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.   Composition of panel

   5.   Removal from panel

   6.   Mediation by Commissioner

   7.   Referral of disputes to Commissioner

   8.   The process of mediation

   9.   The process of arbitration

   10.   Representation in mediation and arbitration

   11.   Conduct of proceedings by mediator or arbitrator

   12.   Mediators' and arbitrators' code of ethics

   13.   Referral of disputes to Industrial Court

   14.   Minister's power to refer disputes to Industrial Court

PART III
Industrial Court

   15.   Establishment of Industrial Court

   16.   Appointment of judges and other staff

   16A.   Oath to be taken by Industrial Court Judge

   16B.   Tenure of office of Industrial Court Judge

   17.   Removal from office

   18.   Jurisdiction of Court

   19.   Power to hear evidence

   20.   Applications to Court

   21.   Representation in Court

   22.   Proceedings in public or in private

   23.   Publication of evidence

   24.   Wrongful termination of contract or disciplinary action

   25.   Decision of the Court

   26.   Rescission or variation of default judgment

   27.   Variation or rescission of orders and judgments

   28.   Interpretation of decisions

   29.   Costs

   30.   Remuneration of Court

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

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

   32.   Recognition at the workplace

   33.   Withdrawal of recognition at the workplace

   34.   Recognition at the level of industry

   35.   Withdrawal of recognition at level of industry

   36.   Joint industrial councils

PART V
Collective Labour Agreements

   37.   Collective labour agreements binding on parties thereto

   38.   Registration of collective labour agreements

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

   39.   Right to strike and lockout

   40.   Regulation of strikes and lockouts

   41.   Strikes and lockouts in compliance with this Part

   42.   Prohibition of certain strikes and lockouts

PART VII
Protection of essential services, life and property

   43.   Breaches of contracts affecting essential services

   44.   Notices of section 43 and of Schedule to be displayed

   45.   Industrial action in essential services

   46.   Additional ballots in respect of secret ballots of employees

   47.   Contravention of section 43 not unlawful in certain circumstances

PART VIII
Miscellaneous

   48.   Consent of Director of Public Prosecutions for prosecutions

   49.   Amendment of Schedule

   50.   Regulations

   51.   Codes and guidelines

   52.   Statistics and reports on dispute prevention and resolution

   53.   Delegation of functions

   54.   Repeal of Cap. 48:02

   55.   Savings and transitional

      Schedule 1

      Schedule 2

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.

An Act to re-enact, with amendments, the Trade Disputes Act.

[Date of Commencement: 23rd April, 2004]

PART I
Preliminary (ss 1-2)

1.   Short title

   This Act may be cited as the Trade Disputes Act.

2.   Interpretation

   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 section 148 of the Employment Act;

   "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 authorised by them and one or more employers or registered employers' organizations;

   "Commissioner" means the person holding, acting in or lawfully performing the functions of the public office of Commissioner of Labour;

   "contract of employment" means an agreement, whether oral in writing, express 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 and includes a contract of apprenticeship and an indenture to learn;

   "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 statutory 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 labour:

   Provided that the expression does not include members of the-

   (i)   Botswana Defence Force,

   (ii)   Botswana Police Service,

   (iii)   Local Police Force, and

   (iv)   Prison Service;

   "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 of its officers except members of the-

      (i)   Botswana Defence Force,

      (ii)   Botswana Police Service,

      (iii)   Local Police Force, and

      (iv)   Prison Service;

   (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 any of the services specified in the Schedule;

   "industrial action" means a lock-out, strike or action short of a strike, in furtherance of a trade dispute;

   "joint industrial council" means a body constituted for an industry in accordance with the provisions of section 36, for the purpose of negotiating terms and conditions of employment for all employees in that industry;

   "labour officer" means any person appointed 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 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 organization, includes any member of the executive committee thereof;

   "organization" means a trade union or other organization registered under the Trade Unions and Employers' Organizations Act;

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

   "secret ballot" means a secret ballot referred to in section 46(1);

   "serious misconduct" has the meaning assigned to it under section 26 of 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 dispute" includes-

   (a)   an alleged dispute;

   (b)   a dispute between unions;

   (c)   a grievance;

   (d)   a dispute of interest; or

   (e)   any dispute over-

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

      (ii)   the terms and conditions of employment of any employee 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 organization seeking to represent employees in the determination of their terms and conditions of employment; or

      (vii)   whether or not a dispute does exist;

   "trade or industry" includes-

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

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

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

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

   "trade union" means a trade union registered under the Trade Unions and Employers' Organizations Act; and

   "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 42.

   (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 3-14)

3.   Establishment of panel of mediators and arbitrators

   (1) There is hereby established a panel of mediators and arbitrators with the Commissioner as the chairman of the panel.

   (2) Appointment to the panel shall be on such terms and conditions and for such period as may be determined by the Minister.

   (3) The Minister may appoint to the panel, mediators and arbitrators with expertise in labour law or labour relations or other specialist areas of expertise.

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

   (5) A person who obstructs or improperly influences a mediator or arbitrator in the performance of his 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.   Composition of panel

   The panel shall comprise such number of full time and part time mediators and arbitrators as the Minister may, after consultation with the Board, appoint.

5.   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 office, whether arising from infirmity of body or mind, or from any other cause; or

   (b)   serious misconduct by the mediator or arbitrator.

6.   Mediation by Commissioner

   (1) In this section-

   "apprehended trade dispute" includes a dispute that exists but has not been referred to the Commissioner in terms of section 7.

   (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 4 to mediate between the parties contemplated under subsection (2).

   (4) Mediation under this section shall be directed towards helping the parties to the dispute to reach a settlement of the dispute principally by their own efforts and, if there is a settlement, to advise them on the incorporation of the terms of the settlement into an agreement or collective agreement.

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

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

      (i)   designing and establishing in-house procedures for the prevention and resolution of 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 mediator from the panel to provide the advice or training.

7.   Referral of 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) An employee referring a dispute concerning termination of employment shall refer the dispute within 30 days of the date of such termination.

   (3) Any party referring a dispute shall satisfy the Commissioner, in writing, that a copy of the referral has been served on the other party to the 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), an employee who cannot read or write may refer a 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 employee's behalf.

   (5) The Commissioner or the labour officer delegated to do so, shall, upon receiving a matter referred in accordance with subsection (1)-

   (a)   forthwith assign a mediator from the panel referred to under section 4 to attempt to resolve the dispute through mediation;

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

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

   (6) Notwithstanding subsection (5), the Commissioner may refer a dispute directly to arbitration if the dispute is one that is required by an agreement or by this Act to be determined by arbitration.

8.   The process of mediation

   (1) Subject to subsection (2), a mediator shall attempt to resolve a dispute referred to him, within 30 days of the date the dispute was received by the Commissioner or labour officer delegated in terms of section 7.

   (2) The period referred to in subsection (1) may be extended by-

   (a)   agreement between the parties to the dispute; or

   (b)   a collective labour agreement.

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