Read this article in:
11 January, 2010
On 14 December 2009, the Supreme Court of Namibia struck down a two-year-old government law that banned labour hire agencies. In a unanimous, five-judge decision, the court said that government must first try to regulate irregular work imposed by labour hire firms before imposing a ban on them.
The court’s decision also cited the law as unconstitutional because it fails to protect the right to practice “occupation, trade or business.” In 20-year-old Namibia, images of an entrenched contract labour system through apartheid are recent, and this labour issue has both the emotions and the memories to make it a leading story in all of Africa.
The Supreme Court itself called it “an emotive and politically charged” issue, and both opponents and proponents of agency labour expressed sharp differences on the court’s ruling.
The decision was the second time within a year that the High Court in Namibia has taken up the case. It had earlier upheld the ban on labour hire agencies, contained inside Section 128 of the 2007 Labour Act. But Namibia’s largest temporary employment agency, Africa Personnel Services (APS), appealed the constitutionality of this section of the labour code on the eve of it taking effect. The 14 December ruling overturns the High Court’s earlier decision, and now places responsibility on the government and civil society to implement stringent regulatory measures on the operations of labour agencies.
The head of the Namibia Employers’ Federation, Tim Parkhouse, heralded the court’s decision, calling it an investment attraction.
But the National Union of Namibian Workers (NUNW) reacted angrily to the court’s decision, while Minister of Labour and Social Welfare, Immanuel Ngatjizeko, said that although the government must abide by the decision, he pledged the government of President Hifikepunye Pohamba will not allow the labour-hire system to continue in its current form.
Ngatjiseko, in a Windhoek newspaper, said: “It is ironic that a provision of the Namibia Constitution that was intended to eradicate apartheid practices that subjected black workers to the injustice and humiliation of job reservation, influx control and the like has now been interpreted to turn a blind eye to commercial arrangements for the rental of human labour in order to avoid the protections afforded to workers by the labour laws.”
Ngatjiseko said the current system in Namibia, where labour hire firms are allowed to employ people who then provide these people to clients, is exploitative and reminiscent of the apartheid contract labour system because workers in Namibia with few or no other options for gainful employment fall into the clutches of labour agencies.
The NUNW, linked in history with the ruling South West African People’s Organisation (SWAPO)
political party and a union itself banned in the pre-Namibia days of the 1970s and 1980s because it dared to challenge the apartheid labour system, was more blunt in its assessment of the court’s decision. “We firmly believe that one cannot regulate slavery and thereby give it a human face,” said the federation.
The court’s decision last month provoked wide opinions, proving again the intensity of the labour hire issue inside Namibia and in all of Africa.
The New Era, a Windhoek publication, predicted, “There is no denying that labour hire is a niece of the contract labour system that we have supposedly got rid, but when weak regulations are approved, the Supreme Court would be left with no choice but to stick to what is lawful on paper.”
An editorial in The Namibian, another Windhoek newspaper, stated, “The principal of labour hire may be an important one, especially in a country with a very high unemployment rate, but it cannot be allowed to perpetuate exploitation of workers to the benefit of middlemen; to provide ways around employer adherence to the Labour Code; and to shut out unions.”
On 5 July 2007, the country’s National Assembly passed an amendment to the labour code stating that “no person may, for reward, employ any person with a view to making that person available to a third party to perform work for the third party.” The law was to take effect on 1 March 2009. But on 27 February, the High Court suspended implementation of the law to hear APS’s appeal.