The comments, interpretations and manuals available on namibia-law.com is that of Pieter de Beer and the copyrights belong to Pieter J de Beer. Any party accessing the information or utilizing the information of this web domain do so at own risk. Great effort was made to ensure correctness, however a person using the information should seek legal advice prior to embarking on any decision or step.

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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-.

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.

Section 128 (Prohibition of Labour Hire Services)

The High Court of Namibia ruled on 1 December 2008 that that section is not un-Constitutional.

Section 128 will come into force on 1 March 2009 – Government Gazette 4192 dated 2 January 2009.

An appeal can be filed in this matter and can be done until mid January 2009. Usually it is within 14 court days however the days period does not run for a couple of weeks in December/January when the normal High Court proceedings are closed.

To determine whether a business is at risk, the original agreements between the parties (Outsourced Business / Labour Broker et cetera) must be reconsidered together with the method and purposes of the employment agreements, and then compared with section 128(1) ...

“No person may, for reward, employ any person with a view to making that person available to a third party to perform work for that third party.”

It would only be reasonable that this section would not come into force until the appeal judgment is made or until the time period for appeal expired.

Taking the impact on those business and the community in mind it would also be reasonable if the Ministry of Labour and Social Welfare give advance notice in the Government Gazatte of when (date) the section will come into force.

Pending Cases

All conciliation and arbitration cases will be subject to the Labour Act 2007.

Matter with District Labour Court case numbers or Labour Court case numbers will continue under the old Labour Act, 1992.

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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.

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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