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Provide an exposition on industrial relations in Namibia, focusing on organizational rights, from the period shortly before independence to the Constitution, the 1992 Labour Act and the 2007 Labour Act. You must discuss the development of the law relating to organizational rights, the right to strike and the right/duty to bargain collectively through the aforementioned periods.


HAMUKOTO H.T 201055031 Ms Adda Angula


1. INTRODUCTION When Africa's last colony gained independence in 1990, the legacies of German colonialism (1884-1914) and South African segregation (1915-1989) continued to frame social relations in the workplace. Industrial relations in colonial Namibia have been described as “primitive in the extreme” (SALB, 1978, p. 31)1. Apartheid created highly adversarial and low-trust relations in the workplace and an occupational hierarchy cemented along racial lines. In an attempt to meet the heightened expectations among black Namibian workers of significantly improved terms and conditions, the post-independence government has pursued a blend of neo-liberal economic policies and neo corporatist labour market strategies. The goal of these policies is the combined attainment of “security” and “flexibility”. However, the struggle to overcome poverty and inequality, while ensuring that the economy becomes internationally competitive, has generated distinct sets of winners and losers. The period since independence is characterised by both a strengthening of the legal and social safety net covering permanent, full-time employment and a proliferation of casual and temporary employment relationships at the margins of this regulatory framework 2. This fragmentation of the regulatory structure in the labour market reflects the process through which the distribution of the costs and rewards of restructuring is institutionalised. This paper outlines some of the key elements of this process. 2. ORGANISATIONAL RIGHTS

One of the fundamental rights of all persons, as guaranteed in the Namibian Constitution, is the freedom of association, which includes the freedom to form and join associations and unions, including trade unions. Article 21(f)(e) specifically states that all persons shall have the right to freedom of association which shall include freedom to form and join association or unions, including trade unions. The fundamental rights and freedom entrenched in Chapter 3 of the Namibian Constitution are inviolable, except in certain respect, these usually being instances of necessity. In a labour context, the right to freedom of association means that every employee has the right to participate in forming a trade union and to join a trade union, subject to the constitution of a trade union. Although the constitution of a trade union may not unfairly exclude employees, they may legitimately limit membership in terms of their constitutions to persons employed within a particular industry3. The constitutional right to freedom of association has been incorporated in section 6 of the Labour Act 11 of 2007 which provide that a trade union or employers’ organisation must not discriminate against any individual on race, colour, ethnic origin, sex, marital status, family responsibility, religion, AIDS or HIV status, degree of physical or mental disability, creed, political opinion, social or economic status or previous, current or future pregnancy in respect

South African Labour Bulletin (SALB) (1978), “The view from the shop floor”, South African Labour Bulletin. 2 Klerck, G. (2005), “Industrial restructuring, labour market segmentation and the temporary employment industry in Namibia”, South African Review of Sociology. 3 Namibian Labour Lexicon Vol.2 (Revised Edition) The Labour Act, 2007


of admission to, suspension or termination of membership; election to or removal from office or the union’s or organisation’s activities. Further hereto, no one is allowed to prejudice an employee or an applicant for employment because of, amongst others, membership of a trade or participation in the lawful activities of a trade union outside working hours; or, with consent of the employer, within working hours. Employees thus have the right to form and join trade unions, attend union representatives, take part in lawful strikes, participate in the election of workplace union representatives, office bearers or official, stand for election and be eligible for appointment as a shop steward, office bearer or official and, in general, to exercise rights conferred by the Labour Act4. Section 7 of the Labour Act refers to the disputes concerning fundamental rights and procedures. Where a fundamental right has been infringed, the dispute may be referred to the Labour Commission where the matter will be referred to an arbitrator to resolve the dispute through arbitration in terms of the Labour Act. If the dispute alleges discrimination, the Labour Commissioner may first designate a conciliator to attempt to resolve the dispute through conciliation. Despite these provisions, a person who alleges that any fundamental rights has been infringed or is threatened may approach the Labour Court for enforcement of that right or protection or other appropriate relief. The following International Labour Conventions are of relevance in this context:   Freedom of Association and Protection of the Right to Organise Convention, 19485 Right to Organise and Collective Bargain Convention, 19496

Article 2 of the Convention concerning Freedom of Association and Protection of the Right to Organise states that “workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation”. Further hereto, Article 8(2) provides that the law of the land shall not be such as to impair, nor shall it be applied as to impair the guarantees provided for in this Convention7. 2.2.LABOUR CODE A framework for stable and equitable industrial relations has been established with approval of the Labour Act 1992 by the National Assembly in July of that year. It represents one of the most significant and wide-ranging enactments by parliament since independence and apart from the Constitution itself, it is unlikely that any other legislation will have as direct an impact on the day-to-day life of the country's people. The Labour Code- the popular term for the new law8- was drafted in consultation with the International Labour Organisation (ILO) and was widely circulated for comment prior to being tabled in parliament. With its
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Section 6 of Act 11 of 2007 as summarised C. 87 OF 19848 6 C. 98 OF 1949 7 International Labour Organisation (1989), Special Report of the Director-General on the Application of the Declaration concerning Action against Apartheid in South Africa and Namibia. 8 Labour Act 11 of 2007


enactment Namibia has for the first time non-discriminatory labour regulations in line with modern, international norms and adapted to the needs of employers, workers and unions alike. The preamble to the Code sets this out clearly, and after referring to the requirement under the Constitution for the Government to actively promote and maintain the welfare of the people of Namibia, states: "In so doing the Republic of Namibia has adopted in the labour field a policy aimed at enacting legislation, with due regard to the furtherance of labour relations conducive to economic growth, stability and productivity through the promotion of an orderly system of free collective bargaining, the improvement of wages and conditions of employment of employees and the advancement of persons who have been disadvantaged by past discriminatory laws and practices, the regulation, free from discrimination on the grounds of sex, race, colour, ethnic origin, religion or creed or social or economic status of conditions of employment, of all workers in Namibia and in particular:   to ensure equality of opportunity for women, particularly, in relation to remuneration, and to provide for maternity leave to, and employment security for women; to promote sound labour relations and fair employment practices by encouraging freedom of association by way of, inter alia, the formation of trade unions to protect workers' rights and interests, and to promote the formation of employers' organisations; to lay down certain obligatory minimum basic conditions of service for all employees without infringing or impairing the right to agree to conditions of service which are more favourable than such basic conditions; to ensure the protection of the health, safety and welfare of men and women at work, and prevent the abuse of child labour; where possible, to adhere and give effect to international labour conventions and recommendations of the International Labour Organisation."

 

The Code provides a statutory framework for the regulation of labour relations and settlement of disputes through the negotiation of collective agreements between employers and employees, while also covering the broader relationship between employers and employers' organisations on the one hand, workers' representative bodies and trade unions on the other9. From an economic and investment perspective the Code's importance lies in the emphasis on creating a fair and predictable industrial relations environment, thereby promoting positive attitudes on both sides of industry and helping to promote the development of a reliable, skilled and motivated workforce in the country. The existence of an equitable, comprehensive and modern labour law which sets clear ground rules for the conduct of industrial relations provides the requisite reassurance for potential investors that they will be able to carry out commercial activities in a positive business climate10.


Namibian Labour Lexicon Vol.2 (Revised Edition) The Labour Act, 2007 Labour Resource and Research Institute (LaRRI)(1999), Understanding the Present –Mapping the Future-34


The Code confirms the right of employees to withdraw their labour through lawful strike action or for lock-outs by employers in a "dispute of interests"11 those mainly concerned with wage and related remuneration issues- and guarantees that such action does not invalidate existing collective agreements or employment contracts. But such action is only lawful after the statutory process for resolving disputes by a Labour Court has been complied with. In the first instance, after notice of a dispute has been given, a conciliation board is established for a period mutually agreed by the parties concerned, and if it fails to reach a settlement, the dispute may be referred to arbitration, also by mutual consent, or either side may taka strike or lock-out action. In a "dispute of rights"- relating to interpretation of the Code's provisions, terms and conditions of employment contracts, collective agreements, the recognition or not of a registered trade union as a collective bargaining agent- if the matter is not settled by a conciliation board, either party involved may apply for a binding determination by the Labour Court, or for arbitration. All Namibian employees are entitled to strike in the circumstances outlined above, except for those providing essential services whose interruption would imperil lives or personal safety. Employers involved in the latter are similarly not allowed taking lock-out action. The Minister of Labour and Social Welfare may also apply for a Labour Court order declaring any particular activity to be an essential service and to prohibit strikes or lock-outs by the employees or employers involved. In all these cases, disputes are referred to arbitration by the Labour Court. Members of the Namibian Defence Force (NDF) and Namibian Police Force (NPF) are not covered by the Code12. Although no national minimum wage regulations have been established, provision is made in the Code for levels of remuneration to be specified for particular industries on the recommendation of a tripartite Wages Commission. The Code also prescribes basic employment conditions- such as working hours, overtime, leave, rest days, disciplinary procedures and termination of employment- as well as requirements relating to occupational health and safety- including duties of employers and employees regarding regulations on health and safety at the workplace13. The various structures and functions established under the Code to facilitate the conduct of industrial relations and labour issues comprise:     The office of Labour Commissioner to deal with collective labour relations, including registration of trade unions and employers' organisations, the definitions of their rights and duties, the registration of collective agreements, the settlement of disputes and incidental matters; Labour Court and district labour courts to consider applications, hear complaints and make orders concerning matters arising from implementation of the Code; an ad hoc three-member tripartite Wages Commission to inquire selectively into remuneration levels and other conditions of employment or industries not covered by

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See below – Cf Strike Section 2(2)(a) Namibian Defence Force, unless the Defence Act, 2002 (Act No. 1 of 2002) provides otherwise; 13 Chapter 4 of the Labour Act 11 of 2007


collective agreements. This may institute minimum wage rates for particular industries on a selective basis; a Labour Inspectorate to deal with matters connected to the implementation of statutory conditions of employment, the terms of collective agreements, and other employer/employee-related issues; a 12-member Labour Advisory Council to advise the government on a broad range of labour-related matters.

Specific provisions of the Code with regard to employment conditions include a maximum statutory working week of 45 hours14 (but 60 hours in the sole case of security guards)15, with overtime as agreed between employer and employee, subject to not exceeding three hours a day or ten hours per week. Free collective bargaining provides the basis for determining wage rates, subject to the power to institute specific rates by the Wages Commission. Employees are entitled to a minimum of 24 consecutive days16, annual leave on full pay, with statutory sick leave on full pay of 30 days for employees working up to five days a week and 36 days in the case of other employees for every period of 36 consecutive months17. Female employees who have been employed for a minimum of 12 consecutive months have the right to 12 weeks' maternity leave18. To terminate contracts of employment at least one month's notice must be provided in the case of an employee who has been employed uninterruptedly for 12 months19, along with a valid reason and in line with standard procedures20.

The Labour Act 11 of 2007 for the first time sets out national procedures for the registration of trade unions21, as well as employers' organisations, which become legal entities with ensuing rights22 and obligations23. It also provides clear guidelines for negotiation of recognition agreements between a trade union and an employer or employers' organisation. Trade unions representing a majority of employees within a particular concern or industry may apply to an employer for recognition as an exclusive bargaining agent in respect of negotiating collective agreements, subject to a requirement also to fully represent the interests of employees who may not be union members24. This takes place automatically where the claim by a trade union to represent a majority of employees is accepted by an employer and where such recognition is refused, an appeal can be made to the Labour Court which can
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Section 16 as summarised Section 3(a) of the Labour Act 16 Section 23 as summarised 17 Section 24 as summarised 18 Section 26 as summarised 19 Section 30(1)(c) 20 Section 30(3) 21 Section 57 22 Section 58: Labour Act 2007: Rights of registered trade unions and employers’ organisation 23 Section 60: Obligation of registered trade unions and registered employers’ organisation while Section 61(4) deals with the failure of registered trade unions and registered employers’ organisation to comply with obligation under this Part. 24 Section 64(1): Recognition as exclusive bargaining agent of employees


overrule the refusal if it finds this has been made on unreasonable grounds. A collective agreement incorporating specific procedures for settling disputes through arbitration or a conciliation board may be formally registered with the Labour Commissioner. This has the effect of making it binding on the employees concerned, whether or not they are members of a recognised trade union, as well as the employer or employers' organisation.

Trade unions are also entitled to form with others a trade union federation and to participate in the activities of, or affiliate with, any international workers' organisation. Most, but not all, trade unions in Namibia are affiliated to a trade union federation, the National Union of Namibian Workers (NUNW), which has a membership of some 75,000. The existence of a strong and independent trade union movement which genuinely represents the interests of its members is viewed by the Government as a vital part of the industrial relations system. NUNW-affiliated unions include the Mineworkers Union of Namibia (MUN) whose membership comprises a majority of mining industry employees and which has in the past few years negotiated recognition agreements with most of the mining companies operating in the country. 3. DUTY TO BARGAIN IN GOOD FAITH Collective bargaining basically entails the procedure whereby an employer or employers’ organisation and employee representatives meet formally, and on an equal footing, to negotiate in good faith with the aim of reaching a mutual acceptance agreement on employment related issues. The word “collective” means that it is a process involving parties representing groups or individuals. “Bargaining” is the term usually used in a labour relations context to describe negotiations between employers and trade unions. In the workplace, bargaining is governed by the fact that employers and employees are mutually dependant. Collective bargaining is done in good faith25 and they must be willing to compromise. Factors such as delaying tactics (for example, a delay in the signing of an agreement that has been reached, delay in the scheduling for meetings, deliberately avoiding meetings and delay in providing relevant information that has been requested for the purpose of bargaining); imposing unreasonable pre-conditions on bargaining or dealing directly with employees rather than their trade union representatives on issues in respect of which collective bargaining is required may suggest the of good faith. The Labour Act 11 of 2007 imposes a duty to bargain on a trade union, an employer and employees’ organisation by stipulating that it is regarded as an unfair labour practice to refuse to bargain collectively, when the provisions of the Labour Act or a collective agreement requires collective bargaining. There is accordingly a legally enforceable obligation to bargain26. In addition, it is also regarded as an unfair labour practice if either a registered


To bargain in good faith means that each party must have the honest intention to find a fair and reasonable solution to the problem at hand. 26 Section 49 of the Labour Act 11 of 2007 as summarised.


trade union, employer or employers’ organisation bargains in bad faith or engage in conduct that subverts orderly collective bargaining or intimidates any person27. In Ulf Seebach v Tauber & Corssen Trading (Pty) Ltd 28 the court had to rule whether the employer complied with its duty to bargain in good faith. The court referred with approval to the case of Visagie v Namibia Development Corporation29 where that court stated as follows: “The opportunity which the respondent was obliged to afford to the appellant was ‘to negotiate’. ‘Negotiation’ is defined in The Concise Oxford Dictionary30 as: ‘Confer with others in order to reach compromise or agreement’ or, as was said in Metal & Allied Workers Union v Hart31 ‘to haggle or wrangle so as to arrive at some agreement on terms of give and take’. The word ‘negotiate’ was also the subject of consideration in Minister of Economic Affairs and Technology v Chamber of Mines of South Africa32. Eloff, DJP said, inter alia: ‘He must enter into debate with them, and, if he thinks it necessary, endeavour to persuade them to change their attitudes. He should give consideration to whether he should not depart from a position already taken for the expediency of achieving compromise. The duty imposed in ‘negotiate’ means that the interchange should precede until agreement or deadlock is reached. The court a quo proceeded by stating that the employer not only has the duty to negotiate, but he also has a duty to do so in good faith. Equally, an employee who avails himself of an opportunity to negotiate needs to do so in good faith. The court continued by stating that an important element of the obligation to bargain in good faith involves meeting, discussing and negotiating with an honest intention of reaching an agreement, if this is feasible. What is required is a demonstration of a genuine willingness to compromise, to shift ground, and to make concessions33. The duty to bargain is a continuing obligation. A strike action is ancillary to collective bargaining, not a substitute for it. As a general rule an employer is permitted to decide when to call off further negotiations and unilaterally implement its latest offer. In such cases, the employees’ only remedy is to strike. In SA Chemical Workers Union v Sasol Industries (Pty) Ltd and another,34 the Industrial Court ruled that the employer is obliged to continue collective bargaining even after the workers had resorted to a strike action. If the parties to collective bargaining negotiations are unable to reach agreement, they may be said to have reached a deadlock or stalemate. Either party may declare to the other that deadlock has been reached. The point of deadlock does not necessarily mean of the negotiations, but it does introduce the possibility that either party may resort to industrial action.

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Section 50 of the Labour Act 11 of 2007 as summarised. Case no. LCA 39/2008, delivered on 4 March 2009 29 1999 NR 219 30 th 9 edition 31 1985 6 ILJ 478 at 493 32 1991 (2) SA 834 (T) 33 This is because willingness to do any of the above-mentioned things is an important feature of bargaining in good faith with a view to resolving the difference that exist between the parties. 34 (2) 1989 10 ILJ 1031 (IC)


4. STRIKES When collective bargaining fails to produce an agreement, either party may choose to resort to industrial action in form of either a strike by the employees or a lockout by the employer in an attempt to force agreement on its terms. No matter what the contract of employment or collective agreement says, a lawful strike cannot be ground per se for terminating an agreement relationship or repudiating a collective agreement. The right to strike is guaranteed in Article 21(1) (f) of the Namibian Constitution, where it is stated that “All persons shall have the right to withhold their labour without being exposed to criminal penalties”, and the Labour Act35 accords the same status by granting the right to strike to employees 36. A strike is defined as total or partial stoppage, disruption or retardation of work by employees if the stoppage, disruption or retardation is to compel their employer, any other employer or an employers’ organisation to which the employer belongs, to accept, modify or abandon any demand that may form from the subject of a dispute of interest 37. It is clear that not only the typical refusal to work shall be considered as a strike action in terms of the aforesaid definition, but also a situation where employees continue to work, but at a rate slower than normal (also known as “go-slow”) or, while working, they engage in actions which retard the productive process, for example by obstructing an exit or entrance, or where workers make brief repetitive stoppages38. It is clear that, to constitute a strike, there must be a demand from the employees that must at the same time be lawful39. It would, for instance, not be lawful to demand that a supervisor should be dismissed without a hearing. A demand would be unlawful if the employee is not able to enforce it or if the employer would act unlawfully in doing so. One also needs to distinguish between a grievance and a demand. A grievance may arise from some practice or policy of the employer and a dispute arises when the employees have made some demand, i.e. the employees have articulated their grievances, with which the employer has declined to comply. The purpose of the strike must be to “…compel their employer, any other employer or an employers’ organisation to which the employer belong, to accept, modify or abandon any demand …40
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Act 11 of 2007 Section 74 37 Section 1 of the Labour Act 11 of 2007 38 Other atypical forms of strike are known as “overtime bans”, which as the name implies, entail only refusal to perform overtime, while work during normal hours continues and “work to rule” is where the employees strictly adhere to work rules or contract terms in circumstances where they have not adhered to the same rules before, for example, where they refuse to do work that they are not contractually obliged to do, although they have done so in normal circumstances – Landis, H Grosset, L. (2005): Employment and the Law - A nd Practical Guide for the Workplace, 2 ed – at 23 39 In Simba (Pty) Ltd v Food & Allied Workers Union & others 1998 19 ILJ 1593 (LC) the employees refused to comply with the employer’s instruction to work a new shift system. The court held that this amounted to nothing more than a concerted refusal to work, as the workers had no demand, and had not raised a compliant; they were simply refusing to comply with the employer’s instruction. 40 See the case of Mzeku & others v Volkswagen SA (Pty) Ltd & others (2001) 22 ILJ 1575 (LC) were a work stoppage by more than 1000 employees was sparked by their union’s decision to suspend a number of shop stewards, a demand which could clearly not be satisfied by the company.


Freedom of Association and Protection of the Right to Organise Convention, 1948 (C. 86 OF 1948). International Labour Organisation (1989), Special Report of the Director-General on the Application of the Declaration concerning Action against Apartheid in South Africa and Namibia, International Labour Organisation, Geneva. Klerck, G. (2005), “Industrial restructuring, labour market segmentation and the temporary employment industry in Namibia”, South African Review of Sociology, Vol. 36 No. 2, pp. 269-94. Labour Act 11 of 2007 Labour Act 6 of 2006 (emphasis only) Labour Resource and Research Institute (LaRRI) (1999), Understanding the Present – Mapping the Future, Labour Resource and Research Institute, Windhoek. Locke, R. (1995), “The transformation of industrial relations? A cross-national review”, in Wever, K. and Turner, L. (Eds), The Comparative Political Economy of Industrial Relations, Industrial Relations Research Association, Madison, pp. 9-32. Namibian Labour Lexicon Vol.2 (Revised Edition) The Labour Act, 2007 Right to Organise and Collective Bargain Convention, 1949 (C. 98 of 1949). South African Labour Bulletin (SALB) (1978), “The view from the shop floor”, South African Labour Bulletin, Vol. 4 No. 1&2, page: 4-74. The Concise Oxford Dictionary – 9th Edition. Oxford Press. 2009