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Labour Day: Is there reason to celebrate?

Publishing Date : 06 May, 2015

Ndulamo Anthony Morima

Yesterday was International Labour Day. As thousands of workers celebrate the day every year, the question that continues to linger in my mind is whether or not Botswana workers have reason to celebrate. I attempt to answer this question by considering Botswana’s labour law framework, mediation and arbitration, access to the courts, judicial independence, collective bargaining, gender equity and selected labour law provisions.

That Botswana has a progressive labour legal framework in terms of the Employment Act, the Public Service Act, the Trade Disputes Act and the Workmen’s Compensation Act is commendable. Equally commendable is the fact that there is a Commissioner of Labour & Social Security (hereafter referred to as the Commissioner) whose mandate is to, after labour disputes are referred to him or her in terms of section 7 of the Trade Disputes Act, 2003, facilitate mediation and/or arbitration. The Commissioner, who acts through delegated labour officers, also conducts workplace inspections to ensure compliance with the labour law.

This is, however, negated by the fact that the mediation process has no teeth since mediators cannot make any decision in relation to the merits of the dispute. Consequently, some employers just attend mediation hearings for the sake of it. After all, they know that over and above the thirty days that the dispute should have been mediated as provided in section 8 of the Trade Disputes Act, 2003, they, because of thousands of pending cases, have an average of two (2) years before the matter can be heared at the Industrial Court.

This delay is an injustice to employees since justice delayed is justice denied. In fact, there are employers who knowingly commit such labour relations violations as unfair dismissals and unlawful withholding of wages and boastfully tell the employees that they will only pay them when the matter is just about to be heared at the Industrial Court. Many cases remain pending before the Industrial Court only to be postponed because the employer has, for two (2) years, failed and/or neglected to file a Statement of Defence.

This notwithstanding, government needs to be commended for establishing the Industrial Court to deal specifically with labour disputes. Such disputes could be those referred to it in terms of section 20(1) and (2) of the Trade Disputes Act, 2003 following mediation or arbitration by the Commissioner. It could also be those where an employee or former employee approaches the Industrial Court directly on urgency in terms of section 20 (3) of the Trade Disputes Act, 2003.

The existence of the Industrial Court, which is a court of law and equity, is of assistance to workers because unlike the High Court, the Industrial Court emphasizes equitable settlement of trade disputes and does not focus on technicalities which can disadvantage an employee facing the might of the employer who would invariably be represented by an attorney. Section 15(2) of the Trade Disputes Act, 2003 states that the functions of the Industrial Court are to (a) settle trade disputes; and (b) further, secure and maintain good industrial relations in Botswana.

That parties to a trade dispute are, in terms of section 21 of the Trade Disputes Act, 2003, permitted to be represented by an attorney or any other person so authorized by the party is commendable. This allows workers, who usually do not have enough money to engage attorneys, to be represented by any person who can assist their case. In that regard, workers are often represented by officials from their trade unions, co-employees or labour consultants at no or affordable fees.

This delay often works against workers because chances of an order of reinstatement being granted are diminished by such passage of time. Also, after such passage of time, even if a worker wins the case, it is sometimes difficult to obtain payment because the employer’s company has ceased operating or its financial position has diminished so much that enforcement of the judgment debt is almost impossible.

The other eye sore on protection of Botswana’s workers’ rights is the lack of or perceived lack of independence of the judges of the Industrial Court. Because in terms of section 16(1) of the Trade Disputes Act, 2003 judges of the Industrial Court are appointed by the President without advise from the Judicial Service Commission (JSC) as is the case with judges of the High Court, there are fears that the President may appoint judges who are sympathetic to government, thereby prejudicing public sector employees who appear before such judges.

Not only that. Section 16(4) of the Trade Disputes Act, 2003 provides that “a judge of the Industrial Court who is not a citizen of Botswana or appointed on permanent and pensionable terms may be appointed on contract and shall be eligible for reappointment”. This lack of security of tenure is a threat to the independence of Industrial Court judges. In an effort to secure reappointment, some judges may give pro-government judgments, something that will be prejudicial to the workers, especially within the public sector.

The provision, at section 16 B of the Trade Disputes Act, 2003, also threatens the independence of Industrial Court judges to the extent it says “An Industrial Court judge shall vacate office on attaining the age of 70 years: provided that the President may permit an Industrial Court judge who has attained the age of 70 years to continue in office for such period as may be necessary to enable the Industrial Court judge to deliver judgment or to do any other thing in relation to proceedings that were commenced before him before he attained that age”. Such extension of service beyond retirement may be used to retain judges who are sympathetic to government.

Another progressive step in Botswana’s labour relations is that there is recognition for trade union representation of workers and collective bargaining in terms of the Trade Disputes Act, 2003, the Trade Unions and Employers’ Organizations Act, CAP.48:01 and the Public Service Act, 2008. That the Public Service Act, 2008 extended the right to unionize to public servants is commendable. Prior to that public servants could only belong to such associations as Botswana Civil Servants Association (BCSA), the now Botswana Public Employees Union (BOPEU).

The main down side of the Public Service Act, 2008 is that in some instances it makes a blanket application of terms and conditions with little regard for varying professions. For example, by its very nature teaching cannot have the same hours of work and leave and overtime conditions as other public service professions. It is this blanket approach which causes regular conflict between the Directorate on Public Service Management (DPSM) and teacher unions. It is this unnecessary conflict which often derails the work of the Public Service Bargaining Council.

Permission of unionization within the public service is, however, negated by the fact that such public servants as police officers, soldiers and prison wardens are not allowed to unionize. This exclusion has no basis because in other democracies e.g. South Africa such public servants have the right to unionize which has only served to enhance labour relations. The only justifiable limitation that the state can impose is declaring such employees as essential services which would only affect their right to strike.  

Botswana deserves commendation for amending section 27 of the Employment Act CAP. 47:01. Before the amendment, many employers used to terminate an employee’s contract of employment just before the 60th month in order to avoid paying severance benefit. As a result of the amendment, an employee is now entitled to severance benefit regardless of the length of time he or she works for the employer.

It is beyond comprehension why Botswana’s labour laws still have such ‘dark age’ provisions as the provision in the Public Service Act, 2008 that all female officers are entitled to full pay for three (3) confinements including officers on both probationary period and contract terms. While it is commendable that officers on probationary period and contract terms are included, this section prejudices female employees because they are not paid full pay for other confinements.  This effectively punishes women for playing their role in procreation. This is double punishment, considering the fact that women invariably also lose on such opportunities as training and promotions as a result of maternity leave. Government can address family planning in other ways which do not punish women for a natural duty bestowed upon them by God.

The other eye sore on protection of Botswana’s workers’ rights is the probation clause. In terms of section 20(2) of the Employment Act, CAP. 47:01, “where a contract of employment is terminated during a probationary period by either the employer or employee under section 18 or 19 by not less than fourteen (14) days’ notice, the contract shall be deemed … to have been terminated with just cause and neither the employer nor the employee shall be required to give any reasons thereof”.

While this section is beneficial to the few employees who, after gaining employment, may want to leave during the probation period for a new job or further education, some employers abuse it to dismiss workers for irrelevant considerations. Because no reasons have to be given for such termination and because the employer is not required to undertake any procedure prior to such termination, there have been cases where probationary employees’ contracts are terminated for such irrelevant considerations as political and religious affiliation, union affiliation, pregnancy, rejection of sexual advances by managers and supervisors, e.t.c.