Windhoek
Acting Judge of the Labour Court Petrus Unengu yesterday refused to interdict workers of Namzinc in Rosh Pinah from embarking on an industrial action – because the 12-hour shifts they work are “contrary to provisions of the Labour Act”.
Namzinc brought an application before the Labour Court to compel the 493 workers known as ‘continuous operation employees’ to work 12-hour shifts.
The workers have since Tuesday refused to work the 12-hour shifts and only worked nine-hour shifts.
Previously the workers would work 12-hour shifts for seven days and then be off for seven days.
Senior counsel Andrew Corbett, who appeared for the mine, argued that the system has been in operation for the past 14 years without any complaints from workers, and that they all freely signed contracts to that effect.
According to him the “sudden unprocedural and unlawful industrial action” is a determined effort by the union to put undue pressure on the mine to give in to their demands for compensation for overtime.
He said the mine has engaged the aggrieved workers who lodged a claim for damages in the High Court in a separate case, and this was the main reason for the partial stoppage, disruption and retardation of work.
According to an affidavit by the employee relations manager of the mine, Moses Shiteleni Iinane, it is “simply irresponsible for the union to lend its support to the workers by advising them not to work the continuous 12-hour shifts”.
He said this will cause disruption to work at the mine which will result in direct losses of approximately N$360 million. Dr Sackey Akweende, who appeared for the MUN on instructions from Tjitemisa and Partners, implored the judge not to be waylaid by the potential losses the mine could suffer, but to decide the matter on the facts at hand.
These, he said, included the fact that the order sought was unlawful as it is contrary to the provisions of the Labour Act.
According to Akweende, Section 17 of the Labour Act does not permit an employee to work more than 10 hours overtime per week or more than three hours per week.
Even if an employer is granted an exemption by the minister of labour, this exemption only grants an extra eight hours overtime per week.
In the current case, the continuous operation employees are required to work more than that.
He also cited lack of jurisdiction, non-compliance with Section 79 of the Labour Act, which defines the role of the Labour Court, no service and lack of urgency.
While Judge Unengu shot down all these objections, he said he could not get past the provisions of the Labour Act on overtime.
He said he cannot grant an order that will go directly against the provisions of the Labour Act.
These provisions are peremptory and not advisory and must be complied with, the judge said and dismissed the application.