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Trade Disputes - Establishment Of Panel And Procedure For Settlement Of Trade Disputes Generally Ss 314

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            (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.

            (3) Where a mediator fails to mediate a dispute within the period referred to in subsection (1) or subsection (2), as the case may be, the parties to the dispute may refer the dispute to arbitration or to the Industrial Court.

            (4) Subject to any prescribed rules or guidelines published in terms of section 51, the mediator shall determine how the mediation shall be conducted, and may require further meetings to be held within the period referred to in subsection (1).

            (5) A mediator may, in dealing with a dispute assigned to him-

     (a)     determine any question concerning-

           (i)       whether a dispute has been referred in terms of section 7;

          (ii)       the date on which the dispute was referred; or

          (iii)       the jurisdiction of the mediator to mediate the dispute;

     (b)     allow an application for the condonation of a late referral, where the applicant shows good cause for such late referral;

     (c)     dismiss a referral if the referring party fails to attend a mediation meeting;

     (d)     give a default award if a party upon whom a referral has been served in terms of section 7(3) fails to attend a mediation meeting;

     (e)     reverse, on good cause-

           (i)       any dismissal of a referral, or

          (ii)       default award, contemplated under paragraphs (c) and (d) respectively;

     (f)      recommend a settlement; or

     (g)     make an advisory award if-

           (i)       the parties request it, or

          (ii)       it is in the interests of settlement to do so.

            (6) A decision made by a mediator in terms of subsection (5)(a)(i) and (ii) shall be final.

            (7) A party to a dispute may appeal to the Industrial Court in respect of a decision made pursuant to subsection (5)(a)(iii), (b) and (e).

            (8) Any statement made and any information divulged during the mediation process shall be confidential and without prejudice unless the party making the statement or divulging the information states otherwise.

            (9) A mediator shall not be a compellable witness in any legal proceedings in respect of anything said or information divulged during the mediation process relating to a dispute he mediated upon.

            (10) Subject to the provisions of subsection (10), the mediator shall issue a certificate of failure to settle if the dispute is not settled within the period contemplated under subsection (1) or (2).

            (11) The mediator may issue a certificate of failure to settle before the expiry of the period contemplated under subsection (1) or (2), to the effect that either party may refer the dispute to the Industrial Court, if the mediator is satisfied that there are no prospects of settlement at that stage of the dispute.

            (12) A mediator shall remain seized of a dispute assigned to him until it is settled and shall continue to try to settle the dispute through mediation in accordance with the guidelines published in terms of section 51.

9.       The process of arbitration

            (1) The Commissioner shall refer a trade dispute referred in terms of section 7 to arbitration where-

     (a)     the parties to the dispute have agreed to have the dispute settled by arbitration;

     (b)     the parties to the dispute are engaged in an essential service and the dispute concerns a dispute of interest; or

     (c)     the Industrial Court has directed the Commissioner to refer the dispute to arbitration.

            (2) The Commissioner shall-

     (a)     after consultation with the parties to the dispute, assign an arbitrator from the panel of arbitrators appointed in terms of section 4, to arbitrate the dispute;

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

     (c)     advise the parties to the dispute of the details contemplated under paragraphs (a) and (b).

            (3) Notwithstanding that the dispute has been mediated, if the arbitrator is of the view that there are prospects of settlement, he may attempt to resolve the dispute through mediation before commencing the arbitration hearing.

            (4) If the dispute has not been mediated, the arbitrator shall attempt to resolve the dispute through mediation before the commencement of the arbitration hearing.

            (5) Subject to any prescribed rules or guidelines published in terms of section 51, the arbitrator may conduct the arbitration in a manner that he considers appropriate, but must deal with the substantial merits of the dispute with the minimum of legal formalities.

            (6) The arbitrator shall attempt to settle a dispute referred to him for arbitration within 30 days of the dispute being referred to him.

            (7) Subject to the discretion of the arbitrator as to the appropriate form of proceedings, a party to the dispute may give evidence, call witnesses, question the witnesses of any other party and address concluding arguments.

            (8) The arbitrator shall have the power to-

     (a)     give such directions or do such things as may be necessary or expedient for the expeditious and just hearing and determination of any dispute before him;

     (b)     make an award for a specific period of time, or such other award as he considers appropriate; or

     (c)     vary or rescind an award if-

           (i)       it was erroneously made in the absence of any party affected by the award,

          (ii)       it is ambiguous or contains an error or omission, but only to the extent of that ambiguity, error or omission, or

          (iii)       it was made as a result of a mistake common to the parties to the proceedings.

            (9) Upon the conclusion of an arbitration hearing, the arbitrator shall make an award and shall, within 30 days of the hearing, give reasons for the award.

            (10) The Commissioner may, where he considers it appropriate, extend the number of days within which an award is to be made under subsection (9).

            (11) The arbitrator shall not include an order of costs in an arbitration award unless-

     (a)     the parties to the dispute agree; or

     (b)     a party or a person representing a party in the proceedings acted in a frivolous or vexatious manner-

           (i)       by proceeding with or defending the dispute in the proceedings, or

          (ii)       in the party's or person's conduct during the proceedings.

            (12) An arbitration award shall have the same force and effect as a judgement or order of the Industrial Court, and shall be enforceable in like manner as such judgment or order.

            (13) A person aggrieved by a decision of an arbitrator under this section may appeal against such decision to the Industrial Court, within 14 days of the arbitrator's decision.

            (14) An appeal referred to under subsection (13) shall lie only in respect of a decision-

     (a)     to join a party to the arbitration proceedings; or

     (b)     concerning the jurisdiction of the arbitrator to make an award.

            (15) The Judge President of the Industrial Court may, after consultation with the Minister, publish rules for the conduct of arbitrations under this Act.

10.     Representation in mediation and arbitration

            (1) In any mediation or arbitration proceedings, a party to a dispute may appear in person or be represented only by-

     (a)     a member or officer of that party's organisation;

     (b)     a co-employee, if the party is an employee; or

     (c)     a director or employee of that person, if the party is a juristic person.

            (2) Notwithstanding subsection (1), an arbitrator may permit a legal representative to represent a party to a dispute in arbitration proceedings if-

     (a)     the parties to the dispute agree; or

     (b)     at the request of a party to the dispute, the arbitrator is satisfied that-

           (i)       the dispute is of such complexity that it is appropriate to allow the party to have legal representation, and

          (ii)       the other party will not be prejudiced.

11.     Conduct of proceedings by mediator or arbitrator

            The provisions of section 19(2) and (3) shall mutatis mutandis apply to the conduct of proceedings by a mediator or arbitrator under this Act.

12.     Mediators' and arbitrators' code of ethics

            The Minister shall, after consultation with the Board, publish a code of ethics for mediators and arbitrators performing functions under this Act.

13.     Referral of disputes to Industrial Court

            Notwithstanding the provisions of sections 6, 7, 8, and 9, the Commissioner or a labour officer delegated by him may refer a trade dispute mediated upon under this Act to the Industrial Court for determination.

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

            (1) Where the Minister is satisfied that a trade dispute exists or is apprehended and where-

     (a)     subject to section 9(1)(b), the dispute involves an essential service; or

     (b)     the Minister is satisfied that the dispute has or may jeopardize the essentials of life or the livelihood of the people of Botswana or a significant section thereof or may endanger the public safety or the life of the community; or

     (c)     the dispute involves categories of officers regarded as members of management,

the Minister may, whether the dispute has or has not been referred to the Commissioner under section 7, refer the dispute to the Industrial Court.

            (2) Where the Minister decides to take steps under subsection (1), he shall forthwith serve a notice in writing of his decision on the party to the dispute.

            (3) In this section,

            "member of management" means an employee who-

     (a)     has authority, on behalf of his employer, to employ, transfer, suspend, lay off, recall, promote, terminate the employment of, reward, discipline or deal with the grievances relating to the employment of any fellow employees or effectively to recommend any such action or the manner in which such grievances ought to be dealt with, if the exercise by him of that authority is not merely of a routine or clerical nature but requires the use of his discretion;

     (b)     participates in the making of a general policy regarding relations between his employer and his fellow employees or any of them; or

     (c)     is employed in a capacity that requires him to have full knowledge of the financial position of the undertaking or enterprise in which he is employed or gives him free personal access to other confidential information relating to the conduct of his employer's business.