On July 26, 2016 BOFEPUSU penned a complaint letter against the Government of Botswana to the International Labour Standars Department. The letter is reproduced here, following the successful conclusion of the case that saw Botswana listed among the top 24 list of governments that have no regard for workers rights in the world
1. The Botswana Federation of Public Sector Unions (“BOFEPUSU”) is a federation of trade unions registered in terms of the laws of Botswana, to which four out of the five biggest trade unions in Botswana affiliate. These are the Botswana Sectors of Educators Trade Union; the Botswana Landboards and Local Authorities and Health Workers Union; the Botswana Teachers Union; and the National Amalgamated Local Central Government and Parastatal Workers Union. Collectively they represent 80 000 workers. It is by far the largest federation of trade unions, and the most organized in Botswana. It was registered on 12 August 2008, and on 18 August 2015 became a labour centre. Both public and private sector unions are eligible for admission to the membership ofBOFEPUSU.
2. BOFEPUSU was formed out of the need to have a vibrant and effective labour centre that can vigorously advance and protect the interests of workers. Its founding members are the two largest unions in Botswana, the National Amalgamated Local and Central Government and Parastatal Workers’ Union and the Botswana Public Employees’ Union. Shortly following its formation, the Registrar of Trade Unions deregistered it based on the fact that at the time of formation, the individual members, contrary to provisions of the Trade Union and Employers’ Organisation Act [Cap 48:02] (“TUEOA”) did not prior to the decision to federate, conduct a poll of all members on whether to federate. In terms of the relevant provision in the TUEOA a decision to federate had to be supported by two-thirds of members of the Unions electing to federate. The Union’s respective decision to federate was made by representatives duly delegated, at a special congress. Following a constitutional challenge to Section 45(3) and 45(4) of the TUEOA, they were held by the High Court, in BOFEPUSU & 2 Ors v. Attorney General & Anor MAHLB-00091, to be inconsistent with Section 13 of the Constitution, which protects the right to freedom of association.
Relations with Government
3. Relations with Government have been frosty since the formation of BOFEPUSU.
Despite the fact that it has been recognized as a labour centre in August 2015 and invited to send representatives to all tripartite structures, it has not been permitted to send representatives to the tripartite structure, established pursuant to Convention No. 144 Tripartite Consultation (International Labour Standards), being the Labour Advisory Board!.
Complaints to be presented
4. Botswana is a member of the International Labour Organisation Governing Body and signatory to the following Conventions:
4.1 Convention No. 87, The Freedom of Association and Protection of the Right to Organise Convention 1948;
4.2 Convention No. 98, The Right to Organise and Collective Bargaining Convention 1949;
4.3 Convention No. 151 Labour Relations (Public Service) Convention,
5. The Government of Botswana intentionally through Bills that are proposed to be passed into law intends to flagrantly disregard its International Labour Organisation obligations arising from the said treaties, by passing laws that are clearly inconsistent therewith. The following bills that Government has tabled or intends to table before Parliament are inconsistent with Botswana’s treaty obligations:
5.1 The Trade Disputes Act Bill No. 12 of 2015
The Bill seeks to amend the Trade Disputes Act [Cap 48:02] (“the TDAH). The presentation of the Bill was not preceded by any meaningful consultation with BOFEPUSU. The Minister of Labour and Home Affairs is responsible for pr~senting the Bill before Parliament. BOFEPUSU was never invited to the Labour Advisory
5.2 The Proposed Public Service Act Bill
The Bill seeks amongst other things to dictate to public sector unions who may represent them during the process of collective bargaining. It provides that persons who are not employed in the public service may not represent trade union parties. The National Amalgamated Local Central Government and Parastatal Workers Union, organizes in various industries and sectors, therefore they utilize fulltime negotiators employed by the Union. This, the Government was fully aware of in formulating the Public Service Act Bill. Such an amendment is contrary to Article 3(1) of the Convention No. 98 which prohibits public authorities from interfering and impeding with the right of trade unions to elect their representatives in full freedom and to organize their administration. The proposed Bill also seeks to empower Government to make unilateral amendments to terms and conditions of employment, notwithstanding that, negotiations between Government and the trade unions ongoing. The proposed Bill also seeks to take away the autonomy of the Public Service Bargaining Council (“PSBC”), by mandating that contrary to current practice, Government alone should have authority of appointing the secretariat who shall be a public servant. The PSBC is the forum at which terms and conditions of employment are settled for the public service.
5.3 The Botswana Examination Council Bill
The proposed Bill seeks to unilaterally vary through an Act of Parliament, the terms and conditions of employment of teachers without subjecting these to collective bargaining. A judgment of the High Court of Botswana in Botswana Secondary School Teachers Union v. Opelo Makhandlela MAHFT- 000013-09 had held that invigilation of external examinations was not part of the duties of a teacher. In order to make it part of the teachers’ duties without paying any additional remuneration for it, Government has resorted to amending the law, rather than engage in collective bargaining with trade unions representing teachers.
6. The purpose of the foregoing was to provide an overview of the complaints which we intend to present in much greater detail.
Botswana Federation of Public Sectors Unions (BOFEPUSU),