By Catherine Sasman
Norman Tjombe of the Legal Assistance Centre (LAC) said the institution welcomes the new regime heralded in by the new Labour Act of resolving labour disputes as the existing district labour court system “was not only complicated for the majority of litigants, who are without trained lawyers, but it was also unnecessarily adversarial”.
He added that some concerns emanate from the Act, which the organisation had raised at earlier stages during the developmental stages of the legislation.
One is discrimination on the basis of sexual orientation which is excluded from the law, whereas the 1992 Labour Act prohibits that.
“I view this as a retrogression in our collective commitment to human rights for all, regardless of who the individuals are,” Tjombe said.
Another concern, he said, is the prohibition placed on labour hire enterprises.
Clause 128 of the new law reads, “[No] person may, for reward, employ any person with a view to making that person available to a third party to perform work for the third party.”
“I think that the ban is overly broad to such an extent that it will not survive a constitutional challenge. Whilst I have complete understanding for the Government and the [trade] unions’ concerns of the exploitative nature of much of the labour hire system, I am of the opinion that we need to give more attention to how to deal with the problem, rather than take the drastic step of banning it with the result of unattended consequences,” Tjombe continued.
One of the apparent consequences, he said, would be that the provision in the Act then in actual fact bans security firms, “which I suppose, was not the intended purpose of this clause.
“By way of an analogy, I think that a strict interpretation of the law will in fact have an impact on other service providers, such as law firms,” said Tjombe.
“Law firms employ lawyers for reward with the view that these lawyers will be made available to third persons to perform work for these persons,” explained Tjombe by way of illustration.
“Although a cursory reading of the relevant clause calls for such an interpretation, I would say that it pro-bably would not be applied in that manner. However, this demonstrates the absurdity of this clause.”
African Personnel Services (APS) public relations officer Johannes Kashiginge, said the company is contemplating the clause, and if necessary, the company would consider challenging the constitutionality of Clause 128.
It is understood that the company has lodged an application with the High Court to challenge the prohibition.
He, however, stopped short of labelling the APS as a labour hire outfit.
“We regard ourselves as a multiple service provider: we provide advice on labour-related matters, payroll services, recruitment by placing employees at clients’ premises for the duration as agreed upon between APS and a client.”
Kashiginge’s reading of the new law as it concerns labour hire companies, is that the law places a prohibition on “all persons who make use of a third party system”.
“But the problem is that there is no definition of what ‘labour hire’ really entails,” said Kashiginge.
Also commenting on the new Labour Act was the Trade Union Congress of Namibia (TUCNA), that disagreed with the Namibian Employers’ Federation (NEF) that interpreted a potential loss of 1.6 million working days with the increased annual leave and five-day compassionate leave per year as set out in the Act.
“Many trade unions have already agreed with the employers in their respective collective agreements for the employee to have compassionate leave; some employers are currently giving five days, others give up to 12 days,” said president of TUCNA Hango Paulus.
Responding to the legislated annual leave, Paulus said: “What we must understand is that some employees are doing heavy duty work, like at sea, mines and others. Some of the employees, although they are married, have kids that need to be taken care of; they are not staying with their family members.
“These employees are only used to seeing their family members at least once a year and only spend about 15 days with their family members.”
He said the employers are to be blamed for these situations because they do not provide housing for employees.
He said of concern to the union is that many employers disrespect their workers, without providing them with pensions and other benefits.
Commenting on the three-months compulsory accommodation to dismissed workers, Paulus said: “Some of these employees have kids and livestock; it is not fair to dismiss them with immediate effect.”
But he was of the opinion that the prohibition on labour hire companies was the “right thing to do”.
Paulus said TUCNA would organise mass demonstrations countrywide as an action against APS’ High Court application.
“The demonstration will be made during the hearing of the said application.
We also want to put it on record that there will be no labour peace in this
country at the workplace if labour hire companies will be used in future,” Paulus threatened.