Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

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

The Committee notes the information contained in the Government's reports.

Article 1 of the Convention. The Committee notes that it has previously raised concerns with respect to the need for workers in export processing zones to be fully protected from dismissal and other prejudice in employment for engaging in legitimate trade union activities. The Committee notes that the Government has indicated that the tripartite Labour Advisory Council is studying this issue and assessing the economic and labour impact of the application of the Labour Act, 1992, and the Export Processing Zones Amendment Act, 1996, in the zones. Once this study is completed, the Labour Advisory Council is expected to put forward recommendations to either amend the legislation or await the statutory lapse of the prohibition of industrial action under the Export Processing Zones Amendment Act, 1996, in June 2001. The Committee urges the Government to ensure that the legislation is amended as soon as possible, rather than awaiting the statutory lapse in June 2001, to bring it into conformity with the requirements of the Convention. The Committee requests the Government to keep it informed of any progress in this regard.

Articles 2(2) and 3. The Committee has been commenting on the absence of protection under the Labour Act of workers' and employers' organizations directly against acts of interference by each other in their establishment, functioning or administration. The Committee notes that the draft Labour Amendment Bill has been submitted to the Labour Advisory Council, which is in the process of formulating recommendations to be submitted to the Minister of Labour. The Committee notes the Government's indication that if the draft Labour Amendment Bill is approved, the Committee's concern regarding interference would be addressed. The Committee requests the Government to keep it informed of the Labour Advisory Council's recommendations and the progress of the Labour Amendment Bill.

Article 4. In its previous direct request, the Committee had requested the Government to review and amend the Labour Act so that if no union or group of unions covered more than 50 per cent of the workers, collective bargaining rights were granted to the unions in the unit, at least on behalf of their own members. In its most recent report, the Government asserts that this would undermine the importance of recognizing the most representative union and encourage fragmentation. The Government points to section 58(1) of the Labour Act providing for a trade union or a group of trade unions that represents the majority of employees in a bargaining unit to be recognized as the exclusive bargaining agent. An application may be brought before the Labour Court pursuant to section 58(6) for the withdrawal of such representation, and the Labour Court may make such order as it deems necessary in relation to the continuation or cessation of any collective agreement. The Committee notes that the Government indicates with respect to section 58(6) that if there is an order for the cessation of the collective agreement, the employees concerned will no longer be covered by the agreement.

The Committee draws attention to the distinction between exclusive bargaining rights, which clearly should be limited to the most representative union or unions having a majority, and the situation where no union or group of unions covers more than 50 per cent of the workers. With regard to the latter situation, while the Committee understands the Government's desire to avoid fragmentation in bargaining, it is of the view that collective bargaining still has a legitimate and useful role. The importance of the principle of the right of workers' organizations to negotiate conditions of employment through collective bargaining even when no majority exists is underscored in the present instance, in the view of the Committee, by the fact that the Labour Court can, pursuant to section 58(6), order the cessation of a pre-existing collective agreement where exclusive bargaining status is withdrawn. The Committee again requests the Government to review and amend the Labour Act so that if no union or group of unions covers more than 50 per cent of workers, collective bargaining rights are granted to the unions in the unit, at least on behalf of their own members.