Know your labour rights
Mpho Ngwako | Thursday September 8, 2011 00:00
The Trade Dispute Act and the Employment Act have been in operation since 2003 and 2004 respectively. The purpose of these Acts was and is to create a 'union-friendly' environment for all the stakeholders. To achieve its purpose, these Acts went through a process of repeal, with the purpose of amalgamating all other subsidiary employment and/or trade disputes statutory instruments, incorporating all other industries and sectors and most importantly, by bringing the Acts in line with the International Labour Organisation (ILO) and the Constitution of Botswana. The wording of these Acts have been simplified and modernised for the ultimate users.
ObjectiveThe objective of these two Acts is to promote collective bargaining, promote central bargaining, promote worker's participation and promote effective dispute resolution, and to reduce incidents of industrial action.
Settlement of DisputeIn anticipation of employment disputes existing between the employer and employee relationship and the need to have disputes dealt with faster, the Commissioner of Labour has established a panel of mediators and arbitrators to settle trade disputes across the country. These dispute resolution bodies have powers to settle disputes within certain time limits. In addition to the above, the Act has established an Industrial Court as a court of law and equity to settle trade disputes, and further to secure and maintain good industrial relations.
There are time limits in respect of which disputes may be referred to the panel of mediators and arbitrators and the Industrial Court. The procedure of the Industrial Court is more technical than the procedure adopted at mediation and arbitration stage.
It is imperative to note that while the Industrial Court is a court of equity, the court will always dispense with court rules similar to that of the High Court. The time limit for mediation is 30 days. The time limit for arbitration is 60 days and the time limit for the Industrial Court is 90 days where the mediator/arbitrator has certified that the dispute remains unresolved. If for a good reason, you have failed to meet these time limits, the court will allow you to apply for condonation. Condonation will be granted by the court if among others it is satisfied that the delay was not deliberate and there is a prospect that your dispute may succeed. You need a lawyer to address the application for condonation.
Who do the Acts coverThe parties to the dispute must fall under the definition an employer and employee to have their disputes resolved under these Acts. The definition of the employer and employee is clearly defined under Section 2 of the Acts. The employee is any person who has either before or after the commencement of this Act(s) entered into a contract of employment for the hire of his labour: Provided that the expression does not include members of:-
*Botswana Defence Force*Botswana Police Service* Local Police Force and *Prison Services
The exclusion of these members is in line with international standards. This is so because the military and secret services personnel are supposed to have a special duty towards the state and, therefore, do not have the same employment rights as other public servants. However, these employees have the rights to protection against unfair labour practices in terms of the Constitution.
The employer is any person who has entered into a contract of employment to hire the labour of any person and includes-
(a) The Government in respect of all its officers except member of:-
*Botswana Defence Force*Botswana Police Service* Local Police Force and*Prison Services
(b) a Public Authority, and
(c) the person who owns or is carrying on for the time being or is responsible for the management of the undertaking business or enterprise of whatever kind in which the employee is engaged.
The employer defined under (c) include service providers called the independent contractors. The independent contractor is a person who sells his or her services to the public and who does not fall under the control of the employer e.g. the plumber or electrician. This area of business is sometimes abused by unscrupulous employers when they want to evade the law and exclude employees from the employment relationship.
The courts have taken notice of this rather unfortunate practice. Hence in determining what is an independent contractor, the courts have issued a number of judgments where it has shown that it will not accept an independent contract at face value but will consider a range of factors to determine whether a person is in fact an independent contractor or an employee.
The courts have developed the following factors and in explaining an employer or employee relationship, the court will interrogate whether or not a person falls under the control or directions of the employer or works hours which are subject to the control of another person.
Forms part of the organisationHas worked for another person for an average of at least 40 hours per month over the last three months; is economically dependent on the employer; is provided with tools of trade or equipment or only works for one employer.
If the employer is of the view that despite the presence of one of these factors, there is no employment relationship, the employer must prove this.