A critique of Botswana's Trade Disputes Act, 2016 : the case for reform

Abstract

Effective trade dispute resolution can only be attained if there is an effective and efficient trade dispute resolution framework. In Botswana, the pillars for this framework, which are found in the TOA, 2016 ('the Act'), are mediation , arbitration, industrial action and litigation. This study critiques the Act with a view to finding out whether or not the framework enables effective trade dispute resolution. The results of this critique are in the form of recommendations for the Act's reform. Conciliation , mediation and arbitration can only be effective if done by an independent entity, an equivalent of South Africa 's CCMA. Conciliators, mediators and arbitrators' independence can only be attained if their appointment and removal is not done by the Minister alone, but with advice from the Labour Advisory Board (the Board). Providing for their security of tenure will also enhance their independence. Con-arb and the pre-dismissal Arbitration procedure are requ isites for effective and expedient resolution of trade disputes. The same applies to making adequate provision for execution of settlement agreements, default awards, arbitral awards and Industrial Court judgments or orders as per the guidance provided by the Veronica Moroka case. Industrial action is invaluable for the attainment and maintenance of good labour relations. Adequate provisions for protest action; picketing and 'go- slows' can go a long way in promoting good labour relations. If the list of essential services is too extensive as it has been in Botswana until 8th August 2019, the right to strike is negated. The call for the establishment of an Essential Services Committee to deal with, inter alia, the classification of essential services is, therefore, justified. The same applies to the call to establish an equivalent of South Africa 's NEDLAC to deal with policy formulation; economic development; social justice and labour peace. Litigation of trade disputes requires an independent Industrial Court. For that to be possible, the institutional autonomy of the Industrial Court must be without question, hence the need to ensure the individual independence of the Industrial Court judges by providing that their appointment should be by the President acting in accordance with the advice of the JSC. Besides their appointment, the provisions which allow judges to serve on renewable contracts, which renewals are done by the President acting alone, as well as the provision which empowers the President, acting alone, to extend a judge's contract undermines judicial independence. That nominated members of the Industrial Court are appointed by a judge, acting alone, brings their independence into question. There is, therefore, the need to establish a Committee and Tribunal that will deal with their appointment, discipline and removal. That an Industrial Court judge may, alone, exercise the court's jurisdiction in the absence of the nominated members is disconcerting. The same applies to the provision that absent a majority decision on matters of fact the judges' decision prevails. Finally, Botswana needs an Industrial Court of Appeal where lay persons would be allowed to represent parties just like at the Industrial Court.