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

The Committee notes the information provided in the Government’s report. It also notes the observations made by the Congress of Lesotho Trade Unions (COLETU) on the application of the Convention, as well as the detailed comments provided by the Government in this regard.

The Committee notes that according to COLETU, civil servants and university lecturers are not permitted to form or join trade unions under the Public Service Act, 1995, sections 16, 30 and 31. COLETU states that over the years it has been unsuccessful in persuading the Government to amend the Act and appeals to the courts of law have been to no avail. COLETU further states that the Government removed the jurisdiction of the labour courts in legal matters regarding public employees and that cases which had been lodged in 1996 are still pending. The Committee asks the Government to indicate the court which now has the legal jurisdiction to proceed on matters related to public employees.

The Committee takes note that the Government dismisses all the allegations of COLETU and states that it acted neither ultra vires nor in contravention of ILO Conventions when it promulgated the Public Services Act, and that its action was confirmed in the High Court judgement which declared the Act constitutional. In this respect, the Government criticizes what it calls the bad faith of COLETU for not having first exhausted domestic remedies before applying for intervention from international organizations. The Committee points out, however, that it has never considered that domestic remedies must be exhausted before a workers’ or an employers’ organization may raise a concern before it of non-application of a ratified Convention. While national courts are clearly the competent bodies for considering the constitutionality of national legislation, the Committee is competent for examining the application in national legislation of ratified Conventions. The Committee trusts that the comments it makes in this respect will be helpful to the considerations given to the matter at national level.

The Committee notes, however, that reaffirming its commitment to the ILO, the Government is currently in the process of reviewing the legislation relating to the public service, in consultation with the social partners, including COLETU. The Committee notes with interest that this process has resulted in proposed amendments to the current legislation, which set out specifically that public officers shall be entitled to freedom of association in accordance with the national Constitution and ILO Conventions Nos. 87 and 98 and that they shall be at liberty to form a public officers association or organization for the purpose of collective bargaining.

The Committee trusts that the amendment will be adopted in the near future so as to ensure trade union rights to public servants; for instance, the right for public servants to join the organization of their own choosing and to join federations or confederations with private sector trade unions in accordance with Articles 2, 5 and 6 of the Convention and that these organizations will be free to draw up their constitutions, elect their officers and organize their administration and activities in full freedom in accordance with Article 3. The Committee requests the Government to transmit a copy of the amendment once adopted and to provide information on its application in practice, in particular as concerns the number of public service organizations registered, the competent institutions for registration and any particular registration requirements.