Essential Services concept is a collective bargaining issue. Section 43 of the Trade Dispute Act 03 of 2005 governs this provision. The Trade Dispute Act terminology of this provision has followed a list and the definition approach of the Essential Services as guided by the ILO guidelines.

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Accordingly, this list approach only states in the schedule thereof the kind of services that are regarded as essential services without much elaboration.   The definition of what Essential Services entails is left to the independent bodies for interpretation. 

Having observed the public service strike recently, it goes without saying that the parties to the dispute were faced with the dilemma of what actually is Essential Services.  The government, in its capacity as the regulator was greatly challenged in that there was much uncertainty as to who had the right to strike and the limitations of the right to strike to those who were considered to be of essential and/or minimum service.  The reality is that such uncertainty creates a division amongst workers and also impacts upon the solidarity of workers.  Such occurrences may be avoided and practicable solutions may be achieved through collective bargaining where parties critique, review and analyse the recent industrial action and accordingly address the gaps identifies in the processes.

Calling for an amendment of the Act as and when we are faced with a problem does not bring relief to the parties, but delays the problem even more. With that in mind, the ILO has provided a number of guidelines after having benchmarked with countries which have experienced similar challenges and such guidelines are of great value to us once properly interpreted.

We have an obligation as a country and as a member of the ILO to have a clear legislative model for regulating Essential Services of our workers.  The Constitution and the Laws of Botswana recognise the right to Freedom of Association.  These laws support the general right to strike as one of the fundamental means of rendering effective rights of a workers association.  However, we know that to every general rule, there will always be an exception. In other words it is proper to impose restriction to strike to a category of certain workers in Essential Services in the strict sense of the term not to engage in a strike action.

Critics could argue or view the restriction on certain employees not to strike or take part in industrial action as an unfair denial of employees' right to strike and could also be viewed as an effort to weaken collective bargaining power.  To balance the scale, the ILO Committee of Freedom of Association has recommended the following on how to administer and regulate Essential Services and the following serves that purpose:

* Defining  a Public Servant or Employee in the Public Service
The Committee of Freedom of Association recommends that for an employee to fall within the category of an essential service worker, that employee should be having an authority to exercise powers in the name of the state.  In other words the functions of such a public servant shall determine his/her right to strike and exclusion thereof.  The Committee further goes on to caution that In practice there will be those employees who do not have the authority to exercise in the name of the state but who nevertheless carry out essential services in the strict of sense of the term. Such employees may still be excluded from the right to strike.  It is therefore imperative not to impose total prohibition of the right to strike but rather to manage the dispute not to result in prolonged stoppage of services that might result in serious consequences for the public.

*Minimum Service Level Framework Agreement
It is one of the responsibilities of the parties to the Bargaining Council to negotiate a minimum service level framework agreement right from the onset.  The Agreement should seek to regulate essential services in respect of:

* The appointment of the Essential Service Committee
* The role and function of the Essential Sevices Committee 
* Essential Services Committees role with regard to enforcing a Minimum Service Agreement 
* Processes of ratifying Essential Service Agreement 
* Identifying problems experienced by parties when concluding a Minimum Service Agreement 
* Does the minimum service agreement adequately define who may or may not strike
* And, what must be the interest of the arbitrators
* Guarantees of the right not to strike

Where a certain category of employees are denied the right to strike, ILO Committee recommended that such employees must enjoy sufficient guarantees to protect their interests.  In other words, the employees excluded from the right to strike must be afforded a prompt, speedy, appropriate and impartial conciliation and arbitration procedures, which entails all parties to participate without fear or favour.

* Power and Functions of Essential Services Committee
Our Trade Dispute Act is silent on the procedures for the appointment, the roles and responsibilities of the Essential Services Committee and their power to designate Essential Services. If we were to follow the ILO model, the appointment of Essential Services Committee should compose of three members of the Ministry of Labour, a Chairperson appointed by the Bargaining Council parties in conjunction with the Directorate of Public Service Management (DPSM), which is the Appointing Authority.  The appointees must have knowledge and experience of Labour Law and Labour Relations.

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