How reliable are Namibia’s labour laws?
The Namibian people have taken into account the factors that affect them from all four corners of the country, the unfair labour practices, and to a lesser extend acceptable labour practices.
The Namibian people historically have been victims of the South West African Native Labour Association (SWANLA), which was only replaced by African Personnel Services (APS) because of a loophole in the Namibian Constitution, Article 21 (j). African Personnel Services (APS) to date is one of the biggest labour hire companies in Namibia, with its head office in South Africa.
After threats of lawsuits and legal challenges, APS took the Namibian government to court, claiming that the ban on labour hire was an unconstitutional infringement on its right to do business, even though the High Court of Namibia’s decision of November 2008 upheld the ban on labour hire. However, the Supreme Court decided otherwise and declared the ban unconstitutional in December 2009. However, some of the practices hereunder are questionable, and Namibian workers accuse some on state institutions designed to regulate such practices as having failed to a certain degree.
The Employment Services Act 8 of 2011 is one of the instruments under the Labour Act 11 of 2007 which impose reporting and other obligations on certain employers and institutions, and further provides for the licensure and regulation of private employment agencies. It further deals with other incidental matters. The Act seeks to provide professional labour services to achieve full and decent employment in Namibia, which is to be guided by the board and the bureau.
The Employment Service Act (3) (f) states that the board has one member representing the interests of persons living with disabilities. However, the Employment Service Act 8 of 2011 failed to include persons with disabilities, as there are no clear instructions to the private sector for the empowerment of persons with disabilities.
The Employment Equity Commission, on the other hand, states that their core function is to ensure that an employer has adopted and is implementing an affirmative action plan, and whether any particular affirmative action plan or affirmative action measure meets the objectives of the Act.
The Employment Equity Act 55 of 1998 stipulates that their main objective is to achieve equity in the workplace by promoting equal opportunities and fair treatment in employment through the elimination of unfair discrimination and implementing affirmative action measures to redress disadvantages in employment that may be experienced. A number of adverts from different organisations come out that encourage people with disabilities to apply. However, a visit to the premises of these institution would prove that they are not ready to hire persons with disabilities. The architecture of these organisations is not user-friendly for persons with disabilities. The commission alongside the Employment Service Board have failed to provide statistics to expose the companies that are not in compliance with the labour laws of the Republic of Namibia.
The Wages Commission of Namibia, as an instrument of the Labour Act of 2006, is a great initiative that seeks to investigate all relevant industries, report and make recommendations to the minister on a proposed national minimum wage which will apply to all employees, except to related categories of employees specifically exempted by the minister in a wage order, and on related supplementary minimum conditions of employment.
The Act further states that one of its key functions is to reduce income inequality and improve the wages of the lowest paid worker. The Act has failed to live up to its expectation, and it could be seen as an instrument that empowers those in this structure to be salary collectors only. Watchmen, security guards and farmworkers have been seeking a decent minimum wage for years, but no decisive decision was communicated to companies that applied the SWANLA practices of underpaying Namibian people.
Several companies hire Namibians without any work contract, and they take advantage of paying retail workers as well as employees in the logistics and wholesale industry starvation wages, especially the China shop outlets in Namibia. China shops across Namibia pay the Namibian worker a wage that could only lead to abject poverty.
It is imperative to note that the Namibian child, 31 years after independence, still suffers from unfair labour practices.
The SWANLA practices that were banned in 1971 seem to have advanced in postindependence Namibia. One begs to ask what the Namibian people sacrificed their lives for, only to be discriminated against and receiving starvation wages in independent Namibia? The Labour Act of 2007 of the independent Namibian state stipulates that its mandate is to regulate basic terms and conditions of employment; to ensure the health, safety and welfare of employees; and to protect employees from unfair labour practices.
Clearly, the office-bearers who are entrusted by the Namibian people to uphold these instruments have failed the Namibian workers in general, or the job seekers who are being discriminated against by the unaudited employment sector.