Botswana - Working time - 2011

16 November 2011.

Employment Act, 1982, amended 2003

Public Holidays Act

Employment (Domestic Employees) Regulations, 28th December 1984.

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

Regulation of Wages (Building Construction, exploration and quarrying industries) 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 Wages (Garage or motor trade, road transport industry) Order, 1 August 1980, as amended to 2009

Regulation of Wages (Hotel, catering or entertainment trade) 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.

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

"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.

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

Except as hereinafter provided, an employee shall not be required under his contract of employment to work-
(b) more than an ordinary working period of eight hours in any one day or more than 48 hours in any one week
Provided that-
(i) an employee engaged in work which by reason of its nature requires to be carried on continuously may be required to work for eight consecutive hours if those hours include a period or periods of rest of not less than 45 minutes in the aggregate during which period or one of which periods he shall be provided with the opportunity to have a meal; and
(ii) where the working week is one of five days, the hours of work in each day may be increased to nine; but these hours shall be interrupted by a period or periods of rest of not less than one hour in the aggregate during which period or one of which periods the employee shall be provided with the opportunity to have a meal.

Except where an employee is required to work under subsection (2) or in exceptional circumstances not covered by that subsection, no employee shall work for more than 12 hours in any one day.

No child or young person shall, without the express permission of the Commissioner in writing, be required or permitted to work in an industrial undertaking-
(a) for more than three consecutive hours in the case of a child; or
(b) for more than four consecutive hours in the case of a young person, without a period of rest which shall not be less than 30 minutes.
Without prejudice to the limitations imposed by section 105 on the number of hours a child may be required or permitted to work, no young person shall, without the express permission of the Commissioner in writing, be required or permitted to work in an industrial undertaking for more than seven hours a day.

Section 95 of the Employment Act shall not apply:
Provided that a domestic employee shall not be required under his contract of employment to work more than 240 hours in any one period of four weeks.

No employee shall be required to work, other than as provided for in paragraph 7(3), more than nine hours in any one working day or a total of 45 hours in any working week of six days or, in the case of persons employed by the undertaking solely to watch over any property of the industry, more than 10 hours in any one working day or a total of 60 hours in any working week of six days:
Provided that no employee with the exception of persons employed by the undertaking solely to watch over any property in the industry shall be required to work continuously for more than five hours without an interval of at least half-an-hour.

BUILDING CONSTRUCTION, EXPLORATION AND QUARRYING INDUSTRIES workers:
No employee shall be required to work, other than as provided for in paragraph 7(3), more than nine hours in any one working day or a total of 45 hours in any working week of five days or, in the case of persons employed by the undertaking solely to watch over any property of the industry, more than 10 hours in any one working day or a total of 60 hours in any working week of six days:
Provided that no employee with the exception of persons employed by the undertaking solely to watch over any property of the industry shall be required to work continuously for more than five hours without an interval of at least half-an-hour.

WHOLESALE AND RETAIL DISTRIBUTIVE TRADES workers:
No employee shall be required to work, other than as provided for in paragraph 7(3), more than eight and a half hours in any one working day or a total of 47 hours in any working week of five and a half days or, in the case of persons employed by the undertaking solely to watch over any property of the industry, more than 10 hours in any one working day or a total of 60 hours in any working week of six days:
Provided that no employee with the exception of persons employed by the undertaking solely to watch over any property of the industry shall be required to work continuously for more than five hours without an interval of at least half-an-hour.

HOTEL, CATERING AND ENTERTAINMENT TRADES workers:
No employee shall be required to work, other than as provided for in paragraph 7(3), more than eight and a half hours in any one working day or a total of 51 hours in any working week of six days or, in the case of persons employed by the undertaking solely to watch over any property of the industry, more than 10 hours in any one working day or a total of 60 hours in any working week of six days:
Provided that no employee with the exception of persons employed by the undertaking solely to watch over any property in the industry shall be required to work continuously for more than five hours without an interval of at least half-an-hour.

GARAGE, MOTOR TRADE AND ROAD TRANSPORT workers:
No employee shall be required to work, other than as provided for in paragraph 7(3), more than nine hours in any one working day or a total of 45 hours in any working week of five days or, in the case of persons employed by the undertaking solely to watch over any property of the industry, more than 10 hours in any one working day or a total of 60 hours in any working week of six days:
Provided that no employee with the exception of persons employed by the undertaking solely to watch over any property of the industry shall be required to work continuously for more than five hours without an interval of at least half-an-hour.

Section 95 of the Employment Act shall not apply:
Provided that a domestic employee shall not be required under his contract of employment to work more than 240 hours in any one period of four weeks.

An employee may be required by his employer to exceed the limit of hours prescribed by subsection (1) or to work during a rest period prescribed by section 93 in the case of -
(a) an accident, actual or threatened;
(b) work, the performance of which is essential to the life of the community;
(c) work essential for national defence or security;
(d) urgent work to be done to machinery or plant;
(e) an interruption of work which it was not reasonably possible to foresee; or
(f) work to be performed by employees in any industrial undertaking considered by the Minister to be vital to the economy of Botswana or in any service declared by the Minister, by order published in the Gazette, to be an essential service for the purposes of this Part:
Provided that where an employee is required to work during a rest period, he shall be granted a similar rest period in substitution therefor, before the next following rest period is due.

An employee shall not be required or permitted to work overtime for more than 14 hours in any one week:
Provided that the Minister may, by order published in the Gazette, declare that this subsection shall not apply to employees in such industry or undertaking as shall be specified therein.

The Minister may prescribe the maximum number of hours which may be worked as overtime over any given period.

Notwithstanding subsection (7), where the Commissioner is of the opinion that circumstances exist which justify an employee being required or permitted to work overtime for more than 14 hours in any one week, he may, in writing or orally, authorize the employer to require or permit the employee to work overtime for such greater number of hours in any one day as the Commissioner shall specify, for such period and subject to such conditions as he may think fit.

Where the Commissioner is of the opinion that exceptional circumstances exist which are not covered by subsection (2) but are, nevertheless, such as to justify an employee being required by his employer to exceed for a limited period the limit of hours prescribed by subsection (1) or to work during a rest period prescribed by section 93, he may, in writing or orally, authorize the employer to require the employee to exceed such limit or to work during such rest period, subject to such conditions as the Commissioner may think fit.

Where, by virtue of his employer having been authorized under subsection (13), an Copyright Government of Botswana employee is required to exceed the limit of hours prescribed by subsection (1) or to work during a rest period prescribed by section 93, the employee shall be deemed, for the purposes of this Act, to be required to do so under subsection (2) and the proviso thereto shall apply in respect of any rest period or part thereof forfeited in consequence of the requirement.

BUILDING CONSTRUCTION, EXPLORATION AND QUARRYING INDUSTRIES workers:
(1) Where an employee works for any period in excess of nine hours in a working day or a total of 45 hours in a working week of five days or, in the case of a person employed by the undertaking solely to watch over any property of the industry, any period in excess of 10 hours in a working day or a total of 60 hours in a working week of six days, he shall be paid an overtime rate of his normal hourly rate plus one-half of such rate (otherwise known as "time-and-a-half").
(2) Subject to the proviso to paragraph 6, where an employee works on any paid public holiday or rest period prescribed by this Order, he shall be paid an overtime rate of twice his normal hourly rate (otherwise known as "double time").
(3) Any overtime work required by the employer shall normally be at the discretion of the employee except in the event of urgent business demands or emergencies.

WHOLESALE AND RETAIL DISTRIBUTIVE TRADES workers:
(1) Where an employee works for any period in excess of eight and a half hours in a working day or a total of 47 hours in a working week of five and a half days or, in the case of a person employed by the undertaking solely to watch over any property of the industry, any period in excess of 10 hours in a working day or a total of 60 hours in a working week of six days, he shall be paid an overtime rate of his normal hourly rate plus one-half of such rate (otherwise known as "time-and-a-half").
(2) Subject to the proviso to paragraph 6, where an employee works on any paid public holiday or rest period prescribed by this Order, he shall be paid an overtime rate of twice his normal hourly rate (otherwise known as "double time").
(3) Any overtime work required by the employer shall normally be at the discretion of the employee except in the event of urgent business demands or emergencies.

HOTEL, CATERING AND ENTERTAINMENT TRADES workers:
(1) Where an employee works for any period in excess of eight and a half hours in a working day or a total of 51 hours in a working week of six days or, in the case of a person employed by the undertaking solely to watch over any property of the industry, any period in excess of 10 hours in a working day or a total of 60 hours in a working week of six days, he shall be paid at an overtime rate of his normal hourly rate plus one-half of such rate (otherwise known as "time-and-a-half").
(2) Subject to the proviso to paragraph 6, where an employee works on any paid public holiday or rest period prescribed by this Order, he shall be paid an overtime rate of twice his normal hourly rate (otherwise known as "double time").
(3) Any overtime work required by the employer shall normally be at the discretion of the employee except in the event of urgent business demands or emergencies.

GARAGE, MOTOR TRADE AND ROAD TRANSPORT workers:
(1) Where an employee works for any period in excess of nine hours in a working day or a total of 45 hours in a working week of five days or, in the case of a person employed by the undertaking solely to watch over any property of the industry, any period in excess of 10 hours in a working day or a total of 60 hours in a working week of six days, he shall be paid an overtime rate of his normal hourly rate plus one-half of such rate (otherwise known as "time-and-a-half").
(2) Subject to the proviso to paragraph 6, where an employee works on any paid public holiday or rest period prescribed by this Order, he shall be paid an overtime rate of twice his normal hourly rate (otherwise known as "double time").
(3) Any overtime work required by the employer shall normally be at the discretion of the employee except in the event of urgent business demands or emergencies.

For the purpose of calculating the daily rate of payment and/or benefits due for overtime to an employee employed on a monthly rate of pay the following divisors shall be applied-
22 in respect of a 5 day working week;
24 in respect of a 5 1/2 day working week;
26 in respect of a 6 day working week:
Provided that the Minister may, by regulations, prescribe different methods of calculation in respect of any particular specified circumstances.

The Minister may make regulations for calculating the payments due to an employee for overtime in any particular circumstances.

Except as hereinafter provided, an employee shall not be required under his contract of employment to work -
(a) more than five consecutive hours without a period of rest which shall not be less than 30 minutes;
Provided that-
(i) an employee engaged in work which by reason of its nature requires to be carried on
continuously may be required to work for eight consecutive hours if those hours include
a period or periods of rest of not less than 45 minutes in the aggregate during which
period or one of which periods he shall be provided with the opportunity to have a
meal; and
(ii) where the working week is one of five days, the hours of work in each day may be
increased to nine; but these hours shall be interrupted by a period or periods of rest of
not less than one hour in the aggregate during which period or one of which periods
the employee shall be provided with the opportunity to have a meal.

If an employee works, on being required to do so under paragraph (i) of the proviso to subsection (1), for eight consecutive hours, the period or periods of rest of not less than 45 minutes in the aggregate therein prescribed shall count as working time and be paid accordingly.

Every employee shall be granted by the employer in every period of seven consecutive days a rest period comprising at least 24 consecutive hours, which period shall ordinarily be or include a Sunday.

Notwithstanding subsection (1), the Commissioner may, in writing or orally, exempt any employer from the provisions of that subsection, for such period and subject to such conditions as he may think fit and as are reasonable, having regard to the welfare of the employees concerned, in the particular circumstances.

An employee engaged in work which by reason of its nature requires to be carried on continuously by a succession of shifts may be required by his employer to work during a rest period prescribed by section 93; and, where the Commissioner rules that any work does not by reason of its nature require to be carried on continuously by a succession of shifts, such work shall be deemed, for the purposes of this section, not to be of such a nature.

Where the Commissioner is of the opinion that exceptional circumstances exist which are not covered by subsection (2) but are, nevertheless, such as to justify an employee being required by his employer to exceed for a limited period the limit of hours prescribed by subsection (1) or to work during a rest period prescribed by section 93, he may, in writing or orally, authorize the employer to require the employee to exceed such limit or to work during such rest period, subject to such conditions as the Commissioner may think fit.

Where, by virtue of his employer having been authorized under subsection (13), an Copyright Government of Botswana employee is required to exceed the limit of hours prescribed by subsection (1) or to work during a rest period prescribed by section 93, the employee shall be deemed, for the purposes of this Act, to be required to do so under subsection (2) and the proviso thereto shall apply in respect of any rest period or part thereof forfeited in consequence of the requirement.

Any employee who works during a rest period, either by agreement with the employer or on being required to do so under section 95, shall be paid at least double the wages he would have been paid had the period been an ordinary working period, or at his option be granted a day or days off, as the case may be, in lieu thereof.

Provided that, where the employee is engaged on shift work, he shall be granted a rest period comprising any period of 30 consecutive hours.

No child or young person shall, without the express permission of the Commissioner in writing, be required or permitted to work on a rest day or paid public holiday by virtue of section 99
Where a child or young person works on a rest day or paid public holiday or for part thereof, the employer shall grant him a day or part of a day off, as the case may be, in substitution for such rest day or paid public holiday or part thereof before the rest day next following is due unless the time interval involved renders this impracticable.
Any person who contravenes this section shall be guilty of an offence and liable to the penalties prescribed by section 151(b).

Every employer shall grant to every employee employed by him leave with basic pay at the rate of not less than 1,25 days per month.

The basic pay payable in respect of any period of leave for which this section makes provision, whether accumulated or otherwise, or in accordance with subsection (6)(b) shall be the current basic pay.

Of the 15 working days’ leave earned in respect of any period of 12 months not less than eight working days shall be taken no later than six months immediately after the end of the period in respect of which the leave was earned.
Any balance of leave not taken in accordance with subsection (3) may be accumulated, year by year; but such leave shall not be accumulated for longer than three years immediately after the end of the period in respect of which leave was first accumulated, and at the end of that three years’ period all the accumulated leave together with all the leave earned in respect of the immediately preceding period of 12 months shall be taken.
The leave for which this section makes provision shall be in addition to any public holiday or weekly rest period in respect of which, by agreement or custom, the employee is not required to work under his contract of employment and any period during which the employee is absent from work owing to illness.

The days named in the Schedule shall be public holidays within Botswana:
Provided that-
(i) when any of the said days fall on a Sunday the following Monday shall be observed as a public holiday;
(ii) if 2nd January, 1st October or Boxing Day falls on a Monday, the following Tuesday shall be observed as a public holiday;
( iii) when Botswana Day referred to in the Schedule falls on a Saturday, the next following Monday shall be observed as a public holiday.
Notwithstanding anything in subsection (1), only Christmas Day, Good Friday and Botswana Day shall be public holidays in the mining industry, which shall be taken to comprise such undertakings as may be engaged in the winning of minerals as defined in the Mines and Minerals Act.

New Year’s Day
2nd January
Good Friday
Saturday following Good Friday
Easter Monday
Ascension Day
Labour Day (1st May)
Sir Seretse Khama Day (1st July)
President’s Day (third Monday in July)
Tuesday following President’s Day
Botswana Day (30th September)
1st October
Christmas Day
Boxing Day

Each of the public holidays specified in the Second Schedule shall be a paid public holiday for the purposes of this section:
Provided that, within the mining industry alone, paid public holidays for the purposes of this section shall be those public holidays customarily recognized by the industry as paid public holidays.
The Minister may, by order published in the Gazette, amend the Second Schedule.

Any employee who works on a paid public holiday or on a day observed as a public holiday by virtue of the provisions of subsection (2) shall-
(a) be paid at least double the wages he would have been paid had the day been an ordinary working day; or
(b) be granted a paid day off in lieu of that day within 10 days immediately thereafter.
Subject to subsection (3), the employer shall pay to the employee his basic pay in respect of every paid public holiday.

Young workers:
No child or young person shall, without the express permission of the Commissioner in writing, be required or permitted to work on a rest day or paid public holiday by virtue of section 99
Where a child or young person works on a rest day or paid public holiday or for part thereof, the employer shall grant him a day or part of a day off, as the case may be, in substitution for such rest day or paid public holiday or part thereof before the rest day next following is due unless the time interval involved renders this impracticable.
Any person who contravenes this section shall be guilty of an offence and liable to the penalties prescribed by section 151(b).

No child or young person shall be employed on any kind of work during the night:
Provided that a young person may be employed on work during the night-
(i) in the case of an emergency which could not reasonably have been foreseen and prevented, which is not of a periodical character and which interferes with normal working; or
(ii) if the young person is so employed under a contract of apprenticeship or indenture to learn.
For the purposes of this section, "the night" means a period of not less than 12 consecutive hours including-
(a) in the case of a child, the period between 10 p.m. and 6 a.m. the following morning; or
(b) in the case of a young person, the period between 11 p.m. and 6 a.m. the following morning.
Any person who contravenes this section shall be guilty of an offence and liable to the penalties prescribed by section 151(b).

Notwithstanding section 95(1) , an employee engaged under his contract of employment in regular shift work may be required by his employer to work more than five consecutive hours without a period of rest, more than eight hours in any one day or more than 48 hours in any one week; but the average number of hours worked over any period of four weeks shall not exceed 48 per week.
Section 95(5) shall not apply to any employee engaged under his ontract of employment in regular shift work; but any such employee who works for his employer for more than an average of 48 hours per week over any period of three weeks shall be paid in accordance therewith in respect of those hours worked in excess of the average of 48 hours per week.
Where there is any contravention of this section, the employer shall be guilty of an offence and liable to the penalties prescribed by section 151(c).