The Public Service Act was just gazetted, which will replace the Public Service Act of 2008. In our view, this new Act is not fully in line with ILO principles on freedom of association.
Section 2(1) defines “Appointing Authority” as any person who has the power, whether delegated or otherwise, to appoint any person to office in the public service and to exercise disciplinary control over that employee. The word ‘otherwise’ is ambiguous and may be interpreted to open up a delegation scope without limit.
Section 3(2)(c) excludes certain categories of workers from the application of Part XIII to Part XV of the Act. This includes “members of staff” of the Directorate of Intelligence and Security (DIS).
Unlike the case of the Directorate on Corruption and Economic Crime where the proviso uses the word “officers”, in the case of DIS the words “members of staff” have been used and such at law have a wider meaning to include even non-officers, that is support staff such as labourers and cleaners working at the DIS. Section 16 of the Act empowers the President to interfere with administration of the Public Service. This is a very undesirous state of affairs. We want a situation where conditions of service and terms of employment are negotiated by the unions at Bargaining structures and not directives from the President which hinges on authoritarianism.
Section 19(2) excludes inter-alia persons who have been convicted of a criminal offence. The term “criminal” offence is too broad a word. It may even include a person convicted of drunken driving or over speeding.
Section 31(2)(a)-(c) seeks to undermine the duties of the Public Service Bargaining Council (PSBC) by giving the Minister the power to decree 10% overtime allowance as has been mentioned in the past by the employer.
This is a pure form of slavery wages meant to treat workers as commodities.
Section 50(1)(c) and 50(2)(a)-(c) ban political expressions in the public service. But the section is silent on what politics or a matter of political nature means. According to ILO principles, employees enjoy civil liberties and political expression. At the heart of industrial democracy is the voice of workers on Government economic and social policies.
Section 61 removes the power of the PSBC to settle disputes or grievances of whatever form. Section 43 of the current Public Service Act bestows the power of the PSBC albeit sharing it with the Public Service Commission.
Section 72 and 74(4) give power to the Directorate of Public Service Management and the Minister to appoint the Secretariat, Chairperson and Deputy Chairperson of PSBC respectively. Currently the Constitution of PSBC confers that power to the Council itself.
Section 74(3) provides that representatives of both the trade union party and employer party under subsections (1) and (2) shall be public officers. This restriction is unnecessary and limits employees to be represented by skilled and experienced negotiators of their choice.
Section 75 gives the employer the power to unilaterally vary conditions of service and terms of service without input of PSBC, or even workers.
Section 76(2) gives the possibility for the employer to confer benefits during ongoing negotiations; this will short-circuit the bargaining process and may be contrary to the duty to bargain in good faith.
Section 78 puts a condition to unduly influence who should represent workers at the Bargaining Council. Such conduct is contrary to the Article 3 of the Convention 87 of the ILO which restricts Governments from enacting laws which prescribe who should be elected by employees to lead the Unions. Trade Unions should be free to conduct their affairs without Governmental interference.
Section 79(5) provides that the Government is not required to deduct any trade union dues or levies from employees’ wages on behalf of any trade union, save for union membership subscriptions.
This would greatly affect unions’ work since deductions are vital for them. Rather, “Government shall deduct all lawful and authorised trade union dues or levies from employee’s wages on behalf of trade unions, including but not limited to union membership subscriptions.”
The government has also indicated the intention to amend the Employment Act and Trade Unions and Employers Organisations Act.
We request that government avails from ILO technical assistance to align the Botswana labour to the international labour standards the country has ratified.
Moreover, we request a formal process of consultation. It is truism that social dialogue does not supplement but complements classical parliamentary democracy. Allowing participation of tripartite partners in policy formulation and decision making process regarding social and economic policy is important.