Trade Unions

Freedom to Join and Form a Union

In line with article 13 of the Constitution of Botswana, no person shall be hindered in the enjoyment of his or her freedom of assembly and association, that is to say, his or her right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his or her interests.

There are a few restrictions on joining a trade union. A person cannot be a member of a registered trade union if he/she is under the age of 15 years. The member must also be an employee of the industry to which the trade union is concerned. Furthermore, an employee of a trade union cannot be a member as well.

Source: §13 of the Constitution of Botswana 1966; §20 & 21 of Trade Unions and Employers’ Organization Act

Freedom of Collective Bargaining

Collective bargaining is regulated under the Trade Disputes Act. Every collective labour agreement is to be binding upon the parties who have entered into the agreement. However, a collective labour agreement will cease to be binding upon the parties thereto upon the expiry of one month, or such greater period as the notice may specify, immediately after the day on which any party to the agreement serves notice in writing to every other party to the agreement that it repudiates the agreement. That being said, no notice is to be served without the permission in writing of the Minister before the expiry of six months immediately after the day on which the agreement came into force.

Each party to a collective labour agreement or to an agreement extending or varying the terms of a collective labour agreement has to lodge a certified copy thereof with the Commissioner within 28 days from the day the agreement was concluded. The Commissioner will register one copy of the agreement lodged with him, and will serve notice on each party to the agreement that he has done so.

Collective labour agreement has to be concluded between one or more registered trade unions or branches of trade unions, or where no such organization exists, the representatives of the employees concerned are to be elected and authorised by them.

Source: §2, 37 & 38 of the Trade Disputes Act, 2004

Right to Strike

A party to a dispute of interest has the right to strike if the dispute has been referred to the Commissioner but remains unresolved after 30 days. However, where the party referring the dispute fails to attend a mediation meeting, then the period can be further extended by 30 days. After the 30-day limit has expired, 48-hour notice of the commencement of the strike has to be given to the Commissioner and the other parties to the dispute. Furthermore, the strike must conform to the provisions of Trade Disputes Act, rules regulating strikes, and any rules determined by the mediator.

An employee who willfully breaches his contract of employment knowing, either alone or in combination with others, the effect of which is to deprive the public of an essential service or substantially to diminish the enjoyment of an essential service by the public; or endanger human life or public health or damage property, such worker is presumed to have committed an offence and is liable to a fine not exceeding P2,000 or to imprisonment for a term not exceeding 12 months, or to both.

In case of a trade dispute between employees and employers in essential services, where there is a failure to reach a settlement of a trade dispute reported to the Commissioner within 21 days of the day on which the dispute was so reported, the employees by or on whose behalf the dispute can proceed to take industrial action in furtherance of the dispute and such industrial action will not be unlawful industrial action.

Employers are prohibited from taking any persons into employment to do the work of employees who are on strike or who are locked out

Source: §39-45 of the Trade Disputes Act, 2004