The law provides for the rights of workers, except police, military, and prison personnel, to form and join independent unions, to bargain collectively, and to strike, provided certain restrictions are observed. Employee associations, which serve as a means to communicate collective needs and concerns to their government employer, represent police, military, and prison personnel. Union representatives reported that employee associations were generally not as effective as unions in resolving labor disputes. The law grants certain privileges (such as access to an employer’s premises for purposes of recruiting members, holding meetings, or representing workers, deduction of trade union dues, and recognition of trade union representation with regard to grievances) only to unions representing at least one-third of the employees in an enterprise. The law provides for certain restrictions that limit the right to organize. Trade unions that fail to meet the formal registration requirements are automatically dissolved and banned from carrying out union activities. The law does not afford protection to members of unregistered trade unions and does not fully protect union members from discrimination. The law also authorizes the registrar to inspect accounts, books, and documents of a trade union at “any reasonable time” and provides the minister of defense, justice, and security with the authority to inspect a trade union “whenever he considers it necessary in the public interest.” Employers have the right to apply to the registrar for withdrawal of recognition of a union, and the Defense Ministry has the right to suspend a union if it is “in the public interest,” although the former practice is uncommon and the latter has never been employed.
The law provides for collective bargaining only for unions that have enrolled one-third of a sector workforce. The law does not prohibit acts of interference by employers or employers’ organizations in the establishment, functioning, or administration of trade unions. The law provides a framework for either employers or unions to nullify bargaining agreements, and provides a mechanism for the other party to dispute the nullification. The law also permits an employer or employers’ organization to apply to the government to withdraw the recognition granted to a trade union if it establishes that the trade union refuses to negotiate in good faith with the employer. There were no such cases during the year.
The law severely restricts the right to strike. All strikes are illegal unless compulsory arbitration procedures are first exhausted. Compulsory arbitration was rare and could require more than a year to complete. Strikes were rare, although unionized members of the Botswana Unified Revenue Service participated in several weeks of industrial action that included a strike after securing permission from the Industrial Court. The law prohibits sympathy strikes. Striking workers participating in an illegal strike may face dismissal.
Employees categorized as those in the “essential services”--including the Bank of Botswana, railway services, health care, firefighting, military, transport services, telecommunications infrastructure, electricity, water, and sewage workers--are not allowed to strike. Following the 2011 public sector strike, the minister of labor and home affairs issued a regulation that added teachers, veterinarians, and diamond workers to the list of those providing essential services. The unions won a High Court case challenging the manner of the reclassification, a decision upheld by the Court of Appeals in April 2014.
The law empowers two officials within the Ministry of Labor and Home Affairs (the minister and the commissioner of labor) to refer a dispute in essential services to arbitration or to the industrial court for determination.
Civil service disputes are referred to an ombudsman for resolution, and in general, the ombudsman’s decisions are made independently without government interference. Labor commissioners mediate private labor disputes, and if not resolved, they are sent to the Industrial Court. A labor dispute generally required between 11 months and five years to resolve.
While the law allows formally registered unions to conduct their activities without interference and with protection from antiunion discrimination, members of unregistered trade unions are not protected against antiunion discrimination. Workers may not be terminated for legal union-related activities. Dismissals may be appealed to civil courts or labor officers, which rarely ordered more than two months’ severance pay. The law does not provide for reinstatement of workers, but a judge may order reinstatement if the termination is deemed to be related to union activities. The law does not provide protection to public employees’ organizations from acts of interference by public authorities in their establishment or administration.
The government generally respected freedom of association, although there were some restrictions on the right to collective bargaining. Workers exercised the right to form and join unions, and in general, employers did not use hiring practices to avoid hiring workers with bargaining rights. The government, while seeking to expand the definition of essential services, generally protected the right to conduct union activities. In 2012 unions appealed to the International Labor Organization (ILO) with complaints that included constitutional restrictions on freedom of assembly, unlawful deregistration of the Botswana Federation of Public Sector Unions (BOFEPUSU), onerous balloting and meeting requirements for unions, improper categorization of “essential workers” to prohibit striking, and a lack of impartial mediation machinery. The ILO made some informal recommendations for resolving the issue.
In 2014 the Court of Appeals upheld a High Court verdict for cases BOFEPUSU registered after the 2011 public sector strikes relating to deregistrations, reduction of essential services workers, the government’s lack of participation in bargaining councils, the government’s withdrawal of benefits from some union members, and a challenge to the president’s appointments to the industrial court. Attorneys for the government failed to appear for several successive hearings before the court ruling.
When unions followed legal requirements of exhausting arbitration and notifying the government in advance of a planned strike, the government permitted strikes and did not use force on strikers. Due to strike requirements, however, many strikes were ruled illegal, and striking workers often risked dismissal.
The government had an insufficient number of labor commissioners, resulting in roughly two-year backlogs in resolving labor disputes at year’s end. The government informed the ILO it recognized the need to have an independent dispute resolution mechanism and that the mechanism was to be included in the National Development Plan 10 (2009-16). As of October no independent dispute resolution mechanism was in place.
In September the High Court ruled that President Khama and the Directorate of Public Service Management (DPSM) must use the Public Service Bargaining Council when negotiating salary structures for unionized public employees. BOFEPUSU previously sued the president and DPSM after a 2014 wage hike they claimed undercut existing negotiations in the Bargaining Council. The ruling also stated the Bargaining Council would not cover nonunionized employees, an aspect BOFEPUSU stated it would appeal.