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Labour Law Update

25 March 2010

SEMINAR

The statement in Parliament by the Honourable Minister of Labour & Social Welfare on 25 September 2008 announced that the labour Act, 2007 (Act 11 of 2007) will be put into operation on the 1st November 2008. He further stated that the regulations and user-friendly forms to facilitate the Act`s implementation will be promulgated on 1 November 2008.

Promulgation of an Act happens after it has been published in the Government Gazette and after it was approved by the Parliament and the National Council and signed by the President of Namibia. Promulgation of the Labour Act, 2007 was done on 31 December 2008, but section 143 provides that the Labour Act, 2007 will only come into operation on a date announced by notice in the Government Gazette. So Namibia is waiting in anticipation.

Regulations are made by the Minister after consultation with the Labour Advisory Council – see section 135 of the Labour Act, 2007. After consultation means that there needs to be an exchange of ideas, comments or discussions but not consensus. The words in consultation in legislation, and contracts means there must be agreement / consensus on the matter.

Even though the Labour Advisory Council has the duty to investigate and advise the Minister – see section 93 of the Labour Act, 2007 the Minister has the sole and final discretion to make Regulations and Codes of Good Practice.

The Regulations and Codes will regulate the conduct and ethics of conciliators, arbitrators, officers of the Labour Commissioner, procedural fairness, ethics of conciliators and arbitrators, and all sorts of health and safety matters. Every employer who is serious with the implementation of the Labour Act, 2007 will need to read and study the Regulations and Codes, otherwise it is just going to be another rain dance.

It would only be reasonable to allow at least two month`s notice between receiving the Regulations and Codes and the implementation date.

The validity of section 128 (Labour Hire Service) is being tested in the High Court of Namibia. The matter was initiated in January 2008, shortly after the Labour Act, 2007 was published / promulgated. Word is that it will be argued at the end of November 2008. Hopefully the honourable Judge(s) will have time to come to a conclusion quickly, but matters that disputed the Constitutionality in the past, took some months before the judgment or reasons were handed down. My guess is that is going to take a long time.

Talking about validity and conformity to the fundamental rights respected in the Namibian Constitution, it is predicted that the following sections might also be tested sooner or later. They are sections 28(4), sec 132(3), Sec. 86(12) and 125(1) read with 125(3).

The decisions and judgments of the Labour Court of Namibia are the foundation on which the content of this Labour Law update seminar

The following topics will be discussed.

• Procedural fairness

o How to ensure that disciplinary action/dismissal is Procedurally Fair

o Essential questions

o Small businesses and large corporation - different tests

o Splitting / duplication of charges in disciplinary action

• Mistakes in law by presiding officer at arbitration

o Consequences of mistakes pertaining to law made by arbitrators

• Application of Art 18 of Constitution to disciplinary hearings and decisions by the Office of the Labour Commissioner.

• Substantive fairness –

o Misconduct – not following procedure – requirements

o Suspension, desertion and Absenteeism

o “Mitigating of dishonesty” – validity such approach.

 Misconduct destroy trust and confidence – e/m cannot continue

 Balance of aggravating and mitigating circumstances

• Retrenchment

o alternative to accept change of working conditions

o Calculation of “completed years of service” – voluntary retrenchment

o Requirements, procedure, consequences, consideration

o Staying of arbitration awards, dealing with the execution of awards and awards as orders of Court

• Settlement Agreements

o Signing of under duress

o Validity – acceptance of offer

• Reinstatement/Re-employment

o Vis-a-vis monetary award

• Contracts

o Labour Hire, Fixed term, Seasonal Employment and independent contractors

• Immigration Control Act -

o Employing non-Namibian citizens, Shortage of skills – a practical overview

See registration form below

Code of Good Practice

-Strikes and Lockouts

-Picketing

On 19 October 2009 the Minister of Labour and Social Welfare published schedules containing codes of good practices pertaining to strikes, lockouts and picketing.

This was done in terms of section 137(1)(a) of the Labour Act, 2007 (Act No. 11 of 2007) by Government Notice 208 in Government Gazette 4361.

Lawyers are not allowed at disciplinary hearings

submitted by Johan Roux

The Namibian Labour Court in a recent appeal judgment confirmed that the proceedings of a disciplinary hearing are considered that of an administrative tribunal and not a court law.

Being not a court of law, the employer remains empowered with the discretion whether to allow legal representation for an accused employee or not except.

The Labour Court confirmed that the accused employee does not have a constitutional right and or entitlement of a right to legal representation in terms of Article 12 and or Article 18 of the Namibian Constitution during an internal disciplinary hearing.

In the matter of Namibia Tourism Board v TJINO KAUAPIRARA ANGULA [Labour Court of Namibia], the Appellant/Employer appealed against [which appeal was successful] a decision of the District Labour Court where the chairperson determined that despite the employer`s disciplinary code of not allowing legal representation at internal disciplinary hearings, the DLC concluded (which were overturned) that denial of legal representation constituted the hearing procedurally unfair. The chairperson based the determination on the constitutional provision of Article 12 (1) (e) of the Namibian Constitution.

Article 12(1)(e) - Fair Trial of the Namibian Constitution reads

All persons shall be afforded adequate time and facilities for the preparation and presentation of their defence, before the commencement of and during their trial, and shall be entitled to be defended by a legal practitioner of their choice.(our emphasis)

On appeal, the Labour Court reviewed the provisions of Article 12 in the relation to applicability to disciplinary proceedings and further referred to the administration of justice in terms of Article 18 of the Namibian Constitution which reads as follows:

Article 18 - Administrative Justice

Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or Tribunal (our emphasis).

The Labour Court concluded that neither the provisions of Article 12 nor Article 18 of the Constitution contained an absolute right or entitlement of a right to legal representation at disciplinary hearings.

Legal representation during internal disciplinary hearings will still only be allowed if:

a. By agreement (employment agreement); or

b. The Company policy allows for such representation;

c. The matter is complicated (not serious); or

d. The initiator (company representative) is a legal practitioner.

New Minimum Wage for the Agricultural Industry

If no objection is raised or if objections are dealt with, the minimum wage fro employee on agricultural land from 1 June 2009 will be:

Minimum hourly rate: N$ 2.87

Minimum monthly in-kind benefit: N$ 300.00

Minimum remuneration per month will be N$ 859.61 for employees working a 45 hour working week.

Minimum basic wage rate for overtime, Sunday and Public Holiday payment calculation is N$ 4.41 per hour.

Payment for one hour overtime on Mondays to Saturdays will be N$ 4.41 X 1.5 = N$ 6.61 per hour for overtime worked.

The calculation of compensation for work done on Sundays and Public Holidays will depend on whether it falls on a normal working day or not, i.e. if the work is part of the 45 ordinary hours in a week.

RULE OF LAW

“Free people can assure the blessings of liberty for themselves only if they recognize the necessity that the rule of law shall be supreme and that all men shall be equal before the law.”

Dwight Eisenhower [President of the USA, 1 May 1958] Per : H. Thomas Wells Jr., President, American Bar Association words on Celebrating Lincoln on Law Day: A Great Lawyer-President

The supremacy of the Namibian Constitution and the concept of Rule of Law should also be acknowledged. All legislation in Namibia should conform to the Namibian Constitution.

The English constitutional lawyer A V Dicey conceived the concept of RULE OF LAW.

“... the purpose of rule of law was to protect basic individual rights by requiring the government to act in accordance with pre-announced, clear and general rules that are enforced by impartial courts in accordance with fair procedures... the rule of law requires state institutions to act in accordance with the law.”

Dicey as per Iain Currie & Johan de Waal, The Bill of Rights Handbook, Juta 2005 at page 10.

With reference to labour law principles, the following comes to mind:

a. The need for clear law and by-laws;

b. The need that the law be read, correctly interpreted, understood and applied by those applying law and complying to law;

c. The respect to adhere to the Rules of the Courts, as forum to direct and decide on the protection of rights and not as arena for confrontational action, but rather clarifying and law and rights.

Social Security Regulations

On 1 April 2009 the Social Security benefits have been increased and the meaning of “remuneration” was amended to be in line with the meaning of “basic wage” in terms of the Labour Act, 2007.

Maternity leave benefits increased to a payment of basic wage to a maximum of N$ 7000- per month payable by the Social Security Commission when a claim for maternity leave benefits is approved.

Sick Leave increased to 75% of basic wage to a maximum of N$ 7000- per month for first six months after paid sick leave benefits granted by employer is exhausted. After six months to 65% of basic wage to a maximum of N$ 7 000-.

Death benefits are increased to N$ 4000-.

TO REGISTER FOR THIS SEMINAR –

Complete and Fax to (061) 305 651

LABOUR LAW UPDATE SEMINAR

25 March 2010

According to Labour Court judgments

Presenter: Pieter J de Beer

Venue: Arebbusch, Windhoek

Date: 25 March 2010

Time: Registration 07:45 – 08:15

Cost: N$ 2 450.00 plus N$ 367.50 VAT = N$ 2 817.50 per person

Included: Comprehensive printed notes, attendance certificate, refreshments, lunch and parking

Company: …………………………………………. P O Box………………………………

Town: …………………………………………….. Tel: ………………….…………………

E-mail ……………………………………………. Fax: ………..…….……………………

……………………………………………. (Signature)

Conditions: Payment secures place reservation and manual. Limited seats available. Payment due on registration and payable on or before 19 March 2010. Invoice will be generated on registration and forwarded via fax or e-mail – original delivered at workshop, if not collected prior to workshop. Cancellation allowed if in writing and signed and received by us 2 days prior to the date of the seminar. Right of admission reserved.

Contact Leandri or Vicky at Tel (061) 305 650 Fax (061) 305 651

E-mail support@namibia-law.com

Representation of Employers during Statutory Arbitration

Section 86(12) of the Labour Act, 2007 provides that if the employer is an individual (natural person) such employer may appear in person (self) or by an office bearer or official of a registered employers` organisation.

Legal practitioners and labour consultants (firms) may not represent an employer, unless

• The employer and employee agreed that they may appoint representatives, or

• If the matter is complex and it would be appropriate that the employer be represented AND the employee will not be prejudiced (see section 140 which allow legal aid to an employee).

Employers` Organisations must be registered in terms of section 57(1) of the Labour Act, 2007 or in terms of section 54(1) of the Labour Act, 1992.

Labour Act, 2007 (Act 11 of 2007)

The Labour Act, 2007 came into for on 1 November 2008.

The implementation of section 128 (prohibition of labour hire service) is delayed by High Court order until the Supreme Court has ruled on the appeal matter pertaining to the validity of section 128.

The Rules relating to the Conduct of Conciliation and Arbitration came into force on 1 November 2008.

The Labour General Regulations came into force on 1 November 2008.

The Code of Good Practice has not been published (5 December 2008).

Severance Pay

Section 35 of the Labour Act, 2007 (Act 11 of 2007) regulates the payment of severance allowance.

Severance pay is payable to an employee who has been employed by the employer for longer than 12 months and when:

1. The employee was unfairly dismissed; or

2. The employee dies while being employed; or

3. The employee resigns after reaching the age of 65 years; or

4. The employee retires at 65 years of age or at the retirement age stipulated in the employment agreement or policies / practices of the employer; or

5. The employee retires at the retirement age stipulated by the Employer or on early retirement; or

6. The employee is dismissed due to incapacity as a result of injury or ill health of the employee (not medically fit to perform the work); or

7. The employer retrenched the employee.

Severance pay is not payable to the employee if:

1. The employee resigns; or

2. The employee is dismissed for misconduct or poor performance; or

3. The employer, after unfair dismissal or during the retrenchment process, offers reinstatement to the employee and the employee unreasonably refuses to accept reinstatement.

Severance pay is one week`s remuneration (basic salary and all allowances) for every completed year in the employment of the employer.

A temporary employment agreement or fixed-term agreement is an agreement that comes to an end due to lapse of time. The parties agree that the employment shall be for a period only, such as three months or two weeks or whatever the case may be.

Temporary employment is still a legal form of employment and not prohibited by the Labour Act, 2007.

The concept of “Casual Employees” is no longer provided for in the Labour Act, 2007 or in the Social Security Act, 1994 (Act 34 of 1994).

“Casual employees” must not be confused with temporary employees. Casual employee is a person who worked for a maximum of two days per week for the same employer.

The cost for subscribing is N$ 2 300.00 per year, January to December and is for access to the website. From case law, mostly Namibian Labour Court cases, to legislation and regulations are made available to users.

Access will be granted on received and cleared payments by cheque, electronic transfer or cash to Namibia-law.com. banking details available on request from support@namibia-law.com

The aim of www.namibia-law.com is to make Namibian Law available to the public for research purposes. Legislation is placed on the pages starting from 2008 working backwards towards 1990, plus all Labour Laws, inclusive of Namibian Labour Court cases and common law principles as time goes by.

Subscribers may forward e-mail to pieterdb@namibia-law.com requesting access to specific Namibian legislation since 1990, which will then be sourced and placed on the website within 7 working days of receipt of such e-mail.

The website is growing daily, and the first subscription period will be November 2008 to December 2009 at N$ 2 300.00. Annual subscription may be increased annually.

Reasonable steps are taken to ensure that the information found on the website are correct, however the subscriber acknowledges that if any information found on the www.namibia-law.com pages, and it is used for any action or decision which may have bearing on legal rights and obligations, the subscriber will have the duty and onus to obtain advise and assistance from a legal practitioner prior to taking any action or decision.

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The subscription is for one user only. Each user must register individually. The right is reserve to monitor from which equipment the login takes place. Logins from different computers will be regarded as abuse and breach of contract by the user and access will be cancelled and the subscription fees will not be returnable. The same user may login from home and office computer under the same user name. If users abuse as set out above the access, and a breach took place, rectification will only be allowed on confirmation of purchase of new equipment and/or explanation.

The Financial World requires more and more adherence to strict rules. At times, it appears that the industry is over-regulating itself. The founding principles are to protect those who manages the finances of others and to protect those who make use of institutions to manage, invest or control funds. The bottom line is, compliance with the legislation are important and will be a significant part of Risk management in the future. Adherence to employment legislation is just as important. The provisions of the Labour Act must be followed as part of the protection of the right of employees while the business interest of the employer must be balanced in the process. Affirmative Action legislation is just as important and compliance with it is, in fact legal compliance and risk management, with which the employer cannot do without.

Vocational Education and training	Act 1 of 2008
Veterans	Act 2 of 2008.
General Labour Regulations	2008.
Rules of conciliation and arbitration	2008
Financial Intelligence	Act 3 of 2007.
Electricity	Act 4 of 2007
Environmental Management	Act 7 of 2007
Motor Vehicle Accident	Act 10 of 2007
Labour Act	Act 11 of 2007
Namibia Qualifications Authority Regulations	Reg 2007
The State-Owned Enterprises	Act 2 of 2006
Brigade Service	Act 5 of 2006
Children`s Status	Act 6 of 2006
Biosaftey	Act 7 of 2006
National Youth Service	Act 6 of 2005
Anti-Corruption	Act 8 of 2003
Value added Tax	10 of 2000
Short term Insurance	Act 4 of 1998
Guidelines for implementation of national code on HIV/Aids in	3-Apr-1998
Banking Institutions	Act 2 of 1998
The Affirmative Action (Employment ) Act	Act 29 of 1998
Married Persons Equality	Act 1 of 1996
Mineral Development Fund	Act 19 of 1996
Legal Practitioners	Act 15 of 1995
Stock Brands	Act 24 of 1995
Medical Aid Funds	Act 23 of 1995
Labour Court Rules	22-Apr-1994
National Vocational Training	Act 18 of 1994
Social Security Act	Act 34 of 1994
Immigration Control	Act 7 of 1993
Rules of District Labour Court	Act 6 of 1992
Labour Act	Act 6 of 1992
National Pension	Act 10 of 1992
Agronomic Industry	Act 20 of 1992
Namibian Citizenship Special Conferment	Act 14 of 1991
Racial Discrimination Prohibition	Act 26 of 1991
Namibian Citizenship	Act 14 of 1990
The Ombudsman	Act 7 of 1990
Public Holidays	Act 26 of 1996
Rents Ordinance	Act of 1977
Proceedings (Provincial and Local Authorities )	Act 94 of 1970
Prescription	Act 68 of 1968
Arbitration	Act 42 of 1965
Pensions Fund	Act of 1956
Diplomatic Privileges	Act 71 of 1951