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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:
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:
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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:
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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:
Furthermore, section 22 provides that an officer of a union must not:
Section 21 also restricts membership of trade unions as follows:
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:
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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:
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:
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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:
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After receipt and consideration of this information, the Minister may, if he considers such action to be necessary or desirable:
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:
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:
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
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