Botswana - Minimum Wages - 2011

16 November 2011.

Regulation of Wages (Hotel, catering or entertainment trade) Order,
1 August 1980, as amended to 2009.

Employment Act,
1982, No. 29 Government Gazette, Extraordinary, Supplement A, 1982-12-29, pp. A135-A221, as amended to 1992.

Regulation of Wages (Building Construction, exploration and quarrying industries) Order,
1 August 1980, as amended to 2009.

Regulation of Wages (Manufacturing, service or repair trade) Order,
1 August 1980, as amended to 2009.

Regulation of Wages (Wholesale or retail distributive trade) Order,
1 August 1980, as amended to 2009.

Regulation of Minimum Wages Order 2006,
Statutory Instrument No. 21, as mofified by Statutory Instrument No. 25, dated 4 April 2006, (Government Gazette Extraordinary, 5 April 2006).

Regulation of Wages (Garage or motor trade, road transport industry) Order, 1 August 1980, as amended to 2009.

"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 any officer or servant of the Government unless he belongs to a category of such officers or servants the members of which are declared by regulations to be employees for the purposes of this Act;

"employer" means any person who has entered into a contract of employment to hire the labour of any person, including -
(a) the Government in respect of any of its officers or servants who belong to a category of such officers or servants the members of which are declared by regulations to be employees for the purposes of this Act; or
(b) a public authority,
or the person who owns or is carrying on for the time being or is responsible for the management of the undertaking, business or enterprise of whatever kind in which the employee is engaged.

"wage" or "wages", in relation to any contract of employment, means the aggregate of basic pay and all other forms of remuneration payable to an employee by an employer by virtue of that contract, including overtime payments and other special remuneration arising out of the particular circumstances under which work is carried out or from other considerations attaching thereto, whether by way of production bonus, cost-of-living allowance or otherwise:
Provided that the expression shall not include-
(i) the value of any house, accommodation, supply of light, water, medical attention or other amenity provided free under this Act or of any service designated, either generally or specifically, as may be prescribed for the purposes of this definition,
(ii) any ex gratia payment or gift or the value of a travelling allowance or concession,
(iii) any contribution paid by the employer on his own account to any pension fund or provident fund; or
(iv) any severance benefits;

Having considered the recommendations of the Board, the Minister may, by order published in the Gazette, fix the minimum wage for employees of the relevant category in the trade, section of trade, industry or section of industry in question specified in the Fourth Schedule and designate the date on which the minimum wage shall come into operation.

(1) Where the Minister considers it necessary or expedient to adjust or abolish the minimum wage in respect of any category of employees in any trade, section of trade, industry or section of industry specified in the Fourth Schedule by reason of changes in the cost of living as notified from time to time by the Government’s Central Statistics Office or by reason of any other relevant changes, he shall refer the question of the adjustment or abolition to the Board and the Board shall investigate the question and make recommendations to him.
(2) Before referring any question of the adjustment or abolition of a minimum wage to the Board in accordance with subsection (1), the Minister shall, by notice published in the Gazette, declare his intention of so doing.
(3) Every notice such as is referred to in subsection (2) shall be published in the Gazette not less than 30 days immediately before the first meeting of the Board in respect of the question to which the notice relates.
(4) Having considered the recommendations of the Board, the Minister may, by order published in the Gazette, abolish the minimum wage in question or adjust it in such manner as he considers appropriate in all the circumstances and designate the date on which the new minimum wage shall come into operation.

In formulating its recommendations to the Minister, the Board shall take into account-
(a) the needs of the employees concerned and their families, taking into consideration the general level of wages in Botswana, the cost of living, any social security benefits and the relative living standards of other social groups.

In formulating its recommendations to the Minister, the Board shall take into account-
(a) the needs of the employees concerned and their families, taking into consideration the general level of wages in Botswana, the cost of living, any social security benefits and the relative living standards of other social groups.

In formulating its recommendations to the Minister, the Board shall take into account-
(a) the needs of the employees concerned and their families, taking into consideration the general level of wages in Botswana, the cost of living, any social security benefits and the relative living standards of other social groups.

In formulating its recommendations to the Minister, the Board shall take into account-
(a) the needs of the employees concerned and their families, taking into consideration the general level of wages in Botswana, the cost of living, any social security benefits and the relative living standards of other social groups.

In formulating its recommendations to the Minister, the Board shall take into account-
(c) economic factors, including the requirements of economic development, levels of productivity and the desirability of attaining and maintaining a high level of employment.

In formulating its recommendations to the Minister, the Board shall take into account-
(c) economic factors, including the requirements of economic development, levels of productivity and the desirability of attaining and maintaining a high level of employment.

In formulating its recommendations to the Minister, the Board shall take into account-
(b) the desirability of eliminating discrimination between the sexes in respect of wages for equal work;
(d) all other relevant matters.

Minimum wage rates apply only to workers in the sectors set forth by the Minister of Labour in Schedule 4 of the Employment Act, 1982 (see Section: Minimum Wages by Sector).
The minimum wages also apply to part-time workers and casual workers.

Government officials are not considered ’employees’, unless the Minister issues a regulation announcing that a certain group of officers or public servants are to be considered ’employees’ in accordance with the Act. Therefore, unless the Minister issues a specific regulation, government officials are not covered by any minimum wage rate order.

Any person affected by infirmity or physical handicap to whom a minimum wages order applies or would apply in the event of his employment or the employer or prospective employer of any such person may apply in writing to the Commissioner for a permit authorizing the employment of that person for less than the minimum wage.
Where an application is made under subsection (1) and the Commissioner is satisfied that the person concerned is affected by infirmity or physical handicap which renders him incapable of earning he minimum wage, he may grant the permit and shall specify therein the wage to be paid and the full name of the person concerned, subject to such conditions as the Commissioner may also specify therein.

The Minister of Labour may establish minimum wage rates for the following sectors as set forth in Schedule 4, Employment Act, 1982:

BUILDING CONSTRUCTION, EXPLORATION AND QUARRYING INDUSTRIES workers:
There shall be paid to employees in any undertaking referred to in paragraph 2 a basic minimum wage of P3.80 thebe per hour, except that persons employed by an undertaking solely to watch over the property of that undertaking shall be paid a basic minimum wage of P3.20 per hour:
Provided that nothing shall prevent-
(i) payment of a higher wage than the basic minimum wage, or
(ii) any agreement or contract with an employee for the partial payment of wages in the form of allowances in kind in accordance with sections 80 and 84 of the Act.

WHOLESALE AND RETAIL DISTRIBUTIVE TRADES workers:
There shall be paid-
(a) to employees in the wholesale distributive trade, a basic minimum wage of P3.80 per hour, except that unskilled employees and persons employed by an undertaking to watch over the property of that undertaking shall be paid a basic minimum wage of P3.20 per hour; and
(b) to employees in the retail distributive trade, a basic minimum wage of P3.80 per hour, except that persons employed by an undertaking to watch over the property of that undertaking shall be paid a basic minimum wage of P3.20 per hour:
Provided that nothing shall prevent-
(i) payment of a higher wage than the basic minimum wage; or
(ii) any agreement or contract with an employee for the partial payment of wages in the form of allowances in kind in accordance with sections 80 and 84 of the Employment Act.

HOTEL, CATERING AND ENTERTAINMENT TRADES workers:
There shall be paid to employees in any undertaking referred to in paragraph 2 a basic minimum wage of P3.80 per hour, except that persons employed by an undertaking solely to watch over the property of that undertaking shall be paid a basic minimum wage of P3.20 per hour:
Provided that nothing shall prevent-
(i) payment of a higher wage than the basic minimum wage, or
(ii) any agreement or contract with an employee for the partial payment of wages in the form of allowances in kind in accordance with sections 80 and 84 of the Act.

GARAGE, MOTOR TRADE AND ROAD TRANSPORT workers:
There shall be paid to employees in any undertaking referred to in paragraph 2 a basic minimum wages of P3.80 per hour, except that persons employed by an undertaking solely to watch over property of that undertaking shall be paid a basic minimum wage of P3.20 per hour:
Provided that nothing shall prevent-
(i) payment of a higher wage than the basic minimum wage; or
(ii) any agreement or contract with an employee for the partial payment of wages in the form of allowances in kind in accordance with sections 80 and 84 of the Act.

No

No

Any person affected by an infirmity or physical handicap to whom a wage order applies, may apply to the Commissioner for a permit authorizing them to be paid less than the stipulated minimum wage rate. Equally, any prospective employer of such a person may also apply for a permit permitting them to pay that person less than the minimum wage rate.

There shall be paid to employees in any undertaking referred to in paragraph 2 a basic minimum wage of P3.80 per hour, except that persons employed by an undertaking solely to watch over the property of that undertaking shall be paid a basic minimum wage of P3.20 per hour:
Provided that nothing shall prevent-
(i) payment of a higher wage than the basic minimum wage; or
(ii) any agreement or contract with an employee for the partial payment of wages in the form of allowances in kind in accordance with sections 80 and 84 of the Act.

2009

(1) Nothing in this Act shall render null and void any contract of employment or other agreement with an employee solely by virtue of the fact that the contract of employment or other agreement provides for the payment of the employee’s wages or other payments which may be due to him in the form of payments in kind, other than in the form of intoxicating liquor or noxious drugs, where-
(a) such payments in kind are appropriate for the personal use and benefit of the employee and his family; and
(b) the value attributed to such payments in kind is fair and reasonable:
Provided that any employer who enters into a contract of employment or other agreement with an employee under which the employer may or shall make a payment in respect of wages or of any other payments which may be due to an employee more than 40 percent of which payment is accounted for by a payment in kind or who makes such a payment shall be guilty of an offence and liable to the penalties prescribed by section 151(c).
(2) Any employer who makes any payment of an employee’s wages or other payments due to him wholly or in part in the form of intoxicating liquor or noxious drugs shall be guilty of an offence and liable to the penalties prescribed by section 151(c).

Any person convicted of an offence under this Act, in respect of which it is provided that he shall be liable to the penalties-
(c) prescribed by this paragraph, shall be liable to a fine not exceeding P1 500 or to imprisonment for a term not exceeding 12 months or to both;

There shall be paid to employees in any undertaking referred to in paragraph 2 a basic minimum wage of P3.80 per hour, except that persons employed by an undertaking solely to watch over the property of that undertaking shall be paid a basic minimum wage of P3.20 per hour

The legislation does not state how frequently minimum wage rates should be adjusted. Instead, the Minister may choose to refer the matter to the minimum wages advisory board as he or she considers fit, following changes in the cost of living index. In practice, the rates are adjusted each year, usually in the month of February.

(1) Where any contract of employment provides for the payment of a wage less than the minimum wage to an employee to whom a minimum wages order applies, the contract shall have effect as if the minimum wage were substituted therefor.
(2) Where an employer fails to pay an employee to whom a minimum wages order applies not less than the minimum wage at such times and in accordance with such conditions as may be specified in the order, he shall be guilty of an offence and liable to the penalties prescribed by section 151(d).
(3) Where proceedings are instituted against an employer in the court of a Magistrate Grade I or over in respect of an offence under subsection (2) and the employer is convicted thereof, the court may-
(a) permit evidence to be led of like offences committed by the employer during the period of two years immediately before the date of the offence of which he stands convicted; and
(b) order him to pay to the employee such sum as is found by the court to represent the difference between the amount he ought to have paid the employee by way of wages in accordance with the relevant minimum wages order during the period of two years referred to in paragraph (a) and the amount in fact paid by way of wages during that period:
Provided that this subsection shall not apply unless-
(i) the employer concerned has been given notice in writing, not less than 14 days immediately before any application is made to the court to exercise the powers conferred by this subsection, of the intention to make the application; or
(ii) the court has informed the employer concerned, not less than 14 days immediately before it commences to exercise the powers conferred by this subsection, of its intention to exercise those powers.
(4) Nothing in this section shall-
(a) derogate from any right of an employee to recover wages due to him by court proceedings; or
(b) prevent any contract of employment to which an employee to whom a minimum wages order applies is a party providing for the payment of a wage greater than the minimum wage or prevent any employer paying more than the minimum wage to such an employee.

Every employer of employees to whom a minimum wages order applies shall keep, in Setswana or English, such records as may be prescribed for the enforcement of this Part and shall retain them for at least five years immediately after the date of the last entry therein.
Any employer who contravenes subsection (1) shall be guilty of an offence and liable to the penalties prescribed by section 151(c).

Any person convicted of an offence under this Act, in respect of which it is provided that he shall be liable to the penalties-
(c) prescribed by this paragraph, shall be liable to a fine not exceeding P1 500 or to imprisonment for a term not exceeding 12 months or to both;

Where an employer fails to pay an employee to whom a minimum wages order applies not less than the minimum wage at such times and in accordance with such conditions as may be specified in the order, he shall be guilty of an offence and liable to the penalties prescribed by section 151(d).

Any person convicted of an offence under this Act, in respect of which it is provided that he shall be liable to the penalties-
(d) prescribed by this paragraph, shall be liable to a fine not exceeding P2 000 or to imprisonment for a term not exceeding 18 months or to both.