CODeL ASSIGNMENT TEMPLATE

Academic year 2022

Student Name Kleopas S Kapalanga

Student number 221000771

Email Address kkapalanga@gmail.com

Cell/Tel no 0811286565

CODeL Centre Windhoek

Course/Module Name Course/Module

Code

Labour Law CLA 3651

Assignment no
(e.g. 1, 2 or 3,
etc.).
2
Table of Contents
Question 1 ..................................................................................................................................................... 1
1. Introduction .............................................................................................................................................. 1
2. Right to Form and Join a union or organisation........................................................................................ 2
3. Constitution of trade union and employer organisation .......................................................................... 2
4. Rights and obligations of registered trade union and employer organisation ......................................... 4
Conclusion ..................................................................................................................................................... 5
Reference ...................................................................................................................................................... 7

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Question 1
General principle of trade unions and employer’s organisation.

1. Introduction
The characteristics of the modern economy have an impact on the relationship between
employers and employees. Governments in developing countries employ the greatest
number of people, including government parastatals, local governments, and various
state enterprises with a wide range of professions. The same is true for private firms,
where it is no longer just family businesses, but large corporations managed by
professionals who are not business owners. As labour disputes have become more
common, employees and employers have seen fit to form and join organisations such as
Trade Unions and Employer Organizations with the goal of promoting and defending their
common interests.

Chapter 6 of the Labour Act, 2007 covers the legal framework relevant to the creation,
registration, and other aspects linked to the rights and operations of trade unions and
employer's organizations (the Act).1 Article 21 (1)(e) 2 of the Constitution of the Republic
of Namibia guarantees all persons, including employers, the right to join and create
organisations of their choice. An employer organisation (organisation) is defined by the
Act as a group of employers formed with the goal of regulating the relationship between
employers and employees, whereas a trade union (union) is defined as an employee
organization formed with the goal of regulating the relationship between employees and
their employers.3

In this paper we are going to discuss the general principles governing trade unions and
employer organisation. References will be made to applicable statutory laws and decided
court cases to support the discussion.

1
No 11 of 2007.
2
Constitution of the Republic of Namibia
3
Ibid.: chapter 1

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2. Right to Form and Join a union or organisation
Before diving into the purpose of documents, it's critical to review the regulations that
allow an employer or employee to organise and join an organisation or union in detail.
The freedom to join and create a union or organization is a human right that is recognised
worldwide as well as in our constitution. Every person (worker/employer) has the right to
combine and form a union or organisation of their choice, according to Article 21(1)(2) of
the United Nations International Covenants on Civil and Political Rights (ICCPR).4This
treaty is bidding on all state members including Namibia.5

Article 2 of the Covenant requires all Covenant members to establish laws that are
consistent with its principles; Namibia has done so through the Labour Act and Article
21(1) (e) of the Constitution. Employers in Namibia are required to respect an employee's
decision to join a particular union, and employers cannot impose a non-union membership
requirement as a condition of employment, as this would be a violation of the
constitutional rights.

3. Constitution of trade union and employer organisation

According to section 53 of the Act, parties wishing to be registered under section 57 of
the Act must first form a constitution that meets the following requirements.: 6

The name of the union or organization must be specified in its constitution, and it must be
unique from the name of another registered union. The name must not be in any manner
offensive, derogatory, or disgusting.7 The law requires that the union or organisation's
objectives be stated in the constitution; the goal should be for a good cause, not for
criminal or unlawful purposes such as obstructing the course of the law or the
implementation of the labour act. Even though unions have historically played an

4
International Covenant on Civil and Political Rights (1996)
5
Namibia is a member state since 1994
6
The Act,2007: s 53(2)-(5)
7
Parker, C. 2012. Labour Law in Namibia. Windhoek: University of Namibia Press, 248.

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important role in national struggles, a union cannot be formed solely for the purpose of
gaining political influences.8

The constitution of the union or organisation is also expected to specify the industry or
industries in which it will be active. Unlike Swaziland, where section 29 of the Industrial
Relations Act of 2000 states that unions can only represent employees in one industry,
our labour law does not limit unions to one area, allowing them to work in a variety of
industries..9 The Labour Act further requires that the union or organisation constitution
must contain provisions in regards to the requirements for admission of membership and
fees, a union cannot reject an application of an employee, the general provision of the
law is that every employee under the union industrial scope who met the requirements
cannot be denied the right to join that union, in a case of Nagle v Fielded10 a jockey trainer
was denied membership to the association of jockeys , the judge ruled the association
decision as arbitrary and unreasonable.

Union/organisation decision just like any other bodies are subjected to principles of
administrative law for the prevention of abuse of power. Since union exercise powers over
their members they are also expected to observe the common law requirements of natural
justice and fairness.11 In Faramus v Film Artistes Association, the court found the
association's rule to exclude individuals who have been convicted of a felony to be
reasonable, implying that courts can uphold rules governing admission of members to a
union or organisation as long as they do not violate constitutional rights.12

The constitution must include procedures that will be utilized to decide the fees and other
contributions. It is critical that such fees be used only to further the institution's objectives;
otherwise, the union will be usurping its powers, as in the case of Amalgamated Society
of Railway Servant v Osborne13, where the union was collecting money from its members
for a political levy. After the court applied the doctrine of ultra vires, the court ruled that

8
Ibid.; see also Tordoff, W. 1984. Government and politics in Africa. London: Macmillan,58
9
Parker. (2012:248); Act No.1 of 2000.
10
Nagle v Fielded 1996 2 QB 633
11
Parker. (2012:249); Nagle v Fielden 1996 2 QB 633
12
Ibid.; Faramus v Film Artistes Association 1964 2 AC 925
13
Ibid; Amalgamated Society of Railway Servant v Osborne [1956] AC 104 (HL)

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the union's rule requiring such payments was null and void. The constitution must also
specify the procedure to be followed in the event of voluntary or involuntary membership
termination, as well as the circumstances under which membership can be terminated.
Members should be granted the opportunity to be heard, including appeal option, if their
membership is terminated for any reason. The House of Lords concluded in Bonsor v
Musicians14 that if a membership is wrongfully cancelled, the member is entitled to any
suitable relief.

The constitution of the union/organisation must make provisions for elections of office
bearers, officials, their terms and procedures to be followed during the election. labour
act demand that no person who have been convicted of a dishonest crime and sentence
to an imprisonment term musts be voted into these position.15 Their constitution may only
be amended with the approval of the labour commission after they submit an application
in the prescribed form and a certificate will be issued. A registered union/organisation
may be wounded up by the labour commission on the request of the union itself, a request
by some of its members of which the labour commission should be satisfied that winding
up is the only option or in a case that the union become insolvent in terms of section 24
of the Insolvent act of 1936.16

4. Rights and obligations of registered trade union and employer

organisation
Once a union or organisation has adopted its constitution in accordance with Section 53
of the Act, it may apply for registration to the Labour Commission by submitting the
prescribed form along with all certified copies of its constitution, and will be issued a
certificate of registration. A register union becomes a juristic person, which means it gains
legal standing ( to sue, be sued, dispose and hold properties and enter onto its own
obligation) 17

14
Bonsor v Musicians Unions [1956] AC 104 (HL)
15
The Act of 2007: s 53(g) (i)-(iii); Parker. (2012:241)
16
Act No 24 of 1936
17
The Act of 2007: S 57(1)-(5), S 58; Parker (2012:254-255)

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A registered union or organization has the right to bring a case before a court on behalf
of its members. For example, in the case of Namibian Employers' Federation v President
of the Republic of Namibia18 the federation brought the matter before the court on behalf
of its members, the employers, asking the court to declare regulation 19 of the Covid-19
regulations unconstitutional . Registered union also have rights to access workplace of
their members but employers can refuse access to it premises if the union is not
registered, in the south African case of Vodacom (Pty) Ltd and Others v National
Association of South African Workers and Another the court ordered that an unregistered
trade union is not entitled to right of access to the workplace of its members.19

Unions and organisation also acquired the rights to partner with other international
organisation without any political interference.20 As a bargaining agent, a registered trade
union can negotiate terms and enter into collective agreements with any employer or
registered employer organization. The law mandated that it keep member registers, keep
books of accounts, and produce yearly income statements that must be submitted to the
labour commission. 21

Conclusion
Trade unions and employer organisation do not just operate in a vacuum but under the
provision of the law which set out the guiding principles. They are expected to follow their
constitutions, but their constitutions cannot contradict the Namibian constitution, which is
the country's supreme law. The Labour Act specifies the essential contents of a union or
organisation’s constitution, which include, among other things, the requirements,
registrations and qualifications for union membership. Trade Unions and employer’s
organisations are expected to comply with labour provisions, failure to do so may result

18
Namibian Employers’ Federation v President of the Republic of Namibia (HC-MD-CIV-MOT-GEN-2020/00136)
[2020] NAHCMD 248 (23 June 2020)

19
Vodacom (Pty) Ltd and Others v National Association of South African Workers and Another (J 256 of 2019)
[2019] ZALCJHB 393 at page 15

20
The Act of 2007: s 59; 1996-2017 International Labour Organization (ILO) (Right of employers and worker’s
organizations to establish federations and confederations and to affiliate with international organizations of
employers and workers)

21
The Act of 2007: s 60

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in the cancellation of a union or organisation under Sections 61 and 62 of the Labour Act
of 2007.

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Reference

Books

Parker, C. 2012. Labour Law in Namibia. Windhoek: University of Namibia Press

Tordoff, W. 1984. Government and politics in Africa. London: Macmillan

Case Law

Amalgamated Society of Railway Servant v Osborne [1956] AC 104 (HL)

Bonsor v Musicians Unions [1956] AC 104 (HL)

Faramus v Film Artistes Association 1964 2 AC 925

Nagle v Fielded 1996 2 QB 633

Namibian Employers’ Federation v President of the Republic of Namibia (HC-MD-CIV-

MOT-GEN-2020/00136) [2020] NAHCMD 248 (23 June 2020)

Vodacom (Pty) Ltd and Others v National Association of South African Workers and
Another (J 256 of 2019) [2019] ZALCJHB 393

Statutes

1996-2017 International Labour Organization

Constitution of the Republic of Namibia

Industrial Relations Act of 2000

Insolvent Act, no 24 of 1936

International Covenant on Civil and Political Rights (1996)

The Labour Act, No 11 of 2007

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