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. Police, military, and prison personnel are represented by employee associations, which serve as a means to communicate collective needs and concerns to their government employer. 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 some of 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. 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.”
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 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 exceedingly rare; the last major strike was in 2011. The law prohibits sympathy strikes. 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. In response to 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 reclassification, a decision upheld by the Court of Appeals in April.
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. Striking workers participating in an illegal strike may face dismissal.
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 was investigating the matter as of November and had made some informal recommendations.
Following the 2011 strikes, BOFEPUSU brought several cases before the courts, including the deregistration case, 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 on the deregistration case, and in July the presiding judge ruled in favor of BOFEPUSU. A full judgment, however, remained pending as of November.
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. In 2011 the government dismissed 2,844 public sector workers for strike activity, some of whom were selectively re-employed later on less favorable terms and conditions.
The government had an insufficient number of labor commissioners, resulting in two-year backlogs in resolving labor disputes. 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). No data concerning such a program were available.