CHAPTER 47:01
EMPLOYMENT

 

ARRANGEMENT OF SECTIONS

 

   SECTION

 

 

 

PART I
Preliminary

 

   1.   Short title

 

   2.   Interpretation

 

   3.   Commissioner of Labour

 

   4.   Appointment of labour officers

 

   5.   Power of Commissioner to delegate his functions

 

   6.   Power of Minister to give directions

 

   7.   Power of Minister to restrict application of Act

 

   8.   Saving for other enactments

 

 

 

PART II
Administration

 

   9.   Information to be provided by employers

 

   10.   Institution and undertaking of proceedings in connection with Act

 

   11.   Functions of officers

 

   12.   Offence to delay or obstruct, etc.

 

   13.   Obligations of officers

 

 

 

PART III
Contracts of Employment

 

   14.   Oral and written contracts of employment

 

   15.   Existing contracts of employment to continue in force

 

   16.   Duty of employer to provide work

 

   17.   Termination of contracts of employment generally

 

   18.   Termination of contracts of employment for unspecified periods of time

 

   19.   Termination of contracts of employment for unspecified periods of time, normally subject to notice, without notice

 

   20.   Termination of contracts of employment for unspecified periods of time during probationary period

 

   21.   Breaches of contracts of employment

 

   22.   Liability following certain breaches of contracts of employment

 

   23.   Restriction of grounds on which employers may terminate contracts of employment

 

   24.   Certificates of employment

 

   25.   Redundancy

 

   26.   Termination of contracts of employment without notice

 

   27.   Entitlement to severance benefit on termination of contract of employment

 

   28.   Change of employer

 

   29.   Transfer of Botswana citizen abroad in same undertaking

 

   30.   Death or disappearance of employee during contract

 

   31.   Employment cards

 

   32.   Repatriation

 

   33.   Exemption from obligation to repatriate

 

   34.   Duty of employer to provide means of transport on repatriation

 

   35.   Duty of employer to provide medical facilities in certain circumstances

 

   36.   Duty of employer to keep register of casual employees

 

   37.   Certain terms of contract of employment to be void

 

   38.   Offence where contract contravenes this Part

 

 

 

PART IV
Special Contracts in relation to Recruitment

 

   39.   Application of Parts III and IV

 

   40.   Contracts to be in writing

 

   41.   Family not bound by contract

 

   42.   Responsibility of employer

 

   43.   Contents of every contract

 

   44.   Attestation of contracts required

 

   45.   ...

 

   46.   Medical examination

 

   47.   Contracting age

 

   48.   Transfer to other employment

 

   49.   Termination of contract in certain circumstances

 

   50.   Period of employment

 

   51.   Foreign contracts of employment and contracts of employment made abroad

 

   52.   Offence to induce persons to proceed abroad under informal contract

 

 

 

PART V
Recruitment

 

   53.   Application of Part V

 

   54.   Prohibition of recruitment except under licence

 

   55.   Issue of recruiter's licence

 

   56.   Prohibition of assisting recruitment without permit

 

   57.   Power of Commissioner to take security from applicants

 

   58.   Power of Commissioner to cancel or suspend licences and permits

 

   59.   Renewal of licence or permit

 

   60.   Liability of recruiter for offences committed by his employees

 

   61.   Prohibition of recruitment of children, etc.

 

   62.   Families of recruited persons

 

   63.   Prohibition of recruitment by public officers

 

   64.   Transport of recruited persons and their families to place of engagement

 

   65.   Transport of recruited persons and their families in special circumstances

 

   66.   Transport of recruited persons and their families to place of employment

 

   67.   Supply of necessaries during journey to place of engagement or employment

 

   68.   Regulations in connection with employment

 

 

 

PART VI
Forced Labour

 

   69.   Application of Part VI

 

   70.   Prohibition of exaction of forced labour

 

   71.   Penalty for official constraint

 

   72.   Saving

 

 

 

PART VII
Protection of Wages

 

   73.   Exclusion from application of VII

 

   74.   Fixing of wage periods

 

   75.   Time of payment

 

   76.   Payment of wages, etc., on termination of contract of employment by employer

 

   77.   Payment of wages, etc., on termination of contract of employment by employee

 

   78.   Payment of wages, etc., to be made during working hours

 

   79.   Prohibition of unauthorized deductions from wages, etc.

 

   80.   Authorized deductions from wages, etc.

 

   81.   Limitation on attachments and assignments, etc.

 

   82.   Wages to be paid in legal tender

 

   83.   Agreement as to place or manner of spending wages illegal

 

   84.   Partial payment of wages in kind

 

   85.   Wages not to be paid on certain premises

 

   86.   Authority of employer to open shop

 

   87.   Advance of wages

 

   88.   Prohibition of interest on advances

 

   89.   Power of Commissioner to require security from employer

 

   90.   Payment of wages for partial performance of contract of employment

 

   91.   Priority of wages

 

   91A.   Employee's claims arising out of his employment

 

   92.   Duty of employer to keep records, etc.

 

 

 

PART VIII
Rest Periods, Hours of Work, Holidays and other Conditions of Work

 

   93.   Rest periods

 

   94.   Payment for work during rest period

 

   95.   Hours of work

 

   96.   Task work

 

   97.   Shift work

 

   98.   Leave with pay

 

   99.   Paid public holidays

 

   100.   Paid sick leave

 

 

 

PART IX
Contractors and Contracting

 

   101.   Powers of Commissioner to secure payment of wages due to employees of contractors, subcontractors and employers

 

 

 

PART X
Employees in Special Categories

 

   102.   Regulations at variance with Act in relation to employees in special categories

 

 

 

PART XI
Employment of Children and Young Persons

 

   103.   Application of Part XI

 

   104.   Power of Minister to exempt occupations

 

   105.   Employment of children prohibited

 

   106.   Prohibition of employment underground

 

   107.   Prohibition of night work

 

   108.   Restriction on employment of children and young persons

 

   109.   Hours of work of children and young persons in industrial undertakings

 

   110.   Prohibition of employment of children and young persons on rest days and paid public holidays

 

   111.   Regulations regulating employment of children, etc.

 

 

 

PART XII
Employment of Females

 

   112.   Application of Part XII

 

   113.   Absence from work in connection with confinement and maternity allowance

 

   114.   Payment of maternity allowance

 

   115.   Right to maternity allowance unaffected by notice of termination of contract of employment

 

   116.   Prohibition of serving notice of termination of contract of employment during maternity leave

 

   117.   Female employee entitled to only one maternity allowance

 

   118.   Female employee to be permitted to nurse child

 

   119.   When employer not liable for medical expenses

 

 

 

PART XIII
Employment of the Infirm and Handicapped

 

   120.   Regulations in relation to employment of infirm or handicapped persons

 

 

 

PART XIV
Labour Health Areas

 

   121.   Application of Part XIV to labour health areas

 

   122.   Housing

 

   123.   Feeding of employees

 

   124.   Supply of water

 

   125.   Provision of medicine and medical treatment

 

   126.   Care of employees on journeys

 

   127.   Return of employees to place of origin or engagement

 

   128.   Regulations in relation to labour health areas

 

 

 

PART XV
Labour Clauses in Public Contracts

 

   129.   Certain public contracts to contain declaratory clause in relation to contracts of employment

 

   130.   Sanctions available to Government in respect of contracts of employment made pursuant to certain public contracts

 

 

 

PART XVI
Determination of Minimum Wages

 

   131.   Establishment of Minimum Wages Advisory Board

 

   132.   Duty of Minister to seek advice of Board before fixing minimum wage

 

   133.   Duties of Board

 

   134.   Powers of Board

 

   135.   Power of Minister to fix minimum wages

 

   136.   Amendment of Fourth Schedule

 

   137.   Power of Minister to adjust minimum wage

 

   138.   Effect and enforcement of minimum wages order

 

   139.   Power of Commissioner to exempt infirm or handicapped person from minimum wages order

 

   140.   Duty of employer to keep certain records for enforcement of this Part

 

   141.   Duty of employer to exhibit certain notices in connection with minimum wages order

 

   142.   Regulations in relation to this Part

 

 

 

PART XVII
Labour Advisory Board

 

   143.   Establishment of Labour Advisory Board

 

   144.   Duty of Minister to consult Board

 

 

 

PART XVIII
Remedies, Jurisdiction, Procedure and Penalties

 

   145.   Failure to pay wages, etc. or detaining employee's property

 

   146.   Entering or leaving employment with fraudulent intent

 

   147.   Penalty for keeping and harbouring employees

 

   148.   False pretences

 

   149.   Furnishing false information

 

   150.   Making false entries in records

 

   151.   Penalties for offences under Act

 

 

 

PART XIX
Supplementary

 

   152.   Saving of proceedings under other laws

 

   153.   Rendering of annual reports to National Assembly

 

   154.   Power of Minister to make regulations

 

 

 

      First Schedule - Persons to whom Property of Deceased or Missing Employee may be Delivered

 

      Second Schedule - Paid Public Holidays

 

      Third Schedule - Minimum Wages Advisory Board

 

      Fourth Schedule - Trades, Sections of Trades, Industries and Sections of Industries in which Minister may Fix Minimum Wage

 

      Fifth Schedule - Labour Advisory Board

 

 

Act 29, 1982,
S.I. 148, 1984,
S.I. 13, 1990,
Act 26, 1992,
S.I. 52, 1996,
Act 14, 2003,
S.I. 73, 2007,
Act 6, 2008,
S.I. 27, 2008,
Act 10, 2010,
S.I. 117, 2014.

An Act to repeal and replace the Employment Act in order to amend the law relating to employment, to make comprehensive provision therefor and to provide for matters incidental thereto and connected therewith.

[Date of Commencement: 14th December, 1984]

PART I
Preliminary
(ss 1-8)

 

1.   Short title

   This Act may be cited as the Employment Act.

 

2.   Interpretation

   (1) In this Act, unless the context otherwise requires-

   "agricultural undertaking" means any undertaking or part of an undertaking engaged in cultivation, animal husbandry, including livestock production and care, forestry, horticulture, plantations, the primary processing of agricultural products by the operator of a holding or any other form of agricultural activity other than such an undertaking or part of an undertaking in which members of the same family alone are employed;

   "attesting officer" means a labour officer or any other public officer authorized by the Commissioner in writing to perform the functions of an attesting officer under this Act;

   "basic pay" means the rate of payment, including any payment in kind, made by an employer for work done or services performed during an hourly, weekly, fortnightly or monthly period excluding all other remuneration;

   "casual employee" means an employee whose terms of contract are for a period of not more than twelve months, and which contains provisions limiting employment to not more than three days', or more than twenty-two and a half hours', work per week;

   "child" means a person under the age of 15 years;

   "collective labour agreement" means a written agreement relating to the terms and conditions of employment concluded between one or more registered trade unions or branches thereof or, where no such organization exists, the representatives of the employees concerned duly elected and authorized by them and one or more employers or registered employers' organizations;

   "Commissioner" means the Commissioner of Labour referred to in section 3 or any person acting in or lawfully performing the functions of his office;

   "confinement" means delivery of a child;

   "construction contractor" means any person established for the purpose of undertaking, either exclusively or in addition to or in conjunction with any other business, any type of construction work for or on behalf of some other person under a contract entered into between them or the heirs, executors, administrators, assigns or successors of any person so established;

   "construction work" means any building or civil engineering work, including repair, maintenance, alteration and demolition work;

   "continuous employment" means employment (including employment during a probationary period) with the same employer, whether such employment commenced before, except for the purposes of section 27, at or after the commencement of this Act, which employment is uninterrupted except by periods of absence from work for which provision is made by this Act or which-

 

   (a)   are authorized by the employer;

 

   (b)   are due to injury caused to or disease suffered by the employee in respect of which compensation is payable in accordance with such legislation as may for the time being be in force governing workmen's compensation; or

 

   (c)   are occasioned by industrial action which is not unlawful by virtue of such legislation as may for the time being be in force governing trade disputes;

   "contract of employment" means an agreement, whether oral or in writing, expressed or implied, whereby one person agrees for a wage or other benefit or both to let his labour to and to perform it under the orders of another person who agrees to hire it;

   "contractor" means a person who contracts with a principal to supply labour or to carry out the whole or any part of any work undertaken by the principal in the course of or for the purposes of the principal's trade or business;

   "day" means any period of 24 hours commencing at midnight;

   "domestic employee" means a house servant, a garden servant or a motor car driver employed in or in connection with the domestic services of any private premises.

   "employ" means, in relation to the person employing, to use as an employer the labour of an employee;

   "employee" means any person who has, either before or after the commencement of this Act, entered into a contract of employment for the hire of his labour:

   Provided that the expression shall not include a public officer.

   "employer" means any person who has entered into a contract of employment for the hire of the labour of any person, including a public authority, or the person who owns or is carrying on for the time being or is responsible for the management of the undertaking, business or enterprise of whatever kind in which the employee is engaged:

   Provided that the expression shall not include the Government in respect of all of its officers;

   "employment" means the performance by an employee of a contract of employment;

   "forced labour" means all work or service which is exacted from any person under the threat of a penalty and for which the person has not offered himself voluntarily, other than labour-

 

   (a)   required in consequence of a sentence or order of a court;

 

   (b)   required of any person while the person is lawfully detained and that, though not required in consequence of the sentence or order of a court, is reasonably necessary in the interest of hygiene at the place at which that person is detained;

 

   (c)   required of a member of a disciplined force in pursuance of the member's duties as such or, in the case of a person who has conscientious objections to service as a member of a naval, military or air force, required by law of such person in place of such service;

 

   (d)   required during any period of public emergency or in the event of any other emergency or calamity which threatens the life and well-being of the community, to the extent that the requiring of such labour is reasonably justifiable in the circumstances of any situation arising or existing during that period or as a result of that other emergency or calamity, for the purpose of dealing with that situation; or

 

   (e)   reasonably required as part of reasonable and normal communal or other civic obligations;

   "guardian" means any person lawfully having charge of a child or young person whether having parents or no parents or whose parents are unknown;

   "industrial undertaking" include any industrial undertaking of the Government or other public authority or of any part thereof and, in particular, includes-

 

   (a)   mines, quarries and other works for the extraction of minerals from the earth;

 

   (b)   undertakings in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, adapted for sale, broken up or demolished or in which materials are transformed including undertakings engaged in ship-building or in the generation, transformation or transmission of electricity or motive power of any kind;

 

   (c)   undertakings engaged in building or civil engineering works, including repair, maintenance, alteration and demolition work; and

 

   (d)   undertakings engaged in the transport of passengers or goods by road, rail, air or water, including the handling of goods at warehouses or airports;

   "intoxicating liquor" has the same meaning as in the Liquor Act;

   "labour health area" means an area declared under section 121 to be a labour health area for the purposes of this Act;

   "labour officer" means a person appointed under section 4 to be a labour officer for the purposes of this Act;

   "maternity allowance" means the allowance payable to a female employee by virtue of section 113(5);

   "medical officer" means-

 

   (a)   a medical practitioner employed by the Government; or

 

   (b)   any other medical practitioner appointed by the Minister in writing to be a medical officer for the purposes of this Act;

   "mine" includes any undertaking, whether public or private, for the extraction of any substance from under the surface of the earth;

   "minimum wage" means the wage fixed by the relevant minimum wages order;

   "minimum wages order" means an order made under section 135 or 137 fixing or adjusting a minimum wage;

   "overtime" means the number of hours worked in any one day or in any one week in excess of those prescribed by Part VIII;

   "place of employment" means any place provided by an employer where work is carried on by an employee in the course of his employment;

   "prescribed" means prescribed by regulations made under this Act;

   "principal" means any person who, in the course of or for the purposes of his trade or business, contracts with a contractor for the supply of labour or for the execution by or under the contractor of the whole or any part of any work undertaken by the principal;

      "public authority" means a corporation established by a written law or corporation registered in accordance with the Companies Act in which the Government owns a majority of all the equity shares;

   "public officer" means an officer or employee of a public authority;

   "quarters" means any building provided or intended to be provided for an employee to live and sleep in either temporarily or permanently and any additional room or building used or intended to be used by an employee, whether communally or privately, for the purposes of cooking, eating, washing or bathing and any latrines or urinals used or intended to be used by an employee;

   "recruiter" means the holder of a valid recruiter's licence issued to him under Part V;

   "recruitment" includes all operations undertaken with the object of obtaining or supplying from a place of recruitment the labour of persons who do not spontaneously offer their labour at the place of work or at an office of engagement conducted by an employers' organization under the supervision of the Commissioner;

   "registered nurse and midwife" means a person who is duly registered both as a nurse and as a midwife under the Nurses and Midwives Act;

   "subcontractor" means any person who contracts with a contractor for the supply of labour or for the execution by or under the subcontractor of the whole or any part of any work undertaken by the contractor for his principal or any person who contracts with a subcontractor to supply labour or to carry out the whole or any part of any work undertaken by the subcontractor for a contractor;

   "wage" in relation to any contract of employment, means remuneration or earnings, however designated or calculated, which is paid by an employer to an employee, is capable of being expressed in monetary terms, is fixed by mutual agreement or by legislation,and is payable by virtue of a written or unwritten contract of employment;

   "week" means any period of seven consecutive days;

   "young person" means a person who has attained the age of 15 years but is under the age of 18 years.

   (2) Every reference in this Act to a member of an employee's or recruited person's family shall, unless the context otherwise requires, be deemed to be a reference to his wife, husband, child (including a legally adopted child), father, mother, brother, uncle, father-in-law, mother-in-law or son-in-law, where that person lives habitually with or is dependent on the employee or recruited person.

   (3) The provisions of Part VIII shall not apply in the case of an employee who falls into a category of persons commonly known as managers, administrators or executives or as professional staff or into some other category of persons of the same or a similar status.

   (4) A certificate of the Minister to the effect that any person named therein is or is not or was or was not at any time specified therein a person to whom section 27 and the provisions of Part VIII apply or applied shall be conclusive for all purposes, including those of legal proceedings, as to the matter so certified.

 

3.   Commissioner of Labour

   There shall be a Commissioner of Labour.

 

4.   Appointment of labour officers

   The Minister may appoint from among public officers any persons whom he considers to be suitably qualified therefor to be labour officers for the purposes of this Act.

 

5.   Power of Commissioner to delegate his functions

   Except where he is expressly forbidden to do so by this Act, the Commissioner may, with the consent of the Minister, in writing delegate to any person by name or to the person for the time being holding or acting in the office designated by him the exercise of any power or the performance of any duty conferred or imposed on him by or under this Act, subject to such conditions, exceptions or qualifications as the Commissioner may specify, and, thereupon or from such date as the Commissioner may specify, that person may exercise that power or shall perform that duty in conformity with any conditions, exceptions or qualifications so specified.

 

6.   Power of Minister to give directions

   (1) The Minister may give directions, either generally or with reference to a particular case, to all or any persons appointed or authorized by the Minister or the Commissioner under this Act as to the carrying out of their functions under this Act and, where such directions are given generally, they shall be in writing.

   (2) Notwithstanding the other provisions of this Act, every person to whom directions are given by the Minister under subsection (1) shall comply with those directions.

 

7.   Power of Minister to restrict application of Act

   The Minister may, by order published in the Gazette, declare that this Act or any provisions thereof shall not apply to any premises or to premises belonging to any class or description of premises specified in the order:

   Provided that the Minister shall, before making such an order-

 

   (i)   consult the Labour Advisory Board; and

 

   (ii)   take every reasonable step to ensure that the order contemplated does not conflict with any international agreement or other obligation to which Botswana or the Government is a party or by which Botswana or the Government is otherwise bound.

 

8.    Saving for other enactments

   Nothing in this Act shall operate to relieve any employer of any duty or liability imposed on him by or under any other enactments for the time being in force or limit any powers conferred on any public officer by or under any such law.

PART II
Administration
(ss 9-13)

 

9.   Information to be provided by employers

   (1) The Commissioner may, by notice published in the Gazette, require every employer or every employer belonging to any class or description of employers specified in the notice to furnish him with such particulars of his business relating to employment, in such manner and within such reasonable period of time as may be specified in the notice.

   (2) Without prejudice to the exercise of the powers conferred on him by subsection (1), the Commissioner may, by notice in writing served on an employer, require him to furnish the Commissioner, either periodically or otherwise, with written returns and statistics as to the number of employees employed by him in any particular employment, their basic pay or wages and the conditions generally affecting such employment, in such manner and within such period of time as may be specified in the notice.

   (3) Where the shut-down of an undertaking or business is anticipated, the employer shall, not less than 30 days immediately before the date of the anticipated shut-down, furnish the nearest labour officer and the Commissioner in writing with that date:

   Provided that the Commissioner may, by order published in the Gazette, exempt any employer or every employer belonging to any class or description of employers specified in the order from the operation of this subsection.

   (4) The Commissioner shall keep at his principal office registers in which he shall enter or cause to be entered all information furnished him under or in accordance with this section and shall ensure that the same are maintained in such a manner as to facilitate the administration and enforcement of every written law in respect of which the Commissioner or any labour officer has any administrative or enforcement function.

   (5) Any employer who fails to comply with this section or with a requirement made of him under this section or, in compliance or purported compliance with this section or with such a requirement, furnishes any information which he knows to be false or does not believe to be true shall be guilty of an offence and liable to the penalties prescribed by section 151(b).

 

10.   Institution and undertaking of proceedings in connection with Act

   (1) Where the Attorney-General is satisfied that any labour officer is suitably qualified therefor, he may in writing authorize that labour officer to institute and undertake proceedings in any magistrate's court-

 

   (a)   in respect of any contravention of this Act; and

 

   (b)   on behalf of any employee or former employee in respect of any civil claim arising under this Act.

   (2) The powers of a duly authorized labour officer to institute and undertake proceedings in respect of any contravention of this Act shall be exercised in accordance with the Attorney-General's general or special instructions.

   (3) Where a duly authorized labour officer institutes proceedings in respect of any civil claim arising under this Act, he may, instead of appearing and conducting the case in person, appear and conduct the case by a person having a right of audience.

 

11.   Functions of officers

   (1) The provisions of this section shall be in addition to and not in derogation from any other powers or duties conferred or imposed on any person by this Act.

   (2) For the purpose of satisfying himself that the provisions of this Act are being duly observed the provisions of subsections (3) and (4) shall have effect.

   (3) The Commissioner or any labour officer may at any reasonable time-

 

   (a)   enter, inspect and examine any land, building, camp, vehicle, place, structure or article whatsoever where or about which any employee is housed or employed or there is reason to believe any employee is housed or employed;

 

   (b)   enter, inspect and examine any hospital or dispensary or any latrines or other sanitary arrangements used or intended to be used by employees in any place or building or any water supply available for the use of employees and enquire and ascertain whether in any hospital, dispensary or place of employment suitable medicines and remedies are provided for employees;

 

   (c)   inspect and examine kitchens and places in which food provided for employees is stored, prepared or eaten and inspect and examine all such food;

 

   (d)   take and remove, for the purposes of analysis, samples of any material or substances available or provided for the use of or handled by employees; so, however, that any sample taken under this paragraph shall be taken in duplicate in the presence of the employer or a person acting on his behalf and shall be labelled and sealed in the presence of the employer or that person and one sample so labelled and sealed shall be left with him;

 

   (e)   require any employer forthwith to produce any employee employed by him or any documents or records relating to such an employee; and

 

   (f)   question, either alone or in the presence of witnesses, as he thinks fit, any employer or employee or any other person whose evidence he has reasonable cause to consider necessary regarding matters connected with carrying out any of the provisions of this Act:

   Provided that, on the occasion of any such visit of inspection, the Commissioner or a labour officer, as the case may be-

 

   (i)   shall notify the employer or his representative of his presence unless he believes, on reasonable ground, that such notification might be prejudicial to the performance of his duties;

 

   (ii)   shall not offer any advice directed towards securing compliance with the provisions of this Act if in any case he considers it necessary himself first to obtain relevant professional advice from the appropriate Government department; and

 

   (iii)   shall not enter or inspect any dwelling-house without the consent of the occupier thereof.

   (4) The Commissioner or any labour officer may-

 

   (a)   by notice in writing served on an employer, require the employer to meet him, at such reasonable time and at such reasonably situated public office as shall be specified in the notice, in order to discuss any matter for which provision is made by this Act, which matter shall also be specified in the notice:

 

         Provided that-

 

      (i)   no requirement shall be made under this paragraph unless at least two written requests for such a meeting transmitted to the employer by the Commissioner or labour officer, as the case may be, have failed, for whatever reason, to result in such a meeting; and

 

      (ii)   no employer shall be compelled to comply with a requirement made under this paragraph if he satisfies the Commissioner or a labour officer, as the case may be, in writing that his attendance at such a meeting would cause significant economic harm to his business, enterprise or concern and he indicates, at the same time, what steps have been or are proposed to be taken to ensure compliance with this Act in respect of the matter in question and those steps are acceptable to the Commissioner or a labour officer, as the case may be;

 

   (b)   at all reasonable times, require any recruiter or person engaged in recruitment or seeking to recruit any person to produce any recruited person or any document relating to the engagement or recruitment of such a person;

 

   (c)   at all reasonable times demand of any recruiter or person engaged in recruitment or seeking to recruit any person the production of any licence or permit issued under this Act; and

 

   (d)   copy or make extracts from any documents or records in the possession of an employer relating to any employee in connection with the provisions of this Act.

   (5) The Commissioner or any labour officer may-

 

   (a)   require all rooms, stores, places and premises in any camp or building used by or on behalf of any employer or recruiter to be kept clean and in a sanitary condition;

 

   (b)   require the employer or recruiter, as the case may be, at the earliest reasonable opportunity and at the employer's or recruiter's expense, to return to the place of his recruitment or send to hospital any person who, in the opinion of the Commissioner or a labour officer, as the case may be, or of a medical officer, is ill and for whom the conditions prevailing at any place of employment or engagement are not conducive to the recovery of his health and strength;

 

   (c)   require the employer or recruiter, as the case may be, at the earliest reasonable opportunity and at the employer's or recruiter's expense, to return to the place of his recruitment, following the recovery of his health and strength, any person sent to hospital by the employer or recruiter in compliance with a requirement made by the Commissioner or a labour officer under paragraph (b); and

 

   (d)   if, in the opinion of the Commissioner or a labour officer, as the case may be, any land, building, camp, vehicle, place, structure or article whatsoever where or about which any employee is employed or which is provided for occupation or use by any employee or other person is insanitary or in such a condition as to be dangerous to health or unfit for occupation or use by the employee or other person, in writing direct the person for the time being responsible for the management of the same to discontinue such occupation or use from a date to be specified in the direction until such requirements of repair or reconstruction or otherwise specified in the direction have been fulfilled and until the same has been certified by the Commissioner or a labour officer to be fit for further occupation or use.

   (6) The Commissioner may prohibit the engagement of further employees to be employed at any place of employment where he is satisfied that the conditions therein do not comply with this Act or the regulations concerning the care and welfare of employees.

   (7) It shall be the duty of the Commissioner and of every labour officer, when and as often as he considers it necessary or expedient to do so, to furnish technical information and advice to any employer or employee regarding the most effective means of complying with this Act.

   (8) It shall be the duty of every labour officer to bring to the notice of the Commissioner any abuses which do not appear to him to be covered by this Act and any other defects or omissions therein.

   (9) Where the Commissioner or any labour officer gives any direction under subsection (5)(d) or the Commissioner makes any prohibition under subsection (6), the person to whom the direction or prohibition is addressed may, if he is of the opinion that the terms of the direction or prohibition are harsh or unreasonable or that the requirements of the direction cannot be fulfilled within a reasonable time, after giving notice thereof to the Commissioner or to the labour officer concerned, as the case may be, appeal to the Minister who shall confirm, rescind or vary the terms of the direction or prohibition; any direction or prohibition so appealed from shall remain in abeyance until the appeal is determined by the Minister:

   Provided that, where the Commissioner is of the opinion that for the direction or prohibition so to remain in abeyance would or might result in imminent danger to human health or safety, he may direct that the direction or prohibition shall not remain in abeyance pending the Minister's determination.

   (10) Every appeal under subsection (9) shall be in writing and shall be delivered to the Minister not later than 21 days immediately after the day on which the direction or prohibition appealed from was communicated to the employer or other responsible person and the Minister shall determine the appeal as soon as is reasonably practicable.

   (11) Regulations may prescribe the procedure for hearing appeals under subsection (9).

 

12.   Offence to delay or obstruct, etc.

   Any person who wilfully delays or obstructs the Commissioner or any labour officer in the exercise of any power or the performance of any duty conferred or imposed by this Part or who fails to comply with any direction, requirement, demand or prohibition of the Commissioner or of a labour officer given or made under this Part or who conceals in order to prevent or otherwise prevents any person from appearing before or being questioned by the Commissioner or a labour officer or who attempts so to conceal or otherwise prevent any person shall be guilty of an offence and liable to the penalties prescribed by section 151(b).

 

13.   Obligations of officers

   (1) Subject to such exceptions as may be prescribed for the purposes of this subsection-

 

   (a)   neither the Commissioner nor any labour officer shall have under his immediate supervision in pursuance of this Act any undertaking in which he has any direct or indirect interest or reveal the source of any complaint bringing to his notice a defect in or breach of the law or give any intimation to an employer or his representative that a visit of inspection was made in consequence of such a complaint; and

 

   (b)   any person who, in the exercise of his powers or the performance of his duties under this Act, acquires information relating to the financial affairs, secret processes, plant or equipment of any other person shall not disclose such information to any other person except-

 

      (i)   for the purpose of legal proceedings under this Act;

 

      (ii)   to a court of law or to a person invested by law with the power to compel disclosure of such information; or

 

      (iii)   to the Minister or any other person acting in the execution of this Act, but only in so far as such information is necessary for the execution thereof.

   (2) Any person who contravenes this section shall be guilty of an offence and liable to the penalties prescribed by section 151(c).

PART III
Contracts of Employment
(ss 14-38)

 

14.   Oral and written contracts of employment

   (1) Subject to Part IV, contracts of employment may be oral or in writing, expressed or implied.

   (2) This Part shall apply to every contract of employment:

   Provided that this Part shall not apply to a contract of employment entered into by the government to hire the labour of any person who is not an employee as defined by section 2.

 

15.   Existing contracts of employment to continue in force

   Every contract of employment valid and in force immediately before the commencement of this Act shall continue to be in force thereafter and, to the extent that the same is not in conflict with this Act, shall be deemed to be made under this Act and the parties thereto shall be subject to and entitled to the benefits of this Act.

 

16.   Duty of employer to provide work

   (1) Every employer shall, unless the employee has broken his contract of employment or the contract of employment becomes, without default on the part of the employer, impossible of performance, provide his employee with work in accordance with the contract of employment during the period for which the contract is binding on a number of days equal to the number of working days provided for, either expressly or by implication, in the contract of employment.

   (2) If an employer fails to provide work in accordance with subsection (1), he shall pay to his employee, in respect of every day on which he so fails, wages at the same rate as if the employee had performed a full day's work, whether the employee is or is not released from the workplace.

 

17.   Termination of contracts of employment generally

   (1) A contract of employment for a specified piece of work, without reference to time, or for a specified period of time shall, unless otherwise lawfully terminated, terminate when the work specified in the contract is completed or the period of time for which the contract was made expires.

   (2) A contract of employment for an unspecified period of time (other than a contract of employment for a specified piece of work, without reference to time) shall be deemed to run until lawfully terminated.

 

18.   Termination of contracts of employment for unspecified periods of time

   (1) A contract of employment for an unspecified period of time (other than a contract of employment for a specified piece of work, without reference to time) may be terminated by either party-

 

   (a)   where the wages are payable in respect of any period not exceeding a day, at the close of any day's work without notice having been given to the other party of the intention to do so unless the contract of employment provides for the giving of such notice in these circumstances, in which the last case the termination of the contract shall be subject to such notice having been given in accordance therewith; or

 

   (b)   where the wages are payable in respect of any period exceeding a day, at any time, notwithstanding anything to the contrary contained in the contract of employment, subject to notice having been given to the other party of the intention to do so.

   (2) Notwithstanding anything to the contrary contained in the contract of employment, the minimum length of any notice referred to in subsection (1)(b) shall-

 

   (a)   where the wages are payable in respect of any period exceeding a day but less than a week, be one day; or

 

   (b)   where the wages are payable in respect of any period not less than a week, be equal in length to the period:

 

         Provided that-

 

      (i)   where an employee whose wages are payable in respect of any period not less than a week but less than two weeks have been in continuous employment for two or more but less than five years, the minimum length of notice shall be two weeks;

 

      (ii)   where an employee whose wages are payable in respect of any period not less than a week but less than a month has been in continuous employment for five or more but less than 10 years, the minimum length of notice shall be one month; or

 

      (iii)   where an employee whose wages are payable in respect of any period exceeding a day has been in continuous employment for 10 or more years, the minimum length of notice shall be six weeks.

   (3) Notwithstanding subsection (2), where the contract of employment provides for a minimum length of any notice such as is referred to in subsection (1)(b) which is longer than the appropriate minimum length prescribed by subsection (2), the minimum length of any such notice shall be that for which the contract of employment provides.

   (4) Nothing in this section shall prohibit either party to a contract of employment from waiving his entitlement to notice in any particular case.

   (5) Notwithstanding anything to the contrary contained in a contract of employment, notice of intention to terminate the contract shall be in writing and shall be given on a working day at any time and, except where the wages are payable in respect of any period not exceeding a week, that day shall be included in the period of notice:

   Provided that, notwithstanding anything to the contrary contained in the contract of employment, notice of intention to terminate the contract may be given orally by either party if he is illiterate.

 

19.   Termination of contracts of employment for unspecified periods of time, normally subject to notice, without notice

   Notwithstanding section 18, either party to a contract of employment for an unspecified period of time (other than a contract of employment for a specified piece of work, without reference to time), which contract may be terminated by either party subject to notice having been given to the other party of the intention to do so, may-

 

   (a)   terminate the contract without giving such notice by paying to the other party a sum equal to the amount of basic pay which would otherwise have accrued to the employee during the minimum lawful period of such notice; and

 

   (b)   where such notice has already been given, whether the period thereof is the appropriate minimum lawful period or a longer period, terminate the contract, without waiting for the expiry of the period of notice, by paying to the other party a sum equal to the amount of basic pay which would otherwise have accrued to the employee during the balance of the period of notice.

 

20.   Termination of contracts of employment for unspecified periods of time during probationary period

   (1) In the case of a contract of employment for an unspecified period of time (other than a contract of employment for a specified piece of work, without reference to time), such period not exceeding three months in the case of unskilled employees, and twelve months in the case of skilled employees, as the contract may specify immediately after the commencement of employment under the contract may be a probationary period (hereinafter referred to as a "probationary period") if the contract so provides.

   (2) Where a contract of employment is terminated during a probationary period by either the employer or employee under section 18 or 19 by not less than 14 days' notice, the contract shall be deemed, for the purposes of this Part, to have been terminated with just cause and neither the employer nor the employee shall be required to give any reasons therefor.

   (3) Before entering into a contract of employment which is to provide for a probationary period, the prospective employer shall inform the prospective employee in writing of the length of the probationary period.

   (4) Any person who contravenes this section shall be guilty of an offence and liable to the penalties prescribed by section 151(b).

 

21.   Breaches of contracts of employment

   (1) The employer shall be deemed to be in breach of a contract of employment if he fails to pay basic pay or wages in accordance with Part VII.

   (2) The employee shall be deemed to be in breach of a contract of employment if he is absent from work without the prior consent of his employer or his employer's representative unless he has reasonable cause for such absence and, as soon as it is reasonably practicable to do so, informs his employer or his employer's representative of that cause.

 

22.   Liability following certain breaches of contracts of employment

   Subject to any agreement to the contrary, the party in breach of a contract of employment whereby or as a direct result of which employment under the contract ceases shall be liable to pay to the other party a sum equal to the amount he would have been liable to pay to the other party in order to terminate the contract in accordance with section 19(a) or (b), as is appropriate.

 

23.   Restriction of grounds on which employers may terminate contracts of employment

   Notwithstanding anything contained in a contract of employment, an employer shall not terminate the contract of employment on the ground of-

 

   (a)   the employee's membership of a registered trade union or participation in any activities connected with a registered trade union outside working hours or, with that consent of the employer, within working hours;

 

   (b)   the employee seeking office as or acting or having acted in the capacity of an employees' representative;

 

   (c)   the employee making,in good faith,a complaint or participating in proceedings against the employer involving the alleged violation of any law;

 

   (d)   the employee's race, tribe, place of origin, social origin, marital status, gender, sexual orientation, colour, creed, health status or disbility; or

 

   (e)   any other reason which does not affect the employee's ability to perform that employee's duties under the contract of employment.

 

24.   Certificates of employment

   (1) Upon the termination of a contract of employment, the employee may require his employer to deliver to him a certificate sp

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