Act provided for inspection of accounts, books and documents of a trade union by the registrar at “any reasonable time”. The Employer members agreed with the Committee of Experts’ conclusion that “any reasonable time” was not appropriate and that inspection should be limited to an obligation to provide periodic reports.

The Committee of Experts’ direct request referred to the reform of employment legislation. The ILO was providing technical assistance in this respect. The Government had met with the social partners and there was general agreement on the need for a holistic review of the legislation, rather than of certain provisions of the Trade Unions and Employers’ Organizations Act, the Trade Disputes Act and the Prison Act. In this respect, the Government and the social partners should be given the time necessary to finish this holistic review and to amend the legislation in accordance with the Committee’s latest conclusions, and then to report back.

The Worker members emphasized that freedom of association, as enshrined in the Convention, was a fundamental right that was essential for the realization of all other rights. This right included, on the one hand, the right to associate with other workers to establish trade unions and, on the other hand, the right to take collective action. The Committee of Experts had reported violations of the Convention by the Government of Botswana on several occasions, for which reason it had been included in the list of individual cases and needed to provide detailed responses to the allegations. Acts of favouritism towards trade unions was one of the most insidious and dangerous violations of the Convention, as it led to division and contention within workers’ organizations. Moreover, the favouring of one organization to the detriment of others was an indirect violation of the right of workers to join organizations of their own choosing.

Regarding the need to amend the legislation to allow workers in the prison service to join a trade union, the Government considered that the prison services formed part of the disciplined forces and that they could therefore be excluded from the protection afforded by the Convention in the same way as the police and the armed forces. In this respect, the Worker members emphasized that the exception set out in Article 9 of the Convention for the armed forces and the police had to be interpreted restrictively, as indicated by the Committee of Experts in the 2012 General Survey on the fundamental Conventions. It was the nature of their work that meant that public servants in the prison administration were covered by the exception, not the fact that they were subject to special disciplinary regulations. Furthermore, the police, the armed forces and the prison service were governed by separate legislation.

Concerning the long list of essential services contained in the Trade Disputes Bill, to which the Committee of Experts had referred, the Workers emphasized that several services on the list could not be considered essential services, that is, those services whose interruption would endanger the life, personal safety or health of all or part of the population. Furthermore, the provision enabling the Minister to declare any other service essential if its interruption harmed the economy was arbitrary in nature and contrary to the Convention. This provision rendered the right to engage in collective action completely meaningless, as any action of a certain scope would inevitably have an impact on the national economy. The legislation must therefore be amended in order to limit the list of essential services.

Regarding the thresholds of representativity required for the granting of certain facilities to trade unions, the establishment of such thresholds was not in itself contrary to the Convention. However, this possibility was subject to conditions (the specific and objective nature of the criteria, or the distinction being limited to certain privileges). In this case, the legislation did not establish a minimum number of members as a requirement for the establishment of a trade union, but as a requirement for the granting of certain privileges, such as access to the premises of an enterprise to recruit members or the representation of members in the event of a complaint, disciplinary measures or dismissal. These two elements were fundamental aspects of trade union activity. Without them, it would be almost impossible for a trade union to recruit members and to establish itself within an enterprise. Workers would therefore no longer be able to choose their trade union freely.

The Worker members referred to another legislative provision that was in violation of the Convention and would need to be amended, namely the provision authorizing the trade union registrar to inspect the books and documents of a trade union “at any reasonable time”. This measure constituted interference in the activities of organizations that was contrary to the Convention, as controls by the authorities should only be carried out in exceptional cases and according to strictly defined criteria. Organizations needed to benefit from the necessary autonomy and independence.

In 2005, the Committee of Experts had welcomed the efforts made by Botswana to ensure a more effective application of the Convention. It was to be hoped that there would be further progress in relation to the various points outlined above so as to ensure full respect for freedom of association.

The Worker member of Botswana expressed support for the Committee of Experts’ conclusion that prison staff were not members of the disciplined forces and were therefore being unjustly denied the right to organize and bargain collectively. No court ruling had held that prison staff belonged to the disciplined forces. The recent amendments to the Trade Disputes Act had significantly enlarged the definition of essential services. In April 2011, the public service unions had gone on strike and demanded a salary increase when no agreement had been reached through negotiation. In response, the Government had quickly introduced legislation seeking to categorize a number of services as essential, including the teaching services and the diamond cutting and polishing services. That legislation had subsequently been ruled unlawful by the judiciary. In 2016, despite the strong opposition of trade unions, amendments to the Trade Disputes Act had been adopted extending the list of essential services from 10 to 16 services, some of which did not fall under the definition of essential services in the strict sense of the term. Those amendments had opened the door for the classification of the whole economy as essential, in providing that all other services that were necessary for the operation of the services listed were also considered essential. Both workers directly involved in the services listed as essential and those working in supporting services were affected, including workers in the public, parastatal and private sectors. Moreover, the amended Act prohibited all workers in essential services from participating in a strike, which aimed to prevent the use of strikes as a bargaining tool. Those provisions had not been enacted pursuant to court rulings. Section 46(2) of the Trade Disputes Act as amended also authorized the Minister to declare more services essential after consulting the Labour Advisory Board if a strike lasted more than seven days. That was unacceptable, as consultation of the Labour Advisory Board had often been a formality. The industrial relations situation in the country was deteriorating, as evidenced by the newly proposed amendments to the Public Service Act, which would be presented before Parliament in July 2017. The proposed amendments sought to deprive public employees of the right to bargain. Section 72 of the proposed amendments provided that the Department of Public Service Management would be the secretariat of the Public Service Bargaining Council (PSBC), and that would enable the Government to take control of the Council. In addition, section 74(4) of the proposed amendments authorized the Minister to appoint the Chairperson and Vice-Chairperson of the Council without any consultations with, or agreement of, the trade unions. The proposed amendments would also allow salary increments to be granted without the Council’s approval. Those changes, if adopted, would render collective bargaining in the public service useless. He urged the Committee to call upon the Government to comply with its international obligations.

The Government member of Swaziland, speaking on behalf of the member States of the Southern African Development Community (SADC) acknowledged the efforts of the Government. ILO technical assistance had commenced with a view to achieving compliance with the Convention, and this assistance should continue. Meaningful and constructive social dialogue was encouraged among all the partners involved in ensuring full compliance with the Convention, taking into account the socio-economic situation of the country. The Government should be given the opportunity to continue the internal review process of the relevant national legislation in an effort to ensure full conformity with the Convention, and the necessary technical assistance should continue.

The Worker member of Zimbabwe stated that the Trade Unions and Employers’ Organizations Act violated labour rights. Sections 11 and 15 of the Act prohibited unregistered trade unions from conducting any operations. However, the Committee of Experts had previously recommended that the activities of unregistered unions should not be totally banned and that an opportunity should be provided to rectify the absence of formal registration, by virtue of Article 2 of the Convention. Moreover, section 27 of the Act required that trade unions and employers’ organizations conduct “a general meeting” by convening all members of the concerned organization, which was difficult to achieve in practice. Trade unions must have the right to regulate their own operations through their constitutions. Stipulating such conditions was inconsistent with the requirement of Article 3(1) and (2) of the Convention and amounted to interference. The Trade Unions and Employers’ Organizations Act also granted excessive authority to the registrar. Pursuant to section 43 of the Act, the registrar could interfere in the operations of a trade union by inspecting its books without cause. The Government had a duty to ensure transparency, but there were no guarantees of an impartial procedure by the competent judicial authorities. It was regrettable that those provisions, which interfered with the autonomy and financial independence of trade unions, had not been amended despite the repeated recommendations of the Committee of Experts. Consequently, the Government must be called upon to adhere to its international obligations.

The Government member of Malawi took note of the Government’s statement regarding the challenges surrounding the practical application of the Convention. She commended the Government’s efforts, particularly its request for ILO technical assistance with the labour law review, to address certain gaps with a view to guaranteeing the constitutional right to freedom of association. The ILO should provide the support necessary to fulfil the country’s obligations. She encouraged the Government to engage in meaningful consultation with the social partners and stakeholders to align the labour laws with ILO Conventions.

The Worker member of Norway, speaking on behalf of the trade unions of the Nordic countries, expressed disappointment that the new Trade Disputes Act limited the fundamental rights of many workers. Prison workers were prohibited from joining trade unions. Section 46 of the Trade Disputes Act as amended enumerated a broad list of essential services, and other services could be added at the Minister’s discretion. This affected approximately 20,000 workers and appeared to stifle trade union activities. Botswana’s tripartite Labour Advisory Board currently only advised the Minister. Instead of imposing restrictions, the Government should enhance dialogue with the social partners on the basis of trust and respect, and agree on a roadmap for cooperation. The right to organize for all workers was not antithetical to an agreement as to what constituted essential services. In conclusion, the Government should promote the development and use of collective bargaining mechanisms and laws in both the private and public sectors, and widen the scope of workers covered by effective collective bargaining agreements.

The Government member of France referred to the problems identified by the Committee of Experts regarding, on the one hand, obstacles to the free exercise of trade union activities, particularly the prohibition on prison staff joining trade unions and, on the other hand, the very broad definition of essential services, which excluded many workers from the exercise of the right to strike. Freedom of association and specific provisions permitting the full exercise of this right, through effective and balanced social dialogue or through protections and facilities granted to worker representatives, were essential. Moreover, the right to strike was an essential element of freedom of association and it was important to recall the importance of respect for that right in the context of the application of the Convention. He invited the Government to take into account the requests made by the Committee of Experts with respect to amending the legislation on labour disputes and the public service in order to enable workers whose duties could not reasonably be classed as essential services to freely exercise trade union activities.

An observer representing Education International (EI) noted with concern the inclusion not only of teachers but of support staff on the list of essential services in section 46 of the Trade Disputes Act, as amended. As outlined in the 2012 General Survey of the Committee of Experts, the restriction of the right to strike should only be limited to those services whose interruption would endanger life, personal safety or health, and teachers did not fall within that definition. During a lengthy strike, the possibility of establishing minimum services in consultation with the social partners made the inclusion of education on the list even less necessary. The core value of respect for teachers must be reflected in appropriate working conditions as well as in freely negotiated collective agreements, for which the ability to strike was fundamental. Unions had been given only three days to make written submissions on the draft amendments to the Public Service Act, without any face-to-face consultations. Nonetheless, the amendments had been gazetted and would be submitted to Parliament in July 2017.

An observer representing the International Transport Workers’ Federation (ITF) recalled that, as clearly enunciated by the Committee of Experts, the essential services enumerated in section 46 of the amended Trade Disputes Act did not constitute essential services in the strict sense of the term. Transport generally did not constitute an essential service. Other than air traffic control, the transport occupations listed in the Act, namely the operational and maintenance services of the railways and the transportation and distribution of petroleum products, did not constitute essential services. Furthermore, the broad classification of the services necessary to operate essential services as also being essential services would invariably capture the majority of transport operations in the economy. Harm to the economy caused by the interruption of a service was insufficient to consider it as an essential service and this would limit collective bargaining. For example, the majority of members of the ITF-affiliated rail union workers in the state railways operations, engineering, finance and IT departments, were all covered by the essential services provision. Moreover, the Government had failed to give compensatory guarantees for workers deprived of the right to strike. The Government had not even considered the introduction of a negotiated minimum service as a possible alternative to a total prohibition on strikes. The new essential service provisions made it more difficult for transport workers to take action in defence of their jobs, livelihoods and working conditions. Echoing the comments by the Government member of France, he recalled that the right to strike was a human right protected in international law, not only covered by the Convention, but also recognized now as customary international law. The Government was therefore urged to comply with the observations of the Committee of Experts in order to bring the amended Trade Disputes Act into conformity with the Convention.

The Worker member of South Africa, speaking on behalf of the Southern Africa Trade Union Co-ordination Council (SATUCC) and its affiliates in the SADC, recalled that the Trade Disputes Act and related legislation, such as the Public Service Bill and the Prison Act, subjected workers to a labour market system in which organizing and bargaining were viewed as contradictory to progress. Botswana illustrated a tendency to restrict workers’ rights in the race to diminish labour standards. Botswana had for some time been ambivalent regarding labour rights and the freedom to express contending views. There was a regional trend to erode gains made by workers and seemingly to test problematic legislation which restricted workers’ rights. When the Trade Disputes Act had been adopted, it essentially eliminated the right to strike and the means to bargain. The Committee should call on the Government to respect the unequivocal and unambiguous provisions of the Convention regarding the rights of workers to organize. Ratifying a Convention without adapting national law was in violation of international law.

An observer representing Public Services International (PSI) noted that the Government had started a wide-ranging process of revising the labour legislation in the country. Certain provisions of the new Public Service Bill were not fully in line with ILO principles on freedom of association and collective bargaining. Section 3(2)(c) of the Bill excluded some categories of workers from unionization. This included “members of staff” of the Directorate of Intelligence and Security. The term “members of staff” had a broad meaning, which would exclude support staff such as labourers and cleaners. Section 19(2) excluded, among others, persons who had been convicted of a criminal offence from joining the public service. The term “criminal offence” was also broad and it might prevent, for example, a person convicted of a speeding offence from joining the public service. Section 50 banned political expressions in the public service but was silent as to what constituted a political matter. According to ILO principles, workers should enjoy civil liberties and freedom of political expression. Section 61 removed the power of the PSBC to settle disputes or grievances of whatever form. Sections 72 and 74(4) of the Bill gave power to the Directorate of Public Service Management and the Minister to appoint the secretariat, Chairperson and Deputy Chairperson of the PSBC, respectively. The Constitution of the PSBC currently conferred that power to the Council itself. Section 74(3) provided that representatives of both the worker and employer shall be public officers. That restriction limited the ability of both parties to be represented by experienced negotiators of their choice and was contrary to Article 3 of the Convention. Section 75 gave the employer the power to unilaterally change terms and conditions of service without input from the PSBC, or even from workers. Finally, section 76(2) gave the employer the possibility of conferring benefits during ongoing negotiations, which short-circuited the bargaining process and might be contrary to the duty to bargain in good faith. The revision of the labour legislation in Botswana was a great opportunity for the Government and the social partners to adopt legislation in line with ILO Conventions. In that process, consultations with representative trade unions were of the utmost importance for constructive labour relations and to maintain the social peace. He requested that the Government keep working with the ILO and that there be a formal process of consultation with trade unions representing public sector workers.

The Government member of Zimbabwe expressed support for the statement delivered by the Government member. Consultations were ongoing with a view to aligning legislation with the ILO Conventions. The Committee should afford the tripartite partners an opportunity to undertake these consultations in earnest. The issues raised by the Committee of Experts provided a good platform through which the tripartite constituents in the country could continue to engage. Issues around labour law reform and social dialogue required the collaboration of the tripartite partners. The speaker encouraged the ILO to provide the necessary support in order to achieve the desired objectives.

The Government representative acknowledged the contributions to the discussion as helpful and indicated that some issues raised by members of the Committee had not been factual. For instance, all registered trade unions had the right to organize and no trade unions were favoured by the Government. All trade unions were subject to the labour laws and could have recourse to established trade dispute resolution mechanisms and the courts of law. He did not agree with the statement by the Worker member of Botswana that consultations in the Labour Advisory Board were superficial. Botswana had ratified 15 ILO Conventions as a result of the advice of the Board. He fully agreed with the position of the Employer members regarding the need for a holistic review of the labour laws. The Government also undertook to further engage with the social partners to clarify certain issues during the labour law reform process. The necessary time must be given for consultations to take place.

The Worker members reaffirmed that the inclusion of the case in the list of 24 individual cases, which was agreed by consensus, was fully justified. Violations had been clearly identified by the Committee of Experts since 2001, and it was to be hoped that the Government would make every effort to meet its international obligations. To that end, it must, inter alia: (i) refrain from any action that had the consequence of favouring one organization to the detriment of others; and (ii) amend its legislation to enable all workers in the prison administration to join a trade union and to limit the list of essential services. In that regard, it should be recalled that, in their Joint Statement of 2015, the Employer and Worker members had recognized the right to take collective action. The fact that the concept of essential services was being discussed meant that limits could be placed on that right, on the basis of the Joint Statement. Furthermore, the consequences of allowing a State to consider a service as essential if its interruption harmed the economy were twofold: it called into question the right of workers to take collective action and it contradicted the main objective of the Organization by subordinating the achievement of social justice to an economic imperative. In that regard, the statement by the Government member of France, to the effect that the right to strike constituted an essential element of freedom of association, was to be welcomed.

With regard to the privileges granted only to trade unions representing one third of employees in an enterprise, the Government should either review this limit or review the privileges granted to such unions. Those privileges prevented the development of trade union pluralism. Lastly, the Government should repeal the provision allowing the trade union registrar to inspect a union’s books and documents at “any reasonable time”. To give effect to these reforms, the Worker members called on the Government to avail itself of ILO technical assistance and to establish a workplan in collaboration with the social partners.

The Employer members stated that they were in agreement that the determination of the list was a consensual process. They reiterated that the Committee of Experts had been correct to indicate that the legislative provision providing for the inspection of accounts, books and documents of a trade union by the registrar at “any reasonable time” should require no more than periodic reporting. Disagreement existed on the issue of essential services and on the right of those services to take industrial action. Disagreement existed with respect to the existence of the right to strike under the Convention. In that respect, the Government group statement of the 2015 Tripartite Meeting on the Convention in relation to the right to strike and the modalities and practices of strike action at national level had stated that the scope and conditions of the right to strike were regulated at the national level. That also applied to essential services. Noting the reference to the 2012 General Survey of the Committee of Experts, the Employer members stated that the contents of the General Survey had led to difficulties in the Committee’s functioning for several years.

The Employer members indicated that the provision of technical assistance should continue. The holistic review of the legislation should also continue, particularly in light of the numerous pieces of legislation mentioned by various members of the Committee. The Government should then report back as to the outcome of the holistic review and the changes made.

Conclusions

The Committee took note of the oral statements made by the Government representative and the discussion that followed.

Taking into account the discussion, the Committee called upon the Government of Botswana to:

- take appropriate measures that ensure that the labour and employment legislation grants members of the prison service the rights guaranteed by the Convention;

- ensure that the Trade Disputes Act is in full conformity with Convention No. 87, and engage in social dialogue, with the further technical assistance of the ILO;

- amend the Trade Unions and Employers Organisations Act, in consultation with employers’ and workers’ organizations, to bring these laws into conformity with the Convention.

The Committee called upon the Government of Botswana to develop a time-bound action plan together with the social partners in order to implement these conclusions. The Committee urged the Government to continue availing itself of ILO technical assistance in this regard and to report progress to the Committee of Experts before its next meeting in November 2017.

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

Previous comment

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.

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee drew the Government’s attention to several provisions of the Trade Unions and Employers Organisations’ Act (TUEO Act) and of the Trade Disputes Act (TDA), which are not fully in line with the Convention, and requested the Government, in the framework of the ongoing labour law reform, to take the necessary measures, in consultation with the social partners.
With respect to the TUEO Act:
  • -repeal section 8, which sanctions each officer or any person acting or purporting to act as an officer of a trade union or federation that failed to apply for registration within 28 days of its formation (although the official recognition of an organization through its registration constitutes a relevant aspect of the right to organize, the exercise of legitimate trade union activities should not be dependent upon registration, and penalties in this regard should not be imposed on the trade union or its members);
  • -amend section 10 so as to afford industrial organizations an opportunity to rectify the absence of some of the formal registration requirements provided for in that section;
  • -repeal sections 11 and 15, which result in the automatic dissolution and banning of activities of non-registered organizations;
  • -repeal section 20(3), second sentence, which prohibits young members (15–18 years old) from being officers or trustees of a workers’ or employers’ organization (minors legally allowed to work should be able to be candidates for trade union office);
  • -amend section 39, which allows the Registrar or Attorney-General to apply for an interdict to restrain any unauthorized or unlawful expenditure of funds or use of any trade union property, and section 41(3), which provides the Registrar with broad supervisory powers over the financial assets of a trade union, to ensure that supervision is limited to exceptional cases and that trade unions enjoy autonomy and independence (supervision is compatible with the Convention only when it is limited to the obligation of submitting annual financial reports, verification based on serious grounds to believe that the actions of an organization are contrary to its rules or the law and verification called for by a significant number of workers).
The Committee notes the Government’s indication that the above comments in relation to the TUEO Act have been considered in the ongoing labour law review process.
With regard to the TDA:
  • -amend section 43(3) (prohibiting an employer to hire workers to replace striking or locked-out workers only if the parties have concluded an agreement on the provision of minimum services or, if no such agreement has been made, within 14 days of the commencement of the strike). The Committee notes the Government’s indication that the Labour Law Review Committee (LLRC) understands that this provision is rightfully placed because the minimum service to which it refers to, is not related to essential services, but to the regulation of strikes in general, and that, accordingly, this provision has not been proposed for amendment. The Committee wishes to clarify that the suggested amendment is aimed at limiting the power to hire external replacement workers, so that it is only permitted in cases of acute national crisis, to essential services in the strict sense of the term and to cases where minimum service can be imposed, and
  • -amend section 43(4) (prohibiting picketing if the parties have concluded an agreement on the provision of minimum services or, if no such agreement has been made, within 14 days of the commencement of the strike or lockout). The Committee notes the Government’s indication that the LLRC understands that this provision is rightfully placed because the minimum service to which it make reference to, is not related to essential services, but to the regulation of strikes in general, and that, accordingly, this provision has not been proposed for amendment. The Committee wishes to clarify that the suggested amendment is aimed at allowing pickets to take place in the absence of an agreement on the provision of minimum services and at any time after the commencement of a strike or lockout.
Trusting that all pending matters in relation to the TUEO and TDA Acts will be addressed in the framework of the ongoing labour law review process, the Committee urges the Government to take measures to ensure that such Acts are amended, in consultation with the social partners, so as to bring them into full conformity with the Convention. The Committee requests the Government to continue providing information on any progress achieved in this regard and to provide a copy of the amended Acts once adopted.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the observations of the Botswana Federation of Trade Unions (BFTU) received on 1 October 2020 relating to matters examined in the present comment. It notes that the observations of the BFTU also allege dismissals of workers because of industrial action following the adoption on 9 April 2020 of an Emergency Powers Act, which included a clause that restricted workers and employers from taking part in industrial action. The Committee requests the Government to provide its comments thereon.
Not having received other supplementary information, the Committee reiterates its comments adopted in 2019 and reproduced below.
The Committee notes the Government’s reply to the observations made by the International Trade Union Confederation (ITUC) and the Trainers and Allied Workers Union (TAWU) in 2013 and 2014.
Legislative developments. The Committee recalls that, following the recommendations made by the Conference Committee on the Application of Standards (Conference Committee) in 2017 and 2018: (i) the Government had embarked on a labour law review process; (ii) a tripartite Labour Law Review Committee (LLRC) was established; and (iii) the LLRC decided to focus the review on the Employment Act and the Trade Unions and Employers Organisations (TUEO) Act, the Public Service Act of 2008 (PSA) and the Trade Disputes Act of 2016 (TDA). In its last observation, the Committee had noted that both the Government and the Botswana Federation of Trade Unions (BFTU) had indicated that the work by the LLRC was ongoing and that progress was being made with respect to the implementation of the Conference Committee’s recommendations. The Committee had also noted the Government’s indication that, given that a review of the list of essential services was of critical importance to workers, a task team had been formed to review such list under section 46 of the TDA.
In its last report, the Government indicates that, while the labour law review is still ongoing, on 8 August 2019, the Parliament passed the TDA (Amendment) Act 2019, which amends the list of the essential services. The Committee notes with satisfaction that, in line with its recommendations, the following services have been deleted from the list of essential services: diamond sorting, cutting and selling services; teaching services; government broadcasting services; the Bank of Botswana; vaccine laboratory services; railways operation and maintenance services; immigration and customs services; transportation and distribution services of petroleum products; sewerage services; public veterinary services; and services necessary to the operation of any of these services.
The Committee takes note that, accordingly, the list of essential services under section 46 of the TDA (Amendment) Act 2019 contains the following services: air traffic control services; fire services; the provision of food to pupils of school age and the cleaning of schools; electrical services (electricity teams for generation, transmission and distribution); water and sanitation services; and health services as well as transport and telecommunication services required for the provision of any of the previously mentioned services. The Committee notes the Government’s indication that such ancillary transport and telecommunication services have been included in light of the particular circumstances prevailing in the country and considering, for instance, the need for ambulances or the services of operators who take note and transmit the details of patients in cases of accidents for paramedics to attend to the scene.
The Committee recalls that, in its previous comments, it had also requested the Government to take the following legislative measures:
  • -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 or anybody affiliated to a trade union. The Committee notes that the Government indicates that while it considers that prison staff perform a security function, the LLRC with ILO assistance is engaging the relevant stakeholders on this matter;
  • -amend section 43 of the TUEO Act, which provides for inspection of accounts, books and documents of a trade union by the Registrar at “any reasonable time”. The Committee notes the Government’s indication that this matter is being considered in the labour law review process;
  • -amend 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. The Committee notes the Government’s indication that this matter is being considered in the labour law review process.
Trusting that all pending matters in relation to the above-mentioned Acts will be addressed in the framework of the ongoing labour law review process, the Committee urges the Government to take measures to ensure that such Acts are amended, in consultation with the social partners, so as to bring them into full conformity with the Convention. The Committee requests the Government to continue providing information on any progress achieved in this regard and to provide a copy of the amended Acts once adopted.
The Committee had previously taken note that the labour law review process had been extended to include the PSA and had requested the Government to provide information on the progress made in this regard. Noting that the Government has not provided information in this respect, the Committee reiterates its previous request to the Government to provide information on the progress made in the review of the PSA and to provide a copy of the amended Act, once adopted.
The Committee reminds the Government that it may continue to avail itself of technical assistance from the ILO with respect to all issues raised in its comments.
The Committee is raising other matters in a request addressed directly to the Government, which reiterates the content of its previous request adopted in 2019.

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

Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee drew the Government’s attention to several provisions of the Trade Unions and Employers Organisations’ Act (TUEO Act) and of the Trade Disputes Act (TDA), which are not fully in line with the Convention, and requested the Government, in the framework of the ongoing labour law reform, to take the necessary measures, in consultation with the social partners.
With respect to the TUEO Act:
  • -repeal section 8, which sanctions each officer or any person acting or purporting to act as an officer of a trade union or federation that failed to apply for registration within 28 days of its formation (although the official recognition of an organization through its registration constitutes a relevant aspect of the right to organize, the exercise of legitimate trade union activities should not be dependent upon registration, and penalties in this regard should not be imposed on the trade union or its members);
  • -amend section 10 so as to afford industrial organizations an opportunity to rectify the absence of some of the formal registration requirements provided for in that section;
  • -repeal sections 11 and 15, which result in the automatic dissolution and banning of activities of non-registered organizations;
  • -repeal section 20(3), second sentence, which prohibits young members (15–18 years old) from being officers or trustees of a workers’ or employers’ organization (minors legally allowed to work should be able to be candidates for trade union office);
  • -amend section 39, which allows the Registrar or Attorney-General to apply for an interdict to restrain any unauthorized or unlawful expenditure of funds or use of any trade union property, and section 41(3), which provides the Registrar with broad supervisory powers over the financial assets of a trade union, to ensure that supervision is limited to exceptional cases and that trade unions enjoy autonomy and independence (supervision is compatible with the Convention only when it is limited to the obligation of submitting annual financial reports, verification based on serious grounds to believe that the actions of an organization are contrary to its rules or the law and verification called for by a significant number of workers);
The Committee notes the Government’s indication that the above comments in relation to the TUEO Act have been considered in the ongoing labour law review process.
With regard to the TDA:
  • -amend section 43(3) (prohibiting an employer to hire workers to replace striking or locked-out workers only if the parties have concluded an agreement on the provision of minimum services or, if no such agreement has been made, within 14 days of the commencement of the strike). The Committee notes the Government’s indication that the Labour Law Review Committee (LLRC) understands that this provision is rightfully placed because the minimum service to which it refers, is not related to essential services, but to the regulation of strikes in general, and that, accordingly, this provision has not been proposed for amendment. The Committee wishes to clarify that the suggested amendment is aimed at limiting the power to hire external replacement workers, so that it is only permitted in cases of acute national crisis, cases involving essential services in the strict sense of the term, and cases where minimum service can be imposed;
  • -amend section 43(4) (prohibiting picketing if the parties have concluded an agreement on the provision of minimum services or, if no such agreement has been made, within 14 days of the commencement of the strike or lockout). The Committee notes the Government’s indication that the LLRC understands that this provision is rightfully placed because the minimum service to which it refers is not related to essential services, but to the regulation of strikes in general, and that, accordingly, this provision has not been proposed for amendment. The Committee wishes to clarify that the suggested amendment is aimed at allowing pickets to take place in the absence of an agreement on the provision of minimum services and at any time after the commencement of a strike or lockout.
Trusting that all pending matters in relation to the TUEO and TDA Acts will be addressed in the framework of the ongoing labour law review process, the Committee urges the Government to take measures to ensure that such Acts are amended, in consultation with the social partners, so as to bring them into full conformity with the Convention. The Committee requests the Government to continue providing information on any progress achieved in this regard and to provide a copy of the amended Acts once adopted.

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

The Committee notes the Government’s reply to the observations made by the International Trade Union Confederation (ITUC) and the Trainers and Allied Workers Union (TAWU) in 2013 and 2014.
Legislative developments. The Committee recalls that, following the recommendations made by the Conference Committee on the Application of Standards (Conference Committee) in 2017 and 2018: (i) the Government had embarked on a labour law review process; (ii) a tripartite Labour Law Review Committee (LLRC) was established; and (iii) the LLRC decided to focus the review on the Employment Act and the Trade Unions and Employers Organisations (TUEO) Act, the Public Service Act of 2008 (PSA) and the Trade Disputes Act of 2016 (TDA). In its last observation, the Committee had noted that both the Government and the Botswana Federation of Trade Unions (BFTU) had indicated that the work by the LLRC was ongoing and that progress was being made with respect to the implementation of the Conference Committee’s recommendations. The Committee had also noted the Government’s indication that, given that a review of the list of essential services was of critical importance to workers, a task team had been formed to review such list under section 46 of the TDA.
In its last report, the Government indicates that, while the labour law review is still ongoing, on 8 August 2019, the Parliament passed the TDA (Amendment) Act 2019, which amends the list of the essential services. The Committee notes with satisfaction that, in line with its recommendations, the following services have been deleted from the list of essential services: diamond sorting, cutting and selling services; teaching services; government broadcasting services; the Bank of Botswana; vaccine laboratory services; railways operation and maintenance services; immigration and customs services; transportation and distribution services of petroleum products; sewerage services; public veterinary services; and services necessary to the operation of any of these services.
The Committee takes note that, accordingly, the list of essential services under section 46 of the TDA (Amendment) Act 2019 contains the following services: air traffic control services; fire services; the provision of food to pupils of school age and the cleaning of schools; electrical services (electricity teams for generation, transmission and distribution); water and sanitation services; and health services as well as transport and telecommunication services required for the provision of any of the previously mentioned services. The Committee notes the Government’s indication that such ancillary transport and telecommunication services have been included in light of the particular circumstances prevailing in the country and considering, for instance, the need for ambulances or the services of operators who take note and transmit the details of patients in cases of accidents for paramedics to attend to the scene.
The Committee recalls that, in its previous comments, it had also requested the Government to take the following legislative measures:
  • -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 or anybody affiliated to a trade union. The Committee notes that the Government indicates that while it considers that prison staff perform a security function, the LLRC with ILO assistance is engaging the relevant stakeholders on this matter;
  • -amend section 43 of the TUEO Act, which provides for inspection of accounts, books and documents of a trade union by the Registrar at “any reasonable time”. The Committee notes the Government’s indication that this matter is being considered in the labour law review process;
  • -amend 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. The Committee notes the Government’s indication that this matter is being considered in the labour law review process.
Trusting that all pending matters in relation to the above-mentioned Acts will be addressed in the framework of the ongoing labour law review process, the Committee urges the Government to take measures to ensure that such Acts are amended, in consultation with the social partners, so as to bring them into full conformity with the Convention. The Committee requests the Government to continue providing information on any progress achieved in this regard and to provide a copy of the amended Acts once adopted.
The Committee had previously taken note that the labour law review process had been extended to include the PSA and had requested the Government to provide information on the progress made in this regard. Noting that the Government has not provided information in this respect, the Committee reiterates its previous request to the Government to provide information on the progress made in the review of the PSA and to provide a copy of the amended Act, once adopted.
The Committee reminds the Government that it may continue to avail itself of technical assistance from the ILO with respect to all issues raised in its comments.
The Committee is raising other matters in a request addressed directly to the Government.

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

Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee drew the Government’s attention to several provisions of the Trade Unions and Employers Organisations’ Act (TUEO Act) and of the Trade Disputes Act (TDA), which are not fully in line with the Convention, and requested the Government, in the framework of the ongoing labour law reform, to take the necessary measures, in consultation with the social partners.
With regard to the TUEO Act:
  • -to repeal section 8, which sanctions each officer or any person acting or purporting to act as an officer of a trade union or federation that failed to apply for registration within 28 days of its formation (although the official recognition of an organization through its registration constitutes a relevant aspect of the right to organize, the exercise of legitimate trade union activities should not be dependent upon registration, and penalties in this regard should not be imposed on the trade union or its members);
  • -to amend section 10 so as to afford industrial organizations an opportunity to rectify the absence of some of the formal registration requirements provided for in that section;
  • -to repeal sections 11 and 15, which result in the automatic dissolution and banning of activities of non-registered organizations;
  • -to repeal section 20(3), second sentence, which prohibits young members (15–18 years old) from being officers or trustees of a workers’ or employers’ organization (minors legally allowed to work should be able to be candidates for trade union office);
  • -to amend section 39, which allows the Registrar or Attorney-General to apply for an interdict to restrain any unauthorized or unlawful expenditure of funds or use of any trade union property, and section 41(3), which provides the Registrar with broad supervisory powers over the financial assets of a trade union, to ensure that supervision is limited to exceptional cases and that trade unions enjoy autonomy and independence (supervision is compatible with the Convention only when it is limited to the obligation of submitting annual financial reports, verification based on serious grounds to believe that the actions of an organization are contrary to its rules or the law and verification called for by a significant number of workers); and
With regard to the TDA:
  • -to amend section 43(3) (prohibiting an employer to hire workers to replace striking or locked-out workers only if the parties have concluded an agreement on the provision of minimum services or, if no such agreement has been made, within 14 days of the commencement of the strike), so as to limit the powers to hire external replacement workers to cases of acute national crisis, to essential services in the strict sense of the term and to cases where minimum service can be imposed (services in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the population or public services of fundamental importance) and not to make its prohibition subject to the conclusion of an agreement on minimum services (in this regard, the Committee recalls that while, if they so wish, workers’ organizations should be able to participate in defining the minimum services, any disagreement on this issue should be solved by a joint or independent body); and
  • -to amend section 43(4) of the TDA (prohibiting picketing if the parties have concluded an agreement on the provision of minimum services or, if no such agreement has been made, within 14 days of the commencement of the strike or lockout), so as to allow pickets to take place also in the absence of an agreement on the provision of minimum services and at any time after the commencement of the strike or lockout.
The Committee notes the Government’s indication that consultations are ongoing between the Government and the representatives of employers and workers on the process to review labour laws. These consultations commenced in July 2017 and resulted in the establishment of a tripartite Labour Law Review Committee (LLRC) to spearhead the labour law review process, which covers, among others, TUEO Act and the TDA. According to the Government, the LLRC will take into consideration the comments of the Committee in the framework of the review of both the TUEO Act and TDA. Welcoming the consultative review process, the Committee expects that its comments will be fully taken into account and requests the Government to provide information on any progress made in this regard, as well as a copy of the relevant Acts once amended.

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

The Committee takes due note of the comments provided by the Government in response to the 2017 observations of the International Trade Union Confederation (ITUC) alleging dismissals of workers because of strike action, brutal repression by police of a peaceful picket organized in August 2016. The Committee notes with regret that the Government provides no reply to the remaining observations made by: (i) the ITUC in 2014 (alleging violations of trade union rights in practice); (ii) the Trainers and Allied Workers Union (TAWU) in 2013 (alleging favouritism of certain trade unions by the Government); and (iii) the ITUC in 2013 (alleging acts of intimidation against public workers participating in demonstrations). The Committee therefore reiterates its request and expects that the Government will respond to these observations.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 107th Session, May–June 2018)

The Committee takes note of the discussion that took place in the Committee on the Application of Standards of the International Labour Conference (hereafter the Conference Committee) in June 2018. It notes the Government’s statement during that discussion that, since the 2017 Conference Committee discussion, consultations have been ongoing between the Government and the representatives of employers and workers on the process to amend labour laws. In particular, the Government and social partners met seven times between July 2017 and April 2018, and meaningful progress was made in October 2017 when a tripartite time-bound action plan was adopted and presented to the ILO Decent Work Team for Eastern and Southern Africa. There was also general consensus on the need to review the labour laws to fill the gaps, incorporate various court decisions and make the legislation compliant with the ratified ILO Conventions. While it had previously been resolved that the focus of the review would be on the Employment Act and the Trade Unions and Employers Organisations (TUEO) Act, it was then agreed that the review could be extended to include such other laws as the Public Service Act (PSA) and the Trade Disputes Act (TDA), so as to ensure harmonization and consistency. In order to carry out the review, the Government and social partners agreed to establish a Labour Law Review Committee (LLRC) consisting of members from the Government, employers and workers, the purpose of which was to spearhead the labour law review process.
The Conference Committee welcomed the Government’s agreement to broaden the scope of the labour law review and called upon the Government to: (i) take appropriate measures in consultation with the most representative employers’ and workers’ organizations to ensure that the labour and employment legislation grants members of the prison service that are not considered to be a part of the police, the rights guaranteed by the Convention; (ii) amend the TUEO Act, in consultation with employers’ and workers’ organizations, to bring it into conformity with the Convention; (iii) provide further information on the Court of Appeal ruling on the invalidity of statutory provisions; (iv) ensure that the registration of trade unions in law and in practice conforms with the Convention; and (v) process pending applications for the registration of trade unions, in particular in the public sector, which have met the requirements set out by law. The Conference Committee called upon the Government to address these recommendations within the framework of the ongoing labour law review and in full consultation with the social partners.
The Committee takes note of the observations of the Botswana Federation of Trade Unions (BFTU) received on 1 September 2018 reporting on the progress of implementation of the Conference Committee conclusions. It further notes from the Government’s report that the work by the LLRC is ongoing and that, with the collaboration of the Office, an expert was engaged to facilitate the process. The expert, accompanied by the Director of the ILO Decent Work Team for Eastern and Southern Africa, held a meeting with the LLRC on 21 August 2018. The meeting provided a platform for sharing of expectations by the tripartite partners. Generally, the Government and social partners expressed the need for the expert to assist with the overhaul and modernization of the labour laws. The Committee further notes that, in its observations, the BFTU welcomed the commitments and undertakings made by the Government, as well as the latter’s agreement to broaden the scope of the labour law review. The Committee welcomes the tripartite initiatives undertaken in the process of the labour law review and, expressing the firm hope that its previous comments will be taken into consideration in the framework of this review, requests the Government to provide information on the progress achieved.
Article 2 of the Convention. Right to organize of prison staff. In its previous comments, the Committee requested the Government to take the necessary legislative measures to ensure that prison officers enjoy the right to establish and join trade unions. While noting the classification at national level of the prison service as “disciplined force” and that the constitutionality of the exclusion of prison officers from the coverage of the TDA and the TUEO Act was reaffirmed by the Court of Appeal, the Committee reiterated that the police, the armed forces and the prison service were governed by separate legislation, which did not provide members of the prison service with the same status as the armed forces or the police, and emphasized that the exception set out in Article 9 of the Convention for the armed forces and the police was to be interpreted restrictively. The Committee notes the Government’s indication that legislation still bars prison staff from unionization, and that the extent to which this matter will be taken on board in the framework of the ongoing review of labour laws is not yet known. The Committee urges the Government to take the necessary legislative measures to ensure that prison officers enjoy the right to establish and join trade unions. The Committee requests the Government to continue providing information on the progress made in this regard within the framework of the ongoing labour law review.
Article 3. Right of workers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee noted with concern that section 46 of the TDA enumerated a broad list of essential services, and that in line with its section 46(2), the Minister may declare any other service as essential if its interruption for at least seven days endangers the life, safety or health of the whole or part of the population or harms the economy. The Committee recalled that essential services, in which the right to strike may be restricted or even prohibited, as is the case in Botswana, should be limited to those the interruption of which would endanger the life, personal safety or health of the whole or part of the population, and highlighted that, while the economic impact of industrial action and its effect on trade and commerce may be regrettable, such consequences in and of themselves do not render a service “essential”. The Committee therefore considered that certain services enumerated in section 46, including diamond sorting, cutting and selling services; teaching services; government broadcasting services; the Bank of Botswana; railways operation and maintenance services; public veterinary services; and services necessary to the operation of any of these services, do not constitute essential services in the strict sense of the term. The Committee notes the Government’s statement before the Conference Committee that, during its engagement with the social partners, it had become clear that the amendment of the TDA, in particular the review of the list of essential services, was of critical importance to workers and that it had therefore deemed it necessary to re-examine the list of essential services. As such, the TDA would form part of the laws that would be reviewed. In its report, the Government indicates that, in the process of amending the TDA, a task team has been formed to review the list of essential services under section 46. Referring to the Conference Committee’s request to ensure that the TDA is in full conformity with the Convention, the Committee expects that the necessary legislative measures will be taken in the framework of the ongoing labour law review process to ensure that the list in section 46(1) of the TDA is limited to essential services in the strict sense of the term.
The Committee previously requested the Government to provide information on the progress made in relation to the amendment of 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, and section 43 of the TUEO Act which provides for inspection of accounts, books and documents of a trade union by the Registrar at “any reasonable time”. The Committee notes the Government’s indication that it hopes that the abovementioned sections will be considered during the review of the TUEO Act. Referring to the Conference Committee conclusions, the Committee urges the Government to take measures to ensure that, in the framework of the ongoing labour law reform, the abovementioned provisions of the TUEO Act are amended, in full and frank consultation with the social partners, so as to bring these provisions into line with the Convention. The Committee requests the Government to continue providing information on any progress achieved in this regard and to provide a copy of the amended TUEO Act once adopted.
The Committee further noted that, following considerable consultation with public service unions, the new Public Service Bill was at the stage of publication in the Official Gazette, which would allow for further consultation and could result in further amendments prior to its consideration in Parliament. It noted, however, the ITUC’s 2017 observation regarding the refusal to allow the Botswana Federation of Public Sector Unions (BOFEPUSU) to raise its concerns before Parliament as regards the proposed amendments affecting the public sector. The Committee emphasized the value of prior detailed consultation with the relevant social partners (including BOFEPUSU) during the preparation of legislation affecting their interests. In this regard, the Committee notes that both the Government in its report and the BFTU in its observations indicated that the tripartite labour law review process – spearheaded by the LLRC, which is made up of representatives of the Government, employers and workers, including from the BOFEPUSU – was extended to include the Public Service Act No. 30 of 2008 (the Public Service Bill having, of yet, not been promulgated into law). Welcoming the consultative and tripartite nature of the labour law review, the Committee requests the Government to provide information on the progress made in the review of the Public Service Act and to provide a copy of the amended Act, once adopted.
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.
The Committee is raising other matters in a request addressed directly to the Government.

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

The Committee notes that the Government’s report has not been received.
Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes. The Committee once again draws the Government’s attention to the following provisions of the Trade Unions and Employers Organisations’ Act (TUEO Act) and the Trade Disputes Act (TDA), which are not fully in line with the Convention, and requests the Government, in the framework of the ongoing labour law reform, to take the necessary measures, in consultation with the social partners:
  • - to repeal section 8 of the TUEO Act, which sanctions each officer or any person acting or purporting to act as an officer of a trade union or federation that failed to apply for registration within 28 days of its formation (although the official recognition of an organization through its registration constitutes a relevant aspect of the right to organize, the exercise of legitimate trade union activities should not be dependent upon registration, and penalties in this regard should not be imposed on the trade union or its members);
  • - to amend section 10 of the TUEO Act so as to afford industrial organizations an opportunity to rectify the absence of some of the formal registration requirements provided for in that section;
  • - to repeal sections 11 and 15 of the TUEO Act, which result in the automatic dissolution and banning of activities of non-registered organizations;
  • - to repeal section 20(3) of the TUEO Act, second sentence, which prohibits young members (15–18 years old) from being officers or trustees of a workers’ or employers’ organization (minors legally allowed to work should be able to be candidates for trade union office);
  • - to amend section 39 of the TUEO Act, which allows the Registrar or Attorney General to apply for an interdict to restrain any unauthorized or unlawful expenditure of funds or use of any trade union property, and section 41(3), which provides the Registrar with broad supervisory powers over the financial assets of a trade union, to ensure that supervision is limited to exceptional cases and that trade unions enjoy autonomy and independence (supervision is compatible with the Convention only when it is limited to the obligation of submitting annual financial reports, verification based on serious grounds to believe that the actions of an organization are contrary to its rules or the law and verification called for by a significant number of workers);
  • - to amend section 43(3) of the TDA (prohibiting an employer to hire workers to replace striking or locked-out workers only if the parties have concluded an agreement on the provision of minimum services or, if no such agreement has been made, within 14 days of the commencement of the strike), so as to limit the powers to hire external replacement workers to cases of acute national crisis, to essential services in the strict sense of the term and to cases where minimum service can be imposed (services in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the population or public services of fundamental importance) and not to make its prohibition subject to the conclusion of an agreement on minimum services (in this regard, the Committee recalls that while, if they so wish, workers’ organizations should be able to participate in defining the minimum services, any disagreement on this issue should be solved by a joint or independent body); and
  • - to amend section 43(4) of the TDA (prohibiting picketing if the parties have concluded an agreement on the provision of minimum services or, if no such agreement has been made, within 14 days of the commencement of the strike or lockout), so as to allow pickets to take place also in the absence of an agreement on the provision of minimum services and at any time after the commencement of the strike or lockout.
The Committee expects that its comments will be fully taken into account and requests the Government to provide information on any progress made in this regard and a copy of the relevant Acts once amended.

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

The Committee takes note of the observations of the International Organisation of Employers (IOE) received on 31 August 2017, containing the Employer statements made before the 2017 Conference Committee on the Application of Standards (hereinafter: Conference Committee) with regard to the individual case of Botswana. The Committee also notes the observations from the International Trade Union Confederation (ITUC) received on 1 September 2017, alleging dismissals of workers because of strike action, brutal repression by police of a peaceful picket organized in August 2016, and refusal to allow the Botswana Federation of Public Sector Unions (BOFEPUSU) to raise its concerns before Parliament as regards the proposed amendments affecting the public sector. The Committee requests the Government to provide its comments in this regard. While noting the Government’s comments in reply to the 2016 observations from Education International (EI) and the Trainers and Allied Workers Union (TAWU), the Committee is bound to reiterate its request to the Government to respond to the remaining observations made by: (i) the ITUC in 2016 (alleging lockout of workers in the mining sector); (ii) the ITUC and the Botswana Federation of Trade Unions (BFTU) in 2016 concerning new amendments of the Trade Disputes Act (TDA); (iii) the BFTU in 2016; (iv) the ITUC in 2014 (alleging violations of trade union rights in practice); (v) the TAWU in 2013 (alleging favouritism of certain trade unions by the Government); and (vi) the ITUC in 2013 (alleging acts of intimidation against public workers).

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee notes the discussion that took place in the Conference Committee in June 2017 concerning the application of the Convention. The Committee notes that the Conference Committee called upon the Government to: (i) take appropriate measures that ensure that the labour and employment legislation grants members of the prison service the rights guaranteed by the Convention; (ii) ensure that the Trade Disputes Act (TDA) is in full conformity with the Convention, and engage in social dialogue, with the further technical assistance of the ILO; (iii) amend the Trade Unions and Employers Organisations (TUEO) Act, in consultation with employers’ and workers’ organizations, to bring the law into conformity with the Convention; and (iv) develop a time-bound action plan together with the social partners in order to implement these conclusions. The Conference Committee also urged the Government to continue availing itself of ILO technical assistance in this regard and to report progress to the Committee of Experts before its next meeting in November 2017.
The Committee regrets that, despite the above request of the Conference Committee, the Government’s report has not been received.
Article 2 of the Convention. Right to organize of prison staff. In its previous comments, the Committee once again 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. The Committee notes the Government’s indication before the Conference Committee that prison officers in Botswana are classified as members of the disciplined forces and are the custodians of public safety and security, and that the constitutionality of the exclusion of prison officers from the coverage of the TDA and the TUEO Act has been reaffirmed by the Court of Appeal; however, support or administrative staff are covered by the above legislation. While noting the classification at national level of the prison service as “disciplined force”, the Committee reiterates that the police, the armed forces and the prison service are governed by separate legislation, which does not provide members of the prison service with the same status as the armed forces or the police and emphasizes that the exception set out in Article 9 of the Convention for the armed forces and the police is to be interpreted restrictively. The Committee requests the Government once again to take, within the framework of the ongoing labour law review, the necessary legislative measures to ensure that prison officers enjoy the right to establish and join trade unions. The Committee requests the Government to provide information on any developments in this regard.
Article 3. Right of workers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee noted with concern that section 46 of the new Trade Disputes Bill No. 21 of 2015 enumerated a broad list of essential services, and that in line with section 46(2), the Minister may declare any other service as essential if its interruption for at least seven days endangers the life, safety or health of the whole or part of the population or harms the economy. The Committee requested the Government to take the necessary measures to amend the Trade Disputes Bill to reduce the list of essential services accordingly. The Committee notes the Government’s statement before the Conference Committee that, while the interruption of certain services in some countries may only cause economic hardships, it can prove disastrous in others and rapidly lead to conditions that might endanger the life, personal safety or health of the population and stability of the country; that flexibility is necessary to take into account the socio-economic circumstances of the country; and that the original list of essential services in the TDA was adopted 25 years ago and has been amended in 2016 in response to new developments and the specific circumstances in the country. Recalling that essential services, in which the right to strike may be restricted or even prohibited, as is the case in Botswana, should be limited to those the interruption of which would endanger the life, personal safety or health of the whole or part of the population, the Committee highlights that, while the economic impact of industrial action and its effect on trade and commerce may be regrettable, such consequences in and of themselves do not render a service “essential”. The Committee therefore considers that certain services enumerated in section 46, including diamond sorting, cutting and selling services; teaching services; government broadcasting services; the Bank of Botswana; railways operation and maintenance services; public veterinary services; and services necessary to the operation of any of these services, do not constitute essential services in the strict sense of the term. Referring to the Conference Committee’s request to ensure that the TDA is in full conformity with the Convention, the Committee requests the Government to take the necessary legislative measures to ensure that the list in section 46(1) of the TDA is limited to essential services in the strict sense of the term, and invites the Government, with regard to the services mentioned above, to give consideration to the negotiation or determination of a minimum service rather than imposing an outright ban on industrial action. The Committee further notes the Government’s indication before the Conference Committee that legislative amendments have been introduced pursuant to the Court of Appeal ruling on the invalidity of statutory provisions, which gave the Minister the power to amend the list of essential services, since it was the role of Parliament to determine the list of essential services. The Committee requests the Government to provide a copy of the most up-to-date version of section 46(2) of the Trade Disputes Act.
The Committee had also previously requested the Government to provide information on the progress made in relation to the amendment of 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, and section 43 of the TUEO Act which provides for inspection of accounts, books and documents of a trade union by the Registrar at “any reasonable time”. The Committee notes the Government’s statement before the Conference Committee that several ILO missions had been undertaken in April 2017 following the Government’s request for technical assistance, that it was agreed that the main focus of the labour law reform would be the Employment Act and the TUEO Act, and that, while social dialogue and stakeholder involvement during this process are considered central to its success, there has not yet been the opportunity for open discussion thereon with the social partners. The Committee expects that, in the framework of the ongoing labour law reform, the abovementioned provisions of the TUEO Act will be amended, in full and frank consultation with the social partners, so as to bring these provisions into line with the Convention. The Committee requests the Government to provide information on any progress achieved in this regard and to provide a copy of the amended TUEO Act once adopted.
The Committee further notes the Government’s indication before the Conference Committee that, following considerable consultation with public service unions, the new Public Service Bill is at the stage of publication in the Official Gazette, which will allow for further consultation and could result in further amendments prior to its consideration in Parliament. In light of the most recent ITUC observations, the Committee wishes to emphasize the value of prior detailed consultation with the relevant social partners (including BOFEPUSU) during the preparation of legislation affecting their interests. The Committee reiterates its request that the Government provide a copy of the Public Service Bill in its current form or, as the case may be, of the Public Service Act once adopted.
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.
The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee reiterated its request to the Government to amend section 10 of the Trade Unions and Employers Organisations’ Act (TUEO Act) so as to afford industrial organizations an opportunity to rectify the absence of some of the formal registration requirements provided for in that section, and to repeal sections 11 and 15, which result in the automatic dissolution and banning of activities of non-registered organizations. The Committee notes the Government’s indication that the process of amending the TUEO Act is ongoing, that the Committee’s concerns were noted and that the social partners have submitted their proposals for amendment. Welcoming the revision process of the TUEO Act, the Committee trusts that its comments will be fully taken into account and requests the Government to provide information on any developments in this regard and the text of the Act once amended.
In the framework of the legislative revision, the Committee also draws the Government’s attention to the following provisions of the TUEO Act and the Trade Disputes Bill (Bill No. 21 of 2015), which are not fully in line with the Convention, in order to:
  • -delete section 8 of the TUEO Act, which sanctions each officer or any person acting or purporting to act as an officer of a trade union or federation that failed to apply for registration within 28 days of its formation (although the official recognition of an organization through its registration constitutes a relevant aspect of the right to organize, the exercise of legitimate trade union activities should not be dependent upon registration, and penalties in this regard should not be imposed on the trade union or its members);
  • -delete section 20(3) of the TUEO Act, second sentence, which prohibits young members (15–18 years old) from being officers or trustees of a workers’ or employers’ organization (minors legally allowed to work should be able to be candidates for trade union office);
  • -amend section 39 of the TUEO Act, which allows the Registrar or Attorney General to apply for an interdict to restrain any unauthorized or unlawful expenditure of funds or use of any trade union property, and section 41(3), which provides the Registrar with broad supervisory powers over the financial assets of a trade union, to ensure that supervision is limited to exceptional cases and that trade unions enjoy autonomy and independence (supervision is compatible with the Convention only when it is limited to the obligation of submitting annual financial reports, verification based on serious grounds to believe that the actions of an organization are contrary to its rules or the law and verification called for by a significant number of workers; it would be incompatible with the Convention if the law gave authorities powers to control which go beyond these principles, or which over-regulate matters that should be left to the trade unions themselves and their by-laws);
  • -amend section 43(3) of the Trade Disputes Bill (prohibiting an employer to hire workers to replace striking or locked-out workers only if the parties have concluded an agreement on the provision of minimum services or, if no such agreement has been made, within 14 days of the commencement of the strike), so as to limit the powers to hire external replacement workers to cases of acute national crisis, to essential services in the strict sense of the term and to cases where minimum service can be imposed (services in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the population or public services of fundamental importance) and not to make its prohibition subject to the conclusion of an agreement on minimum services (in this regard, the Committee recalls that while, if they so wish, workers’ organizations should be able to participate in defining the minimum services, any disagreement on this issue should be solved by a joint or independent body which has the confidence of the parties); and
  • -amend section 43(4) of the Trade Disputes Bill (prohibiting picketing if the parties have concluded an agreement on the provision of minimum services or, if no such agreement has been made, during 14 days of the commencement of the strike or lockout), so as to allow pickets to take place also in the absence of an agreement on the provision of minimum services and at any time after the commencement of the strike or lockout.
The Committee requests the Government to take the necessary measures to amend or repeal the abovementioned provisions in accordance with the preceding comments and to provide information on any developments in this regard.

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee takes note of the observations of the International Organisation of Employers (IOE) received on 1 September 2016, which are of a general nature. The Committee also notes the observations from: the International Trade Union Confederation (ITUC) received on 1 September 2016, referring mainly to matters currently or previously addressed by the Committee and alleging lockout of workers in the mining sector; the ITUC and the Botswana Federation of Trade Unions (BFTU) received jointly on 1 September 2016, concerning new amendments of the Trade Disputes Act (TDA); the BFTU received on 13 September 2016; and Education International (EI) and the Trainers and Allied Workers Union (TAWU) received on 12 October 2016. The Committee requests the Government to provide its comments on these observations, as well as on the pending observations made by: the TAWU in 2013 (alleging favouritism of certain trade unions by the Government); the ITUC in 2013 (alleging acts of intimidation against public workers); and the ITUC in 2014 (alleging violations of trade union rights in practice).
Article 2 of the Convention. Right to organize of prison staff. In its previous comments, the Committee once again requested the Government to take the necessary measures to amend section 2(1)(iv) of the Trade Unions and Employers Organisations Act (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 or any body affiliated to a trade union. The Committee notes the Government’s indication that the prison service is part of the disciplined force and that amendments to the stated laws would not alter their situation, but that civilian personnel in prisons, governed by the Public Service Act and the Employment Act, are allowed to unionize and that 50 such workers are members of trade unions. As regards the Government’s statement that the prison service is part of the disciplined force justifying its exclusion from the Convention, the Committee observes that while the prison service does form part of the disciplined force of Botswana together with the armed forces and the police (article 19(1) of the Constitution), each of these categories is governed by separate legislation – the Prison Act, the Police Act and the Botswana Defence Force Act – and the Prison Act as a separate statute does not appear to provide members of the prison service with the status of the armed forces or the police. The Committee, therefore, considers that the prison service cannot be considered to be part of the armed forces or the police for the purposes of exclusion under Article 9. The Committee requests the Government once again to take the necessary measures, including the pertinent legislative amendments, to grant members of the prison service all rights guaranteed by the Convention. The Committee requests the Government to provide information on any developments in this regard.
Article 3. Right of workers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee noted with interest the decision of the High Court of Botswana which found that Statutory Instrument No. 57 of 2011 declaring veterinary services, teaching services and diamond sorting, cutting and selling services, and all support services in connection therewith to be essential, was unconstitutional and therefore “invalid” and “of no force and effect”. However, the Committee notes with concern the indication of the BFTU that section 46 of the new Trade Disputes Bill (Bill No. 21 of 2015) enumerates a broad list of essential services, including the Bank of Botswana, diamond sorting, cutting and selling services, operational and maintenance services of the railways, veterinary services in the public service, teaching services, government broadcasting services, immigration and customs services, and services necessary to the operation of any of these services. The Committee also observes that in line with section 46(2) of the Trade Disputes Bill, the Minister may declare any other service as essential if its interruption for at least seven days endangers the life, safety or health of the whole or part of the population or harms the economy. Recalling that, in light of the right of workers’ organizations to organize their activities and formulate their programmes, essential services, in which the right to strike may be prohibited or restricted, should be limited to those the interruption of which would endanger the life, personal safety or health of the whole or part of the population, the Committee considers that the services enumerated do not constitute essential services in the strict sense of the term and that harm to the economy caused by the interruption of a service is insufficient to consider it as an essential service. The Committee requests the Government to take the necessary measures to amend the draft Trade Disputes Act to reduce the list of essential services accordingly.
The Committee had also previously requested the Government to provide information on the progress made in relation to the amendment of section 48B(1) of the TUEO Act, which grants certain facilities only to unions representing at least one third of the employees in the enterprise, and section 43 of the TUEO Act which provides for inspection of accounts, books and documents of a trade union by the Registrar at “any reasonable time”. The Committee notes the Government’s statement that the amendment process of the TUEO Act is ongoing and that the social partners have submitted their proposals for amendments. The Committee further notes that the BFTU indicates that the Government had requested it to submit proposals for amendment of the TUEO Act but that no discussion has taken place on the subject matter. The Committee trusts that, in the framework of the ongoing amendment process of the TUEO Act and in consultation with the social partners, the abovementioned provisions will be amended taking fully into account the Committee’s comments. The Committee requests the Government to provide information on any developments in this regard and to provide the text of the amended TUEO Act once adopted.
The Committee further observes that a new Public Service Bill, 2016, is in the process of being adopted and should replace the Public Service Act, 2008. The Committee requests the Government to provide a copy of the Public Service Act upon its adoption or, if not yet adopted, the Bill in its current form.
The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 3 of the Convention. The Committee had previously requested the Government to amend section 10 of the Trade Unions and Employers Organisations (Amendment) Act, 2003 (TUAEO Act) so as to afford industrial organizations an opportunity to rectify the absence of some of the formal registration requirements provided for in that section, and to repeal sections 11 and 15, which result in the automatic dissolution and banning of activities of non-registered organizations. The Committee notes the Government’s request for a clarification as to what constitutes an unregistered trade union. The Committee understands that a trade union which has not been registered would not have a legal personality and would therefore be unable to fulfil its activities and enjoy the protections afforded to trade unions by the law (see section 16 of TUAEO). 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. The Committee reiterates its previous request and asks the Government to provide information in its next report on the progress made in this regard.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes the comments made by the Trainers and Allied Workers Union in a communication dated 26 August 2013 alleging favouritism of certain trade unions by the Government, and the comments made by the International Trade Union Confederation in a communication dated 30 August 2013 referring to the matters raised by the Committee as well as to the allegations concerning acts of intimidation against public workers participating in demonstrations. The Committee requests the Government to provide its observations thereon. The Committee further notes the Government’s reply to the comments previously made by Education International.
Article 2 of the Convention. Right to organize of prison staff. The Committee had previously requested the Government to amend section 2(1)(iv) of the Trade Unions and Employers Organisations (Amendment) Act, 2003 (TUEO Act), section 2(11)(iv) of the Trade Disputes Act, and section 35 of the Prison Act, which exclude employees of the prison service from their scope of application and prohibit prison officers from becoming members of a trade union or any body affiliated to a trade union. The Committee notes that the Government reiterates that employees in the prison services are deemed to be performing a security function, and that this matter is of national interest and thus further consultations need to be undertaken with the relevant government departments, social partners and other stakeholders. Recalling that the functions performed by prison staff should not justify their exclusion from the enjoyment of the right to organize on the basis of Article 9 of the Convention, the Committee once again requests the Government to take the necessary measures to amend the abovementioned sections of the TUEO Act, the Trade Disputes Act and the Prison Act. It further requests the Government to provide information on the developments in this regard.
Article 3. Right of workers’ organizations to organize their activities and formulate their programmes. The Committee had previously requested the Government to amend section 48B(1) of the TUEO Act, which grants certain facilities only to unions representing at least one third of the employees in an enterprise. The Government indicates in its report that it had noted the Committee’s comments and that they will be brought to the attention of the Labour Advisory Board. The Committee requests the Government to provide information in its next report on any progress made in this regard, including on any discussions within the Labour Advisory Board.
The Committee had requested the Government to amend the Trade Disputes (Amendment of Schedule) Order 2011, contained in Statutory Instrument No. 57, declaring veterinary services, teaching services and diamond sorting, cutting and selling services, and all support services in connection therewith to be essential. The Committee recalls that it had considered that these services were not essential in the strict sense of the term. The Committee notes with interest the decision of the High Court of Botswana which found that Statutory No. 57 of 2011 was unconstitutional and therefore “invalid and is of no force and effect”.
The Committee had previously requested the Government to take the necessary measures to amend section 43 of the TUEO Act which provides for inspection of accounts, books and documents of a trade union by the Registrar at “any reasonable time”. The Committee notes the Government’s indication that it had noted this comment. The Committee expresses the hope that the Government will take the necessary measures to amend section 43 of the TUEO Act without further delay and requests the Government to provide information on the developments in this regard.
The Committee raises other matters in a request addressed directly to the Government.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 4 August 2011, as well as the comments made by Education International (EI) in a communication dated 19 September 2011. In its previous comments, the Committee had noted the comments made by Education International and the Botswana Teachers Union (BTU) concerning the Government’s interference in the internal organization of the BTU. The Committee once again requests the Government to provide its observations thereon.
Articles 2 and 3 of the Convention. The Committee recalls that it had previously requested the Government to:
  • -amend section 48B(1) of the Trade Unions and Employers Organisations (Amendment) Act 2003, (TUEO Act), which grants certain facilities (access to an employer’s premises for purposes of recruiting members, holding meetings or representing workers; the deduction of trade union dues from employees’ wages, recognition by employers of trade union representatives in respect of grievances, discipline, and termination of employment) only to unions representing at least one third of the employees in an enterprise;
  • -amend section 10 of the TUEO Act, so as to afford industrial organizations the opportunity to rectify the absence of some of the formal registration requirements provided for in that section, and to repeal sections 11 and 15, which result in the automatic dissolution and banning of activities of non-registered organizations; and
  • -amend sections 9(1)(b), 13 and 14 of the Trade Disputes Act, which empower the Commissioner and the Minister to refer a dispute in essential services to arbitration, or to the Industrial Court for determination.
In this regard, the Government indicates in its report that it had noted the Committee’s comments and that consultations with the social partners on amendments of all labour legislation are still ongoing. The Committee once again hopes that due account will be taken of its comments in the process of amending the relevant labour legislation. The Committee once again requests the Government to provide information, in its next report, on any progress made in this regard. The Committee recalls that the Government may avail itself of the technical assistance of the Office if it so wishes.
The Committee had also requested the Government to amend the list of essential services specified in the Schedule of the Trade Disputes Act, which includes, among others, the Bank of Botswana, railway services and the transport and telecommunications services necessary to the operation of all these services. The Committee was informed that the Government has adopted the Trade Disputes (Amendment of Schedule) Order 2011, on 15 July 2011, adding the veterinary services, teaching services and diamond sorting, cutting and selling services, and all support services in connection therewith to the existing essential services. The Committee once again recalls that essential services are only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 159). The Committee considers that the new categories added to the Schedule do not constitute essential services in the strict sense of the term and therefore requests the Government to amend the Schedule accordingly.
Furthermore, in its previous comments, the Committee had requested the Government to amend section 43 of the TUEO Act, which provides for inspection of accounts, books and documents of a trade union by the Registrar at “any reasonable time”. The Committee notes that according to the Government, section 43 does not authorize the Registrar of Trade Unions to inspect the books of accounts but should be read only as conferring the powers to inspect such books on the members of the union and not on the Registrar. Noting that according to the legislation, the books of accounts shall be open to inspection as many times as provided by the Registrar, the Committee recalls that the control by the public authorities (or by its decision) over trade union finances should, except when exercised on the basis of a complaint from a certain percentage of workers, normally not exceed the obligation to submit periodic reports. In these circumstances, the Committee once again requests the Government to take necessary measures to amend section 43 of the TUEO Act accordingly.
The Committee had also requested the Government to indicate the practical application of sections 49 and 50 of the TUEO Act which provide for the inspection by the minister of the financial affairs of a trade union “whenever he considers it necessary in the public interest”, including the frequency with which these sections are invoked to inspect trade unions finances. In this regard, the Committee notes the Government’s indication that these sections have never been invoked.
Employees in the prison service. In its previous comments, the Committee had requested the Government to amend section 2(1)(iv) of the TUEO Act, and section 2(11)(iv) of the Trade Disputes Act, both of which specifically exclude employees of the prison service from their scope of application, as well as section 35 of the Prisons Act, which prohibits prison officers from becoming members of a trade union or any body affiliated to a trade union. The Committee notes that the Government indicates that prison services, in accordance with article 19 of the Constitution, are part of the disciplined forces and that these forces are not permitted to unionise and that the prison services are not only part of the justice system but they have also security responsibilities. The Committee recalls that while exclusion from the right to organize of the armed forces and the police is not contrary to the provisions of the Convention, the same cannot be said for prison staff and the functions exercised by the prison staff should not justify their exclusion from the right to organize on the basis of Article 9 of the Convention (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 56). In these circumstances, the Committee once again requests the Government to amend the abovementioned sections of the TUEO Act, the Trade Disputes Act and the Prison Act in order to grant to prison staff the right to establish and join organizations of their own choosing.

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

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010 as well as the Government’s reply. The Committee also notes the comments made by the Education International and the Botswana Teachers’ Union (BTU) in a communication dated 26 August 2010 concerning the Government’s interference in the internal organization of the BTU by imposing the retirement of its President from his teaching duties to prevent him from heading the teachers’ union. The Committee requests the Government to provide its observations thereon.

Articles 2 and 3 of the Convention. The Committee recalls that it had previously requested the Government to:

–      amend section 48B(1) of the Trade Union and Employers’ Organizations (TUEO) Act, which grants certain facilities (access to an employer’s premises for purposes of recruiting members, holding meetings or representing workers; the deduction of trade union dues from employees’ wages, recognition by employers of trade union representatives in respect of grievances, discipline, and termination of employment) only to unions representing at least one third of the employees in an enterprise;

–      amend section 10 of the TUEO Act, so as to afford industrial organizations the opportunity to rectify the absence of some of the formal registration requirements provided for in that section, and to repeal sections 11 and 15, which result in the automatic dissolution and banning of activities of non-registered organizations;

–      amend section 43 of the TUEO Act, which provides for inspection of accounts, books and documents of a trade union by the registrar at “any reasonable time” and indicate the practical application of sections 49 and 50 of the TUEO Act which provide for the inspection by the minister of the financial affairs of a trade union “whenever he considers it necessary in the public interest”, including the frequency with which these sections are invoked to inspect trade unions finances;

–      amend sections 9(1)(b), 13 and 14 of the Trade Disputes Act, which empower the commissioner and the minister to refer a dispute in essential services to arbitration, or to the industrial court for determination; and to amend the list of essential services specified in the Schedule of the Trade Disputes Act, which includes, among others, the Bank of Botswana, railway services, and the transport and telecommunications services necessary to the operation of all of these services.

In this regard, the Committee notes that the Government indicates in its report that consultations with the social partners on amendments of all labour legislations are still ongoing. The Committee hopes that due account will be taken of its comments in the process of amending the relevant labour legislations. The Committee requests the Government to provide information, in its next report, on any progress made in this regard. The Committee encourages the Government to avail itself of the technical assistance of the Office if it so wishes.

Employees in the prison service. In its previous comments, the Committee had requested the Government to amend section 2(1)(iv) of the TUEO (Amendments) Act, 2003 and section 2(11)(iv) of the Trade Disputes Act, both of which specifically exclude employees of the prison service from their scope of application, as well as section 35 of the Prisons Act, which prohibits prison officers from becoming members of a trade union or any body affiliated to a trade union. The Committee notes that the Government indicates in its report that it has no intention to grant the employees of the prison service the right to unionize since their staff association, as provided for in the Prison Act, supposedly caters adequately for the negotiations on their welfare, and terms and conditions of employment. However, the Committee notes that according to section 35(3) of the Prison Act, a prison officer may only become a member of an association established by the minister and regulated in the manner prescribed and that there is no other provision concerning the right to unionize under the Prison Act. In these circumstances, the Committee once again requests the Government to amend the abovementioned sections of the TUEO, the Trade Disputes Act and the Prison Act in order to grant to prison staff the right to establish and join organizations of their own choosing.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in 2008 and 2009 on the application of the Convention. The Committee requests the Government to provide its observations.

The Committee recalls that it had previously requested the Government to:

–      amend section 2(1)(iv) of the Trade Union and Employers’ Organizations (TUEO) (Amendments) Act, 2003 and section 2(11)(iv) of the Trade Disputes Act, both of which deny employees of the prison service the right to organize, as well as section 35 of the Prisons Act – which similarly prohibits prison officers from becoming members of a trade union or any body affiliated to a trade union;

–      amend section 48B(1) of the TUEO Act, which grants certain facilities (access to an employer’s premises for purposes of recruiting members, holding meetings or representing workers; the deduction of trade union dues from employees’ wages, recognition by employers of trade union representatives in respect of grievances, discipline, and termination of employment) only to unions representing at least one third of the employees in an enterprise;

–      amend section 10 of the TUEO Act, so as to afford industrial organizations the opportunity to rectify the absence of some of the formal registration requirements provided for in that section, and to repeal sections 11 and 15, which result in the automatic dissolution and banning of activities of non-registered organizations;

–      amend sections 9(1)(b), 13 and 14 of the Trade Disputes Act, which empower the Commissioner and the Minister to refer a dispute in essential services to arbitration, or to the Industrial Court for determination; and to amend the list of essential services specified in the Schedule of the Trade Disputes Act, which includes, among others, the Bank of Botswana, railway services, and the transport and telecommunications services necessary to the operation of all of these services.

In this respect, the Committee had noted the Government’s statement that it has taken note of its comments, and that consultations with the social partners on the legal provisions referred to therein are ongoing. Recalling that consultations with the social partners with regard to legislative amendments had commenced last year, the Committee requests the Government to indicate, in its next report, the progress made with respect to the points previously raised.

Finally, the Committee recalls that it had previously asked the Government to amend the following sections of the TUEO Act, so as to ensure that trade unions enjoy autonomy and financial independence from the authorities: section 43, providing for the inspection of accounts, books and documents of a trade union by the Registrar “at any reasonable time”; and sections 49 and 50, providing for the inspection by the Minister “whenever he considers it necessary in the public interest” of the financial affairs of a trade union. In this regard, the Committee had noted the Government’s statement that the Minister’s power to inspect trade union finances under sections 49 and 50 of the TUEO Act is limited to exceptional circumstances in order to investigate a complaint by members of the union or allegations of embezzlement. In these circumstances, the Committee requests the Government to indicate the practical application of sections 49 and 50 of the TUEO Act, including the frequency with which these sections are invoked to inspect trade union finances. Recalling, moreover, that the control by the public authorities over trade union finances should, except when exercised on the basis of a complaint from a certain percentage of workers, normally not exceed the obligation to submit periodic reports, the Committee once again requests the Government to take the measures necessary to amend section 43 of the TUEO Act.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report. The Committee further notes the comments submitted by the International Trade Union Confederation (ITUC), in a communication dated 28 August 2007, that refer mainly to matters previously raised by the Committee and to allegations of ongoing violations of trade union rights, primarily in the mining sector, including the mass dismissals of strikers. The Committee requests the Government to provide its observations respecting the ITUC’s comments, as well as those of the ICFTU contained in its previous comment.

The Committee recalls that it had previously requested the Government to:

–           amend section 2(1)(iv) of the Trade Union and Employers’ Organizations (TUEO) (Amendments) Act, 2003 and section 2(11)(iv) of the Trade Disputes Act, both of which deny employees of the prison service the right to organize, as well as section 35 of the Prisons Act – which similarly prohibits prison officers from becoming members of a trade union or any body affiliated to a trade union;

–           amend section 48B(1) of the TUEO Act, which grants certain facilities (access to an employer’s premises for purposes of recruiting members, holding meetings or representing workers; the deduction of trade union dues from employees’ wages, recognition by employers of trade union representatives in respect of grievances, discipline, and termination of employment) only to unions representing at least one third of the employees in an enterprise;

–           amend section 10 of the TUEO Act, so as to afford industrial organizations the opportunity to rectify the absence of some of the formal registration requirements provided for in that section, and to repeal sections 11 and 15, which result in the automatic dissolution and banning of activities of non-registered organizations;

–           amend sections 9(1)(b), 13 and 14 of the Trade Disputes Act, which empower the Commissioner and the Minister to refer a dispute in essential services to arbitration, or to the Industrial Court for determination; and to amend the list of essential services specified in the Schedule of the Trade Disputes Act, which includes, among others, the Bank of Botswana, railway services, and the transport and telecommunications services necessary to the operation of all of these services.

In this respect, the Committee notes the Government’s statement that it has taken note of its comments, and that consultations with the social partners on the legal provisions referred to therein are ongoing. Recalling that consultations with the social partners with regard to legislative amendments had commenced last year, the Committee requests the Government to indicate, in its next report, the progress made with respect to the points previously raised.

Finally, the Committee recalls that it had previously asked the Government to amend the following sections of the TUEO Act, so as to ensure that trade unions enjoy autonomy and financial independence from the authorities: section 43, providing for the inspection of accounts, books and documents of a trade union by the Registrar “at any reasonable time”; and sections 49 and 50, providing for the inspection by the Minister “whenever he considers it necessary in the public interest” of the financial affairs of a trade union. In this regard, the Committee notes the Government’s statement that the Minister’s power to inspect trade union finances under sections 49 and 50 of the TUEO Act is limited to exceptional circumstances in order to investigate a complaint by members of the union or allegations of embezzlement. In these circumstances, the Committee requests the Government to provide information on the practical application of sections 49 and 50 of the TUEO Act, including the frequency with which these sections are invoked to inspect trade union finances. Recalling, moreover, that the control by the public authorities over trade union finances should, except when exercised on the basis of a complaint from a certain percentage of workers, normally not exceed the obligation to submit periodic reports, the Committee once again requests the Government to take the measures necessary to amend section 43 of the TUEO Act.

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

The Committee notes the Government’s report and its reply to the comments submitted by the International Confederation of Free Trade Unions (ICFTU) on 10 August 2006. The ICFTU’s comments mainly refer to matters previously raised by the Committee and to allegations concerning the massive dismissal of strikers in the mining sector, including the Chairperson and general secretary of the Botswana Mining Workers Union (BMWU); a harassment campaign against the new general secretary of the Botswana Federation of Trade Unions (BFTU); the eviction of BMWU leaders from the Debswana company’s largest diamond mine at Orapa in October 2005, after they arrived to conduct elections for BMWU’s branch committee; and the spying on, by members of the military intelligence, of the presidents of the Botswana Unified Local Government Service Association (BULGSA) and the Botswana Federation of Secondary School Teachers (BOFESETE). In regard to the strikers dismissed at the Debswana mines, the Committee notes the Government’s statement that the dispute is before the Industrial Court, and, if it determines that any employees have been wrongfully dismissed, it may order their reinstatement, with or without compensation. In these circumstances, the Committee requests the Government to keep it informed of the final judicial decision concerning this allegation and to send its observations in respect of the other ICFTU comments with its next report.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously referred to section 2(1)(iv) of the Trade Union Employers’ Organizations (TUEO) (Amendments) Act, 2003, and section 2(11)(iv) of the Trade Disputes Act, both of which deny employees of the prison service the right to organize. The Committee notes the Government’s statement that section 35 of the Prisons Act similarly prohibits prison officers from becoming members of a trade union or any body affiliated to a trade union, but that the Committee’s comments were noted and consultations with relevant authorities on this issue were ongoing. In this regard, the Committee requests the Government to keep it informed of any measures taken to amend the above legislation, including section 35 of the Prisons Act, so as to ensure that prison workers enjoy the right to organize.

Right of workers and employers to establish organizations of their own choosing. The Committee recalls that it had noted that section 48B(1) of the TUEO Act granted certain facilities (access to an employer’s premises for purposes of recruiting members, holding meetings or representing workers, the deduction of trade union dues from employees’ wages, recognition by employers of trade union representatives in respect of grievances, discipline and termination of employment) to unions representing at least one-third of the employees in an enterprise. The Government indicates that consultations with the social partners are ongoing with respect to amendments to this section of the Act. Recalling that workers’ freedom of choice is jeopardized if the distinction between the recognized and non-recognized unions results, in law or in practice, in the granting of privileges such as to influence unduly the choice of an organization by workers, the Committee requests the Government to keep it informed of the practical application that this provision has on the choice of workers of their trade unions and the progress made in the tripartite discussions.

Right of workers and employers to establish organizations without previous authorization. The Committee had previously requested the Government to amend its legislation so as to provide for an opportunity to rectify the absence of some of the formal requirements provided for in section 10 of the TUEO Act and to repeal sections 11 and 15, which result in the automatic dissolution and banning of activities of non-registered organizations. The Committee notes the Government’s statement that the objective of registration is to ensure orderliness and the proper functioning of trade unions and employers’ organizations, and that deleting section 15 would defeat this objective since there would be no regulatory mechanism, and that consultations to rectify the formal requirements for registration are being held with the social partners. The Committee requests the Government to keep it informed of any measures adopted in this respect.

Article 3 of the Convention. Right of workers’ organizations to organize their administration and to formulate their programmes. The Committee had previously asked the Government to amend the following sections of the TUEO Act, so as to ensure that trade unions enjoy autonomy and financial independence from the authorities: section 43, providing for the inspection of accounts, books and documents of a trade union by the registrar “at any reasonable time”; and sections 49 and 50, providing for the inspection by the minister “whenever he considers it necessary in the public interest” of the financial affairs of a trade union. The Committee notes the Government’s indication that consultations with the relevant authorities are ongoing and expresses the hope that the Government would be able to indicate the progress made with respect to their amendment in its next report.

Right to strike. The Committee notes that sections 9(1)(b), 13 and 14 of the Trade Disputes Act empower the Commissioner and the Minister to refer a dispute in essential services to arbitration or to the Industrial Court for determination. The Committee notes further that the list of essential services specified in the Schedule of the Trade Disputes Act includes, among others, the Bank of Botswana, railways services, and the transport and telecommunications services necessary to the operation of all of these services. The Committee recalls that compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted or banned, such as in the case of disputes in the public service involving public servants exercising authority in the name of the State, or in essential services in the strict sense of the term. The Committee notes the Government’s indication that it included the Bank of Botswana in the list of essential services due to its critical role in the shaping of economic policy to promote economic stability and development, and that the stoppage of services rendered by the Bank would lead to an acute national crisis. In this connection, the Committee once again recalls that the essential services are only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee recalls that, in order to avoid damages which are irreversible or out of all proportion to the parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility rather than impose an outright ban on strikes (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 159-160). The Committee requests the Government to amend the Schedule of the Trade Disputes Act in the light of the abovementioned principles.

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

The Committee notes that the Government’s report has not been received. The Committee also notes the comments made by the International Confederation of Free Trade Unions (IFCTU) dated 31 August 2005 concerning issues raised by the Committee in its last direct request.

Article 2 of the Convention. 1. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously noted that, under section 2(1)(iv) of the Trade Union Employers’ Organizations (TUEO) (Amendment) Act, 2003, employees of the prison service were excluded from its application. The Committee notes that section 2(11)(iv) of the Trade Disputes Act is to the same effect. The Committee is of the opinion that the functions exercised by this category of public servants should not justify their exclusion from the right to organize (see General Survey of 1994 on Freedom of Association and Collective Bargaining, paragraph 56). It therefore once again requests the Government to amend the legislation so as to ensure that prison workers enjoy the right to organize.

2. Right of workers and employers to establish organizations of their own choosing. The Committee had previously noted that section 48B(1) of the TUEO Amendment Act granted certain basic facilities (access to an employer’s premises for purposes of recruiting members, holding meetings or representing members in respect of grievances, discipline and termination of employment and check-off facilities) only to unions representing at least one-third of the employees at the enterprise. The Committee once again recalls that the workers’ freedom of choice is jeopardized if the distinction between the recognized and non-recognized unions results, in law or in practice, in the granting of privileges such as to influence unduly the choice of organization by workers. This distinction should not have the effect of depriving minority trade unions of the essential means for defending the occupational interests of their members, for organizing their administration and activities, and formulating their programmes, as provided for in the Convention (see General Survey, op. cit., paragraphs 83 and 98). The Committee once again requests the Government to amend section 48B(1) so as to bring it into full conformity with the Convention.

3. Right of workers and employers to establish organizations without previous authorization. The Committee had noted that the amended TUEO Act did not provide for a procedure to rectify formal requirements for registration. It had further noted section 11(1)(a) of the Act, under which a trade union or employers’ organization was subject to dissolution following the notification of refusal of registration and section 15, under which unregistered organizations were prohibited from carrying out their activities. The Committee once again requests the Government to take the necessary measures to amend its legislation so as to provide for an opportunity to rectify the absence of certain of the formal requirements provided for in section 10 of the Act and to repeal sections 11 and 15 which result in the automatic dissolution and banning of activities of non-registered organizations.

Article 3. 1. Right of workers to elect their representatives freely. With reference to its previous direct request, the Committee once again requests the Government to amend the following sections of the TUEO Act:

n  section 22(7), establishing excessively broad ineligibility criteria, so as to ensure that only convictions clearly touching upon the integrity of the person concerned could constitute grounds for disqualification from trade union office;

n  section 21(1), providing that only employees in the industry may be trade union members; section 22(1), prohibiting non-members of a trade union or a federation of trade unions from becoming officers; and section 22(2), providing that an officer of a trade union will leave the post once he or she ceases to be a member of the trade union, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have previously been employed in the organization concerned; and

n  section 22(3) and (6), which grants the Registrar the power to remove a trade union treasurer if the Registrar considers that a treasurer is incapable of carrying out his or her functions properly.

2. Right of workers’ organizations to organize their administration and to formulate their programmes. Furthermore, the Committee once again requests the Government to amend the following sections of the TUEO Act so as to ensure that trade unions enjoy autonomy and financial independence from the authorities:

n  section 41 (section 39 following the new numbering), providing for an interdict to restrain unauthorized or unlawful expenditure of funds on the application of the Registrar or Attorney-General; and

n  section 45 (section 43 following the new numbering), providing for the inspection of accounts, books and documents of a trade union by the Registrar "at any reasonable time", and sections 51 and 52 (sections 49 and 50 following the new numbering), providing for the inspection by the minister "whenever he considers it necessary in the public interest" of the financial affairs of a trade union. The Committee once again recalls in this respect that the supervision of trade union accounts should be limited to the obligation of submitting periodic financial reports or where there are serious grounds for believing that the actions of an organization are contrary to its rules or the law. Similarly, there is no violation of the Convention if such verification is limited to exceptional cases, for example, in order to investigate a complaint, or if there have been allegations of embezzlement. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey, op. cit., paragraph 125).

3. Right to strike. Noting that section 14(1)(b) of the Trade Disputes Act empowering the minister to refer trade disputes to the Industrial Court when "the minister is satisfied that the dispute has or may jeopardize the essentials of life or the livelihood of the people of Botswana or a significant section thereof or may endanger the public safety or life of the community" was not repealed by the amendment of the Trade Disputes Act, the Committee reiterates its request to delete the reference to "livelihood" which goes beyond the notion of essential services and to limit the powers of the Minister to essential services in the strict sense of the term.

The Committee notes that the list of essential services specified in the Schedule of the Trade Disputes Act includes the Bank of Botswana, the operational and maintenance services of railways, the sewerage services as well as the transport and telecommunications services necessary to the operation of any of these services. As concerns the Bank of Botswana and the transport and telecommunications services necessary to the operation of this service, the Committee recalls that the essential services are only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. As concerns the operational and maintenance services of railways, the sewerage services and the transport and telecommunications services necessary to the operation of any of these services, the Committee considers that in order to avoid damages which are irreversible or out of proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility rather than impose an outright ban of strikes. In the view of the Committee, such a service should meet at least two requirements. Firstly, and this aspect in paramount, it must genuinely and exclusively be a minimum service, that is one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear. Secondly, since this system restricts one of the essential means of pressure available to workers to defend their economic and social interest, their organization should be able, if they wish, to participate in defining such a service, along with employers and the public authorities. (see General Survey, op. cit., paragraphs 160 and 161). The Committee requests the Government to amend the Schedule so as to bring it into conformity with the abovementioned principles.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future and requests the Government to keep it informed of measures taken or envisaged in this respect.

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

The Committee notes the Government’s report. The Committee notes the adoption of the Trade Unions and Employers’ Organizations (TUEO) (Amendment) Act, 2003. It further notes the adoption of the Trade Disputes (Amendment) Act, 2004 and requests the Government to provide a copy thereof. It wishes to raise the following points in respect of the TUEO Amendment Act.

Article 2 of the Convention. 1. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that under section 2(1)(iv) of the amended TUEO Act, employees of the prison service are excluded from its application. The Committee is of the opinion that the functions exercised by this category of public servants should not justify their exclusion from the right to organize (see General Survey on freedom of association and collective bargaining, 1994, paragraph 56). It therefore requests the Government to amend the Act so as to ensure that prison workers enjoy the right to organize and requests the Government to keep it informed of measures taken or envisaged in this respect.

2. Right of workers and employers to establish organizations of their own choosing. The Committee notes that the TUEO Amendment Act introduces new section 48B, which provides in its paragraph (1) that a recognized trade union (i.e. a union representing, according to new section 48(1), at least one-third of the employees of an employer) is entitled to have authorized representatives of the union granted access to an employer’s premises for purposes of recruiting members, holding meetings or representing members in respect of grievances, discipline and termination of employment, as well as being entitled to check-off facilities. The Committee notes that while the Act, as amended, does not require a minimum number of workers for the establishment of a trade union, it only grants certain basic facilities to unions that have been recognized under the Act and which must therefore represent at least one-third of the employees at the enterprise. The Committee considers that the workers’ freedom of choice is jeopardized if the distinction between the recognized and non-recognized unions results, in law or in practice, in the granting of privileges such as to influence unduly the choice of organization by workers. This distinction should not have the effect of depriving those trade unions that are not recognized of the essential means for defending the occupational interests of their members, for organizing their administration and activities, and formulating their programmes, as provided for in the Convention (see General Survey, op. cit., paragraphs 83 and 98).The Committee considers in particular that reasonable access to the enterprise in order to advise workers of the benefits of unionization and the right of an organization to represent its own members in respect of individual grievances should be guaranteed to all workers’ organizations, regardless of the degree of their representation. The Committee therefore requests the Government to amend section 48B(1) accordingly and to keep it informed of measures taken or envisaged in this respect.

3. Right of workers and employers to establish organizations without previous authorization. The Committee notes that the amended TUEO Act does not provide for a procedure to rectify formal requirements for registration and that section 11(1)(a) of the Act under which a trade union or employers’ organization is dissolved following the notification of refusal of registration as well as section 15 under which unregistered organizations are prohibited from carrying out their activities were not amended. The Committee therefore reiterates its request that the Government take the necessary measures to amend its legislation so as to provide for an opportunity to rectify the absence of certain of the formal requirements provided for in section 10 of the Act and to repeal sections 11 and 15 which result in the automatic dissolution and banning of activities of non-registered organizations. The Committee requests the Government to keep it informed of the measures taken or envisaged in this respect.

Article 3. 1. Right of workers to elect their representatives freely. With reference to its previous comments, the Committee notes that section 22(7) of the TUEO Act, which provided that "no person shall be an officer of a trade union or federation of trade unions who has, within the immediately preceding five years, been convicted of an offence under the Act", has not been amended. The Committee recalls that conviction for an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office (see General Survey, op. cit., paragraph 120). Considering that section 22(7) establishes excessively broad ineligibility criteria by means of an open-ended definition, the Committee once again requests the Government to amend this provision so as to limit this restriction specifically to convictions clearly touching upon the integrity of the person concerned.

On the issue of trade union elections, the Committee had previously asked the Government to amend its legislation in respect of the occupational requirement. While noting that section 21(2) of the TUEO Act, according to which a member of a trade union ceasing to be an employee in an industry with which the trade union is directly concerned shall cease to be a member of the trade union, was repealed, the Committee notes that the occupational requirement remains. Section 21(1) still provides that only employees in the industry may be trade union members, while section 22(1) still prohibits non-members of a trade union or a federation of trade unions from becoming officers and section 22(2) still provides that an officer of a trade union will leave the post once he or she ceases to be a member of the trade union. The Committee therefore once again requests the Government to amend its legislation in order to bring it into conformity with the Convention, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have previously been employed in the organization concerned. It requests the Government to keep it informed of measures taken or envisaged in this respect.

Furthermore, with reference to its previous comments, the Committee notes that section 22(3) and (6) of the Act, which grants the Registrar the power to remove a trade union treasurer if the Registrar considers that a treasurer is incapable of carrying out his or her functions properly, was not repealed. It therefore once again requests the Government to repeal these provisions and to keep it informed of measures taken or envisaged in this regard.

2. Right of workers’ organizations to organize their administration and to formulate their programmes. With reference to the application and receipt of funds, the Committee notes with interest that section 39 (section 37 following the new numbering of the Act) has been amended to provide that "no funds of a registered trade union, federation of trade unions or employers’ organization shall be expended otherwise than as provided by their constitutions". The Committee notes however that section 41 (section 39 following the new numbering), providing for an interdict to restrain unauthorized or unlawful expenditure of funds on the application of the Registrar or Attorney-General, was not amended and therefore once again requests the Government to repeal this provision and to keep it informed of the measures taken or envisaged in this regard.

With respect to its previous request to limit the powers of the public authorities as concerns the inspection of accounts, books and documents of trade unions by amending sections 45, 51, 52 and 53 of the TUEO Act, the Committee notes with interest that section 53 (section 51 following the new numbering) was repealed. The Committee regrets however that section 45 (section 43 following the new numbering), providing for the inspection by the Registrar "at any reasonable time" and sections 51 and 52 (sections 49 and 50 following the new numbering), providing for the inspection by the Minister "whenever he considers it necessary in the public interest" of the financial affairs of a trade union, were not amended. Given that as a result of such investigation, the registration of the trade union may be cancelled, the Committee recalls that the supervision of trade union accounts should be limited to the obligation of submitting periodic financial reports or where there are serious grounds for believing that the actions of an organization are contrary to its rules or the law. Similarly, there is no violation of the Convention if such verification is limited to exceptional cases, for example, in order to investigate a complaint, or if there have been allegations of embezzlement. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey, op. cit., paragraph 125). The Committee therefore once again requests the Government to limit the powers of the public authorities to the situations noted above and keep it informed of the measures taken or envisaged in this respect.

The Committee recalls that it had previously commented on the provision of the Trade Dispute Act empowering the Minister to refer trade disputes to the Industrial Court when "the dispute has or may jeopardize the essentials of life or livelihood of the people of Botswana" and requested, in this respect, to delete the reference to "livelihood", which it considered went beyond the notion of essential services and to limit the powers of the Minister to essential services in the strict sense of the term. The Committee understands from the Government’s report that this section was not repealed by the amendment of the Trade Disputes Act. The Committee therefore reiterates its request to delete the reference to "livelihood" in section 14(1)(b) of the Act and requests the Government to keep it informed of measures taken or envisaged in this respect.

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

The Committee notes Government’s report. The Committee notes the adoption of the Trade Unions and Employers’ Organizations (Amendment) Act, 2003 (TUEO Act) and in particular notes with satisfaction that the Act ensures the right to organize for the public services and teachers by extending its coverage to these categories of workers.

The Committee further notes with satisfaction that the following sections of the TUEO Act were either repealed or amended in accordance with the Committee’s previous comments:

-  section 10(4)(a), which provided for the Registrar’s power to refuse registration of a trade union or employers’ organization if he or she considers that another registered trade union or employers’ organization sufficiently represents the interests of workers or employers concerned, was repealed;

-  section 10(2)(b), according to which the Registrar could refuse to register a trade union or an employers’ organization if its constitution did not comply with the Schedule, was repealed;

-  section 10(2)(c) was amended so that the Registrar may now only refuse to register a trade union or an employers’ organization if its principal objects or any other provision of its constitution are unlawful;

-  section 10(2)(g), according to which registration of an organization could be refused if any of its officers was a person who has, within five years from the date of the application for the registration, been convicted of "an offence under the Act", was repealed;

-  section 10(3), which granted the Registrar the power to refuse to register a trade union or a federation of trade unions if one of its officers was not a citizen of Botswana, was repealed;

-  section 12(3), which provided that the registration of a trade union or a federation of trade unions could be cancelled if any of its officers was not a citizen of Botswana was repealed;

-  provisions previously contained in sections 28 and 29 of the Act, which regulated in a fair amount of detail the internal functioning of trade unions particularly as concerns their meetings and provided the Registrar and the Minister with the right to request and to convene general meetings, as well as making a default in holding a meeting a punishable offence, were amended;

-  section 64 (section 63 following the new numbering) of the Act providing for the restriction concerning receipt of funds originating from outside Botswana, was repealed; and

-  sections 47 and 63 (sections 45 and 62 following the new numbering) of the Act, which provided that trade unions should ask for the prior consent of the Minister in order to form a federation or to be affiliated to any body outside Botswana were respectively amended and repealed.

The Committee is also addressing a request directly to the Government.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 2 of the Convention. (a) Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously noted that article 13 of the Botswana Constitution permits restrictions of the freedom of association of public officers and teachers and that the Trade Unions’ and Employers’ Organizations Act of 1992 (TUEOA) does not cover public officers or persons employed by the local authority not belonging to the industrial class by virtue of the definition of "employee". The Committee notes with interest that the draft Amendment Bill extends the definition of "employee" to include public officers and persons employed by local authorities. It once again requests the Government to indicate whether any restrictions have been applied to teachers in respect of their right to organize.

(b) Right of workers and employers to establish organizations of their own choosing. The Committee notes with interest that the draft Amendment Bill proposes to repeal section 10(4)(a) of the TUEOA providing for the Registrar’s power to refuse registration of a trade union or employers’ organization if he or she considers that another registered trade union or employers’ organization sufficiently represents the interests of workers or employers concerned.

(c) Right of workers and employers to establish organizations without previous authorization. The Committee had previously noted that under section 10(2)(b) and (c) of the TUEOA, the Registrar can refuse to register a trade union or an employers’ organization if its constitution does not comply with the schedule or if any of its principal objects or any other provision of its constitution are unlawful or inconsistent with the Act or any other regulations. It further noted that the Act did not provide for a procedure to rectify formal requirements and, under section 11(1)(a), a trade union or employers’ organization is dissolved following the notification of refusal of registration. Moreover, the Committee had noted that the registration of an organization can be refused under section 10(2)(g) if any of its officers is a person who has, within five years from the date of the application for registration, been convicted of "an offence under the Act". The Committee had also noted that under section 6(2)(d), an application for registration should be accompanied by a list of the full names of all the members of the trade union, federation of trade unions or employers’ organization. In this regard, the Committee requested the Government to indicate the practical impact of this provision and whether cases of non-registration based on non-submission of such list have occurred in the past. The Committee notes with regret that the draft Amendment Bill does not take into account its previous comments. Given that under section 15 of the Act, unregistered organizations are prohibited from carrying out their activities, the Committee once again recalls that national regulations concerning formalities for registration must not be equivalent to a requirement for "previous authorization", in violation of Article 2 of the Convention, nor must they constitute such an obstacle that they amount in practice to a prohibition (see General Survey on freedom of association and collective bargaining, 1994, paragraph 69). The Committee therefore once again requests the Government to amend its legislation to provide for an opportunity to rectify the absence of certain formal requirements provided for in the legislation (section 10(2)(a), (b) and (c)) and to repeal sections 11 and 15 which result in the automatic dissolution and banning of activities of non-registered organizations. It also requests the Government to repeal section 10(2)(g) as the broad notion of an "offence under the Act" could include the legitimate exercise of trade union activities. The Committee does note with interest, however, that section 10(3), which provided for the Registrar’s power to refuse to register a trade union or a federation of trade unions if one of its officers is not a citizen of Botswana, will be repealed under the draft Amendment Bill.

Article 3. (a) Right of workers to elect their representatives freely. The Committee notes with interest that the draft Amendment Bill proposes to repeal section 12(3) of the Trade Unions’ and Employers’ Organizations Act, which provides that the registration of a trade union or a federation of trade unions can be cancelled if any of its officers is not a citizen of Botswana.

With reference to the condition of eligibility concerning conviction, the Committee had previously noted section 22(7) of the TUEOA, which provides that "no person shall be an officer of a trade union or federation of trade unions who has, within the immediately preceding five years, been convicted of an offence under the Act". The Committee notes that the draft Amendment Bill proposes to amend this section and that the new section will read "no person shall be an officer of a trade union or federation of trade unions who has, within the immediately preceding five years, been convicted of an offence and sentenced to a term of imprisonment". The Committee considers that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from the trade union office. Thus, legislation, which establishes excessively broad ineligibility criteria by means of an open-ended definition, is incompatible with the Convention. The Committee requests the Government to amend section 22(7) so as to limit this restriction to convictions clearly touching upon the integrity of the person concerned (see General Survey, 1994, paragraph 120).

On the issue of trade union election, the Committee had previously asked the Government to amend its legislation in respect of the occupational requirement.  While noting that section 22(1) prohibiting non-members of a trade union or a federation of trade unions from becoming officers and section 21 (2), according to which a member of a trade union ceasing to be an employee in an industry with which the trade union is directly concerned shall cease to be a member of the trade union, are to be repealed by the Amendment Bill, there is no proposed amendment to section 22(2). Section 22(2) continues to provide that an officer of a trade union will leave the post once he or she ceases to be a member of the trade union and since, under section 21(1), only employees in the industry may be trade union members, the occupational requirement remains. The Committee therefore requests the Government to amend its legislation in order to bring it into conformity with the Convention, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have previously been employed in the organization concerned.

Furthermore, with reference to its previous comments, the Committee notes that no amendments have been proposed to section 22(3) and (6) of the TUEOA. The Committee therefore once again requests the Government to repeal these provisions and to keep it informed of measures taken or envisaged in this regard.

(b) Right of workers’ organizations to organize their administration and to formulate their programmes. 1. The Committee had previously requested the Government to repeal sections 28 and 29 of the TUEOA, which regulate in a fair amount of details the internal functioning of trade unions particularly as concerns their meetings and provide the Registrar and the Minister with the right to request and to convene the general meetings. The Committee notes that subsection 28(3) providing for the right of the Registrar to convene the general meeting, and reference in section 29 to the right of the Minister to convene extraordinary general meetings, are proposed to be repealed by the draft Amendment Bill. The Committee notes however, that other subsections of section 28 which include provisions making a default in holding a meeting a punishable offence, are maintained. The Committee considers that these provisions constitute an infringement of the right of workers’ organizations to organize their internal administration and that precise questions of quorum and meetings are best left to the by-laws of the union concerned. The Committee therefore once again requests the Government to repeal section 28 and to keep it informed of measures taken or envisaged in this regard.

2. With reference to the application and receipt of funds, the Committee had previously requested the Government to repeal sections 39 and 41 of the TUEOA, which respectively provide for a restrictive list of approved uses of trade union or employers’ organizations’ funds with further uses subject to the Minister’s approval (section 39(2)(c)) and for an interdict to restrain unauthorized or unlawful expenditure of funds on the application of the Registrar or Attorney-General. The Committee notes with regret that the draft Amendment Bill maintains these provisions and therefore once again requests the Government to repeal sections 39 and 41, and to keep it informed of the measures taken or envisaged in this regard. The Committee does note with interest, however, that section 64 of the Act, providing for the restriction concerning receipt of funds originating from outside Botswana, is to be repealed by the draft Amendment Bill.

The Committee had previously requested the Government to limit the powers of the public authorities as concerns the inspections of accounts, books and documents of trade unions by amending sections 45, 51, 52 and 53 of the TUEOA. While noting that section 53 (which provides for the investigation of the membership of any trade union) is proposed to be repealed, sections 45, 51 and 52 providing for the inspection by the Registrar "at any reasonable time" and by the Minister "whenever he considers it necessary in the public interest" are not amended by the draft Bill. It therefore once again requests the Government to limit the powers of the public authorities to the situations noted above.

3. The Committee recalls that it had previously commented on the provision of the Trade Disputes Act empowering the Minister to refer trade disputes to the Industrial Court when "the dispute has or may jeopardize the essentials of life or livelihood of the people of Botswana" and requested, in this respect, to delete the reference to "livelihood", which it considered went beyond the notion of essential services and to limit the powers of the Minister to essential services in the strict sense of the term. The Committee notes that section 14(1)(b) of the draft Trade Dispute Act reproduces this provision and therefore once again asks the Government to delete the reference to "livelihood" in section 14(1)(b) of the Act.

Articles 5 and 6. Right to establish federations and confederations and to affiliate with international organizations. The Committee notes with interest that sections 47 and 63 of the TUEOA, upon which it had previously commented, which provide that trade unions should ask for the prior consent of the Minister in order to form a federation or to be affiliated to any body outside Botswana, are to be repealed by the draft Amendment Bill.

The Committee trusts that the new legislation will take into account the abovementioned points and requests the Government to provide the legislative texts once they have been adopted.

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

The Committee notes the Government’s report. It notes the Government’s statement that a draft Bill has been considered by social partners for submission to the Parliament at its next meeting. The Committee understands that two Bills concerning the application of Convention No. 87 are presently drafted, the Trade Unions and Employer’s Organizations (Amendment) Bill and the Trade Disputes Bill.

The Committee recalls that its previous comments focused on the need to amend the legislation so as to ensure the application of the following Articles of the Convention:

Article 2 of the Convention. (a) Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously noted that article 13 of the Botswana Constitution permits restrictions of the freedom of association of public officers and teachers and that the Trade Unions’ and Employers’ Organizations Act of 1992 (TUEOA) does not cover public officers or persons employed by the local authority not belonging to the industrial class by virtue of the definition of "employee". The Committee notes with interest that the draft Amendment Bill extends the definition of "employee" to include public officers and persons employed by local authorities. It once again requests the Government to indicate whether any restrictions have been applied to teachers in respect of their right to organize.

(b) Right of workers and employers to establish organizations of their own choosing. The Committee notes with interest that the draft Amendment Bill proposes to repeal section 10(4)(a) of the TUEOA providing for the Registrar’s power to refuse registration of a trade union or employers’ organization if he or she considers that another registered trade union or employers’ organization sufficiently represents the interests of workers or employers concerned.

(c) Right of workers and employers to establish organizations without previous authorization. The Committee had previously noted that under section 10(2)(b) and (c) of the TUEOA, the Registrar can refuse to register a trade union or an employers’ organization if its constitution does not comply with the schedule or if any of its principal objects or any other provision of its constitution are unlawful or inconsistent with the Act or any other regulations. It further noted that the Act did not provide for a procedure to rectify formal requirements and, under section 11(1)(a), a trade union or employers’ organization is dissolved following the notification of refusal of registration. Moreover, the Committee had noted that the registration of an organization can be refused under section 10(2)(g) if any of its officers is a person who has, within five years from the date of the application for registration, been convicted of "an offence under the Act". The Committee had also noted that under section 6(2)(d), an application for registration should be accompanied by a list of the full names of all the members of the trade union, federation of trade unions or employers’ organization. In this regard, the Committee requested the Government to indicate the practical impact of this provision and whether cases of non-registration based on non-submission of such list have occurred in the past. The Committee notes with regret that the draft Amendment Bill does not take into account its previous comments. Given that under section 15 of the Act, unregistered organizations are prohibited from carrying out their activities, the Committee once again recalls that national regulations concerning formalities for registration must not be equivalent to a requirement for "previous authorization", in violation of Article 2 of the Convention, nor must they constitute such an obstacle that they amount in practice to a prohibition (see General Survey on freedom of association and collective bargaining, 1994, paragraph 69). The Committee therefore once again requests the Government to amend its legislation to provide for an opportunity to rectify the absence of certain formal requirements provided for in the legislation (section 10(2)(a), (b) and (c)) and to repeal sections 11 and 15 which result in the automatic dissolution and banning of activities of non-registered organizations. It also requests the Government to repeal section 10(2)(g) as the broad notion of an "offence under the Act" could include the legitimate exercise of trade union activities. The Committee does note with interest, however, that section 10(3), which provided for the Registrar’s power to refuse to register a trade union or a federation of trade unions if one of its officers is not a citizen of Botswana, will be repealed under the draft Amendment Bill.

Article 3. (a) Right of workers to elect their representatives freely. The Committee notes with interest that the draft Amendment Bill proposes to repeal section 12(3) of the Trade Unions’ and Employers’ Organizations Act, which provides that the registration of a trade union or a federation of trade unions can be cancelled if any of its officers is not a citizen of Botswana.

With reference to the condition of eligibility concerning conviction, the Committee had previously noted section 22(7) of the TUEOA, which provides that "no person shall be an officer of a trade union or federation of trade unions who has, within the immediately preceding five years, been convicted of an offence under the Act". The Committee notes that the draft Amendment Bill proposes to amend this section and that the new section will read "no person shall be an officer of a trade union or federation of trade unions who has, within the immediately preceding five years, been convicted of an offence and sentenced to a term of imprisonment". The Committee considers that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from the trade union office. Thus, legislation, which establishes excessively broad ineligibility criteria by means of an open-ended definition, is incompatible with the Convention. The Committee requests the Government to amend section 22(7) so as to limit this restriction to convictions clearly touching upon the integrity of the person concerned (see General Survey, 1994, paragraph 120).

On the issue of trade union election, the Committee had previously asked the Government to amend its legislation in respect of the occupational requirement.  While noting that section 22(1) prohibiting non-members of a trade union or a federation of trade unions from becoming officers and section 21 (2), according to which a member of a trade union ceasing to be an employee in an industry with which the trade union is directly concerned shall cease to be a member of the trade union, are to be repealed by the Amendment Bill, there is no proposed amendment to section 22(2). Section 22(2) continues to provide that an officer of a trade union will leave the post once he or she ceases to be a member of the trade union and since, under section 21(1), only employees in the industry may be trade union members, the occupational requirement remains. The Committee therefore requests the Government to amend its legislation in order to bring it into conformity with the Convention, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have previously been employed in the organization concerned.

Furthermore, with reference to its previous comments, the Committee notes that no amendments have been proposed to section 22(3) and (6) of the TUEOA. The Committee therefore once again requests the Government to repeal these provisions and to keep it informed of measures taken or envisaged in this regard.

(b) Right of workers’ organizations to organize their administration and to formulate their programmes. 1. The Committee had previously requested the Government to repeal sections 28 and 29 of the TUEOA, which regulate in a fair amount of details the internal functioning of trade unions particularly as concerns their meetings and provide the Registrar and the Minister with the right to request and to convene the general meetings. The Committee notes that subsection 28(3) providing for the right of the Registrar to convene the general meeting, and reference in section 29 to the right of the Minister to convene extraordinary general meetings, are proposed to be repealed by the draft Amendment Bill. The Committee notes however, that other subsections of section 28 which include provisions making a default in holding a meeting a punishable offence, are maintained. The Committee considers that these provisions constitute an infringement of the right of workers’ organizations to organize their internal administration and that precise questions of quorum and meetings are best left to the by-laws of the union concerned. The Committee therefore once again requests the Government to repeal section 28 and to keep it informed of measures taken or envisaged in this regard.

2. With reference to the application and receipt of funds, the Committee had previously requested the Government to repeal sections 39 and 41 of the TUEOA, which respectively provide for a restrictive list of approved uses of trade union or employers’ organizations’ funds with further uses subject to the Minister’s approval (section 39(2)(c)) and for an interdict to restrain unauthorized or unlawful expenditure of funds on the application of the Registrar or Attorney-General. The Committee notes with regret that the draft Amendment Bill maintains these provisions and therefore once again requests the Government to repeal sections 39 and 41, and to keep it informed of the measures taken or envisaged in this regard. The Committee does note with interest, however, that section 64 of the Act, providing for the restriction concerning receipt of funds originating from outside Botswana, is to be repealed by the draft Amendment Bill.

The Committee had previously requested the Government to limit the powers of the public authorities as concerns the inspections of accounts, books and documents of trade unions by amending sections 45, 51, 52 and 53 of the TUEOA. While noting that section 53 (which provides for the investigation of the membership of any trade union) is proposed to be repealed, sections 45, 51 and 52 providing for the inspection by the Registrar "at any reasonable time" and by the Minister "whenever he considers it necessary in the public interest" are not amended by the draft Bill. It therefore once again requests the Government to limit the powers of the public authorities to the situations noted above.

3. The Committee recalls that it had previously commented on the provision of the Trade Disputes Act empowering the Minister to refer trade disputes to the Industrial Court when "the dispute has or may jeopardize the essentials of life or livelihood of the people of Botswana" and requested, in this respect, to delete the reference to "livelihood", which it considered went beyond the notion of essential services and to limit the powers of the Minister to essential services in the strict sense of the term. The Committee notes that section 14(1)(b) of the draft Trade Dispute Act reproduces this provision and therefore once again asks the Government to delete the reference to "livelihood" in section 14(1)(b) of the Act.

Articles 5 and 6. Right to establish federations and confederations and to affiliate with international organizations. The Committee notes with interest that sections 47 and 63 of the TUEOA, upon which it had previously commented, which provide that trade unions should ask for the prior consent of the Minister in order to form a federation or to be affiliated to any body outside Botswana, are to be repealed by the draft Amendment Bill.

The Committee trusts that the new legislation will take into account the abovementioned points and requests the Government to provide the legislative texts once they have been adopted.

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

The Committee notes the information provided by the Government in its first report. It wishes to raise a certain number of points concerning the application of the following Articles of the Convention.

Article 2 of the Convention. (a) Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that article 13 of the Botswana Constitution permits restrictions of the freedom of association of public officers and teachers. Furthermore, the Trade Unions and Employers’ Organizations Act of 1992 does not cover public officers or persons employed by the local authority not belonging to the industrial class by virtue of the definition of "employee". The Committee requests the Government to indicate in its next report the measures taken or envisaged to ensure the right of public servants to form and join organizations of their own choosing for the furtherance and defence of their members’ occupational interests and to provide the text of any relevant legislation. It further requests the Government to indicate whether any restrictions have been applied to teachers in respect of their right to organize.

(b) Right of workers and employers to establish organizations of their own choosing. The Committee notes that the Registrar has the power to refuse registration of a trade union or employers’ organization if he or she considers that another registered trade union or employers’ organization sufficiently represents the interests of workers or employers concerned, by virtue of section 10(4)(a) of the Trade Union and Employers’ Organizations Act. The Committee considers that such authority of the Registrar infringes upon the right of workers and employers to join and form the organization of their own choosing and it therefore requests the Government to take the necessary measures to guarantee this right, even if another registered organization is also representing workers or employers in the same unit, enterprise, sector or industry.

(c) Right of workers and employers to establish organizations without previous authorization. The Committee takes note of sections 6 10 of the Trade Union and Employers’ Organizations Act which set the requirements for the registration of an organization. The Committee notes that under section 10(2)(b) and (c), the Registrar can refuse to register a trade union or an employers’ organization if its constitution does not comply with the Schedule or if any of its principal objects or any other provision of its constitution are unlawful or inconsistent with the Act or any other regulations. The Act does not provide for a procedure to rectify formal requirements and, under section 11(1)(a), a trade union or employers’ organization is dissolved following the notification of refusal of registration. The Committee further notes that the registration of an organization can be refused under section 10(2)(g) if any of its officers is a person who has, within five years from the date of the application for the registration, been convicted of "an offence under the Act". Section 10(3) of the Act provides that the Registrar can also refuse to register a trade union or a federation of trade unions if one of its officers is not a citizen of Botswana. The Committee also notes that under section 6(2)(d) an application for registration should be accompanied by a list of the full names of all the members of the trade union, federation of trade unions or employers’ organization. In this regard, the Committee requests the Government to indicate the practical impact of this provision and whether cases of non-registration based on non-submission of such list have occurred in the past. Given that under section 15 of the Act, unregistered organizations are prohibited from carrying out their activities, the Committee recalls that national regulations concerning formalities for registration must not be equivalent to a requirement for "previous authorization", in violation of Article 2 of the Convention, nor must they constitute such an obstacle that they amount in practice to a prohibition (see General Survey on freedom of association and collective bargaining, 1994, paragraph 69). The Committee therefore requests the Government to amend its legislation to provide for an opportunity to rectify the absence of certain of the formal requirements provided in the legislation (section 10(2)(a), (b) and (c)) and to repeal sections 11 and 15 which result in the automatic dissolution and banning of activities of non-registered organizations. It also requests the Government to repeal section 10(2)(g) as the broad notion of an "offence under the Act" could include the legitimate exercise of trade union activities and to repeal the registration requirement under section 10(3) concerning citizenship which the Committee considers to be a violation of the right of workers’ organizations to elect their representatives in full freedom contrary to Article 3 of the Convention.

Article 3. In the first instance, the Committee notes that the legislation in general and the provisions of the Schedule to the Trade Union and Employers’ Organizations Act regulate in a fair amount of detail the internal functioning of workers’ and employers’ organizations and that the Registrar has the authority to cancel registration if he or she is satisfied that the provisions of the constitution of an organization are inconsistent with the numerous requirements set out in the Act or other regulations. The Committee recalls that legislative provisions which regulate in detail the internal functioning of workers’ and employers’ organizations pose a serious risk of interference by the public authorities (see 1994 General Survey, paragraphs 109 and 111).

(a) Right of workers to elect their representatives freely. The Committee notes that section 12(3) of the Trade Union and Employers’ Organizations Act provides that the registration of a trade union or a federation of trade unions can be cancelled if any of its officers is not a citizen of Botswana. An exemption from this requirement is possible only by the Minister. The Committee recalls that, by virtue of Article 3 of the Convention, workers’ organizations shall have the right to elect their representatives in full freedom and that national legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country (see 1994 General Survey, paragraph 118). The Committee therefore requests the Government to amend section 12(3) of the Trade Union and Employers’ Organizations Act to ensure that foreign workers may take up trade union office at least after a reasonable period of residency.

With reference to the condition of eligibility concerning conviction, the Committee notes that under section 22(7) of the Trade Union and Employers’ Organizations Act "no person shall be an officer of a trade union or federation of trade unions who has, within the immediately preceding five years, been convicted of an offence under the Act". As the broad notion of "offence under the Act" may concern the exercise of legitimate trade union activity, the Committee requests the Government to amend section 22(7) so as to limit this restriction to convictions clearly touching upon the integrity of the person concerned (see 1994 General Survey, paragraph 120).

The Committee notes that section 22(1) prohibits non-members of a trade union or a federation of trade unions to become an officer of that organization (while under section 21(1) only employees in the industry concerned may be members of a trade union) and requires all candidates for office in workers’ organizations to have been engaged for not less than one year in the industry concerned. Furthermore, under section 22(2), when an officer of the trade union ceases to be a member of a trade union by reason of his or her ceasing to be an employee in the industry with which the trade union is directly concerned, he or she shall cease to be an officer of such organization. The Committee considers that provisions of this type infringe the organizations’ right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. When national legislation imposes conditions of this kind on all trade union leaders, there is also a real risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see 1994 General Survey, paragraph 117). The Committee requests the Government to amend its legislation in order to bring it into conformity with the Convention, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned.

Furthermore, the Committee notes section 22(3) and (6) of the Trade Union and Employers’ Organizations Act, granting the Registrar the power to remove a trade union treasurer if the Registrar considers that a treasurer is incapable of carrying out his or her functions properly, and section 46 of the Act granting the Registrar the power to apply to the High Court for an interdict prohibiting an officer of the trade union, federation of trade unions or employers’ organization from holding office in or controlling its funds. 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 members or normal judicial proceedings seriously interferes in the exercise of the trade union office to which the officers have been freely elected by the members of their trade unions. Measures of this kind should be solely directed towards protecting the members of organizations and should be only possible through judicial proceedings. The law should lay down sufficiently precise criteria to enable the judicial authority to determine whether a trade union officer has committed acts warranting suspension or removal; provisions which are too vague or fail to comply with the principles of the Convention do not constitute an adequate guarantee. The persons concerned should also enjoy the guarantees of normal judicial procedures (see 1994 General Survey, paragraphs 122 and 123). The Committee therefore requests the Government to repeal theses provisions and to keep it informed of measures taken or envisaged in this regard.

(b) Right of workers’ organizations to organize their administration and to formulate their programmes. 1. The Committee takes note of section 28(1) and (2) of the Trade Union and Employers’ Organizations Act requiring a registered trade union to hold a general meeting in every year ending on 31 December and in all cases within 15 months after the end of one annual meeting, and of sections 28(3) to (6) and 29 of the same Act respectively which provide the Registrar and the Minister with the right to request and to convene the general meetings of a registered trade union. The Committee considers that these provisions constitute an infringement of the right of workers’ organizations to organize their internal administration. The Committee therefore requests the Government to repeal sections 28 and 29 and to keep it informed of measures taken or envisaged in this regard.

2. With reference to the application and receipt of funds, the Committee notes that section 39 of the Trade Union and Employers’ Organizations Act provides an exhaustive list of approved uses of trade union or employers’ organizations’ funds. Furthermore, section 39(2)(c) provides that "funds of a registered trade union or employers’ organization may be expended in order to compensate its members for loss arising out of a trade dispute, otherwise than from unlawful industrial action undertaken by those members". Section 41 provides for an interdict to restrain unauthorized or unlawful expenditure of funds on the application of the Registrar or Attorney-General. The Committee recalls that the right of workers’ and employers’ organizations to organize their administration without interference by the public authorities includes in particular autonomy and financial independence and the protection of the assets and property of these organizations. The Committee considers that this right also implies the right to determine the expenditure of their funds in the manner in which the organization considers most appropriate to promote and defend the occupational interests of their members (see 1994 General Survey, paragraphs 124 and 126). The Committee therefore requests the Government to repeal sections 39 and 41 and to keep it informed of the measures taken or envisaged in this regard. The Committee also considers that the restriction concerning receipt of funds originating from outside Botswana provided for in section 64 of the Act is incompatible with the right of workers’ and employers’ organizations to organize their administration without interference by the public authorities as well their right to benefit from any foreign affiliation they might have by virtue of their right under Article 5 of the Convention. It requests the Government to repeal this section and to keep it informed of the measures taken or envisaged in this regard.

The Committee further notes sections 45, 51, 52 and 53 of the Trade Union and Employers’ Organizations Act providing for the inspections of accounts, books and documents of a trade union by a Registrar "at any reasonable time" and by a Minister "whenever he considers it necessary in the public interest". Given that as a result of such investigation, the registration of the trade union may be cancelled, the Committee recalls that the supervision of trade union accounts should be limited to the obligation of submitting periodic financial reports or where there are serious grounds for believing that the actions of an organization are contrary to its rules or the law. Similarly, there is no violation of the Convention if such verification is limited to exceptional cases, for example, in order to investigate a complaint, or if there have been allegations of embezzlement. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see 1994 General Survey, paragraph 125). It therefore requests the Government to limit the powers of the public authorities to the situations noted above.

3. The Committee notes that under section 35 of the Trade Disputes Act, the Minister has a discretionary power to declare unlawful sympathetic or other industrial action having other purpose in addition to the furtherance of a trade dispute. The Committee recalls that workers should be able to take sympathy action provided that the initial strike they are supporting is itself lawful. Furthermore, in the view of the Committee, organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living (see 1994 General Survey, paragraphs 165 and 168). It requests the Government to amend its legislation in order to ensure that organizations responsible for defending workers’ interests may have recourse to sympathy or protest action and keep it informed of measures taken or envisaged in this regard.

The Committee notes that section 9(1)(a) of the Trade Dispute Act, read together with section 37, empowers the Minister to refer trade union disputes to the Industrial Court in cases when he or she has declared an industrial action to be unlawful or to declare such action unlawful after the Industrial Court has reached its decision, which appears to have the impact of banning strike action in such cases. Section 9(c) of the Act empowers the Minister to refer trade disputes to the Industrial Court when "the dispute has or may jeopardize the essentials of life or livelihood of the people of Botswana". The Committee wishes to recall in this regard that the imposition of compulsory arbitration is only acceptable in cases of strikes in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population, or in cases of acute national crises. The Committee therefore requests the Government to delete the reference to "livelihood" in section 9(1)(c) of the Act which it considers goes beyond the notion of essential services and to limit the powers of the Minister under sections 9(1)(a) and 37 to essential services in the strict sense of the term. As for the sanctions imposed by the Trade Dispute Act for "unlawful industrial action", including industrial action which the supervisory bodies consider the workers should have the right to call, section 39 provides for a fine or imprisonment up to three months, or both. In this regard, the Committee wishes to recall that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Such sanctions should not be disproportionate to the seriousness of the violation (see 1994 General Survey, paragraphs 177-178).

Articles 5 and 6. Right to establish federations and confederations and to affiliate with international organizations. The Committee notes sections 47 and 63 of the Trade Union and Employers’ Organizations Act respectively which provide that trade unions should ask for the prior consent of the Minister in order to form a federation or to be affiliated to any body outside Botswana. It considers prior consent by the public authorities for the formation of federations or for affiliation to international organizations to be contrary to Articles 5 and 6 and requests the Government to amend its legislation in order to ensure that workers’ organizations may freely establish and join federations and affiliate with international organizations without prior authorization of the Minister and limited only to the organizations’ own constitution and rules.

-           The Committee requests the Government to provide information in its next report on the measures taken or envisaged in respect of the abovementioned points and draws the Government’s attention to the availability of the technical assistance of the Office in this regard.

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