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Labour Day: Is there reason to celebrate?

Ndulamo Anthony Morima
EAGLE WATCH

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. 

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The Daring Dozen at Bari

8th December 2020
JEFF---Batswana-smoke-unit

Seventy-seven years ago, on the evening of December 2, 1943, the Germans launched a surprise air raid on allied shipping in the Italian port of Bari, which was then the key supply centre for the British 8th army’s advance in Italy.

The attack was spearheaded by 105 Junkers JU88 bombers under the overall command of the infamous Air Marshal Wolfram von Richthofen (who had initially achieved international notoriety during the Spanish Civil War for his aerial bombardment of Guernica). In a little over an hour the German aircraft succeeded in sinking 28 transport and cargo ships, while further inflicting massive damage to the harbour’s facilities, resulting in the port being effectively put out of action for two months.

Over two thousand ground personnel were killed during the raid, with the release of a secret supply of mustard gas aboard one of the destroyed ships contributing to the death toll, as well as subsequent military and civilian casualties. The extent of the later is a controversy due to the fact that the American and British governments subsequently covered up the presence of the gas for decades.

At least five Batswana were killed and seven critically wounded during the raid, with one of the wounded being miraculously rescued floating unconscious out to sea with a head wound. He had been given up for dead when he returned to his unit fourteen days later. The fatalities and casualties all occurred when the enemy hit an ammunition ship adjacent to where 24 Batswana members of the African Pioneer Corps (APC) 1979 Smoke Company where posted.

Thereafter, the dozen surviving members of the unit distinguished themselves for their efficiency in putting up and maintaining smokescreens in their sector, which was credited with saving additional shipping. For his personal heroism in rallying his men following the initial explosions Company Corporal Chitu Bakombi was awarded the British Empire Medal, while his superior officer, Lieutenant N.F. Moor was later given an M.B.E.

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A Strong Marriage Bond Needs Two

8th December 2020

Remember: bricks and cement are used to build a house, but mutual love, respect and companionship are used to build a HOME. And amongst His signs is this: He creates for you mates out of your own kind, so that you may find contentment (Sukoon) with them, and He engenders love and tenderness between you; in this behold, there are signs (messages) indeed for people who reflect and think (Quran 30:21).

This verse talks about contentment; this implies companionship, of their being together, sharing together, supporting one another and creating a home of peace. This verse also talks about love between them; this love is both physical and emotional. For love to exist it must be built on the foundation of a mutually supportive relationship guided by respect and tenderness. As the Quran says; ‘they are like garments for you, and you are garments for them (Quran 2:187)’. That means spouses should provide each other with comfort, intimacy and protection just as clothing protects, warms and dignifies the body.

In Islam marriage is considered an ‘ibaadah’, (an act of pleasing Allah) because it is about a commitment made to each other, that is built on mutual love, interdependence, integrity, trust, respect, companionship and harmony towards each other. It is about building of a home on an Islamic foundation in which peace and tranquillity reigns wherein your offspring are raised in an atmosphere conducive to a moral and upright upbringing so that when we all stand before Him (Allah) on that Promised Day, He will be pleased with them all.

Most marriages start out with great hopes and rosy dreams; spouses are truly committed to making their marriages work. However, as the pressures of life mount, many marriages change over time and it is quite common for some of them to run into problems and start to flounder as the reality of living with a spouse that does not meet with one’s pre-conceived ‘expectations’. However, with hard work and dedication, couples can keep their marriages strong and enjoyable. How is it done? What does it take to create a long-lasting, satisfying marriage?

Below are some of the points that have been taken from a marriage guidance article I read recently and adapted for this purposes.

POSITIVITY
Spouses should have far more positive than negative interactions. If there is too much negativity — criticizing, demanding, name-calling, holding grudges, etc. — the relationship will suffer. However, if there is never any negativity, it probably means that frustrations and grievances are not getting ‘air time’ and unresolved tension is accumulating inside one or both partners waiting to ‘explode’ one day.

“Let not some men among you laugh at others: it may be that the (latter) are better than the (former): nor let some women laugh at others: it may be that the (latter) are better than the (former): nor defame nor be sarcastic to each other, nor call each other by (offensive) nicknames.” (49:11)

We all have our individual faults though we may not see them nor want to admit to them but we will easily identify them in others. The key is balance between the two extremes and being supportive of one another. To foster positivity in a marriage that help make them stable and happy, being affectionate, truly listening to each other, taking joy in each other’s achievements and being playful are just a few examples of positive interactions.
Prophet Muhammad (PBUH) said: “The believers who show the most perfect faith are those who have the best character and the best of you are those who are best to their wives”

UNDERSTANDING

Another characteristic of happy marriages is empathy; understanding your spouses’ perspective by putting oneself in his or her shoes. By showing that understanding and identifying with your spouse is important for relationship satisfaction. Spouses are more likely to feel good about their marriage and if their partner expresses empathy towards them. Husbands and wives are more content in their relationships when they feel that their partners understand their thoughts and feelings.

Successful married couples grow with each other; it simply isn’t wise to put any person in charge of your happiness. You must be happy with yourself before anyone else can be.  You are responsible for your actions, your attitudes and your happiness. Your spouse just enhances those things in your life. Prophet Muhammad (PBUH) said: “Treat your women well and be kind to them for they are your partners and committed helpers.”

COMMITMENT

Successful marriages involve both spouses’ commitment to the relationship. The married couple should learn the art of compromise and this usually takes years. The largest parts of compromise are openness to the other’s point of view and good communication when differences arise.

When two people are truly dedicated to making their marriage work, despite the unavoidable challenges and obstacles that come, they are much more likely to have a relationship that lasts. Husbands and wives who only focus on themselves and their own desires are not as likely to find joy and satisfaction in their relationships.

ACCEPTANCE

Another basic need in a relationship is each partner wants to feel valued and respected. When people feel that their spouses truly accept them for who they are, they are usually more secure and confident in their relationships. Often, there is conflict in marriage because partners cannot accept the individual preferences of their spouses and try to demand change from one another. When one person tries to force change from another, he or she is usually met with resistance.

However, change is much more likely to occur when spouses respect differences and accept each other unconditionally. Basic acceptance is vital to a happy marriage. Prophet Muhammad (PBUH) said: “It is the generous (in character) who is good to women, and it is the wicked who insults them.”
“Overlook (any human faults) with gracious forgiveness.” (Quran 15:85)

COMPASSION, MUTUAL LOVE AND RESPECT

Other important components of successful marriages are love, compassion and respect for each other. The fact is, as time passes and life becomes increasingly complicated, the marriage is often stressed and suffers as a result. A happy and successful marriage is based on equality. When one or the other dominates strongly, intimacy is replaced by fear of displeasing.

It is all too easy for spouses to lose touch with each other and neglect the love and romance that once came so easily. It is vital that husbands and wives continue to cultivate love and respect for each other throughout their lives. If they do, it is highly likely that their relationships will remain happy and satisfying. Move beyond the fantasy and unrealistic expectations and realize that marriage is about making a conscious choice to love and care for your spouse-even when you do not feel like it.

Seldom can one love someone for whom we have no respect. This also means that we have to learn to overlook and forgive the mistakes of one’s partner. In other words write the good about your partner in stone and the bad in dust, so that when the wind comes it blows away the bad and only the good remains.

Paramount of all, marriage must be based on the teachings of the Noble Qur’an and the teachings and guidance of our Prophet Muhammad (PBUH). To grow spiritually in your marriage requires that you learn to be less selfish and more loving, even during times of conflict. A marriage needs love, support, tolerance, honesty, respect, humility, realistic expectations and a sense of humour to be successful.

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Chronic Joblessness: How to Help Curtail it

30th November 2020
Motswana woman

The past week or two has been a mixed grill of briefs in so far as the national employment picture is concerned. BDC just injected a further P64 million in Kromberg & Schubert, the automotive cable manufacturer and exporter, to help keep it afloat in the face of the COVID-19-engendered global economic apocalypse. The financial lifeline, which follows an earlier P36 million way back in 2017, hopefully guarantees the jobs of 2500, maybe for another year or two.

It was also reported that a bulb manufacturing company, which is two years old and is youth-led, is making waves in Selibe Phikwe. Called Bulb Word, it is the only bulb manufacturing operation in Botswana and employs 60 people. The figure is not insignificant in a town that had 5000 jobs offloaded in one fell swoop when BCL closed shop in 2016 under seemingly contrived circumstances, so that as I write, two or three buyers have submitted bids to acquire and exhume it from its stage-managed grave.

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