<TITLE>Review of the procedures for the resolution of industrial disputes in Botswana / by Andrew Briscoe.

FES

TEILDOKUMENT:

4. The Changes Introduced by the Trade Disputes (Amendment) Act of 1997

4. The Changes Introduced by the Trade Disputes (Amendment) Act of 1997

4.1 The Background to the 1997 Reforms: The Loopholes in the 1992 Act

During the period 26. April 1996 to 12. August 1997, 60% of the cases heard by the Industrial Court (that is, 57 out of 95 cases) were dismissed on technical or procedural grounds, without the substantive merits of the case being considered. The vast majority of these cases concerned an employee who was protesting against an alleged unlawful dismissal, and revealed several loopholes in the procedure for dealing with such protests. The loopholes arose at two stages in the procedure:

at the level of the district labour office - and in particular regarding the manner in which the protest against termination was lodged with the district labour office - and
at the level of the Commissioner of Labour, regarding the procedures followed in the Commissioner's office when a labour officer had referred an unresolved dispute to the Commissioner so that a further attempt at mediation could be made before a 'section 7 certificate' was issued.

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In terms of the procedure at the level of the district labour office, the Industrial Court made two significant rulings on the effect of the statutory provisions:

(a - i) An employee wishing to protest against termination of employment must make a report in writing to the nearest Labour officer, and serve a copy of the report upon the other party to the dispute (if the report was not made in writing, or if a copy of the report was not served upon the other party to the dispute, the Industrial Court had no jurisdiction to hear the complaint)

(a - ii) The protest against termination of employment must be made to the nearest labour officer within 14 days immediately after learning of the termination or intended termination (if the protest was not made within the 14 day period, the Industrial Court had no jurisdiction to hear the complaint)

In terms of the procedure at the level of the Commissioner of Labour, the Industrial Court made three significant rulings on the effect of the statutory provisions:

(b-i) The Commissioner must personally enquire into the causes and circumstances of the dispute (case after case emphasised that this duty could not be delegated by the Commissioner to any other officer in his office, and that if the Commissioner had not personally inquired into the causes and circumstances of the dispute, the Industrial Court had no jurisdiction to hear the complaint).

(b-ii) In order to enquire into the causes and circumstances of a dispute, the Commissioner must request every party to the dispute to attend before him (where the Commissioner simply read the file and decided that a further attempt at mediation would be futile - and therefore did not request the parties to the dispute to attend before him - the Industrial Court had no jurisdiction to hear the complaint).

(b-iii) Following his enquiry into the causes and circumstances of a dispute, the Commissioner had power under section 6 (2) (b) to

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appoint a (Departmental) industrial relations officer to act as conciliator in a dispute. However, the Industrial Court ruled that this power could only be exercised after the Commissioner had personally inquired into the causes and circumstances of the dispute.

In any case where the proper procedure had not been followed, either at the level of the district labour office, or at level of the Commissioner of Labour, the Industrial Court ruled that the Commissioner of Labour had therefore not been entitled to issue a 'section 7' certificate to enable the matter to be taken to the Industrial Court. Since a valid 'section 7' certificate is a prerequisite to a matter being brought before the Industrial Court, in all such cases where a valid 'section 7' certificate had not been issued, the Court therefore ruled that it lacked jurisdiction to hear the case.

4.2 Changes to the Dispute Resolution Procedure introduced by the Trade Disputes (Amendment) Act of 1997

The aim of this section is to explain the effect of changes to the process made by the 1997 Trade Disputes Amendment Act and to consider the merits of these changes in the light of comments made by the employees' and employers' representative bodies. For this purpose, interviews were conducted with the Botswana Federation of Trade Unions (BFTU, Secretary General), and the Botswana Confederation of Commerce, Industry and Manpower (BOCCIM, Deputy Director). These interviews suggest that the five procedural loopholes identified in section 3.1 of this report have each been remedied to the satisfaction of the representative bodies.

In terms of the procedure at the level of the district labour office, the 1997 Amendment Act provides that:

Section 7 of the 1997 Act introduces a new section 6A (1) which provides that 'the employee wishing a protest against the termination (of employment) shall make such protest to the nearest
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labour officer', and thus removes the requirement that the protest must be made in writing. Both the BFIU and BOCCIM welcome this change.
The new section 6A (3) which is introduced by Section 7 of the 1997 Act states that the "employee shall be deemed to have waived his right of protest under this section unless he exercises within 14 days immediately after learning of the termination or intended termination of the contract of employment". However, the section now states further: "Provided that a labour officer, the Commissioner or the Court may, on good cause shown, condone any delay in making a protest." Both the BFTU and BOCCIM welcome this change.

In terms of the procedure at the level of the Commissioner of Labour, the 1997 Amendment Act provides that:

Section 6 of the 1997 Act amends section 6 of the Trade Disputes Act by inserting the words "or the labour officer delegated by him" immediately after the word 'Commissioner" wherever it appears in the section. The effect of this amendment is to remove the requirement that the Commissioner must personally enquire into the causes and circumstances of the dispute, and to permit him to delegate his responsibilities to a labour officer. Both the BFIU and BOCCIM welcome this change.
The procedure to be followed where the district labour officer is unable to negotiate or mediate a settlement of a dispute has been considerably streamlined. Previously in such a case, the labour officer had to refer the matter to the Commissioner who was then obliged to enquire into the causes and circumstances of a dispute and to request every party to the dispute to attend before him. In terms of the revised procedure, the new section 6A (5) provides that:
"Where the labour officer is unable to negotiate a settlement of a dispute between the parties under this section, he shall
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1. where he is of the opinion that there is no likelihood of a settlement by further mediation, request the Commissioner to issue a certificate in terms of 'Section 7 for the dispute to be referred to the Industrial Court; or
2. refer the matter to the Commissioner together with a report of his efforts to secure a settlement".
Both the BFIU and BOCCIM welcome these changes.
The procedure whereby the Commissioner - following his personal enquiry into the causes and circumstances of a dispute - had power to appoint a (Departmental) industrial relations officer to act as conciliator in a dispute has also been streamlined. It has already been noted that section 6 of the 1997 Act amends section 6 of the Trade Disputes Act by inserting the words "or the labour officer delegated by him immediately after the word "Commissioner' wherever it appears in the section. The effect of this amendment is to remove the requirement that the Commissioner must personally enquire into the causes and circumstances of the dispute, and to permit him to delegate his responsibilities to a labour officer. Furthermore, the amended Act now permits any 'labour officer' to be appointed as a conciliator rather than an 'industrial relations officer'. This change was not considered significant by either the BFTU or BOCCIM, but neither organisation objects to it.

Overall, the BFTU and BOCCIM are of the view that the amendments satisfactorily address the loopholes, which had been revealed in the previous procedure. However, the BFTU also argues that the particular cases which were affected by the loopholes (this is, those cases which were dismissed by the Industrial Court on procedural grounds without a hearing of the substantive issue) should be re-heard by the Court. It appears that this argument has been addressed by the provision that the date of commencement of the 1997 Amendment Act is 9th October 1992. In addition to these points, both the BFI'U and BOCCIM expressed criticisms about certain other aspects of the dispute resolution procedure unconnected with these loopholes (see Part 4 below).

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4.3 Summary of the Revised Procedures for Resolving Industrial Disputes

4.3.1 Introduction

The effect of the amendments contained in the 1997 Trade Disputes (Amendment) Act is that there are now four procedures for resolving a trade dispute:

The Commissioner of Labour may mediate between the parties to a trade dispute, and any trade dispute may be referred directly to the Commissioner of Labour for such mediation. Any collective dispute may be referred to the Commissioner of Labour under this procedure (see below)
A protest against termination of employment may be made to the nearest district labour officer (see below)
An 'individual grievance' (arising for example from a dispute over the terms of an individual contract of employment) may be referred to the nearest district labour officer (see below)

Where a dispute is referred for mediation in accordance with one of the above procedures, and mediation fails to resolve the dispute, the Commissioner of Labour may issue a certificate to enable the dispute to be taken to the Industrial Court.

In certain exceptional circumstances, a dispute may also be referred directly to the Industrial Court (see below)

4.3.2 Mediation by the Commissioner of Labour

Where the Commissioner of Labour is satisfied that a trade dispute exists or is apprehended, he may mediate between the parties to the dispute or authorise some other person so to mediate: s 4 (1) of the Trade Disputes Act. This power may be exercised without the need for the dispute to be reported or referred to the Commissioner.

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Such mediation should be directed towards helping the parties to the dispute to reaching a settlement of the dispute principally by their own efforts, and where such a settlement is reached, advising them as to the incorporation of the terms of the settlement in a collective labour agreement: s 4 (2)

Where the trade dispute is not settled following mediation under this section, the Commissioner should attempt to persuade each party to the dispute (or an organisation representing that party) to report the dispute to him under section 5, 6A or 6B of the Act (see below).
It should also be noted that the Commissioner may delegate any of his functions under the Act to specified labour officers: s 4A of Trade Disputes Act [as amended retrospectively by s 4 of the 1997 Trade Disputes (Amendment) Act].

Trade Disputes Reported or Referred to the Commissioner of Labour
Section 5 of the Trade Disputes Act (as amended by the 1997 Trade Disputes (Amendment) Act) provides that any trade dispute, whether existing or apprehended, may be reported or referred to the Commissioner of Labour (or to a labour officer delegated by him) by each party to a dispute or by an organisation acting on behalf of a party to the dispute. Such report or reference shall be in writing, in such form as may be prescribed, and shall sufficiently specify -

the employer or employers and the employees or the classes or categories of employees that are parties to the dispute;
the party or parties by whom or on whose behalf the report or reference is made;
where the report or reference is made on behalf of a party, the nature of the authority given by that party; and
the nature of the dispute: s 5 (2)

The party or organization acting on behalf of a party reporting or referring a trade dispute under this section shall forthwith serve a copy of the report or reference on every other party to the dispute or, where any

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such parties are members of the same organization, on that organization: s 5 (4)

If any question arises as to whether a trade dispute has or has not been reported or referred to the Commissioner under this section or as to the day on which such a dispute was so reported or referred, the question shall be determined by the Commissioner whose determination shall be conclusive on the question: s 5 (5).

Once a dispute has been reported or referred to the Commissioner (or the labour officer delegated by Mm) under section 5, he has a duty to consider the dispute in terms of section 6 which provides that 'where he is of the opinion that suitable means for reaching a settlement of the dispute exist by virtue of a collective labour agreement, he shall refer the dispute for settlement by those means unless he is satisfied that there has already been a failure to reach a settlement of the dispute by those means': s 6 (1). However, where the Commissioner or delegated labour officer does not refer the dispute for settlement under subsection (1), or where - following such reference - there is a failure within what the Commissioner or delegated labour officer regards as a reasonable time to reach a settlement of the dispute, the Commissioner or delegated labour officer then has a responsibility:

To inquire into the causes of the dispute by requesting every party to it to appear before him, and
To take such steps as may appear to him necessary or expedient to reach a settlement of the dispute, which may include conciliation and a request that the parties attempt to negotiate a settlement: s 6 (2)

It is emphasised that the Commissioner or delegated labour officers' duties under section 6 do not prejudice their powers under Section 4 to mediate between the parties to a dispute (see above), and that such mediation may take place at any stage: s 6 (3).

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Where the labour officer delegated by the Commissioner is unable to negotiate a settlement of the dispute between the parties, he shall refer the matter to the Commissioner together with a report of his efforts to secure a settlement: s 6 (5).

Finally, if the dispute is not settled by these means, the Commissioner or delegated labour officer may issue a certificate which permits either party to take the matter to the Industrial Court, in accordance with section 7, which provides that:

"Where there is a failure, after what, in the opinion of the Commissioner or a labour officer delegated by settlement him, is a reasonable time, to reach a settlement of a trade dispute reported or referred to him under section 6, and in the event of the dispute not being settled by other means, the Commissioner or the labour officer delegated by him shall issue a certificate, notice of which, in writing, shall be served on each party, to the effect that either party or both parties may refer the dispute to the Industrial Court."

Note that the word 'settlement' in line 2 of the section appears to have been included in error.

4.3.3 Protest Against Termination of Employment

The procedure described here must be followed in all cases where there is a protest against termination of employment, including where an employee seeks to protest against summary dismissal or an alleged unfair dismissal, and also where an employer alleges desertion.

Without prejudice to the provisions of section 5 (see above), a protest to the nearest labour officer may be made:

by an employee where a contract of employment is or is to be terminated by the employer, or
by an employer where an employee whose contract of employment is for an unspecified period of time (other than a contract of employment for a specified piece of work, without reference to time) terminates the contract without giving the required notice of
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his intention to do so, or making full payment in lieu of notice, or where an employee whose contract of employment is for a specified piece of work, without reference to time, or for. a specified period of time, terminates the contract before the work specified by the contract is completed, or the period of time for which the contract was made has expired: s 6A (1) and (2).

The amended Act further provides that:

The protest may be made in writing or orally: s 5 (3)
The employer or employee shall be deemed to have waived his right of protest under this section unless he exercises it within 14 days immediately after learning of the termination or intended termination of the contract of employment. However, this rule is not strict because a labour officer, or the Commissioner, or the Industrial Court may, on good cause shown, condone any delay in making a protest: s 6A (3).
When such a protest is made, the role of the labour officer is to mediate between the parties. The Act therefore states that after the protest is made, the labour officer "shall forthwith proceed to enquire into the circumstances giving rise to the protest to try to secure a resolution of the conflict acceptable to both the employer and the employee, and for this purpose may, by order in writing served on any person, require that person -
1. to furnish him in writing or otherwise, within such reasonable time as shall be specified in the order, with such material particulars as the labour officer may require;
2. to attend before him at a time and place to be specified in the order;
3. to give evidence on oath or otherwise; and
4. to produce before him any material document": s 6A (4)
Where the labour officer is unable to negotiate a settlement of a dispute between the parties under this section, he shall
1. where he is of the opinion that there is no likelihood of a settlement by further mediation, request the Commissioner to
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  issue a certificate in terms of section 7 for the dispute to be referred to the Industrial Court; or
2. refer the matter to the Commissioner together with a report of his efforts to secure a settlement: s 6 A (5)

After receiving such a report from a labour officer, the Commissioner (or the labour officer delegated by him) then has a duty to consider the dispute in accordance with the provisions of section 6 (see above), and finally, if the dispute is not settled by these means, the Commissioner or delegated labour officer may then issue a 'section 7 certificate' which permits either party to take the matter to the Industrial Court.

4.3.4 Individual Grievances

The term 'individual grievances' is not used in the Act, but is a convenient residual term to describe those disputes which are not concerned with termination of employment (see above) and which do not amount to collective disputes (see above). A grievance in this category is usually concerned with the terms and conditions of an individual contract of employment, but may include any case 'where an employer or employee is in breach of the provisions of the Employment Act or neglects or refuses to fulfil the terms of a contract of employment or where any question, difference or doubt arises as to the rights or liabilities of either party to a contract of employment or misconduct, neglect or ill-treatment of or by either party": s 6B (1).

The procedure laid down by section 6B for dealing with individual grievances is broadly similar to that for handling protests against termination of employment. Once again, the aggrieved employee or employer must initially report the matter (either in writing or orally) to the nearest labour officer who "shall thereupon take such steps as seem to him expedient to resolve the matter": s 6B (1). In practice, the labour officer will attempt through conciliation and/ or mediation to settle the dispute by mutual agreement. Where the labour officer is unable to negotiate a settlement of the dispute, he shall refer the matter to the Commissioner together with a report of his efforts to secure settlement: s 6B (2). Once again, the Commissioner (or the labour officer delegated by

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him) then has a duty to consider the dispute in accordance with the provisions of section 6, and finally - if the dispute is not settled by these means - the Commissioner or delegated labour officer may then issue a 'section 7 certificate" which permits either party to take the matter to the Industrial Court.

Although the procedure for dealing with individual grievances is broadly similar to that for dealing with protests against termination, it should be noted that in the case of an individual grievance:

There is no requirement that the initial report to a labour officer should be made within 14 days. There is in fact no time limit stated in the Act for reporting an individual grievance.
Where the labour officer is unable to negotiate a settlement of a dispute between the parties, he must in every case refer the matter to the Commissioner together with a report of his efforts to secure a settlement (the effect of this rule is that when the labour officer is dealing with an individual grievance and he forms the opinion that there is no likelihood of a settlement being reached after further mediation, he has no power to request the Commissioner immediately to issue a certificate in terms of section 7 for the dispute to be referred to the Industrial Court).

4.3.5 Direct Referral of Industrial Disputes to the Industrial Court

A dispute cannot normally be referred to the Industrial Court until the Commissioner of Labour has issued a 'section 7 certificate'. However, in certain exceptional circumstances, a dispute may be referred directly to the Court:

By the Minister where he is satisfied that a trade dispute exists or is threatened and where:
1. Any industrial action in furtherance of the dispute has been declared by the Minister to be unlawful;
2. The dispute involves an essential service; or
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3. The Minister is satisfied that "the dispute has or may jeopardise the essentials of life or the livelihood of the people of Botswana or a significant section thereof or may endanger the public safety or the life of the community': s 9 (1)
If clarification or rectification of a decision of the Court is required, either the Minister or any party to the decision may apply in the specific circumstances provided for in section 26 (3).
It is claimed that the terms of a collective agreement are not being observed, in accordance with section 29 (1)
By a party to a trade dispute making an urgent application to the Court for the determination of a trade dispute: s 20 (3).

This further ground for a direct referral was introduced by the 1997 Trade Disputes (Amendment) Act. Such an urgent application shall be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief: s 20 (4). In the affidavit, the applicant shall set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a mediation by the Commissioner in due course: s 20 (5).