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Understanding Botswana’s trade dispute resolution framework: Industrial Action

In Botswana, the Trade Disputes Act, 2016 (“the Act”) provides the framework within which trade disputes are resolved. This framework hinges on four legs, namely mediation, arbitration, industrial action and litigation. In this four-part series, we discuss this framework.

In last week’s article, we discussed the second leg of Botswana’s trade dispute resolution framework-arbitration. In this article, we discuss the third leg, namely industrial action.

Industrial action is generally defined as a situation where the employer and employees use their bargaining power to exert pressure on the other to achieve a particular result. It entails such things as strikes and lockouts.  In terms of section 2(1) of the Act, Industrial action means “a strike, lockout or action short of a strike, in furtherance of a trade dispute”.

In terms of section 2(1) of the Act, “a 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 work.”

A lock-out is the employees’ equivalent of a strike. In terms of section 2(1) of the Act, a lock-out is defined as “ 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 or her employees in that trade or industry.”

While on a strike, employees use their numbers to inflict economic pain on the employer by withdrawing their labour, in a lock-out, the employer uses its power by not providing employees with work, thereby inflicting economic harm on them in terms of the ‘no-work, no pay’ principle.
In terms of section 2(1) of the Act, an 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.”

In terms of section 42(1) (a) of the Act, it is obligatory to refer a dispute of interest for mediation before resorting to a strike or lockout. Also, in terms of section 42(1) (b) of the Act, a party must give the other party a 48-hour notice before the commencement of a strike or lockout. In terms of section 43(1) of the Act, before a strike or lockout commences, the parties have to agree on the rules regulating the action, failing which the mediator must determine the rules in accordance with any guidelines published in terms of section 53 of the Act.

These rules include those concerning the conduct of the strike or lockout and any conduct in contemplation or furtherance of the strike or lockout including picketing and the use of replacement labour. In terms of section 43(2) of the Act, the latter is, however, subject to the provisions of subsection (4) of the Act.

Employers are not allowed to engage replacement labour if the parties have concluded an agreement on the provision of a minimum service. In terms of section 43(3) of the Act, such prohibition also applies if no minimum service agreement is concluded within 14 days of the commencement of the strike or lockout.

In terms of section 43(4) of the Act, a trade union is allowed to picket outside the employer’s premises during a strike or lockout if the parties have concluded an agreement on the provision of a minimum service or if no such agreement is concluded within 14 days of the commencement of the strike or lockout.

The Act prohibits strikes and lockouts that do not comply with the aforesaid provisions or an agreed procedure. The prohibition also applies if the strike or lockout is in breach of a peace clause in a collective labour agreement.

In terms of section 45(1) of the Act, strikes or lockouts are also regarded as unprotected if the subject matter of the strike or lockout is not a trade dispute, is regulated by a collective labour agreement, is a matter that is required by the Act to be referred for arbitration or to the Industrial Court for adjudication, or is a matter that the parties to the dispute of interest have agreed to refer for arbitration.

In terms of section 47 of the Act, employees in essential services are not allowed to take part in a strike. Similarly, employers in essential services are not allowed to take part in a lockout. It is, however, worth noting that, although an essential service employee who engages in a strike commits an offence and is, in terms of section 48(1) of the Act, liable to a fine not exceeding P 2 000 or to imprisonment for a term not exceeding 12 months, or to both, there is no punishment for an essential service employer who locks out its employees.

In terms of section 48(2) of the Act, the punishment applicable to an essential service employee who engages in a strike, is also applicable for any person who causes, procures, counsels or influences any essential service employee to engage in a strike.

Where there is a trade dispute involving parties in an essential service, it should be reported to the Commissioner by an organisation acting on behalf of the employer, employers or employees. The provisions of section 6(3) apply in respect of a report of the trade dispute made in accordance with section 6 (1).

Where a trade dispute is reported in accordance with that section, it is deemed to have been reported to the Commissioner under section 6. Where there is failure to settle a trade dispute reported to the Commissioner in accordance with section 6 (2) within 30 days from the day on which the trade dispute was reported, the Commissioner may immediately refer the trade dispute to an arbitrator if the dispute is a dispute of interest, except in the case of a collective dispute of interest where the employees are represented by a trade union, or to the Industrial Court if the trade dispute is a dispute of right.

*Ndulamo Anthony Morima, LLM(NWU); LLB(UNISA); DSE(UB); CoP (BAC); CoP (IISA) is the proprietor of Morima Attorneys. He can be contacted at 71410352 or HYPERLINK “mailto:anmorima@gmail.com” anmorima@gmail.com

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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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The Era of “The Diplomat”

30th November 2020
FATED “JIHADI” JOHN

Youngest Maccabees scion Jonathan takes over after Judas and leads for 18 years

Going hand-in-glove with the politics at play in Judea in the countdown to the AD era, General Atiku, was the contention for the priesthood. You will be aware, General, that politics and religion among the Jews interlocked. If there wasn’t a formal and sovereign Jewish King, there of necessity had to be a High Priest at any given point in time.

Initially, every High Priest was from the tribe of Levi as per the stipulation of the Torah. At some stage, however, colonisers of Judah imposed their own hand-picked High Priests who were not ethnic Levites. One such High Priest was Menelaus of the tribe of Benjamin.

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Land Board appointments of party activists is political corruption

30th November 2020

Parliament has rejected a motion by Leader of Opposition (LOO) calling for the reversing of the recent appointments of ruling party activists to various Land Boards across the country. The motion also called for the appointment of young and qualified Batswana with tertiary education qualifications.

The ruling party could not allow that motion to be adopted for many reasons discussed below. Why did the LOO table this motion? Why was it negated? Why are Land Boards so important that a ruling party felt compelled to deploy its functionaries to the leadership and membership positions?

Prior to the motion, there was a LOO parliamentary question on these appointments. The Speaker threw a spanner in the works by ruling that availing a list of applicants to determine who qualified and who didn’t would violate the rights of those citizens. This has completely obliterated oversight attempts by Parliament on the matter.

How can parliament ascertain the veracity of the claim without the names of applicants? The opposition seeks to challenge this decision in court.  It would also be difficult in the future for Ministers and government officials to obey instructions by investigative Parliamentary Committees to summon evidence which include list of persons. It would be a bad precedent if the decision is not reviewed and set aside by the Business Advisory Committee or a Court of law.

Prior to independence, Dikgosi allocated land for residential and agricultural purposes. At independence, land tenures in Botswana became freehold, state land and tribal land. Before 1968, tribal land, which is land belonging to different tribes, dating back to pre-independence, was allocated and administered by Dikgosi under Customary Law. Dikgosi are currently merely ‘land overseers’, a responsibility that can be delegated. Land overseers assist the Land Boards by confirming the vacancy or availability for occupation of land applied for.

Post-independence, the country was managed through modern law and customary law, a system developed during colonialism. Land was allocated for agricultural purposes such as ploughing and grazing and most importantly for residential use. Over time some land was allocated for commercial purpose. In terms of the law, sinking of boreholes and development of wells was permitted and farmers had some rights over such developed water resources.

Land Boards were established under Section 3 of the Tribal Land Act of 1968 with the intention to improve tribal land administration. Whilst the law was enacted in 1968, Land Boards started operating around 1970 under the Ministry of Local Government and Lands which was renamed Ministry of Lands and Housing (MLH) in 1999. These statutory bodies were a mechanism to also prune the powers of Dikgosi over tribal land. Currently, land issues fall under the Ministry of Land Management, Water and Sanitation Services.

There are 12 Main Land Boards, namely Ngwato, Kgatleng, Tlokweng, Tati, Chobe, Tawana, Malete, Rolong, Ghanzi, Kgalagadi, Kweneng and Ngwaketse Land Boards.  The Tribal Land Act of 1968 as amended in 1994 provides that the Land Boards have the powers to rescind the grant of any rights to use any land, impose restrictions on land usage and facilitate any transfer or change of use of land.

Some land administration powers have been decentralized to sub land boards. The devolved powers include inter alia common law and customary law water rights and land applications, mining, evictions and dispute resolution. However, decisions can be appealed to the land board or to the Minister who is at the apex.

So, land boards are very powerful entities in the country’s local government system. Membership to these institutions is important not only because of monetary benefits of allowances but also the power of these bodies. in terms of the law, candidates for appointment to Land Boards or Subs should be residents of the tribal areas where appointments are sought, be holders of at least Junior Certificate and not actively involved in politics.  The LOO contended that ruling party activists have been appointed in the recent appointments.

He argued that worse, some had no minimum qualifications required by the law and that some are not inhabitants of the tribal or sub tribal areas where they have been appointed. It was also pointed that some people appointed are septuagenarians and that younger qualified Batswana with degrees have been rejected.

Other arguments raised by the opposition in general were that the development was not unusual. That the ruling party is used to politically motivated appointments in parastatals, civil service, diplomatic missions, specially elected councilors and Members of Parliament (MPs), Bogosi and Land Boards. Usually these positions are distributed as patronage to activists in return for their support and loyalty to the political leadership and the party.

The ruling party contended that when the Minister or the Ministry intervened and ultimately appointed the Land Boards Chairpersons, Deputies and members , he didn’t have information, as this was not information required in the application, on who was politically active and for that reason he could not have known who to not appoint on that basis. They also argued that opposition activists have been appointed to positions in the government.

The counter argument was that there was a reason for the legal requirement of exclusion of political activists and that the government ought to have mechanisms to detect those. The whole argument of “‘we didn’t know who was politically active” was frivolous. The fact is that ruling party activists have been appointed. The opposition also argued that erstwhile activists from their ranks have been recruited through positions and that a few who are serving in public offices have either been bought or hold insignificant positions which they qualified for anyway.

Whilst people should not be excluded from public positions because of their political activism, the ruling party cannot hide the fact that they have used public positions to reward activists. Exclusion of political activists may be a violation of fundamental human or constitutional rights. But, the packing of Land Boards with the ruling party activists is clear political corruption. It seeks to sow divisions in communities and administer land in a politically biased manner.

It should be expected that the ruling party officials applying for land or change of land usage etcetera will be greatly assisted. Since land is wealth, the ruling party seeks to secure resources for its members and leaders. The appointments served to reward 2019 election primary and general elections losers and other activists who have shown loyalty to the leadership and the party.

Running a country like this has divided it in a way that may be difficult to undo. The next government may decide to reset the whole system by replacing many of government agencies leadership and management in a way that is political. In fact, it would be compelled to do so to cleanse the system.

The opposition is also pondering on approaching the courts for review of the decision to appoint party functionaries and the general violation of clearly stated terms of reference. If this can be established with evidence, the courts can set aside the decision on the basis that unqualified people have been appointed.

The political activism aspect may also not be difficult to prove as some of these people are known activists who are in party structures, at least at the time of appointment, and some were recently candidates. There is a needed for civil society organizations such as trade unions and political parties to fight some of these decisions through peaceful protests and courts.

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