2012 Annual Survey of Violations of Trade Union Rights - Botswana
|Publisher||International Trade Union Confederation|
|Publication Date||6 June 2012|
|Cite as||International Trade Union Confederation, 2012 Annual Survey of Violations of Trade Union Rights - Botswana, 6 June 2012, available at: http://www.refworld.org/docid/4fd889602d.html [accessed 28 August 2015]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified:
87 (Freedom of Association and Protection of the Right to Organise (1948))
98 (Right to Organise and Collective Bargaining (1949))
100 (Equal Remuneration for Work of Equal Value (1951))
105 (Abolition of Forced Labour (1957))
111 (Discrimination in Employment and Occupation (1958))
138 (Minimum Age for Employment (1973))
182 (Worst Forms of Child Labour Convention (1999))
Reported Violations – 2012
Documented violations – actual number of cases may be higher
Many workers lost their jobs during the year for their union activities or simply union membership, including bus workers and two postal workers leaders. Over 2,800 workers were dismissed after a long and bitter public sector strike during which excessive police force was used. Police reportedly threatened to use firearms during a strike at a secondary school.
Botswana still has one of the most stable and successful economies in Africa, yet it also faces high poverty rates, inequality, unemployment and HIV/AIDS. The country was rocked by a long, bitter public sector strike over pay and working conditions that began in mid-April and lasted eight weeks, rendering the health service barely functional.
The industrial action started after pay negotiations stalled. The unions were demanding a 16% pay rise after a three year wage freeze and a period of rising inflation. The government remained firm on its offer of 5%. Faced with the workers' determination, the government reacted violently.
Other issues of importance in Botswana are related to: informal and precarious work, migrants workers influx from Zimbabwe, Chinese investments, workplace accidents in the construction industry and the lack of labour inspection. Botswana is trying to reduce its economic dependence on diamonds.
AIDS is still a serious problem with an estimated 300,000 people living with HIV. The country has an estimated adult HIV prevalence among 15-49 year olds of 24.8%, the second highest in the world after Swaziland (UNAIDS 2010 Report). The loss of adults in their productive years has serious economic implications. The economic output of Botswana has been reduced by the loss of workers and skills; agriculture and mining (including diamond industry) are among the worst affected sectors. Migrant workers are among groups most vulerable to HIV infection.
Trade union rights in law
Trade unions have to operate in a harsh legal environment. The Registrar can deny union registration in the absence of some formal requirement, and there is no procedure for rectifying the deficiencies, resulting in the automatic dissolution and banning of the activities of the organisation. Furthermore, employers can petition the Commissioner of Labour to withdraw union recognition. The Trade Disputes Act allows the Minister to inspect the financial affairs of a union at any time.
Although unions have the right to bargain collectively both in the private and public sector, to do so they must represent a significant proportion of the workforce.
Finally, it is virtually impossible to call a legal strike: workers must follow complex arbitration and mediation procedures, and disputes are eventually referred to the Industrial Court, which comprises Ministry of Labour officials. The Commissioner of Labour must establish that an industrial dispute exists before strike action can be initiated. In addition, strikes are not allowed in essential services, the list of which largely exceeds the definition given by the ILO. The Government proposed some amendments of Trade Disputes Act in 2011. However, the draft law did not address many concerns raised by the ILO supervisory bodies and therefore violations of trade union rights persist.
Link to additional detailed information regarding the legislation on the ITUC website here
Collective bargaining still weak: Collective bargaining remains weak, as few unions meet the 25% representational criteria. The bargaining strength of unions in the public sector was sorely tested during the year, with the government refusing to give ground.
Bus owners hostile to transport workers union:
The Botswana Transport and Allied Workers Union (BTAWU) reported in January that many bus owners refused to recognise the union. When union leaders went to bus owners to sign a form recognising the existence of the union, most refused, using a variety of excuses, including that they did not know enough about the union.
However, some bus owners had refused to attend a meeting that the union had called to inform them about its operations and how it would be working with members and their bus bosses. Bus owners were given 30 days to recognise the union in their organisations. They were then called by the Commissioner of Labour to a hearing and they refused. Most did not even respond to the final warning that they were given by the Commissioner.
Many bus employees lost their jobs for joining or becoming officials of the union, including the union Chairperson, Kgomotso Papaye. He was stopped and ordered out of the bus at Mogobane Village, on his way to Gantsi, by the police who had accompanied the bus owner. Christopher Mogomotsi, the Secretary General of BTAWU, spoke of one bus owner who stopped the medical aid that he had been giving one of his former employees who broke his leg while on duty the moment he joined the union saying "his leg would rot at the hospital." The Chairperson of the Botswana Bus Operators Association, Gago Tlhaselo, told journalists that the union was not welcome by the bus owners, and said he believed the union would not last long.
The BTAWU was formed in October 2010 to address the deplorable working conditions faced by bus drivers including long hours, little or no rest time, no reimbursement of accommodation costs for overnight stays and risk of immediate dismissal if they sought a pay rise. They were also concerned about welfare issues, particularly vehicle safety.
Sacked for striking: The concrete products company Kwena Rocla dismissed 71 of its 170 employees on 21 February for going on strike over working conditions three days earlier. The strike was called after management failed to address workers' grievances over back pay, retrenchment, poor working conditions and repeated violations of labour laws by management. Letters written to the authorities had met with no response. Frustrations mounted after the company announced it would have to retrench up to 85 employees, without saying which staff would go. After the two day stay-away, the company decided to sack the 71 who took part in the strike, as well as discontinuing the contracts of 24 casual employees, many of whom had worked for it for over a year, and some of whom were owed a lot of back pay – up to 14 years in some instance.
Postal workers' union leaders dismissed: Gagosepe Manyanda and Wiseman Maruping, chairperson and deputy chairperson of Botswana Postal Services Workers Union (BPSWU), were dismissed on 28 January and 14 March respectively, by Botswana Post. The BPSWU believed they were dismissed because of Gagosepe Manyanda responded critically when a board member questioned the need to replace retiring staff. The union considered that the dismissals were an act of intimidation.
Action continues to reverse unfair dismissal of teacher's leader: The Botswana Teachers' Union (BTU) and Education International (EI) continued to submit regular information to the ILO on the case of Japhta Radibe. The BTU leader brought a case of unfair dismissal against the Director of Teaching Service Management after being forced into early retirement on 24 October 2007, but his case was finally dismissed by the High Court in March 2010. That decision effectively put an end to his leadership of the trade union, which the union suspect was the principal aim behind his dismissal. In March 2011, the ILO Committee on Freedom of Association again requested the government to engage the parties with a view to achieving a joint negotiated settlement of the dispute, including the possible reinstatement of Japhta Radibe.
Dismissed strikers get severance not reinstatement: In July, the government announced it would pay severance packages to all the public sector workers dismissed in the eight-week strike. The total number of workers dismissed was finally calculated to be 2,844 according to government figures. In addition to doctors and nurses, those dismissed included 338 cleaners, 56 catering, 22 records, 45 supply, 40 administration, and 20 information technology staff, 9 drivers, 8 craftsmen and 8 field assistants, none of whom are "essential" workers. In September, the public sector unions went to court to seek the reinstatement of all the dismissed workers.
Police threaten to shoot striking workers: Striking workers who had gathered at Gaborone Secondary School grounds on 13 June were ordered to vacate the premises by fully armed riot police. The police said the gathering was illegal, and gave the workers 15 minutes to vacate the grounds, which they gradually did. They were warned that if they failed to disperse, firearms would be used against them.
Union leader arrested: Pelotshweu Baeng, former president of the Botswana Landboard, Local Authority and Health Workers Union (BLLAHWU) was arrested on 25 May in Gaborone. He was taken to Serowe where he was held in police custody on charges of inciting violence, after striking public sector workers got involved in a scuffle with police. He denied the charges and was released on bail the following day. The charges against him were finally dropped in December owing to lack of evidence.
Police use tear gas, batons and rubber bullets against striking public sector workers: Police used tear gas, batons and rubber bullets to disperse striking public sector workers who had gathered in Gaborone on 7 June in protest at the lack of progress in negotiations. The protests continued the following day, when one worker was arrested. Some protestors reportedly sustained injuries in their clash with the police. About 3,500 striking workers held a rally in the capital, as part of the strike that began on 18 April.
At the end of May, the Botswana Federation of Public Sector Unions (BOFEPUSU) finally agreed to a 3% rise, far short of their initial 16% demand, provided it was distributed in such a way that the lowest paid received 16%. They also demanded that the workers sacked two weeks earlier be reinstated and the "no work no pay" policy announced by the government be dropped. However, the government refused to agree to the union's terms.
Government declares more sectors "essential" services to weaken future strikes: The public sector unions suspended their strike action on 13 June, eight weeks after it had begun. No solution had been found but workers were facing hardship after two months out of work and the unions felt a period of reflection was needed to find a way out of the stalemate. After the strike, the Minister of Labour classified teachers, diamond workers, and the national vaccine institute as essential services, so that they cannot participate in future strikes. These categories of workers fall outside the International Labour Organisation's definition of essential services.
Government hires replacement labour during legitimate strike: A court ruled that the government was in violation of the Trade Dispute Act by bringing in replacement labour during the public sector strike that began on 18 April. The court ruling noted that the replacement labour was brought in before 14 days after the start of the unions' lawful industrial action. In his affidavit, the secretary general of Botswana Federation of Public Service Unions (BOFEPUSU), Andrew Motsamai, said in order to undermine the unions' collective action of withdrawing labour government had undertaken a massive recruitment exercise. Hundreds of people were brought in to replace, among others, cleaning, cooking, laundry and health services in hospitals. The court ruling was not fully heeded however. The publicity secretary of the BOFEPUSU reported that veterinary officers, who the Industrial Court had ruled were not essential services, were replaced with police officers at veterinary cordon gates after the court's ruling.