Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Namibia

Labour Inspection Convention, 1947 (No. 81) (Ratification: 2018)
Labour Administration Convention, 1978 (No. 150) (Ratification: 1996)

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on labour inspection and labour administration, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection) and 150 (labour administration) together.

Labour inspection: Convention No. 81

The Committee notes the Government’s first report.

Article 4. Supervision and control of a central authority. The Government indicates that the labour inspection system is placed under the supervision and control of the Ministry of Labour, Industrial Relations and Employment Creation (MLIREC) for matters relating to conditions of employment and occupational safety and health, and the Ministry of Mines and Energy (MME) for, more specifically, occupational safety and health in the mining sector. The Government adds that it is developing a national inspection policy, which will provide guidance for inspection in all sectors, including the mining sector. The Government indicates that the policy is at an advanced approval stage. The Committee requests the Government to provide more information on the content and scope of the national inspection policy and to supply a copy of it once adopted.

Article 5. Effective cooperation between the inspection services and collaboration between the labour inspectorate and employers and workers or their organizations. The Government indicates that three Ministries (MLIREC, MME, and the Ministry of Health and Social Services (MHSS)) drafted a memorandum of understanding aimed at strengthening collaboration and cooperation in relation to occupational safety and health, including workplace inspection and accident investigation, and contributing to the prevention of occupational accidents and diseases. The Government adds, however, that the memorandum of understanding has not yet been signed. The Committee requests the Government to provide further information on the memorandum of understanding and the impact of the cooperation between ministries. It also requests the Government to provide information on the collaboration between the ministries responsible for labour inspection and the employers’ and workers’ organizations.

Article 9. Duly qualified technical experts and specialists. The Government indicates that the MHSS is responsible for occupational health in all sectors, with the OSH Regulations relating to the Health and Safety of Employees at Work that provide for the Chief Medical Officer of Occupational Health being notified and/or consulted in specific situations. According to the Government, should a need arise, the Chief Medical Officer may join workplace inspections relating to safety and health. The Committee requests the Government to provide further details as to the measures taken to give effect to Article 9, including the extent to which the staff carrying out inspection visits include other technical experts and specialists in the fields mentioned in Article 9, or in related technical fields. To the extent that technical experts and specialists are not included in the staff carrying out inspection visits, the Committee requests the Government to give particulars as to the arrangements made to ensure that such experts and specialists are associated in the work of inspection.

Article 10. Sufficient number of labour inspectors. The Government indicates that the Directorate of Labour Services in the MLIREC is comprised of two divisions, namely the Labour Inspectorate (LI) Division and the Occupational Safety and Health (OSH) Division. The Government indicates that the Directorate structure consists of 163 positions; however, only 89 (28 OSH and 61 LI) are funded at this time, while 74 are not funded (20 OSH and 54 LI). The LI Division, which inspects the compliance of the conditions of employment, has a workforce of 57 filled positions of labour inspectors out of 61 funded positions, while the OSH Division has 25 filled positions out of 28 funded positions. The Government indicates that the MME, which is responsible for inspecting safety and health in the mining sector, is comprised of one Chief Inspector of Mines and six safety and health inspectors. The Government indicates that difficulties exist in practice, including limited human and financial resources to fully carry out the purpose of the Convention. The Committee requests the Government to provide information on the measures taken to fund and fill the remaining labour inspector positions, and to continue to provide information on the number of labour inspection positions that are filled. It also requests the Government to indicate how it ensures that the number of labour inspectors is sufficient to secure the effective discharge of the duties of the inspection service.

Article 12(1)(a). Right of labour inspectors to enter freely workplaces liable to inspection. The Committee notes that section 125(2)(a)(i) of the Labour Act provides that a labour inspector may, at any reasonable time, enter any premises and direct that the premises or any part of it must not be disturbed as long as it is reasonably necessary to search the premises. With reference to Article 12(1)(a), the Committee requests the Government to provide information on the application in practice of section 125(2)(a) of the Labour Act, and to indicate whether labour inspectors are empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection. The Committee also requests the Government to provide information on the number of inspection visits conducted by the LI and OSH Divisions, including separately the number of announced and unannounced inspection visits.

Article 13. Powers related to occupational safety and health enforcement. The Committee notes that section 126(1) of the Labour Act provides that an inspector who has reasonable grounds to believe that an employer has not complied with a provision of the Act may issue a compliance order. The employer is then required to comply with the order (section 126(2)) or may appeal to the Labour Court within 30 days after receiving it (section 126(3)). The Government indicates that a practical difficulty encountered is the absence of power to take measures with immediate executory force in the event of imminent danger to the health or safety of workers, as provided for in Article 13 of the Convention. In order to strengthen the current provisions of the Labour Act, the Government indicates that an amendment was proposed by a Tripartite Task Force to provide for the issuance of a prohibition notice, whereby an inspector, who is of the opinion that a particular work activity, process or machinery threatens or is likely to threaten the health or safety of an employee or any other person, may issue a notice requiring the employer to cease such activity, process or use of machinery. The Committee requests the Government to provide information on any measures adopted in order to give full application to Article 13, including any developments concerning legislative amendments proposed to the Labour Act by the Tripartite Task Force or other entities, and to supply a copy of the revised legislative text once it is adopted.

Article 15. Obligations of labour inspectors. With respect to Article 15(b), the Committee notes that section 27 of the Regulations relating to the Health and Safety of Employees at Work provides that no person performing any duty or function in terms of the Labour Act or its regulations shall, otherwise than in the performance of his or her duties, reveal any manufacturing or commercial secret which may at any time come to his or her knowledge in the course of the performance of his or her duties.The Committee notes that no additional information was provided on the application of Article 15. The Committee therefore requests the Government to provide information on how it ensures that labour inspectors do not have any conflict of interest, whether direct or indirect, in the workplaces under their supervision (Article 15(a)), and how it ensures the confidentiality of complaints (Article 15(c)).

Article 16. Undertaking inspections as often as necessary. The Government indicates that measures are taken to carry out workplace inspections in terms of routine, complaint-based and special inspections. Special inspections are carried out when there is a concern in a specific sector or geographic area. The Government indicates that, ideally, every workplace should be inspected every year; however, due to limited resources, safety and health inspections are currently prioritized in high-risk sectors and where complaints are submitted. With respect to occupational health and safety standards, the Committee notes from the 2019-20 Annual Report of the Labour Services Directorate that 642 workplace inspections were conducted out of the 1,170 targeted inspections, thus achieving 55 per cent of the set target. The report also mentions that the total number of inspections dropped by 12 per cent compared to the previous financial year. The Committee requests the Government to continue to provide information on measures taken to ensure that workplaces are inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions. It also requests the Government to provide statistics on the number of inspections undertaken in each year, by type of inspection (routine, complaint-based and special inspections).

Articles 17 and 18. Adequate penalties imposed and effectively enforced. The Government indicates that section 127 of the Labour Act provides for offences in relation to inspectors, including violations of legal provisions. Section 127(1)(a) refers to hindering or obstructing labour inspectors in the performance of their duties and the penalties thereof. Section 127(2) of the Labour Act states that a person convicted of an offence is liable to a fine not exceeding N$10,000 (approximately US$600) or to imprisonment for a period not exceeding two years, or to both the fine and imprisonment. The Committee notes that, with respect to child labour, section 3(4)(6) of the Labour Act provides for a fine not exceeding N$20,000 (approximately US$1,200) or to imprisonment for a period not exceeding four years, or to both the fine and imprisonment. Fines and maximum period sentences in relation to the forced labour provision (section 4(3) of the Labour Act) are the same as for child labour. The Government indicates in its report that OSH regulations also provide for penalties for violations; however, the Government indicates that the punitive measures are too lenient to serve as a deterrent. The Committee notes in this regard that most fines specified in the regulations are not exceeding N$2,000, (approximately US$120). The Committee requests the Government to provide information on any measures taken or envisaged to increase the applicable fines and other penalties provided in the legislation, with particular reference to the OSH regulations. It also requests the Government to provide detailed information on the nature and number of violations detected in the course of inspections, any subsequent penalties applied, and the results of any cases referred to the courts.

Articles 20 and 21. Annual report on the work of the inspection services. The Committee notes the 2019-20 Annual Report of the Labour Services Directorate, communicated with the Government’s report. It notes that the report does not contain information on: (i) statistics of workplaces liable to inspection and the number of workers employed therein (Article 21(c)); (ii) statistics of violations and penalties imposed (Article 21(e)); and (iii) statistics of occupational diseases (Article 21(g)). The Committee requests the Government to indicate any steps taken or envisaged in order to publish a labour inspection report containing detailed information on all the items listed in Article 21(a)–(g) of the Convention. The Committee also requests the Government to ensure that annual reports are transmitted to the ILO, in accordance with Article 20(3).

Labour administration: Convention No. 150

Technical assistance. Labour administration and inspection needs assessment. In reply to the Committee’s previous comment, the Government indicates that it has implemented some of the recommendations of the 2011 needs assessment, including the ratification of the Labour Inspection Convention, 1947 (No. 81), and the Employment Policy Convention, 1964 (No. 122), both ratified in September 2018. It indicates that the Labour Inspection (Agriculture) Convention, 1969 (No. 129), is still being considered for ratification. The Government indicates that, due to budgetary constraints, some recommendations had not yet been implemented. The Committee requests the Government to continue to provide information on the steps taken with a view to the application in law and practice of the provisions of the Convention, in light of the remaining recommendations of the 2011 needs assessment.

Article 4 of the Convention. Organization, effective operation and coordination of the functions and responsibilities of the labour administration system. The Government indicates that the Ministry of Labour, Industrial Relations and Employment Creation (MLIREC) was given the mandate of employment creation as of 2015 and thus the coordination of employment creation efforts in the country. It adds that, although the new organizational structure of the Ministry is not fully implemented, the Ministry continues to deliver on its mandate of coordinating employment creation efforts and regulating the labour market, in accordance with labour and employment laws. The Committee requests the Government to provide information on the steps taken to ensure the effective operation and coordination of the services of the labour administration system, including through the improved organizational structure of the Ministry.

Articles 5 and 6. Tripartite consultation, cooperation and negotiation within the system of labour administration at national, regional and local levels. Preparation, administration, coordination, checking and review of national labour policy. The Government indicates that, at the Southern African Development Community (SADC) level, a model framework for national social dialogue institutions in the SADC is being developed. It adds that, once the model framework is finalized, it will ensure that the current Labour Advisory Council is aligned to the SADC model framework. The Committee requests the Government to provide information on the SADC model framework and to supply a copy of that framework once finalized. It also requests detailed information on the measures taken to ensure appropriate arrangements for social dialogue, including an evaluation of the possibility of a national and regional tripartite social dialogue model. With reference to its previous comments concerning employment promotion measures and the impact of those measures, the Committee refers to its comments on the Employment Policy Convention, 1964 (No.122).

Article 7. Progressive extension of the functions of the labour administration system to workers who are not, in law, employed persons. The Government indicates that there is no information available on the progressive extension of the functions of the labour administration to individuals who are not, in law, employed persons. The Committee previously noted from the 2014 Labour Force Survey that 41.1 per cent of the population was estimated to work in the informal sector. According to the 2018 Labour Force Survey, 57.7 per cent of the employed population are in informal employment, with 54.1 per cent of men and 61.2 per cent of women. Noting the high levels of informal employment in the country, the Committee requests the Government to indicate the measures taken or considered to extend the functions of the system of labour administration to workers listed in paragraph (a) to (d) of Article 7.

Article 10. Human resources and material means of the labour administration services. The Government indicates that the total staff of the MLIREC is 649 positions. It adds that only 353 positions are filled as of 31 August 2021. The allocation of the National Budget to the labour administration system for 2021-22 was N$162,692,000 (approximately US$10,900,000). The Government indicates that all staff members are provided with ventilated offices with enabling facilities (i.e. computers, internet, telephones, photocopy/fax machine) and transport facilities. Moreover, all staff members have personal development plans and training interventions are based on these plans. In reply to the Committee’s previous comments on the criteria to determine whether a labour inspector is unfit to perform his/her duties, and the number of cases of which labour inspectors were suspended, dismissed or moved to other duties, the Government indicates that the Minister’s appointment of labour inspectors is subjected to or informed by the Public Service Act. Section 124(3) of the Labour Act provides that the Minister may suspend or withdraw an appointment made in terms of subsection (1). In the event that the labour inspector is not fit to perform duties, the Public Service Staff Rule on Misconduct and Disciplinary Action specifies procedures and any punitive measures to be applied if the labour inspector is found guilty. The Government indicates that no cases of labour inspectors suspended, dismissed or moved to other duties were reported on the basis of being unfit to perform their duties. The Committee requests the Government to provide information on the steps taken to ensure that the nearly 300 vacant positions in MLIREC are filled. It also requests the Government to provide more detailed information on the training provided to the staff of the labour administration services, including the subjects covered, number of participants, and dates for sessions. Regarding the audit of the staff situation of the labour administration services, the Committee reminds the Government of the possibility to avail itself of ILO technical assistance in this regard.

Application of the Convention in practice. The Committee notes that the report of the Labour Advisory Council for 2019-20 was communicated by the Government, as an annex to its report. The Government also indicates that the Wages Commission only operates when the Minister appoints commissioners to investigate wages. In 2021, commissioners were appointed to investigate and report to the Minister on a possible introduction of a minimum wage. Commissioners were expected to submit the report by the end of September 2021. The Committee notes from the Labour Advisory Council’s report that the Council experienced key challenges that range from capacity of the Secretariat to prepare and deliver meeting documents on time, to capacity of standing Committees (Dispute Prevention and Resolution, and Essential Services) and other ad hoc Committees to produce and submit to the Council the required research documents for deliberations, decisions and advice to the Minister. Issues of quorum both at Council and Committee levels were noted as a setback in implementing outreach programmes to social partners, especially on matters affecting harmonious labour relations, understanding and appreciation of labour rights, and knowledge and application of the Labour Act. The Committee once again requests the Government to provide extracts of reports or other periodical information of the above-mentioned bodies, including the report of the Wage Commission and, where applicable, information on any practical difficulties encountered and measures adopted to overcome them.