Key Benefits:
This Part shall apply in addition to Part III to every contract of employment entered into by an employee in consequence of his recruitment and which-
(a) relates to work outside Botswana; or
(b) falls into a category of contracts prescribed by the Minister for the purposes of this Part.
40. Contracts to be in writing
(1) Every contract of employment to which this Part applies shall be in writing and the employee shall indicate his consent to such contract either by signing the same or affixing thereto the impression of his thumb or finger.
(2) If a contract of employment to which this Part applies is not made in writing it shall not be enforceable except during the period of one month immediately after the making thereof:
Provided that, where a note or memorandum in writing is made setting out the terms of the contract of employment and a party to the contract has indicated his consent thereto, prior to the expiry of the period for which the contract was made, the contract shall be enforceable against that party notwithstanding the expiry of the period of one month immediately after the making thereof and the note or memorandum may be presented for attestation to an attesting officer.
(3) If a contract of employment to which this Part applies is not made in writing, the employee may apply to the Commissioner for the cancellation of the contract.
(4) Where, following an application to him under subsection (3), the Commissioner is satisfied that the omission to make the contract in writing was due to the wilful act or the negligence of the employer, he may order the cancellation of the contract and thereupon the contract shall cease to be enforceable against the employee notwithstanding that the period of one month immediately after the making thereof has not expired.
(5) Where the omission to make the contract of employment in writing was due to the wilful act or the negligence of the employer-
(a) the employer shall be liable in damages for any loss occasioned to the employee by virtue of the contract having been made; and
(b) the employer shall be guilty of an offence and liable to the penalties prescribed by section 151(b).
41. Family not bound by contract
No contract of employment to which this Part applies shall be binding on the family of an employee unless it contains an express provision to that effect.
42. Responsibility of employer
The employer shall be responsible for the performance of any contract of employment to which this Part applies made by any person acting on his behalf.
43. Contents of every contract
Every contract of employment to which this Part applies shall contain in clear and unambiguous terms all which may be necessary to define the rights and obligations of the parties thereto and, without prejudice to the generality of the foregoing, shall in all cases include the following particulars-
(a) the names of the employee, the place of engagement, the place of recruitment and any other details necessary for his identification;
(b) the names and addresses of the next-of-kin of the employee;
(c) the name of the employer or group of employers and, where appropriate, the name of the undertaking and the place of employment;
(d) the nature of the employment;
(e) the duration of the employment and the method of calculating that duration;
(f) the appropriate period of notice to be given by the party wishing to terminate the contract of employment;
(g) the wages and method of calculation thereof, the manner and periodicity of payment of wages, the advances of wages, if any, and the manner of repayment of any such advances;
(h) the measures to be taken to provide for the welfare of the employee and any members of his family who may accompany him under the terms of the contract of employment;
(i) the conditions of repatriation; and
(j) any special conditions of the contract of employment.
44. Attestation of contracts required
(1) Every contract of employment to which this Part applies shall be presented for attestation to an attesting officer.
(2) Before attesting any contract of employment, the attesting officer shall-
(a) ascertain that the employee has freely consented to the contract of employment and that his consent has not been obtained by coercion or undue influence or as the result of misrepresentation or mistake;
(b) satisfy himself that-
(i) the contract of employment is in due legal form;
(ii) the terms of the contract of employment are in accordance with the requirements of this Act;
(iii) the employee has fully understood the terms of the contract of employment before signing it or otherwise indicating his assent;
(iv) the provisions relating to medical examination contained in this Part have been complied with; and
(v) the employee declares himself not bound by any previous engagement; and
(c) where the contract of employment contains provisions for wages to be deposited, satisfy himself that the employee has specifically consented thereto by endorsement of the relevant provisions and that the consent thereto of the Commissioner has been obtained in accordance with this Part.
(3) An attesting officer may refuse to attest any contract of employment in respect of which he is not satisfied in regard to any of the matters specified in subsection (2) and any contract of employment which an attesting officer has refused to attest shall have no further validity.
(4) A contract of employment to which this Part applies which has not been attested shall not be enforceable except during the period of one month immediately after the making thereof but either of the parties shall be entitled to have it presented for attestation at any time prior to the expiry of the period for which it was made.
(5) If a contract of employment to which this Part applies is not presented for attestation to an attesting officer, the employer may apply to the Commissioner for the cancellation of the contract.
(6) Where, following an application to him under subsection (5), the Commissioner is satisfied that the omission to present the contract of employment for attestation was due to the wilful act or the negligence of the employer, he may order the cancellation of the contract and thereupon the contract shall cease to be enforceable against the employee notwithstanding that the period of one month immediately after the making thereof has not expired.
(7) Where the omission to present the contract of employment for attestation was due to the wilful act or the negligence of the employer-
(a) the employer shall be liable in damages for any loss occasioned to the employee by virtue of the contract having been made; and
(b) the employer shall be guilty of an offence and liable to the penalties prescribed by section 151(b).
(8) Three copies of every contract of employment attested under this Act shall be attested together with the original; one copy shall be delivered to the employer, one copy to the employee and one to the labour officer of the district of employment or, where the place of employment is outside Botswana, to the appropriate government official in the district within which the place of employment is located; the original of every attested contract of employment shall be deposited with and preserved by the attesting officer.
(9) There shall be paid to the attesting officer by the employer or the recruiter, as the case may be, in respect of each contract of employment attested by him such fee as may be prescribed.
(1) Subject to subsection (3), every employee who enters into a contract of employment to which this Part applies shall be examined by a medical officer.
(2) Except in exceptional circumstances, the employees shall be medically examined and a medical certificate issued before the attestation of the contract of employment.
(3) Where an employee is not medically examined before the attestation of the contract of employment, the attesting officer who attests the contract shall endorse the contract to that effect and the employee shall be medically examined within seven days immediately after his arrival at the place of employment and a copy of the medical certificate relating thereto shall be sent forthwith by the employer to the attesting officer concerned who shall attach it to the copy of the relevant contract of employment deposited with him.
(4) The Minister may, by order published in the Gazette, exempt from the requirement of medical examination employees entering into contracts of employment for-
(a) employment in agricultural undertakings not employing more than a limited number of persons, which limit shall be specified in the order; or
(b) employment in the vicinity of the employees' homes-
(i) in agricultural work; or
(ii) in non-agricultural work which the Minister is satisfied is not of a dangerous character or likely to be injurious to the health of the employees.
(5) There shall be paid to a medical officer by the employer or the recruiter, as the case may be, in respect of each employee examined by him under this section such fee as may be prescribed.
(6) If any omission to present the employee for medical examination was due to the wilful act or the negligence of the employer or the employer's representative, the employer or his representative, as the case may be, shall be guilty of an offence and liable to the penalties prescribed by section 151(b).
(1) A child or young person shall not be capable of entering into a contract of employment to which this Part applies:
Provided that a young person may enter into such a contract of employment in any occupation approved by the Minister, by order published in the Gazette, as not being injurious to the moral and physical development of non-adults.
(2) This section shall apply notwithstanding anything contained in Parts XI and XII relating to the employment of children and young persons and females.
48. Transfer to other employment
(1) The transfer of any contract of employment to which this Part applies from one employer to another shall be subject to the consent of the employee and the endorsement of the transfer upon the contract by a labour officer.
(2) Before endorsing the transfer upon the contract of employment under this section, the labour officer concerned shall satisfy himself-
(a) of the matters prescribed by section 44(2)(b); and
(b) that the employee has freely consented to the transfer and that his consent has not been obtained by coercion or undue influence or as the result of misrepresentation or mistake.
49. Termination of contract in certain circumstances
(1) If the employer is unable to fulfil a contract of employment to which this Part applies or if owing to sickness or accident the employee is unable to fulfil such a contract, the contract may be terminated, subject to conditions safeguarding the right of the employee to any wages earned, any compensation due to him in respect of sickness or accident and any right to repatriation.
(2) A contract of employment to which this Part applies may be terminated by agreement between the parties-
(a) subject to conditions safeguarding the employee from the loss of his right to repatriation unless the agreement for the termination of the contract of employment otherwise provides;
(b) where the employee's consent to the agreement has not been obtained by coercion or undue influence or as the result of misrepresentation or mistake; and
(c) subject to the settlement of all monetary liabilities between the parties have been settled.
The maximum period of employment outside Botswana which may be agreed upon in a contract of employment to which this Part applies shall be two years.
51. Foreign contracts of employment and contracts of employment made abroad
(1) Where a contract of employment made within Botswana relates to employment in another country (in this section referred to as "the country of employment"), this Part shall apply in the following manner-
(a) the attestation required under section 44 shall take place before the employee leaves Botswana;
(b) the copy of the contract of employment required by section 44(8) to be delivered to the appropriate government official in the district within which the place of employment is located shall be so delivered by sending it to the government of the country of employment for transmission to the appropriate official;
(c) the medical examination required under section 46 shall take place at the latest at the time and place of the departure of the employee from Botswana:
Provided that the Minister may, by direction under his hand, waive the operation of this paragraph where he is satisfied that-
(i) in all the circumstances of the case, it is not reasonably practicable for the employee to be medically examined in Botswana;
(ii) the employee will be medically examined before he commences work in accordance with his contract of employment; and
(iii) the employee, if found unfit to work as a result of the medical examination, will forthwith be repatriated to his place of recruitment;
(d) without prejudice to section 47, a person whose age, as determined by a medical officer, is less than the minimum age of capacity for entering into a contract of employment of the kind in question prescribed by the law of the country of employment shall not be capable of entering into the contract of employment;
(e) the Commissioner shall co-operate with the appropriate authority of the country of employment to ensure the application of section 34(2); and
(f) the period of employment stipulated in any re-engagement contract of employment shall not exceed nine months or the maximum period prescribed by the law of the country of employment if it is less than nine months.
(2) Where a contract of employment to which this Part applies is made within another country (in this section referred to as "the country of origin") and relates to employment in Botswana, this Part shall apply in the following manner-
(a) the endorsement of a transfer as required by section 48 shall be made by an attesting officer in Botswana;
(b) the conditions under which the contract is subject to termination shall be determined by the provisions of this Act;
(c) if the employer fails to fulfil his obligations in respect of repatriation, those obligations shall be discharged by the Commissioner who may recover from the employer any sums expended for that purpose by civil suit;
(d) the authority which may exempt the employer from liability for repatriation expenses shall be the Commissioner;
(e) the Commissioner shall co-operate with the appropriate authority of the country of origin to ensure the application of section 34(2); and
(f) the period of employment stipulated in any re-engagement contract of employment shall not exceed nine months or the maximum period prescribed by the law of the country of origin if it is less than nine months.
(3) Where the Contracts of Employment (Indigenous Workers) Convention, 1939, and the Contracts of Employment (Indigenous Workers) Convention, 1947, (in this section referred to as "the Convention"), are not in force for either the country of origin or the country of employment, subsections (1) and (2) shall apply subject to the following provisions-
(a) where the Convention is not in force for the country of employment, the attesting officer of Botswana shall not attest the contract of employment unless he is satisfied that the employee will be entitled in the country of employment, either by virtue of the law of that country or by virtue of the terms of the contract of employment, to the rights and protection provided by sections 17, 32, 33, 34 and 48; and
(b) where the Convention is not in force in the country of origin-
(i) the attestation of the contract of employment required by section 44 shall take place before an attesting officer of Botswana as soon as is reasonably practicable after the employee enters Botswana;
(ii) section 44(8) shall apply; and
(iii) the medical examination required by section 46 shall take place as soon as is reasonably practicable after the employee enters Botswana,
unless the attesting officer of Botswana is satisfied that the matters to which subparagraphs (i), (ii) and (iii) relate have in fact been dealt with in accordance with the Convention by the appropriate authority of the country of origin.
(4) The Government may, whenever it considers it to be necessary or desirable, enter into agreements with the governments of other countries for the purpose of regulating matters of common concern in connection with the application of the Convention and may in any such agreement derogate from the provisions of subsections (1) and (2) in respect of contracts of employment made in one country party to the agreement for employment in another such country:
Provided that, before any such agreement is entered into by the Government, the Minister shall consult the appropriate registered employers' organization and the appropriate federation of registered employees' organizations and advise the Government accordingly.
52. Offence to induce persons to proceed abroad under informal contract
Any person who-
(a) induces or attempts to induce another person to proceed beyond Botswana with a view to being employed or, if that other person is already an employee, continuing his employment outside Botswana without a contract of employment made and dealt with in accordance with this Act or otherwise than in accordance with this Act; or
(b) knowingly aids in the engagement or transfer of any person so induced by forwarding or conveying him or by advancing money or by any other means whatsoever,
shall be guilty of an offence and liable to the penalties prescribed by section 151(c).
