• 1. Introduction
  

1. Introduction

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A new procedure for resolving industrial disputes was introduced by the Trade Disputes (Amendment) Act of 1992. The new procedure became operative on first April 1994, and involved the establishment of an Industrial Court. A primary objective in establishing the Court was to provide a comparatively informal process for resolving industrial disputes, and section 19 (1) of the amended Act provided that the Court should not be "bound by the rules of evidence or procedure in civil or criminal proceedings and may disregard any technical irregularity which does not and is not likely to result in a miscarriage of justice". However, some major loopholes in the legislation gradually became apparent, and in the period 26 April 1996 to 12 August 1997, a crisis developed as 60% of the cases heard by the Court during this period were dismissed on technical or procedural grounds. In these cases (the vast majority of which concerned an exemployee who claimed that he or she had been unlawfully dismissed) the Court did not even hear the substance of the complaint, but found that since the cases were not properly before the Court, the Court therefore had no jurisdiction to hear the complaints.

As news of this crisis was spread, public pressure mounted on Government to intervene and make some significant changes to the procedures for resolving industrial disputes. As a result, on 20th August 1997, the Trade Disputes (Amendment) Act of 1997 was enacted by Parliament (see Appendix A). This Act is very unusual in that it is retrospective - the date of commencement is stated to be 9th October 1992 - in an attempt to remedy the problems created by the 1992 Act.

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The aim of this review is to examine and evaluate the procedures for resolving industrial disputes in Botswana. In particular, the merits of the Trade Disputes (Amendment) Act of 1997 will be examined, and certain key aspects of the procedure will be given particular attention, such as:

• The role of the District Labour officers in the resolution of industrial disputes
• The role of the Commissioner of Labour in the resolution of industrial disputes
• The resourcing of the system and the delays in obtaining justice
• The accessibility of the new Industrial Court
• The role of the Industrial Court as a court of equity as well as a court of law
• The remedies which the Industrial Court has at its disposal

The Annual Reports of the Department of Labour and Social Security outline the types of industrial dispute referred for mediation to District Labour Offices. The 1995 Annual Report (which is the most recent) indicates that in 1995 7,105 disputes were reported to District Labour Offices. Of these 7,105 disputes 6,888 were mediated upon by Labour Officers in 1995, as recorded in Appendix B, which also indicates the subject matter of these dispute such as 'Disobedience', 'Misrepresentation of skills', 'Neglect of duties', etc. The overwhelming majority of these disputes were 'individual' in that they did not lead to collective industrial action (the Report states that 10 incidents of industrial action were reported to Labour Officers in 1995, see paragraph 4.1.1).

The 1995 Annual Report also indicates that 81.9% (6,134 cases) of the total number of industrial disputes were settled at the level of the District Labour office, and that only 3.6% (270 cases) were referred to the Commissioner of Labour for a further attempt at mediation (in the remaining 14.5% of cases, either one or both parties did not show up for mediation, or the cases were reported too late in the year for mediation to take place in 1995, see para 4.2 of the 1995 Report).