Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Namibia (Ratification: 1995)

The Committee notes with interest the detailed information provided by the Government in its first report, as well as the entry into force on 8 April 1992 of the Labour Act (No. 6 of 1992). The Committee would draw the Government's attention to the following points:

1. Articles 2(2) and 3 of the Convention. The Committee notes the Government's statement in its report that section 63 of the Labour Act empowers the Labour Commissioner to disapprove applications for registration of any organization if its constitution is aimed at obstructing or interfering with the rights or activities of other organizations. The Committee nevertheless notes the absence of provisions in the Act which could protect workers' and employers' organizations directly against acts of interference by each other in their establishment, functioning or administration. In this respect, the Committee would recall that governments which have ratified the Convention are under the obligation to take specific action, in particular through legislative means, to ensure respect for the guarantees laid down in Article 2 (1994 General Survey on freedom of association and collective bargaining, para. 230). Since such protection is of a very general nature, the Committee would request the Government to adopt specific measures in this respect which could include making provision in its legislation for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference by employers or employers' organizations in the establishment, functioning or administration of trade unions. The Committee requests the Government to keep it informed of any progress made in this regard.

2. Article 4. The Committee observes that the provisions of the Labour Act, 1992, generally encourage and promote collective bargaining. In this respect, it notes the Government's statement to the effect that it has registered, through the office of the Labour Commissioner, 29 collective agreements between various trade unions and private companies. The Committee would nevertheless request clarification from the Government on the following points:

(a) The Committee notes that section 57(1)(b) of the Act stipulates that if a registered trade union is an exclusive bargaining agent, it shall have the right to negotiate with the employer concerned the terms of, and enter into, a collective agreement. The Committee notes, moreover, that subsection (1) of section 58 defines an exclusive bargaining agent to be a registered trade union which represents the majority of employees within a bargaining unit. The Committee requests the Government to indicate whether, in practice, if no union represents the majority of employees in a bargaining unit, collective bargaining rights are denied to all unions in such a unit. If this is so, the Committee recalls that it considers that under such a system, if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members (see General Survey, op. cit., para. 241).

(b) The Committee notes that subsection (6)(a)(i)(bb) of section 58 provides that if, upon an application made to the Labour Court by an employer, the court is satisfied that the majority of the employees within a bargaining unit is no longer represented by the trade union in question, the court may make such order as it may deem necessary in relation to the continuance or cessation of any collective agreement. The Committee requests the Government to indicate whether in practice this means that the employees concerned would no longer be covered by any collective agreement since the Act establishes a system of recognition of an exclusive bargaining agent.