Chapter 2:
Trade Union Legislation in Botswana

Chapter 2:
Trade Union Legislation in Botswana

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At present, public sector staff associations are usually registered as associations under the Societies Act [Cap. 18:01], with Constitutions approved by the Registrar of Societies. The aim of this chapter is to identify and summarise the effect of the trade union legislation, which would automatically apply to any public sector staff association, which registers as a trade union.

The principal legislation governing trade unions in Botswana is the Trade Unions and Employers' Organizations Act [Cap. 48:01], as amended by the Trade Unions and Employers' Organizations (Amendment) Act [No. 24 of 1992], and supplemented by the Trade Unions and Employers' Organizations Regulations [S.I. 105 of 1984].

The following is a list of the most important sections of the amended Act:

Section 2 (1) is a definition section. It is significant for two reasons:

1. It defines a trade union as 'an organization consisting, wholly or in part, of more than 30 employees the principal objects of which include the regulation of relations between employees and employers or employer's organizations or between employees and employees': see section 2 (1).
2. The members of a trade union must be employees as defined in the section: persons who have entered contracts of employment for the hire of their labour, but not including a public officer or any person employed by a local authority (except for industrial class workers).

Section 6 requires every trade union formed in Botswana to apply to the Registrar of Trade Unions and Employers' Federations for registration, within 28 days of its formation.

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Section 7 provides that upon receipt of an application for registration, the Registrar must publish a notice in the Government Gazette, calling upon any person who objects to the registration to notify the Registrar of the objection, and the grounds for the objection.

Section 8 provides that every officer of a union, which fails to apply for registration within 28 days of its formation is guilty of a criminal offence.

Section 9 provides that before deciding whether to register a trade union, the Registrar should consider any objections notified to him under section 7, and make such enquiries, as he thinks fit. A certificate of registration issued by the Registrar is conclusive evidence that the union is properly registered in accordance with the Act.

Section 10 states the grounds on which the Registrar may refuse to register a trade union:

• That the name is the same as that of another registered union, or so similar to such name as to be likely to deceive or mislead, or is otherwise misleading or undesirable. A refusal to register on this ground is effective until such time as the name is altered to one that is acceptable to the Registrar.
• That the union has not complied with the provisions of the Act (or regulations made under the Act)
• That the union's constitution does not comply with the Schedule, or is unlawful
• That the union is used or has been used for an unlawful purpose
• That the union's funds are being used or have been used unlawfully (such as where funds are being used for a purpose not authorised by its constitution or by the Act)
• That the union's accounts are not being kept in accordance with the Act
• That within five years immediately before the date of the application, an officer of the union has been convicted of an offence under this Act, or under the Trade Disputes Act, or any

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offence involving fraud or dishonesty, which led to a sentence of imprisonment
• That any of its officers is not a citizen of Botswana (although a special application to the Minister may be made to exempt the union from this provision)
• That there is an existing registered union, which the Registrar considers to be sufficiently representative of the interests of workers in the industry or trade, which the new union is seeking to represent
• That the principal objects are not in accordance with the Act (section 2 requires that the objects should 'include the regulation of relations between employees and employers or employers' organizations or between employees and employees')

Section 11 provides that where the Registrar refuses to register a union, he should notify the applicants in writing of the grounds for refusal, and the union is deemed to be dissolved from the date of receipt of such notification.

Section 12 gives the Registrar power to cancel the registration of a trade union where:

• The union so requests
• He is directed by the Minister under section 52
• The union ceases to exist
• Its registration was obtained by fraud, misrepresentation or mistake
• It has wilfully contravened the Act or any regulations made thereunder
• It has wilfully, and after notice from the Registrar, allowed any provision of its constitution to continue in force which is inconsistent with this Act or any regulations made thereunder
• It has wilfully amended or failed to amend its constitution so that it does not comply with the Schedule
• Any of its principal objects or any other provision of its constitution is unlawful
• It is used or has been used for an unlawful purpose

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• Its funds or other property are being or have been applied in an unlawful manner or for an unlawful object or an object not authorised by this Act or its constitution
• Any of its officers is a person who has, within the immediately preceding five years, been convicted of an offence under this Act, or under the Trade Disputes Act, or involving fraud or dishonesty and finally sentenced in connection therewith to a term of imprisonment
• If he is satisfied that any of its officers is not, without the consent of the Minister, a citizen of Botswana
• If he is satisfied that its accounts are not being kept in accordance with this Act
• Where the union's constitution provides for the protection and promotion of the respective sectional industrial interests of members of the trade union engaged in or working at more than one trade or calling, and the Registrar is satisfied that it has failed to give significant effect to those provisions of its constitution which so provide.

Section 12 also regulates the procedure, which the Registrar should observe in ordering cancellation of a union's registration, and section 13 provides for an appeal against the Registrar's order to the High Court. In addition, section 13 provides that an appeal against the Registrar's decision to refuse registration of a trade union can be made to the High Court.

Section 16 provides that until a union is registered, neither the union nor its officers or members can benefit from the rights, immunities and privileges which are enjoyed by registered unions.

Section 17 gives important legal rights, immunities and privileges to registered trade unions, as well as to their members and officers. Section 17 (a) provides that legal action may not be taken against a registered trade union (or against its members or officers) where an act is 'done in contemplation or furtherance of a trade dispute'. Section 17 (b) provides that no action in delict (civil wrong) may be entertained in any court against a registered trade union (or any

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officer or member of such union) in respect of any act alleged to have been committed by or on behalf of the trade union.

Section 18 provides that a trade union is liable on any contract entered into by itself or by an agent on its behalf.

Sections 20 and 22 restrict who can act as an officer of a trade union. They provide that an officer of a trade union must fulfil three qualifications:

• Be over 18 years of age; and
• Be a member of that trade union; and
• Have worked as an employee in the industry in which the union operates for at least one year.

Furthermore, section 22 provides that an officer of a union must not:

• Be an employee of that trade union; or
• Have been convicted of an offence, which led to a sentence of imprisonment under this Act, or under the Trade Disputes Act, or of any offence involving fraud or dishonesty, within the immediately preceding five years.

Section 21 also restricts membership of trade unions as follows:

• No person may join a union unless he or she is an employee in an industry with which the union is directly concerned: see section 21 (1)
• A member who ceases to work in the industry with which the union is directly concerned must immediately cease to be a member of that union.
• An employee of a union cannot be a member of that union.

Section 22 also applies special rules to the treasurer of a registered trade union. Where the Registrar considers that a treasurer is incapable of properly carrying out the functions of a treasurer, the Registrar should in writing require him or her to vacate office within one month.

Section 25 provides that a union must have at least three trustees. The union's constitution should provide for the appointment or

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election of trustees, as well as for their removal, and for the filling of vacancies, so as to enable the union at all times to have at least three trustees.

Section 26 provides that the function of trustees is to hold and control all property belonging to the union, for the use and benefit of the union and of its members. The trustees should deal with such property in accordance with the directions of the union's executive committee, except that no disposal of any property should be made unless the trustees are satisfied that the executive committee has acted lawfully and in accordance with the union's constitution.

Section 27 provides that no change in the officers of a trade union takes effect until it is registered by the Registrar.

Section 28 provides that very registered trade union must hold an annual general meeting of members in every calendar year, with an interval of not more than 15 months between one annual general meeting and the next. If a union fails to hold an annual general meeting, the Registrar has power to call or direct the calling of such a meeting.

Section 29 makes provision for the calling of an extraordinary general meeting. Despite anything in the union's constitution, the executive committee is required to call an extraordinary general meeting if requested to do so in writing by at least one-tenth of the members of the union, or by the Minister. If the executive committee do not, within 21 days of the request being deposited at the union's registered office, proceed to call the meeting (to be held not more than 40 days after the date the request was deposited), then any two members who signed the request, or the Minister, as the case may be, can call the meeting.

Section 31 provides that minutes should be taken of every general and every executive meeting of the union, and of every branch meeting. These minutes should be entered in special books used only for this purpose, and kept for at least five years. Once duly signed,

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these minutes are prima facie evidence of the facts recorded therein. These minutes should be kept at the union's registered office, and be available for inspection without charge by any member of the union, or by a representative of the Registrar. A member who so requests is also entitled to receive a copy of such minutes.

Section 34 provides that the constitution of a registered trade union must contain provisions dealing with the matters specifically mentioned in the Schedule to the Act. It further provides that any change of the name or objects of the union is not effective unless written consent to the proposed change is given by the Registrar. Whenever a union seeks to amend its constitution, a copy of the amendment, signed by at least two-thirds of the union's executive committee, must be sent to the Registrar within 30 days. If the Registrar is satisfied that the amendment has been properly made in accordance with the union's constitution, and is consistent with the Act, he should register the amendment. Until it has been so registered, an amendment is not effective.

Section 36 provides that any member who so requests is entitled to receive a copy of the union's constitution on payment of a charge not exceeding 50 thebe. The section also provides that any change in the officers of a trade union should be notified in writing to the Registrar within 30 days immediately after the change.

Section 39 lays down strict rules concerning the purposes for which a registered trade union may spend its funds. Subject to any further restrictions imposed by the union's constitution, these purposes are:

• To pay the salaries of employees, and the allowances and expenses of employees and officers
• To meet administration expenses including the audit of its accounts
• To meet the expenses of educational courses and materials
• To award scholarships and educational grants
• To pay for the production and distribution of an official journal
• To pay subscriptions and fees to a body such as a federation of unions

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• To make investments and loans in accordance with its constitution
• To defend any criminal proceedings brought against the union, or any officer or member under this Act or the Trade Disputes Act
• To prosecute or defend any legal proceedings involving the union or any member for the purpose of protecting the employment rights of a member
• To conduct a trade dispute on behalf of the union or any member by any means except for unlawful industrial action
• To compensate its members for any loss arising out of a trade dispute other than from unlawful industrial action undertaken by those members
• To pay allowances to members or their dependents on account of death, old age, sickness, accidents or unemployment suffered by such members

Section 40 prohibits a union from using its funds to pay any fine imposed by a court on any member or officer (or any other person). However, funds can be used to pay a fine imposed on the union itself.

Section 42 provides that a registered trade union should keep such proper books of account as are necessary to give a true and fair view of its financial position. These books should give details of all sums of money which have been received or spent by the union, including and include a statement of its assets and liabilities. The books of account should be kept at the union's registered office or at such other place in Botswana as its executive committee thinks fit, and must be open at all reasonable times to inspection by members of the union's executive committee. Any officer of the union who fails to take reasonable steps to ensure that the rules of this section are complied with is guilty of an offence.

Section 43 provides that in each financial year, the principal treasurer of the union must prepare a balance sheet giving a true and fair view of the state of the union's financial affairs as at the end of the previous financial year. A statement of account must also be

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prepared by every treasurer (and any other officer who has responsibility for collecting, spending or controlling funds) when he or she leaves office. All such balance sheets and statements of account must be audited by an auditor approved by the Minister.

Section 44 requires that every union, in each financial year by 30th April, must provide the Registrar of Trade Unions with an annual return, which includes:

• The balance sheet, prepared and audited in accordance with section 43, together with a copy of the auditor's report thereon
• A copy of its constitution in force at the end of the previous financial year
• A copy of all amendments to its constitution and a written statement setting out all changes in its officers and trustees made during the immediately preceding financial year
• A written statement of the number of its members at the end of the previous financial year.

Section 45 requires that the books of account of a trade union, together with its list of current members, shall be open to inspection by any officer or member of the union, or by the Registrar, at any reasonable time.

Section 47 governs amalgamations and federations of trade unions, and has particular importance to a union that wishes to amalgamate with another union or to form a federation of trade unions. It provides that any two or more registered trade unions may, with the prior consent in writing of the Minister and in accordance with their respective constitutions, amalgamate together as one trade union, or form a federation of trade unions. The procedure for such arrangements is regulated by section 47 (4) and by regulation 13 of S. I. 105 of 1984, which require that the Registrar conducts a secret ballot of the trade unions involved. Approval must be obtained from the votes of at least:

• (a) Two-thirds of the members of the trade union for the time being qualified to vote; and

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• (b) Half of the members of the trade union for the time being qualified to vote who are less than three consecutive months in arrears in payment of their dues to the trade union as required by its constitution.

Section 50 gives legal recognition to a trade union as the negotiating body. It provides that where at least one-quarter of the employees employed by an individual employer, or in an industry, are members of a particular registered trade union, that employer (or all the employers in that industry) must recognise that particular union as the negotiating body for all matters concerning those employees who are members of the trade union. In the event of any uncertainty over whether an employer or an industry is bound to recognise a particular trade union, the matter may be referred to the Registrar for determination. The Registrar must then within 30 days issue a certificate stating whether or not the employer or industry is bound to recognise the trade union. Such a certificate is conclusive determination of the matter until such time as the Registrar determines the matter again and issues a fresh certificate.

Section 51 provides that the Minister has a general power, whenever he considers it necessary in the public interest so to do, to call on any union to produce for his inspection all or any of its books or documents, by notice in the Gazette. A further power given under section 51 (2) is that the Minister may, by notice in the Gazette, call on a union to produce for his inspection all or any of its books and documents, or to furnish in writing such information or explanation as may be specified in the notice, where it appears to the Minister that:

1. The affairs of the union are being conducted, or the powers of the officers are being exercised in a manner oppressive to one or more members, or in disregard of his or their proper interests
2. That any book or document which the trade union is required to send to him in accordance with subsection (l) does not disclose a full and fair statement of the matters to which it purports to relate; or
3. That the affairs of the trade union are being conducted in a manner prejudicial to the interests of the members thereof.

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After receipt and consideration of this information, the Minister may, if he considers such action to be necessary or desirable:

• Appoint an inspector to investigate the union's affairs under section 52
• Refer the matter to the Attorney General if it appears that a criminal offence may have been committed
• Direct the Registrar to cancel the union's registration, or
• Direct the Registrar to bring proceedings against the union or any officer or any former officer or any other person.

Section 52 provides that the Minister's power to order an investigation of a union's affairs may also be exercised upon application by the Registrar or by at least six members of the trade union, provided that:

1. Before the Minister entertains an application for an investigation, the trade union concerned must be given at least fourteen days notice of the application, and be entitled to be represented at the hearing and to give evidence and to call witnesses; and
2. In the case of an application being brought by members of a trade union, the application shall be supported by such evidence as may be necessary to show that the applicants have good reason to require an investigation, and at least fourteen days prior notice of the application has been given to the Registrar, who shall be entitled to be represented at the hearing, and to give evidence and call witnesses.

Section 53 provides that where it appears to the Minister that there is good reason to investigate the membership of any union, he may himself carry out such investigation, or, by notice in the Gazette, appoint an investigator to carry out the investigation. In certain circumstances where it appears to the Minister that there is difficulty in finding out the relevant facts about any such membership, he may, by notice in the Gazette, cancel the union's registration.

Section 57 protects the freedom of association of employees. It provides that no employer may make it a condition of employment that an employee shall not remain or become a member of a

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registered trade union, or participate in the activities of a registered trade union. Furthermore, an employer may not penalise an employee who becomes a member of a registered trade union, or who participates in the activities of a registered trade union.

Section 61 provides that a manager cannot be a member of the same union, or branch of a union, as the employees that he or she manages. The rule applies to anyone who falls within the fairly broad definition of a 'member of management', which includes any employee who:

• Has authority to decide whether to hire, transfer, suspend, lay off, recall, promote, dismiss, reward, discipline or deal with the grievances of an employee, or to recommend such action
• Participates in making policy regarding employer-employee relations
• Is employed in a position which requires full knowledge of the financial position of the business, or which gives free access to other confidential information about the business.

Section 64 provides that a registered trade union may not accept any funds originating from outside Botswana without the written consent of the Minister. In this context, 'funds' includes all donations, loans or other assistance having pecuniary value, except for travel expenses and scholarships.

Protection of trade union members under the Employment Act
The Employment Act [Cap 47:01] also gives certain protection to members of a trade union. Section 23 of the Act makes it unlawful for an employer to dismiss an employee on grounds of membership of a registered trade union or involvement in any activities of a registered trade union outside working hours.