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The amendments to the Labour Act, 2007 will come into force on 1 August 2012 and perhaps a simplistic positive view would be in order.So what is the deal with labour hire service?
There is no doubt that the amendments will have a significant impact. It is even a further concern that the amendments are interpreted differently by various parties and there may very well be merit in the suspicion that officials, employers and employees do not appreciate that the first and golden rule of interpretation of statutes is that the ordinary grammatical meaning of words are used as a point of departure when legislation are interpreted. Only when there is confusion or doubt of the meaning would one revert to the long titled of the Act or the objectives of the Act (commonly referred to as the spirit.)
One of the general comments is that the amended section 128 is aimed at regulating the "labour hire service", but the words"labour hire" does not appear in the amendment.
The connection to "labour hire service" is made by the consequences of what a "private employment agency" may or may not do in that business A that engages individuals to place them to work for business B and business B assigns their tasks and supervises the execution of the tasks, then business A is a private employment agency.
So, if the traditional labour hire services continue with business that measures are put in place that business B does not assign tasks of employees of business A (labour hire service) and does not supervise such employees, then section 128 will not be applicable and it is not a big deal.
Section 128 does not by name identify labour hire services and the definition will be applicable to any service provider, such as security and cleaning outfits that employs individuals specifically to work as customers and then if such customers assign tasks or supervises such workers, the security or cleaning business will become a private employment agency and section 128 comes into play.
The traditional recruitment and personnel agencies will in terms of a differnet part of the definition also be private employment agencies.
Basically, if the customers of labour hire services take care not to assign tasks and supervise the employees of the labout hire outfit. The amendment will not have an impact on that industry. Independent Contract Workers
The new section 128 A creates presumptions when individuals (not businesses) will be presumed to be employees and not independent contractors. Unfortunately this provision opens the door to individuals who gets certain work done as independent contractor to claim that he is actually an employee and entitled to all the rights and benefits of an employee.
The presumption comes into play if only one of several factors are present and since the requirement is one factor, the dominant impression test, which look at various factors holistically, will by statutory provision not be aplpied after 1 August 2012.Temporary employment contracts [Fix-term]
To employ someone on a temporary basis is still possible and lawful provided that there is justification for the temporary period or it`s a managerial employee. So what`s wrong with putting the a clause into the temporay agreement spelling out the justification, in which case the presumption will not come into play, particularly since it is not a requirement that the justification must be of some sort of standard and validity (or perhaps reasonableness).
Similarly, if the job function in the written temporary employment agreement clearly spells out the justification why the appointment is temporary, then the presumption should not come into play, however one will have see whether a complaint pertaining to the limited period will be allowed to proceed to arbitration.
I might be wrong, but one thing is a given, if those responsible for the administration and implementation of the Labour Act in its amended form do not agree with me, there will be a lot of labour disputes and uncertainty which is not good for the Namibian economy. Duties of the Arbitrator
Section 137 (1) of the Labour Act, 2007 which cam e into operation on 1 November 2008, give the powerto issue a code of ethics for conciliators and arbitrators. To some extent "etics" will dictate the professional conduct of conciliators and arbitrators but what is more important is a clear crisp guideline on their duties.
Act 12(1)(a) of the Namibian Constitution requires that arbitrators must conduct a fair hearing and they must be competent, independent and impartial. A hearing can only be fair if it comforms to the Rules of Natural Justice, which principles are not new to Namibians as disciplinary action has to be procedural fair, as statutory requirements since 1992.
"Competent" and "independant" conduct appears to be more of a challenge to understand. The Labour Court judgment by Muller, J in Roads Contractors Company v Nambahu and Other [case number 97/2009] gave a guideline and confirmed the expectations a reasonable person has when appearing in a tribunal (Section 86 of the Labour Act) arbitration, which arbitration is established in terms of the Namibian Constitution (Section 85(1) of the Labour Act).
The following duties are summarised in line with the judgment:
The duties of the arbitrator are:
Continuous Legal Education & LLB Graduates
To be independent, impartial and competent;
Not to mishandle the matter in such a manner that it is likely to result to some substantial miscarraige of justice;
Not to act in a way that is contrary to public policy, or appears to be unfair;
To be vigilant to ensure fairness to both sides (all parties);
Not to rely on personal experience and knowledge to such an extent that he might be considered as partial or over stepping the boundaries of being independent;
Not to prejudge of display preconceived ideas. Never to give indication how the arbiter feels about the evidence or how he/she may decide;
Must evaluate the evidence onlyat end of the matter - be cautious that no perception of partiality is created or that any party will njot receive a fair hearing;
Not to intervene in evidence by cross-examination of a witness - refrain from questions unless it is to provide assistance or clarification - not active questioner;
Allow cross-examination to continue without stopping or interfering with it;
Must have a thorough knowledge of the provisions of the Labour Act and its Rules;
Allow a party to present evidence to prove its cause or counter allegations from the other side;
Confine him/herself to the issues in dispute or particulars of complaint;
Not to make up his mind until after the submission of closing arguments;
To direct the procedure in such a manner that there is no doubt or perception of impartiality or neutrality on the side of the arbitrator;
To properly inform the parties that they understand the proceedings and how it will be conducted.
The position in Namibia may not be so unique; to become a legal practitionerthe LLB degreee is the first step. Since the Advocates and the Attorneys Act was repealed in 1996, a person with a LLB degree cannot enter the legal profession without first going through practical training. This practical training is known as JTC programme [Justice Traning Centre] which requires that the candidate attent to lectures and passing an examination while also being attached to a law firm. In theory, this can be done within a year, if the candidate attend 80%of each of the eleven subjects lectured, do the required hours in attachment and submit diary to prove what exposure the candidate underwent, pass the examination and the Board of Legal Education gets its management administration in line to reflect some level of efficiency to finalise the certificate within a month or two after the examination results are known.
Historically, a person with an LLB degree was able to apply for admission as advocate and enter practice directly with his/her degree. In Namibia this is no longer possible.
Once admitted as legal practitioner the person can practice as the traditional attorney or advocate, however as in most parts of Southern Africa, the BAR, i.e. the Association of Advocate is a voluntary association. To become such a member thereof, a legal practitioner must apply and meet the requirements the association set for entry into the association, which include the tradition of pupillage system.
The question is, looking as legal education, why is it that members of associations of advocates are generally respected as people who know what they are doing and are seen as experts, regardless of years of experience?
In my mind, the associations are doing something right and that is the pupillage system. Remember, historically advocates are experts in litigation and giving legal opinions. The pupillage system is a one-on-one apprenticeship model. The pupil (legal practitioner in-training) closely observes his master (experienced advocate) as a trusted mentor. The pupil does not receive remuneration and cannot charge fees, but assists and shadows the master for a period of at least six months and then successfully complete the examinations. The pupil’s goal is to develop a parallel practice one day and received individual training while the association ensures that their members have a minimum skill level to function as an advocate. The pupil, inter alia, has to work through a reading list [case law and handbooks] ensuring knowledge of the latest law pertaining to litigation is gathered.
To become a legal practitioner a LLB graduate must go through the JTC programme – period of practical training and lectures - the candidate legal practitioner is attached to a firm, receive a salary and as a result become a cost centre and the law firm usually would like to see that the investment [salary] has a financial return, i.e. the business must make money and consequently the services of the candidate are charged to clients. It is common, and if I am wrong a would like to be convinced thereof, that the candidates, once admitted, is not sufficiently prepared for legal practice, even though he/she met all the requirements and was admitted by the High Court of Namibia to practice.
The legal practitioner in practice charge by the hour. The legal practitioner as principal to whom the candidate is attached, spend time guiding and directing the candidate, which hours are not chargeable. It seems that some principals do not do so, assuming the “JTC” programme should attend to such guidance, perhaps a over ambitious expectation. If time is spent doing so, the principals invest time and effort, how frustrating it may be, ends up with a professional that is trusted to become a knowledgeable and skilled lawyer in the firm and the principal further wants to see a financial return on investment and the newly admitted legal practitioner receive a salary below expectations, in which case the firm does not retain the new professional and the next candidate will probably be treated with less commitment.
I think the pupillage system; a working successful model should be adapted to the JTC system. The financial obligations and commitment of obtaining an LLB degree and then another period of little or no income is not well received by the average person and remain an obstacle, similar to any professional education programme. The financial aspect is a hurdle, but the quality of education and training should not be sacrificed. The financial hurdle is a completed different aspect to the content and expectations of the educational system, with which I do not intend to deal herein.
Legal practitioners are however to some extend generalists while advocates are specialised in litigation. To take a newly admitted generalist to expert level; experience, exposure and in-house training are needed. There is no doubt that scaling in-house or on-going training will address the learning deficits accompanied by an increasing requirement of senior partners’ time.
Making a bold statement that; there is a training deficit, requires that the initial expectations and promises be quantified.
What is the purpose of the LLB degree?
It is my poinion, that universities produce people with a relatie knowledge of the substantive law, without any compulsory practical aexperience.
What is the purpose of the JTC programme?
The JTC is to supplement the LLb degree with practical experience and prepare a person for legal practice
What is the law student`s expectation when the LLB degree has been obtained?
Generally the graduate expects to enter legal practice with ease as soon as possible and receive an above average income as return of investing years of study; to be part of a business and not knowing what is the difference between a profession and a business.
To run a law firm, requires some business acumen, understanding how a business plan should be prepared or developed, be able to do basic accounting, cash flow forecasts and management accounts and to be able to use in delivering services. Shockingly, I do not see compulsory courses at either university level or JTC addressing business skills and computer skills, which are undoubtedly part of today’s legal practice. The obvious next question is: Who was responsible to teach the student those skills?
The growing continuously changing positive law has always been fast changing as legislation is promulgated regularly and the High Court delivers judgments daily. 30 years ago the information technology was slow and it took weeks if not months for the law resources [publications] to reach practitioners. Today, it is a question of hours and whomever has the best access, ability and technology, appears to me miles ahead of the rest.
I have a lot to say, but is the situation really so difficult to address?
In the precedent system we have the law changes daily. The IT develops rapidly with more and more ways the World Wide Web and use of smart phones give people access to more information rapidly. It seems the generally liberal attitude of lawyers tends to be nullified by the traditional-bound conservative outlook at the content of the law studies, practical training and principal/candidate transfer of skills and knowledge.
Producing lawyers for the new generation, the content of the LLB degree, the content and manner of practical training, the identification of which institution should be responsible for what level of training must be clarified. Another year of research and committee meetings followed by proposals and considerations are not the answer.
The legal education should be preparing professionals with realistic expectations and sufficiently skilled for the real world, now. To research and debate another couple of years will guarantee that the content and quality of legal education in three years’ time will be three years behind and three years out of date, at best.
And that is about what I have to say today.