Ratified treaty;¹ Work of international supervisory bodies²

Freedom of association/ One third of employees/ Trade union recognition/ Use of international law as a guide for interpreting domestic law

The employees of the Botswana Railways Organisation constituted the Botswana Railway Crew Union and proceeded to register the trade union as required by the law. The union then requested recognition from the enterprise. However, the enterprise refused on the grounds that the trade union was not constituted by a third of the enterprise’s employees as established by the Trade Unions and Employers’ Organizations Act and that their interests could be catered by the Botswana Railways Amalgamated Workers' Union (BRAWU), whose members constitute one third of its employees. The union members interpreted the law as referring to a third of the train crew staff as opposed to a third of the total employees. The legal action commenced because of this discrepancy over the possible interpretations of the phrase “one third of the employees of the employer”.

In order to interpret the phrase in question, the Court referred to the rights enshrined in the Constitution of Botswana, which guarantees workers the right to freedom of association (article 3, section 123), as well as the provisions of ILO Convention No. 87 and the ILO Committee on Freedom of Association’s pronouncements on that Convention, indicating that: 

“ ... there should be freedom of workers to establish organisations 'of their own choosing'. They should not be prevented from doing so on the ground that another general trade union already exists. The freedom of workers to join organisations of their choice must be understood in the wider sense or context.”³ 

In light of the above, the Court indicted that the phrase “one third of the employees of the employer” should be understood to mean one third of the employees of the same trade in the employer’ business. This interpretation was considered to be consistent with the rights guaranteed by the Constitution, ILO Convention No. 87 and the pronouncements of the ILO Committee on Freedom of Association.