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. The law provides for certain restrictions that limit the right to organize. 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. Trade unions that fail to meet some of the formal registration requirements are automatically dissolved and banned from carrying out union activities. 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 25 percent of an organization’s labor force. The law also permits an employer or employers’ organization to apply to the government to withdraw the recognition granted to a trade union on the grounds that the trade union refuses to negotiate in good faith with the employer.
The law severely restricts the right to strike. Strikes are illegal unless arbitration procedures are first exhausted. Sympathy strikes are prohibited. 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 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 law empowers the commissioner and the minister 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. Private labor disputes are mediated by labor commissioners and, if not resolved, sent to the Industrial Court. The average time to resolve a labor dispute dropped from 20 months to 11 months by year’s end.
While the law allows formally registered unions to conduct their activities without interference, members of nonregistered unions are not protected against antiunion discrimination. The law provides for protection against antiunion discrimination. Workers may not be fired 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 firing is deemed to be related to union activities. However, the law does not provide protection to public employees’ organizations from acts of interference by the public authorities in their establishment or administration.
Despite the broad legal restrictions with regard to “nonessential services,” freedom of association and the right to collective bargaining were generally respected in practice. 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 protected the right to conduct union activities in practice. When the unions followed legal requirements of exhausting arbitration and notifying the government of a strike, the government permitted the unions to strike and did not use force on strikers.
After the failure of an April 2011 strike, the unions brought 15 strike-related cases against the government. The Botswana Federation of Public Section Unions (BOFEPUSU) leadership claimed they won or favorably settled 13 of these cases. At year’s end two cases were pending before the courts, the government’s deregistration of BOFEPUSU and retrenchment of “essential” service employees.
On May 28, the unions appealed to the International Labor Organization (ILO) with complaints that included union freedom of assembly restrictions in the constitution, unlawful deregistration of BOFEPUSU, onerous balloting and meeting requirements for unions, improper categorization of “essential workers” to prohibit striking, and a lack of impartial mediation machinery. At year’s end the ILO continued investigating these charges. BOFEPUSU brought six additional cases against the government, which covered the same complaints brought to the ILO, and also challenged the president’s industrial court judicial appointments as unconstitutional. The cases were pending at year’s end.