May month is usually a joyous labour month for workers internationally. However, during May this year, a dark cloud has recently been thrown over the labour market in Namibia.
It was recently widely reported in the media that Namport issued a media statement confirming the dismissal of about 86 workers following disciplinary proceedings.
It was further reported that the workers were allegedly dismissed for undertaking an illegal strike in 2018 when they allegedly stopped work and demanded the employer to cancel a recognition agreement with the Namibia Transport and Allied workers Union (Natau) so they can join their union of choice, Mineworkers Union of Namibia (MUN), based on their constitutionally guaranteed fundamental right of freedom of association under Article 21 (1) (e).
According to media reports, one of the reasons why the workers wanted to divorce Natau and marry MUN is that the workers had allegedly lost trust in the former for reportedly not consulting them sufficiently when engaging management about changes in terms and conditions of employment.
On the 21 May 2019, it was reported that MUN issued a statement on behalf of the dismissed 86 ex-workers, stating amongst others that the workers took part in a peaceful demonstration rather than an illegal work stoppage as it was done during their daily Namport lunch hour.
The MUN statement pointed out that the majority of the Namport bargaining unit workers had in fact cancelled their membership with Natau, thus rendering the collective agreement between the union and the Namport management null and void as NatauA did not have the majority membership of 50 percent-plus one to be the exclusive bargaining agent and representative of the Namport bargaining unit workers.
The Namibian Labour Act of 2007 under Section 64 (2), states that “an employer must not recognise a trade union as an exclusive bargaining agent unless it represents the majority of the employees in the bargaining unit”.
So, was it legal for the Namport workers to demand to join MUN?
The Constitution is the supreme law of Namibia and is above all other laws operating in Namibia including labour laws and workplace agreements.
The Namibian Constitution Article 21 (1) (e) states that “All persons shall have the right to freedom of association, which shall include freedom to form and join associations or unions, including trade unions and political parties”. In short, and with reference to the labour sector, every Namibian worker has the right to form and join any union of their choice as a constitutional fundamental right.
The constitution talks of “the right to join unions” as a plural and not a singular “union”. Thus meaning the supreme law of Namibia, does not limit citizens and workers to remain with a single union throughout their employment career.
Thus if as reported, the Namport ex-workers had decided to divorce Natau than it is fully within their fundamental right that is guaranteed in the supreme law of the Constitution. No law or authority can be above the Constitution of the Republic, not even the Labour Act.
What is the position of the International Labour Organization (ILO)?
The International Labour Organisation (ILO) Convention No 87 of 1948 promotes Freedom of Association and Protection of the Right to Organise by member states. Namibia signed this convention on the 3rd January 1995. This ILO convention states that all member states including Namibia that have signed the convention shall ensure that amongst others “workers and employers, without distinction whatsoever, shall have the right to establish, and subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization.”
What is the position of the courts?
Traditionally, due to the absence of similar past cases in Namibian law for reference, we consult the South African courts for legal reference as both Namibia and South Africa laws are derived from Roman-Dutch law and Namibia still has many Roman-Dutch laws and acts left from the apartheid occupation time like our Criminal Act of 1977 or the Marriage Act of 1961.
In a recent South African labour court case in 2013 between National Union of Mineworkers (NUM) obo Mabote v Kalahari Country Club Resorts, the court ruled that the mine workers union NUM could legally represent an employee employed by a tourism hospitality company.
What is the way forward in the Namport case?
For now, it is reported that the Namport 86 ex-workers intend to appeal the disciplinary outcomes and perhaps take their case to the Labour Commissioner and the Namibian courts for review and landmark rulings.
As commercial and labour law scholars, we are following developments closely for legal learnings as such landmark cases at the end always enrich Namibian law for future research and reference by generations of law scholars. Otherwise we say viva the Namibian constitution and Namibian labour laws, viva!
* Regto Ndemufayo David holds a Master’s degree in Commercial and Labour Law (UWC) and is currently completing a Bachelor of Law (LLB) with the University of Namibia (Unam) with strong interests in civil, commercial and labour law.