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

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

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.