Abstract
Restrictions on the rights of public officers to strike are permitted by the Constitutions of Lesotho, Botswana and South Africa, where such limitations are reasonable, necessary and justifiable in a democratic society. The limitation of this right in the context of public servants is endorsed by the ILO in the Freedom of Association Digest of Decisions and Principles which holds that [t]he right to strike can be restricted or even prohibited in the public service or in essential services in so far as a strike there could cause serious hardship to the national community and provided that these limitations are accompanied by certain compensatory guarantees.1 Public officers in Lesotho are deprived of the right to join trade unions or to strike, without exception or justification. Furthermore in Lesotho no dispute resolution mechanism exists to effectively facilitate the final resolution of disputes of interest in the public sector. This paper considers whether the limitations imposed on the freedom and right to strike of public officers in Lesotho are in breach of international obligations and are reasonable and justifiable in a free and democratic society committed to the rule of law. In so doing a comparative analysis of the jurisdictions of South Africa and Botswana is undertaken. It concludes that Lesotho is in breach of its obligations as a member state of the ILO and its constitutional commitment to freedom of association and needs to be urgently addressed. KEYWORDS : Freedom of association; right to strike; public officers; Lesotho; comparative analysis; Botswana; South Africa
Highlights
T COHEN∗ L MATEE∗∗Freedom of association and its cornerstone, the right to strike, are integral to effective labour relations and a free and democratic society
By defining an employee as "any person who has entered into a contract of employment for the hire of his labour", 100 Trade Unions and Employers' Association Act, 1984; in Attorney General obo Director of Public Service Management v Botswana Landboards and Local Authorities Workers' Union 2013 6 BLLR 533 (BWCA), Kirby JP held that "unionism was not permitted by section 13(2)(c) of the Constitution, which exempts laws which impose restrictions upon public officers, employees of local government bodies, or teachers from being held to breach the right to freedom of assembly"
The International Labour Organisation (ILO) has observed that too broad a definition of the concept of "public servant" is likely to result in a wide restriction or even prohibition of the freedom to strike in the public sector
Summary
Freedom of association and its cornerstone, the right to strike, are integral to effective labour relations and a free and democratic society. Convention No 98 prohibits anti-union discrimination at the workplace and protects against employers' interference in the affairs of employees' organisations. These two conventions are amongst the most ratified conventions of the ILO.. In Southern Africa the countries of Botswana, Lesotho and South Africa, as members of the ILO, have ratified both Conventions No 87 and No 98. This paper considers whether the limitations imposed on the freedom and right to strike of public officers in Lesotho are in breach of international obligations and are reasonable and justifiable in a free and democratic society committed to the rule of law. In so doing a comparative analysis of the jurisdictions of South Africa and Botswana is undertaken
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