[Appendices]

• Appendix A:CONVENTION No. 151
• Appendix B:Summary of the effect of ILO Convention 151
• Appendix C:The Scope of Trade Union Membership

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Appendix A:
CONVENTION No. 151

Convention concerning Protection of the Right to Organise and Procedures for Determining Conditions of Employment in the Public Service [ Date of coming into force: 25 February 1981]

The General Conference of the International Labour Organisation,

Having been convened at Geneva by the Governing Body of the International Labour Office, and having met in its Sixty-fourth Session on 7 June 1978, and

Noting the terms of the Freedom of Association and Protection of the Right to Organise Convention, 1948, the Right to Organise and Collective Bargaining Convention, 1949, and the Workers' Representatives Convention and Recommendation, 1971, and

Recalling that the Right to Organise and Collective Bargaining Convention, 1949, does not cover certain categories of public employees and that the Workers' Representatives Convention and Recommendation, 1971, apply to workers' representatives in the undertaking, and

Noting the considerable expansion of public-service activities in many countries and the need for sound labour relations between public authorities and public employees' organisations, and

Having regard to the great diversity of political, social and economic systems among member States and the differences in practice among them (e.g. as to the respective functions of central and local government, of federal, state and provincial authorities, and of state-owned undertakings and various types of autonomous or semi-autonomous public bodies, as well as to the nature of employment relationships), and

Taking into account the particular problems arising as to the scope of, and definitions for the purpose of, any international instrument, owing to the differences in many countries between private and

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public employment, as well as the difficulties of interpretation which have arisen in respect of the application of relevant provisions of the Right to Organise and Collective Bargaining Convention, 1949, to public servants, and the observations of the supervisory bodies of the ILO on a number of occasions that some governments have applied these provisions in a manner which excludes large groups of public employees from coverage by that Convention, and

Having decided upon the adoption of certain proposals with regard to freedom of association and procedures for determining conditions of employment in the public service, which is the fifth item on the agenda of the session, and

Having determined that these proposals shall take the form of an international Convention,

adopts this twenty-seventh day of June of the year one thousand nine hundred and seventy-eight the following Convention, which may be cited as the Labour Relations (Public Service) Convention, 1978:

Part I. Scope and Definitions

Article 1

1. This Convention applies to all persons employed by public authorities, to the extent that more favourable provisions in other international labour Conventions are not applicable to them.
2. The extent to which the guarantees provided for in this Convention shall apply to high-level employees whose functions are normally considered as policy-making or managerial, or to employees whose duties are of a highly confidential nature, shall be determined by national laws or regulations.
3. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.

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Article 2

For the purpose of this Convention, the term "public employee" means any person covered by the Convention in accordance with Article 1 thereof.

Article 3

For the purpose of this Convention, the term "public employees' organisation" means any organisation, however composed, the purpose of which is to further and defend the interests of public employees.

Part II. Protection of the Right to Organise

Article 4

1. Public employees shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.
2. Such protection shall apply more particularly in respect of acts calculated to -
   1. make the employment of public employees subject to the condition that they shall not join or shall relinquish membership of a public employees' organisation;
   2. cause the dismissal of or otherwise prejudice a public employee by reason of membership of a public employees' organisation or because of participation in the normal activities of such an organisation.

Article 5

1. Public employees' organisations shall enjoy complete independence from public authorities.
2. Public employees' organisations shall enjoy adequate protection against any acts of interference by a public authority in their establishment, functioning or administration.

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3. In particular, acts which are designed to promote the establishment of public employees' organisations under the domination of a public authority, or to support public employees' organisations by financial or other means, with the object of placing such organisations under the control of a public authority, shall be deemed to constitute acts of interference within the meaning of this Article.

Part III. Facilities to be Afforded to Public Employees' Organisations

Article 6

1. Such facilities shall be afforded to the representatives of recognised public employees' organisations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work.
2. The granting of such facilities shall not impair the efficient operation of the administration or service concerned.
3. The nature and scope of these facilities shall be determined in accordance with the methods referred to in Article 7 of this Convention, or by other appropriate means.

   Part IV. Procedures for Determining Terms and Conditions of Employment

   Article 7

   Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees' organisations, or of such other methods as will allow

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   representatives of public employees to participate in the determination of these matters.

   Part V. Settlement of Disputes

   Article 8

   The settlement of disputes arising in connection with the determination of terms and conditions of employment shall be sought, as may be appropriate to national conditions, through negotiation between the parties or through independent and impartial machinery, such as mediation, conciliation and arbitration, established in such a manner as to ensure the confidence of the parties involved.

   Part VI. Civil and Political Rights

   Article 9

   Public employees shall have, as other workers, the civil and political rights which are essential for the normal exercise of freedom of association, subject only to the obligations arising from their status and the nature of their functions.

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   Appendix B:
   Summary of the effect of ILO Convention 151
   
   

   In 1978, a Convention (No. 151) and a Recommendation (No. 159) on Labour Relations in the Public Service were introduced by the ILO. The Convention has to date been ratified by approximately 30 States.

   Convention 151

   This applies to all persons employed by public authorities 'to the extent that more favourable provisions in other international labour Conventions are not applicable to them'. This means that public servants who are not engaged in the administration of the State may have a more favourable position under Convention No. 98 as regards collective bargaining, which constitutes a recognized right for such categories of public servants in accordance with that instrument (which was also ratified by the Government of Botswana in November 1997).

   Convention 151 allows the exclusion of high-level employees whose functions are normally considered as policy-making or managerial, or of employees whose duties are of a highly confidential nature.

   The provisions concerning the protection against acts of anti-union discrimination are similar to those of Convention 98. Convention 151 provides in particular 'that such protection shall apply more particularly in respect of acts calculated to (a) make employment of public employees subject to the condition that they shall not join or shall relinquish membership of a public employees' organization; (b) cause the dismissal of or otherwise prejudice a public employee by reason of membership of a public employee's organization or because of participation in the normal activities of such organization'. The Convention provides for complete independence of public employees' organizations from public authorities and from adequate protection against any acts of interference by a public authority in their establishment, functioning or administration, such as acts designed to promote the establishment of public employees'

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   organizations under the domination of a public authority, or to support public employees' organizations by financial or other means, with the object of placing such organizations under the control of a public authority.

   The Convention also deals with appropriate facilities, which should be afforded to the representatives of recognized public employees' organizations to enable them to carry out their functions promptly and efficiently, both during and outside working hours. The granting of such facilities should not impair the efficient operation of the administration or service concerned.

   The Convention then refers to the procedures for determining terms and conditions of employment. They comprise negotiation between the public authorities and public employees' organizations or 'other methods' which will allow representatives of public employees to participate in such determination. The settlement of disputes should take place through negotiation between the parties, or through independent and impartial machinery, such as mediation, conciliation and arbitration, established in such a manner as to ensure the confidence of the parties involved. Finally, it provides that public employees shall have, as other workers, the civil and political rights which are essential for the normal exercise of freedom of association, subject only to the obligations arising from their status and the nature of their functions.

   Recommendation 159

   The Recommendation which complements the Convention adds that the determination of the organizations to be granted the rights provided for under the Convention should be based on objective and preestablished criteria with regard to their representative character, that the procedures for recognition of public employees' organizations should not be such as to encourage the proliferation of organizations covering the same categories of employees. The Recommendation also deals with certain aspects of the procedures for determining terms and conditions of employment.

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   Appendix C:
   The Scope of Trade Union Membership
   
   

   Botswana Power Corporation Workers Union v Botswana Power Corporation
   [Case No IC 136/96]

   The case concerned a dispute as to which employees of Botswana Power Corporation are entitled to become members of the Botswana Power Corporation Workers Union.

   The Union claimed that all employees who fall within grades 8 to 17, irrespective of the nature of their jobs, are entitled to become Union members.

   The Corporation claimed that employees who fall within grades 8 to 17 do not automatically qualify for Union membership: whether they are entitled to become Union members depends on the nature of their jobs, and employees who are 'members of management' as defined by section 61 of the Trade Union and Employers' Organizations Act are excluded from membership of the Botswana Power Corporation Workers Union. On the basis of this argument, the Corporation claimed that the holders of some 68 job positions falling within grades 8 to 17 are not entitled to be members of the Union.

   At a pre-trial conference, the Union amended its view and recognised that the holders of 9 of these job positions are within the definition of 'members of management' and as such are not entitled to be members of the Union. The dispute in court therefore focused upon the status of the remaining 59 job positions.

   The Corporation argued that the holders of each of the job positions are 'members of management' within the meaning of section 61 of the Trade Union and Employers' Organizations Act, which provides that:

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   61. (1) Notwithstanding any other provision of this Act, no member of management in any undertaking or enterprise shall be represented by a negotiating body, whether the same is or is not a registered trade union or branch thereof, in respect of matters bearing upon relations between his employer or the industry in which the member of management is employed and those employees thereof or therein who are members of management unless the negotiating body represents only members of management in the same undertaking, enterprise or industry and no other employees.

   (2) In this section, "member of management" means an employee who -

   (a) Has authority, on behalf of his employer, to employ, transfer, suspend, lay off, recall, promote, terminate the employment of, reward, discipline or deal with the grievances relating to the employment of any fellow employees or effectively to recommend any such action or the manner in which such grievances ought to be dealt with, if the exercise by him of that authority is not merely of a routine or clerical nature but requires the use of his discretion;
   (b) Participates in the making of a general policy regarding relations between his employer and his fellow employees or any of them; or
   (c) Is employed in a capacity that requires him to have full knowledge of the financial position of the undertaking or enterprise in which he is employed or gives him free personal access to other confidential information relating to the conduct of his employer's business.

   The main argument put forward by the Union was that section 61 is unconstitutional in that it conflicts with the rights to freedom and assembly, and of association which are guaranteed in the Constitution of Botswana. However, the Court rejected this argument on the grounds that section 61 does not absolutely forbid employees who are

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   members of management to belong to a union. It merely forbids such employees to belong to the same union as the other employees. The Court regarded this restriction as reasonably justifiable in a democratic society, because collective bargaining is one of the primary instruments of a democratic society, and collective bargaining would be undermined if management had to bargain with a Union representing both ordinary employees and employees who are members of management.

   The Court then applied the provisions of section 61 to the job positions that were in dispute, and found that each job position falls within the provision of section 61 (2) (a), (b) or (c).

   The importance of the case is that it emphasises that the wording each provision [a, b and c] must be studied very carefully when applied to the relevant job position and job description.

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