2009 Annual Survey of violations of trade union rights - Namibia
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Namibia, 11 June 2009, available at: http://www.refworld.org/docid/4c52cad437.html [accessed 31 August 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 29 – 87 – 98 – 105 – 111 – 138 – 182
The Labour Act of 2007 no longer allows prison staff to join trade unions, which was a great upset for the unions in that sector and their members. Managers in the mining industry showed anti-union hostility through sacking strikers and their reluctance to sign agreements with unions. The closure and departure of the textile company Ramatex confirmed the lack of respect of the rights of workers and their organisations in the EPZs.
Trade union rights in law
Freedom of Association: The Constitution protects the right of workers to form and join trade unions. The new Labour Act 2007, which came into force in 2008, provides for the right of freedom of association to every person, with the exclusion of the military, the police and prison staff. According to ILO principles, prison staff should be allowed to exercise this right.
The Act also guarantees trade unions the right to form federations and affiliate with international organisations and sets out detailed requirements for registration of trade unions. The Labour Commissioner may cancel the registration if trade unions fail to comply with its obligations under the law. Any decision of the Labour Commissioner may be appealed to the Labour Court.
Collective bargaining: The Labour Act 2007 recognises the right to collective bargaining. A registered trade union that represents the majority of the employees in a bargaining unit is entitled to recognition as the exclusive bargaining agent. According to the ILO, it is not clear if the minority unions in the bargaining unit enjoy collective bargaining rights, at least on behalf of their members, where no union represents the majority.
Collective agreements may also be extended to employees and employers who are not affiliated to the parties to the agreement, subject to the approval of the Minister of Labour.
Restrictions on the right to strike: Strike action can only be used in disputes involving specific workers' interests, such as pay rises, subject to conciliation and a 48 hour notice period. Disputes over workers' rights, including dismissals, must be referred to the Labour Court for arbitration. Current arbitration and dispute solving mechanisms are cumbersome, leading to a long backlog of cases.
Essential services are established by the Minister of Labour, upon recommendations of the Labour Advisory Council. It remains unclear if parties directly affected may appeal the Minister's decision.
Trade union rights in practice and violations in 2008
Background: The Minister of Labour denounced the persisting "master-slave" relations between employers and employees. He stressed the need to do everything possible to ensure that the new Labour Act, which came into force at the end of 2008, is known by all parties. One of the real improvements is the ban on recruitment agencies. On 1 December the unions were relieved by a court ruling rejecting an appeal by Africa Personnel Services.
Employer hostility: Employers are generally very hostile towards the unions, refusing to recognise them or let them carry out their activities in workplaces, or to engage in collective bargaining with them. This tendency is particularly prevalent in the export processing zones. The categories most vulnerable to trade union rights' violations are farm and domestic workers. The use of subcontracting makes things harder for the unions. In September, the local authority of Windhoek refuted the arguments of cleaning staff representatives who were complaining about the deterioration of their working conditions and their reduced wages, after the town had decided, in 2006, to put 16 subcontractors in charge of cleaning services.
Discrimination against independent unions: Trade unions not affiliated with the ruling SWAPO (South West Africa People's Organisation) party have continued to be marginalised. Only representatives of the National Union of Namibian Workers (NUNW) were serving as members of the Board of Directors of the Social Security Commission and the Government Institution Pension Fund. The Trade Union Congress of Namibia (TUCNA) was the main butt of that discrimination, together with the Namibian Nurses' Union (NANU) which, despite being the most representative organisation in the health sector, has still not been recognised by the authorities as the union they should negotiate with. In past years the government repeatedly tried to intimidate the nurses belonging to that union and its General Secretary, Abner Shopati, received death threats. At the end of 2008, NANU was awaiting a ruling that would put an end to this injustice.
Ramatex, the EPZs and the union – a test case: On 6 March, the abrupt closure of Ramatex left its 3,000 employees redundant and forced the Namibian Food and Allied Workers' Union (NAFAU) to fight hard to get decent severance pay for the workers, mostly women. In addition to the disastrous economic impact (loss of jobs and wasted public investment), it became clear over the following months that Ramatex had also caused environmental damage (pollution of the site) and damage to people's health, since dozens of workers are now suffering from serious illnesses linked to the very mediocre hygiene and safety conditions in the group's factories. Since its arrival in Namibia in 2002, Ramatex had taken full advantage of its location in an EPZ, whilst neglecting the unions' concerns and showing hostility towards them. Ramatex's strategy reportedly consisted of dividing its employees based on their nationalities and giving them different levels of wages and benefits. Namibian workers had not supported their Asian colleagues and vice versa. Any protest action by the migrant workers had generally resulted in their expulsion.
Paradoxically, the departure of Ramatex prompted the Namibian authorities to review the framework for investment and make the country even more attractive to foreign investors. Despite the many incentives, the authorities' ambitious objective of creating 25,000 jobs via the EPZs has never been met.
Over 250 strikers sacked in the diamond industry: On 8 July, the management of LDD Diamond and Polishing Company sacked 153 of its employees who had been holding an illegal strike since 19 June and were camping a few metres outside the company site. The strikers, supported by the Mineworkers' Union (MUN), were protesting against the management's hostile attitude and the unfair treatment they had been suffering. Around 100 workers who joined in the protest were also dismissed over the next few days. Following the intervention of the National Union of Namibian Workers (NUNW), the sacked workers were re-recruited, though on condition that they serve a new three-month trial period.
Mining group Skorpion reluctantly signs a collective agreement: On 29 May, in Rosh Pinah, the Mineworkers' Union of Namibia (MUN) and the Ministry of Labour managed to avoid last-minute manoeuvring by the management of the Skorpion Zinc group and reached an agreement on working hours and pay. The mining company wanted to move to continuous shift operations, with daily work shifts of 12 hours seven days a week – an exemption to the Labour Code accepted by the union and the Labour Ministry – but with no financial compensation, which the MUN rejected. A strike had started on 8 May and the management had initially agreed to the union's demands but then changed its mind and started a lockout to put pressure on the union to give up its demand for payment of overtime. In the end the three parties agreed that the matter should be resolved in court. The collective agreement, which is valid for one year, provides for a 12% increase in wages. There was also some violence on 29 May, with a security guard from G4S arrested for firing rubber bullets at the demonstrators.
Prison warders' unions now banned: In November the Public Service Union of Namibia (PSUN), which organises some 600 to 800 prison warders announced that it would be filing a complaint against the government concerning the amendment to the labour law, which now bans unions from representing prison staff. Victor Kazonyati, the PSUN General Secretary, explained that as a sign of disobedience, the members had refused to ask their unions to stop deducting their fees. Many workers were worried that they would no longer be able to express their demands freely via the unions.