CHAPTER 48:02
TRADE DISPUTES

ARRANGEMENT OF SECTIONS

   SECTION

PART I
Preliminary

   1.   Short title

   2.   Interpretation

PART II
Establishment of panel and procedure for settlement of trade disputes generally

   3.   Establishment of panel of mediators and arbitrators

   4.   Removal from panel

   5.   Mediation by Commissioner

   6.   Referral of trade disputes to Commissioner

   7.   Process of mediation

   8.   Process of arbitration

   9.   Representation in mediation and arbitration

   10.   Conduct of proceedings by mediator or arbitrator

   11.   Mediators’ and arbitrators’ code of ethics

   12.   Referral of trade disputes to Industrial Court

   13.   Minister’s power to refer trade disputes to Industrial Court

PART III
Industrial Court

   14.   Continuation of Industrial Court

   15.   Appointment of judges and other staff

   16.   Oath to be taken by Industrial Court judge

   17.   Protection of judicial officers

   18.   Tenure of office of Industrial Court judge

   19.   Removal from office

   20.   Jurisdiction of Court

   21.   Review of decisions of mediators and arbitrators

   22.   Power to hear evidence

   23.   Applications to Court

   24.   Representation in Court

   25.   Proceedings in public or in private

   26.   Publication of evidence

   27.   Wrongful termination of contract or disciplinary action

   28.   Decision of Court

   29.   Variation or rescission of default judgment

   30.   Variation or rescission of orders and judgments

   31.   Interpretation of decisions

   32.   Costs

   33.   Remuneration of Court

PART IV
Settlement of claims that recognised terms and conditions of employment are not being observed

   34.   Claims that terms and conditions of employment are not being observed

   35.   Recognition at workplace

   36.   Withdrawal of recognition at workplace

   37.   Recognition at level of industry

   38.   Withdrawal of recognition at level of industry

   39.   Joint industrial councils

PART V
Collective labour agreements

   40.   Collective labour agreements binding on parties thereto

   41.   Registration of collective labour agreements

PART VI
Unlawful industrial action and enforcement of collective labour agreements and decisions of Industrial Court

   42.   Right to strike and lockout

   43.   Regulation of strikes and lockouts

   44.   Strikes and lockouts in compliance with this Part

   45.   Prohibition of certain strikes and lockouts

PART VII
Protection of essential services, life and property

   46.   Essential services

   47.   Prohibition of strike or lockout in essential services

   48.   Breaches of contracts affecting essential services

   49.   Notices of section 48 to be displayed

   50.   Dispute resolution in essential services

PART VIII
Miscellaneous

   51.   Consent of Director of Public Prosecutions for prosecutions

   52.   Regulations

   53.   Codes and guidelines

   54.   Statistics and reports on trade dispute prevention and resolution

   55.   Delegation of functions

   56.   Repeal of Cap. 48:02

   57.   Savings and transitional provisions

      Schedule

Act 19, 1982,
S.I. 58, 1983,
S.I. 4, 1986,
S.I. 33, 1989,
Act 23, 1992,
Act 18, 1995,
S.I. 50, 1995,
Act 14, 1997,
Act 22, 1997,
Act 24, 1998,
S.I. 39, 1999,
S.I. 34, 2001,
Act 15, 2004,
Act 3, 2005,
Act 14, 2005,
S.I. 92, 2010,
S.I. 49, 2011,
S.I. 56, 2011,
S.I. 57, 2011,
Act 6, 2016,
S.I. 116, 2016.

   An Act to provide for the settlement of trade disputes by the Commissioner of Labour, mediators and arbitrators; for the establishment of the Industrial Court as a court of law and equity; for the recognition of trade unions at the workplace and industry level; for the determination of industrial action, protection of essential services, life and property during industrial action; and for matters incidental or connected therewith.

[Date of Commencement: 1st November, 2016]

PART I
Preliminary (ss 1-2)

1.   Short title

   This Act may be cited as the Trade Disputes Act.

2.   Interpretation

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

   "action short of a strike" means any method of working (other than the method of working commonly known as working to rule) undertaken by a body of employees in any trade or industry acting in combination or under a common understanding, which method of working slows down normal production or the execution of the normal function under their contracts of employment, of the employees undertaking such method of working;

   "arbitration" means dispute resolution involving one or more neutral third parties agreed to by the disputing parties and whose decision is binding on such parties;

   "Board" means the Labour Advisory Board established under the Employment Act;

   "collective labour agreement" means-

   (a)   a written agreement relating to the terms and conditions of employment concluded between one or more organisations; or

   (b)   where no organisation exists, the representatives of the employees concerned duly elected and authorised by them and one or more employers or an organisation;

   "Commissioner" means the person lawfully performing the functions of the public office of Commissioner of Labour;

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

   "Court" means the Industrial Court as continued under section 14;

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

   "decision" in relation to the Industrial Court, includes an order and an award;

   "dispute of interest" means a dispute concerning the creation of new terms and conditions of employment or the variation of existing terms and conditions of employment;

   "dispute of right" means a dispute concerning an alleged infringement of a right flowing from any written law, collective agreements or individual employment contracts, or the conferment of a benefit to which the claimant is legally entitled;

   "employee" means any person who has entered into a contract of employment for the hire of his or her labour:

   Provided that the expression does not include members of the-

      (i)   Botswana Defence Force,

      (ii)   Botswana Police Service,

      (iii)   Prison Service,

      (iv)   Directorate of Intelligence and Security, and

      (v)   Directorate on Corruption and Economic Crime;

   "employer" means any person who has entered into a contract of employment to hire the labour of any person and includes-

   (a)   the Government in respect of all its officers except members of the-

      (i)   Botswana Defence Force,

      (ii)   Botswana Police Service,

      (iii)   Prison Service,

      (iv)   Directorate of Intelligence and Security, and

      (v)   Directorate on Corruption and Economic Crime;

   (b)   a public authority; and

   (c)   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;

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

   "essential service" means a service designated as essential under section 46;

   "industrial action" means a strike, lockout or action short of a strike, in furtherance of a trade dispute;

   "joint industrial council" means a body constituted for a trade or industry in accordance with the provisions of section 39, for the purpose of negotiating terms and conditions of employment for all employees in that trade or industry;

   "labour officer" means a person appointed as a labour officer under the Employment Act;

   "lockout" means the closing of a place of employment by an employer in any trade or industry or the suspension of work by such an employer or the refusal by such an employer to continue to employ any number of his or her employees in that trade or industry;

   "mediation" includes facilitation, conducting a fact finding exercise, and the making of an advisory award;

   "officer", where used with reference to an organisation, includes any member of the executive committee thereof;

   "organisation" means a trade union or an employers’ organisation registered under the Trade Unions and Employers’ Organizations Act;

   "public authority" includes a local authority and a land board;

   "Registrar" means the Registrar of the Industrial Court and includes a Deputy Registrar and Assistant Registrar appointed under section 15(8);

   "serious misconduct" has the same meaning assigned to it under the Employment Act;

   "strike" means the cessation of work by a body of employees in any trade or industry acting in combination or under a common understanding or a concerted refusal or a refusal under a common understanding by such body of employees to continue to work;

   "trade" includes-

   (a)   an industry;

   (b)   any business, trade, manufacture, undertaking or calling of employers;

   (c)   any calling, service, employment, handicraft or industrial occupation or vocation of employees;

   (d)   a branch or section of any trade or industry or a group of trades or industries; and

   (e)   the carrying on of its activities by the Government or any public authority;

   "trade dispute" includes-

   (a)   an alleged dispute;

   (b)   a dispute between unions;

   (c)   a grievance; or

   (d)   any dispute over-

      (i)   the application or the interpretation of any law relating to employment,

      (ii)   the terms and conditions of employment of any employees or any class of employees, or the physical conditions under which such employee or class of employees may be required to work,

      (iii)   the entitlement of any person or group of persons to any benefit under an existing collective agreement,

      (iv)   the existence or non-existence of any collective agreement,

      (v)   the dismissal, employment, suspension from employment, retrenchment, re-employment or reinstatement of any person or group of persons,

      (vi)   the recognition or non-recognition of an organisation seeking to represent employees in the determination of their terms and conditions of employment, or

      (vii)   whether or not a dispute does exist;

   "trade union" includes, for purposes of this Act, unions acting jointly and a federation of trade unions registered under the Trade Unions and Employers’ Organizations Act;

   "unlawful industrial action" means any industrial action declared by this Act or by the Industrial Court under this Act, to be unlawful, or any lockout, strike or action short of a strike deemed to be unlawful industrial action by virtue of section 45; and

   "working to rule" means an industrial action where workers do not withdraw their labour but rather stay in their jobs and drastically slow down the operations by punctilious adherence to a narrow interpretation of the work rules included in the collective bargaining agreement.

   (2) Any reference in this Act to employees shall not, unless the context otherwise requires, include a reference to a sole employee.

PART II
Establishment of panel and procedure for settlement of trade disputes generally (ss 3-13)

3.   Establishment of panel of mediators and arbitrators

   (1) There shall be a panel of mediators and arbitrators with the Commissioner as the administrator of the panel.

   (2) The Minister shall, after consultation with the Board-

   (a)   appoint to the panel, full time and part time mediators and arbitrators with expertise in labour law, labour relations or other specialist areas of expertise; and

   (b)   determine the terms, conditions and periods of the appointment of the mediators and arbitrators to the panel.

   (3) The function of the mediators and arbitrators in the panel shall be to preside over the trade disputes referred to any mediator or arbitrator from the panel, and to perform duties assigned to them, in accordance with this Act.

   (4) The mediators and arbitrators shall, in the discharge of their functions, be subject only to the direction and control of the Commissioner.

   (5) A person who obstructs or improperly influences a mediator or arbitrator in the performance of his or her duties under this Act, or attempts to do so, commits an offence and is liable to a fine of P1 000 or to imprisonment for six months, or to both.

4.   Removal from panel

   The Minister may, after consultation with the Board, remove a mediator or arbitrator from the panel on the following grounds-

   (a)   inability to perform the functions of his or her office, whether arising from infirmity of body or mind, or from any other cause; or

   (b)   serious misconduct by the mediator or arbitrator.

5.   Mediation by Commissioner

   (1) In this section "apprehended trade dispute" includes a trade dispute that exists but has not been referred to the Commissioner in terms of section 6.

   (2) Where the Commissioner is satisfied that a trade dispute is apprehended, the Commissioner may mediate between the parties to the apprehended dispute if-

   (a)   the parties invite the Commissioner to intervene; or

   (b)   the Commissioner is satisfied that the apprehended trade dispute may cause harm to employees, employers, the community or property.

   (3) The Commissioner may delegate a mediator, from the panel referred to under section 3, to mediate between the parties contemplated under subsection (2).

   (4) Mediation under this section shall be directed towards-

   (a)   helping the parties to the dispute to reach a settlement of the dispute principally by their own efforts; and

   (b)   helping the parties on the incorporation of the terms of the settlement into an agreement or collective agreement.

   (5) The Commissioner may, in order to promote the prevention and resolution of trade disputes-

   (a)   provide organisations with advice and training relating to, inter alia-

      (i)   designing and establishing in-house procedures for the prevention of and resolution of trade disputes,

      (ii)   the recognition of trade unions,

      (iii)   the design and content of collective agreements, and

      (iv)   codes and procedures, including disciplinary and termination of employment procedures; or

   (b)   assign a labour officer, or a mediator from the panel, to provide the advice or training under paragraph (a).

6.   Referral of trade disputes to Commissioner

   (1) A party to a trade dispute may refer the dispute, in the prescribed form, to-

   (a)   the Commissioner; or

   (b)   a labour officer delegated by the Commissioner.

   (2) Any party referring a trade dispute under subsection (1) concerning termination of employment shall refer the trade dispute within 30 days of the date of such termination.

   (3) Any party referring a trade dispute shall satisfy the Commissioner in writing that a copy of the referral has been served on the other party to the trade dispute, unless the Commissioner is satisfied that it was not possible to serve the referral on that other party.

   (4) Notwithstanding subsections (1) and (2), a party who cannot read or write may refer a trade dispute concerning a grievance or a termination of employment orally, and the Commissioner or a labour officer delegated to do so shall complete the prescribed form on the party’s behalf.

   (5) The Commissioner or the labour officer delegated to complete a prescribed form on behalf of an employee under subsection (4), shall, upon receiving a matter referred in accordance with subsection (1)-

   (a)   assign, immediately, a mediator from the panel referred to under section 3 to resolve the trade dispute through mediation;

   (b)   determine the venue, date and time of the first mediation hearing; and

   (c)   inform the parties to the trade dispute, in writing, of the details contemplated under paragraphs (a) and (b).

   (6) Notwithstanding subsection (5), the Commissioner shall refer a trade dispute directly to arbitration if the dispute is one that is required to be determined by arbitration by-

   (a)   a collective labour agreement;

   (b)   any other agreement; or

   (c)   this Act.

   (7) Any party referring a dispute concerning the payment of an entitlement in terms of a contract of employment shall refer the trade dispute within 30 days or a reasonable period from the date when non-payment of the entitlement first came to his or her knowledge or from the date when the employee’s right to payment of the entitlement accrued, whichever is the earlier date.

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