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Workers' freedom of association in Botswana

Published online by Cambridge University Press:  28 July 2009

B. Molatlhegi
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Extract

The year 1992 saw significant reforms to the Botswana labour law and industrial relations system. Before then, as was the case elsewhere in Africa, the Botswana government had adopted highly interventionist policies with respect to industrial relations. The changes introduced in 1992 were aimed at shifting labour relations to the market place. State intervention, though not completely eliminated, has been greatly reduced as a result. The changes in labour law and the industrial relations system have brought to the fore the debate about the nature, content and extent of workers' freedom of association in the country. The changes mean that more than ever before collective bargaining will play a significant role in the determination of wages, terms and conditions of employment.

Type
Articles
Information
Journal of African Law , Volume 42 , Issue 1 , Spring 1998 , pp. 64 - 79
Copyright
Copyright © School of Oriental and African Studies 1998

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References

1 During 1992 government amended three principal labour laws: Trade Unions and Employers' Organizations Act, The Employment Act, Trade Disputes Act. For a detailed discussion of the 1992 changes to Botswana labour law see Takirambudde, P. and Molokomme, A., The New Labour Law in Botswana, Cape Town, 1994.Google Scholar

2 Takirambudde, P., “Protection of labour rights in the age of democratization and economic restructuring in Southern Africa”, [1995] J.A.L. 39 at 41.Google Scholar

3 See Takirambudde and Molokomme, op. cit, 34.

4 Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner) (1990) 72 DLR (4th).Google Scholar

5 Reference Public Service Employee Relations Act (Alia) 1987 ISCR 313.

6 Collymore v. Attorney-General [1970] AC 538.

7 See Wedderburn, Lord, Employment Rights in Britain and Europe, London, 1991, at 147.Google Scholar

8 Attorney-General v. Unity Dow [1992] LRC (Const) London, 623. See also Attorney General v. Moagi [1981] BLR 1 at 32 and Petrus and another v. The State BLR 13 at 34.Google Scholar

9 Retail Wholesalers v. Government of Saskatchewan (1985) 19 DLR 609 at 614–629.Google Scholar

10 Re Service Employees Union (1983)44 OR (2d) 392 at 463. Although this approach has been rejected by the Canadian Supreme Court, this does not dilute the force of the argument in relation to s. 13(1) of the Botswana Constitution.

11 Wedderburn, op. cit., at 154. Botswana is a member of I.L.O. but has not ratified the conventions on Freedom of Association and the Right to Organize and Collective Bargaining, 1948 and 1949.

12 See Malawi Constitution, 1995, ss. 31(2) and 32.Google Scholar

13 Wedderburn, op. cit., 142—13.

14 (1991)81 DLR (4th) 545.

15 (1981)4 EHHR 38.

16 J. B. et al. v. Canada 2 Selected Decisions, H.R.C. 34(1986), cited Wedderburn op. cit., at 145.Google Scholar

17 Trade Disputes Act. s. 36.

18 See Canadian case in n. 9 above.

19 See Wedderburn, op. cit., 138—145. See also Takirambudde, op. cit., where he expresses the view that the Constitution of Botswana falls short of entrenching collective rights.

20 S. 13(2) (c).

21 Public Sector Employment accounts for about 30% of National Employment.

22 See Molutsi, , Mogalakwe, and Mufune, , Report on the Study of the Trade Unions and The Federation of Trade Unions in Botswana, Gaborone, 1993 at 36.Google Scholar

23 The move is being resisted by trade unions.

24 See Wedderburn, Lord, “Labour law, corporate law and the worker”, (1993) 14 Industrial Law Journal 514.Google Scholar

25 See David, Tajgman, International Labour Standards in Southern Africa, Cape Town, 1994, at 6.Google Scholar

26 See Molutsi, Mogalakwe and Mofune, op. cit., where they show that trade union membership in Botswana remains very small.

27 ibid. at 35.

28 See Mogalakwe, M., “The state and organised labour in Botswana 1966–1990”, unpublished Ph.D thesis, University of Warwick, at 201.Google Scholar

29 The Botswana Democratic Party has been in power since the country's first national elections in 1965.

30 Mogalakwe, op. cit.

31 See Wedderburn, Lord, “Labour law, corporate law and the worker”, (1993) 3 I.L.J. 517 at 542.Google Scholar

32 Motshidisi, K., “The promotion of collective bargaining and the protection of security of employment in Botswana”, in Proceedings of Symposium on Collective Bargaining and Security of Employment in Africa, Victoria Falls, Zimbabwe. 1987, 139.Google Scholar

33 See Molutsi, Mogalakwe and Mofune, op. cit.

34 See s. 61 (2) of Trade Unions and Employers' Organization Act.

35 Takirambudde and Molokomme, op. cit., at 18.

36 See Mogalakwe, Molutsi and Mufune, op. cit., at 70.

37 S. 13 of the Constitution.

38 Ss. 3 and 15 of the Constitution.

39 Trade Unions and Employers' Organizations (Amendment) Act, 1992, s. 51(1).

40 ibid., s. 51(2).

41 Trade Unions and Employers' Organizations Act, s. 10.

42 ibid., s. 12.

43 ibid., s. 63.

44 ibid., s. 64(1).

45 ibid., s. 64(2).

46 The constitutional freedom of association can only be meaningful if individuals are not subjected to a penalty or unfavourable treatment on account of exercising the freedom.

47 Allen v. Flood [1898] AC 1 at 172.

48 See the English case of Associated Newspaper Ltd v. Wilson [1992] IRLR 440.

49 S. 23

50 Trade Disputes (Amendment) Act, 1992, s. 24(l)(a).

51 See Smith, and Wood, , Industrial Law, 1993, at 469.Google Scholar

52 High Court Misc No. 116 of 1991 (unreported) at 9 and 11 of the transcript. The decision was confirmed on appeal.

53 Civil Appeal No. 13 of 1995.

54 See Wedderburn, op. cit., n. 7, at 82.

55 See ss. 168—173 of Trade Unions and Labour Relations (Consolidation) Act, 1992.