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Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Botswana (Ratification: 1997)

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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 and 6 June 2023 regarding, on the one hand, issues examined in the present comment, and, on the other hand, allegations of anti-union discrimination in the mining sector, including cases of non-renewal of contracts and dismissal of trade union members. The Committee notes the Government’s indication that: (i) labour inspections were carried out in 33 out of 55 identified companies in the diamond cutting subsector in May and June 2023; and (ii) engagement with stakeholders, including the Botswana Diamonds Workers Union (BDWU), Diamond Hub and Botswana Diamond Association, is scheduled to begin in October 2023. The Committee observes, based on the Labour Inspection Report of the diamond processing companies transmitted by the Government, that (i) there are impediments faced by trade unions regarding recognition by employers since the latter prefer to work with internal Workers’ Committees; and (ii) there were cases both of non-renewal of contracts and of the dismissal of certain trade union members, which the management states is unrelated to their union membership. The Committee takes due note of these elements. Based on the above, the Committee requests the Government to continue to take all the necessary measures to ensure that unions, including unregistered ones, and their members in the mining sector are adequately protected against all acts of anti-union discrimination. The Committee requests the Government to continue to provide information on the action taken and the results achieved in this respect.

Legislative reform. The Committee notes the Government’s indication that the Employment and Labour Relations Bill, 2023 (hereinafter referred to as the Bill), which has the object of replacing the Employment Act, the Trade Disputes Act (hereinafter referred to as the TDA) and the Trade Union and Employer’s Organizations Act, was to be tabled before the Parliament at its November 2023 session. The Committee welcomes: (i) the explicit objective of the Bill to bring the legislation in conformity with the present Convention and with the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No 87); and (ii) the Government’s indication that, with ILO assistance, the drafters of the Bill received an in-depth training on International Labour Standards. The Committee examines below the extent to which the Bill addresses its previous comments on the application of the Convention.

Scope of the Convention. Prison officers. The Committee had previously requested the Government to take the necessary measures to grant members of the prison service their rights guaranteed under the Convention. The Committee notes that section 3 of the Bill continues to exclude prison officers from the scope of trade union rights. It notes the Government’s indication in its report concerning the application of Convention No. 87, 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 2021–22 and the conclusions will guide the way forward. The Committee also 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 that these discussions should resume to achieve progress. In view of the foregoing, the Committee urges the Government to take the necessary measures to initiate consultations on this matter with the parent Ministry and the representatives of the workers concerned, with a view to changing the legislation and ensuring that prison officers enjoy the rights and guarantees set out in the Convention. The Committee requests the Government to continue providing information on any progress in this respect.

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee requested the Government to take the necessary measures to ensure that all union committee members, including those of unregistered trade unions, enjoy an adequate and specific protection against anti-union discrimination. The Committee notes with interest that section 22 of the Bill that protects workers, both prior and during employment, from discrimination against trade union affiliation and trade union activities makes no distinction between registered and non-registered unions.

Article 2. Protection against acts of interference. The Committee previously requested the Government to adopt specific legislative provisions that ensure adequate protection against acts of interference by employers coupled with effective and sufficiently dissuasive sanctions. The Committee observes that although section 82(1) prescribes that trade union independence, defined as the absence of any kind of direct or indirect control or interference from any employer or employers’ organization, is a prerequisite for trade union recognition, as the Bill does not contain provisions that explicitly prohibit acts of interference or sanction such acts. The Committee requests the Government to take the necessary measures in line with its previous request to ensure that the legislation includes provisions that give full effect to Article 2 of the Convention. The Committee requests the Government to provide information in this respect.

Article 4. Promotion of collective bargaining. Trade union recognition. The Committee previously requested the Government to take the necessary legislative measures to ensure that in the absence of a union that represents at least one third of the employees in a bargaining unit, existing unions are given the possibility to bargain collectively, at least on behalf of their own members. The Committee notes that the Bill: (i) still refers to the one third threshold as the first condition for a union to be recognized for collective bargaining purposes at the company level (section 245.1); (ii) provides however that if no union meets the referred threshold, the union with the most members may be recognized for the purpose of collective bargaining (section 245.2); (iii) mentions additional criteria to be taken into account for the recognition of a union for bargaining purposes (including the composition of the workforce and the importance of non-standard forms of employment, section 245.4); and (iv) prescribes that an employer may request the withdrawal of collective bargaining recognition if the union falls below the referred threshold (section 248.1). While welcoming the possibility set by the Bill to recognize unions that would not meet the one third threshold as bargaining agents, the Committee notes that it will only be able to determine to what extent this possibility will effectively contribute to broadening the opportunities for collective bargaining in accordance with Article 4 of the Convention once this provision is implemented. The Committee therefore requests the Government to provide any information in this regard and expects that, if the Bill is adopted as it stands, sections 245.2 and 245.4 of the Bill will be applied taking full account of the obligation established by the Convention to promote collective bargaining.

The Committee also requested the Government to amend section 35(1)(b) of the TDA that permits an employer or employers’ organization to apply to the Commissioner to withdraw the recognition for the purpose of collective bargaining granted to a trade union on the grounds that the trade union refuses to negotiate in good faith. The Committee notes with interest that the Bill does not contain a similar provision.

Compulsory arbitration. The Committee recalls that, with a view to promote free and voluntary collective bargaining, it requested the amendment of section 20(3) of the TDA that allows the Industrial Court to refer a trade dispute to arbitration, including where only one of the parties made an urgent appeal to the Court for determination of the dispute. The Committee notes that, per section 283.1 of the Bill, arbitration in the context of a collective dispute can take place when: (i) both parties agree to refer the dispute to arbitration or the referring party to the Mediation and Arbitration Commission has requested arbitration; (ii) parties to the dispute are engaged in an essential service; and (iii) the Industrial Court has directed the Commission to arbitrate the dispute. The Committee observes that these provisions mandate compulsory arbitration in situations that exceed the scope of what the Committee considers is compatible with the Convention i.e.: (i) in essential services in the strict sense of the term; (ii) in the case of disputes in the public service involving public servants engaged in the administration of the State; (iii) when, after protracted and fruitless negotiations, it becomes obvious that the deadlock will not be broken without some initiative by the authorities; or (iv) in the event of an acute crisis (General Survey of 2012 on fundamental Conventions, paragraph 247). The Committee therefore requests the Government to take the necessary measures to ensure that the future legislation will not allow compulsory arbitration beyond the set of situations described above. The Committee requests the Government to provide information in this respect.

Articles 4 and 6. Collective bargaining in the public sector. The Committee notes the indications of the BFTU and the Government that the Public Service Bargaining Council (PSBC) has not been resuscitated but that the Public Service Act, 2008 was included within the scope of the Labour Law Review Commission. Recalling its on-going dialogue with the Government with a view to ensuring that the material scope of collective bargaining for public sector workers not engaged in the administration of the State is in conformity with the Convention,the Committee requests the Government to: (i) provide further information on the content of any on-going reform that would address the right to bargain collectively in the public sector; and (ii) provide practical examples of the content of collective agreements applicable to civil servants not engaged in the administration of the State.

Collective bargaining in practice. The Committee notes the Government’s indications that there are 69 collective agreements signed and in force in the country, concluded both at the sector level and the company-level across various sectors. The Government indicates that statistics on workers covered by the agreements, although unavailable currently, would be collected hereon. While noting that, according to ILOSTAT, the coverage of collective bargaining in 2020 was 34.5 per cent, the Committee requests the Government to continue to make efforts to collect and provide information on the number of collective agreements signed and in force in the country along with statistics on the sectors and workers covered.

The Committee hopes that the Government will be in a position to soon inform about the adoption of the Bill and that its content will contribute to the full implementation of the Convention. The Committee reminds the Government that it may continue to avail itself of the technical assistance of the Office with respect to all issues raised in the present comments.

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 issues examined in the present comment. It notes that the BFTU, in its observations, also alleges repeated acts of anti-union discrimination, including anti-union dismissals, in the mining sector, as well as violations of the right to collective bargaining in the private sector. The Committee requests the Government to provide its comments in response to these allegations.

Not having received other supplementary information, the Committee reiterates its comments adopted in 2019 and reproduced below.

Legislative issues. The Committee recalls that for many years it has been requesting the Government to take the following legislative measures:

(a) amend section 2 of the Trade Disputes Act (TDA), section 2 of the Trade Union and Employers’ Organizations (TUEO Act), and section 35 of the Prisons Act so as to ensure that prison staff are afforded all the guarantees provided under the Convention;

(b) adopt specific legislative provisions ensuring that all union committee members, including those of unregistered trade unions, enjoy an adequate protection against anti-union discrimination;

(c) adopt specific legislative provisions ensuring adequate protection against acts of interference by employers coupled with effective and sufficiently dissuasive sanctions;

(d) repeal section 35(1)(b) of the TDA, which permits an employer or employers’ organization to apply to the Commissioner to withdraw the recognition granted to a trade union on the grounds that the trade union refuses to negotiate in good faith with the employer;

(e) amend section 20(3) of the TDA (this section read together with section 18(1)(a) and (e) allows the Industrial Court to refer a trade dispute to arbitration, including where only one of the parties made an urgent appeal to the Court for determination of the dispute) so as to ensure that the recourse to compulsory arbitration does not affect the promotion of collective bargaining;

(f) take the necessary legislative measures so as to ensure that if no union reaches the required threshold to be recognized as a bargaining agent, i.e., one third of the employees in a bargaining unit (section 48 of the TUEO Act read with section 32 of the TDA), the existing unions are given the possibility, jointly or separately, to bargain collectively, at least on behalf of their own members; and

(g) take the necessary legislative measures so as to ensure that the limitation imposed in the Public Service Act on the scope of collective bargaining for public sector workers not engaged in the administration of the State will fully comply with the Convention.

The Committee had previously expressed the hope that the abovementioned legislative measures would be taken in the framework of the ongoing labour legislation review process to ensure the full conformity of the abovementioned Acts with the Convention. The Committee notes that the Government indicates that the Committee’s comments and concerns have been considered in the ongoing labour legislation review process which is being conducted with the assistance of the Office. It also notes the Government’s indication that on 8 August 2019, the Parliament passed the TDA (Amendment) Act 2019. The Committee observes, however, that while the said Act refers to issues related to the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), it does not address the questions raised by the Committee in the present comment. The Committee therefore recalls its previous request to the Government and expresses its firm hope that the necessary measures will be taken in the framework of the ongoing labour legislation review process so as to ensure the full conformity of the abovementioned Acts with the Convention. The Committee requests the Government to provide information on the progress made in this respect.

Article 4 of the Convention. Collective bargaining in practice. The Committee recalls that it has previously requested the Government to reply to observations made by the Trainers and Allied Workers Union (TAWU) in 2013 concerning violations of the right to collective bargaining in practice. While noting that the Government has not provided a reply to the said allegations, the Committee observes, from the information provided in the report, that out of the 40 collective agreements concluded between 2017 and 2019, three were negotiated by the TAWU. The Committee further notes that the 40 collective agreements were negotiated in a broad variety of sectors, including mining, retail, education, health, hotel, communication and services. The Committee requests the Government to continue to provide information on the number of collective agreements signed and in force in the country and to indicate the sectors and the number of workers covered.

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.

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

Legislative issues. The Committee recalls that for many years it has been requesting the Government to take the following legislative measures:

(b) adopt specific legislative provisions ensuring that all union committee members, including those of unregistered trade unions, enjoy an adequate protection against anti-union discrimination;

(c) adopt specific legislative provisions ensuring adequate protection against acts of interference by employers coupled with effective and sufficiently dissuasive sanctions;

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.

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

The Committee notes the Government’s comments on the observations made in 2017 by the International Trade Union Confederation (ITUC) concerning alleged cases of anti-union discrimination and obstruction to collective bargaining. However, the Committee notes with regret that the Government provides no reply to the remaining observations made by the Trainers and Allied Workers Union (TAWU) alleging violations of the right to collective bargaining in practice.

The Committee takes note of the initiatives taken in the framework of the labour law review and in particular observes from the Government that the Public Service Act of 2008, the Trade Disputes Act (TDA) of 2016 and the Trade Unions and Employers Organisation Act (TUEO) have to be harmonized during the ongoing labour law review process. The Committee expresses the hope that its comments below will be taken into account in the framework of the review to ensure the full conformity of these Acts with the Convention and that it will be in a position to note progress in the near future. The Committee requests the Government to provide any information on the progress achieved.

Scope of the Convention. Prison officers. On several occasions, the Committee, considering that the prison service cannot be considered to be part of the armed forces or the police for the purposes of exclusion under Article 5 of the Convention, had 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. Noting from the Government that this issue is going to be considered during the ongoing labour law review, the Committee requests the Government to continue providing information on the progress made in this respect.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. On several occasions, the Committee requested the Government to take the necessary measures to ensure that all union committee members, including those of unregistered trade unions, enjoy an adequate protection against anti-union discrimination. The Committee regrets that the Government once again failed to provide any comments on this point and recalls that the fundamental rights accorded by the Convention to members or officers of trade unions, such as protection against acts of anti-union discrimination, cover all workers who wish to establish or join a trade union; therefore such protection should not be dependent on the registered or unregistered status of a trade union, even if the authorities consider registration to be a simple formality. In these circumstances, the Committee reiterates once again its previous request.

Articles 2 and 4. Adequate protection against acts of interference. Promotion of collective bargaining. In its previous comments, the Committee had requested the Government to provide information on the progress made in respect to: (i) the adoption of specific legislative provisions ensuring adequate protection against acts of interference by employers coupled with effective and sufficiently dissuasive sanctions; (ii) the repeal of section 35(1)(b) of the TDA, which permits an employer or employers’ organization to apply to the commissioner to withdraw the recognition granted to a trade union on the grounds that the trade union refuses to negotiate in good faith with the employer; and (iii) the amendment of section 20(3) of the TDA (this section read together with section 18(1)(a) and (e) allows the Industrial Court to refer a trade dispute to arbitration, including where only one of the parties made an urgent appeal to the Court for determination of the dispute) so as to ensure that the recourse to compulsory arbitration does not affect the promotion of collective bargaining. In this regard, the Committee recalls that compulsory arbitration is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), or in essential services in the strict sense of the term or in cases of acute national crisis. Noting the Government’s indication that these matters should be considered during the ongoing labour law review and that the technical assistance has already been sought for this purpose, the Committee expects that the necessary legislative measures will be taken, so as to bring these provisions into line with the Convention.

Threshold of representativity. The Committee had previously noted that, in terms of section 48 of the TUEO Act, as read with section 32 of the TDA, the minimum threshold for a union to be recognized by the employer for collective bargaining purposes is set at one third of the relevant workforce. The Committee had recalled that the determination of the threshold of representativity to designate an exclusive agent for the purpose of negotiating collective agreements which are destined to be applied to all workers in a sector or establishment is compatible with the Convention, in so far as the required conditions do not constitute an obstacle to the promotion of free and voluntary collective bargaining in practice. Noting the Government’s indication that these matters should be considered during the ongoing labour law review, the Committee expects that the above-mentioned provisions will be amended to ensure that if no union reaches the required threshold to be recognized as a bargaining agent, unions should be given the possibility to negotiate, jointly or separately, at least on behalf of their own members.

Articles 4 and 6. Collective bargaining in the public sector. In its previous comments, the Committee requested the Government to specify which provisions of the Public Service Regulations, 2011, are not open for negotiation and invited the Government to reconsider the limitation imposed on the scope of collective bargaining for public sector workers not engaged in the administration of the State. The Committee notes from the Government that the provisions of the Public Service Regulations constitute minimal legislative protective clauses on the basis of which the parties are able to negotiate better and/or additional benefits, and that they should be read with the TUEO which also applies to the public sector. In addition, the Committee notes from the Government that the amendment of the Public Service Act, 2008, though it was at an advanced stage and ready for tabling before the Parliament, has been included in the labour law review mechanism. While taking due note of the Government’s statement, the Committee expects that the ongoing labour review process will ensure that the provisions defining the scope of collective bargaining for public sector workers not engaged in the administration of the State will fully comply with the Convention.

Article 4. 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, indicating the sectors and the number of workers covered.

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.

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

The Committee notes the Government’s comments on the observations made in 2016 by Education International (EI) and the Trainers and Allied Workers Union (TAWU). The Committee also notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2017 concerning alleged cases of anti-union discrimination and obstruction to collective bargaining. The Committee requests the Government to provide its comments on these observations, as well as on the pending observations made by the Botswana Federation of Trade Unions (BFTU) in 2016, the ITUC in 2013 and 2014 and by the TAWU in 2013, alleging violations of the right to collective bargaining in practice.

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments initially made in 2016.

Scope of the Convention. The Committee had previously requested the Government to amend section 2 of the Trade Disputes Act (TDA) and section 2 of the Trade Union and Employers’ Organisations Act (TUEO Act), which exclude employees of the prison service from their scope of application, as well as section 35 of the Prison Act, which deprives members of the prison service from the right to unionize under the threat of being dismissed. 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 a separate legislation – the Prison Act, the Police Act and the Botswana Defence Force Act – and the Prison Act does not appear to provide members of the prison service 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 5 of the Convention. 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 1 of the Convention. Adequate protection against acts of anti-union discrimination. The Committee had previously examined the ITUC concern that if a union was not registered, its committee members were not protected against anti-union discrimination, and had recalled the importance of legislation prohibiting and specifically sanctioning all acts of anti-union discrimination as set out in Article 1 of the Convention. In its previous comments, the Committee requested the Government to take the necessary measures to ensure that all union committee members, including those of unregistered trade unions, enjoy an adequate protection against anti-union discrimination. The Committee regrets that the Government failed to provide any comments on this point and it underlines that the fundamental rights accorded by the Convention to members or officers of trade unions, such as protection against acts of anti-union discrimination, cover all workers wishing to establish or join a trade union; therefore, such protection should not be dependent on the registered or unregistered status of a trade union, even if the authorities consider registration to be a simple formality. In these circumstances, the Committee reiterates its previous request.

Articles 2 and 4. Adequate protection against acts of interference; promotion of collective bargaining. In its previous comments, the Committee had requested the Government to provide information on the progress made in respect to: (i) the adoption of specific legislative provisions ensuring adequate protection against acts of interference by employers coupled with effective and sufficiently dissuasive sanctions; (ii) the repeal of section 35(1)(b) of the TDA, which permits an employer or employers’ organization to apply to the commissioner to withdraw the recognition granted to a trade union on the grounds that the trade union refuses to negotiate in good faith with the employer; and (iii) the amendment of section 20(3) of the TDA (this section read together with section 18(1)(a) and (e) allows the Industrial Court to refer a trade dispute to arbitration, including where only one of the parties made an urgent appeal to the Court for determination of the dispute) so as to ensure that the recourse to compulsory arbitration does not affect the promotion of collective bargaining. In this regard, the Committee recalls that compulsory arbitration is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), or in essential services in the strict sense of the term or in cases of acute national crises. The Committee further observes that a draft TDA Bill (Bill No. 21 of 2015) is in the process of being adopted but regrets that the Committee’s comments have not been reflected in the draft Bill and that the Government fails to provide any information on this point. The Committee, therefore, reiterates its request to the Government and trusts that it will be able to observe progress in this regard in the near future. The Committee encourages the Government to avail itself of the technical assistance of the Office, if it so wishes.

The Committee had previously noted that, in terms of section 48 of the TUEO Act, as read with section 32 of the TDA, the minimum threshold for a union to be recognized by the employer for collective bargaining purposes is set at one third of the relevant workforce. It had therefore requested the Government to ensure that where no union represented one third of the employees in a bargaining unit, collective bargaining rights would be granted to all unions in the unit, at least on behalf of their own members. The Committee observes, however, that section 35 of the TDA Bill does not implement these changes but merely reproduces the text of section 32 of the TDA in this regard. Additionally, the Committee notes that section 37(5) of the draft TDA Bill also provides a one third minimum threshold requirement for union recognition at the industry level. The Committee recalls that the determination of the threshold of representativity to designate an exclusive agent for the purpose of negotiating collective agreements which are destined to be applied to all workers in a sector or establishment is compatible with the Convention in so far as the required conditions do not constitute an obstacle to the promotion of free and voluntary collective bargaining in practice. In this regard, the Committee considers that if no union in a specific negotiating unit meets the required threshold of representativity to be able to negotiate on behalf of all workers, minority trade unions should be able to negotiate, jointly or separately, at least on behalf of their own members. Regretting that no information has been provided in this respect, the Committee requests the Government to take the necessary measures to ensure that if no union reaches the required threshold to be recognized as a bargaining agent, unions should be given the possibility to negotiate, jointly or separately, at least on behalf of their own members.

Collective bargaining in the public sector. In its previous comments, the Committee requested the Government to clarify whether the provisions of the Public Service Regulations, 2011 (Statutory Instrument No. 50), providing for general conditions of service in the public sector (hours of work, shift work, weekly rest periods, paid public holiday, overtime and annual paid leave), constituted fixed conditions of service or rather minimal legislative protection clauses on the basis of which the parties are able to negotiate special modalities and additional benefits. The Committee notes the Government’s indication that some provisions of the Instrument constitute fixed conditions of service while for others the parties may determine special modalities and additional benefits, as long as they are in conformity with the Public Service Act, 2008. However, the BFTU indicates that it is unclear from the Government’s report which provisions are fixed and which are not. Recalling that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are generally incompatible with the Convention and that tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method of resolving these difficulties, the Committee requests the Government to specify which provisions of the Public Service Regulations are not open for negotiation and invites the Government to reconsider the limitation imposed on the scope of collective bargaining for public sector workers not engaged in the administration of the State.

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, and that the TUEO Act is also in the process of being amended. The Committee trusts that the Government will ensure full conformity of both the Public Service Bill, 2016, and the amended TUEO Act with the Convention. In this regard, the Committee encourages the Government to avail itself of the technical assistance of the Office, if it so wishes.

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

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

The Committee takes note of the observations from: the International Trade Union Confederation (ITUC) received on 1 September 2016, reiterating its previous observations and referring to matters addressed by the Committee; the Botswana Federation of Trade Unions (BFTU) received on 13 September 2016, alleging that in relation to collective bargaining, the Government is adopting repressive measures instead of facilitating and promoting adherence to the Convention; and Education International (EI) and the Trainers and Allied Workers Union (TAWU) received on 12 October 2016, denouncing: (i) a stringent requirement to be recognized as a collective bargaining agent (one third of the employees of the employer); (ii) exclusion of profession-based trade unions from collective bargaining at the national level; and (iii) persistent persecution of trade union leaders for union activities. 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 and by the ITUC in 2013 and 2014, alleging violations of the right to collective bargaining in practice.

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 and the comments made by the International Trade Union Confederation (ITUC) in a communication dated 30 August 2013, which refer to the legislative matters examined by the Committee and allege violations of the right to collective bargaining in practice. The Committee requests the Government to provide its observations thereon.

Scope of the Convention. The Committee had previously requested the Government to amend section 2 of the Trade Disputes Act, section 2 of the Trade Union and Employers’ Organisations (Amendment) Act (TUEO Act) and section 35 of the Prison Act that deprive prison staff from the right to unionize under the threat of being dismissed. The Committee notes that the Government reiterates in its report that this matter is of national interest and thus wider consultations have to be undertaken with the relevant government departments, social partners and other stakeholders as they hold strongly that employees in the prison services are deemed to be performing a security function. Recalling once again that the functions exercised by prison staff do not justify their exclusion from the rights and guarantees set out in the Convention, the Committee reiterates its previous request. It asks the Government to provide information on any development in this regard.

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee had requested the Government to take the necessary measures to ensure that all union committee members, including those of unregistered trade unions, enjoy an adequate and specific protection against anti-union discrimination. The Committee notes the Government’s request for clarification as to what constitutes an unregistered trade union and recalls in this respect that “registration” is a formality that can be used by national authorities to give to a trade union a legal existence which can confer significant advantages such as special immunities, tax exemptions or the right to be recognized as a bargaining agent. The Committee underlines that the fundamental rights accorded by the Convention to members or officers of trade unions, such as protection against acts of anti-union discrimination, covers all workers wishing to establish or join a trade union; therefore, such protection should not be dependent on the registered or unregistered status of a trade union, even if the authorities consider registration to be a simple formality. In these circumstances, the Committee reiterates its previous request.

Articles 2 and 4. Protection against acts of interference; promotion of collective bargaining. In its previous comments, the Committee had requested the Government to provide information on the progress made in respect to: (i) the adoption of specific legislative provisions ensuring adequate protection against acts of interference by employers coupled with effective and sufficiently dissuasive sanctions; (ii) the repeal of section 35(1)(b) of the Trade Disputes Act, which permits an employer or employers’ organization to apply to the commissioner to withdraw the recognition granted to a trade union on the grounds that the trade union refuses to negotiate in good faith with the employer; and (iii) the amendment of section 20(3) of the Trade Disputes Act so as to ensure that compulsory arbitration of disputes of interest is permissible only in essential services in the strict sense of the term or in respect of public servants engaged in the administration of the State. The Committee notes that the Government reiterates that these issues will be considered in the framework of an ongoing review of the Trade Disputes Act. The Government recognizes the need to have an independent dispute resolution mechanism and indicates that this project is part of the National Development Plan (2009–16). The Committee hopes that the Government’s next report will contain information on the progress made in relation to the abovementioned requested amendments and encourages the Government to avail itself of the technical assistance of the Office if it so wishes.

The Committee had previously noted that, in terms of section 48 of the TUEO Act as read with section 32 of the Trade Disputes Act, the minimum threshold for a union to be recognized by the employer is set at one third of the relevant workforce. It had therefore requested the Government to ensure that where no union represented one third of the employees in a bargaining unit, collective bargaining rights were granted to all unions in the unit, at least on behalf of their own members. Noting that no information has been provided by the Government on the measures taken or envisaged in this respect, the Committee reiterates its request.

The Committee notes the Public Service Regulations, 2011 (Statutory Instrument No. 50), providing for general conditions of service in the public service (hours of work, shift work, weekly rest periods, paid public holidays, overtime and annual paid leave). The Committee requests the Government to clarify whether the provisions of this Instrument constitute fixed conditions of service or rather minimal legislative protection clauses on the basis of which the parties are able to negotiate special modalities and additional benefits.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 31 July 2012 concerning issues already raised by the Committee.

The Committee further notes the information provided by the Government in response to the comments made by Education International (EI) in a communication dated 19 September 2011 concerning the Public Service Act, the status of the Bargaining Council and the unilateral determination and changes of the terms and conditions of employment in the public sector (in matters that should be left to the parties), through the issuance of Statutory Instrument No. 50 of 2011. The Committee notes in particular that the Government states that: (1) the Public Service Act implementation was initiated in May 2010 and some other issues need to be completed; (2) the Bargaining Council, established and registered in August 2011, is now operational; and (3) the issue of the Statutory Instrument No. 50 of 2011 was heard before the courts that held that the Public Service Act empowers the President to make regulations for conditions of service for public service employee, and therefore the President acted lawfully in promulgating the said statutory instrument. The Committee notes that the Statutory Instrument No. 50 of 2011 has not been received and requests the Government to supply a copy.

It recalls that while Article 6 of the Convention allows public servants engaged in the administration of the State to be excluded from its scope, other categories should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment, including wages. In addition, in the case of negotiations in the public or semi-public sector, intervention by the authorities is compatible with the Convention in so far as it leaves a significant role to collective bargaining. Measures which unilaterally fix conditions of employment should be of an exceptional nature, be limited in time and include safeguards for the workers who are the most affected (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 262 and 265). The Committee once again requests the Government to ensure that the Statutory Instrument No. 50 of 2011 is in conformity with this principle. The Committee requests the Government to examine this issue in full consultation with the most representative organizations and to provide information on the results of this dialogue.

Legislative issues. The Committee recalls that for many years it had been commenting on several legislative dispositions contrary to the Convention.

Scope of the Convention. Application of the Convention to prison staff. The Committee had previously requested the Government to amend section 2 of the Trade Disputes Act, section 2 of the Trade Union and Employers’ Organizations (Amendment) Act (TUEO), and section 35 of the Prison Act, so as to ensure that prison staff are afforded all the guarantees provided under the Convention. The Committee had noted that in its previous report the Government had no intention to grant prison staff 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 their terms and conditions of employment. However, the Committee noted 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 under section 35(4), any prison officer who becomes a member of a trade union or anybody affiliated to a trade union shall be liable to be dismissed from the service. The Committee notes that the Government indicates in its report that this matter is of national interest and thus wider consultations have to be undertaken with relevant Government departments, social partners and other stakeholders. The Committee recalls that all public service workers other than those engaged in the administration of the State should enjoy protection against acts of anti-union discrimination and interference and their union should enjoy bargaining rights. The Committee requests the Government to provide information on the abovementioned consultations and hopes that the Trade Disputes Act, the TUEO Act and the Prison Act will soon be amended so as to ensure prison staff the rights enshrined in the Convention.

Article 1 of the Convention. The Committee had further noted the Government’s statement that consultation was ongoing concerning the ITUC’s previous observation according to which if a trade union is not registered, union committee members are not protected against anti-union discrimination (e.g. article 23 of the Employment Act). The Committee notes that the Government indicates that: (1) section 23 of the Employment Act has been amended to strengthen it by including more grounds that restrict termination of employment which include gender, health status, sexual orientation and disability; and (2) the Act was further amended by inserting a new paragraph (e) to provide a general provision on non-discrimination during termination of employment. The Committee recalls the importance that the legislation prohibits and sanctions specifically all acts of anti-union discrimination as set out in Article 1 of the Convention. The Committee once again requests the Government to take the necessary measures to ensure that all union committee members, including those of unregistered trade unions, enjoy an adequate and specific protection against anti-union discrimination.

Articles 2 and 4. Protection against acts of interference and promotion of collective bargaining. In its previous comments, the Committee had requested the Government to provide information on the progress made with respect to the following legislative changes:

– the adoption of specific legislative provisions ensuring adequate protection against acts of interference by employers or employers’ organizations in the establishment, functioning or administration of trade unions, coupled with effective and sufficiently dissuasive sanctions. The Committee notes that the Government indicates in its report that this issue will be considered in future amendments.
– the repeal of section 35(1)(b) of the Trade Disputes Act, which permits an employer or employers’ organization to apply to the Commissioner to withdraw the recognition granted to a trade union on the grounds that the trade union refuses to negotiate in good faith with the employer. The Committee notes that the Government indicates that this issue will be considered in future amendments.
– the amendment of section 20(3) of the Trade Disputes Act, so as to ensure that compulsory arbitration of disputes of interest is permissible only in the following instances: (1) where the party requesting arbitration is a trade union seeking a first collective agreement; (2) disputes concerning public servants directly engaged in the administration of the State; and (3) disputes arising in essential services. In this respect, the Committee notes the Government’s indication that it has included in the National Development Plan 10 a project to establish an independent dispute resolution system. The Committee notes that the Government indicates that: (1) work is ongoing to review the Trade Disputes Act; (2) it recognizes the need to have an independent dispute resolution mechanism that was planned for in the National Development Plan 10 which runs from 2009 to 2016; and (3) due to the economic downturn, the project was shelved.

The Committee requests the Government to continue to provide information on any progress made in relation to the abovementioned requested amendments and it encourages the Government to avail itself of the technical assistance of the Office if it so wishes.

ITUC’s comments. Section 35(1)(b) of the Trade Disputes Act. The Committee noted the ITUC’s comments concerning the necessity for a trade union to represent a significant proportion of the workforce in order to bargain collectively. The Committee noted the Government’s indication that in terms of section 48 of the TUEO Act as read with section 32 of the Trade Dispute Act, the minimum threshold to be recognized by the employer is set at one third of the workforce of any organization. The Committee notes that the Government indicates that: (1) the law authorizes the unions to join forces with others to form one third of the workforce in order to bargain collectively; and (2) the Committee’s comments have been noted and will be considered. The Committee recalls that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should be granted to all unions in this unit, at least on behalf of their own members. The Committee requests once again the Government to take the necessary measures so as to ensure that where no union represents one third of the employees in a bargaining unit, collective bargaining rights are granted to all unions in the unit, at least on behalf of their own members.

Capacity building and implementation gap. The Committee notes the “induction and negotiation skills workshop (of tripartite nature) for the Public Service Bargaining Council (PSBC)” held in August 2012 aimed at: (1) fully sensitize PSBC members on their role and function in the Council; (2) enable them to appreciate the application of collective bargaining in the context of public service; and (3) enhance their negotiation skills. The Committee also notes, from the report of an ILO mission held in the country in September 2012, that it was agreed during discussions between the Botswana delegation and the ILO during the International Labour Conference in June 2012, that: (1) efforts would be geared towards improving freedom of association standards; and (2) the activities in this regard are planned to take place at the end of January 2013, pending confirmation by the Ministry of Labour. The Recommendations adopted during the mission refer to the importance to start addressing the comments of the Committee with, as the main focus, the legal revision process, as a number of comments point out a gap in the national legislation. The Committee requests the Government to continue to provide information concerning the possible legal revision process abovementioned and, in particular, in relation to the points raised in the present observation.

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

The Committee notes the comments made by the International Trade Unions Confederation (ITUC) in a communication dated 4 August 2011. The Committee also notes the comments made by Education International (EI) in a communication dated 19 September 2011 concerning the unilateral determination and changes of the terms and conditions of employment in the public sector (in matters that should be left to the parties), through the issuance of Statutory Instrument No. 50 of 2011 which revoked, without consultations with the representative organizations, the new Public Service Act and Status of the Bargaining Council and the Public Service Bargaining Council. The Committee recalls that while Article 6 of the Convention allows public servants engaged in the administration of the State to be excluded from its scope, other categories should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment, including wages. In addition, in the case of negotiations in the public or semi-public sector, intervention by the authorities is compatible with the Convention in so far as it leaves a significant role to collective bargaining. Measures which unilaterally fix conditions of employment should be of an exceptional nature, be limited in time and include safeguards for the workers who are the most affected (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 262 and 265). The Committee requests the Government to amend Statutory Instrument No. 50 of 2011 in accordance with this principle and in full consultation with the most representative organizations and to provide information on the measures taken in this regard.

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

Scope of the Convention. Application of the Convention to prison staff. The Committee had previously requested the Government to amend section 2 of the Trade Disputes Act, section 2 of the Trade Union and Employers’ Organizations (Amendment) Act 2003, (TUEO), and section 35 of the Prison Act, so as to ensure that prison staff are afforded all the guarantees provided under the Convention. The Committee had noted from the Government’s report that it had no intention to grant prison staff the right to unionize since their staff association, as provided for in the Prison Act, supposedly caters adequately for the negotiations on their welfare, terms and conditions of employment. However, the Committee noted 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 under section 35(4), any prison officer who becomes a member of a trade union or anybody affiliated to a trade union shall be liable to be dismissed from the service. The Committee recalls that all public service workers other than those engaged in the administration of the State should enjoy protection against acts of anti-union discrimination and interference and their union should enjoy bargaining rights. Therefore, the Committee once again requests the Government to amend the Trade Disputes Act, the TUEO Act and the Prison Act to ensure to prison staff the rights enshrined in the Convention.

Article 1 of the Convention. In its previous comments, the Committee had further noted the Government’s statement that consultation was ongoing concerning the ITUC’s previous observation according to which if a trade union is not registered, union committee members are not protected against anti-union discrimination (e.g. article 23 of the Employment Act). Recalling that the Government is responsible for preventing all acts of anti-union discrimination in order to give effect to Article 1 of the Convention, the Committee once again requests the Government to take the necessary measures to ensure that all union committee members, including those of unregistered trade unions, enjoy an adequate protection against anti-union discrimination.

– the adoption of specific legislative provisions ensuring adequate protection against acts of interference by employers or employers’ organizations in the establishment, functioning or administration of trade unions, coupled with effective and sufficiently dissuasive sanctions;
– the repeal of section 35(1)(b) of the Trade Disputes Act, which permits an employer or employers’ organization to apply to the Commissioner to withdraw the recognition granted to a trade union on the grounds that the trade union refuses to negotiate in good faith with the employer; and
– the amendment of section 20(3) of the Trade Disputes Act, so as to ensure that compulsory arbitration of disputes of interest is permissible only in the following instances: (1) where the party requesting arbitration is a trade union seeking a first collective agreement; (2) disputes concerning public servants directly engaged in the administration of the State; and (3) disputes arising in essential services. In this respect, the Committee notes the Government’s indication that it has included in the National Development Plan 10 a project to establish an independent dispute resolution system.

The Committee noted that consultations with the social partners on all labour legislation were still ongoing. The Committee requests the Government to indicate, in its next report, any progress made on the abovementioned provisions and it hopes that the Government will make every effort to take the necessary action in the very near future. The Committee encourages the Government to avail itself of the technical assistance of the Office if it so wishes.

ITUC’s comments. The Committee noted the ITUC’s comments concerning the necessity for a trade union to represent a significant proportion of the workforce in order to bargain collectively. sThe Committee noted the Government’s indication that in terms of section 48 of the TUEO Act as read with section 32 of the Trade Dispute Act, the minimum threshold to be recognized by the employer is set at one third of the workforce of any organization. The Committee recalls that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should be granted to all unions in this unit, at least on behalf of their own members. The Committee requests the Government to provide in its next report information on the measures taken or contemplated so as to ensure that where no union represents one third of the employees in a bargaining unit, collective bargaining rights are granted to all unions in the unit, at least on behalf of their own members.

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

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, and the Government’s reply.

Scope of the Convention. Application of the Convention to prison staff. The Committee had previously requested the Government to amend section 2 of the Trade Disputes Act, section 2 of the Trade Union and Employers’ Organizations (Amendment) Act (TUEO), and section 35 of the Prison Act, so as to ensure that prison staff are afforded all the guarantees provided under the Convention. The Committee notes from the Government’s report that it has no intention to grant prison staff the right to unionize since their staff association, as provided for in the Prison Act, supposedly caters adequately for the negotiations on their welfare, 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 under section 35(4), any prison officer who becomes a member of a trade union or any body affiliated to a trade union shall be liable to be dismissed from the service. The Committee recalls that all public service workers other than those engaged in the administration of the State should enjoy protection against acts of anti-union discrimination and interference and their union should enjoy bargaining rights. Therefore, the Committee once again requests the Government to amend the Trade Disputes Act, the TUEO Act and the Prison Act to ensure to prison staff the rights enshrined in the Convention.

Article 1 of the Convention. In its previous comments, the Committee had further noted the Government’s statement that consultation was ongoing concerning the ITUC’s previous observation according to which if a trade union is not registered, union committee members are not protected against anti-union discrimination (e.g. article 23 of the Employment Act). The Government does not refer to this issue in its report. In these circumstances, recalling that the Government is responsible for preventing all acts of anti-union discrimination in order to give effect to Article 1 of the Convention, the Committee once again requests the Government to take the necessary measures to ensure that all union committee members, including those of unregistered trade unions, enjoy an adequate protection against anti-union discrimination.

Articles 2 and 4. Protection against acts of interference and promotion of collective bargaining. In its previous comments, the Committee had requested the Government to provide information on the progress made with respect to the following legislative changes:

– the adoption of specific legislative provisions ensuring adequate protection against acts of interference by employers or employers’ organizations in the establishment, functioning or administration of trade unions, coupled with effective and sufficiently dissuasive sanctions;

– the repeal of section 35(1)(b) of the Trade Disputes Act, which permits an employer or employers’ organization to apply to the Commissioner to withdraw the recognition granted to a trade union on the grounds that the trade union refuses to negotiate in good faith with the employer; and

– the amendment of section 20(3) of the Trade Disputes Act, so as to ensure that compulsory arbitration of disputes of interest is permissible only in the following instances: (1) where the party requesting arbitration is a trade union seeking a first collective agreement; (2) disputes concerning public servants directly engaged in the administration of the State; and (3) disputes arising in essential services. In this respect, the Committee notes the Government’s indication that it has included in the National Development Plan 10 a project to establish an independent dispute resolution system.

The Committee notes from the Government’s report that consultations with the social partners on all labour legislation are still ongoing. The Committee requests the Government to indicate, in its next report, any progress made on the abovementioned provisions and it hopes that the Government will make every effort to take the necessary action in the very near future. The Committee encourages the Government to avail itself of the technical assistance of the Office if it so wishes.

ITUC’s comments. The Committee notes the ITUC’s comments concerning the necessity for a trade union to represent a significant proportion of the workforce in order to bargain collectively. The Committee notes the Government indication that in terms of section 48 of the TUEO Act as read with section 32 of the Trade Dispute Act, the minimum threshold to be recognized by the employer is set at one third of the workforce of any organization. The Committee recalls that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should be granted to all unions in this unit, at least on behalf of their own members. The Committee requests the Government to provide in its next report information on the measures taken or contemplated so as to ensure that where no union represents one third of the employees in a bargaining unit, collective bargaining rights are granted to all unions in the unit, at least on behalf of their own members.

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

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 26 August 2009. The Committee requests the Government to provide its observations thereon.

Scope of the Convention. The Committee had previously requested the Government to amend section 2 of the Trade Disputes Act, section 2 of the Trade Union and Employers’ Organizations (Amendment) Act, and section 35 of the Prison Act so as to ensure that prison staff are afforded all the guarantees provided under the Convention. The Committee notes the Government’s indication that consultations with the social partners with regard to the said legislative amendments have not been concluded. Recalling that consultations with the social partners with regard to legislative amendments had commenced two years ago, the Committee expresses the hope that the Government will be in a position, in the near future, to report progress on these legislative amendments to ensure to prison staff the rights enshrined in the Convention. It requests the Government to provide information on developments in this regard.

Article 1 of the Convention. The Committee further notes the Government’s statement that consultation is still ongoing concerning the ITUC’s previous observation according to which if a trade union is not registered, union committee members are not protected against anti-union discrimination. In this regard the Committee, recalling that the Government is responsible for preventing all acts of anti-union discrimination in order to give effect to Article 1 of the Convention, requests the Government to take the necessary measures to ensure that all union committee members, including those of unregistered trade unions, enjoy protection against anti-union discrimination.

Articles 2 and 4. The Committee once again requests the Government to provide information on the progress made with respect to the legislative changes requested in its previous comment, which it repeats as follows:

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

The Committee notes that the Government’s report has not been received. It further notes the comments submitted by the International Trade Union Confederation (ITUC) on 29 August 2008, which mainly refer to legislative issues raised in its previous observation. The Committee asks the Government to provide full information on the progress made with respect to the legislative changes requested in its previous comment, which it repeats as follows:

– the amendment of section 2 of the Trade Disputes Act, section 2 of the Trade Union and Employers’ Organizations (Amendment) Act, and section 35 of the Prisons Act so as to ensure that prison staff are afforded all the guarantees provided under the Convention;

Finally, the Committee requests the Government to provide its observations with respect to the ITUC’s comments, according to which if a trade union is not registered, union committee members are not protected against anti-union discrimination.

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

The Committee notes the Government’s report and the comments submitted by the International Trade Union Confederation (ITUC), which refer mainly to legislative issues raised in its previous observation. The Committee requests the Government to provide its observations on the ITUC’s comments.

The Committee recalls that it had previously requested the Government:

– to amend section 2 of the Trade Disputes Act, section 2 of the Trade Union and Employers’ Organizations (Amendment) Act, and section 35 of the Prisons Act so as to ensure that prison staff are afforded all the guarantees provided under the Convention;

– to amend its legislation by adopting specific provisions ensuring adequate protection against acts of interference by employers or employers’ organizations in the establishment, functioning or administration of trade unions, coupled with effective and sufficiently dissuasive sanctions;

– to repeal section 35(1)(b), of the Trade Disputes Act, which permits an employer or employers’ organization to apply to the Commissioner to withdraw the recognition granted to a trade union on the grounds that the trade union refuses to negotiate in good faith with the employer.

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 the progress made with respect to these previously raised points and expresses the firm hope that next year it would be in a position to note substantive progress.

Finally, the Committee had noted that section 18(1)(e) of the Trade Disputes Act empowers the Industrial Court to direct the Commissioner to refer disputes before it to arbitration; section 20(3) provides on the other hand that a party to a trade dispute may make an urgent application to the Industrial Court for the determination of the dispute in question. In this respect, the Committee notes the Government’s indication that the Industrial Court may refer disputes of interest to arbitration, including where one of the parties to a dispute has made an urgent application to the Industrial Court. Further noting the Government’s statement that the intention of the law is to have disputes of interest resolved through arbitration, the Committee recalls that, as regards arbitration imposed by the authorities at the request of one party, it considers that it is generally contrary to the principle of the voluntary negotiation of collective agreements established in Convention No. 98, and thus the autonomy of the bargaining partners. An exception might however be made in the case of provisions which, for instance, allow workers’ organizations to initiate such a procedure on their own, for the conclusion of a first collective agreement. As experience shows that first collective agreements are often one of the most difficult steps in establishing a sound bargaining relationship, these types of provisions may be said to be in the spirit of machinery and procedures which facilitate collective bargaining (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 257). The Committee recalls, moreover, that recourse to compulsory arbitration is also legitimate for disputes arising in the public service and in essential services in the strict sense of the term. In these circumstances, the Committee requests the Government to amend section 20 of the Trade Disputes Act in accordance with the principles noted above and to keep it informed of the progress made in this regard.

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

The Committee notes the Government’s report and the attached copies of the Trade Union Disputes Act (2004) and the Trade Unions and Employers’ Organizations (Amendment) Act, 2003.

The Committee notes the comments of the International Confederation of Free Trade Unions (ICFTU), dated 10 August 2006, which mainly concern legislative issues raised in its previous observation. The ICFTU also underlines several problems regarding the application of the Convention, including anti-union dismissals in 2005, the imposition of compulsory arbitration and the harassment of trade union leaders. The Committee requests the Government to send its observations thereon.

Previously, the Committee had requested the Government to undertake amendments to its laws so as to bring them into conformity with the requirements of the Convention. The Government states in this regard that the Committee’s comments were noted, and that consultations with the relevant authorities are ongoing. The Committee notes this information and expresses the hope that the Government would, in its next report, be able to indicate the progress made with respect to the following issues raised by the Committee in its previous comments.

Articles 1, 2 and 4 of the Convention. Trade union rights of officers of the prison services. The Committee notes that the Government amended the Trade Union Disputes Act and the Trade Unions and Employers’ Organizations (Amendment) Act in order to include in their scope public officers other than the armed forces, the police and the prison services. The Committee recalls that the guarantees provided by the Convention apply to prison staff. The Committee once again requests the Government to amend its legislation (including section 35 of the Prisons Act) in order to bring it in full conformity with the Convention and to keep it informed of measures taken or envisaged in this respect.

Article 2. Acts of interference. The Committee had noted that the legislation did not contain specific provisions for the protection of workers’ organizations against acts of interference by employers and their organizations and requested the Government to amend its legislation by adopting specific provisions ensuring adequate protection of workers’ organizations against acts of interference by employers or employers’ organizations in the establishment, functioning or administration of trade unions, coupled with effective and sufficiently dissuasive sanctions. The Committee again requests the Government to keep it informed of measures taken or envisaged to afford legislative protection against acts of interference.

Article 4 of the Convention. The Committee had noted that section 18(1)(a) of the Trade Union Disputes Act provides that the Industrial Court shall have jurisdiction to hear and determine all trade disputes except for disputes of interest. However, section 18(1)(e) provides that the Industrial Court shall have jurisdiction to direct the Commissioner to refer a dispute that is before the court, to arbitration while section 20(3) provides that a party to a labour dispute may make an urgent application to the Industrial Court for the determination of the dispute in question (without excluding disputes of interest). The Committee requests the Government to specify whether the Industrial Court has the power to direct the Commissioner to refer a dispute of interest to compulsory arbitration (for instance, in cases where one of the parties to the dispute has made an urgent application to this effect to the Industrial Court).

The Committee had noted that, according to section 35(1)(b), an employer or employers’ organization may apply to the Commissioner to withdraw the recognition granted to a trade union on the grounds that the trade union refuses to negotiate in good faith with the employer. The Committee considers that while the question as to whether or not one party adopts an amenable or uncompromising attitude towards the other party is a matter for negotiation between the parties, both employers and trade unions should bargain in good faith making every effort to reach an agreement. The Committee considers that the severity of this sanction could have an intimidating effect and jeopardize the free and voluntary nature of collective bargaining. The Committee requests the Government to take all necessary measures to repeal this provision.

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

Article 4 of the Convention. 1. The Committee notes that section 18(1)(a) of the Trade Disputes Act provides that the Industrial Court shall have jurisdiction to hear and determine all trade disputes except for disputes of interest. However, section 18(1)(e) provides that the Industrial Court shall have jurisdiction to direct the Commissioner to refer a dispute that is before the Court, to arbitration while section 20(3) provides that a party to a trade dispute may make an urgent application to the Industrial Court for the determination of the dispute in question (without excluding disputes of interest). The Committee requests the Government to specify whether the Industrial Court has the power to direct the Commissioner to refer a dispute of interest to compulsory arbitration (for instance, in case where one of the parties to the dispute has made an urgent application to this effect to the Industrial Court).

2. The Committee notes that according to section 35(1)(b), an employer or employers’ organization may apply to the Commissioner to withdraw the recognition granted to a trade union on the grounds that the trade union refuses to negotiate in good faith with the employer. The Committee considers that while the question as to whether or not one party adopts an amenable or uncompromising attitude towards the other party is a matter for negotiation between the parties, both employers and trade unions should bargain in good faith making every effort to reach an agreement. The Committee considers that the severity of this sanction could have an intimidating effect and jeopardize the free and voluntary nature of collective bargaining. The Committee requests the Government to take all necessary measures to repeal this provision.

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

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

The Committee further notes the comments submitted by the International Confederation of Free Trade Unions (ICFTU) in a communication of 31 August 2005 and requests the Government to communicate its observations on these comments in its next report.

Articles 1, 2 and 4 of the Convention. The Committee notes that the Government amended the Trade Disputes Act and the Trade Unions and Employers’ Organization Act in order to include in their scope public officers other than the armed forces, the police and the prison services. The Committee recalls that the guarantees provided by the Convention apply to prison staff. The Committee requests again the Government to amend its legislation in order to bring it in full conformity with the Convention and to keep it informed of measures taken or envisaged in this respect.

Article 2. The Committee had noted that the legislation did not contain specific provisions for the protection of workers’ organizations against acts of interference by employers and their organizations and requested the Government to amend its legislation by adopting specific provisions ensuring adequate protection of workers’ organizations against acts of interference by employers or employers’ organizations in the establishment, functioning or administration of trade unions, coupled with effective and sufficiently dissuasive sanctions. The Committee requests again the Government to keep it informed of measures taken or envisaged to afford legislative protection against acts of interference.

The Committee is also addressing a request directly to the Government on certain other points.

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 (Amendment) Act, 2003. It further notes the adoption of the Trade Disputes (Amendment) Act, 2004, and requests the Government to provide a copy thereof.

Article 2 of the Convention. The Committee had previously noted that the legislation did not contain specific provisions for the protection of workers’ organizations against acts of interference by employers and their organizations and requested the Government to amend its legislation by adopting specific provisions ensuring adequate protection of workers’ organizations against acts of interference by employers or employers’ organizations in the establishment, functioning or administration of trade unions, coupled with effective and sufficiently dissuasive sanctions. The Committee notes that while the Government indicates that it takes note of the Committee’s comments in this respect, the two amended Acts do not include provisions to this effect. The Committee reiterates its request and asks the Government to keep it informed of measures taken or envisaged in this respect.

Article 4. (a) Parties to collective bargaining. In its previous direct request, the Committee raised a concern about the right of federations and confederations of trade unions to conclude collective agreements. The Committee notes the Government’s indication that the legislation does not prohibit federations of trade unions from concluding collective agreements.

(b) Principle of voluntary collective bargaining. With respect to its previous comments on compulsory arbitration (sections 7 and 9 of the Trade Disputes Act), the Committee notes the Government’s indication that the legislation was amended so as to confer on the Minister the power to refer a dispute to the Industrial Court in the following circumstances: (1) where a dispute involves an essential service; (2) where 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 the life of the community; and (3) when the dispute involves categories of officers regarded as members of management. The Committee will examine the new amendment to the Trade Disputes Act as soon as it is available to it.

Observation (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 (Amendment) Act, 2003. It further notes the adoption of the Trade Disputes (Amendment) Act, 2004, and requests the Government to provide a copy thereof.

Article 2 of the Convention. In its previous comments, the Committee requested the Government to amend its legislation so that all public servants other than those engaged in the administration of the State can enjoy the right to bargain collectively. The Committee notes with satisfaction the Government’s indication that the Trade Disputes Act and the Trade Unions and Employers’ Organizations Act have been amended to include public officers in the definition of employee in both Acts. With the amendment, public officers other than the armed forces, the police and the prison services can now establish and join trade unions and bargain collectively. The Committee recalls that the guarantees provided by the Convention apply to prison staff and requests the Government to amend its legislation in this respect and to keep it informed of measures taken or envisaged in this respect.

A request on certain other points is being addressed 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:

The Committee notes the information provided by the Government in its first report. The Committee would draw the Government’s attention to the following points.

1. Article 2 of the Convention. The Committee notes that there are no specific provisions contained in the legislation for the protection of workers’ organizations from acts of interference by employers and their organizations. In this respect, the Committee would recall that governments which have ratified the Convention are under the obligation to take specific action, in particular through legislative means, to ensure respect for the guarantees laid down in Article 2 (1994 General Survey on freedom of association and collective bargaining, paragraph 230). The Committee requests the Government to amend its legislation by adopting specific provisions ensuring adequate protection of workers’ organizations against acts of interference by employers or employers’ organizations in the establishment, functioning or administration of trade unions, coupled with effective and sufficiently dissuasive sanctions.

2. Article 4. (a) Parties to collective bargaining. The Committee notes that under section 2 of the Trade Disputes Act, a registered trade union, its branches, or the representatives of the employees concerned where no such organization exists, can conclude a collective agreement. Under the law, federations may be created but they are not recognized as negotiating bodies. The Committee recalls that the Convention applies to all workers’ and employers’ organizations without distinction. The Committee requests the Government to amend its legislation in this regard, so that federations and confederations of trade unions can conclude collective agreements.

(b) Workers covered by collective bargaining. The Committee also notes that under the Trade Unions and Employers’ Organizations Act (TUEO) as amended by Act No. 24 of 25 September 1992, public officers or persons employed by a local authority are excluded from the application of the Act. Under the TUEO Act, these workers are not considered "employees" and are therefore prohibited from joining trade unions. Furthermore, under the Trade Disputes Act and the Employment Act, the term "employee" does not include officers or public servants unless the Minister declares them to be employees for the purposes of these Acts. The Committee recalls that under Article 6 of the Convention, only public servants who are engaged in the administration of the State (civil servants in government ministries and comparable bodies) may be excluded from its scope. All other categories of civil servants should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment. The Committee requests the Government to amend its legislation so that all public servants other than those engaged in the administration of the State can enjoy the right to bargain collectively.

(c) Principle of voluntary collective bargaining. The Committee notes that under section 7 of the Trade Disputes Act, if the bargaining parties fail to reach a negotiated agreement after a reasonable period, the Commissioner may issue a certificate allowing either party to refer the dispute to the Industrial Court. Under section 9 of the Act, the Minister may refer certain disputes to the Industrial Court without the consent of the parties. The Committee recalls that the imposition of compulsory arbitration in cases where the parties do not reach an agreement is generally contrary to the principle of voluntary collective bargaining and is only admissible in essential services (in the strict sense of the term), with regard to public servants engaged in the administration of the State, in the event of an acute national crisis, or where, after prolonged negotiations, it is clear that the deadlock will not be overcome without an initiative by the authorities. The Committee requests the Government to amend its legislation so that a dispute may be referred to the Industrial Court only at the request of both parties or where the parties do not reach an agreement, in essential services in the strict sense of the term, for public servants engaged in the administration of the State, in the event of an acute national crisis, or where, after prolonged negotiations, it is clear that the deadlock will not be overcome without an initiative by the authorities.

The Committee expresses the firm hope that the Government will take the necessary measures in the very near future to bring its legislation into conformity with Articles 2 and 4 of the Convention and it requests the Government to indicate in its next report any progress achieved in this regard.

The Committee takes note of the existence of the three bills concerning employment, trade unions and employers’ organizations and trade disputes. The Committee requests the Government to consider that the bills deal with the questions raised above.

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

The Committee notes the information provided by the Government in its first report. The Committee would draw the Government’s attention to the following points.