Namibia: Controversy over Amendment in Labour Act

Issues of labour and labour rights in southern Africa, highlighted by the recent brutality towards South African mine workers in Marikana, do not engender unusual concerns. It needs to be noted that all such labour unrest or controversy in southern Africa is not violent in character. The case in point is of Namibia, where an amendment to Section 128 of the Labour Act, aimed towards regulating the labour hire system, has generated much argument, contributing ultimately to a fear of increased unemployment. The stated amendment, effective from August 1, 2012, requires companies which hire labour on a temporary basis from labour hire agencies to recognise such labourers as employees of the company. Furthermore, under the amended act, such labourers are to be given the same rights and benefits as given to permanent employees and would include protection against unfair dismissal and the right to join trade unions. Considering it as a positive move for protecting the rights of labourers and ensuring adequate compensation for services, the National Union of Namibian Workers (NUNW) has supported the amendment. However, this support is contrary to the stand taken by most employers and labour-hire agencies that have criticised the amendment.

As the uproar in the legislative and business corridors continued, the Namibian Employers Federation (NEF) reacted strongly by stating that such amendments do not take into account industrial practicalities and that they undermine a company’s need to hire temporary labour. According to Tim Parkhouse, secretary general of the NEF, strict labour legislation inhibits an economy instead of helping it; he further commented that the issue of labour hire arose because of some bad labour hire agencies and companies who refused to fully compensate the temporary labour. However, he stated that temporary labour is crucial in an economy and legislative amendments against it would harm the prospects of growth1 . The controversy became more acute as the African Personnel Services (APS), the largest labour hire agency, fired 7,000 of its employees. While this was cited by employers as being the result of an innate flaw in the amendment, the NUNW posed the question of “did those people have those jobs in the first place and is Africa Personnel Services really an employer as labour hire companies do not by their very nature go out and create employment as they would want us to believe.”2 These questions have done little to deter the APS, but the government held that the amendment “only closes a loophole that enabled the user enterprises to evade responsibility toward the persons working for them”3 and that it does much to ensure equitable labour rights.

This current issue may be viewed as an extension of the 2007 legislation of the Labour Act. Section 128 of the Labour Act 2007 had outlawed the labour hire system altogether. This ban was challenged by the APS which initiated judicial proceedings against the Ministry of Labour and Social Welfare, charging that the ban under Section 128 was unconstitutional as it interfered with the fundamental right to “practice any profession, or carry on any occupation, trade or business”4 under Article 21 (1) of the constitution. The Supreme Court of Namibia upheld the grounds of the petition which led the government and the Ministry of Labour and Social Welfare to undertake the process of amending the relevant Section. However, as the date of the implementation of the Amendment came closer, the NEF was seen to be getting jittery to the point that a last minute meeting was held on July 20 to persuade the government to defer the date of implementation.

With no postponement in the date of implementation of the amended section, the APS has once again taken the government and the Minister of Labour and Social Welfare to court on grounds that the amendment bans labour hire in effect and therefore is unconstitutional in nature. The case was last heard on September 27, 2012 when the government’s attorney argued that the amendment neither bans nor regulates labour hire but tries to ensure that companies do not evade their duties towards their employees. The final verdict is yet to be out but it has generated speculation on whether the amendment would push up the unemployment figures with companies not hiring more labour than what is absolutely required. An argument used in this context has been that a ‘barrier to firing is a barrier to hiring’5 . Despite the reasons given by the employers and the subsequent response from the labourers, the fact that stands out is that a matter of such deep political and economic consequence is being played out within the political and social institutions of the country. It is important to note that violent resistance or disorder was not observed in this case and the amendment to the Labour Act, 2007 of Namibia was carried out and debated within constitutional premises. This is in sharp contrast to what has made headlines with regards to the mine workers’ wages controversy in South Africa, the different bases and working conditions among mine workers and casual labourers notwithstanding.

The controversy and the consequent role of the judiciary obligates one to note that while inequity continues to be a challenge in southern Africa, reconciliation and redressal can well be carried out within the domains of domestic institutions, and justice can be rendered by an effective civil judiciary. What finally happens and the consequent reactions of the various interest groups will be disclosed over time, but violence, legal transgressions or any hindrance to the economic prospects seem unlikely.