Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Namibia (Ratification: 2001)

Article 1(1)(b) of the Convention. Legislation. The Committee recalls its previous comments in which it noted that while the general non-discrimination provision of the Labour Act (section 5) includes the grounds of HIV and AIDS, degree of mental disability and family responsibilities, these grounds are omitted under section 33 of the Act which prohibits unfair dismissal. With regard to specific provisions addressing the issue of dismissal based on HIV status, the Government refers to sections 45 and 46 of the Affirmative Action (Employment) Act, Act No. 29 of 1998. The Committee notes however that sections 45 and 46 of the Affirmative Action (Employment) Act are general procedural provisions which govern the process of filing a complaint with the Labour Commission, and do not create any additional substantive protection prohibiting unfair dismissal based on the grounds of HIV and AIDS, degree of mental disability or family responsibilities. The Government indicates that it has a National Policy on HIV and AIDS, and that every workplace has a wellness unit which provides counselling and guidance. The Committee notes from the 2007 National Policy on HIV and AIDS that section 6.2(2)(iii) prohibits termination of employment which is solely on the grounds of HIV status or family responsibilities relating to HIV/AIDS. The Committee once again requests the Government to consider including specific provisions prohibiting dismissal based on the grounds of HIV and AIDS, degree of physical or mental disability and family responsibilities with a view to ensuring consistency between sections 5 and 33 of the Labour Act. The Committee also asks the Government to provide information on the application in practice of section 6.2 of the National Policy on HIV and AIDS.

Sexual orientation. In its previous comments, the Committee noted with regret that the Labour Act no longer prohibited discrimination based on sexual orientation. The Committee notes that the Government repeats its statement that article 10 of the Constitution prohibits discrimination based on sex, race, colour, ethnic origin, creed, and social or economic status. The Government also indicates that all workers have the same level of protection against discrimination under section 5(2) of the Labour Act. The Committee recalls however that neither section 5 nor any other section of the Labour Act prohibit discrimination based on the ground of sexual orientation. The Committee again requests the Government to ensure that workers have the same level of protection against discrimination on the ground of sexual orientation as provided under section 5 of the Labour Act with respect to other grounds, and asks the Government to provide information on specific measures taken in this regard.

Articles 2 and 5. Implementation of the national policy and affirmative action. The Committee notes that the Government indicates that employees from previously disadvantaged groups because of race comprised 30 per cent of executive directors, while the previously advantaged (“whites”) represented 59 per cent of executive directors and that during the 2011–12 review period, the representation of previously disadvantaged (“blacks”) in senior and middle management rose to 65 per cent compared to 62 per cent in the previous review period. Women comprised 42 per cent of executive directors, while accounting for 46 per cent of all employees. The Committee notes that persons with disabilities continued to comprise only 0.5 per cent of the total workforce. The Government indicates that at the time of reporting, 64 cases of non-compliance had been filed in court, and that the Employment Equity Commission (EEC) had considered 738 affirmative action reports submitted by employers. The Committee welcomes the Government’s indication that the EEC has increased its staff from nine to 15 members, and that a senior police officer has been assigned to the office to investigate cases of non-compliance and to bring defaulters before the court. With regard to access to vocational training, the Government indicates that section 17(2)(c)(iii) of the Affirmative Action (Employment) Act provides that persons from designated groups may receive preferential treatment in employment decisions, which pursuant to section 1 of the Act includes access to vocational guidance, training and placement services. The Committee notes that at the time of reporting, 47,518 employees had been trained, of which 10 per cent were executive directors and managers respectively, 44 per cent were women and 0.3 per cent were persons with disabilities. The Committee requests the Government to continue providing information on the application of the Affirmative Action (Employment) Act, including specific information on cases of employers’ non-compliance with the Act. Noting the Government’s indication that the Act does not cover discrimination based on the grounds of national extraction and social origin, the Committee asks the Government to provide information on how it is ensured that persons facing discrimination on these grounds have adequate access to employment and training opportunities. The Committee also requests the Government to provide information on measures taken to promote access to training not only for current employees, but also for those who are unemployed.

The Committee is raising other points in a request addressed directly to the Government.