Key Benefits:
(1) There is hereby established a board to be known as the Minimum Wages Advisory Board (in this Part referred to as "the Board").
(2) The provisions of the Third Schedule shall have effect in respect of the Board.
(3) The Minister may, by order published in the Gazette, amend the Third Schedule.
132. Duty of Minister to seek advice of Board before fixing minimum wage
(1) Where the Minister considers it necessary or expedient to fix the minimum wage for any category of employees in any trade, section of trade, industry or section of industry specified in the Fourth Schedule, he shall refer the matter to the Board and the Board shall investigate the wages in the trade, section of trade, industry or section of industry in question and make recommendations to him as to the minimum wage which should, in the Board's opinion, be payable to employees belonging to the relevant category.
(2) Nothing in this Part shall require the Minister to accept any recommendation of the Board.
(1) When considering any matter or question referred to it by the Minister under section 132 or 137, the Board shall take into account any statements which the employers, registered employers' organizations, employees or registered employees' organizations concerned may wish to make to the Board and shall, where it is reasonably practicable to do so, make arrangements for such employers, registered employers' organizations, employees or registered employees' organizations to be heard by the Board.
(2) In formulating its recommendations to the Minister, the Board shall take into account-
(a) the needs of the employees concerned and their families, taking into consideration the general level of wages in Botswana, the cost of living, any social security benefits and the relative living standards of other social groups;
(b) the desirability of eliminating discrimination between the sexes in respect of wages for equal work;
(c) economic factors, including the requirements of economic development, levels of productivity and the desirability of attaining and maintaining a high level of employment; and
(d) all other relevant matters.
(1) For the purpose of carrying out its functions under this Part, the Board may-
(a) require any employer to provide details of the actual wages paid by him to any or all of his employees during the 12 months immediately preceding the day on which the requirement is made or such shorter period as the Board may specify and to furnish evidence sufficient to satisfy the Board of the truth of the information; and
(b) specify a period of not less than 21 days immediately after the day on which such a requirement is made within which the employer shall comply with the requirement.
(2) Any employer who fails to provide or furnish any information or evidence required of him under subsection (1)(a) or who fails to provide any information so required within the relevant period specified under subsection (1)(b) shall be guilty of an offence and liable to the penalties prescribed by section 151(a).
135. Power of Minister to fix minimum wages
Having considered the recommendations of the Board, the Minister may, by order published in the Gazette, fix the minimum wage for employees of the relevant category in the trade, section of trade, industry or section of industry in question specified in the Fourth Schedule and designate the date on which the minimum wage shall come into operation.
136. Amendment of Fourth Schedule
The Minister may, by order published in the Gazette, amend the Fourth Schedule.
137. Power of Minister to adjust minimum wage
(1) Where the Minister considers it necessary or expedient to adjust or abolish the minimum wage in respect of any category of employees in any trade, section of trade, industry or section of industry specified in the Fourth Schedule by reason of changes in the cost of living as notified from time to time by the Government's Central Statistics Office or by reason of any other relevant changes, he shall refer the question of the adjustment or abolition to the Board and the Board shall investigate the question and make recommendations to him.
(2) Before referring any question of the adjustment or abolition of a minimum wage to the Board in accordance with subsection (1), the Minister shall, by notice published in the Gazette, declare his intention of so doing.
(3) Every notice such as is referred to in subsection (2) shall be published in the Gazette not less than 30 days immediately before the first meeting of the Board in respect of the question to which the notice relates.
(4) Having considered the recommendations of the Board, the Minister may, by order published in the Gazette, abolish the minimum wage in question or adjust it in such manner as he considers appropriate in all the circumstances and designate the date on which the new minimum wage shall come into operation.
138. Effect and enforcement of minimum wages order
(1) Where any contract of employment provides for the payment of a wage less than the minimum wage to an employee to whom a minimum wages order applies, the contract shall have effect as if the minimum wage were substituted therefor.
(2) Where an employer fails to pay an employee to whom a minimum wages order applies not less than the minimum wage at such times and in accordance with such conditions as may be specified in the order, he shall be guilty of an offence and liable to the penalties prescribed by section 151(d).
(3) Where proceedings are instituted against an employer in the court of a Magistrate Grade I or over in respect of an offence under subsection (2) and the employer is convicted thereof, the court may-
(a) permit evidence to be led of like offences committed by the employer during the period of two years immediately before the date of the offence of which he stands convicted; and
(b) order him to pay to the employee such sum as is found by the court to represent the difference between the amount he ought to have paid the employee by way of wages in accordance with the relevant minimum wages order during the period of two years referred to in paragraph (a) and the amount in fact paid by way of wages during that period:
Provided that this subsection shall not apply unless-
(i) the employer concerned has been given notice in writing, not less than 14 days immediately before any application is made to the court to exercise the powers conferred by this subsection, of the intention to make the application; or
(ii) the court has informed the employer concerned, not less than 14 days immediately before it commences to exercise the powers conferred by this subsection, of its intention to exercise those powers.
(4) Nothing in this section shall-
(a) derogate from any right of an employee to recover wages due to him by court proceedings; or
(b) prevent any contract of employment to which an employee to whom a minimum wages order applies is a party providing for the payment of a wage greater than the minimum wage or prevent any employer paying more than the minimum wage to such an employee.
139. Power of Commissioner to exempt infirm or handicapped person from minimum wages order
(1) Any person affected by infirmity or physical handicap to whom a minimum wages order applies or would apply in the event of his employment or the employer or prospective employer of any such person may apply in writing to the Commissioner for a permit authorizing the employment of that person for less than the minimum wage.
(2) Where an application is made under subsection (1) and the Commissioner is satisfied that the person concerned is affected by infirmity or physical handicap which renders him incapable of earning the minimum wage, he may grant the permit and shall specify therein the wage to be paid and the full name of the person concerned, subject to such conditions as the Commissioner may also specify therein.
(3) Notwithstanding the other provisions of this Part, while a permit granted under this section remains in force, the wage specified therein shall, if the conditions also specified therein, if any, are complied with, be deemed, for the purposes of this Part, to be the minimum wage payable to the person whose name is specified therein.
(4) Where any applicant for a permit under this section is aggrieved by any decision of the Commissioner to refuse to grant the permit or as to the wage or any condition specified therein, he may appeal against the Commissioner's decision to the Minister.
(5) Every appeal under this section shall be in writing and shall be delivered to the Minister not later than 30 days immediately after the day on which the decision complained of was communicated to the applicant.
(6) The Minister shall consider every appeal made to him under this section and shall-
(a) in the case of an appeal against a decision to refuse to grant a permit, either dismiss the appeal or allow the appeal, in which last case the Commissioner shall forthwith grant a permit to the applicant;
(b) in the case of an appeal against a decision as to the wage specified in the permit, either dismiss the appeal or allow the appeal, either wholly or in part, and vary the wage specified in the permit accordingly; or
(c) in the case of an appeal against a decision as to any condition specified in the permit, either dismiss the appeal or allow the appeal, either wholly or in part, and rescind the condition or vary its terms accordingly.
(7) Where an employer notifies the Commissioner in writing that he is employing or proposing to employ any person for the wage specified in a document held by that person and purporting to be a valid permit granted in respect of that person under this section, that document shall be deemed, for the purposes of this Part, to be a valid permit granted in respect of that person under this section, notwithstanding that it is not, until notice to the contrary is given to the employer by the Commissioner:
Provided that this subsection shall not apply where the employer is already employing the person concerned unless he notifies the Commissioner as herein provided within 14 days immediately after the employment commenced.
140. Duty of employer to keep certain records for enforcement of this Part
(1) Every employer of employees to whom a minimum wages order applies shall keep, in Setswana or English, such records as may be prescribed for the enforcement of this Part and shall retain them for at least five years immediately after the date of the last entry therein.
(2) Any employer who contravenes subsection (1) shall be guilty of an offence and liable to the penalties prescribed by section 151(c).
141. Duty of employer to exhibit certain notices in connection with minimum wages order
(1) Every employer shall exhibit in such manner as may be prescribed-
(a) a copy of any notice published by the Minister in the Gazette under section 132(2) or 137(2) in relation to any matter of fixing a minimum wage which may affect his employees or any of them or in relation to any question of adjusting or abolishing a minimum wage which affects his employees or any of them; and
(b) a copy of any order published by the Minister in the Gazette under section 135 or 137(4) fixing, adjusting or abolishing a minimum wage which affects his employees or any of them,
within 30 days immediately after the day on which such notice or order was published in the Gazette and shall take every other reasonable step to ensure that those employees who may be or are affected thereby, particularly those who are illiterate or unable to read English, are informed of and understand the contents thereof.
(2) Any employer who contravenes subsection (1) shall be guilty of an offence and liable to the penalties prescribed by section 151(b).
142. Regulations in relation to this Part
Regulations may be made for the better carrying into effect of the purposes and provisions of this Part.
