Published: 2004-04-23
Key Benefits:
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]
This Act may be cited as the Trade Disputes Act.
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.
