The law provides for the rights of workers, except police, military, and prison personnel, to form and join independent unions and to bargain collectively. Some workers are provided the right to strike. Employee associations, which serve as a means to communicate collective needs and concerns to their government employer, represent police, military, and prison personnel. Union representatives reported that employee associations were generally not as effective as unions in resolving labor disputes.
The law limits the right to organize. Trade unions that fail to meet the formal registration requirements are automatically dissolved and banned from carrying out union activities. The law does not protect members of unregistered trade unions and does not fully protect union members from antiunion discrimination. The law imposes a number of substantive requirements on the constitutions and rules of trade unions and federations of 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.” Employers have the right to ask the registrar to withdraw recognition of a union, and the Ministry of Employment, Labor Productivity, and Skills Development has the right to suspend a union if it is “in the public interest,” although the former practice is uncommon and the latter has never been employed.
The law provides for collective bargaining only for unions that have enrolled one-third of a sector workforce. The law does not allow employers or employers’ organizations to interfere in the establishment, functioning, or administration of trade unions. The law provides a framework for either employers or unions to nullify collective bargaining agreements, and provides a mechanism for the other party to dispute the nullification. 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.
Employees in “essential services”--including the Bank of Botswana, railway services, health care, firefighting, military, transport services, telecommunications infrastructure, electricity, water, and sewage workers--are not legally permitted to strike. In 2016 parliament passed and President Khama signed the amended Trade Disputes Act (TDA), codifying the list of essential services and expanding it to include teachers, veterinarians, and diamond cutters. Many of the occupations included in the TDA list fall outside the International Labor Organization’s definition of essential services.
The law empowers two officials within the Ministry of Employment, Labor Productivity, and Skills Development (the minister and the commissioner of labor) to refer a dispute in essential services to arbitration or to the Industrial Court for determination.
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 within 21 days as required by the amended TDA, they are sent to the Industrial Court. The average case brought to the Industrial Court took two years to resolve, and as of October 2016 there was a backlog of 311 pending cases.
The law allows formally registered unions to conduct their activities without interference and with protection from 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 law severely restricts the right to strike, and strikes were rare. When unions followed legal requirements and exhausted arbitration and notified 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. The law prohibits sympathy strikes. Compulsory arbitration was rare and only applied in cases involving a group dispute of workers in essential services.
The government had an insufficient number of labor commissioners, resulting in an estimated two-year backlog of unresolved labor disputes at year’s end.
In 2015 the High Court ruled that President Khama and the Directorate of Public Service Management must use the Public Service Bargaining Council when negotiating salary structures for unionized public employees. The Botswana Federation of Public Sector Unions (BOFEPUSU) left the Council in May to protest the government’s unilateral wage increases in 2016 and during the reporting year for public employees outside the bargaining council. The ruling party announced in August it would extend the wage increases to BOFEPUSU members, retroactive to the initial increase in April 2016.