Parliament represents citizens, but also keeps the Executive and State institutions accountable. Parliament is made up of two houses, namely the National Assembly and the National Council. The National Assembly provides a forum for debate, passes laws and oversees the Executive.
The National Council represents all 14 regions in the country to ensure that regional interests are taken into account in the national spheres of government, and reviews all bills passed by the National Assembly.
However, there seems to be lack of concentration, evaluation and ensuring that national legislation such as the Labour Act give effect to the Constitution by periodically evaluating, monitoring and testing the effectiveness of existing legislation and recommending amendments and/or repealing obsolete laws to ensure that the inherent
dignity and inalienable rights of all members of the human family are indispensable for freedom, justice and peace (that is the spirit of the Namibian Constitution).
There is a grave concern about the Namibian workforce’s fundamental labour rights as enshrined in the Namibian Constitution in particular under Article 95, which provides for the welfare of the Namibian people and encourages the formation of workers’ fora such
as trade unions to protect their rights and interests, and to promote sound labour relations and fair employment practices.
Although the wording of Article 95 sounds sweet, to date, most Namibian workers are exploited at their respective workplaces, meaning there is no conducive environment for them, despite their recognition in the Constitution as the means of production at workplaces and who deserve respect.
Workers are mistreated at workplaces by
their employers. Sadly, when they refer disputes to the Office of the Labour Commissioner in line with the Labour Act’s provisions, stating complaints of unfair labour practices by employers, their cases end up being dismissed by conciliators/arbitrators, who strictly
interpret provisions of section 50 (1) of the Labour Act, as its scope confines what the legislator regards as unfair labour practices conducted by employers in Namibia.
To put it straight, the Namibian Labour Act fails to define what unfair labour practices is, and the lists of offensive conduct by employers termed as unfair labour practices are closed and appear to be somewhat confusing, and not comprehensive enough.
Such box of what is regarded as unfair labour practices by an employer or an employer’s organisation’s conduct left many workers
without getting ventilation, because whenever they refer their complaints to the Labour Commissioner as recourse, the employers conduct complained usually found to be outside the box of listed unfair labour practices by the employers in terms of section 50 of the Labour Act, and they end up losing their cases.
This state of affairs has been going on like that since Namibian independence, but Parliament seems unable to amend the Labour Act or repeal it to give effect to the Constitutional provisions under Article 95.
If you look at the South African Labour Relations Act 66 of 1995, under section 186, it defines what unfair labour practice is, and prohibits certain conduct by employers as
unfair labour practice, meaning in that jurisdiction, Parliament is concerned about the welfare of its workers and tries to protect them from maltreatment by employers. But the Namibian Labour Act does not specifically prescribe that every employee has the right not to be subjected to unfair labour practices.
It is very sad that whenever a worker would like to refer his/her labour dispute to the office of the Labour Commissioner, such worker is always encouraged by officials at the Labour Commissioner’s office to look up what authors such as JWF van Rooyen and Judge Collins Parker opined in their books what unfair labour practices are in order to assist such an aggrieved employee and to avoid his/her case being dismissed by the arbitrator, averring that they do not have jurisdiction by law to
determine employers’ conduct not placed in the pigeonhole (section 50).
Really? That is embarrassing. Instead of the Minister of Labour Relations who should move for an amendment to the Labour Act by putting it through Parliament so that the Labour Act provisions are aligned with best practices in the world such as the International Labour Organisation (ILO), thereby
protecting the Namibian workforce from maltreatment by employers.
If provisions of section 50 of the Labour Act are not aligned with best practices, then many Namibian workers would continue to be vulnerable in the hands of errant employers as they go scot-free in labour disputes due to such loopholes.
*Lucas Tshuuya is a labour expert from Onaanda in the Uukwambi district.