• 6. Conclusions
  
  • 6.1 The Role of the State in Resolving Industrial Disputes
  • 6.2 Recommendations

6. Conclusions

6.1 The Role of the State in Resolving Industrial Disputes

In a review of the industrial dispute resolution procedures of Southern Africa, Sarah Christie and Lovemore Madhuku argue that:

"Labour dispute resolution processes in Southern Africa need to be viewed within the historical and socio-political context of the region. Apart from South Africa and Namibia, Southern African states, for at least a decade, have been under post-colonial governments whose distinctive feature has been their strong nationalist and populist appeal. This approach to political governance emphasises the central role of the state to define the political framework of social relations and to shape the economic

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system in the region. Governments tend to view the state as the key institution to redistribute wealth and provide essential services to the people. A state is perceived to know what is in the best interests of the economy as a whole as well and underprivileged workers. For this reason the state assumed centre stage in managing labour relations and resolving labour disputes.

More fundamentally, this central involvement of the state in labour relations and labour dispute settlement, emerged from the conviction that labour law should play a major role in economic development. First, the colonial legacy had produced racial imbalance most acutely reflected in labour relations: most employers were white and the majority of the workers were black. The populist economic policies pursued by post-independent Southern African states predicted that labour policy and law would assist in wealth redistribution. Second, industrial peace was seen as a prerequisite for economic development and the state viewed itself as the only appropriate institution to maintain industrial peace..." [S. Christie and L. Madhuku, at p 1-2

So far as Botswana is concerned, the state has since Independence assumed 'centre stage' in the resolving of labour disputes. In Botswana, we still have no alternative dispute resolution procedures for industrial disputes. Although collective agreements sometimes refer to the possibility of independent arbitration or mediation services being utilised, in practice, these alternatives have not been utilised. This state of affairs contrasts with South Africa, where independent arbitration and mediation services have been widely used for many years. The explanation for this difference is not hard to find: in South Africa, the combination of strong trade unions which distrusted state institutions during the apartheid era, and a more developed private sector, led to the development of sophisticated alternative dispute resolution systems. In 1995, South Africa took a further significant step in releasing labour relations from state control by passing the Labour Relations Act which established a state-funded dispute resolution commission (the Commission for Conciliation, Mediation and Arbitration) to promote the private resolution of industrial disputes.

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Interviews with the BFTU and BOCCIM suggest that trade unions in Botswana see little scope for encouraging alternative dispute resolution procedures, but that employers would welcome any system which is more efficient than the present one. So what are the prospects for developing alternative dispute resolution procedures in Botswana? For the following reasons, the prospects appear slim:

• Government remains the major employer in Botswana, and will surely not agree to the private arbitration or mediation of its own labour disputes in the public sector. Similar reasoning applies to parastatals, which are under the control or influence of Government.
• Trade union representation is generally weak in the private sector where employment is concentrated in small and medium sized enterprises.
• Most industrial disputes concern individual grievances and/ or dismissal, and individual employees cannot afford to pay for private dispute resolution services.
• There are few potential independent arbitrators or mediators offering such services in Botswana (in South Africa, such services have been offered mainly by academics and lawyers, but it is difficult in Botswana to identify a significant number of such persons who would be regarded as impartial by the conflicting parties).

A further, and perhaps the most important, reason why alternative dispute resolution procedures are unlikely in the near future to develop in Botswana is that the existing state-administered system generally enjoys the support of its users. The interviews conducted with the BFTU and BOCCIM suggest that both organisations have a reasonably high degree of confidence in the Industrial Court as a fair and impartial forum for the resolution of industrial disputes (although each organisation has reservations about the effectiveness of district labour officers, see 4.2 above).

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6.2 Recommendations

Although both the BFTU and BOCCIM express dissatisfaction with the lack of consultation by Government on labour issues (and both say that they were not consulted before the 1997 Trade Disputes Amendment Bill was presented to Parliament), the interviews conducted with these organisations suggest that both organisations support the amendments contained in the Trade Disputes Amendment Bill (which is now an Act). It therefore appears that Government has succeeded in closing the loopholes in the 1992 Act which have proven so troublesome.

The delays in hearing cases by the Industrial Court were commented on by both the BFTU and BOCCIM in interviews, but it seems likely that the implementation of the measures already proposed by Government (see above at the end of part 4.5) will address this concern.

This report suggests however that three aspects of the industrial disputes procedure remain problematic:

1. The quality of service provided in the district labour offices is generally poor, primarily because labour officers receive little or no training in mediation, and their understanding of employment law is often weak (see 4.2 above). It is therefore recommended that an appropriate training programme for district labour officers should be introduced.
2. Although the Industrial Court has now been sitting for more than three and a half years, there remains uncertainty as to whether the Court of Appeal will rule that the court is both a court of law and a court of equity (see 4.6 above). It is therefore recommended that Parliament should pass a statute, which clarifies the status of the Industrial Court as a court of law and a court of equity.
3. The limit of six months compensation, which can be awarded by the Industrial Court in cases of wrongful dismissal, is an unreasonable restriction on the Court's powers (see 4.7 above). It is therefore recommended that the Court should be able to award

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   whatever compensation is considered fair and reasonable in the light of the criteria stated in section 24 (2).