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VOLUME: X
EMPLOYMENT
CHAPTER: 47:01
EMPLOYMENT

ARRANGEMENT OF SECTIONS

     SECTION

 

PART I
Preliminary

                1.         Short title

                2.         Interpretation

                3.         Commissioner of Labour

                4.         Appointment of labour officers

                5.         Power of Commissioner to delegate his functions

                6.         Power of Minister to give directions

                7.         Power of Minister to restrict application of Act

                8.         Saving for other enactments

 

PART II
Administration

                9.         Information to be provided by employers

               10.         Institution and undertaking of proceedings in connection with Act

               11.         Functions of officers

               12.         Offence to delay or obstruct, etc.

               13.         Obligations of officers

 

PART III
Contracts of Employment

               14.         Oral and written contracts of employment

               15.         Existing contracts of employment to continue in force

               16.         Duty of employer to provide work

               17.         Termination of contracts of employment generally

               18.         Termination of contracts of employment for unspecified periods of time

               19.         Termination of contracts of employment for unspecified periods of time, normally subject to notice, without notice

               20.         Termination of contracts of employment for unspecified periods of time during probationary period

               21.         Breaches of contracts of employment

               22.         Liability following certain breaches of contracts of employment

               23.         Restriction of grounds on which employers may terminate contracts of employment

               24.         Certificates of employment

               25.         Redundancy

               26.         Termination of contracts of employment without notice

               27.         Entitlement to severance benefit on termination of contract of employment

               28.         Change of employer

               29.         Transfer of Botswana citizen abroad in same undertaking

               30.         Death or disappearance of employee during contract

               31.         Employment cards

               32.         Repatriation

               33.         Exemption from obligation to repatriate

               34.         Duty of employer to provide means of transport on repatriation

               35.         Duty of employer to provide medical facilities in certain circumstances

               36.         Duty of employer to keep register of casual employees

               37.         Certain terms of contract of employment to be void

               38.         Offence where contract contravenes this Part

 

PART IV
Special Contracts in relation to Recruitment

               39.         Application of Parts III and IV

               40.         Contracts to be in writing

               41.         Family not bound by contract

               42.         Responsibility of employer

               43.         Contents of every contract

               44.         Attestation of contracts required

               45.         ...

               46.         Medical examination

               47.         Contracting age

               48.         Transfer to other employment

               49.         Termination of contract in certain circumstances

               50.         Period of employment

               51.         Foreign contracts of employment and contracts of employment made abroad

               52.         Offence to induce persons to proceed abroad under informal contract

 

PART V
Recruitment

               53.         Application of Part V

               54.         Prohibition of recruitment except under licence

               55.         Issue of recruiter's licence

               56.         Prohibition of assisting recruitment without permit

               57.         Power of Commissioner to take security from applicants

               58.         Power of Commissioner to cancel or suspend licences and permits

               59.         Renewal of licence or permit

               60.         Liability of recruiter for offences committed by his employees

               61.         Prohibition of recruitment of children, etc.

               62.         Families of recruited persons

               63.         Prohibition of recruitment by public officers

               64.         Transport of recruited persons and their families to place of engagement

               65.         Transport of recruited persons and their families in special circumstances

               66.         Transport of recruited persons and their families to place of employment

               67.         Supply of necessaries during journey to place of engagement or employment

               68.         Regulations in connection with employment

 

PART VI
Forced Labour

               69.         Application of Part VI

               70.         Prohibition of exaction of forced labour

               71.         Penalty for official constraint

               72.         Saving

 

PART VII
Protection of Wages

               73.         Exclusion from application of VII

               74.         Fixing of wage periods

               75.         Time of payment

               76.         Payment of wages, etc., on termination of contract of employment by employer

               77.         Payment of wages, etc., on termination of contract of employment by employee

               78.         Payment of wages, etc., to be made during working hours

               79.         Prohibition of unauthorized deductions from wages, etc.

               80.         Authorized deductions from wages, etc.

               81.         Limitation on attachments and assignments, etc.

               82.         Wages to be paid in legal tender

               83.         Agreement as to place or manner of spending wages illegal

               84.         Partial payment of wages in kind

               85.         Wages not to be paid on certain premises

               86.         Authority of employer to open shop

               87.         Advance of wages

               88.         Prohibition of interest on advances

               89.         Power of Commissioner to require security from employer

               90.         Payment of wages for partial performance of contract of employment

               91.         Priority of wages

            91A.         Employee's claims arising out of his employment

               92.         Duty of employer to keep records, etc.

 

PART VIII
Rest Periods, Hours of Work, Holidays and other Conditions of Work

               93.         Rest periods

               94.         Payment for work during rest period

               95.         Hours of work

               96.         Task work

               97.         Shift work

               98.         Leave with pay

               99.         Paid public holidays

             100.         Paid sick leave

 

PART IX
Contractors and Contracting

             101.         Powers of Commissioner to secure payment of wages due to employees of contractors, subcontractors and employers

 

PART X
Employees in Special Categories

             102.         Regulations at variance with Act in relation to employees in special categories

 

PART XI
Employment of Children and Young Persons

             103.         Application of Part XI

             104.         Power of Minister to exempt occupations

             105.         Employment of children prohibited

             106.         Prohibition of employment underground

             107.         Prohibition of night work

             108.         Restriction on employment of children and young persons

             109.         Hours of work of children and young persons in industrial undertakings

             110.         Prohibition of employment of children and young persons on rest days and paid public holidays

             111.         Regulations regulating employment of children, etc.

 

PART XII
Employment of Females

             112.         Application of Part XII

             113.         Absence from work in connection with confinement and maternity allowance

             114.         Payment of maternity allowance

             115.         Right to maternity allowance unaffected by notice of termination of contract of employment

             116.         Prohibition of serving notice of termination of contract of employment during maternity leave

             117.         Female employee entitled to only one maternity allowance

             118.         Female employee to be permitted to nurse child

             119.         When employer not liable for medical expenses

 

PART XIII
Employment of the Infirm and Handicapped

             120.         Regulations in relation to employment of infirm or handicapped persons

 

PART XIV
Labour Health Areas

             121.         Application of Part XIV to labour health areas

             122.         Housing

             123.         Feeding of employees

             124.         Supply of water

             125.         Provision of medicine and medical treatment

             126.         Care of employees on journeys

             127.         Return of employees to place of origin or engagement

             128.         Regulations in relation to labour health areas

 

PART XV
Labour Clauses in Public Contracts

             129.         Certain public contracts to contain declaratory clause in relation to contracts of employment

             130.         Sanctions available to Government in respect of contracts of employment made pursuant to certain public contracts

 

PART XVI
Determination of Minimum Wages

             131.         Establishment of Minimum Wages Advisory Board

             132.         Duty of Minister to seek advice of Board before fixing minimum wage

             133.         Duties of Board

             134.         Powers of Board

             135.         Power of Minister to fix minimum wages

             136.         Amendment of Fourth Schedule

             137.         Power of Minister to adjust minimum wage

             138.         Effect and enforcement of minimum wages order

             139.         Power of Commissioner to exempt infirm or handicapped person from minimum wages order

             140.         Duty of employer to keep certain records for enforcement of this Part

             141.         Duty of employer to exhibit certain notices in connection with minimum wages order

             142.         Regulations in relation to this Part

 

PART XVII
Labour Advisory Board

             143.         Establishment of Labour Advisory Board

             144.         Duty of Minister to consult Board

 

PART XVIII
Remedies, Jurisdiction, Procedure and Penalties

             145.         Failure to pay wages, etc. or detaining employee's property

             146.         Entering or leaving employment with fraudulent intent

             147.         Penalty for keeping and harbouring employees

             148.         False pretences

             149.         Furnishing false information

             150.         Making false entries in records

             151.         Penalties for offences under Act

 

PART XIX
Supplementary

             152.         Saving of proceedings under other laws

             153.         Rendering of annual reports to National Assembly

             154.         Power of Minister to make regulations

 

                            First Schedule - Persons to whom Property of Deceased or Missing Employee may be Delivered

                            Second Schedule - Paid Public Holidays

                            Third Schedule - Minimum Wages Advisory Board

                            Fourth Schedule - Trades, Sections of Trades, Industries and Sections of Industries in which Minister may Fix Minimum Wage

                            Fifth Schedule - Labour Advisory Board

 

Act 29, 1982,
S.I. 148, 1984,
S.I. 13, 1990,
Act 26, 1992,
S.I. 52, 1996,
Act 14, 2003,
S.I. 73, 2007,
Act 6, 2008,
S.I. 27, 2008,
Act 10, 2010.

An Act to repeal and replace the Employment Act in order to amend the law relating to employment, to make comprehensive provision therefor and to provide for matters incidental thereto and connected therewith.

[Date of Commencement: 14th December, 1984]

Part:I Preliminary ss 18
1.       Short title

            This Act may be cited as the Employment Act.

2.       Interpretation

            (1) In this Act, unless the context otherwise requires-

            "agricultural undertaking" means any undertaking or part of an undertaking engaged in cultivation, animal husbandry, including livestock production and care, forestry, horticulture, plantations, the primary processing of agricultural products by the operator of a holding or any other form of agricultural activity other than such an undertaking or part of an undertaking in which members of the same family alone are employed;

            "attesting officer" means a labour officer or any other public officer authorized by the Commissioner in writing to perform the functions of an attesting officer under this Act;

            "basic pay" means the rate of payment, including any payment in kind, made by an employer for work done or services performed during an hourly, weekly, fortnightly or monthly period excluding all other remuneration;

            "casual employee" means an employee whose terms of contract are for a period of not more than twelve months, and which contains provisions limiting employment to not more than three days', or more than twenty-two and a half hours', work per week;

            "child" means a person under the age of 15 years;

            "collective labour agreement" means a written agreement relating to the terms and conditions of employment concluded between one or more registered trade unions or branches thereof or, where no such organization exists, the representatives of the employees concerned duly elected and authorized by them and one or more employers or registered employers' organizations;

            "Commissioner" means the Commissioner of Labour referred to in section 3 or any person acting in or lawfully performing the functions of his office;

            "confinement" means delivery of a child;

            "construction contractor" means any person established for the purpose of undertaking, either exclusively or in addition to or in conjunction with any other business, any type of construction work for or on behalf of some other person under a contract entered into between them or the heirs, executors, administrators, assigns or successors of any person so established;

            "construction work" means any building or civil engineering work, including repair, maintenance, alteration and demolition work;

            "continuous employment" means employment (including employment during a probationary period) with the same employer, whether such employment commenced before, except for the purposes of section 27, at or after the commencement of this Act, which employment is uninterrupted except by periods of absence from work for which provision is made by this Act or which-

     (a)     are authorized by the employer;

     (b)     are due to injury caused to or disease suffered by the employee in respect of which compensation is payable in accordance with such legislation as may for the time being be in force governing workmen's compensation; or

     (c)     are occasioned by industrial action which is not unlawful by virtue of such legislation as may for the time being be in force governing trade disputes;

            "contract of employment" means an agreement, whether oral or in writing, expressed or implied, whereby one person agrees for a wage or other benefit or both to let his labour to and to perform it under the orders of another person who agrees to hire it;

            "contractor" means a person who contracts with a principal to supply labour or to carry out the whole or any part of any work undertaken by the principal in the course of or for the purposes of the principal's trade or business;

            "day" means any period of 24 hours commencing at midnight;

            "domestic employee" means a house servant, a garden servant or a motor car driver employed in or in connection with the domestic services of any private premises.

            "employ" means, in relation to the person employing, to use as an employer the labour of an employee;

"employee" means any person who has, either before or after the commencement of this Act, entered into a contract of employment for the hire of his labour:

            Provided that the expression shall not include a public officer.

"employer" means any person who has entered into a contract of employment for the hire of the labour of any person, including a public authority, or the person who owns or is carryingon for the time beingor is responsible for the management of the undertaking, business or enterprise of whatever kind in which the employee is engaged:

            Provided that the expression shall not include the Government in respect of all of its officers;

            "employment" means the performance by an employee of a contract of employment;

"forced labour" means all work or service which is exacted from any person under the threat of a penalty and for which the person has not offered himself voluntarily, other than labour-

     (a)     required in consequence of a sentence or order of a court;

     (b)     required of any person while the person is lawfully detained and that, though not required in consequence of the sentence or order of a court, is reasonably necessary in the interest of hygiene at the place at which that person is detained;

     (c)     required of a member of a disciplined force in pursuance of the member's duties as such or, in the case of a person who has conscientious objections to service as a member of a naval, military or air force, required by law of such person in place of such service;

     (d)     required during any period of public emergency or in the event of any other emergency or calamity which threatens the life and well-being of the community, to the extent that the requiring of such labour is reasonably justifiable in the circumstances of any situation arising or existing during that period or as a result of that other emergency or calamity, for the purpose of dealing with that situation; or

     (e)     reasonably required as part of reasonable and normal communal or other civic obligations;

            "guardian" means any person lawfully having charge of a child or young person whether having parents or no parents or whose parents are unknown;

            "industrial undertaking" include any industrial undertaking of the Government or other public authority or of any part thereof and, in particular, includes-

     (a)     mines, quarries and other works for the extraction of minerals from the earth;

     (b)     undertakings in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, adapted for sale, broken up or demolished or in which materials are transformed including undertakings engaged in ship-building or in the generation, transformation or transmission of electricity or motive power of any kind;

     (c)     undertakings engaged in building or civil engineering works, including repair, maintenance, alteration and demolition work; and

     (d)     undertakings engaged in the transport of passengers or goods by road, rail, air or water, including the handling of goods at warehouses or airports;

            "intoxicating liquor" has the same meaning as in the Liquor Act;

            "labour health area" means an area declared under section 121 to be a labour health area for the purposes of this Act;

            "labour officer" means a person appointed under section 4 to be a labour officer for the purposes of this Act;

            "maternity allowance" means the allowance payable to a female employee by virtue of section 113(5);

            "medical officer" means-

     (a)     a medical practitioner employed by the Government; or

     (b)     any other medical practitioner appointed by the Minister in writing to be a medical officer for the purposes of this Act;

            "mine" includes any undertaking, whether public or private, for the extraction of any substance from under the surface of the earth;

            "minimum wage" means the wage fixed by the relevant minimum wages order;

            "minimum wages order" means an order made under section 135 or 137 fixing or adjusting a minimum wage;

            "overtime" means the number of hours worked in any one day or in any one week in excess of those prescribed by Part VIII;

            "place of employment" means any place provided by an employer where work is carried on by an employee in the course of his employment;

            "prescribed" means prescribed by regulations made under this Act;

            "principal" means any person who, in the course of or for the purposes of his trade or business, contracts with a contractor for the supply of labour or for the execution by or under the contractor of the whole or any part of any work undertaken by the principal;

"public authority" means a corporation established by a written law or corporation registered in accordance with the Companies Act in which the Government owns a majority of all the equity shares;

            "public officer" means an officer or employee of a public authority;

            "quarters" means any building provided or intended to be provided for an employee to live and sleep in either temporarily or permanently and any additional room or building used or intended to be used by an employee, whether communally or privately, for the purposes of cooking, eating, washing or bathing and any latrines or urinals used or intended to be used by an employee;

            "recruiter" means the holder of a valid recruiter's licence issued to him under Part V;

            "recruitment" includes all operations undertaken with the object of obtaining or supplying from a place of recruitment the labour of persons who do not spontaneously offer their labour at the place of work or at an office of engagement conducted by an employers' organization under the supervision of the Commissioner;

            "registered nurse and midwife" means a person who is duly registered both as a nurse and as a midwife under the Nurses and Midwives Act;

            "subcontractor" means any person who contracts with a contractor for the supply of labour or for the execution by or under the subcontractor of the whole or any part of any work undertaken by the contractor for his principal or any person who contracts with a subcontractor to supply labour or to carry out the whole or any part of any work undertaken by the subcontractor for a contractor;

"wage" in relation to any contract of employment, means remuneration or earnings, however designated or calculated, which is paid by an employer to an employee, is capable of beingexpressed in monetary terms, is fixed by mutual agreement or by legislation,and is payable by virtue of a written or unwritten contract of employment;

            "week" means any period of seven consecutive days;

            "young person" means a person who has attained the age of 15 years but is under the age of 18 years.

            (2) Every reference in this Act to a member of an employee's or recruited person's family shall, unless the context otherwise requires, be deemed to be a reference to his wife, husband, child (including a legally adopted child), father, mother, brother, uncle, father-in-law, mother-in-law or son-in-law, where that person lives habitually with or is dependent on the employee or recruited person.

            (3) The provisions of Part VIII shall not apply in the case of an employee who falls into a category of persons commonly known as managers, administrators or executives or as professional staff or into some other category of persons of the same or a similar status.

            (4) A certificate of the Minister to the effect that any person named therein is or is not or was or was not at any time specified therein a person to whom section 27 and the provisions of Part VIII apply or applied shall be conclusive for all purposes, including those of legal proceedings, as to the matter so certified.

3.       Commissioner of Labour

            There shall be a Commissioner of Labour.

4.       Appointment of labour officers

            The Minister may appoint from among public officers any persons whom he considers to be suitably qualified therefor to be labour officers for the purposes of this Act.

5.       Power of Commissioner to delegate his functions

            Except where he is expressly forbidden to do so by this Act, the Commissioner may, with the consent of the Minister, in writing delegate to any person by name or to the person for the time being holding or acting in the office designated by him the exercise of any power or the performance of any duty conferred or imposed on him by or under this Act, subject to such conditions, exceptions or qualifications as the Commissioner may specify, and, thereupon or from such date as the Commissioner may specify, that person may exercise that power or shall perform that duty in conformity with any conditions, exceptions or qualifications so specified.

6.       Power of Minister to give directions

            (1) The Minister may give directions, either generally or with reference to a particular case, to all or any persons appointed or authorized by the Minister or the Commissioner under this Act as to the carrying out of their functions under this Act and, where such directions are given generally, they shall be in writing.

            (2) Notwithstanding the other provisions of this Act, every person to whom directions are given by the Minister under subsection (1) shall comply with those directions.

7.       Power of Minister to restrict application of Act

            The Minister may, by order published in the Gazette, declare that this Act or any provisions thereof shall not apply to any premises or to premises belonging to any class or description of premises specified in the order:

            Provided that the Minister shall, before making such an order-

      (i)     consult the Labour Advisory Board; and

      (ii)     take every reasonable step to ensure that the order contemplated does not conflict with any international agreement or other obligation to which Botswana or the Government is a party or by which Botswana or the Government is otherwise bound.

8.       Saving for other enactments

            Nothing in this Act shall operate to relieve any employer of any duty or liability imposed on him by or under any other enactments for the time being in force or limit any powers conferred on any public officer by or under any such law.

 

 

 


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