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

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

Article 4 of the Convention. Promotion of collective bargaining. Recognition of the most representative union. In its previous comments, the Committee noted that section 198A(1)(b) of the Labour Code defined a representative trade union as a “registered trade union that represents the majority of the employees in the employ of an employer”, and that section 198A(1)(c) specified that “a majority of employees in the employ of an employer means over 50 per cent of those employees”. It requested the Government to take the necessary measures in the context of the labour law reform to ensure that if no union reached the required majority to be designated as the collective bargaining agent, minority unions would be given the possibility to bargain collectively, jointly or separately, at least on behalf of their own members. The Committee notes that the Government indicates that in the labour law reform, all recognised unions are given bargaining rights and therefore minority unions should also enjoy the right to bargain collectively. While taking due note of these elements, the Committee requests the Government to provide information on the specific measures taken within the framework of the labour law reform to ensure that the rules determining the access of trade unions to collective bargaining comply with the Convention, and to provide copies of any laws or regulations adopted in this regard.

Representativeness requirements for certification of a union as the exclusive bargaining agent. The Committee previously noted that section 198B(2) of the Labour Code provides that the arbitrator may conduct a ballot “if appropriate” in the determination of disputes concerning trade union representativity. It also noted that the drafting instructions for the 2016 consolidation and revision of the Labour Code referred to the introduction of a formal requirement for ballots to be held in determining trade union representativeness, removing the arbitrator’s discretion as to whether a ballot is appropriate. The Committee takes note of the Government’s indication that it has undertaken to put in place regulations upon the enactment of the revised Labour Code to ensure that disputes which require the holding of secret vote to determine which trade union is most representative are in fact disposed of by means of a ballot. It further notes that the Government indicates that a copy of the envisaged regulations will be provided once adopted. The Committee expects that the ongoing labour law reform will be completed shortly and that the revised Labour Code and its accompanying regulations will ensure that a vote by secret ballot is held for the determination of disputes regarding trade union representativity. It requests the Government to provide a copy of the abovementioned texts once adopted. Moreover, the Committee once again requests the Government to take the necessary measures to ensure that the revised Labour Code allows new organizations, or organizations failing to secure a sufficiently large number of votes, to ask for a new election after a reasonable period has elapsed since the previous election.

Collective bargaining in the education sector. The Committee previously noted the Government’s indication that the drafting instructions for the 2016 consolidation and revision of the Labour Code identified that the Education Act should be clarified to state that teachers enjoy collective bargaining rights. It noted that section 64 of the Education Act of 2010 provided that a teacher had a right to form or become a member of any teacher formation, and that a teachers’ formation representing more than 40 per cent of practising teachers could apply for recognition to the Minister. The Committee requested the Government to provide information on the amendment to the Education Act and to ensure that if there is no union that reaches the required threshold to be designated as the collective bargaining agent, minority unions should be given the possibility to bargain collectively, jointly or separately, at least on behalf of their own members. It also requested the Government, in the meantime, to provide information on the application of section 64 of the Education Act in practice. The Committee notes the Government’s indication that there is no amendment of the Education Act of 2010 to date. It further notes that the Government informs that the Progressive Association of Lesotho Teachers has been recognized by the Ministry of Education and Training as the largest trade union in Lesotho, as per section 64 of the Education Act of 2010. The Government indicates, however, that when giving effect to this provision in practice, the minority unions are always included in the negotiations on issues relating to their members. While taking due note of this information, the Committee requests the Government to take, within the context of the labour law reform, the necessary measures to ensure that the right of teachers to bargain collectively is explicitly recognized in the legislation in a manner that, as mentioned in its previous comments, gives full effect to the Convention. The Committee also reiterates its previous requests to the Government to provide information on any collective bargaining agreements reached with teachers in the public and private sectors.

Collective bargaining in practice. The Committee requests the Government to provide information on the number of collective agreements signed and in force in the country and to indicate the sectors concerned as well as the number of workers covered.