Know your employment rights

| Friday September 17, 2010 00:00

 

Each issue will assist the reader to appreciate the rights and obligations of employer and employee and the general principles pertaining to such rights and obligations.

The reference material to this topic is derived from the Constitution, International Labour Practice (ILO), Employment Law, Trade Dispute Act and other related workplace legislation.  The target group is employers and employees, trade unions representatives, employers' organisations, human resources managers' and labour law practitioners.

Fair Labour PracticesThe general rule is that the law recognises the rights to fair labour practices.  By fair labour practice we imply that both the employer and employee have rights to fair administrative decisions in a workplace.

To promote this right, the law makers through various workplace legislations, have recognised the need for an employee to have a right amongst others to join trade unions and employers organisations, to organise and bargain collectively and to strike and lock-out. These rights are in line with the right to freedom of association as it is contained in the constitution and are statutory organisation rights granted to trade unions.  Like any other right contained in the Bill of Rights, these rights are not absolute and have legal limitations attached to them.

Certain sectors of the workforce are excluded to join trade unions or employers' organisations for reasons related to issues pertaining to National Security.

Trade unions and employer's organisation are essential for effective collective bargaining.  For the sake of integrity, a trade union has to be independent and free from the influence and the control of the employers' organisation.  It is a legal requirement that before a trade union can be duly recognised such a trade union must be registered with the Registrar of Labour.  Once a trade union is duly registered it is accorded rights such as organisational rights, a right to be a member of a bargaining or statutory council, a right to enter into agency and closed shop agreements, a right to establish workplace forums and a right to conclude collective agreements.

Organisational rights are granted to a trade union, or unions acting jointly.  Organisational rights are similarly granted to trade union(s), which have majority membership. Majority membership implies that a trade union has a majority of employees in a workplace and in a particular sector or industry.  The advantage accorded to a majority union is that it will be granted all the organisational rights contained in the Act.

These rights include amongst others, the right to be a member of the bargaining council and the right to draw and amend the Bargaining Council constitution.

To determine if a union is a recognised majority union, the law provides that a union should enjoy a threshold of one third of the employees in the workplace.  The formula used to determine the threshold is contained in the schedule of the Employment Act.

A trade union can also apply for registration if it is not a majority union.  Such a union has to prove that it is sufficiently representative.  The difference between a majority union and a sufficiently representative union is that if a union is not a majority union but it is at least 'sufficiently representative' it becomes entitled some of the organisational rights such as the right to access the workplace, deductions of trade union subscriptions upon written authorisation from the employee, and the right to leave for trade union activities in respect of office bearers of the union. For a trade union to gain organisational rights in a workplace, it has to follow these procedures:-

*A registered trade union must give notice requesting the employer to grant some or all organisational rights.*This request must be accompanied by a certified copy of its registration certificate.*The employer must, within 30 days of receiving the request, meet the union and attempt to conclude an agreement on how the union will exercise the rights it has requested. If an agreement is reached, the process stops here. However, if conciliation is unsuccessful, either party can declare a dispute concerning organisational rights.  The dispute will be about how much support the union has among employees at the workplace. 

To solve this dispute the arbitrator may conduct a ballot or make other investigations. If the Commissioner is satisfied that the union is 'sufficiently representative' to enjoy certain organisational rights, he or she can make an award requiring the employer to grant the union those rights and specify how those rights are to be exercised. 

Or a union can choose to strike rather than to follow the route of arbitration.

However, the route to strike excludes issues of disclosure of information dispute.  If the union embarks on a strike action, the disadvantage to this right is that the union has to wait one year before it can obtain organisational rights from the Department of Labour.  

It is therefore up to the union to exercise an informed decision before choosing an industrial action to have its organisational rights dispute resolved. 

You can contact Advocate Mpho Ngwato at Maine@bbi.co.bw