Victory for Namibian Workers: Nam forges ahead with outlawing labour brokerage
Windhoek – Namibia’s effort to abolish the practice of labour hire was given a major boost with a High Court verdict that upheld constitutionality of amendments to the Labour Act.
On June 27, 2013, the High Court ruled in favour of the Ministry of Labour and Social Welfare in a case against the country’s biggest labour broker, African Labour Services (APS) in a matter pertaining to Labour Amendment Act of 2012.
The Court dismissed the application by the APS to declare unconstitutional certain sections of the Act and consequential amendments to the Employment Services Act, 2012 that pertain to the protection of labour hire workers and to the practices of private employment agencies, including labour hire agencies.
APS has been fighting to halt changes to the labour legislation when the then Labour Minister Immanuel Ngatjizeko proposed an amendment to the Labour Act of 2007 in parliament.
APS fought to have the Courts declare Section 128 of Labour Act of 2007 that outlaws labour hire in Namibia unconstitutional.
Section 128 stipulated that: “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”.
When the Act came into effect in 2008, APS with the support of the Namibian Employers Federation (NEF), lodged a legal action in the High Court to challenge the constitutionality of the ban on labour hire. But the Court upheld the constitutionality of Section 128 and dismissed the employers’ application.
Following an appeal to the Supreme Court, APS got its wish in December 2009, however short-lived, when the Court of Appeal ruled in its favour declaring Section 128 to be in conflict with Article 21 (J) of the Constitution. The said article provides for the right to do business or practice a profession.
The Court of Appeal further held that the exploitative practice of the system could be addressed through regulatory legislation, but that it would not be permissible to ban labour hire.
Following the ruling, the Ministry of Labour and Social Welfare brought a new amendment bill to parliament to replace Section 128 that was deemed unconstitutional by the Supreme Court in 2009.
The Labour Act of 2007 was amended towards the end of 2011 after lawmakers in the National Assembly from Swapo and opposition rallied to pass the Bill without delay.
During a ministerial statement in the National Assembly on July 3, 2013, the Labour Deputy Minister, Alpheus Muheua hailed the High Court judgment as victory for Namibian workers.
Muheua informed the House that the labour inspectorate and the staff of the Employment Services Bureau of the Ministry of Labour and Social Welfare will conduct inspections in the near future of both user enterprises and private employment agencies to ensure compliance with the law as upheld by the High Court.
“I wish to thank and congratulate this House on its determination to end the abuse and exploitation that Namibian workers have suffered through labour hire.
“The message is clear: while there is a legitimate role for private employment agencies in Namibia, they may not profit at the expense of the rights of workers.
“The Court’s judgment should encourage us to remain vigilant to address new forms of exploitation, should they emerge, that could undermine these rights,” the deputy minister said.
In the mid-1990s, several labour hire agencies, also known as labour brokers, were established in Namibia.
Labour brokers offered to employers the possibility of renting the services of workers on either a temporary or indefinite basis, for a specified price per worker.
This was achieved by the labour hire agency and the user enterprise by entering into a contract that designated the labour hire agency as the employer of workers who were placed with the user.
“In this way, the user enterprise could hide behind its labour hire contract to avoid dealing with trade unions, addressing employee grievances, adhering to health and safety requirements or ensuring that workers enjoyed the basic conditions of employment guaranteed to employees by the Labour Act, such as annual leave, sick pay, overtime pay and the right not to be unfairly dismissed.,” Muheua argued.
“As a result, many employees in the labour hire system were deprived of basic rights enjoyed by other employees and were among the lowest paid, most marginalised workers in Namibia. They were often uncertain as to who was their employer.”
Muheua explained that the Labour Amendment Act, 2012 takes a new approach to the problem of labour hire, by ensuring protection of the employees working in that system.
He noted that the Act designates the user enterprise as the employer of the employees placed with it by a private employment agency.
“This means that the user now has the same duties under law as any other employer toward the placed employees.
“The Amendment Act also provides that the employees placed with the user enterprise shall enjoy the same rights as any other employees in relation to their employer, including the right to organise a trade union,” he said.
The new law also includes amendments to the Employment Services Act that regulate directly the conduct of the private employment agencies providing labour hire services.
Under the Employment Services Act, private employment agencies are not allowed to refer persons for prospective employment to employers that is not in good standing with the requirements of the Affirmative Action (Employment Act) or the Social Security Act.
According to a 2006 study conducted by the Labour Resource and Research Institute (LaRRI) for the Ministry of Labour, most labour hire workers in Namibia earned between R3-R6 per hour but in some cases wages could be as low as R2 per hour.
On the other hand, skilled artisans earned around R40 per hour, particularly if they worked at mining companies. Labour hire workers enjoyed very few benefits and most worked 37-46 hours per week.